The UK government’s proposed “breach” of its Withdrawal Agreement with the European Union is purely a negotiating ploy. Critics of Prime Minister Boris Johnson’s tactics must argue their case on pragmatic rather than legal grounds.
LONDON – Whenever the great and the good unite in approval or condemnation of something, my impulse is to break ranks. So, I find it hard to join the chorus of moral indignation at the UK government’s recent decision to “break international law” by amending its Withdrawal Agreement (WA) with the European Union.
The “breach” of the WA is a calculated bluff based on the government’s belief that it can honor the result of the 2016 Brexit referendum only by deploying considerable chicanery. The main problem is reconciling the WA with the 1998 Good Friday Agreement, which brought peace to Northern Ireland and committed the UK government to maintaining an open border between Northern Ireland and the Republic of Ireland.
Prime Minister Boris Johnson negotiated and signed the WA, and must have been aware of the implicit risk of Northern Ireland remaining subject to EU customs regulations and most single-market rules. But in his determination to “get Brexit done,” Johnson ignored this little local difficulty, rushed the agreement through Parliament, and won the December 2019 general election. He now must backtrack furiously to preserve the UK’s economic and political unity, all the while blaming the EU for having to do so.
The fact that Johnson may have been the prime author of this legal mess does not alter the fact that the UK government pledged to honor the popular mandate to leave the EU, and had to find a political mechanism to make this happen. The Internal Market Bill now before parliament is both that mechanism and Johnson’s latest gambit to complete Brexit.
The bill gives the government the power, with Parliament’s consent, to change or ignore elements of the WA’s Northern Ireland Protocol, which ministers fear might result in “new trade barriers […] between Great Britain and Northern Ireland.”
The government has admitted that the bill breaches international law, but claims that its provisions to disallow elements of the protocol should “not be regarded as unlawful.” This is moot, and may still be tested in the courts. But it is the breaking of “international law” that has chiefly aroused the critics’ moral indignation.
In an op-ed in The Times,former UK attorney general Geoffrey Cox argued that it was “axiomatic” that the government must keep its word to other countries (my italics), “even if the consequences are unpalatable.” Failure to do so, Cox wrote, would diminish the UK’s “faith, honor, and credit.” Signing the WA with the EU obliged the government to accept “all the ordinary and foreseeable consequences of [its] implementation.”
But it is not “axiomatic” that a government must keep its word to other nation-states, even when this is codified in treaties. Doing so is desirable, but states frequently do not, for some obvious reasons.
First, no one can accurately foresee the full consequences of their actions. The erection of customs barriers in the Irish Sea is not an “inescapable implication” of signing the WA, as Cox now claims it is, because the agreement presupposed further negotiations on this point.
Second, Cox’s pronouncement implies that a government’s word to other governments is worth more than its word to its own people. But former Prime Minister David Cameron’s government, as well as the leaders of the main opposition parties, promised to respect the result of the Brexit referendum.
Third, Cox and others have argued that rather than breaking international law, the government should trigger the WA’s dispute-resolution mechanism to challenge the agreement’s disagreeable consequences as and when they occur. But having to suffer damage before doing anything about it is an odd doctrine.
Finally, Cox seems to treat international law as being on a par with domestic law, when in fact it is inherently less binding. This is because international law is less legitimate; there is no world government entitled to issue and enforce legislation.
International law is mainly a set of international treaty “obligations” between sovereign states. Breaking one is certainly a grave matter: it rightly carries a penalty in the form of lost reputation, and the United Kingdom may now end up with a less favorable trade agreement with the EU. Whether the UK should have risked its reputation in this particular case is not the issue. Now that it has, the case must be argued on the grounds of political necessity, not on the principle of legal obligation.
Governments and policymakers often violate or evade international law via both planned and improvised escape routes. This is because treaty instruments are necessarily static, whereas conditions change. It usually makes more sense to allow exceptional derogations than unravel a web of treaties.
For example, many governments have explicitly or implicitly repudiated national debts, the best-known example being the Bolsheviks’ repudiation in 1918 of Czarist Russia’s debts, owed mainly to French bondholders. More often, debtors “compound” with their creditors to render their debt wholly or partially fictitious (as Germany did with its reparation obligations in the 1920s).
Similarly, the European Central Bank is forbidden by Article 123 of the Treaty on the Functioning of the European Union to purchase its member governments’ debt instruments. But former ECB President Mario Draghi found a way around this to start quantitative easing in 2015.
I am much more sympathetic to the argument that Johnson signed the WA in bad faith, knowing that he would most likely try to override the Northern Ireland Protocol. What critics don’t seem to understand is that extricating the UK from the EU was always going to require a lot of legal skulduggery.
The legal mess was a consequence of the politics of withdrawal, and specifically the tension between Brexit and the Good Friday Agreement’s requirement of an open border between Northern Ireland and the Republic of Ireland (an EU member state). Prime Minister Theresa May tripped over this rock, while Johnson’s government shoved the problem into the post-Brexit transition period that ends on December 31, 2020.
With the deadline for concluding a UK-EU trade deal drawing closer, Johnson hopes that the Internal Market Bill will put pressure on the EU to devise a formula that ensures a customs-free border in the Irish Sea. It is a negotiating ploy, pure and simple.
Whether it is a good negotiating tactic is arguable. But critics must make their case in the context of the negotiating process as a whole, and without resorting to legal fetishism. That is why lawyers should never run a country.1
In his closing statement at the Bretton Woods conference in 1944, John Maynard Keynes described the ideal lawyer: “I want him to tell me how to do what I think sensible, and, above all, to devise means by which it will be lawful for me to go on being sensible in unforeseen conditions some years hence.” We will soon know whether Johnson’s bluff meets this sensible standard.