Dr Austen Morgan is a barrister at 33 Bedford Row. He is the author of ‘Pretence: why the United Kingdom needs a written constitution’, to be published this September.
Is the UK – with the Northern Ireland Protocol bill now in parliament – in breach of international law?
Yes, if one is a EU loyalist, and brooks no disagreement with Maroš Šefčovič, its vice president. No (or not obviously so at this point), if one practises domestic law as I do, aware of the law of nations out there governing states.
The Protocol forms part of the UK’s withdrawal agreement of October 2019, made with the EU, followed by the free-trade agreement of December 2020 – some two thousand pages drafted in Brussels, which restored national sovereignty at 23.00 (GMT) on 31 December 2020. These are treaties in international law.
The Withdrawal Agreement provided for an orderly withdrawal (which happened legally in January 2020), and also legal certainty in the UK and EU – which has not come about; the Protocol (with 19 articles and seven annexes amounting to 132 pages) is a drafting nightmare.
True, the UK is treated as a third country (and not a dependency of Brussels). True, the protocol refers to the customs territory of the UK. True, Northern Ireland may be included in UK international trade agreements. And true, there is unfettered access of Northern Irish goods to Great Britain.
But – and it is big but – while the UK has ceased to be a member of the EU, the territory of Northern Ireland has been left behind in the single market for goods, subject to continuing EU law (on customs and regulation), listed at considerable length in five of the seven annexes – and all this because of a limited risk of east-west goods, from Great Britain to Northern Ireland, leaking into the Republic of Ireland.
The practice of the EU, perceived as the creation of an Irish sea (trade) border, is seen increasingly in constitutional terms, namely the severing of the British state on an east-west axis. This echoes the nationalist argument about no hard border north-to-south in Ireland, which was permitted to dominate the withdrawal negotiations..
There is a number of arguments available to Liz Truss, of varying weight, which have yet to be deployed effectively in support of the Government’s bill.
First, we did not foresee (she told the commons on 17 May 2022) that the EU, instead of requiring light-touch controls on east-west trade, would require the tracking of every consignment. This is at best naïve. While it might work politically, it will not succeed legally.
Second (a better argument): the Protocol is only an agreement to agree. It does not contain clear obligations binding the UK. Article 166 of the withdrawal agreement includes:
‘The decisions adopted by the [Truss/Šefčovič] Joint Committee shall be binding on the Union and the United Kingdom…They shall have the same legal effect as this Agreement.’
If the EU declines unreasonably to adopt new decisions, it – and not the UK – might be in breach of the good faith provision in the withdrawal agreement (and international law).
Third, Lord Frost, from March 2021, and Liz Truss from January 2022, tried to talk sense into their Moscow-educated (and former communist) Slovak interlocutor.
In July 2021, the UK Government published a command paper: Northern Ireland Protocol: the way forward. It contained the big idea of optional regulation by the EU or the UK, and the practical proposal of red and green lanes. The EU responded in October, with minimal concessions (including on medicines).
Maroš Šefčovič (stepping on to the territory of unreasonableness) has insisted that his mandate is to uphold the withdrawal agreement, tout court.
Fourth, the Belfast Agreement. This 1998 London/Dublin agreement brought peace to Northern Ireland. The card should not, however, have been played by the EU, since it made no reference to the Irish border or to trade.
Now that the Belfast Agreement runs through the Protocol like Blackpool through rock, the UK may legitimately play it back: peace and stability is now the priority issue, following the resignation of the first minister, Paul Givan, in February 2022, and the failure of the assembly to come back in May 2022.
Boris Johnson insists that the Government’s bill – with a second reading on 27 June 2022 – will not, after enactment, be in breach of international law. The argument is not contained in the bill, nor the explanatory notes – so MPs and peers will have to look elsewhere.
On 13 June 2022 (at first reading), the foreign office issued a press release, hyperlinking to a policy paper… which no one seems to have read.
The Government prays in aid the doctrine of necessity in customary international law, now codified by the United Nations in: international law commission, Responsibility of states for internationally wrongful acts (2001).
Article 25 permits a wrongful act – here saving the Belfast Agreement at the expense of the Protocol – if two conditions apply: first, ‘safeguard[ing] an essential interest against a grave and imminent peril’; and second, ‘not seriously impair[ing] an essential interest of the…States towards which the obligation exists, or of the international community as a whole’.
The second condition might be easier to prove than the first. But the problem would be finding an international court to decide.
Most likely, the United Kingdom Internal Market Act 2020 will be a precedent, with the UK using the legislative process to negotiate more effectively with the EU for joint committee decisions which better specify the protocol and mitigate harshness in practice.
Dr Austen Morgan is a barrister at 33 Bedford Row. He is the author of ‘Pretence: why the United Kingdom needs a written constitution’, to be published this September.
Is the UK – with the Northern Ireland Protocol bill now in parliament – in breach of international law?
Yes, if one is a EU loyalist, and brooks no disagreement with Maroš Šefčovič, its vice president. No (or not obviously so at this point), if one practises domestic law as I do, aware of the law of nations out there governing states.
The Protocol forms part of the UK’s withdrawal agreement of October 2019, made with the EU, followed by the free-trade agreement of December 2020 – some two thousand pages drafted in Brussels, which restored national sovereignty at 23.00 (GMT) on 31 December 2020. These are treaties in international law.
The Withdrawal Agreement provided for an orderly withdrawal (which happened legally in January 2020), and also legal certainty in the UK and EU – which has not come about; the Protocol (with 19 articles and seven annexes amounting to 132 pages) is a drafting nightmare.
True, the UK is treated as a third country (and not a dependency of Brussels). True, the protocol refers to the customs territory of the UK. True, Northern Ireland may be included in UK international trade agreements. And true, there is unfettered access of Northern Irish goods to Great Britain.
But – and it is big but – while the UK has ceased to be a member of the EU, the territory of Northern Ireland has been left behind in the single market for goods, subject to continuing EU law (on customs and regulation), listed at considerable length in five of the seven annexes – and all this because of a limited risk of east-west goods, from Great Britain to Northern Ireland, leaking into the Republic of Ireland.
The practice of the EU, perceived as the creation of an Irish sea (trade) border, is seen increasingly in constitutional terms, namely the severing of the British state on an east-west axis. This echoes the nationalist argument about no hard border north-to-south in Ireland, which was permitted to dominate the withdrawal negotiations..
There is a number of arguments available to Liz Truss, of varying weight, which have yet to be deployed effectively in support of the Government’s bill.
First, we did not foresee (she told the commons on 17 May 2022) that the EU, instead of requiring light-touch controls on east-west trade, would require the tracking of every consignment. This is at best naïve. While it might work politically, it will not succeed legally.
Second (a better argument): the Protocol is only an agreement to agree. It does not contain clear obligations binding the UK. Article 166 of the withdrawal agreement includes:
‘The decisions adopted by the [Truss/Šefčovič] Joint Committee shall be binding on the Union and the United Kingdom…They shall have the same legal effect as this Agreement.’
If the EU declines unreasonably to adopt new decisions, it – and not the UK – might be in breach of the good faith provision in the withdrawal agreement (and international law).
Third, Lord Frost, from March 2021, and Liz Truss from January 2022, tried to talk sense into their Moscow-educated (and former communist) Slovak interlocutor.
In July 2021, the UK Government published a command paper: Northern Ireland Protocol: the way forward. It contained the big idea of optional regulation by the EU or the UK, and the practical proposal of red and green lanes. The EU responded in October, with minimal concessions (including on medicines).
Maroš Šefčovič (stepping on to the territory of unreasonableness) has insisted that his mandate is to uphold the withdrawal agreement, tout court.
Fourth, the Belfast Agreement. This 1998 London/Dublin agreement brought peace to Northern Ireland. The card should not, however, have been played by the EU, since it made no reference to the Irish border or to trade.
Now that the Belfast Agreement runs through the Protocol like Blackpool through rock, the UK may legitimately play it back: peace and stability is now the priority issue, following the resignation of the first minister, Paul Givan, in February 2022, and the failure of the assembly to come back in May 2022.
Boris Johnson insists that the Government’s bill – with a second reading on 27 June 2022 – will not, after enactment, be in breach of international law. The argument is not contained in the bill, nor the explanatory notes – so MPs and peers will have to look elsewhere.
On 13 June 2022 (at first reading), the foreign office issued a press release, hyperlinking to a policy paper… which no one seems to have read.
The Government prays in aid the doctrine of necessity in customary international law, now codified by the United Nations in: international law commission, Responsibility of states for internationally wrongful acts (2001).
Article 25 permits a wrongful act – here saving the Belfast Agreement at the expense of the Protocol – if two conditions apply: first, ‘safeguard[ing] an essential interest against a grave and imminent peril’; and second, ‘not seriously impair[ing] an essential interest of the…States towards which the obligation exists, or of the international community as a whole’.
The second condition might be easier to prove than the first. But the problem would be finding an international court to decide.
Most likely, the United Kingdom Internal Market Act 2020 will be a precedent, with the UK using the legislative process to negotiate more effectively with the EU for joint committee decisions which better specify the protocol and mitigate harshness in practice.