Breaking international law: the UK is biting off its nose to spite its face — Dr Sean Molloy

14 September 2020 by

The Brexit Withdrawal Agreement was signed in January of this year. Image: The Guardian

The UK Internal Market Bill has caused huge controversy. Much has been written about the UK Government’s decision to propose this legislation which, as conveyed by the Secretary of State for Northern Ireland, Brandon Lewis MP, in Parliament, would openly flout international law (see, for example, Raphael Hogarth’s piece here, Mark Elliot’s here and discussion between Adam Wagner and David Allan Green here).

A major argument offered in defence is the one focused on the supremacy of domestic law over its international counterpart (see HMG Legal Position: UKIM Bill And Northern Ireland Protocol). The argument goes something like this: where domestic law appears to conflict with international law, Parliament reigns supreme and the domestic legislation is to have effect.

Strictly speaking, this is true. In contexts like the UK, with a dualist system requiring international treaties to be incorporated by an Act of Parliament, any international agreement that is not incorporated into domestic law, but which conflicts with an Act of Parliament, must give way.

But when the dust settles and the reality sets in that UK, as a country, must operate alongside other countries, there is likely to be a host of adverse implications to flow from this decision. Primary among these is, of course, that international law is law and the rule of law necessitates that the UK complies with its international obligations. This is obvious and it is a remarkable state of affairs that the point even needs to be made. Nevertheless, beyond the obvious, there are a multitude of other reasons not to flout international law, only a few of which are touched upon below.

Future cooperation

There is first the matter of trust. On one level, as has been repeatedly highlighted, if the UK is able to pick and choose which international agreements it complies with, why would any country freely choose to engage with the UK? In those countries where at least some treaties are incorporated into the domestic legal order without the need for any legislative act, other than the act authorizing the executive to conclude the treaty, for instance, Austria, Chile, China, France, Germany, and Mexico, countries on the receiving end of a bilateral or multilateral agreement with the UK are likely to be disadvantaged. Whereas the legal systems in these countries require that international law be adhered to, no such guarantees now appear to exist with respect to the UK. Why then, in an increasingly interconnected world where emerging economies offer comparative advantages that rival if not excel those of the UK, would they choose the UK over others? National interests work both ways and the ameliorating effect of international agreements and law are subsumed by the UK’s decision. Of course, the obvious response to this is that express provisions will be written into these treaties so that that will not happen…

There are innumerable other potential externalities that will conceivably flow from this. As just one, in the area of trade agreements, behind the technicalities and pages of legal clauses, there are very real economic actors — investors, financial institutions, workers etc. They require, at the very least, some guarantees that their investment of time, capital and resources will be safe. They depend, at an absolute minimum, on safeguards regarding, for instance, non-appropriation of property. The argument that Parliament is sovereign and that when domestic law (and therefore anything enacted as law) conflicts with international agreements, the latter can be discarded, offers little in the way of inspiring confidence to those contemplating the UK as forum for investment. Recent reports of a trade deal between the UK and Japan do not, as some have argued, alter this reality. The latter will add only 0.07% of the UK’s GDP and will amount to little if the UK is shunned by the EU.

Ability to exert Influence

There are also the glaringly obvious implications for the UK’s ability to position itself as an influential and respected actor in international relations. Take an example. On April 16, 2018, the then Prime Minister, Theresa May, in the House of Commons sought to justify intervening militarily in Syria in response to chemical attacks. Conservative MP Mark Francois posed the question: ‘Was the Prime Minister not entirely right to authorise these airstrikes to defend the principles of the chemical weapons convention and, in so doing, to uphold international law?’ Justine Greening of the Conservative Party asked whether the Prime Minister agreed that, on behalf of the Syrian people, we simply cannot turn a blind eye to this breach of international law and that there will be times when action is urgent and must be taken?’ For Nigel Dodds of the Democratic Unionist Party, the Prime Minister ‘should have the support of every right-thinking Member of the House in upholding international law and defending the national interests of the United Kingdom.’ The response of the then Prime Minister was it was ‘not just morally right but legally right to take military action, together with our closest allies, to alleviate further humanitarian suffering.’

The point of the above is not to offer a position on whether intervention is justified either generally or in the specific instance; that is a matter for another time. It is instead to demonstrate that in seeking to exert influence on the international stage, international law is often utilised as the benchmark upon which to scrutinise and condemn the actions of others, and to inform and underpin military, alongside diplomatic and economic efforts and relations. Now, when China, Poland, Turkey, Russia, or Hungary, as examples, opt to disregard international law, where does the UK sit? Not only is the position of the UK to serve as a force for moral good diminished but those that at present limit deleterious activities in fear of the condemnation are unlikely to demonstrate the same restraint going forward. Why would they? The decision to flout international law is incredibly short-cited, the ramifications of this decision likely to be felt when the UK is itself confronted with any other country doing the same.

Human rights protections at home

The decision to flout international law might also have impacts that are felt closer to home. Consider, for instance, the vast range of international human rights treaties, which are not directly incorporated into domestic law. These include, as examples, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the International Convention on the Elimination of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities. These various international treaties afford rights to the most deserving in society. Correspondingly, they place obligations on the state to respect, promote, protect, and realize the rights contained with them. It is interesting that many of those who have stringently opposed the lockdown measures rely on rights protected under these treaties to voice their concerns. The right to work and education, as examples, fall within the purview of an international treaty in the form of the ICESCR. The rights of children, directly impacted by the decision to close schools, are protected under the CRC.

But if international law can be sidestepped, the protections offered under these international agreements are worth little more than the paper they are written on. To bring these debates in from the abstract, if you are a person that relies on these very obligations being honoured (a significant number in England when considering the most recent report by Special Rapporteur on extreme poverty and human rights), this is not just a matter of legal debate — it is one that could have a direct effect on how your rights are protected in the future. The response will be, predictably, that domestic law covers these rights and if not, then future domestic legislation can expand to encompass them. Both are far from persuasive. The Committee on the Elimination of Discrimination against Women — the body which oversees the implementation of CEDAW — has, for instance, in 1999, 2008, 2013 and 2018 (see here) consistently noted the lack of measures taken to fully incorporate the provisions of the Convention into the UK’s national legislation, leading to a fragmented and uneven legislative framework on the rights of women and girls. It would certainly be remarkable for the UK to all of a sudden move to do what it has not in over twenty years. In short, the UK’s decision opens the space to ignore a host of obligations under international human rights law which, given respective Conservative governments open attacks on human rights, is not at all inconceivable.

Biting Off One’s Nose to Spite One’s Face

These are just a few considerations amongst a wide and deep sea of reasons for why the UK ought to comply with its international obligations. The primary one is, of course, the rule of law argument as eloquently expressed by Lord Tom Bingham in his seminal book (see chapter 10 on the Rule of law in the International Legal Order). That we are even debating this seems absurd. But even beyond the obvious, those defending the UK’s decision are demonstrating on one hand, an almost unfathomable disregard for the broader geopolitical, moral and economic context within which these decisions are made and will be received. On the other, they are simply playing politics using legal words: sovereignty, parliamentary supremacy and dualism to help justify what is in the main accepted as a largely unjustifiable decision. Either way, the decision is stupendously short-sited and a flagrant example, if ever there was one, of biting off one’s nose to spite one’s face.

Dr Sean Molloy is a Lecturer Northumbria Law School. The views expressed in this article are the author’s alone.

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