Uk's Breach Of International Law: What, Why, And How?

The UK government has admitted that it will break international law with its new Brexit deal bill, which gives ministers the power to override parts of the Northern Ireland Protocol. The bill, which has been criticised by EU officials, allows the UK to go back on the terms agreed within the withdrawal agreement. Brandon Lewis, the British minister responsible for Northern Ireland, has stated that the new bill will break international law in a very specific and limited way. However, legal experts argue that partial breaches of international law do not exist. The European Union has warned Britain that keeping agreements is an age-old diplomatic cornerstone, and that breaking international law will damage future relations.

UK's new Brexit deal bill

The UK's new Brexit deal bill, also known as the internal market bill, allows the UK government to override parts of the Brexit withdrawal agreement, thereby breaking international law. The bill gives ministers new powers to "disapply" parts of the Northern Ireland Brexit arrangements and determine rules on state aid and goods travelling between Northern Ireland and Great Britain.

The UK's decision to break international law has been criticized by EU officials and legal experts. President of the EU Commission, Ursula von der Leyen, expressed her concern, stating that breaking international law undermines trust, which is necessary for prosperous future relations. Charles Michel, President of the European Council, echoed similar sentiments, emphasizing that breaking international law is unacceptable and creates a lack of confidence for building a future relationship.

The UK government has defended its position by stating that the proposed legislation will break international law "in a limited way." Brandon Lewis, the British minister responsible for Northern Ireland, explained that the government aims to deliver on the Northern Ireland protocol through negotiations with the European Union. The bill is designed to ensure that commitments made to the people of Northern Ireland are fulfilled.

The UK's new Brexit deal bill has significant implications for the future relationship between the UK and the EU. It remains to be seen how this development will impact ongoing negotiations and the overall Brexit process.

'Disapplying' parts of the Northern Ireland Brexit arrangements

In 2020, the UK government published a draft of the internal market bill, which gave ministers the power to "disapply" parts of the Northern Ireland Protocol of the Brexit withdrawal agreement. This bill would override any "relevant international or domestic law" including any provision of the Northern Ireland Protocol, the European Union (Withdrawal) Act 2018, and the European Communities Act 1972, among others.

The Northern Ireland Protocol, part of the Brexit withdrawal agreement, commits the UK and the EU to maintaining an open border in Ireland, so that the Irish Sea border between the two islands becomes the de facto frontier. This requires the continued application of the Common Travel Area and free trade of goods between Ireland and Northern Ireland. The latter requires the UK to follow EU law in Northern Ireland, with the jurisdiction of the European Court of Justice in the interpretation of the law.

The UK's internal market bill, which would allow the UK to go back on the terms agreed within the withdrawal agreement, was criticised by EU officials. Ursula von der Leyen, President of the EU Commission, tweeted that the UK's actions would "break international law and undermine trust". Similarly, Charles Michel, President of the European Council, tweeted that " [b]reaking international law is not acceptable and does not create the confidence we need to build our future relationship".

UK's interpretation of EU directives

EU directives are the most common form of EU legal act. Unlike regulations, directives are not directly applicable as law in EU member states. Instead, they set out an objective to be achieved, leaving it to individual countries to determine how to achieve it. This process is called 'transposition', which translates the directive into national legislation. Each directive has a deadline for its transposition. Once transposed, individuals can assert their rights with respect to third parties and enforce them in national courts.

The UK, as a member state, had a tendency to adopt the most extreme interpretation of EU directives, often going beyond the directive to create something much harsher than intended. This phenomenon has been referred to as 'gold plating' or even 'platinum plating'.

For example, the European Energy Taxation Directive (2003/96/EC), which deals with the taxation of energy products in the Single Market, was interpreted by the UK in a way that disallowed tax breaks for large oil companies on synthetic fuels with lower carbon footprints. However, the directive itself specifically states that member states may apply exemptions or reductions in taxation for "taxable products used under fiscal control in the field of pilot projects for the technological development of more environmentally-friendly products or in relation to fuels from renewable resources".

The UK's interpretation and transposition of EU directives into English common law, such as in the case of the Energy Taxation Directive, demonstrate a pattern of taking a stricter approach than intended by the EU. This has had significant implications for the country's relationship with the EU and its standing in the international community.

UK's new internal market bill

The United Kingdom Internal Market Act 2020 was passed in December 2020 to prevent internal trade barriers within the UK and restrict the legislative powers of devolved administrations in economic policy. The UK government stated that the legislation aimed to guarantee the seamless functioning of the UK's internal market and enshrine principles to ensure regulations from one part of the UK are recognised across the country. However, the Scottish and Welsh governments criticised the bill for its re-centralisation of control over commerce, viewing it as a "power grab" that undermines the powers and democratic accountability of the Scottish Parliament.

The UK Internal Market Bill was introduced in the House of Commons on September 9, 2020, and faced opposition from Labour, Liberal Democrats, the Scottish National Party, and Plaid Cymru. The bill included provisions that were deemed incompatible with the Withdrawal Agreement and, thus, illegal under international law. These provisions related to the Northern Ireland Protocol, which sets out how goods will be traded between Northern Ireland and Great Britain after the transition period ends. The bill gave UK ministers the power to override parts of the Brexit withdrawal agreement, including any relevant international or domestic law. This effectively meant that the UK could go back on the terms agreed within the withdrawal agreement.

The bill was criticised by EU officials, with President of the EU Commission Ursula von der Leyen expressing concern that it would "break international law and undermines trust." The bill was also met with several resignations, including Jonathan Jones, head of the Government Legal Department, Rehman Chishti, the Prime Minister's Special Envoy for Freedom of Religion or Belief, and Richard Keen, Advocate General for Scotland.

The UK government eventually withdrew some provisions in Part 5 of the bill, which related to the Northern Ireland Protocol, before the act received Royal Assent on December 17, 2020. However, the act still introduces the principles of mutual recognition and non-discrimination into UK trade law, restricting the devolved authorities' capacity to regulate. It also gives the UK government the ability to directly spend on projects within Scotland, Wales, and Northern Ireland, even in policy areas that normally fall under devolved competence.

UK's disregard for international law post-Brexit

The United Kingdom's disregard for international law in the aftermath of Brexit has sparked concern and criticism from various quarters, including EU officials and legal experts. The UK government's introduction of a new internal market bill grants ministers the authority to "disapply" or override portions of the Northern Ireland Protocol, a crucial component of the Brexit withdrawal agreement. This unilateral move effectively breaches international law and undermines the trust established through the withdrawal agreement.

The Northern Ireland Protocol was established to prevent a hard border between Northern Ireland, a part of the UK, and the Republic of Ireland, an EU member state. It aimed to maintain an open border without customs checks, safeguarding the Good Friday Agreement and avoiding potential threats to peace on the island of Ireland. However, the UK's new bill would enable ministers to disregard certain rules governing the movement of goods between Northern Ireland and the rest of the UK, as well as alter provisions related to state aid.

The European Union has warned the UK that adhering to agreements is fundamental to diplomatic relations. Charles Michel, the President of the European Council, emphasized that breaking international law is unacceptable and undermines the foundation of mutual trust necessary for building a prosperous future relationship. Ursula von der Leyen, President of the EU Commission, echoed similar sentiments, expressing concern over the UK's actions.

Legal scholars and experts have also weighed in on the matter. Dr Holger Hestermeyer from the Dickson Poon School of Law at King's College London stated that partial breaches of international law do not exist and that the UK's announcement of its intention to breach the agreement is surprising and unprecedented. Raphael Hogarth, an associate at the UK-based Institute for Government think tank, criticized the bill's attempt to change laws regardless of their compatibility with existing legislation or agreements.

The UK's disregard for international law in the post-Brexit era has raised questions about its commitment to upholding international rules and maintaining stable international relations. The actions of the UK government have been met with concern and disapproval, highlighting the importance of adhering to international agreements and the potential consequences of failing to do so.

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