By: Sebastian Garcia
Boris Johnson has recently come under a great deal of scrutiny for threatening to break international law regarding the highly contentious Brexit deal.[1] He has opened up the first parliamentary debate on his bill to rewrite part of the Brexit divorce deal, saying the legislation is “essential” for guaranteeing the economic and political integrity of the U.K.[2] Rewriting plans of the Brexit divorce deal, and thereby abandoning a legally binding treaty agreed upon with the European Union only last year, has invited legal inquiry to the move. Implications of the move have raised concerns amongst rank and file members of Parliament as to the perceived trust that international partners will have in the effect on securing international agreements in the future.[3] Such concern has even led to the resignation of the U.K.’s most senior government lawyer, Jonathan Jones.[4]
However, one of the U.K.’s top legal officials has defended the move of Johnson, saying that his plan to “rip up” part of the Brexit divorce deal in fact does not breach international law.[5] Advocate General for Scotland, Richard Keen, contradicted Northern Ireland Secretary Brandon Lewis who argued Johnson’s move breached international law, by arguing the bill was designed to deal with a “contingent situation” in which the European Union was in breach of its treaty obligations.[6] The admission by Lewis and the British Government, that stated the bill could break international law in a very specific and limited way, sent shockwaves through Diplomatic circles. Such provisions, Keen goes on to rebut, are entirely limited in their intent and effect, thereby falling within the rule of law and the requirements of international law.[7]
On Monday, September 14th, Johnson had a comfortable majority in the vote, but faces further obstacles as the bill seeks to pass through the Commons and Lords.[8] Both sides of the House of Commons felt that the government, and top advisors, stating that the proposed legislation could breach international law weakens Britain’s ability to call other international actors to account for legally binding agreements.[9]
The Brexit withdrawal agreement was ratified only in January, relating to trade between Great Britain and Northern Ireland. It remains subject to the European Union’s customs code and single-market rules, and special treatment is required for the province to avert a hard border with Ireland.[10] Further, no precedent exists for Britain to unilaterally breach an international treaty in this way.[11] Some commentators believe the threat of the legislation is merely a negotiating tactic to put pressure on the EU ahead of the closing stages of trade talks.[12] They argue this sort of unilateral action carried out by a major country would greatly undermine the trust and reliability of their international treaties.[13]
A treaty, like the Brexit deal, is an agreement between sovereign States (countries), which is binding at international law.[14] However, if the treaty were to result in not being binding, and was stipulated upon conditions, a time length, or an understood ability for unilateral amendment, Johnson’s bill may not violate international law. However, even the majority of those within the British Government feel the move is not best left up to legal speculation. Time will tell whether the bill, if even passed, breaks with the international rule of law. And if it does, the question becomes at what cost is it worth breaking. For Britain’s reputation in the international sector, as well as their ability to hold their counterparts and allies accountable, will surely suffer. In a recent sit down at 3:30pm on September 16th, Johnson was grilled for 90-minutes in Parliament, where the one question that loomed was why a top U.K. government law officer had quit amongst his inability to reconcile his role as a lawyer with Johnson’s “explosive plan to rewrite the Brexit deal and break international law.”[15]
[1] Mayes & Ross, Boris Johnson’s Move to Break International Law Sparks Outrage, Bloomberg (Sept. 8, 2020, 2:44PM), https://www.bloomberg.com/news/articles/2020-09-08/boris-johnson-s-move-to-break-international-law-sparks-outrage?sref=i0Ne6rzh.
[2] Mayes et al., Johnson Says Bill ‘Essential’ for U.K. Integrity: Brexit Update, Bloomberg (Last Updated Sept. 14, 2020), https://www.bloomberg.com/news/articles/2020-09-14/johnson-puts-his-law-breaking-plan-to-parliament-brexit-update?sref=i0Ne6rzh.
[3] Mayes & Ross, supra note 1.
[4] Id.
[5] Edward Evans, U.K. Law Officer Denies Boris Johnson Bill Breaches International Law, Bloomberg (Sept. 15, 2020, 9:28AM), https://www.bloomberg.com/news/articles/2020-09-15/u-k-law-officer-denies-johnson-bill-breaches-international-law?sref=i0Ne6rzh.
[6] Id.
[7] Id.
[8] Thomas Penny, Johnson’s Lawbreaking Brexit Bill Passes First Commons Hurdle, Bloomberg (last updated Sept. 15, 2020), https://www.bloomberg.com/news/articles/2020-09-14/johnson-s-lawbreaking-brexit-bill-passes-first-commons-hurdle?sref=i0Ne6rzh.
[9] Id.
[10] Britain threatens to flout international law, The Economist, https://www.economist.com/leaders/2020/09/09/britain-threatens-to-flout-international-law (last visited Sept. 15, 2020).
[11] Id.
[12] Luke McGee, Boris Johnson’s government is threatening to breach international law. It could backfire spectacularly, CNN (last updated Sept. 9, 2020), https://www.cnn.com/2020/09/09/uk/boris-johnson-rule-of-law-brexit-intl-gbr/index.html.
[13] Id.
[14] The University of Melbourne, Public International Law: Treaties, https://unimelb.libguides.com/internationallaw/treaties (last visited Sept. 18, 2020).
[15] Ross & Nardelli, Johnson’s Charm Runs Out with Brexit Deal on a Knife Edge, Bloomberg (Sept. 19, 2020, 12:00AM), https://www.bloomberg.com/news/articles/2020-09-19/johnson-s-charm-runs-out-with-brexit-deal-on-a-knife-edge?sref=i0Ne6rzh.
