Sir Jonathan Jones, the permanent secretary in the United Kingdom’s Government Legal Department, is due to resign before his five year term is up in April 2021. The reason for his resignation is due to revelations that the British government is set to put forward a bill to parliament that would alter the Brexit deal with the European Union, concerning Northern Ireland.
Dubbed the Northern Ireland Protocol, this part of the Brexit deal is designed to prevent a ‘hard border’ between Northern Ireland and the Republic of Ireland by keeping Northern Ireland inside the EU’s single market. It would also mean that goods coming from the UK into Northern Ireland will be subject to new checks and controls, the so-called Irish Sea Border. It was due to come into force on 31 December 2020.
The new bill that will be put forward to the British Parliament, however, would violate that aspect of the withdrawal agreement. The implications of this could be significant. Having agreed a deal to exit the EU, that agreement is now part of international law, and Britain appears on the verge of violating international law if the bill is passed by its parliament. As it attempts to negotiate trade deals with other countries, the question of whether Britain can be trusted to keep to the various deals will always linger. Former PM Theresa May said as much in Parliament.
Even more importantly, it sends a message to other countries as well. If Britain, now a middle power, can break international agreements at will, there is nothing to stop other members of the G-20, such as India or an increasingly aggressive Turkey from doing similar. Turkey is currently locked in a standoff with Greece over exploratory rights at the Mediterranean, and has escalated tensions by sending in naval vessels to prospect for oil in areas Greece considers its territory. Turkey’s refusal to recognise the part of the United Nations Convention on the Law of the Sea (UNCLOS) which granted Greece control of the disputed territory is similar to Britain’s attempt to circumvent the provisions of its Brexit deal with the European Union.
Perhaps the oldest principle in international law – one that has ascended to the status of jus cogens or a peremptory norm that is such a fundamental principle of international law that is accepted by all states – is that of pacta sunt servanda, the principle that nation states are duty bound to fulfil the commitments they undertake pursuant to a bilateral or multilateral treaty once it has been ratified and then enters into force. The Vienna Convention on the Law of Treaties of 1969 (VACT), widely considered to be the primary authority on treaty law and practice, explicitly refers to pacta sunt servanda as a universal rule in its Preamble as well as in Article 26 when it states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” In effect, sovereign states have very little room to walk back on their word after going through a negotiating process that often takes years, sometimes decades.
It has been suggested that the UK might invoke Article 62 of the VACT which enables a state to get out of its treaty obligations when circumstances change radically, including if the treaty establishes a boundary. Experts largely agree that such changed circumstances have to be substantial; in many cases, a development that alters the nature of the state itself – such as the dissolution of Yugoslavia or the Soviet Union, when a recognised country ceases to exist. In the case of the Northern Ireland Protocol, it is less than a year since Westminster negotiated the treaty fully aware of the complexity of the issues involved – the so-called ‘Irish backstop’ held up talks with the EU for years, eventually leading to the collapse of the Theresa May government and straining relations with key partners, especially the Republic of Ireland. A situation where London is in effect reneging on a commitment not to create a border on the island of Ireland or in the Irish Sea just months after assuring its largest trading partner – the EU – will do little to inspire confidence both in European capitals and in other places – the US and Australia come to mind – that might be involved in trade talks with British diplomats in the near future.
Britain ranks among the world’s middle powers. Although having lost its superpower status as a result of the loss of its colonial territories after the Second World War and accelerated by its ill-fated misadventure in the Suez Canal Crisis of 1956, it continues to exert its influence on the global stage through a declining Commonwealth and its status as America’s number one European ally. With a population of 65.1 million, it’s military is one of the most formidable in the world, with a total active service personnel at 192,660 in a total military personnel capacity at 275 660. According to Global Firepower, Britain’s famed naval service ranks at 27 out of 138 countries, compared with rivals such as India (9), Pakistan (26), Turkey (20), Israel (65) and South Africa (56). In overall rankings, out of 138, GFP ranks the United Kingdom 8th, below India (4th), three places above Turkey (11th), ahead of Pakistan, Israel and South Africa at 15th, 18th and 29th respectively.
A scenario in which there are multiple breaches of international norms and agreements, would further highlight the reality of a G-Zero world: one characterised by a weakening of global institutions, with the United States of America stepping back from its role as ‘policeman of the world’, and others like China as well as the EU and its leading member nations more focused on issues within their borders.
The norms that have sustained an unprecedented period of global peace, progress, prosperity and security since 1945 could easily crumble due to a few countries stepping out of line by failing to respect rule of law. Observers of geopolitics will be following events in this new phase of Brexit talks with more than a passing interest.