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UK risks forfeiting credibility with law breach

Irrespective of what staunch Brexiteers proclaimed, Brexit was never going to be easy. No divorce of a couple that has been married for 47 years — for that is how long the UK was a member of the European community — is negotiated easily.

Ahead of any negotiations, particularly those with the EU, we can expect grandstanding. Last week, the EU’s chief negotiator Michel Barnier voiced his concern and disappointment over the UK government’s rigid stance. The UK’s chief negotiator David Frost then accused the EU of the same, declaring that Britain would not become a client state of the EU.

He was referring to the outstanding disagreement over the so-called level playing field, the importance of which to Europe was stipulated as recently as Tuesday by French Trade Minister Franck Riester. UK Prime Minister Boris Johnson piled on the pressure when he said that, if there was no agreement by mid-October, the UK would allow the Brexit transition period to lapse without a trade deal being signed. He went as far as declaring that no deal would also be a good outcome.

All of this is nothing out of the ordinary in such hard-fought negotiations. However, what has transpired this week goes much further than Brexit, as it potentially disregards international law and could undermine Britain’s standing in the international community for a long time to come.

On Wednesday, the UK government introduced the Internal Market Bill, which is designed to ensure the internal functioning of the four constituent nations in a post-Brexit world. However, the bill undermines the following two points of the Northern Ireland protocol, which was signed alongside the withdrawal agreement: Under the withdrawal agreement, the UK must notify the EU of any state aid to Northern Ireland and paperwork must be filed when sending goods from Northern Ireland to the rest of the UK.

The latter is particularly important as it allows for the border between Ireland and Northern Ireland to remain open and ensure the integrity of the EU’s common market. The open border was laid down in the Good Friday Agreement of 1997, which ended decades of bloody sectarian strife in the North. The resulting de facto border between Northern Ireland and Great Britain was easily the most controversial point in the withdrawal agreement that London and Brussels agreed on last year.

It is nothing new for autocratic regimes to ignore international agreements, but it is a sign of the times that major democracies such as the US or UK are unilaterally abrogating or terminating treaties.

Cornelia Meyer

Controversial or not, once the withdrawal agreement was ratified by all parties concerned, it became international law. Unilaterally amending it denotes a breach thereof, which Northern Ireland Secretary Brandon Lewis acknowledged in Parliament on Tuesday. This turn of events created quite the stir on both sides of the Channel.

Barnier insisted last week that “a precise implementation of the withdrawal agreement” was a precondition for a trade agreement and a matter of trust. Johnson’s predecessor Theresa May on Tuesday raised the question of the country’s standing and trustworthiness in the worldwide community if it runs roughshod over international agreements. The head of the government’s legal service, Sir Jonathan Jones, resigned over the issue.

Regarding May’s point, former ambassador to the US Kim Darroch warned on the BBC’s flagship Newsnight program that this behavior could even endanger a potential trade deal with the US, which would have to be ratified by Congress. With the Democrats currently holding a majority in the House of Representatives, Speaker Nancy Pelosi announced last year that the party would vote against any trade deal if Brexit threatened any disadvantage to Ireland.

The UK has built its reputation on the rule of law and never tires of saying so, such as when former spy Sergei Skripal was poisoned on British soil, in the recent case of the poisoning of Russian opposition leader Alexei Navalny, regarding the ongoing protests in Belarus, and especially when it comes to Hong Kong. London feels that China’s new security law is in breach of the Sino-British Joint Declaration of 1984, which was the precondition for the UK to hand over its former colony to Beijing under the one country, two systems regime. Johnson made no secret of his outrage over how China’s new security law breached international law.

But international law only works when all parties adhere to it. It is valid to want to change it, but, to do so, one must enter into negotiations with the other party or parties. Our whole architecture of international organizations, trade deals and international treaties like peace deals is predicated on international law.

It is nothing new for autocratic regimes to ignore such agreements. However, it is a sign of the times that major democracies such as the US or UK are unilaterally abrogating or terminating treaties. We saw this when the Trump administration terminated America’s membership of the Trans-Pacific Partnership and the Paris Agreement on climate change. The renegotiation of the North American Free Trade Agreement, while forced, was at least based on a negotiation.

Western democracies often take the moral high ground when it comes to the rule of law, and they are right to do so if they themselves walk the talk by adhering to the rules of the game on the international stage. If they fail to do so, it is at their own peril because they forfeit credibility.

  • Cornelia Meyer is a Ph.D.-level economist with 30 years of experience in investment banking and industry. She is chairperson and CEO of business consultancy Meyer Resources. Twitter: @MeyerResources