Yesterday, Boris Johnson agreed to amend the Internal Markets Bill by granting MPs a vote before he can use the powers in it that would ‘break’ international law.
The move marks a partial climbdown from No10 in spite of claims that it actually “strengthened” the controversial provisions in the bill. But this is beside the point. In legal terms, international law is not the same as domestic law. As far as the UK courts are concerned, the European Court of Justice is not sovereign. Parliament is.
International law cannot be enforced by any police force, only voluntarily obeyed. As Thomas Franck, an esteemed international lawyer, once said: “the surprising thing about international law is that nations ever obey its strictures or carry out its mandates.”
The UK government knows this. International law is made by and for states. And states are invariably motivated by national interest.
To understand the government’s actions is to understand the foundations of our decision-making processes. In the UK there are no constitutional limits on Parliament, which can enter into and cancel any law at will. This includes EU legislation. The UK has an unwritten constitution and an executive that is answerable only to Parliament. As Lord Sumption has said, we are almost the only country in the world of which this is true.
Inevitably some rules of international law are broken. Instead of focusing on the breaches, better to ask why rules are followed by states, without compulsion?
The answer, I believe, is legitimacy: the invisible glue that holds rules together. It is the conviction of the governed that it is right to obey without coercion.
So what makes rules legitimate? Four things: Determinacy, symbolic validation, coherence, and adherence. Determinacy and coherence mean that the rules must be defined, transparent and clear. Symbolic validation and adherence mean we need to understand their underlying values (validation), making it easier to comply with them (adherence).
The affected articles of the Withdrawal Agreement are neither incoherent nor indeterminate. The issue is their symbolic validity and the extent to which we feel it necessary to adhere to them, after the impetus for doing so has evaporated. Yes, Britain’s reputation will be harmed if it disregards its international obligations — the violation offends the oldest principle of international law, ‘pacta sunt servanda’ (promises must be kept) — but Government presumably weighed policy and reputation, and decided that the cost to reputation was outweighed other considerations.
The Bill was a policy move. It may be a gamble on Johnson’s part — and in his latest compromise talks with disgruntled MPs he is realising he cannot ride roughshod over his own party members’ opinions — but so far the UK’s practical negotiation position hasn’t been harmed and trade talks continue regardless.
So the question is not whether we respect international law, but whether international law has the clout to do anything about it.