13th June 2022
The government of the United Kingdom published this evening the Northern Irish Protocol Bill.
This Bill is so the government can breach (or “not perform”) its obligations under the Northern Irish Protocol.
The government has also published not the legal advice in support of the Bill, but their legal position.
But it is not even a legal position.
It is a lack of a legal position.
As a legal justification placed into the public domain this is even weaker than taking a lockdown journey to Barnard Castle to test one’s eyesight.
The government is legally even weaker than many legal commentators thought.
We were expecting some clever whizz-bang argument, desperate but perhaps just about plausible.
But we have got this instead.
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Let us look why this is so weak to the point of non-existent.
The government’s “position” is as follows.
Step one – the government sets out what it sees as “necessity”.
“The doctrine of necessity provides a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions. It has been accepted by the International Court of Justice and is reflected in the International Law Commission’s 2001 Articles on State Responsibility, which successive UK governments have regarded as generally reflective of customary international law. By way of summary, the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”
Step two – the government sets out that “necessity” means it has “no other way” than to put forward this legislation:
“… the strain that the arrangements under the Protocol are placing on institutions in Northern Ireland, and more generally on socio-political conditions, has reached the point where the Government has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution that is being proposed. There is, therefore, clear evidence of a state of necessity to which the Government must respond to.”
Step three – the government ties the two steps together to assert that “in light of the state of necessity” the “non-performance” (ie breaching) of its obligations under the Northern Irish Protocol would be justified under international law:
“The Government recognises that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations. This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland, that the Government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the nonperformance of certain obligations. It is the Government’s position that in light of the state of necessity, any such non-performance of its obligations contained in the Withdrawal Agreement and/or the Protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”
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Ah, the bare legal doctrine of necessity.
The general issue with “necessity” at law is that any of us can at any time assert that it is “necessary” to breach an obligation.
This means that, in legal practice, “necessity” is made very difficult, if not impossible, to rely on as a defence for breaking any obligation.
In the domestic law of England and Wales, for example, every law student is introduced to the singular facts of the 1884 case of R v Dudley and Stephens to show how limited the defence of necessity is to a criminal charge.
And now, in 2022, “necessity” is being invoked in respect of a different type of shipwreck: the government’s post-Brexit policy.
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In international law, the principle of “necessity” is similarly limited in its scope.
Here is Lord Anderson QC, whose tweets should be read carefully:
The State must also establish, as the government accepts, that it has not substantially contributed to the situation of necessity. pic.twitter.com/mAelH3nv7M
— David Anderson (@bricksilk) June 13, 2022
These citations give an indication of the rare and extreme conditions that must apply before the defence of necessity can be accepted. pic.twitter.com/15sLUm3Luj
— David Anderson (@bricksilk) June 13, 2022
Anderson links to a digest of the applicable law which sets out the four conditions that all have to be met together:
– the State’s act is to safeguard an essential interest against a peril;
– the peril shall be grave and imminent;
– the course of action followed shall be the only way available; and
– no other essential interest shall be seriously impaired as a result of the breach.
The digest also states that the excuse is unavailable where the State has (substantially) contributed to the situation of necessity.
These are high hurdles to meet.
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But there is more.
The parties to the Northern Irish Protocol – the United Kingdom and the European Union – have already expressly agreed a scheme for dealing with any problems under the protocol.
This mechanism is set out in Article 16:
And this annex to Article 16:
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The United Kingdom and the European Union contemplated the possibility of problems and agreed a way of dealing with them, which would enable parts of the protocol if – ahem – necessary to be temporarily disapplied.
It makes no sense – whatsoever – for the government to race to seeking to rely on the principle of “necessity” under international law for breaching the protocol without triggering the Article 16 process first.
As one tweeter said:
I am confused. The Protocol represents such a threat to the stability of the UK that it is legal to breach the international treaty which created it, yet the threat is not serious enough to trigger the clause within the treaty specifically to deal with such a threat, Article 16?
— Dr. Bendor Grosvenor 🇺🇦 (@arthistorynews) June 13, 2022
There is no answer to this point – and there can be no answer to this point:
This point was put to government several times today https://t.co/e350GRKuyT
— Adam Payne (@adampayne26) June 13, 2022
There are no possible circumstances where the United Kingdom can resort to the the principle of “necessity” under international law without going through the Article 16 process first.
And the government – despite many threats – has not triggered the Article 16 process.
The “position” published today even admits the government believes that the Article 16 were met:
“In July 2021, however, the Government assessed in the Command Paper that, as a result of both diversion of trade and serious societal and economic difficulties occasioned by the Protocol, the conditions for the exercise of the rights provided for under Article 16 of the Protocol were already met.”
But the government then did nothing under Article 16 on that basis.
For the government to not trigger Article 16 instead of resorting to the the principle of “necessity” under international law is beyond rational comprehension.
Wookies coming from Endor makes more sense.
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And there is even more.
So “necessary” is this proposal that the legislation will take at least months, if not a year to pass into statute.
Such a leisurely timeline does not indicate urgency – and it does not show that the problem is “grave and imminent”.
It could be a long time before these unilateral changes to the protocol come into effect:
• Gov plans to do 2nd reading before six-week summer recess
• Lords to sledgehammer it
• Ministers won’t use powers until new systems (green/red lanes, dual-reg system) are ready to go— Adam Payne (@adampayne26) June 13, 2022
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Putting what is said today together with this blog’s recent posts (here and here) on the strange way that the government is claiming to have legal cover for this proposal, it seems that the First Treasury Counsel was asked to accept as an assumption that it was “necessary” for the United Kingdom to break its international obligations.
The so-called Treasury Devil then questioned that assumption, and he was correct to do so.
This “legal position” does not provide any legal cover.
It makes no sense, even on its own terms.
It is a contrivance.
As my University of Birmingham colleague Dr Adrian Hunt avers:
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The reality is that the problems which the government mention were entirely foreseeable when they negotiated and signed the protocol, and were indeed foreseen.
The government then just wanted to “get Brexit done” – everything else was detail.
And the problems which have arisen are the main reason the protocol included Article 16.
So not only were the problems foreseen, a solution was also envisaged.
It is difficult to conceive of a weaker basis for the government of the United Kingdom to assert “necessity” as a breach of international obligations.
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What on earth can ordinary mortals like us do about a Government which is completely devoid of any integrity? I sincerely hope that some of those 148 MPs vote against this legislation.
There is a problem over the Parliament Act. It only allows the Bill as it left the Commons the first time round.
So Johnson could not tweak the Bill the second time round.
This proved fatal to Asquith’s attempt to rescue things in 1914 by amending the third Home Rule Bill to exclude Ulster.
The ‘necessity’ to do something to the Protocol is entirely political and arises (in short) from the position of the DUP and ERG and their allies. It is plain that the majority of delegates to the NI assembly disagree with this position. So, it is up to the Government, which in theory doesn’t need the DUP vote in the HoC to get anything through, to find a way to persuade the DUP back to its seats without going through this nonsense.
Perhaps “going through this nonsense” is precisely what the Govt reckons will persuade the DUP back into Stormont before new elections (fat chance, IMHO).
But, if so, that would render ‘this nonsense’ (ie. putting forth a Bill that breaches treaty obligations, that may not actually pass for a year, and that even then may implement nothing) more arguable as the only possible solution to the threat to the stability of the UK posed by the failure of Stormont. Invoking Article 16 wouldn’t satisfy the DUP. And the required urgency is driven by the September (?) deadline for new elections.
Not that I support anything about the Govt’s position, strategy or tactics here. But it seems a slightly more arguable position, albeit one that if publicly articulated would guarantee its own failure to persuade the DUP.
So giving in to the DUP is a legal necessity, whereas giving anything to the rail unions would be giving in to blackmail.
I’m particularly amused by these two sentences, in that they are literally one after the other in the same paragraph:
“Further, the UK has not contributed to the situation of necessity relied upon.”
“The UK exercised its sovereign choice to leave the EU single market and customs union…”
They assert that the UK has not contributed to the situation, then immediately state an action we took which, unless it was entirely ineffective and therefore pointless, must have contributed to the situation.
Should we consider the possibility that no professional lawyer was willing to write this, and they had to ask a random member of the public to do it?
The Man on the Clapham Omnibus wrote it.
Some people might speculate that the “Moron in a Hurry” might have been involved.
But I am not going to.
When I thought about it I realised I’d done the MOTCB a disfavour. His was the voice of reason, common sense and cutting Gordian Knots.
Exactly my sentiments when I read the justification.
““Further, the UK has not contributed to the situation of necessity relied upon.”
“The UK exercised its sovereign choice to leave the EU single market and customs union…””
I robbed the bank because of a situation of necessity, your Honour, as I didn’t have any money.
Having beforehand exercised my sovereign right to spend all my money on whiskey and beer.
But as you can /clearly/ see, m’Lud, I did not contribute to the situation of necessity that I found myself in…
Indeed.
The UK government has not just contributed substantially to the situation, it created it the first place by deciding Brexit would require to leave the EU’s single market.
It is as if they think that their ignorance of actions and consequences is shared by anyone else
But hear Liz Truss on the Today programme this morning. It’s the fault of the EU for “not negotiating for the last 18 months”.
I have realised that there is no necessity for me to pay any taxes.
If in response the government were required to show that in order for you to pay taxes, it would have to show that it was providing you something of value, they would lose so bad that you’d win the case, your costs, triple damages and next Friday’s Euromillions.
Hurrah! I’m inviting all those on this blog to dinner at Le Manoir aux Quat’Saisons.
Hear hear. I’m forwarding this post widely.
” …as a result of both diversion of trade and serious societal and economic difficulties occasioned by the Protocol …”
Diversion of trade? Economic difficulties? Poppycock, balderdash and fiddlesticks. (One of the things about commenting on the Brexit Protocol is that one is forced to trot out some very Enid Blyton-esque epithets lol, otherwise I’d be banned. )
In fact, away from Brexit lies, despite the DUP’s efforts to wreck the place, NI is doing better than GB:
https://www.politico.eu/article/experts-brexit-protocol-is-boosting-northern-ireland-economy/
Of course, this ideological Cabinet will rush to shut that particular good news down. It isn’t a good look, if you’re a Brexiter – “perennially basket case region with closer links to EU does better than large prosperous region which left EU” … oops …
Serious societal difficulties? I’m sorry, that is just a flat-out lie. I’m 55, and I’ve lived in NI for most of my life. I’ve never seen it more peaceful. Despite all the Belfast DUP elite’s urgings, the vast majority of sensible Unionists have just ignored the issue.
Boris et al deliberately, and very cynically, are confusing a DUP Belfast top-brass stunt with a constitutional crisis. There is no general unrest whatsoever. The Protocol enjoys a mix of support, resigned acceptance and indifference (even surveyed DUP voters rank it as a mere number 10 in their list of real-world priorities).
The NI CBI is for the Protocol. The 2 main farmers Unions in NI support the Protocol. A majority of MLAs (NI MPs) in Stormont support the Protocol. Just this week, Dr. Michael Johnston (a man from a Unionist background, and therefore, if Boris to be believed, someone who should be implacably opposed to the Protocol if not actually out chucking petrol bombs about the issue lol), head of Northern Ireland’s Dairy Council, came out strongly in favour of the Protocol:
“… Having unfettered access to both the EU and UK markets was a major advantage, he said.” See: https://www.belfasttelegraph.co.uk/news/northern-ireland/northern-ireland-dairy-council-chief-insists-protocol-is-working-41733987.html
All that’s happening here is that Boris, facing electoral meltdown, and with the sunlit Brexit uplands failing to materialise, needs a dead cat fight with the EU to re-energise his base, and to out-flank the ERG.
NI, and the EU, are mere pawns in that game. Boris, who of course probably personally doesn’t even believe in Brexit, is playing his base like a fiddle.
It’s the way of the world nowadays – keep repeating lies about “serious societal and economic difficulties” until this balderdash no longer even is questioned, and then dress up grubby personal opportunism as the wider interest.
What an excellent response to an excellent article. Thanks to you both.
You have written a great deal over the past few days in particular, all of which has cleanly and sharply analysed what is really going on in the serpentine rubbish of the Govt, for which many thanks.
Hear hear. My thanks as well.
It seems like a two part (albeit amateur) political play to me.
1. Doctrine of necessity purely a convenient if weak device to show DUP that Gov’t is doing something… anything.
2. I’d anticipate an invocation of Article 16 in the next 6 month’s .
Giving notice to 1. is for show, but Article 16 has real legs and is likely to be more effective if DUP don’t come on board pre new elections in NI. It’s still hard to see the benefit to the EU of UK legitimately invoking Article 16.
Effectively, the UK has bought some time, as has been Boris as PM.
I think the only way to understand this idea of ‘necessity’ comes from that great legal scholar Ira Gershwin in his famous doctrine of ‘it ain’t necessarily so’ in Porgy v Bess, 1935 Alvin Theatre, 124 p et seq.
Extraordinary. No longer will the UK be breaking international law in “a very specific and limited way” – instead it will be taking necessary action justified under “certain exceptional and limited conditions”.
To quote the UK government’s statement of its position: “It is the Government’s assessment that the legislation is currently the only way to provide the means to alleviate the socio-political conditions, while continuing to support the Protocol’s objectives, including supporting North-South trade and cooperation, and the interests of both the EU and the UK.”
“the only way”?! What, without trying article 16 first? Without trying any other dispute resolution procedures? Where is the notification of necessary safeguards under the Protocol, or the request for arbitration under the Withdrawal Agreement?
And then the UK government claims that breaking the Protocol is “the only way” to support its objectives. And to know what is in the interests of the EU better than the EU does itself. I suspect Ireland, and other EU member states, may indeed say that the UK’s actions are not the only way to meet any identifiable grave and imminent threat, and would harm their own essential interests to boot.
Here are extracts from the International Law Commission’s Articles on State Responsibility https://casebook.icrc.org/case-study/international-law-commission-articles-state-responsibility
The original text and commentary are available here: https://legal.un.org/ilc/sessions/53/
As that commentary makes clear, “necessity will only
rarely be available to excuse non-performance of an obligation and [ ] it is subject to strict limitations to safeguard against possible abuse”.
Some great stuff in the commentary, by the way. After the Caroline incident in 1837 – https://en.wikipedia.org/wiki/Caroline_affair – the UK and the US agreed that “a strong overpowering necessity may arise when [a] great principle may and must be suspended” but Lord Ashburnham for the UK conceded “for the shortest possible period during the continuance of an admitted overruling necessity, and strictly confined within the narrowest limits imposed by that necessity”.
Perhaps the EU and the UK should send their dispute off to the International Court of Justice for a ruling, like Hungary and Slovakia did in relation to their Danube dams. Except of course that the UK and EU have already agreed to specific dispute resolution procedures in the Withdrawal Agreement to which the Northern Ireland Protocol is annexed.
“The government then just wanted to “get Brexit done” – everything else was detail.”
When Johnson campaigned during the 2019 general election campaign “to get Brexit done” he deliberately avoided engaging with any detail at all. It is not that everything else was detail but that there could be no detail. Language and policy was abandoned, replaced with tribal ritual:-
https://www.newlawjournal.co.uk/content/all-out-war-(pt-v)-the-irrepressible-rise-of-the-father-of-lies
Raphael Behr has recently written: “What actually happened is that Johnson hit the same negotiating impasse as May – the issue of the Northern Ireland border – but resolved it differently. While May had struggled to find compromises that would operate in reality, her successor dispensed with that onerous obligation, freeing himself to do a deal in the realm of Brexit fantasy. He signed things without intending to implement them, then lied about their contents.”
https://www.theguardian.com/commentisfree/2022/jun/08/boris-johnson-tory-identity-crisis-conservative-party
Johnson, Gove and Cummings “overawed” MPs when they won the 2016 referendum with a false and misleading slogan “We send the EU £350 million a week let’s fund our NHS instead”. MPs felt compelled to vote to trigger Article 50 in order to respect the result of the referendum (the Cambridge English Dictionary defines “overawe” as to cause someone to feel a mixture of respect and fear”).
In the period to 2019 MPs, having triggered Article 50, subsequently failed to solve the “Mad Riddle of Brexit” as they attempted to grapple with the detail of what they had done:-
https://www.newlawjournal.co.uk/content/all-out-war-(pt-4)-the-mad-riddle-of-brexit
In 2019 Johnson exploited the situation he had created and promised finality. Today’s legal bill-and the lack of any plausible legal justification-provides further confirmation that he had no such solution.
Section 3 of the Treason Felony Act 1848 created the offence of “open and advised speaking”. Although enacted to oppress the Chartist movement Section 3 is still in force and makes it a criminal offence to “overawe” MPs. It is a rather long piece of Victorian legislation but for present purposes it can be summarised as follows:- “If any person intends to overawe either House of Parliament and such intentions are expressed in writing every person so offending shall be guilty of felony, and being convicted thereof shall be liable to imprisonment for life (or any shorter term).”
A previous post on this site on the “Blackford Paradox” on 19 April 2022 explained the likely significance of the word “overawed” in this statutory context. According to AJP Taylor, the Chartists had great faith in “Moral Force”, believing that if a petition containing millions of signatures was presented to parliament MPs would be “overawed” and pass the People’s Charter into law.
Given your last two paragraphs, should the 6 million+ signatories of the “Revoke Article 50” petition (https://petition.parliament.uk/archived/petitions/241584) be concerned?
This is pure disaster for the UK economy. It introduces uncertainty additional to the six years we’ve already suffered. What business will invest?
Auntie EUnice had shown Boris a pot to sit on in case he felt the need to invoke any Articles coming on because she didn’t want any potty mishaps. Boris doesn’t want sit on it because Auntie EUnice made him sit in the corner when he wouldn’t share with the other children. Boris is throwing a tantrum and threatening to do an Article 2 on the carpet instead.
Isn’t Boris a naughty boy!
So.
Upon this bill being made into law, we of the European Union are free to make a regulation stating that the United Kingdom of Great Britain and Northern Ireland does not exist except in special cases to be decided as necessary to our (EU’s) pleasure and benefit?
Respects,
andrej m. klemencic, ljubljana, slovenia
You are free to do so already. The EU is not dependent on English domestic law for its freedoms. (I wish the Scots could say the same.)
Excellent explanation David thank you and I am more than convinced that the “lunatics are running the asylum” – Johnson of course won’t have read any of this guff just as he didn’t read any of the BREXIT deal he signed – that’s for minions to sort out hence his “tweaks and trivialities”. His only raison d’etre is to stay in power and to that end he has nothing but to reincite the BREXIT wars – expect suddenly after a period of “BREXIT taboo” the right wing media will be full of ” EU are out to punish us”!!
I had a grim ironic smile yesterday when I discovered that the carrier to be used for the deportation flights to Rwanda is a private Spanish company – aren’t the EU useful when there’s a “necessity”?
Dear David, thank you for another spot on article.
Apologies for hijacking your blog post to point out something in the trash your government released yesterday that I don’t see getting the attention and reaction it IMO deserves, other than some eye-rolling: The so-called “other ministerial powers” laid out in that draft bill.
There’s next to no serious acknowledgment in the UK public and also in the opposition (Labour, Lib Dems, Greens, PC, SNP) how far this Tory government and their cronies have your state already descending into authoritarianism and fascism. The U.K. is going full rogue state, and has been for a long time. It beats me how this bunch of brazen liars can carry on with hardly anyone batting an eyelid. It’s like the proverbial boiling frog: They’ve started demolishing your liberal democracy one step at a time since 2016, and with few exceptions, the reaction is: Shrugged shoulders.
You, David, have been among the very first British people stating the obvious many, many months if not years ago, probably as early as in 2018 or 2019.
I hope you’ll find the strength to raise your voice on this threat to your liberal democracy more often and more loudly before it’s too late.
Sharpening the pitch-fork even as I type.
I have to agree. I find the general passivity of British people in the face of such a huge threat to their values to be astonishing.
The only explanation I can think of is that the centuries-old British culture of military service remains the heart of Britishness. Much of that service required a suspension of individual judgement in pursuit of the monarch’s interests as defined by the ruling class. Arguably that still pertains in broader society today.
Why is it so hard to take action? Military service is governed by military discipline. More than in other states, in Britain many see action against the establishment as almost treasonable. A dishonour to the monarch somehow. Perhaps they also imagine there’s some horrible old military-style punishment on the statute books somewhere. Indeed perhaps there is.
The state is always right. Noble causes get demonised by the establishment and individuals in leading roles get their lives ruined even if the principles they espouse eventually take hold (cf the Chartists). Perhaps nobody has the courage to take the personal risk.
There’s also that action against the establishment is seen as somehow a dishonour to fallen relatives in the military past. Weirdly their sacrifice in the pursuit of often dubious national interests (WW2 being an exception) is somehow seen by the populace as redeeming the entire rapacious culture of empire that employed their forefathers and threw them away.
Britons never ever ever shall be (anyone else’s) slaves.
Excellent post.
With respect to the question of whether the UK has (substantially) contributed to the situation of necessity, surely the false assurances that the PM repeatedly gave the Unionists re the absence of Irish Sea border, East / West checks etc… very obviously represent such a substantial contribution.
The DUP can – not wholly unreasonably – say: we were told by the PM himself that there would be no sea border / no checks; the fact there clearly are must therefore justify us taking steps, which the UK Govt represents as necessitating its own action.
(This puts the DUP in the position of the 6 January rioters: their best defence is that they were relying on – entirely dishonest – assurances from the President or, in this case, the PM.)
And once again the question might then be whether the PM made such statements knowing they were misleading.
I expected he was “repeatedly assured” they were ok…
I should like the view of the blog author on this.
https://jusmundi.com/en/document/wiki/en-necessity-as-a-defence
Does this potentially mean that the judgement as to the right to use ‘doctrine of necessity in international treaties’ will need to be decided by the ICJ , it being a higher court than the ECJ/CJEU.
Moreover, the ECJ/CJEU whilst being the named Court in the Withdrawal Agreement/NIP could not mark its own homework hence the need for a higher independent Court to make the judgement?
SB appears to have a ‘limited and specific’ understanding of international law.
It’s by no means the first time that governments have played fast and loose with the law in order to pursue a political objective. I remember when the Heath government contrived the release from prison of London dockers’ leaders when the prisoners themselves desperately wanted to stay in jail.
The current government feels it needs to maintain a continuously hostile relationship with the EU in order to maintain its fading political support, regardless of the economic damage caused. That’s the political point that opposition politicians need to relentlessly expose. Government posturing will is doing us all severe financial damage.
Of course contempt for the rule of law is serious, but it’s unlikely to be an election loser in the way that hurting our pockets is.
Populism – the art of promoting simple solutions to complex problems, that give the impression of taking back control, while making things worse if implemented
The consequence is that more simple solutions are to needed to resolve the worsening problems, creating a positive feedback loop
Excellent as usual.
Everyone will know:
Necessity is the mother of invention.
But now we have:
Invention is the mother of necessity.
Braverman is way over her head. I wonder if she even realises this or whether it’s textbook Dunning-Kruger.
How is the decision to exclude the European court of justice from jurisdiction over protocol disputes governed by the doctrine of necessity?
I made the “necessity knows no law” argument in the “The outlaw ministry” article thread last month. I also raised the question of how we determine when a state of necessity exists. Do we really have to be reactive and wait for the first sectarian killing or bombing, or can we be more proactive and determine that the deteriorating situation in Northern Ireland requires immediate action before things become far worse?
I had not come across the gruesome case of R v Dudley and Stephens before. “We cannot do evil that good may come” is a Christian moral principle, but what we have before us in the NIP is a human law and such laws are directed towards the common good. But when this is no longer the case it ceases to bind (at least morally).
A better example to consider in that of the ill fated Antarctic Expedition of Cpt. Scott. After some time Cpt. Oates, wishing to relieve the pressure on their scant food supply, left the tent and did not return. The suggestion is that he surrendered his share of the food to give others a fighting chance of survival. The question is: was this an act of suicide, contrary to the natural law and which, until 1961, was a criminal offence? The answer is this: there was a shortage of food. Each man was entitled to his own equitable amount. But while this would prolong his life, it would not keep him alive, there is insufficient food for that. Now food provides for a man’s sustenance and not merely to put off the final hour. This food, then, was not food in the eyes of natural law and, consequently, a man who surrendered his share was not violating any natural law; he was free to eat his share or abstain. It was a wonderful act of magnanimity by Cpt. Oates, similar to the soldiers of the Birkenhead as mentioned by the judges in the R v Dudley and Stephens case.
The act of necessity in the R v Dudley and Stephens case is a positive act, it would be akin to the government seeking to “kill” the E.U., whereas the act of necessity in the Cpt. Oates case is a negative act. An act of sacrifice and it is clear that the government’s actions in risking sanctions (and any possible hardship that may follow) for the sake of preserving the Union of the Kingdom is akin to this act of Cpt. Oates.
The the NIP was always intended to be refined/developed into some NIP 2.0 down the line. But Sefcovic has previously stated that “renegotiation is not an option”. So the NIP was not negotiated in good faith by the EU. But it is curious how some on the Remainer side always side with the EU, why? Part of their country is suffering due to the NIP and yet they insist the government obey the NIP. It seems to me that under the guise of taking some moral high ground they are, in truth, willing to accept this suffering to prevent the U.K. diverging too far from E.U. rules in order to overturn the Brexit result and rejoin the E.U. at a later date.
Wow, how delusional can you be. NI is benefiting hugely from the NIP and is growing faster than any region in the UK other than London. A large majority of newly elected members of the assembly have just written to Johnson asking the protocol be retained. So what does Johnson do? He removes the right of the assembly to vote on the future of the NIP. . democracy British style.
The obvious answer to your question: In abundance. :)
We didn’t need the UK to prove that exceptionalism and megalomania are both a hell of a drug but here we are, the UK being a full blown rogue state.
Because A) We don’t read the Daily Express, and
B) We recognise that the NIP is built entirely upon the principal that the Good Friday Agreement depends on Irish citizens in NI continuing to enjoy the rights provided to them by membership of the Union, meaning that they remain inside the single market. The provisions of the NIP for addressing the foreseen and unforeseen problems which could arise in its implementation do not extend to renegotiating its fundamental principals, which after all were approved by Parliament of the United Kingdom.
I mean, just read the first few paragraphs which, like the remainder of the document, are helpfully written in English: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840230/Revised_Protocol_to_the_Withdrawal_Agreement.pdf
And accepting the truth of this encourages agreement that it is reasonable for Sefcovic and others to insist that the EU will not renegotiate the protocol. As for rejoining the E.U. at some later date, ha! Do you think anyone still envisions this? Like they’d even have us back.
Can you please provide some evidence of a “deteriorating situation in Northern Ireland”. What exactly is deteriorating?
We just had an assembly election where a majority of those voting supported parties, and a majority of the members elected, support the Protocol. For sure, there is a blocking minority of unionists that stops the Assembly making progress at present, but we have seen that sort of thing before.
As to “NIP 2.0”, the Protocol lasts for an “initial period” of four years. It can be renegotiated if both sides wish, of course, and includes its own mechanisms of technical and consultative committees and working groups, and I think both sides recognise that there are areas where it can be improved. Either side making unilateral threats to break the existing agreement will just raise the temperature and not help to reach an mutually satisfactory agreement.
Under article 18, the Protocol will fall away after 4 years (that is, the end of December 2024) if the Northern Ireland Assembly does not approve its continuance for a subsequent period of another 4 years (or 8 years with cross-community support). Note in particular that article 18 envisions the Protocol continuing potentially forever without cross community support.
David, pardon me for asking and feel entirely free to ignore my question.
I noticed that there are people – with and without legal background – who claim that there’s no such thing as international law.
If we were to accept that claim, wouldn’t Scotland then be free to declare independence from the UK right away and just toss the Acts of Union? Or wouldn’t this act from 1707 don’t pass as an international treaty? ;)
Pardon me for essaying an answer, but it depends on what you think “law” means.
There are certainly treaties and other international agreements which are treated as binding between the nations that are parties to them, on the basis of the ancient legal principle “pacta sunt servanda” – agreements must be kept. There are also international bodies that resolve disputes between nations, such as the International Court of Justice. That looks and feels like “law” to me.
And there certainly is such a thing as “customary international law”, meaning the generally accepted practice treated as law which governs relations between nations.
You might well ask who creates such “customary international laws”, and how they might be enforced.
It is not the same as statute law, or codified civil law, but rather more in the nature of common law, revealed by what happens in practice when they are followed or breached. Or like the unwritten (but acknowledged and binding) rules of a club, or indeed “customary law” in a domestic or local setting, which is accepted as being binding without necessarily being codified.
Since 1947, the International Law Commission – established by the United Nations – has been slowly trying to find agreement on what the general principles of “customary international law” actually are.
“Necessity is the mother of invention” – but this is not how my mother envisioned it.
Did somebody say “International Law/?”
Maybe it is time to re-read the definitive article on the subject
“Is there really “law” in International Affairs”
by that Yale Law School graduate, (former) attorney at law, true conservative, great patriot, and world renowned statesman (former ambassador to the UN and former national security advisor) John Robert Bolton, in which he proves that so called international law has no legitimate authority and is a fundamental danger to national sovereignty.
As Bolton explained on Al Jazeera Englosh some months ago, it is not international law that matters but how big a stick you carry, as has been demonstrated so clearly by the Russian Federation “special military operation” which international law was powerless to stop and has only been halted by the bravery and skill of the army of Ukraine.
David
Small point, but this argument that lack of functioning executive demonstrates need for urgent reform of the protocol must be the silliest of the lot.
There has not been a functioning executive for fully one third of the life of the Stormont devolved government. There wasn’t a functioning executive for three years from January 2017 to January 2020, which includes the entire period of negotiations with the EU over withdrawal and the protocol. At the very point the protocol was agreed in October 2019, the was no functioning executive.
How can the absence of a functioning executive in NI be an argument for the necessity of reform of an agreement, when it was the status quo going into the agreement in the first place?
It is not a small point at all. It is THE point. Whatever the DUP say now, it is hard to imagine they would refuse the power sharing arrangement had they won the most seats. Previously it was Sinn Fein causing trouble. Now it’s flipped. We also all know that the DUP have all along disliked the Good Friday Agreement and during their time of confidence and supply they pressed for an Irish border. They are furious that instead they’ve been shown a border in the Irish Sea which strengthens ties to Ireland. The DUP do not like and have never liked the Good Friday Agreement. They have long worked to undermine it, as they are doing now. They had hoped that Brexit would weaken the GFA, only to find the former now a greater existential threat to unionism than bombs, and the latter the only argument they can make against the backstop. Taking unionists as a proxy for the United Kingdom, The latter is entirely responsible for the conditions that it now claims have brought on the necessity to act. EU ministers are not stupid. No one is fooled by this.