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8 September 2020

Is it possible to break international law “in a limited way”?

Governments do put aside international law on occasion, but the UK appears poised to make a more significant departure.

By Stephen Bush

Brandon Lewis, the Secretary of State for Northern Ireland, has admitted that the government’s plans to unpick the Irish border protocol – the agreement, signed by the British government when we left the European Union, to maintain an invisible border on the island of Ireland by ensuring a continuing degree of regulatory and customs alignment between Northern Ireland and Ireland – breaks international law, but “in a limited way”.

Is that possible? Well, yes and no. Governments do sometimes put aside international law for uncontroversial reasons. The invention of a new technology, or a problem not envisaged by a treaty, could require updated legislation. When domestic governments do this, it is not contested by other countries. We don’t know what the detail of the government’s Internal Market Bill contains, but there’s a simple test we can apply here: if it’s routine, then the Irish government won’t care. If it’s not routine, then they will. 

For example, in 2013, the UK introduced the general anti-abuse rule (GAAR) which broke international law in order to combat new forms of tax evasion. This was uncontroversial, at least from a “rule of law” perspective, though it was sharply criticised both from the left, and by some industry bodies. And in the event that border technologies develop to a point where the Irish border protocol becomes a dead letter, British and Irish governments might legislate in ways that run contrary to international law. 

But the material circumstances have not changed: quite the reverse, in fact. It is hard to see how the British government could unpick the Irish border protocol without entering unprecedented terrain. Unlike in the case of the GAAR, it would not be a reaction to changing times, and it would be fiercely contested by other countries.

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