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LettersBoris Johnson is jumping the gun with UK bill to override Brexit agreement
- Any ‘extreme or irrational interpretations’ of the Northern Ireland Protocol have yet to happen and if they do, existing international law already allows Britain a legal exit
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The United Kingdom’s European Union (Withdrawal Agreement) Act, which took effect on January 31, included terms under the Northern Ireland Protocol. British Prime Minister Boris Johnson said earlier this month that his country needs legal protections against “extreme or irrational interpretations of the protocol which could lead to a border down the Irish Sea”.
Brandon Lewis, the British minister responsible for Northern Ireland, insisted – in the House of Commons – that the proposed regulation would break international law in a “very specific and limited way”. But given these “very specific and limited” breaches of international law do not yet exist, Lewis’ statement was irresponsible at best.
We would all agree with the dictum pacta sunt servanda (agreements must be kept); it is hugely embarrassing to be in the spotlight for planning to transgress in this way.
Johnson is being clumsy in trying to legislate to pre-empt “extreme or irrational interpretations”. For if or when these occur, a legal remedy already exists. Article 56 of the Vienna Convention states that “a treaty which contains no provision regarding its termination and which does not provide for it is not subject to denunciation or withdrawal” unless certain conditions are met. Provision, either for denunciation or withdrawal, do not exist in the UK’s exit treaty.
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But the “extreme or irrational interpretations” the prime minister refers to have not (yet) occurred, and if they did, they would arguably give rise to a situation which, under Article 60 of the Vienna Convention, guarantees the right of a party to walk away from a treaty if the other side has not kept its side of the bargain. Article 60 states: “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”
Of course, what Britain should have included in its Withdrawal Agreement – and maybe they did try – is a legally binding reservation to the effect that, if negotiations did not proceed in good faith, it would reserve its right to consider such as a “material breach” so that Article 60 might come into play. But, maybe that can and will be argued anyway. So, Boris, why cross a river that does not need crossing, yet?
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Ian Howard, Wan Chai
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