2007 - 2020

Agreements must be kept: except, of course in Britain

‘Pacta sunt servanda’ (agreements must be kept) is a fundamental principle of law that has its source in Roman law, and remains an essential and longstanding principle of Scots law. It was declared by Lord Hope of Craighead from the bench as late as 2013:
 
“[T]he proposition that the court can equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated is not part of Scots law. To hold otherwise would be to undermine the principle enshrined in the maxim pacta sunt servanda which lies at the root of the whole of the law of contract. I see no need for this and, as there is no need for it, I would reject the suggestion that the court should assume that function”.

(Quoted by Professor Hector MacQueen, ‘The COVID-19 Pandemic, Contracts, and Change of Circumstance: still room for equitable adjustment?’; in, ‘Scottish Legal News’, 25 June 2020; from Lord Hope, ‘Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3, 2013 SC (UKSC) 169’; para., 48).
 
The court case referred to by Lord Hope and the issue raised by Professor MacQueen were matters of the law of contract, but the principle behind ‘pacta sunt servanda’ is so fundamental it extends through contract law, generally to domestic law and through to international law. The United Kingdom Internal Market Bill (UKIMB) has been acknowledged by the British Government itself (in weasel words) to breach international law, an extraordinary position to be taken by a British Government, and a decision if/when ratified that will radically change Britain’s status in the world. 
 
European Commission president Ursula von der Leyen has already used the phrase ‘pacta sunt servanda’ to underscore the severity of the breach of law and of trust that has been undertaken by the UK, so unexpectedly from an EU perspective, whom appear genuinely shocked. The EU should not be, this is the measure to be expected of this louche, seedy British government. Note that this piece of legislation in the form of the present UKIMB, which is so fundamental in its effects, is nevertheless currently barrelling its way through second reading in the House of Commons already, at the greatest speed possible; as if it was a minor amendment to some obscure, uncontroversial Act. Think about that; if only because the speed is itself an invitation to the public not to think too hard about it. One of the excuses for Boris Johnson signing the Withdrawal Agreement (WA) was that it was all done too quickly. It wasn’t, it was calculated and deliberate; as is the UKIMB. That excuse was yesterday. Today we are in a hurry just in case anybody on the Government benches thinks about it too much.
 
The defence of this constitutional and legal position is itself bizarre and has created serious controversy. Now we are debating whether the fact that it is a pre-emptive breach of law can be corrected simply by turning the Bill into two Acts; so presumably that as an alternative to pre-emption, a second Act that ex-post an EU no-deal still leaves the original WA in breach of international law, but somehow this mere technical bifurcation makes the whole thing perfectly legitimate. It doesn’t. This is a Government and Parliament that only talks to itself; it is now failing in its capacity to conduct responsible agreements even with third parties over which it has no ability to force submission. This should act as a sober warning, however to all devolved administrations, about what is coming their way in the UKIMB.
 
This Prime Minister and Government, in this Parliament passed this WA, not with some odd provisional status; they agreed that it would be in force, if all else failed and there was no deal with the EU. That is what was meant by the term ‘backstop’. The British, in crude and obvious fashion are now backstopping the backstop with a new backstop that overturns the backstop. That isn’t negotiating, and it isn’t legal; it is no better than a very shabby scam. We have just passed through the looking-glass. This controversy, however is not the purpose of this article; indeed it is just the focus on international law and the NI protocol and Good Friday Agreement that has absorbed all the attention and energy of opposition to the UKIMB. I wish to look elsewhere in the UKIMB: for its effect on Scotland and the Scottish Parliament.
 
Absolutely critical features of the UKIMB are being overlooked, and that is very, very dangerous; especially for Scotland and devolved government. You need not rely on my judgement of what is at stake here. Jessica Simor QC, who is one of the UK’s leading specialists in public law, regulatory, EU and human rights law has resorted to Twitter today to make clear the fundamental issues at stake, and it isn’t an abstruse fine point in law:

“Much attention has been paid to the fact that the Internal Market Bill puts the UK in breach of international law. It also however, raises extremely serious questions of domestic law with far reaching implications outside of this specific legislative context”. 

 
The context is specifically, Section 42, 43 and 45 (2). of the UKIMB (pages 33-36). Jessica Simor is concerned with domestic law throughout the UK, but the context that requires special focus of the public, politicians, and no least Scotland’s lawyers is the impact of the UKIMB on the Scottish Parliament, the Scottish Government, and on Scots law. I have extracted some of the key sections (clauses) of the UKIMB, for perusal by readers, but there is no substitute for reading the original.
UKIMB Section 42 is the ‘Power to disapply or modify export declarations and other exit procedures’.
 
Section 42 (1) is as follows: “(1) A Minister of the Crown may by regulations make provision about the application of exit procedures to goods, or a description of goods, when moving from Northern Ireland to Great Britain.”
 
A number of regulations follow, including Section 42 (5) “Such provision may include provision for rights, powers, liabilities, obligations, restrictions, remedies and procedures that would otherwise apply,
as a result of relevant international or domestic law, not to be recognised, available, enforced, allowed or followed.”
 
Section 43 covers “Regulations about Article 10 of the Northern Ireland Protocol” .
 
Section 43 (1) is as follows: “The Secretary of State may by regulations make provision for the purposes of domestic law in connection with Article 10 of the Northern Ireland Protocol (State aid)”.
 
Section 43 (3) adds that “Such provision may, for example, include provision for—“ a list of regulatory procedures and interpretations, and including:
 
Section 43 (3) (e) “rights, powers, liabilities, obligations, restrictions, remedies and procedures that would otherwise apply in relation to aid, as a result of relevant international or domestic law, not to be recognised, available, enforced, allowed or followed.”
 
Section 45 covers “Further provision related to sections 42 and 43 etc”
 
Critically this means:
 
Section 45 (1) “The following have effect notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent—

(a) section 42;
(b) any regulations made under section 42(1);
(c) section 43;
(d) any regulations made under section 43(1);
(e) this section;
(f) any other provision of this Act so far as relating to the provisions in
paragraphs (a) to (e).”
 
Section 45 (2) “Accordingly (among other things)—

(a) regulations under section 42(1) or 43(1) are not to be regarded as
unlawful on the grounds of any incompatibility or inconsistency with
relevant international or domestic law;
(b) all rights, powers, liabilities, obligations, restrictions, remedies and
procedures which are, in accordance with section 7A of the European
Union (Withdrawal) Act 2018, to be recognised and available in
domestic law, and enforced, allowed and followed accordingly, cease
to be recognised and available in domestic law, or enforced, allowed
and followed, so far and for as long as they are incompatible or inconsistent with a provision mentioned in paragraphs (a) to (f) of
subsection (1);
(c) section 7C of that Act ceases to have effect so far and for as long as it would require any question as to the validity, meaning or effect of any
relevant separation agreement law to be decided in a way which is
incompatible or inconsistent with a provision mentioned in paragraphs
(a) to (f) of subsection (1);
(d) any other provision or rule of domestic law that is relevant
international or domestic law ceases to have effect so far and for as long as it is incompatible or inconsistent with a provision mentioned in
paragraphs (a) to (f) of subsection (1).”
 
The effect of this appears to be that it is very likely that the UKIMB will simply disempower the Scottish Parliament comprehensively, centralise control in London and pass enormous power over Scottish domestic law directly, not just to the Westminster Parliament, or the British Government, but to the mere decision of a delegated Minister of the Crown. 

Comments (57)

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  1. Tom Ultuous says:

    The DUP (the only mainstream party who voted against the Good Friday Agreement) are the only other party to support Johnson’s bill which is supposedly about “protecting” the GFA. Says it all.

  2. Bruce McQuillan says:

    We dont need to rely on the general maxim of “Pacta sunt servanda” when it is expressly applied within the Terms of the Vienna Convention on the Law of Treaties [1969] which is the international law that the UK is in the process of repudiating.

    “Art 26: Pacta sunt servanda.

    Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

    And for the avoidance of doubt:

    “Art 27: Internal law and observance of treaties.

    A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

    Anyone who has made it through their first year LLB understands the concept of essential unilateral error and its effect on validity as well as anticipatory repudiation and its its effect on liability.

    The former would not apply here since the government has always maintained that these “clarifications” are de minimus: they do not cut to the root of the contract in and of themselves even though the effect may be substantive. This is not essential error.

    The latter could apply since the UK in passing the Internal Markets Bill are clearly demonstrating that they do not intend to be bound which is a repudiatory breach of contract.

    1. John S Warren says:

      Mr McQuillan,

      The Vienna Convention is a relatively recent innovation in international law; I think it came into force around 1980. While slightly over 100 counties have ratified it, clearly many countries have not. Among the countries that have not is the United States. Here is the State Department explanation, from its website: “Is the United States a party to the Vienna Convention on the Law of Treaties? No. The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.” (https://2009-2017.state.gov/s/l/treaty/faqs/70139.htm)*

      “Customary law” harks back to older legal conventions. I chose “pacta sunt servanda” as reaching back to the most fundamental, ancient principle of the law of agreements, quite deliberately.

      *NB. This explicit statement I found on an archived part of the website. I could find no direct reference on the current website, save here (https://www.state.gov/treaties-pending-in-the-senate/), where treaties not ratified by the Senate are listed, including the Vienna Convention, under this preliminary statement: “The following treaties have been submitted to the Senate; these treaties have not received Senate advice and consent to ratification.”

      1. Bruce McQuillan says:

        The Vienna convention was ratified by the UK in 1969 “a priori” to the UK joining the EU.

        No lawyer would base an argument on “ancient regimes” when there is a clear, binding statute to rely on.

        That is a fall back positon where the law is not clear.

        This is the difference between an academic argument winning a case in Court.

        As Professor MacQueen pointed out the issue here is one of “relevance” and the Vienna Convention is binding on the UK as a signatory in the specific area of international treaties. USA is not, as you pointed out, and so of course cannot be bound. The UK can.

        That is the relevant law in the revelant factual matrix at hand.

        Because

        1. John S Warren says:

          “The UK can”; but it isn’t. It remains to be seen what action in court the EU, the most likely party to take legal action, seeks. It ralso remains to be seen what effects such action may produce. The Vienna Convention, however does not exhaust international law and respectfully, it seems to me you are being over-academic, too abstract and over-committed to a single Convention as defining international law. Grotius was more robust.

          The consequences of of the UK breaching the Vienna Convention is uncertain, but my point is that the breach still has consequences, precisely because the Vienna Convention does not exhaust the remedies. The US, that you dismiss from your ‘matrix’ for reasons that elude me (international law depends on the international community, and most of all on those with the most weight); has made clear through the Speaker of the House of Representatives, the Chairman of its Ways and Means Committee, followed by a letter from four Congressmen (three Democrats and a Republican) to the PM; all of which lend weight to the real likelihood that if the PM uses the relevant provisions of such an Act, the US Trade Bill will not be approved by Congress. This is no idle threat. It rests not on the Vienna Convention, but ‘customary law’; but it may well prove the most effective remedy available to the international community in defence of international law, that may be brought against Britain (and not just, narrowly the Vienna Convention alone, because that soothes the punctilious preferences of certain lawyers).

          1. Bruce McQuillan says:

            John, just accept that although the principle applied was correct you completely misapplied the principle. This was pointed out to you by a man who is considered to be the greatest living authority on Scots law, Professor Hector MacQueen and you can’t handle it.

            I provided you an olive branch to show you how the principle you held DID apply but your ego is too damaged and with repect, you have demonstrated that you cannot accept you were wrong.

          2. John S Warren says:

            I am not seeking to defend my ego. I have made a case; it stands or falls. I do not understand Professor MacQueen to be making the point that you claim, and I presume you are not his spokesman. I took the final sentence of his comment to make clear that the exceptions he raised in his article (which was not about the Withdrawal Agreement or Internal Market Bill), did not arise in the case of the Withdrawal Agreement and Internal Market Bill. The rest follows.

          3. Bruce McQuillan says:

            Following on from Professor MacQueen i provided you with a binding treaty from the correct “type” of law and quoting a section specifically entitled “PACTA SUNT SERVANDA” but you ignored it.

            Do you actually have a law degree ?

          4. John S Warren says:

            You have not addressed or answered my point, and I think it extremely unfortunate that you have chosen to take the turn in argument that you have followed. If you have a case, make it. I am not interested in a trade of ‘ad hominems’, and whatever you think of me is neither here nor there. I think your observation about another commenter was simply wrong, and I am disappointed in the way you have attempted to exploit it, without offering evidence. Provide a genuine case of your own. I have nothing else to add. Readers can make their own minds up about the merits of the arguments.

          5. Bruce McQuillan says:

            I did. You seem to be determined not to see.

            I think the honest answer you evaded was “No, i have never studied law”. That doesn’t mean you are not allowed an opinion but when you base an argument on someone else’s work that you misinterpret to such a degree that the original author has to publicly correct, that would give any reasonable person cause to be circumspect.

            I guess i am disappointed that a publication that i have read since its inception has to stoop to the standards of Daily Express rather than display any kind of rigour in a subject that i am qualified in.

            I have no doubt that you are an accomplished journalist and equally that i may tend to agree with you on socio political matters but when you make illogical arguments based on ignorance then the people who actually know their staff are turned off irrespective of where their heart may lie.

            Im done with BC for the moment: i think we deserve better.

          6. John S Warren says:

            There are two points to be made. First, “when you base an argument on someone else’s work that you misinterpret to such a degree that the original author has to publicly correct”, is not correct. I did not base the article on Professor MacQueen’s work. That is simply wrong. I used a quotation from Lord Hope’s decision that was sourced from Professor MacQueen’s article. I did not refer to Professor MacQueen’s article save to make reference to the quotation as an “issue raised by Professor MacQueen”. It is quite outrageous to claim I borrowed his work when I carefully used a single quote, restricting my use to a source for a quote. I ask you to withdraw the claim.

            Second, I did not refer to Professor MacQueen’s case because I did not use it, and in my exchange with Professor MacQueen I took him to wish to make clear only that he had reservations about ‘pacta sunt servanda’, which I had not mentioned. I did not take that as an objection to my whole article or my fair use of the quotation, and am at a loss to understand your very sour interpretation of the exchange. He also wrote in his final sentence “None of this applies, however, to either the Brexit Withdrawal Agreement or the Internal Market Bill.” My understanding of that was that both these texts are not exceptions to the principle that ‘Agreements must be kept’.

          7. Bruce McQuillan says:

            Ok, let me take this back a step.

            The Law is made up of principles, exceptions to those principles and the application of those principles in particular situations.

            In a common law or mixed system, principles are generally academic in the sense that you do not plead “principles” you rely on “precedent” where those principles have been applied to a specific situation either binding an inferior court or if not binding, then “persuasive”.

            So the principle you applied to this issue was “Pacta”.

            You didnt mention mention the “exceptions” (fraud/error/indue influence etc) to the rule but thats fine because actually in this matter i would agree that they may not be relevant.

            But in describing pacta and how it applied here you referred to cases, journals etc however every single reference you gave was in respect of how the principle applies in an entirely different field of law and jurisdiction (Scots Private Law) from the field of law under discussion (UK Public Law/International Law of Treaties).

            If you had made the same argument but in respect of the right “application” i.e public law, you would have been correct in law.

            Other people may argue a different interpretation or opinon as to how that should be applied but the law is not an opinion its a fact.

            The application of the law pertaining to International Treaties is the Vienna Convention which determines the “application” of pacta into the correct type of law and more than that it is formally “binding”. Courts do not make laws.

            Rather than me having to argue just read it: you are an intelligent chap with a grasp of English. Just read it, how do you think you learn the law without reading it ? Make your own conclusions once you have.

            https://www.google.com/url?sa=t&source=web&rct=j&url=https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf&ved=2ahUKEwiMmt2pnu7rAhXTtHEKHWK8DE4QFjAeegQIAhAB&usg=AOvVaw17Sc_kqJS1PahKP1oUiwbS

          8. John S Warren says:

            The whole point of my article was to return to something very fundamental and deeply established in private law as being so fundamental to law generally that it appears in modern public, international law. It was a device to underscore the depth of the repudiation by the British Government. I do not ask you to like it or approve it, but I do not need the lecture, nor do I appreciate being patronised, and I am not sure what you have offered in compensation, beyond a copy of the Vienna Convention, which i did not need.

            There is one thing you have done that made me think; could I nevertheless have misunderstood Professor MacQueen’s comments? I trust not, but I am giving that due and serious attention.

          9. Bruce McQuillan says:

            My apologies I thought I was talking to an adult. My mistake.

          10. John S Warren says:

            I always regret when threads end in fruitless, and gruitous personal insults, especially as I think I can say I have engaged with a critic at considerable length; but if we wove together all your comments I think it fair to say that I doubt if an impartial spectator would draw the conclusion that I was the one with an inflated ego. Nevertheless, go well.

          11. Bruce McQuillan says:

            Then we will have to agree that we disagree.

            I don’t see any benefit in rebutting your comments suffice to say that we come to a similar conclusion but for markedly different reasons.

            Enjoy the rest of your evening.

  3. Axel P Kulit says:

    Its been obvious for years that one of the side goals of Brexit will be to abolish or emasculate the Scottish Parliament

    https://vocal.media/stories/it-is-now-clear-westminster-intends-to-abolish-the-scottish-parliament

    Which the UK’s current fake democracy will facilitate

    https://vocal.media/stories/fake-art-fake-government-fake-democracy

    Perhaps they have fantasies of imposing direct rule, as in Ireland during the troubles. Perhaps they want a Scottish version of the Troubles ( I don’t but then I am not a Tory) and have worked out a way to make money from it.

    Perhaps they WANT to get rid of the other troublesome nations but work out how to keep the resources and keep Trident up here.

    Right now I am beginning to despair.

    But, to paraphrase a Unionist, “No surrender” when it comes to wanting Independence.

  4. Hector MacQueen says:

    I should point out that the article referred to above, written by me, argues that contract law can and should be a little less committed to the ideal of pacta sunt servanda. When confronted with change of circumstances transforming the effects of a contract from those originally intended by the parties, the courts have or should have power to adjust its terms the better to meet the new situation, including the power which no-one would deny is part of the law to discharge the contract altogether and order restitution of any transfers (of money, goods) made in partial fulfilment of the contract.

    None of this applies, however, to either the Brexit Withdrawal Agreement or the Internal Market Bill.

    1. John S Warren says:

      Professor MacQueen,

      Thank you for your response and clarification of your reservations about ‘pacta sunt servanda’ under certain conditions. I had indeed not referred to this matter. My understanding of your final sentence: “None of this applies, however, to either the Brexit Withdrawal Agreement or the Internal Market Bill”, is that you mean that a transformatory ‘change of circumstances’ does not apply in the case of the Withdrawal Agreement and the Internal Market Bill. It seemed to me that the ‘backstop’ was designed to fill the exigency that the British Government is now claiming for the new, unilaterally established provisions in the Internal Market Bill. Aside from the effect of the Internal Market Bill on Scottish devolution, this issue was my principal concern in the article, and I therefore omitted reference to the reservations you had made.

  5. greenergood says:

    Not a lawyer – haven’t a clue – but would love to be taking bets on whether Lord Keen will resign!! 😉

  6. John Learmonth says:

    Who enforces ‘international law’ ?
    If law can’t be enforced then its really a gentlemans agreement not the law.
    It seems to me that all the worlds major powers ignore ‘international law’when it suits their own interests.
    For instance international patent law is completely ignored by the CCP of China not to mention rounding up 1m Uighar muslims and putting them in ‘re-education’ camps in direct violation of human rights law.
    The USA, best not go there as when you’ve got the most powerful military in the world who cares about what a few cossetted overpaid international lawyers think.
    Germany/France just google it…..
    No time for Boris and his gang of buffoons but
    this article just reads like the the last attempt of the remoaners to overturn Brexit.
    Get used to it folks we’re leaving!
    All the best
    John

    1. John S Warren says:

      Mr Learmonth,

      Force is not the issue. People sign agreements (including trade deals). They expect commitments to be met. If there is a no-deal outcome with the EU and the Internal Market Bill is enacted as proposed, not only will the EU be difficult to deal with hereafter (for good reason), but there will be no prospect whatsoever of a trade deal with the US passing Congess. The Chairman of the Ways and Means Committee and the Speaker of the House of Representatives have already made this abundantly clear. It will be sunk. The rest of the world is taking note.

      1. John Learmonth says:

        Mr Warren,
        Time will tell but as we run a €13 billion trade deficit with the EU I’m pretty sure business will continue despite our ‘flagrant breach’ of international law.
        Its all a storm in a teacup but it gives the BBC/C4/Guardian and the rest of the remoaner establishment something to winge about for a few days.
        Best regards

        John

        1. John S Warren says:

          Mr Learmonth,

          The GDP of the US is $20+Trn, the EU sans UK, circa $15+Trn, PRC $13+Trn ……. UK? under $3Trn.

          Time will indeed tell. Enjoy your tea.

          1. John Learmonth says:

            Mr Warren,

            I’m on the whiskey, a particularly fine Isle of Islay single malt I hope you do likewise and truce is declared. Let battle commence another day!

            Best wishes

            John

          2. John S Warren says:

            Mr Learmonth,

            I did not know Islay was in Ireland; it must have been that storm in a teacup that sent it off-course.

          3. John Learmonth says:

            Or too much whisky…….

    2. Bruce McQuillan says:

      The International Courts of Justice (ICJ) have jurisdiction over treaties signed in accordance with the Vienna Convention.

      1. John Learmonth says:

        They do indeed but how do they enforce their rulings when they are ignored?
        Answer they don’t/can’t.

        1. Bruce McQuillan says:

          John, i think i see what you are seeing that the only thing you are motivated by is force, you have no time for “values”.

          I am prepared to take your word for that.

          1. John Learmonth says:

            Bruce,

            ‘Values’ throughout history have been imposed by force. Hitler wasn’t defeated by lawyers…..

          2. Bruce McQuillan says:

            Neither was he defeated by apathy or indifference.

    3. Blair says:

      At the end of the day the EU & the UK will agree something which will cost us a fair bit more than we will want to pay. The price of our freedom has been historically fought for with both financial costs and lifes lost.

      What price are we prepared (can we afford) to pay Europe for all the advantages of access to the benefits of Europe without having to comply with all their rules and laws if we don’t want to (enabling us to trade to the best of our ability with the rest of the world)?

      While we do not see lives being lost in numbers of deaths, it appears the youngest generation is being asked to forfeit much more than everyone else! It would also appear that the politicians are ensuring that certain privileged classes will keep benefiting even as society as a whole suffers (e.g those in the House of Lords).

      There is a lot of scope for improvement.

      1. Axel P Kulit says:

        “it appears the youngest generation is being asked to forfeit much more than everyone else!”

        On what do you base this statement?

        Pensioners are having to forego the EU’s ruling that we would otherwise have to raise pensions to the EU average, basically just about double them.

        Older working age people are losing the ability to work and live in Europe.

        The younger generation have more time to bounce back.

        1. Blair says:

          The older generations have voted for the changes. The young have to live with the consequences of the vote results.
          Europe provides larger pensions than the UK but the young will have a vastly inferior state & work based pensions.
          There is much that can be improved but we are all now having to live with the consequences of what may be occurring because of protest voting as a result.
          Perhaps instead of breaking international law Boris should just ignore how the UK voters voted.

    4. Anndrais mac Chaluim says:

      There are enforcement mechanisms up to and including the provisions set out in Chapter VII of the UN Charter. However, these are pretty weak and imperfect, which may be considered a good thing if you assert the principle of national independence, as Boris did last night in the Commons.

  7. Douglas Wilson says:

    I don’t know how on earth we got into the situation whereby people are told and increasingly seem to believe that ‘national sovereignty’ trumps the international rules based order, but that is not the case and has not been the case in Europe since WWII…

    Precisely what happened in the 1930’s is that dictators like Mussolini and Hitler claimed that Italian and German national sovereignty could overwrite, respectively, the League of Nations / the Treaty of Versailles, by unilaterally invading countries like Abyssinia and Czechoslovakia…

    So, after the catastrophe of WWII, a much more robust international rules based order was established to prevent the same thing happening again and checking power mad populist leaders deploying untrammelled “national sovereignty” as an excuse to do exactly as they please, through institutions like the UN, the Council of Europe which established the European Court of Human Rights (nothing to do with the EU), and the EEC, later the EU which is a union which by the way is only open to States which respect the rule of law…

    Tony Blair and New Labour of course have played their part – a huge part in fact – in the deterioration of the international rules based order in the shape of the illegal invasion of Iraq. But note that even then Blair and Bush went to huge lengths to try to convince the world that they were actually acting within international law, even going so far as to cook up a dossier on WMD and presenting lots of bogus information to the UN.

    Boris Johnson and Michael Gove are simply two shameless liars who say one thing one day, and something completely different the next. These are two dangerous men who deserve the contempt of any democrat, anybody who believes in the rule of law.

    As for what reprisals can be taken, well economic sanctions ultimately could be used by the EU against Britain. Countries can be sanctioned and more generally excluded from the international community…There are a whole host of measures which can be taken against countries which break international law…

    If Westminster is passing laws which give government the power to breach international law, Scotland should be prepared to unilaterally walk away from the Union of 1707, simple as that. The only thing that was keeping us part of this corrupt London regime with no legitimacy, no mandate and no credibility for many years now, was a respect for legality…

    And now that too has gone…

    1. Douglas Wilson says:

      Ultimately, the question is, just how dangerous is Boris Johnson?
      I think he is by far the most dangerous European leader in living memory.
      What is their game plan?
      There are those saying Johnson is just bluffing the EU, and that the Internal Market bill is a negotiating rouse.
      I don’t believe that for a minute. There is a deal to be signed with the EU tomorrow.
      There are MPs who have said that Johnson wants to have the right to rip up the Good Friday Agreement and the Withdrawal Agreement as a kind of insurance policy – some insurance policy which starts a fire in your neighbour’s backyard!!!!
      I don’t believe that either, and even if it were true, it is totally unethical and still amounts to breaking the law.

      Then there are people like myself who believe Johnson and Cummings actually want to create, and have always wanted to create, a full blown crisis with the EU which will allow them to concentrate more power in themselves and sweep away any resistance to their extreme right wing vision for Britain.Effectively, they are intent on creating a new world order along with Trump and other authoritarian populist leaders like him…

    2. Anndrais mac Chaluim says:

      “I don’t know how on earth we got into the situation whereby people are told and increasingly seem to believe that ‘national sovereignty’ trumps the international rules based order…”

      But that’s the principle of independence, Douglas, in relation to the matter which, with reference to Scotland, we’re seeking a second referendum.

      1. Douglas Wilson says:

        No, your idea of national sovereignty is a very extreme one.
        Sovereignty is not an absolute, just as personal liberty is not an absolute.
        You as an individual are free, but there are laws governing what you can and cannot do as a member of society.
        Likewise as an independent Nation State, Scotland would form part of international organisations like the UN, like the EU, and would respect the rule based order of these organisations by joining them.
        This idea that Michael Gove is putting around that national sovereignty is some kind of carte blanche, so that British governments can just ignore their international treaty commitments and other obligations whenever it suits is something right out of the 1930’s, it’s what dictators do.
        Nation States are entities with legal obligations which one government inherits from another…
        Gove and Johnson can’t just rip up the Good Friday Agreement without there being legal consequences.
        In terms of the Good Friday Agreement, the US and the EU are co-signatories, so that would immediately put Britain in conflict with the USA and the EU.
        What, indeed, Johnson and Gove are attempting to do is to undermine the international rules based order…
        That is not a byproduct of the UK leaving the EU, it is of the essence of the Brexit project…
        That is why it is so dangerous.. it’s a kind of right-wing anarchy the Brexiters want…

        1. Axel P Kulit says:

          “Nation States are entities with legal obligations which one government inherits from another…
          Gove and Johnson can’t just rip up the Good Friday Agreement without there being legal consequences.”

          They would argue that no government can bind its successors and therefore there should be no legal consequences therefore there will be no legal consequences.

          1. Douglas Wilson says:

            I can’t believe I’m meeting people defending Gove and Johnson on Bella Caledonia…
            “No government can bind its successors”… you say?
            That is precisely what living in an international rules based order is about, governments do bind their successors, that’s how it works.
            Not only on a piecemeal, case by case, basis, but there is in fact an overarching international legal architecture or framework which is sustained in effect by transnational organisations like the UN and the EU based on international treaties which almost all countries are signatories to, like the Geneva Conventions for example…
            The alternative is anarchy. And ultimately conflict, and even war…
            By the way, it’s no different in the world of business. If a company has a contractual commitment to a third party, it has to be honoured even if the board or the shareholders change in the interim…

          2. Axel P Kulit says:

            Read what I said. I said “THEY would argue that….”

            IN practice governments do bind successors

            I am not trying to defend them, merely get into their minds, though I do strictly speaking need someone responsible nearby to slap me back to reality in case I get trapped there

        2. Anndrais mac Chaluim says:

          Your analogy between personal liberty and national sovereignty is flawed.

          For, while it’s indeed the case that my personal liberty is limited by the coercive power of the interpersonal community, the international community possesses no such power; at least, it possesses very little.

          Under the contract theory that underpins liberal thinking, we each voluntarily surrender our ‘natural’ freedom (power) as individuals to the ‘state’ (the political expression of our community) in return for a guarantee of civil liberties (‘permissions’); in other words, we each give up our personal independence for the sake of our personal security.

          Now, your analogy breaks down because, in the world of international relations, unlike in that of interpersonal relations, there’s no ‘state’ or pooled coercive power into which sovereign nations (especially the more powerful ones) are prepared to surrender their independence.

          The UN, the EU, and the UK are all cases in point; they all fail because the constituent nations (especially the more powerful ones – the ones that think themselves powerful enough to be able to look after themselves) refuse to give up their national independence to them.

          (Now there’s a thought: the Union is failing because, unlike Scotland, England has refused to give up its independence to the UK. I like it!)

          1. Douglas Wilson says:

            The analogy doesn’t have to work perfectly to make the general point that neither personal liberty nor national sovereignty exist in the abstract, they must co-exist with other national sovereignties and personal liberties in the real world and so defacto are always curtailed and never pure and unadulterated like the Brexiters like to claim especially the pathological liar Michael Gove…

            Transnational organizations like the EU simply offer some agreed upon groundrules but, in the absence of an EU trade deal, the UK will trade on WTO rules, another transnational organization which the UK is a member of without anybody claiming it thwarts or frustrates national sovereignty…

            The whole success of the last 80 years in Europe is due to the sea change after WWII when European nation states started working together instead of competing against each in a Darwinian survival of the fittest, which led us to two world wars in 40 years and saw 100 million Europeans killed as a result…

          2. Douglas Wilson says:

            As for what you say about powerful States not submitting to anyone, we have seen again and again over recent decades that even the USA, the most powerful State in history, is not able to fully impose itself on countries like Iraq or Afgahanistan, that for all its military might, America suffered defeat in both those countries… And the same might be argued about Britain in Ireland…

            Those are extreme cases of course, war, but the point is that there is no such thing as an undiluted and pure national sovereignty whether inside the EU or out of it..

          3. Anndrais mac Chaluim says:

            Yes, I agree; there’s no such thing as independence; only varying degrees of dependency.

          4. Douglas Wilson says:

            I agree Anndrais, to see ourselves as ultimately being dependent on others to some degree or other is much closer to the truth than Johnson’s swaggering macho sovereignty talk…

            In any case, I believe the Brexit project will ultimately fail and that fatuous, pompous little prick Michael Gove and creepy Cummings will eventually be run out of town, discredited and disgraced before public opinion.

            Unfortunately, there is likely to be a good deal of suffering and pain before then and what happens in America this November will have a great bearing on how bad things get….

            Meanwhile in Scotland, we should be opening up another front and adding to Johnson’s problems instead of hanging about doing nothing…

    3. Axel P Kulit says:

      I have to agree.

      Whether the international community would agree and recognise Scotland if we did walk away is another matter.
      Whether they would protect us if England decided to invade is yet another matter.

  8. William Davidson says:

    The writer makes the point that this article does not deal with the Northern Ireland protocol or the Good Friday Agreement, but as others have mentioned these I felt, as a resident of Northern Ireland, I would pass some comment on them. As a lay observer of international politics over the last 30 years, I share most of John Learmonth’s scepticism/cynicism re the concept of international law and how it can be enforced. It seems that states ignore international law when it suits them and cite international law when it suits them. So does it really exist as a meaningful concept?
    I agree with the author’s citing of the legal dictum Pacta Sunt Servanda, that agreements must be kept. So, lets look at the much cited Good Friday Agreement. Tom Ultuous is quite correct to say that the D.U.P. was opposed to the G.F.A. , which was negotiated in 1998 between the Ulster Unionist Party(U.U.P.), John Hume’s Social Democratic and Labour Party (S.D.L.P.), along with the Irish and British governments. When Sinn Fein and the D.U.P. displaced the S.D.L.P. and the U.U.P as the chief representatives of nationalism and unionism, the deal was renegotiated under the auspices of the British and Irish governments at St Andrews in 2007 and altered to mollify S.F. and the D.U.P.. As the G.F.A. was registered as a treaty under international law, did this alteration break international law? Probably not, as the states making the changes were not in dispute.
    Bizarrely, we now seem to have reached the stage where Johnson & co are breaking international law to give themselves the power to alter a Withdrawal Agreement and Northern Ireland protocol, which themselves, er, break international law. In the Constitutional Issues Section of the G.F.A. (page 3) it states, “the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the union and, accordingly, that Northern Ireland’s status as part of the U.K. reflects and relies on that wish ; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people.” The W.D.A. and N.I. protocol clearly change the status of N.I. as part of the U.K., without the consent of anybody here and, therefore, break the G.F.A. and, by extension, international law. So, why are various parties jumping up and down saying that what Johnson is doing threatens the G.F.A., when what they are defending has already driven an express train through it? Well, it works like this : if the G.F.A. is broken in support of your political aims and philosophy, then you look the other way and say nothing. It really should be renamed the “Humbug and Hypocrisy Agreement.” Most of the people who cite it have, obviously, never read it, it has simply become an imaginary construct, which can be drawn upon to support your point of view, no need to go through the tedious process of actually finding out what it says. I have no qualms about Johnson, he is not doing what he is doing because he cares about N.I. , like the E.U., southern Irish politicians, U.S. politicians and assorted M.E.P.s he doesn’t give a damn about us, but the penny seems to have dropped that, through companies operating on a cross-Irish Sea basis E.U. law can apply to the rest of the U.K., as well as N.I.. Pity he didn’t read the G.F.A. and Withdrawal agreement at the end of last year before sighing up to it. But, hey, over here we’ve got used to being used as a blackmail tool, lever, bargaining chip, political football.
    So I’m all in favour of Pacta sunt servanda (agreements must be kept), pity it doesn’t apply to the G.F.A..

    1. Tom Ultuous says:

      We find ourselves in this position because the DUP (the turkeys who campaigned for, cheated for and voted for xmas) kept the whole Brexit show on the road. Had they not decided to be “funny guys” and cause a bit of mischief Leave wouldn’t have won in the first place or would’ve been overturned by a 2nd referendum.

    2. Douglas Wilson says:

      There are some cases William in which international law is breached without much happening – most notoriously in the case of Israel and its treatment of Palestine – but it’s one of those things you only hear about when it isn’t upheld.

      The fact is that international law is respected and enforced in the courts all the time, in thousands of humdrum cases every day we never hear about.

      To break international law makes you a parish state, as Israel has been for many countries for many years. But the Palestinians are powerless people, the EU is extremely powerful and clearly there will be a response. Johnson is a frivolous gambler who is bound sooner or later to overplay his hand…

      He isn’t as smart as he thinks he is, and not are Gove and Cummings who specialize in cheating above all. Eventually, they will fall…

      1. John Learmonth says:

        For most of human history ‘international law’ didn’t exist and so constant warfare worldwide was the ‘natural’ state of humanity.
        Arguably the first ‘international laws’ were promulgated at the Treaty of Vienna following the defeat of Napolean. However ‘international laws’between 1815 and 1914 was whatever the the British Empire decided what were ‘international laws’ as for the first time in human history the world had a hegemonic power and you messed with it at your peril. WW1 marked the end of British hegemony (WW2 was its coupe de grace) and so lots of rival powers then vied for power and so without a hegemonic power ‘international law’ceased to exist as nobody had the military might to impose it. 1945 bought along a new hegonomic power in the USA and its adjunct NATO since then ‘international law’ is whatever the USA says it is(for better or worse). The idea that either the UN or the EU are upholders of ‘international law’ is laughable, the EU had to go begging the USA to stop the genocide in Yugoslavia as it didn’t have the military means to intervene to stop it
        It might not go down well with peoples liberal sensibilties but ultimately MIGHT IS RIGHT and has been throughout human history.

        1. Douglas Wilson says:

          You’re just looking at one aspect of international law – going to war or military intervention – but international law is applied in thousands of different cases every day all around the world, we just don’t hear about it because the vast majority of cases are of little or no public interest.

          As for the EU, you have to be a democracy to join, you have to have free and fair elections, an independent judiciary, a separation of powers and be a signatory to the Geneva Conventions and a whole number of other treaties…including the European Convention of Human Rights which UK citizens will no longer be able to benefit from either before too long…

          People underestimate the powerful influence the core EU countries have had on the new democracies in the former Soviet block and back in the 60s and 70s in the South of Europe. If it wasn’t for the lure of joining the most prosperous trading block in the world, quite possibly some of those countries wouldn’t have democratized or not as easily and today the most reactionary instincts of Poland and Hungary are held in check by the EU Treaties.

          As for the lack of a European Defence Force, the EU is damned both for aspiring to have one, and damned for not having one. It is criticized for being toothless one day and being and having super state pretension the next.

          The EU is open to criticism on many fronts, but that it has worked as well as it has for as long as it has is a kind of minor miracle…

          1. John Learmonth says:

            Douglas,
            If the EU is so wonderful as you claim then why did Mr Macron openly admit after the Brexit vote that the reason he wouldn’t give the french people an in/out referendum vote is because they’d vote to leave.
            Democracy? Your having laugh although I fail to see what the undemocratic nature of he EU has to do with international law?

          2. Douglas Wilson says:

            Why Macron etc? Because people lack agency in their own lives and mistakenly think that leaving the EU will give them more control maybe? Or something like that….

            Also, they confuse multilateral decision making with a loss of sovereignty. Multilateral decision making is one option for a sovereign nation, the other one being unilateral decision making. But sovereignty is something that underpins both.

            The EU is not “great” but it is necessary. It will never be perfect because it is made of 27 nation states where about 50 languages are spoken with huge cultural differences between member states and also in terms of size and scale.

            The EU will not sign a trade deal with a country which breaks international law and you can’t be a member state unless you uphold it either…

          3. Douglas Wilson says:

            The fact is we are living through an act of complete lunacy in the form of Johnson’s Brexit which has no precedent in modern times. We are sleepwalking into a catastrophe.

            Turkey, as I pointed out on these pages some time ago now, is in a Customs Union with the EU for Christ sake, and we have a physical border on the island of Ireland where our government is signatory to a peace process which specifically and categorically prohibits a hard border between North and South. So how is it possible the UK even got to the stage of contemplating leaving the Customs Union?

            Why on earth is Keir Starmer not denouncing this loudly and clearly? Why are more people in power, people on a salary to oppose the government, paid to opine in public life, not expressing something like anger and a sense of outrage and betrayal? And in Scotland, why is Nicola Sturgeon so silent? Johnson’s govt just repealed Devolution in case Nicola hasn’t noticed…

            The UK is sleepwalking into a disaster and Johnson and his crew of wreckers have to be opposed much more aggressively and trenchantly…

            The English elite’s contempt for Ireland and Scotland has no limits…

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