Matt Hancock, cementing his reputation as this government’s human shield, recently made headlines by saying he was “comfortable” with the government breaking international law over Brexit in what Brandon Lewis had described as “a very specific and limited way.” The remarks came as Boris Johnson prepared to override the divorce agreement made between the UK and the EU by writing what he called an “insurance policy” into the UK Internal Market Bill.
The measures would allow the government to “disapply” some of the provisions laid out in the Northern Ireland Protocol and the Withdrawal Agreement if an adequate trade deal between the UK and the EU was not reached. While the Bill passed its first reading on Monday with just a few Conservative rebels, Johnson has found himself under mounting pressure to assuage backbenchers’ concerns that the government might break a binding international treaty, and has now given parliament a veto over the implementation of his insurance policy.
Many people will be wondering why Conservative backbenchers, lots of whom held positions in a government that was consistently accused of breaching human rights law during the implementation of its austerity programme, would be so concerned about Johnson breaking international law.
It’s clear Johnson (or more likely his advisor Dominic Cummings) thought it necessary to play hardball with the EU to achieve a better free trade deal. As someone who has previously expressed admiration at Donald Trump’s negotiating tactics, Johnson was perhaps seeking to model himself on the US President who has actively sought to undermine the so-called ‘liberal rules-based world order’ more than any other.
The issue is that Johnson is not Trump. He is the prime minister of a wealthy but not particularly important country – not the president of the mightiest superpower in modern history. Trump can break international law because the United States effectively makes international law. The United Kingdom, on the other hand, is very much subject to its constraints.
These constraints are not the same as those imposed by domestic law. Without an entity with a monopoly on the legitimate use of force to ensure obedience, international law is based on customs and institutions that survive due to mutual consent among the most powerful states. These states have worked together over decades to build an international system that supports the interests of international capital, using their economic and military might to enforce the rules.
The absence of a centralised system of enforcement for international law makes states’ compliance with that law all the more important. If one state breaks with a binding treaty, and is not punished for it, what is to stop all the less powerful states, whose domination by the rich world through international treaties and institutions is critical for the maintenance of global capitalism, from doing the same?
America can break with international law because it’s America – everyone knows that the most powerful state in the world can do what it wants and will only engage with international institutions and norms when it suits it to do so. But if the UK was able to break international law with no reprisals, it could deal a blow to the legitimacy of the entire system.
This is what Conservative backbenchers are worried about. If the UK government can get away with breaking international law, then almost any state – and perhaps more worryingly, any future British government – may consider it legitimate to do the same. This concern isn’t based on some renewed appreciation for the importance of human rights law; its about protecting the international structures and norms that support capitalism and empire.
Take investor-state dispute settlements, which are written into many international treaties. These provisions, which are adjudicated in the international investment courts system, allow private investors to sue states if their governments introduce legislation that could harm investors’ profits.
Chevron, for example, successfully sued the Ecuadorian government after it insisted that the company pay compensation after dumping toxic waste in the Ecuadorian rainforest. Phillip Morris, the multinational tobacco company, sued the Australian government after it introduced plain packaging on cigarettes – it lost, but the Australian government still had to pay millions in legal fees.
Investors, more than anything, want certainty. And neoliberal globalisation – associated with central bank independence, restrictions on state aid and capital account management and international arbitration systems designed to support the interests of capital – has provided investors with a great deal of certainty during uncertain times.
The breakdown of this system is, of course, a source of concern to the ardently neoliberal Conservative backbench. If this government is able to break a bilateral treaty without consequence, then what is to stop future governments from, for example, reneging on treaties that require them to allow the free movement of capital and prevent them from nationalising private corporations?
Viewed from this perspective, one might think that the mounting threats to the liberal rules-based order – a euphemism for globalisation pursued in the interests of capital – are a positive development. If powerful states are increasingly flouting international norms and conventions, then it won’t be long before the system falls apart entirely.
The problem is that reactionary governments are perfectly capable of destroying international norms and institutions without building anything else in their place. If the neoliberal world order collapsed today, we would be more likely to see a return to the international system of the early twentieth century than we would the emergence of a progressive world order based on respect for democracy, sovereignty and the planet.
As has been very obvious from the very start, a messy divorce between the UK and the EU will threaten the international system liberals have worked so hard to construct far more than a conscious uncoupling ever would have.
But with the WTO paralysed by the US, the IMF and the World Bank scrambling to find the cash to support poor states on the brink of bankruptcy, and the European Union fighting for its very survival in the midst of a pandemic that threatens to tear it apart, Brexit isn’t even the biggest threat the liberal rules-based international order faces today. We can be worried about what might come next.