Editorial: The UK Taken in Adultery. Who Will Cast the First Stone?

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And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,[t]hey say unto him, Master, this woman was taken in adultery, in the very act. Now Moses in the law commanded us, that such should be stoned: but what sayest thou? So…He lifted up himself and said unto them, he that is without sin among you, let him first cast a stone at her. (John 8:3 et seq)

It should come as no great surprise that the UK Government, in putting before Parliament the UK Internal Market Bill, is now spicing with illegality its torrid  meal  of irresponsibility and incompetence in the manner in which Brexit was managed –from the Cameron hors d’oeuvres, through the Theresa May main course and, now, the Boris dessert. And nota bene: I am not calling into question the Brexit decision itself. It is the amateurism of the process which is so stupefying. Were any of the issues now being raised by HMG – to give but one example — not totally clear and present at the time the Agreement was signed?

Be that as it may, I am struck by the sanctimonious shrillness in the reactions of the UK’s ‘partners’. A State violating international law, pleading what in its view are overriding national interests or values? Quelle horreur! Whoever has heard of that? The Americans (and the Russians and other barbarians) maybe. But us, in Europe? Nigdy!

Well, well. If the test is ‘He that is without sin among you’ I do not think that many if any stones would or could or should be cast. Governments, Parliaments and, most troubling for our justified concern for the Rule of Law, Supreme and Constitutional Courts, are all partners in sin.

Here, then,  is a very brief and partial ‘sinology’ to counteract a certain this amnesia.  

The EU itself? Need I say more than Beef Hormones? Or Bananas? And even, brace yourselves, at least arguably the famous Kadi decision by the ECJ?

France? Take a quick refresher on the Rainbow Warrior saga. Which consisted in an initial egregious violation of New Zealand’s territorial integrity and  sovereignty followed by a rather flagrant breach of, yes, the Agreement as to the treatment to be meted to the French agents responsible for the sinking of the ship and the loss of innocent life. The reason? Raison d’Etat, of course. And those interested in the arcane of EU legal history, will find the French ‘sheep meat’ case (Case 232/78) relevant.

Italy? Well, think of the fairly recent decision of the Italian Constitutional Court (Judgment 238 of 2014) which flew in the face of an adverse ruling  of the International Court of Justice on the issue of reparations to victims of Nazi atrocities.

Germany? Well most Germans would accept that this is not a Weiss or black situation. And see this little vignette?

Or take many of the Member States  acting collectively: Consider here the Kosovo (and Serbian) campaign of NATO bombing. You may think what you wish on the moral (or immoral) imperatives of that campaign. But you may not, I would think, hold that the action was legal under International Law. Bruno Simma, in the most downloaded article in the history of EJIL, has written sensibly about this. He is a large tree under the branches of which I am happy to find shade.

The list of examples may be continued. There is no shortage of cupboards and no shortage of skeletons. Maybe some readers from other European countries would like to add to the list.

Now I know there will be no shortage of critics who will argue – ‘there is a difference’ between  this or that example of illegality  and the UK actual and/or pending breach in this case.’  Yes there is. Here we have an adulterer/ess who announces his/her infidelity in advance, seeks prior approval thereof from his/her family (from the UK’s Parliament) and then nonchalantly offers the same partner new vows of loyalty (in seeking to negotiate a new Agreement with the EU).  

Is there anything worse  than a flagrant, openly admitted violation by a Government of a bilateral treaty just recently signed?

Curiously, in these circumstances my answer is not an automatic No, there is nothing worse.

Do we prefer the normal practice where states violate and try to cloak such with a whole range of dubious and forced legal justifications, justifications which at least in some deep sense pollute no less the integrity of the legal system? “Necessity” and Rebus sic Stantibus are typically the last refuge of the scoundrel. Is there not something fresh in admitting openly:  We realize we made a mistake [even if such is entirely of their making in having agreed in the first place] which is, in our eyes, so huge that we cannot live with it – especially so in an Agreement meant to define a long term relationship?

Legal history teaches us that the success of long terms relational treaties depends on both parties being invested in its success and with incentives for compliance.

And what do we normally consider ‘worse’ in domestic law: A violation of a bilateral contract by one of the parties thereto, or breaking general law, or even constitutional law? The WTO Treaty (Hormones, Bananas) is a law making treaty and only the pedantic would call it the equivalent of a series of contracts. And the UN Charter, (Kadi) not totally without reason, is often referred to as constitutional.

And is a violation of International Law by the executive branch (to which there can often be judicial remedies) really worse from the perspective of international-rule-of-law, than a violation by  the highest courts of the land, from which there is no judicial remedy? And yes, Weiss consists in a violation of EU Law not international law, but in the eyes of some, given the Constitutional nature of EU the damage to the rule of law is even greater.

The motivations too, differ. Very noble in the case of Kadi. But how noble are the motives behind Bananas and Rainbow Warrior? And the Italian Case is noble in they eyes of some (adequate compensation to victims of horrible war crimes ) and self serving in the eyes of others, an egregious double dipping by the Italians.

But in truth, I do not want to adjudicate normatively among the circumstances of the various cases in my very partial list. Good people and true can judge the circumstances and gravity of the violation differently. Apples and Oranges to some, just (the same rotting) fruit to others. But at the end of the day, whatever position one may take, the differences seem to me to be not unlike that of being pushed from the 12th floor or the 19th floor. The result in either case is still a nasty splash.

Does all this mean that I am advocating taking lightly this or any other violation of international Law? Of course it doesn’t. That would be a bad faith reading of this Editorial. What it does mean is that the situation is not helped by overloading an already fraught entanglement, in which both sides stand to lose so much, by excessive moralistic outrage by politicians whose countries were caught with their pants down on other occasions when violation seemed to suit them.

And this, in my view, also goes for the commentariat coming from European academia in which some of the hues and cries appear to me just a tad overwrought. By contrast, I admire much of the critique from within the UK itself – non sanctimoniously speaking Law to Power though here, too, temperance is often more effective.

As to where lies responsibility for this farce/debacle and is there any merit in the British Buyer’s Remorse, I invite you, if you are so inclined, to read my previous editorial: Brexit – Apportioning the Blame. There are no saints here either.

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