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

Brandon Lewis, Secretary of State for Northern Ireland, has admitted that the Government’s plans to undo the Irish Border Protocol – the agreement, signed by the UK Government when we left the European Union, to maintaining an invisible border on the island of Ireland by ensuring a continued degree of regulatory and customs alignment between Northern Ireland and Ireland – breaches international law, but “in a limited way”.

Is it possible? Well, yes and no. Governments sometimes set aside international law for uncontroversial reasons. The invention of a new technology, or a problem not foreseen by a treaty, could require an update of the legislation. When national 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 is a simple test we can apply here: if it’s routine, the Irish government doesn’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 tackle new forms of tax avoidance. This was uncontroversial, at least from a ‘rule of law’ perspective, although it was heavily criticized by both the left and some industry bodies. And in the event that border technologies develop to such an extent that the Irish border protocol becomes a dead letter, the British and Irish governments could legislate in a way that is contrary to international law.

But material circumstances have do not changed: quite the contrary, in fact. It’s hard to see how the UK government could undo the Irish border protocol without stepping into unprecedented ground. Unlike the case of GAAR, it would not be a reaction to changing times, and it would be fiercely contested by other countries.

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