Bad Faith In Friendly Relations Between States

Graham Charles Lear
5 min readSep 15, 2020

How a hostile foreign power seeks to annex part of the UK.

Below I present the thoughts of a barrister who worked in Brussels at the sharp end of EU law for many years. I am sure that readers will find his observations on the current Brexit crisis to be very interesting.

It has been more than four years since the then President of the EU Commission, Jean-Claude Juncker, promised menacingly that

“it will not be an amicable divorce”.

During those four years, Brexiteers have become increasingly concerned that the EU has no intention of negotiating in good faith. For their part, Remainers pointed out “what did you expect — the EU is only defending its interests.” It was perhaps a fair criticism. Initially perhaps, but no longer — not now that the EU’s methods have finally been laid bare by the Prime Minister.

It’s worth pausing to quote him:

We are being told that the EU will not only impose tariffs on goods moving from Great Britain to Northern Ireland but that they might actually stop the transport of food products from GB to NI. I have to say that we never seriously believed that the EU would be willing to use a treaty, negotiated in good faith, to blockade one part of the UK, to cut it off, or that they would threaten to destroy the economic and territorial integrity of the UK.”

It needs repeating so let me repeat, a foreign power is threatening to annex part of the United Kingdom

Of course, you could say Boris is a politician prone to exaggeration, but Lord Frost is a cautious civil servant and describes the relevant negotiations as follow

“The EU knows perfectly well all the details of our food standards rules because we are operating EU rules… Any changes in future would be notified to the… EU in the usual way with plenty of lead time. The EU lists dozens of countries globally on precisely this basis, without any sort of commitment about the future.

“Yet it has been made clear to us in the current talks that there is no guarantee of listing us. I am afraid it has also been said to us explicitly in these talks that if we are not listed we will not be able to move food to Northern Ireland.”

Lord Frost’s full comments are here.

The UK’s response so far has been incredibly meek. The Draft Internal Market Bill, which has caused so much consternation, is still only a draft and, even in its most extreme version, leading QCs point out it is consistent with both the rule of law and the UK constitution.

In fact, it could be said that failing to pass a statute to “clarify” the domestic scope of the Withdrawal Agreement would risk breaching one of the fundamental founding statutes of the British Parliament — Articles VI and VII of the Act of Union of 1800 — which in effect guarantee free trade between Great Britain and Northern Ireland. Some even argue that Parliament has no authority to override the Acts of Union as those provisions are expressed to be “forever”.

Let me show you what Jo Maugham QC, no friend of the Government had to say on this matter yesterday. You can find it in the link above. ‘If Parliamentary sovereignty — a notion at the heart of most lawyers’ idea of our rag-tag constitution — means anything it must mean Parliament can enact (thus Ministers can advise on and recommend) … legislation that breaches international law.’

He goes onto say ‘Whether it is a ‘good idea’ to breach international law is a political judgment, which (like most) raises ethical and other political considerations, but unless you want to argue Parliament is not supreme, Ministers must be free to recommend that Parliament does it.’

Meanwhile, the UK is entitled to expect third countries to act within certain international norms. Of course, the EU isn’t a country but it likes to behave like one and is acting on the instructions of its 27 Member States, all of whom are obliged by international law to abide by certain UN Resolutions. Let’s take a look at just one: UN resolution 2625 on principles of international law concerning friendly relations and cooperation among states which require, amongst other things, that No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.” and

”Every State shall refrain from any action aimed at the partial or total disruption of the national unity or territorial integrity of any other State or country.”

EU cutting off food supplies to Northern Ireland?

The EU’s threat to blockade delivery of food is such a clear breach of International Law that it must also be viewed as a breach of the EU’s duty in Article 184 of the Withdrawal Agreement to use its “best endeavours, in good faith and in full respect of [the UK’s legal order], to take the necessary steps to negotiate expeditiously the agreements governing their future relationship…”

Let’s not forget that this is just one of the EU’s dubious negotiating tactics, it is both Machiavellian and Mercantilist. Someone needs to stand up to this kind of behaviour in Europe and those who are slow to anger have a history of doing so.

Sometimes a little history puts things into perspective

In 1802, about a year after the Act of Union came into force, the UK government signed the Treaty of Amiens with a number of continental powers, including France, to establish peace in Europe.

It lasted just 14 months — at which point Napoleon threatened to annex territories unless the British stopped saying mean things about him in the newspapers.

Will the EU Withdrawal Treaty last as long?

Not if our MPs today grasp what polite society knew in 1802: threats are more than just bad manners.

The article was written by a Barrister with more than 20 years of experience of working in Brussels.

[ Sources: Opinion of a highly experienced barrister | The Spectator | The United Nations | Britannica



Graham Charles Lear

What is life without a little controversy in it? Quite boring and sterile would be my answer.