UK invokes doctrine of ‘necessity’ to renege on treaty

The British government has invoked the doctrine of necessity to justify in international law its decision to renege on its treaty obligations to the European Union by overriding the Northern Ireland protocol.

In a legal statement accompanying the bill published on Monday, it says the protocol has put such a strain on Northern Ireland’s institutions and socio-political conditions that there is no alternative to legislating to override it.

“It is the government’s assessment that these measures will alleviate the imbalance and socio-political tensions without causing further issues elsewhere in the Northern Ireland community, including by ensuring that east-west connections are restored without diminishing existing North-South connections. It is also assessed that the legislation will not seriously impair an essential interest of the state or states towards which the obligations exist, or of the international community as a whole,” it says.

“Further, the UK has not contributed to the situation of necessity relied upon. The UK exercised its sovereign choice to leave the EU single market and customs union and the peril that has emerged was not inherent in the protocol’s provisions.”

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The statement does not include all the legal advice the government received and its independent barrister was asked not to offer his opinion on whether the bill breaks international law. The statement acknowledges that necessity can only exceptionally be invoked to lawfully justify non-performance of international obligations.

“This is a genuinely exceptional situation, and it is only in the challenging, complex and unique circumstances of Northern Ireland that the government has, reluctantly, decided to introduce legislative measures which, on entry into force, envisage the non-performance of certain obligations,” it says.

“It is the government’s position that in light of the state of necessity any such non-performance of its obligations contained in the Withdrawal Agreement and/or the protocol as a result of the planned legislative measures would be justified as a matter of international law. This justification lasts as long as the underlying reasons for the state of necessity are present. The current assessment is that this situation and its causes will persist into the medium to long term.”