One of the central arguments (and the more appealing) of the euro-sceptics advocating Brexit is that via the United Kingdom (UK) leaving the European Union (EU) this will guarantee that the Transatlantic Trade and Investment Partnership (TTIP) will not be implemented. TTIP refers to a series trade negotiations being carried out mostly in secret between the EU and US. As a bi-lateral trade agreement TTIP is about reducing the regulatory barriers to trade for big business for example with things like food safety law, environmental legislation, healthcare (possibly affecting the NHS), banking regulations and many other things. Basically, it is really bad…
So by virtue of the agreements secretive & bilateral status, the argument is that were Britain to remain in the EU, TTIP would be imposed upon the UK. I have studied international law, given the up-coming referendum of Britain’s membership of the EU, I wanted to be as informed as possible. I keep hearing many conflicting things regarding TTIP, and whether the only way to escape it is via leaving the EU. Now I am not an individual who thinks the EU is perfect , it is anything but. The EU has shown in recent years that it is very much (as with many governmental or supranational bodies) susceptible to the whims of international capital & big business. It also has a degree of democratic deficit. Yes we can vote for Members of the European Parliament (MEPs), but their is a gap between the ordinary citizens & what happens in Brussels that is insurmountable. And there is what happened to Greece at the hands of the ‘Troika‘….
On balance however I see the EU as a force for good, especially by virtue of what it has done in terms of championing workers rights and lots of other good things. I will use the manner in which law related to trade unions & employment has been historically altered by the domestic legislature (in Westminster) to the detriment of working people. Since the 1980s and premiership of the ‘iron-lady’, the power of trade unions and collective bargaining has been eroded in Britain. Thatcher had a massive impact on employment law in the UK. In 1979 it was standard practice for employers in both the private and public sector to enter into union membership agreements with a specific trade union. Thatcher’s government removed the laws which protecting the ‘closed shop’ arrangements with trade unions. Ostensibly the purpose of such reform was to prevent individuals who were not members of trade unions being excluded from employment by virtue of this. Further by virtue of the Trade Union Act 1984 Thatcher’s government introduced the requirement to hold ballots before industrial action. This saw a significant shift in focus from industrial action and trade unions to individual rights.
Many consider the impact of Thatcher’s reforms to mark the beginning of the weakening of the trade union movement in Britain. For example, following on from Thatcher – John Major’s government introduced the Trade Union and Labour Relations (Consolidation) Act (TULRCA). Or fast forward to 2015 and there is the proposed Trade Union Bill. According to the Institute of Employment Rights (IER), currently Britain has some of the most complex and strict strike laws in Europe, the legacy of the Thatcher era. Successive governments continued in this vein when enacting legislation on employment rights. This is enabled by virtue of the basis of British democracy being the concept of Diceyan parliamentary sovereignty (i.e. in the words of A V Dicey – no other body or person but Parliament has ‘the right to make or unmake any law and its legislative power is ‘unbound’). Britain has no formal constitution. Therefore, hypothetically, the government of the day can introduce any form of unconscionable OR progressive legislation it deems necessary.
It is also important to note that Britain has a ‘dualist’ legal system – international law is dependent upon domestic legislation for incorporation and implementation at the national level – without this it is not seen as domestically actionable.
With reference to the multitude of workers rights directives , data protection directives , trade & consumer regulations (implemented via the EU parliament) these were only made applicable in the UK once transposed through a corresponding piece of domestic legislation. In the words of Lord Oliver in the case of JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry :
….a treaty is not part of English law until it is incorporated into the law by legislation.
Via this reasoning, it can be assumed with any bilateral EU agreement or treaty (such as those forming TTIP) Britain’s dualist legal system would affect the manner of implementation.
Looking at a key principle of the ‘Westphalian‘ understanding international law -the maxim pacta sunt servanda (agreements must be kept) – states freely decide in good faith upon contractual relations with each other. The case of ‘The Lotus’ shows how state sovereignty relates to the implementation of international law. The case concerned the aftermath of collision at sea of a French vessel (The Lotus) and Turkish ship which caused the deaths of 8 Turkish sailors. The Lotus was captained by a French citizen named Demons. The ship continued on its course and upon arrival in Constantinople Lieutenant Demons was detained by Turkish authorities and convicted. The crux of this case concerned whether Turkey had jurisdiction to try Demons for this offence. The Permanent Court of Justice took the view that:
‘The rules of law binding upon States … emanate from their own free will’. – S.S. Lotus (France v Turkey) 1927 Permanent Court of International Justice (Series A) No.10 (Sept. 7)
Therefore a treaty ‘does not create either obligations or rights for a third State without its consent’ i.e. via ratification of a treaty. Thus it can be said the normative force of international law is always re-stated. It is defined, by the state with relation to the state. Only national governments (via the action of ratification) may consent to be bound by any framework or higher normative system. In sum, any system of rules or norms only binds where it has expressly consented:
‘In the absence of clear prohibitions the state is assumed free’. – Koskenniemmi M, ‘The Politics of International Law’(1990) 1 European Journal of International Law 1, p18
Returning to the doctrine of parliamentary sovereignty, theoretically the British government could either unilaterally implement or unilaterally refuse to implement a bilateral treaty/agreement such as TTIP. Were the UK to vote to leave the EU, it would appear a future government could (by virtue of parliamentary sovereignty), enter into a similar unilateral international agreement regardless. David Cameron claims that TTIP was his idea in the first place, and promised to give it a “rocket boost” after the G20 summit. As far as I can see, Brexit may not prevent TTIP especially given Britain’s constitutional specificities & the nature of international law. The implementation of such a series of bilateral international agreements would always be contingent upon the consent/will of domestic legislative authorities (i.e. parliament) making provision for such an international agreement to be actionable with the UKs legal system. It is the will of our government that dictates whether TTIP will be implemented, not any binding power of the EU. Equally this means that parliament could fundamentally reject TTIP if it were bilaterally adopted. Brexit may not be the panacea it is thought to be. It is a question of domestic political will. Unfortunately for the UK, the Conservatives are the weak minded when it comes to the pull of borderless capital.
By Frederick Antonio Gallucci | International Law LLM | @gibblegbble