What’s just happened?
A proposal to ban trade agreements with countries violating the Genocide Convention was defeated in Parliament last week. The proposal would have allowed for trade agreements to be withdrawn if a determination by the High Court finds a party has or is committing genocide.
What does this mean?
Who the UK can engage in trade with has always been a political question. This approach is suggesting delegating that question to the courts, and this could have various ramifications, including threatening our parliamentary supremacy.
There seems to be a consensus that there is enough support to secure another vote on this soon, and if this was to go through then the UK would have to revoke, or not be allowed to create, trade deals with countries that the courts rule to be involved in genocide.
The vote was incredibly close, with a defeat of 319-308, and this suggests that a large proportion of the parliament are in favour of this revolutionary approach to trade.1
How does this affect the legal sector?
This proposal was backed by the International Bar Association Human Rights Institute, who noted that the UK has obligations under the Genocide Convention, and this approach is generally understood to be a practical application of those obligations and a way of enforcing compliance with the Convention.
There is a wider issue here with the UK courts being allowed to establish whether a country is committing genocide, this is normally left up to the International Courts, but if this proposal is passed, the British Courts would be given the right to rule in this jurisdiction.
There are some criticisms of this new approach, as many are claiming that it is the job of the governments elected in our democracy to determine trade policy, not judges.2
Also, there is a question of who would regulate the High Court to ensure the decisions are fair and accurate if the government has no power in this area.
On the other hand, this seems like a good system to ensure the UK’s new trade making freedom in upholding and perpetuating compliance with International Humanitarian Law.
Post-Brexit, there is a shift and a new power granted, and at this stage, we do not yet know what role Parliament and the Courts should have in trade policies.
One amendment of the proposal suggested that the Commons could debate whether trade deals can be halted if genocide is proven, reinstating the final say to the elected government. However, the public perception of the government would be damaged if they refused to sever a trade deal with a country proven of committing genocide. This ties the hands of the people making this decision, and again limits the regulatory power over the courts in this area, risking all the power in trade decisions lying with the Courts, and risking denial of parliamentary supremacy.
This could have huge implications, as allowing the UK to declare genocide is or has taken place in a country would allow victims of genocide a route to justice through the UK courts.
Clearly, this proposal could be ground-breaking for the UK, completely changing the way trade operates here. Before any of this becomes a reality, however, this proposal needs to make it back to Parliament, and pass the vote, but if this occurs, the results could have huge implications on the global stage.
Written by Lucy Stone
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References
[1] Patrick Wintour “UK free to make trade deals with genocidal regimes after Commons vote” (The Guardian, 19th Jan 2021) <https://www.theguardian.com/law/2021/jan/31/ministers-backbench-revolt-uk-courts-genocide-china-uighurs-trade-bill-foreign-affairs-committee>
[2] BBC UK Politics News “Government narrowly sees off Tory revolt over anti-genocide trade deal laws” (BBC News 19th January 2021) <https://www.bbc.co.uk/news/uk-politics-55723163>
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.