Comment

Is it worth the risk for the UK to violate the Withdrawal Agreement as a tactic to try and get the Brexit negotiations right ?

Jean-Claude Piris / Sep 2020

Photo: European Union, 2020

 

The incredible has happened. The British Prime Minister requested his Parliament to authorise him to ignore some provisions of a duly concluded treaty. He wants his Government to violate parts of the 2019 Withdrawal Agreement (WA), which he presented not long ago as « a fantastic success ». The Prime Minister says that the WA was drafted hastily and that he is realising only now that it is bad for his country. This is not convincing. The truth is that Mr Johnson wants to get rid of some parts of the WA which he did not like from the beginning. He knew their meaning, but also that they were necessary to get the deal on Brexit. He absolutely needed that deal to hold national elections and to win them.

Let’s take as a hypothesis that the Internal Market bill were adopted by the Parliament and enters into force , with or without an amendment on a case by case Parliamentary vote at each violation (The bill was voted in second reading on 15 September; the procedure is continuing). The law in itself (clauses 41 to 45) is a flagrant violation of international law.The media stress its short term effect, the no deal, i.e. the EU ending its current negotiations with the UK, now pretty much limited to trading relations (Free Trade Agreement).

Actually, it risks being the beginning of much more, opening a vicious circle of catastrophic and long lasting events. It might entail a period of bad relations and lack of trust between the UK and the EU, geographically close and linked in many ways, both economically and politically. This would happen at a time when, with Brexit applying fully, arrangements would be necessary and urgent on important issues such as customs facilitation, transport air/rail/road, internal security and judicial and police cooperation, personal data protection, energy, environment, research and economic sanctions,

The reactions in third (other non-EU) countries would be bad, as first reactions in the US Congress show. The UK’s reputation as respecting its legal commitments would be lost for a long time. It would have difficulties requesting others to respect international law, be it China in Hong Kong or Russia in Ukraine.

Apart from the damage done to the UK, this might be dangerous in Ireland, as it might entail a hard border for trade of goods between Ireland and Northern Ireland. The UK decided to exit the single market and the customs union of the EU. To avoid a hard border between NI and Ireland, the Prime Minister proposed that NI would follow all SM and CU rules. It follows that, to avoid fraud from other countries, some paperwork and checks will be necessary when goods will go from GB to NI and vice versa. Given that the Good Friday Agreement forbids such checks to be carried out at the land border, where could they take place, if the WA provisions which permit that were not respected ? There would be no other way than on land. In that case, who will be bold enough to be certain that this would not entail any troubles?

Such a tactic is dangerous, as there are legal means existing and available if there are any fears that a given formulation in the WA may give rise to excessive and damaging interpretations by one of the Parties, in particular regarding the provisions on state aid and on control of trade of goods between NI and GB.

It is true that the wording of the Protocol on I/NI is complicated and sometimes ambiguous, aiming at the same time at protecting the UK’s internal market (unfettered access for goods) and the EU’s single market (any goods coming into NI are considered to go to EU, unless the contrary is established). It might be differently interpreted as to where and when the EU’s state aid regime will apply, i.e. when trade from NI to EU is affected. It remains that these provisions were accepted by the governments and parliaments of both Parties.

In these cases, the WA and the Protocol offer different legal procedures:

-a) Each Party may refer to the Specialised Committee on the Protocol on I/NI, as well as to the Joint Committee of the WA, any issue relating to the implementation, application and interpretation of the Agreement or of the Protocol (art 164-166 WA and 14 of the Protocol). The Joint Committee may discuss and adopt by common agreement decisions and recommendations.

-b) If the JC cannot settle differences in interpretation, the WA also provides for reasonable means to settle these disputes, including with an arbitration procedure (art 167-181 WA).

-c) Moreover, article 16 of the Protocol allows each Party to unilaterally take appropriate safeguarding measures to remedy the situation in case the application of the Protocol leads to serious economic, societal or environmental difficulties. In case these measures look excessive, the other Party may take re-balancing measures.

With all these means at the disposal of the Parties, and given the potentially catastrophic consequences of the adoption of the Internal Market bill in violation of international law, let us hope that the negotiation will continue until a balanced agreement is reached. This will avoid the deepening of divisions both inside the UK and between the UK and the EU.

 

Jean-Claude Piris

Jean-Claude Piris

September 2020

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