Written by Titus
This article was published in ‘Briefings for Brexit’ and we re-publish with their kind permission.
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Who is to blame for the breakdown in negotiations between the UK and the EU? Surely that side that has attempted to override the basic principles of international relations based on comity, equality and democracy.
Roy Greenslade, writing in the Guardian last month, declared his bemusement and frustration at Brexit supporters for blaming Irish Prime Minister, Mr Varadkar for any future “no deal”.
The most fundamental reason for blaming the Irish government – and, indeed, all of the EU27, the European Parliament and the EU negotiating team – is that the Backstop and what the EU stands to achieve through the Backstop systematically violate basic international law principles of comity. The EU is seeking to establish a relationship with the UK that violates the principles of “sovereign equality” and “reciprocity”.
“Sovereign equality” is the principle that each state has the same legal rights as any other in international law, and has an equal right to supremacy of its government institutions within its own territory. “Reciprocity” is a simpler and equally fundamental concept: in any international obligation the rights and obligations must be mutual. A state should not ask from another what it is unwilling to give itself.
These principles are not minor matters. They are principles which those who make up much of ranks of staunch Remainers would normally hold dear. As a matter of realpolitik, the strongest states have a considerable advantage over the weaker, but these basic principles of international constraint serve as a restraint. Whatever the imbalances of negotiating power, these principles are shields to show when demands are off limits. Without them, international relationships becomes are matter where right is just the word of the strongest.
A lack of “sovereign equality” and “reciprocity” shines through the Irish Backstop. Annexes 5-8 of the Backstop Protocol give a ninety page list of EU laws which will continue to apply to Northern Ireland, including any amendments or replacements. Article 2 of Annex 2 (the extension of Customs Union to Great Britain) requires the UK simply to apply tariffs set by the EU – there is no sovereign equality or reciprocity for the UK. Under Article 3.4 of Annex 2, the UK will be told of any changes, there may be consultations “if necessary”, but there are no safeguards against the EU misusing its power. Article 6 of Annex 2 (specific remedies) contemplates only non-compliance by the UK, and gives no remedy against non-compliance by the EU. Annex 4 on standards in terms of taxation, environmental protection, labour, state aid and competition, a veneer of reciprocity is applied with mutual promises to uphold standards. It soon, however, becomes clear that the EU’s compliance is presumed to be assured by its own laws, whilst it is the UK that is put to proof. In Competition (Article 21), the mutual obligation on the UK and the EU is to apply EU law. In State Aid, the UK must establish an independent authority which is closely supervised by the European Commission – and Articles 13-15 of Annex 4 provide one-way protections for the EU and make it clear that, for all the pretence of the UK and EU being under their own authorities, the EU authorities get the final say as to compliance by the UK.
This is the position created by the EU’s Backstop. The measures in Northern Ireland are a severe violation of sovereign equality and reciprocity.
Contrary to what was agreed in the original “Sufficient Progress Report”, the extension to the UK goes even further than the Backstop itself.
To make matters worse, the EU is being perfectly clear that the only way out of the Backstop will be the full Customs Union and Single Market package, where we can be fairly sure that the EU will demand the same systematic violations of “sovereign equality” and “reciprocity”.
It is odd for a Union that prides itself on having “democracy” as a core value, that it has not shown a shred of concern about establishing such an undemocratic position. It does not even recognise, as a “good king” might, that all power is a trust to be used responsibly for the good of its subjects. The EU has shown no concern, for example, at the morality of what it seeks. It has, for example, never sought to suggest a customs union of equals nor anything like that. Its approach has always been exemplified by its conduct over the “Stand Still Transition”: the UK would do as it was told
There are only two conceivable justifications for this EU stance:
Firstly, that the EU is above the ordinary morality of international comity. Its recent conduct towards Switzerland suggests that this is so, but it is unlikely to acknowledge it.
Secondly, that Brexit is the United Kingdom’s choice, so it must take the consequences. We have chosen to leave the European, and have thus forfeited the protection of the ordinary rules of international comity in dealing with resulting problems.
The second option is the official line, and one enthusiastically taken up by British Remainers.
It was also the line taken by the victorious allies at Versailles in 1919. The Times has recently helpfully repeated the sentiments of the day. The Germans could not expect a treaty that welcomed it back as an equal in the family of nations because it had, after all, lost the war, so could only expect a “peace of defeat”, and having caused the war had to accept what the allies thought necessary to make amends. The pro-Remain writer, Timothy Garton-Ash, has worried that EU demands will create Weimar Britain; the comparison goes deeper than the one-sided nature of the terms settled with little regard to their stability.
If we wonder why many blame the EU for the current state of affairs, we need only contrast the EU’s demands since 2016 to the treatment of Germany and Japan by the western allies after World War II. Despite waging the bloodiest of wars and exterminating millions, within a short time neither country was subject to any disabilities. They were restored to sovereign equality. The contrast with the indefinite Backstop and what the EU desires as a replacement could not be clearer.
In January, many German figures wrote to the Times praising the UK for how the United Kingdom had “welcomed Germany back as sovereign nation and European power”. Such the warm sentiments that the letter drew much praise. No one seemed to notice the rank hypocrisy. Many of the signatories to the letter had authored an EU policy designed to ensure that a post-Brexit UK would be neither a “sovereign nation” nor a “European power”, but would be subject to multiple restrictions under EU supervision. The EU had approached negotiations with the spirit ofVersailles. The permanent restrictions planned for the United Kingdom are arguably even more extensive given that the EU is nakedly aiming at permanent control of UK trade policy and the full Single Market package (and doubtless the Common Fisheries Policy) as the final destination. Germany may praise Britain’s post-war generosity; but it has shown no intention of behaving in a remotely similar fashion.
On the EU’s plan, the UK is not even to be like Norway or Iceland, who can decide at any time to walk away from the Single Market.
The UK’s restrictions will be permanent. A permanent Single Market and Customs Union jurisdiction is sought. Nor should we let the EU pretend that all it is really asking for a minor jurisdiction in Northern Ireland. No one truly believes that the Backstop would not undermine the territorial integrity of the UK. The angry denials of Verhofstadt do not make an argument to the contrary. The paper-thin comparisons by Barnier with Hong Kong and the Isle of Man show how little the EU has cared to even think through the issue. Even getting Theresa May to agree in Article 1.2 of the Backstop Protocol that the “essential territorial integrity” of the United Kingdom is respected cannot change reality. The Backstop determines that Northern Ireland’s links to the rest of the UK are of secondary importance to its links with the rest of Ireland – unless, of course, Great Britain restores links with Northern Ireland by offering up even greater powers to the EU. The Backstop is the means not just to flout “sovereign equality and reciprocity” in the Northern Irish part of the UK, but to achieve this on a grander scale in the UK.
So the answer to Mr Greenslade is this. Brexit is not the same as World War I deserving of a Versailles Treaty. Brexit is not the same as World War II, so why is the UK less worthy of a return to full sovereignty than Germany was. Brexit is an ordinary act of self-determination which violates no international or European law. The problems it creates require a solution. However, there is no basis for demanding that, in negotiating those solutions, the UK is unworthy of the protections of the basic rules of international comity such as “sovereign equality” and “reciprocity”.
If the only way the EU will deal with the UK is on a basis that denies the UK such basic consideration, then it is the EU’s fault if there are no dealings between the EU and the UK.
(Titus is a young academic lawyer who wishes to remain anonymous.)