Brexit: the consequences of haste

Keeping up with the details of Brexit is difficult and the issues (some of them) are complex, so it is easy to make mistakes. One should not, therefore, mock the afflicted (too much), especially the Financial Times which must hold the world record for ponderous statements on the European Union.

However, it is difficult to suppress a smile at the latest FT offering which bears the headline: “EU asks partners to treat UK as bloc member after Brexit”.

According to its Brussels hack, Jim Brunsden, the EU is about to contact its partners around the world this week “with an unusual request”, paraphrased as: “Could you temporarily pretend that Britain is still in the bloc, even though it will have left?”

Relying as they so often do on a verbal briefing without doing the background homework, Brunsden earnestly tells us that EU officials have “told the Financial Times (journo-speak for a phone call) that the European Commission” would send out the diplomatic note to the more than 160 countries with which it has international agreements, “as it seeks to help the UK navigate the unique circumstances of its post-Brexit transition period”.

This, apparently, is via the diplomatic device known as a note verbal which, we are informed, is published on the EU’s website. This, supposedly “notifies governments around the world that Brussels’ intention is that ‘the United Kingdom is treated as a Member State of the Union and of Euratom for the purposes of these international agreements’ during the transition”.

And indeed the note is on the Europa website – not that the FT provides a link, but the intriguing thing is the date. The text was actually published on 5 December 2018, together with the template for letters to be sent with it, to all the relevant third countries.

The date of this initiative anticipated the UK’s original departure from the EU, scheduled for 29 March 2019, so it would be more accurate to say that the EU is finally activating its plans that have been dormant for just over a year.

In so doing, the commission is giving the UK a respite for eleven months before 977 bilateral agreements the EU has made with the rest of the world cease to apply to the UK. That will then leave us with the onerous task of reforging those agreements which still have relevance (possibly around 600).

Says Jim Brunsden, “the move by Brussels underlines how Britain and the EU will be in uncharted territory after Brexit day, navigating an 11-month period in which the UK will still be covered by EU law, inside the bloc’s single market and customs union, but outside the EU”.

Putting a pessimistic spin on the arrangement, Brunsden wants us to take home the view that this puts us in an “ambiguous” situation. Under the terms of its Brexit deal, he says, the UK will still need to comply with all the obligations placed on the EU by such agreements until the transition period ends.

“But”, he adds, “whether it continues to get the benefits of the agreements is ultimately up to the partner countries”. And indeed that is the case, but at least he has the grace to admit that, “EU and UK officials say they are not expecting problems”.

Nevertheless, he covers his back by adding that “there is always the possibility that the situation is tested in court”, although one EU official has told him that the 11-month window was short enough that there was little incentive for other countries to make difficulties.

In truth, this is the least of our concerns. Way back in November 2015, I wrote a detailed piece pointing out that the UK could rely on the principles set out in the Vienna Convention on Succession of States in respect of Treaties.

Although the UK has not acceded to this Convention, the principles have been largely accepted as customary law, whereby if parties to treaties separate but maintain the conditions to which they were originally bound, then they can rely on the principle of “continuity of treaties”, where the treaties continues to apply even after the separation.

This was tested after the “velvet divorce” between the Czech Republic and Slovakia, which pre-dated the Convention. The problems created were not dissimilar to that which arises with the UK’s transition period. But, in that case, it was resolved when on 19 January 1993 the two republics were admitted to the United Nations as new and separate states. In respect of international treaties, they simply agreed to honour the treaty obligations of Czechoslovakia.

A much more intractable problem, however, arises when the transition period ends, and especially if it comes to an abrupt halt at the end of December this year.

The point here is that, during the transition period, we will have stayed aligned with the EU and, therefore, the principle of continuity is tenable. Had we rejoined Efta and stayed with the EEA, we could also have argued for continuity. But, with the general refusal of the UK government to commit to regulatory alignment with the EU, this principle is unlikely to apply after 31 December 2020.

Towards the end of his report, Brunsden does refer to this problem, reminding us that Michel Barnier recently warned that the bigger challenge for the UK will be to use the transition to negotiate its own deals with countries around the world.

It is the FT that has Brussels estimating that there are about 600 agreements that Britain will want to replace, noting that the EU has 49 accords with Switzerland alone, while there are 44 with the US and 38 with Norway. “Mechanically, legally speaking, they leave all these”, Barnier says. “They will have to rebuild everything”.

This, I reported at the time, but I had also referred to the problem at the beginning of this month, noting that very little progress had been made on reforging the severed links and, for an unknown number of them, matters would need to be settled with the EU before any progress could be made.

Previously, I’d given this problem a good airing in February last year, whence I also referred to a report produced for the European Parliament in March 2018. Even then it was warning that the continued participation in EU deals was “not automatic but subject to negotiation”. With some prescience, the report stated that the UK’s relationships with third countries could continue as normal during the transition period.

It did state, though, that “it would be preferable for the EU and the UK to speak to the third countries concerned, and to reach an agreement (which could be done by simple exchange of letters) that in the course of the transition all parties continue to apply the trade agreements as before”.

This problem, therefore, has been a long time coming, and no one can say that there haven’t been any warnings. From two years ago, right up to press, the EU has been making it clear that the bottom drops out of the treaty game once the transition period ends.

It stretches belief to suggest that UK negotiators will be able to seek replacements for some 600-plus deals within the next eleven months. It would be hard in the period even just to define the scale of the problem and set out a work programme to deal with it.

Prime minister Johnson, may therefore, think he has a handle on things, and we cannot expect any attenuation of his crowing about getting Brexit “done” (given that he even cares, one way or the other). Even now, he is burbling about Britain becoming a “global, trail-blazing country after Brexit”.

But it looks more and more as if the only thing that will be “done” is the creation of a shambles in place of our current trade relations with the rest of the world.

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