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The English patient…

“I love deadlines. I love the whooshing noise they make as they go by.” With this quote, Douglas Adams managed to capture the feeling that deadlines trigger among students, authors, professionals, academics and millions of others time and again.

Since last Wednesday, this quote could easily apply to Brexit as well. The UK’s withdrawal from the EU, originally planned for the March 29, had already been postponed once for the April 12 or the May 22. On Wednesday, EU leaders and Theresa May decided to again delay, this time for the end of October, the historic moment. The possibility of a further extension has not been ruled out.

The extension was deemed necessary given the catastrophic consequences that a disorderly Brexit could cause to the UK and the EU economies. UK Prime Minister Theresa May used to declare that “no deal is better than a bad deal.” Her constant application for delays of the fateful date, however, are a tacit admission that the UK is far from prepared to face the eventuality of no deal.

Almost three years after the referendum, the British public and the politicians and civil servants on both sides of the Channel that work on Brexit feel increasingly fatigued, if not exhausted, by it. The breathing space that the extension creates is more than welcome for all of them. Having said that, it is difficult to see how this extension could help change the fundamentals of the current gridlock.

Renegotiation of the Withdrawal Agreement: Arguably, the main reason why the Government is applying for extensions is that the Parliament has already rejected three times the Withdrawal Agreement that Theresa May has signed. The main stumbling block seems to be the infamous ‘backstop’. The EU has made clear that the Withdrawal Agreement including the backstop is not open for renegotiation. In addition, the new deadline for Brexit is set for a day before the new EU Commission will assume office. This means that the UK cannot even depend on the kindness of the new Commission president for a renegotiation that could lead to a deal closer to British demands.

Reaching a consensual way forward: UK politics is famously adversarial. The suggestion that the UK political elites will reach a consensus on the most controversial political issue seems unlikely to many political commentators. In that sense, it is hardly surprising that the Parliament in two series of indicative votes managed to reject all possible options for the future UK-EU relationship. The prospect of a no deal on March 29 and April 12, however, recently made the two main parties to sit around the same table to reach some kind of consensus. Following the latest six-month extension, though, Downing Street underlined that those painstaking negotiations will not continue just for the sake of making a consensus possible.

Second Referendum: Apart from the fact that there is no majority in the House of Commons in favour of a referendum, one has to point out that the organisation of such a democratic vote will take around six months, as the UCL Constitution Unit has explained.  Unless over the next 3-4 weeks, there is some kind of damascene conversion in the UK political personnel, a further Brexit referendum seems a very distant prospect.

Tis but a scratch Monty Python Holy Grail - YouTube

Tis but a scratch

Elections: It is clear that the Government does not enjoy a majority in the House of Commons over its flagship policy. During normal times, that would have led to parliamentary elections. However, the embattled Prime Minister cannot officially be challenged by her party until next December, two months after the expiry of the extension. Of course, elections can also take place if the government suffers a defeat in a vote of non-confidence. It is difficult to see, however, how Conservative MPs will vote against their government, having in mind that this would endanger their position in the House of Commons and could lead to a Jeremy Corbyn-led government. Alternatively, the PM herself, could pave the way to  elections if she resigns. However, the chances of Theresa May resigning -whose resilience is often likened to the one of Monty Python’s Black Knight- are rather minimal. But even if elections do take place, there is no guarantee that the views of the next Parliament will be fundamentally different to the current one given that the views of the electorate have not changed either.

All this leaves us with the real possibility that at the end of next October, the UK government will be applying for yet another extension. Unable to spell out the trade-offs and compromises that the UK’s withdrawal from the EU entails, the British political elites find themselves entrapped and frustrated by a project they have never seriously prepared for.

George go back to work and pretend he never quit - YouTube

George goes back to work

During the long hours of endless parliamentary debates, European summits, interviews, TV panels etc. there starts to be a suspicion that there is a growing number of people that would prefer the UK to “pull a George Constanza.” In an episode of US sitcom Seinfeld, one of the central characters - George Costanza - quits his job in a huff, then goes back into work the next day as if nothing had happened, something that the show’s co-creator, Larry David, himself had done while working at Saturday Night Live.

Alas, Brexit is not a TV series. It is a seismic political event that was triggered by one of the biggest democratic votes in the UK history. For better or for worse, the current political stasis can only be overcome if a consensus is reached over the most existential question that the UK has been facing throughout its history: its relationship with the continent. At this moment in time, another democratic vote (elections or referendum) seems to be a necessary, but not sufficient, condition in order for such a consensus to be built. To be continued in October…

This article was first published on MacroPolis on 12 April 2019.

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Echoes of the trenches … Kapoor’s work, titled A Brexit, A Broxit, We All Fall Down. Photograph: Anish Kapoor

Unlike breach, withdrawal from an international treaty is in principle a lawful act. Article 54 of the Vienna Convention on the Law of the Treaties allows a State to withdraw from a treaty either in conformity with the relevant provisions or by consent of all parties. In that sense, Article 50 TEU that provides for a Member State ‘to withdraw from the Union in accordance with its own constitutional requirements’ could be seen as a lex specialisto the general international law rule. Helfer has convincingly showed that clauses authorising denunciation and withdrawal from international conventions are far from uncommon.

Having said that, the EU is also a ‘community of unlimited duration, having its own institutions, its own personality, its own legal capacity [and] real powers stemming from a limitation of sovereignty or transferof powers from the [Member] States’. To the extent that Brexit marks the withdrawal of the UK from that community of law and the abrupt end to the symbiotic relationship of its legal order with the EU one, it is also a process that bears significant resemblance with secession. This blog post points to three distinct but interconnected aspects of the relationship between Brexit and secession.

Aspect 1: Article 50 TEU as a secession clause

Secession should not be understood as an absolute constitutional taboo. There are some constitutional orders that allow for a consensual and democratic process of partition. Take for example, Article 39 of the Ethiopian constitution that provides ‘every nation, nationality or people in Ethiopia’ with ‘the unrestricted right to self-determination up to secession’. Even the miniscule State of Liechtenstein allows individual municipalities to secede from the union according to Article 4 of its constitution. Similarly, the UK constitutional order allows the secession of one of its regions. Westminster has formally conceded that Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this. Mutatis mutandis Article 50 TEU allows a Member State to break away from this ‘community of unlimited duration’.

Having said that, there are significant differences when one compares Article 50 TEU with those constitutional clauses that allow for secession. First of all, the right contained in the EU treaty is characterised by unilateralism in that it ‘is totally independent of the will of the EU [and] the remaining Member States’ as Closa has pointed out. In contrast, the Canadian Supreme Court, for instance, in its famous Reference re Secession of Quebec, held that ‘a referendum unambiguously demonstrating the desire of a clear majority of Quebeckers to secede from Canada, would give rise to a reciprocal obligation of all parties of the Confederation to negotiate secession’. 

More importantly, it is unconditional in that ‘the exercise of the right to withdrawal is not subjected to any preliminary verification of conditions nor is it even conditional on the conclusion of the agreement foreseen in the provision’. Article 50(1) TEU allows a Member State ‘to withdraw from the Union in accordance with its own constitutional requirements’. Article 50(3) TEU foresees that the withdrawal can take place two years after the Member State has notified the EU of its intention to leave if no withdrawal agreement has been achieved by then.

This is in marked contrast with the majority of constitutional provisions that regulate secessions. They provide for conditions with regard to the organisation of a referendum that could potentially lead to secession and/or foresee an inter partes agreement as an important step to finalise the process. For instance, a referendum for the reunification of Ireland can only be organised if ‘it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland’. Equally, Article 113 of the Constitution of Saint Kitts and Nevis allows for the secession of Nevis Island following a process that is prescribed in a detailed manner in paragraph 2. In the case of Liechtenstein, secession can only be regulated by law or by treaty while the Ethiopian constitution allows for it ‘when the division of assets is effected in a manner prescribed by law.’

Aspect 2: The European Union (Withdrawal) Act 2018 as a ‘continuance clause’

Secessions mark the rupture with the old constitutional order and the creation of a new one. However, in order to achieve a smooth transition between the old order that is ‘dying’ to the new one that is ‘born’, certain constitutions opt for ‘continuance clauses’ that allow them to deal with the legal vacuums that could be created by the abrupt end of the old legal regime. For instance, Articles 4(1) of the Constitution of Jamaica and 188(1) of the Constitution of Cyprus provided for the continuation of the colonial laws until they were replaced by new laws adopted by the parliaments of the newly independent States. Douglas-Scott has noted the similarity of those clauses provided in constitutions of former colonies with the European Union (Withdrawal) Act 2018.

This legislative act received its royal assent on 26 June 2018. Its constitutional significance of that piece of legislation cannot be overstated. Section 1 repeals the European Communities Act 1972 which is considered one of the ‘constitutional statutes’ of the United Kingdom. Crucially, however, its purpose is to preserve and carry over into UK law the full body of EU law even after Brexit takes place as provided in sections 2, 3 and 4 of the Act. 

The reason why a legislative act that was initially called ‘the Great Repeal Act’ ‘copies and pastes’ huge swathes of EU law in the legal order of a future third country is the following. Given the symbiotic relationship of the two legal orders for more than 40 years, there are thousands of directly applicable and directly effective pieces of EU law that would cease to apply to the UK after Brexit takes place. This would mean that legal vacuums would be created in a number of areas such as environmental law, consumer protection, workers’ rights etc. In order to avoid such a situation, it was of utmost importance that the UK administration and Westminster would find a way to bridge those gaps without clogging up the parliamentary timetable for years to come. 

Aspect 3: Brexit triggering secession(s)

At the same time, Brexit might also become the catalyst for the secession of the two UK constituent nations that voted to remain: Scotland and Northern Ireland. With regard to the former, the competence of the Scottish legislature to organise an independence referendum without the consent of Westminster, is at least debateable. Notwithstanding, the process that led to the 2014 referendum shows that a secession of Scotland from the rest of the UK is possible to happen in a consensual and democratic fashion. 

On the other hand, the right of Northern Ireland to democratically secede from the UK is constitutionally guaranteed, as we already noted.The turbulent past of the region, however, means that any discussion on significant changes to its constitutional position and the status of its land border with the Republic of Ireland and its sea boundary with the rest of the UK is destined to be fraught with animosity. This is why the Northern Irish conundrum has become the equivalent of the Schleswig-Holstein question of the Brexit negotiations. 

Despite the intractability of the problem, the EU and the UK Government managed to provisionally agree on a solution to that Gordian knot in November 2018. The famous ’backstop option’ provided by the Protocol of Ireland/Northern Ireland of the draft UK Withdrawal Agreement, however, has been portrayed as a threat to the UK constitutional and territorial integrity. The leader of the DUP has gone as far as saying that it would lead to the de facto secession of the region from its metropolitan State and its annexation by the EU.  As I have discussed elsewhere, such claims are unfounded.

All the aforementioned point to the fact that the relationship between the withdrawal of the UK from the EU and the phenomenon of secession is complicated in that it is characterised by certain similar trends but also clear differences. More importantly, it shows how a process such as the withdrawal of a State from an international organisation,that takes place in the international sphere, influences the delicate balances of the UK constitution. As such, Brexit is a testament to the intertwined nature of the European constitutional landscape and the compound EU polity. 

The post was first published on the blog of the British Association of Comparative Law on 1 April 2019.

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Anna Crayfort, Motion into Being, New Museum, NYC.

It has been reported that the EU negotiators heard with utter disbelief the UK Attorney General arguing that the Protocol on Ireland/Northern Ireland of the UK Withdrawal Agreement posed a risk to the human rights of the people in that region. Geoffrey Cox expressed his concern that the infamous backstop could breach the right to vote in free elections under Article 3 of Protocol No 1 of the European Convention on Human Rights. 

The Protocol on Ireland/Northern Ireland contains swathes of EU law which will bind the UK should the backstop be triggered after the end of the transition period. Concerning Northern Ireland specifically, the region will have to comply with the EU legislation provided by Annex 5 not only as originally enacted but also as amended and replaced. The EU could continue legislating with regard to Northern Ireland and thus influencing the political and economic life of the region without its citizens being able to take part in and influence the EU institutions. According to Geoffrey Cox, such democratic deficit could be breaching the ECHR.

Tacitly, this argument is based on the decision of the European Court of Human Rights in Matthews v UK. In that case, the Strasbourg Court held that by failing to organise European Parliament elections in Gibraltar, the UK was in breach of the aforementioned ECHR provision. It observed that Matthews, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of MEPs. That was deemed problematic given that the European Parliament was considered to constitute part of the ‘legislature’ of territories such as Gibraltar. The measures adopted by the European legislator according to the Court, affect the local population in the same way as measures passed by the local legislative assemblies.

Given that the EU is not yet a signatory to the ECHR, one has to point out that it is mainly the UK that could be found liable for a breach of that right if a Matthews-style case concerning the backstop would reach the Strasbourg Court. From that point of view, the political strategy behind the argument of the UK Government is at least debatable. 

Putting that aside for a moment, the extent to which the lives of the local population would be affected by the decisions of the European Parliament during the backstop has to be questioned as well. It is true that the backstop encompasses elements of dynamic regulatory alignment but this happens mainly in the area of free movement of goods. In contrast, the EEA Agreement contains a much deeper degree of integration without the participation of the people of those countries in the European Parliament elections. Yet a Matthews-style case has not occurred so far. 

More importantly, as Marie Demetriou QC has explained in her oral evidence before the House of Lords Select Committee on the European Union,‘there is a quite fundamental difference between the two sets of circumstances. A key difference is that in the Matthews case it was […] open to the United Kingdom to remedy the situation so as to give the Gibraltar citizens a vote.’ In the situation of Northern Ireland, the UK will not be able to organise such elections after Brexit takes place.’

However, even if one considers that such democratic deficit is unacceptable, the proper response should entail the strengthening of the democratic rights of the local population rather than a right for the UK to unilaterally withdraw from backstop. In any case, according to the December 2017 Joint Report, ‘the people of Northern Ireland who are Irish citizens should continue to enjoy rights as EU citizens, including where they reside in Northern Ireland’. According to Articles 20 and 22 TFEU, those rights include their voting rights in European Parliamentary elections.

Interestingly, the CJEU case law does not prohibit an arrangement according to which the residents of Northern Ireland would continue to vote and stand in European Parliamentary elections, even after Brexit. In the CJEU sequel of Matthews, Spain v UK, the question arose of whether the UK could extend to residents of Gibraltar the rights to vote and stand as candidates in European Parliamentary elections. The CJEU noted that

the definition of persons entitled to vote and to stand as a candidate in the European Parliament elections falls within the competence of each Member State in compliance with [EU] law and that [the member states are not precluded] from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or EU citizens residents in their territory.

This would mean that EU law would not prohibit the Republic of Ireland from extending voting rights for European Parliamentary elections to the residents of Northern Ireland. At the end of the day, a significant number of these residents will continue to hold Irish passports, even after Brexit. Such an arrangement would respect the birthright of ‘all the people of Northern Ireland’ to ‘identify themselves and accept [that they are] Irish or British, or both’. 

It would be an interesting turn of events if the argument of Geoffrey Cox whose aim was to convince the EU to accept UK’s right to unilaterally withdraw from the backstop would lead to enhancing the exercise of the EU citizens’ rights of the local population.

 The post was first published on Eureka! on 1 April 2019.

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The decision of the Prime Minister Theresa May to stand down if the Parliament approves the Withdrawal Agreement has led a number of passionate proponents of Brexit including Boris Johnson to change their view of the deal. Still, the Democratic Unionist Party said on Wednesday that the Brexit deal and in particular the backstop posed ‘an unacceptable threat to the integrity of the United Kingdom.’ This is significant not only because the DUP is in a confidence and supply arrangement with the Government but also because a number of ardent Brexiteers such as Jacob Rees-Mogg have said that their stance towards the deal depends on DUP’s position. In light of another meaningful vote, one has to wonder whether the DUP’s fears concerning the threat of the backstop to the constitutional integrity of the UK are justified. 

The Backstop

In the Lancaster House speech, Theresa May declared that the aim of the UK is to be outside the single market and the customs union after Brexit. At the same time, her Government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border.As a result, the Brexit negotiations have been haunted by an almost unsolvable riddle. How could the UK and the EU keep a land border between a Member State and a third country open without jeopardising the integrity of the single market?

That riddle has two possible solutions. Either the UK as a whole has to opt for a much closer relationship with the EU than the one described in its red lines or it has to accept that Northern Ireland will have a closer relationship with the European Union than the rest of the country. 

Indeed, the latter was the initial EU proposal included in the draft Withdrawal Agreement. Of course, remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures is anathema to many, not least the DUP. This is why the UK insisted and the EU accepted to amend the backstop in the finalised version of the Withdrawal treaty and follow the first option. Barring a deal on free trade that secures a frictionless border, the UK as a wholewill remain in a "bare bones" customs union with the EU; while Northern Ireland will additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border. 

Territorial Differentiation

Despite this significant concession, the Prime Minister and the DUP continued expressing their concerns over the effect of the backstop on the ‘constitutional integrity’ of the UK. As I have suggested elsewhere, to argue for Northern Ireland -which already differentiates from the rest of the UK even in the area of protection of fundamental rights- that maintaining regulatory equivalence with the EU would threaten the UK’s constitutional integrity is a gross and needless overstatement.

At the end of the day, within the EU legal order there are a number of cases where different parts of a member state might have different relationships with the EU. The sovereignty of a Member State over these areas has never been challenged just because EU law is applied differently there.  More interestingly, the UK has accepted the principle of differentiated Brexit in the case of the UK Sovereign Base Areas in Cyprus that will remain within the EU customs territory even after Brexit takes place

The Principle of Consent

It has also been suggested that those differentiated arrangements that would apply to Northern Ireland if the backstop is triggered pose a threat to the ‘principle of consent’ and thus the constitutional status of the region as a constituent part of the UK. The proponents of that argument, -including Lord Trimble, one of the architects of the Good Friday Agreement- maintain that the alignment of Northern Ireland with the rules of the single market in the area of free movement of goods could equate to the region ending up ‘as part of an effective EU protectorate.’

Section 1 of the Northern Ireland Act 1998 embodies the ‘principle of consent’ by providing to ‘the people of Northern Ireland the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland.’ Both in McCord and in Miller, the UK courts have clarified that despite the fact that the majority in Northern Ireland opposed Brexit, the UK’s Withdrawal from the EU does not breach the ‘principle of consent’ as it does not change the constitutional status of the region. If that is the settled law, it is rather difficult to accept that it is the backstop –a policy that mitigates the risks that Brexit poses to the Good Friday Agreement and seems to enjoy majority support across the ethno-religious communities- that threatens the constitutional position of that UK constituent nation. In fact, Article 1 of the Protocol on Ireland/Northern Ireland emphasises that the backstop is explicitly designed in light of the ‘principle of consent’ and does not alter the constitutional status of Northern Ireland.

The Right of Self-Determination

The right of self-determination is the only human right that appears in both Covenants of the International Bill of Human Rights. It has an external dimension that can lead to secession and independence especially with regard to non-self-governing territories. However, as the International Court of Justice has noted, it is not limited to a colonial context.  ‘It has an erga omnes character.’ However, in the context of democratic societies, the right is ‘normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state.’

The Good Friday Agreement encompasses both dimensions of the right of self-determination. As already mentioned, Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this. At the same time this unique constitutional status is ‘accompanied by unusual multi-level governance: regional, north/south and British/Irish’. In that sense, the distinct arrangements that the backstop introduces could be seen as an extension of the internal constitutional differentiation that Northern Ireland already enjoys.  

The DUP might feel comfortable with rejecting the differentiation that the backstop introduces. However, there is a significant risk in such uber-unionist position. Restricting the internal dimension of the right of self-determination might lead the people of Northern Ireland to start seriously considering the prospect of external determination ie. secession. It is in such situation that the threat to the constitutional and territorial integrity of the ‘precious Union’ would become really tangible and the stance of DUP could ironically contribute to it.

The post was first published on Verfassungblog on 29 March 2019.

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It is often said that the Irish border is the only land border that the United Kingdom will share with the EU after Brexit takes place.

This is correct.

However, it is not the only land border/boundary that an EU Member State will have with an area that has a constitutional relationship with the UK. Indeed, Gibraltar and the UK Sovereign Base Areas in Cyprus will share a territorial border/boundary with Spain and the Republic of Cyprus respectively. This is something that the Withdrawal Agreement has recognised. Apart from the Protocol on Ireland/Northern Ireland that contains the infamous backstop, there are two other protocols on SBAs and Gibraltar.

Together with my colleague Nasia Hadjigeorgiou, we have authored a brief piece analysing the foundational documents that led to the establishment of the SBAs; their status in EU law after the Republic of Cyprus acceded to the EU; and finally how the UK Withdrawal Agreement accommodates them post-Brexit.

You can download it from here.

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Last week, professor JHH Weiler published a blog with which he proposes ‘A Frontstop Approach to the Backstop Conundrum’. His suggestion entails ‘several EU Frontstop Centres in Great Britain and the North, (so no difference between the two) where all goods destined for Ireland via Northern Ireland would be processed, including payment of duties and the like, before they actually left British territory.’ Interestingly, 2 days later, the Northern Ireland born Labour MP Kate Hoey, a passionate proponent of Brexit, referred to Weiler’s suggestion. In the course of an oral evidence session of the former Brexit Secretary Dominic Raab, she endorsed it as a possible solution to the Irish border conundrum.

Professor Weiler’s nuanced approach acknowledges potential objections to his suggestion. In particular, he refers to smuggling and the issue concerning ‘goods imported from third countries and then integrated to into products produced in the UK’ as problematic aspects that would need further consideration. In my response to his thought-provoking piece, I would like to refer to two further issues that a frontstop approach cannot really solve. In that sense, I will be arguing that a frontstop approach cannot replace the backstop. But it could potentially support it.

Why would a frontstop not work?

The first issue relates to geography. It is worth noting that all the examples of the frontstop approach to which professor Weiler refers (e.g. travelling from Ireland or Canada or the Carribbean to the United States) do not belong to the same geographical and economic unit in the way that there is an all-Ireland economy. To put it simply. Let’s take as an example the village of Pettigo. It is a small village that is bisected by the Termon River, which is part of the border between the Republic of Ireland and Northern Ireland. In other words, one part of the village is in the Republic and the other in the UK. Now let’s imagine that a trader wants to cross some goods from one side to the village to the other. What at the moment is a five minutes job, in the future, with a frontstop approach this becomes a very time-consuming exercise causing problems to the everyday life of the people, raising the costs for small businesses and creating frictions to the all-Ireland the economy. Virtually all the companies that are established in the border regions of the island would face similar issues. 

One might reasonably argue, however, that such frictions are a small price to pay in order to preserve the integrity of the Good Friday Agreement. Which brings me to my second objection. The top police officer of Northern Ireland has warned that violent dissident republicans would see as ‘fair game’ for attack this kind of posts and installations created as a result of a ‘hard Brexit’. In an outstanding piece, Dearbhail McDonald reminded us‘ that the first shots of the Troubles were fired at customs posts such as Newry, requiring the RUC, and later the British army to protect officials, civilians and military alike.’ This comes on top of the fact that -at least during the Troubles- there was a certain overlap between paramilitary circles and those in charge of cross-border smuggling.

Of course, a frontstop approach does not require customs posts on the border per se. But would the paramilitaries reconcile with the fact that those physical installations ‘where all goods destined for Ireland via Northern Ireland would be processed’ are not on the actual border but somewhere in the hinterland? I remain doubtful.

Similar criticisms could also be mounted against solutions that are solely based on technology like the one leaked to the British press on 5 February. First of all, such solutions sit rather uncomfortably with the commitment that the Prime Minister repeated this week in Belfast. According to it, the UK Government has ruled out a ‘hard border’ ‘including any physical infrastructure or related checks and controls’. Secondly, such arrangements ‘invite a regulatory and security mission creep that will disrupt lives and livelihoods and [may] prove tempting’ for the people that want to take advantage of the frictions that Brexit imposes to destabilize the fragile peace process.

Solving the conundrum

The British prime Minister, Theresa May has insisted that the result of the Brexit referendum ‘was a vote to take control of our borders [...].’ In order to do that, the UK will be leaving both the single market and the customs union. At the same time, her government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border. 

After two years of negotiations, the UK government has to reconcile itself with a rather uncomfortable truth. Unless the UK changes its red lines, the Irish border conundrum can only be solved if Northern Ireland enjoys a differentiated and more integrated relationship with the EU than the rest of the UK. That was part of the formula that the famous paragraph 49 of the December Joint Report introduced to ‘square the circle’. Indeed, in the first draft of the Withdrawal Agreement, the EU proposed that Northern Ireland would remain part of the EU customs territory even after Brexit.

In an Independent Opinion commissioned by the GUE/NGL parliamentary group of the European Parliament, I have argued for an enhanced version of that backstop. According to it, the UK Withdrawal Agreement should have recognised the unique circumstances of Northern Ireland by providing for a special designated status. Such a status should be understood as a mutually agreed arrangement that respects and protects the unique constitutional status of the region as provided by all three Strands of the Good Friday Agreement. In particular, the special designated status should respect the principle of consent and the right of self-determination by providing for a legal route for the reintegration of Northern Ireland into the EU. It should also protect the all-island economy by allowing for the participation of the region in the single market and the EU Customs Union. This should not happen at the expense of weakening ‘East-West’ institutions, however (i.e. between the Republic of Ireland and the UK). In fact, their strengthening is necessary in order to manage the frictions that Northern Ireland’s remaining in the single market and the EU Customs Union would cause to its economic relationship with the rest of the UK. 

I do recognize, however, that the notion of Northern Ireland remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures is anathema to many, not least the DUP. This is why the backstop arrangement has been amended significantly and appears differently in the finalised version of the withdrawal treaty. Barring a deal on free trade that secures a frictionless border, the UK as a whole will remain in a "bare bones" customs union with the EU; while Northern Ireland will additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border.

Despite those significant changes, the Prime Minister and the DUP continued expressing their concerns over the effect of the backstop on the ‘constitutional integrity’ of the UK. As I have suggested elsewhere, to argue for Northern Ireland -which already differentiates from the rest of the UK even in the area of protection of fundamental rights- that maintaining regulatory equivalence with the EU would threaten the UK’s constitutional integrity is a gross and needless overstatement.

Within the Union legal order there are a number of cases where different parts of a member state might have different relationships with the EU. The sovereignty of a Member State over these areas has never been challenged just because EU law is applied differently there.  More interestingly, the UK has accepted the principle of differentiated Brexit in the case of the UK Sovereign Base Areas in Cyprus. In order to honour their international legal obligations under the Treaty of Establishment, the UK in a Special Protocol to the Withdrawal Agreement has accepted that those areas will remain within the EU customs territory even after Brexit takes place. This is not to suggest that the historical and political contexts of the UK Sovereign Base Areas bear any similarity to those of Northern Ireland. However, a similar argument could be constructed mutatis mutandis with regard to a differentiated arrangement for Northern Ireland as a protection to the Good Friday Agreement in order to ‘detoxify’ the backstop.

Does all that mean that the ‘backstop solution’ is completely unproblematic? Not quite. To the extent that in the future the UK will decide to distance itself from the regulatory framework of the EU, a differentiated Brexit could create significant tensions to the economic integration of Northern Ireland with the rest of the UK.  And this is where the frontstop approach could prove particularly helpful. In the context of the process of the ‘de-dramatisation’ of the protocol, a frontstop approach could help minimize the frictions on the crossing of goods from the rest of the UK to Northern Ireland and thus respond to some of the worries of the unionist community.

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Short break from Brexit… Photo at the bottom courtesy of PPF

On Thursday, the Greek Parliament is expected to ratify the Prespa Agreement with which Greece and the former Yugoslav Republic of Macedonia (fYRoM) aim at resolving the dispute over the latter’s name.

So, how did we get here?

The background

The Republic of Macedonia declared its independence in 1991. However, it was admitted in the United Nations in 1993 with a provisional reference: Former Yugoslav Republic of Macedonia. This was because neighbouring Greece demanded the change of the constitutional name of the newly independent republic. The policy of Greece was dictated by the fear that the constitutional name of the new republic pointed to an irredentist/territorial claim over the Greek geographical department with the same name (Macedonia).

At the beginning of the 1990s, Greece imposed a 19-month trade embargo against fYRoM, which was only lifted when it changed its first flag. The two neighbouring states eventually formalised their bilateral relations in an Interim Accord in September 1995. They continued negotiating on finding a 'compound' name with a geographical qualifier that could be used for all purposes (erga omnes). Meanwhile, the newly founded state joined a number of international organisations as fYRoM. In 2008, under the leadership of the then Prime Minister Kostas Karamanlis, Greece blocked fYRoM's bid for NATO membership. In 2011, the ICJ found that this veto was a violation of the Interim Accord raising serious questions over the overall negotiation strategy of Greece.

The agreement

The agreement that was signed last June by the two Prime Ministers aims at resolving this 30-year-old dispute. The whole agreement has been built around the fact that the Republic of Macedonia/fYRoM should be renamed as Republic of North Macedonia according to Article 1 of the agreement. This new name would not just be used in the international arena. According to the Agreement, fYRoM was obliged to amend its own constitution.

On 30 September 2018, 91 percent of voters voted in favour of the Prespa Agreement and the relevant constitutional amendments in a non-binding referendum. However, the 37 percent turnout was lower than the 50 percent threshold and the referendum was not carried. Notwithstanding, the following month the Parliament of fYRoM approved the constitutional reform with the required 2/3s majority.

Europeanisation

One might wonder, however, why a state that has been recognised as Republic of Macedonia by more than 130  countries agrees to amend its constitutional name. The main “carrot” for fYRoM can be found in the second article of the Agreement. According to this, Greece will not oppose the accession of the Republic of North Macedonia to international organisations such as the EU and NATO if the application is made under the new name.

Some commentators have argued that such provision curtails the right of Greece to veto the accession of the Republic of North Macedonia to international organisations and as such the constitutional autonomy of the country. They have failed to mention, however, that even without the Prespa Agreement, Greece has agreed – according to Article 11 of the Interim Accord - not to veto the accession of its neighbouring state to multilateral organisations if it applies as fYRoM. As already mentioned, the ICJ has found Greece liable of breaching that obligation because of the veto it exercised at the NATO summit in Bucharest in 2008. So, the Prespa Agreement markedly improves the content of the obligation that the country has undertaken since 1995.

More importantly, such provisions are quite common in those diplomatic processes that use Europeanisation as a lever to resolve a border conflict. The prospect of the accession of fYRoM to the EU plays the role of the “carrot” in order for the newly-founded state to agree to the amendment of its constitutional name. Similar arrangements have been used in a number of processes. For instance, the Brussels Agreement, that provided for the normalization of the relations between Serbia and Kosovo contains a similar obligation for both those states.

The reactions

Most of the objections, however, that the Greek political elites who oppose the agreement have expressed concern the following: According to the Agreement, the citizens of the neighbouring country will be called Macedonians/citizens of the Republic of North Macedonia and their language will be recognised as Macedonian.

With regard to the citizenship, it is worth pointing out that this dual formulation takes into account the sensitivities of the multinational nature of the neighbouring state. It creates the space for the citizens of both Macedonian and Albanian ethnic origins to feel that their right to self-determination is respected. At the same time, the Agreement does not create a monopoly regarding the use of the terms ‘Macedonia’ or ‘Macedonian’. Article 7 recognises the historical and political reality that those terms are used in both sides of the border and they refer to a different historical context and cultural heritage. In that way, the agreement deconstructs the implicit irredentist claims that have been linked with the phenomenon of antiquisation in North Macedonia.

Concerning the language, it is worth pointing out that the agreement clarifies that it belongs to the family of the Slavic languages and draws again a very clear distinction with ancient Greek civilisation and the historical and cultural context of the region on the other side of the border. Given that the vast majority of the inhabitants of Greek Macedonia speak Greek, there is not much scope for confusion, misunderstandings or even nationalist propaganda and ethnic outbidding.

Dealing with nationalism

Most importantly, however, both countries undertake in Articles 3 and 4 the obligations to respect the common border, the territorial integrity and political independence of each other and not to endorse any irredentist statements and claims. Although, such undertakings are necessary (but not sufficient) conditions for any successful inter-state relation, in the context of a dispute that has been fuelled by the fear and suspicion of irredentism, they are welcome.

Against this background, the last objection to which I will refer, might sound peculiar to the people that are not accustomed to the Greek political vernacular. According to this objection, it is the Prespa Agreement and not the preservation of an unresolved international dispute that fuels the exasperation of the nationalist feelings in Greece. According to the proponents of this position, it is the aforementioned ‘problematic’ provisions of the agreement that made thousands of Greeks to protest against the settlement.

Indeed, one might wonder why the agreement is meeting such a fierce opposition from the public and the majority of Greek political parties when it actually delivers on the declared objective of all the Greek governments for the last 20 years for a 'compound' name with a geographical qualifier. Apart from political opportunism, an additional factor is the following: Despite the official position of all the Greek governments, the Greek political elites have not really explained and thus prepared the public for the compromises that a possible solution would entail.

Maximalist positions for the renaming of the neighbouring state without the use of the term ‘Macedonia’ has always been the equivalent of a unicorn eating pie in the sky. In fact, by accepting fYrOM as a provisional reference Greece has tacitly admitted that there was a federated entity in Yugoslavia called Macedonia. And it is rather unsurprising that the citizens of that entity would expect their country to keep the name it has been using for more than 50 years when it became independent.

Is the agreement perfect? Not really. It is a compromise that entails bitter pills for both sides. fYRoM had to change its constitutional name and Greece has to accept that north of its border there is a country whose citizens (at least some of them) consider themselves Macedonian and they speak Macedonian as their language. Having said that, the agreement marks a significant success because it does resolve the name dispute and allows North Macedonia to consolidate its fragile Statehood within NATO and the EU. For a region like the Balkans this is no small feat.

This article was first published on MacroPolis on 22 January 2019.

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Breakin' Up Is Hard To Do - Neil Sedaka - YouTube

On Sunday 25th November 2018, 885 days after the Brexit referendum took place, 606 days after the UK triggered Article 50 TEU and 124 before the UK officially withdraws from the EU, the UK Prime Minister Theresa May travelled to Brussels to take part in the meeting of the European Council, which officially endorsed the text of the Withdrawal Agreement. This legally binding international agreement together with the non-legally binding political declaration on the future UK-EU relationship are the by-products of pain-staking negotiations that took place over the last 18 months.

In its 585 pages, the Agreement aims at tying up the loose ends created by the UK’s withdrawal from the EU such as the ‘divorce bill’, the rights of the EU citizens residing in the UK and UK citizens residing in one of the other 27 Member States and the transitional period. It is hardly surprising that the negotiations have proved difficult if one takes into account that secessions, even when they are a result of a consensual and democratic process are never easy. The disentanglement of highly integrated legal orders is a very sophisticated and time-consuming exercise. Of course the EU is not a sovereign state. However, the EU and the UK legal orders have been in a symbiotic relationship for more than four decades. 

The thorniest issue that has haunted the process from the beginning has related to the status of the Irish Border post-Brexit.  The British Prime Minister Theresa May has insisted that the result of the Brexit referendum ‘was a vote to take control of our borders’. In order to do that, the UK will be leaving both the EU single market and the customs union. At the same time, May’s government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border. So, the UK and the EU have been facing an almost unsolvable riddle. How can they keep open a land border between an EU member state and a country that is outside the single market and the customs union?

In December of 2017, the UK and EU duly reached a political agreement that introduced the "backstop". This envisaged that if the future UK-EU trade deal did not provide for a frictionless Irish border, either Northern Ireland or the UK as a whole would remain aligned to the single market and the customs union after Brexit took place. Indeed, in the first draft of the Withdrawal Agreement, the EU proposed that Northern Ireland would remain part of the EU customs territory even after Brexit.

The notion of Northern Ireland remaining in the EU customs territory and in parts of the single market while the rest of the UK was out of those structures was outrageous to many, not least the DUP. This is why the backstop arrangement has been amended significantly and appears differently in the finalised version of the withdrawal treaty. Barring a deal on free trade, the UK as a whole will remain in a "bare bones" customs union with the EU; while Northern Ireland will additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border. 

Despite the shift from the original plan, this has attracted such significant opposition that the Government does not seem able to secure a majority in the House of Commons that would approve the Withdrawal Agreement and Theresa May fights for her political survival. As a result, the Prime Minister had to postpone the vote on the agreement that was planned to take place on Tuesday 11 December. Instead, she embarked on a mini tour of European capitals with the aim to convince her counter-parts to offer the UK extra assurances that the ‘backstop’ will never be used or alternatively, if it is used this would be for a defined short period.

Despite the doubts that exist concerning the success of her last minute efforts to secure concessions from the EU, one has to point out that on 29 March 2019, the UK will be withdrawing from the EU by automatic operation of law. This means that there is very little time left for the UK and the EU to agree on an orderly Brexit. A failure to achieve an agreement will mean that the UK will leave the EU without a deal. Such ‘no-deal’ scenario would have significant political, economic, trade and legal costs. More importantly, it would exacerbate the deep divisions of the UK public with regard to the age-old existential question that relates to the relationship between the UK and the rest of Europe. If the current political and constitutional crisis is a preview of what is to come, there is the real danger that the UK will become the Sickman of Europe

This article was first published on MacroPolis on 12 December 2018.

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Kevin Cummins/Getty Images

In the 1975 European Communities membership referendum, it was England that returned the biggest majority for the UK joining the common market: 69%. Northern Ireland's 52% support was the smallest. Next came Scotland on 58%, though it included the only two regions in the UK that voted to stay out -- the Shetland Islands and the Western Isles.

In the Brexit referendum of 2016, the political dynamics had reversed. Now voters in England and Wales voted to leave the EU, while Scotland and Northern Ireland voted to remain. This difference has set the tone for much of what has happened since. As Theresa May returns from Brussels to try and sell her withdrawal deal to parliament, the Union is straining like never before.

After the 2016 referendum came the inevitable debate about whether Scotland and Northern Ireland could avoid leaving the single market against their will. Six months after the vote, the Scottish government published a blueprint for achieving this by Scotland becoming a member of the European Economic Area after the UK leaves the EU. The UK government refused to even entertain the idea of a differentiated Scottish Brexit.

Northern Ireland is being treated very differently. May made clear at her Lancaster House speech in early 2017 that the UK government aimed to leave the single market and customs union without returning a hard border to Ireland -- after all, the Good Friday Agreement constitutionally guaranteed Northern Ireland's right to remain in the EU.

In December of the same year, the UK and EU duly reached a political agreement that introduced the "backstop". This envisaged that if the UK-EU trade deal did not provide for a frictionless Irish border, either Northern Ireland or the UK as a whole would remain aligned to the single market and the customs union after Brexit took place.

The new backstop

The notion of Northern Ireland remaining in parts of the single market was outrageous to many, not least the DUP. The backstop now appears somewhat differently in the "Northern Ireland protocol" codified in the draft withdrawal treaty. Barring a deal on free trade, the UK as a whole will remain in a "bare bones" customs union with the EU; while Northern Ireland will additionally remain aligned to the single market rules necessary to maintain free movement of goods across the Irish border.

Despite the shift from the original plan, this has attracted significant opposition. Prominent Brexiteers, Dominic Raab and Boris Johnson, the Scottish Conservatives and most importantly the DUP argue that it threatens the "constitutional integrity" of the UK and the Union itself.

This is a gross and needless overstatement. Northern Ireland already significantly differentiates from the rest of the UK, even in the area of protection of fundamental rights. For example, same-sex marriages are not recognised there. The laws around abortion are much more restrictive (though may need reform after the UK supreme court said in a recent judgment earlier this year that they were incompatible with human rights law).

There are a number of cases where different parts of a member state have different relationships with the EU -- Greenland is different from the rest of Denmark, for example. The UK already makes extensive use of this flexibility. Gibraltar, for instance, is outside the customs union and EU VAT area and is not part of the Common Agricultural Policy.

The sovereignty of a member state over a region has never been challenged just because EU law is applied differently there. Neither is it unique for a region to be more aligned to the EU than the rest of its metropolitan state. The Austrian territories of Jungholz and Mittelberg have been part of the EU customs territory since it was established -- decades before Austria joined the EU in 1995. Meanwhile, in a special protocol of the UK withdrawal agreement, it has been agreed that another region with a constitutional relationship with the UK will remain in the EU customs territory -- the UK Sovereign Base Areas in Cyprus.

The need for change

Notwithstanding the questionable legal validity of these arguments about the threat that the "Northern Ireland protocol" poses to the constitutional integrity of the UK, there remain serious questions about the current Union. The SNP certainly believes that a hard Brexit will boost the case for Scottish independence, while also making much of the different treatment of Northern Ireland.

Yet the UK constitution is sufficiently flexible that it could accommodate the nations' different aspirations concerning Europe. Scotland could be allowed to tailor its own migration policy, for instance, as Quebec does in Canada. The UK government's unwillingness to consider such possibilities flies in the face of an important lesson from the 2014 Scottish independence referendum: promising more devolved powers to Scotland near the end of the campaign helped to deliver the decision to stay in the Union.

The reality is that Brexit is an unprecedented challenge to the idiosyncratic UK constitution. Scotland's inability to influence the withdrawal agreement has revealed important weaknesses around how the nations relate to the centre. The mechanisms for the intergovernmental cooperation between London and Belfast, Cardiff and Edinburgh should be strengthened to take into account the aspirations and positions of all UK constituent nations.

Brexit also needs to urgently respect the legislative autonomy of the devolved regions and avoid what has been called a "Westminster power grab". Finally, we need to dispense with any notion that Northern Ireland remaining in parts of the EU single market is a threat to its place in the Union.

There is an inherent contradiction in the uber-unionist position as expressed by the likes of the DUP and certain members of the Conservative Party. Unless they actively respect the differentiation that devolution introduced, the nations might conclude that secession is the most appropriate way to exercise their right for self-determination.

As Prince Tancredi Falconeri said in the classic 1950s novel The Leopard: "Everything must change so that everything can stay the same."

This article was first published in The Conversation on 28 November 2018.

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British Prime Minister Theresa May has insisted that the result of the Brexit referendum “was a vote to take control of our borders. In order to do that, the UK will be leaving both the EU single market and the customs union. At the same time, May’s government has committed to protecting the Good Friday Agreement by not accepting any physical infrastructure at the Irish land border. So, the UK and the EU have been facing an almost unsolvable riddle. How can they keep open a land border between an EU member state and a country that is outside the single market and the customs union?

The text of the political agreement reached between the UK and EU in December 2017 included a formula to square the circle. It stated that the aim of future negotiations would be to address the challenge of the Irish border through the overall EU-UK relationship. If the final withdrawal agreement doesn’t provide a frictionless invisible border, then “specific solutions” will apply to Northern Ireland. But if the UK and the EU cannot agree on those specific solutions, then Northern Ireland or the UK as a whole will remain aligned to the single market and the customs union. 

Since then, the UK and EU negotiators have struggled to find a legally operative text that would both fulfil the commitment to keep the land border open and respect the political sensitivities of all the interested parties. Below are the proposals on the table. 

The EU backstop

The first attempt to legally codify the December 2017 commitment came in the Draft Withdrawal Treaty published by the European Union in February 2018. This proposed setting up a common regulatory area comprising the European Union and Northern Ireland. The region would therefore remain in the EU customs territory. May vehemently rejected the plan noting that “no UK prime minister could agree to it”.

The main problem with the suggested arrangement is that it will create a customs border in the Irish Sea between Northern Ireland and the rest of the UK. This is why EU negotiator Michel Barnier tried to de-dramatise the proposed solution by insisting that the whole arrangement creates neither a land nor a sea border. It is merely “a set of technical checks and controls”.

Arlene Foster, leader of Northern Ireland’s Democratic Unionist Party, insists that “the entirety of the UK should be leaving the single market and the customs union”. She has threatened to withdraw the parliamentary support on which May’s government relies if Northern Ireland is treated differently to the UK after Brexit

The UK backstop

In June 2017, the UK government published its own counter-proposal for a backstop arrangement. The biggest difference between the two proposals is that the UK’s applies to the whole country and not just to Northern Ireland. The entire territory of the UK and the Channel Islands would remain part of the customs territory of the European Union, even after the end of the transition period in December 2020.

However, it is not entirely clear whether under this solution there would also be regulatory alignment between the UK and the EU, keeping the UK effectively within a significant part of the single market. Be that as it may, such an arrangement respects the DUP’s red lines but angers Eurosceptic MPs who do not welcome the prospect of the UK being aligned with EU rules in the long term. This group could vote against such a deal when it reaches parliament. 

A backstop to a backstop

More problematic, from an EU point of view, is that May insists that the backstop should be a “temporary solution” because the UK does not want to be “stuck permanently in single customs territory, unable to do meaningful trade deals”. Given that the UK insists on legally entrenching the deadline of the backstop option, the EU is asking for a “backstop to a backstop” specific to Northern Ireland that will not be time-limited.

Endgame

The negotiations for the withdrawal of the UK from the EU are reaching their final stages and it is difficult to see how a solution to the Irish border conundrum can be found without some compromise. The solemn commitment that the UK has undertaken to protect the Good Friday Agreement and to keep the Irish land border open raises a significant dilemma. Either it has to opt for a much closer relationship with the EU than the one described in its red lines or it has to accept some differentiation for Northern Ireland.

This article was first published in The Conversation on 17 October 2018.

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