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Respecting the Law

by Frank Schnittger Thu Oct 1st, 2020 at 12:26:54 PM EST

Two things puzzle me: Firstly, how can the UK government presume to rely on the benefits of WTO membership when it is itself in flagrant breach of international law in relation to the Withdrawal Agreement which was ratified only this year following a general election won on recommending its terms?

And secondly, why is the EU's only response to date been to threaten legal action against the UK before the ECJ when one of the stated aims of Brexit is to break free of the jurisdiction of the ECJ. Why would the UK respect the judgement of a court it has explicitly sought to delegitimize?

Allowing states to flout the law has real consequences for real people, as the people of Northern Ireland can testify only too vividly. Nobody has ever been prosecuted for the wilful gunning down of 26 unarmed civilians, 14 of whom died, in Derry in 1972. Now the Northern Ireland Prosecution Service has announced that only one soldier, named soldier"F" at the enquiry, is to be prosecuted, almost 50 years after the fact. Hence my draft letter to the editor below:

Draft letter to the Editor

Newton Emerson writes that the decision not to prosecute the perpetrators of Bloody Sunday (with the sole exception of soldier "F") will satisfy the demands of neither truth nor justice.  (Bloody Sunday decision on soldiers shows limits of `truth or justice' model, Opinion, 1st. September)

The tribunal of enquiry would not have been necessary had the police and prosecutorial services been doing their jobs in the first place, and now they can cover up their malfeasance because all evidence submitted to the inquiry is inadmissible in a criminal trial,  making prosecutions effectively impossible.

The ongoing UK government strategy of procrastination and delay has had its desired effect. So much time has passed, so many witnesses have died, and so many recollections have dimmed that prosecutions would be pointless. Instead of holding individuals accountable, the UK government as a whole must shoulder the blame. Not that it shows much sign of caring.

For the bereaved, the healing must come in some other way. Perhaps the relative peace since the signing of the Good Friday Agreement has provided some solace. But now the willingness of the UK government to break international law puts its commitment to even that agreement into question.

The biggest issue isn't even justice for the bereaved but making sure lessoned are learned so that it can never happen again. The fact that most of the perpetrators got off scot-free with official connivance poisons our politics to this day. The implication is that you can get away with murder provided you are powerful enough or can rely on the support of the establishment. Tolerating crimes makes us all guilty by association.

Would the UK government be so insouciant about international law if it had been held to account for its stewardship of Northern Ireland? The EU is proposing to take the EU to the European Court of Justice for its breach of the Withdrawal Agreement, but why would the UK comply with an ECJ ruling when one of the main justifications for Brexit was to break free of the jurisdiction of the ECJ?

The reality is the Withdrawal Agreement, and by extension the Good Friday Agreement,  will only be upheld if there are effective trade sanctions for not doing so. The protections of the World Trade Organisation should not apply to a rogue state in breach of international law.

The ECJ is the instrument for legal arbitration outlined in the treaty itself. Reading what is spewing out of social media, it seems many folk only learned today that Boris Johnson and his government signed to such surrender of sovereignty. The EU just want to keep playing by the rule book for now.

In its first report on this matter, the Guardian newspaper referenced again the coming Autumn budget bill. Further infringements of the Withdrawal Agreement are expected in that piece of legislation. The newspaper has since replaced that paragraph with reactions from European politicians.


by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Thu Oct 1st, 2020 at 05:35:27 PM EST
Agreed, but the UK doesn't need the ECJ to decide whether it broke the treaty: They announced their intention to do so from the get go, and have since announced further legislation breaking the Treaty.

And even if, in a few years from now, the ECJ actually rules against the UK, how could its ruling be enforced if the UK decides, again, to break the the arbitration clause and just ignores the ruling?

Sooner or later this comes down to enforceability, and in the absence of voluntary compliance, the only recourse is punitive sanctions, or at the very least, UK exclusion from WTO trading rules.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Oct 1st, 2020 at 06:10:43 PM EST
[ Parent ]
the UK doesn't need the ECJ to decide whether it broke the treaty
The UK doesn't, but the EU does: as Luis mentions, they are playing by the book; once the UK has been determined by the court to have breached the agreement, then the EU has legal air cover to move forward to appropriate measures to protect the integrity of the single market.
by Bernard (bernard) on Thu Oct 1st, 2020 at 06:50:42 PM EST
[ Parent ]
Brexiteers like to point out that Ireland broke the 1922 Anglo-Irish Treaty by progressively "disapplying" some of its provisions, leading to the Anglo-Irish economic war of 1932-38 and full independence in 1949. The UK never quite forgave Ireland for not joining them in WWII and many still can't understand why Ireland isn't leaving the EU with the UK.

However since the 1922 Act was effectively imposed on Ireland by the imperial power and resulted in a civil war, it is hardly surprising that Ireland gradually resiled from it as circumstances allowed. The changes in Ireland's constitutional status were also subsequently regularised and recognised by acts of the UK parliament.

Comparing Ireland leaving the British empire with the UK leaving the EU is an old Brexiteer trope casting the UK as the underdog fighting an evil empire. No doubt the Commission is seeking to draw attention to the fact that the UK government agreed to binding adjudication by the ECJ in the Withdrawal Treaty, but I cannot see it as an effective remedy.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Oct 1st, 2020 at 06:45:06 PM EST
[ Parent ]
It must be more than a little disconcerting, given the position in which Ireland finds itself, to find so little effective response by the EU to the flagrant violations of treaties and international law by the UK.

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Sat Oct 3rd, 2020 at 02:47:08 AM EST
[ Parent ]
We're used to being the less powerful partner in the relationship and having to suck up blatant injustices simply because we have no power to right them. But we are also very well aware that the law should be there to protect the weak and when the powerful can break the law with impunity, it puts the whole system in disgrace.

Part of me feels the EU is responding so mildly because they just can't bring themselves to take Boris and his threats very seriously. Part of me feels the EU doesn't quite appreciate how much the EU is undermining the EU's whole raison d'etre and system of legitimacy. This still has the potential to go pear shaped in a big way unless clear and decisive action is taken.

For Ireland, 50% WTO tariffs on our beef and agricultural products puts the whole industry (and rural Ireland) in jeopardy. I do hope someone, somewhere, has a plan to deal with the fall-out, but I'm not seeing much evidence of it. After all it shouldn't be too difficult to model the economic effects of WTO rules and develop a counter-strategy.

So while I appreciate the tactical reasons for the EU's response, I'm not quite sure what the strategy is.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Oct 3rd, 2020 at 10:06:16 AM EST
[ Parent ]
I don't think EU had a strategy beyond offering UK a deal as close to the original membership as possible and hoping they would come around to understanding it's the only workable solution and the only one on offer.

EU may have suspected Mr. Johnson to negotiate in bad faith, or come up with every possible kind of shenanigans, but there's not much a consensus based organization of 27 members can do against a charlatan who insists on playing chess on a backgammon board while making up rules on the fly.

Pretty much the only thing Commission can do at the moment is to try to salvage the Good Friday Agreement. Sticking to legal issues and releasing the legions of lawyers is their only tool for now.

Maybe, if the 27 came up with short and long term strategies they could agree upon, and nominated a Commissar of Brexit to implement it in close co-operation with Ireland and Netherlands the EU response could be more pro-active and on a wider spectrum.

Maybe even a parliament with some simile of power in actual running of the EU could have an effect here, too.

by pelgus on Sat Oct 3rd, 2020 at 12:43:53 PM EST
[ Parent ]
My guess is that the EU will allow reality to intrude on the UK's intransigance.
If the UK crashes out with no deal, then it immediately imperils the GFA. No US Cogress controlled by the Democrats is gonna look kindly upon that situation.
And that puts the UK in a hard place every which way. No deal with the EU, no deal with the US and a deteriorating relationship with China.
There aren't really too many other places to go that replace all that trade. Which means that everything is going to start getting expensive on January 1st. JIT delivery schedules are going to crash. Hard. Bringing perishables into the UK is going to be difficult moving towards impossible.
Sterling is going to tank as both the City trade and import/export businesses collapse.
All of which is going to drive up costs in a sub-Weimar way.
I imagine that, unless boris has a cunning plan, he (or his successor, will crawl to Brussels on their bellies sometime in May.
By june there will be nobody left in the country who will admit to having supported brexit, but will be detectable for their red-faced apoplexy that the EU won't immediately have us back

keep to the Fen Causeway
by Helen (lareinagal at yahoo dot co dot uk) on Sat Oct 3rd, 2020 at 01:45:58 PM EST
[ Parent ]
By june there will be nobody left in the country who will admit to having supported brexit, but will be detectable for their red-faced apoplexy that the EU won't immediately have us back

The brexiters rhetoric is quickly moving to the EU wanting to impose a new Continental Blockade. And folks will take it: after all, blaming Johnny Foreigner is always easier than admitting you've been taken in for a ride by a bunch of clueless toffs.
by Bernard (bernard) on Sun Oct 4th, 2020 at 02:02:42 PM EST
[ Parent ]
By june there will be nobody left in the country who will admit to having supported brexit,

Nonsense. Brexit is done and was a great success. Then the EU started an entirely unprovoked trade war. No reasoning with those continentals.

by generic on Sun Oct 4th, 2020 at 03:00:55 PM EST
[ Parent ]
by StillInTheWilderness on Sun Oct 4th, 2020 at 10:49:03 PM EST
[ Parent ]
Part of me feels the EU is responding so mildly because they just can't bring themselves to take Boris and his threats very seriously. Part of me feels the EU doesn't quite appreciate how much the EU is undermining the EU's whole raison d'etre and system of legitimacy. This still has the potential to go pear shaped in a big way unless clear and decisive action is taken.

As I explained elsewhere, the EU cannot do anything other than "going by the book"; and that means starting infringement proceedings at the CJEU and also continuing the negotiations with the UK - certainly not giving B.Johnson an excuse for putting all the blame of a no-deal on the EU breaking the negotiations before the end of the year.

As Barnier puts it:

This said, the lack of audible noise from the EU officials and member countries does not mean they are not preparing for a no-deal come January 1. I even suspect that many EU countries preparedness plans are more advanced than the UK's "administration". Showing any hint of WTO or punitive tarifs on UK exports next year will only help the Brexiters as casting the EU even further into the villain's role. Even though everybody should be well aware that's exactly what will happen in three month's time.

by Bernard (bernard) on Sun Oct 4th, 2020 at 01:58:43 PM EST
[ Parent ]
And speaking of what will happen in case of no deal, Politico.eu tried to have a stab at it:

What happens if there's no Brexit trade deal?


How bad could it be? 💥💥💥💥💥

What happens immediately?

  • Free trade between the EU and U.K. ends on January 1, 2021 -- and both sides fall back on World Trade Organization terms. The U.K. has set out its Global Tariff Schedule for imports from the EU (as well as all other nations it has no trade deal with) and would be subject to the EU Common External Tariff for exports to the EU.

  • The administrative burden of tariffs, in addition to new customs checks, risks having an impact on food supplies -- in particular those heading to the EU, because firms importing goods to Britain will be able to defer tariff payments and some customs administration for the first six months.

  • The additional costs of tariffs and delays will likely create problems for companies, supply chains and retailers in almost every sector of the economy.

  • Prices in shops will inevitably rise as a result, and some businesses could go bust.

  • by Bernard (bernard) on Mon Oct 5th, 2020 at 08:24:50 PM EST
    [ Parent ]
    " importing goods to Britain"
    Do you mean "importing goods from Britain" or "exporting goods from Britain" ?
    by StillInTheWilderness on Thu Oct 8th, 2020 at 03:53:28 PM EST
    [ Parent ]
    That particular section was written by a UK based Politico journalist (as opposed to their Brussels based staff). As a non-native speaker myself, I take it to mean businesses that import goods from the EU into the UK - but I may be wrong.
    by Bernard (bernard) on Thu Oct 8th, 2020 at 05:02:14 PM EST
    [ Parent ]
    Will Boris start flying the Stars and Bars?
    by StillInTheWilderness on Thu Oct 1st, 2020 at 08:16:57 PM EST
    Is that the one with the saltire (the heraldic X)?

    If so, it looks more likely that he will lose a saltire or two.

    by fjallstrom on Fri Oct 2nd, 2020 at 01:38:29 PM EST
    [ Parent ]
    This one.

    The one you are thinking of is the Rebel Battle Flag.

    She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre

    by ATinNM on Thu Oct 8th, 2020 at 06:52:02 PM EST
    [ Parent ]
    And this is what you get after Puerto Rica and DC join

    by gk (gk (gk quattro due due sette @gmail.com)) on Thu Oct 8th, 2020 at 06:59:12 PM EST
    [ Parent ]
    The genius of the American system is that we can and will gladly add anybody who wants to join our fabulous country, it doesn't matter where you're located. (Caveat, you have to apply when the party that likes you is in charge.)

    Possible candidates include:

    • Greenland (Trump has already tried to get it)
    • Iceland
    • Scotland
    • Wales
    • England
    • Cornwall
    • A few random islands nobody has ever heard of that would give the US another claim on the Arctic
    • Some islands in the Pacific
    • Including Taiwan
    • Some islands in the Caribbean
    • Liberia, which should have already happened a century ago
    • Israel, obv
    by asdf on Thu Oct 8th, 2020 at 08:50:39 PM EST
    [ Parent ]
    Israel, obv

    Why would they want it? They have all the advantages anyway, without having to grant freedom of religion, 2nd amendment right to Arabs, etc.

    by gk (gk (gk quattro due due sette @gmail.com)) on Fri Oct 9th, 2020 at 07:53:28 AM EST
    [ Parent ]
    There will be no agreement before the next EU Council. Von der Layen meeting BoJo tomorrow to tell him so. At least that is what the Commission is leaking to the press (Euronews, Times). That means no chance of approval ahead of the 2nd of January. They just ran out of time ...

    Either BoJo extends the transition period, or WTO rules kick in by default in January. My gut tells me a watershed moment will take place this weekend.


    by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Fri Oct 2nd, 2020 at 01:02:01 PM EST
    Yeah, the stretch to kick the ball is shrinking fast. And the UK government seems to believe their own propaganda that if they just stand firm the EU will fold or a solution will appear in the last hour.
    by fjallstrom on Fri Oct 2nd, 2020 at 01:47:34 PM EST
    [ Parent ]
    Tories bought into their own propaganda that the EU needed the UK more than the UK needed the EU.

    She believed in nothing; only her skepticism kept her from being an atheist. -- Jean-Paul Sartre
    by ATinNM on Fri Oct 2nd, 2020 at 03:18:31 PM EST
    [ Parent ]
    "Good progress" is reported from the negotiations. Which means the UK's negotiators have been instructed to dig out the position papers which have doubtless been ready for months, which set out their actual starting positions.

    These positions won't be reasonable, but within a hundred yards or so of the ballpark...

    Game on?

    It is rightly acknowledged that people of faith have no monopoly of virtue - Queen Elizabeth II

    by eurogreen on Fri Oct 2nd, 2020 at 03:36:26 PM EST
    [ Parent ]
    Ahahaha you seriously underestimate the nefarious methods of the political class!

    My bet is a verbal agreement on "substantial enough progress to continue discussions" on October 16th, then a "verbal agreement on major points" in November, and an "entry into the tunnel" around Christmas, and a "short-term extension" into January, and further argument and posturing and associated BS well into the new year.

    by asdf on Thu Oct 8th, 2020 at 08:54:37 PM EST
    [ Parent ]
    The Guardian, from London:

    Boris Johnson to set fishing ultimatum in crunch EU summit

    Buoyed by support for idea from Angela Merkel, PM hopes to overcome French opposition

    Boris Johnson will demand that the increasingly isolated French president, Emmanuel Macron, caves in to UK demands on fishing as the price for a trade and security deal at a key meeting with the European commission president on Saturday.

    The prime minister will feel strengthened by comments from the German chancellor, Angela Merkel, on Friday, when she described the fisheries deal struck by Britain with Norway this week as a "constructive indicator".

    Politico.eu, from Brussels;

    EU leaders sour on chances of Brexit deal

    Brexit was just a brief information point at the European Council summit which wrapped Friday but the mood was clear around the leaders' table, EU officials and diplomats said.

    "When I try to take to feel the temperature in the European Council, what is the temperature between the member states -- we are united, no doubt on that -- but there is the impression more and more that it will be very difficult to get a deal with the U.K.," said a senior EU official. "Because we don't have the impression that they put on the table a real margin in order to make a deal possible."

    The senior official cited "this growing feeling" among some leaders "that maybe, maybe a no-deal can be less worse than a bad agreement."

    Privately, according to officials present, von der Leyen warned leaders that no-deal, in which the two sides fall back on World Trade Organization rules, would be better than caving to British demands and ending up with a bad, lopsided agreement. "A bad deal would mean no level playing field which would be a threat to our economy," von der Leyen said, according to an official.
    by Bernard (bernard) on Fri Oct 2nd, 2020 at 06:58:42 PM EST
    The critical question is: Who's negotiating position is strengthened by a period of no deal? I haven't seen any economic modelling, but my impression is that the EU, other than Ireland and perhaps Holland/Belgium, will suffer a lot less than the UK.

    Index of Frank's Diaries
    by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Oct 3rd, 2020 at 10:24:15 AM EST
    [ Parent ]
    There is still time for one of Boris Johnson's famous U-turns. But as this article explains, the kind of agreement both parties are trying to negotiate is simply too complex to achieve in such a short time-frame.
    It equals to creating a parallel of the EFTA, but specific for the UK, in just a few months. In hindsight, it probably would have never worked, regardless of the will of the parties.

    by Luis de Sousa (luis[dot]de[dot]sousa[at]protonmail[dot]ch) on Sat Oct 3rd, 2020 at 06:16:55 PM EST
    [ Parent ]
    All you need to do is invent new terminology for "the actual agreement that we will operate under after we work out the details."  C.f., "Brexit Withdrawal Agreement."
    by asdf on Thu Oct 8th, 2020 at 08:57:33 PM EST
    [ Parent ]
    I don't get why there is so much emphasis on whether a no-deal arrangement ends up being the EU's fault or the UK's fault. Regardless of whose fault it might be, the economic and social costs will fall pretty heavily on everybody involved, and any attempt at repair will take years, if not decades.

    "It's all France's/Germany's/Spain's fault that I'm sitting here in the damp eating canned beans and Spam" is not going to provide much cheering up.

    by asdf on Wed Oct 7th, 2020 at 03:56:07 AM EST
    Au contraire: it is a central piece of the Brexiters strategy (to the extent they have one), as it allows to deflect the blame away from them and squarely at the nasty foreigners, so that Boris & Co can keep their jobs and wrap themselves into the Churchill mantel (cue in the Darkest Hour).

    Nationalism is a well known lever to manipulate opinion and it has worked particularly well in England these past years.

    by Bernard (bernard) on Wed Oct 7th, 2020 at 09:13:03 AM EST
    [ Parent ]
    I still feel the EU's concern for this is overblown. They will be blamed for no deal by Brexiteers and the Tory media regardless of how obvious it is that Boris blew it. There is no way they can avoid it.

    Basically the Tory line will be that everything is fine now and has been for 45 years so why does the EU have to change anything? To protect their uncompetitive industry is why!

    All we (Brexiteers) want is our political freedom back to make our own trade deals and business regulations like every other non EU member sovereign state. Ergo it follows that the only reason we can't have our cake and eat is because the EU is trying to punish us for leaving.

    Arcane arguments about "level playing fields" and common standards just won't cut it. It will be put down as bureaucratic arguments to make life as difficult as possible for freedom loving Brits because they know we Brits are better at competing on a world stage than those regulation loving Eurocrats...

    The EU will be compared to the Soviet Union as a political attempt to control freedom loving peoples. People will be told it is better to be free and poor rather than be slightly better off and strangled by bureaucrats.

    And like the Soviet Union, the European Union will collapse in due course because of the contradictions it contains - basically lots of culturally distinct peoples who will want to express their cultural identities through political independence.

    The Brexiteers define a nation as having a soul you are prepared to die for, if necessary, to defend it. Whoever ever wanted to die for the EU bureaucracy?

    Index of Frank's Diaries

    by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Oct 7th, 2020 at 11:50:53 AM EST
    [ Parent ]
    No disagreement there. It's just that the EU operates along its own rules and laws and are not going to be dragged into the Brexiters rhetorical field - as you wrote: respecting the law, period. The EU is of course under no illusion that Johnson and Co won't put the blame on them anyway; they are just not letting that influencing their course of action.
    by Bernard (bernard) on Fri Oct 9th, 2020 at 05:58:07 PM EST
    [ Parent ]
    UK must put `all cards on the table' on Brexit, says EU's Michel
    DUBLIN -- The coming week of Brexit talks represents "the moment of truth" and will require Britain "to put all of its cards on the table," European Council President Charles Michel said Thursday.

    Standing beside Irish Prime Minister Micheál Martin following talks in Dublin, Michel said peace on the island of Ireland and the integrity of the EU's single market were at stake.

    "The EU stands in full solidarity with Ireland. And this is especially true when it comes to the full implementation of the Withdrawal Agreement and the protocol on Ireland and Northern Ireland," Michel said.

    "This text has been negotiated for three years. Each word, each comma has been debated for hours and hours. It has been ratified by both parties. There is simply no question on its full implementation. This is a matter of law, a matter of trust," he said.

    by Bernard (bernard) on Fri Oct 9th, 2020 at 05:59:54 PM EST

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