Britain faces a fateful decision. If it wants an FTA with the EU, says Carl Baudenbacher (Monckton Chambers/LSE), it will need to either sign up to EFTA/EEA institutions, or accept the Ukraine model – which will mean it is still under the jurisdiction of the ECJ.
Under Trajan the Roman Empire, at its greatest extent, encompassed the entire Mediterranean region, but also parts of present-day Germany, Britain, Romania, Turkey, Syria and Armenia. The European Union is preparing to build a similar empire. Roman law played an important role in the expansion of the Roman Empire; and the EU relies on the export of its law, and the extraterritorial effect of the case law of the European Court of Justice (ECJ).
The EU has concluded bilateral association treaties with four former Soviet republics, Ukraine, Georgia, Moldova and Armenia, under which these countries are aligning their legislation in important fields with EU law. The ECJ has a monopoly in the interpretation of treaty law which is identical in substance to EU law. Since each side can bring a dispute before the ECJ unilaterally, the European Commission may take a case to its own court and thus has a de facto right of surveillance over the associated states. Pro forma, the proceedings before the ECJ are preceded by an arbitration mechanism, which must, however, request the ECJ for a binding ruling in all significant cases. As leading commentators from the UK, Belgium, Norway and Germany have emphasised, this is a sham arbitration court. The aim of the above-mentioned treaties is to bring the four states closer to the ideas of democracy, the rule of law and market economy.
The same system is now to be set up for Morocco, Algeria, Tunisia, Libya, Egypt, Jordan, Lebanon, Israel, Palestine and Syria. For obvious reasons, Turkey does not figure on this list. It is officially still a candidate for EU membership. The EU also wants Switzerland and the UK to accept the Ukraine model. However, these two states need no EU tutoring on democracy, the rule of law and market economy.
It remains to be seen whether the EU’s expansion in the form described above is a wise policy. In the face of major internal problems, it looks like a diversionary tactic. But that is not the subject of the considerations below. Nor can the EU be morally reproached. It is, generally speaking, a benign hegemon compared with what former European powers have to answer for.
If you ask how Britain ended up with the Ukraine model, you have to look to Switzerland. Switzerland has concluded some 120 bilateral agreements with the EU. Twenty of these are particularly important. From 2008 on, the EU claimed that these treaties needed to be subject to a supranational supervisory and judicial mechanism. At the same time, the EU refused to conclude further bilateral treaties without an institutional structure. In 2013, the Union proposed to Switzerland that it dock with the institutions of the European Free Trade Association (EFTA) pillar of the European Economic Area (EEA), the EFTA Surveillance Authority and the EFTA Court. However, the Swiss government declined this offer and instead indicated that it wished to make the bilateral agreements subject to the jurisdiction of the ECJ.
The Swiss government did not admit it, but behind this move was the desire to set a point of no return on the road to Swiss accession to the EU. When it became clear in the course of the negotiations that the ECJ model would not stand a chance in a referendum in Switzerland, the EU put the Ukraine model on the table. Following the approval of the Swiss Federal Council in the spring of 2018, the Ukraine mechanism was also presented to the British. Surprisingly, Theresa May’s government accepted it and when Boris Johnson became Prime Minister, he too initially agreed. Now, however, resistance is stirring.
On the other hand, the government of Switzerland, a world champion in innovation which regularly tops global competitiveness rankings, is trying to sell the Ukraine model to its people. The Ukraine mechanism is the core of the planned Institutional Agreement with the EU (“InstA”). However, the efforts to present InstA as a Swiss negotiating success are embarrassing. Nothing of note has been “wrested” from the EU, nor is it true that Switzerland negotiated a better deal than the UK. It is clear to anyone with practical experience of the ECJ that the dispute settlement clauses in all bilateral treaties, whether with post-Soviet states, the countries of the southern Mediterranean or Switzerland and the UK, would be interpreted uniformly.
However, even if textual differences were to play a role and the InstA were to be interpreted solely on its text, the circumstances would have to be taken into account. They would clearly argue for a situation analogous to that in the case of Ukraine. It would, in any event, be the ECJ that would decide. The latter has already interpreted the free trade agreements (FTAs) concluded with the then EFTA states in 1972 uniformly. This was despite the ECJ not having a monopoly on interpretation under these FTAs.
There is no point in the semantic gymnastics of talking about a “two-pillar system” where there is only one pillar – namely the EU – or about “self-monitoring by Switzerland” where the monitoring competence is actually with the European Commission. Even the efforts to present the fake arbitration panel as a body with considerable powers are devoid of reality. It is notable that the EU’s Brexit negotiator Michel Barnier only speaks of the ECJ.
Swiss InstA aficionados console themselves with the assertion that the ECJ is a respected court with a great track record. Of course, that is undisputed. However, it is besides the point. The ECJ is, after all, the court of the other party, and thus it lacks impartiality. As an institution of the EU, the ECJ has the DNA of the EU, just as the Federal Supreme Court has the DNA of Switzerland. Anyone who is not impartial is biased. That is not a lack of character, but an objective fact and it also applies to the future UK-EU relationship.
It is precisely the EU’s plan to create a new empire around the Mediterranean that should divert Berne’s foreign policy from its rigid rabbit’s-eye view of the (alleged) Brussels snake. After all, there is room in Europe for two structures. Not all states are interested in political integration and not all believe in centralism. The core of the second structure could be EFTA. The EU would concentrate on political integration, while the second structure would limit itself to economic integration. Both organisations would work closely together, and the law would be basically the same in substance in both. However, surveillance and judicial control would be separate, as in the EEA. This would leave some room for systemic competition. Switzerland and the UK would be potential members of the second structure, in addition to the current EEA/EFTA states Iceland, Liechtenstein and Norway. However, the fact that Israel, for instance, is on the list of EU candidates for an agreement with the Ukraine mechanism also makes one sit up and take notice. How would a Joe Biden administration (or a second Trump administration) in the US view this? Finally, it is worth recalling that Bill Clinton’s secretary of state Madeleine Albright recommended EEA/EFTA membership for Turkey more than two decades ago.
In the second half of the 19th and the first half of the 20th century, agreements granting extraterritorial jurisdiction to the courts of the other party were known as “unequal treaties”. There was talk of “colonisation without colonies”. The cases in point were mainly China, Japan and the Ottoman Empire. The Swiss Federal Council must have the courage to tell its people that Switzerland wants the InstA, with its subordination to the supervisory competence of the European Commission and the jurisdictional sovereignty of the ECJ, as a step on the road to Switzerland’s future accession to the EU. If this is not feasible, the Swiss Federal Council must break away from InstA and join forces with other free trade- and market-oriented non-EU countries.
The UK is also facing a fateful decision. If it wants a FTA with the EU worthy of the name, the EU will insist on either the Ukraine model or the EFTA Surveillance Authority and the EFTA Court. A deal based on the Ukraine mechanism would be a bad deal. Instead of agreeing to that, the UK should follow David Owen’s advice and move closer to the EEA in a second round of negotiations.
This post represents the views of the author and not those of the Brexit blog, nor LSE.
No, the choice the UK is facing is either accept a FTA arrangement with the EU once the EU admits that it cannot bully us like it always has done, or go down the WTO route.
The EU cannot accept that the UK is now a sovereign nation totally independent of any external legislative creators.
How has the EU bullied the UK? By agreeing to all the opt-outs?
Or does “bullying” mean not giving the far right of the Tory Party what they demand?
Trading with the EU on WTO terms is superior for the U.K. than either EFTA membership or an unequal Ukraine-style association agreement. It should be obvious that EEA membership and subordination to the EFTA Court, which is just a rubber-stamp for the ECJ, is politically unacceptable in the U.K.
The U.K. has to be free of EU law and ECJ jurisdiction. The EU common external tariff combined with new U.K. FTAs with non-EU states will only accelerate the needed reorientation if U.K. trade to the fast growing parts of the world economy outside Europe.
So when I export my products from the UK, how can the be “free of EU law”? When I export to the US how can they be free of “US law”? Large parts of EU law were created with UK influence and insistence in any case.
No easy ways, ISDS are not an alternative. WTO court is out, thanks to a third party. Impartial arbiters are hard to find.
When you see that even the UK’s government and Parliament tend to reject their own courts, they are speaking about reducing the scope of action of the Supreme Court, it won’t be easy.
May I suggest the European Parliament and UK’s Parliament are the ultimate arbiters? And evidently all the governments.
It will be very interesting.
All negotiations require trade-offs, UK does not agree on trade-offs. EU wants to have some protection. So they have to find a way. Simplest way: no trade deal, gunboat diplomacy.
Everybody forget that each EU member already agreed to limit ttheir own sovereignty and to have common rules which are not always benefiting each of them. France, Germany and other countries regularly lose their cases. Apple and Eire recently won. Democracy, even in Western countries was improved by ECJ.
If UK wants to be free so be it, but don’t waste the time weeping. They’re would be more honor with being proudly independent than trying to spend the time refusing to accept trade off while begging to have all the benefits.
UK as a previous member of EU never truly opposed Ukraine being subject to. ECJ. It took the same position with all other countries. But applying that rule to itself seems devilish? How so when it was glad to have thrown to other?
Switzerland is a prime example of a country hitherto looked upon as an exemplary as far as participatory democracy is concerned, but which also has succumbed to the process of a slow, relentless and mostly insidious hijack of the apparatus of state, government and the effective body politics. The pressure on governments and bureaucracies, not to mention the political figureheads who really matter, in nominally democratic and non-aligned nations exerted by the global elite through all the international and national systems necessary for a modern state to function must be considerable. This pressure is only applied and felt, of course, if the government of the day in the nation-state in question has some reservations about fooling the electorate as to what’s afoot.
The EU project to federalise by hook or by crook would be bad enough for the prospects of Europe if it were a body able, willing and politically capable of uniting the European countries as a bulwark against the other geopolitical players, but the fact is, and has been since its inception, that the EU project and all its movers, shakers and supporters are aligned with the global elite-In fact, the EU is controlled and run by a cabal which is fully part of the transnational-international( really post-national, as the nation-states are merely fiefdoms within the global neo-feudal order, with the fig leafs of national governments representing the subject populations) globalising corporate elite.
Democracy is a process like everything else in the universe. There is nothing static about it. Apart from the fact that there is always a proportion of an electorate in a democratic nation-state demonstrably or otherwise unfit or unwilling to be, or otherwise ill-disposed towards, meaningfully participating in the democratic political process, those able and willing are divided in terms of ability, opportunity and allegiance. It is therefor natural for the well-organised dominant interests, already operating from a powerful position, to maintain, and build on, the upper hand. The natural effect of structural change imposed upon a resident population takes time to percolate down into the subconscious of people not readily engaged in the political process. Then it needs be digested and will be fermented, in a manner of speaking, by the addition of further experiential input. Only after a long process will the result percolate back up into the conscious awareness of these dis-engaged members of society. A slow dawning of a new reality then happens long after the facts of political life have been established.
The mainstream is totally dedicated to keeping the lid on a realisation amongst the public as to how it works. The effect is not to slow the growing political realisation amongst the electorates so much as to buttress the narrative which the cadres supporting the globalisation project need to believe in to do their work to effect. Once the multitude of enablers, gofers, spruikers and the hosts of political, economic, financial, academic, media and such like commentators lose faith in the new world order the system needs to be enforced with stronger measures. There will be no giving up on this project. Likewise, the peoples of the world will by and by start pushing back, and naturally a new equilibrium will be the, equally temporary, outcome. Endless struggle is our lot. Those unwilling to struggle will have to take what is given. As to the politics of the EU, most of it is mere show. The puppets have to perform to justify their huge expense. More than political power as such, short-term financial-monetary-economic gain is the name of the game. If the system of extortion falters or breaks down, never mind, the exploiters are always in the best position to renew the extortion-extraction racket. Follow the money and all will be clear as ever can be in politics.
You can’t be 60% pregnant, it’s either 100% or 0%. It’s the same with Brexit: either we lose 100% or 0%