Coverage of the Brexit negotiations often focuses on the relative bargaining power of the UK and the EU as they seek to reach a new agreement following Britain’s withdrawal. Andrew Glencross highlights that although bargaining power is central to the negotiations, power is a function of legitimacy, and if the UK is to reach a genuinely good Brexit deal it will have to propose a new institutional vision that the rest of the EU recognise as being legitimate.
Theresa May delivering a speech in January 2017 outlining 12 objectives for Brexit, Credit: Number 10/Jay Allen (Crown Copyright)
Brexit is the most divisive issue in UK politics for generations. But one thing all commentators agree on is that the ongoing talks over exiting the EU are a test of bargaining power. Yet power is a function of legitimacy, as Henry Kissinger observed in A World Restored, his masterly survey of 19th century European diplomacy. The settlement that shaped European politics for the rest of the century emerged from an agreement over the legitimacy of major states’ interests, not a bargaining free-for-all determined by power politics.
Kissinger’s diplomats would have seen Brexit instantly for what it really is: a revolutionary act that rejects the very legitimacy of the existing EU order. British politicians and voters of all stripes need to appreciate this dimension of the withdrawal negotiations. Until then, they will continue to misread the situation and think the EU27 is bargaining over interests. In fact, it’s defending its principles. The UK must eventually propose a new institutional order – rather than a wishlist of the interests it wants to protect, from trade to immigration.
The government has taken so long to reveal its blueprint for Brexit because of the lack of clarity over what the 2016 referendum result really meant. The snap election in June ought to have ended the uncertainty, but failed spectacularly to do so. The Conservatives and Labour did their utmost to avoid discussing their vision of Brexit in the campaign. Both parties are now hopelessly split over whether to pursue a hard or soft break with the EU.
However, the hard/soft distinction is itself a British self-indulgence. For the EU, Brexit is first and foremost a matter of principle, not a wrangle over what form it takes. Whereas the UK faces a domestic legitimacy problem over the type of trade-offs it should pursue, the EU has to defend the legitimacy of its entire institutional order.
A legitimate international order is not something that is set in stone. Adjustment and transformation is possible, Kissinger explains, providing there is consensus on the nature of a “just arrangement”. The problem here is that the UK has a long record of unilaterally challenging the European consensus on what is considered just.
Prior to its 1975 referendum on remaining as a member of the European Economic Community, the UK renegotiated the terms of its relationship. Then, in 1984, Margaret Thatcher secured a permanent budget rebate for the UK’s contributions to the European budget. Finally, before holding the 2016 referendum, David Cameron secured his own special deal on various EU rules, in the hope of convincing the UK public to vote to remain.
What’s the vision?
Negotiating a future UK-EU relationship is fundamentally different from the bargaining over interests that characterised these previous spats. In these earlier episodes, the British government voluntarily agreed to limit the scope of conflict, thereby avoiding questioning the whole institutional edifice and its legal foundations.
Most toxic of all is the memory of the budget dispute in Thatcher’s time. Thatcher’s stubbornness has become an inspiration for today’s hardline Brexiteers, who conveniently ignore the compromises she made at the time. Thatcher didn’t simply reject the suggestion – promoted by the anti-EEC Labour opposition – of suspending UK financial contributions to Brussels. Her government took the lead in relaunching the EEC by proposing the completion of the single market. There was also a diplomatic pledge to accept the process of establishing a European Union. Other countries thus understood that British demands were limited.
By contrast, Brexit involves tearing up the existing treaties and questioning the UK’s legal obligations wholesale. Everything is up for negotiation, which precisely matches Kissinger’s definition of a revolutionary order as one that “identifies the legitimate with the possible”. The UK’s demands and methods for obtaining a new relationship are fundamentally unilateral, otherwise known as the “have cake and eat” it approach.
It’s hard for diplomacy to function in such circumstances. That’s why the formal talks that have been continuing all summer are inherently unstable. Legitimacy is a power multiplier for the EU. A shared acceptance of the current EU system is the foundation of the mandate given to Michel Barnier, the EU’s Brexit negotiator. Whatever their disagreements over the exact terms of a future deal with the UK, the EU27 can agree that invoking Article 50 is not the proper way to adjust the terms of EU membership.
Consequently, the UK government needs to match the EU by thinking in terms of order and not revolution. So far, ministers have chosen to moot endless possibilities for the post-Brexit future. Instead, there must be an actual proposal for a replacement institutional arrangement. This should specify the nature of obligations between the UK and the EU as well as the mechanism for reconciling differences in interpretation or policy. That is the only way to limit the scope of future disputes about individual issues.
In the absence of such a structure, there can be little hope of a lasting and stable settlement. And ultimately, that’s what matters most for both parties. Bargaining can create a new order in the aftermath of a revolution, but, as Kissinger’s analysis of European history shows, only legitimacy can sustain it.
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Note: This article was originally published by The Conversation: the original article is available here. The article gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics.
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Andrew Glencross – Aston University
Andrew Glencross is a Senior Lecturer in the Department of Politics and International Relations at Aston University and a Senior Fellow at the Foreign Policy Research Institute.
Another car article from the LSE from an author who appears to think that the UK has invoked Article 50 to renegotiateIts EU membership rather than leave the EU.
A world of democratic nation-states is the only legitimate international order and the EU has been suffering an increasing crisis of legitimacy since violating this order with over-powerful supranational institutions making decisions by qualified majority rule rather than concensus. Those institutions have to thrown into the dustbin because they will never have democratic legitimacy when the treaty that gives them power was rejected by the voters of France, the Netherlands and Ireland but implemented anyway. Democracy can never be safe in Europe while it is ruled by institutions that cannot gain a majorities for their own existence. Brexit on the other hand has democratic legitimacy because of the referendum result. The UK also does have a vision for the future of a world of democratic nation-states that trade freely and cooperate politically using traditional intergovernmental methods that retain decision-making by concenSus because that is the only way to stop the national electorates being coerced against their mjority will to do things not in their interest by supranational bodies beyond the reach of any ballot box.
A useful perspective on what on the face of it looks to be totally one-sided, time-limited negotiations where the EU holds all the cards worth having, and the UK is pleading for generosity.that it doesn’t deserve. Up till now, the UK Government seems to have been irremediably split between those who wish to be wholly independent of the EU (surely a minority even of informed Leavers?) and those who wish to remain close so as to keep as many as possible of the existing benefits and to lose as many as possible of the existing obligations – a thoroughly messy trade-off that will most likely prove to be unachievable, let alone satisfy anyone in the longer run..
What does make sense, and is entirely consistent with Andrew Glencross’ thesis, is a new-look EEA/EFTA designed to cater for all European countries that do not share the aims of the core EU states to create a truly unified, federal union, with a common currency,and common foreign and defence policies, but wish to collaborate on more or less equal terms with the states of that union. The institutional structure is already there of course, though it could usefully be reformed to allow for greater mutual control over what is currently purely EU legislation affecting e.g. environmental and labour regulations, that non-EU states must in the last resort accept willy-nilly. This is a solution that would surely commend itself to a majority of UK MPs and, I would hope, the UK electorate generally, to a greater degree than any other conceivable solution to the present confusion.
This is a characteristically excellent piece by Glencross. An international order has its own legitimacy in terms of an agreement among the member states to cooperate together for mutual advantage. For some reason UK politicians fail to understand the logic of a rules-based international system. Until the Miller judgement and then the election, the plan was clearly to negotiate on the basis of executive discretion. The hope can only be that as the unpalatable consequences of Brexit emerge, parliament will acquire some responsibility, since parliament is the only source of legitimacy capable of countering executive dominance.
You claim ” a world of democratic national states is the only legitmate order”. Really? Does that mean that UK must break up? Or do you argue time has moulded a ” British Nation”? Howabout the merging of Wessex, Northumbria, Mercia, etc? Too long ago? The uniting of the USA? They all spoke English? Switzerland? “We” Brits are different from those wogs east of Calais?
The EU is/ was a project in the making..Yes, more powers should be given to its Parliament, but the members states voluntarily joining and nominating representatives to Brussels is not anti democratic. One should note that the UK was one of the major players opposed to giving more powers to the EU parliament ( much preferring back room deals at inter government conferences).
Scotland will now leave the UK as a result of Brexit and a united Ireland will soon come about. Brexits don’t care…Indeed, if London and the South East left the UK to stay in the EU, they wouldn’t care.
Not so much ” little Englanders ” but ” tiny Englanders “.
All parts of the United Kingdom have voted for their current constitutional relationship in recent years, which therefore have democratic legitimacy. In lights of those votes, Northern Ireland, Scotland and Wales are provinces within the UK and not nations seeking their own state.
That is not the case in the EU where French, Dutch and Irish voters rejected the current constitutional arrangements with Brussels as did Danish voters earlier EU treaties. The voters were either ignored and required to vote again until they returned an answer that politicians wanted. There is no disguising that the EU has a crisis of democratic legitimacy that extends far beyond the Uk.
Emmm….so if nations ( you agree the likes of the Scots are a nation?)vote to share sovereignty then that’s OK with you? But you reject the EU as being legitmate because some parts rejected treaty change? Scotland voted to stay in the EU but you appear to have no problem in over ruling their desire to stay..You can’t have your cake and eat it.
No Yellard. Nations within an internationally recognized nation-state generally do not have the right to interfere with the territorial integrity of the existing nation-state. IOWs they can exist as “nations” in a colloquial sense but do not have the legal authority to rip apart pieces of an already existing nation-state which legally speaking is not theirs to dismember.