If the UK were about to violate international law and resile from the Northern Ireland Protocol, it would be a very grave matter.
But a potent allegation has been made that suggests something closer the opposite. We need to know whether or not the EU negotiating team cynically misused its stranglehold control over the Withdrawal Agreement to twist its intent, and in so doing breached the EU’s obligations of good faith and subverted the Good Friday peace accord.
If it is true that Michel Barnier “explicitly” threatened to obstruct exports and food supplies from Great Britain to Ulster by means of an extreme and malicious interpretation of the Protocol – as the Prime Minister asserts – it is the EU that is playing fast and loose with international law, and arguably crossing a line into geopolitical vandalism.
If it is not true, this country needs a new government immediately. The facts will out.
What is already apparent is the collective insouciance of the EU elites over the fate of Ulster’s Unionist community, as if its cause were not really legitimate. One notes, too, a striking unwillingness by EU officials even to consider whether their own Rottweilers might be going too far.
One would hardly know from the public discussion that the underlying issue at stake is a conflict between two incompatible treaties and legal-political arrangements.
But before entering the legal thickets of the Protocol, it is relevant to point out that the EU is a practised abuser of international law. It frequently finesses or ignores treaty obligations that conflict with its core interest. Pacta Sunt Servanda tweeted Ursula von der Leyen last week. Well, quite.
The EU has systematically refused to comply with the judgments of the World Trade Organisation, flouting rulings on GMO crops, hormone beef, and Airbus subsidies, as if the matter were optional. It has repudiated the doctrine of legal supremacy and “direct effect”, the very doctrine that the EU now asserts in the Withdrawal Agreement.
It has eroded direct effect in a series of cases, culminating in Portugal v Council where the European Court ruled that the EU has no obligation to follow WTO law if it narrows the European Commission’s scope for manoeuvre. How delicious.
The ECJ ruled in the Kadi-Barakaat case that the EU should disregard the UN Charter, the highest text of international law, if the Charter is at odds with the EU’s internal constitutional order.
This is not to say that the EU is the most egregious scoff-law of the Western world but rather that it picks and chooses when it will be bound by international law like everybody else. It will not sacrifice core interests, and it is surely the UK’s core interests that are at stake right now as the Internal Market Bill heads for a its second reading.
The Northern Ireland Protocol was agreed on the assumption that Brussels would agree to an off-the-shelf ‘Canada-Japan-Korea’ trade deal with no bells and whistles – as Mr Barnier himself had offered – and therefore that there would be no more than a light-touch trade border between Britain and Ulster. On that basis the Unionists said they could live with it.
The EU has since moved the goalposts. The prospect of a no-deal rupture and intra-UK trade tariffs has constitutional implications for Northern Ireland, creating a much harder trade border in Irish Sea than the Unionists supposed. It therefore intrudes ineluctably on the Good Friday peace accord.
It is too glib by half to say that Boris Johnson signed up to the Agreement and therefore that it is his own fault.
It is equally glib to dismiss the invocation of the Good Friday accord as a canard. It takes some chutzpah to claim that a hard (electronic) tariff border on the island of Ireland is a grave threat to peace, but that a near identical tariff border down the Irish Sea is of no significance even though it severs constituent parts of the UK and covers ten times as much trade.
The Good Friday accord is also an international treaty. The Withdrawal Agreement cannot override it and impose a new constitutional regime on the Unionists without their consent. The UK internal market bill is therefore a necessary safeguard. It is to be activated only in the case of emergency, should the EU act on the Barnier threats and further weaponise the Protocol.
It beggars belief that Brandon Lewis should tell the world that the new legislation “does break international law in a very specific and limited way” when its deeper purpose is to prevent a breach of international law. Had he framed the matter with more skill – and more accuracy – he might have spared some considerable damage to the reputation of this country.
Article 5 of the Protocol states that Northern Ireland is part of the UK customs territory and that there should be no tariffs on goods shipped across the Irish Sea from Britain unless they are re-exported to the Republic, a trivial amount that could be ring-fenced easily.
But the sub-clauses take away this protection, giving the EU extraordinary powers, should it wish to abuse them. The default setting is that all shipments into Northern Ireland are to be deemed “at risk” – obliging HMRC to collect tariffs – unless the EU agrees to a narrow list. Furthermore, Article 10 gives the EU a lever of control over the UK’s entire state aid and industrial policy by tenuous linkage to Ulster.
The allegation is that Mr Barnier played these incendiary cards in an effort to browbeat Boris Johnson into submission on the broader trade talks. Once such a card is played, there is no going back to the status quo ante.
It is a near reflexive tendency in EU circles to argue that the UK brought this state of affairs upon itself (which I dispute, but that is to relitigate Brexit) and that as the smaller party it should expect to be pushed around, that ‘strong do what they can, and the weak suffer what they must’ as the Melians were told.
This has consequences. “If you start playing the relationship talks in the spirit of a geopolitical power game, don’t be surprised when the other side plays in the same spirit,” says Eurointelligence.
We now have a stand-off and an EU ultimatum of 20 days, and no flicker of recognition yet from any EU leader that their own side might be behaving badly.
German finance minister Olaf Scholz says a no-deal outcome will have “very harsh consequences” for the UK economy but that the EU will muddle through just fine. Up to a point, Count Copper.
The question is whether the EU is willing to jeopardise its £95bn trade surplus with the UK and inflict damage on its own industries, for which it is less prepared than Mr Scholz pretends, and to do so for an ideological purpose: forcing the UK to accept the EU’s extra-territorial supremacy over state aid policy and standards, a means of eviscerating British independence.
The UK is being offered extremely little in these talks, and is asking for extremely little. Mr Scholz is therefore misframing the equation. If the EU wants to save a deal and preserve its large export acquis on this island, it will have to give up this colonial demand.
At the end of the day, Europe’s refusal to offer its immediate neighbour and security ally even a bare-bones Canada trade deal is a hostile posture.
The EU could have opted for subtler statecraft, recognising that Brexit requires a fundamental rethink about the EU’s near abroad, a chance to create an outer ring of friendly trading nations that do not wish to be locked into an emerging unitary state. Instead it has driven the UK further away. Historians will judge this to have been a strategic failure of the first order.
This final squalid slide towards an acrimonious rupture is sad for those of us who love l’Europe des Patries. But the UK has to defend itself against predatory diplomacy, deal or no deal.
The above piece was written by Ambrose Evans-Pritchard in the Daily Telegraph 13.09.20