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The British establishment since June 2016 has been trying to find a compromise within the anticipated Brexit process paradigm. In this context both British and European leaders have been facing legal, political and intellectual challenges.
Analysts in this context have started asking whether a country can be both half in and half out of the European Union. Questions are also being raised as to whether there is scope under international law for creating a new category of associate or second-class membership within the EU.
In this regard, critics are reminding the tight maze a country has to traverse if a State in Europe applies to join the EU. References are there to the difficulties being faced by Bosnia and Serbia. They are also referring to the laborious negotiations that have proceeded for several years before a country has been granted admission to the status of member state-- as in the case of Croatia in 2013.
Analysts are also drawing attention to three other States - Norway, Iceland and Switzerland - which got stuck during the accession process, disagreed with the ramifications of full EU membership and then changed their mind about joining. Subsequently, the first two have forged (with tiny Liechtenstein) an European Economic Area agreement with the EU through which they enjoy most of the privileges of full membership without any of the rights of full membership. Switzerland moved on its own path and now finds itself in a controversial matrix of bilateral agreements with the EU and its member states. None of these four European countries are members of the EU customs union. That privilege belongs to another country- Turkey. They have been given certain rights except in the area of agriculture. In this regard they have to accept the common external tariff of the EU.
It needs to be noted, however, that these countries enjoy certain facilities but their goods require customs checks and are subject to the levy of complex VAT and excise duties, certification of rules of origin and application of the EU's health and safety norms.
Interestingly, Jeremy Corbyn, the British Labour Party leader, who as an MP has shown disdain in the past about remaining in the EU, now appears to have changed his tone. In a speech delivered on February 26, he announced his conversion to continued UK membership of the customs union. However, it was underlined that if he became the British Prime Minister he would demand full access to the single market subject to the UK's ability to "negotiate protections, clarifications or exemptions" where it wants them -- for example on labour mobility, state aids and competition policy. Furthermore, unlike Turkey, Labour would also want its own trade policy functioning within the broad contours of EU's commercial policy. Such a stance, it may be mentioned, would be different from Norway.
Interestingly, two former British Prime Ministers John Major (1990-97) and Tony Blair (1997-2007) have expressed disagreement with Jeremy Corbyn. They want to stop Brexit and hope that the British House of Commons will vote against the Article 50 withdrawal agreement in October. Their stand is based on two presumptions: first, that the EU would be happy to have the British back as full member without imposing tough political conditions; and second, that the British electorate would change its mind about Brexit if offered the chance to do so in a second referendum. Blair apparently spoke recently in Brussels and stated that he believes that the British people will change their mind about Brexit if only the EU could solve the problem of immigration.
Blair has also pointed out that there is need for reform with regard to fiscal policy (for the Eurozone), energy supply and immigration policy. These will not be easy to accomplish by the EU without a formal shift of competence up from the member states to the EU level. Any doubt in this regard or how resistant the EU is to political reform was made clear recently through Mark Rutte's speech in Berlin on March 2.
It needs to be admitted that some care has been taken in finalising the secession process. Andrew Duff (a member of the Constitutional Convention and one of European Parliament's representatives at the drafting of the Treaty of Lisbon) has noted certain technical aspects in this context - "If proof were needed that the Article 50 withdrawal agreement is mainly a technical exercise, we had it on February 28 when the Commission published its draft text. This is what the House of Commons will have to vote on in the autumn. It is a clear and well-structured draft which succeeds in translating the political agreement of the Joint Report of December 2017 into legal language. For the first time we see how the terms of the secession treaty are to be applied. The arrangements for governance are robust and comprehensive. They include the establishment of a new independent authority in Britain to oversee the rights of EU citizens staying on, and the setting up of a new institution in Brussels dubbed the Joint Committee. The Commission proposes a wide remit for the Joint Committee, co-chaired by the UK and EU, to implement, apply and interpret the agreement (Article 157). The Committee, and five or more specialised committees, will seek to resolve problems technically and politically before they escalate into litigation. Decisions of the Joint Committee will be made by consensus and will have binding effect. Disputes must be brought to the Joint Committee, which may, at any point, refer the matter to the European Court of Justice for a ruling that will be binding on both parties.
Other socio-economists after examination of the draft have also pointed out that the British government will also need to apply itself carefully about two particular aspects of the draft secession treaty. The first relates to the rights of British nationals resident in EU states, and their free movement across the Union (Article 32). This apparently will be at the discretion of individual states. The second issue concerns the timetable, where the draft simply foresees the closure of the transition period on December 31, 2020 (Article 121). It is being mentioned that such a deadline is probably too short for the reaching of an agreement on the final relationship. Critics are mentioning that there should be a provision for the extension of this transition period.
There has also been controversy with another critical matter in the European Commission's draft text which includes a Protocol on the Irish border. Both Prime Minister Theresa May and labour leader Jeremy Corbyn have indicated this to be unacceptable. It may be recalled that the Joint Report of December 2017 outlined three options for Ireland -- a comprehensive free trade agreement between the EU and UK that would avoid a hard border and protect North-South cooperation as well as commerce between the whole island of Ireland and Great Britain; the second being a package of smart customs and border control arrangements to be proposed by the UK government; and the third being a joint commitment by the UK government and the EU to establish full regulatory alignment between Northern Ireland and Ireland, should the first two options not materialise. In addition, Article 15 makes it clear that the Protocol will not be applicable if the future UK-EU trade negotiations reach an agreement which avoids a hard border and protects the Good Friday Agreement.
The strong reaction in London to the appearance of the draft protocol suggests that the UK establishment as well as North Ireland will have a tough time ahead unless they can find least common denominators in the shortest possible time.
British Prime Minister Theresa May gave her third set-piece speech on Brexit at Mansion House in London on March 2. Unlike the first two, this time she tried to face up to truths she had previously sought to avoid. She noted that she accepted the basis of the EU's case, set out in its original guidelines of April 2017 that a country seceding from the EU leaves the customs union and internal market, and that, accordingly, present levels of trade will be diminished after Brexit. She also underlined her hope that Britain would be able to complete negotiations that would end in a comprehensive rules-based system of mutual recognition.
The Prime Minister's views will certainly receive careful attention during the forthcoming meetings of the European Council. They will also have to draft new guidelines for the European Commission. Without this measure, the responsible authorities will be unable to finalise the draft of the political declaration or the juridical principles that will need to be attached to Article 50 that will define the framework for Britain's future relationship with the EU.
One thing is clear. The Brexit process is more complex than before.
The writer, a former Ambassador, is an analyst specialised in foreign affairs, right to information and
good governance.