Pieter Cleppe is an EU policy analyst, based in Brussels, a research associate at various think tanks, and the editor-in-chief of BrusselsReport.eu.
With Boris Johnson having secured his job for now, attention returns to the ongoing tussles between the UK and the European Union – and Government has published plans to change the Protocol section of the Brexit deal. The goal is to make it easier for some goods to move between Britain and Northern Ireland. The EU is against this, as it claims this would break international law.
So what are the merits of these plans? And how unreasonable is the UK to tear up an international deal after having agreed it?
Yes, the UK signed up to checks in the Irish sea in return for avoiding a hard border on the island of Ireland, but the actual extent of the checks was never agreed. The understanding was that both sides would be reasonable and meet each other somewhere.
Surely this should not be so hard. If the EU is actually worried about goods sneaking into its Single Market – a fair concern – it ought to double down on checks in the ports of Rotterdam and Antwerp, the two big entry gates, not some back alley in Northern Ireland. According to the Mayor of Antwerp, both ports are “leaking like a sieve”.
The EU claims that its proposal amounts to minimising checks. However, what is often lost in this debate is that the EU has attached a stringent condition to ‘minimising checks’. It is demanding that, in return, the UK agrees to a Swiss-style deal on animal and plant standards, which would require the UK to continue to align its regulations with the EU’s.
As Daniel Hannan has argued, this, therefore, does not amount to a concession but to an extra demand, stating: “the real threat is this lamentable tendency in Brussels to think of the UK as a renegade province that needs to be brought to heel rather than as a strategic ally”.
This is really unfortunate, given that the EU could simply offer to minimise checks without making extra demands for regulatory alignment. Due to the standoff, the political situation in Northern Ireland is becoming even more complex than it already was. The Brexit deal did not provide each community in Northern Ireland with a veto, whereas this is one of the core pillars of the Good Friday Agreement to appease the situation. Perhaps one could argue in favour of this factor, but it doesn’t make it easier to sell the Brexit arrangement to the likes of the DUP.
In the end, the EU can drag the UK to court. Strangely, the EU’s own top court, the European Court of Justice, in Luxembourg, has been tasked to serve as the arbiter for differences resulting over anything to do with Northern Ireland. The UK now wants to water down the ECJ’s role. Perhaps the EU should take this request seriously, since having the top court of only one of the parties to serve as the arbiter may not be conducive to getting both parties to accept a fair resolution.
Indeed, the European Commission has already dragged the UK – the UK’s Supreme Court to be precise – before the ECJ, claiming that a February 2020 UK Supreme Court ruling in the “Micula” case – whereby Romania was ordered to pay compensation to investors who lost out on state subsidies – “breached the principle of sincere co-operation, and violated EU law”.
Clearly, the EU’s urge to respect international law does not seem to extend to cases where it is less convenient for the EU or certain member states. At the moment, the EU is also urging a D.C. federal court to overrule a €291 million arbitral award against Spain for having introduced drastic changes in 2013 to its financial support scheme for renewable energy installations, thereby changing the rules of the game for bona fide investors.
The award is one of many imposed on Spain, which is frantically resisting to pay its debt to companies like Nextera, Antin, Eiser or Greentech, having lost pretty much all of the many legal cases against it. Instead of simply compensating the investors, as it is ordered to do, the Spanish government legally challenges everything it is able to.
Overall, Spain has a pretty poor record of complying with arbitration rulings, whereby it finds itself in questionable company, together with the likes of Russia, Argentina and Venezuela. Last year, Spain even intervened in favour of Russia, in the Yukos case, encouraging them also not to pay. In 2011, when the lawsuit against Spain on the basis of the Energy Charter Treaty was launched, Spain was only the second Western European country to face a challenge. At that time, a person close to the groups bringing the case commented: “Spain is now in the same league as Kazakhstan and Azerbaijan when it comes to investor confidence.”
Today, however, in its quest to challenge arbitration, Spain is receiving back-up from the European Union. During its intervention for the American court, which needs to rule on an appeal against the arbitration judgement which Spain lost, the EU is not merely arguing that the private arbitration court would not have properly interpreted the law.
It goes as far to claim that the case should not have gone to arbitration in the first place, referring to the 2018 “Achmea” ruling by the European Court of Justice, which decided that intra-EU legal disputes should not be subject to arbitration.
The reason why arbitration is relevant here is due to the fact that the EU signed up to the multilateral Energy Charter Treaty back in the 1990s. A number of EU member states, including Spain, are now trying to renegotiate the international agreement and have even threatened to withdraw from it.
Perhaps for the future, the EU should spare us its lectures about international law, and focus on finding satisfying solutions on how to implement checks in the Irish Sea that are proportionate with the risk that this would become a back door into the single market. The UK’s proposal to merely check goods arriving into Northern Ireland from Great Britain that are not destined to remain in Northern Ireland is a more than reasonable contribution to squaring the circle.