Britain's Brexit Withdrawal Agreement: Part Three.

A direct continuation of Part Two; https://watchitdie.blogspot.com/2019/01/britains-brexit-withdrawal-agreement_30.html

In that post I explained the Protocol on Ireland/Northern Ireland. Sometimes referred to as; "The Northern Irish Backstop."

I also explained why it is considered so important. By briefly looking at the The Troubles in Northern Ireland and the 1998 Belfast Agreement which helped to end them.

I then looked at some of the concessions British Prime Minister May extracted from the EU in negotiating the protocol.

In my rush to get all of that, just out of my brain and onto the page my mind managed to completely blank on another significant concession Prime Minister May won during the negotiation.

The terms of the protocol will put the British mainland in a unique customs union with the EU.

That requires the British mainland to impose tariffs/taxes on imports and exports. The level of those tariff/taxes is set by the Most Favoured Nations (MFN) provisions of the 1994 General Agreement on Trade and Tariffs (GATT).

These are the World Trade Organisation (WTO) terms the Hard Brexiteers are so hot for.

Beyond the tariffs themselves administration fees are also imposed. In order to pay the staff needed to process all the paperwork and conduct the physical customs checks.

For example, although slightly off-topic, a B-2 Tourism visa to the US costs US$160. Typically it lasts for one month.

On Friday December 14th  (14/12/18) the EU announced that post-Brexit, British citizens will require a European Travel Information & Authorisation System (ETIAS) visa to travel to the EU as tourists. This costs around US$8 and lasts for up to three years.

During trade wars nations normally massively inflate these administration fees. It allows them to impose a de facto higher tariff above the ones which are allowed by law.

What Britain will be able to do under the protocol is count the administration fee as part of the tariff. Allowing it to in fact charge a lower tariff than the one allowed by law. The tariff will be the same and in accordance with the law. However the total cost will be lower.

So imagine you're an importer/exporter looking to send goods into the EU via a/the customs union. Do you opt for Turkey which charges tariffs and fees. Or do you chose the British mainland which only charges tariffs?

I suspect the vehicle production sector of its economy, which Turkey is trying to expand, may well find itself running into some problems.

As I've said the Plan A laid out in the Withdrawal Agreement is that all issues are resolved during the Transition Period. If that fails the Withdrawal Agreement sets out the Plan B contingency; extending the Transition Period.

It is only if both Plan A and Plan B fail that the Plan C of the Protocol on Ireland/Northern Ireland will be invoked. As the contingency for the contingency.

I hope I have also managed to make clear that the Protocol on Ireland/Northern Ireland will not put the British mainland in the EU Customs Union.

However despite this and all the other concessions Prime Minister May has been able to extract being in any sort of customs union is not ideal. You still have to impose tariffs, perform some physical border checks and fill out a lot of paperwork.

Turkey is currently the only nation which is in the EU Customs Union but not also in the EU Single Market. They complain about this on pretty much a daily basis.

To the point that if I want to infuriate Turkish President/Prime Minister/Emperor Recep Tayyip Erdogan I merely have to utter the polite farewell;

"See You."

I don't even need to follow it up with the more traditional confirmation;

"See You Next Tuesday."

Therefore before Britain enters into even this unique customs union with the EU it is only prudent and sensible to ask if it will ever be able to get out of it again. And if so, by what mechanism.

As has been very widely publicised in Britain the Protocol on Ireland/Northern Ireland does not contain a specified end date. Nor does Britain, or the EU, have the power to unilaterally withdraw from the protocol.

However much of this wide publicity regarding the Protocol on Ireland/Northern Ireland has relied upon a pernicious myth. Put simply the lie that it contains no legal guarantees.

The Protocol Contains Legally Binding Guarantees.

Paragraph 5 (p.5) of the Preamble of the Withdrawal Agreement states clearly;

"STRESSING that the objective of this Agreement is to ensure an orderly withdrawal of the United Kingdom from the Union"

While Article 1(4) of the Protocol itself states even more clearly that;

"The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1)."

I suppose the layout of the document made available to British MP's could be altered, on a Mutatis mutandis (change only that which is necessary) basis. So these statements appear in every article on every page.

However legally you only need to state it once. Stating it twice is overkill.

During both the Transition Period and under the protocol, if it is invoked contact between Britain and the EU will be through the Joint Committee mechanism. This is laid out under Title Two of Part Six of the Withdrawal Agreement.

The Joint Committee mechanism simply allows for a series of summits or meetings between representatives of the EU and representatives of the British government. It is essentially how negotiations have been conducted up until now.

However with Britain leaving the EU and becoming a so-called Third Country before either the Transition Period or the Protocol on Ireland/Northern Ireland come into effect it requires a separate mechanism. Outside of the EU mechanism.

Due to the legal guarantee in Paragraph five of the Preamble all of the work of the Joint Committee is legally obligated to focus on bringing the Transition Period to an end as quickly as is reasonably possible.

If the Protocol on Ireland/Northern Ireland is invoked then both the legal guarantee in p.5 of the Preamble and Article 1(4) of the protocol mean that all of the work of the Joint Committee is legally obligated to focus on bringing the protocol to an end as quickly as is reasonably possible.

If Britain feels that the EU is not living up to this legal obligation within the Joint Committee mechanism it can take the matter up under the Withdrawal Agreement's Dispute Settlement procedure. This is laid out under Title Three of Part Six of the Withdrawal Agreement.

The Dispute Settlement procedure sees the matter taken to the International Bureau of the Permanent Court of Arbitration (PCA-CPA).

Although located in the Hague, the Netherlands the PCA-CPA is not a body of the EU. It is not even a body of the UN. Founded in 1899 it is recognised as the international, intergovernmental body for dispute resolution.

Upon referral the PCA-CPA will ask the EU to nominate 10 people to sit on an Arbitration Panel. The PCA-CPA will also ask Britain to nominate 10 people to sit on an Arbitration Panel. Between them the EU and Britain will also be asked to nominate a total of 5 people to act as chair of the Arbitration Panel.

From that list of 25 names the PCA-CPA will pick four people to make up the Arbitration Panel. Two from the EU and two from Britain. Those four will then pick a fifth person from the sub-list to act as chair of the panel.

At the risk of being strangled by at least one of my mothers I'm tempted to call this Arbitration Panel the; "Supreme Court of Brexit."

Technically it is not a Court. However it is a panel of five people considering a case and making a legally binding ruling.

Those five people must be wholly independent of either the British government or any EU Member State government. They must also be qualified to the extent that they can hold the post of Supreme Court Judge in their respective country.

This system guarantees Britain, as a single nation at least two seats on this Supreme Court of Brexit. The EU, as 27 nations is only guaranteed two seats. This automatically gives Britain a clear majority on this Supreme Court of Brexit.

Aside from Britain's clear majority the guarantees of p.5 and A.1(4) mean that when faced with any reasonable request this Supreme Court of Brexit is legally bound to rule in favour of ending the Protocol on Ireland/Northern Ireland.

The burden-of-proof, if you like is on the party which wants to keep the protocol in place.

To put it in a way even arch-Remoaner Gary Lineker would understand;

"In a 50/50 challenge the ref's got to send it off."

Hard Brexiteers objections to the Protocol on Ireland/Northern Ireland are being fuelled by a, belief that it will be used by the EU to trap Britain within this, unique customs union.

Practically that is not something the EU can do.

Both the Withdrawal Agreement and the protocol place a legal obligation on all parties to bring the situation to an end as quickly as is reasonably possible. If either party feels that obligation is not being met there is a legally binding dispute resolution mechanism to enforce the legal obligation.

Beyond whether it is legally possible you also have to consider whether it is something the EU, realistically would want to do.

I voted to Leave because I think Britain's political culture and the EU's political culture aren't really compatible with each other. This incompatibility has led to a lot of conflict and tension over the years.

As I've said there has been absolutely nothing about this negotiation process which has changed my opinion.

Particularly when, on Thursday December 13th (13/12/18) and Friday December 14th (14/12/18) the British Parliament forced Prime Minister May to hijack the EU's monthly summit. To demand concessions and legal guarantees.

Concessions and legal guarantees which had not only already been won but were already published in the document in front of British Parliamentarians.

As a result Britain has never been anyone's favourite member of the EU.

It's more a case of Britain being tolerated for the money it brings in. Both directly in contributions to the EU budget and indirectly through the remittances that migrant workers in Britain send home to their native countries.

Regardless of whether Parliament passes the Withdrawal Agreement into law Britain will leave the EU on March 29th 2019 (29/3/19).

Britain's contributions to the EU budget will end in 2020. Before the Plan B of extending the Transition Period is activated.

If Plan C, the Protocol of Ireland/Northern Ireland is ever invoked it will bring an end to the Free Movement of People/Human Capital. Meaning an end to the remittances being sent home by migrant workers.

This really removes any incentive for the EU to try and keep Britain within the customs union.

Keeping Britain in the customs union actually causes the EU a lot of problems.

It is really hard to overstate just how big a concession Prime Minister May was able to win in allowing Northern Ireland to remain in a single market while ending the Free Movement of People/Human Capital.

This idea was first suggested in the so-called "Chequers Plan" published in July 2018. I immediately dismissed it out-of-hand. I assumed there was absolutely no way Britain would ever be able to get the EU to agree to it.

The Free Movement of People/Human Capital is one of the so-called; "Four Freedoms of the EU Single Market." Sometimes referred to as; "The Four Pillars" these are the core values on which the EU Single Market is founded.

If I was trying to cause maximum offence I would say that trying to be a member of the Single Market without accepting the Free Movement of People/Human Capital is a like a Muslim saying; "Oh, but there are other gods, except Allah."

The Four Freedoms or Pillars are something that all EU members must accept. They are something that all prospective members of the EU must accept. They are even something that nations which wish to have a close relationship with the EU, such as Iceland, Liechtenstein, Norway and Switzerland must accept.

I'm not overly familiar with Iceland, Liechtenstein and Switzerland's agreements with the EU. However I know that Norway's agreement contains a clause. If the EU subsequently does a better deal with another country it must automatically grant Norway the terms of that deal.

The Withdrawal Agreement contains specific language making clear that it does not prejudice the EU's relationships with Iceland, Liechtenstein, Norway and Switzerland. So Norway has no real legal recourse to use the agreement to demand a better deal with the EU.

However that will not stop politicians giving speeches and loudly knocking on the door of the EU demanding a better deal.

Even within existing EU member states Free Movement of People/Human Capital has become an extremely unpopular and contentious issue.

In Part Two I mentioned that on December 8th (8/12/18) the governing coalition in EU member state Belgium was brought down. The New Flemish Alliance (N-VA) withdrew in protest over the Free Movement of People/Human Capital.

Strictly speaking the N-VA brought down governing coalition in protest over plans to adopt the UN Global Compact for Migration.

Although I've clearly not had time to read it, inter alia, the UN Global Compact for Migration is a relatively benign document. In the sense that it is not legally binding and has no legal force.

However it is a clear statement of intent.

The intent to formalise the abuse of the legally binding 1952 Convention on the Status of Refugees. In order to secure a steady supply of cheap Human Capital into rich nations from poor nations. Nations which are often poor because rich nations have chosen to destabilise them.

I would say that the much more significant document in this area is Barack Obama's 2015 Paris Agreement. This will cause catastrophic Climate Change. Leaving sections of the planet inhabitable for humans creating permanent Climate Refugees.

So it seems the formal policy of Obama and his Progressive Democrats is; "Burn It! Burn It All Down!"

The N-VA withdrew from government over the UN Global Compact for Migration. However this was really just the thing on the government's schedule which allowed the N-VA to withdraw in protest over the EU's Free Movement of People/Human Capital.

On Sunday December 16th (16/12/18) the issue ignited again in Brussels. With sometimes violent protests.

Sadly those protests were not violent enough to penetrate the thick skulls of British Parliamentarians and journalists. Nor were Greek attempts to enlighten a certain TV News broadcaster.

The Free Movement of People/Human Capital is not just an increasingly unpopular and contentious issue in the rich, western EU member states. Which migrants tend to migrate to. It is also becoming increasingly unpopular in the poorer, eastern EU member states. Which migrants tend to migrate from.

The highlight of the European political calender is the Eurovision Song Contest. This sees issues important to the entire continent, not just the EU discussed. In the form of three minute pop songs.

At the 2015 Eurovision Song Contest EU member state Romania were represented by Voltaj with the song; "De La Capat/All Over Again." This caused some controversy regarding the contest's no overt politics rule. 

The song had previously been used as part of a government backed political campaign. This delacapat.ro campaign was attempting to discourage Romanian parents migrating to find work in nations such as Britain. Or at least raise money to care for the children they'd abandoned.

At the 2018 Song Contest Romania were represented by the song; "Goodbye" by The Humans. The band share their name with a UK TV show. The message being that if that's the only remittance migrants are sending home Romania's got a really raw deal.

While taking a shot at British Remoaners, upset at the prospect of loosing their dollies.

Recently EU member state Poland has followed Romania's example. Starting a government backed political campaign. Urging its citizens not to migrate or for the ones who have migrated to return home. In order to solve a growing labour shortage.

To fill the labour shortage in the interim Poland has started accepting large numbers of migrant workers from neighbouring Ukraine. Which is not part of the EU. 

However Poland harbours a deep hatred of Russia because it allows them to avoid facing up to its own Nazi past. This means that Poland now massively supports Nazi-led Ukraine.

Much as I love a tangent I don't have time to go down that particular rabbit hole at the moment.

The labour shortage created by the Free Movement of People/Human Capital has been even more acute in EU member state Hungary.

The Hungarian government is attempting to tackle this labour shortage by introducing, on December 10th (10/12/18) changes to labour laws. 

Probably the most controversial provision of these reforms allows employers to force workers to do 400 hours of overtime each year. Then delay payment for that forced overtime for up to three years.

The Hungarian government had previously refused to solve the labour shortage by following the orders of George Soros and Germany's Angela Merkel. Simply import more Human Capital from Muslim nations such as Libya and Syria. 

After all the Progressive Democrats seem intent on keeping the fires burning there for as long as possible.

Due to this disobedience of the high lord Soros the EU Parliament, in September 2018 voted to suspend Hungary's voting rights. It is now up to the leaders of EU member states to reach a consensus on whether to follow through on that threat.

The longstanding, conventional wisdom is that Poland will veto the suspension of Hungary's voting rights. 

So the way that certain EU officials are supporting the ongoing, sometimes violent protests in Hungary is starting to resemble the way certain US Ambassadors supported the 2014 'revolution' in Ukraine.

I'm sure though it's just another attempt to drive it through thick British skulls.

However the longstanding conventional wisdom on Hungary and Poland may not hold.

Ukraine's Nazis have recently decided that they're no longer satisfied with simply exterminating all ethnically Russian citizens. They now want to exterminate all ethnically Hungarian citizens as well.

Recently the Ukrainian government permitted the Parliamentary website to host a petition calling for ethnic Hungarians to be forcibly expelled from the country. 

More alarmingly the Ukrainian government linked Mirotvorets website published a list of the names and addresses of ethnically Hungarian citizens.

Mirotvorets has previously published the names and addresses of ethnically Russian Ukrainians. People who have gone on to be murdered.

This has unsurprisingly led to an increase in tension between Hungary and Nazi-led Ukraine. Which may well spill over into tension between Hungary and Poland, which supports Nazi-led Ukraine.

So feasibly during the Transition Period Britain could find itself negotiating with 25 rather than 27 EU member states. 

Primarily in Part Two I explained the significant concessions Prime Minister May has extracted from the EU under the Protocol on Ireland/Northern Ireland.

I particularly enjoyed detailing how this unique customs union puts Britain in a much better position than Turkey. The only member of the EU Customs Union which is not also a member of the EU Single Market.

I may have enjoyed it a little bit too much.

In the coming years the EU is certainly likely to think so.

Since, certainly 2015 Turkey has been trying to blackmail the EU. By threatening to and sending wave-after-wave of irregular migrants and Islamist terrorists from Turkey into the EU.

In no small part Turkey's objective in this blackmail is to get itself promoted from the Customs Union to the Single Market. Without adopting EU standards and regulations.

You know, petty little things. Like not invading neighbouring nations. Nor using artillery and airstrikes to totally destroy cities such as Diyarbakir. In order to kill or displace all or part of an ethnic group.

I say Turkey's been trying to blackmail the EU. The EU's progressive democrats don't seem to be making any attempts to resist this blackmail. The EU is certainly not using any of the tools at its disposal.

Instead the EU seems to be rewarding Turkey for the free flow of Human Capital. By setting up a Trust Fund for refugees in Turkey. Chapter Six of the Withdrawal Agreement actually addresses Britain's financial obligations to that Trust Fund.

That is an issue on which I can quickly offer clarity.

In violation of EU rules Turkey does not recognise the 1952 Convention on refugees. Ergo there are no refugees in Turkey. So Britain's financial obligations under Chapter Six are precisely zero.

Away from the migration issue Turkey is also causing the EU significant problems. And one EU member state in particular, Cyprus.

In 1974 Turkey militarily invaded Cyprus. It continues to illegally occupy the northern half of the island.

Turkey claims its invasion of Cyprus was a humanitarian intervention. To protect civilians following a military coup.

However the military junta collapsed in July 1974. The Turkish invasion occurred in August 1974.

I am most certainly not comparing Turkey's invasion and occupation of Cyprus with Northern Ireland's status as part of Britain.

However while the reasons why they came about are completely different the current situations are quite similar. Particularly in terms of trade and customs arrangements.

The entire island of Cyprus is considered an EU member state and a member of the EU Single Market. However the northern part of the island is, at the same time not considered part of either the EU or the Single Market. Simply because it is under Turkish occupation.

Turkey is though a member of the EU Customs Union. So in theory goods from the occupied part of Cyprus are free to enter the EU Single Market with the minimum of customs checks. As they are free to enter Turkey.

That said the relationship between Cyprus and Turkey is absolutely nothing like the relationship between the Republic of Ireland and Britain.

So both sides use militarised, hard borders as part of their dispute. The closure of border crossings is a sign of growing hostility. The opening of border crossings is a sign of warming relations.

It frequently falls to the EU to mediate between Cyprus and Turkey in these disputes.

Nobody seems prepared to provide a check on Erdogan's efforts to drive Turkey down through Syria.

Feeling free to do as he pleases Erdogan is becoming increasingly militant on the Cyprus issue. Particularly now large deposits of natural gas have been discovered in the island's territorial waters.

You can be absolutely certain that in future engagement with the EU over Cyprus Erdogan will be bringing up the much more favourable terms of Britain's unique customs union.

As it stands the EU seems utterly incapable of pulling its weight when it comes to Turkey. The longer the protocol goes on for the harder it is going to get for them.

So I would actually be more worried about the EU unilaterally scrapping the Protocol on Ireland/Northern Ireland than attempting to trap Britain in it.

Rather like a certain Bajan pop princess the Hard Brexiteers need to accept that; "Oh, hun. You're just not that much of a prize."

Even if their antics have prompted Britain to put 3,500 troops on stand-by.

(Originally Posted at 16:45 on 23/12/18 (UK date)).

17:35 on 9/1/19 (UK date).