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The EU/UK Withdrawal Agreement is NOT a Treaty between States

The Vienna Convention on the Law of Treaties defines treaties as agreements between states. But the EU is not a state, it is an international organisation. So, the Withdrawal Agreement does not have the status of a treaty. The EU is not a party to the Vienna Convention, so it can hardly invoke its provisions.

https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

(See House of Commons Library, Could the Withdrawal Agreement be
terminated under international law? 19 March 2019.)

It is legitimate to terminate a treaty if the terms of the treaty become injurious to a state: Tuilleadh

How many people looked at the 500-page EU/UK Withdrawal Treaty to find out what the Irish backstop really says?

Most people think that it is about avoiding customs posts on the Irish border. But there is much more to it than that.

The letter below from David Trimble, former Irish ambassador to Canada Ray Bassett, Northern Ireland economist Graham Gudgin and others explains clearly why the backstop as it stands should be unacceptable to any genuine democratically minded person, whether Irish or British.

At present the UK can legally leave the EU under the terms of Article 50 of the Treaty on European Union. With this Irish backstop in place the UK could not legally leave the EU Customs Union, Single Market and Court of Justice jurisdiction unless it had the permission of the EU including Ireland. The could keep the UK under EU rule indefinitely.

The Irish backstop is therefore effectively a device that has been concocted by the Brussels Commission, the Irish Government and some of the UK’s own “Remainers” to frustrate Brexit and, if possible, prevent it altogether.

It seeks to set aside the vote of the British people in 2016 to get back their fundamental democratic right to make their own laws and decide their own governmental policies.

Ireland has surrendered this right to the EU, despite all its public talk about valuing democracy, sovereignty and national independence.

This Trimble/Bassett letter points out that the backstop as it stands undermines the principle of consent in the Good Friday (Belfast) Agreement. It drives a further wedge between Northern Ireland Nationalists and Unionists instead of encouraging them to come together for a shared future.

How this backstop was agreed to by UK chief negotiator Oliver Robbins is hard to understand. One wonders did Prime Minister May herself realise its implications when she went along with it initially, although the UK Parliament has now declined to approve it?

There are perfectly reasonable alternatives to the backstop that would avoid a hard North-South border in Ireland, while respecting the existing State boundaries and the Good Friday Agreement.

For example the UK Government could give an undertaking to the EU that it will not allow its territory to become a source of non-compliant goods leaking into the EU Single Market. Such an undertaking could be underpinned by a licensing system for UK exporters to the EU that would force them to meet EU requirements or suffer penalties under UK law. EU officials could be invited to assist in investigations.

This would address the fact that what matters for the integrity of the EU Single Market is not what goods may be in circulation within Northern Ireland – which should be no business of the EU once the UK had left – but only what goods cross the land border into the Irish Republic. Full regulatory alignment between the North and South of Ireland, or between the UK as a whole and the Republic, is not necessary for this purpose. After all only some 6% of UK firms export goods to the rest of the EU.

Daily Telegraph, Saturday 12 January 2019:

Sir, Much of the focus on the Withdrawal Agreement has been on the difficulty of the UK unilaterally withdrawing from the backstop. The Irish Protocol in the Withdrawal Agreement stipulates that the backstop will take force from the end of the transition period (i.e.from January 2021 or up to two years later). It will remain in force until superseded by a subsequent permanent agreement which must be compatible with the UK guarantee of ‘no hard border including no physical infrastructure or related checks and controls’.

Alternatively, a review procedure may release the UK from the backstop but only if matters have changed in ways which render the backstop no longer necessary to achieve the Protocol’s objectives.

The review procedure lists four Protocol objectives which must be met, only one of which is ‘the avoidance of a hard border’. The others are much wider and in the case of ‘addressing the unique circumstances on the island of Ireland’ and ‘protecting the Good Friday Agreement in all its aspects’ are impossibly vague. How such wording was accepted by UK negotiators will be a matter for historians.

The fourth condition, only slightly less all-encompassing, is to ‘maintain the conditions for north-south co-operation’. In the December 2017 Joint Progress Report the UK conceded that such maintenance ‘relies to a significant extent on the EU common legal and policy framework’. The National Audit Office has subsequently contradicted this for health co-operation, but the damage was already done. Again, it is hard to credit that such drafting was accepted

obvious consequence of all of this is that the EU’s common legal and policy framework must be followed permanently in Northern Ireland if the conditions for continued north-south co-operation as defined in the Withdrawal Agreement are to be maintained. This means Northern Ireland remaining permanently within the EU customs union and the single market as described in the backstop and in a way that undermines the Good Friday Agreement itself.

Moreover if the UK Government is to keep its promises of no impediments to trade between Northern Ireland and Great Britain the same conditions will need to apply throughout the UK.

It is important for those planning to support the Withdrawal Agreement to realise that like diamonds the backstop is forever.

Yours sincerely,

Ray Bassett, Former Irish Ambassador to Canada

Lord Maurice Glasman, House of Lords

Dr. Graham Gudgin, University of Cambridge

Dr Shanker Singham, CEO Competere

Professor Robert Tombs, University of Cambridge

Lord David Trimble, House of Lords

Tackling the EU Empire: basic critical facts on EU/Eurozone – a handbook for European Democrats

TACKLING THE EU EMPIRE    

Basic critical facts on the EU/Eurozone

handbook for Europe’s democrats, whether politically Left, Right or Centre                

“Sometimes I like to compare the EU as a creation to the organization of empire. We have the dimension of empire.”   –  EU Commission President Jose Manuel Barroso, 2007

Readers are invited to use or adapt this document in whole or in part for their own purposes, including changing its title if desired, and to circulate it to others without any need of reference to or acknowledgement of its source.

Contents

  • The EU’s myth of origin
  • EU ideology: supranationalism v. internationalism
  • A spin-off of the Cold War
  • The euro as a response to German reunification
  • The intoxication of Big Powerdom
  • EU expansion from six to 28; “Brexit”
  • The economic basis of the EU
  • The succession of EU treaties: the 1957 Treaty ofRome
  • The 1987 Single European Act (SEA)
  • The 1992 Maastricht Treaty on European Union
  • The 1998 Amsterdam Treaty
  • The 2001 Nice Treaty
  • The 2009 Lisbon Treaty: the EU’s Constitution
  • EU Powers and National Powers
  • The “doctrine of the occupied field”; Subsidiarity
  • More voting power for the Big States under the Lisbon Treaty
  • How the EU is run: the Brussels Commission
  • The Council of Ministers
  • The European Council
  • The European Parliament
  • The Court of Justice (ECJ) as a Constitution-maker
  • The EU Charter of Fundamental Rights
  • The extent of EU laws
  • Is Another Europe, a Social Europe, possible?
  • How the EU is financed
  • Why national politicians surrender powers to the EU
  • The EU’s assault on national democracy
  • EU Justice, “Home Affairs” and Crime; Migration, Schengen
  • The Common Foreign and Security policy: EU militarization
  • The euro: from EU to Eurozone federalism
  • The euro, the bank crisis and the sovereign debt crisis
  • Two treaties for the Eurozone: The Fiscal Compact and the ESM Treaty
  • No European people or demos to provide a basis for an EU democracy
  • How the Eurozone prevents the “PIIGS” countries overcoming the economic crisis
  • The benefits of restoring national currencies
  • Contrast Iceland
  • Tackling the EU Leviathan
  • Democrats on Centre, Left and Right for national independence and democracy
  • Conclusion: Europe’s Future
  • Ireland’s EU membership
  • Abolishing the punt and adopting the euro
  • Ireland’s experience of an independent currency 1993-1999
  • The 2008 bank guarantee and the 2010 Eurozone bailout
  • Reestablishing an independent Irish currency
  • Some political consequences of Ireland’s EU membership
  • An independent democratic future
  • Useful sources of information on the EU
  • Reference Notes
  • An invitation

 

THE EU’S MYTH OF ORIGIN:  All States and aspiring States have their “myth of origin” – that is, a story, true or false, of how they came into being. The myth of origin of the European Union is that it is essentially a peace project to prevent wars between Germany and France, as if a collective tendency to go to war were somehow genetically inherited.  In reality the EU’s origins lie in war preparations – at the start of the Cold War which followed the end of World War 2 and the possibility of that developing into a “hot war”, a real military conflict between the two victorious post-war superpowers, the USA and USSR.

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