THEME: Mediation and International Politics
This article is authored by Archit Shukla from NUSRL, Ranchi.
The following essay basically aims to investigate the application of mediation in the decision taken by the United Kingdom, to leave the European Union. There are various complex negotiations involved in it. This essay is mainly focused on mediating the BREXIT deal between the United Kingdom and the European Union. The main negotiation parties are United Kingdom, European Union and the Member States of European Union (28). There are four main factors which needs to be focused i.e. interests of the parties, agreement options, non-agreement alternatives, and the interpretation-evaluation. The parties appear to approach these immensely complex negotiations instinctively, as a zero-sum or even a negative-sum game, engaging only in single-issue negotiation. This essay proposes an international mediation process as a means to efficiently steer the withdrawal negotiations and help the parties agree on a value-preserving “withdrawal agreement”. There is no guarantee that a deal will be reached since mediation is no panacea.
However, Brexit’s economic and political stakes are so high that it would be irresponsible not to use a tool that has been tried and tested by professional negotiators in shedload private, commercial, and political settings. Apart from the traditional litigation method whether mediation as an alternate dispute redressal (ADR) mechanism, can address the loopholes in the present situation between EU and UK this essay also aims to explore considering that mediation as an Alternate Dispute Resolution (ADR) mechanism is not in vogue. Finally, the researcher aims to reach a conclusion based on the research, in order to determine that if mediation can resolve the dispute between EU and UK i.e. BREXIT.
CHAPTER 1: INTRODUCTION
BREXIT – A KAFKAESQUE
The United Kingdom is set to leave the European Union alais EU on 31st January 2020. The new Prime Minister Boris Johnson’s Brexit deal was passed by the Commons of England.
BREXIT is basically the short form of British exit which refers to the UK leaving the European Union. The European Union is considered to be an economic and political union which consists of 28 countries. European Union allows free trade and free movement of people living in the member countries, even to live and work in whichever country they chose.
- The Rise Of The Word Brexit
It came after the word was coined in May 2012 by Mr Peter Wilding. The Prime Minister David Cameron predicted that “Unless a clear view is pushed that Britain must lad in Europe at the very least to achieve the completion of the single market then the portmanteau for Greek euro exit might be followed by another sad word, Brexit”. In January 2012, it was all about the Greek crisis and the term used was GREXIT, the term used for the Greece’s possible exit from the Euro zone. Mr Wilding said that it didn’t take a great leap of faith to replace the G with a B so that’s how it came about. The word is now officially coined in the Oxford English Dictionary.
Collins Dictionary had named the Brexit as the word of the year as it is a word on everyone’s lips. Brexit was barely heard word when the President was elected in United States in 2012. But it was the political word of the year in 2016 as it was used by Donald Trump during his successful US presidential campaign. In over 40 years, Brexit is arguably politics’ one of the most important contribution to the English language since the Watergate scandal gave commentators and the comedians the suffix “-gate’ to make any incident or scandal infinitely more compelling.
- Why Is UK Leaving?
In UK, a public vote or a referendum was held on 23rd June 2016, to decide whether the United Kingdom should leave or remain a part of European Union. Leave won by 52% to 48%. The referendum turnout was very high at 72%, with more than 30 million people voting where 17.4 million people opting for the Brexit.
The PIGS countries in Europe contribute to the move taken by the British government. Poland, Italy, Greece and Spain is countries dependent upon the well to do countries in EU. The economies in these countries are nearly dead or in repair mode. The countries which are doing well in the European Union have to support the PIGS countries.
The main reason to bring this referendum was to get a public opinion of getting rid of all the problems being faced by all the 28 member countries cumulatively. The European Union of 2016 was hit by a series of extremely damaging blows like the economic crisis of 2008, Russia’s success in upsetting the post cold war balance of power in Europe, terrorist attacks from the ISIS and the bombardment of migration flow in the union. Brexit will be considered as the most significant event in Europe after the fall of Berlin Wall in 1989 and will mark the beginning of the ending of European Union.
Not all EU members use the Euro. Britain is an EU member; it is not a part of the EA. 19 of the 28 countries which use the common currency, Euro, form EA. UK does not use the Euro and has its own currency, the Pound Sterling.
The decision of BREXIT is being taken by winning from a slight margin as 48% people voted to remain in the European Union. Nearly half the population was not supporting the decision but the slight win gives a go ahead to the Prime Minister David Cameron and presents the idea of BREXIT to whole of the world. PM Cameron was the first one to give the idea of mediation in BREXIT. He basically tried to save his own party and bagged a deal from EU. By Oct. 31, 2019 Britain was expected to leave the EU but the Parliament voted to force the government to seek an extension to the deadline which delayed a vote on the new deal.
It’s been three times that the government has extended the negotiating period to avoid leaving without ratifying a deal with the EU or a “hard Brexit.”
- Nation Results
· Leave 53.4% (15,188,406 VOTES)
- Remain6% (13,266,996VOTES)
Counting complete – Turnout: 73.0%
1.2 Northern Ireland
- Leave2% (349,442 VOTES)
- Remain8% (440,707VOTES)
Counting complete – Turnout: 62.7%
- Leave0% (1,018,322 VOTES)
- Remain0% (1,661,191VOTES)
Counting complete – Turnout: 67.2%
- Leave5% (854,572 VOTES)
- Remain5% (772,347VOTES)
Counting complete – Turnout: 71.7%
CHAPTER 2: LEGALITIES
- The Treaty of Maastricht
This treaty represented a significant deepening of the integration process, but also stimulated more critical public engagement with European integration and debates about the European Union’s (EU) democratic nature. It is also called the Treaty of European Union and was signed on 7 February 1992.
In 1992, “Subsidiarity” as a general principle was established by the treaty of Maastricht for EU law. This means that decisions should be taken at the appropriate level. The goal of mediation in Brexit is related to such talks that could be to design an efficient process to identify agreeable changes to the withdrawal agreement and each side’s political declaration on their future relationship. Also, the mediation might help to sell any agreed outcome to constituencies and the public, reducing the danger of reactive devaluation. UK is the first ever member country to initiate the proceedings to withdraw from the EU.
- Treaty Of Lisbon: Article 50
This treaty is an international agreement that amends the two treaties which form the constitutional basis of the European Union. It was signed by all the EU member states on 13 December 2007, and entered into force on 1 January 2009.
Now the only legal mechanism for a member state of the European Union (EU) to leave is to trigger the Article 50 of Lisbon Treaty which is agreed by all the EU member states in 2009. Article 50 sets out the steps a country needs to go through to withdraw from the treaty obligations.
During the European sovereign debt crisis of 2010 to 2014, the Article 50 became a subject of serious discussion, when Greece’s economy appeared to be spiralling out of control. To save the euro and perhaps the EU from collapsing, the leaders considered expelling Greece from the EU. There was no clear guidance for pushing a member state out against its will. So in order to exit the EU, UK has to trigger Article 50 of Lisbon Treaty.
CHAPTER 3: INDIA-EU RELATIONSHIP IN THE CONTEXT OF BREXIT
With the political and financial consequences of the Brexit which continues to resonate around the world, it questions the impact over the global economies, including the world’s emerging markets such as India. The UK envoy says that India is unquestionably one of our major partners and the two countries can collaborate in renewable energy, electric vehicles, big data management, artificial intelligence, financial technologies and healthcare, among other sectors. The country enjoys particularly close economic, trade, political and cultural ties to the United Kingdom.
- India’s importance In Brexit
In the eyes of the United Kingdom, India’s importance would increase if there is `No Deal Brexit’.It means that if the UK leaves the EU and we will be operating as an independent country not part of the 28 member states.
In the last four years, number of Indian companies investing in the UK has quadrupled. It is believed that the Brexit is causing some companies to delay decisions, which tend to be the expansion of companies which are based in the UK. It does not seem to be stopping Indian companies from investing in the UK. Last year alone, due to Brexit when people believed that the British economy is suffering, the number of Indian companies grew by another 10. It is estimated that a free trade agreement (FTA) between UK and India will increase India–UK trade by 26% per annum.
However, even though the Brexit would change the approach of the EU towards India, it does not necessarily mean that it will automatically leads to a free trade agreement (FTA) between them. The EU-India FTA negotiations were stalled for more than five years. After the Brexit, much of the scenario depends on how the UK rebuilds its trade ties with the EU by the withdrawal agreement. It would be an opportunity for the Indian companies to diversify their investments in other union’s trading capitals, such as Amsterdam, Frankfurt, Brussels and Paris. But the uncertainty of a no-deal scenario and risk aversion tendencies across markets can further depreciate the already fragile Indian rupee. Many Economists throughout the world predicts that the hard Brexit would benefit only the US dollar. It would be the only currency. Such an outcome will also affect the pound and sterling as well as the currencies of the emerging markets, including the Indian rupee.
- Is India ready to handle the Brexit?
- India has sufficient foreign exchange reserves to handle any impact including Brexit, said by the finance ministry of India.
- Ex Governor of RBI and one the greatest Economist in the world, Raghuram Rajan said the central bank will infuse whatever liquidity is needed into the Indian market to keep it “well behaved”. Brexit will not create many problems for India.
- SEBI and stock exchanges have beefed up their surveillance mechanism to deal with any excessive volatility.
- India can think of utilizing the import-advantage by reversing the present trade scenario if exports to the UK are costly and imports are cheaper
- Once the dust settles, India may be seen to be a net gainer and inflows would continue to gravitate towards the Indian shores.
Brexit’s impact on India appears to be muted but the serious risks remain, particularly for those sectors with significant exposure to the UK. Au fond, the prolonged uncertainty stemming from the Brexit could undermine the resiliency India has demonstrated in response to Brexit thus far.
CHAPTER 4: THE BACKCLOTH OF MEDIATION
Mediation is considered to be a practice where, in a conflict, the services of a third party are utilized to reduce the differences or to seek a solution. It basically differs from the “good offices”, where the mediators usually take more initiative in proposing terms of settlement. It is a different process than arbitration, as in arbitration the opposing parties are not bound by prior agreement to accept the suggestions made. The Mediation requires the equal share of willingness as well as the voluntary participation from both the sides involved.
The procedures of Mediation are not fully developed in the international conflicts. Though there are various examples of successful mediation like in 1825, between Great Britain, Portugal and Brazil, the treaty of Rio de Janeiro was signed which recognized Brazil as an independent nation, formally ending Brazil’s war of independence, Great Britain was the mediator in the whole situation.
Greece and Turkey in 1868–69, a war was fought between them when relations were strained over Crete and which is called as Thirty Days’ War. Also in 1885 between Germany and Spain, in the matter of the Caroline Islands which is known as Carolines Crisis. Prince Bismarck appealed to Pope Leo XIII to act as a mediator in the dispute between Germany and France. In the Hague conventions of 1899 and 1907 and also in the League of Nations Covenant, some important moves were taken towards creating the mediation as machinery.
Under the Charter of the United Nations, the members assumed to have an obligation to settle their disputes in a very peaceful manner. Under the Article 2, paragraph 3 of the charter, it is stated that inter alia that all members “shall settle their international disputes by peaceful means.” Also under Article 33 the charter, the parties to any dispute likely to endanger the maintenance of international peace and security are enjoined first to “seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice.” Now if they fail to settle the dispute it by these means, Article 37 comes into play which refers the dispute to the Security Council. If the dispute is referred to it, the Council or the General Assembly then undertakes the form of settlement that it believes suited to the particular case.
CHAPTER 5: BREXIT MEDIATION
Brexit can be considered as one of the major issues of world politics in the last decade. The importance can be understood by the UK stats in GDP. The United Kingdom’s share of the global gross domestic product (GDP) is 2.25 Percent of the world. According to the International Monetary Fund, the UK is right now the fifth largest economy in the world, with a GDP of $2.81 trillion, with only $20 billion larger than France and $120 billion bigger than India.
- The Withdrawal Agreement
After the resignation by the Prime Minister David Cameron, Theresa May was invited by the Queen to form a government. She appointed David Davis as the Secretary of State for Exiting the European Union to oversee the withdrawal negotiations. After that the UK parliament May’s plans to trigger Article 50 by the end of March. On the future relationship between the UK and the EU, UK white paper, which is known as the Chequers agreement, was finalised.
In the November 2018 the withdrawal agreement was proposed by Theresa May but the UK parliament voted against ratifying it three times. Now The Labour Party wanted any agreement to maintain a customs union, while the Conservatives opposed the agreement’s financial settlement, as well as the “Irish backstop” which was designed to prevent border controls between Northern Ireland and the Republic of Ireland. The Scottish National Party, Liberal Democrats, and others sought to reverse Brexit through a second referendum.
- What is the Potential of Mediating Brexit
Mediation is considered to be a negotiation which is assisted by a neutral third party who is there to assist without any decision-making authority. Mediation is considered to be extremely diverse and fluid concept.
There will be challenges to negotiation professionals to consider third-party assistance. This is true even if one just focuses on the negotiations between the UK the EU. Withdrawal agreement and a new cooperation and trade agreement, all will involve literally thousands of issues and none of the parties is at all neutral or independent. Every party needs the best for them in future and for that they are trying real hard to win the situation and get the better benefit. Thus, the potential inherent negotiation management by a neutral third party is obvious.
There is now a three-way standoff over how to break the impasse. Here, one group will accept the withdrawal agreement in its current form, another wants a harder Brexit up to and including a “no deal” outcome, and the third wants a much softer Brexit (or no Brexit at all), where as much as possible of the political and economic status quo can be preserved.
By calling on a third party to facilitate dialogue will help to mediate and explore common interests of both the parties. The design of Brexit Mediation should be built on the earlier international conflicts which were resolved by mediation. Many countries have tried like US President Jimmy Carter’s was the mediator in the 1978 Camp David peace treaty negotiations between Israel and Egypt.
- The Brexit Mediation Design and Obstacles to It
Mediation can be conducted in phases or plenary sessions. It can also be conducted in private sessions, which are generally referred to as “caucus mediations.”
The First step towards Brexit mediation is to install an institution or a group as a neutral process manager which establishes a potential mediation framework. The third-party mediators can provide the required space to open the options, for ideas to be discussed without preconditions and also for the movement to take place without it looking like the surrender of one party to another.
Now the starting point of mediation is that third parties can sometimes help initiate the process of dialogue and agreement. There is a need of proxy mediation in the situation by senior political or civil society figures. EU is the peace mediator and on many instances he acted as a mediator between disputed countries. But now EU itself is at loggerheads with the UK policies so he cannot act as mediator.
The main obstacle to mediation is that the UK is of the opinion that the negotiation process is being dictated by the rich minds of EU. So they wanted a divorce bill at ready in London to sell it to EU and chuck that dictated mediation.
Another obstacle is the Strategic barrier, which usually arise when the parties feel they have a strong incentive to apply so-called “value claiming” tactics where a party is little pacified over a situation or in collaborative mood, the other party tries to maximize its pay-off by playing hardball. Union has declared four fundamental freedoms i.e. the free movement of goods, services, labor and capital. But the European Court of Justice will not have any influence on domestic laws after Brexit.
The mediation mechanisms are not just “the solution” in Brexit. The fact that 48% still voted to remain in UK, it is hard to come to a common ground. They allow conflicting parties to find their own solutions and to communicate effectively to determine if they share sufficient common interests to form the basis for agreement. But given the importance of the outcome of the Brexit process for everyone concerned, in the UK, Ireland and the rest of Europe, professional expertise in mediation seems desperately needed.
The UK parliament passed Brexit deal bill proposed by the Prime Minister Boris Johnson’s, which authorizes the Britain’s exit from the EU. The Member of the House of Commons ratified the bill by a vote count of 330 votes to 231. The EU and UK would ratify the withdrawal agreement. There are some new modifications, removal as well as addition to the Theresa May Brexit Bill. All the changes were made by the process of mediation between all the conflicting parties of the clause.
The UK will formally leave the EU on 31st January 2020 with a withdrawal deal. But that will not be the end of the Brexit story. The UK will enter into a transition period until 31st December 2020. The UK will cease to be an EU member, but the trading relationship will remain the same and it will continue to follow the EU’s rules, such as accepting rulings from the European Court of Justice. In this transition period, the UK will continue to contribute to the EU’s budget for the duration.
The issue of Brexit was the prime time news of the 21st century starting from 2012 and finally seems to end in 2020. Mediation is one such new method that has been seen to effectively deal with matters of this great importance. It is a peaceful method and a win-win situation for both the parties. In recent decades, it has increasingly been used to resolve civil claims, and it has become part of the dispute resolution culture of many states around the word. Mediation in Brexit was necessary as no other way could have solved the dispute on the withdrawal agreement. Theresa May tried to pass her Brexit bill with slight modifications but couldn’t. Boris Johnson tried to settle all the disputes via mediation and somehow he managed to sell his Brexit deal.
Brexit is right now unpredictable as to whether the UK will be global trader or just get confined to a “Little England”. There is lack of vision which seems to be shared by industry and the media. “They need us more than we need them,” some of the great thinkers of EU think the same.
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