THEME: Mediation and International Politics
This article was authored by Priyanka Preet and Rishi Sehgal from Dr. Ram Manohar Lohiya National Law University, Lucknow.
In this essay, the authors explore the enormous potential that the technique of Mediation holds for resolving the Brexit conundrum. The last 3 years have seen immense turmoil in political, financial, travel and citizenship arenas of the European Union and the United Kingdom. There has been absence of empathy and understanding towards each other due to a breakdown of dialogue amidst rhetoric and verbosity. The UK also faces additional challenges in the form of North Ireland and Scotland hammering for their own democratic right to determine their status vis-a-vis the EU. With the Withdrawal Agreement being granted Royal Assent, it becomes significant for the parties to meet cordially at a mediation table and delve into the intricacies of the relationship they aspire to have beyond the ‘transition period.’ The perquisites of Mediation are well-known- it is fluid, the parties are in full control of the proceedings without an adversarial environment. The authors decode the background of this scandalized ‘divorce’, propound ways that the EU can encourage mediation amongst Member States, elucidate the framework and logistical details of the mediation, analyse the various models and alternatives available for the UK to adapt and delve into the Ukrainian Plus Model which encompasses all the needs and interests of both the parties. In order to reach a conclusion, the needs and interests of both the parties have been discussed in detail so as to acknowledge common grounds and steer towards a positive settlement.
Trade and Business function within the paradigm of governmental institutions that administer the movement of goods, people, labour etc and these institutions are often posed a challenge by patriotic fervor. It then becomes necessary to negotiate and reach agreements that facilitate the smooth functioning of trade, immigration, judicial institutions, science and technology and of course, the government itself. Place this explanation in the Brexit conundrum and we have a perfect opportunity for mediation between warring needs and interests.
On 23rd June, 2016, the United Kingdom voted quite narrowly to opt out of the European Union, triggering Article 50 of the Treaty on European Union. In order to effect an exit, the UK will be negotiating several deals for the ‘transition period’ and beyond, with the EU and several other parties on matters of trade, immigration, citizen’s rights, administration of justice, Nuclear Power while also securing the support of North Ireland, Scotland and Wales. Needless to say, this is a supremely complex procedure.
The flurry of diplomatic conversation between the UK and the EU has now entered its fourth year since 2016 and has only embittered the parties towards each other. In such sticky situations, negotiators often resort to the use of astute mediators who can mellow down the caustic rhetoric, recognize key common interests and steer the parties towards settlement. The need for mediation is compelling, now, more than ever, in this difficult ‘divorce’. Certain phrases have been thrown around by both parties which have negligible value in the negotiation procedure but are a major irritant for the opponent. Referring to the ‘Withdrawal Agreement’, Boris Johnson has hoarsely claimed “What we’re saying to our friends is (that) this is a very generous, fair and reasonable offer we’ve made” which has only succeeded in irking the EU instead of swaying its opinion in the UK’s favor. The Prime Minister has also not been successful in garnering the support of the leaders back in the Parliament, while Scotland and N. Ireland have been trying to assert their own democratic right to determine their status.
The Withdrawal Agreement Bill is now an Act (24th January, 2020) with Her Majesty’s assent but Britain’s complications are far from over. The Agreement shall now be presented before the EU Parliament and much debate is expected to ensue. In all this, mediation is going to be a trusty aid resolving this formidable challenge. It has long been a tool for settling international disputes in matters of trade and politics. For instance, in 1993, a Norwegian NGO by the name of Fafo, enabled contracts between the Israeli and Palestine Liberation Organisation when they could not meet publicly. Similarly, in Northern Ireland, an MI6 go-between Michael Oatley, code named the “mountain climber” and Derry-based business man Brendan Duddy, connected the British government and Provisional IRA through a back channel for years before formal peace negotiations began. This back channel provided a vital third-party mechanism for both sides to determine if there was any common ground between them. US President Jimmy Carter’s presence as a mediator in the 1978 Camp David peace treaty negotiations between Israel and Egypt is also unforgettable in modern history. The role played by US Senator Mitchell in the 1998 Good Friday agreement in resolving the issue of Northern Ireland is also inspiring for the Brexit conundrum.While negotiations techniques were widely used to codify the UN Convention on Law of the Sea (1973-1982).
Mediation is also a very fluid mechanism and can effortlessly tackle diverse international disputes. It can also take up the character of being right-based instead of always being interest-based. The neutrality of the third party is of special assistance here. It is clear that the Brexit negotiations encompass vast variety of interests of multiple stakeholders, with thousands of agreements as possibilities. At this juncture, a neutral third party can conciliate these heterogeneous interests towards a satisfactory settlement. Further, most of the parties are oblivious and hence insensitive to the opponent’s interests. Mediation is open and transparent and would only encourage empathy and understanding of each party’s compelling and compromisable needs and interests.
The mediation can be carried out in phases and not necessarily in a plenary session. It is unreasonable to expect to reach detailed settlements with regard to the withdrawal, trade and citizenship certain key factors can be finalized which can be modeled into future agreements comprehensively. First, all the stakeholders and parties should be correctly identified. Since all member States are going to be the affected parties, there should be at least one representative from each State. Further, transparency vis-à-vis the mass is integral. The mediation process is going to be cumbersome and taxing but it will permit parties to be in control of the principles and the results. This has been discussed in detail in Subsection V.
In this essay, the authors intend to make sense of UK’s and EU’s needs and interests, the best and worst-case alternatives that confront them and analyze the models that encompass UK’s uncompromising demands which resolve its predicament. Finally, the authors recommend a few logistical details of the mediation procedure such as which institutions could serve as neutral yet empathetic mediators, followed by the Conclusion.
The EU’S Mediation Directive encourages Member States to resort to this less-expensive alternative for dispute resolution in civil and commercial matters. Mediation is used in less than 1% of the cases in these matters despite praise and promotion. Italy is the only Member State that has adopted an opt-out mediation model, applicable to about 15% of all civil and commercial cases. In the rest of the Member States efforts to adopt mediation have gone in vain and domestic legislators are at wit’s end about making mediation a popular tool of dispute resolution. Italy’s government carried out a decree in the year 2011 mandating entities and individuals to resort to mediation in banking, real estate, medical malpractice matters before going to trial. This resulted in an immediate surge in mediation numbers and also improved the training and education of mediators. This Government decree was later replaced by an Act of the Parliament which provided for sanctions on parties on account of failure to attend the first meeting with the mediator. This mechanism has served Italy’s justice department well and is now a model worth consideration for the EU Parliament.
There are various models which have been discussed in the EU Parliament to promote mediation.
- Voluntary mediation: The parties are at liberty to engage in mediation in case of failure to settle dispute between them.
- Voluntary Mediation with Incentives: Mediation legislations are required for this, wherein parties are incentivised to resort to this practice.
- Initial Mediation: Parties are mandated to attend the first meeting with the mediator.
- Full mandatory mediation: The parties are to mandatorily take up mediation before going to trial. They are also required to pay for it.
Perhaps, intense rounds of mediation between the EU and the UK resulting in successful settlement could be an encouragement for other Member States as well as other States across the globe to follow suit. The idea is that if a convoluted issue like Brexit can be mediated, then civil and commercial matters also stand a chance.
The UK Government has unequivocally promised certain interests to its people, often, resorting to high-pitched rhetoric and patriotic rabble-rousing. One is clarity and transparency of the Brexit negotiations vis-à-vis its citizens. Another is taking control of the UK’s borders, essentially restoring political sovereignty and consequently curbing the influx of immigrants. This has often been dubbed as the deciding factor of the UK referendum, according to several research scholars with many Pro-EU campers labeling Brexit as ‘Project Hate.’ The UK has been a hub for low-skilled workers from the new EU nations comprising the EU-8 coalition (Estonia, Latvia, Slovenia etc.). The arguments from the Pro-leave campaigners that increased restriction on immigration would push native employment and wages are not completely convincing for the current Government and hence the ‘Australian Point Based System’ is on the cards. This system has been analysed in subsection V. The concern of EU and UK workers of being practically thrown out of jobs and homes is valid and the UK’s key interest is to secure the rights of its workers within and beyond the borders. The UK also wishes to ensure is sovereignty in terms of its justice system where it does not want to be subjected to the verdicts and interpretation of the European Court of Justice.
Scotland and N. Ireland have also been a source of trouble for the British Parliament by hammering for determining their own status during and post Brexit. Of compelling need is to strengthen the Kingdom and unite it towards implementing the divorce. All this, while maintaining the common travel area in N. Ireland and Republic of Ireland.
Trade is as great a worry for the UK as is controlling immigration. 44% of all British exports go to the EU, which amounts to approximately 12% of the country’s GDP. Conversely, EU exports to the UK make up only 3% of Europe’s GDP. While the UK wants opt out of the ‘free movement of people’ principle enshrined in the Treaty on the Functioning of the European Union, it intends to retain the ‘free movement of good clause.’ It remains to be seen if the EU would permit this cherry-picking of sorts. Aside from the EU, the UK needs to forge new free trade agreements with third countries to open up its vistas in trade and investment. The UK also wishes to maintain collaboration on the counts of crime and terrorism as well as science and technology. This is with special reference to the ‘Euratom’, an institution created as a specialist market of nuclear power. While triggering Article 50, Article 106(a) of the ‘Euratom Treaty’ will be automatically invoked leaving the UK at the mercy of an unpredictable supply chain and weak nuclear-medicine research. It is in its interest to maintain the membership albeit a financial contribution.
For the EU, losing out on the UK membership is itself a threat to its existence and there is an acute need for it to solidify its stature to prevent any further exits and consequent disintegration. One way to control a collapse is to prohibit ‘Europe a la carte’ or cherry picking of principles propounded in the Treaty. The EU intends to ascertain that UK should not be in a favourable position post Brexit to prevent renegotiations of agreements with Canada, Switzerland or Norway. Exiting the Union should in no way be an alluring option for parties.
Further, the EU is set to lose an annual subscription of about £13.2 billion and the EU will have to reduce this yawing loss by securing payments from the UK under other heads such as remittance for anti-terrorism fraternization or even permitting it access to the common market in exchange for payments. The EU is also clearly anxious about making the UK accept a level-playing field to thwart the UK’s potential of becoming an economic rival. Moreover, the individual interests of Members States have also to be factored in. States like Germany and France would be interested in maintaining a healthy trade relationship with the UK while the Eastern European nations would be inclined towards securing the rights of their low-skilled workers who will be at the receiving end of the Brexit. It is here that the UK exercises leverage over the EU.
Having discerned the complex needs and interests of the parties, it is integral to determine possible alternatives that encompass the needs and interests of the parties and yet ensure a financially functional model. Now there are three main types of agreement: Customs Union, Association Agreements, Stabilisation Agreements, (Deep and Comprehensive) Free Trade Agreements and Economic Partnership Agreements and Partnership and Cooperation Agreements. Now there are various models which illustrate these agreements, namely, The Norway model, Switzerland model, Canada model, the Turkey Model and Ukraine Plus model. These are alternatives that the UK may adopt while tweaking a few things here and there while ensuring that such a concoction is agreeable to the EU.
‘The Norwegian Model’ is followed by countries like Norway, Iceland, Liechtenstein are connected to the EU through the Treaty on the European Economic Area (EEA). These States have extensive access to the single market in terms of duty free exports and conclude Free Trade Agreements with the Member States.
However, these States are bound by EU legislations and rules pertaining to the EU internal market. They, further, fall within the jurisdiction of the EFTA Court which follows the ECJ precedents. The UK may find this model incompatible since PM Johnson is intent upon regaining complete control over law and order. Another setback is the unhindered immigration in the EEA nations which is antithetical to the rationale behind Brexit.
‘The Swiss Model’ incorporates access to the EU market, albeit in certain sectors only. The financial sector market which is integral for the UK is beyond Switzerland’s access in the sense that Swiss companies wanting to offer financial services in the market are mandated to establish subsidiaries in the EU. Switzerland is connected to the EU through hundreds of bilateral treaties. It serves as a plausible model for the UK since the EU law does not necessarily needs to be adapted in the domestic law. However, the ‘Guillotine Clause’ between the EU and the Switzerland is highly restrictive in stipulating that Switzerland is bound by EU Directives and has to permit all the four freedoms lest the access to the internal market would stand revoked.
‘The Canada Model’ is based on the Comprehensive Economic and Trade Agreement (CETA) eliminates 98% of tariffs. The CETA is not a single market and hence is free to carry out trade with third countries. The Canada Model provides for visa-free movement but not free movement of people between the EU and Canada and hence is an option worth considering for the UK.
‘The Turkish Model’ does achieve certain goals the UK has sought till now: partial access to the single market while keeping control over the four freedoms intact. However, there are some loopholes in this Model as well. The UK does not get complete access and hence loses out on the lucrative financial services sector while also adhering to EU rules and laws and depriving itself of sovereignty. The Model requires Turkey to have common external tariffs as the EU on third parties which again inhibits the UK’s ability to negotiate with third parties, freely.
The UK has outlined in the White Paper that it aims to achieve an orderly and smooth exit from the EU. While a clean Brexit has always been idealistic, the UK government has consistently insisted that it would want to negotiate an agreement that meets as many of its current and future goals as far as possible. The UK has further iterated that despite exiting the EU, it desires a deep and comprehensive agreement with the EU and its associated nations. However, negotiating such an agreement still remains a challenging task. One such agreement that could potentially serve the interest of both the UK and the EU is the ‘Ukraine Plus’ model based on the EU-Ukraine Association Agreement that came fully into force on 1 September 2017. The model incorporates ideas that could allow the UK to trade with the EU Single Market in the form of Deep and Comprehensive Free Trade Area (DCFTA) while not being bound by the obligations of its full membership. It is labelled as the ‘Ukraine Plus’ as it broadens the horizons from mere free trade towards security and defence collaboration and discussions on citizenship.
The EU-Ukraine Association Agreement (‘Agreement’) was adopted by the European Council on 17 March 2014. The Agreement grants Ukraine preferential access to the EU’s strong consumer market and eliminates more than 98% of the trade duties and tariffs for both parties. The two can freely trade in goods without any additional testing provided that Ukraine obeys the EU’s technical and other safety standards. Furthermore, the DCFTA is complemented by a process of legal adjustments that regulate the financial, telecommunications, postal and courier services, as well as international maritime services. However, the associated country is not required to comply with the EU law or be bound by decisions of the ECJ. There is a free flow of capital within the DCFTA with several safeguards to ensure the stability of both the financial systems through fair competition between the EU and the Ukrainian firms, worker’s rights and respecting intellectual property rights. Moreover, Ukraine also enjoys a choice to participate in a wide-ranging set of EU common policies such as transport, environment, employment and consumer protection. The Agreement envisages cooperation in the areas of justice and home affairs by tackling immigration issues though visas and work permits for the movement of labor. The Agreement allows for visa-free travel for up to 90 days for tourism, business, and visitation purposes between Ukraine and the EU member states but without any right of free movement.
One can infer from the preceding paragraphs that the EU-Ukraine Association Agreement is largely in line with the major aspirations of the UK Government and can be considered a blueprint for future EU-UK Agreements. The agreement ensures access to the EU single market along with tariff-free access for goods, services, and customs cooperation. It allows the associated nation to enter into free-trade agreements with the rest of the EU members without any application of EU law or compliance with the case-law of the ECJ and at the same time does not provide for free movement of persons. While the UK may be dismayed by the numerous restrictions on market access, especially with regard to cross-border services, the UK and the EU could negotiate on a ‘Plus’ version that allows better access to trade, taking into account London’s attraction as a global financial hub. Likewise, the EU could negotiate on such terms in lieu of financial contributions and other limited restrictions such as cheap labor, maintaining competition etc. to ensure that such an agreement would not encourage other Member States to leave the Union while securing its interests and of other States which have a significant trade relationship with the UK.
Secondly, collaboration on defence and security measures to combat terrorism and crime can be an attractive proposition owing to the UK’s intelligence capabilities and its status as a nuclear power country owning a Permanent Seat the UN Security Council. Further, the number of British troops stationed all across Europe for security purposes especially at a time when the NATO is regarded as weak could be of great significance to the EU and its member states. Maintaining political stability on the Irish border would however require special consideration when the two parties chalk out such an agreement.
The first step towards an effective and a successful Brexit Mediation is to motivate the parties to agree to come to the table as the negotiations have demonstrated many structural, strategic and cognitive barriers. The politicians and representatives of the parties overestimated their negotiation skills and focused more on engaging in tactics that allow them to gain an advantage over the other. For example, the UK has accused the EU of playing hardball leading to it holding its own ground on certain matters. Therefore it becomes essential to create an atmosphere of cordiality and encourage the parties to resolve the issues through a neutral third party. Creating awareness about successful mediation stories along with reducing the fear of loss of control over the process and results would go a long way in ensuring that the representatives from both the UK and the EU take their seats at the mediation table.
Given how diverse and complex the issues are, the next step towards developing a mediation framework would be the installation of a group or institution to act as Mediators. In order to ensure that the interests of all are recognized, it is essential that the group consists of specialized mediators-one belonging to the UK, one from Europe and one from a third neutral country. Having a group that represents different backgrounds would not only guarantee an exchange of a gamut of views but would also serve as a mechanism to do justice to the transnational complexities involved. At the same time, a group of three would enable decision-making through a majority vote. In addition, assistance can be taken from leading institutes such as JAMS, IMI, WMO, etc. which have the required organizational support structure and authorization to solicit the assistance of further experts on the relevant subject matter.
The mediators would assist in designing an efficient process to identify congenial changes to the withdrawal agreement and the political declaration that would govern the future UK-EU relationship. These changes would then be fleshed out in detail that would provide a sufficient and more focused framework for future and comprehensive negotiations leading to agreements on key aspects and principles of the final agreement. This may further act as a catalyst in stimulating a more problem-solving negotiation style, as opposed to a posturing and political one.
Further, the mediation should be concluded in a time-bound manner and not be subject to unnecessary delays. It could be conducted in a series of high-level meetings occurring over every two weeks so that the cooperation agreement is reached as soon as desirable. There could be bifurcations of the key issues involved by creating respective committees, for example, an immigration committee that would hold their own separate meetings and lead to immediate results. In addition, an internet platform, supported by software tools that facilitate specific tasks like variable communication and scenario analysis, could be designated to manage the process. Likewise, key meetings could be streamed over the internet, live from Brusselsso that maximum transparency vis-à-vis the general public is maintained.
The withdrawal of the UK from the EU has inarguably turned out to be one of the most unprecedented events in the 21st century. The approval of the Withdrawal Agreement in the UK Parliament followed by the subsequent signature of the UK PM Boris Johnson and the leaders of the EU marks the end of a long and divisive campaign since 2016 and the beginning of a period of more intensive dialogues as to the future relationship of the EU and the UK. As the two parties enter the transition period, the economic and political consequences of the impending trade and investment barriers between the two parties are amply visible. However, several consequential decisions are yet to be reached, specifically regarding the nature of their future relationship. With the prospect of a no-deal Brexit remaining very much on the table, the two parties must ensure that they are able to negotiate a future model by the stringent deadline of 31st December 2020. The essay has highlighted one of the potential designs i.e. the ‘Ukraine Plus Model’ founded on the EU-UK Association Agreement which at the first sight incorporates major interest of the two sides but requires some amount of flexibility to function as an efficient framework for the future.
It is evident that the issues involved are multifarious and intertwined. The worst folly either side could commit in such circumstances is taking aggressive unilateral steps to improve its bargaining position without taking into account the other party’s sensitivity causing further friction. Therefore it is integral for the parties to cooperate in order to achieve the best outcomes for their future. Furthermore, the range of issues involved point towards complex future negotiations that can only be managed and conducted efficiently by a professional neutral third party. The essay has outlined a model framework that comprises of identification of key issues, time-bound meetings, and division of issues amongst committees etc. to prevent further conflict and remove any other obstacles along the way. Such a process would go a long way in shaping the expectations of the parties, building mutual trust and confidence for the future.
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