Annex – Towards A Workable Transition Agreement That Respects Sovereignty
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Area of concern |
Notes |
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Maintenance of trade, threats of
deprivation |
The EU might be blustering when it says that any free
trade agreement should be balanced, ambitious and wide-ranging, but cannot,
however, amount to participation in the Single Market or parts thereof, as
this would undermine its integrity. Like the UK, the EU is signed up to WTO treaties with
goals of trade barrier reduction and liberalisation, and provisions that regional
unions should not have adverse effects on other WTO members. The EU has been a keen supporter of the WTO and
liberalisation in practice, for instance allowing extensive access for financial
services to Singapore and considering a more extensive agreement with Chile.
EU courts also accept that the goals of treaties are binding. |
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No "cherry picking" on the
four freedoms |
Vicky Ford MP has shown how cherry picking
is allowed in practice. The EU Free Trade Agreement with Singapore
shows how extensive access for goods and services can be customised for
non-EU parties without an extensive requirement for immigration or payment. EEA members such as Norway have some rights
to curtail free movement of labour or to reject new EU legislative proposals. |
|
Overbearing EU insistence on the
full acquis as a condition of transition |
The EU wants the whole ‘acquis
communautaire’ imposed. This has previously been defined widely to include
treaties and Case Law as well as Directives and Regulations. The EU also
wants a blank cheque for acceptance of new laws, regardless of consequence. The EU might know that this is a try-on as the small
print in its draft guidelines qualifies: “To the extent necessary and legally
possible”. All EU members and the EU accept the UN Charter, obliging members
to develop friendly relations based on equal rights and self-determination. The UN Charter explicitly prevails over any later
treaty. UN Resolution 2625 bans the use of economic, political or other types
of measures to coerce another State to subordinate the exercise of its
sovereign rights. |
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Fairness (to both the EU and the UK) |
The EU claims to want a result that is fair and
equitable for all and a level playing field. This would be difficult to
achieve with EU institutions making laws and adjudicating over a powerless
UK. The Canada and Singapore FTAs have open and balanced means of dispute
resolution, such as arbitration panels. A UK-EU withdrawal agreement could be adjudicated at
the UN, or selectively at the WTO, arbitration
bodies such as UNCITRAL, or the International Court of Justice by agreement
with the EU27. |
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Legal stability, standards and
divergence |
In practice, the EU has had divergence provisions in
other agreements. There is no reason why the UK should not be able to diverge
in its practices, so long there is no discrimination against EU exporters.
The UK could also undertake to recognise EU standards as a valid alternative. Under the WTO Technical Barriers to Trade provisions,
the EU has agreed that localised regulation can be superseded by new
international or industry standards as a default. This would also apply to
the UK, but shows that EU standards are not sacrosanct, and there may be no
great divergence problem in practice. Around 80% of Single Market standards
are reckoned to originate from other regional or global bodies, making the EU
increasingly a rule taker. Outside the EU, the UK should have the same rights
as other non-EU countries to influence the rules. To facilitate trade, the EU has concluded liberalised
agreements such as on simplified Rules of Origin and product conformity
testing. |
UN CHARTER AND RESOLUTION REFERENCES
UN
Charter text (cf. Articles 1, 2, 55, 103)
http://www.un.org/en/documents/charter/index.shtml
UN
Resolution 2625 is accepted as a valid lens for interpreting the UN Charter in
international law.
“No
State may use or encourage the use of economic,
political or other types or measures to coerce another State in order to obtain from it the subordination
of the exercise of its sovereign rights or to secure from it advantages of any
kind.”
http://legal.un.org/avl/ha/dpilfrcscun/dpilfrcscun.html
The
UN Charter holds “All Members shall refrain in their international relations
from the threat or use of force against
the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations. (Article 2.4)
“In
the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other
international agreement, their
obligations under the present Charter
shall prevail.” (Article 103)
WTO TRADE POLICY OBLIGATIONS
Binding
interpretations on goals and obligations of trade treaties (references 8, 9,
11, 13)
https://www.wto.org/english/res_e/booksp_e/analytic_index_e/wto_agree_01_e.htm
“arrangements
entered into by Members be reciprocal
and mutually advantageous concessions made by WTO Members should be
interpreted so as to further the general objective of the expansion of trade in goods and the substantial reduction of tariffs… “security
and predictability of ‘the reciprocal and mutually advantageous arrangements
directed to the substantial reduction of tariffs and other barriers to trade’ is an object and purpose of the WTO
Agreement….
“[regional
trade agreements] the purpose of such agreements should be to facilitate trade between the constituent territories and not to raise barriers to the trade of
other Members with such territories; and that in their formation or
enlargement the parties to them should
to the greatest possible extent avoid creating adverse effects on the trade of
other Members;”
WTO
Trade Facilitation Agreement, customs co-operation
https://www.wto.org/english/tratop_e/tradfa_e/tradfa_e.htm
WTO Agreement on
Technical Barriers to Trade
http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm
http://www.eureferendum.com/Flexcit.aspx
(p205)
WTO
Director-General Robert Azevedo
In
an interview with Sky News, the WTO boss said he was not of the opinion that
the Brexit vote was "anti-trade" and added that the UK would not
suffer trade setbacks during or after its negotiations with the EU.
http://www.ibtimes.co.uk/brexit-unlikely-disrupt-uk-trade-says-wto-director-general-1588422
EU TRADE POLICY ON GOODS AND
SERVICES
The EU wants to free
up global trade in goods and services both through the WTO negotiations and
through bilateral and regional trade agreements. (21 August 2014)
“The EU is firmly
committed to the promotion of open and fair trade with all its trading
partners.
The EU has
specific trade policies in place for all its partners and abides by the global
rules on international trade set out by the World Trade Organisation.”
http://ec.europa.eu/trade/policy/countries-and-regions/
See also “Trade Policy
as a core component of the EU's 2020 strategy”
http://trade.ec.europa.eu/doclib/docs/2010/november/tradoc_146955.pdf
European Commission,
DG Trade, Management Plan, 2015
"DG Trade is
committed to liberalising world trade"
"Bilateral free
trade negotiations will remain the core of our work."
http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153812.pdf
“…the
EU has an important role to play in shaping globalisation and ensuring that all
groups in society benefit, by taking the lead in the WTO as well as through the
negotiation of ambitious, balanced and comprehensive plurilateral and bilateral
agreements. The EU's trade agenda should seek to open markets…
https://www.eu2017.ee/trio-programme
(EU Council Presidency 2017-18, document POLGEN83)
https://www.eu2017.ee/sites/default/files/2017-06/Trio%20programme.pdf
European
Court of Justice rulings on binding Treaty goals;
(Cases 11/00, 15/00)
EU Trade Commissioner
Cecilia Malmstrom speech, 2017
“Free trade, fair
trade is not just a slogan for Europe; it is in our DNA, since our foundation
in 1957, I think that is very much in your DNA as well. Our society and economy
are fundamentally open, and rely on openness for their survival.”
http://trade.ec.europa.eu/doclib/docs/2017/march/tradoc_155411.pdf
EU Brexit negotiating
documents
Cherry-picking
Divergence (p40),
Rules of Origin (cumulation, e.g. p23)
http://www.theredcell.co.uk/uploads/9/6/4/0/96409902/42.pdf
Rules of Origin (p4),
Conformity Testing (p5)
http://trade.ec.europa.eu/doclib/docs/2013/september/tradoc_151723.pdf
EEA/Single Market
standards; EU as rule-taker
http://www.efta.int/sites/default/files/publications/bulletins/EFTA-Bulletin-2012.pdf
EU RELATIONS WITH NORWAY (EEA),
SINGAPORE, CANADA
(EEA
Agreement, Article 112)
http://www.efta.int/legal-texts/eea
http://ec.europa.eu/trade/policy/countries-and-regions/countries/singapore/
http://ec.europa.eu/trade/policy/in-focus/ceta/
EU AND CHILE
The EU seeks an
EU-Chile free trade area in goods and services via a modernised Association
Agreement.
Directive for
modernisation, 13553/17, 22 January 2018
http://trade.ec.europa.eu/doclib/html/156550.htm
The Modernised
Agreement should be based on respect for
democratic principles, the rule of law, human rights and fundamental freedoms,
as enshrined in particular in the UN
Charter
…The Agreement should
advocate the widest possible scope
for cooperation from which no field of activity should in principle be
excluded.
…The objective of the
trade and investment part of a modernised Agreement should be to reach a high
level of ambition in all areas of the Agreement. It should provide additional
and comprehensive reciprocal
liberalisation of trade in goods and services,
…Furthermore, the
Agreement should aim at removing
unnecessary obstacles to trade and investment, including existing
non-tariff barriers (NTBs), through effective and efficient mechanisms, and
seek an ambitious level of regulatory coherence for goods and services,
including through enhanced cooperation between regulators.
…The Agreement should
aim at full tariff liberalisation,
…The Parties should
conclude comprehensive provisions on Technical Barriers to Trade (TBT),
building on and going beyond the WTO Agreement on Technical Barriers to Trade
(TBT Agreement). These provisions should aim at, inter alia, seeking
compatibility and convergence of technical regulations through the application of international standards,
…In line with Article
V of the General Agreement on Trade in
Services (GATS), the Agreement should have an extensive sectoral coverage and should cover all modes of
supply. The Agreement should have no a
priori exclusion from its scope other than the exclusion of audio-visual
services which will not be covered by the chapters on trade in services and
establishment of this agreement.
…The dispute
settlement mechanism should be transparent, open (including as regards
hearings) and based on experience gained in the WTO and in other Free Trade
Agreements. It should include provisions for a flexible and rapid mediation mechanism.
This webpage is available as a PDF, www.newalliance.org.uk/annex218.pdf