Brexit: Breaking up is hard to do

Prof. Charles Norc hiBy Professor Charles Norchi

Brexit, the prospect of a Euro divorce across the Atlantic, concerns Maine and our law school. The State of Maine is linked to Europe via two languages – English and French. According to the Maine International Trade Center, in 2015 Maine exported nearly $55 million worth of goods to the UK and $417 million to the European Union (EU). During the same period Maine imported $109 million worth of goods from the UK and $556 million from the EU. Maine Law has longstanding ties with Europe – including popular student exchange programs with France and Ireland, a venerable French Law Program, research collaborations through our Center for Oceans and Coastal Law and faculty members who regularly research and lecture in Europe. Of all American law schools, the University of Maine School of Law is geographically the closest to Europe.

Ireland PassportI followed the referendum closely for an additional reason – owing to my birth in Dublin I hold an Irish passport. On the cover the words “European Union” appear above the name of the country – Éire or Ireland. For the Irish this is more than symbolic; it is a real commitment to the idea of Europe – an idea that transcends the nation-state. And now as legal and financial firms contemplate exiting London they have an eye on Dublin – an English speaking international capital in a tax friendly EU country.

The referendum question was: “Should the United Kingdom remain a member of the European Union or leave the European Union?” The answer, delivered by 51.9% of the voting electorate, was no – leave. The referendum posed a question of international law – whether a nation-state should withdraw from a treaty and thus abrogate its legal obligations under that instrument. So, from an international law perspective, what has happened? The answer is nothing – yet.

Image courtesy of https://www.thinglink.comThe referendum itself has no force in international law until the machinery of treaty denunciation and withdrawal is set in motion. This involves unwinding the process by which the UK entered into the Agreement to join the EU: the formulation of national policies to guide the conduct of negotiations with other states; the formal conduct of negotiations with representatives of other states; approval of the agreement for internal application within the state;  approval of the agreement for the external commitment by the State; the final and formal utterance of the State to other would be States party thereby creating binding legal obligations.  International law has procedures for this unwinding.  The Vienna Convention on the Law of Treaties (Article 54) provides for treaty termination and withdrawal according to the relevant international instrument if it provides such mechanisms. The relevant instrument is the Lisbon Treaty, a lex specialis that contains a withdrawal provision.

The Lisbon Treaty is the first instrument of European integration that provides an opt-out for member states. The procedures are in Article 50 which provides that a Member State may withdraw from the Union pursuant to its Constitutional requirements. Those requirements have been put in motion by the UK referendum. To move to the plane of international and European law, Her Majesty’s Government would invoke Article 50 by sending a communication to the European Council declaring an intent to withdraw. The Council would then provide guidelines for negotiations which would then ensue. The product of those negotiations would be an agreement stipulating arrangements for withdrawal and a framework which would require consent of the European Parliament. This has never been done.

Assuming a Brexit (rather than a near exit or “Nexit”) England must disentangle itself from a complex set of arrangements amounting to an autonomous legal system comprising multiple treaties; rules and regulations legislative and executive acts in the areas of competition, market conduct, taxation, intellectual property, the sale of goods, trades and professions, trans-border financial controls, and relations with international organizations such as the World Trade Organization. EU rule-making and legislation that had applied in the UK, including EU courts decisions and judicial review would be re-appraised.  Depending on the extent of  Brexit, there could be a question of application in the UK of obligations previously undertaken under the European Convention on Human Rights.

Sciences Po, photo courtesy of www.sciencespo.frI began studying about Europe in Paris at “Sciences Po” one of France’s Grandes Écoles. There was great intellectual ferment around “the project of Europe” – an idea that incorporated politics, commerce and culture. My course on European Integration began with the reign of Charlemagne, who as King of the Franks united most of Europe during the Middle Ages. From the 1648 Treaty of Westphalia the European problem was that States went to war and were cannibalistic. In the 20th century the European problem was the German problem. Whenever Germany was appeased it would carve up Poland. Then came the Holocaust. Hence the objective of the Europe project was to maintain order, and this would be accomplished through common interests beginning with trade.

Yet statesmen understood that maintaining European order, peace and prosperity could not be achieved by merely constraining Germany. That was attempted with the Treaty of Versailles and it failed. So in the 1950s Jean Monnet and Robert Schuman formulated proposals for an integrated Europe.  There were three aims: (1) end Franco-German hostility; (2) foster a prosperous Europe through an enlarged market initially focused on coal and steel; (3) and restore Europe’s role in world affairs.  As the project evolved ideas moved across cultures, low tariff commodities traversed borders and Western post-war Europe prospered. Order displaced chaos.  The Europe of the time was a Community, not a Union.

Center for European Studies, photo courtesy ces.fas.harvard.eduAfter Paris, I continued my undergraduate studies in the Department of Government at Harvard with a research appointment at the Center for European Studies. My thesis advisor – and many years later, dear friend – was Stanley Hoffmann, the C. Douglas Dillon Professor of French Civilization. Professor Hoffmann had narrowly escaped the Nazi Holocaust, and as a young person lived the chaos of mid-century Europe, so for him the “Europe Project” was very important. In the 1960s, Professor Hoffmann had launched a seminar on Europe with Professors Henry Kissinger and Lawrence Wylie. At Harvard in those days, as in Paris, there was enthusiasm and hope for the Europe project. Professor Robert Bowie wrote “The European Community is clearly a major milestone in the history of Europe…in a world struggling to construct a new international order, its import can be far wider. If the Community fulfills its promise, it seems destined to play a crucial role in the shaping of this emerging world order.” (Harvard Review, Fall 1962) Order was important because the wider context was the bipolar Cold War international system in which two blocs trained nuclear weapons on the other’s population centers.

As the Community evolved to become a Union by 1993, it became more about procedure – about rules imposed beyond member States and by supranational courts.  As Stanley Hoffmann wrote, “Seen as a whole, Europe presents many apparent similarities with the United States…Hence there is a natural inclination to recommend for Europe what has worked so well here – a large commercial market and a federal political structure…an implicit conviction that the right kind of procedure cannot fail to produce the right kind of outcomes.” (S. Hoffmann, Gulliver’s Troubles or The Setting of American Foreign Policy, 1968) As a college summer intern in Washington, D.C. at the European Community Delegation to the United States, I learned that Eurocrats sought a Europe more like Plato’s Republic than Athenian democracy

Flags of the European UnionEurocrats spawned constraints upon State members and the core of the Europe project began to erode.  They embraced what French scholar Raymond Aron had called a “germ of a universal consciousness,” the liberal, pro-market norms that developed States have come to hold in common ( R. Aron, Peace and War, A Theory of International Relations, 1973). Hoffmann described “ a tension …  between the fragmentation of states (and the state system) and the progress of economic, cultural, and political integration — in other words, globalization. In spite of grand designs, treaties that spawn supra-national organizations transcending nation-states, nationalism remains very much alive and it runs in the face of globalization.” (S. Hoffmann, Clash of Globalizations, Foreign Affairs July/August 2002)

After the referendum, Dr. Henry Kissinger observed a “gap…between the institutions and their responsibilities.” (H. Kissinger, Wall Street Journal, June 29, 2016) Irish novelist Colm Tóibín wrote of “the slow, poisonous alienation of the people of Europe from European institutions, this slow feeling that we the people are flawed and are not to be trusted.” (Irish Times, June 26, 2016)  Malta’s former Ambassador to France, Dr. Mark Miggiani, observed, “the British people have spoken in the extreme, but this is a wake call that the EU sorely needed.” (Interview with author, June 29, 2016) On the Friday after the referendum, Google search (UK) reported a high volume inquiry by British subjects on the question “What is the EU?”

Among the peoples and States of Europe there is a feeling of “Impotence of Power,” the title of the thesis that I submitted to Professor Hoffmann as a college senior. There is no Great (military) Power in Europe. There is a British nuclear arsenal and France has its nuclear force de frappe.  These forces are more than quaint – they have strategic significance, including the ability to trigger a war. NATO has been a convenient myth to authorize deployment of American force, but if it becomes the only pan-European and transatlantic institution with full British participation NATO will loom large as the Euro-Atlantic institution.  As a unit, Europe is an economic power house of 500 million consumers. Building the unit entailed a bargain by which some sovereignty was ceded to decision-making in Brussels and European Courts. This left some citizens with the perception of national impotence. Yet a fragmented Europe of Lilliputian states would be impotent in reality.

There was long assumed a European identity – shared values rooted in the Abrahamic faiths, Charlemagne, The Magna Carta, the Peace of Westphalia, The Declaration of the Rights of Man, The Holy Roman Empire and The Reformation. From its post-World War II beginning, there was a Europe of three. Soon there were six and today there are twenty-eight. Values and customs are less familiar. Belief systems diverge. A human flotsam and jetsam pressures resources and incidents of violence spawn personal insecurity across borders. The European identity of 2016 is not what it was in 1966 and this disturbs many people.

I was in Europe a couple of weeks ago – in Istanbul, which was once known as Constantinople, the Vatican of Eastern orthodox Christianity. Sitting in a café on the Bosphorus, I poured over Turkish newspapers in which Brexit stories and editorials were prominent. Leave campaigners raised the specter of Turks in Europe – perhaps not realizing that Turkey already is in Europe.  As I write this, there is news of terrorist attacks at Ataturk Airport in Istanbul, the third busiest airport in Europe.

I grew up a brexittrans-Atlantic kid – between the West of Ireland and the American Middle West. My Irish passport meant I could use the shorter “EU Nationals” line at Heathrow Airport, live and work in London, retire there and perhaps go on the dole. Cross-border freedom of movement was ensured by the Schengen Agreement and university students crisscrossed the European Higher Education Area becoming known as the “Erasmus generation.” European Union – progressively closer integration and the benefits available to citizens – was assumed. No longer. England may soon be an island separated from Europe by the English Channel and the Irish Sea, with uneven access to European markets. Yet the idea of Europe, and the Atlantic Community, exists perforce culturally, commercially and intellectually as it has for hundreds of years. So Brexit, Nexit or Not – as America’s Atlantic coast law school, Maine Law will maintain its engagement with Europe – from the Arctic and the Atlantic to the Mediterranean and the Bosphorus – serving students and Mainers who will continue to travel in both directions.