Brexit: Now What? Part III

[Archie Gemmill Goal]

NATO is not the EU.

And these underpayment are a Trumpian fiction. There are no obligations not being met.

 

[GnaGnaMan]

The signatories to treaties form an international body with their membership. That's how all international bodies are created. The UN is international body because it was created by the countries that signed a treaty. As is the EU. And the WTO. And NATO, etc etc etc.

What's the international body formed by the vienna convention?

There are courts of international law outside the EU. They aren't going to give one fig about an EU court. They care solely about the treaties that the EU and UK agreed to.

What? Of course they will.

Expropriation in an involuntary divorce bill is a violation of GATT. The WTO was created to provide remediation for such actions. Should the EU unlawfully seize UK assets, the UK can petition the WTO and the WTO, if it finds for the UK, can then ask other countries that have liquid funds of the EU to turn those over to the UK in compensation. Of course, the UK would probably take more immediate steps...

But seizing a debtor's assets is not expropriation...

International laws are vastly different than civil courts, but if you need a civil court analogy, think of the Lisbon Treaty as a contract. The contract states the UK can leave. Absent any negotiated deal, it just quits and the contract is then void.

No. Maybe look up what void means.

To make an even more personal analogy, consider your contract with your ISP. Should something happens that results in either you or the ISP triggering a valid exit clause, the parties are separated under the terms of the exit clause. If you exit prematurely, you may be on the hook for an additional payment or the full value. If you exit under a clause that doesn't require you to keep making payments, your ISP can't come seize your car (legally) because you made a commitment to pay your bills earlier.

You do realize that when you cancel your subscription you still have to meet any obligations incurred before the end date, right?

 

[Degeneve]

But I gave an example in the preceding post: Routine underpayments of NATO contributions from countries such as Germany, Italy and Spain.

As far I know NATO contributions are paid in full by all its members. But some members do not fulfill their commitment to spend at least 2% of their budget for their Ministry of defense. This is a completely different story since they do not owe these 2% to anyone (and certainly not to the NATO).

 

[Newtons Bit]

You do realize that when you cancel your subscription you still have to meet any obligations incurred before the end date, right?

Don't expect any more responses from me. I don't respond to wastes of time. I took the time to read your responses, you could have at least done the same for my responses.

 

[Aber]

You do realize that when you cancel your subscription you still have to meet any obligations incurred before the end date, right?

The contractual obligations are the EU budget which is agreed annually.

The commitments which make up the vast bulk of the 100bn are the multi-year programmes which do not become obligations until they are agreed in the EU budget.

A better analogy would be a dining club where the richer members pay more. The obligations are for the restaurant visits that have been booked. The commitments are the 'let's do New York, the year after next'. There may be a moral argument about paying for that after you resign, but not a legal one.

 

[Aber]

What's the international body formed by the vienna convention?

https://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969[3] and opened for signature on 23 May 1969.The Convention entered into force on 27 January 1980.

 

[Archie Gemmill Goal]

The contractual obligations are the EU budget which is agreed annually.

The commitments which make up the vast bulk of the 100bn are the multi-year programmes which do not become obligations until they are agreed in the EU budget.

A better analogy would be a dining club where the richer members pay more. The obligations are for the restaurant visits that have been booked. The commitments are the 'let's do New York, the year after next'. There may be a moral argument about paying for that after you resign, but not a legal one.

Well the legal obligations will be for the lawyers to decide. Of course if your hypothetical club books the table in New York pays for flights and hotels in advance etc then it's a different situation again.

Of course if you still want to be invited to the clubs Christmas dinner then you might want to pay attention to even your moral obligations

 

[Aber]

Of course if you still want to be invited to the clubs Christmas dinner then you might want to pay attention to even your moral obligations

True, but when you're told the invitation is dependent on paying for everyone else, and it will be a Michelin starred restaurant...

 

[Tolls]

Falling back to WTO rules is the threat, should the UK walk away without a deal on these commitments.

That is not a Good Thing.
Never mind that exactly what WTO terms would be, since the UK is bundled in with the EU when it comes to what our current terms, is unknown. So there would be (yet another) deal to be struck with the WTO, until which time I believe our status will be a bit poo.

 

[Aber]

Falling back to WTO rules is the threat, should the UK walk away without a deal on these commitments.

That is not a Good Thing.
Never mind that exactly what WTO terms would be, since the UK is bundled in with the EU when it comes to what our current terms, is unknown. So there would be (yet another) deal to be struck with the WTO, until which time I believe our status will be a bit poo.

WTO issues IIRC:
Membership - UK is currently a member (although the schedule of tariff rates it uses is the UK one)
Schedule - the UK has to set a schedule of maximum tariffs it will use (WTO sets global maxima), unless it reaches a specific trade agreement with another country

As I understand it the issues are basically administrative, rather than political

 

[Information Analyst]

But I gave an example in the preceding post: Routine underpayments of NATO contributions from countries such as Germany, Italy and Spain.

It's also been pointed out to you that NATO's recommended defence spending levels are a guideline/aspiration, rather than being mandatory.

 

[Tolls]

And those things (I assume you meant we use the EU ones currently) are the issue.
They're having trouble manning the negotiations with the EU, so gearing up to handle the WTO issues is another burden we're seemingly ill-equipped for.

And the schedule is quite important.
And that takes negotiation with the members of the WTO.

As I say, it is the threat. The pro-Brexit types who say "we'll just fall back to WTO rules" seem to completely miss that those rules are not something to be aiming for.

 

[GnaGnaMan]

The contractual obligations are the EU budget which is agreed annually.

The commitments which make up the vast bulk of the 100bn are the multi-year programmes which do not become obligations until they are agreed in the EU budget.

A better analogy would be a dining club where the richer members pay more. The obligations are for the restaurant visits that have been booked. The commitments are the 'let's do New York, the year after next'. There may be a moral argument about paying for that after you resign, but not a legal one.

When you commit to something you are legally on the hook.
A happy "let's do this!" will probably not count as a commitment because that is just something people say. But if it is understood that that the club will then go ahead and make purchases or incur other expenses of a result of such a go ahead then they will be on the hook. They mighty not have to pay the full price for the meal but they will have to reimburse the club for expenses incurred as a result.

I mean, come on. It's the whole point of contract law to hold people to their commitments.

https://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

No international body there.

 

[Newtons Bit]

And those things (I assume you meant we use the EU ones currently) are the issue.
They're having trouble manning the negotiations with the EU, so gearing up to handle the WTO issues is another burden we're seemingly ill-equipped for.

And the schedule is quite important.
And that takes negotiation with the members of the WTO.

As I say, it is the threat. The pro-Brexit types who say "we'll just fall back to WTO rules" seem to completely miss that those rules are not something to be aiming for.

It's certainly not ideal, but it might be a more economical option if the EU ups the 'divorce bill' into even sillier amounts.

 

[Aber]

And those things (I assume you meant we use the EU ones currently) are the issue.
They're having trouble manning the negotiations with the EU, so gearing up to handle the WTO issues is another burden we're seemingly ill-equipped for.

And the schedule is quite important.
And that takes negotiation with the members of the WTO.

As I say, it is the threat. The pro-Brexit types who say "we'll just fall back to WTO rules" seem to completely miss that those rules are not something to be aiming for.

Some analysis on WTO schedules:

https://www.ft.com/content/42b59126-794c-3a0b-b19a-6d4b0a11c990

The views of Dr Bartels are set out at more length here and here. In essence he contends there is little in practice another WTO member can do to block the UK’s new WTO schedules unless it is for a particular reason, backed with evidence, that is directly related to a trade issue. Any casual veto on certification of new schedules would be a pointless and ineffective gesture. If this is the case then the WTO renegotiation is undoubtedly fiddly and tiresome – about as complex a technical readjustment as one can imagine – but it is ultimately not a predicament but a chore.

 

[Aber]

When you commit to something you are legally on the hook.

Depends on the caveats in the commitment:

"We aim to carry out this programme subject to agreeing the details in the annual budget negotiations" is not a legal obligation.

The House of Lords view on the relevant international law has been linked to earlier. If you want to claim that the UK has a legal liability, go and find some supporting evidence from experts.

 

[Archie Gemmill Goal]

True, but when you're told the invitation is dependent on paying for everyone else, and it will be a Michelin starred restaurant...

Yes, if you assume a hypothetical very different to what is being suggested then yes, you get a very different outcome. Of course there is no suggestion that the EU is suggesting that the UK pay for everyone else. And if it's a Michelin starred option then that is only because that's what was agreed when you were a member.

 

[Tolls]

Some analysis on WTO schedules:

https://www.ft.com/content/42b59126-794c-3a0b-b19a-6d4b0a11c990

And?
It's another "chore" on top of everything else.

The point is, and that quote doesn't remove it, is that WTO terms are not the simple option that some seem to think they will be.

They will need work, and they are a crap end point.

Yes (to Newtons Bit above), it is theoretically possible to reach a point at which WTO would be better. However I very much doubt we'll get there.

 

[GnaGnaMan]

Depends on the caveats in the commitment:

"We aim to carry out this programme subject to agreeing the details in the annual budget negotiations" is not a legal obligation.

If someone says that they may or may not do something and will, in fact, decide in the future then that is not a commitment. So why call it a commitment?

The House of Lords view on the relevant international law has been linked to earlier. If you want to claim that the UK has a legal liability, go and find some supporting evidence from experts.

Was the HOL view written by experts? I couldn't find who the author is.

Re: Your request for "evidence":
https://www.ejiltalk.org/the-brexit-bill-and-the-law-of-treaties/

 

[Aepervius]

Pretty much what I said above.

The House of Lords’ report errs in taking the more specific procedural steps for withdrawal in Article 50 TEU as evidence that Article 50 contracted out of all other rules of international law on treaty withdrawal. Article 70(1) is the decisive provision for the UK’s financial obligations arising out of its EU membership because it expressly states that withdrawal does not affect these rights and obligations (“does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”).

Importantly, the general rule is that silence of the treaty parties does not mean contracting out of customary international law. In other words, there is a presumption that there is no contracting out – but like other aspects of the law of treaties, this is ultimately a matter for interpretation. The UK may be able to rebut the presumption – for instance by adducing travaux préparatoires that show that member states intended to contract out of the VCLT’s provisions on withdrawal in their entirety. But this is likely to be a long shot – particularly given that the travaux expressly say that they are ‘partly inspired by the Vienna Convention on the Law of Treaties’.

In sum, Article 50 is lex specialis only with respect to the procedure for withdrawal. It preserves the customary international law rule in Article 70 VCLT (1) (b) that the rights and obligations of the treaty parties prior to withdrawal are untouched. And importantly, this includes the UK’s financial obligations arising out of its EU membership.