Category: International Agreements

The invasion of Ukraine – autocracy, democracy, constitutionalism and rationalism

25th February 2022

There are two common errors in politics and human conflict.

One is to believe your opponents are caricatures – to assume that they are not rational.

The other is to believe there must be some reason in what your opponents do – to assume that they are actioning rationally.

The problem is knowing when you are making these errors in any given situation.

Take Putin, for example.

Some think he is currently being rational:

While others think he is unhinged:

At an early stage of this conflict, I saw some merit in the view that Putin was rationally acting to set up a ‘frozen conflict’ – as he had done in Georgia and Moldova:

But while that may have explained the initial parts of the current conflict, it does not explain the escalation to a full invasion.

And so we do not know whether (and, if so, how) what Putin is doing is rational – and whether there is any way to comprehend why Putin is acting in this way.

But what we do know is that this conduct – rational or otherwise – flows from Putin as an autocrat.

This is evidently his policy – and not one that is being pushed on him by others – and there is nobody in the Russian polity with any formal power to check him.

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Over at the outstanding Comment is Freed blog, the doyen of war and strategic studies Lawrence Freedman sets out what we know and do not know so far about the invasion.

It is exemplary commentary on an unfolding (and, for us, confusing) event and it is worth reading for its own sake.

But there is one passage that is worth considering on this here law and policy blog:

“At times in democracies we lament the flabbiness, incoherence, short-sightedness and inertia of our decision-making, compared with autocrats who can outsmart us by thinking long-term and then taking bold steps without any need to convince a sceptical public, listen to critics, or be held back by such awkward constraints as the rule of law.

“Putin reminds us that that autocracy can lead to great errors, and while democracy by no means precludes us making our own mistakes, it at least allows us opportunities to move swiftly to new leaders and new policies when that happens.

“Would that this now happens to Russia.”

The great thing about checks and balances (when they work) is that, well, they check and they balance.

In the United Kingdom, for example, prime ministers as different as Asquith, Chamberlain, Churchill and Thatcher have all been removed from office at a time of international tension or war.

Effective checks and balances mean that those with political power can always be prevented from exercising their power – and even removed from power.

And this accountability tends to improve the quality of policy and decision making.

As Freedman avers, in a democracy there are the means by which leaders can be replaced and policies changed.

In Russia – whether Putin is rational or not, and whether his policy is rational or not – there are no formal mechanisms by which Putin can feasibly be replaced or his policy halted.

So it does not matter much whether he and his policy are rational – whether there is some grand plan.

He is going to (try to) do what he wants anyway.

And so we come to the ultimate check and balance that all tyrants risk encountering, regardless of any constitutional arrangements.

The check and balance on Hubris that is often (but not always) provided by Nemesis.

Putin will not be the first (or last) dictator to overreach himself in trying to spread their power westwards or eastwards on the land mass of Eurasia.

The problem is that waiting for Nemesis can be like waiting for Godot – and sometimes it does not come in time, or at all.

And that is why, as Freedman implicitly suggests, conflicts are not a time to release leaders and their polices from any scrutiny – but a time where leaders and policies should be most scrutinised.

Would that this now happens to the United Kingdom.

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“Not waving, but drowning”

 24th February 2022

Here is a tweet worth pondering:

In its form and content the first couple of sentences of Farage’s tweet evoke one of the greatest English poems of the last century, the first verse of which is:

“Nobody heard him, the dead man,

But still he lay moaning:

I was much further out than you thought

And not waving but drowning.”

For at the moment everyone involved in the Ukraine invasion – Putin included – seem to be going much further out than others would have thought.

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In the United Kingdom we are facing this international crisis with perhaps the weakest cabinet in British political history.

And this is not a party political point – for some Conservative cabinets have been very strong indeed.

One example of this weakness is the Foreign Secretary whose idea of escalation is to contrive (effectively) photo-opportunities:

And so we ended up with a photo-opportunity, but in words:

The only thing this exercise showed is that we have a rather gullible Foreign Secretary:

This lack of seriousness by the United Kingdom government can be seen elsewhere:

7 March is over ten days away.

“hobble”

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The fundamental problem, of course, is that there is little that the United Kingdom can actually do in this situation.
As this blog averred a couple of days ago, ‘sanctions’ are often things we use so as to pretend to ourselves that we are not politically impotent.
Any ‘sanction’ that would have any significant effect will adversely affect us at least as much as Russia – and there is no real political stomach for such self-inflicted pain.
And any military (mis)adventure is capable of ending in disaster.
The stark truth is that sometimes there is nothing that can be done when something must be done.
Of course: Ukraine must be given any aid and assistance it requests.
And we can hope that Putin and Russia will implode from their misadventure.
In these circumstances, sanctions and other measures can be public goods, worthwhile doing in and of themselves.
But we should have no illusion that they will have the direct effects that are wanted.
For in practice, ‘sanctions’ are likely to be mere pebbles and boulders being placed against the flow of Russian money.
The river will just find its way round such impediments.
And in the face of that torrent of money, we are not waving, but drowning.

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Thinking about “sanctions”

22nd February 2022

Let’s consider the word ‘sanctions’.

The word is in the news because of Russian imperialist aggression against Ukraine.

(And yes, what Russia is doing is imperialism – the notion that only the English can be imperialistic is just another way of being Anglocentric.)

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One common response to this aggression is to demand ‘sanctions’.

A demand, in effect, that ‘something must be done’.

Those demanding sanctions may not have any clear idea – or, indeed, any idea -as to what should be done as a sanction or what effect it may have.

It is enough, for them, that they are demanding ‘sanctions’ – almost as a form of political therapy.

A thing to call for, instead of admitting that there is little or nothing that can actually be done – at least short of a military (mis)adventure which would, in turn, likely be a fiasco.

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In reality, ‘sanctions’ rarely work.

They are the Yellow Cards of international affairs.

And, as in football, such Yellow Cards rarely deter – still less eliminate – foul play.

They are instead little more than a cost of business.

In practice – and I have advised as a lawyer on sanctions – they are usually business inconveniences and irritants that can be addressed and navigated.

There are many creative and ingenious ways with which a ‘sanction’ may be complied with.

Any sanction that would actually have the desired political effect would adversely affect the sanctioning state as well as the sanctioned state.

And this is because of the nature of sanctions in an economically interdependent world.

Unilateral commercial relationships are rare and so – almost by defintion – an economic sanction will have domestic effects as well as on the sanctioned adversary.

And so it unlikely that the United Kingdom would sanction Russia in a way that would significantly disrupt the flows of Russian money into London.

But.

Serious sanctions can be done – as Germany has impressively shown today with reconsidering Nord Stream 2 – although perhaps this is not a ‘sanction’ as such but a fundamental (and sensible) reconsideration of energy policy and strategy.

And that will hurt Germany – yet they are willing to take the hit.

The United Kingdom has instead merely talked the talk of tough sanctions – and so today’s announcement of a ‘package’ was unimpressive.

It is always easier to talk tough sanctions than, well, convert that tough talk into meaningful sanctions.

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One response to such scepticism about ‘sanctions’ is to ask: what else can be done?

Some even resort to saying ‘sanctions’ would have ‘symbolic’ importance.

But this is akin to ‘enshrining in law’ nonsense.

What can be done is to be wary of this form of magical thinking.

To realise that we risk misleading and bewitching ourselves.

To realise that sanctions, as with legal prohibitions, are not magical spells.

And to accept the stark hard truth that – unless we place ourselves at a severe disadvantage, or risk military (mis)adventure – there is little or nothing that can be done.

To admit to our own political impotence.

We may as well ‘tut’.

But.

Because we do not want to do that, we will blithely demand ‘sanctions’ instead.

For something must be done.

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The unforced error by Boris Johnson of publishing the letter to the French President

26th November 2021

Yesterday Nick Fletcher, a little-known member of parliament (with his own taste for time travel), tweeted a daft statement on headed paper about whether casting a female Doctor Who was the cause of a real-world crime surge.

And yet that was not the most stupid thing on headed paper tweeted yesterday by a politician.

The current prime minister surpassed even that missive.

What was stupid about this prime ministerial letter being tweeted was not so much the content – though the content was bombastic and demanding.

The letter had all the quality of an English person outside a Parisian café ordering in English slowly and loudly, with hand gestures.

The real stupidity of the letter was in its tweeting.

And so what then happened was almost inevitable.

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Le whoopsie (with *hand gestures*).

There are two observations to make about this latest pratfall.

The first is personal to the current prime minister: there is no policy predicament so bad that it cannot be made worse by his intervention.

This is yet another unforced error by perhaps the greatest political manufacturer of unforced errors.

The second is that it demonstrates a tension – if not a contradiction – at the heart of Brexit and post-Brexit politics and policy: the political need for the United Kingdom government to play to its domestic audience and the policy need for it to cooperate with European states.

Often the United Kingdom government gets away with it, as those in Europe care little or nothing about the front pages of British newspapers.

But in this instance, the play for the domestic audience was at the direct expense of cooperation.

The café door has slammed shut.

And the loud English man is left outside gesturing to nobody in particular, while trying to assure himself that nothing has gone wrong.

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By ‘taking back control’ of your borders, you can lose control of your borders – the lesson of Brexit

25th November 2021

Brexit, we are often told by its supporters, was about taking back control – especially control of our borders.

But think about borders for the moment.

For every border there is – perhaps axiomatically – another side.

Else it would not be much of a border.

This means that if you take back control as an exercise in unilateralism then you may lose control – or influence – over what will be happening to your border from the other side.

And so you will not be taking back control – but losing control.

For an effective border usually requires there to be shared policies on both sides.

Therefore, without cooperation, you lose control or influence over what will be happening to your border.

This is obvious – if you think about it.

The issues with the borders in the island of Ireland and in the English channel both have a common basis in that Brexit-supporting politicians underestimated the importance of cross-border cooperation and shared policies in making borders work in practice.

Control of any border is rarely achieved – at least without lethal enforcement.

And even the borders of totalitarian regimes dissolve.

The policy of the current governing party of the United Kingdom used to be about bringing down walls and promoting shared policies – the Single Market owed much to Lady Thatcher and Lord Cockfield, and the expansions of both NATO and the European Union was promoted by successive Conservative governments.

Short of repression, the only way to take (or have) control of any border is by cross-border cooperation and shared policies.

And so, in this and many other ways, Brexit is an expensive and painful exercise in the United Kingdom government finding out just how interdependent things are in a complex world.

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Understanding the secrecy of the United Kingdom over its proposals for the Northern Irish protocol

14th October 2021

We are told that the United Kingdom government has provided its proposals to the European Union for changes to the Northern Irish Protocol.

We can assume this to be true – else the European Union would say that they have not received such proposals.

(It is sad we cannot trust the word of the government on this without express or implicit corroboration.)

But these proposals do not appear to have been made public.

This cannot be explained by the usual ‘cards close to the chest’ excuse – as the European Union know what those proposals say.

So there must be another reason.

And the only possible reason appears to be is that the United Kingdom government does not want the people of the United Kingdom – or the press of the United Kingdom – to know what is in those proposals.

Just think about this.

Brexit was supposed to be about the United Kingdom people ‘taking back control’ from the European Union.

But now the United Kingdom government is allowing the European Union to be privy to proposals on what happens with one part of the United Kingdom – and not the people who live and work there.

It is an extraordinary situation, if you think about it.

This is the reality of ‘taking back control’.

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All because you ‘trigger’ Article 16 that does not make it a gun

4th October 2021

Another Monday, and another week begins with the government of the United Kingdom saying that it going to do something to show how serious it is about the Northern Irish protocol.

And David Frost, the Brexit minister, is again threatening to ‘trigger’ Article 16.

He may well do so, for this government has done dafter things in respect of Brexit and other matters.

But, as this blog has previously averred, if you actually look at what Article 16 says, you will see that it does not expressly provide for the suspension of the protocol.

It instead provides for a process – slow and deliberate – where the parties to the protocol can discuss measures fulfilling certain strict conditions, with the objective of ‘safeguarding’ the protocol.

Article 16 is not much of weapon.

All because you trigger Article 16 that does not make it a gun.

Maybe the European Union and the United Kingdom will do a deal under the cover of the Article 16 process.

Maybe; maybe not.

But the process in and of itself is not something that is intended to disrupt, let alone dismantle, the protocol.

Article 16 is more of a bicycle repair kit than a Beretta handgun.

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And what if Article 16 happens and the United Kingdom – either by law or politics – does not get the deal it is seeking?

What is the United Kingdom to do?

Threaten to trigger Article 16 a second time?

Or a third?

What if Frost’s bluff is called – and (yet again) he does not achieve what he is seeking to achieve?

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The one useful experience that is coming out of this situation is that – one hopes – United Kingdom ministers will be more careful about what international agreements they sign in this post-Brexit period.

An international legal instrument is not akin to a press release to be signed (off) so as to get Brexit done.

Entering into this agreement was a serious commitment, but the United Kingdom government was not serious.

But, just as inexperienced business people may sign one shoddy contract but never sign another one, perhaps the next generation of politicians – both those who make the decisions and those who hold them to account – will take the exercise of entering into a deal more seriously.

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Unless and until the European Union agrees to amend the protocol, the United Kingdom is stuck with the withdrawal deal it signed.

This is the practical reality of ‘getting Brexit done’ and ‘taking back control’ – the United Kingdom is perhaps more reliant on goodwill than before.

This legal dependency is the hidden, inconvenient truth of Brexit – and Brexiters could not have in substance made us any more reliant on the European Union if they had tried.

Brexit did get done – but by giving away control and not by taking it back.

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The government proposes a Christmas gift for emergency visa workers: a deportation order on or after 25 December 2021

26th September 2021

Ebeneezer Blackadder:
In fact, there is something in your stocking, Baldrick, something I made for you.

Baldrick:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a fist. It’s for hitting people with. See?

– Blackadder’s Christmas Carol (1988)

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The government’s proposal was daft to begin with.

An extraordinary proposal, even for this government.

And just in case you would not believe me, here is the BBC tweet announcing it – and the BBC’s name is good upon ’Change, for anything it choses to put its name to.

The necessary implication of the government’s proposal is that by automatic operation of law these lorry drivers who will deliver our Christmas goods and these poultry workers who will provide the Christmas turkeys will become illegal aliens at the stroke of midnight on Christmas Eve.

What a Christmas present for those who choose to come over here to provide services, goods and food for those of us in Great Britain.

The following tweet on this is (I think) intended as satire:

But as Zoe Gardner observes, it it not far off the actual legal position:

She is right: that would be the legal position on Christmas Day.

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And as this blog averred yesterday, there is no reason to believe this quick fix will work in any case.

Let us remember what happened last year.

There is thereby no particular reason to think there will be a rush of workers wanting to help Great Britain out at this time of need.

And so the proposal may become an(other) example of the post-Brexit government discovering that the many problems created by Brexit are not capable of quick easy solutions.

Inviting such workers on terms where – once they have delivered Christmas goods in their lorries and helped provide the turkeys for Christmas dinners – they will literally become illegal aliens at the strike of midnight – is a thing not even Charles Dickens would have imagined.

To adapt Blackadder:

Ebeneezer Blackadder:
Thank you for helping save the British Christmas, there is something in your stocking, something I made for you.

EU migrant worker:
Ah, well that’s the best kind of gift, Mr. B. What is it?

Ebeneezer Blackadder:
It’s a deportation order. It’s for deporting people with. See?

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The Law and Politics of triggering Article 16

24th September 2021

So the United Kingdom government is again contemplating triggering Article 16.

A recent post on this blog set out what – at law – this means.

In essence: triggering the article means a formal process will begin which may enable the United Kingdom and/or European Union to take ‘safeguard’ measures to protect the operation of the Northern Irish protocol.

On the face of it, Article 16 is not about ‘suspending’ the Northern Irish protocol but about repairing and thereby protecting the functioning of the protocol.

All because Article 16 can be ‘triggered’, that does not make it a gun.

But.

Law and politics are different things.

And sometimes legal processes can be commenced as a cover for (or as an accompaniment of) political manoeuvres.

This possibility was highlighted last week by the sagacious Steve Peers:

Maybe the European Union too would welcome the triggering of Article 16 so that it can move to a position that it may not be to adopt without such political and legal cover.

Maybe.

But even taking this political possibility at its highest, there remains the fact that the Article 16 process in and of itself is not intended to be a route for suspending the protocol but for (as it says expressly) safeguarding it.

And it is against this background we come to yesterday’s infantile tweet from the United Kingdom minister David Frost:

Or: please answer the telephone, please.

As Frost was the United Kingdom politician who actually negotiated and endorsed the agreement containing the protocol, it is an especially pathetic plea.

And those in Northern Ireland who benefit from access to the single market, while the rest of the United Kingdom face all manners of shortages, may not agree that the protocol is having a negative effect.

(And also the ‘clearly’ is also a tell – politicians tend to use the word when a thing is not clear.)

But the first sentence of the tweet looks as if the government is seeking to frame the issue as meeting the seriousness criterion for triggering Article 16.

Maybe they will.

Maybe.

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If the United Kingdom government triggers Article 16 – and the United Kingdom government has done dafter things regarding Brexit – there will no doubt be claps and cheers.

And – and this should not be discounted – the Article 16 process could result in a political deal.

But what is not intended to happen is that the process, by itself, leads to the suspension of the protocol.

And if that is what the United Kingdom government is banking on, then this will turn out to be another needless misadventure in the story of Brexit.

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“I’ve always thought that a free trade deal with the U.S. would be difficult” – and what this Prime Minister’s falsehood tells us about law and policy

23rd September 2021

Once upon a time a Brummie solicitor and pundit averred that a post-Brexit trade deal with the United States was ‘in the bag’.

That Brummie solicitor and pundit was not me – though I did have fun with this boast in a Financial Times piece.

Jones was not the only figure to assume that a post-Brexit trade deal with the United States would be easy.

Almost all Brexiters who had an opinion on the matter assumed that such a trade deal would be a given.

And one such Brexiter was the now prime minister Boris Johnson.

But now he denies he ever said it.

Here, this short video should be watched in full.

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Shameless stuff.

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There are at least two issues here.

The first was the readiness of Brexiters to assume international free trade deals were easy – that they would naturally follow from Brexit with the United Kingdom having a fully independent trade policy.

This sentiment may be derived from cod-historical notions about Victorian Britain – where it is imagined that the likes of Richard Cobden would pop across the channel to negotiate a free trade deal and still be home for tea.

In the mundane world of 2021 – as opposed to the giddy biscuit-tin world of nostalgic reenactments – new trade deals are rarely quick or easy, and often may not be worth having at all.

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The second is that the prime minister knows he can say things that contradict what he said before and that few, if anyone, will care.

And this is despite the internet making it easier to expose such lies and other discrepancies.

Other than for the sake of it as a public good, there is no real point in setting out the falsehoods.

This is one thing that George Orwell perhaps did not correctly anticipate in Nineteen Eighty-four – there would be no need to employ the likes of Winston Smith to go back and change the historical record, as it would make no difference as to whether people believed new false claims.

The future instead turned out to be President Trump and others waving away such inconvenient truths as ‘fake news’.

For as this blog has said many times: exposing lies is not enough when people do not mind the lies.

So we are now in a bubble of faux-historical sentimentality and hyper-partisanship, where the truth of the historical record makes no difference.

You may think the bubble cannot carry on, but yet it does.

It is the paradox of our age: it has never been easier to expose a falsehood, yet the falsehoods continue to have purchase.

And from this many of our current problems in law and policy follow.

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