Brexit: a "superbrain" crashes and burns

28/08/2018

In a recent article, Sir Richard Aikens, Professor George Yarrow and Professor Guglielmo Verdirame reach the view that the UK, as a current member of the EEA, is likely to remain so even after leaving the EU and would stay a member until and unless it invoked the formal leaving process set out in Article 127 of the EEA Agreement.

This is a view I have taken myself, where I argue that, once an exit procedure is defined in a treaty – which is the case with the EEA Agreement - a State desirous of leaving must follow that procedure. Even though it may be in breach of its obligations in respect of that treaty, it remains a party to it – until or unless it has undergone the exit procedures to which it agreed.

The implications of this are, of course, quite profound and run contrary to the stance taken by HMG which asserts that leaving the EU automatically means that we are leaving the EEA and, therefore, there needs to be no separate application to leave.

If we take the other view, that automaticity does not apply in the event of a treaty embracing an explicit procedure for leaving, then it would appear that the EEA Agreement is not the only treaty caught by this provision.

One such treaty is the Multilateral Agreement on the establishment of a European Common Aviation Area (ECAA), which takes in all EU Member States and countries such as Albania, Bosnia and Herzegovina, Croatia, Macedonia, Serbia, Iceland and Norway.

This Multilateral Agreement is a formal treaty, entered in the EU's treaty database, making it in every way equivalent to the EEA Agreement. And it too, by virtue of Article 31, includes a provision for termination, taking effect a year after notice has been given.

The effect of membership of the ECAA, afforded by the Agreement, is to bind the contracting parties to full conformity with the EU's aviation acquis, including measure concerning safety, the environment and consumer protecting, in return for which full access is given to the EU's internal market in aviation.

In relation to the vexed question of whether UK aircraft will be grounded after Brexit day – and whether aircraft registered by EU Member States would be prevented from using UK airports and air traffic facilities – it would appear that the status quo would apply and air operations may continue as normal.

Undoubtedly, in rejecting the interpretation of international law which would otherwise keep us in the EEA, the UK must also refuse to accept that our membership of the ECAA continues after Brexit day. And, in that case, given a "no deal" exit, the provisions set out in the Commission's Notices to Stakeholders would apply, respectively here and here.

The UK would thus cease to benefit from access to the skies of EU Member States and, on the basis of non-conformity with the safety provisions, UK registered aircraft would be refused landing rights in the territories of EU Member States, and UK airports could no longer be used by EU-registered aircraft.

The impact of a "no deal" Brexit on air operations would thus be extraordinarily severe, so much so that many pundits argue that the UK and EU would quickly come to a deal which will permit resumption of the status quo. In other words, a "no-deal" Brexit would not actually mean a no-deal Brexit, certainly in respect of aviation. With the agreement of a side-deal, we would have a no-deal deal.

One of those self-appointed pundits who argues that this would be the case is one of those "ultra" superbrains in the form of Julian Jessop, IEA Chief Economist and Head of the Brexit Unit. He has taken it upon himself to write a "no deal" Brexit "fact checker" on aviation, in order – the IEA claims – "to help separate Project Fear from Project Fact".

Part of "superbrain" Jessop's thesis is that, in order to keep the "planes" flying (without hurling carpentry tools skywards), the UK could adopt the "off-the-shelf" option by "rejoining the ECAA as an independent member state". This, he says, "should be relatively straightforward", as the ECAA agreement already includes countries such as Norway and Iceland, as well as a number in the Balkans, and the UK would of course already be fully compliant with the aviation acquis.

He does however, acknowledge one "minor" impediment in that ECAA members are subject to the jurisdiction of the ECJ in the areas covered by the agreement. This, says Jessop, "would require some fudging, at least, of the government’s 'red lines'", although he argues that this may be acceptable in a limited number of relatively technical and uncontroversial areas (especially if the alternative is that "planes" are grounded).

Unfortunately for superbrain Jessop, though, he misses the rather important provision of Article 32, entitled "Enlargement of the ECAA". This makes it clear that membership of the ECAA is not something to which a third country can ordinarily apply.

It actually gives the European Community [Union] the option to ask any State or entity "which is prepared to make its laws on air transport and associated matters compatible with those of the Community, and with which the Community has established or is establishing a framework of close economic cooperation, such as an Association Agreement, to participate in the ECAA".

Given that the UK would have just left the EU without a deal, and would therefore neither have established nor be in the process of establishing a framework of close economic cooperation, it is quite evident that neither of the crucial qualifying requirements would be satisfied.

Further, since Mrs May has on many occasions stated - as a matter of fixed government policy -that the UK will not accept the jurisdiction of the ECJ, the EU would be entirely within its rights to decide not to invite the UK to join, on the basis of that stated policy.

Nevertheless, one would suppose that such quibbles would not gainsay an analysis by a "superbrain" from the "ultra" fraternity. Such people are always right, simply by dint of their expressing an opinion. Neither the European Commission nor any number of experts could be allowed to stand in their way.

That apart, Jessop does concede that there is another solution. This would be to negotiate a "bespoke arrangement". This would, effectively, be a new free trade agreement (FTA) for aviation only. A small snag, Jessop does admit to, though, is that "it would also take longer to agree and this may not be easy in a 'no deal' scenario, especially if the EU took the hard line that it will not even start to negotiate until the UK actually becomes a third country".

As always, the devil is in the detail. And there, "superbrain" Jessop confronts that detail. In fact, the EU cannot negotiate with the UK until it becomes a third country and, given the length and complexity of a fully-fledged, all-embracing aviation agreement, one might expect many months to pass before there could be working arrangements in place.

But here, "superbrain" also has an answer. Even if negotiations are left to the last moment, he asserts, "there are several quick fixes. In particular, the UK and EU (or a third country like the US) could agree at least a temporary extension of the current arrangements by something as simple as a memorandum of understanding" (MoU).

It would appear though, that Jessop has fallen into the trap, about which the FCO warns. The assumption he makes is that an MoU records international "commitments", "but in a form and with wording which expresses an intention that it is not to be binding as a matter of international law". Thus, an MoU is used where it is considered preferable to avoid the formalities of a treaty.

Unfortunately, what makes a treaty such is not the label applied but the form and wording, and the intended effect. If the provisions are intended to be legally binding between parties, the instrument becomes a treaty – even if it is called an MoU, as indeed some treaties are. To make international aviation work will require a treaty – no matter what it is called. There are no quick fixes.

And this brings us to the crunch. No sensible person would assert that, on such a vital issue as aviation, the EU and the UK would not eventually come to an agreement. The problem is that, with a "no deal", we have already cut adrift existing agreements and we are starting from scratch. That this is the case is not "project fear" but a simple application of reality.

In the Brexit talks, we have a choice. We can either make a single, coherent deal before we leave the EU. Or we can leave the agreements until after we have left – the "no deal" scenario, with all the inevitable disruption that this will bring. Not all the superbrains in the world can get past this simple fact. While we fly off into the sunset, Jessop crashes and burns.

Perversely, there is another option. If the UK does remain a member of the ECAA after Brexit (unless the formal leaving procedure is invoked), then this matter is judiciable in the International Court at The Hague, where its continued application could be enforced. However, it might easily take several years before the case even came to court, which makes it a somewhat limited option.

The real answer, therefore – unless you are one of those wondrous superbrains like Jessop – is to conclude a deal before we leave the EU. And that is something even mere mortals such as myself could understand.