Abroad Thoughts from Home

Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

In Memoriam
Ian Townsend Gault 1952-2016

As the Irish poet George Barker once wrote about our favourite people, they are oftentimes "a procession no one can follow after, but be as a little dog following a brass band:" so it was with Ian. Ian Townsend-Gault was a distinguished Professor of Law at the University of British Columbia, husband, father, grandfather, and dear friend, Ian was larger than life, and commanded every room he entered. If he happened to be the speaker, which he most often was, he took the audience to heights they never expected often leaving them speechless and wondering how they might themselves try to make this world a better place after hearing him explain and interpret the world's most pressing international events. He was a man of Cicero's stripe; you could not help but be enchanted by his captivating lectures and ability with the spoken word. This is what first drew me to Ian. What you read in the pages of this journal from Ian's hand is the result of my conviction that a man who spoke so well on subjects of pressing importance must also have his own forum in print. That happened in 2007, and I remember the conversation vividly. He was delighted to be the feature writer for what we came to know between us as IZ, or, more formally, International Zeitschrift. Ian and I were co-editors, and I took care of the management side, but it was really as I envisioned it, a vehicle for the brilliant and incisive insights of Ian.

On a personal level, he cared for his family very dearly, that was his first love and remained so until his recent passing in August of this year. I remember meeting Ian as my International Law professor in 2001, and was spellbound by his ability to inspire the students in his masterful delivery of a lecture. As I found myself in awe of him at times during his life, I now find myself in a somewhat similar state: his life was a procession no one can follow after, indeed.

Brexit, and After
Ian Townsend-Gault

The post-Brexit shambles in the United Kingdom is even worse than the most pessimistic pundit might have predicted. Shock among members of the Remain camp has given way to anger, if not rage. The blatant opportunism, if not arrogant selfishness, of some of the politicians in the Leave campaign, is now apparent. An article by Jonathan Friedland available on the website of The Guardian displays not only controlled rage but the deepest contempt for the likes of Boris Johnson and Michael Gove, happy, he argues, to gamble the future of their country - which they profess to love so much - in order to further themselves and increase their status. It is one thing for the uninformed person in the street to express satisfaction that "we have taken our island back", but neither Johnson nor Gove fall into this category. They knew better. As Friedland writes, it simply beggars belief that Gove et al. could express satisfaction in regaining the sovereignty of the United Kingdom if the future of the country is imperilled: there can be no doubt that when Scotland's First Minister says her country (which voted convincingly to Remain) will not leave the European Union, she means precisely what she says.

It seems more than ironic that, in the days following the Brexit result, the presidents of the United States and Mexico, in company with the Prime Minister of Canada, were preaching the gospel of cooperation and inter-dependendency, in sharp contrast to the Leave message that "we can go it alone", or at any rate, strike a deal with the EU that preserves Britain's trading relationship without having to assume the responsibilities of full membership. This is to some extent an illusion. In order to import goods into the Union, manufacturers are required to abide by the standards it sets as regards quality and the like. They do not have a free hand in such matters, despite what their domestic legislation may say. Taken to its logical end, this may have a slightly odd result whereby non-member states or their citizens are required to assume certain obligations but have no say in setting the standards: obligations but no rights.

Events since the decision was announced have moved with such rapidity that it seemed rash to try to write something sensible about what has been going on. The pace of events may be slackening, but battle lines have been established. It is surely more than surprising that David Cameron and members of his government calmly announced that discussions with the EU will have to await the decision on a new leader for the Conservative Party (due probably in October). It is as if the opinions of the 27 other members of the Union didn't matter. The larger countries, however, have made it clear that The EU will set the agenda, not the [apparently] departing British. And why should they not? They did not cause this crisis. They want matters resolved quickly, and again, why should they not?

What I intend to present here is a sort of stock-taking: where are we at, and where are we going? Indeed, where have we been? One way of doing this is to pose a number of questions, questions designed to probe the forces, real and imaginary, that have brought the United Kingdom to this pass.

Why did the referendum take place at all?

The answer to this is simple. Cameron was faced with apparently deep divisions within his party, not to mention the challenge from the United Kingdom Independence Party [UKIP]. Something not unlike this has happened before. In 1975, the Conservative government of Edward Heath, a staunch European and the man who brought the United Kingdom into what was then simply known as the Common Market, was defeated in a general election fought on grounds which had nothing to do with Europe. The Labour government of Harold Wilson was returned to power, and while the Prime Minister was a supporter of the European project, some prominent members of his government and party were not. Wilson's solution was to hold a referendum on continued membership in an organization which was very much less ambitious than the present EU. Like Cameron, he made some pretence of "renegotiating" some aspects of the deal agreed to by Heath. The country voted overwhelmingly in favour of continued membership.

Although some in Britain remained ambivalent about Europe, to put it no more strongly than that, matters became serious with the accession to power of Margaret Thatcher. In her, they had someone in 10 Downing Street who was openly quasi-hostile or at least combative towards Brussels: It has to be said that her fellow heads of government seemed willing to accommodate her as best they could. There were of course limits to this - a treaty is a legally binding document conferring rights and demanding obligations, and its terms cannot be varied by friendly chat over dinner.

The point is, I think, is that Mrs. Thatcher made it respectable to be anti-European to some degree or other, ranging from the somewhat to the extreme. UKIP is the direct result of the latter. Having said this, we should remember that there are Eurosceptics in many member states, some of whom have been elected to the European Parliament in Strasburg.

I referred in the introduction to this essay to the charge brought by Jonathan Friedland and others that the Brexit fiasco had its roots in the ambitions of certain politicians to advance their careers and status. While there is nothing wrong with this as such, to do so at the expense of the manifest best interests of your country is utterly reprehensible. One can take some comfort from the fact that Boris Johnson has perhaps reaped what he sowed.

Was the Referendum necessary?

Clearly not. David Cameron, an overt supporter of Europe, won the last British general election by a convincing majority. It seems to me he could have taken comfort and more from that fact. It would surely have been an option to say to dissenters in his own party, "Here I am, come at me if you want". This would in all likelihood have led to at least one challenge to his leadership, but there is nothing new in that. Would this not have been a more principled approach, one founded on parliamentary democracy as the UK has understood it for more than one hundred years?

I believe it is also possible to argue that the whole approach to the Referendum, if the Referendum was going to be, was very ill-advised. The notion that the future of the United Kingdom could be decided on the basis of 50% plus one was surely incredible. There was a plebiscite in Scotland in the late 1970s on establishing an assembly with some powers devolved from Westminster. The majority of voters were in favour, but the majority did not reach the required threshold of 60%. Why was there no threshold in a referendum dealing with matters of rather greater importance?

There can be only one answer. The Remain side thought it was bound to win. This was only one of the many miscalculations the British government made. There were others: with all due respect to the individuals concerned, it is surely something of a waste of time to warn citizens in shopping malls in the North of England of the likely consequences to the stock exchange and the City of a decision to quit the EU. Why would they care? Indeed, this sort of rhetoric would only serve to underline the gulf between "the establishment" and "ordinary people".

In This Issue

Brexit, and after
Ian Townsend-Gault

Explainer: what are the legal implications of the South China Sea ruling?
Clive Schofield

Socrates and Cicero: Functionality as Justice
C.G. Bateman

Are the results of the Referendum binding?

My answer to this question would be that morally, one might answer in the affirmative, even though the majority in favour of leaving was hardly enormous. Legally speaking, the answer is no. Indeed, as I write on July 2, 2016, tens of thousands of young people (the demographic in England most notably in favour of remaining) have rallied in Trafalgar Square demanding that the results of the Referendum be regarded as "advisory". There would of course be some considerable political fallout from a decision to regard the results of the Referendum in this way. Having said this, there are some reports that people who voted to Leave are having second thoughts. The consequences appear to be far beyond anything they had expected.

I do not believe anyone expected the post-Referendum fallout to be as serious and widespread as it has proved to be. The British police report a 500% increase in hate crimes directed at immigrants. Was that reasonably foreseeable? Whether it was or not, it is yet one more illustration of the absolute folly of the whole Referendum project. Amongst other consequences: the unleashing of naked bigotry, the possible departure of Scotland from the Union (to say nothing of the future of Northern Ireland), chaos in the leadership of the Conservative and Labour parties, fury in the capitals of the other twenty seven members of the EU, their making it clear that it is they who will set the agenda for the next while, not Westminster. It is simply not good enough to say that none of the above was "reasonably foreseeable". Governments are elected to safeguard the best interests of their people. By this measure, Cameron's Conservatives have failed.

Sovereignty Regained?

What do we mean in the year 2016 by "sovereignty"? I referred earlier to the conclusions of the presidents of United States, Mexico and the Prime Minister of Canada on the need to recognize the essential interdependence of the members of the international community. It has been so for decades. On the eve of Harold Wilson's referendum, the BBC interviewed the Right Honourable Harold MacMillan, a former prime minister, and before that, the holder of many cabinet offices, and a decorated hero of the First World War.

MacMillan - a scion of the famous publishing house - was a somewhat Edwardian figure, now come into his own, perhaps. He poured scorn on the notion of the regaining of sovereignty, asking how a country that could not defend itself, feed itself, and was dependent on others for its sources of energy [this was 1975, let us remember] could in all seriousness talk in such terms. Have things changed so much that the dialogue is so very different today?

Sovereignty cannot possibly mean today what it might have meant to the likes of Thomas Cromwell and his successors. This is not to say that countries surrender essential elements of self-government either to another country, or to some supranational organization. However, there is no doubt that the legal basis for what is now the European Union was established by cases brought before the European Court of Justice in 1963 and 1964 which had to tackle this very question. Put briefly, it was this: if there is a conflict between member state and European Law [that is, remember, that the various treaties constituting what is now the European Union have normative content, not to mention laws issued by Brussels - today with the consent of the European Parliament], which will prevail? This was simply not addressed in the founding document of the European project, the Treaty of Rome, 1957. It became necessary for the Court to grasp the nettle, and indeed it did. It postulated the idea that the legal basis for what was then the common market was a "pooling of sovereignty" for certain purposes. This justified giving preference to European norms over national laws. One can only pause to consider that the United Kingdom was well aware of this when it joined the common market in 1973.

Have things changed so significantly since MacMillan made his authoritative and very convincing pronouncement? I for one do not think so. The extraordinary explosion of international law since 1945, much of it due to the work of the specialized agencies of the United Nations and the International Trade Organization, has woven a dense web of mutual rights and obligations all of which have been expressed in treaty form. In other words, the international community has used international law as a means whereby states are increasingly bound one to the other, not otherwise. Perhaps I can emphasize once again that treaties are not "guidelines". They are normative instruments. They create rights enforceable against the rest of the world, and may, and usually do, impose concomitant obligations. Of course many states embrace the rights and would rather not deal with the obligations - a phenomenon not exactly unknown amongst private citizens. This is a reality that people who think like Donald Trump simply do not recognize, but it is the case, whether they like it or not. It is this to which the principal participants in the "Three Amigos" meeting in Ottawa were referring.

What Next?

This question is impossible to answer, for many of the reasons set out above. The appalling fact, as many have said, is that there was no plan for what might happen should the Leave side prevail. The situation is of course hopelessly complicated by domestic political turmoil within the United Kingdom. If we add to this the implacable attitude being adopted by the larger states of the EU, as well as their determination that the British vote will not lead to the unraveling of the Union [for reasons that are far from clear so far as I am concerned], the future appears horribly complicated. Furthermore, it is simply not possible that Britain can simply "leave". The UK has been part of the EU for 40 years. The degree of entanglement is enormous, and may well take years to sort out.

Brexit in a Global Context

The British media have of course been obsessed by Brexit since the result was declared, at least so far as I can judge from the BBC World News, its website and that of The Guardian, among others. But the migrant crisis in Europe continues, with women, men and children making hazardous voyages across the Mediterranean in unseaworthy vessels to be given a less than enthusiastic welcome upon arrival, if indeed they do arrive: what is Brexit to them?; there are bombings and shootings in Baghdad, Istanbul, Mogadishu and Dakar and elsewhere; the military offensive against ISIS continues; the parliamentary standoff in Spain seems set to continue; Austria's highest court has ordered a rerun of that country's election; and as I write, the chance of there being a stalemate in the general election in Australia appears to be high. Marine areas such as the South China Sea remain in a high state of tension, and there are those well-qualified to address the issue [I do not belong in this category] who argue we are losing the fight against climate change. Where might we slot Brexit in given this ghastly humanitarian agenda?

Whatever the outcome after Brexit, it would appear that our sorry world is to be destined to continue on its sorry way.

July 2, 2016


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