Richard North, 29/12/2020  

I do admire these clever people, many of them employed by the legacy media, who have so diligently ploughed through the 1,246 pages of the TCA and finished their work in order to bring us their penetrating analyses.

Yet, while the main document is over a thousand pages long, with annexes and protocols, the actual length of the treaty is only 409 pages – although it feels longer. When it is compared with CETA, this has a main body of 230 pages out of a total length of 1,598.

However, length is not a measure of the TCA – nor CETA. As part of their function as treaties with the EU, they act as portals to the wider world of globalisation, knitting together a myriad of other treaties and technical agreements to make a single, interlocking whole.

Consider, for instance, Part Six, Title II, Article COMPROV 5, headed: "Fight against climate change". Point 1 states:
The Parties consider that climate change represents an existential threat to humanity and reiterate their commitment to strengthening the global response to this threat. The fight against human-caused climate change as elaborated in the United Nations Framework Convention on Climate Change (UNFCCC) process, and in particular in the Paris Agreement adopted by the Conference of the Parties to the United Nations Framework Convention on Climate Change at its 21st session (the "Paris Agreement"), inspires the domestic and external policies of the Union and the United Kingdom. Accordingly, each Party shall respect the Paris Agreement and the process set up by the UNFCCC and refrain from acts or omissions that would materially defeat the object and purpose of the Paris Agreement.
While the UK is a party in its own right to the UNFCCC process, this article is an affirmation that both parties (the EU and the UK) intend to continue working together on the UN agenda, almost as if Brexit had never happened.

Similarly, the Parties recognise the importance of the UN Environment Assembly (UNEA), of the UN Environment Programme (UNEP) and multilateral environmental governance and agreements as a response of the international community to global or regional environmental challenges. Thus, each Party commits to effectively implementing the multilateral environmental agreements, protocols and amendments that it has ratified in its law and practices.

The Parties recognise the importance of conserving and sustainably using biological diversity and the role of trade in pursuing these objectives, including by promoting sustainable trade or controlling or restricting trade in endangered species, notably the Convention on Biological Diversity and its protocols, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Washington D.C. on 3 March 1973 ("CITES").

Working through the treaty, one finds that this is only one of dozens of references to global or regional bodies, where the EU and UK are locked into continued cooperation.

Another instance of this is the Parties' reaffirmation of their rights and obligations under the WTO SPS Agreement, with a further commitment to ensure that their procedures and related SPS measures are set in line with the principles as laid down in the international standards of the Codex, the IPPC and the OIE (the so-called "three sisters") under the FAO in Rome.

Effectively, therefore, both the EU and the UK – although now separated – have committed to taking their lead on food standards, plant health and protection, and animal health from international bodies.

The interesting thing here is that, for a long time, the EU has been adopting standards from these sources, and adopting them – mostly verbatim – into legislation, thence to be adopted by the UK as EU law. But now we have left the EU, we will still be adopting these standards, but they will enter the UK law book directly without the EU as the "middle man".

In terms of non-food standards, we have similar provisions via the WTO TBT Agreement, where – alongside the EU – we are committed to adopting international standards developed by the International Organisation for Standardisation (ISO), the International Electrotechnical Commission (IEC), and the International Telecommunication Union (ITU).

Once again, although we have left the EU, we will be adopting many of the same laws, but doing so in a way that allows them to enter the UK law book directly without the EU as the "middle man". But we can also elect to adopt standards developed by other international organisations, so the extent of harmonisation will be considerable.

If we don't use international standards as a basis for technical regulation, we become accountable to the EU. It can demand that we identify any substantial deviation from the relevant international standard. We then have to explain the reasons why such standards were judged inappropriate or ineffective for the objective pursued, and provide the scientific or technical evidence on which that assessment was based.

Elsewhere, the range of "cooperation" extends to harmonising conformity assessment procedures, so that we cannot apply more (or less) stringent processes than our neighbours. This also applies to accreditation procedures, as a means to demonstrate technical competence to qualify conformity assessment bodies.

But this cooperation does not just cover standards related to goods, but also – as we see with climate change – a range of programmes. One other is the World Health Assembly global action plan to tackle antimicrobial resistance, adopted in May 2015.

The Parties recognise that the nature of the threat requires "a transnational and One Health approach" and therefore we will work closely with the EU on regional or multilateral work programmes. To that effect, both Brussels and London will be producing their own legislation, but the laws will effectively be the same.

At a broader level, while we will be leaving the Union Customs Code behind us, we are committed to adopting World Customs Organisation (WCO) procedures, including the "SAFE Framework" on which the Authorised Economic Operator programmes are based. Only with this commitment is the EU prepared to recognise the businesses we nominate.

We are also required to subscribe to the WTO Trade Facilitation Agreement, agreed in November 2014, the substantive elements of the Revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures, the International Convention on the Harmonised Commodity Description and Coding System, and the Customs Data Model of the WCO.

We may be our own sovereign masters now, but when it comes to customs systems, we have very little flexibility. Even down to the detail we have to work to the Customs Convention on the ATA Carnet for the Temporary Admission of Goods, done in Brussels on 6 December 1961, and the Istanbul Convention on Temporary Admission, done on 26 June 1990.

Intellectual property is another interesting issue, in that the Parties affirm their commitment to comply with the international agreements to which they are party, such as the TRIPS Agreement; the Rome Convention; the Berne Convention; the WIPO Copyright Treaty; the WIPO Performances and Phonograms Treaty; the Protocol Relating to the Madrid Agreement; the Trademark Law Treaty; and the Geneva Act of the Hague Agreement, adopted in July 1999. There are other provisions in the wings, such as the Beijing Treaty on Audiovisual Performances.

We also have to protect plant varieties rights in accordance with the International Convention for the Protection of New Varieties of Plants (UPOV) as lastly revised in Geneva on 19 March 1991. The Parties are required to cooperate to promote and enforce these rights.

As to labour laws, the treaty has the Parties affirm their commitment to promoting the development of international trade in a way that is conducive to decent work for all, as expressed in the 2008 ILO Declaration on Social Justice for a Fair Globalisation.

In accordance with the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted at Geneva on 18 June 1998, each Party also commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions.

And the issues so far listed only account for a fraction of the international agreements specified in the treaty, the rest of which we may also have to visit. The effect of listing them is to lock us in to working closely with the EU on these matters, where joint action can be enforced though the Council, the Committees and Working Groups, with resort to the dispute procedures if necessary – thereby strengthening their enforcement.

We may thus have broken free of the "coffin lid" containment of EU law, but in our bid for "freedom", we are now bumping up against international agreements which keep us in lockstep with the EU. Ironically, though, this will hardly be noticed as the media is almost totally silent on this aspect of the treaty.

As far as the popular press is concerned, we're "free", even if that amounts only to freedom to push at the second coffin lid.

Also published on Turbulent Times.

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