Nine days and counting: what options does the UK have before the Brexit deadline?



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The UK will leave the EU on 29 March unless the UK government requests an extension to Article 50.
Shutterstock

Philomena Murray, University of Melbourne

There is a song by the Melbourne band Little Heroes, called One Perfect Day, from back in 1982 (though it still attracts a cult following). In it, the lead singer asks his ex-girlfriend in England: tell me, is it still raining there in England, and did the government fall last night?

Well, it is still raining. And there is still talk of the government of Theresa May falling. We just observed a week of three parliamentary votes on Brexit, where the government was defeated in two of them.

In another extraordinary day yesterday, the Speaker of the House of Commons, John Bercow, invoked the “Erskine May” parliamentary rules of procedure. That means that an amendment “which is the same, in substance” as an issue that has already been voted on cannot be proposed again in parliament. The speaker said that a new proposal must be “not different in terms of wording, but different in terms of substance”. Unless there are significant changes to the substance of the government’s proposed Withdrawal Agreement, it cannot be sent back to the House for a third “meaningful” vote.

So, what might happen now, with nine days to go until the UK is supposed to leave the EU?




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The UK could still leave without an agreement

If there is no parliamentary support for the Withdrawal Agreement, that does not mean the UK does not leave. The UK will leave on 29 March unless the UK government requests an extension to Article 50, which was activated by Theresa May two years ago on 29 March 2017. The Article says, among other things:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

If the UK leaves in a little over a week, it will no longer be in the EU and will no longer be party to hundreds of international treaties and thousands of pieces of legislation.

Proroguing the parliament is an option

What are the options in order to avoid crashing out this way? Could the British government somehow get the Withdrawal Agreement through parliament on a third attempt?

One step that Theresa May might be contemplating is taking the extraordinary measure of “proroguing” the parliament. Proroguing effectively means terminating the current session, without actually dissolving it, and having parliament reconvene in a new session. The government would then have the option – if the temporary suspension of the parliament goes smoothly – to re-send the Withdrawal Agreement for a meaningful vote to a newly-convened parliament.

This may not occur in time for the looming exit deadline, and May is unlikely to attempt to present the deal for a third time, unless the Speaker changes his position. So, May could be obliged to yet again set out for Brussels and some EU national capitals to shore up support for an extension of Article 50.




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Now, a request to extend Article 50

The EU has just received a formal request for an extension of Article 50. The House of Commons voted last week for such an extension and May indicated she would request one.

Perhaps giving a sense of the frustration in some EU capitals about the negotiations, Loiseau revealed she has called her cat Brexit because it is indecisive, as it “meows loudly to be let out each morning, but then refuses to go outside when she opens the door”.

The EU would no doubt request that an extension be fully justified – and there is little European appetite to reopen negotiations with Britain. The EU has been preparing for Brexit for some time.

It is conceivable that the UK could need to justify a further request that Article 50 be extended well beyond the 30 June 2019 date that Theresa May has requested in her letter to European Council President Donald Tusk. But there are major problems with this, as the UK would need to take part in the European Parliament elections to take place in May this year. It could also be obliged to contribute to the new EU budget round, known as the Multiannual Financial Framework.




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The Brexit saga continues

Of course, the idea of voting more than once on a Brexit deal in Parliament raises again the call for a second referendum on EU membership by the people – a people’s vote.

Alternatively, the UK could remain in the EU and revoke Article 50. A recent EU court ruling that this does not require the consent of the other 27 EU states has emboldened those who are campaigning for a new referendum – although it is far from clear what questions would appear on the ballot paper.

The possibility of Theresa May resigning is never far from the minds of her detractors – whether the European Research Group in her own party, or the Labour party leadership under Jeremy Corbyn.

Meanwhile, the UK Trade Secretary Liam Fox has announced a trade deal that has just been initialled with Iceland and Norway. He stated that this was in addition to the agreement signed with Liechtenstein. At least Norway and Iceland are larger than Liechtenstein, a country of fewer than 38,000 people – famous for being the world’s largest exporter of false teeth.

These new trading partners are considerably smaller than the EU Single Market of over 500 million that the UK currently belongs to. They will certainly not fill the huge void left by Brexit.

Yet again, Theresa May’s government is no doubt hoping for just One Perfect Day, but it is not looking likely at the moment.The Conversation

Philomena Murray, Professor, School of Social and Political Sciences, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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A second vote is the only way out of the Brexit mess



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Brexit has been poorly handled by both major parties, and the only viable option now is to put a second vote to the people.
AAP/EPA/Vickie Flores

Mark Kenny, Australian National University

In electing to disentangle from Europe without first understanding the full implications, ordinary Britons either leaped for the abyss, or more likely, expected their representatives to continue doing their jobs.

Such core responsibilities as scoping out the proposed divorce terms, then proceeding to minimise the costs through whatever arrangements were necessary to vouchsafe the national interest.

What they got instead was epic levels of political class posturing and, functionally speaking, a kind of institutional surrender.

While “leavers” implicitly sold the hope of concentrating and thus strengthening “Little Britain” against a culturally amorphous world, their project has done the opposite, materially weakening their nation, cleaving it politically, socially, economically.




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Whole new fault lines have appeared. Ominously, they cut across the old party silos, divide the generations, split city from country, delineate the tertiary educated from the rest, and widen the gap between the people and their parliament.

It’s a story of how low-level grumbles about a peculiarly “English” identity ruptured by globalism – in London, you’re never more than three metres from a Polish plumber, and so on – were turned against the elites and used to fracture Britain from within.

Panicked into a referendum

The misleadingly titled United Kingdom Independence Party might well have stayed as a fringe operation nibbling away at the Tory pie-crust. But through cravenness, and sheer mendacity, UKIP’s niche project enlivened the Eurosceptic wing of the Conservative Party. Bit by bit, the whole divisive project was allowed to go mainstream, eventually engulfing a hapless polity.

UKIP successes, mainly in European parliament elections (ironically), caused panic on the Conservative side, leading to David Cameron’s promise of a post-election referendum.

In the great unravelling since that June 2016 vote, British prestige abroad has been shredded and the country’s guileless political leaders reduced to laughing stock. All sides have proved incapable of moving forward, yet unwilling to go back.

A large part of the explanation is that Westminster imbued what was merely an advisory plebiscite with supreme democratic virtue. In doing so, it has bizarrely written itself out of what is arguably the biggest single danger to British prosperity and foreign influence since the second world war.

Anyone quibbling with the plebiscite’s verdict is unfashionably at odds with the people and perhaps, democracy itself.

No matter that a majority of eligible voters did not vote to “leave”, or that so little could be known in advance of the colossal costs of withdrawal. Even if one accepts that the plebiscite expressed a clear public preference to withdraw, it must surely be conceded that it fell short of informed consent.

New examples of industries adversely affected have emerged on an almost daily basis since. And because negotiations with the other 27 member-states had not occurred in earnest, it was impossible to know which rules would be retained and which advantages of EU membership would be completely lost.

Everything from mobile phone roaming and the validity of British driver’s licences is up for grabs, along with border regulation, labour rules, pharmaceuticals, and countless others.

Nonetheless, in the vote’s shambolic aftermath, politicians have merely compounded the damage, cowering behind the “peoples’ will”.

A win for populism – a loss for Britons

In this sense, Britain’s Brexit careen is a double win for galloping populism. The the country will pull out of Europe at its own considerable expense while putting the viability of representative parliamentary government under acute new strains.

For conservatives, this represents a clear-cut betrayal of their responsibility as guardians of society’s bedrock conventions, not the least of which is the maintenance of public confidence in the parliamentary system itself.

Almost three years on from the vote, a bitterly divided country drifts rudderless towards the jagged rocks of a “no-deal” Brexit, with Westminster paralysed by brinkmanship, score-settling, and plain old mediocrity.




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Extending Brexit: what a delay would mean in practice


A riven government lacks the authority needed in the parliament but also the courage to return to the people with the news that what they approved in the abstract in June 2016 has turned out to be considerably more complicated, and demands reconsideration.

As well as facing vast upfront costs, which were known, Britons must also gird for living standards much lower than would otherwise be the case. Its own public officials have said so in a February UK briefing paper outlining a no-deal Brexit on March 29. It said:

The government has already published long term analysis of the impact of a no deal scenario that implicitly assumes a smooth, orderly transition to WTO rules.

This estimates that the UK economy would be 6.3-9% smaller in the long term in a no deal scenario (after around 15 years) than it otherwise would have been when compared with today’s arrangements, assuming no action is taken. There would also be significant variation across the UK (Wales -8.1%, Scotland -8.0%, Northern Ireland -9.1% and the North East of England -10.5%).

It goes on to say:

This analysis does not account for any short term disruptions, which would be likely to have additional short and long run economic impacts in an immediate no deal scenario.

And, that no amount of modelling can predict all of the “complex ways in which the UK economy could be affected by exiting the EU, particularly given the unprecedented circumstances of the UK’s departure.”

This week the OECD warned that Britain’s pale growth would dip into recession with a no-deal Brexit. Even if a deal is secured, it would drop by around 1%.

Belatedly, Prime Minister Theresa May, who has been ineptly playing “chicken” with both remainers and “no-dealers” alike, has accepted that crashing out on March 29 is unacceptable. Thus she has now blinked herself.

Her mishandling of the crisis has been marked by a series of ultimatums and repudiations – an unedifying pantomime in which weakness masquerades unconvincingly as strength.

Prime Minister Theresa May has belatedly reached for the pause button on Brexit negotiations.
AAP/EPA/Parliamentary Recording Unit

In a significant departure from that approach, the embattled PM has signalled that MPs will get the opportunity to vote to extend the Article 50 deadline – effectively shifting the cliff of a no-deal exit until later in the year.

Labour leader Jeremy Corbyn too has blinked, the long-term Eurosceptic is reluctantly backing the only honourable course: a second public vote.

Until now, his woeful equivocation, sometimes referred to as “constructive ambiguity” has gleefully added to the misery, even if its main aim has been to bridge a divide in his own ranks.

As The Economist has pointed out, the reason that both leaders have finally yielded is that each is “losing control of their own parties”.

A second vote the only option

May has promised a meaningful parliamentary vote by March 12 with whatever further concessions she can eke out of European negotiators.

But assuming her deal remains unacceptable (she lost the last one by a staggering 230 votes) and Labour’s amendments fail also, a second plebiscite appears the only legitimate option.

This would not dishonour the first plebiscite, as May and others fulminate, but rather recast the 2016 referendum as the first leg of a two-stage process. The first is approval to negotiate the best deal possible with Brussels. The second becomes voters’ approval or rejection in the full knowledge of what leaving the EU means in terms of costs, the differential impact on critical sectors and regions of the country – not least the Irish partition.

Having handed this unquantified question to the people in 2016 and then failed to make it work, Westminster should finally admit it is incapable of resolving the mess its leaders unleashed.

A second plebiscite would at least get closer to informed consent.The Conversation

Mark Kenny, Senior Fellow, Australian Studies Institute, Australian National University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What’s the deal (or no-deal) with Brexit? Here’s everything explained


Giovanni Di Lieto, Monash University

On June 23, 2016 the United Kingdom held a referendum to decide whether it should leave or remain in the European Union. More than 30 million people took part in the vote with 51.9% choosing to leave and 48.1% to remain.

Six months later, the new Prime Minister Theresa May delivered a speech in which she said:

the British people voted for change… And it is the job of this government to deliver it.

Where it got messy is deciding how to leave the Union. Would it be a clean break, the so-called hard Brexit, or a softer version where some links to the EU remained?

But first, a bit about the EU

The European Union is an economic and political partnership of 28 European countries across the whole continent, including France, Germany, Italy, Sweden, Finland, the UK and Ireland. It operates under a “single market” which means goods, services, capitals and people can move around as if the member states were one country.

Nineteen of the member countries, not including the UK, share a common currency, the Euro. The EU also has its own parliament which sets rules in areas including the environment, transport and consumer rights.

May’s hard Brexit strategy

Theresa May’s vision for leaving the European Union came in a Brexit White Paper, which she delivered to Parliament on February 2, 2017. The paper explained that, in negotiating the exit with the EU, the UK would:

  • not be seeking membership of the EU’s single market
  • pursue a new strategic partnership with the EU
  • pursue a new customs arrangement with the EU to secure new trade agreements with other countries bilaterally and in wider groupings.

In substance, this white paper is a clear indication for the hard Brexit option. A soft Brexit would be where the UK would somehow remain in the European single market, or at the very least become an external member of the EU Customs Union. This is the case for Turkey and some micro-nations including Monaco, Andorra and San Marino.




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A customs union is an arrangement between two or more countries which allows goods to circulate freely in the area of the union. This is done by removing tariffs between the countries inside the union and introducing a common external tariff for the countries outside the union.

A customs union does not cover trade in services and flows of capital and people. But the treaties that have established the EU enshrine the single market (of which the customs union is a component) in four inextricable pillars: the free movement of goods, services, capital and labour. For the EU this is an all-or-nothing package, so that single market members cannot pick and choose only some of the four freedoms.

Hard or soft, deal or no deal?

The issue of a hard or soft Brexit is different from that of the deal, or no-deal, Brexit. The first issue has already been set: it’s a hard Brexit, as Theresa May is not seeking membership of both the EU single market and Customs Union.

This allows the UK to independently negotiate international trade agreements either with individual countries or other customs unions after the UK’s official withdrawal date: March, 29 2019. After this date, the UK and EU may or may not strike a deal on what happens next.

So, the post-withdrawal arrangements with the EU comprise the deal or no-deal issue currently at stake: will the UK crash out of the EU with or without shared plans, and with or without a gradual implementation period?

The Brexit deal

Both the UK government and the EU governing bodies clearly prefer to split with a deal and a more gradual separation process. To this aim, the two sides have spent nearly two years in the painstaking negotiation of a withdrawal agreement.

This is the now infamous “Brexit deal” – a 585-page legally-binding text agreed to by the EU and UK government on November, 14 2018. The deal sets the terms of the UK’s divorce from the EU and can only enter into force once ratified by the UK parliament.

But, on January 15, 2019 Britain’s House of Commons rejected the Brexit deal by a stunning and unprecedented majority of 230. More than one third of Theresa May’s majority MPs joined the opposition parties against the Brexit deal despite confirming their confidence on the government the following day.




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So what’s the problem with the deal?

Like in an actual divorce, the rejected agreement sets the terms for splitting the assets, liabilities and people shared across the two sides. Leaving aside the numerous legal resolutions especially affecting commerce, the deal in particular defines how much money the UK owes the EU and the terms under which the estimated £39bn will be paid.

The deal also preserves the existing residency and working rights of UK citizens living elsewhere in the EU and of the EU citizens living in the UK up until the end of the Brexit implementation period set for 31 December 2020.

But the thorniest issue of the Brexit deal, and the one that proved to be its major fault line, is the proposed method of avoiding the return of a physical border between the UK’s Northern Ireland and the Republic of Ireland – an EU member state.

Ireland is split in two, and there are no hard borders as long as everyone is part of the EU.
from shutterstock.com

The Northern Ireland backstop

The island of Ireland is divided into two separate entities: the Republic of Ireland, which is an independent nation member of the EU, and Northern Ireland, which is part of the UK and has 18 seats in the UK parliament.

The Northern Ireland backstop is a convoluted measure of last resort to maintain an open border between Northern Ireland and the Republic of Ireland until the UK and the EU can find a long-term solution for an indefinite period – even after the expiration of the Brexit implementation period (December, 31 2020).

The fact is – with or without the Brexit deal – the Brexit White Paper’s outline to stay outside the EU Single Market and Customs Union means that, eventually, a physical border will reappear on the island of Ireland.




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Would staying in a customs union after Brexit avoid a hard border with Ireland?


This is an ominous prospect as memories of the “Troubles”, the bloody Northern Ireland conflict triggered by border clashes in the late 1960s – between the majority unionist or UK loyalist Protestant population and the minority Catholic or Irish nationalist one – are still fresh.

Over the years the UK and Ireland’s EU membership eliminated any hard borders in Ireland. This played a major part in spelling the end of the Troubles in the 1998 Good Friday Agreement, which is also based on keeping the whole of Ireland border-free.

A hard Brexit repudiates one of the cornerstones of the Good Friday Agreements and, short of a customs union with the EU, any deal would only kick the can down the road. Theresa May’s proposed solution is the Irish border Brexit backstop.

It’s called a backstop precisely because it pushes the UK border with the EU back away from Northern Ireland. This would mean Northern Ireland would all but remain subject to the EU legal framework and be kept virtually separate from the rest of the UK for an indefinite time.

And this is why the conservative Brexit hardliners, and the small but indispensable Northern Irish Democratic Union Party (DUP), voted against Theresa May’s deal. Despite the fact a majority of Northern Irish voted to remain in the EU in the 2016 referendum, the DUP fears the backstop would provide momentum to those who wish to reunify Ireland.




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On the other hand, despite Theresa May’s insistence, the EU is not providing any legally binding guarantee of a definite expiry date for the Irish backstop. The EU’s strategic game is clear, as the continuing existence of the Irish backstop provides yet another strong negotiating chip in respect to any future dealings with the UK.

So what are the alternatives to Theresa May’s hard Brexit deal? Wild guesses include delaying or withdrawing the withdrawal, so to speak, while some even call for a second Brexit referendum. Considering the political uncertainties and legal realities, any guess is little more than wishful thinking.The Conversation

Giovanni Di Lieto, Lecturer of international trade law, Monash Business School, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Brexit mess could lead to a break-up of a no longer United Kingdom



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The crisis enveloping the British government started when Britons voted “yes” to leaving the European Union in 2016.
Neil Hall/EPA

Ben Wellings, Monash University

Behind the scenes at Westminster and the teetering fate of the British government lies an even more profound change in British politics: the very real possibility of the break-up of the United Kingdom.

In this situation Australia needs to tread carefully and maintain its good relations with what has emerged as its more stable European partner, the European Union, while offering silent support for whatever governments or countries could emerge from Brexit.

Is the UK headed for dissolution?

The United Kingdom is made up of England, Wales, Scotland and Northern Ireland.

The publication of the Brexit draft withdrawal agreement – a hefty 585-page tome – has revealed what has been implicit in the “British” vote to leave the EU all along: that Brexit is an expression of English nationalism that will unwittingly lead to the break-up of the UK.




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Behind the government’s rhetoric of “global Britain”, there is no such thing as the “British people” in a political sense any more. The referendum revealed significant divisions between attitudes to EU membership in Scotland, Northern Ireland and England. While Prime Minister Theresa May tried to reposition “global Britain” in relation to Europe and the rest of the world, Britain itself dissolved from within.

Prime Minister Theresa May refers to the UK as a “precious union”. If only more people felt the same. An LBC-YouGov poll in March found that a majority of (mostly English) voters wanted to leave the EU rather than keep Northern Ireland in the UK.

In October, research published by the Centre on Constitutional Change showed that a clear majority of English leave voters would be happy to see Scotland and Northern Ireland out of the UK as the price of Brexit.

The irony is that it is the resistance of 10 MPs from the Ulster loyalist Democratic Unionist Party (DUP) and about 60 hard-line English Conservative Brexiteersis most likely to plunge the UK into an existential crisis. Their intransigence will destroy the thing they profess to defend.




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The text of the Brexit draft withdrawal agreement was at pains to appease concerns among the Ulster unionist community about maintaining the integrity of the UK (unsuccessfully as it turned out).

The prospect of the agreed backstop – a single customs territory that the UK could not leave without EU consent and which would ultimately keep Northern Ireland in a special relationship with the EU after Brexit – was not something Brexiteers and the DUP could stomach.

For them, the deal was a “capitulation”. It was a breach of “blood red” lines that invoked the prospect of a return to conflict in Ulster.

Across the Irish Sea, Nicola Sturgeon, the Scottish first minister, asked: if Northern Ireland got special treatment, why not Scotland too?

In fact, the withdrawal agreement made no mention of Scotland at all. This disregard for the overwhelming Scottish vote to remain in the EU has pushed Scotland closer to another referendum on independence.

Brexit has divided opinion across Britain long after the 2016 vote to leave the European Union.
Neil Hall/EPA

Brexit has created a new and deep cleavage in British politics that cuts across old political divisions. Far fewer people identify as Labour or Conservative than identify as “leave” or “remain”.

Add the national dimension to this politics and some new options emerge. Some hard Brexiteers must be considering ditching Scotland and Northern Ireland as an acceptable cost for “British” (read “English”) independence from the EU.

The ghost of empire has haunted the Brexit imaginary from before the 2016 referendum. Its critics derided “global Britain” as “Empire 2.0”. But the memory of empire cuts two ways. Brexiteers see the EU as a threatening imperium. The withdrawal agreement would leave the UK as a vassal state – a state that is subordinate to another – and therefore must be rejected.




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Would a second referendum help?

Brexit has also left unresolved questions about who is actually in charge in Britain. Calls for a second referendum have grown, suggesting “the people” rather than government or parliament is the ultimate source of authority on this matter.

A second referendum has the advantage of presenting the electorate with a concrete proposal for leaving. It would temper the unrealistic and downright false claims of the leave campaign in 2016. It might end the talk of “respecting the wishes of the British people” to leave the EU.

In truth we don’t really know what exactly people voted for: only 6% of leave voters said they thought Britain would be better off economically by leaving.

But a general election would be a better bet. It would effectively be a referendum on the deal. It might also return a government with a majority – something Britain has lacked since May’s miscalculation last year.

Theresa May has spent much of her time navigating Brexit since she became prime minister following the referendum.
David Levenson/EPA

Australia’s role

What does this mean for Australia? Australia was name-checked in Prime Minister’s Questions on Wednesday as a country offering the prospect of a quick free trade agreement. Britain needs Australia in a way that it hasn’t since world war two. It would be best at this delicate moment to stop recklessly encouraging the British government from the sidelines: no more talk of one-page free trade agreements.

Australia must continue with its (slow) progress on the Australia-EU free trade agreement negotiations begun in June. The EU has remained remarkably unified during the Brexit negotiations despite tensions of its own. The EU is coming out of its own crises of the past decade. Now it’s Britain’s turn to teeter on the brink of disintegration.The Conversation

Ben Wellings, Senior Lecturer in Politics and International Relations, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Yes, Syria’s Assad regime is brutal. But the retaliatory air strikes are illegal and partisan



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Civil war has raged in Syria for seven years.
AAP/ Youssef Badawi

Amy Maguire, University of Newcastle and Jason von Meding, University of Newcastle

The mainstream media have broadly accepted the justifications from the United States, France and Britain of humanitarian motivation for the retaliatory strikes against Bashar al-Assad’s Syrian regime.

Journalist Adam Johnson analysed US mainstream coverage and reported that:

major publications take the bulk of the premises for war for granted — namely the US’s legal and moral right to wage it — and simply parse over the details.

The air strike proceeded without publication of proof that Syria was responsible for the alleged atrocity in Douma. Reports are emerging that cast doubt on the official narrative.

Regardless, swift action was demanded and taken. Inspectors from the Organisation for the Prohibition of Chemical Weapons are only now gaining access “to establish facts around the allegations of chemical weapons use in Douma”.

Strikes illegal under international law

Alongside claims for justification from the Trump administration, similar rhetoric featured in statements from French and British leaders. French President Emmanuel Macron claimed there was no doubt Syria was responsible for a chemical attack on civilians, in gross violation of international law. He said:

We cannot tolerate the trivialisation of chemical weapons, which is an immediate danger for the Syrian people and our collective security.

British Prime Minister Theresa May agreed, saying “we cannot allow the erosion of the international norm that prevents the use of these weapons”. May identified the lack of consensus in the UN Security Council as a driving factor in the joint military action.

Even this week the Russians vetoed a resolution at the UN Security Council which would have established an independent investigation into the Douma attack. So there is no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian regime.

The United Nations Charter contains a prohibition on the threat or use of force against another state. Exceptions to this rule of international law are tightly constrained:

  • Under Article 51 of the Charter, states retain a right to individual and collective self-defence in the case of an armed attack.

  • Under Chapter VII of the Charter, the Security Council may authorise military force to restore international peace and security, if non-forceful measures have failed.

The British government has published a brief asserting the legality of the air strike on Syria as an exercise of “humanitarian intervention” (effectively invoking the doctrine of the “Responsibility to Protect” or R2P, without explicitly mentioning it).

The argument is that the UK and its allies were entitled to use force against Syria because:

  • there was convincing evidence of large-scale and extreme humanitarian distress;
  • there was no practicable alternative to using force in order to save lives; and
  • the use of force in response was proportionate and time-limited to relieve humanitarian suffering.

Yet the R2P doctrine does not establish a new legal basis for the use of force. It allows for the use of force as “humanitarian intervention” only within the provisions of Chapter VII of the Charter, in the case of grave international crimes.

The Labour opposition in the UK has released its own legal opinion, sharply contradicting the government and asserting that the strikes were illegal.

Illegal but legitimate?

The allies responsible for this week’s air strike have not claimed explicit authorisation under the Charter. Instead, their aim has been to establish the legitimacy of the strike. This approach was endorsed by the European Union and Australian Prime Minister Malcolm Turnbull.

According to President Trump:

The nations of Britain, France, and the United States of America have marshalled their righteous power against barbarism and brutality.

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The Assad regime cannot be absolved of its brutality. Indeed, it is a fundamental objective of the post-second world war international legal order to save humanity from the “scourge of war” and promote human rights.

And there can be little doubt that the international legal system is far from perfect, having failed to protect populations around the world from gross violations of humanitarian and human rights law.

In Syria, hundreds of thousands have been killed over seven years of civil war, and millions are now refugees or internally displaced. The complexity of the conflict has seen monitors cease to estimate a death toll.

However, efforts to establish an alternative foundation for military action, beyond what is currently legal, pose risks that must be grappled with.

If states are permitted to determine when force is warranted, outside the existing legal framework, the legitimacy of that framework may be fatally undermined. How could any consistency of response be ensured? By what standard will states distinguish between benevolent and “rogue” regimes?

Leader of the UK opposition, Jeremy Corbyn, challenged Prime Minister May on these grounds:

Does the humanitarian crisis in Yemen entitle other countries to arrogate to themselves the right to bomb Saudi positions in Yemen, given their use of cluster bombs and white phosphorous?

Jeremy Corbyn | Response to Prime Minister’s Syria Statement.

It is relevant in this context that Saudi Arabia is a highly valued client of the British arms industry. According to War Child UK, total sales to the kingdom have topped £6 billion since the conflict in Yemen began. The UK has refused to support a proposed UN inquiry into allegations of Saudi war crimes in Yemen.

Meanwhile, crimes against humanity and gross human rights violations are alleged against Myanmar, the Philippines and Israel, among other states, without attracting the kind of “humanitarian intervention” undertaken in Syria.

Humanitarian intervention or regime change

Jeremy Corbyn has made the case for diplomacy as the only reasonable way forward. Syria should not be a war theatre in which the agendas of external actors take precedence, he argues.

The US has long envisaged regime change in Syria, and stepped up sponsorship of opposition groups since 2009.




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How the aid community responds in Syria will dictate its role in future crises


Robert Kennedy Jr. traced the history of US intervention in Syria from the first CIA involvement in 1949. He argues that this is another oil war, and says of broader interventionism in the Middle East:

The only winners have been the military contractors and oil companies that have pocketed historic profits, the intelligence agencies that have grown exponentially in power and influence to the detriment of our freedoms and the jihadists who invariably used our interventions as their most effective recruiting tool.

Central to US strategic thinking is the relationship between Syria and Iran. US Ambassador to the UN, Nikki Haley, seemed to say that a condition for US withdrawal is that Iran cease to function as an ally of Syria.

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The ConversationWith the US gaze so firmly fixed on Iran and Russia, the rationale for “humanitarian intervention” can and should be more firmly critiqued.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Jason von Meding, Senior Lecturer in Disaster Risk Reduction, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Further strikes on Syria unlikely – but Trump is always the wild card



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Air strikes by the US, France and Britain destroy the Scientific Research Center building in Damascus, Syria.
AAP/ Youssef Badawi

Mehmet Ozalp, Charles Sturt University

A head-spinning series of events in the past few weeks have taken us from the United States pulling out of Syria, to analysts predicting the beginning of a third world war.

What has really happened in Syria, what are the ramifications of the joint strike from the US, France and Britain, and what can we expect from the key players?

Certainly, the mess in Syria and heightened tensions in the Middle East make us all fear an impending world war, especially when both the Russian and US presidents engage in a round of chest-thumping. Despite this, there is no certainty that a world war will be triggered from the Syrian conflict.

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The latest chemical attack, allegedly perpetrated by the Syrian government, followed by the US, British, French retaliation, is really about aligning an unpredictable Trump with the Syria policy of the state and military establishment in Washington.

Why the strikes?

A world power like the US is seldom reactive. It often uses events as key moments to implement new policies or shift policies. An apparent correlation of events with policy implementation justifies the policy in the eyes of internal constituents and the wider international community.

Since the beginning of the Syrian conflict in 2011, Russia has followed an open and consistent policy: declare Syrian President Bashar al-Assad’s regime the legitimate government of Syria, always support his regime to ensure it doesn’t collapse, and morally justify its involvement as a struggle against terrorism. The unspoken policy is to build up a challenge to Western dominance over not only the Middle East, but geopolitical world order.

Yet, the US, and by extension Western policy on Syria, was tentative, unclear and seemed to change course over the seven-year conflict.

Under Barack Obama’s administration, the US consistently stayed out of direct involvement in the Syrian conflict. Busy with the Iraq exit, Obama missed the window of diplomatic opportunity in the crucial early months of the Syrian uprising in 2011. When violence started, Obama elected to provide limited military support to opposition groups, hoping they could muster enough power to dismantle Assad.

The Obama administration shifted its policy after a chemical attack in Eastern Ghouta in 2013 prompted it to push for a United Nations resolution demanding the destruction of chemical stockpiles. This in turn gave impetus to peace talks in Geneva. Apparently, the stockpiles were not destroyed, as we have seen more chemical attacks.




Read more:
Explainer: the war in Syria and the possibility of removing Assad


Obama admitted his strategy failed, as the “US was muscled out of Syria” by an increasingly bold Russian President Vladimir Putin. His support allowed Assad to gain the upper hand in Syria with the fall of Aleppo in December 2016. Efforts to make progress in the Geneva talks were continually stalled. The parties failed to make any meaningful progress even as late as 2017.

In the early months of his presidency, the expectation was that Trump would change the US policy on Syria. It was uncertain what trajectory it would take, and when it would come to pass.

Not much happened until yet another chemical-gas attack by Assad in April 2017. The US responded with a massive missile attack, taking out 20% of Assad’s air force. The result was that the Trump administration committed to a more active involvement in Syria and the complete dismantling of the Islamic State presence in the country, but not necessarily the removal of Assad.

It is now apparent there was a fundamental difference between Trump and the key people in his administration in their understanding of the US’ Syria policy.

For Trump, it was always about eliminating IS. On April 3, he announced that the US’ primary mission in Syria was “getting rid of ISIS”. Since this had now been completed, he could bring the troops home.

Yet, in December 2017, Defence Secretary James Mattis said the US would continue its presence in Syria as a “stabilising force” beyond IS.

In January 2018, former Secretary of State Rex Tillerson confirmed the US would stay in Syria beyond IS, adding that the continued US presence aimed to prevent Iranian and Assad forces regaining territory “liberated with help from the United States”.

So, Trump’s withdrawal intentions, or rather the public announcement, came as a surprise to his own administration as well as the international community. In response, the US special envoy for the global coalition against IS, Brett McGurk, said:

We are in Syria to fight ISIS. That is our mission, and our mission isn’t over, and we are going to complete that mission.

Other officials from the US administration and military made conflicting statements.

Trump’s withdrawal announcement opened the ground for other players to assert their plans. On April 4, Russia, Iran and Turkey held a summit in Turkey, at which Putin announced:

We have agreed to expand the entire range of our trilateral cooperation in Syria.

The trio’s plan included an intensified Turkish operation in northern Syria. Turkish President Recep Tayyip Erdogan vowed “to clear all terror groups from Syrian border, including the YPG,” the Kurdish military force that was backed by the US in its bid to eradicate IS from Syria.

It seemed Syria would be left to Russia, Iran, Turkey and Assad. Until, of course, the most recent chemical attack in Douma, a suburb near Damascus, on April 7. The attack was blamed on the Assad government even though it vehemently denied it, and there were allegations of rebel involvement.

Importantly, the chemical attack conveniently served the faction in the US administration advocating for a greater involvement in Syria. Their arguments pushed Trump towards retaliation. In a matter of days, Trump went from vowing withdrawal from Syria to saying they have a “big price to pay”.

A military response in the form of a missile attack was inevitable, and so it took place on April 13, when the US and its allies, Britain and France, made “precision missile strikes against the Syrian government”. The six-day delay was really to gain international support for the attack so that it did not appear to be a showdown between Russia and the US.

Where to from here?

The most recent events in Syria were really about aligning Trump’s understanding of Syrian policy with that of the state and military establishment. The policy is to stay in Syria beyond IS, preventing its revival and preventing Iranian and Assad forces from regaining territory.

It is unlikely there will be any other military strikes by the US and its allies anytime soon. There are two possible wild cards though – Trump’s unpredictability and a possible Russian retaliation.

Elements within the US administration in favour of continued US involvement in Syria will have to keep Trump calm – give him reasons why he should continue committing to Syria, while preventing a direct Russian-US confrontation. Building a coalition with France and Britain prior to the missile retaliation served this purpose. It gave Russia the impression that the matter was a concern with the international community, rather than just the US.

Trump’s exaggerating nature and bombastic language in his tweets run the risk of escalating the situation. But they also help contain Russia, which is always unsure what Trump may say and do next.




Read more:
Stakes are high as Turkey, Russia and the US tussle over the future of Syria


A Russian response beyond condemnation is unlikely. Putin recently won a landslide victory in the March presidential elections. He is in no hurry to thump his chest into an all-out brawl with the US due to internal politics.

Furthermore, Russia is already in a diplomatic crisis over the assassination attempt of a former spy and his daughter with a nerve agent in London.

The US, Britain and more than a dozen European countries expelled Russian diplomats in retaliation. Putin is already quite vulnerable in the international scene. He will not enter a fight he is not certain to win.

The ConversationWhile the US and its allies may feel morally justified in attacking the Assad government targets, any such intervention is unlikely to help the people of Syria. They will continue to be collateral damage caught in the crossfire of geo-politics.

Mehmet Ozalp, Associate Professor in Islamic Studies, Director of The Centre for Islamic Studies and Civilisation and Executive Member of Public and Contextual Theology, Charles Sturt University

This article was originally published on The Conversation. Read the original article.

The West increases pressure with diplomatic expulsions, but Russia is unlikely to cave



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Malcolm Turnbull and Julie Bishop announce the expulsion of two Russian diplomats.
AAP/Lukas Coch

Alexey D Muraviev, Curtin University

Prime Minister Malcolm Turnbull and Foreign Minister Julie Bishop have declared two Russian diplomats personas non grata – in other words, they are expelling them from Australia.

The decision to expel the pair is a show of solidarity with the UK over the assassination attempt on two Russian nationals, former Russian colonel Sergei Skripal (who was recruited by British intelligence) and his daughter Yulia, in the small city of Salisbury on March 4.

In a joint statement, Turnbull and Bishop said the two diplomats were identified as “undeclared intelligence officers”, and are now required to leave Australia within seven days.

This is a rare move. However, it is not the first time Australia has expelled Russian diplomats implicated in covert intelligence activities. In mid-1993, Australia secretly expelled six Russian diplomats on “suspicions of spying”.




Read more:
Sergei Skripal and the long history of assassination attempts abroad


Historically, Australia was of strong interest to Soviet and Russian intelligence.
There were several reasons for this, including Australia’s close security and defence ties to the US, the UK and other NATO countries, and its access to highly sensitive intelligence as part of the Five Eyes agreement.

Australia also has access to advanced military technology provided by its allies. It plays an important role in the US-led Asia-Pacific anti-ballistic missile defence.

In recent years, Australia’s intelligence community has expressed concern about the extent of Russian and Chinese intelligence-gathering activities in the country.

Posting a serving intelligence officer to work under a diplomatic cover is a common practice of various intelligence agencies, particularly those that do not have special agreements concerning the legal presence of intelligence personnel in a country of interest. Russian intelligence services, such as the Foreign Intelligence Service SVR (sluzhba vneshnei razvedki – political and economic intelligence) and the Main Intelligence Directorate, or GRU (glavnoe razvedyvatel’noe upravlenie – military intelligence), engage in such practices.

Diplomatic cover provides an intelligence operative not just with diplomatic immunity. It also gives an operative a legal right to engage with various groups of a targeted nation, from political and business elites to fellow diplomats, journalists, social activists, academics, and community groups.

Counterintelligence agencies have ways of identifying such operatives and tracking their activities, including contacts with key local stakeholders. Expelling identified, undeclared intelligence officers is common practice when a country wants to showcase a robust response and a clear political message to its political opponent. In this case, it is Russia.

Identifying the two diplomats as spies sends a powerful message to Russia and its intelligence services. But the world of intelligence is a never-ending game of shadows, with its own rules, codes of conduct and practices.

Australia expects that, in return, Russia will declare at least two Australian diplomats from its embassy in Moscow personas non grata. It is likely the Russians will use the same logic as Australia in choosing who to send home.

By keeping the pressure on Russia, the West is trying to alter Russia’s strategic behaviour, reducing the impact Russian President Vladimir Putin’s assertiveness has caused to the US-led rules-based order.

There is also a clear attempt to weaken Russia as a strategic competitor, as the world’s number-two military power, by making its economy bleed under sanctions. But what effect might this latest round of confrontation create?

Certainly, the expulsion of some 130 Russian diplomats/suspected intelligence operatives will curtail Russian intelligence operations across Europe, North America and Australia.




Read more:
Russia not so much a (re)rising superpower as a skilled strategic spoiler


However, we should not underestimate the potential of Russian intelligence services. It is likely they will restore their intelligence-gathering capacity very quickly. Russia has a proven global intelligence-gathering capability, and the expulsion of some 130 agents will not undermine it in the long run.

Also, only 23 countries have followed the UK’s response against Russia. About half of EU member countries have not joined in the action so far. Some major powers in the Indo-Asia-Pacific, including China and India, have kept their distance. That makes this new round of Russia-West confrontation a war of yet another “coalition of the willing”.

Russia is unlikely to back down to pressure from the West, nor will it admit its alleged involvement in the assassination attempt on Skripal. The investigation into the attack continues, and no final conclusions have been drawn yet.

We should also recognise that the West has seriously underestimated the level of Russian resilience to sanctions as well as its ability to challenge the US-led rules-based order.

In terms of future steps, Australia might reconsider the level of its involvement in the upcoming football World Cup, which will be held in Russia in June-July this year. However, it is unlikely the Australian team will boycott the event.

More targeted sanctions may be imposed, but these actions are likely to trigger a counter-response from Russia. Already, Russia-Australia bilateral trade has gone down: the level of bilateral economic trade was A$687 million in 2016, down from A$1.837 billion in 2014. If Russia is to take further economic counter-sanctions against Australia, it may choose to target Australia’s agricultural exports.

Neither Australia nor Russia consider high-level political dialogue with one another a priority. Yet maintaining some form of a dialogue is important.

Russia is a permanent member of the UN Security Council. It is a member of several key international organisations that are critical to Australia, including the G20 and APEC. Russia plays a critical role in the ongoing war in Syria and crisis in Ukraine, the war against Islamic State, in curtailing the nuclear ambitions of both North Korea and Iran, and in stabilising Afghanistan.

Cutting ties with Russia or suspending dialogue with it on some key international security issues such as combating terrorism, the proliferation of weapons of mass destruction, or North Korea would not contribute to global stability.

The ConversationThe Australian government decided to show decisiveness, determination and strong resolve. Australia has once again shown its strong support and solidarity with its key allies such as the UK. But let’s hope the government shows the same consistency, resolve and determination next time other major powers undertake reckless activities, such as China’s strategic gaming in South China Sea.

Alexey D Muraviev, Associate Professor of National Security and Strategic Studies, Curtin University

This article was originally published on The Conversation. Read the original article.

Australia expels two Russian spies as part of international push against Russia



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Foreign Minister Julie Bishop said the Russians had to leave within a week “for actions inconsistent with their status”.
AAP/Joel Carrett

Michelle Grattan, University of Canberra

The Australian government is expelling two Russian spies as part of a broad international retaliatory action against the nerve agent attack on the former Russian double agent Sergei Skripal and his daughter Yulia in Britain earlier this month.

The diplomats have been “identified as undeclared intelligence officers”, Prime Minister Malcolm Turnbull and Foreign Minister Julie Bishop said in a statement on Tuesday morning. “Undeclared intelligence agents” are spies.

More than 20 Western countries, including the US, EU countries and Canada, are expelling more than 100 Russians, in a dramatic escalation of the push against Russia. British Prime Minister Theresa May told the UK parliament this was “the largest collective expulsion of Russian intelligence officers in history”.

Turnbull and Bishop said the Russians had to leave within a week “for actions inconsistent with their status”.

“This decision reflects the shocking nature of the attack – the first offensive use of chemical weapons in Europe since World War II, involving a highly lethal substance in a populated area, endangering countless other members of the community,” they said in a statement.

“It takes into account advice from the UK government that the substance used on 4 March was a military-grade nerve agent of a type developed by Russia. Such an attack cannot be tolerated by any sovereign nation.

“We strongly support the call on Russia to disclose the full extent of its chemical weapons program in accordance with international law.

“This attack is part of a pattern of reckless and deliberate conduct by the Russian state that constitutes a growing threat to international security, global non-proliferation rules against the use of chemical weapons, the rights of other sovereign nations and the international rules-based order that underpins them,” the statement said.

Turnbull briefed Opposition Leader Bill Shorten, who immediately backed the action.

“I have spoken to the security agencies. I am very supportive of this measure,” Shorten told reporters.

“These are undeclared agents and so therefore it is inappropriate that they be in Australia.”

Asked whether he believed it was beyond doubt that the Russians were involved in the nerve agent attack, Shorten said “our security agencies have that view and therefore I think this is a proportionate action today”.

Sergei and Yulia Skripal remain in a critical condition.

Update:

The Russian embassy issued a statement saying: “It is astonishing how easily the allies of Great Britain follow it blindly contrary to the norms of civilised bilateral dialogue and international relations, and against the common sense. The modern world is not in a stage when it is possible to dictate anything to anybody, regardless of the nostalgia for past grandeur in certain capitals.”

The statement said that “neither the Russian side, attempt on which citizens’ life was made, nor other states possess impartial exhaustive information about the ‘Skripal case’”.

“Such flagrant and primitive campaigns as the ‘Skripal case’ that are crudely orchestrated by London, could only trigger further erosion of international relations architecture on which peace and security in the whole world during the post-war period were rested.”

Further update

The ConversationRussia’s ambassador in Canberra Grigory Logvinov dodged the question of whether the Russians expelled are spies. “No ambassador would give you an answer, and actually ask your authorities how they could judge who is a special agent or not. Within my embassy, there are only career diplomats,” he told the ABC.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.