FERNANDO VAL GARIJO – A talk on Brexit

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(by Stefania Del Monte)

Fernando Val Garijo is Associate Professor at the Public International Law Department of UNED (Faculty of Law). He received a PhD in Law from UNED, and a Master’s degree in EU Studies from Universidad Politécnica de Madrid. He has taught courses on International Law and EU Law at UNED, the Spanish Diplomatic School, FRONTEX and CEPOL, as well as International Law seminars at La Sapienza and East London University. His research has focused on International Criminal Law, International Humanitarian Law, Human Rights and International Organizations, with special regard to European Union issues. He has served as external legal counsel for the Spanish Ministry of Foreign Affairs and Cooperation (2008-2011), and as legal assistant of one of the Special Rapporteurs of the International Law Commission of the United Nations in Geneva (2015, 2016, 2017 and 2019). He is also author of The Impact of Brexit on the Spanish and European Health Care Systems (2017, in Spanish).

We have met him to talk about Brexit.

Professor Val, as an expert of International Law and especially of EU issues, what is your personal opinion on Brexit and what is the most realistic scenario we can expect, five years from now?

Five years is a long time in politics and international relations. Many scenarios are possible in this time frame, and I tend to avoid either worst-case or best-case scenarios. I would say that it is reasonable to expect that the EU and the UK will have agreed on a stable relation focused on trade and, hopefully, on some security issues. However, neither the EU nor the UK will be better off after this agreement. Membership was better than any future agreement, especially for the UK, but also for the EU. In this regard, I see Brexit as a lose-lose situation.

This is why, in my opinion, Brexit is a bad idea, whose supposed benefits have never been credibly explained. The UK, of all member states, had no need to leave the EU. It was one of the big, influential member states. It benefited greatly in areas such as services trade or the funding of scientific research. It had used the opportunities given by the flexibility of EU integration: opt-out regimes in areas such as the euro and social policy. In a way, when it was a member state, the UK could “have its cake and eat it” in certain respects. It will no longer be the case; it will be either no cake or no eating, contrary to what some brexiteers still say. One of the absurdities of Brexit is that it wasn’t necessary at all, even from a Eurosceptic perspective, Of course, it was from a Europhobic perspective, but then phobias are very powerful forms of irrationality. Brexit seems to me like a self-inflicted blow.

However, although the impact on the EU-27 will be less, I also think that in the long run the EU will be worse off without the UK. In spite of being reluctant EU members, the British made valuable contributions to European integration, providing an alternative to Franco-German views and advocating a flexibility in the EU integration process that is one of its strengths. Brexit is everyone´s loss, even if the loss will be greater for one side. It still fills me with sadness.

While Wales has voted in favour of Brexit, Scotland, Northern Ireland, and even London have never hidden their disagreement on the subject. Should they decide to pursue a different path, would they really have any space for manoeuvre?

This is more a question for a British constitutionalist lawyer, or for British political commentators. But it seems to be the case that Brexit weakens the unity of the United Kingdom, and that EU membership was a source of internal stability. EU membership has that effect in other member states, Spain being a case in point. If a second referendum of independence took place in Scotland now, independence from the UK would probably win, and Scotland could become a new EU Member State. But that referendum is very unlikely to be held in the near future. The new British government has some time to try and win over sufficient Scottish voters for the UK not to lose Scotland. At the same time, the prospect of a united Ireland has never been as credible as now, as the issues relating to the border between Northern Ireland and the Republic of Ireland are showing. British political leaders do not really know how to solve the Irish conundrum, at least not yet. Having said this, a break-up of the United Kingdom is not to be expected soon. One should not underestimate the strength of a union like the United Kingdom. The political bond between the four nations cannot be broken as easily as some think, although Brexit will, in my modest opinion, weaken that bond. Seeds of dismemberment have been planted during the Brexit process but that kind of fruit is far from ripe today.

Officially, there are over 1.2 million British nationals currently living in the EU, including over 300,000 in Spain (actual figures might be well over 2 million). How do you think Brexit affects them?

At the moment, there is a transition period set out in the Withdrawal Agreement, which lasts until 31 December 2020. Until that date, most things will remain the same as they were before 31 January 2020 (official Brexit date). A positive development is that the Withdrawal Agreement guarantees UK citizens who have registered as residents in a EU member state broadly the same rights as they enjoy now in terms of living, working and travelling. These rights will cease after a leave of absence of more than five years. Even during the transition period UK citizens can move to the EU and consolidate these rights. For example, UK citizens living in Spain or moving here permanently before 31 December 2020, will have life-long healthcare rights in Spain, provided they continue to be residents. Of course, with UK citizens who are not residents before that date the situation will be different.

Do you expect any other of the EU countries to follow the example of the UK, any time soon?

I do not, mainly because the benefits of leaving are still not obvious to anyone. The British case is an example of how difficult it is to withdraw, especially after more than forty years of membership and integration. EU leaders are determined that the EU-UK agreement on their future relationship does not leave the UK in a better position than when it was a member. In this regard, EU member states have so far shown a remarkable unity and resolve. At best, some member states may be adopting an attitude of “wait and see” regarding Brexit. The EU is imperfect, at times, irritatingly so, but for Member States it still solves more problems than it creates. The same cannot be said of Brexit, an option that still has to prove its alleged blessings.

Do you believe there is still a future for the European Union?

I am strongly pro-EU integration. I believe the EU enhances the possibilities of Member States and of the citizens of Member States in areas like trade, protection of the environment, defence and security, influence in foreign policy. It also consolidates common standards in areas like fundamental rights (including employees’ rights), consumer protection, food safety, health regulations, and several other topics.

EU citizens would benefit from more education on EU issues and the EU system. When I teach EU law and EU integration I perceive the average level of knowledge on the EU is very low and surprisingly inaccurate among undergraduates. It is at times even worse with the media. EU leaders, EU institutions, schools, academics and the media have a responsibility in bringing the real EU closer to EU citizens, so that they can decide whether they want it or not. I think this is, in times of populism and fake news, a crucial challenge. But it is a beautiful challenge too, one that can shed a positive light on the European realities of today.

In the cover: Prof. Fernando Val Garijo
image courtesy of Elisabetta Bagli

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