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France (and possibly other EU members) are threatening to take legal action against the UK if their fishermen are significantly disadvantaged after Brexit, including under 'No-deal'.

French President Emmanuel Macron, who increasingly appears determined on conflict with the UK in post-Brexit trade deal talks, has said that he will not let French fishermen down in the negotiations and that France will seek compensation if they do not get the same access to British waters as when the UK was a part of the EU.

The Withdrawal Agreement has provisions for ECJ enforcement (e.g. Irish Border, EU Citizens Rights), but the Political declaration does not. So what mechanisms are there to punish the UK in relation to fishing (and possibly other matters outside the Withdrawal Agreement)? Surely the Global Courts (e.g. Hague) have no authority regarding Brexit disputes?

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  • Could you include a source for France's threat of legal action? – CDJB Jun 9 '20 at 12:24
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    First paragraph eutoday.net/news/politics/2020/macron-vows – Pat-S Jun 9 '20 at 12:31
  • The "including under 'no deal'" part is no longer relevant, since the UK has already left the EU and there was a deal. – F1Krazy Jun 9 '20 at 12:36
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    The 'No-deal' refers to the 'No Future Trade Deal', rather than the Withdrawl Agreement. – Pat-S Jun 9 '20 at 12:43
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    This is unlikely to be a question that can be answered with the detail you want until a deal has been reached and the text is published. – Joe C Jun 9 '20 at 18:41
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The Institute for Government has published an explainer on this, the most relevant part of which is below, and sets out the two parties' current negotiating stance:

UK–EU trade disputes

If the UK government concludes a comprehensive free trade agreement (FTA) with the EU within the transition period, that agreement will set out a way to resolve trade disputes. The EU’s negotiating directives propose a system similar to that under the Withdrawal Agreement, with independent arbitration panels. As under the Withdrawal Agreement, issues of EU law must be referred to the ECJ.

The UK’s mandate is less detailed on the subject, but proposes that governance arrangements including, "if necessary, dispute resolution’ should be ‘appropriate to a relationship of sovereign equals, drawn from existing Free Trade Agreements, such as those the EU has with Japan and Canada". The EU’s trade agreement with Japan has a very similar system of arbitration to that set up by the Withdrawal Agreement. The UK mandate also suggests that this system should not apply to the chapters of the agreement dealing with level playing field issues such as labour and environment standards. It also strongly rejects any role for the ECJ – but this may have as much to do with its rejection of a substantive role for EU law in the future relationship as with its views on procedural dispute settlement provisions.

Although there is currently no clear answer, as negotiations are still ongoing, several possibilities are nevertheless evaluated. The ECJ is seen as unlikely to be agreed upon, as the UK government's clear negotiating position is that the dispute mechanism should be "appropriate to a relationship of sovereign equals".

The EFTA Court, created initially to enforce European Economic Area Agreement, is also suggested, but as the UK is not currently looking for a trade partnership with the EU as close as the EEA, this is also unrealistic.

The IfG seems to conclude that the most likely scenario, in general, is the creation of a new body:

The UK and EU could set up a new court or arbitration panel to settle disputes. This could involve some combination of UK judges and European judges. The system for dispute resolution for Canada and the EU is along these lines, and both the UK and the EU have suggested such a mechanism for the future UK–EU FTA.

Clearly, however, if there is no future trade deal agreed between the UK and the EU this is also immaterial. In this case, it seems most likely that the International Court of Justice (ICJ) would become the venue for any claims made by states, rather than EU institutions, as "in theory, the ICJ can enforce any treaty."

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  • And maybe the WTO, but that is currently broken. – Martin Schröder Jun 9 '20 at 16:38
  • '....in theory, the ICJ can enforce any treaty....' - including a No (Trade) Deal scenario? Enforcing the Withdrawl Agreement will not do anything for Fishing, as that is only in the Political Declaration. – Pat-S Jun 10 '20 at 8:51
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    @Pat-S Therein lies the problem - there would be no treaty to enforce. The WTO could theoretically enforce WTO rules, but that wouldn't be ideal for France either. Unless there is a deal including a dispute mechanism, it is unclear so far how France would seek to bring legal action. I do note that your source says "seek compensation", which could instead mean lobbying to impose further tariffs on goods from the UK or other such measures to pressure them on this issue. – CDJB Jun 10 '20 at 8:57

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