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Boris Johnson must change his negotiating tactics to avoid no-deal Brexit – EU treaty-making experts

With the clock counting down to a no-deal Brexit, the UK’s new prime minister, Boris Johnson has been meeting with his German and French counterparts, over the terms of the UK’s withdrawal from the European Union (EU). Seemingly committed to a no-deal Brexit on October 31, Johnson hopes his hardline approach will mete out some concessions from the EU. The prime minister may be right, but he should be careful not to overplay his hand.

Our research on EU treaty-making since 1950 gives credence to Johnson’s view that Merkel, Macron and other EU leaders may cede some ground before October 31. Although the Brexit withdrawal agreement is a treaty like no other, the EU is generally loathe to let treaties fail given the sunk costs of negotiating them.

Until now, the 1952 European Defence Community Treaty is the only major agreement that member states abandoned and even then it was not a clear-cut case. And yet, if Johnson ties his hands too tightly or asks for too much in the Brexit endgame, it is likely to be the EU rather than the UK that leaves the negotiating table.

When, in 1954, the French National Assembly refused to approve the European Defence Community Treaty, member states pursued defence co-operation through another regional organisation called the Western European Union. One act of treaty making was replaced with another, as France and its European partners agreed to amend the 1948 Treaty of Brussels.

Similarly, after Denmark voted “no” to the 1992 Maastricht Treaty, the treaty was saved by the EU agreeing to opt-outs. Flexibility was also shown to Ireland after it rejected the Nice and Lisbon Treaties in 2001 and 2007 respectively. The concessions secured by the Irish government were sufficient to secure support for the treaties in second referendums. When France and The Netherlands voted against the European Constitution in 2005, after ten states had approved it, most of this agreement was cut and pasted into the Lisbon Treaty.

Hand tying is risky

Boris Johnson may be counting on the EU’s predilection for deal making but he should be more cautious. Like Theresa May and David Cameron before him, the UK’s new prime minister is “tying his hands” at home in the hope of getting a better deal from EU partners.

Two classic texts on game theory and international diplomacy offer some key insights into this method of negotiating: Thomas Schelling’s 1960 book, The Strategy of Conflict and Robert Putnam’s 1988 study, Diplomacy and Domestic Politics, which sees treaty negotiations as two level games that play out simultaneously in the international and domestic arenas.

Tying hands is risky. Schelling cautioned that negotiations would collapse if governments found themselves in an “immovable position” due to constraints at home. Putnam argued that hand tying could lead to “involuntary defection” if governments were unable to win domestic approval for international agreements. He also warned that the other parties might walk away from the table if one player bound its hands too tightly.

Cameron and May’s premierships show the rewards of hand tying. Cameron secured his “new settlement” with the EU after calling a referendum on EU membership. But he found his hands more tightly bound than anticipated due to divisions in his own party and a lacklustre Remain campaign.

Theresa May used hand tying effectively. Leon Neal/PA Wire/PA Images

This did not deter May from tying her hands by aligning herself with hardline eurosceptics in her own party, even before she lost her parliamentary majority. The EU showed itself willing to strike a deal with May, but she suffered one involuntary defection after another before finally resigning.

Hell-bent on Brexit?

Some see Boris Johnson as hell-bent on a hard Brexit. By asking the EU for what it cannot deliver, this argument goes, Brussels will once again play the fall guy in the UK’s political drama. But, given government leaks about the potential for widespread disruption in the event of no deal, it is more likely that Johnson is counting on a last-minute compromise to keep trade flowing across the British channel and Irish border, while allowing the UK some measure of autonomy over its trade policy.

Boris Johnson should heed the warnings from Schelling and Putnam about the downsides to tying hands too tightly. The EU, though it tends to offer concessions to ensure treaty making is successful, is not overly generous. Denmark’s opt-outs from the Maastricht Treaty had limited downsides for other member states. The concessions shown to Ireland following Nice and Lisbon were mostly symbolic and clarificatory.

The UK should not expect the EU to compromise the integrity of the single market – its flagship policy – rather than walk away from the table. Indeed, the EU might view Johnson as having already tied his hands too tightly to win approval for any last-minute concessions that might be on offer. It might even see walking away as a way of forcing a more pragmatic and constructive approach from the UK, costly though this would be for UK and EU citizens.

For all the theoretical advantages of tying hands, “governments generally prefer to come to a negotiating table with as large a win set as possible or arrive with constraints that are not of their own choosing”, argues political sociologist, Peter Evans. Johnson could heed this advice by dialling down his hard-Brexit rhetoric or better still calling a general election. Opinion polls give his Conservative Party a sizeable lead over its rivals and he stands a good chance of being returned with a larger parliamentary majority.

A general election would delay Brexit but give the prime minister room for manoeuvre that his predecessors lacked to their political peril and that of Brexit negotiations.