Brexit and International Treaty-making

Since the election victory of the Conservative party in May 2015, the Government of the United Kingdom has engaged in negotiations with its European Union partners. The subject-matter of these negotiations were set out in a letter which Prime Minister David Cameron sent to the President of the European Council on 10 November 2015. This letter outlines four areas where the British Government is seeking change. These include the following: economic governance (that is preventing the members of the Eurozone from decision-making which would affect the internal market in general and the Member States which are not members of the Eurozone in particular); competitiveness; sovereignty (in particular the removal of the reference to ever closer union in primary law and the strengthening of national parliaments); and immigration (including the benefits granted to EU citizens). At the time of writing, there is no agreement between the United Kingdom and the other EU Member States. There is, however, a strong suggestion that such an agreement would be reached at the European Council summit of 18�19 February 2016 and that a referendum would be scheduled for the summer of 2016. The issues raised by the British Prime Minister have attracted considerable legal and political attention. The demands on immigration, in particular, have given rise to a debate about free movement in the European Union and the integrity of the internal market. This debate has been deeply politicized and often carried out at an abstract level. Less attention has been paid to the external relations implications for the United Kingdom of a possible exit from the EU. In particular, how would such a development affect the international obligations which the UK has assumed pursuant to EU law? After all, the Union has been an active international player and has concluded international agreements in a wide range of policy areas. These agreements are binding upon both the institutions of the Union and the Member States (art.216(2) TFEU). As the Court of Justice puts it, such agreements form an integral of EU law. The UK is not a party to all these agreements, even though it is bound by all of them. Some cover areas which fall within the Union's exclusive competence and have been concluded by the Union alone. Following an exit from the EU, such agreements would not be applicable to the UK which would, then, need to renegotiate its legal relationships with the third parties concerned. The legal implications under mixed agreements, that is agreements concluded by both the EU and its Member States, are no less complex. Mixed agreements cover a considerable part of the Union's treaty-making activity. Whilst the UK is a party to such agreements, the rights which it has enjoyed under their provisions, as well as the obligations it has assumed, would not continue to apply automatically. For instance, mixed agreements may be of an essentially bilateral nature. This is suggested by both their context and wording. It has also been affirmed by the Court which, in European Development Fund, held that the Lome Convention between the EU and its Member States and African, Caribbean and Pacific states established an essentially bilateral ACP-EEC cooperation. In other words, following an exit from the EU, the UK would have to re-examine the international treaties under which it is currently bound in the context of EU law, and negotiate many treaties which would straddle a wide range of policy areas. This would be bound to be a long, difficult and expensive process which would raise a host of legal, policy, and practical problems. For instance, in the areas where the Union enjoys exclusive competence, such as the Common Commercial Policy, the UK has long given up its power to negotiate international agreements, as such power has been conferred on the Commission (art.218(3) TFEU). There is also another practical issue which would have an impact on the negotiating position of the UK following a possible exit from the EU. There is an increasing tendency in international treaty-making for big package deals. In the case of the EU, the Commission has been advocating deep and comprehensive free trade agreements since the mid 2000s. Such agreements include the Free Trade Agreement with South Korea, the Comprehensive Economic and Trade Agreement with Canada, let alone the much maligned Transatlantic Trade and Investment Partnership which is currently negotiated with the United States of America. Such big deals require big markets to support them. The political sensitivity of the upcoming referendum may give prominence to an emotional response and may dominate the deeply politicized debate surrounding the current negotiations between the UK and the EU. Such response, however, should not marginalize the need for a careful consideration of the legal and practical implications of a possible exit for all the policy areas which would be affected. Whilst less eye-catching, this exercise should be an essential part of the conversation about whether the UK should leave the EU.

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