The Routledge Handbook on the International Dimension of Brexit

Juan Santos Vara, Ramses A. Wessel, Juan Santos Vara, Ramses A. Wessel

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000214420
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This handbook provides comprehensive and expert analysis of the impact of the Brexit process and the withdrawal of the United Kingdom from the European Union on existing and future EU–UK relations within the context of both EU and international law.

Examining the wider international law implications, it additionally assesses the complex legal consequences of Brexit for both the EU and the UK in their dealings with third states and other international organizations. With contributions from renowned specialists in the field of EU external action, each chapter will analyse specific policy areas to address key challenges arising from the Brexit process for the EU and the UK and propose solutions to overcome these problems. The handbook aims to fill a gap in research by assessing the consequences of Brexit under EU external relations law and international law. As such, it is hoped it will set the research agenda for coming years on the international dimension of Brexit.

The Routledge Handbook on the International Dimension of Brexit is an authoritative and essential reference text for scholars and students of international and European/EU law and policy, EU politics, and British Politics and Brexit, as well as of key relevance to legal practitioners involved in Brexit, governments, policy-makers, civil society organizations, think tanks, practitioners, national parliaments and the Court of Justice.

1

The implications of Brexit for EU and UK external relations

An introduction

Juan Santos Vara, Ramses A. Wessel and Polly R. Polak

1.1 Introduction

This handbook comes at a crucial moment in time. It was finalized on Europe Day, exactly 70 years after Robert Schuman underlined the need for ‘a united Europe’.¹ At the same time, that same Europe is confronted with the withdrawal of one of its Member States. Schuman argued that ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.’ These days, European solidarity is challenged and, indeed, has not proven capable of keeping all Member States on board. With his ‘realisation of the first concrete foundation of a European federation indispensable to the preservation of peace’, Schuman could not have predicted some Member States would end up seeing close European cooperation as something standing in the way of their own national and global ambitions.²

At the time of writing, no decisions have been taken on the final shape and form of the agreement (or agreements) governing the future relationship between the EU and the UK. The Withdrawal Agreement (WA), that established the terms of the UK’s orderly withdrawal from the EU, entered into force on 1 February 2020.³ The WA regulates the transition period, keeping the UK outside the EU institutional framework, while still fully applying EU law. The end of the transition is foreseen on 31 December 2020, with a possibility of a single extension, either for one or two years. The UK and the EU have also adopted the Revised Political Declaration of 17 October 2019 setting out the framework for the future relationship between the EU and the UK.⁴ Both parties committed to establishing an ambitious partnership that reflects the political and geographical proximity and economic inter-dependence between the EU and the UK. The Political Declaration should serve as a point of departure of the negotiations, but it does not predict with any certainty, let alone reveal, the outcome of the negotiation process.

Negotiations between both parties started in March 2020 and are today ongoing, thus they cannot serve either to fully anticipate the future relations between the EU and the UK. The EU has always expressed its willingness to maintain close ties and develop a comprehensive framework for the future relationship.⁵ This position is reflected in the ‘Draft text of the Agreement on the New Partnership with the United Kingdom’ of March 2020 published by the Commission at the beginning of the negotiations. It covers all areas of the negotiations including trade and economic cooperation, law enforcement and judicial cooperation in criminal matters, participation in Union programmes and other thematic areas of cooperation.⁶ However, the UK does not seem to share this position. The UK Government considers that the negotiations should be focused on reaching a trade agreement following the Canada-style free trade agreement (FTA) and that cooperation in areas beyond trade should be covered in separate agreements.⁷

The implications of the future arrangements reach beyond the relationship between the EU and the UK and have a clear international dimension. The EU’s external relations have developed over time and EU competences in this area have not only increased in number but also in nature and scope. In many areas the EU has been in the lead in international negotiations and conclusion of international agreements, either because of an existing exclusive competence (e.g. in trade) or because of existing expertise and the wish to act as a cohesive force (e.g. climate). This has obvious consequences not only for the EU but for the UK now it is no longer a Member State. Brexit implies that the international legal position of the UK will have to be reset and certain dimensions of its statehood will have to be reactivated. In practical terms, it will no longer be able to rely on the EU’s expertise in international trade (including in the World Trade Organization, WTO) and it will have to seriously upgrade its own delegations in international organizations in which it was mainly active as an EU member.⁸ In other words, in many international settings the UK will have to face the reality of a major shift, that is, the transition from an EU to a non-EU state. This, inter alia, entails that the UK has to negotiate a large number of international agreements, including – or perhaps above all – the so-called ‘EU only’ agreements to which the Member States are not a party in their own right. The EU treaty database currently lists over 1100 international agreements concluded by the EU and/or Euratom with countries around the world, ranging from trade and economic issues to human rights and the environment.⁹ As shown in some contributions to this book, simply ‘rolling over’ these agreements is not always possible, for instance because third states may aim for a better deal than the one they had with the EU.¹⁰

Apart from the new international relations the UK will have to enter into and certain adaptations the EU will have to make in some of its current relations with third states and international organizations, the relationship between the EU and the UK will also be governed by international law. Indeed, while one could argue that the origin of the WA is to be found in EU law – as it was concluded between the EU and a (leaving) Member State – any future arrangement finds its basis in international (treaty) law. Brexit thus became a question of international law when the UK became a third state. As such, the former member is no longer part of defining the EU’s external relations but has turned into a target of this policy. Whatever the scope and depths of the new relationship, it will be international in nature while EU law will continue to apply to the UK only on the basis of its voluntary acceptance.

1.2 Aim of the book

The international dimension of Brexit runs the risk of being overshadowed by assessing the new EU–UK relations from the perspective of EU law only. This book aims at filling a gap in the literature by performing a comprehensive assessment of the consequences of Brexit under EU external relations law and international law. As indicated above, Brexit is not only relevant for internal EU policies, but also has important implications for the relationship between the EU and the UK with other states and international organizations. The objective of this book is to analyse the applicable rules of both EU and international law in relation to the withdrawal of the UK from the EU. EU and international law not only framed the withdrawal itself, but will also regulate the future relations between the EU and the UK. Rather than looking back on the process, this volume takes a future perspective and addresses key challenges arising from the Brexit process for the EU and the UK.

Ever since the notification of the UK’s intention to withdraw from the EU, legal scholarship has pointed to a variety of complex legal problems. While the focus has clearly been on the ways in which the UK could remain connected to the EU, the consequences for the EU’s (and the UK’s) external relations regime are equally complex. Both EU external relations law and international law have something to say about the problems that still need to be solved and the ones that can be expected on the basis of the new arrangements.

Our aim is to examine different scenarios and offer new avenues to develop the relations between the EU and the UK and with regards to other international actors. This book thus intends to make a substantial contribution to the academic state of the art on the future relationship between both parties as well as assess the legal consequences of Brexit for them in their dealings with third states and other international organizations. Its future oriented perspective allows the book to be relevant for the post-Brexit period, offering guidance and proposing solutions to the future challenges that are now emerging alongside the formation of the future relationship between the EU and the UK.

1.3 Structure of the book

The following 22 chapters of this volume provide a comprehensive study of Brexit focusing on the future relationship between the EU and UK and the wider international law implications. This introduction does not aim to summarize all of them. It has a more modest ambition of presenting the major objectives of the different contributions. The handbook presents novel perspectives on the future relationship between the EU and UK and on the impact Brexit will have on the international relations of both parties through the contributions of a number of legal scholars of different levels of seniority as well as legal experts of the European Commission who are all researching and working in this field.¹¹

The volume is formally structured around the international law implications of Brexit in six areas that were identified as key themes worth tackling for a comprehensive analysis: ‘The framework for the future relationship between the EU and the UK (Part I); ‘Brexit and existing EU international agreements’ (Part II); ‘International organizations and EU diplomacy after Brexit’ (Part III); ‘Common Foreign, Security and Defence Policy after Brexit’ (Part IV); ‘Brexit and specific international arrangements’ (Part V); and ‘Contested and external effects of Brexit’ (Part VI).

Part I aims to present the framework for the future relationship between the EU and the United Kingdom. For this purpose, attention is devoted to the implications of the withdrawal procedure itself laid down in Article 50 TEU and the various EU official documents that have supplemented the scant withdrawal clause by including additional requirements set out, in particular, in the Union’s Guidelines¹² and the Negotiating Directives.¹³ In this sense, even though Article 50 TEU does not provide for a transition period, it was perceived from the beginning of the Brexit negotiations that it would be necessary in order to avoid a legal void while negotiating the future relationship between both parties. As explained above, the current transition period facilitates the negotiation of a future treaty or treaties governing the new relationship. Since the UK is no longer a member of the EU, during the transition period the parties’ relations are ruled by an international treaty, namely, the WA.

In Chapter 2, Allan F. Tatham conducts a comprehensive analysis of the values and principles underlying EU withdrawal and their application in future contexts. He considers that a stark dichotomy lies in the fact that withdrawal, even though it represents the most fundamental form of rejection of the Union and its law, must nevertheless occur according to the relevant EU rules and principles. Tatham argues that, as happened with the accession process under Article 49 TEU, the EU institutions have developed the provisions of Article 50 TEU on withdrawal by complementing its terms with various official documentation. Taken together, they have given birth to the withdrawal or ‘Brussels criteria’ that govern this and any future secession of an EU Member State.

Tobias Lock, in Chapter 3, provides a closer examination of the UK’s peculiar position during the transition period and shows that the transition period does not represent a mere continuation of the status quo. During the transition period the UK will be in a twilight zone between EU membership and third country status. He argues that already during transition the UK has completed the move from being a subject of EU law to the status of object of EU law. This is due to the fact that its relations with the EU are now defined by an international agreement rather than by EU law proper. Lock explores the implications of the key provisions on transition in the WA and the imbalance between the UK and the EU during transition.

Adam Cygan and Ewa Żelazna evaluate in Chapter 4 the positions of parliaments in the process that governs the conclusion of the framework for future relations between the EU and the UK and discuss challenges that these parliaments face in ensuring democratic legitimacy of the agreement. They consider that, due to their consent powers and considerable experience in international negotiations, parliaments in the EU are in a better position to scrutinize the treaty-making process than the UK Parliament. The impact that the future agreement will have on individual Member States and its political importance provide a rationale for incorporating the voice of national parliaments.

Chapter 5, by Polly R. Polak, focuses on the significant gap-filling operation carried out by the European institutions in order to cope with the extremely complex process of withdrawal on the basis of the very scant regulation of Article 50 TEU. During the Brexit negotiations, sometimes legal voids have simply been filled by extending EU rules on international treaty-making to the withdrawal process despite the clause only referring to paragraph 3 of Article 218. In other cases, separate Treaty principles have applied, notably, the principle of sincere cooperation due to the status of Member and not of third country of the withdrawing state. Finally, other specific withdrawal rules have emerged anew from the practice. All of this has allowed the process to be designed by the EU in its interests while at the same time favouring the emergence of a heavily conditioned legal procedure of EU withdrawal that is different both from withdrawal mechanisms in ordinary international organizations and also in comparison to other EU external action.

Part II focuses on the impact of Brexit on existing EU international agreements, pa...