Critically discuss if it is legally possible for the UK to withdraw from the EU and what the possible impact of UK withdrawal might have on the EU and the UK's obligations under treaties signed by the EU?
The discussion of the relationship between the European Union and the United Kingdom is an ambivalent topic. There has been an upsurge in Eurosceptical parties throughout the EU due to the Euro crisis that has caused British attitudes against the EU to harden.
This essay will discuss the withdrawal of the United Kingdom from the EU to be legally feasible. Furthermore, how the withdrawal might impact the EU and UK obligations to EU-signed treaties. To address this the following will be discussed:
Firstly, it will legally justify the UK withdrawal by placing emphasis on the legislation from the Lisbon Treaty. Secondly, the possible impacts the withdrawal might cause on the EU contrasting both negative and positive outcomes. Thirdly, it will evaluate the UK’s legal obligation under treaties signed by the EU by defining state responsibility.
The UK withdrawal - is it legally justified?
This section will explore the legal justification for the withdrawal of the EU membership by the UK. In order to comprehend this situation, the historical background will be analysed and treaties that justify the legality behind the withdrawal will be examined.
The alignment of the European Community began in the 1950’s with the establishment of the European Coal and Steel Community (ECDC) and the European Economic Community (EEC). These institutions were later to merge into the official founding of the European Union with the creation of the Maastricht Treaty or Treaty of the European Union (TEU) of 1993. The Maastricht Treaty did not include a clause for members to withdraw from the European Union.
Furthermore, in 2009, the Lisbon Treaty added a withdrawal clause reforming the TEU. Foundational to this, there was the use of customary law, the Vienna Convention of the Law of Treaties and the Greenland Treaty that demonstrates a member was still able to withdraw legally from the union pre-Lisbon Treaty.
Customary Law
The evidence suggests that before the establishment of the Lisbon Treaty, customary law was used for the establishment of the Vienna Convention and the Greenland Treaty. Crawford exemplifies this concept stating, ‘customary law may be called on to mould and even modify treaty texts which cannot realistically be amended, however desirable [the] amendment may be.’
Hence, customary law can be used for when a subject recedes from a treaty or organization that does not have an exit clause, to create the possibility to negotiate and facilitate the withdrawal. Negotiation can be essential since the withdrawing party might still make business with the association they withdrew from in the future.
Therefore, in order to create the possibility for future relations and facilitate withdrawal customary law plays a major role. Customary Law will be further analysed when discussing the UK’s obligation under treaties signed by the EU.
The Vienna Convention
The Vienna Convention on the Law of Treaties (VCLT) was first written in 1969 however it became the official principle source of international law on 27 January 1980. The treaty concluded the rule pacta sunt servanda to be universally accepted and recognised the significance of treaties as a tool of international law.
Additionally, it summarised customary laws that are not specifically stated in the treaties made between states. Hence, in the issue of the legality of the UK withdrawal, Article 56 of the VCLT validates the withdrawal.
Article 56 of the Vienna Convention on the denunciation of or withdrawal from a treaty containing no provision regarding termination, justifies the legality of the British withdrawal from the EU since in the TEU there is no specific clause that indicates membership withdrawal. Article 56 briefly outlines,
(1) It is established that the parties intended to admit the possibility of denunciation or withdrawal.
(2) A right of denunciation or withdrawal may be implied by nature of the treaty.
Therefore, according to Article 56 (1) the UK has demonstrated tendencies for withdrawal from the Union beginning with the 1975 United Kingdom European Communities membership referendum to the possible referendum proposed by British Conservative Party for 2017.
Subsequently, section two, as part of the customary law of treaties allows for the UK to withdraw although it is not outlined in the Maastricht Treaty since it is presumed it can withdraw due to the nature of the law. For that reason, in the principles of customary international law, the United Kingdom may legally resign to its membership on the basis founded by the Vienna Convention on the Law of Treaties.
Greenland Treaty
Although there was no official clause from the origin of the European Communities (EC) there was a member state that resigned to the predecessor of the Maastricht Treaty, which was the EEC in 1985. The Greenland electorate voted on 23 February 1982 on the withdrawal of the EEC that resulted in 52% against the membership.
The Greenland Treaty was created despite the EEC not having a withdrawal clause. This negotiation treaty allowed Greenland to withdraw and establish new agreements between Greenland and the EEC.
The treaty stated,
'Denmark has submitted a proposal to the Council for the purpose of revising the Treaties establishing the European Communities so that they cease to apple to Greenland and introducing new arrangements governing relations between the Communities and Greenland.’
This indicates that even before the formal introduction of the Maastricht Treaty as the foundation of the European Union, members were still able to recede from the alignment. Greenland withdrew officially on 1 February 1985 and it became associated as an Overseas Country and Territory later in the formal establishment of the EU.
Hence, the United Kingdom would be able to legally withdraw from the union because even before the Lisbon reform and the Maastricht Treaty a member was able to leave alliance.
The Lisbon Treaty
The Lisbon Treaty of 2009 established a new framework to make changes to institutions and procedures. It amends the main constitutive treaties of the European Union that include the Treaty of Amsterdam 1997, Treaty of Nice 2001 and chiefly the Treaty of the European Union 1993.
Conventionally to the creation of this treaty there was no formal provision that allowed member states to withdraw from the European Union. Thereupon, Article 50 of the Lisbon Treaty allows members to withdraw from the union. Article 50 emphasises,
a) Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.
b) A member state, which decides to withdraw, shall notify the European Council of its intention.
As expressed in Article 50 (1), the United Kingdom may withdraw from the membership if it abides by national law. Customarily, the British referendum to withdraw from the EEC of 1975 could potentially support the need to abide by national law that would allow the withdrawal to be legal. This is because national parties proposed it and called for public votes thereby, abiding to British legislation.
Consequently, Article 50 (2) highlights that a member state should notify intentions of withdrawal in which the UK has maintained that with the British Conservative intentions for a 2017 referendum. This official notification should notify Commonwealth partners, the President of the United States, main government officials of European countries, and Britain’s economic and geological partner nations, United Nations, the World Trade Organisation, amongst others. In addition to notification of the intentions to withdraw, section two states that the union will have to come to agreement with the state in question and negotiate an agreement cognisance future legislations with the union.
Authors Mark Garnett and Phillip Lynch, highlight that the UK ‘retains the right to withdraw from the EU by repealing the 1972 European Communities Act, although the UK would have to enter difficult negotiations with other member states to finalise the terms of withdrawal.’
Therefore, if a member decides to leave, they would have to negotiate an agreement with the EU that would contain transitional arrangements for future EU relations. This negotiation process can be found in Article 218 (3) of the Treaty on Functioning of the European Union.
Article 218 (3) reitertes:
‘The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.’
It is possible for a member to withdraw, it is not necessary for withdrawal agreement as long as the intention to withdraw has been notified to the European Council. Also the withdrawal must be done according to European guidelines as in Article 218 (3) that would authorise negotiations and it would be done by the representative of the Union negotiator.
Consequently, this negotiation was also seen recalling the Greenland Treaty that negotiated an agreement when they left the EC. Additionally, this secession would take two years since it is constitutionally obligates the EU as stipulated in the Treaty of Lisbon.
During the negotiation period upon the withdrawal, the EU Directive and Regulations that were incorporated into the law in Britain would still be applicable.
Therefore, according to IEA, British courts will impose the EU Directives and Regulations without a reference to the European Court of Justice (ECJ) unless the UK Parliament repudiates them.
It could be argued that they did not need to include a legal withdrawal clause to the Maastricht Treaty because it was part of customary international law. This was previously outlined in the Vienna Convention on the Law of Treaties that although it was written in 1969 and enacted in 1980.
It was written before the implementation of the 1993 TEU, thereby, it could be interpreted that even before the exit clause of the Lisbon Treaty, the UK possibly could have legally withdraw from the union.
Legally Justified
Although it is legally possible for the United Kingdom to leave the European Union, it does not mean it will cut all its ties with Europe. This was illustrated in a speech by David Cameron in January 2013, ‘If we leave the European Union, we cannot of course leave Europe.
It will remain for many years our biggest market, and forever our geographical neighbourhood. We are tied by a complex web of legal commitments.’ Hence, even if they withdraw they are bound by the Lisbon Treaty Article 50 to come to agreements for future relations with the EU.
Subsequently, based on the legislations from the Vienna Convention on the Law of Treaties and the Lisbon Treaty it can be argued that the UK withdrawal from the European Union is legally justified therefore it is possible to have a referendum to renounce membership.
What are the possible impacts on the EU if the UK withdraws?
The key aspect discussed in this section is the possible impacts on the EU if the UK withdraws from the union. If they withdraw, it will be the first time a member of the EU seceded and it would mean that the EU would lose its largest contributors. This will be explored by contrasting both positive and negative impacts it could potentially cause to the union.
Negotiations
Once the UK has withdrawn from the European Union, according to Article 50 of the TEU it has to be open to negotiations following the framework provided by Article 218 as previously stated. Similarly to the Greenland Treaty, the negotiations and agreements between the UK and the EU will have a lasting effect for both parties.
Additionally, the UK will potentially have a relationship with the EU similarly to the relationship with Norway and Switzerland. Following the Norway or Switzerland models, the UK will most likely join the European Free Trade Agreement (EFTA), which creates free trade arrangements with the European Economic Area (EEA). These agreements can impact the EU’s budget and its Monetary policy.
Budget and Monetary Policy
The United Kingdom is one the biggest contributor to the European Union’s budget. It contributes with approximately £8.6 according to the British Treasury in 2013. Dr. Ben Clements, highlights that the monthly contribution of the UK to the EU budget can be potentially reduced if they were to follow the Switzerland model.
It could be reduced ‘by 1/24 of the difference between the financial contributions Switzerland makes to the EU compared with the UK.’ If the UK arranges a free trade agreement it would impact the EU since it is one of its biggest contributors to their budgets.
This could potentially afflict EU’s future economical plans and projects, this is reflected in Article 312 section 1 of the TEU where it states ‘The annual budget of the Union shall comply with the multi annual financial framework’ For example the establishment of Council Regulation on laying down implementing measures for the system of own resources of the European Union was set under Article 311 paragraph 4 of the TFEU.
This latest procedure manages the annual budgetary balance and supervises the revenue. Furthermore, it allowed for example for Germany, the Netherlands and Sweden to ameliorate from reduced called rates based on the value of the VAT. New schemes such as these can impact the EU since they will be challenged and they will have to re-adjust their plans.
Subsequently, Article 310 Section 5 of the TEU states ‘The budget shall be implemented in accordance with the principles of sound financial management. Member States shall cooperate with the Union to ensure that the appropriations entered in the budget are used in accordance with this principle.’
Therefore, each member state most abide with the Union’s financial management and make contributions to the budget for its expeditors. The UK however has not always facilitated cooperation with the budget as can be evidenced by the Session of the European Council in Fontainebleau of 1984, where it adjusted UK’s budget input to a fixed sum to correct budgetary imbalances.
Thus, the withdrawal of the UK can impact the EU’s budgetary policies as it can either facilitate the making of new treaties or provoke adverse changes to their policies.
In the case of the challenges the withdrawal can incite on the EU’s monetary policy, it can prove beneficial for the Union. The UK is not part of the EU’s single currency and it has not fully been incorporated into the EU’s economic policies.
This was due to the failed entry to the European Exchange Rate Mechanism (ERM) and the aftermath of Black Wednesday of 1992 that led to its withdrawal. Subsequently, it led to the opt out from the European Monetary Union (EMU) causing the division of interest rate decision between the European Central Bank and the Bank of England.
This has led for the UK to have an independent monetary policy. It was suggested in Protocol 25 on certain provisions relations to the United Kingdom of Great Britain and Northern Ireland of 1992 section 4, ‘The United Kingdom shall retain its powers in the field of monetary policy according to national law.’
Therefore since the EU is not in charge of British monetary policy, it could potentially bring more EU autonomy over its member states.
Considering the separation of the monetary policies between the UK and the EU, it can be concluded that if the withdrawal occurs the UK could potentially impose restrictions, barriers and taxation on European goods.
Hence, contradicting the free movement of goods as expressed in Article 31 of the TFEU,
‘Member States shall refrain from introducing any new measure which is contrary to the principles laid down paragraph 1 or which restricts the scope of the articles dealing with the prohibition of customs duties and quantitative restriction between Member States’
Additionally, the withdrawal could impact the EU’s committees that are set up in the TEU as advisory bodies such as the European Economic and Social Committee (EESC). The United Kingdom, being one of its largest members will impact the Council’s the decision on the members of the committee since it is distributed per Member State.
Free Movement
If the UK were to secede from the EU, there will be a limit in immigration and freedom to travel. It could be a major impact in European citizens living in the UK since recently there has been a recent boost in immigration. In 2010, there were only 34,000 United Kingdom citizens that migrated to the EU while 156,000 EU migrants came to the UK which indicated that there are more EU migrants coming in to the UK
Free movement of citizens within the EU - in the TFEU Article 26 (2) highlights ‘the internal market shall compromise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provision of the Treaties.’ Moreover, if the UK withdraws, EU migrants can be at strife with the restriction of movement.
Beside the restrictions on immigration, there will be a major conflict regarding the free movement of workers. According to Article 45 Section 3 of the TFEU, ‘To stay in a Member State for the purpose of employment in accordance with the provision governing the employment of nationals of that state laid down by law, regulation or administrative action.’
The UK withdrawal will redefine these laws for EU workers since they will have to abide with British common law. Although the Court of Justice of the European Union secures these rights, the withdrawal will cause disputes on passed legislature enacted by the court. For instance, in the case of Levin v Staatssecretaris van Justitie (1982) were a British national that resided in the Netherlands, married a non-union national.
The British national’s wife earned what was considered less than the minimum wage for the Netherlands. This case was challenging since the Union law mainly applies to EU nationals and there has to be special arrangements in EU labour laws to include the labour on non-EU workers. Therefore, it will be cases like these that will be challenged and it could lead to an upsurge in court cases since the British will be considered non-members of the union.
The effectiveness of the Union law will be impaired since there will be contention when it comes to the free movement of members and past legislatives when the UK was a member. The impact of the secession could prove time consuming, conflicting for EU legislation and could lead to migratory struggles amongst members.
The ‘awkward’ partner
It might be beneficial to lose the ‘awkward partner’ since the UK has not been pro- European and has a soft Eurosceptical approach to the union. This approach can be seen to contradict one of the fundamental principles of the European Union as highlighted in Article 3 (1) and (3) of the TEU where it states,
‘Pursuant to the principle of sincere cooperation, the Union and the Member states shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objective.’
The UK has been reluctant to cooperate with the EU’s goals and treaties however if they withdraw it will impact it in that it will facilitate the enactment of treaties within the union. The UK pushes for a reformed EU however the EU has not been able to offer this and as much as the UK opts out it only causes separation and ambiguity in this relationship.
Although it could prove as a positive change for the European Union to lose its most ‘awkward’ partner, the withdrawal as evidenced, can impact a major change that could potentially hinder the EU’s future in the global community.
UK obligations under treaties signed by the EU
This section of the essay will address the scenario of the obligation of the UK under treaties signed by the EU in the hypothetical situation that the UK withdrawal would have occurred. It will be discussed by introducing the EU as an international legal personality comparatively to the United Nations.
It will evaluate the meaning of state responsibility within international law furthermore, the role of customary law by examining the Vienna Convention on law of Treaties for the obligations. Henceforth, it will provide examples of treaties signed by the EU such as the Fisheries Act to evaluate its obligations.
International legal personality
The European Union is an intergovernmental organisation that is considered an international legal personality comparatively to the United Nations as an international organisation. An international legal personality is defined according to Article 2(a) of the International Law Commission of 2011 on the Draft articles on the responsibility of international organisations,
‘International organisation means an organisation established by treaty or other instrument governed by international law and possessing its own international legal personality. International organisations may include as members, in addition to States, other entities.’
The EU by acknowledging itself to have international responsibility it adopts a legal personality. This legal personality enables it to create international relations with other states or international entities. The EU officially adopted this responsibility in the Lisbon Treaty article 47.
Furthermore, in the Declarations Concerning Provisions of the Treaties, Declaration 24 concerning the legal personality of the European Union stated, ‘the Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties.’
Complementary to this, the UN acting as an international legal personality also can come to agreements on behalf of its member states. This was highlighted in the UN Charter in Article 104, ‘The Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.’
In contrast, Article 4 (3) of the TEU expressed that, ‘The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.’
These provisions on these fundamental treaties of these international legal personalities demonstrate that as their role of legal authority on behalf of the states, they can come into agreements with other entities in order to fulfill its purpose. Crawford further expresses that if the organisation has come into an agreements, all its members are bound to the treaty.
However, as the organisation is articled to its organs, ‘member states are not as such bound due to their separate legal personality.’
Vienna Convention - Rebus Sic Stantibus
It is important to establish that the EU has the power to sign treaties on behalf of its member states. This is part of one of the fundamental laws outlined in the TEU Article 4 (3). Nevertheless, if the UK withdraws it still indirectly obligated to those treaties.
In the case there is no exit clause of in the treaty the EU has signed with another entity on behalf of its member states, customary law could be used in order to determine its obligation. The Vienna Convention on the law of Treaties is the treaty that illustrates the principles of customary law furthermore; it highlights Rebus Sic Stantibus, which is an important term that can counter play when determining the UK’s obligation.
Rebus Sic Stantibus promulgates that if a fundamental change has occurred, a party has the possibility to withdraw or invalidate the treaty. Article 62 Section 3 of Vienna Convention on the law of treaties on Fundamental Change of Circumstance notably states, ‘A party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.’
To elaborate, if the UK withdraws from the Union it will create a fundamental change to EU treaties. Thereby, allowing for the suspension of the law of that particular law. Dr. Clements hypothesised that, the member state leaving the EU would be freed from its obligations from treaties following the secession agreement having been put into effect, or alternatively two years from the time of the member state’s notification of withdrawal to the European Council.
State Responsibility
The United Kingdom is a subject of international law because of its statehood therefore it has international responsibility as customary. Hence, it is withdraws from the EU, the treaties - agreements signed by the EU for its member states will be challenged. The UK has to uphold to its obligations due to its international responsibility.
In Spanish Zone of Morocco Judge Huber expressed that, ‘responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make a reparation.’
Judge Huber was correct in expressing the responsibility to honor the treaty by making reparations. Furthermore, the UK is presented with the obligation to abide with the treaty; this was also expressed in Article 12 of the ILC Article on Responsibility of States for Internationally Wrongful Acts of 2001. Article 12 on the Existence of a breach of an international obligation states, ‘There is a breach of an international obligation by a State when an act of that state is not in conformity with what is required of it by that obligation, regardless of its origin and character.’
By establishing the legal background on the state responsibility of the UK it can be expressed that it does have to abide with the agreements with other entities in the case that customary law cannot support its withdrawal from the treaties.
However, in the EU withdrawal the UK is no longer bound by its responsibility as a state. This is because under Article 50 (3) of the Lisbon Treaty highlights that a member state once it has notified the European Council of its intent, the EU treaties will cease to apply to the member state two years after the notification.
Fisheries
The EU has established a fisheries partnership with non-EU countries. The EU provides financial support in exchange for the right to fish in their territory. The chart bellow indicates the contribution to EU budget contribution to each fisheries agreements with non –EU states.
As seen as the chart above, the UK is part of these agreements. For example the largest contribution by the EU is fisheries partnership with Morocco.
The United Kingdom is entitled according to Article 2 of the Council Regulation No 764/2006 on the conclusion of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco to 2 500 t licenses per quota for industrial fishing for pelagic species.
Article 7 (a) on the financial contribution of the Fisheries Partnership expresses that ‘a financial contribution for access by Community vessels to Moroccan fishing zones, without prejudice to the fees due by Community vessels for the license fee.’ As a result, if the UK withdraws the agreement will be challenged and they might have to potentially create an individual agreement with the Kingdom of Morocco that can prove costly since they will have to pay for licenses.
The above analysis is a simple glance at what would be the obligation the UK under treaties signed by the EU if they were to withdraw. It has been shown that, the obligations of the UK under treaties signed by the EU are questionable. Since the EU international legal personality, it has the power to sign treaties on the behalf of its Member States.
However, due to the separate legal personality member states have, they are not entitled or obligated to follow that treaty. This is also due to the principles of customary law outlined in the Vienna Convention on the Law of Treaties.
Notwithstanding, the state does have to comply with its obligations as a country therefore in order to conclude its obligations; it will have to be charter according to the Lisbon Treaty on state withdrawal from the EU.
Outcome on the UK’s hypothetical withdrawal from the EU
It has been shown that the United Kingdom is legally able to withdraw from the European Union. The withdrawal can cause major impacts to the European Union in a positive or negative way and that although it is does have obligations to treaties signed by the EU, they are not obligated to them. This essay has analysed the withdrawal of the United Kingdom from the EU to be legally feasible. Furthermore, the impacts the withdrawal on the EU and it has addressed UK obligations to EU-signed treaties.
This was evaluated by first exploring the legal justification of the withdrawal by looking at the historical background of the relationship between the United Kingdom and the European Union. It highlighted that the Treaty of the European Union did not include withdrawal clause and it was not until the Reforming treaty of Lisbon in 2009 where Article 51 was incorporated for a withdrawal process.
For that reason, if the UK expresses its wishes to withdraw pre-Lisbon treaty it would have to address its withdrawal through customary law, the Vienna Convention of the Law of Treaties and the Greenland Treaty. Thus, the UK can withdraw because of customary law and it will not have to break the relationship since according to Article 51 of the Lisbon treaty it will make arrangements for a future relationship.
Secondly, the possible impacts the withdrawal on the EU where assessed both negative and positive outcomes. It was highlighted that during the two-year negotiation period set out by Article 218 of the TFEU, the UK will most likely follow the Norway or Switzerland model for a relationship with the European Union.
Moreover, there were three impacts identified that included the budget and monetary policy, free movement and the losing of the ‘awkward partner’. In the budget and monetary policy, it was identified that the UK was one of the biggest contributors to the EU budget hence, if they withdraw it could impact the goals and budgets of the EU for its projects.
The UK could potentially also impose taxes on the EU goods that can lead to higher spending. The withdrawal can also impact the free movement of persons since EU citizens will have new labour laws and it could make it difficult to move to the UK, as immigration will be restricted. It could prove beneficial for the UK to withdraw since the EU will lose its ‘awkward partner’ as the British have always been reluctant to embrace the EU and have Eurosceptical views towards the union.
Thirdly, the UK’s legal obligations under treaties signed by the EU were discussed by identifying the EU to have an international legal personality similar to the United Nations. By identifying this, it became legally justified for the EU like the UN to make agreements on behalf of its member states as highlighted in Article 4 (3) of the TEU.
It then explained the significance of Rebus Sic Stantibus as part of customary law and the Vienna Convention to determine the UK’s obligations if the Lisbon Treaty would not allow to withdraw. However, it was also identified that the UK is bound by its state responsibility to carry out with its treaties yet in the case of withdrawal by the Lisbon Treaty, state responsibility can be ceased.
Furthermore, it provided the example of a treaty signed by the EU and the role of the UK in the fisheries act was discussed to determine what would be its obligations if the withdrawal occurs.
What Is Brexit? "British Exit" UK Withdrawal From The EU
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