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Debate Map: Brexit

This debate map indexes analysis of and information about the legal consequences of the Brexit, focusing specifically on the mechanics of leaving the EU and the impact on EU citizens in the UK and British citizens in the EU—as well as on trade, the environment, and human rights protection in the UK. The map also includes analysis of treaty withdrawal generally under international law and the extent to which obligations, particularly in the field of human rights, can be said to continue even after a state’s exit from a treaty.

The collection includes blog posts, papers prepared by the UK government, legal advice issued by leading lawyers, journal articles, and book chapters. Its purpose is to collect together legal analysis of the consequences of the Brexit under international law and EU law. 

We will be keeping this index up to date as developments unfold over the next weeks and months and may add coverage of new issues as appropriate.

Any comments on the content or organization of this map as well as suggestions for inclusion are welcome. Please send an email to merel.alstein@oup.com.

 

I. Background

II. The Mechanics of Leaving the EU

 A) The process of withdrawing from the EU

B) Options for the UK’s engagement with the EU after withdrawal

III. Impact on EU Citizenship and Acquired Rights

A) UK citizens living in and travelling to the EU

B) EU citizens living in the UK and UK immigration policy

C) The continuing effect of vested rights

IV. Impact on the UK’s International Trade Obligations and the Role of the WTO

V. Impact on Human Rights and Environmental Protection in the UK

 

I. Background

(i) 1 July 2013, Vaugne Miller (ed), House of Commons Library Research Paper, giving a thorough overview of all domestic and international legal issues raised by a Brexit

(ii) 16 April 2015, Paul Craig, ‘Responsibility, Voice and Exit: Britain Alone?, from: A Biondi and P Birkinshaw, Britain Alone? The Implications and Consequences of the UK Exit from the EU (Kluwer Law, 2016), available at SSRN, providing a good overview of the discussion about the referendum, the status quo in 2015, and the impact of a Brexit

(iii) 21 February 2016, Mark Elliot on Public Law for Everyone, on the apparent tension between the sovereignty of Parliament and the supremacy of EU law (see also Elliot’s short reading list on Parliamentary sovereignty and the EU; and Rhodri Thompson QC’s post on this topic on EUtopia Law

(iv) 20 June 2016, Stephen Weatherill's OUPblog post Why we need the European Union, on the misrepresentation of the role of the EU and the illusion of control. 

 

II. The Mechanics of Leaving the EU

A) The process of withdrawing from the EU

Article 50 of the Lisbon Treaty (TEU) provides:

Article 50

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

 

Article 54 of the Vienna Convention on the Law of Treaties provides:

Article 54 

Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.

 

(i) 11 March 2005, Laurence Helfer in the Virginia Law Review, giving a detailed account of how international law governs treaty exit and analysing why states decide to unilaterally abandon a treaty (see also Helfer in the Duke Journal of Comparative & International Law in 2010 on using treaty withdrawals as an analogy for withdrawing from custom, including a useful overview of the law and procedure of exiting a treaty: 

(ii) May 2012, Allan Tatham, ‘‘Don't Mention Divorce at the Wedding, Darling!’: EU Accession and Withdrawal after Lisbon’, in: Andrea Biondi, Piet Eeckhout, and Stefanie Ripley (ed), EU Law after Lisbon (OUP, 2012), giving an overview of historical EU withdrawals of sub-state territories, the criteria and procedure for withdrawal under the TEU, and analysing the implications of Article 50

(iii) 2013, Phedon Nicolaides in the Maastricht Journal of European and Comparative Law on the general implications and consequences of withdrawing from the EU

(iv) 2014, Carlos Costa (ed), Troubled Membership: Dealing with secession from a member state and withdrawal from the EU (EUI Working Papers): summary of a roundtable discussion at the EUI dealing with, inter alia, the procedure for withdrawal from the EU

(v) 19 January 2016, Bartlomiej Kulpa on EU Law Analysis on the mechanics of withdrawing from the EU under Article 50(1) of the Treaty on the European Union

(vi) 23 February 2016, Nationalia’s overview of the three territories that have left the EU

(vii) 8 April 2016, Vaughne Miller in a House of Commons Library Briefing Paper on the process of leaving the EU, including a brief overview of how to deal with EU law implemented by the UK

(viii) 4 May 2016, House of Lords European Union Committee report on the process of withdrawing from the EU

See also the Gordon/Moffatt report mentioned below

 

B) Options for the UK’s engagement with the EU after withdrawal

(i) 5 May 2015, Jean Claude Piris in a Robert Schuman Foundation Policy Paper on seven different legal options after a Brexit, plus the prospect of UK ‘semi-membership’

(ii) March 2016, UK Government paper on the different models for UK involvement with the EU after a Brexit

 

III. Impact on EU Citizenship and Acquired Rights

A) UK citizens living in and travelling to the EU

(i) 9 May 2014, Steve Peers on EU Law Analysis on how a Brexit could affect UK citizens living in other EU countries

(ii) 25 April 2016, Steve Peers on EU Law Analysis on the possibility that visas will be imposed on all EU travel after a Brexit 

 

B) EU citizens living in the UK and UK immigration policy

(i) 17 July 2014, Helena Wray on EU Law Analysis on how a Brexit would affect EU citizens living in the UK or planning to live in the UK

(ii) 16 January 2016, Piet Eeckhout on London-Brussels One-Way or Return on why a Brexit might not mean full control over the UK’s immigration policy

(iii) 2 June 2016, Steve Peers in The Political Quarterly giving an overview of EU rules on EU and non-EU migration and internal security, and the potential impact of a Brexit on these areas 

 

C) The continuing effect of vested rights

Article 70 of the Vienna Convention on the Law of Treaties provides:

Article 70 

Consequences of the termination of a treaty

1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a) releases the parties from any obligation further to perform the treaty; 

(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.

(i) 17 May 2015, Sionaidh Douglas-Scott in the Blog of the UK Constitutional Law Association on the constitutional implications in the UK of a Brexit, including the mechanics of repealing EU provisions and dealing with vested rights 

(ii) 2016, Richard Gordon QC and Rowena Moffatt, Brexit: The Immediate Legal Consequences (Report for The Constitution Society), giving a detailed overview of the procedure for leaving the EU under Article 50 TEU, the unravelling of EU law from UK domestic law, and the question of continued EU citizenship rights for UK citizens living in the EU and EU citizens in the UK

(iii) 16 May 2016, Sionaidh Douglas-Scott in the Blog of the UK Constitutional Law Association on what would happen to acquired rights under EU law after a Brexit, both for UK citizens living abroad in the EU and EU citizens in the UK―including a useful summary of the meaning of vested rights under Article 70(1)(b) VCLT

 

IV. Impact on the UK’s International Trade Obligations and the Role of the WTO

(i) June 2014, Andrew Lang, LSE Law Policy Briefing No. 3 on the implications of a Brexit for access to the common market, negotiating free trade agreements, and the impact of the WTO

(ii) 28 July 2014, Steve Peers on EU Law Analysis on the impact that a Brexit would have on the UK’s ability to set its own free trade policy (see the last paragraph)

(iii) 14 February 2016, Piet Eeckhout on London-Brussels One-Way or Return on the extraterritorial effect on EU trade regulation on non-EU countries (see also the papers by Anu Bradford and Joanne Scott mentioned in the post for a more detailed examination of this effect; as well as Paul Craig and Menelaos Markakis’ chapter in the forthcoming P Koutrakos and J Snell (eds), Research Handbook on the Law of the EU’s Internal Market (Edward Elgar, 2016)

(iv) 2 May 2016, Greg Messenger on the OUP Blog on the constraints posed by WTO membership on the UK’s ability to negotiate new trade deals after a Brexit

(v) Lawyers for Britain, pro-Brexit analysis of the impact of a Brexit on the UK’s trade policy and its position under the WTO

 

V. Impact on Human Rights and Environmental Protection in the UK

(i) 10 March 2016, Michael Ford QC’s legal analysis of the impact of a Brexit on workers’ rights, commissioned by the TUC (see also David Cabrelli in the OUP Blog on Ford’s opinion and UK employment law after a Brexit, and Astra Emir's blog post on worker protection)

(ii) May 2016, Antony Froggatt, Thomas Raines, and Shane Tomlinson at Chatham House on the impact of a Brexit on the UK’s energy and climate policy

(iii) May 2016, Tobias Lock in a Royal Society of Edinburgh briefing paper on the EU and human rights, examining the impact of a Brexit on the final page. Also see Tobias Lock's OUPBlog post, exploring What does Brexit have to do with human rights?

 

 

Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.

Any comments on the content or organization of this map and suggestions for inclusion are welcome. Either send an email to merel.alstein@oup.com or use the Contact Us service at the top of the screen.