Updated Debate Map: Brexit
[Last updated Dec 2017]
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 fields of human rights and trade, 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. The Mechanics of Leaving the EU
A) Process and consequences of treaty withdrawal under international law
B) The Article 50 process of withdrawing from the EU
C) Options for the UK’s engagement with the EU after withdrawal
II. Impact on the Application of EU Law in the UK
III. Impact on EU Citizenship and Acquired Rights
A) UK citizens living in and travelling to the EU
IV. Impact on the UK’s International Trade Agreements and the Role of the WTO
V. Impact on Human Rights and Environmental Protection in the UK
A) Human rights, employment law, and equality
B) Environmental protection and climate change
I. The Mechanics of Leaving the EU
A) Process and consequences of treaty withdrawal under international law
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) 17 May 2016, Joseph Blocher, G. Mitu Gulati and Laurence Helfer in a Duke Law School Public Law & Legal Theory paper on how international organizations could expel a Member State (relevant if the UK indefinitely delays triggering Article 50)
(iii) 4 July 2016, Jed Odermatt on EJILTalk! on the impact of Brexit on the application of EU treaties with third states and organizations to the UK
B) The Article 50 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.
(i) 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
(ii) 2013, Phedon Nicolaides in the Maastricht Journal of European and Comparative Law on the general implications and consequences of withdrawing from the EU
(iii) 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
(iv) 23 February 2016, Nationalia’s overview of the three territories that have left the EU
(v) 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
(vi) 4 May 2016, House of Lords European Union Committee report on the process of withdrawing from the EU
(vii) 26 June 2016, Laurence Helfer on Opinio Juris, on the basics of Article 50 and the possibility of the UK leaving the EU without triggering it (see also Kenneth Armstrong in a CELS Working Paper)
(viii) 30 June 2016, Vaughne Miller and Arabella Lang in a House of Commons Library Briefing paper on the immediate aftermath of the Brexit vote and the next steps for the UK government
(ix) 30 June 2016, Vaughne Miller and Arabella Lang in a House of Commons Library Briefing paper providing a detailed overview of the Article 50 process
(x) 1 July 2016, Andrew Clapham giving a brief overview of the Article 50 process as well as the impact on EU law in effect in the UK
See also the Gordon/Moffatt report mentioned below
C) 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) 27 June 2016, Jure Vidmar and Craig Eggett on EJILTalk! on replacing EU membership with a Switzerland-type arrangement, and the prospect of Scotland and Northern Ireland staying more closely affiliated to the EU
(iv) 6 July 2016, Emily MacKenzie on the Brick Court Chambers Brexit blog, explaining the EEA and EFTA, and the differences between the two
II. Impact on the Application of EU Law in the UK
(i) 7 July 2016, Sarah Abram on the Brick Court Chambers Brexit blog on cases involving EU Courts, looking both at cases and references pending before the CJEU and at EU law interpretation by UK courts
(ii) 7 July 2016, Helen Davies QC on the Brick Court Chambers Brexit blog on the continuing obligation to implement EU law while the UK is still an EU Member State
(iii) 8 July 2016, Jemima Stratford QC on the Brick Court Chambers Brexit blog, looking specifically at UK references for preliminary rulings pending before the CJEU
See also the Miller/Lang House of Commons Library briefing paper on Brexit: the next steps, mentioned above
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 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 Brexit
(iii) June 2016, Dimitry Kochenov in an LSE Discussion Paper on the consequences of Brexit for the rights of British citizens and potential UK negotiation strategies
B) EU citizens living in the UK and UK immigration policy
(i) 17 July 2014, Helena Wray on EU Law Analysis on how Brexit could 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 Brexit might not mean full control over the UK’s immigration policy
(iii) 19 June 2016, Steve Peers on EU Law Analysis, giving a detailed explanation of the ways in which Brexit will and will not affect the UK government’s ability to control immigration (see also his 2 June 2016 post in The Political Quarterly on the same topic)
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 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 could happen to acquired rights under EU law after 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 Agreements and the Role of the WTO
(i) June 2014, Andrew Lang, LSE Law Policy Briefing No. 3 on the implications of 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 Brexit could 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) 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) 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 Brexit
(vi) 16 June 2016, Piet Eeckhout on London-Brussels One-Way or Return on the modalities of the UK setting up its own trade regime after Brexit, including negotiations with the WTO and free trade agreements with third states
(vii) 22 June 2016, Michael Johnson on the LSE BrexitVote blog, setting out the impact of Brexit on tariffs on trade in goods and in services
(viii) 24 June 2016, Van Bael & Bellis memo on the UK and EU trade relations after Brexit, looking specifically at trade defence instruments, FTAs, and the relationship with the WTO
(ix) 24 June 2016, Joanna Morris on the In-House Practical Law blog of Thomson Reuters, briefly summarizing the Article 50 process and giving an overview of the impact of Brexit on various areas of law, including investment treaties
(x) 27 June 2016, Simon Lester and commentators on the International Economic Law and Policy blog, discussing when and how the UK can start bilateral trade negotiations
(xi) July 2016, Panos Koutrakos on Lawyers In for Britain on the complexities involved in renegotiating the UK’s trade agreements and its relationship with the WTO
V. Impact on Human Rights and Environmental Protection in the UK
A) Human rights, employment law, and equality
(i) 10 March 2016, Michael Ford QC’s legal analysis of the impact of 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 Brexit, and Astra Emir's blog post on worker protection)
(ii) May 2016, Tobias Lock in a Royal Society of Edinburgh briefing paper on the EU and human rights, examining the impact of Brexit on the final page. Also see Tobias Lock's OUPBlog post, exploring What does Brexit have to do with human rights?
(iii) 21 June 2016, Steve Peers on EU Law Analysis, setting out the impact of Brexit on the protection of employment and equality rights in the UK
B) Environmental protection and climate change
(i) April 2016, Matthew Townsend and Claudia Watkins in an Allen & Overy briefing paper on the effect of Brexit and the different post-Brexit options on environmental and climate change laws
(ii) May 2016, Antony Froggatt, Thomas Raines, and Shane Tomlinson at Chatham House on the impact of Brexit on the UK’s energy and climate policy
(iii) June 2016, Nigel Howorth in a Clifford Chance briefing note on Brexit – What Next for Environmental and Climate Change Law, setting out the impact of the different post-Brexit options on environmental protection in the UK
See also the Joanna Morris post mentioned above
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.
