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A Second Brexit Referendum – What Makes You Think They Will Have You Back?

Published on November 26, 2018        Author: 
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The call for a second Brexit Referendum is still alive, some say more than ever. It is probably unlikely and, even if it were to take place, there is no certainty that the Remain camp would win. But it is somehow based on the assumption that if such a referendum were held, and the Remainers would win (probably a narrow victory) and that if, as a result, the UK Parliament were to change its mind and elect to remain, that on the basis of this unilateral decision of the UK the status quo ante would be restored and British membership of the Union would continue unabated.

This is very unlikely to be the case.

First there is the legal issue regarding such a unilateral withdrawal of the Article 50 notice.

As is well known, a Preliminary Reference from Scotland will be decided this month in an expedited procedure and before a plenary forum of the ECJ, trying to clarify the legal parameters of a British change of mind whether through a referendum or otherwise.

The Reference definitely has some elements of an Affaire Bidon but I predict the ECJ will not opt for inadmissibility in this case. On the merits it is likely that it will  reject the two ‘bookend’ arguments and instead go for the centre. It is most unlikely that it will hold that once Article 50 notice has been served the process is irreversible and that the only way back, even before the deadline for formal exit arrived, is an Article 49 admission procedure. It is, in my view, equally or even more unlikely that it would hold that the UK could unilaterally withdraw its notice and that, with no more, its Membership would continue unabated. The UK drives everyone crazy for close to three years and then, oops, just as the Clock Strikes One, the Mouse is to run down as if nothing happened?

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Brexit and the Transatlantic Trouble of Counting Treaties

Published on December 6, 2017        Author: 
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As pointed out by the Financial Times (FT), the UK’s withdrawal from the EU will require the renegotiation of more than 700 international agreements from which the UK currently benefits by virtue of its EU membership. Given the political and economic importance of transatlantic relations for both the UK and EU, the United States is arguably a good place to start when it comes to gaining a deeper understanding of the challenge at hand. As this post argues, before reaching the substantive questions surrounding the new agreements, even determining the number of treaties that may need to be replaced with new U.S.-UK ones is not a straightforward task.

In an address of November 28, 2017, Secretary of State Tillerson urged both sides to move the withdrawal process “forward swiftly and without unnecessary acrimony” and offered “an impartial hand of friendship to both parties”. Meanwhile, the Brexit negotiations are nearing a crucial point in mid-December, when it will be determined whether “sufficient progress” has been achieved for the two sides to start looking to the future—with each other and with strategic partners such as the U.S.

In determining the UK’s post-Brexit “special relationship” with the U.S., some preliminary discussions are already underway. However, the UK will be free to conduct fully-fledged negotiations only once it ceases to be an EU member. In anticipation of the many legal and political questions that these negotiations will raise, a preliminary—seemingly simple—matter would be to establish what the actual treaty relations between the U.S. and EU are. Three comprehensive and authoritative sources can be drawn upon to this end: The U.S. State Department’s Treaties in Force 2017, the EU’s Treaty Office Database, and the FT’s Brexit treaty renegotiation checklist. The only problem is, they do not match up. According to the State Department, there are 31 bilateral treaties in force between the EU and U.S., according to the EU’s Treaty Office, the number is 52, and according to the FT, it is 37. Hence, establishing the extent and content of legal relations affected by Brexit amounts in the first place to an empirical challenge.

In an effort to better understand this challenge, this post will first explain the reasons for (most of) these discrepancies, and subsequently offer its own assessment of the number of treaties. Before doing so, it should be stressed that this analysis focusses on bilateral international agreements only, i.e., agreements between the U.S. and the EU, either with or without the EU’s Members States alongside it. Agreements including additional parties would be categorized as multilateral agreements, of which there is also a significant number involving both the EU and U.S. and which raise additional difficulties, as illustrated recently in the dispute over the post-Brexit splitting of tariff rate quotas at the WTO. Moreover, the analysis focusses on treaties in force, thus excluding treaties pending ratification or those which are being provisionally applied (such as the 2007 Open Skies Agreement). As a final caveat, this post does not delve into any of the many administrative agreements concluded directly between U.S. and EU agencies (see for a useful overview the table compiled by Peter Chase in Daniel Hamilton and Jacques Pelkmans (eds.), Rule-Makers or Rule-Takers: Exploring the Transatlantic Trade and Investment Partnership (2015), pp. 55-60). What this post seeks to show is that even a single bilateral treaty relationship is challenging enough to grasp.

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