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Home Posts tagged "Brexit"

Trivia: International Organizations Headquartered in Non-Member States

Published on May 5, 2017        Author: 

Michael Waibel’s post of yesterday highlighted one of the significant issues that will need to be sorted out in the Brexit negotiations between the UK and the EU. Another issue, though of less significance, that will need to be resolved is the (re)location of a couple of EU agencies that currently have their headquarters in London: the European Medicines Agency (EMA) and the European Banking Authority (EBA). It has been reported that the EU, understandably, wishes to move these agencies out of London once Britain leaves the EU and apparently a number of cities are competing to have these agencies relocated to them (see here and here). However, it has also been reported that Britain would like to keep these agencies located in the UK even after Brexit.

“David Davis, Brexit secretary, does not accept that the two agencies and roughly 1,000 staff will have to move from London’s Canary Wharf, even though the EU is about to run a competition to relocate them. A UK Brexit department spokesman said: ‘No decisions have been taken about the location of the European Banking Authority or the European Medicines Agency — these will be subject to the exit negotiations.’

The government has left open the possibility of keeping part of some EU agencies, at least in the short term, but the idea of the UK hosting key institutions after Brexit is unacceptable in Brussels.”

While the idea that EU institutions may remain based or even headquartered in the UK after the UK remains in the EU might, at first sight, seem unrealistic, it should be remembered that Geneva was the “European headquarters” for many decades when Switzerland was not a member of the United Nations. Switzerland only joined the UN in 2002, over 50 years after the UN was formed and had based its major European office there.

From time to time I have posed trivia questions on the blog, but usually related to international tribunals. This time I have a question that relates to international organizations.

My question is this: Which international organizations have their headquarters or main offices located in a non-member state?

Read the rest of this entry…

 
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The Brexit Bill and the Law of Treaties

Published on May 4, 2017        Author: 

As has been widely reported in the media (e.g. The Guardian, the BBC), the House of Lords reached two main legal conclusions in its March 2017 report on Brexit and the EU budget:

  1. Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments, unless a withdrawal agreement is concluded which resolves this issue.(para. 135).
  2. The jurisdiction of the CJEU over the UK would also come to an end when the EU Treaties ceased to have effect. Outstanding payments could not, therefore, be enforced against the UK in the CJEU. (para. 133).

The UK government appears to have adopted a similar position on the Brexit bill as the House of Lords. The German newspaper Frankfurter Allgemeine Zeitung published an account of a ‘disastrous Brexit dinner’ at the end of April 2017 between UK Prime Minister Theresa May and Commission President Jean-Claude Juncker in which PM May reportedly argued that the UK does not owe anything to the EU upon its departure. The fact that this dinner conversation was leaked led to strong criticism, particularly in the UK as the campaign for the general election in June is currently underway (see for example here and here).

On 3 May 2017, the UK’s Brexit Secretary David Davis in a TV interview emphasized that he had not seen any official figure of the EU’s demands, and left open room for compromise:

[The UK] have said we will meet our international obligations,  but there will be our international obligations including assets and liabilities and there will be the ones that are correct in law, not just the ones the Commission want.

However, he indicated that the UK would not pay €100 billion upon leaving the EU.

The Commission’s draft negotiating directives for Article 50 negotiations with the UK, published later on the same day, emphasize the need for a ‘single financial settlement’ of the UK’s financial obligations as a member ‘in full’ – referring to it as a ‘settling of accounts’, rather than ‘punishment’. In February, the EU Commission claimed that the UK owes the EU around €60 billion as a result of its EU membership since 1973 Read the rest of this entry…

 
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Being Charged by an Elephant: A story of globalization and inequality

Published on April 19, 2017        Author: 

Along with many economists and globalization scholars, my favorite graph these days is the elephant graph. Named for its distinctive elephant-shaped curve (see below), this graph shows the rise in real incomes for people in different income brackets throughout the world over a twenty year period of intense economic globalization (1998 to 2008). Economists often like to tell us that free trade is good because it is a rising tide that lifts all boats. What this graph suggests, however, is that economic globalization has produced clear winners and clear losers. This division seems to be playing an important role in explaining some of the rising nationalist and pro-protectionist sentiments we are witnessing in certain developed states, as shown by the rise of Trump and the vote for Brexit.

So who has won and lost in the age of economic globalization? Read the rest of this entry…

 

Leonard Cohen on Brexit

Published on March 31, 2017        Author: 

I’ve seen you change the water into wine
I’ve seen you change it back to water, too
I sit at your table every night
I try but I just don’t get high with you
I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine

Ah, they’re dancing in the street—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me

Read the rest of this entry…

Filed under: EJIL Analysis
 
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Editorial: The Case for a Kinder, Gentler Brexit

Published on February 6, 2017        Author: 

Of course, we know better than to be shooting at each other; but the post-23 June  relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favours the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For ‘this’ one was willing to risk breaking up the Union and perhaps the UK? Read the rest of this entry…

 
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Continent in Crisis

Published on October 7, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Jan Klabbers, member of our Scientific Advisory Board, to write a Guest Editorial for this issue of EJIL (Vol. 27 (2016) No. 3).

In the early 1990s, when many were dancing in the streets to celebrate the fall of the Berlin Wall and the long-awaited arrival of the end of history in the form of a liberal victory, historian Mark Mazower was working on a book that would caution some sobriety. The victory of liberalism, he wrote, had not been inevitable, nor due to its inner charms and attractions; it had, instead, been hard-won, locked in deadly battle with the forces of totalitarianism both on the left and the right. The fact that liberal democracy came out victorious owed as much to the failings, structural and strategic, of fascism and communism as to liberalism’s own virtues. If anything, so Mazower demonstrated, Europe has always been a rich and fertile soil for totalitarian movements; the fact that these were momentarily defeated should not result in too much complacency and self-congratulations about European values and all that.

Recent events demonstrate painfully just how correct Mazower’s assessment was. While communism remains largely dead and buried (unless one counts the surprise emergence of left-wing politicians in the UK and even the US as manifestations of a resurgence), Euro-fascism is clearly on the rise again. This is visible in Hungary and Poland, where the Rule of Law has been all but abandoned or, in an alternative narrative, cynically deployed so as to undermine itself. This is visible in much of the Balkans, with governments building fences and walls to keep out people fleeing persecution and destitution. This is visible in the streets of Finland, where self-appointed vigilantes patrol the streets at night in order to fight largely imaginary crimes, and find considerable encouragement in the speech by which the President inaugurated the parliamentary year in 2016. This is visible in Denmark, which enacts laws to strip poor people of their belongings so as to pay for being treated unkindly. This is visible in the streets of Germany and the Netherlands, with Pegida demonstrations demanding attention. This is visible in Ukraine, where the streets are filled with Russian militias. This is visible in the United Kingdom’s rediscovered isolationism mixed with delusions of grandeur. This is visible, in short, all over Europe: the triumph of liberal democracy is quickly giving way to the triumph of what can only be called some kind of fascism. And it is not limited to Europe, if the presidential campaigning in the US is anything to go by: who would have thought, even a few months ago, that a vulgar loudmouth such as Donald Trump, not hindered by any trait of common decency, would stand any chance of success? Read the rest of this entry…

Filed under: Editorials, EJIL, European Union
 
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There is Chutzpah and Then There is David Cameron

Published on October 6, 2016        Author: 

It is hard to translate the Yiddish word Chutzpah. Cheek doesn’t quite capture it. ‘What a cheek’ is not the same as ‘What Chutzpah’. Chutzpah involves a certain brazenness. ‘What Chutzpah’ is usually associated with a rubbing of the eyes or a shake of the head in disbelief. Even a kind of perverse admiration. The classical example of Chutzpah is the son who kills his mother and father and then turns to the judge and pleads: Mercy, I’m an orphan.

Cameron has taken Chutzpah to new heights.

A good place to start would be in the final weeks of the campaign when Cameron’s refrain was ‘Brits don’t Quit!’ Rub your eyes – this from the Brit who just months earlier had presented his ‘either we get this and this and that or, well yes, we quit’. Takes some nerve, does it not? Of course to have any credibility in his pre-referendum Brussels negotiations he would have to sell himself and his country as ready to quit.

You would think that in playing against the grain of ‘Brits don’t quit’ there would have to be something huge at stake. You may just remember the weeks that became months when the world and its sister were waiting for him to present his list of demands. You will certainly not have forgotten the disdainful disbelief from all and sundry when he finally presented his Potage of Lentils – that thin gruel of demands for which he was willing to gamble the future of the UK membership of the European Union and much more.

It was also an insult to one’s political intelligence. As a ploy to address internal party politics – the real reason behind the whole unfortunate manoeuvre – did he really believe that even if his demands were met in full (and they mostly were) this would keep the wolves at bay? Even more damning in my view, it was clear that Cameron never grasped the serious problems of the European construct which, if one were to use the ‘nuclear option’ of threatening to quit, could and perhaps should have been raised. Read the rest of this entry…

Filed under: Editorials, EJIL, European Union
 
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‘Brexit’, Article 50 TEU and the Constitutional Significance of the UK Referendum

Published on July 6, 2016        Author: 

This post tries to answer two questions:

First, who has the right to trigger the process of Article 50 TEU under the UK constitution? Second, what is constitutional significance of the UK referendum?

Article 50 TEU is the provision that governs the process of withdrawal of an existing EU Member State from the Union. The provision was introduced by the Treaty of Lisbon and it has not been used thus far. This provision is drafted in a way that is not too prescriptive with the clear intention for allowing a considerable margin for manoeuvring in the ensuing negotiations.

Article 50 (1) stipulates that a Member State may decide to withdraw from the Union in accordance with its own constitutional requirements whereas Article 50 (2) provides that the relevant Member State must notify its intention to the European Council.

It is clear that once the process of Article 50 begins, the negotiating position of the Union is strengthened. This is because Article 50 (3) TEU imposes a time frame for the completion of negotiations (two years). If at the end of this period the EU and the Member State fail to reach an agreement, the Treaties cease to apply to that Member State thus leading to a disorderly withdrawal. The two year period may be extended by the European Council acting unanimously. Since the costs of a disorderly withdrawal are apparently higher for the Member State that leaves the Union, it is obvious that the two year time-frame hangs like a sword of Damocles over its shoulders. This means that the question of when the process begins and on whose initiative is critical.

The ‘who’ and ‘when’ under the UK Constitutional Arrangements Regarding the Invocation of Article 50 TEU

The question of who has the power to trigger Article 50 TEU has attracted a deserved amount of attention by scholars and commentators. Most of the scholars agree that EU partners cannot trigger the withdrawal process (see for example Marl Elliott, Sionaidh Douglas-Scott, Nick Barber, Tom Hickman and Jeff King).

This is certainly the case from a legal point of view however, it is possible for the EU to increase the pressure on the UK to trigger the renegotiation process. How? Read the rest of this entry…

Filed under: EJIL Analysis, European Union
 
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Brexit and Hamilton’s King George: You’ll Be Back and What Comes Next

Published on June 28, 2016        Author: 

If I may be forgiven for lowering the level of conversation (yet again) after the excellent post by Jure Vidmar & Craig Eggett and Larry Helfer’s post over on Opinio Juris discussing many important legal issues – I just wanted to share a (rare) happy Brexitian thought. In Broadway’s smash-hit Hamilton, coming soon to London’s West End, King George sings a delectable British Invasion-y break-up song to his American soon-to-be-ex subjects (“You’ll Be Back”) and then follows up with two shorter songs on the same tune (one of them, “What Comes Next”, works magnificently here as you’ll see). Now, I concede that the analogy is imperfect, but humour me. Just picture in your head Donald Tusk or (better yet) Jean-Claude Juncker at his charming best, belting this out to Britain on behalf of the EU. Got that? Hold that in, take a breath. Then listen, read the lyrics below, and tell me you can’t feel the magic. Am I right or what?

 

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Filed under: EJIL Analysis, European Union
 
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Brexit: Is everything going to change in law, so that very little would change in fact?

Published on June 27, 2016        Author: 

‘A full calorie Brexit or Brexit lite?’, Marko Milanovic has asked on this blog. The different modalities of Brexit are rooted in Article 50 TEU, which foresees a period of two years to negotiate the precise terms of UK’s exit and a future relationship between the UK and the EU. Moreover, the referendum does not have any self-executing legal effects. It will now be on the UK government to decide when (and whether?) Article 50 should be triggered. We agree with Marko’s excellent analysis and believe that, in principle, a number of lite exit diets could be created. What is also possible is that we would get three parallel Brexits, some with more calories than others. England and Wales could leave on different terms than Northern Ireland (which may at least theoretically even stay via the Republic of Ireland); and it is possible that Scotland would continue the UK’s membership with some revisions – and as an independent state.

Brexit lite: replacing EU law with international treaty law

Article 50 does not exclude – perhaps it even encourages – the conversion of a full-fledged membership into a ‘Switzerland-plus-minus’ arrangement. Hence the phrasing in Article 50(2) TEU: ‘[T]aking account of the framework for its [of the exiting member state] future relationship with the Union.’ If it were envisaged from the outset that this relationship would be the same as the relationship between the Union and e.g. Panama, this phrasing would have been completely redundant. Yet, any Conservative PM would probably have difficulties accepting a single market deal with the present free movement of people package. It is difficult to imagine, on the other hand, that the EU could give the UK an asymmetric free movement deal, without people. But then, there is some room to manoeuvre. Read the rest of this entry…