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Brexit: Treating The Renegotiations Correctly

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

This article is part of the 'Brexit' series, edited by Matt Bogdan.

With the upcoming referendum on the UK's membership of the European Union, the Brexit series intends to explore key issues surrounding Brexit, particularly what effect EU law currently has on the UK, and what would be left with it gone.

Other articles from this series are listed at the end of this article.

With the referendum on British membership of the European Union continuing to hang over UK politics, David Cameron is maintaining the view that Britain needs to remain in the EU, as long as certain reforms are successfully negotiated. He hopes that by securing opt-out clauses to prevent Britain from being drawn into an ever-closer “United States of Europe”, he will be able to persuade many members of the British public (and a significant proportion of his Cabinet) that Britain can enjoy the benefits of EU membership without experiencing some of the ‘issues’ that (may be perceived to) come from further European integration.

The general consensus among the British media is that negotiations are going badly. And, the debates concerning the medium by which Britain could alter its relationship with the EU entered into the realm of legal perplexity on the 20 October 2015.

During the Today Programme on Radio 4, Foreign Secretary Philipp Hammond explained that the government was hoping to secure a legally binding agreement, but not a treaty, to enshrine a new deal between Britain and the EU, which would most likely include opt-out clauses and new provisions preventing Britain from being drawn in to the ‘ever-closer Union’.

This rather contradictory statement has left many lawyers and journalists confused about just how exactly the government are intending to alter the terms of Britain’s relationship with Brussels.

This article will aim to outline the extent to which Hammond’s comment showed a misunderstanding of international law, and seek to propose a more successful, pragmatic method by which Cameron could successfully implement renegotiations.

What is a Treaty?

Treaties are express agreements between States. They bear a close resemblance to contracts, because they can create legal rights and impose binding legal duties and obligations. They can also be referred to by lots of different names — treaties, conventions, charters — but all refer to the same kind of transaction: the creation of a written agreement whereby States bind themselves legally to act in a particular way and laying out the conditions and arrangements that govern this action. For some writers (particularly Soviet writers such as Grigory Tunkin) this explains why treaties constitute the strongest possible source of international law, as they can only be entered into following the express consent of the ‘contracting’ parties.

How Significant Are They?

The extent to which treaties are the most important source of the international law is debated, with many academics suggesting that custom is more important. Indeed, in the Nicaragua case, the International Court of Justice (ICJ) established that even where a treaty covering the same ground as a customary rule is created, the latter will not be absorbed into the former; instead, they will co-exist. In that case, it was held that the inherent customary international law right to self-defence was not subsumed or supervened by article 51 of the UN Charter.

Nevertheless, treaties can be considered to be a highly significant source of law. They are referred to by Article 38(1)(a) of the Statute of the ICJ — widely-accepted as the best expression of the sources of international law — as one of the main sources of international law. Here, it is stated that the Court, in order to resolve disputes of international law, shall apply:

International conventions, whether general or particular, establishing rules expressly recognised by the contracting States.

Nevertheless, the relative influence of international treaties can vary, so far as their capacity to become internationally-binding is concerned.

Some treaties can be law-making, intended to have universal or general relevance. These treaties, of which examples include the Antarctic Treaty and the Genocide Convention, allow States to elaborate upon their perception of international law. They usually require the participation of a large number of States, and may ­­— in a variety of ways — consequently produce a legal principle that will universally bind and become normative.

For example, a treaty could be the codification of a customary international law principle, meaning that it can be perceived as being universally-binding: it is a mere reaffirmation of an already universally-binding rule, and offering the advantage of clarity as to the state of law on a particular topic.

It is worth mentioning that the breaching of customary international law and an international treaty results in the same remedy, unless provided otherwise in the treaty. Indeed, the ICJ has applied the law of state responsibility to find the appropriate remedies for treaty breach, like they did in the Gabčikovo-Nagymaros Project case, using the hierarchy of remedies set out in 'The Responsibility of States for Internationally Wrongful Acts' document. This include the ability for a claimant state to take ‘countermeasures’ under article 22, and the requirement of the defendant state to make ‘full reparations’ under article 31.

Or, as was held by the ICJ in the North Sea Continental Shelf case, a particular provision in a treaty that is of a ‘fundamentally norm-creating character’ could be capable of forming the basis of a general rule of international law, thereby allowing that treaty to create a piece of binding customary international law governing all States – not just those party to the original treaty.

Other treaties may also be constitutive, creating international institutions and acting as constitutions for them by outlining their duties and powers.

A further possibility is that those treaties which aim to establish a regime will also be extended to non-parties. The UN Charter, for example, declares in article 2(6) that:

the organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

In contrast, some treaties can be thought of as ‘treaty-contracts’, which merely regulate limited issues between a few states. The general rule here was articulated in North Sea Continental Shelf, where the ICJ held that States which do not sign and ratify a particular treaty are not bound by its terms.

As a result, treaty-contracts are not law-making instruments. However, they may provide evidence of customary international law; for instance, a number of bilateral treaties containing a similar rule may provide evidence for the existence of a customary one. Nonetheless, this proposal must be approached with a degree of caution, for bilateral treaties have the tendency to reflect discrete circumstances that cannot be practically applied elsewhere.

Despite the above discussion as to the universality of the binding nature of a treaty, there is nothing that can be cited so as to render Hammond’s comment as anything other than a contradiction.

The simple fact is that to create a legally binding agreement between states is to create a treaty in international law, no matter what term would be used to describe it. In this respect, the treaty would probably be characterised as a treaty-contract between Britain and the other 27 member states of the EU, for it would refer to specific and discrete matters.

Britain’s Options

The simple fact is that it appears securing such a treaty is almost an impossible task for Cameron, who is already not the most popular amongst the party leaders. He is having to battle through a relationship with the EU reportedly described by Downing Street as ‘toxic’, tackle the issue over which he is the only leader to have set a deadline for reform (2017), and is subject to resentment towards his handling of the EU Migrant Crisis, taking in – as almost 300 of the country’s most senior lawyers wrote in an open letter – an ‘inadequately low’ and disproportionate number of migrants compared to other states.

Furthermore, as described by Alex Barker and Peter Spiegel in the FT, it would involve him:

[S]ecuring unanimity among the EU’s 28 member states; sidestepping the European Parliament and a windy, open-ended constitutional convention; meeting the UK referendum timetable; navigating Franco-German election cycles; and avoiding changes that trigger multiple plebiscites across Europe.

To the eyes of many (potentially including himself), Cameron’s failure to secure a treaty that would revise Britain’s relationship with the EU would mean that the only option would be to withdraw, to avoid being drawn into the unwanted integration. The drawbacks of this approach are well-publicised, including the loss of access to the world’s biggest trade bloc, political influence on the world stage and the inability to take advantage of EU policy agreements such as - to name just one – that of freedom of movement, which offers to businesses, educational establishments and holiday-makers. For a more comprehensive overview of the potential economic, legal and social consequences of Brexit on the UK, see our ‘Brexit Article Series’ on Keep Calm Talk Law, of which this article is a part

Others feel that maintaining the status quo is not necessarily a bad thing, and that the problems with the EU are overblown, in particular by the right-wing press. However, this overlooks an extra option for the implementation of changes to Britain’s relationship with the EU that has both historical precedent and has lacked press or political coverage: the ‘simplified revision procedure’.

This is the most pragmatic and effective way of ensuring Cameron secures the renegotiated relationship with the EU before the 2017 Referendum that he, and many others, deem vital to ensuring victory for the Yes Campaign.

Proposed Option – ‘The Simplified Revision Procedure’

This option is a flexible mechanism whereby certain agreements and promises between EU members can be provisionally agreed, trialled, and implemented at a later date. Whilst not legally binding (therefore clearly not being referred to by Hammond), it does offer a path through which some of Cameron’s demands could be pushed, potentially accelerating them towards their desired final destination in the statute book, if things go well.

The proposal stems from article 48(6) of the Treaty of the European Union (TEU), which allows for changes to sections of the EU’s main treaties without a convention or conference of member states, thereby bypassing time pressures: such as the impending referendum in 2017.

Its introduction under the Lisbon Treaty was supported by many, including the Coalition for the Reform Treaty which suggested that the procedure could bring ‘flexibility and may prove useful when using EU policy to respond to crisis situations’. For example, this provision was used during an emergency in 2013 to push through an agreement that would later (after the ‘crisis’ had become less serious) become a paragraph to the Treaty for the Function of the European Union (TFEU), allowing the adoption of a treaty establishing the European Stabilisation Mechanism (ESM), i.e. the bailout fund for Eurozone Member States.

More critically, its introduction into the Lisbon Treaty stemmed from a precedent laid down by the ‘Edinburgh Decision’ of 1992, which the UK could cite to bolster its case.

This effectively allowed Denmark to change the fundamental treaties of the EU without formal ratification, responding to certain time pressures surrounding the Maastricht Treaty. After a Danish referendum which rejected the Maastricht Treaty, EU leaders agreed - in terms very similar to what Cameron desires - four opt-outs for Denmark that were not legally binding, for they were omitted from the Maastricht Treaty itself.

Unlike the opt-outs from the Social Charter that were once secured by Britain and cancelled in 1997 (which were based in law due to Britain’s refusal to ratify the Maastricht Treaty – see discussion above about certain treaties not binding non-parties), the Danes were working with political pledges that were upheld and stuck to, and were then later incorporated into the subsequent Treaty of Amsterdam.

Applying this precedent, which now appears to have a statutory footing in article 48(6) of the TEU, Cameron could secure political pledges that would allow for the initial (and experimental) implementation of his requested opt-outs and other treaty changes that he recently outlined in a letter to the President of the European Council, Donald Tusk:

  • A reduction in the numbers of EU migrants coming to Britain;
  • Greater protections for non-euro members;
  • A British opt-out from the EU’s commitment to ‘an ever closer union’; and
  • A comprehensive commitment to greater competitiveness within the EU.

These could be later confirmed into the respective EU treaties, after the pressing deadline of the 2017 referendum has passed.

Conclusion

This proposal is the best way forward because it offers benefits to both sides.

Cameron could return to the impending Referendum campaign with something to show undecided voters, and most of his backbench. This would allow him to regain control of his own party and put to bed talks of a Conservative split and get on with running the country.

In contrast, EU officials can prevent the loss of one of the bigger countries in the EU and not legally tie themselves to demands that they may not be fully ready to accept, to which they can also essentially give a trial run.

In this way, if the new procedures outlined in these political, non-legal agreements go well, they can be later incorporated into a new treaty. If they go badly for whatever reason, there can be further negotiations and rethinks of strategies, but without running the risk of losing the upcoming referendum, and a Brexit.

The use of the ‘simplified revision procedure’ under article 48(6) of the TEU seems to be a pragmatic, sensible, conflict-avoiding way of ensuring that many people (Mr Farage aside) who are keen to see a Brexit avoided can eat their Bratwurst/Baguette/Tapas/Pizza/Reindeer Burgers or Yorkshire Puddings in peace.

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Tagged: European Union, International Law

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