Legal debates about Brexit have mostly focused on the legal issues that arise under EU law and UK law and the impact of Brexit on the EU and UK. A recent book edited by Juan Santos Vara and Ramses A. Wessel analyses the international dimension of Brexit. The book examines the implications of Brexit for the external relations of both the EU and UK.
Researchers at City Law School – Professor Elaine Fahey, Professor Panos Koutrakos and Jed Odermatt – contributed chapters that examine some of the challenges arising from the UK’s departure from the European Union, with a focus on the international dimension.
The Cross-Channel Reach of EU Law in the UK Post-Brexit
Professor Elaine Fahey’s chapter discusses the ‘The Cross-Channel Reach of EU Law in the UK Post-Brexit’. The chapter considers how Brexit is likely to become a highly unique instance of the global reach of EU law, starting from levels of alignment that are unprecedented in the global legal order. Recent empirical work from political economy scholars suggests that global reach or the Brussels effect does not happen with partners and is misunderstood as to its institutional format. Clearly, the EU advocates more than rule-transfer to prospective and current partners. Brexit constitutes a microcosm of such developments.
The impossibility of repeal of EU standards and rules is a likely outcome of globalisation, not Brexit, where many international standards increasingly replicate EU standards and EU standards and rules are obligated to incorporate, replicate and help improve international standards carefully. The UK also faces the veritable impossibility of repeal of many EU rules and standards unlike any other third country where so many businesses, associations, trade bodies etc have EU rules inbuilt into their systems, organisations and practices. There is a significant danger that the reach of EU law is grossly underestimated and how it could become a punitive dimension of future political discourse. The UK Act as a ‘repeal’ mechanism was quickly overshadowed by the need for legal certainty and stability through the incorporation of EU law. Domestic efforts in legislation to temper the contours of interpretative powers are mostly political acts for domestic consumption and little regard appears to be had for the cognitive dissonance arising from retaining vast quantities of EU law that will become outdated and maintaining an awkward legal and political hold over this situation.
It is striking that the reach of EU law outside of trade agreements or required alignment with EU law with third country partners in trade agreements is not framed clearly by the EU. The EU has seldom been depicted in this emerging literature, never mind as a rule-maker. It is also worth stating that so-called essential elements clauses commonly found in EU trade agreements or Strategic Partnership Agreements alongside of new generation framework agreements do not ‘pin’ the conduct of the third country to comply with all of EU law or even sectorally. Brexit has exposed many of these under- explored nuances in the search for clarity on what a withdrawing former Member State can and should expect in negotiations. There are likely no easy solutions but it seems abundantly clear that there will be significant reach of EU law across the Channel post-Brexit, even if not mediated through the language of rule-taking.
The chapter considers five themes: 1) Global governance perspectives, 2) EU law and EU international relations and the reach of EU law, 3) political economy and regulatory alignment with the EU, 4) EU law and international agreements on human rights and values regression and conditionality and 5) domestic UK provisions on EU law post-exit on the retention of EU law.
Brexit and Trade Agreements
Panos Koutrakos’ chapter is entitled ‘Managing Brexit: Trade Agreements Binding on the UK Pursuant to its EU membership’. Its starting point is the conception of Brexit as the great disruptor which would unshackle the United Kingdom from the heavy-handed and inflexible trade policy imposed by the European Union. And yet, a lot of time and energy has been spent seeking to ensure continuity of the EU’s trade agreements. This chapter unpacks the relationship between the rhetoric of rupture and the practice of continuity in relation to international trade agreements that were binding on the UK pursuant to its EU membership.
The chapter examines the status of these agreements under the UK–EU Withdrawal Agreement and analyses the roll-over agreements that the UK has negotiated with third countries over the last couple of years. Koutrakos provides examples of significant differences between the original EU agreements and the rollover agreements and points out the considerable lack of transparency which has characterised the negotiation of the latter. The chapter also explores the formidable challenges that the UK will face in its effort to shape its international trade policy whilst ensuring continuity.
International Legal Sovereignty
The chapter by Jed Odermatt turns to the issue of ‘international legal sovereignty’. The debate about the UK’s membership of the European Union often revolved around the issue of sovereignty. These debates often focus on the UK’s internal, or Westphalian sovereignty (the absence of external rule) and ‘taking back control’. As the UK develops its own foreign policy, outside the Union, it also faces with questions related to international legal sovereignty the (juridical equality of states). The chapter explores how the UK’s withdrawal from the Union has also uncovered ‘sovereignty questions’ for the UK’s international relations. It discusses the UK’s relationship with Palestine, Cyprus (Sovereign Base Areas and Northern Cyprus) and Western Sahara, as examples of how sovereignty questions arise through Brexit. It shows how the Brexit process is not only related to internal sovereignty, but also reveals the UK’s conception of international legal sovereignty.
Although EU membership never jeopardized the UK’s international legal sovereignty, the Brexit process reveals how issues of international legal sovereignty remain when the UK seeks to define its relationship with these territories. This process also reveals how the UK’s history as a colonial power has also shaped its conception of sovereignty. The territories discussed in the chapter may not be strategically or economically important to the UK nor the EU, and they have not featured in debates about the UK’s foreign policy after Brexit. Yet these relationships show how the issue of sovereignty, and the confusion caused by the different conceptions, will persist after Brexit.
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For more information about research related to Brexit and EU Law, visit the Institute for the Study of European Law, the International Law and Affairs Group, the Jean Monnet Chair in European Law and Jean Monnet Chair in Law and Transatlantic Relations.
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