Remain campaigners claim that on leaving political and judicial union with the EU Britain would immediately lose access to free trade deals with 51 states and would then have to renegotiate its own bilateral deals.
Potentially, this appears to be a major problem. Currently the European Union lists 853 bilateral treaties on its treaty database, together with 258 multilateral agreements. Of those 1,111, 250 are classified as trade agreements.
These cover a vast range of subjects from the “Agreement between the European Union and the Republic of Moldova on the protection of geographical indications of agricultural products and foodstuffs” to the “Agreement on fishing between the European Community and the Kingdom of Norway“.
However, those making these assertions are either unfamiliar with international law or they are being deliberately disingenuous. In this specific context, we are dealing with the problem of continuity of treaties (which is what free trade deals are) following a change of status of the contracting parties.
This is a problem that has come up before.
For example, the “velvet divorce” between the Czech Republic and Slovakia created precisely this problem. It was resolved when on 19 January 1993 the two republics were admitted to the UN as new and separate states. In respect of international treaties, they simply agreed to honour the treaty obligations of Czechoslovakia.
The Slovaks transmitted a letter to the Secretary General of the United Nations on 19 May 1993 expressing their intent to remain a party to all treaties signed and ratified by Czechoslovakia, and to ratify those treaties signed but not ratified before dissolution of Czechoslovakia.
This letter acknowledged that under international law all treaties signed and ratified by Czechoslovakia would remain in force. For example, both countries are recognized as signatories of the Antarctic Treaty from the date Czechoslovakia signed the agreement back in 1962.
Something similar can apply when the UK leaves the EU. What happens is that we can rely on a general presumption of continuity that is held to exist by many authorities on international law, as expressed in the basic primers.
There is even a formal template that can be followed, in the form of the Vienna Convention on Succession of States in respect of Treaties. And although the UK has not acceded to this Convention, it doesn’t really matter. The Czechs and Slovaks basically followed it, even though it was not then in force. The presumption of continuity was sufficient.
The Convention sets out the procedures for carrying over treaties where all parties agree to their continuation. It allows a succeeding state – in this case the UK – to establish its status as a party to existing treaties by way of a formal notification of succession lodged with the depository of each treaty.
Continued participation in the treaties will normally require the consent of all the parties, though it is unlikely that many parties would seek to withhold consent because in many cases third countries are beneficiaries of the treaty provisions.
A good example is the Mutual Recognition Agreement on Conformity Assessment between the EU and Australia, which allows Australia to export specific goods to EU Member States. In this case, it would be irrational and inexplicable for Australia to withhold consent.
An issue may arise as there is a distinction between treaties made jointly between the European Union and its component Member States, and other parties (whether bilateral or multilateral) – the so-called “mixed” treaties, and those concluded only between the European Union and third parties, such as under the Lisbon Treaty Article 207 powers, known as “exclusive” treaties.
There is a possibility that the Vienna Convention procedure might not apply to the exclusive EU treaties. In this case, the UK has no direct locus and, on withdrawal from the EU, might have no part in such treaties. However, given the political will of both parties that mutually benefit from the agreement; the principles of the Vienna Convention could be deemed to apply.
In any event, there are currently very few exclusive treaties, with the EU treaty database listing only 17 made under Article 207, of which only three relate to trade, of the 250 trade agreements listed in the database. Renegotiating these would not present any great problems.
Even then, there is a further option which would avoid the possibility of being held to ransom by third countries which do not consent to an independent UK as a treaty partner.
This would involve an agreement with the EU of a limited treaty giving Britain notional membership status for the strict and exclusive purpose of taking advantage of third country treaty provisions. Any such arrangement would most certainly be of limited duration and adopted only to give time for selective renegotiation and/or re-enactment with the original parties to the third country treaties.
More likely, though, the presumption of continuity will suffice. Treaty continuity is a minor administrative problem – nothing more.
The article was originally published by the author 1 March 2016 http://thescepticisle.com/2016/03/01/under-the-principle-of-continuity-the-uk-will-not-have-to-renegotiate-its-trade-deals/