Vienna convention won't apply in case of Brexit

[rooibos]

Please take 5 minutes of your time to read these two articles:

http://blogs.channel4.com/factcheck/fac ... ions/22942

and

https://ukconstitutionallaw.org/2016/05 ... -a-brexit/

According to these legal commentators:

It is clear that EU law and the EU treaties are distinct from many other international treaties in the extent to which they give individuals rights, ‘which become part of their legal heritage’

a crucial question of the Brexit debate is what happens to these rights if the UK withdraws from the EU? Post-withdrawal, EU law would cease to apply in the UK, meaning not only would the EU treaties cease to apply, but any national law implementing EU law would have to be repealed, amended, or possibly retained. So the legal source of many, or even most, of these rights would be removed

The crucial question therefore is whether rights already exercised under EU law (such as the rights of other EU citizens currently living and working in the UK, or of British nationals currently living and working elsewhere in the EU, without the need for a residence permit, work permit or visa) would be legally recognised as ‘acquired’, and still enforceable after a Brexit?

Art 50(3) TEU, which concerns withdrawal from the EU, provides:

‘the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. ’

But Article 50 makes no specific mention of acquired rights. Nor does any other provision in the EU Treaties set out any explicit rules on protection of acquired rights. There is no legal obligation under the EU treaties for them to be taken into account.

Article 70.1(b) Vienna Convention provides that termination of an international treaty ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination

the crucial point is that the reference to ‘the parties’ in Article 70 is a reference to the parties to the treaty – i.e. States. Article 70 does not directly address individual rights. The International Law Commission, in its commentary on the scope of the identically worded predecessor to Article 70.1(b) (Article 66 draft Vienna Convention) specifically rejected an interpretation that it gave rise to acquired rights:

‘… by the words “any right, obligation or legal situation of the parties created through the execution of the treaty”, the Commission wished to make it clear that paragraph l(b) relates only to the right, obligation or legal situation of the States parties to the treaties created through the execution, and is not in any way concerned with the question of the “vested interests” of individuals.’

absent a Withdrawal Agreement which gives give clear protection of acquired rights, existing national, EU and international law does not offer a great deal of protection. So the content of the Withdrawal Agreement would be crucial. And in order to protect British citizens’ acquired rights in such an Agreement, reciprocity would be necessary (i.e. the UK would have to offer similar protections to those from other EU states). Otherwise UK citizens may sacrifice their current rights under EU law in the cause of British isolation.

[secret.simon]

It perhaps would help if the broader picture were to be looked at, rather than a very specific sub-set.

One of the major difference between the common-law legal systems of England & Wales and both sides of the Irish border and the civil law systems of the rest of Europe is limitations that they put on rights.

The common law systems of the British Isles tends towards qualified rights. So, for instance, your "right to marry" is qualified by the fact that if your spouse is from outside the EEA, you must earn a certain amount, be able to provide a house for them, etc. This is just an example, but broadly, these systems play a balancing role between various competing rights. In the example above, the state and society have the right, or at least a desire, to ensure that the spouse is not a burden on the state and the right of the society to regulate its membership. In such cases, the law plays a balancing role between such contradictory desires and rights.

Because of the unfortunate history of the European continent, their civil law systems have tended towards absolute rights. For instance, an EEA citizen has an absolute and unquestionable right to bring their spouse with them, the only grounds for refusal being national security or public health. This has been caused by the state's and social desires and rights being expressed a little too forcefully in the past (Hitler's Third Reich is the most obvious example). So, the pendulum swung the other way and now people's individual rights outrank social and the state's rights under European law. And this applies to European law from both the EU and the ECHR, which are two separate bodies.

Here is a blog post that elaborates the point above.

The risk of a pendulum is that when pulled to the extremes of either side, they swing viciously in the other direction. And one can see the pendulum of history already moving to a more state and social rights side. The EU referendum is only one manifestation of this phenomenon. Austria's presidential election is already too close to call. Right and far right parties are in power in coalition in many East European countries. In France and Germany, the twin engines of the EU, the far right Front Nationale and the AfD are expected to do well in next year's elections.

It is worth noticing that the countries that most strongly Euro-sceptic are the ones that have not had a violent revolution in their history. The UK, the Nordic countries and Austria all answer to this description.

Another thing worth noting is that in all most all these elections and in our referendum, people are broadly divided almost 50-50 between left and right. Unfortunately, democracy gives somebody getting 50.01% of the vote an absolute power to govern. That is dangerous both ways and can be fatal to the very concept of democracy.

It would be hugely ironic if the EU destroys itself by refusing to negotiate with the UK and then three years down the line, is more right-wing than even the Conservatives in the UK when it comes to immigration.

Now, coming to the articles linked to by Rooibos.

The links are broadly mostly right in stating that there will be no absolute right for EEA/EU citizens in the UK and the other way in the rest of Europe. But that does not mean that they will become illegal overnight. Our common law systems place a great deal of emphasis on fair-play and balance. Look at the HSMP judgment. It is most likely that the UK Parliament will legislate to grant qualified rights to the EEA citizens in the UK.

What will change, in the event of a Brexit, would be that the absolute rights granted by the EU treaties would be replaced by qualified rights granted by the UK Parliament. But I highly doubt that anybody already in the UK will lose their right to live in the UK.

Also a hat-tip to him for referencing a well-written and well-maintained blog. I recommend that specific blog to all.

[the3rdman]

Am I wrong to think that without a withdrawal agreement, then EU laws apply until there is such an agreement, or until the UK formally leaves the EU?

As per:

‘the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. ’

[rooibos]

Am I wrong to think that without a withdrawal agreement, then EU laws apply until there is such an agreement, or until the UK formally leaves the EU?

As per:

‘the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. ’

Interesting. It surely puts things in perspective.

However, from a practical point of view, once the exit procedure has started, what is the point of binding to a Treaty that has just been repealed? What sanction could possibly come.

If anything, nothing better than a few televised deportations to put pressure on the EU during the negotiations.

I know most of you will this this won't happen but you never know.