Brexit Legality: Evaluating the Impact and Legality of Brexit

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LLM
Brexit Legality

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Abstract
Brexit is used as an abbreviation of “British exit”, and it is referred to the United Kingdom’s
plan to depart the European Union. The official referendum of Brexit was approved on June
23rd 2016, and the reaction was a mixture of shock, fear, dismay and even anger. There were
many concerns regarding whether the decision of Brexit is legal or not and how will it
impact key stakeholders such as Member States of EU, citizens, businesses and others.1
While determining the legality of Brexit, it is important to evaluate the Vienna Convention
on the Law of Treaties (VCLT). This is a treaty which focuses on evaluating the applicability
of international law on treaties which are formed between states. This treaty was adopted
on June 23rd 1969, and it was forced on January 27th 1980.2 Brexit is an international treaty
between the UK and the EU and treaties are legally binding on states based on the
provisions given under the VCLT. The legality of Brexit has been in the controversy since its
introduction based on which it is important to understand its impact on key stakeholders
who are affected by this decision. This paper will evaluate the decision of Brexit and its
impact on different parties who are affected by this decision. The legality of Brexit will be
evaluated in this paper by evaluating the principles of the Vienna Convention on the Law of
Treaties.
In order to determine the legality of Brexit, it is important to understand the impact of this
decision on different parties. One of the biggest risks with Brexit is that no other country has
ever departed from the European Union before. There are various pros and cons of this
decision which affects many parties. One of the key issues is highlighted by Brexit
campaigners told the voters that the United Kingdom would no longer be held responsible
for paying into the budget of the European Union.3 Although this statement is true;
however, they probably would not be saving as much of the capital as told. For example, the
United Kingdom was liable to pay for £18 million in contributions in 2015. However, this
amount was reduced due to the rebate program which was set up by Prime Minister
1 Harold D Clarke et al., Brexit (Cambridge University Press 2017).
2 August Reinisch, ‘Articles 30 and 59 of the Vienna Convention on the law of treaties in action: the decisions
on jurisdiction in the Eastern Sugar and Eureko investment arbitrations’ (2012) 39 Legal Issues of Econ.
Integration 157.
3 Sara B Hobolt, ‘The Brexit vote: a divided nation, a divided continent’ (2016) 23 (9) Journal of European Public
Policy 1259-1277.

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Margaret Thatcher. As per this program, a rebate of £5 million was given to the United
Kingdom. Additionally, the EU spends £4.5 billion in the UK in 2015 that brings the net
contribution of the country to £8.5 billion.4 A major crisis triggered by Brexit is related to
immigration that swept across Europe in the last couple of years. Many argue that the
wealthier nations such as the United Kingdom must aid immigrants by providing them
opportunities for placements and jobs.
After the decision announcement of Brexit, the number of immigrants increased from
285,000 to 330,000 from which 184,000 were from the EU.5 It shows that the decision of
Brexit is changing the economic landscape due to the nationalistic attitude of the people
who support the decision of Brexit. Many argue that the decision of Brexit is racist and the
objective of the UK is to reduce the number of immigrants in the country from the EU. Many
argue that the decision of Brexit is a wakeup call for rising inequality and low growth in
countries which is adversely affecting the citizens.6 Immediately after the announcement of
Brexit, the pound fell to its lowest value in decades. However, people who were involved in
this decision were ready for a similar backlash that was not surprised by this response. After
the loss of Brexit referendum, the former Prime Minister, David Cameron, quickly stepped
towed from this post which left, Theresa May, former home secretary to take the position of
the Prime Minister and continue with the referendum of Brexit. Although the UK has re-
established itself as a truly independent nation after Brexit; however, there are many
limitations relating to travel, leisure and work which are enjoyed by citizens within EU
borders.7 This decision will affect the economy and trading practices of the country since it
will be difficult for the country to maintain trading ties with EU nations.
The House of Lords reached two legal conclusions in relation to the legality of Brexit. It was
held that Article 50 of the Treaty on European Union (TEU) recognises the right of UK to
leave the European Union without facing any financial obligations under the EU budget and
related financial instruments unless the parties have concluded a withdrawal agreement to
4 Gianluigi Vernasca, ‘The UK’s EU rebate – explained’ (2016) <https://theconversation.com/the-uks-eu-rebate-
explained-58019> accessed 18 February 2019.
5 BBC, ‘Net migration to UK rises to 333,000 - second highest on record’ (2016) <
https://www.bbc.com/news/uk-politics-eu-referendum-36382199> accessed 18 February 2019.
6 Italo Colantone and Piero Stanig, ‘Global competition and Brexit’ (2018) 112 (2) American Political Science
Review 201-218.
7 Matthew J Goodwin and Oliver Heath, ‘The 2016 referendum, Brexit and the left behind: An aggregate level‐
analysis of the result’ (2016) 87 (3) The Political Quarterly 323-332.

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resolve the issue.8 Moreover, the jurisdiction of the Court of Justice of the European Union
(CJEU) will no longer be imposed over the UK, and it will also result in ceasing the effect of
EU Treaties on the UK. Due to this change in position, any outstanding payments against the
UK cannot be enforced through CJEU. In order to avoid the legal binding of the Withdrawal
Agreement of the UK, the principles of VCLT can be applied. This agreement is considered as
a treaty which is formed between the EU (an international organisation) and the UK (a
state). This treaty is defined as an agreement between these two parties as per the VCLT.
However, the Vienna Convention in relation to international organisations is not yet in force
based on which the Leigh amendment does not have the right to claim that the Vienna
Conventions applies, but still it applies.9 The VCLT provides a very strong guide in relation to
the rules of international law. Many argue that this Withdrawal Agreement can be
constituted as a ‘material breach’ of the provisions given under Article 60 or it can be
considered as a ‘fundamental change of circumstances’ given under Article 62 in the VCLT
through which the UK might by unilaterally denounce to terminate the agreement.
However, proving material breach is extremely difficult, and a fundamental change of
circumstances will lead to backstopping the meaning of the VCLT.10
One of the key issues with the Withdrawal agreement is the legal system of the UK and the
EU27 citizens who have moved. In order to address these issues, talks can begin between
the UK and EU after Brexit. The Joint Report is not a treaty itself based on which it cannot
create legally binding obligations until and unless the second phase of talks began and
concluded between the UK and the EU. The ‘Joint Report’ is referred to the agreement that
included the negotiations made between the UK and 27 Member States of the EU. This
agreement comes into force after the signatures of the parties. However, this agreement did
not fulfil the formal requirements in order to define it as a “treaty”. As per the provisions of
the Vienna Conventions, the key issue with this agreement is the lack of “consent to be
bound” by the parties.11 Based on the lack of this element, it can be concluded that the
8 Michael Waibel, ‘The Brexit Bill and the Law of Treaties’ (2017) < https://www.ejiltalk.org/the-brexit-bill-and-
the-law-of-treaties/> accessed 18 February 2019.
9 E Sinclair, S Stagnell and S Shah, ‘Brexit and dentistry’ (2016) 220 (10) British Dental Journal 509.
10 Gavin Barrett, ‘How Article 127 of the EEA Agreement could keep the UK in the
single market’ (2017) < http://eprints.lse.ac.uk/69408/1/blogs.lse.ac.uk-How%20Article%20127%20of%20the
%20EEA%20Agreement%20could%20keep%20the%20UK%20in%20the%20single%20market.pdf> accessed 18
February 2019.
11 Steve Peers, ‘The Brexit deal is not legally binding – but politically, it's a different story altogether’ (2017) <
https://www.independent.co.uk/voices/brexit-deal-european-union-eu27-withdrawal-bill-8-december-is-it-