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.
Renegotiating them as a single country, they
claim, would take many years. Years in which British businesses would be
squeezed out of traditional markets and with no guarantee at the end of the
process we could get terms as good as we have now.
was actually true, it would 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.
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.”
There is a further distinction as 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
On the face of it, Britain is excluded from all
treaties once it leaves the EU. Therefore, it would appear that each treaty
will have to be examined and, where necessary, the agreements between Britain
and the relevant third countries renewed.
That is the thrust of the "remain"
lie. The administration and negotiations potentially required in such an event,
together with the procedural requirements associated in maintaining treaty
continuity, could on the face of it take longer than the Article 50
negotiations needed to exit the EU. They would prove resource intensive, and
probably outstrip our current diplomatic capabilities.
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.
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.
Exactly the same option would be available to the UK. It
would, of course, need to prepare the ground before committing to an Article 50
notification – which is another reason why we would be unwise to go ahead
alternative arrangements are in place, an exit agreement with the EU would hold
no terrors. As we dropped out of the EU treaties, we would simply invoke the
procedures leading to treaty continuity.
Conveniently, there is also a template which the UK could
use, in the Vienna
Convention on Succession of States in
respect of Treaties, even though it is not a party to it. 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.
This procedure, however, might not apply to exclusive EU
treaties, where the EU as the contracting party concluded the agreement on
behalf of its members, without the individual members acting as contracting
case, the UK has no direct locus and, on withdrawal from the EU might have no
part in such treaties. But there again, the principles of the Vienna Convention
could be deemed to apply, given the political will. In those cases, where the
third country is the beneficiary – as in the Mutual Recognition Agreement on
Conformity Assessment between the EU and Australia – it would be economically
detrimental and therefore irrational for that country to withhold consent.
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.
Nevertheless, there is an 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.
would involve an agreement with the EU of a treaty giving Britain notional
membership status for the strict and exclusive purpose of taking advantage of
the third country treaty provisions. Any such arrangement would most certainly
be of limited duration, giving time for selective renegotiation and/or
re-enactment with the original parties to the treaties.
Even if a
few have to be renegotiated, that is not necessarily a significant problem.
Talks would likely be relatively trouble-free and speedy to conclude. For
instance, on third country trade deals with developing and less-developed
countries, the UK may be willing to offer more generous terms than were
available from the EU, in return for a speedy conclusion of deals.
instance the EU is currently demanding that Kenya (and EAC partners)
progressively reduce tariffs on imports, the UK may be more inclined to carry
over ACP arrangements in the interests of promoting employment and development,
all with a view to reducing migration pressure.
groundwork already done, draft treaties might be in place long before the
Article 50 deadline supervenes.
that thus arises is that third country treaties are manageable. For the most
part, ensuring continuance is a relatively minor administrative task that can
be resolved relatively simply. There is no question of any need for major
rest, there is a premium on negotiation, which will form part of the Article 50
exit agreement, but there is nothing which cannot be resolved with goodwill on
there is the get-out-of-jail-free card. Should we take the option of joining
EFTA, then we can rely on Article 56(3), which allows
for state acceding to the Association to apply to become a party to EFTA free
potentially, is a huge short-cut. Parallel negotiations with EFTA, while
Article 50 negotiations are in progress, could allow for an orderly transition.
As we leave the EU, we could arrange it so that the EFTA agreements could kick
in at the same time.
Needless to say, nothing of
this will come from the "remains". But the facts are the facts. Third
country deals are not a crisis. They are an opportunity.