International agreements during the implementation period
The UK Government has published a Technical Note on International agreements during the implementation period, which considers the UK’s status under the large number of international agreements between the EU and non-EU third countries during any implementation period following the UK’s departure from the EU. The UK is currently party to these agreements by virtue of its membership of the EU, but that will end on Brexit day.
Talks between the EU and the UK have moved on to the subject of a transitional or ‘implementation’ period, which is expected to last for a period of around two years immediately following the UK’s departure from the EU. There have been suggestions that, as far as possible, the status quo would be preserved during this time: for example, the UK would be bound by the EU acquis and all four freedoms would continue to apply. However, there has been uncertainty as to whether or how the UK could continue to benefit from the EU’s international agreements during such period.
According to the Note, which covers only bilateral and not multilateral agreements, the UK proposes that these third country agreements … should continue to apply to the UK in the same way for the duration of the implementation period.
The precise legal basis for this aspiration is, however, unclear. As the report acknowledges, the UK will no longer be a member of the EU from the end of March 2019.
However, according to the Note, the best approach would be for the parties to confirm that, for the duration of the implementation period, these agreements continue to apply to the UK and that the UK is to be treated in the same way as EU Member States for the purposes of these agreements. This would be achieved by agreement of the parties to interpret relevant terms in these international agreements, such as “European Union” or “EU Member State”, to include the UK. The Note also cites in aid, Article 31 of the Vienna Convention on the Law of Treaties, which provides that a treaty is to be interpreted in its context, which can include a subsequent agreement between the parties regarding its interpretation or application.
What is only briefly touched on, however, is that the agreement of ‘the parties’ would require the agreement of the third countries rather than simply the EU. While the objective of the Government’s proposal would clearly help to preserve continuity during any implementation period, whether all necessary agreements can be achieved in the 13 months left until Brexit remains to be seen.
Moreover, there is a noticeable disconnect between the UK seeking agreement from third countries that existing agreements should be construed as if the UK were start part of the EU, while at the same time seeking to promote an independent trade policy, separate from the EU.