The draft Withdrawal Agreement and international treaties
One of the often overlooked aspects of Brexit is 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. Such agreements cover a wide variety of topics, including trade, customs, energy and transport – for example, the EU-US Open Skies agreement.
As set out previously, in February 2018 the UK Government published a Technical Note concerning bilateral agreements and proposing that these third country agreements … should continue to apply to the UK in the same way for the duration of the implementation period.
The draft Withdrawal Agreement seeks to give effect to this approach. Article 129 of the draft Withdrawal Agreement provides that during the transition period, the UK will be “bound by the obligations stemming from the international agreements concluded by the [EU], by Member States acting on its behalf, or by the [EU] and its Member States acting jointly”. In addition, a footnote to the draft text provides that the EU will “notify the other parties to these agreements that during the transition period the UK is to be treated as a Member State for the purposes of these agreements”.
Article 129 goes on to provide that during the transition period, the UK will be able to negotiate sign and ratify new international agreements entered into in its own capacity, provided they do not enter into force during the period of the transition unless authorised by the EU.
The immediate concern is the legal basis by which non-EU countries which are party to the various international agreements would be bound vis a vis the UK. Similarly, although the UK would be bound by its obligations under the international agreements as between it and the EU by virtue of Article 129, the draft Withdrawal Agreement would not provide a mechanism for the non-EU third countries to enforce the UK’s obligations under the relevant international agreements because they are, of course, not party to the Withdrawal Agreement.
The UK Government’s earlier Technical Note provided that there would need to be the “agreement of the parties to interpret relevant terms in these international agreements, such as “European Union” or “EU Member State”, to include the UK”. However, the Note only briefly touched on the point that the agreement of ‘the parties’ would require the agreement of the third countries rather than simply the EU, although the draft Withdrawal Agreement does not appear to provide for this.
Accordingly, it remains to be seen whether any of the third countries/parties will simply object that notification from the EU that the UK is to be treated as a Member State under the terms of their particular agreement is ineffective without their express agreement – not least on the basis that the UK would not in fact be a Member State during the transitional period. On a practical level, this leaves open important questions: will third countries agree that the UK can benefit from quotas agreed for the EU in trade agreements? Will UK airlines be able to fly into the US pursuant to the terms of the EU-US Open Skies agreement? As negotiations continue, businesses across all industry sectors will be anxious to ensure that there is resolution to these questions before the UK leaves the EU on 29 March 2019.