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Brexit and Acquired Rights

  • Michael Waibel (a1)

On March 29, 2017, the U.K. Government triggered Article 50 of the Treaty on European Union (TEU) on withdrawal from the European Union following a referendum on June 23, 2016 in which 51.89 percent voted for the United Kingdom to leave the European Union. As a hybrid provision, the much-discussed withdrawal provision in Article 50 TEU is part of EU law yet also anchored in public international law. Although the European Union is a unique, supranational organization that creates rights for individuals that are directly effective in national law, its member states created the European Union based on traditional treaties under international law.

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1 House of Lords, Brexit and the EU Budget (House of Lords Paper 125, Mar. 4, 2017).

2 Id. at para. 153.

3 David Davis, EU Exit Negotiations, Written Statement (Jul. 13, 2017).

4 Brexit: “Significant Differences” over Exit Bill Says Davis, BBC (Sept. 5, 2007). See generally Alex Barker, The €60 Billion Brexit Bill: How to Disentangle Britain from the EU Budget (Centre for European Reform, Feb. 2017).

5 States are free to confer rights on nonstate actors such as international organizations. Article VCLT 36 VCLT is limited to protecting third states against rights without their assent due to their sovereignty; see Michael Waibel, The Principle of Privity, in Conceptual and Contextual Perspectives on the Modern Law of Treaties (Dino Kritsiotis & Michael J. Bowman eds., forthcoming).

6 As in the previous section, the focus is on whether customary international law protects such acquired rights. It leaves aside the issue of whether EU or U.K. law protects acquired rights of EU citizens. See Sionaidh Douglas-Scott, What Happens to “Acquired Rights” in the Event of a Brexit?, U.K. Const. L. Ass'n Blog (May 16, 2016) (because Article 50 TEU does not mention acquired rights, EU law does not protect acquired rights). It also does not consider alternative bases for claims against the United Kingdom because of Brexit, such as investment treaties and the European Convention on Human Rights. See Holger Hestermeyer, Can Investors Sue the UK over Brexit, U.K. in a Changing Europe Blog (July 4, 2017) (noting significant hurdles to successful investment treaty claims of the United Kingdom, but also cautioning that some tribunals might regard Brexit as a fundamental change of the regulatory regime in the United Kingdom). For example, Article 1 of the First Protocol to the European Convention on Human Rights protects the “peaceful enjoyment of possessions,” which under the Euroean Court of Human Rights' jurisprudence can cover “legitimate expectations.” See Vaughan Lowe, Written Evidence, EU Justice Sub-Committee, U.K. Parliament, (Sept. 2, 2016).

7 Pierre Lalive, The Doctrine of Acquired Rights, in Rights and Duties of Private Investors Abroad 145, 165 (1965).

8 A. A. Fatouros, International Law and the Third World, 50 Va. L. Rev. 783, 802 (1964). On the rule of maintenance in earlier state succession cases, see Ernst Feilchenfeld, Public Debt and State Succession (1931).

9 Daniel Patrick O'Connell, The Doctrine of Acquired Rights and State Succession, 27 Brit. Y.B. Int'l L. 92 (1950).

10 Ana Stanic, Financial Aspects of State Succession: The Case of Yugoslavia, 12 Eur. J. Int'l L. 751, 778 (2001); Martti Koskenniemi, Report of the Director of Studies of the English-Speaking Section of the Centre, in The Centre for Studies and Research in International Law and International Relations (2000), 90–96; August Reinisch & Gerhard Hafner, Staatensukzession und Schuldenübernahme (1995).

11 Case 26/62, Van Gend en Loos, 1963 E.C.R. 13 (a leading case on the character of the EU's legal order and the rights of individuals under it that predates the U.K.’s EU membership).

12 House of Lords, Brexit: Acquired Rights para. 58 (House of Lords Paper 82, Dec. 14, 2016).

13 Int'l Law Comm'n, Fifth Report on the Law of Treaties art. 66, cmt. para. 3, II Y.B. Int'l L. Comm'n 265 (1966).

14 Lalive, supra note 7, at 183 calls this the “delicate question”; Ian Brownlie, Principles of Public International Law 533 (4th ed. 1990).

15 Lalive, supra note 7, at 152.

16 Id. at 166.

17 Id. at 188 (the rationale for the exclusion of individual liberties is that these can be modified by domestic law).

18 Id. at 166; Fatouros, supra note 8, at 802.

19 Lalive, supra note 7, at 167 (a “mixed” right protected because of its contractual basis and monetary value); Georges Kaeckenbeeck, La Protection Internationale des Droits Acquis, 59 Recueil des Cours 317, 352 (1937).

20 Daniel Patrick O'Connell, The Law of State Succession 207 (1956).

21 Article 16(4) Directive 2004/38, art 16(4), 2004 O.J. (L 158) 77 (EC).

Thanks to Ryan Law for research assistance.

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  • EISSN: 2398-7723
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