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Adjudicating Treaty Rights in
post-Brexit Britain

Preserving Sovereignty and Observing Comity

By Martin Howe QC, Francis Hoar and Dr Gunnar Beckfull paper.

The EU Commission is currently demanding that the UK's future obligations regarding the rights of EU citizens resident in the UK be adjudicated by the European Court of Justice (ECJ). The Commission’s demands are incompatible with near-universal international practice under which independent states simply do not accept the binding interpretation of their treaty obligations by the courts of the other treaty party.

The nature of the case law of the ECJ, under which it frequently overrides the wording of provisions and imposes on them a meaning which in the view of the Court furthers the aims of European integration, makes the ECJ particularly unsuited to the task of impartial adjudication of bilateral treaty obligations assumed by a non-member state.

However, it is reasonable that there should be an impartial and balanced international mechanism for the resolution of any disagreements on the interpretation of the agreed treaty provisions. In establishing such a mechanism, it should be recognised that there are two distinct tasks: (1) resolving issues of interpretation of the treaty in probably numerous individual cases, and (2) resolving residual disputes at international level.

In order to deal with the first task within the UK, in a report from Lawyers for Britain  (Full Report) co-authored by Martin Howe QC, Francis Hoar and Dr Gunnar Beck proposes the establishment of an International Treaties Court, staffed by British judges and under UK law, which would act as a central point giving guidance to non-specialist courts and tribunals throughout the UK on the interpretation of the UK legislation which implements the treaty. This court could be modelled on the Competition Appeal Tribunal, a specialist court which has jurisdiction throughout the UK and is at the same judicial level as the High Court in England and Wales and Northern Ireland, and the Outer House of the Court of Session in Scotland.

It would be possible to establish such a Court at a higher level in the judicial hierarchy, i.e. at a parallel level to the Courts of Appeal/Inner House, and therefore only subject to the Supreme Court; or even at a level coordinate with the Supreme Court (like the Privy Council). However it is possible that quite large numbers of cases could arise in the early stages and a higher level court would be likely to be more expensive both in terms of legal costs for parties and judicial resources. Our proposed Court could however have internal appeal machinery in order that decisions of single judges can be reviewed by a panel of three judges.

The Secretary of State for Exiting the EU suggested on 28 September 2017 after the 4th round of the Brexit negotiations that the the United Kingdom would incorporate the final withdrawal agreement fully into UK law and  he would not rule out 'direct effect.' If so, this would differ from the usual way in which the UK implements treaty obligations  under UK law. That is by ordinary legislation which mirrors and gives effect to those parts of the international treaty which prescribe that individuals or companies shall enjoy or be subject to rights or obligations under the internal laws of the treaty parties.

If the rights are to be implemented by giving direct effect under UK law to the relevant treaty provisions rather than by UK legislation which transposes those rights, this would avoid potential problems which might arise from possible mis-transposition of rights under the treaty in the statutory language of the UK. However, giving 'direct effect' to treaty provisions further strengthens the case for setting up a specialist UK International Treaty Court to interpret those rights. The proposed ICT would have the specialist expertise to look at the directly effective treaty provisions rather than any 'mediating' legislation and construe them in accordance with the accepted methods of treaty interpretation under international law. In contrast, many ordinary UK courts have limited experience of the interpretation of treaties according to public international law principles.

Within the EU27, the ECJ would automatically act as a central point of reference for interpreting the treaty rights of UK nationals when cases are referred to it from the courts of the EU27 Member States, without this needing to be included in any international agreement. This jurisdiction arises under the Demirel and subsequent cases, and under this jurisdiction the ECJ's interpretations would be binding within the EU but would not bind the UK or its courts.

Our proposal would create a symmetrical system between the EU and the UK, where each would have a central court (the ECJ within the EU and the ITC within the UK) reaching decisions in individual cases on the interpretation of the agreed treaty provisions on the rights of EU citizens in the UK and UK citizens in the EU27.  Under ordinary principles of international comity between courts of different countries which are interpreting common treaty provisions, it is to be expected that each court would pay respect to the decisions of the other and, although not bound to follow them, would seek to follow them if possible.

We envisage that this system would mean that the occasions when a persistent divergence would arise between the interpretation of the treaty rights by the ECJ and by the UK's ITC would be rare, or possibly even non-existent. However as a fall-back in order to deal with such divergences, we propose a bilateral international arbitral body which would sit ad hoc when required.

An issue which was raised in discussion after the publication of the first edition of our paper on 28 September 2017 is the possible relevance of the ECJ's case law on the competence of the EU to enter into international agreements which impinge on the ECJ's power to interpret the EU treaties and EU law. This, some commentators suggested, might impinge on the operation of, or even render contrary to EU law, the top level international tribunal which under our proposed model would resolve divergences in interpretation between the ECJ and ITC.

We do not see how this suggestion is relevant to our proposal. The ECJ has ruled that the adjudication machinery of an external agreement must not bind the EU and its institutions in the exercise of their internal powers to a particular interpretation of EU law. However, the EU may lawfully (i.e. lawfully under the terms of its own constitutional order) conclude international agreements with non-member states which contain provisions for an international court or arbitral body to hand down binding judgments which interpret the agreement. Such judgments will then bind the EU's institutions, including the ECJ itself, as to the meaning of the agreement. The EU has entered into numerous such agreements, including for example the EU-Canada CETA and the EEC-Andorra Association Agreement.

Our proposals involve giving to the bilateral international body the power to make binding rulings on the rights of EU citizens in the UK and the rights of UK citizens in the EU. Those rights will arise under the withdrawal agreement and will not be rights under EU law, even if many aspects of those rights are likely to be based on the rights enjoyed by EU citizens at the date of the UK’s withdrawal. Rights under EU law will continue to govern the free movement of citizens of the EU27 as between those countries, but those rights will over time diverge from the rights of citizens under the withdrawal agreement which will be residual, fixed rights. Thus, international adjudication of rights of citizens under the withdrawal agreement will not bind the ECJ or other EU institutions in the development or application of internal EU law. We consider that concerns by some commentators that the ECJ might rule that the adjudication provisions of the withdrawal agreement threaten the internal autonomy of EU law are not relevant to our proposals, unless the UK government were (most surprisingly) to agree to a dynamic linkage between rights of citizens under the withdrawal agreement post-exit and the internal EU rights of EU27 citizens inter se.

If the model of the ITC is established in order to guide non-specialist UK courts and tribunals in relation to the rights of EU citizens under the withdrawal agreement, it could then also readily be extended to cover other international treaty-derived rights, such as the parallel rights of EEA and Swiss citizens, the provisions of the proposed EU-UK free trade agreement, the WTO Agreements and future UK trade agreements with non-EU states insofar as their provisions are reflected in UK domestic legislation.