Brexit through the lens of Public International Law When the United Kingdom (“UK”) held a referendum in 2016, an underwhelming 52% of voters supported the Leave campaign as opposed to the Remain campaign. Before delving into the consequences on trade, it is important to unpack the significance of a referendum, through the lens of international law. Referendums serve as the democratic tool by which a population exercises its right to self-determination. Typically, self-determination is invoked by minority communities who hope to secede from a parent state. The right to self-determination arose during the decolonization era, with the emergence of sovereign independent states. It allowed dominated and exploited peoples to assert their right to freely determine their political status and freely pursue their economic, social and cultural development. Ultimately, the right to self-determination was codified in Article 1(2) of the Charter of the United Nations (“UN”), which states that the UN must “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ….” In modern international jurisprudence, self-determination can be classified into two categories—internal and external self-determination. In fact, this distinction was established by the Supreme Court of Canada (“SCC '') in Re Secession of Quebec. The SCC was to determine whether there was a right to self-determination under international law that would give the government of Quebec the right to affect the secession of Quebec from Canada unilaterally. The Court established that the right of self-determination is fulfilled through internal self-determination, where a population is free to pursue political, economic and social development within the framework of an existing state. Conversely, a right to external self-determination arises in only the most extreme of cases, where a community is blocked from the meaningful exercise of its right of self-determination internally and is entitled, as a last resort, to exercise secession. Although Brexit does not involve a secession from a sovereign state, but rather a political and economic union, self-determination was the driving force behind the Leave campaign. A survey of 7000 representative British voters revealed that Leave voters regard the UK taking control of its laws as the most important priority for Britain in the coming years, followed by the ability for the UK to enter into its own trade deals.[1] Immigration and cultural integration issues were amongst several other factors considered by Leave voters. While the circumstances to not resemble a classic case of unilateral secession, Brexit is in essence an assertion of sovereignty and the right of self-determination for the British population. The Leave campaign was successful, in part at least, because it framed Brexit as a step toward taking control of the UK’s political, economic and social spheres. It fostered the idea that the “EU holds Britain back” from its potential as a global power.[2] Brexit and Economic Impacts Brexit will redraw the relationship between the UK and the EU. It will redefine the key sectors, from trade to security and data. Given that the EU was formed in an attempt to ease flows of goods and services between members, the most notorious consequence of the deal will be on trade. The UK formally split from the EU in January 2020, however, agreed to refrain from giving the deal effect until January 2021. In an attempt to preserve its trading relations with the EU, the UK reached a post-Brexit trading agreement with the EU in December 2020. In brief, the agreement is akin to free trade agreements, whereby the two parties agreed to refrain from imposing tariffs or quotas on goods between the UK and the EU as of January 2021. The agreement is based transparency, non-discrimination and economic cooperation, characteristic in free trade agreements, from CUSMA to CETA. It contains national treatment and most-favoured clauses (“MFN”) which ensures that both parties receive fair and equitable treatment. Most importantly, as a separate entity from the EU, the UK is able to exercise any regulatory requirements it sees fit. This includes subsidies, technical barriers to trade and sanitary and phytosanitary measures. According to the UK-EU trade agreement, each party is free to institute “its own independent system of subsidy control and that neither Party is bound to follow the rules of the other.” The use of subsidies is disciplined by the WTO’s General Agreement on Tariffs and Trade (GATT). Each party is also allowed to enact regulatory barriers to trade, in the way most appropriate for the domestic market. These barriers are regulated by the WTO’s Technical Barriers to Trade (TBT) Agreement, which provides for limited circumstances whereby WTO members may impose technical barriers. An infamous example of a technical barrier is the labelling requirements on tobacco products. Plain packaging laws have been subject to WTO disputes such as the dispute brought by Indonesia against Australia’s packaging requirements for tobacco products. This has already been used by the UK to impose restrictions on uncooked meats imported from the EU.[3] This new regulatory space, allows the UK to tailor is approach to trade in a manner that meets its population’s needs. Notwithstanding the newly founded freedoms in trade, many scholars continue to assert that the agreements is bound to “leave the country poorer”, at a time when it faces an unemployment crisis and a severe economic recession.[4] While the agreement confer several benefits and rights to each party, it is not a reproduction of the EU. The deal is criticized for its lack of protection of over the UK’s service industry, which makes up the majority of the UK’s domestic economy. Opposition leader Keir Starmer claimed that the deal was “thin” in regard to the trade of services in key sectors, such as the finance industry.[5] Moreover, with greater regulatory freedom, it is said the EU has obtained “the ability to use regulatory structures to cherry pick among the sectors where the UK had previously enjoyed advantages in the trading relationship.”[6] Lastly, Britain’s new immigration regime is aimed at reducing the number of unskilled workers that enter into the UK. However, migrants are vital to the domestic agricultural sector now more than ever, given that the UK’s trading relations are still at its infancy. So while the Brexit can be said to be exercise of self-determination, on the economic plane, the UK’s divorce from the EU will likely have detrimental impacts on its economic growth. By: Lucinda Chitapain For more:
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