X Close

UCL Journal of Law and Jurisprudence Blog

Home

Menu

History of International Law as History of International Power: Sovereignty and Property

GaianeNuridzhanian24 March 2017

Event summary

On 22 March Professor Martti Koskenniemi delivered a talk at International Law Association (British Branch) event at UCL Laws. Martti Koskenniemi is Academy Professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He is currently leading a research project on ‘The History of International law: Empire and Religion’.

At UCL Laws, Professor Koskenniemi spoke about history of international law as history of international power focusing on the relationship between sovereignty and property. He examined in particular how the legal language was used to buttress state power and property rights in the period between XIV and late XIX century when the Institut de Droit International was established and, in Koskenniemi’s opinion, the history of international law began.

Professor Koskenniemi first discussed the concept of dominium, ownership granted to mankind by God, and development of thinking about natural law by the School of Salamanca and Francisco de Vitoria. The notion of dominium jurisdictionis et proprietatis was used to explain the God-given right to exercise power and ownership over property. However, it was jus gentium that governed the division of the property. The idea of interrelation of natural law and jus gentium was reflected in the works of Hugo Grotius (De Jure Belli ac Pacis) who believed that defense or restitution of property could serve as one of the reasons for just war (jus ad bellum). The ideas of natural law and law of nations were further developed by Samuel von Pufendorf who believed that, because of their nature, humans were rationally compelled to cooperate with each other and that the state was a means to achieve common good and salus populi.

The relationship between sovereignty and property was also one of the aspects of the discourse on European balance of powers in the course of XVIII century. Johann Justi, in his treatise The Chimera of the Balance of Europe, argued that the concept of balance of powers was an arrangement suitable for political affairs but not for the trade relationships that were regulated by their own rules. Around the same time Francois Quesnay argued for deregulation of trade and free competition as means of achieving salus populi.

Professor Koskenniemi quoted some further examples of interconnectedness of sovereignty and property from XIX century. One of them was Lord Palmerston’s statement in Don Pacifico Affair to the effect that a British subject (and as consequence his property) was protected anywhere in the world from injustice and wrong by ‘the watchful eye and the strong arm of England’. Another example was the establishment of the US-Mexico Claims Commission to settle the claims by citizens of both states in relation to damages inflicted by one government on the nationals of the other. A more modern example is the existing system of the investor-state settlement of disputes system.

Professor Koskenniemi concluded by emphasising the inherently intertwined nature of sovereignty and property – beneath the surface of government by sovereignty always lie property and contractual relations, and vice versa. Modern legal education should not therefore draw a sharp distinction between private and public law spheres.

 

2017 UCL Laws Post Graduate and Early Career Conference

IraRyk-Lakhman28 February 2017

We are pleased to publish the program for the 2017 UCL Laws Postgraduate and Early Career Conference.

The Conference theme is ‘Art of Balancing: The Role of Law in Reconciling Competing Interests’. The event will take place at UCL main campus on 30-31 March 2017.

The program of the event is provided below. The full Conference booklet, including abstracts and presenters is available here.

Please note: The event is free and open to the public, however registration is mandatory.

30 March 2017

Main Quad Pavilion Wilkins Building (Main Building)

 

08:30 – 09:15 Registration and breakfast

09:15 – 9:45 Opening remarks (Prof Richard Moorhead, Vice Dean of Research, UCL)

09:45 – 11:45 Panel 1

Human Rights and the Jurisprudence of the European Court of Human Rights

  • John Dingfelder Stone (Rhein-Wall University of Applied Sciences) ‘Undervaluing the Right to an Interpreter: How Societal and Judicial Interests Threaten the Fairness of Multilingual Criminal Proceedings’
  • Juha Tuovinen (European University Institute) ‘Balancing, the Margin of Appreciation and European Consensus: Why the European Court of Human Rights Does Not Rely on European Consensus in Article 8-11, Why It Should, and How To Fix the Situation’
  • Tara Beattie (Durham University) ‘Porn, Privacy and Public Morals Re-Dressed’
  • Rose Ireland (UCL) ‘Human rights and modern slavery: the obligations of states and corporations in relation to forced labour in global supply chains’
  • Discussants: Dr Ronan McCrea (UCL) and Dr Inga Thiemann (UCL)
  • Secondary Commentators: Zdeněk Červínek, Giulia Frosecchi

12:00 – 13:00 Lunch break

 

13:00 – 14:15 Panel 2

Jurisprudence and Interdisciplinary Approaches to Law

  • Pieter Augustijn Van Malleghem (Harvard University) ‘Proportionality and the Erosion of Formalism’
  • Federica Coppola (European University Institute) ‘Mapping criminal brains to predict criminal behavior: New frontiers in neurocriminology, new challenges for the law’
  • Maytal Gilboa and Omer Pelled (Hebrew University of Jerusalem) ‘A Welfarist Perspective on Autonomy’
  • Discussants: Paul Troop (UCL) and Simon Palmer (UCL)
  • Secondary Commentators: Maytal Gilboa, Donald Bello Hutt

14:15 – 14:30 Break

 

14:30 – 16:15 Panel 3

EU Law and IP Law

  • Auke Willems (Vrije Universiteit Brussels) ‘Reconciling competing interests in EU criminal law: the principle of mutual trust’
  • Desmond Johnson (The Hague University of Applied Sciences) ‘Institutional Balance as Constitutional Dialogue: A Republican Balancing Act for the EU Constitutional Order?’
  • Eduardo Álvarez Armas (Université Catholique De Louvain) ‘Accommodating diverging international environmental obligations: the ECJ’s approach to avoiding legal conflict in the Commune de Mesquer case
  • Pinar Oruc (Queen Mary University of London) ‘Competing Interests in the Orphan Works Problem’

16:15 – 16:30 Break

 

16:30-18:00 Panel 4

States, Groups, and the International Community

  • Aikaterini Christina Koula (Durham University) ‘The definition of Human Rights Defenders’
  • Boshko Stankovski (University of Cambridge) ‘Which law, whose standards? The role of international law in resolving competing claims and ensuring securitisation and democratisation of new states’         
  • Iryna Bogdanova (University of Bern) ‘United Nations “targeted” economic sanctions and individual human rights of their “targets”: what is the role of Article 103 of the UN Charter?’
  • Discussant: Dr Ruvi Ziegler (University of Reading)
  • Secondary Commentators: Juha Tuovinen, Johannes Hendrik Fahner

 

 

31 March 2017

Main Quad Pavilion Wilkins Building (Main Building)

9:30 – 11:00 Panel 5

Environmental law

  • Stavros Pantazopoulos (European University Institute) ‘The Protection and Restoration of the Environment in the post-conflict phase: An assessment of the legal framework and the way forward’
  • Anne-Claire Bernard-Tomasi (University of Westminster) ‘The Interplay between Environmental Protection and the Market through the lens of Disclosure and Confidentiality of Information: Pragmatism over Dogmatism’
  • Discussant:  Chiara Armeni (UCL, Sussex University)
  • Secondary commentator: Johannes Hendrik Fahner, Iryna Bogdanova

11:00 – 11:30 Break

 

11:30 – 13:15 Panel 6

Labor Law and Socio-Economic Rights

  • Emily Hancox (University of Edinburgh) ‘Equal Access to Social Benefits or Preventing an Unreasonable Burden: Reconciling Overlapping Secondary Legislation’
  • Zdeněk Červínek (Palacký University, Olomouc) ‘Proportionality or Rationality? Assessing Reasonableness in Socio-Economic Rights Cases: A Study of Constitutional Review Standards of Czech Constitutional Court’
  • Ksenia Mikhailichenko (National Research University ‘Higher School of Economics’, Moscow) ‘The Right of Freedom of Association: Role of International Labor Standards in Russian Practice’;
  • Discussant: June Namgoong
  • Secondary commentators: Tara Beattie, Rose Ireland

13:15 – 14:30 Lunch Break

 

14:30 – 16:00 Panel 7

Proportionality and Political Considerations in Adjudication

  • Donald Bello Hutt (Kings College London) ‘Constitutional interpretation and institutional perspective: a deliberative proposal’
  • Araceli Turmo (Université Panthéon-Assas) ‘Procedural Law as an Exercise in Reconciling Public Interest and Individual Rights: The Example of Res Judicata’
  • Discussant: Dr Jeff King (UCL)
  • Secondary Commentators: Desmond Johnson, Emily Hancox

16:00 – 16:30 Break

 

16:30 – 18:00 Panel 8

Investment, Energy, and Trade

  • Otabek Ismailov (University of Ottawa) ‘Reconciling Public and Private Interests in Investor-State Arbitration Cases Involving Argentina: Necessity, Proportionality or Margin of Appreciation?’
    Johannes Hendrik Fahner (University of Luxembourg/University of Amsterdam) ‘Intensity of Judicial Review in International Adjudication: Balancing State Sovereignty against Regime Effectiveness’
  • Michael Imran Kanu (Central European University) ‘Towards Scaling the Energy Financing Predicament in Sub-Saharan Africa: Stating a Case for Legal and Regulatory Reforms’

18:00-18:15 Closing Remarks

 

Understanding Security Council Authority

GaianeNuridzhanian30 November 2016

Event summary

On 22 November 2016 Devika Hovell, Associate Professor in Public International Law at LSE, spoke at UCL. She discussed the authority of the UN Security Council (UNSC), and its nature. At the outset, the speaker observed that there was little interest among international lawyers, and even less so among the international organisation lawyers, in adopting theoretical approach to international law. Instead, the law of international organisations was developed by practitioners, often in a patchy manner and in response to specific practical challenges. In this process of development, it were the positivism and realism that guided and controlled the development of this legal discipline. In this regard, the speaker referred to Dworkin’s advice to lawyers and philosophers to improve ‘the jurisprudential discussion of international law’.

In pursuing her goal to develop a concept of the UNSC’s authority, Devika Hovell challenged two orthodoxies. The first orthodoxy, from the domain of international law, reflects the idea of State consent as a source of the UNSC authority. According to this positivist approach, the authority emanated from Articles 25 and 103 of the UN Charter that imposed on the States an obligation to comply with the UNSC decisions and established the primacy of the States’ obligations under the UN Charter. In the opinion of the speaker, the State consent based on a singular act of the State’s consent to the UN Charter, was not sufficient of a basis for the UNSC authority. The justification of such authority had to be more complex.

The second conventional wisdom that Dr Hovell sought to deconstruct concerned the jurisprudential domain. Under this orthodoxy, individual autonomy constitutes the ultimate source of the authority of international law, and thus it is the objective of safeguarding the individual autonomy that endowed international law with authority and State autonomy with value. However, in her opinion, this approach does not fully reflect the place of the State and the State interests in international law. It also does not take into account that international law commands authority over States, and not individuals. The individual autonomy-based approach can also be said to be unsuitable for explaining the authority of the UNSC since the latter is primarily focused on the collective responsibility in the face of common threats rather than on promotion of individual interests.

The authority of international law rests primarily on the belief and conviction of those to whom its rules are directed, that they have a role to play in the rule of law itself. Dr Hovell noted the view expressed by Sir Michael Wood in the course of the Iraq Inquiry. Addressing the comment that the absence of a court meant essentially that states could interpret Security Council resolutions as they wished, Sir Michael Wood replied that; “[T]he absence of a court, I think, is a reason for being more scrupulous […].

It is one thing for a lawyer to say, “Well, there is an argument here. Have a go. A court, a judge, will decide in the end”. It is quite different in the international system, where that’s usually not the case. You have a duty to the law, a duty to the system. You are setting precedents by the very fact of saying things and doing things.”

Dr Hovell proposed a grundnorm for the authority of the UNSC that would be based neither on State consent nor on individual authority, but will be grounded in the idea of ‘shared responsibility’. In this regard it is necessary to consider two aspects of the UN Security Council authority: ‘representativeness’ and ‘purposiveness’.

UN Security Council has often been criticised as being unrepresentative. Legitimising its authority would entail the idea that this authority is ‘shared’ with others. Although most theoretical accounts focus on authority held by a single actor, in contemporary international society there are multiple locations and levels of public authority and individuals are increasingly subjected to various overlapping authorities. There is thus a need to separate the authority from sovereignty as well as from the notion of exclusivity. Quoting the writings by Nicole Roughan, Dr Hovell referred to the concept of ‘relative authority’ which reflects the idea of isolation of authority from sovereign power ‘in order to consider its operation in circumstances of plurality’.

Dr Hovell concluded by noting that some have argued that the main problem with the UN Security Council does not lie in its lack of resources or unrepresentativeness, but rather in the lack of any agreement as to its purpose. In the speaker’s opinion, the purpose of the Security Council could not be spelled out in a document of a constitutional nature. Instead, Dr Hovell proposed a procedural and responsibility-based approach to the question of the legitimacy of the UNSC.

 

Call for Papers: UCL Post Graduate and Early Careers Conference 2017

IraRyk-Lakhman18 November 2016

The Art of Balancing: The Role of Law in Reconciling Competing Interests

 

University College London Faculty of Laws is pleased to invite submissions for its 2017 Postgraduate and Early Careers Conference to be held on 30-31 March 2017, at University College London, London, UK.

The conference is designed to provide current doctoral students and recent PhD graduates with a forum to present and discuss their work among academic peers from different backgrounds and legal disciplines. The conference aims to promote fruitful research collaboration between its participants, and to encourage their integration in a community of legal scholars.

*

Conference Theme

The Conference theme is “The Role of Law in Reconciling Competing Interests”.

Contemporary legal problems create the need to balance competing interests, values, rights, obligations, and freedoms. This Conference will explore the response of the law and legal actors to modern challenges, be it in the context of domestic law and national jurisdictions or in the framework of international law.

The increasing criticism against the fragmentation of legal fields have brought about the need to reconcile public, individual, and international interests. Additionally, the growing focus on States’ obligations to respect and protect human rights and freedoms has too led to a shift in the manner States conduct themselves both in the domestic and international arenas. Yet, given the ever increasing extent of international regulation and concomitant demands on limited financial, technical and human resources, it is not at all clear how these competing rights and obligations ought to be balanced. Furthermore, the mounting pressure on the States to ensure the security of their population brings about the debate over States’ ability to limit other rights and freedoms on behalf of security interests, legitimate as may be.

*

Relevant papers may concern any field of law.

Examples of issues addressed by relevant papers may include (but are not limited to):

  • Human rights and public interest;
  • Necessity and proportionality and other multi-sourced equivalent norms;
  • Constitutional rights and terrorism;
  • Protection of public health and environment in trade and investment agreements;
  • Sustainable development and climate change and commercial activity;
  • Copyrights, trademarks and patent protection;
  • lex specialis and competing domestic or international law norms;
  • Legal theory’s approach to conflicting rights and freedoms;
  • Constitutional rights and the protection of rights absent a written constitution;
  • Balancing of competing interest by adjudicative bodies.

*

We welcome applications from current doctoral students, both in law and law-related disciplines, and from recent graduates of doctoral programs up to five years since the completion of their PhD. We encourage submissions engaging all disciplines of law.

Selection will be based on the quality of the proposal, as well as its capacity to engage with other proposals in a collaborative dialogue.

*

The UCL Laws 2017 Postgraduate and Early Careers Conference will select a number of papers presented at the Conference for publication in a special issue of the UCL Journal of Law and Jurisprudence.

All the participants will be offered an opportunity to publish a blog post based on their papers at the UCL Law Journal Blog.

Accordingly, an invitation to participate in this conference will be issued to a participant on the following conditions:

(1) The participant agrees to submit an original, unpublished paper between 8,000 words and 12,000 words consistent with submission guidelines issued by the conference conveners;

(2) The participant agrees to submit a full pre-conference draft by 10 March 2017;

(3) The deadline for submitting papers selected for publication is 15 May 2017.

*

Interested scholars should email an abstract of up to 750 words along with a short bio in no more than two paragraphs by 25 December 2016 to the following address: PGC2017@ucl.ac.uk.

Abstracts should reflect papers that have not been published nor submitted elsewhere for consideration for publication.

Successful applicants will be selected by an Organizing Committee and notified no later than 15 January 2017.

 

Identifying Customary International Law: From the International Law Association’s Principles of 2000 to the International Law Commission’s 2016 draft

GaianeNuridzhanian24 October 2016

Identifying Customary International Law, Event Summary

On 19 October 2016, Professor Maurice Mendelson QC, the former Chair of Public International Law at UCL and former Rapporteur and Chairman of the International Law Association (ILA) Committee on Formation of Customary (General) International Law spoke at UCL. Professor Mendelson discussed the work of the ILA and International Law Commission (ILC) on the formation and identification of customary international law. At the outset he stressed that, the task of setting out the principles on the formation of customary law was not an easy one, but very much needed. This is because, apart from the academic interest in the elucidation of the issue, it possesses the potential to assist domestic courts and practitioners in municipal jurisdictions when faced with questions relating to customary international law, as well as to those who wished to study international law.

The speaker drew comparisons between the Statement of Principles Applicable to the Formation of General Customary International Law adopted by the ILA in 2000 and ILC’s Report on Identification of Customary International Law issued earlier this year.

Professor Mendelson observed that the ILC’s Report was closely modelled on the ILA’s work, thus there are indeed great many similarities between the two. Both institutions drew largely on the same sources, mainly but not exclusively ICJ decisions, and adopted the same technique of stating a “principle” (ILA) or a “conclusion” (ILC) accompanied by a commentary. He noted that, whilst the ILA reports spoke of “formation” of customary law, the ILC spoke of “identification”. The title of the ILA committee had not been his choice, and overall he preferred the ILC’s term; however, it was to be appreciated that this did not, in many cases, enable the issue of an alleged rule’s pedigree to be sidestepped.

There was no substantial disagreement between the ILC and ILA with regard to issue of state practice as an element of a customary international law rule, although slightly different terms were used to describe any such state practice. According to the ILA, for instance, it had to be ‘virtually uniform’ (Principle 13). The ILC, conversely, referred to ‘sufficiently widespread and representative, as well as consistent’ practice (Draft conclusion 8).

According to Professor Mendelson, the reports take similar approaches to the ‘persistent objector’. The ILC report contained a short section on particular customary law (including but not limited to local and regional); the remit of the ILA Committee had precluded examination of this topic, but he had gone into it in some detail in his lectures to the Hague Academy of International Law, and he gave some examples of particular customary law where the criterion was not geographical.

Where the ILA and ILC palpably disagreed was the role of the opinio juris, what is usually said to be the second element of a rule of customary international law. The ILC Report espoused the more orthodox view that both state practice and opinion juris were necessary conditions for a rule to be considered as customary international law. Professor Mendelson believed that, although opinio juris had a role to play in certain circumstances, it was not always necessary to prove its existence in order to show that a rule amounts to customary international law. Presence of widespread and representative state practice could be sufficient indication of existence of customary international law. He also rejected the argument that opinion juris was necessary in order to distinguish customary international law from comity. It was usually the context in which the state practice occurred that allowed to make the distinction. Finally, the ILC’s use of term ‘accepted as law’ so as to indicate the subjective or psychological element, superficially circumvents some of the problematic aspects of opinion juris. ‘Accepted as law’ does not necessarily mean that states believed something to be law. It could also mean that states wanted it to be law or accepted it without holding a belief that it was an existing rule of law.

The ILC and ILA concurred on the point that resolutions of the UN General Assembly as a general rule and of itself did not create a rule of customary international law (Principle 28 of the ILA Statement of Principles and Draft conclusion 12 of the ILC Report). However, in its Principle 32, the ILA proposed an exception: ‘Resolutions accepted unanimously or almost unanimously, and which evince a clear intention on the part of their supporters to lay down a rule of international law, are capable, very exceptionally, of creating general customary law by the mere fact of their adoption.’ Professor Mendelson emphasised that this reflects very exceptional and extreme circumstances in which all the states had to be united in the face of a common challenge.

Finally, Professor Mendelson concluded that it could hardly be expected that the product of the ILC’s work on customary international law could become a treaty but it may gain clout as an important source of guidance and reference on the issue.

Launch of the Oct 2016 New Issue of the UCL Journal of Law and Jurisprudence

IraRyk-Lakhman4 October 2016

Last night (3 Oct 2016), the UCL Journal of Law and Jurisprudence launched its latest issue, Issue 5(2). The launch event was held at the offices of Slaughter & May, one of the Journal’s sponsors. Some 50 practitioners, students, academics, UCL graduates, editors, and authors have attended the event.

IMG_8765

The new issue, which is fully available (open access) here, is a themed “City Issue” which address various legal aspects relevant to the commercial prevalent reality and the City. The academic and managing editors (Sara Razai Chris O’Meara, and Ira Ryk-Lakhman), who have concluded the role yesterday, wrote the following preface, which offers a taste of the contributions of this recent issue:

Dear Reader, This October issue of the UCLJLJ reflects our commitment to evolve and adapt while upholding the tradition of a biannual publication. The edition you are holding in your hands – or perhaps reading on your screen – continues the tradition of having a themed issue of the UCLJLJ. We have named it the ‘City Issue’. The idea of this theme is to reflect and celebrate the world-class reputation of legal practice in the City of London and the range of legal disciplines that are practised there. Our choice of theme was intentionally broad and left scope for any area of law and jurisprudence. Whether domestic, regional or international, the papers assembled here are a true expression of City legal practice and thought. Equally diverse and broad, the five papers offer an original and topical contribution from both academics and practitioners.

IMG_8713

The issue begins in the sphere of European Union law, with an analysis of the effects of mandatory bail-in on creditors’ property rights. Tracy Maguze considers whether bail-in rules interfere with the right to property of bank creditors and if such interference is justified. With particular emphasis on European human rights, she argues that bail-in rules do in fact infringe creditors’ rights to property on the basis of legality and legitimacy. The issue continues with an inquiry into domestic law, being the bookbuilding regime in the UK. Tong Jing Lim examines the UK IPO and price formation process and argues that, despite its flaws, the current bookbuilding regime has significant advantages. Instead of replacing it with an auction system, as proposed by the 2014 Myners Report, the author instead suggests a number of ways to improve the existing process.

The third paper considers the doctrine of relief of forfeiture in the context of international, national and regional loan agreements. Analysing the material adverse change clause in light of recent case law, Michael Kokkinoftas argues that relief of forfeiture could be used by the borrower as a remedy for mitigating the severity of punitive clauses when an event of default is triggered.

IMG_8732

The paper that follows addresses short-termism in relation to listed companies in the UK. With emphasis on market behavior and the UK’s legal landscape, Andrea Bowdren argues that short-termism in listed companies should affect regulatory and legislative proposals and that breaking transmission mechanisms is crucial to prevent short-termism in corporate ix decision-making. She offers solutions to combat managerial myopia and to re-focus executive attention on long-term value creation.

The final paper is a unique contribution to this City Issue and reflects the diversity and scope of law in thought and action. It presents a view from practice. Tolek Petch, Associate at Slaughter and May, considers case law in relation to asymmetric jurisdiction clauses in financial contracts. The author offers a comparative analysis of the differences in approach and construction taken by the French and English courts. He concludes that the doubts expressed by the French courts are unwarranted given the good commercial and legal reasons to uphold such clauses.

IMG_8743

This short overview shows the range of City-related issues covered in this issue. True to its founding objectives, UCLJLJ remains a journal dedicated to producing high quality papers in the field of law and jurisprudence. We hope therefore that this themed edition offers some useful insights, both theoretical and practical, into law as practised in the City.

Finally, a few last words. After the publication of this issue, we will be handing over to a new editorial team. We have had a great year and are proud of our contribution to this Journal. We would like to acknowledge the hard work of everyone who helped in the formation and publication of this issue. First, thank you to the members of the Editorial Board who have each devoted significant time and energy to reviewing and editing these papers. Without their dedication, this issue would not have been possible. A warm thank you is also due to our Copy Editor, Dr Aislinn O’Connell, who is sadly leaving us. Her help and dedication over a number of years have been invaluable and she will be missed. We are grateful for our long-standing sponsors, Blackstone Chambers and Slaughter and May, and their continuing generous contributions to the Journal. In particular, thanks go to Tom Vickers and Grace Parkinson at Slaughter and May for their collaboration on this issue. Last, but not least, we are thankful for the support of the UCL Faculty of Laws and our Faculty Editor, Dr Daniela Simone.

We hope that you enjoy the read, and wish the 2016/17 board the best of luck!

us

UCL Journal of Law and Jurisprudence :CfP for Vol 6(1) (March 2017)

IraRyk-Lakhman24 August 2016

The Editorial Board is pleased to call for submissions for the first issue of 2017. The Board welcomes papers covering all areas of law and jurisprudence.

UCLJLJ accepts articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 4th November 2016. Manuscripts must be uploaded via the submissions section on our website.

images

 

 

For further information and guidelines for authors please visit our website. For any queries, please e-mail theacademic editors

UCL Laws Event: “Brexit: Legal & Constitutional Requirements” (13 July 2016)

IraRyk-Lakhman14 July 2016

 

On Wednesday, 13 July 2015, the UCL Faculty of Laws hosted a public event on the constitutional implications of Brexit. Constitutional and European law experts from UCL discussed what the legal constraints are on the process of leaving the European Union (EU), and how they might influence the process of negotiations and the UK’s future relations with the EU.

brexit-610x340

 

The discussants postulated that following the result of the Brexit referendum, the Country is about to embark on a process of leaving the EU. In these difficult moments, it is crucial that this process is in accordance with legal and constitutional requirements. The constitutional framework governing Brexit needs to be laid out clearly, and with precision, for the benefit of both the people and government officials.

The panel of experts included: Professor Piet Eeckhout (UCL Laws), Professor of EU Law; Dr Tom Hickman (UCL Laws), Reader in Public Law; Professor Jeff King (UCL Laws), Professor of Law; Professor George Letsas (UCL Laws), Professor of the Philosophy of Law; Dr Virginia Mantouvalou (UCL Laws), Reader in Labour Law & Human Rights; and, Dr Ronan McCrea (UCL Laws), Senior Lecturer in EU and Constitutional Law.

The panelists addressed the following six questions:

  • Is Parliamentary approval needed for triggering Article 50 of the Lisbon Treaty?
  • What role should Parliament have in the Brexit process?
  • Can and should there be exit negotiations with the EU before the triggering of Article 50?
  • What are the possible options after Article 50 has been triggered? Can the notice of withdrawal be withdrawn?
  • What are the options for future relations with the EU?
  • How will Brexit affect areas of UK law that have been heavily dependent on EU law?
  • How will Brexit affect the constitutional dimension of devolution

 

Article 50

Dr Hickman addressed the first two questions concerning the mechanism prescribed under Article 50 and the Parliament’s role in this process. To illustrate the current legal position, he suggested imagining a world where no Brexit referendum was scheduled to take place; where the UK Government decided to send the EU Council a letter informing of the UK’s withdrawal and Article 50 was triggered per the position taken by the UK Government. Would that letter of notification be lawful as a matter of constitutional law?

Dr Hickman referred to his previous writings on the matter (with Nick Barber and Professor Jeff King) and opined that the described hypothetical letter would be an unlawful act. This is because this act would cut across the object and purpose of the European Communities Act 1972, the purpose of which was to give effect to the enlargement of the EU and give effect to the UK membership. Additionally, the power that the PM would use in this situation would be “prerogative power”. It is the inherent and residual power that lies within the UK Government to do certain things in the national interest. This power, however, cannot be used to unilaterally withdraw from the EU. First, the Government cannot exercise the power in a manner which is inconsistent with the statutory provision. As the 1972 Act was intended to give effect to the enlargement of the EU by the UK membership, using the Act to withdraw from the EU would contradict the Act. Second, this prerogative power may not be exercised so as to take away rights. Importantly, the 1972 act is an act of Parliament thus only another act parliament may override it. Based on these, he posited, the PM in the hypothetical example cannot trigger Article 50 without an act of Parliament that allows him to do so. It does not matter what form this Parliamentary act would take, as long as it is an act of Parliament. Dr Hickman maintained that, as a matter of law, there is no substantive difference between the Brexit referendum and the suggested hypothetical letter of withdrawal.

Dr Hickman also noted that Article 50 has two particular features. First, once it is triggered the withdrawing country ought to negotiate a withdrawal from the EU within two years. Should it fail to do so, it would be evicted from the EU without an exit deal. This substantially affects and tilts the balance of negotiating powers of EU Member States vis-à-vis the withdrawing country. The second notable feature of Article 50 is that once a Member State has decided to withdraw, there is an obligation under Article 50 to notify the EU Council. Thus, if the referendum in and of itself qualifies as a decision to withdraw, then the UK is already under an obligation to notify. If however, the exercise of prerogative power by the PM is a decision of this Country then the government would come under great pressure to notify. In conformity with the opinion he expressed in his previous writings on the matter, Dr Hickman maintained that in both cases the authority lies with the Parliament, while the notification letter – much like the referendum – does not constitute a “decision”.

Professor King addressed the counter arguments and objections to the position put forth by Dr Hickman. Some counter arguments assert that the position maintained by Dr Hickman is illegitimate and stems from the unwillingness to accept the results of the referendum. Nonetheless, clarified Professor King, the presented position does not address the consequences of the referendum. On June 23rd the UK voted on the “whether question” (i.e., whether or not to leave the EU); the public did not vote on the “how question”. It is this latter question which is the subject-matter of the position represented by Dr Hickman and Professor King. If so, the illegitimacy objection does not fly.

Another, counter-argument was expressed by Mark Elliott. On this view, the prerogative power does not conflict with act of Parliament and more pointedly with the 1972 Act. Thus, Elliott asserts, there is no need for a Parliamentary act to trigger Article 50. Professor King rejected the argument. He maintained, inter alia, that an act which shrinks the European community by excluding the UK contradicts the object and purpose of the 1972 Act as manifested in its title and substantive provisions. Read as a whole, argued Professor King, the 1972 Act cannot plausibly be construed as anything but making provisions for ongoing membership. Further, Article 50 triggers a process which may end only in one of two outcomes: a withdrawal agreement or the treaty will cease to apply after two years. Importantly, under either option, the treaty would cease to apply. This would require amending the list of treaties set out in Section 1 of the 1972 Act, which enumerates the Lisbon Treaty. Such an amendment necessitates a Parliamentary act.

Professor Letsas suggested taking a step back and focusing on the “whether question”. He stressed that the current debate is seemingly predicated on the understanding that the result of the referendum is binding, as a referendum is inherently reflective of and interwoven with democracy. According to Professor Letsas such an inherent link does not exist been referendums and democracy. Referendums do not replace democracy but compliment it. Democracy is more than the rule of the majority, it is a substantive value. Indeed, referendums are democratic, but only insofar as they meet certain substantive conditions. These conditions include – the protection of individual and minority rights; proper deliberation; and, the nature of the question posed. In his view, the EU referendum did a very poor job in meeting these conditions.

Notably, the referendum excluded those who should have had a say in this – the EU citizens who are domiciled in the UK. This large group did not have a vote in the referendum, which directly affects their rights and obligations. Second, the nature of the question also poses a difficulty. According to this condition the question should have been a substantive one, yet it is actually a broad question with substantial constitutional ramifications. In fact, the referendum concerns the 1972 Act, which was treated by UK Courts as a “constitutional statute”. Notwithstanding the constitutional ramification of the vote, the referendum-question was not crafted as a constitutional issue, but as a single, straightforward, and substantive question. If so, and given the defects in the constitutional design in the referendum itself, the Parliament has a right and a duty to decide, at any point in time, on the issue and for the best interest of the public.

Professor Eeckhout opined that since the results of the referendum became public, commentators seemingly belong to one of two “universes”. The first, the “political universe” composed of the EU and UK political class, who though are displeased with the results, accept them as a decision to leave. On the other side of the spectrum is the “legal and constitutional universe” who fails to see that a decision was in fact made. As a matter of positive law, Article 50 requires a “decision”. For the referendum to qualify as such, the Parliament had to pre-determine that the vote had a binding legal effect. Yet, the Parliament ascertained that the results are merely advisory. Similarly, post-Brexit, neither the Government, nor the Parliament, have made an official decision to withdraw from the EU.

The possible role of the judiciary

Dr McCrea addressed the role of the judiciary. Specifically, addressing the Courts’ reluctance to intrude on matters of parliamentary privilege and their reluctance to offer legal advice on theoretical questions (for e.g.: is there a need for an act of Parliament to trigger Article 50?). He expressed the view that it is highly unlikely that Courts would intervene in these issues and offer advice on the need for a Parliamentary act. Further, on the matter of notification under Article 50, Dr McCrea emphasized that once notification is given, it is valid under EU law, and the EU would not look behind the UK constitutional law credentials. For this reason, should the Courts consider the question theoretical and refrain from intervening prior to the act of notification, it may well be too late for them to declare the notification under Article 50 unconstitutional and unlawful post factum. This would simply not matter under EU law.

Professor King dealt with the possible contention that recourse to UK Courts on the question of Article 50 may be perceived as an attempt to delay the notification of withdrawal. He explained that delay may result not only from litigation, but also may be the consequence of a Parliamentary act. Nevertheless, he opined, any such delay may be explained to the EU as compliance with constitutional requirements in good faith.

Future UK – EU relations

Professor Eeckhout explained that the available options may be trifurcated and exemplified in existing models (Swiss, Turkey, etc.): keeping some form of membership in the EU internal market; having a form of a free trade agreement with the EU; or, have neither of those and trading with the EU on WTO terms. These three options, as well as the existing models, stand for one of two trade options. First, the option to trade between two markets with harmonized regulations, in a manner covering all goods and most services; second, trade between two differently regulated markets. The most attractive option, economically, is the former. However, this route is inconsistent with the main themes of the “Leave Campaign” – taking back control and limiting immigration. Professedly, it may be argued that the European Economic Area arrangement (EEA) may offer more sovereignty to the UK, as this arrangement does not bear the same effect on the domestic regulation. However, if sovereignty is considered as a substantive political concept, the EEA route would not bolster it. The EEA offers States very little room to affect the EU decision making process, while it entails an obligation to implement a considerable amount of EU law and regulations, including the freedom of movement of workers and persons. Since the EEA includes full free movement of persons, the UK would struggle to introduce limitations to immigration. Though the EU has not issued a formal statement on the matter, the 27 have noted that any EEA agreement would denote acceptance of the four basic freedoms, which include the freedom of movement.

As for possible room for flexibility in negotiations with the EU, Professor Eeckhout opined that there may be some room to negotiate upper limits in the framework of EEA negotiations. A similar issue had arisen with Switzerland, who held a referendum on the freedom of movement and is required to implement its results shortly. Conceivably, along these lines, the UK government might try to negotiate an EEA agreement with some limitations. Nevertheless, any such negotiations would come at a price.

If EEA membership is not achievable, a WTO relationship between the UK and the EU is possible. Some commentators have drawn an analogy between the TTIP agreement (US/EU) and the options for an EU-UK agreement. According to Professor Eeckhout, this is a useful analogy as it is illustrative of the political difficulty to conclude such agreements. Today, international trade negotiations are under extensive public scrutiny in the EU. The current position of the TTIP negotiations is uncertain, and the recent announcement by the Commission that national parliaments will have to approve CETA. These indicate that a TTIP-like arrangement would pose some challenges.

On this point, Dr McCrea noted that the UK ought to be mindful of the manner Brexit is perceived by EU institutions. Some Member States fear that a generous exit arrangement with the UK would encourage other States to withdraw, and thus undermine the integrity of the EU. Indeed, there is precedent for limitations and derogations from some EU rights and freedoms. Thus, the UK may have a precedent to support a limitation of the freedom of movement. Luxemburg, for instance, was allowed to derogate from the right to vote for EU Parliament. Nevertheless, the right to vote for Parliament every five years is not as central as, the freedom of movement. As for EEA membership, it is noteworthy that any such arrangement necessitates the agreement of all the other States, which is likely to be granted.

Preliminary negotiations with Member States (?)

The members of the panel then addressed the need for an action plan vis-à-vis the EU prior to triggering Article 50. On this point, Professor King ascertained that a distinction should be drawn between examining UK’s options and opportunities with EU States, and entering into extensive negotiations. Indeed, some States maintained that no negotiations with the UK would start before notification is duly made. Yet, per Professor King, preliminary engagement with Member States does not seem to fly in the face of this EU position.

Professor Letsas noted that the uncertainty with regard to the future relations with the EU is not only bad for the market; it is detrimental for the people. The EU rules that would be removed as a result of the withdrawal concern fundamental rights and freedoms. These excluded rules must be replaced with other legal arrangements. This process necessitates a clear plan.

Dr McCrea stressed that the mechanism prescribed under Article 50 does not assist the UK. Under Article 50 any exit arrangement must be approved by the EU Member States. However, it does not entail a unanimous approval, but a qualified majority vote. Thus, no State may veto an exit deal in order to assist the UK to negotiate a better one. As mentioned, Member States are concerned with Brexit and its effect on the integrity of the EU and are therefore not inclined to opt for a generous exist deal. For the foregoing, there is also very little incentive for States to negotiate with the UK before Article 50 is triggered. In fact, the structure of Article 50 is designated to reinforce the solidarity between the 27 at the expense of the withdrawing State.

 

Can the UK withdraw its withdrawal?

Professor Eeckhout addressed the legal feasibility of withdrawing the withdrawal. Interestingly, the importance of this legal question is linked to the division of roles between the Government and Parliament in the UK – does the UK Government control the withdrawal? The answer to this question bears on the UK’s potential power to withdraw its withdrawal. As for the wording of the Lisbon Treaty, Article 50 is silent on this point. Some commentators maintain that Article 50 may be construed to allow such a move, yet Professor Eeckhout is skeptical. He maintained that the internal structure and logic of Article 50 supports the opposite view. According to Article 50, if no exit agreement is negotiated within two years, the treaty “shall cease to apply”. This, in the opinion of Professor Eeckhout, is indicative of the fact that a State cannot withdraw its withdrawal. Furthermore, it stands to reason that it should not be allowed. If a State would be allowed to announce a withdrawal, and withdraw it in case it is not happy with the negotiations for an exit deal, that would invite an abuse of process.

Brexit and the protection of human rights

Dr Mantouvalou addressed the position of EU citizens living in the UK and UK citizens living in the EU. Recently, many alarming statements by MPs were reported in the press, regarding the status of EU citizens domiciled in the UK. Dr Mantouvalou argued that these positions may lead to the violation of the European Convention on Human Rights (ECHR), and specifically Article 8 – the right to respect for private and family life. This breach may be created in a twofold manner – by the uncertainty created under the current situation, and by a possible future deportation of EU citizens from the UK.

Over a million EU citizens currently reside in the UK. They have arrived with legitimate expectations, in a lawful manner, in conformity with their EU citizenship, and while exercising their free movement right. This right was construed broadly by the ECtHR so as to cover the protection of a particular life style and a way of life, including in cases of eviction from a certain geographic area. The uncertainty over the situation and status of EU citizens in the UK, possess the potential of violating of their right to private and family life. As for the ability to deport EU citizens, which seem to be a possibility according to the Government, under EU law deportation may only be performed under extreme situations of emergency or matters of security. Seemingly, the Government’s position is that it is not planning to follow this constellation, but it is then not clear how any future deportation of EU citizens may be legally justified.

The constitutional dimension of devolution

Dr McCrea noted that Brexit brought about two main challenges. First, EU law and EU membership is interwoven and embedded in many devolution arrangements. This means that any decision to withdraw bears on devolution settlements. As for the contention that the Scottish Parliament may veto the decision, it is problematic. Legally, EU matters are reserved solely for the Westminster Parliament. Thus it may be unconstitutional for Scotland to veto the decision to leave.

Recently, the Scottish Government argued that a material change in the relations with the EU may trigger another Scottish referendum. This leaves the Scottish position vis-à-vis the UK in the UK’s position with the EU. Thus, the UK may leave the EU by a single referendum vote, and each part of the UK may leave it by a majority vote in a local referendums. Ironically, the UK sought to leave the EU, a federation of sovereign nations, in the name of national self-government and parliamentary sovereignty, only to learn that it too may become a “mini-EU” allowing parts of the UK to leave – using EU language – “according to their own constitutional requirements”.

Prof King addressed the implications of the referendum of Northern Ireland and Wales. He explained that the restriction of freedom of movement between Northern Ireland and Ireland may have politically explosive consequences, for a border between these two areas is extremely significant. Further, the Norther Ireland Act provides under Section 1 that if the majority of the people wish to leave the UK, they may ask the UK to Government do so. Thus, the disagreement over the Brexit vote in Northern Ireland may lead to the activation of the power under Section 1.

The event is fully available here: https://www.youtube.com/watch?v=EnllHKuINSE