EU-ACP Economic Partnership Agreements After Brexit: The (Neglected) Case of Legitimate Expectations and Fundamental Change of Circumstances
| Author | Regis Y. Simo |
| Pages | 423-455 |
EU-ACP Economic Partnership Agreements
After Brexit: The (Neglected) Case of
Legitimate Expectations and Fundamental
Change of Circumstances
R
EGIS
Y. S
IMO
*
Abstract
The United Kingdom (UK) officially left the European Union (EU) in
January 2020. While the nature of its future relations with the rest of the
EU Members is couched in a Trade and Cooperation Agreement concluded
in extremis in December 2020, it will cease to be part of several agreements
concluded by the EU in the areas of common commercial policy. This is the
case for EU trade agreements including Economic Partnership Agreements
(EPAs) concluded between the EU and its Members with African, Caribbean
and Pacific (ACP) countries. With Brexit now effective, international
agreements concluded by the EU cease to be applicable to the UK whose
status with regard to the EU is that of a third state. Thus, the UK becomes
a non-member state of the EU with regard to EU’s international partners.
Consequently, Brexit implies the modification of the territorial scope of
treaties concluded by the EU. This paper studies the consequences of Brexit
on these EPAs. It explores whether, and to what extent, ACP countries may
invoke a fundamental change of circumstances provision to seek termination
of their respective EPAs because Brexit was an event that they could not have
contemplated when negotiating these agreements. Likewise, it investigates
whether the threat of termination could provide any leverage to ACP
countries to induce renegotiation of the terms of EPAs considering
frustration of their legitimate expectations.
* Senior Researcher at Mandela Institute, School of Law, University of the Witwatersrand,
Johannesburg, South Africa. PhD in International Law and Economics (Bocconi University);
LL.M in International Trade Law (University of Fribourg, Switzerland). Contact:
simo.regis@gmail.com. A prior draft of this paper was presented at the 15th Conference of the
Young Researchers of International and EU Law, University of Milan on 1 April 2019 focusing
on withdrawal from multilateral treaties. I thank participants for their engagement with my
presentation. I also thank Lorand Bartels for his comments on an earlier version of this paper.
All errors and shortcomings remain my own. This paper was completed on 28 February 2021,
with additional websites and sources added.
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA INTERNATIONAL LAW SECTION
424 THE INTERNATIONAL LAWYER [VOL. 54, NO. 3
I. Introduction
In 2019, a World Trade Organization (WTO) panel ruled for the first
time on the justiciability of the national security exception that had lain
dormant since the entry into force of the WTO Agreement and its covered
agreements in 1995.
1
The central issue in this case was Russian bans and
restrictions on traffic in transit by road and rail leaving from Ukraine across
Russia and destined for neighboring countries.
2
The Panel was asked to rule
whether Russia could justify her seemingly WTO-inconsistent measures
under Article XXI of the General Agreement on Tariffs and Trade (GATT).
3
Despite this central issue which has been covered abundantly,
4
this case
arose in part as a result of Russia’s suspension, effective as of 1 January 2016,
of the Commonwealth of Independent States Free Trade Area (CIS-FTA)
with respect to Ukraine.
5
Russia argued that the entering into force of the
economic part of the European Union (EU)-Ukraine Association
Agreement constituted a threat to its vital interests.
6
In particular, Russia
considered that failure to reach “a legally binding agreement that would
meet [its] interests” before proceeding to sign the trade agreement with the
EU constituted a fundamental change of circumstances, “which were
essential for Russia” at the conclusion of the CIS-FTA.
7
Simply put, Russia
considered the EU-Ukraine agreement as a fundamental change of
circumstances affecting Russia’s obligations towards Ukraine under the CIS-
FTA, justifying the suspension.
8
1. See Panel Report, Russia— Measures Concerning Traffic in Transit, WTO Doc. WT/
DS512/R (adopted April 26, 2019) [hereinafter Russia—Traffic in Transit].
2. Id.
3. Id.
4. See Tania Voon, Russia – Measures Concerning Traffic in Transit, 114 A
M
. J. I
NT
’
L
L. 96,
96–97 (2020); Tania Voon, The Security Exception in WTO Law: Entering a New Era, 113 A
M
. J.
I
NT
’
L
L. U
NBOUND
45, 45 (2019); Stephanie Hartmann, Russia – Measures Concerning Traffic in
Transit (WTO), 58 I
NT
’
L
. L
EGAL
M
ATERIALS
899, 899 (2019); Chao Wang, Invocation of
National Security Exceptions under GATT Article XXI: Jurisdiction to Review and Standard of Review,
18 C
HINESE
J. I
NT
’
L
L. 695, 700 (2019); Geraldo Vidigal, WTO Adjudication and the Security
Exception: Something Old, Something New, Something Borrowed – Something Blue?, 46 L
EGAL
I
SSUES OF
E
CON
. I
NTEGRATION
203, 203 (2019).
5. See Committee on Regional Trade Agreements, Notification of Regional Trade Agreement,
WTO Doc. WT/REG343/N/1 (June 1, 2013) (note that The signatories of the Treaty on a
Free Trade Area between members of the Commonwealth of Independent States (CIS) are
Armenia, Belarus, Kazakhstan, Kyrgyz Republic, Republic of Moldova, Russian Federation,
Tajikistan, and Ukraine).
6. See Association Agreement between the European Union and its Member States, of the
one part, and Ukraine, of the other part, May 29, 2014, 2014 O.J. (L 161) 1, 3; see generally
Odysseas Spiliopoulos, The EU-Ukraine Association Agreement as a Framework of Integration
Between the Two Parties, 9 P
ROCEDIA
E
CON
.
AND
F
INANCE
256, 258 (2014) noting that while the
broad objectives of the EU-Ukraine Association Agreement are to facilitate Ukraine’s closer
political and economic integration with Europe, the economic part specifically provides for a
Deep and Comprehensive Free Trade Area (DCFTA) between the EU and Ukraine).
7. Russia— Traffic in Transit, supra note 1, at 26–27.
8. Id.
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA INTERNATIONAL LAW SECTION
2021] EU-ACP ECONOMIC PARTNERSHIP AGREEMENTS AFTER BREXIT 425
The act officializing the divorce between the United Kingdom (UK) and
the EU (known as Brexit) is now signed, sealed, and delivered. It is on the
eve of the Christmas Day, on 24 December 2020, that both parties finally
reached an agreement,
9
thus putting an end to more than three years of
intense of negotiations full of uncertainties. With Brexit, the UK is now fully
independently in charge of its international trade policy,
10
and free to enter
into trade agreements with third countries.
11
On a different note, the UK
will also stop performing the obligations under some treaties entered into by
the EU on behalf of its Members, thereby reducing the (territorial) scope of
application of these treaties.
12
While the sanctity of international treaties, as
embedded in the principle of pacta sunt servanda, is the cornerstone of
international relations,
13
there are circumstances that may erupt in the life of
a treaty precluding performance of its obligations by one of its parties.
Because of this eventuality, the Vienna Convention on the Law of Treaties
(VCLT) provides not only that the operations of a treaty may be suspended
under certain circumstances, but also that it can be terminated altogether.
14
Under the rebus sic stantibus clause, a party to a treaty may invoke a
“fundamental change of circumstances” to seek termination of a treaty.
15
This holds true for trade agreements like the Economic Partnership
Agreements (EPAs) between the EU and its Member States, on the one part,
and the African, Caribbean and Pacific (ACP) countries, on the other part,
9. See Trade and Cooperation Agreement between the European Union and the European
Atomic Energy Community, of the One Part, and the United Kingdom of Great Britain and
Northern Ireland, of the Other Part, Dec. 31, 2020, 2020 O.J. (L 444) 1, 14. This Agreement is
provisionally applied from 1 January 2021 until 28 February 2021 pending ratification by the
parties.
10. See, e.g., Communication From the United Kingdom, Notification of withdrawal from the
European Union, WTO Doc. WT/GC/206 (Feb. 1, 2020); Communication From the United
Kingdom, End of The UK-EU Transition Period, WTO Doc. WT/GC/226 (Jan. 4, 2021)
(providing additional information on some of the implications of the end of the transition
period for the UK at the WTO).
11. See UK D
EP
’
TOF
I
N
’
L
T
RADE
, R
EPORT
, Preparing for Our Future UK Trade Policy, 2017,
Cm 9470,¶ 3.2 (on “trading with the rest of the world” including transitioning EU agreements
with third countries and negotiation and implementation of new ones). ¶ 3.1 that dealt with
“trading with the EU” materialized in the 2020 Trade and Cooperation Agreement.
331 [hereinafter VCLT] (stating in relevant part that “a treaty is binding upon each party in
respect of its entire territory”, in this case the territory of the EU. The territorial scope of free
trade agreements is very important to determine the rules of origin, i.e., the passport that allows
goods (and services) to benefit from zero tariff).
13. Id. at art. 26 (“every treaty in force is binding upon the parties to it and must be performed
by them in good faith.”).
14. See, e.g., Gabc´ıkovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J Rep. 7 ¶
104 (Sept. 25).
15. Rebus sic stantibus, L
EGAL
I
NFORMATION
I
NSTITUTE
, https://www.law.cornell.edu/wex/
rebus_sic_stantibus (last accessed Sept. 17, 2021).
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA INTERNATIONAL LAW SECTION
To continue reading
Request your trial