Brexit, Democracy, and Human Rights: The Law between Secession and Treaty Withdrawal

Abstract

The United Kingdom (UK) has triggered the mechanism to exit the European Union (EU). Such a decision was taken at a referendum held in 2016. The referendum was, however, not legally binding, and only England and Wales, but not Scotland or Northern Ireland, endorsed the option to exit the EU. UK’s EU exit can be seen as the UK’s withdrawal from the Treaty on European Union (TEU) and the Treaty on the Functioning of European Union (TFEU) pursuant to Article 50 TEU. But the TEU and TFEU are not ordinary treaties of public international law. They are constitutional instruments of a complex supra-national polity—the EU. Brexit is thus in many respects more than just an ordinary treaty withdrawal; it can be seen as the UK’s functional secession from the EU. This creates tensions between the rules of treaty withdrawal and tenets of democratic decision-making on territorial matters in a constitutional democracy. This article analyzes such tensions and contrasts Brexit with the reasoning of the Supreme Court of Canada in the Quebec case, holding that democracy was not a simple majority rule. Yet, it is questionable whether the treaty-law logic of Article 50 allows for accommodation of the Quebec principles. The article also demonstrates how the European Convention of Human Rights could step in to protect certain already-acquired rights of EU citizens after Brexit. Given the complexity and diversity of rights stemming from EU citizenship, however, there is no complete legal certainty without either an agreement between the EU and the UK to this effect, or further development of the existing case law on the matter.

Keywords: Brexit, referendum, secession, withdrawal