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May, 25 2017

International environmental law after Brexit

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Posted by Joe Newbigin at 21:33
In parallel with UKELA’s work on the ‘roll-over’ of specific sectors of EU environmental legislation we have also been looking at the technical challenges Brexit presents for other layers of environmental governance. One of our first lines of inquiry has been the impact of Brexit on the UK’s international environmental obligations. We will be publishing a detailed briefing paper on the subject in the Autumn, but here are some initial thoughts.


Scope of the UK’s international obligations

The March 2017 White Paper has acknowledged the role international law has had in delivering “tangible environmental benefits” and states that the UK will “continue to honour our international commitments and follow international law”. Unfortunately, the White Paper does not detail which international environmental agreements the UK will remain a party to, and therefore which commitments the UK will be obliged to honour. To shed light on this we have begun to map all the international agreements that the UK is currently bound by, and how each has been implemented and enforced at an EU and national level.

When we analysed whether any of these agreements will ‘fall away’ we noted two main issues. First, the White Paper has not addressed the status of the international agreements which the EU entered into on behalf of Member States under its exclusive competence. Our analysis suggests that these agreements will no longer apply to the UK post-Brexit unless the UK signs and/or ratifies these agreements. The immediate consequences of a ‘do nothing’ scenario for the UK may therefore include:

  • losing the ‘backstop’ these agreements provide in terms of environmental obligations, rights and minimum standards;
  • immediate impact on international relations, such as the effect of leaving the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes for lakes spanning the border between Northern Ireland and the Republic of Ireland; and
  • forfeiting membership of inter-governmental bodies, including bodies created under such international agreements such as the North Atlantic Salmon Conservation Organisation.
Second, there is also a high degree of uncertainty surrounding the status of ‘mixed agreements’ which contain elements falling within both EU and Member State competence. One perspective is that as the UK is already a party to these agreements in its own right and will be obligated to stick to these commitments once we leave. Others have argued that both exclusive and mixed agreements will fall on Brexit day, meaning they will have to be renegotiated after Brexit. A third view is that the UK would remain bound only by the elements of an agreement which were within the UK’s competence. The White Paper does not endorse the legal basis for any of these positions. The Task Force has identified nearly 50 mixed agreements, spanning most areas of environmental law, and it is unclear whether the environmental obligations contained in these agreements will constitute part of the UK’s post-Brexit international commitments. It is also unclear whether other states will themselves consider that the UK is bound by such agreements, a question which is particularly salient where reciprocal obligations exist.

Continued implementation and enforcement of international obligations

Recognising these limitations, we have nevertheless started to look at how the mechanisms proposed in the White Paper for preserving and converting EU law may affect the implementation and enforcement of the UK’s international obligations. For instance, where the UK has ratified an agreement to which the EU is not a party, but the obligations under that agreement are predominantly implemented by directly applicable EU law (such as global limits on ship exhaust emissions set by MARPOL 93/78), then will the conversion of this part of the acquis be sufficiently safeguarded? Will provision be made for ensuring continue compliance with international obligations when considering, for instance, a ‘sunset clause’ for EU-derived law?

Further questions arise in relation to agreements which will change over time. For example, under the model for conserving and preserving EU-derived law, will future changes to an international convention lead to a corresponding change in domestic regulations? What happens when an agreement is frequently updated which has, until Brexit, been implemented by EU law which domestic law in turn cross-refers (such as changes to the lists of endangered species in CITES)? Without a new mechanism for updating the UK’s domestic regulation, a ‘snap-shot’ of EU law, taken on the day of Brexit, would quickly become out-of-date and potentially put the UK in non-compliance with its international obligations.

The White Paper leaves these and many other complex questions unanswered. The current system of multi-layered governance clearly creates additional pressures and constraints on the legislative form of the UK’s departure from the EU. As we prepare for the publication of the Great Repeal Bill after the general election we will continue to map these ‘known unknowns’ and prepare a framework with which to analyse the Bill’s effects. We will also be publishing a more detailed paper on the subject later in the year.

More details of UKELA’s work on Brexit can be found on the UKELA Brexit page.


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Welcome to the UKELA Brexit Task Force blog where we consider the impact of Brexit on environmental law, practice and enforcement in the UK
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