A POORLY DECIDED DIVORCE: BREXIT'S EFFECT ON THE EUROPEAN UNION AND UNITED KINGDOM.

• Author: Eddington, Benjamin J.W.

1. INTRODUCTION

   On June 24, 2016, the world awoke and learned the United Kingdom voted by referendum to leave the European Union, or "Brexit." (1) Responding to the result of the referendum vote, the world financial markets entered a new era of uncertainty. (2) Additionally, that morning the United Kingdom's Prime Minister David Cameron resigned, requiring the formation of a new executive government. (3) The United Kingdom, in the weeks and months that followed, insisted the referendum would go into effect by instigating proceedings under Article 50 of the Treaty of Lisbon. (4) This occurred despite calls for the resolution never to come before Parliament, calls to avoid haste, and even calls for a new referendum. (5)

   This Note evaluates the formation of the modern European Union, reviews the treaty provisions the Union's Member States are subject to, and discusses the future landscape of the United Kingdom and European Union, should the Brexit Referendum go into effect. (6) Part II of this Note focuses on the history and development of the European Union, including the entrance of major political actors, and the evolution of efforts within the United Kingdom to leave. (7) Part III evaluates current and future political strains between the United Kingdom and the remaining European Union Member States, as well as other world powers, including likely economic effects. (8) Part IV explores current litigation pending in British courts surrounding the referendum, Brexit's potential effect on social and political issues, and evaluates the different forms Brexit may take. (9) Part V concludes the risks associated with Brexit outweigh the reward and, if Brexit is inevitable, advocates for caution in forthcoming negotiations. (10)

2. HISTORY

   Today's European Union represents a major evolution in international relations over the last few centuries, from a frequent state of war between nations to a mostly continual state of cooperative support. (11) The historical reality of war in Europe, from the 1500s through 1945, resulted in roughly a seven percent loss of the average population per century. (12) In fact, during the past five centuries in Europe, relative peace has only existed while nations actively committed to cooperate with each other. (13) Europe's first major peace treaty occurred in 1648 with the Peace Treaty between the Holy Roman Emperor and the King of France and their Respective Allies, known as The Treaty of Westphalia. (14) Later, during the post-Napoleonic era, the European Monarchies came to a general, though volatile, consensus to preserve the status quo through the Concert of Europe. (15) Despite this consensus, war erupted again in Europe, from 1915 through the end of World War II (WWII) in 1945. (16)

   1. Evolution of the European Economic Community to the Establishment of the European Union

      In 1950, Robert Schuman announced the "Schuman Plan," entailing cooperation in the coal and steel industries between European countries, laying the foundation for the modern European Union. (17) Europe's first foray into a twentieth century cooperative accord occurred in 1951 with the Treaty Establishing the European Coal and Steal Community (ESCS Treaty), between West Germany, Italy, France, Belgium, Luxembourg, and the Netherlands. (18) In 1957, these nations agreed to further co operative provisions via the Treaty Establishing the European Economic Community (Treaty of Rome). (19) The Treaty of Rome established, in part, the European Common Market and European Atomic Energy Commission. (20) Doing so created the modern European Economic Community (E.E.C.). (21) The E.E.C.'s Common Market established the free movement of goods, the free movement of services, and the free movement of people, which effectively removed barriers to trade between Member States. (22)

      The continued economic success of the E.E.C.'s Common Market lead to substantial growth, both in the E.U.'s economic strength and membership. (23) The United Kingdom attempted to join the European Community in 1961 after seeing the short-term successes among the founding Member States; however, France blocked the United Kingdom's entry. (24) The United Kingdom eventually overcame the opposition and entered the E.E.C. in 1973. (25)

      The 1980's acted as a catalyst for change within the E.E.C. (26) The social changes in Europe, coupled with the expanding European frontier, caused many Member States to consider significant expansion. (27) In 1992 Member States ratified the Treaty of Maastricht, thus officially creating the modern European Union. (28)

   2. Campaigns for the United Kingdom to Leave the European E.E.C. and the European Union

      1. First Attempt to Exit European Union

         The 2016 "Brexit" movement was not the first attempt for the United Kingdom to leave the European Union. (29) The first attempt was to leave the E.E.C. in 1975, prior to the formation of the European Union. (30) The 1975 referendum on leaving focused on concerns of some who believed membership in the European Union robbed the United Kingdom of critical sovereignty rights. (31) The 1975 vote affirmed the decision to remain within the E.E.C., despite being the result of a slightly smaller subset of the electorate. (32)

         During the late seventies, for unknown though highly theorized reasons, the British developed significant skepticism and mistrust of mainland Europeans. (33) Euroscepticism in the United Kingdom grew during the 1980's due, in part, to concerns over a stronger European Parliament extending its influence and eclipsing British sovereignty. (34) These concerns found root in the conservative Tory Party. (35) The United Kingdom developed stronger ties with Europe throughout the 1990s and early 2000s; however, Euroscepticism was already so entrenched in the Tory Party that the stronger relationships grated on the people. (36)

      2. Present Referendum

         By the present decade, the President of the European Council, Donald Tusk, invited Prime Minister David Cameron to address the United Kingdom's concerns as the strain between the United Kingdom and the European Union was at a tipping point. (37) Cameron's November 10, 2015 letter outlined four major concerns, namely (1) the balance of economic governance between the United Kingdom and the portion of the European Union using the euro, also known as the Eurozone; (2) The competitiveness of the United Kingdom in the single market; (3) The balance of Member State's sovereignty versus the authority of the Union; and (4) Immigration concerns. (38) The European Union responded on February 19, 2016, in a European Council Conclusion and essentially agreed to all Cameron's requests. (39) Regardless of the conclusion's concessions, Prime Minister David Cameron believed the only way to silence the euro-sceptics was to hold a referendum vote, similar to the 1975 vote, to remain in the European Union or leave. (40) Finally, on June 23, 2016, the United Kingdom held its second referendum vote in the culmination of the Brexit movement. (41)

      3. Evolution of Human Rights

         The Magna Carta, in 1215, was one of the first known recorded political acknowledgement of human rights. (42) The rights originally granted under the original Magna Carta extended only from King John to the English land barons, not to the commoners. (43) The Magna Carter indicates a need for cooperation between parties, namely the king and the land barons; furthermore, George Washington's farewell address expressed these same cooperative ideals again during the infancy of the United States. (44) Evolution of these now basic human rights, recognized in Western culture, took several hundred years. (45)

         Notable additions to the evolving writings on human rights include the 1689 Bill of Rights produced by the United Kingdom, the 1776 Declaration of Independence by the United States of America, the 1789 Declaration on the Rights of Man and Citizen by France, and the 1791 Constitution and Bill of Rights by the United States. (46) These ideals evolved in ebbs and flows until the United Nation's declaration of human rights, in the shadow of WWII. (47) Early after the creation of the United Nations, it added to the human rights conversation by publishing the non-binding Universal Declaration of Human Rights. (48) The United Nations Universal Declaration of Human Rights was the first cooperative international attempt to define Human Rights. (49) In 1950, the E.U. Member States collectively joined the human rights discussion by enacted its first provisions on human rights through the European Convention on Human Rights (E.C.H.R.). (50)

         The European Union built upon the same principles, evolving in part from the Magna Carta and Universal Declaration of Human Rights, through the E.C.H.R. (51) Although amended multiple times, the original 1950 version and present 2002 version reflect the evolution of social outlook since 1215. (52) The fifty-nine Articles within the original E.C.H.R. addressed basic human rights, such as the right to a fair trial, freedom of expression, and freedom of assembly, as well as establishing the European Court of Human Rights. (53)

3. FACTS

   1. Legality of Treaty Withdrawal

      Article 54 of the Vienna Convention on the Law of Treaties, which is essentially the treaty governing the international enforcement of treaties, suggests the United Kingdom leaving the European Union does not violate international law. (54) Article 54 governs a country's ability to withdraw from a treaty. (55) The Article only permits withdrawal from any treaty in a few specific ways; one avenue is in adherence to the withdrawal provision of the treaty in question, should the treaty allow. (56) Despite Article 54, general international consensus is to maintain and preserve existing treaty relationships. (57) Yet, if the treaty provides an exit clause, withdrawal may occur despite international disproval. (58) Article 50 of the Treaty of Lisbon, the presently governing treaty regarding European...