Notes

  • 1. For an explanation of why the so-called precedents are not relevant, see Chapter 4.
  • 2. Some analogies are clearly fallacious: Consider, for example, the parallel drawn between Union citizenship and the status of commonwealth citizen, a status common to all kinds of British nationality statuses and citizens of commonwealth countries. The acquisition and loss of this status is a matter to be regulated by the Commonwealth. Historically speaking, the UK allowed people from territories gaining independence to maintain the overarching subjecthood to the Commonwealth, since the latter defines its own citizens. While this analogy is fit to test the theory of internal enlargement for cases such as Scotland, Flanders and Catalonia, it has no traction in Brexit since the UK never exited the Commonwealth.
  • 3. See, e.g. Douglas-Scott 2016. Some evidence suggests that private rights under municipal law such as property and contractual rights may be frozen according to customary international law. Doctrine is divided when it comes to automatic accession to Human Rights Treaties in case of state succession. But even if automatic accession did take place it would not help protecting the ‘special rights’ of EU citizens.
  • 4. Note verbale of the Delegation of the EU to the UN 19 September 2012, § A4.
  • 5. Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
  • 6. See International Law Commission, Articles of Nationality of Natural Persons in Relation to the Succession of States (with Commentaries), 3 April 1999, Supplement No. 10 (A/54/10).
  • 7. Ibidem, at 30.
  • 8. Reference is to those bound by the European Convention on Nationality, namely Austria, Bulgaria, Czeck Republic, Denmark, Finland, Germany, Hungary, the Netherlands, Portugal, Romania, Slovakia and Sweden. Besides the many reservations made to European Convention on Nationality, it might also be a dubious solution for some of these countries for internal reasons: for example, Austria enforces a ban on multiple nationalities; Sweden already has a comparatively easy naturalisation process; Denmark imposes integrations tests, etc.
  • 9. Declaration on the Consequences of State Succession for the Nationality of Natural Persons (and Commentary), reproduced in Council of Europe, European Commission for Democracy though Law, ‘Consequences of State Succession for the Nationality’ CDL-INF (97).
  • 10. Some have even pointed out that if UK citizens were non-EU citizens (third-country nationals), they could apply for asylum in the EU (and vice versa). This prospect, however, seems improbable. A more probable effect is that it will be harder also for UK to obtain extradiction from EU member states. The recent Petruhhin ruling (Case C-182/15 ECLI:EU: C:2016:630) takes a step towards EU exclusive competence over extradition treaties with non-EU countries. It may become unlawful to extradict to the UK; there are several challenges in Ireland to the execution of British European arrest warrants following the Brexit vote.
  • 11. Case C-20/02 Zhu and Chen (2004) ECRI-09951.
  • 12. Application No. 26828/06, 26 June 2012 Kuric v Slovenia.
  • 13. The connection between Art. 8 ECHR and EU law has been stressed previously: See Wiesbrock 2009 at 199 - in relation to residence rights of third country nationals who are family members of European citizens. Then again, the directive on permanent residence rights for EU citizens also regulates the residence rights of their family members (See Directive 2004/58/EC).
  • 14. There is, nonetheless, a similarity in circumstances between the cases insofar as the UK may be tempted to deny continued rights to residency to a number of citizens with non-UK member state nationality, similarly to how Slovenia denied it to those who had nationality ofother states emerging from the break-up of Yugoslavia who however had, at the time of the former federation, established their permanent residency in Slovenia, just like second country nationals enjoy Treaty rights on UK soil.

15. See Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents: After five years of continuous residence (Article 4 LTRD) and subject to satisfying additional criteria, LTRs acquire the right to reside in the territory of member States other than the one which granted them the long-term residence status (Article 14(1) LTRD).

 
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