This is the abstract of a new paper by Lorand Bartels:
It has become conventional wisdom that once the UK leaves the EU it will have to renegotiate core aspects of its WTO rights and obligations, and in particular its concessions under Article II of the GATT 1994 and Article XX of the GATS. This article argues that, on the contrary, based on WTO law, GATT 1947 practice, and the rules of state succession, the position of the UK within the WTO will not change at all. First, the UK is already a full WTO member with full multilateral WTO rights and obligations, even if its commitments are set out in the EU's schedules. What will change after Brexit is simply that the exercise of these rights, and the assumption of responsibility (ie attribution) of these obligations will revert from the EU to the WTO. What remains is to identify these rights and obligations. This is straightforward for rights and obligations that apply erga omnes partes to WTO Members. It is more difficult to identify the UK's obligations in relation to tariff rate quotas and agricultural subsidies. However, this can be done, and, it is submitted, the UK is also entitled to submit a new schedule for certification as a 'change' not amounting to a 'modification' of its schedule. Any objections will, ultimately, have to be resolved in dispute settlement proceedings, where it is likely that, with properly designed schedules, the UK will prevail. This article also argues against the relevance of the territorial application clause in the EU and EU Member State GATS schedule, in light of customary international law on state succession, and contends, finally, that the UK is entitled to succeed to the Government Procurement Agreement as concluded by the EU in respect of UK covered entities.
Here is the conclusion:
To summarise, on the basis of the analysis offered here, the UK possesses full WTO rights and performs obligations under the WTO multilateral trade agreements, which are currently, for the most part, exercised and performed on its behalf by the EU, and that the UK also succeeds to the rights and obligations under the Government Procurement Agreement 2014, which are currently held in respect of itself and its territory by the EU. In many respects it is not complicated to identify the UK’s rights and obligations under these agreements. Its rights (currently exercised by the EU) are easy to identify insofar as they correspond to obligations owed erga omnes partes by other WTO Members; its obligations (currently performed by the EU, and at times by the UK) are likewise easily identified insofar as they are owed by the UK (including via the EU’s schedules of concessions) on an erga omnes partes basis to all other WTO Members. The main detail on this point concerns the territorial limitation in the UK’s GATS schedule, according to which the schedule only applies to EU territory, but this can with justification be ignored in the UK’s new schedule.
Complications arise where the UK’s rights correspond to part of a right or obligation, determined on a quantified basis, that is currently set out in the EU’s schedules. This is the case for the EU’s right to subsidise agricultural production up to a set limit, and for the EU’s rights to export agricultural production to other WTO Members on a preferential basis under certain of their tariff rate quotas. It was suggested that the UK should adopt a subsidy commitment corresponding to recent receipts from the EU’s Common Agricultural Policy over the past three years, and that it has an automatic right, under Article XIII:2 of the GATT 1994, to access its share of any such tariff rate quotas.
As to the UK’s quantified obligations corresponding to the EU’s country-specific tariff rate quotas, it is likely that, in practice, quotas are likely to be established with relevant WTO Members by agreement, in accordance with Article XIII:2 of the GATT 1994. However, such an agreement should be reached against the background of the fact that the UK currently possesses obligations with respect to these tariff rate quotas; it is just difficult to know what these obligations mean in practice. It was also suggested that the UK could offer tariff rate quotas corresponding to recent imports, including from the EU-27, over a representative three year period, to forestall a potential non-violation complaint.
Finally, as to the procedure to be followed, it was contended that the suggested that the UK should submit new schedules under Article II of the GATT 1994 and Article XX of the GATS as other ‘changes’ and rectifications to the current EU schedule, in respect of itself and its territory. Importantly, any objections to such schedules would not entitle other WTO Members to require renegotiation of the UK’s entire schedule, as is sometimes thought to be the case (and certainly not under Article XXVIII of the GATT 1994, which is in any case irrelevant to this situation). At most, it will lead to dispute settlement proceedings in respect of a given measure alleged to violate the UK’s commitments or that otherwise nullifies or impairs benefits under the GATT 1994 or the GATS.