After Brexit: The legal relationship of the UK-OCTs with the EU

The precise implications of the United Kingdom’s (UK’s) departure from the European Union (EU) are currently the subject of both political and academic debate. The only point of consensus would appear to be that there will be an extended period of uncertainty for all concerned, including the UK’s Overseas Countries and Territories (UK-OCTs).

This paper examines a lacuna in both EU case law and the academic literature. That lacuna surrounds the issue of whether as a matter of EU law, the termination of the UK’s membership in the EU will alter the status of the UK-OTCs association with the EU, and if so, what will that alteration look like?

The present work builds on Professor Kochenov’s work on EU law relating to the OCTs, and in that regard utilises a selective literature review that includes legal-historical elements, as well as a selective case law review. Variations and exceptions in the scope of the territorial application of the EU acquis that are applicable to each territory are noted to be rooted in the colonial history of each OCT, and complicated by the fact that the legal authority of Member States to change the legal status of overseas territories is circumscribed, non-uniform and in general, infrequently applied.

The paper concludes that if the UK leaves the EU and the EU takes no steps to modify the Treaties in relation to the UK-OCTs, then the 2013 Overseas Association Decision that sets out the specifics of the legal framework for the EU’s relationship with all OCTs would continue to apply to UK-OCTs. It also concludes that the status of that legal relationship may make little practical difference to what happens on the ground.