CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ NO REASON TO PARTY: UNITED KINGDOM AS PARTY TO EU … As both texts demonstrate, the “EU Party” is divided into three categories: (i) the EU; (ii) the Member States; and (iii) the EU and its Member States. 24 But what are the purpose and legal consequences of the division? Does it mean that each Member State is a Contracting Party in its own right? For a correct interpretation of the meaning, it is necessary to turn to rules of interpretation of public international law which are mainly codified in the Vienna Convention on the Law of Treaties (VCLT), 25 recognised as an expression of customary international law. 26 In accordance with Art. 31 of the VCLT we must to look into the ordinary meaning of terms of the treaty in their context and in light of the treaty’s object and purpose. Firstly, looking for the ordinary meaning, e.g. the meaning that is “regular, normal or customary” is a useful point of departure. 27 In applying this interpretative approach to the two examples, the practice of an expression “on the one hand, […] (hereinafter referred to as the ‘EU Party’), and on the other hand, Korea/Canada,” demonstrates that the treaties are of a bilateral nature. In addition, this opinion is shared also by the European Court of Justice. In the Court’s decision European Development Fund it asserted that the Fourth ACP-EEC Lomé Convention concluded by the Community (now EU) and its Member States of the one part and the ACP States of the other part “established an essentially bilateral ACP-EEC cooperation.” 28 Despite some formulations similar to multilateral agreements the definition of “Parties” and existing case law demonstrate that both FTAs are bilateral treaties between the “EU Party” and Korea/Canada. However, there is still the issue of a separate position of “its Member States” in the definition. The definition of Members States is not provided in neither of the texts above, and therefore the contextual approach, taking the entire text including the preamble into account, can help identify the right meaning. 29 The preamble in the EU-Korea FTA describes the status of the UK and other EU Member States as follows: “Contracting Parties to the Treaty on European Union and the Treaty on the Functioning of the European Union, hereinafter referred to as the ‘Member States of the European Union’.” 30 The TEU in art. 1(1) points to the Members States as the High Contracting Parties to the TEU establishing the European Union and conferring on it competences to attain objectives they have in common. Accordingly, losing its status of a Member of the EU, the UK automatically will cease to be a party to the TEU and the TFEU and also part of the group defined as “its Member State”. 31 24 The same definition is included also in the Trade Agreement between the EU and Colombia and Peru, Economic Partnership, Political Coordination and Cooperation Agreement between the EU and Mexico and in Association agreements between the EU and Algeria or Egypt. 25 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, Art. 31. 26 See Gabčikovo-Nagymaros Project , Hungary v Slovakia, (1997) ICJ Reports 1997, paras 42-46; Pulp Mills on the River Uruguay , Argentina v. Uruguay, (2010) ICJ Reports 11, para 65. 27 DÖRR, Oliver, Article 31: General Rule of Interpretation. In: DÖRR, Oliver, SCHMALENBACH, Kirsten (eds.), Vienna Convention on the Law of Treaties: A Commentary , Springer: Berlin, Heidelberg 2012, p. 542. 28 Case C-316/91 , European Parliament v Council of the European Union, Judgment of the Court of 2 March 1994, para 29. 29 Supra note 27, p. 543-544. 30 Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, May 14, 2011, 2011 O.J. (L 127) 6, Preamble. 31 POIENARU, Anna, SAVIC, Stefanija, MCCABE, Morgan, Brexit and the EU – Canada Comprehensive Economic and Trade Agreement: Implications for the European Union, the United Kingdom and Canada , Graduate Institute Trade and Investment Law Clinic Papers (13 March 2017), p. 19; FRESSYNET, Isabel, The Legal Impact of Brexit on the Complex Economic and Trade Agreement (CETA) Between the European Union and

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