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Does the 1969 Vienna Convention help?

It has been claimed that the 1969 Vienna Convention would protect ‘acquired rights’ for estimated half a million Britons in France - but can this be relied on?

Readers have contacted Connexion asking whether the 1969 Vienna Convention would protect ‘acquired rights’ for estimated half a million Britons living in France in the event of a Brexit – experts we consulted say it would not.

We cover the issue of what may happen in a potential Brexit in our new April edition.

However we explain here that none of the three experts we consulted – an experienced international lawyer and two university law specialists – thought any rights relating to matters like benefits, pensions or healthcare would be protected by the Vienna Convention, with possible exceptions for residence rights or the right not to have a work contract terminated.

This is despite the fact that the convention has been cited in the UK press and by campaigners for Britain to leave as guaranteeing that nothing would change for expatriates already making use of their EU free movement rights to live in France if a Brexit took place. According to estimates by the British embassy in Paris there may be 4-500,000 Britons living in France (among more than two million who are thought to live outside the UK in the EU as whole).

The convention, which was brokered by the United Nations, sets out rules to be respected with regard to international treaties, and, at article 70, states that, unless the parties agree otherwise, if a treaty is ended or changed (as in the UK withdrawing from membership of the founding EU treaties) this does not affect any right or obligation of the parties that were created due to the treaty before it came to an end.

On the face of it, this appears important, especially because nothing in the actual EU treaties themselves states that any 'vested' rights acquired during the treaties would continue after leaving, according the House of Commons Library (Exiting the EU: UK reform proposals, legal impact and alternatives to membership, February 12, 2016): “Unlike many international treaties, there is no ‘survival clause’ with rules on the protection of acquired rights of British citizens.”

So, can the Vienna Convention help? All other considerations aside, it should firstly be noted that France was the only UN state to vote against it and it did not sign it. Although the Conseil Constitutionnel says France considers itself bound by many of its main dispositions, this fact in itself is a reason to be cautious about relying on it, Connexion was told.

An international and European law specialist from Nantes University, Renan Le Mestre, said he did not think that invoking the convention was “useful” with regard to expats’ rights.

“If the UK leaves the EU, the rights that people are concerned about may be maintained in the context of an agreement negotiated with the EU or a bilateral treaty with France. Without such a legal basis they would cease to have their effect,” he said. (It should be noted that, naturally, anything agreed in such treaties for British expats would have to apply reciprocally to either EU citizens or French people in the UK).

He said this is partly because the convention concerns rights of one state to another, and it would be difficult for a member of the public to rely on it in a court of law concerning their individual rights.

Dr Le Mestre thought it could not be relied on even for the right of residence. “The right to free movement and to live in other parts of the union is all linked to European citizenship; if that citizenship falls away, so do these rights,” he said.

However he said that Britons living in France for more than five years who have, as is their right as EU citizens, obtained a permanent residence permit from their prefecture (carte de séjour UE – séjour permanent) might be able to make use of that, as a matter of national French law, as evidence they have acquired a right to stay in France. “Obtaining one, as a matter of caution, would be preferable,” he said. (Usually, however British expats do not follow this formality because EU citizens have no need of such a permit to remain in France).

An experienced international lawyer confirmed to Connexion that the convention, strictly speaking, is about obligations of states to each other. “Nothing in it actually refers to individuals,” he said.

He said it is possible that residence rights of existing expats might be seen as treaty obligations from one state to another.

However he added: “I strongly believe that speculation as to what may happen, based on Vienna, may ultimately prove to be dangerously misleading.”

What is more most of the rights expats rely on – on pensions and healthcare etc - do not derive directly from the founding EU treaties, but from various regulations and directives, he said.

The London School of Economics’ professor of EU law, Damian Chalmers, said: “Basically, this argument of acquired rights for expatriates has nothing going for it.

“At the moment, for example, there is a right for Britons to work or reside in France under the EU treaty, but if that ends then who knows what the future will be.”

Acquired rights protected under the convention in the event of a Brexit would be limited to such areas as patents, contracts and property rights, he said.

He added: “As far as Connexion readers go, my view is it’s highly likely that a freeze on the rights will be agreed for a few years because no one really has an interest in cancelling each other’s citizens’ rights.

“Britain doesn’t want its citizens to be made vulnerable, nor does it look good to start bullying French citizens who’ve been in the UK 15 years and say ‘you can’t remain’.

“So it comes down to what is politically realistic, not what is legally entrenched. And what is realistic is to seek arrangements that don’t cause huge disruption and suffering; so I think expats will not be told to up sticks and leave.

“However it probably wouldn’t be as good for British residents in France as it is now – for example there could be restrictions on British pensioners using the French health service and perhaps on access to certain other benefits that are costly to the French state. And I do not think there would be any exportability of UK disability benefits. The possibility of British pensions being frozen is also something I would be concerned about as a British resident in France.

“But if those arguing for a Brexit are relying on acquired rights, that does not exist. It’s a nonsense argument.”

He said, however, the right to not have an existing work contract terminated would probably be an ‘acquired right’, as would, in his view, a residence right based on a UE – séjour permanent permit.

Prof Chalmers said some people in favour of a Brexit had cited the House of Commons Library as having said the convention gave vested rights, however he said this referred to a 2013 document (‘Leaving the EU’), which had merely raised the possibility of vested rights arising due to the convention as something to think about as part of the debate. However he said the body’s February 2016 publication on the topic does not confirm this to be true.

Along with the issue of the convention, some commentators believe that we can look to Greenland as a precedent for what would happen in a Brexit, however this comparison is also unlikely to lessen the uncertainty.

Greenland - with a population of around 50,000 - left the EU’s forerunner the EEC after it gained home rule from Denmark in 1979; however it remained an autonomous territory within the Kingdom of Denmark, which remained.

The House of Commons Library notes in its briefing papers that at that time the European Commission argued that there should be transitional arrangements allowing the “extremely small number” of foreign workers in Greenland to maintain their main rights (the commission did not mention if any workers from Greenland should retain theirs in EU states).

It adds however that “it is arguable this whole situation is scarcely relevant”, because this was long ago, there was the link with Denmark – Greenland remained an ‘overseas country and territory’ of the EU - and negotiations over Greenland’s exit revolved mostly around fish.

Remember: British expats living in France who have not lived abroad for 15 years or more can vote in the EU referendum. To register see Register to Vote. Expats are being advised to register no later than April 16.

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