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Article 50 is not forever
26 Nov, 2017

Most well-informed people believe that the Article 50 notification may be revoked unilaterally.

 

Some worry that it is all over: the Article 50 notice means that we will Brexit. But the weight of opinion is that we may unilaterally withdraw the notification with no penalty. London4Europe Committee Member Michael Romberg sets out the case.

Only the European Court of Justice may decide

No-one else has the power to make a definitive ruling. Everything else – including this blog – is speculation.

What the lawyers think

Some think that the notification is irrevocable, but most think it may be withdrawn.

First, a proponent of the irrevocability school: Paul Eden of the University of Sussex reminds us that Article 50 specifies how to deal with a time extension. So, as it does not provide for revocation he concludes that it is not permitted. He holds that even if it were permitted the customary law of nations obliges countries to have regard to the interests of other nations. Having put the EU through the Brexit negotiations it would not be in the interests of the EU for the UK to withdraw the notification. If the EU27 nonetheless allowed the UK to withdraw the notification that would amount to a treaty negotiation which would require lengthy procedures.

The contrary view is represented by Aurel Sari of Exeter University. The basis of the EU treaties is that they have been made by states in the exercise of their sovereignty. There is therefore a sovereign’s right to withdraw from the treaties. Article 50 does not create the right to withdraw but recognises it and in part regulates the procedure. There is an inherent right for a sovereign to change their mind and thus to cancel a notice of withdrawal, unless there is an express prohibition on doing so.

The ECJ determines the meaning of a treaty by reference to its underlying purpose. The purpose of the EU treaties is ever closer union. That purpose is best served by allowing a member state to remain in the EU by withdrawing an Article 50 notification.

The ECJ has regard to formal and customary international law. Article 68 of the Vienna Convention on the Law of Treaties records customary law when it says (albeit in respect of specific circumstances that do not apply here) that a notice to withdraw from a treaty may be rescinded unilaterally.

Jean-Claude Pirin a former director-general of the Council of the European Union's Legal Services argues the legal case that an Article 50 notification is revocable by the UK acting unilaterally.

We can forget about the Gina Miller case [that Parliament had to decide the Article 50 notification]. Both sides agreed – for very different reasons - that an Article 50 notification was irrevocable. But the courts did not decide that point.

The House of Commons Library produced a briefing note and concluded that “a preponderance of academic opinion” holds that the notification is revocable.

The Politicians Speak 

Lord Kerr, the British diplomat who was the UK’s ambassador to the EU and who later became secretary-general of the European Convention on the Future of Europe, was responsible for drafting the first version of the Article. He has frequently said the notification is reversible. Sometimes he adds that some might want some sort of price to be paid.    

Asked whether the formal Article 50 divorce process could be reversed, Mr Tusk replied: “I would be happiest if it is.”. He reiterated his view that whether Brexit takes place is a matter for the UK as recently as October 2017.

Angela Merkel said in June 2016 “I see no way to reverse that” and “This decision has been taken” (my translation). Both statements were reported in the British press as Merkel saying that Brexit is irreversible. But seen in context the statements were a call on the EU to negotiate seriously; but also not to negotiate concessions designed to keep the UK in the EU. They were not a statement about the law.

The European Institutions

On 12 July 2017 the European Commission’s factsheet on Brexit stated categorically: “… once triggered, [Article 50] cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the notification.”

In spite of its clarity, it is of course not a statement by the ECJ. And it contradicts the European Parliament resolution on the Brexit negotiations which states that the notification is revocable, though only with the agreement of the EU27. That too is not provided for in Article 50.

Explicitly underpinning the Parliament’s thinking and probably underpinning the Commission’s dogmatic statement is the fear that an Article 50 notification could be revoked and immediately resubmitted as a device unilaterally to extend the negotiating period. Of course, an insincere revocation like that would simply be ineffective.

Conclusion

After our victory in the referendum on the terms, the new Remain government goes to Brussels and announces that it is withdrawing the Article 50 notification.

EU member states grumble about lost time and effort but are relieved. EU28 is better than EU27. And the fact that we have changed our mind is a spectacular vote of confidence in the European project. So they will watch us withdraw the notification and accept the fact.

Nigel Farage MEP however takes us to the ECJ – which would be enjoyable in its own right. He argues that the Article 50 notification is irrevocable.

The ECJ must decide the case in the interests of the treaties whose general principles are closer co-operation and harmony between European countries – which point to a wider membership of the EU for European democracies.

Essentially Farage would be calling for the UK’s expulsion from the EU. There is no treaty provision for expulsion of a member state.

If you go to law, there is always litigation risk. But it is hard to believe that the ECJ would in substance insist on expulsion on the back of a disputed interpretation of a procedural technicality.  

We may assume that the Article 50 notification may be revoked.