Can’t Britain Exit Brexit (Redux)?

by Edward Swaine

My earlier Brexit post noted the emerging rigidity of the United Kingdom’s position that its Article 50 notice was irrevocable – not just politically, but to all appearances, also legally.  As the post noted, that evolution has taken place notwithstanding indications that the UK once perceived itself to have the liberty to withdraw that notice.  There are downsides to this new position, particularly if one thinks that Brexit is a bad idea and that history (and the British public) will come to judge it a mistake.  It has also not been well explained, and coverage of the decision has obscured whether the UK is politically or legally committed to this course. Still, the psychology is one familiar to international lawyers, in that the UK is asserting its sovereign authority to bind itself to the mast . . . just in this case, the mast may not be one sailing past a dangerous island and into oceans of multilateral commitment, but rather one that the UK is busy scuttling and directing toward Davy Jones’ locker.

The EU, however, is joining the UK in obscurity.  In a recent press release, the Commission asked and answered the question:

Once triggered, can Article 50 be revoked?

It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.

I do not think the irrevocability position is right, for reasons alluded to very briefly in the prior post, and persuasively elaborated in a timely paper by Aurel Sari that has since been brought to my attention. I want here to discuss narrower questions.  First, as with the UK, the EU’s present view is not necessarily the one it has previously had; second, however restrictive both their understandings, there is a potential, meaningful difference, since the EU view is not exactly one of irrevocability.The Commission’s view is largely consistent with a statement by Commission President Jean-Claude Juncker, who in January said to the EU Parliament that “The Treaty does not provide a mechanism for a unilateral withdrawal of a notification under Article 50 of the Treaty on the European Union (TEU). Once the article 50 TEU is triggered, it is no longer a unilateral process.”  Earlier, Council President Donald Tusk was reported to have been asked “Is it your understanding that the withdrawal of Article 50 by unilateral decision of London alone is possible up to the end of the two year period?”, and replying: “Formally, legally, yes. There is no legal barrier for this kind of decision and I have no doubt that this scenario will be acceptable for all European partners.” He proceeded only to cast doubt on whether negotiations could ever be resolved in two years.

Views may have changed.  Perhaps President Tusk was slightly off message; perhaps the Commission has always taken a different view, or has taken a fresh look at the law; perhaps the EU is now supporting what appears to be the UK view.  There is a difference, however, between (what may be) the UK view that the notice is legally irrevocable and the EU view, which instead emphasizes that unilateral withdrawal is out of the question.  That is, although President Tusk’s statement appeared to go further, the EU seems to envision that if the UK asked to withdraw its notice, the EU could consent, presumably in accordance with the same degree of support required by the procedures Article 50 puts in place for finalizing withdrawal.

Although that position was not explained, it seems like an unorthodox understanding of Article 50, and more like the circumstances contemplated for withdrawal itself, including by Article 50 and Article 65 of the Vienna Convention on the Law of Treaties, than it is like the revocation of a notification—which, were Article 68 of the Vienna Convention to guide us, could be done unilaterally.  Moreover, the EU position would largely abandon the position that Article 50 envisions a one-way street–not insensibly, given the consensual nature of international agreements, but at the cost of any claim that a severe construction serves Article 50’s purposes by inhibiting its use. Again, though, what of it, given UK political resolve?

First, the Commission’s view could be explained and justified, legally, beyond what’s stated in a press release.  Presumably there is a well-founded basis for it, whether or not it is ultimately convincing. And even if the Commission’s view cannot resolve the issue for the UK, or for other Member States, prior to clarification of Article 50 by the European Court of Justice, surely its initial position is asserting a legal interpretation that requires reasoning and should persuade—given its effect on the politics of the moment.

Second, the European Council’s guidelines (to be adopted on 29 April), the Commissioner’s recommendation to open negotiations, or the Council’s negotiating directives—the next steps in the process—could nudge the EU position in another direction, state that the issue is unresolved or not ripe, or at least move toward greater clarity.

Third, the UK could object.  This might seem preposterous, in light of its apparent resoluteness.  But it is one thing for the UK to assert that its notice is irrevocable, and another for the EU to do so.  Permitting revocability, but only with EU consent, means that the UK is now being lashed to the mast by others, and not (so far as the public record reveals) at the UK’s considered, binding behest. Perhaps this reinforces its sovereign authority, but it looks like an encumbrance upon it, just another way (Brexit advocates might say) that the EU is imposing its will. Moreover, as stated in the earlier post, it is not definitely in the UK’s interest to have its resoluteness on this question extrapolated to other EU members, let alone to other treaties.

Is it out of the question that the UK could insist on its own autonomy, including its ability to decide whether to stay the course, and whether even to consider rethinking that question?

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