[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]
As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU. Article 50 of the Lisbon Treaty – the clause governing withdrawal – is now front page news. A state’s decision to leave any international organization raises thorny questions of law and politics. As I explain below, Article 50 answers some of these questions for withdrawals from the EU, but leaves many others unresolved.
The basics of Article 50
EU law was originally silent as to whether a state could leave the Union, generating debate over whether there was an implied right to exit. Article 50(1) settles this issue, providing that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
Under Article 50, the decision to quit the EU is not self-executing, nor does it have immediate effect. Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal. The hope, set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement … setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.” That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.
Article 50’s third paragraph specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force. If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension. Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.
The least worst outcome – bargaining for an orderly withdrawal
By setting the ground rules for Britain’s withdrawal, Article 50 is already shaping talks between London and Brussels over the terms of the UK’s exit. The effects can be roughly divided into three time periods: the pre-notification period, the negotiations phase (what one reporter waggishly calls the UK’s departure lounge), and the post-exit relationship between the Britain and the EU.
Brexit supporters did not wake up to an EU-free Britain on the morning after the referendum. The UK is still a fully-fledged member of the Union – and it will remain so if the British government does not formally notify the European Council of its intent to withdraw. Article 50 says nothing about how, when or by whom such notification is to be made. Presumably, notice would be given by the Prime Minster. Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote. But on Thursday he announced that notification would be given by his successor, who will take office by October 2016.
Why the change? Having campaigned against Brexit and lost, it is not surprising that Cameron wants someone else to pull the trigger on the UK’s withdrawal and squelch any campaign to block withdrawal – a possibility raised by Scotland’s First Minister Nicola Sturgeon. But even fervent British sovereigntists would be advised to support some delay in notifying the Council. So long as the UK has not fired the starting gun on the two-year exit clock, it has the upper hand in negotiations with the other 27 EU nations. Britain keeps both the benefits and the burdens of EU membership while the terms of its departure are hammered out. It can’t be forced to leave the Union (or can it? – see below) unless those terms are to its liking.
Once notice is given, however, the advantage shifts to the continent. If Britain and its former EU partners do not reach a deal within 24 months – or unanimously agree to extend negotiations – the UK is out. A divorce that is finalized while the spouses are still squabbling over custody of the children and the division of marital property is messy and painful. The equivalent for a non-negotiated Brexit – the sudden re-imposition of barriers to free movement of capital, goods and labor – is an outcome that even diehard British nationalists should want to avoid.
How long can the UK defer notification? Article 50 doesn’t say, but politics rather than law will almost certainly provide the answer. Both pro-Brexit voters and EU leaders are unlikely to oppose a modest delay. But the uncertain economic and political fallout of a protracted British withdrawal will push both sides to the bargaining table regardless of when the UK gives notice – unless the British public catches a bad case of “Regrexit.”
Contrary to what some have claimed, however, the exit negotiations need not conclusively resolve London’s status vis-à-vis Brussels. Article 50(2) requires a withdrawal agreement that “tak[es] account of the framework for [the UK’s] future relationship with the Union.” An deal that takes plausible steps toward defining that relationship should suffice, even if it is a modus vivendi whose principal aim is an orderly disengagement. The details of the Britain’s post-withdrawal status can be finalized at a later date – although in the interim EU law will cease to apply to the UK.
Avoiding a rush to the Brexit
As described above, Article 50’s withdrawal rules, although incomplete, do a reasonably good job of channeling the parties toward a political settlement of the UK’s departure over the next several years. But some in the pro-Brexit camp are calling for more precipitous action, including introducing an EU Law (Emergency Provisions) Bill in the current session of the British Parliament to revise the European Communities Act 1972. The Bill aims to “immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), [and] end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law ….”
There is no doubt that Parliament has the power to adopt such a Bill. But from an international perspective, the enactment would rightly be seen as a grave violation of EU law, which continues to bind the UK until an exit deal is finalized or, failing that, two years after a notification of withdrawal. The Bill would surely trigger a raft of lawsuits, by the EU Commission and by private litigants, challenging its legality and seeking fines and damages. How would British judges respond to such suits? The Bill would force UK courts to choose between their duty to apply EU law over conflicting national law and their obligation to defer to Parliament. The result, as Cambridge professor Kenneth Armstrong has warned, would be a constitutional conflict of the first order.
The Bill might also provoke the remaining EU members to try to force Britain out. The EU has no expulsion clause; one was considered but ultimately left out of the Lisbon Treaty. But as my coauthors and I explain in a recent working paper, it is unsettled whether international law recognizes an implied right to expel. And European leaders could attempt to achieve the same result indirectly, treating the Bill as a material breach that authorizes a suspension or termination of the Lisbon Treaty vis-à-vis the UK. In either case, the legality of any expulsion effort would almost certainly be challenged in court.
In all events, the far better course for all concerned is to avoid a precipitous unilateral break and instead to negotiate Britain’s orderly departure from the EU.