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.
