Sir , – Theresa May’s promise to afford the British parliament the chance to vote on whether to accept any Brexit deal is a chimera. Such a vote would be meaningless, as a notification to withdraw from the European Union cannot be withdrawn unilaterally.
The drafting of article 50 of the Treaty on European Union provides that the notification submitted by a leaving EU member state may only be withdrawn with the consent of the European Council, acting unanimously. While this is not stated explicitly in the article’s text, it may be implied from its wording. Indeed, a procedure already exists for leaving international organisations under general international law. The fact that the drafters of the treaty saw fit to derogate from this is illustrative of the fact that they wished to create a specialised rule, unique to the treaty.
Article 50 is a genuinely clever piece of legal draughtsmanship. Its main purpose is to deter member states from leaving the EU. This is achieved by putting any would-be leaving member into an intolerably weak position regarding the rest of the EU during exit negotiations. From the moment the clock starts (via notification), it cannot be stopped – or extended – without the consent of all 27 remaining states.
On the basis of the logic and purpose of article 50, unilateral withdrawal of a notification to exit should be impossible. Otherwise, if, for example, negotiations did not progress as the British government might have wished, the notification could be withdrawn one day before the expiry of the two-year deadline, saving the UK from leaving the EU without a bespoke trade deal, and “falling off the cliff”, and relying from then upon World Trade Organisation rules. A week later, nothing would preclude a new notification to withdraw from being submitted.
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Such a construction, rather than favouring the EU, would favour the UK, providing limitless room for manoeuvre, and an open-ended timeframe for Brexit. It is deeply unlikely that the Court of Justice of the European Union would interpret it in such a manner, if asked. It is thus both inaccurate and dangerous to portray the article 50 in this way, as both the Conservative and Labour parties have done. Once article 50 is invoked, the clock is ticking, and it may not be stopped.
Given the volume of faulty information supplied to the public in the context of the Brexit debate, it is good to be clear about the mess that the UK is getting itself into. – Yours, etc,
Prof CIARÁN BURKE,
Chair of International Law,
Friedrich Schiller
Universität,
Jena, Germany.