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17 March 2017

Guest blog by Paul Eden, Senior Lecturer in Law at the University of Sussex

Introduction

Now that the European Union (Notification of Withdrawal) Act has received Royal Assent, the UK government is on track to meet its deadline of invoking Article 50 of the Treaty of European Union (TEU) by the end of March. Whilst it seems inevitable that the UK will indeed invoke Article 50 a key question that remains is whether we can change our minds and stop the whole process, perhaps when we are a year down the line or if there was a change in government in the UK.

In the Miller case it was common ground between the parties

‘that notice under Article 50(2)… cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn” (at [26]) although, as Lord Carsworth noted in his dissenting judgment, this assumption is “possibly controversial’ (at [261]).

This blogpost addresses the possible legal basis of any unilateral right to revoke a notification of a notice of withdrawal made in accordance with Articles 50(1) and 50(2) TEU by examining, first, the potential applicability of Article 68 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Secondly, the blogpost examines Article 50 TEU to determine whether the express wording implicitly excludes the right of unilateral revocation of notification of intention to withdraw from the EU. Finally, the blogpost argues that even if the other members of the EU unanimously agreed to allow the United Kingdom to revoke a notification of withdrawal, this might amount to an amendment of Article 50 TEU and present practical problems for Member States whose national law requires specific constitutional obligations at a national level for amendments to EU Treaties to take effect.

The applicability of the Vienna Convention on the Law of Treaties

The 1969 Vienna Convention on the Law of Treaties is a multilateral treaty governing the law relating to the key aspects of treaty conclusion, application, interpretation and termination. It is only binding with regard to treaties concluded between states that are parties to the VCLT but many of its provisions are regarded as reflecting customary international law and are binding on parties and non-parties to the VCLT alike.

The starting point for many of the arguments that a notice of withdrawal made in accordance with the provisions of Article 50 TEU can be unilaterally revoked appears to be Article 68 VCLT which states that

‘A notification or instrument provided for in Articles 65 or 67 may be revoked at any time before it takes effect.’ [Emphasis added]

The italicised words are often omitted in discussions about the applicability of Article 68 VCLT to the Article 50 TEU debate. Article 65 VCLT is concerned with the procedure to be followed where a party to a treaty invokes either a defect in its consent to be bound or a ground for impeaching the validity of the treaty. Article 67 VCLT is concerned with the modalities of this particular notification process. As the proposed British withdrawal from the European Union is not based on either a defect in its original consent to be bound or on an assertion that the treaties on which the EU is based are invalid, there does not appear to be a basis for the application of Article 68 VCLT unless, as has been asserted in a House of Commons Library Briefing Paper,

‘it is a general principle of international law’ (at page 10).

The VCLT cannot apply directly to the Treaty on European Union (TEU) because France and Romania have never been parties to the VCLT and Malta only acceded to the VCLT after the TEU was signed on 13 December 2007. In several cases, the Court of Justice of the European Union (CJEU) has acknowledged that the VCLT may still be relevant to the extent that its provisions reflect customary international law. See Case C-162/96 Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-3688 [24] and Case C-386/08 Brita GmBH v Hauptzollamt Hamburg-Hafen [2010] ECR I-1289 [42].

Is Article 68 VCLT a customary norm of international law?

In the North Sea Continental Shelf Cases the International Court of Justice (ICJ) acknowledged that “fundamentally norm-creating” provisions of a multilateral treaty can constitute the foundation of a rule of customary international law binding on states (at [72]). It is however questionable whether the essentially procedural stipulation contained in Article 68 VCLT would fall within the category of a fundamentally norm-creating provision that can potentially form the basis of a general rule of law in any event. In the Case Concerning the Gabčíkovo-Nagymaros Project (the Danube Dam case) the ICJ noted that Articles 65-67 VCLT contained “procedural principles which are based on an obligation to act in good faith” (at [109]) and that both parties to that case were agreed that these Articles “if not codifying customary law, at least generally reflect customary international law” (ibid). It must be stressed however that it was the parties to the case and not the ICJ itself that asserted that Articles 65-67 VCLT reflected customary international law and, given the fact that there have been numerous reservations to Article 66 VCLT, this assertion of the customary status of Articles 65-67 VCLT should be approached with caution.

Some commentators are doubtful that Article 68 VCLT can be considered customary law (see, for example, A Tzanakopoulos “Article 68” in The Vienna Convention on the Law of Treaties: A Commentary Volume II (O Corten and P Klein (eds)) (OUP, 2011) 1565) but, even if Article 68 VCLT is to be regarded as a customary norm, its customary status must been seen in the context of the “complex and inter-related” (Sir Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP, 1984) 159) provisions contained in Articles 65-68 VCLT. Put simply, Articles 65-68 VCLT contain an obligation subjecting a particular class of treaty withdrawals to a dispute settlement process. The outcome of this dispute settlement process may well be the realisation that the withdrawing state’s consent to be bound was not in fact defective and/or there were in fact no valid grounds for impeaching the treaty. Consequently, it is entirely appropriate to give effect to the possible success of a dispute settlement process held in accordance with Article 66 VCLT by expressly providing that the original instrument of withdrawal can be revoked in Article 68 VCLT.

What is generally agreed is that Article 68 VCLT reflects procedural principles stemming from an obligation to act in good faith and, in the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt Advisory Opinion, the ICJ stressed the need to “have reasonable regard to the interests of the other part[ies] to the treaty” (at [47]) when exercising a right of withdrawal from a treaty.

Interpreting Article 50 TEU

Even if no right to revoke a notification of an intention to withdraw from the EU can be found in customary international law, such a right might be found, expressly or impliedly in the wording of Article 50 TEU itself. Alternatively, if one believes that Article 68 VCLT embodies a general principle of customary international law that permits the revocation of a notification of withdrawal at any time before it takes effect, the wording of Article 50 TEU may implicitly exclude the application of this alleged general principle.

A recent legal opinion entitled In the Matter of Article 50 of the Treaty on European Union, written by five eminent QC’s including a former Judge of the Court of Justice (Sir David Edward) and a former Advocate General (Sir Francis Jacobs), argues that

‘The language of Article 50 does not require a Member State’s decision to withdraw from the European Union to be irrevocable or unconditional prior to it being notified. The use of the word ‘intention’ in Article 50(2), and the present tense ‘which decides’, rather than ‘has decided’, allows for the possibility that a Member State may change its decision and, therefore, its intention. [49(ii)]’

It is equally true to say that Article 50(2) TEU does not expressly permit a conditional or revocable notice of withdrawal and there is no evidence to suggest that the United Kingdom intends to submit a conditional notice of withdrawal in any event. Further, as the TEU is equally authentic in 23 languages (Article 55 TEU), any argument entirely premised on the use of the present tense of the verb “decides” in the English text of the TEU is rather less than convincing.

As the European Union (Notification of Withdrawal) Act satisfies the constitutional conditions laid down by the UK Supreme Court in the Miller case, the UK has satisfied the obligation contained in Article 50(1) TEU that any decision to withdraw from the EU must be in accordance with the withdrawing state’s constitutional requirements. Professor Paul Craig (‘Brexit: a drama in six acts’ (2016) 41 European Law Review 447, 464) has argued that if a Member State subsequently changed its mind

‘it could be argued that if this occurred there would then no longer be a valid decision to withdraw, since the original decision had been changed in accordance with national constitutional requirements’.

This argument cannot be reconciled with the doctrine of inter-temporal law that acts should be judged in the light of the legal position at the time of their creation. Even if the European Union (Notification of Withdrawal) Act had contained a provision giving both Houses of Parliament the right to veto any withdrawal agreement (the so-called “meaningful vote” amendment inserted by the House of Lords but rejected by the House of Commons), Article 27 VCLT embodies the customary norm that a state “may not invoke the provisions of its internal law as justification for its failure to perform a treaty” and thus any such provision could not be invoked as a justification to revoke a notice of withdrawal unless there was a pre-existing right in either general international law or specifically provided for by the wording of Article 50 TEU.

Does Article 50 TEU embody a right to revoke a notification of withdrawal from the EU?

The key problem with the argument that a right to revoke is implicit in the wording of Article 50 TEU is that Article 50(3) TEU provides that, in the absence of a withdrawal agreement,

‘[t]he treaties shall cease to apply to the State in question…. two years after the notification [of intention to withdraw]…, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.’

The requirement that an extension of the two-year period requires unanimous consent is in sharp contrast to the qualified majority required for the withdrawal agreement under Article 50(2) TEU. Further, Article 50(5) TEU makes it clear that any state that has withdrawn from the EU under Article 50 that wishes to re-join must make a new application under Article 49 TEU. The wording of Articles 50(3) and 50(5) TEU taken together support the conclusion that the unilateral revocation of a notification of withdrawal is not permitted. As noted above, the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt Advisory Opinion is authority for the proposition that the United Kingdom has an obligation to have reasonable regard for the interests of the other Member States of the EU when exercising its right of withdrawal under Article 50 TEU. Any unilateral right to revoke a notice of withdrawal would not have reasonable regard for the interests of the other Member States of the EU given the wording of Articles 50(3) and 50(5) TEU.

Conclusion

While there is no doubt that the other Member States of the EU could unanimously agree to allow the United Kingdom to revoke a notification of withdrawal, if the Court of Justice of the European Union (CJEU) did not accept that the Member States implicitly possessed this power under the current wording of Article 50 TEU, this magnanimous act would amount to an amendment of Article 50 TEU and this might present practical problems for Member States whose national law requires specific constitutional obligations at a national level for amendments to EU Treaties to take effect (such as referendums etc.).

 

Disclaimer:

The opinions expressed in this blog are those of the author alone and do not necessarily represent the opinions of the University of Sussex or UK Trade Policy Observatory.

17 Comments

  • Alessandra Asteriti says:

    Very informative, thanks.
    Two questions:
    1. The Notification of Withdrawal Act provides that the PM may notify the EU of the intention to withdraw. Whether this leaves the power to revoke the notice within the usual prerogative powers of the Crown (executive) or whether, post-Miller, this leaves the power in the hands of Parliament seems to me unclear. What is your opinion? This of course is a strictly domestic constitutional issue.
    2. Surely there must be the possibility for the UK to unilaterally withdraw the notice in case of, for example, economic emergency. Have you considered the legal repercussions of such an action? (not so far-fetched).

    • Paul Eden says:

      Many thanks for your comment and for your questions, particularly the first which I had not thought about until you mentioned it. With regard to the question of whether a revocation of the notice of withdrawal would fall under the prerogative powers, it can be argued that as the withdrawal will not result in a change in domestic law it would fall within the prerogative powers (see [122] of the Miller UKSC judgment). I am strengthened in that view by the use of the word “may” in Section 1(1) of the European Union (Notification of Withdrawal) Act 2017 but I concede that the contrary argument can be made using the same arguments as in Miller.

      With regard to the economic emergency argument, the bar is set VERY high for this and, given the EU’s approach to holding Greece strictly to its obligations with regard to debts owed to the ECB, I can’t see the UK ever reaching that threshold. There is also the problem that we would have caused the crisis and the doctrine of fundamental change of circumstances usually doesn’t apply where the state has deliberately caused the circumstances leading to the fundamental change.

      • Alessandra Asteriti says:

        Thanks for the reply. Indeed on the second point, the fact that the UK would have caused the crisis cannot be discounted; I just find it hard to fathom that a notice under article 50 could have higher binding force than an international obligation of performance. It is, after all, a notice of intention to withdraw, not of withdrawal.

  • […] Senior Lecturer in Law at the University of Sussex. This  article was originally published in the UK Trade Policy Observatory’s blog. The opinions expressed are those of the author alone and do not necessarily represent the opinions […]

  • Michael says:

    I have two thoughts.

    First, you seem to jump from “not permitted” to “forbidden” when looking at the wording of Article 50 without justifying the leap. Yes, the Article does not explicitly permit a member state to withdraw its notification. But it does not explicitly forbid it either. You need to justify your proposition that silence on a point amounts to a prohibition. The contrary view is that a State may withdraw its notification because the starting point is that a State may do what it likes so long as that is not forbidden by law, agreement or custom.

    Second, you argue that if the UK decides to withdraw the notification then it must have reasonable regard to the interests of the other Member States. Fine. And you then say, again without arguing the point, that because of the wording of Article 50 a withdrawal would not have regard to the interests of Member States.

    That line of thinking might hold good for a withdrawal followed immediately by a new notification – which might be a device to get round the Article 50 requirement for unanimity on time extensions.

    But Article 50 is a minor procedural provision. The first few Articles of the Treaty are about creating a Union to promote peace, freedom and development &c &c and about the value of sincere co-operation. It seems to me that a sincere withdrawal of the Article 50 notification by a UK government opposed to Brexit because it wished to take part in the European Project would have regard to the interests of other member states.

    (My ideas draw in part on the opinion by Aurel Sari, Senior Lecturer in Law at Exeter University Law School, published in 2016.)

    Facebook: Campaign for the Real Referendum – on the Terms of Brexit

    • Paul Eden says:

      Dear Michael

      Many thanks for your comments. With respect the starting point is not that “a State may do what it likes so long as that is not forbidden by law, agreement or custom” but that a State is obliged to carry out its obligations arising from treaties and other sources of international law in good faith. This obligation to act in good faith also applies to our notification of withdrawal under Article 50 TEU. You concede that more than one notification, revocation cycle would not have regard to the interests of Member States but fail to adduce reasons why the first revocation would have regard to the interests of Member States .

      I am unable to agree that Article 50 TEU is a minor procedural provision. The drafting history shows that the other Member States allowed it to be included with some reluctance and that some of them would have liked Article 50 TEU to contain expressly punitive provisions aimed at the departing State. The analogy one might draw is with declarations of war – these can be issued unilaterally but the state of war that they create cannot be ended unilaterally. Our Article 50 TEU notification will effectively declare war on ever closer union.

      As I have indicated on Twitter (where we had a very civilized exchange of views), Dr Aurel Sari’s paper is the most cogent (and well-researched) presentation of the contrary argument and it is worth noting that it was very recently revised. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2872152

      With best regards

      Paul

      • Michael says:

        Dear Paul

        Thank you for replying.

        My argument that a sincere permanent revocation of the Article 50 notification would have regard to the interests of other member states is that all member states signed up to the Treaty promoting the European project of working together for peace, freedom and development. It is in the interests of all member states that the UK stays in the project.

        I do not really find the war analogy convincing. In part because you end up finding that the UK has declared war on an abstract concept. If only real wars were so bloodless! But that a war cannot be ended unilaterally is because in fact even if I stop fighting you can still carry on fighting me without changing the nature of what you had been doing.

        But if I stop walking out of the room, you can either accept the fact that I am staying or expel me – but that requires you to do something positive and different from what you had been doing. And there is no expulsion provision in the EU treaty. An ECJ finding that an Article 50 notification is irrevocable would in effect be an expulsion of a member state who wished to stay in the EU.

  • I agree with your reasoning, except for one point, and I would add another.

    The point of disagreement concerns the notices to which Art 68 VCLT applies. Art 68 refers to Arts 65 and Art 67. But Art 67 is not limited to Article 65 (or indeed the reference in Art 68 to both Art 65 and Art 67 would be redundant). Art 67(2) refers to ‘[a]ny act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of article 65 …’, and so Art 68 also applies to notices described in treaties themselves; viz, Art 50 TEU. The same follows from the ILC commentaries. What EU law makes of this, of course, is another matter, but I would guess it would respect this (cf Racke).

    The additional point is that you do not discuss the meaning of ‘before it [i.e. the notice] takes effect’ in Art 68. This, for me, is the crucial point. It is not 100% clear in the ICL commentaries and prior discussion, but there is a strong view that ‘takes effect’ means not in its own terms (i.e. effective withdrawal) but rather that other parties act on the basis of this notice by passing domestic legislation. Or, one might suggest, by being subjected automatically to a secondary obligation to reach a withdrawal agreement, as per Art 50.

    Same result; slightly different means of getting there. As for the 3 Knights, well, it’s very inspirational.

    • Dear Lorand,

      I do very much agree with your view that the question when the notice takes effect pursuant to Art. 68 VLCT (in case of an “instrument” in accordance with Art. 67 (2) VCLT) is the crucial point. It is astonishing that this question is however rarely addressed in the current discussion. From my point if view, it is arguable that the the notice of withdrawal takes already effect once communicated – the legal effect being that the notice period starts to run at this point of time. This would also be in line with the impact of termination notices in private contract laws.

  • Paul Eden says:

    Dear Lorand

    Many thanks for your comments. I am particularly grateful for your observations on the scope and effect of Article 68 VCLT as this blogpost is taken from a longer article that is in the process of finalization and I had not considered your additional point . I will now and I will probably have to credit you in a footnote.

    I have to disagree that “Art 67 is not limited to Article 65”. My reading of Article 67 VCLT suggests otherwise i.e. both Article 67(1) and (2) refer expressly to Article 65.

    With best regards

    Paul

    • Lorand Bartels says:

      Dear Paul

      Thanks for that. But Art 67(2) states expressly that it covers notices ‘pursuant to the provisions of the treaty’. How does that not go beyond Art 65?

      Lorand

  • I do not entirely follow the reasoning behind your analysis that – “As the proposed British withdrawal from the European Union is not based on either a defect in its original consent to be bound or on an assertion that the treaties on which the EU is based are invalid, there does not appear to be a basis for the application of Article 68 VCLT ……unless it is a general principle of international law’”, –
    is it not possible to read Article 65 (1) as follows –
    “A party which……..invokes either a defect…….or a ground for …………., withdrawing from it [a treaty}, …..”.
    In other words the ‘either/or’ relates to invoking a ‘defect’ or a ‘ground’, and in the case of the UK the ‘ground’ is our right under Article 50 TEU. Thus it is within Art 65 and so Art 68 might apply , subject of course to the separate point of the inapplicability of the VCLT because France and Italy are not signatories.

    Full version Article 65(1)VCLT
    Article 65
    Procedure to be followed with respect to invalidity,
    termination, withdrawal from or suspension of the
    operation of a treaty
    1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor.

  • Paul Brennan says:

    Paul

    I enjoyed your piece, but, if I may be so bold, it seems to me that Lorand’s point, about Art 68 referring to notices under Arts 65 or 67 is a signficant one.

    The notices under Art 65 are in fact different to those under Art 67. Art 65 is about notifying the grounds which it is claimed give rise to a right of withdrawal. On the other hand, Art 67 is about the notice of withdrawal itself which may be given, in the case of a notice of withdrawal on the grounds set out in Article 65(1), after 3 months, where there is no objection (by virtue of Art 65(2)), or after dispute resolution (by virtue of Art 65(3)). In addition, Art 67 covers withdrawal notices given under the terms of the relevant Treaty.

    I cannot see any basis for saying that Art 68 applies to Art 67 withdrawal notices which come out of the Article 65 process, but not to withdrawal notices which arise out of a process set out in the relevant Treaty. What is more (subject to the desirability of avoiding a conflictIng provisions) I cannot see any logic for permitting revocation of withdrawal notices in the former case but not the latter: The express purpose of the Vienna Convention is the “codification and progressive development of the law of treaties” to promote “the maintenance of international peace and security, the development of friendly relations and the achievement of co-operation among nations”. If the parties to the Convention wished the terms of individual Treaties to prevail in the event of a conflict with the terms of the Convention they would surely have made provision to that effect. The question is then whether they have in fact done that. Is Article 50(3) of the TEU (withdrawal takes effect in 2 years in the absence of a deal) a “relevant rule” of the EU within the meaning of Article 5 of the Convention (which states that although the Convention applies to any treaty which is the constituent instrument of an international organisation, it is without prejudice to any relevant rules of the organisation)?

    Whether or not the EU Treaty falls within the scope of the Convention (or whether a wider rule of international law on the revocability of Treaty withdrawal notices has now developed) is of course a different matter. I wonder though whether the EU can legitimately claim that a process which entails the transformation of the UK from a constituent part of the EU to a third party is governed only by EU law and not international law, and, if the Convention does apply, whether it can justifiably claim that Article 50(3) of the TEU is a “relevant rule” of the EU for the purposes of Art 5 of the Convention.

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