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‘that notice under Article 50(2)… cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn” (at [26]) although, as Lord Carsworth noted in his dissenting judgment, this assumption is “possibly controversial’ (at [261]).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

 

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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.

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