12th August 2019
Marriage à-la-mode: 6. The Lady’s Death, by William Hogarth
There is a view gaining some traction among those who support the United Kingdom remaining in the European Union.
The view is that after 31 October 2019 it may be possible for the UK parliament to retrospectively annul the Article 50 notification so that the UK can be regarded as never having left.
This view is false.
To understand why the view is false, one first can go to Article 50 of the Treaty on European Union, which many will know provides for how a member state can unilaterally leave the EU.
The relevant part is in Article 50(3):
“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
The significant phrase is at the beginning:
“The Treaties shall cease to apply to the State in question…”
This describes the position at international law.
The member state on departure shall cease to be party to the relevant treaties which govern EU membership.
The member state is out; a former member; a member no more.
The member state is then a “third country” as much as any other non-EU member.
This is the public international law equivalent of a decree absolute ending a marriage.
The marriage is over.
But so used are UK pundits and politicians to the supposed omnipotence of the UK parliament, it is believed that somehow this departure can by legal magic be disregarded. That the UK can, by some legal fiction, be deemed never to have left.
It will be too late.
The door has shut.
The cat, the horse and the genie are out of their respective containers.
No loud tearful banging or elaborate legalistic ruses can reverse the legal event of departure.
Once a member state has left the EU then there is only one way back in – the perhaps soon-to-be-famous Article 49.
Article 50 itself, at (5) provides that Article 49 is the one means of return:
“If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
This process would likely be a slow process, and even if the UK were eventually successful, there would be considerable doubt whether the rebate and various opt-outs would resume.
Some would question whether the UK would meet the Copenhagen Criteria.
And, as with the Article 50 revocation notice, an Article 49 application can be unilaterally revoked by the state in question at any time.
To place any reliance on the UK parliament retrospectively asserting it was an EU member after its departure under Article 50 is dangerous and delusional.
There can, of course still be an agreed extension of time, and the departure date can also be varied by agreement of the UK and EU27.
There can also be revocation of Article 50.
There are real options for UK politicians seeking to avoid a departure for the EU on 31 October 2019.
These options remain open, regardless of the breathless fanaticism of those in and close to the current government.
And these are the options that should be being taken seriously, rather than believing in a Remain breed of unicorn.
Thank you for reading me on this new(ish) blog.
I expect to be blogging here more often, instead of spending time on Twitter.
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