Article 50 Notice can be unilaterally revoked says the Advocate General
Last week, the question of revocability of Notice given under Article 50 TEU came before the European Court of Justice in Wightman. In the last edition of Legal Tea with B, we learned that on Tuesday 4th December Advocate General Campos Sánchez-Bordona would be delivering his opinion on the matter. For a full summary of the submissions put forward by the Petitioners and the UK Government, check out the last edition. I suggest you read the past couple of editions if you need to get up to speed on Wightman.
The question of the decade – can we take it all back?
Following the ‘Brexit’ Referendum result, the question of whether or not the Article 50 Notice could be revoked was initially thought by some to be too abstract and academic to merit discussion.
Further, some strong arguments had been made that Notice was most certainly not revocable as it ‘could create serious moral hazard risks which could undermine the rule of law in the EU, the authority of the EU Courts and make the Union ungovernable in the future.’ – C. Mac Amhlaigh, ‘Can Brexit Be Stopped under EU Law?’, U.K. Const. L. Blog (10th Oct. 2017) (available at https://ukconstitutionallaw.org/)).
Unilateral revocation of notification under Article 50 TEU is possible – Advocate General Campos Sánchez-Bordona
An initial point to consider: the AG’s opinion is not authoritative or binding upon the Court. It is however highly illustrative and many AGs’ opinions have had a fundamental impact upon the interpretation and application of EU Law.
In their submissions to the Court of Justice, Government stated that the question of revocability ‘is simply not in any sense meaningfully in prospect‘. However, in his opinion, AG Campos Sánchez-Bordona rejected the Government’s position that the preliminary reference on the question of revocability was inadmissible for being ‘merely theoretical’ and holding a lack of relevance, holding that:
‘…none of the conditions which, according to the Court’s case-law, govern whether a reference for a preliminary ruling should be declared inadmissible, are satisfied.’
The AG went further, emphasising in bold his position on the matter:
According to the Advocate General, the dispute is genuine, the question is not merely academic, nor premature or superfluous, but has obvious practical importance and is essential in order to resolve the dispute. He adds that the power to interpret Article 50 TEU definitively and uniformly is that of the Court of Justice which must carry out considerable interpretative work in order to determine whether or not that article allows the notification of the intention to withdraw to be revoked unilaterally.
The AG went on to deliver a definitive answer to the question of revocability, suggesting that in their judgment the Court of Justice should:
…declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.
The Vienna Convention on the Law of Treaties
In their submissions to the Court, the Petitioners sought to rely upon the United Nations Vienna Convention on the Law of Treaties (VCLT) to argue that notification of withdrawal from an international treaty was possible (paragraph 24). The Convention was concluded in Vienna on 23 May 1969 and entered into force 27 January 1980. The United Kingdom signed the Convention on 20 April 1970 and ratified it in 25 June 1971. Following this, the United Kingdom became a member of the European Union on 1st January 1973, two years after they ratified the Convention.
The AG appears to have accepted this analysis, interpreting those matters not expressly stated within Article 50 TEU in line with the VCLT, upon which, as he states, Article 50 is based. He makes reference to Article 68 of the convention, which sets out that any notification of withdrawal from an international treaty may be revoked at anytime before the withdrawal takes effect.
The AG gave further reasons why, upon examination of Article 50, it is clear that unilateral revocation of the Notice (which he accepted to be a manifestation of the State’s sovereignty) is possible:
- That a withdrawal agreement has been concluded does not necessarily mean that actual withdrawal must also be completed;
- Article 50(2) TEU sets out that a Member state who decides to withdraw must notify the European Council of their intention to withdraw. This does not mean serving notice of their actual withdrawal and any such intention can change;
- The unilateral nature of the first stage of the Article 50 procedure – making the decision to withdraw in line with the Member State’s constitutional requirements – carries over to the next stage, where the Member State negotiates the terms of withdrawal. The effect is that if, in line with the Member States’ constitutional procedure, notification of intention to withdraw is revoked, the ‘constitutional foundation’ of the withdrawal negotiations falls away;
- The United Kingdom continues to be an EU Member State in all respects. Rejecting the possibility of withdrawal would lead to the forced exit from the EU of a Member State. Requiring the Member State to withdraw in oder to renegotiate their return to the EU would be ‘illogical’. The legal acts adopted during the negotiations do not preclude to unilateral revocation of intention to withdraw.
Conditions and limits upon withdrawal
The AG nonetheless set out some conditions and limits that, in his view, apply to revocation of Notice under Article 50:
- As with intention to withdraw, unilateral revocation of that intention must be delivered through a formal act to the European Council;
- Unilateral revocation must respect national constitutional requirements. Therefore in the case of the UK, prior Parliamentary authorisation may be required before revocation of the notice can be approved;
- A temporal limit on revocation also applies and it is only available within the two-year period for negotiation following notice under Article 50;
- The principles of good faith and sincere cooperation also apply to prevent abuse of the Article 50 TEU procedure.
The AG made clear that in his opinion, there was no requirement of a unanimous decision of the European Council before revocation of an Article 50 TEU notice could take place:
…a revocation by mutual consent of the departing Member State which changes its position and the EU institutions with which it is negotiating its withdrawal is possible. However, this would not prejudice unilateral revocation, which the departing Member State always maintains under Article 50 TEU.
Now the AG has delivered his opinion, we must wait for the Court of Justice to deliver their judgment on the matter on Monday 10th December. Meanwhile, the Brexit Secretary has confirmed that the House of Commons vote on the Brexit withdrawal deal the Prime Minister struck with the EU27 last month is set to go ahead the next day on Tuesday 11th December.
Deep breaths everyone…
Police make three Neo-Nazi Terror Arrests
Counter-terrorism investigations into right-wing groups in the UK have led to police arresting three individuals on suspicion of terrorism offences.
The Times reported that the arrests related to alleged activities by the so-called ‘Sonnenkrieg Division’. The group has been tied to calls for Prince Harry’s murder in light of his marriage to Meghan Markle, who is of mixed-race heritage.
The individuals were aged 17, 18 and 21. They were arrested for a range offences, including suspicion of encouraging terrorism, disseminating terrorist publications and conspiracy to inspire racial and religious hatred. Allegedly the group has 10-15 members in the UK.
In September 2018 a report on the operation of police powers under the Terrorism Act 2000 was released by the Home Office. The report said that of the 218 individuals in prison for terror offences as of 30 June 2018, 13% held far right-wing ideologies. Further the report stated that the proportion of prisoners with far-right ideologies had increased over the past three years jumping from 28 from 10 in the past year alone (page 19).
Maasai tribespeople examine cultural artefacts stolen at the height of the British Empire
Earlier this week four members of the East African Maasai tribe visited the Pitt Rivers Museum in Oxford to examine cultural artefacts stolen from their tribe by colonial agents, missionaries and ‘anthropologists’ during the height of the British Empire.
The Pitt Rivers Museum, a renowned ethnological museum, is reported to host some 300,000 objects in their collection, many of which are stolen artefacts from colonial conquests from around the world. The Guardian reports that upon seeing Maasai objects, one tribesmember Samwell Nangiria said:
“When I saw objects from the Maasai community I was a little bit shocked,”…“[They were] poorly described, with a lack of what the object is meant for [and its] cultural significance.”…“Because I know our culture is not dead. It’s a living culture.”The Guardian, 4th December 2018
The Maasai were presented with a range of items as part of an endeavour by the museum to allow the tribespeople to reclaim the narrative around them, as the museum had incorrectly labelled and misunderstood the purpose of many items. Particularly shocking for the Masaai was the discovery of 5 sacred objects unique to their tribe.
Conversation between the visiting delegation and village elders at home via Whatsapp about the sacred items revealed how crucial these items were to the Masaai cultural identity: “They say this particular object might have brought bad omens to the family [who lost possession of it].”
“Give us back our soul”
The Masaai are not alone. Many other communities around the world are demanding the return of cultural artefacts stolen from them by Western European colonial forces and agents during the reign of Empire. Last week, governor of Easter Island Tarita Alarcón made an emotional plea for the return of Moai Hoa Hakananai’a, a statue from Easter Island on display at the British Museum in London:
“We are just a body. You, the British people, have our soul”
The statue is sacred to the indigenous Rapa Nui people who believe the spirit of their people is held within the statue. The Guardian reports that the statue was stolen in 1868 by the British warship HMS Topaze which was captained by Richard Powell. The statue was later given to Queen Victoria.
Despite the knowledge that the artefacts were stolen, the British Museum merely spoke of returning items to the Rapa Nui people as a loan, with a spokeswoman commenting:
“The museum is one of the world’s leading lenders and the trustees will always consider loan requests subject to usual conditions,”
A statute of limitations for actions against actions undertaken by colonial agents?
In related news, following the High Court’s decision to throw out a claim brought forward by 40,000 Kenyans against the government for abuse and maltreatment in 1950s Kenya during British rule, there have been calls for the Prime Minister to introduce a statute of limitations to prevent prosecutions of military veterans for historical allegations.
The Times reported that Jonathan Duke-Evans, who was in charge of the Ministry of Defence’s litigation policy unit until 2017, wrote:
“It’s almost impossible to guarantee fair outcomes in cases which arose out of military operations so many years ago, and the process can be immensely stressful to the former soldiers involved. I would like to see steps taken to prevent this kind of legal harassment of veterans decades after the events concerned when it is so difficult to establish the truth.”
The Kenya Human Rights Commission reported that during the infamous Mau Mau Rebellion, where Kenyan fighters rose up against British rule precipitating 8 years of conflict as the British declared a ‘state of emergency’ in Kenya that stretched from 1952 to 1960, at least 90,000 Kenyans were ‘executed, tortured or maimed’ and 160,000 were ‘detained in appalling conditions’ (BBC, April 2011). Further, David Anderson, Professor of African History and Politics at the University of Warwick (at the time a professor at the University of Oxford), commented:
“Everything that could happen did happen. Allegations about beatings and violence were widespread. Basically you could get away with murder. It was systematic.”
Further litigation to come?
Despite the unsuccessful outcome of the Kenyan litigation, more legal actions from communities within former colonised nations may follow, leading to further disputes between those who seek legal compensation for actions or thefts undertaken by colonial forces and agents and modern day representatives of former colonial nations.