Saturday, December 03, 2016

The curious thing about Article 50

I'm well aware that legal English is slightly different to common use but Article 50 has something very curious within it and I'd be very grateful if someone with solid international law experience could help clear this up.

The problem ...

Article 50

Under s1, we have the right to withdraw. That's all very dandy. The process of withdraw is set out in s2 to s5 assuming we "notify" of our intention to withdraw. But here's the rub. The articles says "shall notify" and "shall" can be interpreted in many ways e.g. must, will or may.

So in May 2017, what happens if we interpret it as "may". In which case we could just leave, on the day, stop any funding and that would be it. Now given UK is a huge contributor to the EU that's going to kick up a bit of a fuss but then it's our choice us if we wish to go through article s2 to s5 as under this interpretation they are optional. It's for us to decide what is in our best interest.

Of course, some will say that "shall" means "must". Ok, so let us assume we decide to interpret it as "may" and the EU decides to take us to court and the court conclude that "shall" means "must". 

Well, then we turn to s2. Under this section we now "must notify" and we have a legal obligation to do so. However, look a bit further along and using the same interpretation then you'll find "the Union must negotiate and conclude an agreement with that state". Hang on, the Union has a legal obligation to conclude an agreement? That's a bit one sided isn't it? We could just sit there say "non" to everything until they give the UK everything it wants (have your cake and eat it!)

It seems there's no obligation on the state, there's also no obligation for the state to agree to any extension but there's every obligation on the Union to conclude an agreement or be in breach. To which someone would say "well, you just let two years lapse". That still doesn't get rid of the obligation on the Union to conclude an agreement.

To which someone could point out there's no timeframe. There's no timeframe for notify either. We could leave and notify in say a thousand years time.  It feels to me like article 50 was written on the back of a bus in a bit of a rush.

However the problem is if the UK decides to interpret "shall" as "may" and leaves in March 17, cuts funding to the EU (and the UK is one of the largest contributors in terms of the delta between what is paid and what is received back) and seeks trade arrangements then in order to force an interpretation of "must" the EU has to accept a legal obligation to conclude an agreement. This seems like a sticky wicket for the EU whichever way it goes.

Maybe some kindly passing international lawyer can clear this up.