Saturday 27 November 2010

The Withdrawal Method

The Daily Express continues today in fine form with its crusade to leave the EU, however there's one article I would query:
BRITAIN could quit the European Union virtually overnight to herald a new era of independence and freedom, campaigners declared yesterday.
Quoting Douglas Carswell:
They poured scorn on Britain is now so tied in, departure is impossible. Tory MP Douglas Carswell said: “It would be relatively straightforward. The idea it would be a hugely complex process is just not true.”
New rules attempting to stop nations quitting the EU were introduced three years ago under the controversial Lisbon Treaty. A new two-year departure process was introduced in a bid to discourage any bolt for the exit door as support for the union sank across Europe.

...once the parliamentary procedure was complete, EU bosses could do little to stand in Britain’s way.
The Express article makes it seem as if it's a simple case of repealing the 1972 European Communities Act. Before Lisbon that was true, however the ratification of Lisbon changes that position significantly. It's no longer that easy and here's why.

Countries exiting international organizations are covered by the Vienna Convention on the Law on Treaties. Article 56(1) states (my emphasis):
1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
So if there's no specific provision for exit then members states can be free to leave by terminating the treaty, and as no EU treaties have had any such provision before Lisbon, then previously we could have simply repealed the ECA and it's bye bye EU.

However, Lisbon is different because it does have a provision for exit via Article 50:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
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.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. 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.
Therefore it's covered by Article 54 of the Vienna Convention on the Law on Treaties (my emphasis):
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.
We are bound therefore by international law to follow the method laid out in Lisbon. Either by negotiating our exit with the agreement of the other 26 member states (unlikely) or failing that enduring a 2 year 'cooling-off' period during which, as Lisbon Treaty Article 50(4) above makes clear, we would have no participation in EU affairs at all although still technically a member state. The EU, could then during that period (out of spite) pass all sorts of financial, and other, penalties on us.

Our exit is likely to be costly and painful. We were stitched up by the French, twice over, on the way in and undoubtedly we will be stitched up on the way out.


  1. The Political classes of this Once Great Country have stitched us up good and proper.For myself and,I should expect many more,I don't care about terms for leaving,it will be done on a very quick say-so.The anger is gradually building up,in actual fact,it's more than gradual,it's becoming an avalanche.We will leave quite soon,I am sure of that,or,when the desire becomes too great, that millions converge on Whitehall demanding heads on stakes on London Bridge.This will happen,if we do not get our referendum soon.

  2. Interesting. The terms and conditions of an exit would include the UK either entering the EEA or negotiating bilateral access to the Single Market - a la Switzerland. In either case, it would mean adopting (or, in this case, retaining) a significant amount of European law. The UK would obviously be able to negotiate significant opt-outs (indeed, as it has already) but the bulk of EU law would no-doubt still be applied.

    Which is one of the reasons I'm against the UK's exit.

  3. "The EU, could then during that period (out of spite) pass all sorts of financial, and other, penalties on us."

    Hence the emasculation of our armed forces (particularly the RN) by this traitorous government.

  4. @BoilingFrog btw - if we don't agree to the EU's terms, we can always turn them down. That would mean, of course, no entry to the single market. Bad for business.

    @Tcheuchter Rubbish! There was no money left! Especially after Iraq and Afghanistan - and then a financial crisis. Even the yanks are cutting back now. Working closely with the French makes perfect sense.

  5. @Anon Agreed, growing public resentment usually ends one way. I'm not confident a referendum will be forthcoming anytime soon. Heads on stakes is the inevitable outcome.

    @Eurogoblin There will be some EU laws agreement sure, along the lines of ISOs - some international standards are inevitable and sometimes helpful, I disagree though that the bulk of EU laws will have to remain in place. Many of them are not necessary for a trading agreement.

  6. @Tcheuchter Completely agree.

    @Eurogoblin. We're a major trading partner with the EU they will not deny us good conditions to trade - money talks! The EU has always been more than a single market, outside we could still trade with it but retain our political independence.

    And regarding your point about sharing the armed forces. They are nothing to do with cuts. The cuts are an excuse, we have been integrating our armed forces for decades, which I blogged about here

    Richard North (more of an expert on military matters than I) has blogged about this (in his usual robust manner) for years.

  7. Hmm.. perhaps we could sign some sort of FTA with the EU? It's possible, I'll admit. Would EU firms want to grant single-market access to Britain on uncompetitive terms, though? The truth is - I'm really not sure what the EU would do. You seem very confident, but I think you'd have to admit it's a risk.

    I'm on surer footing when it comes to the military. It's an issue I've also been following for several years - and I believe there really is no money left. It's certainly not a conspiracy (if it is, it's a very elaborate one). Richard North doesn't believe that cuts are happening - but he's wrong. They are, and (unfortunately) they affect the military.

  8. @Eurogoblin You seem very confident, but I think you'd have to admit it's a risk.

    Everything in life is a risk, I'm currently consuming one or two Stellas quickly in the hope that my wife doesn't return home suddenly and catch me :-)

    Seriously, I have no doubt that the UK's exit will have some negative impact, but remaining in an organisation that is plainly designed to negate democracy will, in my view, have much more serious consequences. It's more of a risk to stay in.

    One only has to look at Ireland, no-one they elect in their January election (apart a party who advocates EU withdrawal) will make one iota of difference to their desperate situation. That simply can't continue without consequences.

    Re: Richard North, he's only arguing that the projected spending has been cut but that it will still increase - only not as much. In that he's right there is no policy (yet) to reduce public spending, only to reduce the increase. That's his point.

    And while all departments should take a hit, that's no reason to share our military with another country (and all the complications that will result) It's not an elaborate hoax but out there in plain view. It was a desire of Jean Monnet to have a EU defence force.

  9. or we can just tell them to put put the treaty were the sun dont shine

  10. Hehe, good luck with the Stellas! ;-)

    I don't believe that the EU negates democracy. Instead, the EU actually spreads and reinforces democracy - especially in the new accession and candidate states. In addition, without the EU our sovereignty would be lost by virtue of the fact that the great powers could just bully us around.

    The military is a good example. North is wrong about the cuts because - when you factor in inflation forecasts - the cuts are not just cuts in the increase of spending, but cuts in the actual spending power of departmental budgets. In other words, departments will have more money, but it will be worth less in terms of what they can buy with it. So, the cuts are real however you look at it.

    True, it was the desire of Jean Monnet to have an EU defence force. His reasoning was that it would stop France and Germany going to war again. He was wrong - it wasn't the EU that stopped war in Western Europe, it was the Cold War (though there's a stronger case to be made that the EU prevents further conflict in Eastern Europe). Regardless, there's another reason to increase defence cooperation with the French. Nobody is thinking about Monnet's plans now. Instead, we're worried about having aircraft carriers with no planes on them (as it is, they'll carry French and American planes).

  11. btw, I don't hear many complaints that we'll be carrying American planes on our carriers. The trouble is mostly about the French - despite the fact that they're a our closest military allies next to the Americans and that we already have a long history of cooperating with them.

    It makes good military sense to work with the French - not in everything, but especially sharing training, transport and strike capacity, intelligence, logistics, etc. It doesn't have to mean British soldiers under French command or vice-versa.

  12. Hold on. 'International Law' is a political concept. If the UK parliament repeals the 1972 Act then the UK courts can do nothing about this. Parliament is the source of law in this country. If it says 'We are not a member of the EU and no international commitment shall change that' that is that.

  13. You say it like it's such an obvious solution! Thomas, one does at least try not to break international treaties if one can at all help it. If everybody went around breaking treaties willy-nilly, the word of nations would soon be worthless. Anarchic as contemporary international relations can be, the situation is still preferable to a world without the certainty of contracts.

  14. Plus, the markets would sodomise us into oblivion if we lived in a world in which nations broke contracts so easily.

  15. @thomas, Eurogoblin is right.

    If we repeal the 1972 ECA we would still be members of the EU under Lisbon. Its terms would still stand under international law. We could break international law to get out of our Lisbon obligations early but that would set an extremely dangerous precedent.

    It would fundamentally undermine international confidence in our ability to honour agreements, with all the consequences that would entail

  16. As a massive net contributor and as a big buyer of European goods again net, we are in a very strong position re leaving the EU. We only have to withold our payments and threaten to close our borders to European goods (do not think Germany will not be jumping up and down to make sure we still buy German cars). The EU is just a big bully and will back down to any one with the guts to tell them NO! Just look at little Estonia. They refused to put money into the bail out of Greece and Ireland. What did the EU do? It backed down! The EU elite are little more than gutless wimps.

    We will be better off out, even if we do take some pain which will not be much because they will be desperate to not alienate us because of the trade surplus they have with us. We can then get our fishing grounds back and in ten years the stocks will be backt o the pre Common Fisheries policy levels and we will have a fishing economy worthy of the name again.