Africa: Brexit Raises Thorny Questions of Law and Politics

UK & EU flags
UK & EU flags

As the world continues to react to the shock of the Brexit referendum, international legal experts are turning their attention to the implications of Britain’s departure from the EU.

The modalities of Brexit are laid down in Article 50 of the Lisbon Treaty (Treaty of the European Union), which provides the exit clause that permits an EU member state to leave the Union. The article provides a period of two years to negotiate the precise terms of exit and a future relationship between the country in question and the EU. It also answers some of the questions for withdrawals from the EU, but leaves many others unresolved.

The basics of Article 50

Article 50, paragraph 1, provides that “any Member State may decide to withdrawal from the Union in accordance with its own constitutional requirements.” Under this paragraph, the decision to quit the EU is not self-executing, nor does it have immediate effect.

Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal.

The hope, as set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement… setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.” That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.

Third paragraph, of the preceding article, specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force. If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension. Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.

This raises an obvious question: Can the British Parliament pull the trigger on Article 50?

As noted above, the referendum does not have any self-executing legal effects, nor is it legally binding. It will now be up to the UK government to decide when (and whether) Article 50 should be triggered.

Article 50 provides the guiding principle to shape talks between London and Brussels over the terms of the UK’s exit. The effects can be roughly divided into three time periods: the pre-notification period, the negotiations phase, and the post-exit relationship between the Britain and the EU.

However, Article 50 says nothing about how, when or by whom such notification is to be made. Presumably, notice would be given by the Prime Minster.

Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote. But after leave vote, he [Cameron] announced that notification would be given by his successor, who will take office by October 2016.

On this note, it’s important to recall that Cameron, during his first term in office, pledged to negotiate for change of EU laws to grant the UK a peculiar status among the EU so that his country would never be a member of a ‘tighter’ Union, a journey that has backfired on him. In fact, the momentum for Brexit was ignited by Cameron, as one of his election manifestos, though he subsequently changed to the ‘remain’ camp. As the saying goes, he shot himself in the foot.

The big question now: what kind of relationship UK is likely to forge with EU? As already noted, Article 50 does not exclude-perhaps it even encourages-the conversion of fully fledged membership into a ‘Switzerland-plus-minus’ arrangement.

In this arrangement, Switzerland, a non-EU member, signed several bilateral treaties with EU which has seen the Swiss Confederation adopt various provisions of EU laws in order to participate in the Union’s Single Market.

However, access to the single market requires acceptance of all four freedoms that underlie the EU’s internal market, as the ‘freedom of movement of goods, workers, services and capital’.Yet, the anxieties about unrestricted freedom of movement of people (anti-immigration) were at the heart of the decision by Britons to reject the EU.

Whatever kind of concessions likely to be made in days ahead, the UK must honour the principle of free movement of people if it wants to retain access to the single market. And it’s highly unlikely this freedom can be passed over. If no agreement in place, the UK will sail in uncharted waters.

Can it afford to be completely excluded from the EU single market? It’s an unimaginable path. Until the UK leaves the EU, EU laws continue to apply to and within the UK, both when it comes to rights and obligations.

Brexit raises another critical issue of Northern Ireland and Scotland, which voted to stay but the leave vote in England is taking their territories out of the EU against the wishes of their own people.

For the Scotland, now there’re calls for another Scottish independence referendum to secede from the UK in order to stay in the EU. Nicola Sturgeon, the current Scottish First Minister, has a penalty kick in the injury time, but nobody knows whether she will make a good or bad kick.

Source: Fred K. Nkusi; an international law expert.

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