Hemant K Batra, Guest Columnist and Cross Border Law Specialist
Photo Source: BigStockPhoto
The relationship which started in 1975 with the European union was avowed as not worth to continue by the majority of British on 23 June, when they polled on the referendum to `stay’ or `leave’ – Should the United Kingdom remain a member of the European Union or leave the European Union? 51.9% opting to leave with 48.1 begging to stay.
Eventually, the democracy made its way by virtue of simple majority. The sizeable vote for `stay’ with EU became completely meaningless or should I say impotent whereas the ones with `leave’ became important.
Photo Source: Google
Hence, the results as out on 24 June determined that United Kingdom has voted to leave the EU. But, my mandate is not to analyze as to – Why at the first place did David Cameron chose to offer referendum to the people of UK? How could such an important and fundamental international polity & economic dimensioned decision could be handled so unconcernedly? Why there seemed to be no knowledgeable and cogent handling of this crucial matter? Was this mess deliberately created by David Cameron for his successor as he knew, his time of exit had come? Is this a victory of Nigel Farage or Boris Johnson?
My agenda for instant write-up is to examine and evaluate the legality connected with this referendum outcome. Is the Brexit vote legally binding? Could its pronouncement be gridlocked or reversed?
Lisbon Treaty of the EU recognizes the right to exit of its member nations. Article 50 of the said treaty makes the withdrawal of membership unconditional, though it lays down a set of procedural requirements. This Article provides for negotiation of a withdrawal agreement between the EU and the (purporting) withdrawing state. The agreement is intended to outline a plan governing rather prescribing the manner in which the exiting member’s future association and rapport will proceed with the EU. In the absence of any agreement getting determined within a period of two years, the membership of the concerned nation will terminate automatically by efflux of time. However, the EU acting through its council and member states could decide to extend this period.
It is significant to note that Article 50 grants tremendous flexibility and liberty to EU member(s) to withdraw from the Union in accordance with its own constitutional requirements. But, it does lay down a procedure for withdrawal and that process being formal in nature will have to be adhered to by UK. The Article makes it obligatory for a member state desirous to withdraw to `notify’ the European Council of its intention. Once, the notification is formally received from the official channel of the member nation, the European Council and the Union shall negotiate the agreement as per guidelines formulated within. The agreement so concluded with that exiting member nation shall lay down the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. The agreement shall be negotiated in accordance with a specific Article being part of the Treaty on the Functioning of the European Union. The finality to the exit shall then be endorsed on behalf of the Union by the Council with the consent of the European Parliament.
Consequently, all the EU Treaties shall cease to apply to the member nation having withdrawn and exited. As above noted, the whole exit process must conclude within 2 years unless extended by the EU. Non-attainment of successful conclusion of exit will entail automatic termination.
The preceding brief discussion demonstrates that UK has still not reached the trigger or inception point. The notification is a condition precedent for initiating the process of withdrawal and exit. Hence, we need to wait and watch as to when will the UK Government send notification under Article 50 to EU. Whether it will be David Cameron sending it or his successor?
Once UK prompts Article 50, it will have a 2-year bridge path to negotiate an agreement post its divorce. There will be many potholes and speed breakers in the fiscal, tariff, trade, subsidy, migration, movement of individuals and goods etc. to deal with while moving on this negotiation bridge path. Paradoxically, the exit process is to be dealt with not EU alone but its constituents and each member nation having its own tactic to deal with UK for future purposes.
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