The EU and the law
SIR – Last Wednesday, a British prime minister left the room to have supper elsewhere, as the European Council purported to decide Brexit’s future. The legalities of what happened next – or what didn’t – are more important than the niceties of protocol.
The EU long ago evolved into a curious mixture of public international law (that is to say, the law of the EU treaties as applied at the international level) and a system of law internal to the EU. The mixture notwithstanding, certain events crucial to the formation of the EU take place under international law, not EU law.
The most important examples are the accession of a third state, whereby it becomes a member; and the exit of a member, whereby it becomes a third state. Those events are international law events, not EU law events, because the EU does not absorb states by means of a unilateral EU act, and the EU does not claim sovereignty over its members: every member retains the sovereign right to leave.
An extension of membership after a member has invoked its right to leave (a right reflected in Article 50) is similarly an act under international law. True, a Council decision saying the Council is agreeable is necessary, and that decision is under EU law. But an extension comes into force only when the Council and the exiting state agree. Their agreement (if they reach it) is a matter of international law.
Reading the Council’s decision from Wednesday night, one gets the impression that the Council brought the extension into force by itself: Article 1 of the decision says that the UK’S exit “is hereby further extended until 31 October 2019”. No mention is made of the UK acting separately to bring itself into agreement with the Council.
Sir Timothy Barrow, the UK’S representative in Brussels, when he replied to the Council shortly after it had announced the decision, should have made clear that a separate act, under international law, is needed if an extension is to enter into force. Leaving the matter unclear fosters a growth of EU power at the expense of the sovereign discretion of its members, including the one that seeks to exit. Dr Thomas Grant
Lauterpacht Centre for International Law, University of Cambridge