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To the contrary: no provision in the law for revoking a duly issued, deliberate action to secede expresses agreement of the authors to reject the premise; in point of fact, the treaty expressly provides recourse for petitioners to the union --correction or remediation of remorse that might attend secession --in Art. 50 and 49. These provisions define exercisable action available of all members.

What is the premise that the authors rejected?

The possibility, or license, afforded any one party to arbitrarily abridge rights of all members who are parties to the contract; and the probability that such license encourages opportunities to coerce agreement to spurious privileges from members in good standing instead of political resolution by all members.

But here you (pl.) contemplating a false defense of anarchy, the necessity inherent in immediately vacating due process of the law as is convenient for the petitioner, which incidentally has expressed no remorse with reprieve from an act that is lawful and was legally constituted by the member state.

And let us be clear: the parties to international treaties are governments--specifically heads of state--not a governments' constituents.

Diversity is the key to economic and political evolution.

by Cat on Wed Nov 28th, 2018 at 01:11:17 AM EST
[ Parent ]
To me, what they meant - if anything - by not spelling out if an A50 declaration can be revoked or not, is not a question that can be answered by judicial reasoning. If they indeed meant something, it could be traced by asking the involved persons, reading their notes or transcripts of their discussions or reading or watching the debate at the time. Since I don't have access to the persons, their notes or transcripts, the debate at the time is all I have got.

Now the question of what they meant can of course be approached not as a historical fact but only as figure of speech, to be reached by reason alone, death of the author style. Then I would recommend calling it something else.

In the end, the Court will decide the case. And I think it is a folly to try to guess what they will decide based on reasoning that doesn't take into account who the judges are and what kind of legal tradition they are constructing on the EU level out of the different European ones. Maybe they will take the Vienna convention on conventions into account, maybe they will lean heavily on the historical record of what the contracting parties actually meant. Maybe they will grasp an opportunity to get out of actually deciding.

by fjallstrom on Wed Nov 28th, 2018 at 11:18:32 AM EST
[ Parent ]
Treaties tend to be drafted by legal specialists who would be well aware of the content of other Treaties such as the Vienna Convention and Treaties which contain a "cooling down period withdrawal clause". Putting in a clause to say that if a member decides within (say) 6 Months of issuance, to withdraw an A. 50 notification , they may do so would have been the easiest thing in the world and could have been achieved with one sentence.

It is difficult not to draw the conclusion that its absence is intentional.

But more important still than what the original framers or legal draughts-people intended is what the high contracting parties actually signed up to. Members which signed the Treaty without a withdrawal of notification clause could be forgiven for wondering how the ECJ could effectively add one in after their signatures had been procured.

Note that the issue in question is not whether an A.50 notification can be withdrawn, but whether it can be withdrawn unilaterally, without the agreement of the EU Council. The EU Council could be forgiven for not engaging seriously with any notice party until they had some sort of guarantee this was for real, and not just a tactical maneuver, to be revoked later.

Note also that in a previous case (Miller, if I recall), the UK government chose not to argue this point, with both parties accepting that an A. 50 notification, once issued, is irrevocable. The only people arguing that it might be are some Remainer Lawyers not acting for any member state government or party to the Treaty.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Wed Nov 28th, 2018 at 05:34:16 PM EST
[ Parent ]
by ThatBritGuy (thatbritguy (at) googlemail.com) on Wed Nov 28th, 2018 at 10:29:43 PM EST
[ Parent ]
Thanks for this. I was aware of the general history, but have tended to discount its importance. Very few legal texts have only one author and most have to go through complex approval processes with possible minor tweaks along the way. Certainly the people with ultimate responsibility for approving a text may read it quite differently from the way the original author intended - even in cases where there was only one identifiable individual author.

I could claim ownership of all manner of policy documents for Diageo. In reality I "borrowed" a lot of ideas from elsewhere and any documents I produced had to go through lengthy many layered approval processes which might have tweaked them at some stage or meant something different to different people within the approval process. So even Lord Kerr may not be the initial author - he may merely have approved a text original written by some junior lawyer in the secretariat. Quite often you genuinely forget where you got your ideas from.

At the time Lord Kerr was head of the Convention secretariat that was trying to draw up a a formal EU Constitution - which was later rejected by referenda in France and Holland. Parts of that Treaty were later incorporated into the Lisbon Treaty - again a different context and time. Lord Kerr was anxious to provide a formal mechanism to disadvantage some dictator wanting to leave the EU in a huff - never imagining it would be the UK which was the first to invoke it.

All of which is a long way of saying that a text dreamed up in one circumstance with one set to intentions may end up serving a very different purpose  in another. The ECJ has the task of interpreting it in the current context, but must also be wary of producing an unwanted precedent for the future. Laws are generally framed to provide the institutions operating within their framework some discretion and freedom of interpretation.

It seems to me the very short, sparse, and clear style of A.50 provides the EU Council with considerable discretion. I doubt the ECJ will want to interfere with that. The EU tends to operate by consensus which gives individual members some scope to block initiatives, but much less to initiate actions against the wishes of others.

The more I read Lawyers prognosticating on this issue, the more I realise that lawyers are not politicians and have little ability to imagine the political ramifications of some of their ruminations. It would be crazy to allow an unregulated unilateral right to withdraw an A.50 notification after all the disruption and additional costs it has occasioned, not to mention the consequences of numerous members invoking and revoking A. 50  notifications for tactical purposes during other negotiations and disputes.

If the ECJ were to announce that an A.50 invocation is unilaterally revocable, I would be all in favour of the EC council deciding not to pay any heed to A. 50 invocations until they become irrevocable after 2 years. Let members who wish to leave just leave, and negotiate with them as third parties afterwards. The EU is actually doing them a huge favour by offering to negotiate interim and transitional arrangements to minimise disruption while negotiations are ongoing.

Not that the EU can expect to get any thanks for it.


Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:18:36 PM EST
[ Parent ]
Looking at the economic costs the UK has already endured makes me think it's not only the lawyers who aren't good at politics.
by Colman (colman at eurotrib.com) on Thu Nov 29th, 2018 at 12:22:51 PM EST
[ Parent ]
My understanding is that there was no Grand Legal Masterplan for the wording. It was a bit of an afterthought and dependent on some very specific circumstances, which are now historical.

So there is no detailed legal implication buried in the wording, because it was never considered likely enough to need more specific detail.

This does of course leave it open to interpretation by the ECJ. But - as I've suggested before - ultimately it's a political issue, not a procedural one.

If the political will is there, A50 will be revoked somehow. If it isn't, all kinds of challenges and obstacles will make it seem like an impossibility. Most likely there will be some toing and froing and the EU will demand a price - possibly a token one, possibly not - before agreeing.

But it's also worth pointing out that there are now multiple challenges to the legality of the referendum result, and if they succeed the basis for A50 - that it's invoked in accordance with a country's constitutional requirements - will no longer apply.

Leave are trying to argue that parliament's vote to invoke A50 supersedes and legitimises the result, even if it was illegitimate and possibly even criminal.

I think that would be unlikely to stand up to a challenge. In any case, at the moment it looks as if May will lose her vote, and her current "charm offensive" around the UK (oh my aching sides...) is actually some one-sided campaigning in preparation for a GE.

If so - good luck with that plan.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Nov 29th, 2018 at 12:42:29 PM EST
[ Parent ]
Leave are trying to argue that parliament's vote to invoke A50 supersedes and legitimises the result, even if it was illegitimate and possibly even criminal.

I would actually agree with that argument. The referendum was purely advisory, and if it was illegitimately influenced, the worst you could argue is that Parliament got some bad advice before deciding to proceed. Parliament and the government are free to change their minds and have had many opportunities to do so - despite all the evidence of illegality in the run up to the referendum. This government now "owns" this Brexit deal, and I suggest only a new government or a referendum to change this government's mind can change that state of affairs.

Index of Frank's Diaries
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 12:59:47 PM EST
[ Parent ]
It was sold to Parliament as "purely advisory."

It was sold to voters with the promise that Parliament would implement the decision - even though there was no specific plan, and no details of what "Leave" actually meant, and no constitutional basis for that promise.

It's not true that Parliament has had multiple opportunities to change its mind. The A50 vote was unique, and it was only after a referral to the judiciary that the "meaningful vote" amendment was even allowed a debate.

Throughout, May has acted despotically, using lies, inflammatory rhetoric, and bullying to force through policy, to shut down open debate, and to try to minimise the influence of suggested amendments.

At this point she's actively defying a Parliamentary vote to require her to reveal the full details of the legal advice she has received.

This has not been business as usual, nor has there been more than a pretence of allowing Parliament independent oversight of the process.

It's not so much that the government needs to change its mind, as May's entire regime needs to be cleaned out. She's clearly not successfully representing anyone except her own delusions - and possibly the business interests of her husband's employer, and of the semi-criminal regimes, like Russia, Israel, the Saudis, the fascist right in Europe, and the neocons in the US, that she likes to associate with.

It's tempting from the EU POV to use Brexit to teach the UK a lesson. But that's not a very nuanced view. The neocon/neoliberal/neofascist problem is world-wide, and killing this outbreak in the UK would do a lot to stop its spread elsewhere.

by ThatBritGuy (thatbritguy (at) googlemail.com) on Thu Nov 29th, 2018 at 01:24:37 PM EST
[ Parent ]
Many thanks for this exchange of views, which I find fascinating even if I slightly disagree with you. The problem with not having a written Constitution is that it all depends, a bit, on the author's viewpoint. For all its claims of ancient tradition, the UK "constitution" is very crude and basic at best.

In reality the UK is a Parliamentary democracy where Parliament is effectively Sovereign. Referenda have only been used, rarely and relatively recently, to decide on EU membership issues and some electoral system and "regional" devolution issues, where Parliament found the issue too difficult or too regional to resolve.

While the formal position was always that EU related referenda were advisory, it would be a brave parliamentarian/party which would go "against the voice of the people". Nevertheless it was always a political rather than a legally binding decision to accept the result.

Personally I think referenda are generally a good thing and fill a massive void in a simplistic and crude first past the post single seat constituency system where there is little point in voting in most constituencies which are deemed "safe" for any party.

I suspect the high turn out in the last referendum was a huge sigh of relief that your vote in many "safe" constituencies actually mattered and would actually count towards the final result. Much of the vote was actually a protest vote against the system, austerity, and the Government, but c'est la Vie. Democracy doesn't always work in the way intended.

We in Ireland can act all smug in that we have had many referenda and know how they should actually work: They are for inserting very specific provisions in a written constitution with very specific effects so there is the least possible uncertainty as to what the real issue is all about.  A referendum on May's (or any other deal) would have the merit of being quite specific and unambiguous in its effects.

Obviously a government with a working majority can do a lot to impose its will on Parliament, on the order of business and what issues are put to a vote and which are not. The Fixed Term Act actually makes it very difficult to force a Prime Minister out mid-term - unless disowned by her own party. The DUP have said they will support te Conservatives on confidence issues even though they will render it paralysed on much else.

So we could be left with a lame duck Prime Minister leading a lame duck government drifting helplessly onto the "no-deal" rocks. The only alternative is for May to do a deal with Corbyn on a general election or a second referendum. To his credit, Corbyn has been quite clear: he wants a general election. The question is whether even a third of the Conservatives would be prepared to follow May down that route at the present time, as the Fixed Term Act requires a two thirds majority of Parliament to pass.

I suspect she could get that number - many are in safe seats - but they could be risking condemning the Conservative Party to Opposition for a generation, and even its displacement by the Lib Dems in the duopoly of power in Westminster. Perhaps the Remainers and Leavers in the Conservative Party hate each other enough to risk that outcome.

Index of Frank's Diaries

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Thu Nov 29th, 2018 at 03:01:51 PM EST
[ Parent ]
It's tempting from the EU POV to use Brexit to teach the UK a lesson.

Actually, no: very few people in the EU go along that line; and even less among EU governments and institutions, who recognized from day one that this would be bad for both sides and that Brexit agreements would be at best "damage control" (reiterated recently by D.Tusk).

This "lesson" (or "punish") thing is actually a frequent Brexiteer's theme, if only to rile up the base once it becomes clear that the EU is not letting them having their cake and eating it.

by Bernard on Thu Nov 29th, 2018 at 07:30:50 PM EST
[ Parent ]
The purpose of "judicial reasoning" in civilized [!] "jurisdictions" is to interpret law: to deliberate and "decide" findings of fact and findings of law preceding and applicable to resolution of any one civil or criminal dispute
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since the Roman empire ruled [!] the known world ("what kind of legal tradition") with coloni, tribunes, magistrates, and property [!] rights [!] granted "citizens" by the state [!]. And let us note that the Roman state, republics and principates, developed  an exceedingly fine hierarchy before it "devolved" to a constellation of feudal landlords and autocratic christian warlords across "eurasia".

Jurisprudence by the ECJ, its "parts", its constitution(s), and is collections of common law is no different from the ancient tribunals in their regard for status quo. Let us note the adoration of the Latin in EUR-Lex, signifying the root.

What do I mean by status quo? Foremost the antithesis of anarchy and arbitrary rule of "men"; rather the absolute authority of government however that is constituted by legislators. Of course, lawyers jealously guard their dictionaries, the lexicons. This is the tool of their trade which is litigating interpretations of law exceedingly fine in its composition and complementarities.

What is and what is not codified.

## Rule of law is not well understood.
## Separation of powers is not well understood.
## Democracy is not well understood.

Diversity is the key to economic and political evolution.

by Cat on Wed Nov 28th, 2018 at 07:43:59 PM EST
[ Parent ]
The Roman empire didn't cover the known world, and not even the whole of the EU, and it didn't so much devolve as being overrun by waves of invaders that combined what they found useful in Roman law with their own traditions.

Add Christian church, renaissance, reformation, enlightenment, the growth of the modern state with its claim on monopoly on violence and then the whole messy 19th-20th century history, and yes you do end up with different legal traditions. Not least when it comes to legal interpretation. Which can easily be seen by reading articles on legal interpretation in different European languages, for example on Wikipedia.

by fjallstrom on Thu Dec 6th, 2018 at 05:56:12 PM EST
[ Parent ]
The world known to "classical" Rome and "classical" Greece indeed constitutes the "known world" in antiquity.

Eurocentric contemplation of all humanity that was and will be to this very day defines truth, justice, and history, does it not?

Diversity is the key to economic and political evolution.

by Cat on Thu Dec 6th, 2018 at 07:50:06 PM EST
[ Parent ]
Huawei's CFO Arrested at U.S. Request, Sparking Outrage in China

What other explanation, or rationale, would you offer for such a police action?

Diversity is the key to economic and political evolution.

by Cat on Thu Dec 6th, 2018 at 09:22:09 PM EST
[ Parent ]
How did "europeans" acquire literacy in the form known as alphabet?

Diversity is the key to economic and political evolution.
by Cat on Thu Dec 6th, 2018 at 07:53:20 PM EST
[ Parent ]
but it did include Turkey.......
by gk (gk (gk quattro due due sette @gmail.com)) on Thu Dec 6th, 2018 at 07:53:24 PM EST
[ Parent ]
formerly-known as Anatolia, formerly-known as (tribal) "Asia", formerly-known as ... o, pick a "kingdom", "tyranny," "democracy" --say, Corinth or Troy, these coloni -- claimed and tentatively possessed by classical "Europa". Greeks.

Up and down the "Levant" and around seas of piracy.

This M&A operation has been going on for millennia.

Diversity is the key to economic and political evolution.

by Cat on Fri Dec 7th, 2018 at 07:34:10 PM EST
[ Parent ]

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