The right to revoke withdrawal notices from international organizations: The case of Brexit and the European Union
| Date | 01 February 2021 |
| Author | Konstantinos Magliveras,Gino Naldi |
| DOI | 10.1177/1023263X20958378 |
| Published date | 01 February 2021 |
| Subject Matter | Articles |
Article
The right to revoke withdrawal
notices from international
organizations: The case of
Brexit and the European Union
Gino Naldi* and Konstantinos Magliveras**
Abstract
Following the 2016 referendum, the UK notified its intention to withdraw from the European
Union pursuant to Article 50 TEU. Given the political and legal consequences of a much-
questioned referendum and the strong opinion of many parts of British society that the UK’s
membership should not be terminated, the question arose whether such a notification could
be revoked unilaterally. In the absence of any mention in Article 50, expert opinion was
divided. International law – that is, the law of treaties and the law of international organi-
zations – does not appear to provide a definite answer, while state practice is rather scarce.
The constituent instruments of international and regional organizations containing withdrawal
clauses are also silent, except for African organizations and development/investment organi-
zations, which invariably allow Member States to rescind withdrawal notices. As regards the
EU Treaties, bef ore the Lisbon Trea ty they did not con tain a withdrawal clause. In the
preliminary ruling given in Wightman v. Secretary of State for Exiting the European Union,which
concerned whether an EU Member has the sovereign power under Article 50 to revoke
unilaterally a withdrawal notice, the Court of Justice helped to clarify a critical question of EU
Law but also of international law.
Keywords
International organizations, withdrawal, law of treaties, Article 50 Treaty on European Union,
Brexit, Wightman case
* Ph.D, Former university senior lecturer in Law, Norwich, UK
** D.Phil, Attorney at law, Athens, Greece
Corresponding author:
Konstantinos Magliveras, Davaki Str. 3, GR – 11526 Athens.
E-mail: kmagliveras@aegean.gr
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(1) 30–58
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20958378
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1. Introduction
In its preliminary ruling of 10 December 2018 in Wightman v. Secretary of State for Exiting the
European Union that a Member State retains the sovereign power to revoke unilaterally a notice of
withdrawal from the European Union (EU), the Court of Justice of the European Union (CJEU) has
filled in a significant omission in the withdrawal clause of the Treaty on the European Union
(TEU), namely Article 50.
1
But more broadly, the CJEU has additionally helped to clarify a critical
question of international law relating to the law of treaties and the law of international organiza-
tions (IO).
2
Wightman is therefore important because it is a rare case in which an international
court has considered the question of a Member State’s withdrawal from an IO and the first in which
the withdrawal’s revocability has featured as the principal issue.
3
Although the case centred on
which has a residual role in EU Law, also featured in the deliberations.
4
This article considers the complex question of a Member State’s withdrawal from an IO in light
of the problems and challenges that have arisen as a result of the United Kingdom’s (UK) with-
drawal process from the EU, what became known as ‘Brexit’. In particular, after offering a detailed
overview of the constitutional and EU Law ramifications of Brexit, the article examines the
possibility of a withdrawal notice being revoked, retracted or cancelled, focusing on the CJEU’s
pronouncements on the law of treaties regarding termination of membership in IOs.
The substantive section of this article begins with a discussion of the international law on the
revocation of notices of withdrawal. As the TEU shares the inclusion of a withdrawal clause with
many constituent instruments of IOs, a brief overview will be undertaken, especially of those
provisions permitting revocation, to place Article 50 TEU in context, followed by questioning
whether a general right to cancel notification of withdrawal exists in international law. A state of
uncertainty is revealed. A short historical account on the issue of withdrawal from the European
Economic Community/European Co mmunity, which was not envisaged in the then Founding
1. Treaty on the European Union, 13 December 2007, [2010] OJ C 83/13 (TEU).
2. Case C-621/18 Wightman and Others v. Secretary of State for Exiting the European Union, EU:C:2018:999. See the case
note by D. Azaria, 113 AJIL (2019), p. 799–805.
3. The Central American Court of Justice (CACJ) has twice expressed a view on this subject, holding, inter alia, that a
Member State could not withdraw unilaterally from the Central American Parliament (PARLACEN), Case No. 6-14-08-
2009, Advisory Opinion of 23 September 2009, http://cendoc.ccj.org.ni/ExpedientesFichaLectura.aspx?id¼255; Case
No. 2-26-03-2010, Judgment of 21 October 2010, http://cendoc.ccj.org.ni/ExpedientesFichaLectura.aspx?id¼264.
4. Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331. Even though the VCLT applies to the
constituent instruments of IOs by virtue of Article 5 VCLT, arguably they constitute a separate category of multilateral
treaties having specific characteristics, like the treaties on human rights do, cf. G. Naldi and K. Magliveras, ‘The Law
and Practice Regarding Denunciation of Treaties and Withdrawal from International Organisations with Specific
Reference to Human Rights’, 33 Polish Yearbook of International Law (2014), p. 95–127. As the International Court of
Justice (ICJ) cautioned in The Legality of the Threat or Use by a State of Nuclear Weapons, Advisory Opinion, 1996
I.C.J. 66 (July 8), para. 19 (Legality of Nuclear Weapons Case), the special nature of the constituent instruments of IOs
invites careful interpretation. Identical provisions are to be found in the parallel Vienna Convention on the Law of
Treaties between States and International Organizations, 21 March 1986, 25 ILM 543 (1986) (VCLT-IO), not yet in
force. However, it is important to note that, while the VCLT is not part of EU Law, it might be applied, Opinion of
Advocate General Campos S´anchez-Bordonain in Case C 621/18, Wightman, EU:C:2018:978, para. 78–79; G. Beck,
‘The Court of Justice of the EU and the Vienna Convention on the Law of Treaties’, 35 Yearbook of European Law
(2016), p. 484–512.
Naldi and Magliveras 31
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