Europe
Le 22-07-2017 par B. Chalumeau - 
The Brexit! The Brexit! But in law, what is it really about?
(1) What are the legal characteristics of the parties negotiating under Article 50? :
The European Union and the United Kingdom of Great Britain and Northern Ireland are subjects of international law possessing the international personality, but are they States? To find out, let's return to the basic definitions:
What is a State?
It is a legal person under public law, distinct from the natural persons who represent it. The governed people obey the State and not the elected ones who only perform a function which they do not own and which can be withdrawn from them. Legally, two elements characterize a State:
In international law, legal personality is the very foundation of the principle of equality between States, regardless of their size, since the Westphalian treaties. The State has supreme legal personality.
The sovereignty and competence of the competence :
Sovereignty is the consubstantial characteristic of the State, which is a subject of law legally independent of the other States of which it is the equal, and also since the Westphalian treaties.
In its territory, delimited by borders, the State can impose its will on both nationals and foreigners. It has the monopoly of organized constraint. It can decide the constitution and the institutions it wishes.
The State itself defines its competences and has the competence of competence (Jellinek), that is to say that it is competent to attribute new competences to itself.
According to Jellinek, "The sovereignty of the State is the power which has competence of the competence. In other words, is sovereign the power which can freely define the extent of its own competence, which therefore has a plenitude of competences "
This notion is the subject of intense debate between the europeanists, fierce fundamentalists, supporters of european integration leading to the disappearance of States, nations and indigenous peoples, and sovereignists, defenders of the sovereign prerogatives of states, democracy and life.
- the first swearing everywhere that the European Union is not a Super State, that it will never be, whereas they know very well that it is one because that is what they wanted.
- the second asserting that the European Union is a super state they do not want and that only the Member States must have control over the power to allocate competences.
The study of the European treaties shows that, in addition to the exclusive competences conferred to the Union (Article 3 TFEU) and attributed to the Union (Article 4 TFEU), thanks to the “bridge clause” ( Article 126, point 14 via Protocol 12 of the TFEU) and the “simplified revision procedure” described in Article 48 (1), (2) and (7), it can increase or reduce the competences conferred to the Union in the Treaties, so that the Union would thus have competence of the competence and therefore the characteristics of a Super State.
However, any misunderstanding is removed in point II-5 of the appendix to the Council's recommendation of 3 May 2017, in which Michel Barnier finally spits the piece, giving the Union for the Brexit : "horizontal, exceptional and specific competence"(Oops).
1.1) What is the legal character of the Union? :
- Article 47 TEU gives it legal personality
- several articles of the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), and by Michel Barrnier's recommendations of 3 May 2017, point II-5 (although, curiously, there is nowhere in Article 50 mention of any provision “conferring on the Union such competence "…), it has competence of the competence.
Then it became clear that the Union has acquired the characteristic of Super State.
1.2) What is the legal character of the United Kingdom? :
By its referendum of 23 June 2016 and the approval by the House of Lords of 13 March 2017 to negotiate its exit from the Union, the United Kingdom has clearly reaffirmed its characteristic of a State and its leaders, like the leaders of democratic states, must respect the will of the people they have the honor of governing.
2) What about negotiating the Brexit?:
2.1) First hypothesis: The EU and the United Kingdom are both considered as States:
The Vienna Convention applying to treaties concluded between States, and in particular Article 42 thereof, could apply to Brexit, the United Kingdom having acceded to it on 20 April 1970. But the EU as such, has not acceded to it and its accession would be useless, as it would not be retroactive to previously ratified EU treaties.
A serious problem may arise if a dispute arises between the United Kingdom and the EU, since Article 50 provides no arbitrator, no arbitral clause, no arbitral procedure and no arbitral tribunal.The parties can not appeal to the European Court of Justice, which would be judge and party in this case, and only the International Court of Justice (ICJ) could be chosen as an arbitral tribunal.
The ICJ, which is a United Nations body, could be adopted by the United Kingdom and also by the EU insofar as most of the member states are members of the United Nations and that if some of them are not, they may become parties under certain conditions.
Since the ICJ had already ruled on the Kosovo Unilateral Declaration of Independence (UDI) by its Judgment of 22 July 2010, and since sovereignty is the origin and the goal end of all the norms, it can only rule in favor of the Brexit.
But knowing it, why would the United Kingdom not benefit from the Kosovo jurisprudence of the ICJ to proclaim its Unilateral Declaration of Independence (UDI)now without referring to Article 50?
2.2) Second hypothesis: Only the United Kingdom is considered as a State:
The membership of the United Nations in most of the member states of the Union and the possibility open to those who are not members of the Union to join the United Nations in certain cases, also makes it possible to refer the ICJ as an arbitral tribunal.This brings us back to the previous solution leading to the immediate proclamation of the United Kingdom UDI, without having to refer to Article 50.
2.3) Third hypothesis: Neither the EU nor the United Kingdom are considered as States:
If the EU is not recognized as a State and during the transitional period it may be considered that, once it has not yet regained its sovereignty and competence of the competence, the United Kingdom would not be regarded as a State, the membership of the Member States of the EU and of the United Kingdom in the United Nations, makes it possible to consider being reduced to the previous situations where the immediate proclamation of the UDI is necessary way.
3) Rejection of Article 50 by the United Kingdom:
The enormity of the pressures and the magnitude of the financial requirements of the Michel Barnier's EU recommendations text dated 3 May 2017 the 3rd, may exempt the United Kingdom to comply with Article 50 by applying Article 52 The Vienna Convention :
4)The final trap:
The following paragraph of Article 50:
means that, according to point (b), in order to conclude the exit agreement from the Union, the required qualified majority varies from at least 55% to at least 72% of the members of the Council representing the participating Member States, bringing together at least 65% of the population of these States.
If, in accordance with Article 50 (4), the United Kingdom does not take part in this vote and its population is not taken into account (65.6 million in 2016), it is clear how much the barrier erected by the Union of 72% and 65% is difficult to overcome.
So, what happens if, after two years after notification of withdrawal (here on 29 March 2017), a qualified majority poiny "b" is not reached to conclude the agreement? The trading period is indefinite, and it is not clear whether this extension can be renewed and how many times …
Again, all these difficulties could justify immediate use of the Unilateral Declaration of Independence procedure.
If the negotiations drag on, if there is a deep-seated dispute between the EU and the United Kingdom when no agreement can be reached between the negotiators or an arbitral tribunal, will the EU decide on heavy coercive measures such as ordering a blockade of the United Kingdom as it does for Russia?
5) Conclusion:
Faced with this ubudsque legal maquis as well as Kafkaesque, why for years and years to engage in sterile and illusory discussions, useless for the negotiators, when in the end, the UK will have anyway to renegotiate bilateral agreements with the Member States remaining in the Union?
Does not honor, common sense, wisdom, efficiency and the search for peace orders the United Kingdom of Great Britain and Northern Ireland to proclaim its Unilateral Declaration of Independence (UDI) now as it fulfills the required conditions?
Article 50 is a lure and an absurdity! Moreover, it is incomplete, drafted disregarding the rules of international law, allowing an EU's official to impose exorbitant demands of his own will to a great nation.
Any State which freely adhered to an international organization should be free to leave it as it entered.
According to the inalienable right of people's self-determination, why should not the Unilateral Declaration of Independence (UDI) be the rule once it is admitted by the International Court of Justice?
That is what the Alliance for the Sovereignty of France specifically invites them to do definitely.
Bernard CHALUMEAU.
Le 22-07-2017 par B. Chalumeau - The Brexit : what is it?
The Brexit! The Brexit! But in law, what is it really about?
(1) What are the legal characteristics of the parties negotiating under Article 50? :
The European Union and the United Kingdom of Great Britain and Northern Ireland are subjects of international law possessing the international personality, but are they States? To find out, let's return to the basic definitions:
What is a State?
It is a legal person under public law, distinct from the natural persons who represent it. The governed people obey the State and not the elected ones who only perform a function which they do not own and which can be withdrawn from them. Legally, two elements characterize a State:
- legal personality.
- the sovereignty and competence of the competence associated with it.
In international law, legal personality is the very foundation of the principle of equality between States, regardless of their size, since the Westphalian treaties. The State has supreme legal personality.
The sovereignty and competence of the competence :
Sovereignty is the consubstantial characteristic of the State, which is a subject of law legally independent of the other States of which it is the equal, and also since the Westphalian treaties.
In its territory, delimited by borders, the State can impose its will on both nationals and foreigners. It has the monopoly of organized constraint. It can decide the constitution and the institutions it wishes.
The State itself defines its competences and has the competence of competence (Jellinek), that is to say that it is competent to attribute new competences to itself.
According to Jellinek, "The sovereignty of the State is the power which has competence of the competence. In other words, is sovereign the power which can freely define the extent of its own competence, which therefore has a plenitude of competences "
This notion is the subject of intense debate between the europeanists, fierce fundamentalists, supporters of european integration leading to the disappearance of States, nations and indigenous peoples, and sovereignists, defenders of the sovereign prerogatives of states, democracy and life.
- the first swearing everywhere that the European Union is not a Super State, that it will never be, whereas they know very well that it is one because that is what they wanted.
- the second asserting that the European Union is a super state they do not want and that only the Member States must have control over the power to allocate competences.
The study of the European treaties shows that, in addition to the exclusive competences conferred to the Union (Article 3 TFEU) and attributed to the Union (Article 4 TFEU), thanks to the “bridge clause” ( Article 126, point 14 via Protocol 12 of the TFEU) and the “simplified revision procedure” described in Article 48 (1), (2) and (7), it can increase or reduce the competences conferred to the Union in the Treaties, so that the Union would thus have competence of the competence and therefore the characteristics of a Super State.
However, any misunderstanding is removed in point II-5 of the appendix to the Council's recommendation of 3 May 2017, in which Michel Barnier finally spits the piece, giving the Union for the Brexit : "horizontal, exceptional and specific competence"(Oops).
NATURE AND SCOPE OF THE AGREEMENT
II – 5 :The Agreement will be negotiated and concluded by the Union. In this respect, Article 50 of the Treaty on European Union confers on the Union an exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union. The exercise by the Union of this specific competence in the Agreement will not affect in any way the distribution of competences between the Union and the Member States as regards the adoption of any future instrument in the areas concerned.
II – 5 :The Agreement will be negotiated and concluded by the Union. In this respect, Article 50 of the Treaty on European Union confers on the Union an exceptional horizontal competence to cover in this agreement all matters necessary to arrange the withdrawal. This exceptional competence is of a one-off nature and strictly for the purposes of arranging the withdrawal from the Union. The exercise by the Union of this specific competence in the Agreement will not affect in any way the distribution of competences between the Union and the Member States as regards the adoption of any future instrument in the areas concerned.
1.1) What is the legal character of the Union? :
- Article 47 TEU gives it legal personality
- several articles of the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), and by Michel Barrnier's recommendations of 3 May 2017, point II-5 (although, curiously, there is nowhere in Article 50 mention of any provision “conferring on the Union such competence "…), it has competence of the competence.
Then it became clear that the Union has acquired the characteristic of Super State.
1.2) What is the legal character of the United Kingdom? :
By its referendum of 23 June 2016 and the approval by the House of Lords of 13 March 2017 to negotiate its exit from the Union, the United Kingdom has clearly reaffirmed its characteristic of a State and its leaders, like the leaders of democratic states, must respect the will of the people they have the honor of governing.
2) What about negotiating the Brexit?:
2.1) First hypothesis: The EU and the United Kingdom are both considered as States:
The Vienna Convention applying to treaties concluded between States, and in particular Article 42 thereof, could apply to Brexit, the United Kingdom having acceded to it on 20 April 1970. But the EU as such, has not acceded to it and its accession would be useless, as it would not be retroactive to previously ratified EU treaties.
A serious problem may arise if a dispute arises between the United Kingdom and the EU, since Article 50 provides no arbitrator, no arbitral clause, no arbitral procedure and no arbitral tribunal.The parties can not appeal to the European Court of Justice, which would be judge and party in this case, and only the International Court of Justice (ICJ) could be chosen as an arbitral tribunal.
The ICJ, which is a United Nations body, could be adopted by the United Kingdom and also by the EU insofar as most of the member states are members of the United Nations and that if some of them are not, they may become parties under certain conditions.
Since the ICJ had already ruled on the Kosovo Unilateral Declaration of Independence (UDI) by its Judgment of 22 July 2010, and since sovereignty is the origin and the goal end of all the norms, it can only rule in favor of the Brexit.
But knowing it, why would the United Kingdom not benefit from the Kosovo jurisprudence of the ICJ to proclaim its Unilateral Declaration of Independence (UDI)now without referring to Article 50?
2.2) Second hypothesis: Only the United Kingdom is considered as a State:
The membership of the United Nations in most of the member states of the Union and the possibility open to those who are not members of the Union to join the United Nations in certain cases, also makes it possible to refer the ICJ as an arbitral tribunal.This brings us back to the previous solution leading to the immediate proclamation of the United Kingdom UDI, without having to refer to Article 50.
2.3) Third hypothesis: Neither the EU nor the United Kingdom are considered as States:
If the EU is not recognized as a State and during the transitional period it may be considered that, once it has not yet regained its sovereignty and competence of the competence, the United Kingdom would not be regarded as a State, the membership of the Member States of the EU and of the United Kingdom in the United Nations, makes it possible to consider being reduced to the previous situations where the immediate proclamation of the UDI is necessary way.
3) Rejection of Article 50 by the United Kingdom:
The enormity of the pressures and the magnitude of the financial requirements of the Michel Barnier's EU recommendations text dated 3 May 2017 the 3rd, may exempt the United Kingdom to comply with Article 50 by applying Article 52 The Vienna Convention :
Art. 52. Constraint exercised on a State by the threat or use of force:
Any treaty whose conclusion has been obtained by the threat or use of force is invalid in breach of the principles of international law embodied in the Charter of the United Nations.
Any treaty whose conclusion has been obtained by the threat or use of force is invalid in breach of the principles of international law embodied in the Charter of the United Nations.
4)The final trap:
WARNING ! WARNING !
The following paragraph of Article 50:
'The Agreement (on leaving the Union) shall be concluded on behalf of the Union by the Council acting by a qualified majority in accordance with Article 238 (3) (b) of the Treaty on the Functioning of the European Union, after approval by the European Parliament "
means that, according to point (b), in order to conclude the exit agreement from the Union, the required qualified majority varies from at least 55% to at least 72% of the members of the Council representing the participating Member States, bringing together at least 65% of the population of these States.
If, in accordance with Article 50 (4), the United Kingdom does not take part in this vote and its population is not taken into account (65.6 million in 2016), it is clear how much the barrier erected by the Union of 72% and 65% is difficult to overcome.
So, what happens if, after two years after notification of withdrawal (here on 29 March 2017), a qualified majority poiny "b" is not reached to conclude the agreement? The trading period is indefinite, and it is not clear whether this extension can be renewed and how many times …
Again, all these difficulties could justify immediate use of the Unilateral Declaration of Independence procedure.
But if none of these provisions prevail, then it will be clear that it is impossible to leave the EU peacefully.
If the negotiations drag on, if there is a deep-seated dispute between the EU and the United Kingdom when no agreement can be reached between the negotiators or an arbitral tribunal, will the EU decide on heavy coercive measures such as ordering a blockade of the United Kingdom as it does for Russia?
5) Conclusion:
Faced with this ubudsque legal maquis as well as Kafkaesque, why for years and years to engage in sterile and illusory discussions, useless for the negotiators, when in the end, the UK will have anyway to renegotiate bilateral agreements with the Member States remaining in the Union?
Does not honor, common sense, wisdom, efficiency and the search for peace orders the United Kingdom of Great Britain and Northern Ireland to proclaim its Unilateral Declaration of Independence (UDI) now as it fulfills the required conditions?
Article 50 is a lure and an absurdity! Moreover, it is incomplete, drafted disregarding the rules of international law, allowing an EU's official to impose exorbitant demands of his own will to a great nation.
In short, this article is dangerous and it must be abolished!
Any State which freely adhered to an international organization should be free to leave it as it entered.
According to the inalienable right of people's self-determination, why should not the Unilateral Declaration of Independence (UDI) be the rule once it is admitted by the International Court of Justice?
It is therefore highly desirable that the lawyers of the various Member States of the European Union should urgently take up this question which threatens the stability of Europe and may even be of the world.
That is what the Alliance for the Sovereignty of France specifically invites them to do definitely.
Bernard CHALUMEAU.
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