Restrictions on unilateral withdrawal from the backstop (or the withdrawal treaty as a whole) are not legal, but political – and the parliamentarians who propose that it be possible to accept the deal and then withdraw are right. But there will be consequences that will often be overlooked by those who think about the legal fine print. From another point of view, the principles underlying Article 4 TEU should facilitate the adoption of that new decision where those mechanisms include the decision of a national parliament thus helping to define the characteristics of its own `national identity[y] inherent [in its political and constitutional structures] which link that identity to its membership of the Union; as a sign of `compliance` under Article 4(2) TEU. On 14 The negotiations ended on 1 November 2018 with the draft withdrawal agreement of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. (10) On 22 November 2018, the Political Declaration was agreed setting out the framework for the future relationship between the European Union and the United Kingdom. (11) This Agreement and that declaration were approved by the European Council on 25 November 2018. As regards the need to give reasons for the withdrawal of the notification of resignation if Article 50 TEU does not require such justification of the communication of the original intention, it is not indispensable for the revocation. Nevertheless, it would be reasonable for the Member State to explain to the other EU Member States the reasons for its change of position, which, given that it runs counter to its previous measures, requires an explanation. As I shall set out below, their practical consequences are as indisputable as their consequences for the main proceedings, whatever the importance of the question raised, both for the case-law and for the future. If the Court of Justice accepts that the notification of the intention to resign can be revoked unilaterally, the United Kingdom could notify the European Council of this revocation and thus remain a member of the European Union. Given that the Parliament of the United Kingdom must give its final agreement, both in the event of a withdrawal agreement and in the absence of an agreement, several Members of this Parliament believe that if the communication on the intention to resign were revocable, it would open a third way, namely to remain in the Union in the face of an unsatisfactory Brexit. The referring court appears to adopt that position and argues that the Court`s reply has the effect of clarifying the precise options open to Members of the British Parliament during the vote.
Both do not exist in the UK`s withdrawal treaty, international lawyers say. 22 There may be a temporal factor inherent in the application of the contract. Thus, the ICJ rejected Iceland`s assertion that it could terminate a 1961 contract with the United Kingdom which provided that any party could apply to the court if Iceland intended to extend its fishing restrictions (Fisheries Jurisdiction Cases [United Kingdom v. Iceland]). Since the right to invoke the jurisdiction of the Tribunal was deferred until such a well-defined future event occurred, Iceland`s contract could not be terminated until that event occurred. ( ICJ Rep. 15 para. 25-29) The period of two years (maximum, if not extended) for the negotiation of withdrawal terms is normal in the clauses of other international treaties. (79) It cannot be inferred from the existence of such a period that the notification of the intention to withdraw cannot be revoked unilaterally. Moreover, this period is not only intended to prepare for withdrawal, but also to `take into account`, so that the outgoing Member State can, if necessary, reconsider its original intention and change its position.
. . .