EUROPEAN UNION & BREXIT
SELECT ARTICLES & BOOK CHAPTERS
Preliminary Ruling Concerning the Interpretation of Article 50 TEU
This publication takes the form of a mock judgement of the Court of Justice of the European Union, responding to a request for a preliminary ruling on the question of whether a Member State of the European Union who has notified the European Council of its intention to withdraw from the European Union retains the right to revoke that notification during the transitional or implementation period of a withdrawal agreement which has entered into force.
The mock judgement reproduces, unamended, sentences/paragraphs from the judgement of the Court of Justice of the European Union in Case C-621/18 Wightman v Secretary of State for Exiting the European Union. Except insofar as the mock judgement adduces propositions relating to the question of whether revocation during the course of a withdrawal agreement transitional or implementation period is possible, it does not purport to be the author’s original work.
The UK's General Strike: Brexit and Critiques of Violence
What can critical legal theory tell us of the Brexit situation? This article argues that all of the tensions and conflicts which have followed the UK’s decision to exit the European Union are foreshadowed in Walter Benjamin’s 1921 essay, Critique of Violence.
The Modern Refugee in the Postmodern Europe, in Juss, S.S. (ed.), The Ashgate Research Companion to Migration Law, Theory and Policy. Law and Migration. Farnham, UK: Ashgate, pp. 25-42.
This chapter argues that the European union will come into being as a fully fledged political and legal entity only with the complete disavowal of the refugee, as she is understood as both a sociological phenomenon and a legal term of art. When people who flee civil and political oppression, generalised violence or other catastrophic events are denied access in significant numbers to European Union member states, the constitutive force behind the European Union will be revealed.
Used Up and Misused: The Nation State, the European Union and the Insistent Presence of the Colonial, 1 (3) (2011) Columbia Journal of Race and Law.
Through the migration and settlement of people and the movement of goods and capital, the savage, bankrupt estate of the old order in Europe has been appropriated. The way in which the member states of the E.U. have appropriated territories is similar to the migration and movement of units of production to the lands occupied by people considered primitive in earlier historical periods and in other geographical locations. Far from witnessing the birth of a political community without precise historical precedent, the origins of the European Union are distressingly familiar.
Women, migration and the constitutional underpinnings of the European Union, in Vanessa Munro and Margaret Davies (eds) The Ashgate Research Companion to Feminist Legal Theory (2013)
I have hinted all along that what is really at stake in the “feminization” of migration debate is the ways in which the bio-political order is placed in contestation. Migrating women should not be burdened with the task of radically altering the ends of migration but nor should they be ruthlessly engaged in the service of the kind of sovereign constituting that largely retraces the steps taken by other putative settlers during Europe’s colonial past.
(2010) From the state to the union: international law and the appropriation of the new Europe. In: Johns, F. and Joyce, R. and Pahuja, S. (eds.) Events: The Force of International Law. Abingdon, UK: Routledge, pp. 177-190.
The complex rearrangement of the European space, which we have witnessed over the past 50 years or so, follows the pattern of the land appropriation of the New World. Conceptually and analytically the discovery of the New World occupies an important place in this thesis, for as with the development of the “new” Europe the particular challenge in that historical period was to effect radical constitutional change over territorial spaces that were both populated and governed.
Narratives of Origins and the Emergence of the European Union,
in Johnson, Lessard and Webber (eds) Storied Communities: Narratives of Contact and Arrival in Constituting Political Community, UBC press (2011)
So, not for the first time, Europeans were embarked upon a civilising mission, but perhaps for the first time (at least in modern history), Europe sought to exorcise the savage within itself. It is, I think, quite remarkable that although so many accounts of the European Union’s emergence highlight the antagonism directed to the nation-state, they fail to reach the logical conclusion that the underlying discourse that defines the European Union is one that has constituted and authorised many a sovereign entity. The dialectic of pre-modern/modern or savage/civil has ever been invoked to justify radical alteration in the putatively savage or pre-modern situation.
When the Court Has Its Say on Brexit Day...
Some brief reflections on the only one of the major institutions of the European Union which has not yet had a say on whether the withdrawal agreement which enters into force at midnight on 31 January 2020 complies with the terms of Article 50 and ends the UK's membership of the EU.
Can the UK's Article 50 Notification be Revoked During the UK/EU Transitional Period?
The court in Wightman was not called upon to consider the question of whether a right of revocation exists in circumstances in which an agreement concluded under Article 50(2) does not have the effect of “withdrawing” a member state from the European Union Treaty framework. Now that the UK parliament has, in principle, approved the terms of a new withdrawal agreement, it is time examine, again, the meaning and scope of Article 50.
European Council Decision 20 October 2019 (10.10.2019).
In the highly likely event that the European Council is required to consider a third extension to the UK’s exit date, it will be hard for it to escape the conclusion that conditioning an extension upon the UK Parliament’s approval of the Withdrawal Agreement which was concluded on 25 November 2018 is the only logical way in which it can comply with its obligations under Article 50 of the Lisbon Treaty.
Unacknowledged Authors of the Brexit Withdrawal Agreement (22.3.2019).
This commentary, posted on the day the UK government received its first extension of the Article 50 negotiations, explores why few journalist and other expert commentators were able to predict that the EU would condition the extension on the UK parliament ratifying the EU Withdrawal Agreement. The commentary highlights the ‘nationalistic’ terms of the Brexit debate, and cautions against leave/remain options which fail to take account of the damage caused to the European Union by the protracted and increasingly bitter debate in the UK.
Brexit and the MP's Legal Dilemma (5.12.2018).
This is an analysis of the Advocate General’s Opinion in the Wightman case, concerning the question of whether an Article 50 notification can be unilaterally withdrawn by the initiating member state. It focuses on the Advocate General’s suggestion that the legal position he outlined (subsequently accepted by the Court of Justice of the European Union) should guide UK MP’s during parliamentary debate over how the UK is to exit the European Union. It concludes that legal rights, being highly individualist in nature, are likely to be of limited use in the collective decision-making process which UK MP’s must engage to decide whether the UK leaves the European Union, and, if so, on what terms.
Withdrawal or Suspension? The UK's Orderly Exit from the European Union (16.11.2018).
The argument in this blog post that the EU Withdrawal Agreement will bring about the de facto suspension of the UK from the European Union, and will not result in the UK permanently leaving the EU, has since been strengthened by the fact that UK MPs - from all sides of the political spectrum - have several times rejected it. However, the commentary argues that remainers would be wise to accept the temporarily reduced form of EU membership which the EU Withdrawal Agreement offers.
Common Rulebooks and Frictionless Borders: The UK's Redesign of the European Union (17.7.2018).
This commentary analyses the UK’s proposed terms for leaving the European Union. It explains why the proposals were rejected by the EU Brexit negotiating team, who correctly interpreted them as an attempt by the UK government to fundamentally alter the legal structure of the European Union.
BOOK REVIEWS & CASE NOTES
Article 50 TEU Reborn? A Review of Benjamin Martill and Uta Staiger (eds), Brexit and Beyond: Rethinking the Futures of Europe, UCL Press, 2018. 293 pp. £35.00 (HB). ISBN: 978-1-78735-277-3.
This review explores whether a less rigidly rules-based/supremacy-driven, approach to the Article 50 process on the part of the EU might have fundamentally altered the course of the Brexit negotiations.
Brexit Litigation. A Review of Patricia Mindus, European Citizenship After Brexit: Freedom of Movement and Rights of Residence, Palgrave Macmillan, 2017. 123 pp. £20.00 (HB). ISBN: 978-3-319-51773-5.
In arguing the need for litigation before the UK domestic courts and the Court of Justice of the European Union as a means of clarifying the consequences of the UK’s decision to exit the European Union, this review anticipates several important legal developments, including the Wightman decision which confirmed the UK’s right to unilaterally revoke its Article 50 notification.