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Brexit: lex specialis

2013-07-27 23:40:14

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Those of you who read Eurofacts this week will have noticed a useful letter from Niall Warry on Article 50, telling us that we should be promoting its use unless we want to lose the referendum when it is called.

Less helpful is a letter from Prof. Stephen Bush, who tells us that the Article 50 procedure could "drag on for years", in which event it would be "far better" for Britain internally to repeal the European Communities Act 1972 and externally to proceed according to the Vienna Convention on the Law of Treaties (VCLT).

Prof. Bush is a nice enough man and he means well, but one groans inwardly at his intervention another one which fails completely to address the realities of the post-Lisbon Treaty world. The trouble is that, with the advent in that Treaty of a formal procedure for leaving the EU as in Article 50 this displaces the provisions of any general treaty such as the VCLT.

The reason for this is the doctrine of Lex specialis, stated in full as, Lex specialis derogat legi generali. What this means is that, where a specific provision in law exists, it takes precedence over law which only governs general matters. Thus, as long as there is Article 50, it must be used in preference to the VCLT.

Although Prof. Bush seems to be unaware of this, the doctrine is well established in international law. It features, for instance, in Art. 2 of the Annex 2 of the "WTO Understanding on Rules and Procedures Governing the Settlement of Disputes", where it is stated that "special or additional rules and procedures should be used where possible".

We see it also take a prominent part in UN treaty law, which has special relevance in allowing general law to be taken into account when applying specific law. In other words, the specific law works within the framework set by the general law, but in making determinations, the specific law is the primary measure applied.

Elsewhere, we see multiple references to Lex specialis in EU law, evidence that the doctrine is recognised and routinely applied, and would therefore be applied to treaty law.

So it is that, when we come to leave the EU, we will be dealing with Art. 50. Only in the event of demonstrably bad faith by the "colleagues" could we then invoke the Vienna Convention, but the circumstances would be truly exceptional. Lex specialis will be the norm.