The equivalent text in the North American Free Trade Agreement, on the other hand, is less dramatic.
Article 2205: Withdrawal
A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties.
Under Article 50, the EU treaties “shall cease to apply” once the two-year transition period ends. Under Article 2205, however, a participating country “
may withdraw” from the agreement once the six-month period ends. That’s no small difference: The first phrasing sets forth that a country must withdraw, while the second one indicates that a country
can withdraw.
Jon Johnson, an adviser to the Canadian government during the original NAFTA negotiations, described this crucial phrasing earlier this year as a potential barrier for Trump’s unilateral action. “Under the plain wording of NAFTA Article 2205,
providing the written notice is simply a condition that a party has to fulfill before it proceeds to withdraw from NAFTA,” he wrote. “
Providing the notice does not have the effect of causing a party to withdraw from NAFTA.”
What’s more, Trump might not have the lawful authority to yank the United States out of the agreement—it’s a matter of debate. Many experts believe that, under Section 125 of the Trade Act of 1974, the president possesses the authority to unilaterally withdraw from trade agreements, including NAFTA. But it’s somewhat uncharted legal territory, and not all agree.
Since Congress enacted NAFTA’s provisions by passing a federal law called the Implementation Act, Johnson argues, which doesn’t grant the president the power to withdraw from NAFTA unilaterally, he can’t act on his own. “Since NAFTA was approved by Congress under the authority expressly granted to Congress under the Commerce Clause, it follows that only Congress has the power to reverse that approval and cause the United States to withdraw from NAFTA,” he concludes.
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