Irish Backstop and Unilateral Withdrawal


Author: Charles Proctor


Charles Proctor, Partner, Fladgate LLP (cproctor@fladgate.com)


 

An arcane legal issue floated to the surface amid chaotic political scenes in the House of Commons last night.

A few points by way of introduction:

  1. much of the opposition to the negotiated EU Withdrawal Agreement revolves around the Irish backstop. It is generally thought that the establishment of a hard border would be seriously detrimental to the Irish peace process;
  2. the Irish backstop is intended to ensure that the border between Ireland and Northern Ireland remains open – without border checks – unless and until a trade agreement is negotiated between he EU and the UK at a later date. That trade agreement is intended to be negotiated before the end of the transitional period at the end of December 2020. However, this will be a difficult negotiation and there is no absolute guarantee that a trade agreement will be concluded by that time, or indeed at any time;
  3. if the backstop does comes into effect, then the UK would have to remain closely aligned with EU rules on customs and tariffs in order to avoid a hard border. It is this requirement that has made the backstop so controversial, and has led to much parliamentary opposition to the deal;
  4. as noted, the Irish backstop would come into effect at the end of 2020 if no trade agreement has been signed by then. Both the EU and the UK Governments have repeatedly stated that they do not want the backstop to come into force. But the legal position remains that it could come into force and remain in effect for an extended period; and
  5. as is well-known, the Attorney General, Geoffrey Cox, has advised that the backstop could remain permanent if no trade deal can be agreed. That advice remained essentially the same notwithstanding the adjustments to backstop arrangements negotiated in Brussels earlier this week.

During last night’s debates, Jacob Rees-Mogg raised a question as to “… how Article 62 of the Vienna Convention [on the Law of Treaties] could be used…”. Article 62 of the VCLT allows for unilateral termination of treaties where there has been a change of circumstances that undermines the fundamental basis of consent to the treaty concerned. This legal position was essentially accepted by the Brexit Secretary, Stephen Barclay, in response to the question.

Of course, the absence of a unilateral right to terminate the backstop has been a focus of the political opposition to the Withdrawal Agreement. If Article 62 offers such a unilateral right to walk away from the Withdrawal Agreement, then this would transform the nature of the political debate. It may even allow current opponents of the Withdrawal Agreement to vote in its favour, on the basis that the UK has the right to exit the deal without EU approval. Mr Rees-Mogg’s intervention thus implicitly calls into question the adequacy and completion of the Attorney General’s advice on the potential permanence of the backstop.

If the Article 62 point has any serious merit, then it is legitimate to wonder why it has taken so long for this issue to emerge. There may be a good political reason for that, but this is intended to be a legal commentary. So what can be said of the introduction of Article 62 VCLT in this context?

First of all, the VCLT essentially underlines the permanence of treaty obligations and the requirement for their performance but, by way of exception, Article 62 does indeed allow for termination in the event of radically changed circumstances.

Secondly, what of the legal details of Article 62 and the Vienna Convention on the Law of Treaties (VCLT)? In this respect:

  1. in strict law, the VCLT applies only to treaties between countries. It would therefore not apply to the Withdrawal Agreement which would be a treaty between the UK (a country) and the EU (an international organisation). A companion treaty dealing with treaties involving international organisations has not as yet been brought into force. However that may be, it is perhaps likely that the general principles set out in Article 62 would be applied in the event that the UK attempted unilaterally to exit the Withdrawal Agreement;
  2. Article 62 VCLT allows for a party to withdraw from a treaty if three conditions are met, namely (i) there has been a fundamental change of circumstances that was not foreseen at the time of the treaty (ii) the existence of those circumstances was an essential basis of consent to the treaty and (iii) the effect of the change of circumstances is radically to transform the extent of the obligations that remain to be performed under the treaty;
  3. it is true that the Withdrawal Agreement will have been signed on the basis of the Political Declaration and other assurances that the backstop is not intended to come into effect. But the fact remains that the potential for the backstop is enshrined in the Withdrawal Agreement itself; and
  4. it is therefore extremely hard to see how the three conditions set out in Article 62 could be satisfied simply because the backstop comes into effect and – despite their good faith best efforts – the UK and the EU are unable to negotiate a trade agreement in line with the Political Declaration. That is exactly the position for which the backstop provisions seek to legislate, and the circumstances – however unpalatable – are plainly foreseen as a part of the Withdrawal Agreement.

In summary, therefore, the implementation and operation of the backstop will not of themselves create a ground on which the UK could justify unilateral departure from the Withdrawal Agreement. To the contrary, it will simply represent the operation of the agreement in accordance with its terms.

It must therefore be assumed that arguments based on Article 62 VCLT will rapidly sink without trace. But it is difficult to predict outcomes with any confidence at present, and it remains to be seen whether this issue will assume any importance in the continuing Brexit debates.

For Brexit-related legal updates and news, please visit Fladgate’s Brexit Briefing Blog

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