UK: The Backstop And Article 62 Of The Vienna Convention On The Law Of Treaties

Last Updated: 4 April 2019
Article by Dorothy Livingston and Paul Butcher

International law and Geoffrey Cox QC MP, the UK Government’s Attorney General, burst onto centre stage this week as both became central to the UK Government’s ongoing attempts to get its Brexit deal through the House of Commons.

On Tuesday (12 March), the Attorney General’s legal opinion concluded:

  • that the legal risk of the UK remaining permanently trapped in the backstopremains unchanged" to the extent that this occurred “simply because of intractable differences” between the EU and UK on the efficacy of any proposed alternatives to the backstop;

although:

  • he did consider that the “binding provisions” of both the Joint Statement by the UK and EU and the content of the UK’s Unilateral Declarationreduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the [backstop’s] provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU“.

That the Attorney General did not feel able to go further, in regard to the first point above, in his advice was seen by many as a key contributor to the overwhelming rejection of the deal in the House of Commons the same day.

Since that defeat, it has been reported that the Attorney General is in discussions with the Democratic Unionist party and pro-Brexit Conservatives about whether the UK could use Article 62 of the Vienna Convention on the Law of Treaties unilaterally to pull out of the backstop at some future point and whether he may amend his advice to reflect this.

In fact, his advice on Tuesday already alluded to the point in the key paragraph in which he stated that the legal risk remains unchanged in relation to “intractable differences” as it states that in such circumstances “at least while the fundamental circumstances remained the same” there would be “no internationally lawful means of exiting the Protocol's arrangements, save by agreement“. Fundamental change of circumstances is the subject of Article 62.

In his answers to questions raised after his Statement to the House of Commons about his legal opinion the Attorney General referenced Article 62 and stated that it was “extremely important to remember that there is always a right to terminate a treaty unilaterally if circumstances fundamentally change ... no question but that we have a right to exit if those circumstances apply.”

So how likely are those circumstances to apply?

In addition to the requirement for circumstances to “fundamentally change”, Article 62 has a number of other hurdles before it could be used unilaterally to withdraw from (or suspend the operation of) a treaty. The other key hurdles relevant to the backstop are that the:

  • fundamental change must be one that “was not foreseen by the parties” at the time the treaty was entered into;
  • circumstances which were subject to the fundamental change must have “constituted an essential basis of the consent of the parties to be bound by the treaty” in the first place; and
  • effect of the fundamental change must have been “radically to transform the extent of obligations still to be performed under the treaty“.

The first hurdle above on foreseeability puts those trying to think of circumstances where Article 62 might apply to the backstop into something of a catch-22. Indeed, the fact the UK and EU have been specifically talking about the circumstances in which the backstop may be terminated, but are not reaching any agreement to include explicit termination provision, must make it harder to sustain an Article 62 argument in the future. It is an open question as to whether recent efforts by the UK Government, by failing to achieve decisive changes to the text, might have made the UK’s future position weaker as regards Article 62 (even if the UK’s position may have been strengthened in other respects).

The Protocol on Northern Ireland states that the objective of the Withdrawal Agreement is “not to establish a permanent relationship between the Union and the UK“, on which basis one might argue that circumstances leading to a permanent backstop would be fundamentally different from those anticipated by the parties. However, there may be a difference between failing to reach an agreed negotiating objective (the risk of which might be said to have been implicit), and a fundamental change of circumstances arising from matters which could not possibly have been foreseen.

In any event, taken together, the hurdles are formidable. The main case law on Article 62 is from the 1997 International Court of Justice (ICJ) case between Hungary and Slovakia relating to a dispute over a communist-era project to build a hydroelectric power system on the Danube River (the Gabčíkovo-Nagymaros Project). Amongst the circumstances that Hungary identified as having fundamentally changed was the “socialist integration” for which the Treaty had originally been a “vehicle” and which had been overturned by the fall of the Soviet Union and the emergence of market economies in both states (not to mention the split of one of the signatories, Czechoslovakia, into the Czech Republic and Slovakia). In its judgment the ICJ did not consider that any of Hungary’s arguments, individually or cumulatively, were sufficient as grounds under Article 62 to terminate the treaty. The ICJ was clear that “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases” and also use the words “completely unforeseen” (our underlining).

In conclusion, it is difficult to foresee how Article 62 could be used by the UK in the future to walk away from the backstop. Although, as we note above, for the UK to succeed in any such claim it is likely vital that it cannot be foreseen...

For another possible approach to challenging the backstop see our View from Brussels note: Using EU law to improve the Brexit deal along the lines requested by the UK Parliament.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions