Article 62: Brexit’s Silver bullet?

What’s going on here?

MPs have suggested that Article 62 of the Vienna Convention may allow Britain to solve the Northern Irish backstop issue (the key sticking point in the Brexit negotiations) if the UK fails to secure a Brexit deal.

What does this mean?

The European Research Group (a group in favour of leaving the EU) believe that Article 62 of the Vienna Convention may be key to breaking the Brexit deadlock. Article 62 of The Vienna Convention on the Law of Treaties allows a country to unilaterally withdraw from a treaty if there is an unforeseen “fundamental change of circumstances”.

Some MPs (such as Conservative MP Jacob Rees-Mogg) have suggested that the UK might be able to use Article 62 of the Convention to unilaterally withdraw from the Northern Irish backstop if the UK and EU struggle to negotiate a future relationship. This draws strength from the fact that Attorney General Geoffrey Cox has issued fresh legal advice suggesting that Article 62 may indeed be used by the UK, should the backstop arrangements be prolonged.

What’s the big picture effect?

If this turns out to be a real possibility, the biggest winner is Theresa May. This is because the UK’s inability to withdraw from the backstop has been a major stumbling block preventing Parliament from approving her deal. If the UK government was able to use Article 62 to withdraw from the backstop arrangements, then the PM would be more likely to get Parliament to approve her Withdrawal Agreement.

The main issue with using Article 62 in this way is that it’s not a straightforward option. From the past case law, the International Court of Justice (the U.N. court that settles disputes between nation states) makes clear that there is a very high threshold to meet before a country can invoke Article 62. In 1997 it ruled that Hungary was not able to use it to withdraw from a treaty that communist-run Hungary had signed with communist-run Czechoslovakia. There, it ruled that the fall of communism and the breakup of Czechoslovakia were not “sufficiently exceptional”. Clearly, “sufficiently exceptional” will be a high bar to pass. The Attorney General does recognise this to an extent in his advice. He states that the most likely basis for the government to invoke Article 62 would be to argue that the backstop remaining in place for a prolonged period could cause significant political instability in Northern Ireland, potentially reigniting past troubles. However, given the existing case law, this seems to be a weak basis at best.

An important point to recognise is that even if a change were to meet the incredibly high threshold of “sufficiently exceptional”, that change must also have been unforeseeable to the parties. This almost certainly means that the UK would not be able to invoke Article 62. This is because after Parliament initially rejected the Withdrawal Agreement in January, the UK and EU held further talks on how to avoid the backstop becoming permanent, showing that the parties have foreseen most possible situations.

Report written by Harry B.

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