Brexit, the Northern Irish Backstop, and Fundamental Change of Circumstances

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If, dear readers, you have any doubts that the parliamentary politics of Brexit have emerged from the fever dream of some demented game theorist, I would just ask you to take a very quick look at the events of last week. In their second meaningful vote on Theresa May’s Brexit deal, British MPs voted it down by 391 votes to 242, a majority of 149. This was an improvement of sorts on the first meaningful vote, which May lost by a majority of 230. MPs also voted to reject a no-deal Brexit and to instruct the government to ask the other EU states for an extension to the Article 50 withdrawal period. At the same time, by a majority of only 2 votes they defeated the Benn amendment, which would have allowed Parliament to express its preferences as to the outcome of the Brexit process in a series of indicative votes, and thus overcome the current impasse.

This week Theresa May seems poised to take her deal to the Commons for a third meaningful vote, most likely on Tuesday or Wednesday, before the EU Council meets on Thursday. She has worked furiously over the past few days to lobby the Northern Irish DUP and the hard-core Brexiteers within her party to vote for her deal, or risk either a very long extension to Article 50 or the UK remaining in the EU after all. This fear is of course the main incentive to bring the various pro-Brexit factions within Parliament and the Tory party to support May’s deal, and it is growing in power as the Article 50 deadline approaches. But because some of these factions have effectively painted themselves into a corner over the supposed downsides of May’s deal, they need something more than fear itself to justify a change of mind to their electorate. They need, well, a fundamental change of circumstances, like re-revised legal advice from the UK Attorney-General, Geoffrey Cox QC. And they may well eventually find that in the customary rule on fundamental change of circumstances, rebus sic stantibus, codified in Article 62 of the Vienna Convention on the Law of Treaties.

Now, if even after two full years into this whole MCFoHP someone told me that Brexit could ultimately depend on Art. 62 VCLT, I would have been perplexed, to put it politely. This is, for all its Roman pedigree, a rule that has never successfully been applied in real life, I would have said. Its requirements are almost impossibly strict. How could something as important as Brexit depend on an international law doctrine of such relative obscurity that even international law textbooks standing at more than a thousand pages devote it less than two? To paraphrase the late Ian Brownlie’s pithy assessment of jus cogens, the rule on fundamental change of circumstance is a car that has never left the garage.

But – but – over the past week the garage doors have creaked open, with a whiff of something tart and pungent. The stillness of things has become disturbed.

Recall that the Attorney-General’s  initial advice made no mention of Art. 62 VCLT. His revised advice, which was as I reported debated in Parliament last week, had one oblique reference to it in its final paragraph (para. 19): ‘the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation [of a prolonged application of the backstop] does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same [emphasis mine], no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.’

During the debate in Parliament the possibility of termination on grounds of fundamental change of circumstances was then raised in several exchanges (the full Hansard report is here). The Attorney first raised it – unprompted – when answering a question by Sir William Cash:

In the last line of my advice, I say there can be no lawful exit unless there is a fundamental change of circumstance. It is extremely important to remember that there is always a right to terminate a treaty unilaterally if circumstances fundamentally change. There is no question but that we have a right to exit if those circumstances apply.

He then repeatedly referred to the rule when answering the questions of Owen Paterson, Kate Hoey, Desmond Swayne, Helen Goodman, Chuka Umunna, and John Baron. But perhaps the most illuminating was the Attorney’s exchange with the arch-Brexiteer Jacob Rees-Mogg (‘the honourable member for the early 20th century‘), which I will quote in full:

JRM: My right hon. and learned Friend has pointed out that much of what is being said is political as well as legal. Will he therefore set out for the House what penalties might fall upon this country if a future Parliament, which obviously cannot be bound, were to decide to resile from the commitments under the backstop?

THE ATTORNEY: Well, my hon. Friend will know that as an Attorney General I simply could not give countenance to the idea that this country would break its international legal obligations. As I have pointed out to the House, there is a right for the United Kingdom to terminate this agreement. If fundamental circumstances change, in the view of the United Kingdom, it would attempt to resolve the matter within the joint committee and it would attempt to resolve it politically, but if, ultimately, with the sovereign right of this House and of the British Government at the time, the United Kingdom took the view that those fundamental circumstances had indeed changed, it would have an undoubted legal right to withdrawal from any treaty.

Let us be clear about these kinds of absolute interpretations of black-letter text. A sovereign state has the right to withdraw if a treaty is no longer compatible with its fundamental interests or, to put it a different way, if fundamental circumstances have changed. I would say that apart from that, of course this country could resile from its commitments, but it would be unwise and it would not be in the tradition of this country to do so. In those circumstances, it is perfectly true that the only remedies the Union would have would be to take countermeasures, and no doubt it would pollute the atmosphere for fruitful relationships between us, which is precisely why this country will never do it, and neither would the European Union.

Note how Rees-Mogg point blank asked the Attorney what the consequences would be for the UK if it withdrew from the backstop unlawfully, and how the Attorney in answering that question first pivoted to the fundamental change of circumstances rule, and then said (correctly) that the UK could decide to breach its international legal obligations, but would suffer serious consequences if it did so and should not do so. Note also how the Attorney recast the FCC rule as being about ‘fundamental interests’ of the state, giving the impression of a much looser standard than the one that actually applies, and how he also gave the impression that the use of the FCC rule is a question of the subjective appreciation of the UK government, when the standard is in fact objective.
 
Then came the meaningful vote, on which the government was defeated, and May’s renewed effort to change the circumstances for the vote that will happen this week. And then, on Friday, the Daily Telegraph published an exclusive story to the effect that Theresa May and Geoffrey Cox are attempting to woo the DUP with new legal advice on withdrawing from the backstop by invoking the FCC rule. The story included a scanned page of this new draft advice, which contained the following paragraphs:
Alternatively, if agreement were not forthcoming, it could be respectably argued, if the facts clearly warranted it, that there had been an unforeseen and fundamental change of circumstances affecting the essential basis of the treaty on which the United Kingdom’s consent had been given. Those facts might, for example, be that the prolonged operation of the Backstop was having a socially destabilising effect in Northern Ireland, contrary to its objectives.
 
Article 62 of the Vienna Convention on the Law of Treaties, which is reflective of the customary international law rule rebus sic stantibus, permits the termination of a treaty in such circumstances. It is in my view clear and undoubted in those exceptional circumstances that international law provided the United Kingdom with the right to terminate the Withdrawal Agreement.
Also on Friday, the leading barrister Lord Pannick QC, who actually represented Gina Miller in her successful case before the UK Supreme Court, which decided that Article 50 could not be triggered without Parliamentary approval, wrote a letter to The Times effectively endorsing the FCC argument.
 
With all due respect to both the Attorney and Lord Pannick, relying prospectively on the fundamental change of circumstances rule in the context of the Northern Irish backstop is an obvious, exam-failing non-starter. Article 62 VCLT requires (1) a change in circumstances; (2) that this change was unforeseen; (3) that the existence of these circumstances formed an essential basis of the consent of the parties; and (4) that the effect the change is radically to transform the extent of obligations still to be performed under the treaty. In invoking FCC with regard to the Withdrawal Agreement the UK would have problems with every step, but particularly with regard to step (2). Simply by mooting the possibility of invoking FCC, the UK government has clearly foreseen how the operation of the backstop could change some relevant circumstances in Northern Ireland, and is thereby precluded from relying on the Article 62 rule.
 
In other words, a prospective consideration of FCC is entirely self-defeating, since the point of the rule is to liberate states retrospectively from obligations that it would no longer be fair or just to expect them to fulfill, due to circumstances arising that as a matter of fact they did not foresee. And this makes perfect sense. There is nothing abnormal in having states freely commit to treaties that they cannot terminate unilaterally – it is their choice whether to become parties or not. The purpose of the FCC rule is to privilege the stability of treaty relations, and to give states a safety exit valve in the most extreme of unforeseen supervining circumstances. It is not to create a right to unilateral withdrawal which one party (here the UK) tried, but failed, to have included in the treaty. 
 
Note also how the excerpt from the Attorney’s new advice – if accurate – is a weasely legalese concoction of strong and weak, hot and cold language that is plainly designed to give the wrong impression about the practical feasibility of applying the FCC rule to the WA. He thus says that ‘it could be respectably argued [NOT – we would actually win if this argument was raised before a court], if the facts clearly warranted it‘ that FCC could be used to terminate the WA, and that it would in those circumstances be ‘clear and undoubted’ that the UK would have the right to do so. Again, it is ‘clear and undoubted’ that the FCC rule is one of customary international law, and that if its requirements are met a state is entitled to resort to it. This is just restating the Vienna Convention. But the qualifier ‘if the facts clearly warranted it’ simply gives away the game. The facts will almost certainly NOT warrant the applicability of the FCC rule, because the UK knows precisely what it is getting into if it consents to the WA and its backstop. And some kind of nebulous ‘socially destabilising’ effect of the backstop in Northern Ireland (the purpose of which, remember, is simply to maintain the status quo in Northern Ireland) will DEFINITELY not qualify. If, say, 5 years from now the backstop was still in effect, and many Euroskeptically-inclined people were displeased and went to the streets to protest, this would obviously greatly complicate matters in the UK politically, but would in no way be unforeseen or radically transform the UK’s obligations under the WA. We’re not talking here about an asteroid hitting Belfast, but about something that everybody knows could happen.
 
To conclude, the fundamental change of circumstances rule is virtually certain not to have any practical applicability to the Northern Irish backstop. It would in fact by an order of magnitude be less likely for circumstances unforeseen by the UK to arise and radically transform the UK’s obligations under the WA than it would be for the UK to prove the EU’s ‘bad faith’ for the purpose of using the suspension provisions of the WA itself. The latter is never going to happen; the former doubly so. If the UK actually tried to use FCC, the EU would treat that as a violation of the WA pure and simple. The breach of trust would likely be irreparable. The reputational and other costs that the UK would incur worldwide would be horrid – everybody would know that the UK was using this rule pretextually, to withdraw from a commitment that it had freely and knowingly entered into. And if the matter came before a court or an arbitral tribunal, the UK would lose, and lose with a degree of totality otherwise rarely seen in international litigation (but see Chexit).
 
So let’s put that FCC car back into that obscure garage, where it belongs. If, however, the DUP and Brexiteers actually do rely on it to justify voting for the WA this week – which, just to be clear, may well happen and would politically not be the worst of all possible outcomes – we will have found a use for Article 62 VCLT after all: as the thinnest of all fig leaves imaginable. Meanwhile, Labour seems prepared to support May’s deal if she was willing to put it to a referendum, on which the other option would be to remain in the EU.
 

Readers may also be interested in the second opinion by David Anderson QC, Jason Coppel QC and Sean Aughey, now also joined Sam Wordsworth QC, deconstructing the FCC argument piece by piece. The Telegraph piece excerpting the Attorney’s new advice also links to the opinion of the Tory Brexiteer ‘Star Chamber’ legal team, which also rejects reliance on FCC.

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  • EJIL Analysis
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  • Article 62 VCLT
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  • Northern Ireland
  • rebus sic stantibus
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    Alessandra Asteriti says

    March 18, 2019

    The ECJ in Racke accepted reliance on the doctrine as reason for terminating the Cooperation Agreement with Yugoslavia (although the Court restricted itself in determining whether the Council had made a 'manifest error of assessment' in applying Article 62.

    53 For it to be possible to contemplate the termination or suspension of an agreement by reason of a fundamental change of circumstances, customary international law, as codified in Article 62(1) of the Vienna Convention, lays down two conditions. First, the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty; secondly, that change must have had the effect of radically transforming the extent of the obligations still to be performed under the treaty.

    54 Concerning the first condition, the preamble to the Cooperation Agreement states that the contracting parties are resolved `to promote the development and diversification of economic, financial and trade cooperation in order to foster a better balance and an improvement in the structure of their trade and expand its volume and to improve the welfare of their populations' and that they are conscious `of the need to take into account the significance of the new situation created by the enlargement of the Community for the organisation of more harmonious economic and trade relations between the Community and the Socialist Federal Republic of Yugoslavia'. Pursuant to those considerations, Article 1 of the Agreement provides that its object `is to promote overall cooperation between the contracting parties with a view to contributing to the economic and social development of the Socialist Federal Republic of Yugoslavia and helping to strengthen relations between the parties'.

    55 In view of such a wide-ranging objective, the maintenance of a situation of peace in Yugoslavia, indispensable for neighbourly relations, and the existence of institutions capable of ensuring implementation of the cooperation envisaged by the Agreement throughout the territory of Yugoslavia constituted an essential condition for initiating and pursuing that cooperation.

    56 Regarding the second condition, it does not appear that, by holding in the second recital in the preamble to the disputed regulation that `the pursuit of hostilities and their consequences on economic and trade relations, both between the Republics of Yugoslavia and with the Community, constitute a radical change in the conditions under which the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia and its Protocols ... were concluded' and that `they call into question the application of such Agreements and Protocols', the Council made a manifest error of assessment.

    57 Whilst it is true, as Racke argues, that a certain volume of trade had to continue with Yugoslavia and that the Community could have continued to grant tariff concessions, the fact remains, as the Advocate General has pointed out in paragraph 93 of his Opinion, that application of the customary international law rules in question does not require an impossibility to perform obligations, and that there was no point in continuing to grant preferences, with a view to stimulating trade, in circumstances where Yugoslavia was breaking up.

    60 Examination of the first question has thus disclosed no factor of such a kind as to affect the validity of the suspending regulation.

    Marko Milanovic says

    March 18, 2019

    Thanks Alessandra - I'm aware of that judgment. But the ECJ there was only referring to Art 62 in employing an EXTREMELY deferential standard of review, as is apparent from para. 52:

    However, because of the complexity of the rules in question and the imprecision of some of the concepts to which they refer, judicial review must necessarily, and in particular in the context of a preliminary reference for an assessment of validity, be limited to the question whether, by adopting the suspending regulation, the Council made manifest errors of assessment concerning the conditions for applying those rules.

    In other words, the Court did NOT purport to establish whether, in its own appreciation, the requirements of Art 62 were met, BUT ONLY whether the EU Council made 'manifest errors of assessment' in deciding that they were.

    Elvira Dominguez-Redondo says

    March 18, 2019

    You rightly criticized the ICJ approach to customary law in your 'Chexit' blog. How can article 62 of a treaty not in force be applicable as'customary law' based on non-existent state practice? It would make more sense to see its application as a general principle of law.

    Marko Milanovic says

    March 18, 2019

    Hi Elvira,

    That's a perfectly valid point, and you may well be right. As a matter of principle, however, the fact that the FCC rule has generally not been applied to terminate treaties doesn't ipso facto mean that the rule doesn't exist. There can be opinio juris and state practice even if states say that rule X exists, but that its requirements are not met on the facts of the case before us.

    Alessandra Asteriti says

    March 18, 2019

    Hello Marko
    yes indeed but I thought it was interesting in the scant history of Article 62 invocations.
    Funnily enough, I reckon Brexit could be the fundamental change of circumstances that could be invoked to terminate the Belfast Agreement. Thankfully the UK is prevented from doing that by actually being the cause of Brexit, and Ireland has no reason to.

    Elvira Dominguez-Redondo says

    March 18, 2019

    Thanks Marco. To make it clear: I am not saying the rule does not exist. But it is difficult to justify the application of article 62 as codifying preexisting customary law, independently of its content. In my view, general principles of law provide better legal grounds

    Alessandra Asteriti says

    March 18, 2019

    Also it occurs to me that if this is the acceptable standard of review for invoking Article 62, UK has nothing to fear. Or not?

    Aoife M O'Donoghue says

    March 18, 2019

    Following the Miller judgment in the UK Supreme Court it is very unlikely a court would find that Brexit is sufficient to terminate the Good Friday/Belfast Agreement. Brexit has not altered the principle of consent as it applies in Northern Ireland and there are alternatives for maintaining the equivalence of rights across the island. None of the statutory bodies that were created have been altered. It may result in the principle of consent being activated in relation to a border pole but that is provided for in the Agreement and the Annexes. Brexit also does not cause a fundamental change to the St Andrews Agreement or any of the other alterations that have occurred since. Does it significantly challenge the Agreement yes and requires both Ireland and the UK to ensure they fulfil their obligations but it does not go any where near Article 62 on the facts.

    Alessandra Asteriti says

    March 18, 2019

    Hello Aoife
    yes, but there is at least one 'legal' outcome (leaving without a WA), legal insofar as it is provided for in the Treaties, which would result in an impossibility of performance. Actually I agree the bar for A62 is quite high, and my comment was more in jest (I bet Cox considered it!). It seems to me the issue here is rather of normative conflict, imposing an obligation on the parties to pursue the interpretation of the two treaties that avoids a conflict. Although this means in practical terms that not all of A50 is applicable to the UK as a leaving member, because leaving with no WA, which is possible under A50, would result in a breach of the Belfast Agreement (border controls etc). Although I went through the GFA to look for way out of this, I did not find it.

    Aoife M O'Donoghue says

    March 18, 2019

    Hi Alexandra, border controls in and of themselves are not in breach of the Good Friday/Belfast Agreement. It rather sets the basis for the return of some low level conflict, much economic & social harm & makes it very difficult to ensure equivalence of rights. Leaving with no deal in particular will require NI to, at the very least, maintain alignment of rights with Ireland to the extent of fulfilling the equivalence requirements. Difficult yes, but that simply requires London (and Stormont if in operation) to ensure divergence of rights does not occur. It is in practice rather than in form that there may be breaches but certainly no impossibility. I would also respectfully suggest that jesting about an Agreement which has brought much needed peace is perhaps not a great choice.

    Aoife M O'Donoghue says

    March 18, 2019

    My apologies *Alessandra

    Alessandra Asteriti says

    March 18, 2019

    Of course I was referring to UK's pitiful attitude to it. I would have thought the inevitable consequence would be divergence and so a breach. To be honest I have been tearing my hair out at the appalling attitude of UK's government since beginning with respect to Ireland and NI. I am not sure it is my attitude that is the problem. Be that as it may, I will not comment anymore.

    Mary Footer says

    March 18, 2019

    For a view of counsel in litigating an FCC non-starter, on behalf of Hungary in the Danube Dam case, and considering its application to the WA, etc., esee Philippe Sands at:
    https://www.theguardian.com/commentisfree/2019/mar/18/geoffrey-cox-northern-ireland-backstop

    BD says

    March 18, 2019

    Whenever an Attorney General seeks to qualify a legal argument by describing it as "respectable" alarm bells should ring. Recall that Goldsmith used such a construction when he revised his advice in relation to the Iraq war. To be clear, an AG advising on the basis of a respectable argument is simply saying that s/he would not be "professionally embarrassed" as counsel were s/he to bring such an argument before a court. It is the minimum permissible standard of argument that a government lawyer can advance.

    Jakob Cornides says

    March 19, 2019

    Rebus sic stantibus is generally accepted as a doctrine, but the question is: (1) what has changed?, and (2) was thta change unforeseeable? For neither of these questions does there seem to be a convincing answer in this case. Anyway, the debate is rather theoretical, because it even seems difficult to imagine the circumstances in which the UK would WANT to leave, legitimately or not, the common market (and, by consequence, erect a hard border between Northern Ireland and the Irish Republic) whilst losing access to the EU common market.

    My prediction: 10 days befor the presumed Brexit day, and with looming doubts regarding the admissibility of any further vote on the Withdrawal Agreement, the only remaing way of avoiding a "hard" Brexit will be an extension of Article 50. Given the unwillingness of the EU side to accept any short term extension (unless the UK gives any convincing reason for it, which it does not seem able to), there is only one option left: the unilateral withdrawal of the Article 50 notification, which was opened by the CJEU's (rather surprising) decision in Wightman and Others. I don't think this sudden exit from Brexit would have many sympathisers on either side of the Manche, but it seems to be the only remaining way out of the impasse.

    By the way, I find it quite astonishing that (unless I missed out on something) there was such a resounding silence on this blog, as well as in EJIL, on that decision. It would deserve a wider debate.