Current Affairs Politics

Will The UK Revoke The Backstop Protocol By Abusing The Vienna Convention?

According to press reports, the dysfunctional Conservative Party government in the United Kingdom is trying to gain parliamentary support for its Draft Withdrawal Agreement with the European Union by convincing members of its own hardline anti-EU faction, the European Research Group, and its far-right allies in the Democratic Unionist Party, that the UK can renege on the proposed deal at a future date by invoking an extremely dubious reading of international law. The Telegraph newspaper in London claims that Geoffrey Cox, the Attorney General for England and Wales, has told the ERG and DUP that Britain can break the suggested treaty if it is willing to argue that the included Backstop Protocol required by Brussels and Dublin is causing a “socially destabilising effect on Northern Ireland” instead of bringing stability to the contested region. This requires a controversial and downright mendacious interpretation of the Vienna Convention on the Law of Treaties, which most legal experts have so far dismissed out of hand.

And what counts as a “socially destabilising effect” on Britain’s legacy colony in Ireland? Would it be Irish northern nationalist parties gaining a majority of votes in a local or region-wide election in the disputed territory? Or mass demonstrations against restrictions on cross-border movement by communities north and south of the partition line? Not only is the alleged UK Brexit strategy legally and ethically underhand but it may well turn out to be extremely dangerous if the sort of revanchist forces take power in London that we have seen emerging among the British political class since 2016.

27 comments on “Will The UK Revoke The Backstop Protocol By Abusing The Vienna Convention?

  1. On top of that being a very questionable legal use of the “Law of Treaties”?

    It lacks credibility. Seeing how the same backstop they want to claim is responsible for “destabilizing Northern Ireland” was intended to preserve a very well fleshed out UN recognized Treaty that cleary saw the end to The Troubles……I can only think of three reasons they even think they have a case:

    1) It’s a “Hail Mary Pass” -Or a strategy that is obviously an extreme outside chance at best, but chosen with gusto simply because they lack any other options. (The “Battle of Yavin” in “A New Hope” and “Battle of Scarif” in “Rogue One” were Hail Mary Passes!!!!)

    2) They are “working the refs”-Or playing a game where you complain to the referee that you are being treated unfairly, even knowing he will probably still rule against you, but it’s a tactic to pressure the referee to give you a better deal next time around.

    3) That a country with, no Constitutional Provision for treaties and a version of Parliamentary Sovereignty that said Parliament could usually “cut up” a treaty whenever it wanted, that the culture is ultimately one where Treaties aren’t really viewed as legally binding, and they tend not to understand very well how International Treaties usually work. This could even be that a country with an unwritten Constitution doesn’t give as much weight to “the letter of the law” so to speak.

    • I think that a Hail Mary Pass, great term, well describes the strategy. So far the ERG and DUP aren’t buying it. They want something in stone. Or being unionists, inscribed in blood.

      • Kind of says where things are heading when off the wall stuff like this is put about seriously (or as seriously as can be given those talking about it).

  2. I have to admit being puzzled as to why a customs border in Ireland is considered completely out of the question and impossible now, whereas prior to the Troubles at the end of the 1960s, such a border was maintained for decades. There was indeed sporadic terrorism from time to time, but on the whole the situation seems to have been managed. So why is it so impossible to contemplate now? It’s not as if such borders aren’t maintained between ‘friendly’ states all over the world. The EU customs union is really something of an exception.

    • Because that was then and this is now. The border-was semi-open from the 1930s to the 1960s, with an irregular customs presence. From the late 1960s until the early 2000s it was the most heavily militarised frontier in Europe, surviving even the fall of the Iron Curtain. Having lived with a non-border since 2005, no nationalists north or south will accept going back to the semi-open border of the pre-Troubles past. That was the gift of the Good Friday Agreement. An invisible border which rendered the continued British occupation of the north-east less offensive. Or explicit. And formally recognised the existence of a common polity across the island of Ireland, in terms of the majority community on the island.

      To go back to the old ways, the old days, will break that new normal.

    • Let’s start with the fact that the GFA is International Law. I can’t think of any country that would “just give up” what they were granted by a treaty, simply to please an extremist faction in one of the other nations involved.

      Far from being all about terrorism, the legal/political status of the area depends on the “soft” border. Also there was some very serious discrimination and voter suppression, that characterized the region during the pre-GFA version of partition. If you were a Catholic living in The North, would you be willing to “just trust” that your rights and freedoms would be honored, in the Britain that some of the Brexiteers seems to want?

      I can’t imagine how I’d trust a post-Brexit Britain not to fall into anything from tyranny/dictatorship, massive unrest, or severe food shortages, if I were an upper class Englishwoman. How are Catholics in the North supposed to trust that everything will be just swell?

      • All good points, but given especially your last paragraph, I’m honestly surprised that there are any catholics/nationalists left in the North by now. I wouldn’t expect anyone to just up-sticks and move overnight, but we’re talking about a half-century since the Troubles began. That’s two generations, two generations who must in most cases have set up home somewhere. Now if you think of yourself as Irish, then Ireland is all one to you. So why live in the North under threat from Unionist violence and intimidation etc. (if not now then quite probably sometime), when all the rest of the country is open to you where you can be as Irish and Catholic etc. as you could possibly desire without any hassle?

        • seamus mallon

          You really are a walloper arent you

          • Not quite sure how to take that, a Sheumais. maybe I shouldn’t ask …

            • Wow Marconatrix. Just wow. Turn it around in your head. Do you think loyalists and unionists should have fled the North by the same token given conflict? Or is it that these things are quite a bit more complex and that people from all communities for basic reasons find it difficult to move even in context of repression or whatever? Because, and this is key to both PUL and CNR, the North/NI happens to be their home and (and this is also key) there’s always hope for change for the better.

              • BTW Marconatrix, you and I are randomers on the internet. These guys aren’t… You don’t have to take anything I say seriously, but perhaps you might give the benefit of doubt to actual experts in the field.

                PSNI are ‘not overplaying Brexit border threat’ – BBC News

                Garda commissioner Drew Harris warns that Brexit could act as a ‘rallying call’ for terrorism


              • Well I’ve moved around in the UK several times since ’68, so if you’re a ‘loyalist’ (don’t ask loyal to what exactly) then why stay in NI if you could be somewhere on the ‘mainland’, since to you it should be all the same, unless you’re a raging bigot, which would not be tolerated in most places. Likewise, if your a Nationalist, everywhere on the Island of Ireland is simply Ireland, so why stay in the troubled North? You’d think the whole place would have gradually emptied out over the decades, leaving only the few hard-line nut-jobs to fight it out between themselves?

        • That’s a darkly Nihilistic logic.

          If the solution to injustice or conflict was never anything but, “we’ll move somewhere else”, what kind of a world would that create?

          • A deserted but very peaceful one?
            Hmm …
            “They make a desert and call it ‘peace'”

            • Either you are playing Devil’s Advocate, or you must be OK with living in a place like The Movie Soylent Green.

              I doubt you’d say to the folks who remained in Syria that they must be racist or fanatic.

              • The people in Syria have been pretty thoroughly discouraged from moving anywhere else though,. Despite that a lot have moved out and more would if they could and had somewhere to go. Of the ones that remain, they seem to be divided into racists, fanatics and the victims of racists and fanatics.
                In fact, there’s a strong tendency for northern Unionists to move to Great Britain, especially the ones that go there for higher education. Once they’ve seen the opportunities they can get in the main part of the UK, why bother with NI?

        • ceannaire1

          “Likewise, if your a Nationalist, everywhere on the Island of Ireland is simply Ireland, so why stay in the troubled North?”

          What a silly assertion. The answer is simply we stay in the northeast because it’s Ireland, our home. This is where we live.

          If we follow your logic, nationalists should abandon the north to unionists. Mad, Ted.

        • And Finchley must be calling you, too.

  3. A lot of guff has been talked in the last 3 years about the threat of Brexit to peace, to an open border, to the G.F.A.. The border was a handy lever which the E.U., with the connivance of Leo Varadkar and co, seized on to preserve what it is really interested in, i.e.the preservation of its single market. Mr Varadkar has said on a number of occasions that, even in the event of a no-deal Brexit, his government will not impose border checks, or a “hard border” and that in such a scenario bi-lateral agreements will have to be reached between the R.O.I. and the U.K. respecting regulations and customs. In other words, the backstop was needed to stop something happening which was never going to happen in the first place, because it would be politically impossible for any Irish government to implement. Perhaps officials will be brought over from continental Europe to impose this “hard border.”
    At the start of the process Mr Varadkar seems to have made the decision not to act as an Irish premier, putting put the interests of Ireland as a whole first, the interests of inter-communal relations in Northern Ireland first, north-south relations first, Irish-British relations first. He instead decided to act as an E.U. Pro-Consul putting the interests of the E.U. first. In consequence all the above relationships have been damaged. As to the G.F.A. what a lot of humbug and hypocrisy we have had to listen to. The G.F.A. has already been gutted at St. Andrews by the D.U.P. and Sinn Fein, with the agreement of both the Irish and British governments. The backstop drives an express train through the G.F.A. as, in the context of N.I.’s status as part of the U.K , the latter agreement states that “it would be wrong to make any change in the status of N.I. save with the consent of a majority of its people.” The backstop clearly changes the status of N.I., turning it into a semi-detached part of the U.K, a sort of permanent E.U. protectorate. Nationalists, of course, love the backstop as it suits their political agenda, while conveniently ignoring its flagrant breach of the G.F.A., Unionists hate it for the same reason. It has thus driven another wedge between our communities, something the G.F.A. set out to avoid.

    • The problem with your argument is that there is a convergence of Irish and European interests in Brexit that the Taoiseach is representing. Ireland and the European Union are acting with common purpose, even if from slightly different motivations. And with obvious tensions where that common purpose separates. This is what the UK fails to understand and so assumes that the Irish can only be acting as EU “serfs”. Rather than serfs of the UK, I may add, which is what seems to offend most British Brexiteers more than anything else. As one UK minister complained, the Irish need to be reminded of their place in the pecking order of international affairs. And well behind Empire 1.0 or 2.0.

      • The Vienna Convention sets out in clear terms that a treaty cannot be abandoned if there is no provision within it to so. Article 56 of the Vienna Convention states that “a treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal.” There are only two ways out of this. One, if the treaty “intended” to have an exit mechanism. Or, two, if an exit mechanism was “implied” within the treaty. Neither exist in the U.K.’s exit treaty from the EU, The International Court of Justice in the Hague, which is a UN body and not a EU one has some English media appear to confuse, has a stick body of case law to work from, examples, the breakup of the USSR, the ICJ found that this fact was not sufficient to cause a treaty to be broken. So the present “talks” with the DUP is a fig leaf to save their embarrassment as regards the chaos caused by Brexit. The fact that the Republic was not “Thrown” under the bus, a bus that must have been arranged by Chris Grayling.

        • Ginger, let’s take “it would be wrong to make any change in the status of N.I. save with the consent of a majority of its people.”

          This is precisely what Brexit does (and the result of the referendum in the North clearly indicated that any such change was not agreed by a majority there). Do I hear you raising any complaint about that? And yet a backstop which is agreed between the UK (and called for by the UK let us remember, not Varadkar etc) somehow is an egregious insult? What a crock.

          • I’m not quite sure what your point is, the Brexit vote means that N.I. should leave the E.U. along with the rest of the U.K., so it’s status would be the same as the rest of the U.K., so no violation of the G.F.A. there. The referendum was an, N.I. did not vote as a separate entity. As I pointed out before on this site 34% of the N.I. electorate voted to remain in the E.U., 27% voted to leave and the largest single chunk of our electorate almost 38% (approx 470,000) didn’t vote. So nowhere close to a majority of N.I. voters voted to remain. It would be interesting to see the result of a referendum in N.I. solely on the backstop. On your last point I completely agree with you, I remain constantly amazed at the sheer ineptitude of Mrs May and her negotiators in agreeing to the backstop in the first place, even the most cursory knowledge of Ireland and its politics should have told them that no Irish government could ever implement checks , or a “hard border,” so the backstop was never necessary in that regard.
            i suppose essentially the elected Irish government had to do what it was told by un-elected E.U. officials. Having left one empire in 1922, it discovered the downside of being part of another imperial construct.

            • But, taking those stats, nowhere close to a majority of northern voters voted to leave either.

              Furthermore, we don’t decide elections on who didn’t vote. They are decided by who did vote. In this case, a Remain majority. Which the polls claim has only grown in the intervening time.

              Finally, the principle of the northern electorate voting for its constitutional position within/without the UK was yielded by the UK in several agreements. The UK cannot arbitrarily abrogate that principle of regional self-determination within the understanding agreed by Dublin and London. Which is the intention through Brexit.

  4. ASF may I recommend this:

    “… Geoffrey Cox’s “advice” is an unsubtle hint to the DUP, should the backstop become effective, to restart the Loyalist violence with which they were for decades so closely associated, in order to provide the pretext for cancelling the backstop. In reading this, it is essential to remember that this legal advice was written, as a matter of definite fact, directly for the DUP audience to try and influence the DUP in the next “meaningful” vote. To signal to an organisation as steeped in blood as the DUP that the way out of the “Backstop” arrangement which they so hate, would be to demonstrate it is having a “socially destabilising effect in Northern Ireland”, clearly gives a very direct incentive to Loyalists to restart violence.”

    • an interesting article from Craig Murray former UK Ambassador and very perceptive

  5. Legal consensus (an unusual thing in itself) among international lawyers it that this is the usual Brexit-grade fairy-dust coated bull.

    The UK government can’t do this, unless they want to become international pariahs.

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