As Sir Stephen Laws QC, Richard Ekins and I explained in a paper published by Policy Exchange this Friday, the good faith and best endeavours obligations in the Withdrawal Agreement and Northern Ireland Protocol (the backstop), in addition to the Joint Instrument agreed at Strasbourg, offer the UK far greater legal comfort than seems to be appreciated. This is not enough for some sceptics in the ERG who want to be reassured that, if the worst came to worst, the UK could leave the backstop unilaterally.
There has been much discussion about Article 62 the Vienna Convention on the Law of Treaties (VCLT), which deals with the right of states to terminate treaties when there is a fundamental change of circumstances. Some commentators, including the so-called ‘Star Chamber’ of MPs and Martin Howe QC, dismiss the possibility of the UK ever being able to exit the backstop by relying on this route.
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