Michael Dougan is Professor of European Law in University of Liverpool Law School

Summary: The legal form of the “Instrument relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing the Political Declaration” is of little importance. The real question is whether the new measures make any meaningful changes to the withdrawal package which was politically endorsed in November 2018 and now awaits approval in the Commons.

The Instrument largely restates existing provisions of the Withdrawal Agreement without making any appreciable additions or changes. In particular: the “backstop” is still capable of being activated and of remaining operational on a potentially indefinite basis, unless and until the EU and UK agree to its amendment, replacement or removal. There is still no legally binding or enforceable time limit on the “backstop”. There is still no mechanism by which the UK is entitled unilaterally to terminate the “backstop”. The idea mooted in the Instrument, that the UK could suspend operation of the “backstop” in retaliation for the EU being found in breach of its duty to negotiate in good faith / use best endeavours, is not new. In the real world, such a prospect should be considered almost entirely theoretical, if not altogether fanciful.

The Joint Statement seeks to flesh out the Political Declaration, which is itself neither legally binding nor legally enforceable. The new provisions are almost entirely about the more detailed process for launching and conducting the future EU-UK negotiations. They offer no meaningful guarantees about the timescales or indeed outcomes of those negotiations.

As for the Prime Minster’s suggestion of a Unilateral Declaration reserving the UK’s ability to disapply the “backstop” in certain circumstances, apparently regardless of its obligations under the Withdrawal Agreement: it seems remarkable for the Government openly to threaten to breach an international treaty even before it has been approved and ratified. In reality, one might again argue that such a threat rings rather hollow, particularly given the potential adverse implications for Northern Ireland. But it still sits ill with the aspirations and reputation of “Global Britain” for the Government to adopt such a cavalier attitude towards respect for and compliance with international law.

Introduction

The Prime Minister’s statement in Strasbourg on 11 March 2019 focuses largely on relatively superficial issues about the legal form of the “Instrument relating to the Withdrawal Agreement” and / or the “Joint Statement supplementing the Political Declaration”; rather than on the more important question of their legal substance, i.e. their actual impact upon the terms of the existing withdrawal package and their capacity for effective legal enforcement by the parties.

In reality, the legal form of these documents is not especially significant. They can be described in various ways as “having legal force” or having “binding character” etc. But that is of little consequence, if the substantive content of the documents adds / changes nothing to / of what exists already in the withdrawal package; of if they contain promises / obligations which are incapable of effective legal enforcement between the EU and the UK.

The real question is therefore: do the Instrument and / or Joint Statement make any meaningful changes to the withdrawal package which was politically endorsed in November 2018 and now awaits approval from the House of Commons?

The Withdrawal Agreement: Potential Impact of the Instrument

Much of the text of the Instrument simply recalls / reiterates the existing provisions of the Withdrawal Agreement (as supplemented by subsequent documents such as the UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019) and the Exchange of Letters between the UK Prime Minister and the Presidents of the European Council and the European Commission (14 January 2019)). Only the following points are worth further comment.

In paragraphs A.5-A.11, the Parties set out more details about how to pursue their common aspiration to replace the existing “backstop” with alternative arrangements as soon as possible, e.g. as regards the establishment of indicative timescales, the exploration of technological solutions, periodic review of progress etc. However, those more detailed provisions in no way alter the underlying obligations contained in the withdrawal package in general and the “backstop” provisions in particular. Moreover, due to their essentially aspirational nature, those more detailed provisions are incapable of effective legal enforcement so as to alter the substantive terms of the existing “backstop”: a mere promise to try to negotiate so as successfully to deliver a vague, uncertain and contingent future outcome is not capable of being enforced so as to compel either party actually to deliver that vague, uncertain and contingent outcome in the future.

In short: under the Withdrawal Agreement, even taking into account the contents of the Instrument, the backstop is still capable of being activated and of remaining operational on a potentially indefinite basis, subject to mutual agreement between the parties for its amendment, replacement or removal. There is no legally binding or enforceable time limit. There is no mechanism by which the UK is entitled unilaterally to terminate the backstop.

The Instrument effectively acknowledges that underlying reality, in its discussion of compliance with / enforcement of the parties’ commitments to seek to replace the existing “backstop” with alternative arrangements.

In paragraph A.4, the Parties give an illustrative example of behaviour that should be considered a breach of the obligation to act in good faith / use best endeavours: a systematic refusal to take into consideration adverse proposals or interests. That illustrative example is rather far-fetched: international actors generally do not behave overtly in such extreme ways. In the real world, it would be very difficult to prove a breach of the obligation to act in good faith / use best endeavours on any such basis: “taking X into consideration” is a relatively low threshold to satisfy, especially since it does not require the relevant party to alter its subsequent views, preferences, decisions or behaviours in any appreciable manner. In any case, paragraph A.4 remains merely an illustrative example and does not in any way change the substance of the relevant provisions of the withdrawal package.

In paragraph A.12, the Parties give another illustrative example of behaviour that should be considered a breach of the obligation to act in good faith / use best endeavours: to act with the objective of applying the “backstop” indefinitely. Again, in the real world, it would surely be very difficult to prove a breach of the obligation to act in good faith / use best endeavours on any such basis: it would be relatively easy and convincing for one party to argue that the “backstop” must remain in place for the foreseeable future, not because that is the party’s “objective” per se, but rather because that is the party’s reasonable assessment of the viability of proposals for alternative arrangements that could credibly replace the “backstop”. In any case, paragraph A.12 also remains merely an illustrative example and does not in any way effect the substance of the relevant provisions of the withdrawal package.

Under paragraph A.14, the Parties recall that – in the event that a dispute arises over compliance with the duty to act in good faith / use best endeavours and that such a dispute eventually leads to an arbitration panel finding of persistent default – the withdrawal agreement ultimately allows for the aggrieved party to adopt temporary remedies, which may remain in place until compliance with the duty to act in good faith / use best endeavours is restored. Such temporary remedies could include suspension of obligations arising under the “backstop”.

On one level, paragraph A.14 is (once again) merely a restatement of what was already obvious from the terms of the existing withdrawal package. On another level, however, paragraph A.14 paints a scenario that can only be described as either deeply unconvincing or deeply worrying. If the UK were to suspend the “backstop” in such circumstances, i.e. without any adequate alternative arrangements already in place, it could lead directly to the erection of a customs and regulatory frontier between Northern Ireland and the Republic of Ireland. Besides its obvious economic, social and political difficulties, such a course of action would also be in direct contradiction of the UK’s longstanding promise (e.g. as contained in the Joint Report from December 2017) to prevent the emergence of a “hard border” under any circumstances. In any event, a UK proposal to suspend operation of the “backstop” in such circumstances would have to be proportionate as well as temporary: given the nebulous character of the duty to act in good faith / use best endeavours, and the relative ease with which a party should be able to demonstrate that it had returned to full compliance with that duty, paragraph A.14 really does seem to contain a rather empty threat.

The Political Declaration: Potential Impact of the Joint Statement

Much of the text of the Joint Statement simply recalls / reiterates the existing provisions of the Political Declaration (as supplemented by subsequent documents such as the UK Government Commitments to Northern Ireland and its Integral Place in the United Kingdom (9 January 2019) and the Exchange of Letters between the UK Prime Minister and the Presidents of the European Council and the European Commission (14 January 2019)).

By and large, the text merely describes in more detail how the Parties plan to pursue their common aspiration for negotiating a new future relationship, e.g. as regards the establishment of thematic priorities and indicative timescales, the pursuit of parallel negotiating strands, the relationship with more specific negotiations aimed at replacing the existing “backstop” etc.

Of course, neither the Political Declaration nor the Joint Statement are legally enforceable texts. But in any case, the additional provisions contained in the Joint Statement are almost entirely about the process of conducting future negotiations. They do not and could not offer any guarantees about the outcomes of those negotiations: whether any agreement on the future relationship will be reached at all, whether such agreement might be concluded within any particular timescale, whether the agreement would be approved and ratified by the competent institutions on each side, let alone the substantive content of any final agreement on the future relationship.

The only provision which touches upon the substance of the principles intended to govern negotiations for the future relationship is paragraph 5: the EU notes the UK’s intention to ensure that the latter’s social, employment and environmental standards do not regress from those in place at the end of the transitional period and to provide Parliament with the opportunity to consider future changes in Union law in these areas. Even setting aside the limited significance / value of those commitments as a matter of domestic UK constitutional law, paragraph 5 is almost entirely inconsequential as regards its substantive relevance to the legal status or enforceable content of the existing withdrawal package.

A suggested “Unilateral Declaration” by the UK

The Prime Minister’s statement in Strasbourg provides that the UK will make a Unilateral Declaration that, if the “backstop” comes into use and discussions on the future relationship break down, so that there is no prospect of subsequent agreement, the UK takes the position that there would be nothing to prevent the UK instigating measures that would ultimately disapply the “backstop”.

On one level, that statement is entirely banal: of course, if the UK were determined to adopt internal legal measures to disapply the “backstop”, there is nothing that any external actor could do to prevent the UK’s domestic institutions from so acting. The EU could have recourse to whatever avenues and remedies are available under international law, e.g. dispute settlement under the Withdrawal Agreement – but the EU cannot “prevent” the UK from acting however the UK pleases within the UK’s own internal constitutional sphere.

On another level, however, the Prime Minister’s statement is quite remarkable: the UK is openly and blatantly threatening to breach its clear obligations under a legally binding international agreement, even before that agreement has been finally approved and ratified. In reality, one might again argue that this threat rings rather hollow: if the UK were unilaterally to disapply the “backstop” in such circumstances, without any adequate alternative arrangements already in place, it could once more lead directly to the erection of a customs and regulatory frontier between Northern Ireland and the Republic of Ireland. Even if the UK were unconcerned about the international legal repercussions under the Withdrawal Agreement or indeed the Joint Report, the UK would still have to manage the inevitable economic, social and political problems such a course of action would entail for Northern Ireland and no doubt beyond.

In any event, it sits rather ill with the ambition and reputation of “Global Britain” for the Government to adopt such a proudly cavalier attitude towards respect for and compliance with international law.