Northern Ireland Backstop: Conditional Interpretative Declaration

Martin Vickers Excerpts

Thursday 21st February 2019 Commons Chamber

[Sir Edward Leigh]

As always, I am very grateful to my hon. Friend. One of the advantages of these debates is that we can get such legal points across and put them on the record, and I am grateful to him for making that clear.

With a conditional interpretative declaration to a bilateral accord, the outright rejection of the declaration by the other party means the treaty would not come into force, as I said before the interventions. While there is every chance that the EU might object to a conditional interpretative declaration, that objection might fall short of outright rejection. I want hon. Members to listen to that very carefully, because I am trying to find a way forward for Mr Juncker. If they like, I am actually trying to save his face. I am trying to give him an opportunity to object, but not to indulge in outright rejection.

The EU could argue that attempts during negotiations to achieve an end date were rejected, and I am sure it might start by arguing that. It might also argue that an end date would be incompatible with the concept of the three protocols forming an integral part of the agreement, as provided for in article 182 of the withdrawal agreement. However, perfectly valid counterpoints to those objections exist. We would need to argue that our declaration is compatible with our commitment to use “best endeavours” —a very important phrase—to negotiate “alternative arrangements” so that, as provided for, the backstop applies “temporarily”, if indeed it is ever applied at all. That is a fundamental point.

The fact that the backstop would not necessarily come into force under the terms of the agreement means that, in my view, it is not actually integral to the agreement at all. The termination of the backstop within a reasonable amount of time is fully in accord with the agreement, rather than an amendment to it. I therefore think that the arguments in favour of the applicability of just such a declaration are very strong.

What about the European Union’s likely response to such a move? There are four main possibilities. First, it could accept our interpretative declaration and move ahead with obtaining the consent of the European Parliament to the withdrawal agreement. This might include making a political protest, while accepting the declaration’s legality and applicability. That is the ideal response so far as we are concerned. As guideline 1.6.3 states:

“The interpretation resulting from an interpretative declaration made in respect of a bilateral treaty by a State or an international organization party to the treaty and accepted by the other party constitutes an authentic interpretation of that treaty.”

In other words, we would have obtained a legally binding commitment from the EU to end the backstop—victory.

Secondly, the EU could reply with an assertion that the interpretative declaration is in effect an attempt to impose a unilateral reservation, and therefore has no legal validity, but at the same time agree to negotiate solely on the question of an end date for the backstop to solve this issue head-on. This would mean it had abandoned its previous insistence that no further negotiations were possible—again, a way forward.

Thirdly, the EU might reply that the interpretative declaration has no legal validity, but request further negotiations in the hopes of obtaining something of value in exchange for giving way on an end date for the backstop.

[Martin Vickers (Cleethorpes) (Con)]

I commend my right hon. Friend for all his work on this issue, and for securing this debate. Unlike me, he is an eminent lawyer, and I am trying to get my head around some of the complexities of this issue. If we invoke this interpretative declaration and the EU objects, is that legally challengeable, and if so in what court?

[Sir Edward Leigh]

I think the EU probably would object politically, but that is not enough. That is the point. If it does not want the interpretative declaration to have effect and provide an end date for the backstop, there is only one way out of it: it must refuse to ratify the treaty. A protest or talk of further negotiations is not enough, and that in a sense is the beauty of this. That is why we have these vehicles in international law, and why they have been used on several occasions in the past by countries such as Argentina and others.

There is no point protesting. My hon. Friend says that this is a complicated legal argument, but it is not. It is terribly simple. It is incredibly simple. Under international law one can say, “We interpret this treaty in such a way.” We can deposit that when we ratify the treaty. It is not a codicil as such or a letter; it is deposited with the treaty and has all the legal enforceability of a treaty. If those who are ratifying the treaty with us want to escape from its obligations, there is only one way out: they have to refuse to ratify it. I suggest—I will make this clear again before I sit down—that for political reasons the EU would be unlikely to do that, because it would put all the onus of a no-deal scenario on to it.