Yesterday I had a revealing exchange with a colleague I revere and I noticed: Brexit is a half-time job. Gove’s statement on simply changing Chequers post-Brexit has confused many. Can you do that? What’s this “political declaration thing”? A thread theguardian.com/politics/2018/…
1) Structure of the Brexit negotiations: The EU and the UK agreed on “sequenced” negotiations. This is from the April 2017 EU guidelines, but I will explain... 
2) The sequence basically says that there will be several stages of the negotiation (some nuances were added after the 2017 guidelines):
Step 1: Withdrawal Agreement
Step 2 a: transition
Step 2 b: framework for a future relationship
Step 3: future relationship
Step 1: Withdrawal Agreement
Step 2 a: transition
Step 2 b: framework for a future relationship
Step 3: future relationship
3) The future relationship can only be negotiated AFTER Brexit. So the Brexit negotiations concern steps 1, 2 a and 2 b. Withdrawal, transition, framework for a future relationship.
4) Obviously the future relationship itself and the withdrawal agreement will be international treaties. Binding ones. With enforcement mechanisms.
5) However, it was agreed that the framework for the future relationship will be a political declaration. More on that later (and @AndrewDuffEU and @StevePeers might disagree with some of what I say, but I will try to be as descriptive and fair as I can).
@AndrewDuffEU @StevePeers 6) At this moment you might get confused: wait. Isn’t Chequers about the future relationship? Why is the UK government so bothered about the future relationship, when right now we only have to agree on a framework?
@AndrewDuffEU @StevePeers 7) Some points on this which are essential to understand what’s going on. First of all: YES, Chequers IS about the future relationship. In fact, I attach the white paper. The title says it all assets.publishing.service.gov.uk/government/upl…
@AndrewDuffEU @StevePeers 8) But the UK government has been focused on the future relationship from the start. In part that’s justified: the future relationship is important. The framework of it is the subject of current negotiations. But there’s yet another reason for the focus...
@AndrewDuffEU @StevePeers 9) And that is Norther Ireland. Because of the importance of the peace process, Northern Ireland has been part of the Withdrawal Agreement negotiations. The UK and the EU have agreed on some fundamentals, including no hard border.
@AndrewDuffEU @StevePeers 10) Now no hard border on the island of Ireland creates the risk that the hard border will be in between Ireland and the UK. The government wants to find a solution for the UK that avoids this risk-hence its focus on the future relationship. Now back to the political declaration
@AndrewDuffEU @StevePeers 11) Unlike the Withdrawal Agreement and the Future Relationship the political declaration on the framework for the future relationship won’t be a formal treaty. Will it be binding? What is the content of such a declaration?
@AndrewDuffEU @StevePeers 12) Let’s start with the content. It will set out the framework for the future relationship, negotiations on which will start in earnest the day past Brexit. As such, at best it can contain an obligation to negotiate a treaty with this content.
13) Now such an obligation to negotiate can exist under international law (see e.g. the Bolivia Chile case currently before the ICJ concerning an obligation to negotiate access to the Sea) icj-cij.org/files/case-rel…
14) But it is unlikely that it would contain an obligation of result. If the parties are unable to agree on the vital details of an FTA, you can hardly force it on them. It would be an obligation to negotiate in good faith.
15) Will the declaration contain such a (legally binding) obligation? Or will it just be a political thing? There’s disagreement here. Also there’s disagreement about what people actually want.
16) First of all: a treaty under international law does not need to be called a treaty. If party a + b release a poltical declaration and both want to be bound by it under treaty law, well. It is likely a treaty under international law
17) But it is unlikely that both parties actually want that (because if they would, they would have put the declaration in the withdrawal agreement)
18) Technically legally, the document is hence not binding as of public international law. I attach the House of Commons Brief coming to the same result. But this does not mean it is without any effects commonslibrary.parliament.uk/wp-content/upl…
19) The European and UK bodies (government, commission, parliaments) will regard the declaration as of the utmost importance. And will hold their partners (and the people on their own side) to their word.
20) Breaching the political declaration hence carries a cost. How significant? That depends on the political process. But it is a different cost than the cost of breaching a treaty.
21) I will stop here, as I assume by now I have lost / bored / annoyed about 95% of my readership and I sort of don’t want to lose the last 5%.
