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One of the more painful things about being an international lawyer during Brexit is watching spivs and grifters like Rees-Mogg try and game the system.
Herewith, a thread.
Herewith, a thread.
1. Gather round, children. This is VCLT Art 62. 
2. Now, we can't tell exactly what Rees-Mogg has in mind when he sonorously invokes VCLT Art 62. But I think we can safely bet that in his view, a failure to reach an agreement with the EU constitutes a fundamental change of circumstances that entitles the UK to terminate.
3. Under the usual standards of international law, VCLT is exceptionally difficult to invoke. The word "fundamental" in the title is a clue.
4. In Gabčíkovo-Nagymaros Project [1997] ICJ Rep 7 at [104], the ICJ gave an indication of the kind of circumstances that would need to be in effect for VCLT Art 62 to bite.
5. In that case, Hungary had invoked a variety of supervening circumstances to get out of a treaty requiring it to build a dam on the Danube River. These circumstances were... well, they were pretty unexpected.
6. Put shortly (with some mild rhetorical flourishes), the USSR had broken up, the Warsaw Pact had disintegrated and the counterparty to the original treaty - Czechoslovakia - no longer existed as a unitary state.
7. The ICJ still said no. Those circumstances were not - as [104] above shows - enough to radically change the nature of the underlying treaty obligation. The obligation to build a dam remained the same, and no more onerous on Hungary than when it was first entered into.
8. When one looks at the current political landscape between the UK and EU, one struggles to identify any change in the terrain that would meet the threshold set by the ICJ.
9. But of course (and with Rees-Mong's understanding of international law, there is always this *particular* of course) reliance on VCLT Art 62 in this case does not even hold together as a matter of basic logic.
10. The chapeau of VCLT Art 62 *specifically* requires the change in circumstances relied on to be unforeseen by the parties at the time at which the agreement was entered into.
11. The Backstop was inserted into the withdrawal agreement precisely to cater for the event of a failure to agree. How, then, can it be said that this eventuality was not foreseen? It's nonsense on stilts.
12. But, dear reader, the position gets even *dumber*.
13. Assuming I am wrong, and failure to agree is not the perceived basis for the invocation of VCLT Art 62, then when this perceived basis *is* explained, it will automatically render whatever the basis is a foreseen circumstance.
14. Put another way, through the act of *invoking* VCLT Art 62 in relation to a particular circumstances at the time of the treaty's conclusion, the UK will have - *literally in the same breath* - nullified it as a possible exit route.
15. I swear to God, you couldn't make idiocy like this up.
16. To conclude, this recent thought bubble by Rees-Mogg (like the lunacy over GATT Art XXIV) is reflective of the Brexiteers' relationship with international law as a whole.
17. Rather than treat it as a coordinated system of rules the basic principle of which is pacta sunt servanda (see e.g. VCLT Art 26), they consider it a box of dirty tricks that they can whip out from time-to-time to preserve a smug veneer of omniscience.
18. Ultimately, the people who are going to suffer are the desperate mugs who continue - despite all the evidence - to believe Rees-Mogg and his ilk have their best interests at heart. But the Emperor has no clothes.
