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Quick thoughts on the idea of Article 62 of the Vienna convention allowing for the termination of the backstop if there is a “fundamental change of circumstances” (as per the advice the ERG want Geoffrey Cox to deliver).
According legal experts, the “fundamental change” has to have been “unforeseen” when the treaty was signed. If Cox is predicting the UK might invoke this, then it’s hardly unforeseen.
A case often cited is the decision by Slovakia & Hungary to use Article 62 to walk away from a 1970s era treaty between Hungary and Czechoslovakia on the operation of a dam on the Danube.
Hungary and Slovakia argued at the Intl Court of Justice that the treaty was signed by two communist countries and one of them (Czechoslovakia) no longer existed, ergo a fundamental change in circumstances.
However they lost the case - ie, it is rarely invoked and very hard to prove. Also, as far as I’m aware (but open to contradiction) the UK would have to walk away from the entire Withdrawal treaty, not just the Irish Protocol.
