Some useful legal concepts for understanding the TCA/WA

As I mentioned last week, the focus so far on the Trade & Cooperation Agreement (and, to a lesser extent, the Withdrawal Agreement) has been on the legal aspects.

Part of that has been driven by the growing realisation among non-legal scholars (like me) that there’s not merely a need to read the fine print of the treaties, but also to have a sense of wider legal frameworks and principles.

With that in mind, I’m found myself coming back to such questions at regular intervals in the past 18 months.

In this post, I’m going to pull them together for you (and for me), so you have quicker access and so we can start thinking about their interaction.

Pacta sunt servanda and force majeure

Tellingly, much of what I’ll cover relates to the extent of obligation that a party enters into by signing a treaty. In part, that’s a function of the apparent lack of understanding on the side of various ministers in their pronouncements on the TCA/WA, but also connects back to the fundamental failure of the UK to determine what it actually wants from Brexit.

I’ve explored the latter point at length in various other places (like here), but a consequence of not really knowing what you want to achieve is that once you have an agreement you may well discover down the line that it’s not what you wanted.

The central legal concept that applies here is that of pacta sunt servanda: if you sign up to it, you’re stuck with it (roughly speaking).

I cover the main points in this thread and these slides:

The concept contains a lot (as you can see) across all the stages of international agreements, so it pays some time to unpack it all.

Indeed, it provides the basic framework for the current discussion about force majeure that we’ve been seeing around the Northern Ireland Protocol. While I did make a graphic about that too, in essence you have much of the idea from the stuff above:

And as a final thing, I now have a mirror of this blog running at the OU.

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