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Originally Posted by jonbxx
Ah, yes I have seen arguments that the WA was in conflict with Article 50 and in particular section 2;
with particular focus on;
The argument that the backstop is not part of the withdrawal but a permanent arrangement is somewhat strong. However, there is one killer line in the WA;
The WA which included the backstop does seem to my non-lawyer eyes comply with Article 50.2.
However, the counter argument I guess is that the backstop will become permanent if the 'unless and until' clauses are not met. This would suggest a lack of good faith which goes against Article 5 of WA, hence the need for an arbitration panel
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Whatever way you look at it, the backstop is not "unambiguously limited in time".
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In his presentations to the European Parliament, Barnier has stressed a number of principles for the negotiations: the four freedoms must be indivisible; any transitional agreement must unambiguously be limited in time; EU membership must always remain the most advantageous status; any new relationship must be based on a level playing field and on respect for the rules of competition; the balance of rights and obligations agreed with non-EU countries must be taken into account: and close cooperation is desirable in the field of defence and security
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The backstop starts after the end of the WA. Before then the WA applies and the backstop isn't needed. When the period covered by the WA ends, everything in Article 50 ends.
Any negotiations on the "future relationship" can only start until after the WA comes in to force, IE we have left the EU. In theory, the UK might sign up to the backstop at that point, but it can't be required to do so before then, and certainly not as a condition of the WA.