The British government has unveiled a plan to do away with key aspects of the Northern Ireland Protocol. It is the legal instrument that regulates trade in goods in relation to Northern Ireland post-Brexit.
The Northern Ireland Protocol Bill proposes the establishment of a “dual regulatory system” that allows businesses to choose whether to comply with UK or EU regulations when selling goods in Northern Ireland. It also creates a “green channel” that will remove customs and regulatory controls on goods entering Northern Ireland from Great Britain, while maintaining controls on goods moving through Northern Ireland to the rest of the EU.
At present, the protocol ensures that there is no hard border on the island of Ireland, by keeping Northern Ireland within the EU’s internal market for goods. But critics of the protocol see these controls at the Irish Sea border as undermining the integrity of the UK internal market, and some within the trade union community see these controls as a threat to their British identity.
The bill ignores large parts of the EU-UK Withdrawal Agreement, an international treaty. It does not apply most of the EU legislation under the protocol governing the movement of goods. It also cuts the Court of Justice of the European Union in resolving trade disputes related to the protocol.
The question now is whether the UK can justify this step in the eyes of the law.
Violation of international obligations
If passed by parliament, the bill would ignore core obligations under the protocol. This is not an attempt to work within the parameters of the protocol – the legislation rather seeks to undo the essence of the agreement.
A decision to use domestic law to break the Brexit withdrawal agreement is against the agreements must be complied with rule – a fundamental principle of international law enshrined in the Vienna Convention on the Law of Treaties. It stipulates that any treaty in force is legally binding, and parties to treaties must comply with it in good faith.
By simply publishing its intention to unilaterally ignore the protocol, the UK is already in breach of international law, specifically the good faith requirement under Article 5 of the Withdrawal Agreement.
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Can the wrongful act be justified?
The government has insisted that the bill does not violate international law, saying it is a “necessity” to protect the UK’s interests, namely “stable social and political conditions in Northern Ireland, the protection of Good Friday -agreement […] and the promotion of social and economic ties ”between Great Britain and Northern Ireland.
But a necessity defense can only be invoked under certain specific conditions. These conditions, which have been codified in the International Law Commission’s draft articles on state responsibility, are legally binding under international customary law.
First, a state must show that the action is the only way to protect a material interest from serious and imminent danger. Secondly, they must show that the action does not seriously harm the material interests of the states concerned. The threshold to pass these tests is very high. Proving this will not be an easy task, as businesses in Northern Ireland largely support the protocol – as do the political parties that have received the most support in recent elections.
Importantly, if there are other, legal alternatives – whether more expensive or politically inconvenient – the “necessity” claim cannot be justified. One alternative would be to invoke Article 16 of the Protocol – the “safety precautions” clause. It allows parties to deviate from protocol obligations if it can show that their application has led “to serious economic, social or environmental problems that are likely to continue, or to diversion of trade”. But it comes with its own set of challenges.
Most importantly, the invocation of Article 16 requires that any protective measure in scope and duration be limited to “what is strictly necessary” to solve the problem. It would be extremely difficult to argue that a piece of legislation that undoes most of the protocol is limited to what is “strictly necessary.”
Read more: Trade war threatens Article 16: Protecting Northern Ireland Protocol, explains
Ignoring the protocol is certainly not the only way to avoid controls at the Irish Sea border. The UK could have chosen to align its customs and regulatory regime with that of the EU. It has been supported by politicians and businesses in Northern Ireland.
Instead, the government prioritized its choice to leave the EU’s internal market and customs union over the need to ensure compliance with international obligations and the desire to avoid controls on British goods entering Northern Ireland. In this sense, the use of the bill to carry out wholesale violations of the withdrawal agreement is more a matter of political convenience than necessity.
How things could play out
If the bill succeeds, there are likely to be legal challenges for the EU, as well as for individuals and businesses whose rights may be affected. The EU can also act sooner by reopening the legal challenges it suspended last year in connection with the UK’s decision to unilaterally extend grace periods under the protocol. There are reports that it will launch new legal action in other areas. The EU could also immediately start proceedings against the UK, arguing that the publication of the bill itself is a breach of the good faith requirement under the withdrawal agreement.
Cynics can argue that the British government’s real aim is to threaten non-compliance with the protocol to gain leverage in its negotiations with the EU. The government alludes so much in its legal position and declares that it remains hopeful to negotiate an alternative solution.
This approach seriously undermines the UK’s reputation as a credible and reliable international actor. Building a reputation as a country that considers compliance with international law to be optional would do unprecedented damage to the UK’s reputation. If the government is prepared to disregard the protocol almost in its entirety on the basis of weak and seasoned legal arguments, why should the EU trust it to meet its obligations in any future agreement?
