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Sunday, June 26, 2022

Northern Ireland Protocol explainer: why the UK government’s plan to change it violates international law

The UK government has unveiled plans to address key aspects of the Northern Ireland Protocol. It is the legal instrument that regulates the trade in goods in relation to post-Brexit Northern Ireland.

The Northern Ireland Protocol Bill proposes to establish a “dual regulatory system” that lets businesses choose whether to comply with UK or EU regulations when selling goods in Northern Ireland. It also creates a “Green Channel” that would remove customs and regulatory checks on goods entering Northern Ireland from Great Britain, while checking on goods passing through Northern Ireland to the rest of the European Union.

Currently, the protocol ensures that there are no hard limits on the island of Ireland, keeping Northern Ireland within the single EU market for goods. But critics of the protocol see these checks on the Irish Sea border as undermining the integrity of the internal British market, and some within the unionist community see these checks as a threat to their British identity.

The bill overrides large parts of the EU-UK withdrawal agreement, an international treaty. It does not apply to most of the EU law provisions under the Protocol that govern the movement of goods. It also cuts across the EU Court of Justice in resolving trade disputes related to the Protocol.

Now the question is whether Britain can justify this move in the eyes of the law.

violation of international obligations

If passed by Parliament, the bill would do away with the main obligations under the protocol. It’s not trying to work within the parameters Rather, the law seeks to undo the very essence of the agreement – of the protocol.

Against whom the decision to use domestic law to violate the Brexit withdrawal agreement goes pacta sun sarvanda Rules – a fundamental principle of international law expressed in the Vienna Convention on the Law of Treaties. It provides that every treaty in force is legally binding, and that the parties to the treaties must comply with them in good faith.

By only publishing its intention to unilaterally override the protocol, the UK is already violating international law, notably the good faith requirement under Article 5 of the withdrawal agreement.

Foreign Secretary Liz Truss insisted the government was ‘acting in accordance with the law’.
Alexandros Michelidis/Shutterstock

Can wrongdoing be justified?

The government has insisted that the bill does not violate international law, saying it was a “necessity” to protect Britain’s interests, namely the “stable social and political situation in Northern Ireland, safeguarding the Good Friday Agreement”. ” […] and the promotion of social and economic relations between Great Britain and Northern Ireland”.

But a requirement defense can only be invoked under certain specific conditions. These terms, which are codified in the draft Articles of the International Law Commission on State Responsibility, are legally binding under customary international law.

First, a state must show that action is the only means to safeguard an essential interest against a serious and imminent crisis. Second, they must demonstrate that the action does not seriously affect the essential interests of the states involved. The threshold for passing these tests is very high. Proving them will be no easy task, as businesses in Northern Ireland largely support the protocol – as do the political parties with the most support in the recent assembly elections.

Importantly, if there are other, valid alternatives – even if more costly or politically inconvenient – the claim of “necessity” may not be justified. An alternative would be to invoke Article 16 of the Protocol – the “Safety Measures” section. It allows parties to deviate from protocol obligations if it can show that its application has caused “serious economic, social or environmental difficulties that are liable to continuance or diversion of business”. But it comes with its own set of challenges.

More importantly, the imposition of Article 16 requires any safeguard measure to be limited in scope and duration to “what is strictly necessary” to address the problem. It would be extremely difficult to argue that a piece of legislation that predates most protocols is limited to what is “strictly necessary”.



Read more: The trade war looms over Article 16: the Northern Ireland Security Protocol, explained


Overriding the protocol is certainly not the only way to avoid checks at the Irish Sea border. The UK could choose to align its customs and regulatory regime with the EU. It was supported by politicians and businesses in Northern Ireland.

Instead, the government has prioritized its choice to leave the EU Single Market and Customs Union over its desire to ensure compliance with international obligations and avoid checks on British goods entering Northern Ireland. In this sense, the use of the bill to carry out wholesale breaches of the withdrawal agreement is more a matter of political convenience than necessary.

how things can go

If the bill passes, it could face legal challenges from the EU as well as individuals and businesses whose rights could be affected. The EU may act soon by resuming the legal challenges suspended last year in relation to the UK’s decision to unilaterally extend the exemption period under the protocol. There are reports that it will initiate new legal action in other areas. The EU could also immediately initiate proceedings against the UK, arguing that the publication of the bill violates the goodwill requirement under the self-withdrawal agreement.

Cynics might argue that the real purpose of the UK government is to threaten non-compliance with the protocol in order to gain leverage in its negotiations with the EU. The government has indicated as much in its legal position, saying it looks forward to negotiating an alternative solution.

This approach seriously undermines the UK’s position as a credible and reliable international actor. Building a reputation as a country that makes compliance with international law optional will do untold damage to the UK’s reputation. If the government is prepared to almost completely disregard the Protocol on the basis of weak and hypothetical legal arguments, why should the EU rely on it to maintain its obligations in any future agreement?

World Nation News Desk
World Nation News Deskhttps://worldnationnews.com/
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