The endless repetition of the claim that the UK’s plan to repeal the Northern Irish Protocol ‘breaches international law’, as if the UK is some kind of rogue state, does not make it true . Article 16 of the Protocol specifies that, if the agreement were to lead to “serious economic or societal harm… or a diversion of trade, [parties] can unilaterally take the appropriate measures. This is what the government is now seeking to do through legislation.
The criteria for invoking this provision are those of seriousness and opportunity. These concepts are not unique to international law – they are found in the World Trade Organization (WTO) Agreement on Safeguards. Safeguards are designed to cushion severe shocks resulting from free trade agreements and are widely seen as a necessity given the difficulties some countries are having in adjusting to new trading relationships.
There is no doubt that the developments which have taken place since the signing of the protocol are serious – a near total collapse of trade between Britain and Northern Ireland as a result of blatant EU customs checks on goods . The resulting implications for the integrity of the Union as well as for the economic well-being of the United Kingdom are indeed cause for concern.
The unreasonableness of the EU in controlling goods is tantamount to a blockade in the Irish Sea. This is as good an example of bad faith in the implementation of an agreement as one could imagine. Almost a fifth of all documentary checks carried out by EU customs relate to the Irish border – a shocking figure given that such shipments account for far less than 1% of EU trade. It’s hard to resist the conclusion that the quagmire of red tape was deliberately inflicted on the UK as some sort of punishment.
With respect to appropriateness, the Protocol provides further clarification. Actions taken by a party in response to serious harm should be limited to those that are strictly necessary. Liz Truss explained that the UK’s response would involve simplified customs checks on the Irish Sea including an unchecked green lane for goods staying in Northern Ireland, linked to a trusted trader scheme, and a red lane for comprehensive checks on products entering Ireland. and the single market. This proposal is not a reckless “tearing” of the Protocol as the BBC would have you believe. This is, as Attorney General Suella Braverman said, a completely lawful exercise of the UK’s rights as set out in the text of the treaty.
Article 16 then clarifies that the party against which safeguard measures are imposed to repair the damage (in this case the EU) can respond with “proportionate rebalancing measures” which must also be “strictly required “. This does not authorize a trade war as the EU seems threatening. Given the tiny volume of trade likely to be affected, any corresponding duty on UK goods is expected to be minor. Any attempt to retaliate beyond that would be illegal, let alone self-destruct given the EU’s trade surplus in goods with the UK.
The solution of a light approach to the GB/NI border can preserve the integrity of the UK while posing little or no threat to the EU single market. This was precisely the type of arrangement envisaged by the protocol and the reason the UK signed the treaty in the first place. Unfortunately, the EU did not see it that way. Something must be done now.
David Collins is Professor of International Economic Law at City, University of London