BREXIT: Northern Ireland Protocol Changes, International Law and Political Stability
Lizz Truss, the UK foreign secretary, has confirmed that the government intended to introduce legislation that would negate portions of the Northern Ireland Protocol. The Protocol was negotiated as part of Boris Johnson's 2019 Brexit deal with the EU. The new legislation aims to exempt some products transiting between the UK and Ireland from EU customs procedures. The EU has since retaliated, threatening hefty tariffs on UK goods should the UK government agree. The union went on further to describe Ms. Truss’ proposal as a ‘breach of international law’. Further, the prospect of amendment to the protocol poses a major risk to political stability both within Northern Ireland and between itself and the Republic.
This article will assess whether the changes would comply with international law, together with what these changes would mean for the political stability of NI/Ireland.
What is the ‘Northern Ireland Protocol’?
The Northern Ireland (NI) Protocol was put in place following an agreement between the UK and the EU after Brexit to avoid the creation of a ‘hard border’ between The Republic of Ireland and Northern Ireland. Essentially, lorries can continue to cross the border from Northern Ireland into the Republic of Ireland and avoid paperwork and having goods checked - just as they did when they were still part of the EU.
However, to allow for free movement of goods into the Republic and the rest of the EU- Northern Ireland had to follow some EU rules. These stipulate that British goods will be subject to a tariff if ‘at risk’ of being moved into the EU afterward. As a result of these import procedures, an ‘Irish sea border’ has effectively been imposed.
Some companies have discontinued the shipment of goods to Northern Ireland because of the extra cost and paperwork.
What changes will be made?
Ms Truss stated that the following changes will be made to the Bill:
Removal of regulatory barriers to goods made in the to UK standards being sold in N Ireland
Introduction of ‘green’ and ‘red’ lanes for goods travelling between Great Britain and N Ireland
Giving the UK power to decide on tax and spend policies across the whole of the UK
Allowing businesses to choose between meeting UK or EU standards in a new ‘dual regulatory regime’
The proposed changes have brought swift backlash from EU officials. Ireland’s EU commissioner Mairead McGuiness has referred to the move as a ‘breach of international law’
But just how true is this?
Given the evidence provided, not entirely.
According to Article 16 of the Protocol, if the (current) N Ireland Protocol were to cause ‘severe economic, societal harms or a diversion to trade, (parties) may unilaterally take appropriate measure’. This is exactly what the government is seeking to do via legislation.
Collins states that the words ‘seriousness’ and ‘appropriateness’ need to be paid attention to clearly. These are the standards that needed to be met for Article 16 to be provoked. These are the same standards found in the World Trade Organisation (WTO) Agreement on Safeguards. These safeguards were designed to mitigate shocks that resulted from free trade agreements between countries. Given the difficulties countries face while adapting to new trading relationships, the presence of safeguards is not just helpful, but a necessity.
Moving on, it is the opinion of this article that the developments that have occurred are serious. The EU’s customs checks on trade has greatly hindered trade between Great Britain and Northern Ireland.
According to the protocol, a party’s response to substantial harm must be confined to just those actions that harm must be confined to just those actions are ‘strictly necessary’. The UK’s response would include improved customs checks on the Irish sea, as well as the introduction of a check-free ‘green lane’ for goods remaining in Northern Ireland and connected to a trusted trader programme. A ‘red lane’ will also be introduced, in which there will be full inspections on items travelling into Ireland and the Single Market.
Additionally, Article 16 also states that the party against the safeguard measures imposed should respond via ‘proportionate rebalancing measures’ – this must be ‘strictly necessary’. Collins rightly acknowledges that this provision does not authorise the EU to declare a trade war, akin to what they have threatened. Moreover, only a small volume of trade stands to be affected by these changes, so corresponding tariffs against UK goods should be minor. The EU retaliating beyond this would be disproportionate and unlawful. The EU also has a trade surplus with the UK, therefore disproportionate action would be self-destructive.
Political Implications
Politically, the protocol has caused major division.
The two main nationalist parties in N Ireland, Sinn Fein and SDLP, back the protocol. Sinn Fein supports the agreement because it precludes the formation of a hard border on the island of Ireland, and they desire that the two states become one nation.
This means backlash against changes to the protocol is extremely likely. Sinn Fein has become the largest party in Stormont, meaning that nationalist sentiments on both sides of the Irish border are anticipated to strengthen.
Contrastingly, all three unionist parties: the DUP, the Ulster Unionist Party and Traditional Unionist Voice are very much opposed to the protocol, as they argue that the Irish sea border threatens Northern Ireland’s place in the United Kingdom. The DUP’s Paul Givan resigned as first minister over the matter in February.
The DUP also refused to enter the Stormont Executive, which requires both nationalists and unionists to function. The party stated that it would only enter into a party-sharing agreement at Stormont if other parties agree that the protocol must be removed or replaced.
Despite the risk of political tension, it appears that disagreement between political rivals are unlikely to prevent the protocol.
The Northern Irish Assembly can only vote on whether to continue with the protocol in 2024 . This would require cross-community support to achieve an extension of the deal by eight years.
However, with the unionists very much opposed, this is unlikely.