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Flouting the Protocol: the EU in Ireland.

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Written by Professor of Law

The recent EU decision to invoke Article 16 of the Northern Ireland Protocol was not only arrogant, monumentally tactless, and politically damaging. It was also a prima facie breach of international law.

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The document (“Regulation”) by which the European Commission sought to impose (inter alia) a trade border between the Republic of Ireland and Northern Ireland in relation to the export of COVID-19 vaccines from the EU to Northern Ireland and the rest of the UK was withdrawn after governmental protests, and removed from the EU’s website.  It is attached as Appendix I. The Protocol itself is on this website at https://briefingsforbritain.co.uk/the-protocol-on-ireland-northern-ireland/

Recital (16) of the Regulation makes the case for the trade border.  The border is imposed by the effect of Article 1(6).

Article 16 of the Northern Ireland Protocol, referenced in Recital (16) of the Regulation, allows for the imposition of such a border in exceptional circumstances.  Article 16(1) of the Protocol reads as follows:

“If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.”

While the careful textual analysis applied in common law reasoning is not exactly replicated in the more teleological exegesis of EU law, it is interesting to note that Article 16(1) by its language appears to envisage a response to existing difficulties, not a response to anticipated difficulties.  So what difficulties, if any, had already occurred by 29 January 2021 (the date of the Regulation) with respect to the export of COVID-19 vaccines from the EU across its border with Northern Ireland?  It is hard to tell.  But the Regulation itself refers only (and repeatedly) to averting the risk of future hypothetical difficulties.

A “lack of supply” is mentioned in the recital.  But what had an existing lack of supply of vaccines in the EU, as of 29 January 2021, as opposed to some imagined or anticipated lack of supply, got to do with the operation of the border between Northern Ireland and the Republic of Ireland at that time?  It is, to put it mildly, far from clear that any “lack of supply” of COVID-19 vaccines in the EU on or before 29 January 2021 was in the slightest way connected with export of such vaccines across the border from the Republic of Ireland to Northern Ireland.

The immediacy of existing difficulties under Article 16 – or the lack of such – also raises interesting procedural questions.  Annex 7 of the Northern Ireland Protocol contains the procedures to be used when either the EU or the UK is considering the invocation of Article 16.  Where the EU is proposing to take such measures, at least one month’s notice must be given to the UK (and vice versa), unless “exceptional circumstances requiring immediate action exclude prior examination”, in which case “the [European] Union or the United Kingdom, as the case may be, may apply forthwith the protective measures strictly necessary to remedy the situation”.  What were the “exceptional circumstances” that made immediate action strictly necessary?  We may never know.

But exceptional incompetence, exceptional panic, and exceptional desire to pass the buck do not provide justification for breaching obligations enshrined in international law, to which the EU and its supporters, as they have frequently told us, are devoted.

Download: Commission Implementing Regulation (EU)

 

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Professor of Law