The controversy around the Northern Ireland Protocol

Why is the European Union threatening legal action against the U.K.? How is the Johnson administration justifying the breach of international obligations?

The story so far: The Boris Johnson administration has come up with a new legislation, the Northern Ireland Protocol Bill, which would enable the U.K. to override provisions of the Brexit deal that concern trading arrangements in Northern Ireland — the Northern Ireland Protocol (NIP). The European Union (EU) has said that the proposed law violates international law and has threatened to take legal action against the U.K. if it goes ahead with the legislation.

Northern Ireland is the only part of the U.K. that shares a land border with the EU, as the Republic of Ireland (or Ireland) is an EU member-state. As long as the U.K. was part of the EU, things were fine. But with Brexit, the U.K. exited the EU’s customs union. This created a problem whose solution needed two seemingly contradictory outcomes: preserving the sanctity of the EU’s single market, as well as that of the U.K.’s domestic market. The NIP’s solution was to avoid a customs check at the actual customs border — on the island of Ireland, between Northern Ireland and the Republic of Ireland — as this would have violated the 1998 Good Friday Agreement and risked instability in a region with a volatile past. It instead shifted the customs border to that between Northern Ireland and Britain, effectively at the former’s ports. As per the NIP, goods flowing into Northern Ireland would be checked at this ‘sea border’ before entering the island, and Northern Ireland would continue to follow EU rules in product standards.

The Northern Ireland Protocol (NIP) has been a lingering issue for the U.K. almost from the day Brexit was signed. In fact, back in July 2021, the Boris Johnson administration announced its intent to renegotiate the NIP. But with efforts at negotiations not producing the results it wanted, it decided to proceed with a unilateral revamp of the NIP via domestic legislation. The main irritant for the U.K. in the current version of the NIP was the creation of “unacceptable barriers” to trade within the U.K. internal market — between Great Britain and Northern Ireland. It has sparked complaints from businesses about the enormous paperwork needed for supply of goods and services to Northern Ireland despite it being within the sovereign territory of the U.K. Also, the Unionists of Northern Ireland (the section loyal to the U.K.) are unhappy with the NIP, and resent having to put up with a provision that effectively puts them at one remove from the U.K., when compared with citizens in other parts of the U.K. Northern Ireland’s main unionist party is, in fact, blocking the formation of a new power-sharing government in Belfast, saying it won’t take part until the NIP rules are scrapped. It is in this context that the Northern Ireland Protocol Bill seeks to empower the U.K. government to override key provisions of the NIP.

Instead of subjecting all goods moving between Britain and Northern Ireland to customs checks, the new Bills proposes two categories of goods and checks: goods meant only for Northern Ireland would go in a ‘green lane’ and will be exempt from any checks, while goods headed for Ireland and the EU would go into a ‘red lane’ where they will be subjected to all the checks and customs controls. Secondly, the Bill would remove EU oversight on state subsidies and value-added taxes in Northern Ireland. Third, the Bill proposes settlement of trade disputes and the enforcement of the NIP by an independent body rather than the European Court of Justice. Lastly, the Bill wants to give businesses the choice of selling their goods in Northern Ireland either according to the U.K. rules or the EU rules, in effect, proposing a dual regulatory regime instead of the single (EU) one as per the NIP.

The Bill has triggered strong pushback from MPs belonging to Mr. Johnson’s own party, from Irish legislators, and from EU officials. All of them have pointed out that the legislation would violate international law, damage the U.K.’s reputation as a trade partner, and spark a trade war with the EU. The EU’s executive branch announced on June 15 that it would be taking legal action against the U.K. for violating international law.

The Johnson administration has sought to justify its breach of its obligations under the Brexit agreement by invoking a principle of international law known as the “doctrine of necessity”. The UN’s International Law Commission allows a state to invoke this doctrine when its “essential interests” are facing a “grave and imminent peril”. The Johnson administration believes that this emergency loophole will enable it to defeat any legal challenge to its proposed Bill. The “grave peril” in this context, according to the British government, is the threat posed by the NIP to the Good Friday Agreement. “The maintenance of stable social and political conditions in Northern Ireland, the protection of the 1998 Belfast (Good Friday) Agreement…and the preservation and fostering of social and economic ties between Northern Ireland and the rest of the United Kingdom, are essential interests of the United Kingdom,” says a statement from the U.K. Foreign Secretary.