The best approach for the EU will be to gradually turn up the heat on the UK so as to give them time to learn that actions have consequences, and the price could be very high.
The UK government is unilaterally signalling its intent to ditch the provisions of the Northern Ireland Protocol that are designed to protect the integrity of the EU Single Market. The integrity of the Single Market rests on their being a single set of rules, uniformly enforced and consistently applied, across the 27 EU States.
Under the Protocol, goods produced in [Northern Ireland] would enjoy full access to the Single Market without any checks at the EU border in Ireland or anywhere else. The Protocol also affirms that [Northern Ireland] retains full access to the UK market. This is a win/win situation for [Northern Ireland] business.
The new UK legislation announced this week would instead create a control free zone in Ireland, which would radically weaken Irelands position as a member of the EU. By doing away with the controls at the ports in [Northern Ireland], envisaged in in the Protocol, it would create a situation whereby good and foods, not meeting EU standards, could be brought into the EU market via Ireland.
We should not forget that the Withdrawal Agreement, of which the Protocol was a central part, was a key element in the winning Conservative Party General Election Manifesto of 2019.
Now the joint author of the Protocol, Boris Johnson , wants eviscerate it by means of unilateral UK legislation.
A unilateral breach of a Treaty by domestic legislation on an internationally sensitive matter Is clearly a breach of international law.
International commerce, in which the UK was once a major champion, rests on scrupulous respect for treaties and contracts.
“My word is my bond” was once a watchword in British international dealings. No more, it seems.
The UK are now claiming that an international Treaty can be breached on the basis of “necessity”.
This is a hard claim to justify in this case. Fifty-two of the 90 members of Northern Ireland Assembly have indicated support for the Protocol, so there is no democratic “necessity“ to scrap the Protocol.
It is true that the DUP has said it will not sit in the [Northern Ireland] Executive unless it’s seven demands for changes are met. These demands are vaguely phrased and symbolic and do not provide a solid basis for legal resolution. It is not clear when or if the DUP would take up their seats in the [Northern Ireland] Executive. So one minority political party , in small part of the UK , cannot be allowed to determine what is a “necessity” for a large and diverse state like the UK .
The fact that the UK government, Parliament, and electorate , all endorsed the Protocol as recently as 2019, with their eyes wide open, makes it very hard to plead “necessity” as a ground for undoing their own work.
An objective court would decide that they could and should have anticipated what would happen in their own jurisdiction.
The situation we are in today is a sign that debate within the ruling Tory party is taking place within a bubble, within which the needs of others outside the bubble are not heard.
Following the debate on the Protocol in Tory supporting press in Britain is like watching the reaction of the Republican base to the hearings about the invasion of the Capitol. They hear what they want to hear , and nothing else.
One Brexiteer recently described the [Northern Ireland] Protocol as “a punishment the EU inflicted on the UK for Brexit”. This is despite the fact that in 2019, Boris Johnson, who negotiated the Protocol himself, claimed that ,in the Protocol , he had swiftly negotiated what he called a “great new deal”!
He, unlike his predecessor, had got Brexit done, he boasted.
The same Brexiteer writer said the Protocol was “an attempted power grab” by the EU over the [Northern Ireland] economy “on behalf of its allies in Dublin”. The writer ignores the fact, under rules written while the UK was still an EU member, the Single Market of the EU has to have border controls, and these controls have to be more or less the same at all EU Borders.
Any precedent the EU might cede to the UK will be demanded by other non EU states with land borders with the EU.
The UK demands to be trusted when they say that nothing that fails to meet EU standards will cross the border into the EU .
They seem to have forgotten the long tradition of smuggling on and around the [Northern Ireland] border, some of which which helped finance paramilitary activity in the past, activity which costs thousand of Irish (and British) lives, and could do so again.
Trust has to be earned, it cannot be commanded. If the EU cannot trust the UK government to keep its word, it will be even harder for it trust the private sector “trusted traders”, the same government appoints to protect the EU from the smuggling of sub standard goods and foods across the border into the Republic.
WHAT WILL HAPPEN NOW?
The EU has made clear the terms of the Agreed Protocol will not be changed. It has also made clear that without the Protocol there could have been no Withdrawal Agreement, and without that, there could have been no Trade and Cooperation Agreement (TCA).
Without the TCA, the Common External Tariff of the EU would have to be applied to British goods coming into Ireland and every other EU state. This would be deeply destructive , but it is the logical outcome , when one tries to unravel complex inter related international agreements unilaterally. The whole thing comes apart.
As an EU member, Ireland would then have to apply the Common External Tariff on its own land and sea borders, a task of daunting proportions politically and practically. The effect on stability in [Northern Ireland], and the sense of isolation of Northern nationalists, would be intense. The disruption of the food industry in The whole of Ireland would be disastrous.
One hopes that it will not come to that. But pretending that this could never happen is not wise.
The best approach for the EU will be to gradually turn up the heat on the UK so as to give them time to learn that actions have consequences, and the price could be very high. The European Commission has much experience in trade disputes and know how and where to target it’s actions. Meanwhile the political climate in the UK could change. The UK opposition parties need to assert themselves for the sake of the reputation of their country.
John Bruton was the Prime Minister of the Republic of Ireland (1994-97) and the European Union’s Ambassador to the United States (2004-09). He had held several important offices in Irish government, including Minister for Finance, Minister for Industry & Energy, and Minister for Trade, Commerce & Tourism.