Let’s assume Johnson Regime is now actively preparing to invoke Art 16 of Protocol on IRL/NI, by adopting “safeguard measures” likely leading to unilateral disregard of agreed rules on GB-NI trade. What comes next? Short(ish, er OK, not very) thread with few thoughts:
1) Set against criteria for invoking Art 16, UK case will inevitably look weak. To start: we don’t know what “life under Protocol” really looks like, because UK has never properly applied it. A party that has consistently refused to comply with legal obligations under Protocol...
2) ... and has also thereby consistently breached duty of good faith under Art 5 WA as a whole, is hardly in good starting position to claim “these rules just aren’t working”. Which means there’s an important starting question about proper interpretation / application of Art 16:
3) can party legitimately rely on possibility of “safeguard measures” effectively in attempt to legitimise own longstanding breach of clear legal obligations? If so: Art 16 could act as vehicle to convert unlawful behaviour into excusable conduct – a rather undesirable approach.
4) In any case, Art 16 presupposes serious economic/societal [or environmental] difficulties which are liable to persist; or diversion of trade. Yet many of the economic/trade effects we now see = entirely foreseeable, inherent consequence of Protocol itself...
5) So can UK really claim such inevitable effects = legitimate “problems” under Art 16; or use “safeguard” powers to attack very essence of what it agreed in first place? If anything, many of economic/trade effects over last year were result, not of Protocol, but of HMG's conduct
6) i.e. Johnson/Tories' deliberate deception about Protocol's basic nature and inherent effects: instead of encouraging businesses to prepare / supply chains to adapt, Johnson & Co actively misled public and stakeholders – surely making problems far worse than really needed to be
7) As for "societal" problems, ie DUP tantrums/shadow of loyalist violence? Again entirely foreseeable. Opposed to entire Protocol model. Unionist opposition already factored into Protocol: consent rules=no DUP veto. & tensions actively stoked by HMG: more bad faith/dirty hands.
8) If basis for UK action is shaky, also need to scrutinise nature of planned measures: must be appropriate; limited in scope/duration to what’s strictly necessary to remedy situation; priority to measures that least disturb functioning of Protocol; following prescribed process.
9) Obviously, most appropriate measure for HMG would be to start properly respecting law, admit Protocol inevitably means significant changes to NI economy & stop actively fabricating dissent/encouraging unrest. But more realistically...
10) Art 16 basically requires “safeguards” to be tailored & specific. In effect: I'd argue that even safeguard measures must allow very essence of the Protocol regime to remain operational; they cannot simply contradict / undermine core system. Let’s see what UK might propose…
11) How might EU (legally) react? EU can adopt own unilateral measures: proportionate & necessary to address imbalance of rights/obligations; & again least disturb functioning of Protocol. Eg, might mean enhanced [non-border] market surveillance for goods coming from / via NI…
12) And we know EU could initiate dispute settlement: initial discussion in Joint Committee; referral to arbitration panel (subject to certain CJEU input); possibility of remedial/retaliatory action, most likely via Trade & Cooperation Agreement, e.g. tariffs/quotas on UK trade
13) In addition: remember Art 16=only safeguard measures; doesn't involve formal abrogation of Protocol. Art 12 of which says: as regards basic NI trade system, EU institutions still exercise powers in relation to UK – including CJEU jurisdiction, e.g. in infringement proceedings
14) Relationship between Art 12 powers and Art 16 measures is unclear; probably depends also on details of situation. But arguable: UK’s wilful non-compliance with Protocol, even despite Art 16, could still end up directly before CJEU and result, eg in judicial penalties / fines
15) But all that is the law. Of course, at least as important here=politics. Which also deserves a few words. Starting with question: what should EU prioritise in its decisions about how to respond to UK’s persistent dishonesty, provocation and non-compliance? Three points here.
16) First, EU owes nothing here to UK population as whole. Sorry, folks: we didn't make this horrible bed, but we still have to lie in it, just as much as Brexit loons and bigots . It’s not EU’s job to save UK from own self-made misery. That challenge lies on our shoulders alone.
17) Secondly, however, EU cares about people of NI & GFA. Johnson Regime cares for neither; quite opposite, is willing to inflict whatever damage, and risk far worse, in pursuit of own selfish & cynical agenda. EU has to be better than that – and of course, evidence says it is.
18) Thirdly, though, EU also has to act in interests of Republic + other Member States. HGM no doubt hopes to provoke crisis that will “vindicate” its Brexit disaster by humiliating “weak” EU. Conversely, EU needs to show its own citizens it has ability to protect their interests
19) So: EU should use all available legal avenues to hold UK to legal obligations & challenge abuse of Art 16 for ulterior / improper purposes. If means trade sanctions that hurt UK businesses/individuals, so be it: that, after all, is the “new world order” Brexitists pined for.
20) Only as very last resort should EU contemplate any form of IRL/NI border controls. But ultimately may need to protect Republic’s sovereign choice as Member State by doing just that. In eyes of entire world including nationalists across Ireland, blame will fall entirely on UK
21) In that event, Johnson Regime's diabolical legacy will extend to deliberately undermining peace settlement within own borders, rendering UK a direct threat to European stability, & gravely fracturing alliance of liberal democracies upon which our collective security depends.
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