Simon Usherwood Profile picture
May 10 10 tweets 2 min read
While you wait for #QueensSpeech let's run through all the ways that up-ending the Northern Ireland Protocol is a bad idea

1/
Firstly, it's not a legally-viable option, under either the Protocol itself or under international law

Many details here:


2/
Secondly, it's politically and geo-politically awful, in terms of fallout, blowback and general damage to the rules-based order just when there's a big war on about just that



3/
Thirdly, it makes no sense in purely negotiating terms

Crashing the bus now won't improve the terms of the NIP, as I'll explain briefly

4/
Starting point is the idea of a BATNA (a best alternative to a negotiated agrt): i.e. what you can get inside a deal v. what you can get outside it

Explainer here:

5/
That explainer sets out what to do if you're working out whether to make a deal in the first place, but it also holds if you're inside a deal already

6/
Again, calculation is simple: can I get more of what I need by defecting from the deal than from sticking to it?

Given economic, political, geopolitical & legal costs listed above, that's a v.high bar for UK govt to clear

7/
Even in narrow terms, ditching NIP to 'save the Good Friday Agt' doesn't work, because opening E-W carries implications for closing N-S, so threat to GFA is still there

8/
Crucially, EU's view is that UK can't afford to bin NIP (heightened by previous failed bluffs so to do), so no incentive to fold, even if this isn't a bluff

9/
In sum, UK doesn't have a credible play through rejecting NIP

But doesn't mean NIP is great, so most productive strategy is constructive engagement within NIP system

Boring, but much better chance of getting to a fair & stable outcome for all

/end

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More from @Usherwood

May 11
Let's run through the 'duress' argument once again

spoiler: Whatever Baker argues, it's not 'duress' in a form that would stand up in (international) court

1/
The Vienna Convention on the Law of Treaties (VCLT), which provides a generally-accepted baseline of international treaty-making, dislikes treaties being made if there's some reason they shouldn't have been

2/ Image
This is because once made, VCLT expects treaties to be kept to, big time

Pacta sunt servanda, etc

3/
Read 12 tweets
May 6
While we wait for #AE22 #NI22 results, here's a quick run-down of Northern Ireland Protocol-related things, that might be of use in the weeks to come

1/
First up, there are only a limited number of options open to UK govt to change/remove the NIP, under international law or the Protocol itself

2/
One of those options is our old friend, Art.16 NIP on safeguards

Short-term, ltd suspension to have talks, nothing more

3/
Read 10 tweets
Apr 28
Let's have a look at the govt's plans for the Northern Ireland Protocol, and why they aren't viable under international law

1/
As you'll know, the govt is mulling a new piece of legislation to somehow disregard or disapply parts of the Protocol, with details likely coming after the Queen's speech next month

2/
bbc.co.uk/news/uk-northe…
I know we've been here before, but it's still useful to consider the position in international law

So time for some diagrams

3/
Read 28 tweets
Apr 22
Late last year, I wondered whether UK was moving to a less-antagonistic approach to its EU relations, given failure of its previous high-stress model

Does this still hold?

1/

open.ac.uk/blogs/EUatOU/i…
I'd argued that going all Violet Elizabeth Bott [GIYF] wasn't sustainable in long-term, so shifting to language of trying to work things out together (even if that didn't produce results) both parked it and avoiding final commitment to WA/TCA

2/
You could see Truss's attendance at Council over Ukraine as an example of pragmatic cooperation, even as problems with Northern Ireland remained in play

3/
Read 13 tweets
Apr 22
Right, what I think is happening here is that someone has come up with a cunning plan around Art.18 NIP consent provisions, so let's have a look at these, shall we?

1/
Coincidentally I wrote about these earlier in the month, so all the info is to hand

(Yes, I will be trying to count this as Impact in #REF27)

2/
Per @pmdfoster's piece, plan looks like either withholding results of a NI Assembly vote, or avoiding one happening. This hangs on the need for at least a majority of MLAs to support continuing application of Arts.5-10 of the NIP

3/
Read 11 tweets
Apr 20
Some more comparative data on speed of EU accession

tl;dr speed now for UKR probably means delays later

Data: docs.google.com/spreadsheets/d…

1/
As graph shows, EU accession has never been fast

Finland is currently record-holder, at 2yrs, 10mths: and that for a country with robust political institutions, comparable GDP/capita, and completed negotiations on heart of then-activity (via EEA)

In short, very well-placed

2/
So Finland can be our benchmark for procedural speed

But UKR isn't Finland, so important to look at enlargements since then

And that's less promising

3/
Read 17 tweets

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