Last night, the Government published its legal position on why, in its view, its decision to proceed with legislation to set aside parts of the Northern Irish Protocol will not breach international law.
There is a throwaway reference to Article 16, which doesn’t matter because the Government is not proposing to trigger Article 16. The crux of the actual case hinges upon something called the “doctrine of necessity”. Here is their definition:
“…the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation.”
In this case, the essential interest is purportedly the proper functioning of the Belfast Agreement; even partial implementation of the current Protocol has alienated Unionism and jammed the devolved institutions in Northern Ireland.
Certainly, it seems deeply questionable to assert, as the Government does in its above-linked position, that “the peril that has emerged was not inherent in the Protocol’s provisions”.
This is a puzzling assertion, to say the least. In what universe was the Protocol ever unproblematic? One where Unionists simply rolled over for whatever reason and raised no objections?
But the Government has to make it, because Boris Johnson signed the Protocol and most of his MPs backed him in doing so.
That means they can’t make the best, most cogent case against it, which is that it is fundamentally flawed and undermines Northern Ireland’s position in the United Kingdom. Not when the Government is busy fighting David Trimble in court and insisting that yes, it really did override the Act of Union.
So instead we get this position, which seems to amount to the argument that there is nothing wrong with the Protocol in theory, it’s just in practice that everything is on fire. (In this respect, they sound a lot like the old defenders of the Fixed-term Parliaments Act.)
But if the idea that the problems with the Protocol were unforeseeable is not convincing, the argument of exigent circumstances seems more so.
The Loyalist Communities Council has already walked away from the Belfast Agreement altogether. All the major Unionist parties are demanding change. Stormont has fallen over, again.
The Protocol (and the sea border) is putting Ulster’s devolution settlement under enormous pressure.
Nobody reasoning in this spirit is going to concede that a slow-burning crisis rooted in Unionist anger meets whatever the criteria for ‘necessity’ are. That is for their crises, not yours.
But the case for action on the Protocol to protect the overall settlement – which means keeping unionists on side, whether the nationalists and the Alliance Party like it or not – seems pretty solid. Even Tony Blair concedes it.
And if we accept that the Belfast Agreement is one of the most important undertakings of the British State – which in most circumstances we are encouraged to do – then the Government is doing nothing which the Federal Constitutional Court in Germany has not already done in much more explicit terms: setting fundamental constitutional obligations above international legal ones.
But will that matter? Probably not. Because ultimately, given that the relevant players are sovereign actors rather than subjects of a sovereign authority, this is all politics, and power politics at that. One doesn’t need to push most advocates of the Protocol very hard to get arguments that owe more to the Melian Dialogue than any airier principle.
That the Prime Minister is currently in a position to win a contest of strength with Brussels is, at the current moment, not obvious.
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Author: Henry Hill
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