Derrick Berthelsen: EU could respond draconically without breaking the law.

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By Derrick Berthelsen

The UK Government has said that if the EU does not agree changes to the Northern Ireland Protocol in line with the Command Paper published in July, it will trigger Article 16. I do not expect the EU to agree any substantial reform. A quick explanation on when and why I would trigger it

The DUP has stated that unless the EU agree reforms to the NIP it will pull out of the NI Executive essentially pulling down Stormont with a November 2021 deadline. I expect the DUP to act at the end of November.

The UK Government should then trigger article 16 (beginning of December) being able to declare that the bar for Article 16 has been reached both through trade diversion AND, following the collapse of Stormont, also societal disruption that is likely to persist.

The advantage of tying societal disruption to the Unionist pull out of the NI Executive over the NIP is that any subsequent agreement reached between the EU & UK will have to have Unionist approval for Stormont to be operational again.

It also demonstrates to the Republic of Ireland – including the EU & USA – that this is not simply a UK Government decision/view that the manner in which the EU is insisting the NIP is implemented is threatening the GFA, but actually the view of the Unionist community in Northern Ireland.

Triggering Article 16 sets the clock running on month long talks between the UK & EU to try to reach a deal which will be acceptable to the Unionist community taking the date for actual action into 2022.

Assuming no agreement between the UK & EU during that month (I expect none), the UK will act unilaterally to operate the border between GB/NI in a manner which will see the trade diversion reverse & the Unionist community satisfied.

The EU (& ROI) will then have to demonstrate some material loss/ negative effect on their SM & to NI society in order to justify why the UK’s unilateral method of implementation should not be allowed to continue.

I think the EU, ROI & NI nationalists will have great difficulty demonstrating how & why the UK’s implementation is detrimental to the people of NI or indeed the island of Ireland as a whole

Meanwhile we will be getting closer to 2024 when the people of NI will have a say on whether to keep the NIP or get rid of it altogether.

I think EU will have a hard job persuading the people of NI not only that NIP must stay (& with it the border between GB & NI), but also that the implementation of NIP must return to the situation prior to UK triggering Article 16 which caused Stormont to collapse.

Since I published my thread on how, when & why I would trigger A16, I have received a lot of responses suggesting UK would be acting illegally by doing so &/or EU could respond draconically without breaking the law.

Apparently when UK acts unilaterally in NI over trade diversion, EU is going to argue that it should be allowed to gain redress for its loss of (diverted) trade in NI which it never should have gained under the terms of the very legal document they will accuse UK of breaking

A reminder, NI Protocol states: “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures”

In other words, the NI Protocol explicitly states that trade diversion is not an intended consequence of it’s implementation. And if it occurs, the UK is within it’s rights under that legal treaty to take whatever safeguard measures it sees fit to “remedy” the situation.

The NI Protocol also states: “If a safeguard measure taken by the Union or UK…creates an imbalance between the rights & obligations under this Protocol, the Union or UK…may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance”

In other words, EU could respond to the UK acting unilaterally by taking rebalancing measures. But how could the EU apply measures to rebalance for a loss of (diverted) trade that they agreed in a legal document cannot be the result of the implementation of the NI Protocol?

Is the EU really going to say the UK has identified Β£x m of trade divergence which we signed a deal to say couldn’t happen but now it has happened we are insisting on Β£x m of tariffs to pay us back for Β£xm trade divergence we never should have had & have now lost?

Outside the NIP others have argued that the EU could immediately retaliate on EU/UK trade via the TCA. But that is again untrue.

The TCA and NIP (whole WA) are separate legal treaties because the EU insisted they should be. There is no legal link between the two.

And if the EU wishes to take action against the UK via the TCA they can do so. But only in time. If they wish to suspend part(s) of the TCA they must give 9 months’ notice. If they wish to scrap the whole agreement they must give 12 months’ notice.

Of course this doesn’t prevent the EU acting illegally…

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