Upendra Baxi writes: The country’s PM, who jointly with the EU created the Protocol, now wishes to undo it by appealing to the fragility of peace in Northern Ireland.
It is perhaps useful to understand the worlds of thought and action, to distinguish between two paradigms of understanding that I name as the BAUP and CACP (respectively, “business as usual” and “crisis and contingency”). Forces of law and order usually follow the first, and forces of change the second. The foremost axiom of the BAUP is “closure” (let past injustice stories end, or the chalta hai culture). The CACP reverses this by saying no to “closure” and refuses to terminate stories of injustice. The world lurches from one paradigm to another.
Let me mention just two recent instances. The Russian war in Ukraine is now governed by BAUP; gone is the CACP predicting a quick nuclear end of the world. The second example relates to vaccine inequality during the pandemic. Almost the entire Third World, and many global citizens and social movements, supported the request of South Africa and India to the WTO for granting a TRIPS waiver from the hard intellectual property regime; but it is, on present reports, unwilling to do so.
I explore here briefly the unending narratives of the British government’s proposed law radically modifying the Northern Ireland Protocol. After Brexit, a new system was needed because the EU has strict food rules and requires border checks when certain goods — such as milk and eggs — arrive from non-EU countries. It is well-known that special trading arrangements were needed for Northern Ireland after the UK voted for Brexit in 2016 because this is the only part of the UK with a land and sea border with an EU country — the Republic of Ireland. But the border issue between the two is a complex, delicate part of the Good Friday Agreement and can raise fears about “instability” that cameras or border posts, as well as any other security measures, may cause. The Protocol now rules that inspections and document checks would be conducted between Northern Ireland and Great Britain (England, Scotland, and Wales) at Northern Ireland’s ports. It was also agreed that Northern Ireland would keep following EU rules on product standards.
In a somersault from the negotiated positions in the Protocol, the UK now wants to modify it by creating green lanes (for trusted traders transporting goods to Northern Ireland and exempt from checks and customs controls) and red lanes (meant for products destined for the EU, including the Republic of Ireland, which will undergo full checks and customs controls). Further, the Bill would remove tax restraints on Northern Irish businesses currently governed by EU rules on state aid and VAT rules. Even more, the UK government wants to substitute the European Court of Justice with an independent body to settle disputes over the Northern Ireland Protocol.
Thus, the UK’s position is that its new parliamentary law is necessary for the survival of the Good Friday Agreement and peace in Northern Ireland, and it can change the terms of the Protocol to “safeguard an essential interest”. But even Sir Bob Neill, a conservative peer, has alerted against “tarnishing” Britain’s “reputation for upholding the law”.
It is sadly true that politics deploys the law both for creating crisis and change and in rendering the catastrophic as the “new normal”. The UK PM, who jointly with the EU created the Protocol, now wishes to undo it by appealing to the fragility of peace in Northern Ireland. This is strange. While the Democratic Unionist Party wishes to largely “scrap” or “overhaul” the Protocol, the leading “nationalist parties and the Alliance Party say that it remains vital to stop a hard border, protect peace, and ensure prosperity”. And we must recall that all this occurs while Ukraine burns under pervasive Russian attacks! The BAUP saga remains a never-ending story.
In response, the EU’s position is that revising the Protocol cannot be a solo enterprise since no international agreement, once entered into, may be changed unilaterally. Article 26 of the Vienna Convention on the Law of Treaties provides that “every treaty in force is binding upon the parties to it and must be performed by them in good faith” and Article 27 says that a “party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. The government justifies the change by recourse to the “doctrine of necessity” as providing “a clear basis in international law to justify the non-performance of international obligations under certain exceptional and limited conditions”. However, it is settled normatively that the states may enjoy sovereignty within international rule of law, and not beyond it.
The EU has not yet started legal proceedings nor adopted a strategy of “trade war”. Wisely, it proposed a return to negotiation for two months beginning June 15. No “meaningful discussions” were held” since “February concerning suggestions for improving how the protocol is implemented”, including: (1) “reduction of customs and sanitary checks on goods going from Great Britain to Northern Ireland”; (2) reduction in “the amount of “paperwork for agri-food shipments” to a “three-page document per lorry”; and (3) relaxation of rules regarding “chilled meats, such as sausages” which, could still “be sent across the Irish Sea”.
How far will the British parliament go along with the government’s proposal is anyone’s guess, as is the fate of any litigative options by the EU before the European Court of Justice in case a Protocol were to be unilaterally changed or rescinded. A litigation path will be long and arduous. The ultimate takeaway for those who suffer the vagaries of governance is the astonishing capacity of the state to convert the catastrophic into normal and normal into problematic. If such be the visages of power, what then are the images of justice?
(The writer is professor of law emeritus, University of Warwick, and former vice-chancellor of Universities of South Gujarat and Delhi)-
Source: Indian Express.