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Andymac1951 wrote on Wed Jun 23, 2021 12:51pm:
An alternative view on the NI Protocol
The Northern Ireland Protocol is not, as is often made out, a set of clear and unambiguous rules, but a set of contradictory objectives. It aims to keep the North/South border open, but also, secure. To achieve that, it introduces oversight on the East/West border, while maintaining the...
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... UK’s territorial integrity (Article 1) and its single customs territory (Article 4).
Since those objectives are internally contradictory, the Protocol cannot detail precise rules and mechanisms. It doesn’t even try. The precise mechanism is left to a Joint Committee (JC). The JC’s job is to find a practical way of resolving the contradictory aims, in the least intrusive way possible. This is how it is described in the Protocol (see Article 6):
Having regard to Northern Ireland's integral place in the United Kingdom's internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof. The Joint Committee shall keep the application of this paragraph under constant review and shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.
The output of the JC is not hard law, but a series of operating rules, designed to balance conflicting objectives. Inherently, these rules develop with experience and time, and can only work within a relationship characterised by good faith.
The JC agreed that the UK would apply customs checks on East-West traffic, after a grace period. Now, as it happened, the customs facilities and processes weren’t ready in time, so the UK requested an extension. The consequences of immediately applying full customs checks were clear: there would have been food shortages in Northern Ireland. Yet the EU said “no”.
The problem is, the answer isn’t “no”. “No” is the wrong answer. Wrong as in incorrect. If the new procedures aren’t ready, “no” means restricting food supplies, which is unacceptable and contradicts the Protocol’s objective to establish the UK’s territorial integrity and single customs territory. The answer can only be “yes, provided you agree to xyz and stick to it” or “yes and screw you”. If the former, the EU can prosecute the UK (if it wants) for not adhering to xyz.
On this basis, since the EU’s “no” would (if obeyed), force a violation not only of the Protocol, but also, the Good Friday Agreement and the Act of Union and disrupt food supplies to Northern Ireland, the decision to ignore the EU’s “no”, would appear to be reasonable, proportionate, lawful and consistent with the Protocol.
Therefore, the UK hasn’t broken any law. It simply ignored the EU saying “no” to the suggestion of extending the grace period. The diktat the UK overrode, isn’t some sacrosanct article, but someone saying “no” in a committee. And if the UK had respected the EU’s “no” it would have violated a principle of law. Several laws, in fact.
What about the proposed export ban on vaccines? Well, that’s different, because unlike the UK’s actions in regard to the Protocol, that would violate some very sacrosanct principles of law.
For a start, it would override the ability for suppliers to meet their contractual commitments to their customers, thus interfering with contract law. More seriously still, it would violate the General Agreement on Tariffs and Trade (GATT).
Article XI forbids any prohibition on the exportation of a product destined for the territory of another WTO member. Article XI provides an exception to allow export bans to prevent or relieve critical shortages of products essential to the exporting party. In addition, Article XX, states that nothing in the agreement can be construed to prevent measures necessary for the protection of human life and health.
But the measures being considered by the EU Commission, cannot be defended in this way. They cannot be defended (under Art XI) as measures to prevent or relieve critical shortages of products essential to the EU, if they are concerned with vaccines of which there are ample surplus supplies within the EU not being used. In that case there is no critical shortage. Nor, for the same reason, can they be defended (under Art XX) as necessary for the protection of human life and health.
Note that the EU’s proposed criterion for banning exports is that the recipient country has a “higher rate of vaccination”. It is not about relieving critical shortages at home, but about targeting countries that are ahead of the EU. The rationale for the policy is therefore nothing to do with securing critical supplies, but “we’re going to punish you for embarrassing us”.
It appears what the Commission has in mind therefore, is to ban the export of supplies which, though not needed for the protection of life and health in the EU, are needed for the continued vaccine rollout in Britain. This would be the plainest possible violation of both the letter and the spirit of international law.
It is also just the kind of blurring of the borderline between trade policy and warfare that was so beloved of the pre-war fascist regimes. It is why the post-war world established international trade rules.
A thoughtful and succinct comment and well put together arg
