Is there any plausible reading of the DoT terms of the Northern Ireland Protocol under which they are not self-defeating?

Question

Under the Protocol the UK government is responsible for applying checks on goods entering NI from the rest of the UK to ensure that goods destined for the Republic of Ireland meet EU regulations. This is to avoid a "hard border" between the Republic and NI - i.e. avoid any need for checks at the land border.

Article 16 of the Protocol states that "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. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It may be noted that "or diversion of trade" is a separate clause. It is not "serious diversion of trade which is liable to persist" but just "diversion of trade".

"Diversion of trade" has a recognised meaning and is specifically related to customs checks and restrictions. If additional barriers are erected on trade route A, that results in less trade through A and more trade through trade route B so that there is a "diversion of trade".

In the months since the Protocol came into force there has been diversion of trade, particularly in the case of agriculture and food, with many Northern Ireland businesses switching suppliers from those elsewhere in the UK to those is the Republic of Ireland because goods can be transported across the land border without any checks whereas goods arriving in NI from the other side of the Irish Sea are subject to checks which add to expense and delay.

There has been significant disruption to longstanding trade flows between Great Britain and Northern Ireland, and a significant, measurable increase in trade on the island of Ireland. The value of Ireland’s exports of goods to Northern Ireland is trending far above historical levels in 2021: up by nearly 40% this year compared to the same period in 2020, and by more than 50% on the same period in 2018. Some sectors particularly susceptible to that diversion, such as food and pharmaceuticals, have experienced even stronger growth. Meanwhile, as set out above, surveys continue to underline the disruption being caused to business with Great Britain, with movements of specific commodities (such as chilled meats) seeing particular impacts.

Northern Ireland Protocol: the way forward, July 2021, CP 502 p.29

This diversion of trade has happened notwithstanding that we are currently in a "period of grace" before the customs checks required by the Protocol have been fully implemented.

The appropriate safeguard measures which a party is entitled, under Art 16, to unilaterally apply are restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. So a party acting unilaterally cannot go beyond what is strictly necessary but it can do whatever is strictly necessary to remedy the situation - "remedy" not just ameliorate.

It seems clear that the diversion of trade condition in Article 16 is bound to arise almost immediately from the implementation of the customs checks which the Protocol requires so that the agreed terms are apparently self-defeating i.e. in respect of every class of goods implementation of the checks which the Protocol requires immediately leads to conditions which entitle a party to unilaterally give notice that it will not carry out the relevant checks which the Protocol would otherwise require on that class of goods.

Generally you expect a treaty to commit the parties to carry out actions for a number of years. There will often be clauses allowing for derogation in certain circumstances but they will be circumstances which the parties think unlikely - but not zero risk hence the need to build in a safety valve. If a clause allows derogation in circumstances which are quite likely (but not certain) then the treaty still may be perceived to have some effect. But if you had a clause allowing derogation in circumstances which are actually the inevitable consequences of actions which the treaty requires, the terms would then appear to be be self-defeating.

Am I missing something here? Is there a possible reading of the diversion of trade terms of the Protocol which would mean that the diversion of trade* terms are not inevitably "self-defeating".

Answer 1

Frankly it's not clear to me what you mean by "self-defeating", but since you keep posting these Qs about that article 16, it's worth noting that it has 3 paras, the 2nd one of which entitles the other side to retaliatory measures when safeguards are invoked.

Safeguards

1. 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. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
2. If a safeguard measure taken by the Union or the United Kingdom, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the United Kingdom, as the case may be, may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this Protocol.
3. Safeguard and rebalancing measures taken in accordance with paragraphs 1 and 2 shall be governed by the procedures set out in Annex 7 to this Protocol.

It's also worth noting that unlike (say) the retaliatory measures allowed by the WTO, which need to be approved by the latter's dispute resolution body, and typically are only so when the safeguards were unjustified... there's no such predication in the NI Protocol. The wording for para 2 is also fairly vague, i.e. retaliation ("proportionate rebalancing") is allowed if the safeguard "creates an imbalance between the rights and obligations".

There's in fact a (nearly) symmetric procedure for both sides to follow, outlined in the Annex indicated by para 3, however, it seems it's rather shallow/hollow.

PROCEDURES REFERRED TO IN ARTICLE 16(3)

1. Where the Union or the United Kingdom is considering taking safeguard measures under Article 16(1) of this Protocol, it shall, without delay, notify the Union or the United Kingdom, as the case may be, through the Joint Committee and shall provide all relevant information.
2. The Union and the United Kingdom shall immediately enter into consultations in the Joint Committee with a view to finding a commonly acceptable solution.
3. The Union or the United Kingdom, as the case may be, may not take safeguard measures until 1 month has elapsed after the date of notification under point 1, unless the consultation procedure under point 2 has been concluded before the expiration of the state limit. When exceptional circumstances requiring immediate action exclude prior examination, the Union or the United Kingdom, as the case may be, may apply forthwith the protective measures strictly necessary to remedy the situation.
4. The Union or the United Kingdom, as the case may be, shall, without delay, notify the measures taken to the Joint Committee and shall provide all relevant information.
5. The safeguard measures taken shall be the subject of consultations in the Joint Committee every 3 months from the date of their adoption with a view to their abolition before the date of expiry envisaged, or to the limitation of their scope of application. The Union or the United Kingdom, as the case may be, may at any time request the Joint Committee to review such measures.
6. Points 1 to 5 shall apply, mutatis mutandis, to rebalancing measures referred to in Article 16(2) of this Protocol.

Unlike safeguards which need a one-month notice (unless there are exceptional circumstance) there's like not even that provision for "rebalancing measures", which can basically be taken right away, in response. There's even less documentation required for rebalancing than for invoking safeguards (not that that is terribly well spelled out.) Sure, they have to meet to discuss them every 3 months... after the fact.

So, if I'm allowed to be glib, article 16 says little more than "you can start a trade war, but we can retaliate". If there's criticism to be had of Art 16 is that it's pretty vague overall, and that NI Protocol dispute resolution, which is actually based on the mechanism of the Withdrawal Agreement (see art. 167-181 in the latter), is itself untested. (As we saw with the WTO who appoints the judges ended up being a big deal, that nearly scuppered the organization.)

Answer 2

No it's not self defeating. The checks could maybe be so non-intrusive that no significant diversion of trade would be observed. Or the diversion of trade actually happens but for a different reason and even reversing the checks might not undo the diversion, it might already have become a new normal or even just an expression of changed expectations.

Article 16 of the Northern Ireland protocol is a safeguard. However, it's not a one way street and therefore would only be invoked if there is a rather serious problem. If however the problems can be solved by other means or remain manageable, it may be better to not invoke it. It's not self-defeating in that way, rather it's like an insurance where the other side has an insurance too. In the end, there is the Good Friday Agreement that is risked of being given up.