By Pedro Madeira Froufe (Editor) 

▪

Brexit: “Protocol on Ireland/Northern Ireland”

1. On May 5 of this year, elections were held for the Northern Ireland Assembly, the regional parliament usually referred to as Stormont (by allusion to its physical space, the Stormont Castle). In fact, since the separation (“partition”) of the island of Ireland into Northern Ireland and the Republic of Ireland, as we know them today, the regional legislative power is concentrated in that Assembly. This is a democratically elected single-chamber unicameral body consisting of 90 members since 2016. In addition to exercising legislative power, the Assembly is also responsible for electing the Northern Ireland Executive.

The most recent Assembly elections resulted in the first victory for a party representing the republican and catholic “cluster” in the 101 years of existence of autonomous Northern Ireland (“post-partition” of the island, which occurred in 1921). In fact, Sinn Féin, the party that wants the reunification of the island of Ireland into one state and independence from the United Kingdom, won 27 seats in the Assembly against the 24 won by the Democratic Unionist Party, the DUP. We will not analyze, for now, the rationale behind this unprecedented victory of the Catholic Republicans which, for many analysts, represents a “seismic” result, opening the way to a possible rupture in politics and, consequently, in Northern Ireland society.^[1]

However, to understand the governance difficulties and the political impasse created, which serves as a “justification” for the unilateral measures explained below, one must bear in mind that since 2006, in Northern Ireland, the First Minister and Deputy First Minister have been appointed as the leaders of the traditionally two largest parties in Northern Ireland (DUP – Democratic Unionist Party and Sinn Féin). Before 2006, they were elected in a ballot between the communities (Protestants and Catholics or, respectively, Unionists and Republicans) that correspond to the two major political and sociological “clusters” in Northern Ireland (Ulster).

The Unionists, who are Protestants, want the region to be merged with the United Kingdom, while Catholics and Republicans want the unification of the island. In fact, due to historical and political contingencies that we will not touch on now, this Assembly was suspended between 2002 and 2007, but elections were held in 2003. The so-called Northern Ireland Act of (May) 2006 meant that the members elected in 2003 to the Assembly were summoned to choose a government, electing a first minister and a deputy first minister. There are several Irish specificities and some significant political peculiarities that can actually be grasped more easily through historical background. The Northern Ireland Act was eventually repealed in (November) 2006 through the so-called St. Andrews Agreement which provided for a “transitional Assembly” to prepare for the so-called “devolution of powers” from the British Parliament to Northern Ireland.^[2]

2. The current political system in Northern Ireland was built on the “Belfast/Good Friday Agreement” (April 10, 1998) that put an end to more than three decades of bloody civil war that had been going on since the 1960s. It is important to remember that Northern Ireland was the scene of a virulent war between Protestant, conservative Unionists (pro-integration with the United Kingdom) and Catholic, independentists, whose armed force was the IRA (Irish Republican Army).

This civil war – euphemistically called “the Troubles” – brought terror and underdevelopment to a Northern Ireland martyred by violence and which remained, thus, stagnant, in the second half of the 20th century. It was a time, for Northern Ireland, of mere survival, struggling with a war that marked generations of Irish people. A civil war that caused at least 3500 deaths in attacks, urban guerrilla warfare and indiscriminate violence. Indeed, the peace achieved in 1998 did not erase the scars of war between the two great political communities and sociological groups. In exchange for the IRA’s disarmament, the release of terrorists (imprisoned IRA members) took place, as well as a pledge to surrender and renounce the armed struggle. In fact, this apparent pacification was the minimum survival condition for a fractured community that never managed to overcome the idiosyncrasies and irrationalities inherited from its history. Pacification in Ulster did not correspond to integration between Catholics and Protestants, between Unionists and Independents, and on both sides the temptations for violent action were apparently only latent (a latent control which does not seem to have corresponded to effective sociological integration).

Sinn Féin, with its socialist and anti-capitalist ideological basis, and DUP, a unionist and conservative party, have never grasped the limits and difficulties of a mere, almost imposed, governmental coexistence; the existing antagonisms have never definitively allowed a consensus on what could be the general interest of the whole community, in a supra or trans-partisan perspective. And these differences of historical origin, worldview, and positioning in relation to the United Kingdom and the Republic of Ireland also manifest themselves in relation to the Brexit Agreement.^[3] In fact, the Agreement – which includes a specific Protocol in relation to Ireland/Northern Ireland^[4] – has proven to be, since its entry into force in 2021, a source of tension both between the two main political and sociological clusters in Northern Ireland, and between the European Union and the British government in the context of the Brexit process.

3. One may ponder: what is the major concern behind the “Brexit Agreement” regarding the Irish question? And what was the solution devised (and indicated in the mentioned Protocol)?

The concern is expressed in the “Recitals” of the Protocol, where one can read:

“(…) it is necessary to address the unique circumstances on the island of Ireland through a unique solution (…)”.

“(…) the Good Friday or Belfast Agreement of 10 April 1998 between the Government of the United Kingdom, the Government of Ireland and the other participants in the multi-party negotiations (the ‘1998 Agreement’), which is annexed to the British-Irish Agreement of the same date (the ‘British-Irish Agreement’), including its subsequent implementation agreements and arrangements, should be protected in all its parts”

“(…) Irish citizens in Northern Ireland, by virtue of their Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this Protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship (…).

“(…) the Union’s and the United Kingdom’s shared aim of avoiding controls at the ports and airports of Northern Ireland (…)”.

In addition to the aforementioned “Recitals”, Article 1 (3) states the objectives of the Protocol as being, first of all, the need to establish the necessary provisions “to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions.”

Thus, the great concern is to maintain the peace (even if fragile) achieved with the “Good Friday Agreement”, avoiding, also and for this purpose, the establishment of physical borders within the island.  The Border Issue – of the administrative and territorial division between the Republic of Ireland and Northern Ireland – will also have a strong symbolic and psychological dimension, besides, of course, the concrete legal problems and the operational issue of (physical) separation between populations that, under the standpoint of their respective citizenships, may be indistinctly installed on both sides of these possible borders.

4. The general structure of the solution is as follows: Northern Ireland continues to apply some Union rules from a commercial point of view, particularly in relation to goods. In short, the “free movement of goods” applies to a significant extent to Northern Ireland, which therefore enjoys a special status in the context of the United Kingdom: it benefits partly from the European “free movement of goods” and at the same time remains part of the “Customs territory of the United Kingdom” (Article 4 of the Protocol).

Thus, in final terms, the customs control of goods that will have to be carried out will basically concern the movement of goods between the United Kingdom (excluding Northern Ireland) and the Republic of Ireland (and territories where the European “free movement of goods” exists). And, to this end, it is permitted to implement customs control at “entry points”, preferably on the Irish Sea, between England (the United Kingdom) and the Republic of Ireland or at Northern Ireland ports through which goods from the rest of the United Kingdom enter. Above all, no borders, nor land customs controls, are established within the island itself. In any event, following the logic of avoiding direct, physical controls which in practice mean or suggest a border between the Republic of Ireland and Northern Ireland, the United Kingdom must ensure that the relevant sanitary and phytosanitary controls for the purpose of the application of the Protocol are carried out in respect of goods entering Northern Ireland from the rest of the United Kingdom.

It is therefore understood that the implementation of the Protocol as regards Northern Ireland is the sole responsibility of the United Kingdom under Article 12(1) of the Protocol. However, the European Union should be able to monitor the implementation of the Protocol by the competent authorities of the United Kingdom, and therefore, under Article 12(2) of the Protocol, the presence of the Union is assured during the activities of the United Kingdom authorities implementing the Protocol in question.

5. Without going into the technical details of the functioning of this protocol mechanism for the moment, which meets the political aims of avoiding physical, land controls on the territory of the Island of Ireland, it is important to note the following:

• There is a solution that has been designed and is enshrined in an act of international law; we are in the domain of conventional international relations, between the Union and the United Kingdom.
• On the other hand, the Unionist faction in Northern Ireland (the aforementioned DUP) has always been uncomfortable with the ingenious (and not very straightforward, nor simple) solution found to safeguard, within the “Brexit Agreement”, the “uniqueness” of Ireland (the aforementioned “Protocol on Ireland/Northern Ireland”). This party believes that, in any case, from a unionist perspective, the Protocol’s solution still undesirably separates Northern Ireland from the rest of the United Kingdom.
• Also, one can say – apart from relatively recent statements by political leaders –  that the Unionists and the DUP have never been unconditional supporters of the “Good Friday Agreement” of April 10, 1998, either. At least – we believe this is the perception of most analysts – they have never felt very reassured by such settlements, as they leave the door open for the possibility of reunification of the whole island and the consequent estrangement from the UK. 

What has been happening lately since the election that gave victory to Sinn Féin is a reaction from the DUP that is trying, through the threat of political deadlock, to force the revocation of the “Brexit Agreement”, at least as far as Northern Ireland is concerned. The Protestants and Unionists have always been in favor of Brexit and are now conditioning their participation in the coalition government, on its dissolution or unilateral modification of such an Agreement and in particular the “Protocol on Ireland/Northern Ireland”.

6. On May 17, Secretary of State for Foreign, Commonwealth and Development Affairs and Minister for Women and Equalities in Prime Minister Boris Johnson’s government announced the United Kingdom’s political will to amend the “Protocol”, even hinting at the serious possibility of its government doing so unilaterally, through domestic legislation – therefore, outside of negotiations and agreement with the European Union. The immediate pretext was the need to simplify procedures and make it easier for British companies to do business. In fact, Liz Truss, before the House of Commons, said that the current “Protocol” introduces pressure on the “Good Friday Agreement” and furthermore – justifying the possibility of unilateral changes – the implementation of the “Protocol” has brought unanticipated problems and creates an overload of bureaucracy for companies transporting goods between Great Britain and Northern Ireland.  It should be noted that in the “Protocol” there is an exceptional safeguard clause (or, using the title of such rule, “Safeguards”), allowing the partial and unilateral suspension of the “Protocol” if it causes serious economic, social or environmental difficulties or a diversion of trade. This is Article 16 of the “Protocol on Ireland/Northern Ireland” which, incidentally, even before Liz Truss’ statements, had already been publicly referred to by the government of Boris Johnson^[5].

7. Such a possible unilateral legislative change, suggested by Truss, or even a unilateral abrogation of the “Protocol” and thus the disregard of the “Brexit Agreement” (in which the aforementioned “Protocol” is inserted) would ultimately be understood as a clear violation of conventional international law. Somewhat ironically, in the midst of the Ukraine war, in essence, the British government risks incurring, like the Russian Federation and Putin, a clear violation of the established international order.

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[1] António Saraiva Lima, “Sinn Féin anuncia «nova era» após vitória «sísmica» nas eleições na Irlanda do Norte”, Público, May 7, 2022. Available at: https://www.publico.pt/2022/05/07/mundo/noticia/sinn-fein-anuncia-nova-apos-vitoria-sismica-eleicoes-irlanda-norte-2005323  (26.05.2022)

[2] These particularities of Northern Ireland’s political and institutional history – which always reflect a perilous balance (or permanent attempt to maintain such balance and coexistence) between Northern Ireland’s two major “clusters” – are described and analyzed in extensive literature. As topical references, we may indicate, inter alia, the following websites:

– http://www.niassembly.gov.uk/ : “Information Office, Northern Ireland” (official website of the Northern Ireland Assembly. 26.05.2022)

– “Archive Site – The Northern Ireland Assembly – History”: Welcome to the Northern Ireland Assembly Archive (niassembly.gov.uk) (26.05.2022)

– https://stringfixer.com/pt/Northern_Ireland_Assembly (26.05.2022)

[3] “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” – Official Journal of the European Union, 31.01.2020, Series L/29, p.7 et seq.

[4] “Protocol on Ireland/Northern Ireland” as part of the “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union” – Official Journal of the European Union, 31.01.2020, Series L/29, p. 102 et seq.

[5] Article 16 – “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.” These “safeguards” should be put in place respecting, in any case, the requirements always demanded by the Court of Justice of the European Union, in order to respect the principle of proportionality (necessity, adequacy and proportionality stricto sensu).

Picture credits: Elionas2.