The UK government has now published both the text of the Northern Ireland Protocol bill and a summary of its legal arguments. The main plank of the government’s case for why it isn’t breaching international law rests on the doctrine of necessity. The government document states that ‘the term ‘necessity’ is used in international law to lawfully justify situations where the only way a State can safeguard an essential interest is the non-performance of another international obligation. Under conditions defined in Article 25, the action taken may not seriously impair the essential interests of the other State(s), and cannot be claimed where excluded by the relevant obligation or where the State invoking it has contributed to the situation of necessity.’
This argument will face two major challenges. First, that the UK signed the protocol. Second, that Article 16 of the Protocol does provide a safety valve and that the UK should have invoked that rather than going down the path of unilateral legislation.
The EU have indicated that they will now look at restarting legal proceedings against the UK for not fully implementing the Protocol. They also say that they will set out their own view for ‘flexible implementation of the Protocol’. But they remain adamant that they will not renegotiate it.
At the moment, it is hard to see how there won't be a smash between the Johnson government and the EU. Both sides are too fixed in their positions to move. But this bill will take its time to work through Parliament, meaning that there is still months –maybe longer – before all this comes to a head