How the US Affects the Northern Ireland Protocol of Brexit

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At the end of November, the United States Department of Commerce informed the British government that bilateral talks on lifting Trump-era tariffs on steel and aluminum could not move forward. The reason for this was that the British government’s continuing threats to breach Northern Ireland Protocol would harm the citizens of Northern Ireland.

Meanwhile, the US government survey tariffs of 25% on steel and 10% on aluminum to European Union manufacturers. The disparate treatment reported the consecutive treatment of BREXIT in the United States. It was a slap in the face from British Prime Minister Boris Johnson.

After the conclusion of a withdrawal agreement with Brussels, including one protocol on relations with Northern Ireland, Johnson stepped onto the world stage to demonstrate that Britain was a global player. It hosted the G7 in Cornwall and COP26 in Glasgow, bringing world leaders to British shores with the pomp associated with royal parades. As world leaders were embroiled in critical negotiations, the ongoing dispute with Brussels over the protocol was shelved. Now that the world matinees are over, it is time to prepare for the evening performance: aggravation of the dispute with France and resurgence of threats to revoke the protocol by recourse to its article 16.

Article 16 of the Northern Ireland protocol allows Westminster or Brussels to take unilateral “safeguard” measures if either party concludes that the protocol causes serious “economic, societal or environmental hardship or “diversion of trade” likely to persist. Neither the word “serious” nor the meaning of “diversion of traffic” is defined.

In July, Lord David Frost, the British negotiator declared that the threshold for the application of Article 16 had been reached. But the government chose not to use the safeguard, leaving more time to negotiate with Brussels. Maroš Šefčovič, the EU’s chief negotiator makes concessions, allowing food and pharmaceuticals to cross the Irish Sea without tariff controls as long as these goods remain in Northern Ireland. However, goods whose final destination was the Republic of Ireland, and therefore the EU, were subject to regulatory control. Negotiators appeared to be focusing on goods that would enter the EU and be consumed in Northern Ireland. Meaning prevailed.

Next, Johnson raised a new hurdle, namely the jurisdiction of the European Court of Justice over the people of Northern Ireland. According to the Prime Minister, the jurisdiction of this court in Northern Ireland would undermine British sovereignty and is unacceptable. Brussels argued that the tribunal ensured the protection of the human rights of Northern Irish people. How could these rights protect the people of the Republic of Ireland, but not apply to the people of Northern Ireland? The deadlock was glaring. Pragmatic solutions could be found for charcuterie, but a Solomonic division was impossible on the jurisdiction of the European Court of Justice.

Thus, on November 17, Frost indicated that he was ready to apply the safeguard measures of article 16. Brussels opposed it, as did the Taoiseach Micheál Martin, leader of the Republic of Ireland. Faced with this challenge, powerful figures in Congress rose up. President Biden and House Speaker Nancy Pelosi have reiterated their support for peace on the island of Ireland. This peace, signed in April 1998, guarantees the free movement of people and goods across the land border between the two countries. It also guarantees that the rights of the Northern Irish are equal to the rights of those of the Republic. Hence the dilemma of the European Court of Justice.

Westminster could pass legislation guaranteeing the protections, currently afforded by the European Court, to the people of Northern Ireland. But so far, there is no indication that the Prime Minister will submit this bill to parliament. On the contrary, Johnson seems to like the battle with Brussels, France and whoever creates a problem that stokes instinctive nationalist sentiment.

Now he’s taking on the Biden administration; a fight he surely doesn’t enjoy as he pursues the dream of global Britain. The stalemate is complex and ensures Johnson won’t wield Article 16 until the curtain rises on a smooth performance with Washington.

Diana Villiers Negroponte is a Global Fellow, focusing on the UK’s global role after leaving the EU. She is the author of “Master Negotiator: the Role of James A. Baker, III at the End of the Cold War”.

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