The Northern Ireland Protocol (NIP) has been the all dominating Brexit-related topic this week. The key development was the EU Commission’s response to the UK government’s command paper published this summer and proposing far-reaching changes to the NIP.

Some experts consider that the EU is overselling the extent of the concessions, others point out the lack of detail, still others considering the EU has ‘caved.’ There is hence some disagreement about the significance of the proposals. Yet, most observers do seem to consider the proposal to constitute pretty major concessions by the EU to solve the problems by removing a large part of the regulatory and customs check between Great Britain and Northern Ireland.

Many commentators have provided excellent overviews of the proposals (e.g. the Institute for Government’s summary and Chris Grey‘s most useful list of Brexiter NIP excuses, myths, and lies). There is hence no need to summaries the proposals in any great detail again. In a nutshell, though, the proposals aim to reduce border checks and customs controls notably by reducing – although not removing – the need for checks on goods moving from GB to NI that are destined for NI rather the Republic of Ireland (ROI). To limit the risk that such goods end up inside the EU single market in the absence of extensive border controls, the EU suggests that some conditions need to be met, e.g. the introduction of a ‘UK only’ label for GB goods sold in NI. To me, this seems like a major concession, because it does imply that Great British producers could export food and other goods to NI without the UK having to agree to an alignment of its sanitary and phytosanitary standards (SPS) on EU standards. Indeed, the proposals mean that the EU is moving somewhat closer to the UK’s favoured ‘risk-based approach’ whereby border checks would only apply to goods for which there is a real risk they may enter the single market.

Yet, the UK government’s immediate reaction to the proposals was to reject them as not going far enough and to bring into play a new demand, namely the removal of the European Court of Justice from overseeing the withdrawal agreement (WA) and hence the NIP.

We are now at the beginning of a short period of intensive talks between the EU and the UK based on the proposals the two sides have put on the table. Based on what we have seen this week, it is hard to imagine that they will end well. Indeed, Brexit minster David Frost, who rejected the proposals before they were published, set the tone in a bellicose speech that many found insulting and counter-productive. It seems to me, that we are one move away from ‘checkmate’ and it is the UK which is in the process of checkmating the EU.

Back against the wall: The EU’s limited options

Going into the talks it seems obvious that the UK government is going to ask for more. How can the EU react to these additional claims? Let’s first look at the new demand to remove ECJ oversight of the WA. How likely is the EU to concede on this issue?

ECJ oversight

It is very unlikely that the EU will concede on the role of the ECJ under the NIP. Indeed, the ECJ’s supremacy in interpreting EU law is increasingly becoming one of the EU’s most stubbornly defended – but also disputed – fundamental principles. A recent ruling by the Polish supreme court, found that the Treaty of the European Union (TEU) is incompatible with the Polish Constitution, putting ‘effectively […] an end to primacy of EU law in Poland.’ Some observers have considered this ruling as equivalent to de facto triggering of Art. 50, although others contradict that interpretation. In parallel, this week also saw the ECJ deliberate a legal challenge brought by Hungary and Poland against the so called ‘Rule of Law mechanism,’ which makes payment of EU subsidies conditional on the respect of the Rule of Law. The EU’s fundamental legal order – and the status of the ECJ – are hence facing very serious challenges from within, which makes it even less likely for the EU to compromise on this issue in its talks with the UK.

That said, the question of supremacy of EU law is giving the EU considerable headache not just regarding Northern Ireland and some of its member states, but also with other neighbours such as Switzerland. Coming up with a creative solution that reassures the EU of the supremacy of ECJ jurisprudence over EU law, while accommodating the worries of countries that are not willing to accept it, could be in the EU’s interest too.

What could such a creative solution look like?  Several commentators this week have referred to arrangements in other international agreements between the EU and third countries that essentially consist in making the ECJ disappear into the background, rather than removing it completely. Katya Adler, for instance referred to the Swiss model, while the Financial Times mentioned the EU-Ukraine Association Agreement.

The Swiss model

Switzerland’s close relationship with the EU is the result of a more than 100 sectoral, ‘bilateral agreements.’ Dispute settlement under these agreements is subject to a two-pilar system based on the national courts in each country as one pillar and so-called ‘joint committees [GER]’ as a second pillar. Yet, this dispute settlement procedure is a diplomatic and political not a legal one. It can only settle disputes in amicable manner, and they are not legally binding on the contracting partners. Nevertheless, some legal experts [GER] consider this political and diplomatic procedure as equivalent to legal dispute settlement, because it is subject to the principle of ‘sincere cooperation’ stated in art. 4 §3 of the Treaty of the EU (TEU).

The reason why the EU accepts this solution, however, is because it only applies to those agreements that are international in nature and not to those which imply supranational integration. The agreements on civil aviation and membership of Schengen, are of the latter type. Here the application of ECJ jurisprudence in Switzerland is potentially more direct. However, this becomes rarely obvious to Swiss citizens due to another ‘trick:’ The Swiss Federal Tribunal – Switzerland’s supreme court – applies a doctrine whereby it proactively interprets EU law in accordance with ECJ jurisprudence. This approach means that very few disputes emerge to begin with, which means ECJ jurisprudence acts mostly in the background.

Even so, in the past decade the EU has made it clear that it is not willing to accept this type of arbitration-based dispute settlement any longer without the ECJ having the ultimate oversight over the agreements. From 2013 Switzerland and the EU were therefore negotiating an institutional framework agreement that was meant to settle these governance issues. The issue of ECJ oversight remained one of the key sticking points, which led the Swiss government to reject the draft framework agreement earlier this year and end the negotiations after eight years. The future of the bilateral way is hence uncertain to an important extent precisely because the EU insist on a legal dispute settlement procedure not a political one.

The Ukrainian model

Another model that has been mentioned by some observers as a possible alternative to ECJ oversight is the Ukrainian model: The association agreement between the EU and Ukraine contains a similar dispute settlement procedure to the Swiss ‘joint committees’ in the form of the EU-Ukraine Association Council. However, if an amicable agreement cannot be reached in the council, the agreement provides an additional arbitration procedure. The two parties can establish an ‘arbitration panel’ with three arbitrators chosen from a list of 15. Each party can nominate five independent arbitrators and the two parties together choose another five who cannot be nationals of either Ukraine or an EU member state. The chair of the panel is chosen from the latter five. The composition of the panel is decided consensually or by lot if the parties cannot agree. The three arbitrators settle the dispute – either consensually or by majority vote –, and their decision is binding on both parties. This procedure therefore goes beyond a diplomatic-political dispute settlement procedure.

However, here too the EU accepts this solution without ECJ involvement only as long as the dispute does not involve interpretation of EU law. In the latter case, the arbitration panel is obliged to submit the matter to the ECJ, which remains the ultimate arbiter of EU law.

In short, it is unlikely that either of these solutions would satisfy the UK government. Conversely, it seems clear that the EU will not accept any other instance than the ECJ as ultimate instance in the interpretation of EU law.

The only hope for the talks to go anywhere, would hence seem to be that the EU manages to persuade the UK that the issue of ECJ oversight of the WA should be dropped. It is not certain that this will happen. As David Allan Green put it "The European Court of Justice is a sham issue – it is a contrived, bad faith attempt to find something – anything – to open up the protocol. If the ECJ issue is indeed just an excuse to torpedo the NIP rather than an actual concern for the UK government, there is little hope the talks will get past this stage. Yet, there may be some hope. Lord Frost did signal after his Lisbon speech that the ECJ issue was not a red line.

Side-stepping the ECJ issue and conceding more on border checks

If the ECJ issue can be taken of the table, the EU would probably need to concede more on other issues to get the UK to sign up to any proposals. A little more leeway exists in terms of further reducing border checks. Here, the EU’s proposals may hint at an increased openness to a solution that comes close to a ‘trusted trader scheme’, that some UK food and retail groups have advocated for. Under such a scheme, food businesses’ supply chains would be certified according to EU standards. Accredited traders could then self-certify rather than providing health certificates for each shipment, further reducing non-tariff trade barriers. The EU’s proposals this week regarding packaging and labelling of goods for sale in NI only, may indicate that there is some room here to think further in that direction and combine the two approaches.

Yet, even such an arrangement is based on the assumption that the UK government is interested in finding a solution. Brexiters clearly feel that their hardball tactics are working and are hence unlikely to accept anything short of their maximal demands. Even if the UK government were inclined to think about solving the concrete issues around trade, the DUP has made it clear that the NIP is not about frictionless trade, but about constitutional issues regarding the place of NI in the Union. As such, it is unlikely that they will accept even the faintest whiff of a border in the Irish Sea. Hardcore Brexiters inside and outside the government will use this as an excuse to continue opposing any solution short of abolishing the NIP. The not very surprising, but still rather shocking, revelations by Dominic Cummings and Ian Paisley jr that the Johnson government never intended to adhere to the protocol, support this view. Therefore, however much (or little) the EU is ready to further concede, it now seems all but certain that the UK’s next move will be to trigger art. 16. In which case, it is checkmate for the NIP.

 Break down of talks and triggering of article 16

What can the EU do if the UK does go ahead and invokes article 16 to partially suspend the NIP, or simply continuous to refuse the implementation of the protocol?

The widely expected reaction is for the EU to initiate (or rather restart) legal action against the UK and impose punitive tariffs on products moving from the UK to the EU. Indeed, EU members states reportedly have started lobbying the Commission to develop a tough retaliation strategy, including not just legal action and tariffs, but also rescinding the Trade and Cooperation Agreement (TCA) and even threats of cutting energy supply to the UK (We should pause for a moment and let this sink in: Due to Brexit, the relationship between the UK and its European neighbours has soured so much that there is now serious talk of cutting off the UK’s energy supply! An important time, perhaps, to remember that the initially impetus for the European integration project was to secure peace on the continent).

What would such a robust EU response achieve? Legal action will take months or even years and therefore not provide any solutions on the ground in the short term. Punitive tariffs, on the other hand, will hurt UK exporters – and possibly EU customers and importers –, but it is difficult to imagine that either legal action or tariffs would achieve their goal of forcing the UK to implement the NIP. This is a government that defines international diplomacy as a zero-sum game and compromise as a sign of weakness. A tough reaction by the EU would also spur nationalistic tendencies in Britain and would encourage the UK government to ride that wave rather than backing down.

More practically, tariffs and legal action alone would simply not stop goods from entering the EU single market unchecked via the Irish Sea border. It is unlikely that the EU could accept such a situation. This is partly as a matter of principle, but partly due to a genuine worry that sub-standard goods might be sold inside the EU single market once the UK starts diverging from EU standards (e.g. through the agreement in principle on a trade deal with Australia). The new EU regulation on market surveillance (see below) strongly suggests that the EU is indeed very much concerned about such matters.

Therefore, if the UK continuous to refuse to carry out the regulatory and customs checks it agreed to, there is only one thing the EU can do: carrying them out itself. Unless some miracle technological solution can be found (which Brexiters dream of), there are two places where the EU’s own customs checks can take place: First, the border between the Republic of Ireland (ROI) and Northern Ireland; second the border between the ROI and the rest of the EU.

Avoiding the former border was of course the whole point with the NIP and imposing it is considered to be an almost certain return to sectarian violence in NI. It may be what the UK government seeks to achieve, as forcing the EU to impose that land border would certainly be a major victory for Eurosceptics who have been making a living of vilifying the EU. But this option is most certainly not going to be seriously considered.

The other place where checks could be introduced is between the Republic of Ireland and the rest of the EU. This option has been mentioned before, but it would constitute a major betrayal by the EU of one of its member states and could be perceived by the Irish side as an annexation by Britain. Therefore, this option is equally unviable from the EU perspective.

Market surveillance

If border checks are impossible for the EU to carry out, one alternative could be a recent new tool in the EU’s toolbox, namely market surveillance. The EU’s market surveillance regulation entered into force in July 2021 and considerably increases both the member states’ duties to police product compliance with EU standards and their powers to do so. This tool could open up an additional possibility for the EU on the Island of Ireland. Rather than using border check to police any violation of the single market, it could be policed in supermarkets and at companies south of the NI-ROI border. While this system may be costly and less efficient than proper border controls, it would be a second-best alternative to avoid violations of the single market. Indeed, experts consider increased market surveillance as a likely outcome if the NIP is suspended. Politically, however, this outcome would mean a complete capitulation of the EU.

A ‘Madman'-’ or ‘Chaos Theory’ of Brexit?

The above analysis is based on the assumption that the UK government is hellbent on destroying the NIP rather than making it work. The question whether that assumption is correct.

Chris Grey has advanced the madman theory to explain what is going on: Could it be that Frost pretends to be mad enough to stop from nothing – including pushing the ‘red button’ (i.e. triggering art. 16) – to get what he wants? This is a possible explanation. The problem, of course is that – as Prof. Grey notes – none knows if Frost and Johnson’s intransigent and extremist positions are really just part of a strategy or whether they are indeed mad – or just immature? - enough to suspend the protocol and thus accept a significant deterioration of relationships with the EU and probably much damage to the UK economy and peace in NI.

There is an alternative explanation to madness though, which is that the damage the madmen in Johnson’s government are threatening the EU with is not a means to an end, but rather the end itself. This is what my chaos theory of Brexit would suggest: Namely, that Brexit has been ‘project chaos’ from the beginning and its goal is simply to inflict as much damage on the EU as possible – even if the UK too gets hurt in the process. If that theory is right, there are dark days ahead of us indeed.

A happy ending?

This is a very sinister outlook on where we are headed. Is there any hope that somehow things may look up soon? To me, the only hope for that to happen would be major political change in the UK. The recent electoral defeat of Czech PM Andrej Babiš has shown that entrenched populists can be defeated and has led to some commentators to hope similar things could happen elsewhere in Europe. However, the UK reality with its first-past-the-post electoral law makes this very unlikely. A possible solution could come from the people in NI themselves. Prof. Chalmers draws a bleak picture as to how the UK government could use the triggering of art. 16 to get people in NI to vote against the NIP during the first democratic consent vote in late 2024. Yet, before then, elections to the NI assembly are scheduled for May 2022, but could take place earlier if the DUP makes true its threat to collapse the Stormont executive if the NIP is not abolished. Such elections could provide a way out of the protracted and politically toxic situation, whether art. 16 is triggered or not.

According to a recent poll for the Belfast Telegraph, Northern Irish opinion is quite evenly split about whether the NIP is appropriate for NI or not and the people of NI are divided over whether border should be in the Irish Sea or on the Island of Ireland. Yet, if given a chance, they may also be inclined to vote for a resolution rather than continuing tensions and uncertainties. Moreover, 56% of respondents consider that the protocol provides unique economic opportunities for NI. Especially with some additional improvements, the NIP has considerable potential to provide many northern Irish businesses with the best of both worlds: frictionless trade with the EU and unfettered access to the UK market. Therefore, people in NI may very well come to support it. Depending on the outcome of the next NI Assembly election – currently the DUP is at a historic low and Sinn Fein likely to become the largest party – the NIP could be saved by popular support.

Lord Frost proclaimed this week that he was a populist who is ‘doing what people want.’ If we take him at his word, perhaps there is hope for a solution to the issues on the Island of Ireland.