Paola Mariani (Bocconi University)

The United Kingdom left the European Union at midnight on 31 January 2020 under the terms of the Withdrawal Agreement. But due to the transition period expired last 31 December 2020, only now we can start to understand the real meaning of Brexit.

The same can be said for the Protocol on Ireland and Northern Ireland, entered into force on 1 February 2020 but the majority of its substantive provisions only become applicable after the end of the transition period, on 1 January 2021.

The compromise reached by the UK and the EU in the WA keeps Northern Ireland in the EU’s market for goods even if it is part of the UK single customs territory. The consequence of this unusual solution is the application of two customs regimes in Northern Ireland. The goods that enter for home use in Northern Ireland are subjected to the UK tariff regime. Any good imported into Northern Ireland, including from Great Britain, that is ‘at risk’ of being then moved into the Republic of Ireland or into the rest of the EU must be subjected to EU standard certifications. In order to avoid border checks within the Island of Ireland, UK authorities are in charge of the application of post-Brexit customs rules for Northern Ireland for goods transported by sea between Northern Ireland and the rest of the UK, thus de facto establishing a kind of customs border within a sovereign State.

Commentators were sceptical on this “innovative” solution and the entry into force of the regime the same day of the TCA – which regulates the general trade in goods regime with the rest of the EU – did not help. In fact, it was easily predictable that a State that for almost fifty years traded goods with its most important trade partner without any kind of border controls, had trouble creating ex novo a customs border system capable to apply efficiently two different customs regimes, one of them completely new.

EU/UK Relations, already degraded when the EU triggered an override clause in the Northern Ireland Protocol, without consulting London and Dublin, to secure Covid-19 vaccine supplies, have been heated by the UK’s announcement earlier this month to unilaterally extend temporary rule exemptions intended to help companies adjust to new trading arrangements agreed as part of the Withdrawal Agreement. The measures announced by the UK included an extension to the grace period before health certificates are required for agri-food shipments from Great Britain to Northern Ireland.

The answer of the EU was not long in coming: the European Commission last 15 March sent a letter of formal notice accusing the UK of “breaching the substantive provisions of the Protocol on Ireland and Northern Ireland, as well as the good faith obligation under the Withdrawal Agreement”. This is the beginning of a formal infringement process according to Article 258 of the Treaty on the Functioning of the European Union. In fact, contrary to what is established by the TCA, the trade in goods regime regulated by the Protocol is under the supervisory and enforcement powers of the European Commission and the Court of Justice of the European Union.

Not only the EU is concerned by the path taken in London of breaching “… its international legal obligations and the duty of good faith that should prevail in the application of international agreements pursuant to Article 26 of the Vienna Convention on the Law of Treaties.” UK Prime Minister is coming under pressure from Washington. The Congress has adopted a resolution warning they would oppose any UK-US trade deal if the 1998 Good Friday peace agreement will be undermined by the decision of the UK to breach the WA. The case of goods traded between the Irish sea border is not just a local issue between UK and the Republic of Ireland. It is a diplomatic case involving not only the EU, but also the US, now ruled by a President defining himself as “Irish”.

An issue that back in the old days would have been an internal affair of the European Union, it is now an international case that risks to become a diplomatic puzzle for the UK. Welcome back to the magic world of international law.

Paola Mariani is Associate Professor of International Law at the Department of Legal Studies of Bocconi University, Milan.