A lot of discussion about Article 16 of NI Protocol, especially after Johnson said that he would consider invoking it to prevent a border down the Irish Sea.

A thread to clarify what Article 16 really is, & why it doesn't offer a solution to the Prime Minister's problem: /1

First, what is Article 16?

It is a general safeguard clause.

It allows either side to act unilaterally - for example by suspending certain obligations - if there are "serious economic, societal or environmental difficulties" arising from the application of NI Protocol. /2

What does "acting unilaterally" mean?

It means being able to suspend certain rights and obligations, which are made under NI Protocol, *without* going through a usual process for resolving disputes.

It is an option of last resort. /3

Why?

Because, sometimes, there can be exceptional unforeseen circumstances that either a) don't allow much time for resolution by a dispute settlement body, or b) demand swift action that prevents harm but might go contrary to certain obligations under an agreement. /4

The first key thing to understand is that *not any* unilateral action can be justified under this clause.

There are some conditions:

1) Safeguards have to be "restricted with regard to their scope" = they should be proportionate to the concrete issue to which they respond. /5

2) Safeguards also have to be "restricted" with regard to their "duration" = they should last only until these serious problems persist.

Their purpose is to create some space to resolve serious difficulties, especially if those difficulties were to worsen. /6

3) Safeguards have to be linked to "serious economic, environmental and societal difficulties" = they should be directly attributable to reasonably unforeseen issues arising out of the implementation of the agreement. /7

(A fun fact: The original safeguard clause language comes from the 1992 EEA Agreement.

It was originally introduced to give EEA/Efta states more time if they experienced delays in adopting EU/EEA law.

Hence, the permissive language, which can still be found in EEA Agmt) /8

4) Safeguards are allowed only *after* both sides have tried, but failed to find a mutually satisfactory solution through a consultation at the Joint Cttee.

What precedes the Joint Cttee is an obligation to notify the other party of your intention to use safeguards. /9

(Here's the procedure for what happens if one side wants to use the safeguard clause - Article 16. It's in Annex 7 of NI Protocol.

It's here where the Commission failed last week - it foolishly tried to avoid this process.) /10

If 4) happens, and the parties have attempted to find a mutually acceptable solution but failed, safeguards should be taken within *a month* from the date of notification.

In exceptional circumstances, however, the 1-month limit can be avoided. /11

If these four strict conditions are met, safeguard measures can be adopted.

However, priority should be given to measures that will *least* disturb the functioning of the NI Protocol.

Not *any* measures deemed appropriate by one side. /12

So, let's assume that one side meets these four conditions and adopts safeguards, what happens next?

If safeguards create an imbalance between rights and obligations within a treaty, the *other party* can take proportionate rebalancing measures "to remedy the imbalance". /13

Again, priority should be given to measures that will least disturb the functioning of the Protocol.

In other words, if unilateral action by one side alters the balance of rights and obligations (eg market access), the other can do the same in response. /14

It's obvious that there're very strict conditions imposed on the use of safeguards. If these conditions aren't met, the use of safeguards is unlawful.

The reason for this is that such measures can harm the functioning of NI Protocol and, in general, should be avoided. /15

So, what does this all tell us about Article 16?

Article 16 *isn't* a means of revoking the Protocol.

It isn't a means of temporarily suspending or disapplying the Protocol.

It isn't a means of addressing reasonably foreseeable consequences of applying the Protocol. /16

Article 16 *is* a way of addressing issues with the Protocol that were not reasonably foreseen, but which have led to serious societal/econ/envi difficulties as a direct result.

It can be used after a clear notification of intent.

It is intended as an option of last resort. /17

If the UK government were to invoke Article 16, it would mean that all other options to resolve issues amicably would either have been exhausted or unavailable.

Using it would have political consequences, as we saw with the Commission's ill-considered actions last week. /18

Reading about the general safeguard clause, longtime followers of Brexit might have a feeling of déjà vu.

Many moons ago, 2015/6 (?), this was suggested by some as a solution to the UK's desire to suspend the free movement of persons. Needless to talk about the outcome. /19

The reason for this is that a general safeguard clause, using the identical language as NI Protocol, is in the EEA Agmt (Art 112).

It was used only once - by Liechtenstein due to its specific geography. And, ultimately, it led to permanent amendments to the EEA Agmt. /20

What's the conclusion?

Using Art 16 isn't straightforward. There're strict conditions that have to be met first.

Even if those conditions are met, it isn't a means of addressing tensions within the Protocol that would've been reasonably foreseen at the time of signing it. /21

Rather than invoking Art 16, Prime Minister's best hope is to find a solution through negotiations with EU at Joint Cttee.

One would hope that both sides realise their shared responsibility and commitment to the GFA to resolve this amicably, not with unilateral threats. /Ends

To add: In my view, Art 16 isn't a "credible threat" either.

If Art 16 is used as a threat but *isn't* triggered, then it damages trust and leverage.

If it *is* triggered, it creates a counteraction, with high costs.

The incentive is not use it, unless there's no alternative.