Legal Implications of EU’s Invocation of Article 16 of the Northern Ireland Protocol
By Devinka Myrella Lukito & Muhammad Farrel Abhyoso
EU Vaccine Export Controls
The COVID-19 pandemic has affected various spheres of human activity — such as the economy and healthcare — on an unprecedented level. At a time when the pandemic’s impact has reached unprecedented heights, with an increasing number of cases and complications of access to COVID-19 vaccines, the delivery of vaccine supplies becomes an ever more important matter, as it would ensure that vaccinations could begin and countries could soon return to normal activity. This leads us to examine the dispute between the European Union (“EU”) and the United Kingdom (“UK”) in regards to the application of Article 16 of the Northern Ireland Protocol.
On January 29, 2021, the EU announced that it would be implementing export controls on COVID-19 vaccines produced within the union, enabling member states to limit exports of vaccines to about 100 countries worldwide, including the UK.[1] The EU enacted export controls as a result of shortages of vaccine supplies in EU member states, which resulted in far fewer people receiving the vaccine than expected in countries such as France, Spain, and the Netherlands.[2] As part of this measure, the EU also triggered Article 16 of the Northern Ireland Protocol of the UK’s withdrawal agreement from the EU, which introduced border controls on vaccines transported across the open border between the Republic of Ireland, which is part of the EU and Northern Ireland which is part of the UK. This was done to prevent vaccines reaching the UK through Northern Ireland. The UK government criticized the EU’s decision to invoke Article 16. The UK government reacted with alarm to the EU’s move, stating that it had its own contracts with vaccine manufacturers and hoped that the EU would not “disrupt the fulfilment of these contracts”.[3] On the night of January 29, only hours after declaring it would trigger Article 16, the EU issued a statement saying it would not invoke the article after facing opposition from the UK and Irish governments.
What is the Northern Ireland Protocol?
The Northern Ireland Protocol is an appendix to the UK’s withdrawal agreement from the European Union. It was designed to ensure that trade between Northern Ireland and the Republic of Ireland would go on smoothly by eliminating tariffs and controls at the border.[4] This is important because there is no hard border between the UK and the Republic of Ireland due to the 1998 Good Friday Agreement, an agreement that ended decades of violence in Northern Ireland. This protocol was designed to avoid the reestablishment of border controls after the UK left the EU and minimise disruption of cross-border trade. Under the Northern Ireland Protocol, goods are allowed to enter from the EU to Northern Ireland without checks as Northern Ireland remains in the EU’s single market for goods and continues to operate under EU customs rules.
The EU believed that the Protocol could be used to transport vaccines from plants in the EU to the UK through Northern Ireland. This led the EU to unilaterally invoke Article 16 of the Protocol as an attempt to block COVID-19 vaccines getting into the UK and redirect those vaccines to EU member states.[5] This article will analyze the function of Article 16 of the Northern Ireland Protocol and the legal implications in the case if the EU successfully invoked this article.
Article 16 of the Northern Ireland Protocol
Article 16 of the Northern Ireland Protocol rules that the EU and UK have the authority to unilaterally enact “appropriate safeguard measures” in the event that the application of the protocol causes “serious economic, societal or environmental difficulties”. The article does not further specify what safeguard measures are appropriate or clarify what constitutes “serious economic, societal or environmental difficulties”. Nevertheless, the article does state that the scope and duration of any safeguard measures shall be limited to “what is strictly necessary” to solve those difficulties and that measures which will “least disturb the functioning of this Protocol”.
Thus, it may be argued that whichever side invokes Article 16 possesses some freedom in deciding that the continued application of the Protocol may cause the aforementioned difficulties and taking measures in response to the difficulties. However, any measures that are taken must be proportionate to the difficulties faced. In this case, the EU invoked Article 16 as part of its move to limit the export of vaccines to non-EU countries, including the UK, and halt its own vaccine supply shortage. By triggering Article 16, the EU could stop vaccines from being transported across the usually open border between the Republic of Ireland and Northern Ireland and redirect those vaccines to EU member states. The EU’s action can be seen as proportionate to the problem that it is facing (the shortage of vaccines), considering that multiple countries were forced to vaccinate fewer people than expected and the number of cases continued to increase. As of the third week of January 2021, only a week before the EU introduced export controls for vaccines, the European Centre for Disease Prevention and Control (“ECDC”) reported 18,779,539 COVID-19 cases and 448,766 deaths within the EU since December 2019.
Possible Effects of the Invocation of Article 16
1. Impact on vaccine supply and Good Friday Agreement
The invocation of Article 16 by the EU would result in the reintroduction of a hard border between the Republic of Ireland and Northern Ireland for vaccines.[6] It would undercut the 1998 Good Friday Agreement between the UK and the Republic of Ireland, which ended about thirty years of violence in Northern Ireland.
If the EU did invoke Article 16, vaccine supplies would not be able to be transported across the border to Northern Ireland. Combined with the EU’s action of limiting exports by vaccine manufacturers who are deemed not to have honored their contract with the EU, this could force those manufacturers to think twice before exporting more vaccines to the UK through Northern Ireland and cause them to prioritize their contract with the EU. This could help alleviate the EU’s vaccine shortage, which was very important at a time when the number of COVID-19 cases in the EU continued to rise. A continuing shortage of vaccines would mean that people would have to wait longer to receive the vaccine, increasing their risk of being exposed to COVID-19 and dying from the disease, as well as putting more burden on the healthcare system of EU member states.
On the other hand, the impact of Article 16 on the UK’s vaccine supplies probably would not have been very severe. At the time of Article 16’s invocation, the UK government had already ordered hundreds of millions of vaccine doses from various manufacturers, including 100 million from AstraZeneca; 60 million from Valneva, Novavax, and GlaxoSmithKline; and 40 million from Pfizer-BioNTech. The AstraZeneca and Pfizer-BioNTech vaccines were already being rolled out. AstraZeneca owns plants in the UK, NovaVax would be opening a plant in England, in February or March 2021, and Valneva began producing vaccines at a plant in Scotland in late January.[7] Even if the EU entirely blocked vaccines manufactured in its member states from being transported to the UK, the UK could still rely on vaccines produced within its own territory to fulfill its needs.
Another concern for the EU as well as the UK would be how this situation can be used as a precedent for future applications of Article 16 in regards to the Irish border. Under the Good Friday Agreement, to end the long conflict in Northern Ireland between Unionists (who wanted Northern Ireland to stay in the UK) and Republicans (who demanded a united Ireland), the UK agreed to remove all security installations at the border, thus creating an open border. An open border is highly important as it helps to facilitate trade between Northern Ireland and the Republic of Ireland (Northern Ireland is the Republic’s biggest export destination, with £3.2 billion worth of goods exported in 2019) and many in Ireland fear that the return of border checks would bring back the violence that the Good Friday Agreement sought to prevent.[8]
The Northern Ireland Protocol was created to ensure that the open border in Ireland will continue to exist after the UK left the EU. The reintroduction of border checks under Article 16 would undermine the Good Friday Agreement and call into question the commitment of the party which triggered the article to peace in Ireland. It underscores the need for both sides to engage in dialogue before invoking Article 16.
2. Rebalancing measure
While triggering Article 16 can affect the application of the Protocol, it must be noted Article 16 is not a route to unilateral suspension of the Protocol. If one party does introduce unilateral safeguard measures, then the other side is able to take “rebalancing measures” which is set out in Annex 7 to the Protocol, a set of arrangements that creates a balance of rights and obligations. Rebalancing measures are intended to give the party affected by the invocation of Article 16 the opportunity to respond with similar measures, establishing parity between the two sides. Any rebalancing measure must, however, be “proportionate” with priority again being given to “such measures as will least disturb the functioning” of the protocol.
An example of “rebalancing measures” is the EU’s imposition of tariffs on aluminum and steel from the US in 2018. This case could be taken as a precedent if the EU actually imposed Article 16 of the Protocol. In this case, the EU responded to US tariffs on aluminum and steel imported from the EU by introducing its own tariffs on aluminum and steel from the US. The EU was exercising its rights under the World Trade Organization Safeguard Agreements and EU legislation in order to protect the European market from disruptions caused by the diversion of steel from the US market. In the case of the EU-UK vaccine dispute, the UK may respond to the EU’s attempt to stop vaccines from entering the UK by introducing its own measures to stop vaccines produced in the UK from being exported to the EU.
Conclusion
The use of Article 16 of the Northern Ireland Protocol in this case shows that there is a powerful instrument which can be used to regulate the supply of vaccines and other goods between the EU and the UK through the Irish border, as shown by the EU’s attempt to invoke it to stop vaccines from being transported to the UK through Northern Ireland. From a legal perspective, the EU’s action is permissible as it does not violate any of the article’s provisions. However, the effect of the article on Ireland must be taken into account. The 1998 Good Friday Agreement had stipulated the removal of controls on the Irish border to ensure peace in Ireland. By introducing checks on vaccine exports across the border, the EU risked undermining the agreement as well as setting a precedent for checks on other goods in the future. Thus, it is important for the EU and the UK to hold a dialogue before resorting to such a drastic measure.
[1] Holly Elyatt, “Export controls on Covid vaccines from Europe could spark collapse in global supply, experts warn,” cnbc.com/2021/02/01/eus-vaccine-export-controls-could-damage-global-vaccine-supply.html, accessed 4 February 2021.
[2] Deutsche Welle, “EU countries delaying, halting vaccinations over delivery shortages,” dw.com/en/eu-countries-delaying-halting-vaccinations-over-delivery-shortages/a-56376344, accessed 16 February 2021.
[3] Lisa O’Carroll, “‘Welcome news’: relief as EU backtracks on NI Covid vaccine move,” https://www.theguardian.com/society/2021/jan/29/eu-moves-to-stop-northern-ireland-being-used-as-a-vaccine-backdoor-to-britain, accessed 16 February 2021.
[4] Tom Edgington, “Brexit: What is the Northern Ireland Protocol and will it stop border checks?” bbc.com/news/explainers-53724381, accessed 5 February 2021.
[5] John Campbell, “Brexit: EU introduces controls on vaccines to NI,” https://www.bbc.com/news/uk-northern-ireland-55864442, accessed 15 February 2021.
[6] Daniel Keohane, “The unexpected cross-over of vaccines, article 16, and the Northern Ireland protocol,” dcubrexitinstitute.eu/2021/02/the-unexpected-cross-over/, accessed 14 February 2021.
[7] BBC News, “Valneva vaccine begins manufacturing at Livingston plant,” https://www.bbc.com/news/uk-scotland-edinburgh-east-fife-55840567, accessed 14 February 2021.
[8] Jen Kirby, “Brexit’s Irish border problem, explained,” https://www.vox.com/world/2019/2/18/18204269/brexit-irish-border-backstop-explained, accessed 17 February 2021.
