“This is Not an Exit”: The Article 16 Safeguards in the Ireland/Northern Ireland Protocol

Abstract

In political rhetoric surrounding the implementation of the Ireland/Northern Ireland Protocol, especially in the UK, Article 16 has played a central part. It has been suggested, even at the highest political levels that invoking or “triggering” Article 16 is the ultimate response to dissatisfaction with the operation of the Protocol and particularly the impact of border checks in the Irish Sea on economic relationships between Ireland and Great Britain. But what exactly is Article 16 supposed to do? This chapter examines its design and structure, as well as some of its detailed textual features in light of international economic law and public international law. The function and legal effects of Article 16 come to sight as far from obvious. On its face not a derogation clause, it is also clear that Article 16 provides no legal path toward renegotiation of the Protocol itself. Given the uncertainty and complexity surrounding the interpretation of Article 16, its invocation is a high-risk strategy, both legally and politically.

Keywords: Article 16, Brexit, International Law, Protocol on Ireland/Northern Ireland, Withdrawal Agreement