Upendra Baxi writes: Creating a crisis by law

It is perhaps useful to understand the worlds of thought and action, to distinguish between two paradigms of understanding which I call BAUP and CACP (respectively, “business as usual” and “crisis and contingency”). Law enforcement generally follows the former and change forces the latter. The main axiom of BAUP is “closure” (letting stories of past injustices come to an end, or chalta hai culture). The CACP reverses this by saying no to “closure” and refusing to end stories of injustice. The world is shifting from one paradigm to another.

Let me mention two recent examples. The Russian war in Ukraine is now governed by the BAUP; Gone is the CACP predicting a quick nuclear end of the world. The second example concerns the inequality of vaccines during the pandemic. Almost all of the Third World and many citizens and social movements of the world have supported South Africa and India’s request to the WTO for the granting of a TRIPS waiver to the strict intellectual property ; but he is, on current reports, unwilling to do so.

Here I briefly explore the endless tales of the UK government’s proposed legislation radically changing the Northern Ireland Protocol. After Brexit, a new system was needed as the EU has strict food rules and requires border checks when certain products – such as milk and eggs – arrive from non-EU countries. It is well known that special trade deals were needed for Northern Ireland after the UK voted for Brexit in 2016, as it is the only part of the UK with a land and sea border with a EU country, the Republic of Ireland. But the question of the border between the two is a complex and delicate part of the Good Friday agreement and may raise fears of the “instability” that cameras or border posts, as well as any other security measures, could cause. The protocol now states that inspections and document checks would be carried out between Northern Ireland and Great Britain (England, Scotland and Wales) at ports in Northern Ireland. It was also agreed that Northern Ireland would continue to follow EU rules on product standards.

Below the positions negotiated in the protocol, the UK now wants to modify it by creating green lanes (for trusted traders transporting goods to Northern Ireland and exempt from customs checks and controls) and red lanes ( intended for products destined for the EU, including the Republic of Ireland, which will be subject to full checks and customs controls). In addition, the bill would remove tax restrictions on Northern Irish businesses currently governed by EU state aid and VAT rules. More so, the UK government wants to replace the European Court of Justice with an independent body to settle disputes over the Northern Ireland Protocol.

So the UK’s position is that its new Act of Parliament is necessary for the survival of the Good Friday Agreement and peace in Northern Ireland, and it can change the terms of the protocol to “safeguard an essential interest”. . But even Sir Bob Neill, a Tory peer, has warned of the “tarnishing” of Britain’s “law-abiding reputation”.

It is unfortunately true that politics deploys the law both to create crisis and change and to make the catastrophic the “new normal”. The British prime minister, who co-created the protocol with the EU, now wants to undo it, calling for the fragility of peace in Northern Ireland. This is strange. While the Democratic Unionist Party largely wants the Protocol “removed” or “revised”, the main “nationalist parties and the Alliance Party say it remains vital to stop a hard border, protect peace and to ensure prosperity”. And we must remember that all of this is happening as Ukraine burns under encroaching Russian attacks! The BAUP saga remains a never-ending story.

In response, the EU position is that revising the protocol cannot be a solitary endeavor since no international agreement, once concluded, can be changed unilaterally. Article 26 of the Vienna Convention on the Law of Treaties states that “every treaty in force is binding on the parties and must be performed by them in good faith” and article 27 states that “a party may not invoke the provisions of its domestic law to justify its non-performance of a treaty”. The government justifies the change by resorting to the “doctrine of necessity” as providing “a clear basis in international law to justify the non-performance of international obligations in certain exceptional and limited conditions.” However, it is normatively established that states can enjoy sovereignty within the framework of the international rule of law, and not beyond.

The EU has not yet initiated legal proceedings or adopted a “trade war” strategy. Wisely, he proposed a return to trading for two months from June 15. No “meaningful discussion” has taken place “since “February regarding suggestions for improving the implementation of the protocol”, including: (1) “the reduction of customs and sanitary controls on goods going from Great Britain to the ‘North Ireland ” ; (2) reducing “the amount of ‘paperwork for agri-food shipments’ to a ‘three-page document per truck’; and (3) the relaxation of rules regarding “chilled meats, such as sausages” which could still “be shipped across the Irish Sea”.

How far will the British parliament go with the government’s proposal? No one can guess, just like the fate of any contentious EU option in the European Court of Justice in the event that a protocol is unilaterally modified or annulled. A litigation process will be long and arduous. The ultimate lesson for those who experience the vagaries of governance is the astonishing capacity of the state to convert the catastrophic into normal and the normal into problematic. If these are the faces of power, what then are the images of justice?

(The author is Emeritus Professor of Law at the University of Warwick and former Vice-Chancellor of the Universities of South Gujarat and Delhi)

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