So talks on the Northern Ireland Protocol are going so well that the UK government is now claiming it can use force majeure to walk away from the protocol altogether. This is a fantasy and one aimed at placating its critics among the Brexit ultras. Remember they always wanted to walk away with no deal whatsoever, a proposal so damaging that even this Government cobbled together a deal at the last moment and forced it through Parliament with little discussion or even debate.
But force majeure is a very specific part of International law and is very rarely used, not least because painfully negotiated international treaties are not worth the effort or the paper they are written on, if either side can just tear them up if they change their mind.
That is why it can only be done "if the party proves that the non-performance was due to an impediment beyond its control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences."
The NIP’s problems come no where near meeting this definition. Complaining there are checks on goods travelling to NI from the UK when that is what you said would happen 6 months ago is not an impediment beyond your control. The UK government did take the impediment into account when concluding the contract, it agreed to the checks.
The EU knows all this full well, so does the UK government, both sides also know the consequences would be disastrous. Not just the NIP but the whole EU/UK treaty would go, there would be tariffs on UK goods entering the EU, a hard border in Ireland and no other state would be stupid enough to trust the UK’s negotiators again.
But remember those ultra Brexiteers would cheer it to the rafters, and this is a PM who does not feel in the least bit constrained by common sense, social norms or previous commitments, no matter how important.
This makes the force majeure claim a bit like Mutually Assured Destruction (MAD) during the Cold War, it only works if you convince your opponent you are mad enough to destroy the world. But unlike MAD, in this case the damage to the UK would be hugely greater than that to the EU.
Still this is a very stupid government, you can tell that by the fact it thinks negotiating by holding a gun to its own head is clever.
https://jonty.substack.com/