Article 2 of the Ireland/Northern Ireland Protocol: a new frontier in human rights law?

The Ireland/Northern Ireland Protocol was supposed to be a solution to the thorny problem of the Ireland-UK land border in Northern Ireland, during the final phase of an embittered and exhausting divorce between London and Brussels. Instead, four years after it came into force, Northern Ireland is without a functional government even as the UK and the European Union (EU) renegotiated large swathes of the Protocol’s operation to allay concerns around its impact on the constitutional ties between Northern Ireland and Great Britain. Constitutional crises aside, this article addresses a seldom-discussed aspect of the Protocol. The relative brevity of art.2 of the Protocol obscures its complexity and its promise. A curious (and curiously drafted) provision, it has the potential to disapply inconsistent primary legislation enacted at Westminster, allow the EU Charter of Fundamental Rights to substantively impact State action and automatically update Northern Ireland law to reflect changes in EU law—in short, everything to which Brexit promised an end.