Non-diminution, dynamic alignment and cooperation: exploring the potential of the Protocol on Ireland/Northern Ireland to protect the environment

Abstract

Governance arrangements in Northern Ireland (NI) have categorically failed the environment to date, with significant degradation occurring across almost all indicators. Brexit poses fresh challenges, as it impacts a range of environmental standards, rights, safeguards and governance structures internally and on a cross-border basis. The original Protocol on Ireland/Northern Ireland, and subsequent amendments in the Windsor Framework, offered welcome resolution to some of the major NI-related regulatory headaches and uncertainties raised by Brexit. This binding legal framework establishes entirely new governance and regulatory arrangements for NI, uniquely tailored to the historical, political and legal conditions that characterise its devolved and biogeographical shared-island status. Several provisions therein could play a significant role in addressing challenges for environmental governance in NI – and potentially across the island of Ireland.
This article analyses the Windsor Framework’s provisions of greatest relevance in the environmental field and that might assist in maintaining existing environmental rights, safeguards and standards – in particular, articles 2, 5, 9 and 11 of the Windsor Framework. Of interest are the complementary but differentiated approaches across these provisions, ranging from forms of dynamic alignment (articles 5 and 9), through non-diminution guarantees (article 2) to maintaining the foundations for North–South cooperation (article 11), including how they compare with international human rights non-regression norms. Three aspects are particularly striking: article 2’s novel, domestically enforceable, non-diminution mechanism; the complementary, mutually re-enforcing relationship between the 1998 (Belfast/Good Friday) Agreement and the Windsor Framework; and the comparisons between the Windsor Framework’s approach and NI’s previous relationship with both European Union and Irish environmental law.