The Irish Border and the Safeguard of the UK Territorial Integrity
David Collins (City University)
The border in Ireland has emerged as the most significant, perhaps the only remaining barrier to the conclusion of sensible trade arrangements between the UK and the EU post-Brexit. It may also be the main reason why so many British legislators continue to delay and frustrate negotiations wherever possible. Whether legitimate or exaggerated, the risk of undermining peace in Ireland as the consequence of the establishment of a so-called ‘hard border’ requiring customs inspections, led to the creation of the notorious Backstop, essentially a system through which Northern Ireland would retain regulatory alignment with the EU once the UK leaves, precluding the need for border infrastructure indefinitely. This EU-imposed condition has rightly been depicted as a threat to the UK’s sovereignty, effectively cutting off Northern Ireland from the rest of the UK – ‘the price of Brexit’ or ‘punishment for Brexit’ as some might say. For the EU, and especially Ireland, the backstop is an essential component of Brexit, so important that the EU appears to be unwilling to pursue trade negotiations in any form without it.
Some believe that the Irish border problem can be solved without Northern Ireland falling under the EU’s regulatory umbrella in perpetuity through the application of alternative arrangements, essentially technology such as bar code scanning along with pre-registration, preferred trader status and the removal of inspections from the border itself. Whether these untested plans would actually work is unknown, as reports from various expert bodies exploring these initiatives appear never to have been taken seriously. What is clear is that the EU will not countenance such alternative arrangements, and it would appear as though, in the absence of their serious consideration, ongoing Brexit negotiations are not being pursued in good faith.
Continued efforts by Remain-committed members of the UK parliament to legislate against leaving the EU without the Withdrawal Agreement and its Backstop, or something very much like it, (possibly a smokescreen for those who want Brexit reversed) have now evidently strengthened the EU’s hand, as Prime Minister Johnson had feared. It now appears as though the EU would not even be willing to offer the UK as good a trade agreement as it did to Canada because of weaker regulations, or something. Knowing that the UK must accept whatever they offer, the EU will of course push for one which contains the Northern Irish Backstop since it enlarges their sphere of regulatory control.
Which brings us to ‘No Deal’ – a concept invented by those who are so committed to reversing Brexit that they have re-imagined the 2016 referendum as one which in which the option of ‘leave’ necessarily included a comprehensive trade deal including something like the Backstop, whereas in fact the referendum said nothing of the sort. Of course, leave meant leave, with the hope of securing a trade deal if possible, like any independent country. Still, at least as things stand today, if no solution can be reached on the Irish border, the UK will leave the EU anyway, probably on 31 October 2019, but perhaps now January 2020 thanks to the strategic delay tactics of elements within the UK parliament who unfathomably believe a few more weeks will make a difference. This will mean leaving with no framework in place for keeping Northern Ireland aligned to the EU.
For its part the UK has confirmed that this will not lead to a return to a hard border in Northern Ireland for the simple reason that the UK government has no intention of erecting any customs infrastructure whatsoever. In theory this would violate the UK’s commitments as a Member of the World Trade Organization, notably Article I of the General Agreement on Tariffs and Trade (GATT) under which each Member promises to treat all other Members the same for the purposes of trade regulations. By not enforcing a customs border, the UK would be giving preferential treatment to the EU, at least with respect to goods entering from Ireland. However, this course of action would be legitimate because it would almost certainly be excused by Article XXI of the GATT which allows WTO Members to take any measures which are in the interests of its essential security. Preventing a civil war in Ireland is surely an issue of the essential security. Therefore, the border in Ireland, at least from the UK’s perspective (south to north) can remain as non-existent as it is today and remain valid under international law. Goods will enter from the EU without tariffs or inspections, as they do now. The volume of goods crossing the Irish border is small anyway, accounting for a small fraction of the UK’s imports and an even smaller portion of those of the EU.
The genuine concern for the people of Ireland in the context of No Deal comes from the acts of the EU not the UK. This is because it is far from clear that the EU will not follow the British example and leave the Irish border (north to south) as it is today, in fact it is unlikely that they will do so. The EU is concerned that by not erecting customs inspections infrastructure at the border this will lead to unacceptable ‘seepage.’ Goods from the UK, possibly of lower standards, will enter the EU across the Irish border thereby contaminating the Single Market. It is therefore entirely possible, perhaps even likely, that the EU will indeed place customs inspections at the border through and in so doing undermine the precarious Irish peace process.
The importance of this point must be emphasized: if the EU erects a hard border in Ireland after Brexit it is placing the integrity of its Single Market ahead of peace in Ireland. The logic of those who oppose Brexit because of its impact on Ireland therefore seems to be: The UK’s desire to safeguard its own territorial integrity over Northern Ireland is reckless and unacceptable, whereas the EU’s insistence on the integrity of the Single Market is noble and legitimate, to be maintained at all costs. The depth of the hypocrisy over this issue is breathtaking.
It is the EU’s fixation on its internal economic regulatory purity, not the UK’s sovereignty, which represents a threat to peace on the island of Ireland. This fact is quite revealing in terms of the depth of the commitment, at least by some, to the ideology of the EU project and its agenda. It is also worth keeping in mind when questioning the reason that a majority of British voters voted for Brexit and continue to support departure from the EU.
The views expressed in this article reflect the position of the author and not necessarily the one of the Brexit Institute Blog
David Collins is Professor of International Economic Law at the City, University of London (Tw @davidcollinslaw)