As the negotiations on the UK’s withdrawal from the EU drag on, heading to a last minute fix in late October 2018, one cannot help but worry what this will do to the island of Ireland. Just to recall, this island will be divided by an external EU border as a result of the UK’s decision to withdraw from the EU. Although the referendum on EU membership within Northern Ireland returned a 56% majority in favour of remaining in the EU, withdrawal is meant to include Northern Ireland. Thus, contrary to a well rehearsed mantra, Brexit does not mean Brexit (i.e. the exit of Great Britain from the EU), but instead means that Great Britain drags Northern Ireland along that path of national insulation.
The division of a relatively small island between two states was made less destructive through the common EU membership of both states with a claim over this island. Only more than ten years after the UK and Ireland joined the then EEC they concluded a bilateral Treaty, the Anglo-Irish Treaty (1985), and a quarter century later, the Good Friday Agreement (also called Belfast Agreement, or 1998 Agreement by the EU) sealed a ceasefire and initiated a peace process after the warfare referred to as “Troubles” around the position of Northern Ireland. Since then, Northern Ireland has a hybrid status. Both Ireland and the UK gave up a permanent claim to the province. It belongs either to the UK or Ireland, depending on what the majority of its population prefers. At the same time its government is based on power sharing between those who prefer the status quo (presently UK membership) and those preferring a different solution, and is also a common concern of the UK and Ireland.
Brexit is not only relevant to the two-state reality on the island of Ireland, which is often reduced to a “border problem”. The UK’s withdrawal from the EU will also constitute a physical barrier within the EU, cutting of the island of Ireland from the EU mainland and enhancing the detriments of its geographical position at the EU’s Western fringes. This risks reversing the process of emancipation from the UK which for Ireland (now referring to the Republic of Ireland) initiated with its EU membership: while the Irish economy is still overly focused on exchange with the former colonial power, the share of exports to and imports from other parts of the EU has steadily increased throughout its EU Membership, as well documented for the first 30 years, and today Imports and exports of goods to EU Member States other than the UK usually cross the UK, a crossing that will require new international agreements just to secure that the Irish products reach their destination in the same time as before. Ireland will also have to replace UK exports by other exports, which means these crossings will have to increase rather than decrease. Northern Ireland, as a part of the UK, is still more dependent on Great Britain for trade than on any other EU Member State, and interestingly also depends more on Ireland than vice versa, as the Northern Irish Statistics and Research Agency summarises. The economic dependence on Great Britain notwithstanding, Northern Ireland is also more dependent on trade in goods, in particular agricultural goods, to other EU Member States than Great Britain.
The impact of “Brexit” on the island of Ireland further will be more severe than elsewhere because the combination of relative remoteness and size makes all-island integration vital not only in the economy, but also in public service areas such as health care, (higher) education and more generally in civil life. This cooperation has been developed in specific policy processes emerging from the 1998 Agreement, but also in the general integration process emanating from the EU.
How will all this be replaced, if at all? Worryingly, the relevance of the Irish question in the withdrawal negotiations is in steady decline: Initially, the European Parliament and the European Council (Article 50 constellation) initially promised (as proposed by the EU Commission) to take into account the unique problems of the island of Ireland as a whole. This raised the hope that an overall perspective as developed here might inform the negotiations: next to avoiding a physical border on the island, there would also be agreement on how to alleviate the negative economic impact on the island overall, and to ensure that a change in Northern Ireland’s affiliation would not require a new accession procedure for the island of Ireland. However, in the negotiations the specific problems quickly narrowed down to three issues: avoiding physical border infrastructures and controls at the border (i.e. allowing “bordering” through extensive past border controls of goods, services and people), continuing payments from so called “peace money” and continuation of the political institutions created by the 1998 Agreement (with less attention to the civic interaction beyond formal politics). This was the substance of the interim negotiation agreement of December 2017.This document still mentioned the aspiration of ““achieving reconciliation and the normalisation of relationships on the island of Ireland” (paragraph 47), while the EU Commission’s draft withdrawal agreement purports to “safeguard North-South cooperation, the all-island economy, and protect the 1998 Agreement” (recital 13 of the draft protocol on Ireland / Northern Ireland), thus abandoning normalisation beyond state parties. The draft withdrawal agreement is very far from maintaining Internal Market access for Northern Ireland, in that it establishes a regulatory area for free movement of goods only (including agricultural produce and electricity). Thus, the EU Commission has documented that in its view the Internal Market is far from indivisible: it allows access to the goods market for Northern Ireland specifically. The main critique of the proposal is, however, that it does not do justice to the hybrid character of Northern Ireland as an area where authority is shared between two states, one of which will be outside the EU in the future. Partly, this is inevitable: contrary to positions becoming increasingly popular, the 1998 Agreement never mainly rested on Irish British relations. Common membership of both states in the EU as a supranational institution whose law has direct effects and supremacy in all its Member States has been a silent, but indispensable bedrock of the agreement. The critique of the draft withdrawal agreement stands, as elaborated here. However, it is probably much better than what will be hatched by the UK government. Nevertheless, neither the EU nor the Irish government seem able at present to look beyond the avoidance of a physical border and the fixation on maintaining the trade between Ireland and the UK. The problems of full and equal citizenship in Northern Ireland will have to be addressed if the hybrid status is to be maintained. Presently, those not claiming Irish citizenship seem to loose most, as they can only engage in the all-island economy and society if they already are frontier workers (employed or self-employed), and can rely on the citizenship chapter of the draft withdrawal agreement. Neither cross border service provision nor future cross border work are protected. Irish citizens in Northern Ireland have no enforceable guarantee that the UK will continue to allow them full access to work, education, health care and other services: the oft-cited common travel area is not a legally binding agreement, and can be changed unilaterally. The draft withdrawal agreement allows its continuation as far as it is compatible with EU law, but does not demand any continued application. Much remains to be done…
(Sorry, I would like to be more positive! Dagmar Schiek – drawing on two more expansive papers: “Hard Brexit – Ways forward for the Island of Ireland” and “The Island of Ireland and ‘Brexit’ – A Legal-Political Critique of the Draft Withdrawal Agreement“)
EU Law Critique 