Between a Rock and a Hard Border

By Michael Canavan

Twenty years ago, the three hundred mile stretch of fortifications, guard towers, and military checkpoints separating the Republic of Ireland from Northern Ireland was one of the most foreboding international boundaries in the world. But since the signing of the Good Friday Agreement in 1998, finally ending the decades of sectarian violence known as the Troubles between the predominately Catholic nationalists seeking Northern Ireland’s reunification with the south and the largely Protestant unionists fighting to stay in the United Kingdom, today that border is all but invisible. Tens of thousands cross with ease every day, living on one side and working on the other, no customs check or even passport required. However, one of the underlying assumptions of the 1998 peace treaty was that its main signatories, Ireland and the U.K., would remain members of the European Union. Now as Britain prepares its Brexit there is growing concern as to what the U.K’s only land border with the EU will look like after negotiations are finished.

Since the Brexit referendum, the Irish government has been firm in its opposition to any return of a “hard” border on the island and at one point threatened to use its EU veto to halt further Brexit negotiations if Britain did not provide a written guarantee the border would remain open. Last month after an extended back and forth, British negotiators appeared to have delivered the all assurances Dublin needed, but how strong these promises are remains to be seen. In a joint report with EU negotiators, Britain has agreed to work toward “avoiding a hard border” and “[i]n the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.”

In recent weeks considerable debate has centered around the meaning of the term “full alignment.” Prime Minister Theresa May has been clear the U.K. will not be remaining in the EU’s internal market or customs union, so full alignment will certainly not mean identical to EU rules. Indeed, Brexit Secretary David Davis has explained “alignment isn’t harmonisation, it isn’t having exactly the same rules. It is sometimes having mutually recognised rules, mutually recognised inspection, all of that sort of thing”. But on the other hand it is hard to see how British law and regulation could meaningfully diverge in this area without requiring at least some border controls in Ireland and the physical infrastructure necessary to implement them. So far there has been little success in finding a middle ground. Suggestions that some form of electronic monitoring technology could facilitate the type of frictionless border all parties desire have been met with skepticism, while compromises such as leaving the land border open and securing only sea and airports have been rejected by Northern Ireland’s Democratic Unionist Party.

The fear of a “hard” border reappearing in Ireland is based on more than just the potential difficulty this will pose for cross border businesses, there is also worry as to the impact this powerful symbol of division will have on the delicate peace brokered between the communities of Northern Ireland twenty years ago. “[H]ardening the border is like opening a wound” says one resident, and the possibility of border infrastructure becoming a target of terrorist attacks by dissident groups is being taken seriously. In light of these considerations, the issue of the Irish border is poised to become the greatest obstacle to Britain’s successful exit from the European Union and with only a year remaining before its scheduled departure, time is running out to find a solution.

References

Jessica Elgot, Ireland threatens to block progress of Brexit talks over border issue, Guardian (Nov. 17, 2017), available at https://www.theguardian.com/politics/2017/nov/17/irish-pm-brexit-backing-politicians-did-not-think-things-through.

Patrick Smyth, ‘Regulatory alignment’ with EU could be called ‘soft Brexit’, Irish Times (Dec. 6, 2017), available at https://www.irishtimes.com/news/ireland/irish-news/regulatory-alignment-with-eu-could-be-called-soft-brexit-1.3316882.

Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom’s orderly withdrawal from the European Union, (Dec.8, 2017) available at https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf

Ireland ‘will not design a border for the Brexiteers’, says Taoiseach, Guardian (Jul. 28, 2017), available at https://www.theguardian.com/world/2017/jul/28/taoiseach-leo-varadkar-ireland-not-design-border-brexiteers

Rodney Edwards, Theresa May’s deputy tells the DUP: No border in the Irish Sea, Irish Times (Nov. 26, 2017), available at https://www.irishtimes.com/news/politics/theresa-may-s-deputy-tells-the-dup-no-border-in-the-irish-sea-1.3305786.

Arthur Beesley, Hard border would be setback for Northern Ireland peace, say locals, Fin. Times (Nov. 9, 2017) available at https://www.ft.com/content/932e7be4-c57a-11e7-a1d2-6786f39ef675.

Aubrey Allegretti, Irish hard border would be ‘obvious terror target’ , Sky News (Dec. 7, 2017) available at https://news.sky.com/story/irish-hard-border-would-be-obvious-terror-target-11160320.