Territorial disputes: Northern Ireland (Part 22) [Post 107]

There are many academic and non-academic articles about Northern Ireland. Today’s post include references to two documents that offer a views about Northern Ireland in light of Brexit.

Previous post about Northern Ireland (part of the TERRITORIAL DISPUTES series):
The first document introduces HM Government’s position about the future on Northern Ireland and the relationship with the United Kingdom and thE European Union.
The second document includes the analysis of this situation by the European Union.
Northern Ireland and Ireland. Position Paper. HM Government
This paper outlines the United Kingdom’s (UK) position on how to address the unique circumstances of Northern Ireland and Ireland in light of the UK’s withdrawal from, and new partnership with, the European Union (EU).
1.   The United Kingdom welcomes the establishment of a dialogue on Northern Ireland/Ireland issues between the UK and the EU negotiating teams. The UK believes that this dialogue should be substantial and detailed, and seek to address the unique circumstances of Northern Ireland and Ireland in a comprehensive and flexible way. The UK and the EU had positive exploratory discussions in the July round of negotiations covering the UK’s proposals in relation to the Belfast (‘Good Friday’) Agreement and the Common Travel Area and associated rights.
2.   The UK’s withdrawal from the EU, and the development of a new, deep and special partnership between the UK and the EU, has important implications for Northern Ireland and Ireland. While continuing to take account of these interests across the board, the UK believes that there are four broad areas where a specific focus on the unique relationship between the UK and Ireland, and the importance of the peace process in Northern Ireland, is required in the initial phases of the dialogue. This paper sets out the UK’s proposals for these areas as follows:
Section 1: upholding the Belfast (‘Good Friday’) Agreement in all its parts;
        Section 2: maintaining the Common Travel Area and associated rights;
        Section 3: avoiding a hard border for the movement of goods; and
        Section 4: aiming to preserve North-South and East-West cooperation, including on energy.
3. An early and specific focus on these issues is consistent with the European Council’s negotiating guidelines and the European Commission’s directives, the Irish Government’s priorities paper, and the UK Government’s White Paper and Article 50. It is also in line with the issues “of particular significance” set out by the former First Minister and deputy First Minister of Northern Ireland in their joint letter of 10 August 2016 to the Prime Minister. The European Council’s negotiating guidelines are clear that “flexible and imaginative solutions” must be developed on border arrangements as an early priority in the negotiations.
4. There is significant overlap in the objectives set out by the UK Government, the Irish Government and the EU. In particular, it is clear that our high level objectives are wholly aligned with regards to: avoiding a hard border; maintaining the existing Common Travel Area and associated arrangements; and upholding the Belfast (‘Good Friday’) Agreement, including the principles of continued North-South and East-West cooperation. The UK therefore welcomes the opportunity to discuss how best to deliver these shared objectives
5. The UK believes that swift progress should be made in agreeing the way forward on the Common Travel Area and associated rights and some of the specific issues arising from the Belfast (‘Good Friday’) Agreement by October. The UK also believes it is possible in this phase to establish working principles for the movement of goods, energy and wider cross-border cooperation that will underpin the development of technical solutions as part of the negotiations on the future relationship between the UK and the EU. Given the complete alignment between the UK, Ireland and the EU on high level objectives for these crucial issues, and our strong support for the peace process in Northern Ireland, these solutions should be agreed at the earliest opportunity. To facilitate progress, the UK proposes to discuss in forthcoming negotiating rounds the high level principles and criteria that could be agreed and used to test potential future models for border arrangements.

Northern Ireland and Ireland. Position Paper. HM Government

The Impact and Consequences of Brexit for Northern Ireland  
·       Northern Ireland is the part of the UK most distinctly affected by Brexit. The introduction of a ‘hard border’ with the Republic of Ireland is a particular concern, with customs controls probable and immigration checks possible. Free movement across the island of Ireland remains a desired feature of a strong bilateral relationship which strengthened amid common EU membership and the Northern Ireland peace process.
·       Northern Ireland has no autonomy over Brexit. As such, Northern Ireland’s 2016 referendum vote to remain within the EU is, in constitutional terms, of no significance. The UK Supreme Court has stated categorically that the consent of the Northern Ireland Assembly is not required for the UK government to withdraw from the EU.
·       The UK’s relationship with the EU (and its termination) is an excepted power, retained by the UK government. No powers have been devolved to the Northern Ireland Assembly in this respect. The 1998 Northern Ireland Act gives the Assembly the right to pass laws but only in devolved policy areas and does not affect the power of the UK Parliament to make laws for Northern Ireland.
·       The Northern Ireland Assembly will be able to determine what EU legislation should be retained where it affects Northern Ireland in policy areas over which the Assembly holds devolved powers.
·       Brexit will require deletion of references to the EU within the 1998 Good Friday Agreement, Northern Ireland’s peace deal. The all-island aspects of the Agreement most embed the EU and provide institutional mechanisms for the continued financing of the peace process by the EU. Given the status of the Good Friday Agreement as an international treaty and its endorsement in referendums in Northern Ireland and the Republic of Ireland, a reworking could be challenged but there seems no legal room for such a challenge. The UK and Irish governments appear to desire some form of special status – without using that term – for Northern Ireland, given the potential adverse economic effects in both jurisdictions and the political sensitivities accruing to any hardening of the border dividing the island.
·       The political sensitivities of Brexit are considerable. Most nationalists voted to remain within the EU. They see themselves as Irish citizens, i.e. members of the EU, and wish to retain that status. A minimum demand is special status for Northern Ireland. A majority (but a far from overwhelming one) of unionists voted to leave. Whilst the risks to the current relative peace are minimal, the extent of continuing inter-communal polarity provides a strong case for special treatment for Northern Ireland.
·       A bilateral bespoke deal between the UK and Irish governments to maintain the Customs Union between the two states – which would continue to render invisible Northern Ireland’s frontier with the Irish Republic – would require EU approval. The UK government has listed tariff-free trade across borders, via a special agreement with the EU, as a priority. Failure to conclude such a deal will impact significantly upon Northern Ireland as a site of tariff checks.
·       The UK government has listed the maintenance of a Common Travel Area (CTA) between the UK and Ireland as one of its negotiating priorities. Its abolition would have significant potential impact upon travel across the border.
The Impact and Consequences of Brexit for Northern Ireland  
Jorge Emilio Núñez
Twitter: @London1701
24th July 2018

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