The British electorate’s June 23, 2016 vote to formally withdraw the United Kingdom from the European Union creates several legal complications for the Northern Irish peace process. Chiefly, British Prime Minister Theresa May’s “hard Brexit” strategy calls for removing Britain from the common European market and rejecting the supremacy of the European Court of Justice, thereby undermining key promises made during the 1998 Northern Ireland peace negotiations.
Great Britain’s relationship with Northern Ireland has been historically volatile. Between the late 1960s and 1998, over 3,600 people were killed in what became known as “The Troubles,” an era marked by violence between predominately Catholic republicans seeking Northern Ireland’s reunification with Ireland as one nation-state and predominately Protestant loyalists working to keep Northern Ireland as a part of Great Britain. The paramilitary unit, the Irish Republican Army (IRA), violently sought to advance republican objectives, while the loyalists’ paramilitary Ulster Volunteer Force (UVF) engaged in acts of terrorism to combat republicanism. With mounting violence and the increasingly costly participation of the British military in suppressing the IRA, the IRA and UVF agreed to a political ceasefire in 1994. In April 1998, the British government, the Irish government, the Northern Irish government, along with representatives of various paramilitary groups, signed the Good Friday Agreement effectively ending the use of violent campaigns for political purposes. These negotiations resulted in the creation of new democratic institutions designed to increase Northern Ireland’s political autonomy, while still mandating that it formally remain a part of Great Britain. Now, the “hard Brexit” strategy engenders several legal questions regarding the viability of the Good Friday Agreement.
Perhaps most importantly, Prime Minister May’s Brexit plan would remove Great Britain from several European institutions explicitly mentioned in the Good Friday Agreement. Republican representatives viewed these human rights commitments as an essential check against allowing the British government to abuse republicans and Catholics. For instance, Strand One, Section 5 of the Good Friday Agreement guarantees “safeguards to ensure that all sections of the community can participate and work together successfully,” with “the European Convention on Human Rights (ECHR)” explicitly cited as a safeguard. The Good Friday Agreement also promises “arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR.” Even more critically, the Good Friday Agreement obligated the British to “complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.” Here, the British government formally agreed to allow the ECHR to trump domestic legislation. Prime Minister May’s repudiation of ECHR supremacy contradicts this promise. Finally, the Good Friday Agreement also imposes obligations for the Northern Irish and Irish government to consider “institutional or cross-sectoral matters (including in relation to the EU)” as well as obligations for the newly created Northern Irish Assembly to work with the British parliament on policy-making “including on EU issues.” It is difficult to conceptualize how the parties can fulfill these obligations to discuss EU matters if the Brexit vote results in Great Britain and Northern Ireland withdrawing from the EU.
Great Britain’s commitment to ending the jurisdiction of the European Court and removing itself from the European Convention on Human Rights creates both legal and political questions. Gerry Adams, as the leader of the most powerful republican political party in Northern Ireland, Sinn Fein, has already declared that Prime Minister May’s plan will “destroy” the Good Friday Agreement. He asserts that Britain’s rejection of these European institutions vitiates the fundamental human rights promises contained within the Good Friday Agreement. According to Article 3 of the International Law Commission’s Draft Article, a wrongful act by a state has two elements: the objective element consisting of an action or omission contrary to an international obligation, and the subjective element having to do with attributing the breach to a state. The withdrawal from the key institutions cited in the Good Friday Agreement would seemingly satisfy an “action…contrary to an international obligation,” and, since executing any Brexit strategy requires support from both the Prime Minister and Parliament, the current Brexit plan would also fulfill the subjective element mandating that a breach be attributable to a state. Questions regarding how to respond to this breach also prove critical, as all parties remain committed to upholding the principles of the Good Friday Agreement but also seek the added safeguard of the European Court’s jurisdiction.
Moreover, Britain’s withdrawal from the European Union and the European Customs Union raises legal questions regarding the future of the border shared between Ireland, an EU member state, and Great Britain’s Northern Ireland territory. This divide represents the only land border shared between Great Britain and another European Union member state. The European Customs Union allowed Great Britain and Ireland to engage in tariff and paperwork-free trade to minimize travel and trade barriers. However, Britain’s commitment to adopting stricter migration and trade standards than those mandated by the European Union renders maintaining the status quo impossible. A return to “hard borders” also threatens to provoke increased tensions within Northern Ireland, as the militarized border that existed prior to the European Union’s standardized rules proved a focal point for inflaming republicans seeking a united Ireland. Although some commentators urge the creation of a unique border agreement between Northern Ireland and Ireland that minimizes travel requirements akin to the Norwegian-Swedish border, this agreement is largely only possible due to both member states’ participation in the European Economic Area (EEA). Promulgating uniform border rules that avoid contravening the Good Friday Agreement’s promise of inclusion in the European Union and avoiding old sectarian tensions may thus be another critical legal sticking point for the May Administration.
All of these problems highlight the necessity of carefully evaluating Brexit’s impact on Northern Ireland in order to ensure the continued success of the Good Friday Agreement.
Thomas Enering is a second-year student at Columbia Law School and an Assistant Financial Editor for the Journal of Transnational Law. He graduated from Vassar College with a degree in Political Science and History, and he received an MPhil in International Relations from the University of Cambridge.