The Northern Irish border has been turned into a diplomatic land mine, by being unnecessarily lumped in with other preconditions before Brexit talks turn to the commercial aspects. Its positioning there was either negligence or antisocial, but it either case it finds itself in good company. The UK’s financial liabilities are an obvious diplomatic lever that the Commission has sought to snap in advance by demanding prior agreement. Adding the Irish border could equally be interpreted as an attempt to bounce London into remaining tightly associated within the EU regulatory if not indeed customs orbit.
This approach clearly backfired by raising the diplomatic stakes so soon. Yet the issue could still be resolved by political agreement once the UK’s wider terms are more clearly defined. This is particularly so because the EU has a track record of diplomatic exceptionalism relating to its external borders, where the judiciary tends to play a second order role.
Working round internal deals and hoping judges don’t rule against them only ever works if no one complains. Otherwise, even if political chits are expended to keep counterparts happy the best that can be hoped for is dragging the issue out to the point where the bill is cut. The classic case in point relates of the long saga of Italian milk quotas. From 1995 onwards, Italian dairies heaped up accumulated fines for exceeding milk quotas til the bill ran to well over a billion Euros. A political deal in 2003 allowed Rome to pay up front (reporting at the time suggested at a much reduced rate), and to then reclaim the illegal state aid from suppliers in multiple instalments and without the normal interest. The compromise arose through the Council bouncing the Commission and the Courts at a time when the EU had a lot on its plate, like sorting out and ratifying a draft EU Constitution. Despite the compromise, the saga continues to this day.
Contrast this unhappy scenario though with the legal fudges that have been associated with vexatious external borders. Here, the writ of the Luxembourg Court has been lighter, and judges less inclined to intervene in what are clearly areas laden with diplomatic consequences, which has allowed the Commission and the Council to bend the rules much more.
Those pondering the Irish border might thus usefully consider the precedent set, if not in EU law, by what we might style ‘international intertidal zones’. A number of cases show that the EU is capable of developing a flexible approach where there is a level of political or diplomatic complexity. In short, the EU has fudged its trading rules in the past and could - if it wanted to - do so again with respect to Ulster.
The first precedent cited involves applying an interpretation of constitutional law to override the Treaty of Rome. The treaty carries the signature of three representatives from West Germany but none from the East. Article 227 does not mention the latter. Yet Bonn’s territorial claims were maintained when it was convenient to seek, for political purposes, to allow East German exports into the Community. By comparison, Dublin has dropped its territorial claim on the North; but passports rights and All-Ireland organisations still demonstrate exceptional circumstances.
The second case is particularly pertinent as it involves a fifteen year period where, post-independence, Algeria was quietly allowed to maintain trade access until areas had diverged sufficiently to require a new treaty.
The third case will be better known to the legal profession. The Republic of Cyprus (ie the predominantly Greek South) claims, and is largely recognised internationally as holding, sovereignty over the whole island. Legally, this has been most noted through cases involving expats who had bought land in the North, and the upholding of the jurisdiction of the courts of the South who considered these to be violations of property law from dispossessed owners. In treaty terms, however, what is most interesting is the EU country accession clause that effectively establishes a legal right for the Council to maintain, but also apply a slider to, the trade frontier that exists with the Green Line.
All of these cases are areas where international law and case studies generate precedent and flexibility where the CJEU itself most likely would not. This, perhaps, is as plain an argument as any to keep the North-South border an intergovernmental one, and to keep the Luxembourg judges as far as is practicable out. But it also demonstrates that the Commission and the Council both have the precedent to bend the rules when it suits, and can do so again.
All views expressed in contributions by named authors are their own and may not reflect the views of The Freedom Association.