London is betting that the EU will continue to blink and make concessions in order to avoid creating conflict in Ireland, Finian Cunningham writes.
Nearly two years after finalizing its Brexit divorce with the European Union, the British Conservative government is now looking to scrap its commitments to the part of that deal known as the Northern Ireland Protocol.
In doing so, the British are gambling with peace in Ireland in the calculation that the EU will make more concessions to London.
London has repeatedly kicked the can down the road regarding its legal obligations to implement the protocol. For the past two years, the British have not introduced new customs arrangements on trade with Northern Ireland. They simply say, "it's not working". They have never tried to make it work.
Britain's government was supposed to introduce customs checks on traded goods between the British mainland and Northern Ireland, effectively forming an Irish Sea border. The purpose was to avoid the creation of a hard land border between Northern Ireland (UK territory) and the Republic of Ireland which is a member of the EU.
The erasing of a land border was a key element of the Good Friday Peace Accord signed in 1998 which ended nearly three decades of deadly conflict in Ireland. The Nationalist population in Northern Ireland and Ireland more generally do not want to see the return of a land border that symbolizes Britain's colonialist partitioning of the island almost a century ago.
Following the United Kingdom's historic referendum in 2016 calling for Britain to leave the EU, the negotiations on the Brexit divorce were habitually hampered by the Irish question. The British could not opt for a "hard Brexit" as this would have necessitated the formation of a land border in Ireland to preserve the EU's Singe Market. London and Brussels both said that protecting the Good Friday Agreement and peace in Ireland was paramount.
Hence, the fudge was innovated that Northern Ireland would remain part of the EU's Single Market. That meant that goods transported to Northern Ireland from the rest of Britain would be subjected to customs checks to meet EU standards. What that created in effect was a constitutional split in the United Kingdom whereby Northern Ireland was different from the rest of Britain. And in effect, Ireland became a unified regulatory territory abiding by EU standards.
In Northern Ireland, pro-British Unionist political parties hated that outcome because it undermined their claims of being an integral part of the United Kingdom. There has been simmering violence from Unionist communities against the implementation of an Irish Sea border.
For the Brexiteer government of Boris Johnson, the arrangement is also galling. Even though he negotiated the Brexit deal and its Northern Ireland Protocol, and hailed it as a success two years ago, Johnson and his Cabinet have not come to terms with the fact that the EU still retains control over the United Kingdom via the special arrangement for Northern Ireland as being part of its Single Market. The European Court of Justice oversees trade disputes involving Northern Ireland. That is an affront to British pretensions of "independence".
This explains why London has obstinately refused to implement the Northern Ireland Protocol for the past two years. That refusal to abide by an international legally binding treaty which Johnson himself signed off on has aggravated relations with the EU. Apart from the bad faith and perfidy, the practical consequence is that goods from Britain can find their way into the Single Market without checks or tariffs by going through Northern Ireland and thence to the rest of Europe. London is making a joke of the EU's Single Market.
To get its way on the matter, the British chief negotiator for Brexit, the aptly named Lord Frost, has repeatedly threatened that Britain will walk away from the Northern Ireland Protocol if the EU does not make concessions on the Irish Sea border issue. This week, Frost warned of "historic misjudgment" if the EU did not re-write the protocol.
By "historic misjudgment", the British government is tacitly threatening the return of conflict in Ireland and playing on the EU's conscience as being responsible for that onerous outcome. If London were to abandon the Northern Ireland Protocol, as it repeatedly says it will, that would inevitably mean the EU having to set up a border between Northern Ireland and the Republic of Ireland. In that case, the Nationalist population will be in uproar. The Good Friday Agreement would have become null and void, and a return to armed conflict would be a major risk.
This week, the EU proposed far-reaching concessions over customs checks on trade between Britain and Northern Ireland. The package on offer reduces red tape controls on trade by up to 80 percent. European Commission vice president Maros Sefcovic said the new proposals could work if the British authorities introduce labeling on goods stating they are not for resale outside Northern Ireland, that is, ensuring there is no back door into the EU market.
The EU is offering a generous compromise to break the logjam - a logjam that has been largely created by British intransigence to not implement a deal it negotiated and signed.
But even with this show of flexibility by the EU, the signs are that London is simply banking the concessions and moving to extract more from Brussels. The British side is now saying that it is unacceptable to them for the European Court of Justice to have jurisdiction over trade issues in Northern Ireland. The court issue is a red line for Brussels. Any member of the EU must recognize the ECJ as a fundamental institution of the bloc. And if Northern Ireland is to remain part of the Single Market then the ECJ must have jurisdiction there.
The raising of the ECJ issue is another case of London moving the goalposts of its Brexit divorce. A collision course is being charted by London rather than seeking a negotiated compromise.
When EC vice president Maros Sefcovic visited Northern Ireland recently he said that no-one raised objections to the European court having jurisdiction. The people with the problem are in London and they are making the issue a showdown. Johnson and Frost are now pushing the EU to not only water down its Single Market rules, they want Brussels to compromise on a foundational matter of the European Court of Justice.
Lord Frost is an unelected member of Britain's House of Lords. He became the chief Brexit negotiator as a political appointee made by Boris Johnson. Yet, ironically, Frost is lecturing the EU that it is being undemocratic on insisting that Britain adhere to its international obligations over Brexit.
The British government pays lip service to protecting peace in Ireland by claiming that it does not want to create a land border between Northern Ireland and the Republic of Ireland. But cynically it is threatening to jeopardize peace by continually warning that it is ready to walk away from the Brexit protocol if the EU does not make concession after concession.
If the British rip up the protocol then the EU will be compelled to set up a border in Ireland to protect its Single Market. London is not only displaying bad faith and showing itself to be duplicitous with regard to an international treaty, it is recklessly playing with people's lives in Ireland. London is betting that the EU will continue to blink and make concessions in order to avoid creating conflict in Ireland.
Of course, from a wholly different perspective the solution to all this is rather simple. Britain should relinquish its undemocratic territorial claim to Northern Ireland and allow the island to be reunited as independent nation, an outcome that the majority of the people on the island of Ireland would welcome. For the Johnson government to lecture the EU about democratic consent and jurisdiction in Ireland is nauseating hypocrisy.