The Irish Border Issue in Qu Bing and Wang Shuo

The Irish Border Issue in Brexit

The Irish Border Issue in Brexit

Qu Bing & Wang Shuo*

Abstract: After a long period of obsolescence, the Irish border issue has reemerged in the context of Brexit, and any solution will affect not only the UK’s national unity, but also the peace process and UK-EU economic and trade relations. Back-and-forth negotiations brought about the Draft Withdrawal Agreement, which included the“backstop” arrangement for the Irish border. This agreement soon suffered strong opposition in the UK Parliament, while the EU refused to make any substantive concessions. Trapping Brexit into the“Britain-drag”, the Irish border issue has become Brexit’s bottleneck. While the border issue carries sensitivity and complexity in itself, another even more important reason that is so significant is that it has become clear that the UK and the EU are not on the same track when it comes to interest defining and policy selection, never mind the tangled mentalities of Brexit. The Brexit dilemma, when combined with the Irish border issue, has cast a spotlight on the West’s political and social fragmentation, as well as the dysfunction of its parliamentary democracy. No matter how the withdrawal deal is settled in the future, the UK and the EU are likely to be persecuted by the Irish border issue for a long time to come. Keywords: Brexit, Irish border,“Backstop”Arrangement, the UK-EU relationship

ith the UK part of the EU, the border between Northern Ireland and Wthe (the Irish border) was kept invisible, and was not construed as a“problem”at all. However, Brexit has broken the status quo. As moved towards specifics, the Irish border

* Qu Bing is an associate research professor at the Institute of European Studies, CICIR, whose research expertise covers the United Kingdom. Wang Shuo is deputy director and a research professor at the Institute of European Studies, CICIR, whose research expertise covers European integration and the European economy.

CIR November/December 2019 1 Qu Bing and Wang Shuo gradually became the trickiest question of all, with the“backstop”arrangement for avoiding a“hard border”in the island of Ireland as the focus of controversy. While the Draft Withdrawal Agreement encountered strong opposition in the UK Parliament, the EU maintained a firm ground in amending the agreement, leading to the protraction of Brexit. Without the Irish border issue, Brexit would be able to progress much more smoothly. As such, what is the origin of the Irish border issue and how did it become the Brexit Achilles heel? What are the underlying reasons for the deadlocked disputes between the UK and the EU? What domestic entanglement has the UK fallen into? This study attempts to respond to these questions, to sort out the internal logics and then to further explore potential prospects.

The Irish border issue, as a historical legacy, was basically resolved along with European integration and the Northern Ireland peace process. However, it resurfaced with Brexit. The issue of whether or not to keep the Irish border open is highly significant, and is important in terms of socioeconomics and political security. A. The Irish border grew from nothing and evolved from“soft”to“hard”. Ireland was the first English colony, and the Irish struggle against British rule never ceased. The“Easter Rising”and the Irish War of Independence (1919-1921) after World War I were the climax of the Irish fight against Britain. In December 1921, the British government allowed the 26 counties of southern Ireland to establish a“Free State”, while the six counties of the north (Northern Ireland) remained under British rule. With the Irish North-South partition, a borderline of approximately 500 kilometres between Northern Ireland and the Republic of Ireland came into existence. Looking at the historical context, Vincent Boland of the UK’s Financial Times pointed out that“[t]he border was meant to provide protection—both physical security and the guarantee of their political and cultural identity—for the province’s majority Protestant population, and especially for the communities living beside the frontier itself.”1 During

1 Vincent Boland,“Dividing Line: Brexit and the Threat to the Irish Border,” Financial Times, May 18, 2017.

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the mid-1920s, Britain and Ireland established the“Common Travel Area”, as a means of ensuring that the free movement of people between Northern Ireland and Ireland would not be affected by the North-South partition. Before the 1970s, most roads crossing the border were unimpeded, and only the crossing of cars and the transportation of goods were subject to certain restrictions. From 1968, conflicts between the Catholics and the Protestants in Northern Ireland intensified with repeated violent incidents, and Northern Ireland entered“The Troubles”. In November 1971, two civilian customs officers were shot dead at their post by Provisional Irish Republican Army (IRA) snipers.1 To prevent paramilitaries like the IRA from carrying out violent activities, Britain imposed strict frontier controls, closing more than 200 small roads across the border, putting up barbed wire, and setting up checkpoints and watchtowers along the borderline. The result was that these security facilities, as well as the patrolling military, police and militiamen, became targets of the paramilitaries’ attacks instead. The Irish border retrogressed from“an economic border”into“a military border”, with the border zone becoming increasingly dangerous. B. European Integration and the Northern Ireland Peace Process turned the Irish border from“hard”to“soft”. On January 1, 1993, the was officially launched, and this enabled members to abolish trade frontiers and freed the cross-border goods from having to undergo customs checks. But Britain’s security checkpoints along the Irish border obstructed the free movement of both people and goods. Beginning in 1994, and in particular after the Belfast Agreement of 1998, the Northern Ireland peace process entered a new stage. This was marked by the UK pulling down its checkpoints, watchtowers and other security facilities along the border. Accordingly, the Irish border has in reality become an “open border”(also referred to as a“soft border”).2 Northern Ireland society has returned to normal, with a significant decline in the fatalities through

“1 Brexit and the Irish Border,”Times, April 6, 2018. 2 On April 10, 1998, the British government, the Irish government and major political parties of Northern Ireland signed the Belfast Agreement (also called the Good Friday Agreement), putting an end to over three decades of conflicts and unrest and opening a new chapter of peace in Northern Ireland.

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violent conflicts. According to statistics, in the 30 years from 1969 to 1998, the Northern Ireland conflicts led to almost 3,500 deaths, while from April 1998 to April 2018, only 158 died in direct relation to violent conflicts.1 In order to nurture economic development and social integration, the Belfast Agreement established a mechanism for cross-border cooperation between Northern Ireland and Ireland (the so-called North-South cooperation) in trade, education, medicare and agriculture, etc. In 2017, the UK government and the European Commission confirmed 142 areas of north- south cooperation. Cross-border travel increased significantly, with 30,000 people crossing the border each day for work, school or doctors visits.2 More than 80 percent of cross-border trade was carried out by small and medium-sized companies, whose production and supply chains often involved multiple border crossings. The Northern Ireland Food and Drink Association pointed out that 30 percent of the province’s milk and 40 percent of its sheep went south (to the Republic of Ireland) for processing. Both Guinness and Bailey’s Irish Cream crossed the border for canning, bottling and export.3 This meticulously demonstrates the hand-in-glove North-South cooperation in the island of Ireland. C. Brexit poses the potential risks of turning the Irish border from “soft”to“hard”again. While the UK and Ireland are both members of the EU, the two countries belong to the Single Market and Tariff Union, enjoying free movement of people and goods, as well as normalized and de-politicized cooperation across the border.4 After Brexit, the border between Northern

1 Steven McCaffery,“Key Legacy of Good Friday Agreement: Lives Saved,”April 10, 2018, accessed December 13, 2018, https://www.thedetail.tv/articles/the-legacy-of -the-good-friday-agreement-how-the-peace-dividend-has-saved-lives. 2 Colm Kelpie“, Officials Pore through 142 Irish Issues in the Great British Break -off,”November 4, 2017, accessed May 23, 2019, https://www.independent.ie/business /brexit/officials-pore-through-142-irish-issues-in-the-great-british-breakoff-36288014.html. 3“Free Falling,”Economist, November 24, 2018, 24. 4 The Single Market is the advanced stage of European integration with comprehensively uniformed or mutually recognized standards among the members, enabling free movement of goods, people, services and capital. The benefits of the Customs Union include zero tariffs, quota free, no need for certificates of origin and the members mainly need to TBT and SPS verification only. See European Parliament“, Customs unions and FTAs: Debate with respect to EU neighbours,”November 2017, accessed May 23, 2019, http://www.europarl.europa.eu /RegData/etudes/BRIE/2017/608797/EPRS_BRI%282017%29608797_EN.pdf.

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Ireland and Ireland will be the only land border between the UK and the EU, and that will also be the border between the“EU area”and the“non- EU area”. The UK government has clearly expressed that the UK plans to withdraw from the Single Market and the Tariff Union after Brexit, meaning that this will also become the border between two tariff and regulatory areas. If the border were not to be controlled, the Irish border would become the“back door”from one side to the other, giving rise to huge hidden troubles. From a security perspective, if the border were to be unguarded, illegal immigrants and organized criminal groups would be able to enter the two different jurisdictions at will. The UK is especially concerned with the management and control of its foreign population, worrying that immigrants from other EU countries could swarm into the country through the Irish border. Prior to the Brexit referendum of 2016, Brexiteers predominantly played the“card of immigrants”, demanding to take back the“control of borders”. From the perspective of the economy, in order to ensure the free circulation of goods in the Single Market, the EU’s external borders have adopted inspections on customs tariffs, VAT and excise tax, rules of origin, sanitary and phytosanitary measures (SPS), and has also implemented market surveillance on EU standards for industrial goods, as defined by the European Commission.1 As the EU’s sanitary and phytosanitary measures are particularly strict, allowing through any produce that is below standard (e.g. beef with antibiotics) into the Single Market is strictly prohibited. D. Restoration of a“hard border”would probably lead to serious consequences.“Hard border”is not a strict legal term, and it refers principally to tangible infrastructure (such as physical customs and frontier inspection stations) on the border, and the relevant inspections. A“hard border”would increase the time it takes for goods to be cleared, which would then increase trade costs, hindering the current highly smooth cross-border cooperation in the island of Ireland, and bringing about enormous inconveniences for people

1 Blair Horan,“The UK Wide Customs Union Backstop—Why a Backstop Is Essential to Protect the Peace in Northern Ireland,”January 2019: 5, accessed May 23, 2019, https://www. iiea.com/publication/the-uk-wide-customs-union-backstop-why-a-backstop-is-essential-to -protect-the-peace-in-northern-ireland/.

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crossing the border for work, medical treatment and tourism.1 Accordingly, people in the agricultural, industrial, business and educational circles of both Northern Ireland and the Republic of Ireland have rejected the restoration of a“hard border”. Most importantly, a“hard border”would again propel the people of Northern Ireland to make a choice in identity recognition, and this could lead to political polarization and more frequent violent incidents on larger scales. The 1998 Belfast Agreement enabled the people of Northern Ireland to take a break from identity politics through“clever compromise”. Both the unionists and nationalists were satisfied with the new institutional arrangement: unionists (predominantly Protestants) remained part of the UK, and felt reassured that the province’s status could only be changed at the ballot box, while nationalists (predominantly Catholics) felt that Irish had a greater say in local affairs.2 However, the restoration of a“hard border” would definitely trigger a re-think in the differences between“we”and “they”by the people of Northern Ireland. Jonathan Powell, the former chief government negotiator with the UK government in Northern Ireland emphasized that“[t]he problem with the Irish border is not how long it takes a lorry to cross, but the issue of identity. Putting in infrastructure at the border and closing off small roads to stop smuggling will reopen the question of identity settled in the Good Friday Agreement.”3 A“hard border”would become a symbol of South-North Ireland separation and opposition, and could quite easily lead to dissatisfaction among the nationalists who seek to unify Ireland, and their radical forces could even attack border facilities and frontier personnel. Sinn Fein MP and former Belfast mayor Mairtin O Muilleoir said:“I think that any attempt at replacing borders on the island of Ireland is a mistake, not just because it’s a threat to the peace process, but because it damages the process of reconciliation, of the healing of

1 It needs to be pointed out that even tariff free goods and goods in line with the rules of origin need to perform the declaration procedure and provide necessary certification for clearing to prove that they are in line with the relevant requirements. 2 Amanda Sloat,“Explaining Brexit and the Northern Ireland Question,”October 15, 2018, accessed March 20, 2019, https://www.brookings.edu/blog/order-from-chaos/2018/10/15 /explaining-brexit-and-the-northern-ireland-question/. 3 Jonathan Powell,“The Irish Border Question has done for Hard Brexit,”Financial Times, June 9, 2018.

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wounds, of building a new type of society.”1 II

It could be construed from the above that the restoration of a“hard border”would be no different to re-opening the old wound. Yet for both the UK and the EU, the issue causes more of a psychological fear, as well as deep concerns over history repeating itself. On this point, both have opposed a “hard border”between Northern Ireland and the Republic of Ireland, but they just haven’t been able to reach a consensus on how to avoid this“hard border”. In June 2017, the UK and the EU began phase one of negotiations on three major subjects: citizens’rights, the“divorce bill”and the Irish border. The EU demanded that“sufficient progress”must be made before entering phase two negotiations about the transition period and future relations. During early discussions, all sides focused on citizens’rights and the“divorce bill”. In October 2017, after evaluation, the EU’s chief negotiator ’s team pinpointed the slow progress being made on the Irish border issue and believed that pressure should be put on the UK. On November 8, 2017, Barnier’s team circulated a“working paper” which included six“bullet points”, and articulated in arcane language that “[i]n order to avoid a hard border, and to protect north-south cooperation and the all-island economy, Northern Ireland … would have to remain in the single market for goods and the customs union.”The Irish reporter Tony Connelly described this as the infant that would grow into the“backstop” arrangement, and this day was the day on which the arrangement was born.2 The EU worried that the two sides would not be able to find a solution for avoiding a“hard border”and demanded that the UK accept an“insurance” plan. In order to enter the new phase of negotiations, the UK government had no choice but to accept the EU’s terms. In relation to this, David Allen

1 Natasha Turak“, The Irish Border and Brexit: Here’s What You Need to Know,”December 6, 2017, accessed March 20, 2019, https://www.cnbc.com/2017/12/06/irish-border-and-brexit -heres-what-you-need-to-know.html. 2 Tony Connelly,“Brexit: A Brief History of the Backstop,”October 20, 2018, accessed March 20, 2019, https://www.rte.ie/news/brexit/2018/1019/1005373-backstop -tony-connelly/.

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Green of Britain’s Financial Times pointed out that“the demand for a backstop was not an explicit objective of the EU27 before December 2017. It has the appearance of being an improvised tactical ploy to achieve an objective, rather than an objective in and of itself.”1 On December 8, 2017, the UK and the EU signed the Joint Report on the phase one negotiation progress, and its article 49 gives expression to the core thinking the“backstop” arrangement: [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.2 Thereafter, fierce discussion between the UK and the EU around the“backstop”commenced. At first, the EU proposed the“border in Irish Sea”. On February 28, 2018, the European Commission published the Draft Withdrawal Agreement, and in its Protocol on Ireland/Northern Ireland, the EU proposed the creation of a“common regulatory area”on the island of Ireland comprising the EU and the UK.3 The proposal would keep Northern Ireland inside the EU’s Customs Union with no frontier inspection between Northern Ireland and Ireland, but goods entering Northern Ireland from other parts of the UK would need to be inspected in order to ensure that they met EU standards. This would involve the creation of a customs and regulatory border down the Irish Sea. The European Commission explained in its press release that“[t]his is the fall-back solution of the Joint Report, which applies in the absence of other agreed solutions.”4 The then UK Prime Minister sternly refused

1 David Allen Green,“The EU Might Have Made a Grave Mistake with the Irish ‘Backstop’,”Financial Times, October 16, 2018. 2 European Commission,“Joint Report from the Negotiators of the 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,” December 8, 2017, accessed March 25, 2019, https://ec.europa.eu/commission/sites/beta -political/files/joint_report.pdf. 3 European Commission,“European Commission Draft Withdrawal Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community,”February 28, 2018, accessed February 25, 2019, https://ec.europa.eu/commission/sites/beta-political/files/draft _withdrawal_agreement.pdf. 4 European Commission,“Brexit: European Commission Publishes Draft Article 50 Withdrawal Agreement,”February 28, 2018, accessed February 25, 2019, http://europa. eu/rapid/press-release_IP-18-1243_en.htm.

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to accept this, saying that“[t]he draft legal text…would…threaten the ‘constitutional integrity of the UK …and no UK prime minister could ever Ƴ agree to it.”EU leaders emphasized repeatedly that the“backstop”arrangement was a prerequisite for reaching the Withdrawal Agreement and that without the“backstop”arrangement, there would be no Withdrawal Agreement and no“transition period”. Soon afterwards, the UK proposed the“Chequers plan”. The EU’s proposal kept a strong hold, but the UK government could not offer a solution of its own. Since the summer of 2017, the UK government has been discussing two plans, a“customs partnership”1 for the UK to replace the EU in tariff collection, and“maximum facilitation”,2 a way of simplifying customs procedures by relying on technological methods. No consensus has been reached. Faced with constant pressure from the EU, on July 6, 2018 Theresa May proposed a detailed Brexit plan at the Cabinet meeting held at Chequers, the country house of the UK prime minister. The core arrangement of this“Chequers plan”is the proposal that the UK and the EU establish a free trade area for the tangible goods trade (including agri-products), and that the UK would follow a“common rulebook”in the area together with the EU. The UK government’s idea is that if UK agri- products and manufactured goods follow the“common rulebook”with the EU, there would be no need to create customs facilities for inspections and supervisions, and customs declarations and VAT could be declared through electronic means. This would effectively avoid triggering a“backstop” arrangement. As a supporting facility, Britain designed a“Facilitated Customs Arrangement”on the basis of a“customs partnership”: a new Facilitated

1 This refers to the plan that the UK would follow the EU’s tariffs for goods from outside but intended for other EU countries. If the goods only entered the UK market and the UK’s tariffs were lower, the relevant trade companies would apply for a refund of the difference. Goods entering other EU countries through the Irish border from the UK would not need to pay tariffs or accept“rules of origin”checks again. This proposal is actually a copy of the functions of the EU’s Customs Union while trying to avoid the UK becoming part of it, and has been ridiculed by the EU as“magical thinking”. 2 This refers to employing automatic number plate recognition technology, pre-clearance system and“trusted-trader”scheme to facilitate customs inspections. The problem with this proposal is the establishment of certain inspection facilities, and it would take several years before full implementation could be reached.

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Customs Arrangement that would remove the need for customs checks and controls between the UK and the EU as if they were a combined customs territory. The UK would apply the UK’s tariffs and trade policy for goods intended for the UK, and the EU’s tariffs and trade policy for goods intended for the EU.1 The government of Ireland expressed acceptance of the plan, but the European Commission and members including France raised many questions. Barnier was outspoken in his remarks:“The EU cannot — and will not — delegate the application of its customs policy and rules, VAT and excise duty collection to a non-member, who would not be subject to the EU’s governance structures.”2 Finally, the UK and the EU agreed to the“temporary customs union” plan. As the UK’s“Facilitated Customs Arrangement”was not accepted by the EU, the Informal Summit of Heads of State or Government held between September19th and 20th, 2018 in Salzburg, Austria, broke up in disagreement. Afterwards, the UK began pushing forwards the“UK-wide customs union”plan, but the EU raised new concerns: if the UK-EU relationship was not yet ready at the end of the transition period, how could a“hard border”be avoided? Theresa May said that“if at the end of 2020 our future relationship was not quite ready, the proposal is that the UK would be able to make a sovereign choice between the UK-wide customs backstop or a short extension of the Implementation Period.”3 The EU proposed the additional condition that if the two sides failed to secure the future relationship by the end of the transition period, Northern Ireland would have to stay in the“common regulatory area”and customs union of the EU. Theresa May said that the EU’s new arrangement was“a backstop to the backstop”, and stated that it inherited the previous“Northern Ireland-only” thinking. At the beginning of November 2018, the EU made a concession

1“Statement from HM Government,”July 6, 2018, accessed January 23, 2019, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/723460/CHEQUERS_STATEMENT_-_FINAL.PDF. 2“Statement by Michel Barnier at the Press Conference Following His Meeting with , UK Secretary of State for Exiting the EU,”July 26, 2018, accessed January 23, 2019, http://europa.eu/rapid/press-release_SPEECH-18-4704_en.htm. 3“PM’s Statement on : 22 October 2018,”accessed January 23, 2019, https://www.gov.uk/government/speeches/pms-statement-on-european-council-22-october-2018.

CIR Vol. 29 No. 6 10 The Irish Border Issue in Brexit allowing a UK-wide“temporary”customs union with the EU. Because the future relationship negotiation after Brexit was still to be opened at the time, the Draft Withdrawal Agreement reached on November 14 used the words“single customs territory”. This draft mentioned that if the two sides failed to reach a consensus on resolving the Irish border issue and the transition period was not extended, the single customs territory between the European Union and the United Kingdom should be established “( the single customs territory”).1 This meets the UK’s request to safeguard its territorial integrity, and was regarded as Theresa May’s biggest victory in the 2018 negotiations.2 Meanwhile, in“exchange”, the UK must accept restrictions of the conditions set forth by the EU, including, for instance,“equal conditions for competition”in taxation, environmental protection, labor and social standards, and competition, while Northern Ireland must follow the Union Customs Code and certain single market rules, and all relevant implementation would be required to accept supervision by the European Commission and arbitration by the EU court. Although the UK and the EU have reached to a Draft Withdrawal Agreement, the problem remains far from resolved. In the UK，the agreement suffered strong opposition in the House of Commons. Hard Brexiteers in the Conservative Party and the Democratic Unionist Party (DUP) both made the deletion of the“backstop”arrangement a prerequisite for supporting the Withdrawal Agreement. In order to help the“passing”of the Withdrawal Agreement, EU leaders sent a letter to the UK Prime Minister on January 14, 2019,which stated that“if the backstop were nevertheless to be triggered, it would only apply temporarily, unless and until it is superseded by a subsequent agreement that ensures that a hard border is avoided… . As the European

1“Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community,” November 25, 2018, accessed February 15, 2019, https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/75901925 _November_Agreement_on_the_withdrawal_of_the_United_Kingdom_of_Great_Brit ain_and_Northern_Ireland_from_the_European_Union_and_the_European_Atomic_Energy _Community.pdf. 2 Alex Barker,“The Story behind the UK’s Unpopular Brexit Deal,”Financial Times, December 29, 2018.

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Council has already stated…formal negotiations can start as soon as possible after the withdrawal of the United Kingdom, having in mind the shared ambition of the European Union and the United Kingdom to have the future relationship in place by the end of the transition.”1 This clarification and pacification achieved no effect, and the House of Commons voted 432 to 202 in favor of rejecting the agreement. Following this crushing defeat, Theresa May said that she would re-negotiate with the EU and make “legally binding changes”to the backstop arrangement. On February 12, 2019, she said in the House of Commons that there were three ways to achieve this objective: first, the backstop could be replaced with alternative arrangements for avoiding a hard border between Northern Ireland and Ireland; second, there could be a legally-binding time limit to the existing backstop; or third, there could be a legally-binding unilateral exit clause to that backstop.2 However, looking as if it would be very difficult for any “alternative arrangements”to progress quickly, the EU firmly opposed the reopening of the Withdrawal Agreement. EU leaders repeatedly emphasized that the current Withdrawal Agreement was the best and only withdrawal arrangement; negotiation had been carried out, and now was the time to vote. Hard Brexiteers also refused to yield, and rejected the Withdrawal Agreement again on March 12 and 29, 2019. The direct result of the disagreement between the UK and the EU was that the draft agreement could not be approved in good time. With such a heavy load, Theresa May declared that she would resign. Brexit, meanwhile, found itself unable to move one way or the other. III

While the UK-EU disputes were not due to any doubt over the objective of avoiding a“hard border”, it was the malposition of thinking

1“Joint Letter of President Tusk and President Juncker to Theresa May, Prime Minister of the United Kingdom,”January 14, 2019, accessed January 15, 2019, https: //www.consilium.europa.eu/en/press/press-releases/2019/01/14/joint-letter-of-president -tusk-and-president-juncker-to-theresa-may-prime-minister-of-the-united-kingdom/. 2“PM’s Statement to the House of Commons on Brexit: 12 February 2019,” accessed February 21, 2019, https://www.gov.uk/government/speeches/pms-statement -to-the-house-of-commons-on-brexit-12-february-2019.

CIR Vol. 29 No. 6 12 The Irish Border Issue in Brexit and stance that brought about their different interests and concerns. A. The UK emphasizes sovereignty, while the EU focuses on security. For the UK government, Northern Ireland is a special issue, and the border question brings into focus national unity and territorial integrity. As such, there is no question of the creation of a“special status”for Northern Ireland, and the UK government is insisting upon a UK-wide customs union (including Northern Ireland). The Democratic Unionist Party of Northern Ireland, an ally of the Conservative Party, has insisted that Northern Ireland needs to withdraw together with the UK, opposing any institutional arrangement that extends different treatment to Northern Ireland from other parts of the UK. On October 13, 2018, DUP leader Arlene Foster published an article in the Belfast Telegraph stating that“[t]his backstop arrangement would not be temporary. It would be the permanent annexation of Northern Ireland away from the rest of the United Kingdom.”1 As a guarantor of the Belfast Agreement, the EU has done a lot for the Northern Ireland peace process, and it does not want Brexit to destroy this“sample of peace”, but would rather grant“special status”to Northern Ireland as a means of solving the problem. Barnier’s team believes that so long as Northern Ireland is part of the customs union, the security and stability of Northern Ireland can be maintained. In addition to this, when compared with accommodating the UK as a whole (with a population of 60 million) inside the Customs Union, the population of Northern Ireland (1.8 million) is small, and having it in the Customs Union alone would be much less of a competitive threat.2 B. The UK holds hope for the future, but the EU cares more about the present. The customs arrangement is an important part of the future UK-EU trade relationship, and the two sides need to negotiate to find a solution within the transition period. However, the EU is reluctant to provide any guarantee or to make any promise in advance, and specifically opposes the

1“Foster Says No Deal Better than EU‘Annexation’of Northern Ireland,”October 13, 2018, accessed February 15, 2019, https://www.rte.ie/news/2018/1013/1002900-brexit/. 2 Gabriela Baczynska,“Exclusive - EU Open to Free Trade but not Chequers Customs Plan: Document,”September 25, 2018, accessed February 11, 2019, https://uk. reuters.com/article/uk-britain-eu-chequers-exclusive/exclusive-eu-open-to-free-trade -but-not-chequers-customs-plan-document-idUKKCN1M524K.

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“UK-wide”customs arrangement, which it believes“pre-empts”the future UK-EU trade agreement.1 Negotiations on the future UK-EU trade relationship could continue for years, but the Ireland border issue cannot drag on and on, and this is why the EU has insisted that the UK needs to“have a statement”, and put the“backstop”in the Withdrawal Agreement. At the start of the negotiations, the UK repeatedly stated that if the future trade relationship was not properly handled, a solution to the Irish border would be impossible. The then Prime Minister Theresa May believed that so long as the UK and the EU could reach a comprehensive and thorough free trade agreement, the Ireland border issue would be solved accordingly, and the “backstop”arrangement would not need to be triggered. On March 1, 2018, when she met with the visiting European Commission President , Theresa May clearly expressed her hope of resolving the border issue within the overall framework of the UK-EU relationship. C. The UK is concerned with“customs”, while the EU cares about “regulations.”The customs issue not only involves trade costs, but also the UK’s trade cooperation with countries outside of the EU after Brexit. If the UK stays in the Customs Union of the EU after Brexit, the UK would have to apply the EU’s external tariff rates when importing goods from other countries, and would not be able to provide more preferential rates. This would apparently limit the UK’s ability to reach comprehensive free trade agreements with other countries.2 Brexiteers in the UK believe that UK should not be restricted by EU common trade policies after Brexit, and demand that the prime minister withdraw completely from the EU Customs Union at any cost. Generally speaking, the UK has considered free trade- related customs issues only in a narrow sense, failing to address the more comprehensive and complicated implementation of regulatory standards. The EU believes that border controls can only be truly eliminated when the UK and the EU adopt consistent or highly convergent standards. After all,

1 Tony Connelly,“The Brexit Battle Lines over the Irish Border Have Hardened—and the Peace Process Is in Jeopardy,”New Statesman, October 12-18, 2018, 29. 2 Sam Lowe,“An Effective UK Trade Policy and a Customs Union Are Compatible,” November 29, 2018, accessed February 15, 2019, https://www.cer.eu/publications/archive /bulletin-article/2018/effective-uk-trade-policy-and-customs-union-are.

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customs only make up 35 percent of the controls that normally arise at an EU-third country border, and other border control measures include sanitary and phytosanitary (SPS) measures and security inspections.1 The Withdrawal Agreement reached by the UK and the EU has stipulated that Northern Ireland would be more in line with the Single Market of the EU, requiring Northern Ireland to maintain regulatory alignment with the EU in multi- areas from standards of goods to VAT. The Protocol on Ireland/Northern Ireland in the Withdrawal Agreement reached between the UK and the EU uses ten annexes to list the series of EU Single Market Standards that would apply to Northern Ireland. This runs to 145 pages. D. The UK insists on the“temporary”while the EU demands the “long-term”. Brexiteers worry that once the“backstop”is triggered, it might mean that the UK is“trapped”in the EU Customs Union forever, and therefore they demand that the“backstop”measures should be“temporary”. On December 2, 2018, former foreign minister wrote in an article in the Daily Telegraph stating that the“backstop”provision for the Irish border was“a great steel trap that is about to clamp its jaws around our hind limbs and prevent our escape.”2Against pressures such as this from MPs, Theresa May proposed to the EU that once the“backstop”was triggered, it would only be effective for 12 months. However, the EU believes that a time-limited arrangement would not be taken as a“backstop”arrangement at all, and that it would not be able to perform the role of an“all-weather insurance policy”. Accordingly, the EU insists that“backstop”measures must be permanent, and that no“expiration date”should be appointed. IV

The Irish border issue is indeed complicated. After all, it involves more than regional peace, the UK constitution, single market development

1 Tony Connelly,“Brexit: No Deal and the Irish Border,”January 28, 2019, accessed February 15, 2019, https://www.rte.ie/news/analysis-and-comment/2019/0126/1025621 -tony-blog/. 2 Boris Johnson,“We Need to Hold Our Nerve over Brexit-We Can Do So Much Better than This Deal,”December 2, 2018, accessed January 15, 2019, https://www.telegraph .co.uk/politics/2018/12/02/need-hold-nerve-brexit-can-do-much-better-deal/.

CIR November/December 2019 15 Qu Bing and Wang Shuo and the future UK-EU relationship, and thus the UK and the EU have no choice but handle it prudently. However, there are more in-depth roots that deserve to be explored as the issue becomes the“bottleneck”question of Brexit. First, the UK political system has lowered the efficiency of decision- making. The foundation of democracy in the UK is party politics and parliamentary sovereignty. In the face of divergence within the party on the issue of Brexit, Theresa May made continuous efforts to avoid divisions inside the Conservative Party and to prevent the Labour Party from taking advantage of the chaos and coming to power. After losing her parliamentary majority in the 2017 general election, Theresa May had to form alliance with the DUP to maintain the party’s ruling position. However, the DUP’s firm opposition to the“backstop”arrangement further aggravated the complexity of the UK’s domestic politics. As the largest party in opposition, the Labour Party chose to“oppose for the sake of opposition”, unwilling to endorse the Conservative Party’s Withdrawal Agreement, and hoping to force the Conservative Party out of power by taking advantage of the crisis, playing the role of“destructive opposition”. The two major parties were both trying their utmost to crack down the other, while remaining unwilling to compromise for the sake of the overall interests and long-term development of the country. Meanwhile, the drawback of the UK parliament’s“democracy without centralization”was completely exposed during the Brexit debates. MPs appeared to only know what they did not want, but could not form a majority view over any choice relating to Brexit. All believe that their proposals have represented the“national interests”, proclaiming that they are speaking for the people, and yet they are unable to think beyond the party interests and constituency interests. Soft Brexiteers, hard Brexiteers and remainers all have been contesting with one other, whilst calling for others to compromise, and yet no one seems to be willing to yield. The Washington Post used vivid language to describe the situation:“it turned into a circular firing squad. All the options lay dead on the floor.”1 Second, the lack of confidence has led to increased difficulty in making

1 Ian Dunt,“Brexit Has Turned British Politics into a Zombie Horror Movie,” April 5, 2019, accessed June 2, 2019, https://www.washingtonpost.com/outlook/2019/ 04/03/brexit-has-turned-british-politics-into-zombie-horror-movie/?utm_term=.2da6a74630ee.

CIR Vol. 29 No. 6 16 The Irish Border Issue in Brexit any compromises. As the second largest economy in the EU, the UK is also a major security and military power with profound experience in diplomatic negotiations. The EU has been on its guard against the UK and adopted many preventive measures. First, the EU worries that the UK could use its military strength and security as a bargaining chip in exchange for economic benefits. For this reason, the EU has demanded that the UK must have made“sufficient progress”on problems such as the Irish border before entering into negotiations on future relations, and it views approving the“backstop” arrangement as an important symbol of“sufficient progress”. Second, the EU worries that the UK might apply the tactics of“divide and rule”. From the beginning of the negotiations, the EU has taken the stance of solidarity and expressed unconditional support for the Irish government’s position on the Irish border issue. Third, the EU worries that the UK might be inconsistent in its actions and fail to live up to its promises. In response, the EU is demanding that the UK put its political promises into“legally binding” treaties. For instance, the EU believes that the Joint Report in the end of 2017 was not legally binding, and in order to prevent the UK from backing out on the promises it has made to date, Barnier pointed out in his speech to the EU parliament that:“It will have to be quickly converted into a legally binding Withdrawal Agreement on each of our three subjects, as well as on other issues which remain to be negotiated or clarified.”1 At the end of 2017, Barnier’s team began drafting the Withdrawal Agreement on the basis of the Joint Report. From the UK’s point of view, it has been concerned that the EU could punish the UK for its application to withdraw, and therefore it has set up defenses at each stage of the negotiations and fought over the smallest trifles. After reaching the Withdrawal Agreement, the Brexiteers were not satisfied with the“backstop”arrangement, demanding the“getting rid of”or making“legally binding changes to”the“backstop” provision. Even though EU leaders“clarified”and“promised” on this twice, the Brexiteers still believed that these promises lacked concrete legal assurance, and therefore refused to change their minds. Negotiation is the

1“Statement by Michel Barnier at the Plenary Session of the European Parliament on the State of Play of the Article 50 Negotiations with the UK,”December 13, 2017, accessed December 25, 2018, http://europa.eu/rapid/press-release_SPEECH-17-5263_EN%20(2).pdf.

CIR November/December 2019 17 Qu Bing and Wang Shuo

art of compromise, but the lack of mutual confidence makes both sides unwilling and fearful of making too many compromises. Ultimately, this tends to lead to the failure of negotiation. Even if an agreement is reached eventually, real compliance and implementation remains a challenge. Third, different cognitions have led to different policies. In fact, the UK and the EU have all along held extremely different attitudes towards integration. The UK has long been an“outsider”in European integration. Although it officially joined the European Community in 1973, it has taken quite a different path when it comes to handling the objectives, development paths and problem-solving of this integration alongside the other core European countries. It is this difference in basic cognition that has resulted in the different thinking of the UK and the EU when it comes to approaching Brexit. For instance, the UK has valued the economic benefits of the European Common Market (the“European Community”is also referred to as the“common market”in the UK). It has participated in the building of the single market with selections, promoted the deepening of the single market for goods and services, but refused to join the Euro zone. In negotiations over the Irish border issue, the UK proposed its practical but “egoist”solution. For example, since the UK’s manufacturing industry and agri-products are closely aligned with the single market, it could build a free trade area for goods with the EU. This plan would not only lower the UK’s economic loss brought about by Brexit, but also solve the Irish border issue.“Leading countries”such as France and Germany hold that the core and most important task of European integration is to deepen and expand the single market and firmly uphold the“free movement”of people, goods, capital and services. When the UK proposed a“free trade area for goods”in its“Chequers plan”, the EU stated that this plan would harm the completeness of the single market, and refused to compromise on the principle. Lastly, fierce fighting over the right to control has given rise to a zero- sum game. Technically speaking, the struggle between the EU and the UK in the ongoing negotiations is a fight for control over economic and security affairs, which in essence is a contest for power. In its guidelines for the negotiations, the EU pointed out that“[t]he Union will preserve its autonomy

CIR Vol. 29 No. 6 18 The Irish Border Issue in Brexit

as regards its decision-making as well as the role of the Court of Justice of the European Union,”1 and it emphasized“autonomy”repeatedly in the negotiations that ensued. In July 2018, the UK’s Brexit whitepaper proposed “advanced equivalence”, and demanded that the EU consult with the UK before it decides to take back its free market. However, Barnier believed that the UK’s proposal would take away the EU’s autonomy for decision- making, and held that relevant decisions must be made by the EU unilaterally. It is the same with the Irish border negotiations. While the UK and the EU’s indulgence in details of the“backstop”arrangement appears to be a discussion on border-related provisions in a divorce arrangement, it is in fact a guide for future UK-EU relations, in particular economic and trade relations. In order to avoid a“hard border”, the UK government repeatedly adjusted its Brexit plan, and Theresa May’s“red line”fell back several times, until the“UK-wide temporary stay in the EU Customs Union” plan. Hard Brexiteers in the UK believed that this would entrap the UK in the EU Customs Union after Brexit. In the absence of Britain’s independent trade policies, this plan could not serve to fulfill the original intention of “taking back of control”, but, conversely, would rather commit the UK to having to continuously adhere to the EU’s regulatory rules. This is tantamount to putting its future destiny in the hands of the EU, which would be intolerable to Britain. In September 2018, former Boris Johnson said: “We have wrapped a suicide vest around the British constitution — and handed the detonator to Michel Barnier.”2 It is both sides’reluctance to put their destinies in the other’s hands, as well as a vigorous contest for control and dominance that have led to the waste of time in indulging in details and shifting responsibility to the other side. The negligence of the fundamental truth that“maximized interest of oneself

1 Council of the EU,“European Council (Art. 50) Guidelines for Brexit Negotiations,” April 29, 2017, accessed June 2, 2019, https://www.consilium.europa.eu/en/press/press -releases/2017/04/29/euco-brexit-guidelines/pdf. 2 Glen Owen,“Boris Johnson Accuses Theresa May of Wrapping‘Suicide Vest’around Britain－and Handing Detonator to Brussels in a Scathing Criticism of Her‘Feeble’Brexit Negotiations and Chequers Deal,”September 8, 2018, accessed June 2, 2019, https://www .dailymail.co.uk/news/article-6146953/Boris-Johnson-accuses-Theresa-wrapping-suicide-vest -Britain-Brexit-plan.html.

CIR November/December 2019 19 Qu Bing and Wang Shuo does not necessarily mean maximization of the overall interest” has trapped the two sides in the de facto“prisoner’s dilemma”, achieving merely a zero-sum or even negative sum result. In a nutshell, the reemergence of the Irish border issue is a new trouble engendered by Brexit. In order to manage the issue effectively, both the UK and the EU have been holding fast to their own self-interests, while progressing along two distinct lines. As such, the process naturally emerges as a zero-sum game. In essence, the key to the proper settlement of the Irish border is to build consensus between all parties. As of now, this is barely in place. Consensus should be sought for and built upon not only among British MPs, but also between the UK and the EU. If this doesn t Ƴ happen, even if the Withdrawal Agreement passes the UK parliament through sheer luck, disputes will certainly emerge in future implementation. As an old Chinese saying goes,“life is simple, but we insist on making it complicated.”A flaky referendum has sent the UK on the Brexit course of no return, all the while setting the EU to its greatest challenge since the European integration. The“freedom and democracy”that the West has been flaunting emerges as a beautiful but evanescent dream, and it is the ordinary people that will have to bear the bitter results. Just as Jean- Jacques Rousseau depicted in Social Contract:“The people of England regards itself as free; but it is grossly mistaken; it is free only during the election of members of parliament. As soon as they are elected, slavery overtakes it, and it is nothing.”1 With the gloomy resignation of Theresa May and the coming season for“change of terms of office”in the EU agencies, will the new leaders have sufficient wisdom and decision-making abilities to solve this problem? Prospects still remain doubtful.

(edited by Li Xin)

1 Jean-Jacques Rousseau, Social Contract, trans. Yang Guozheng (Shaanxi People’s Publishing House, 2004), 84.

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