With October 2017 witnessing the beginning of consideration of amendments to the EU Withdrawal Bill and the culmination of efforts to address aspects of Brexit affecting the island of Ireland in Phase 1 of the UK’s withdrawal negotiations, this paper is intended to focus on some of the emerging issues for Northern Ireland as the contours of Brexit become increasingly defined.
This paper is based on two considerations. First the UK Government maintains that the UK will not be part of the existing EU customs union (EUCU) or indeed the Single Market after Brexit. Second, the EU’s proposal for a form of special status for Northern Ireland which moves the customs border to the Irish Sea has been rejected as both undermining the UK’s Union and creating a barrier to trade within the UK. If neither of these premises change then they will almost invariably create considerable friction at the Northern Ireland/Ireland border. The UK Government’s goal of establishing a bespoke trading arrangement with the EU which allows it to strike wide-ranging trade deals with non-EU countries, and its goal of minimising disruption at the Northern Ireland/Ireland border are incompatible.
In light of these premises, certain aspects of international law will likely come to play an increasingly prominent role in policy making within UK institutions affecting Northern Ireland. First, some aspects of international law have for many decades been mediated through the EU, such as trade law, and will once again need to be managed by the UK Government. Second, some of the UK’s international law obligations have been negotiated, implemented and interpreted in light of the UK’s EU membership in its negotiation, including aspects of the Good Friday/Belfast Agreement (GFA) and the Common Travel Area.