Trading Under World Trade Organisation Terms Only: Consequences for the Irish Border

Abstract

In 1998, the Good Friday Agreement brought a stop to the Northern Ireland conflict, a first and foremost border conflict. Assisted by their membership within the European Union (EU) and the requirements of the European integration, the United Kingdom (UK) and the Republic of Ireland initiated a peace process with the border within the island of Ireland as a point of cooperation at its centre. Twenty years after the signature of the Good Friday Agreement, peace has been achieved between Northern Ireland and Ireland but has remained fragile. Sporadic violence has emerged since 1998 and the implementation of the Agreement has sometimes faced difficulties. The consequences of the Brexit vote may compromise the cooperation spirit embraced by the two countries. Most importantly, it may question the invisible character of the border. Despite repeated commitments from both the EU and the UK to avoid the return of border control infrastructures and thus the re-introduction of a hard border between the North and the South of Ireland, the vexed issue of the Irish border has still not received a common EU-UK answer. Indeed, the backstop proposed by the EU in March 2018 remains the most contentious sticking point of the Brexit negotiations. Looking at World Trade Organisation (WTO) law, this paper examines what would happen to the Irish border in the absence of a deal. By exiting the EU Customs Union and the EU Single Market, borders between the EU and the UK will therefore be governed by the WTO Most-Favoured Nation (MFN) clause. The paper explains that exchanging goods on an MFN-basis with the EU will have drastic consequences on the Irish border. It illustrates the possible return to border controls at the Irish border by using the example of the EU REACH Regulation applicable to both chemical products manufactured in the EU and imported into the EU. Hence, as the paper argues, only a backstop which is part of a withdrawal agreement can prevent a hard border. Yet importantly, any backstop for the Irish border should also pass muster with the WTO rules. This constraint requires the EU and the UK to remain particularly cautious if and when they agree on a specific backstop.