Brexit and Hard Borders

Brianna Gildner. Brianna is a JD candidate (2021) at the Sandra Day O’Connor College of Law with interests in international law and criminal justice. She is an IRLS Fellow during the 2019-2020 academic year and Vice-President of Communications for the International Law Society.

Recently, the International Law Society at Sandra Day O’Connor College of Law hosted Professors Daniel Pout and Adrien Brettle for a discussion on Brexit. The professors clarified some factors which must be considered by the United Kingdom (UK) as it seeks to withdraw from the European Union (EU). The following piece is based on the conversation between Professors Pout and Brettle and the audience at that event.

As representatives from the UK and EU continue to negotiate the UK’s withdrawal agreement from the EU, one contentious issue is the management of the border between Northern Ireland (a constituent country of the United Kingdom) and the Republic of Ireland (an independent country and member-state of the European Union). This invisible border will become the only land border between the United Kingdom and the European Union after Brexit. For over a hundred years, citizens on either side of the border have disagreed upon the issue of British rule. Conflict, often violent, arose from this long-standing political disagreement. Significant progress has been made in reducing violence in the region by political means such as the Good Friday Agreement of 1998. But political tensions remain high and the threat of renewed violence is still present. The economies of both Ireland and Northern Ireland could also be impacted by a hard border, as would the persons who regularly cross the border for business or personal reasons

Regardless of what Brexit agreement emerges between the UK and EU, if any, it is likely that a hard border will be erected. However, this is especially possible if the UK leaves under a “no-deal” scenario in which no agreement is reached on many of the aspects of the UK’s withdrawal from the EU, including the issue of the Northern Ireland border. Margaritis Schinas, Chief Spokesperson of the European Commission stated that it is “obvious” a hard border will be established in the event of a no-deal Brexit.

Such “hard borders” between land-neighboring states are visible borders usually monitored by border agents, customs officials, police or military personnel, or some combination thereof. Many fear that the creation of a hard border will disrupt the fragile peace that has only been recently achieved in the region and renew violent conflict. Due to the political and economic implications of a “hard border,” UK prime ministers (both Theresa May and recently-elected Boris Johnson) have denounced the idea of implementing a hard border and sought to maintain a border without physical barriers. Similarly, the EU has a strong interest in preventing renewed conflict in Northern Ireland. The risk of renewed conflict in Northern Ireland as a result of a no-deal Brexit is strong motivation for both the UK and EU to strike some sort of agreement. 

Yet this complex issue has no clear resolution. It symbolizes a broader issue with a Brexit referendum: the diverging political preferences between the English and Welsh and their Northern Irish and Scottish neighbors. Both Scotland and Northern Ireland voted to remain within the EU; remarkably, every county in Scotland so voted. Despite this broad opposition to a Brexit referendum in Scotland, the United Kingdom is moving forward to withdraw from the EU. This has sparked renewed calls in Scotland for another independence referendum. Scotland narrowly voted to remain part of the UK in a 2014 independence referendum, but overwhelmingly voted to remain in the EU in the 2016 Brexit referendum. Regardless of demonstrated desire to remain, Scotland is now being forced out of the EU through Brexit. In addition to the frustration from Scottish voters who are being forced out of the EU despite voting to remain, the undermining of the Good Friday agreement has also led to renewed discussion of dividing the currently United Kingdom. It is possible that support for unification of Ireland and independence of Scotland will increase if the political interests of the northern constituent countries and the remainder of the United Kingdom, namely England and Wales, continue to diverge. This may lead to the end of the hard-won unification of the United Kingdom and alter the economic and political landscape of Europe and even the world.

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