Yves here. This post is a bit wonky, but even its wonkiness serves to make a point: that with international treaties, and in particular trade pacts, the devil really does lie in the detail.
I had been surprised to read claims about the October round of Brexit negotiations that progress had been made on the Ireland border issue. I didn’t see how that was possible, since what the UK wants cannot be achieved. It cannot leave the single market (which is where it is going to be; even an EEA-type deal, which is in fact not going to happen, wouldn’t solve the border problem) and not have a hard border border between Northern Ireland and the Republic of Ireland. I haven’t seen any sign that the UK has abandoned its position.
Sir Ivan Rogers, the UK’s former permanent representative to the EU, confirmed the lack of realism in the UK position, from Parliamentary testimony this past Wednesday:
Sir Ivan Rogers: It is extremely difficult, in all honesty, because we are leaving the customs union. Let us be clear: we are leaving the customs union because we want an autonomous sovereign trade policy. You want an autonomous sovereign trade policy because you intend to have a different trade policy. If you have a different trade policy, you are going to apply different tariff rates to various goods. You are also open to applying different standards, for example veterinary standards and phytosanitary standards.
Say, for example, we did a UK-US free trade agreement. The Government is pushing that hard and wants that agreement. Like everybody else, I read the FT the other day on that. From my rather lengthy experience of dealing with the Americans on free trade agreements, I can tell you they will not do a free trade agreement with the British or anybody else without a major agricultural component in it. Congress cares more about agriculture and agricultural market access than any other issue. You may think that is very sad, but it is true.
They will then make a set of demands in that free trade negotiation that will entail not necessarily a weakening of standards, but a divergence of standards from European standards, as their price in that deal. One, they will want market access for various of their key agricultural products, which they think they cannot get in the European Union at the moment, and they are right. They think the EU blocks out various of their agricultural products. The EU thinks the US blocks out various of theirs. The moment that happens, then the hard border becomes a big issue for the EU27.
Mr Jack: The EU has not got a trade agreement with America, so that is highly unlikely.
Sir Ivan Rogers: As soon as you have a divergence of British trade policy from EU trade policy, you immediately create the case of why the EU27 will have a problem at the Irish border. They will have a problem at the Irish border, because otherwise it will be a massive route of circumvention of goods that have come in through the UK, go through the Irish border and get into the EU27 by that route. We cannot just dismiss that as a theoretical problem. It is not a theoretical problem.
Mr Jack: Do you see anything physical infrastructure being necessary on the Irish border? I know I have used my time.
Chair: I wanted to ask whether any of our lawyers have any comments on the whole EU border. Sir Ivan, do you have anything on the physical infrastructure briefly before we move on?
Sir Ivan Rogers: Everything I have heard from Irish sources indicates they do not think a technical solution, avoiding physical infrastructure but having a virtual, invisible hard border, is an answer. Some of this has been lengthily expressed by both Leo Varadkar and Simon Coveney. They keep on saying so, very openly and determinedly, around all 26 other capitals. They are saying, “This is not a solution and we are not accepting that as a solution.”
They read the British document, when it came out in August, as indicating that the British thought there was a technological fix to this problem, and that went down pretty badly, in my estimation. The mood has improved somewhat between London and Dublin since, but Dublin felt the British were trying to find technological wheezes for something which was not susceptible to a technological solution. That was my estimation.
By Stavros Zenios, a Visiting Fellow at Bruegel. During 2013-2014 he was Vice chairman of the Cyprus Council of Economic Advisors and served on the Board of the Central Bank of Cyprus (2014-2015). Originally published at Bruegel
The Good Friday agreement put to rest age-old conflicts on Ireland. It also offered hope that the reunification of Cyprus might be possible within the European Union. Lately, however, the “Green Line” that divides the easternmost island of the EU, is viewed as a template for a soft border at the westernmost island of the Union after Brexit.
European nations can sure find better ways to resolve political questions than turning for answers to the last divided capital of Europe. The Green Line is a war zone, and I was once stopped by UN peacekeeping troops when I inadvertently rode my bicycle into the demilitarised buffer zone behind the University campus. It is hard to see the Green Line delivering what Northern Ireland needs.
Nevertheless, this template is being discussed. The UK Government position paper refers to Cyprus as an example. A working paper from the Brexit Policy Institute “points to the Cyprus model” for the “free movement of goods”. Nikos Scoutaris of the European University Institute suggests that the legal arrangements accommodating the Cyprus situation could offer some inspiration if Northern Ireland (and Scotland) wish to remain in the EU. On the other hand, Michel Barnier, the EU chief negotiator, suggests that the solution for the border between Northern Ireland and Ireland cannot “be based on a precedent”.
In this blog, I review the desideratum of Northern Ireland and the Green Line arrangements, and explain why these arrangements cannot work for Northern Ireland. I point out two significant asymmetries between the two islands. While the Cyprus experience has something to offer, it does not provide a template, nor should it.
The Desideratum of Northern Ireland
The Prime Minister’s Article 50 letter articulates the UK position:
We must pay attention to the UK’s unique relationship with the Republic of Ireland and the importance of the peace process in Northern Ireland. The Republic of Ireland is the only EU Member State with a land border with the United Kingdom. We want to avoid a return to a hard border between our two countries […]
This deference to the status quo is most likely welcome by all actors. However, unilateral flexibility is insufficient. The border will be subject to EU regulations on the one side and UK regulations on the other. An agreed reciprocal arrangement is needed to ensure that the border is as seamless and frictionless as possible. That’s where the Green Line enters the discussion.
Green Line Flexibility
While the Republic of Cyprus territory covers the whole island, the northern part is under Turkish military control since the events of 1974. When the country joined the EU in May 2004, the application of the acquis was suspended in the areas where the Government does not exercise effective control. The Green Line separating the north dates to the hostilities between the Greek-Cypriot and Turkish-Cypriot communities in 1964, when a British officer marked with a green pencil the cease-fire line through the capital city of Nicosia. With the advance of the Turkish army in August 1974, the line was extended 180Km from the west to the east coast, with a buffer zone patrolled by UN Blue Berets. The Green Line is not considered as an external border of the EU, and Council Regulation 866/2004 defines the terms under which provisions of EU laws apply to the movement of goods and persons. This is known as the Green Line regulation.
The Regulation adopts “special rules concerning the crossing of goods, services and persons, the prime responsibility for which belongs to the Republic of Cyprus. As these areas are temporarily outside the customs and fiscal territory of the Community and outside the area of freedom, justice and security, the special rules should secure an equivalent standard of protection of the security of the EU with regard to illegal immigration and threats to public order, and of its economic interests as far as the movement of goods is concerned. “The Government is required to “carry out checks on all persons crossing the line with the aim to combat illegal immigration”.
These excerpts present the hard side of the Regulation. There is a kinder, gentler, side that encourages trade between the north and the areas where the Government exercises effective control. Goods validated by the Turkish-Cypriot Chamber of Commerce as originating at the north can cross freely the line. It is this flexible provision that inspires potential arrangements for Northern Ireland.
Regarding persons, EU citizens and third-country nationals who are legally residing in the northern part of Cyprus can cross the line. So does anybody who enters the island through the Government controlled areas. But what happens to those entering the northern part of the island through Turkey? The Regulation states that “while taking into account the legitimate concerns of the Government of the Republic of Cyprus, it is necessary to enable EU citizens to exercise their rights of free movement within the EU and set the minimum rules for carrying out checks on persons at the line and to ensure the effective surveillance of it, in order to combat the illegal immigration as well as any threat to public security and public policy.”
This masterpiece wording of creative ambiguity. EU citizens who enter the island through the north can cross the Green Line by showing an ID card or passport. Third country nationals are, in general, denied entry. Why this distinction? EU residents can enter freely the island, and the fact that they may have arrived through Turkey is not used against them. Third country nationals need to obtain an appropriate visa and have it checked at a legitimate port of entry. The Government does not wish to relegate control of its borders at Green Line crossing points.
The Regulation asks “the Commission shall report to the Council on an annual basis […] on the implementation of the Regulation and the situation resulting from its application”. From these reports we can monitor the experience over the last 14 years (Figure 1).
The Green Line Is not so Green
While flexible, the Green Line is far from being the soft border required for Northern Ireland. There is a small number of “official crossing points” where Republic of Cyprus police enforces the Green Line regulation. Similarly, Turkish-Cypriot “authorities” —the “Turkish Republic of Northern Cyprus” unilaterally declared its independence in 1983, but is recognised only by Turkey— exercise, in general, symmetric controls for persons and goods crossing from the Republic controlled territories.
Why is a hard border unavoidable? Leaving aside the complexity of the military conflict with Turkey, one significant goal is to stem illegal immigration from the north. Even with strict police controls and fenced up the buffer zone and military patrols across the line, there has been significant leakage. The number of irregular migrants is reported in Figure 1. While illegal crossings are less than 0.5% of the legal crossings, the leakage is significant for an island with a population about 1 million. To put these numbers in perspective, Cyprus was slated to receive a maximum of 300 Syrian refugees, and the illegal immigration across the Green Line is more than five times this quota.
The official crossing points also serve for verifying that goods transported are produced in northern Cyprus and can be traded without duties. Turkey, that enjoys free trade with the north of Cyprus but is not EU member, cannot export its products to the EU through the Green Line. However, smuggling of goods remains widespread. The reports of the Commission reveal very little trade across the Green Line (4–5mil EUR per annum), but also seizures of smuggled goods (Figure 1). A report by Sapienta Economics reveals much higher consumer spending (33.5mil. EUR in 2016), which is about .15% of the combined GDP of the economies on both sides of the divide. Smuggling is mainly due to price differentials and the higher tax on tobacco products in the Republic of Cyprus. There is also smuggling of agricultural and animal and dairy products, and products violating intellectual property rights. All trade is intra-island.
The Green Line Model for Ireland
The flexible arrangements of the Green Line for the movement of goods, prompted the Brexit Policy Institute to propose empowering the Northern Ireland Executive to identify goods as originating in Northern Ireland (and not simply travelling through Northern Ireland from the UK or a third country). The EU could allow these certified goods to enter the EU market via the Republic of Ireland and to be treated as EU goods. This arrangement could indeed work, although certificates would need to be checked at “official crossing points”.
How would the UK reciprocate? According to the Brexit Policy Institute:
The UK could allow such [certified] goods enter the UK market as “domestic goods”, and this would allow the UK to present this arrangement as a symmetrical one.
This is hardly a reciprocal arrangement with the EU, it is more like eating your cake and having it too. A reciprocal arrangement will require products originating in the Republic of Ireland to cross freely into Northern Ireland and the UK. And this raises some hard questions:
- Could the Northern Ireland Executive discriminate against products not produced in Northern Ireland, according to UK law? Possibly yes, and the Executive will be willing to do it to promote Northern Ireland exports to EU markets.
- Could the Republic of Ireland discriminate against products originating in other EU member states? Most likely not, and the Government would rather be unwilling to make special efforts for a small trading partner.
A practical reciprocal arrangement would be to treat all EU products entering Northern Ireland from the Republic of Ireland as domestic goods. But such an arrangement will be a back door entry for EU products into the UK.
Furthermore, if the UK wishes to “take back control of its borders”, as one of the objectives of Brexit, it cannot avoid the hard feature of the Green Line when dealing with crossings of persons. Only an agreed reciprocal arrangement that anyone in the Republic of Ireland can cross into Northern Ireland, and conversely, will render a hard border unnecessary. But such an agreement will be a back door entry of EU citizens into the UK.
If anybody harbours hope that the Green Line template could still serve Northern Ireland, let us not forget the scale differences between the two islands. Crossings of persons and goods across Norther Ireland-Ireland border is an order of magnitude bigger than crossings across the Green Line.
Asymmetries Between the Cases of Northern Ireland and Cyprus
Some aspects of the Green Line regulation relating to goods could indeed provide inspiration for a Northern Ireland border post-Brexit. However, such arrangements require official crossing points, which everybody agrees should be avoided in Northern Ireland. This salient point is conspicuously absent when the Green Line is invoked as a model.
There are two significant asymmetries between the cases of Northern Ireland and Cyprus. These are worth bearing in mind, as they delineate what the Green Line template could and could not achieve.
First, the Republic of Cyprus is a member of the EU and the Green Line regulation allows part of its territory not under Government control to enjoy membership benefits. The interlocutor of the EU is a member state. In the case of Northern Ireland, arrangements are sought for a territory that will be under the control of a non-member state (UK). There will be no member state interlocutor, and the EU will have to deal with a region. The case of Cyprus is easier in this respect.
Second, north Cyprus does not have officially recognized State authorities. Arrangements that require a sovereign —such as customs control, issuance of drivers licenses, and vehicle roadworthiness certificates— can not be worked out between the Republic of Cyprus and the north. The situation between the UK and Northern Ireland, and the Republic of Ireland is easier in this respect.
Setting a Good Example
Where does this discussion lead us? The hope that Green Line can be a role model is, in our opinion, misplaced. No country divided by force, and staying divided for 43 years, can be a role model. The Green Line is an example of exceptionalism that needs to be normalized, not to become the norm. There may be consensus on the desiderata for Northern Ireland, but they cannot be achieved using the Green Line model.
If the UK and the EU show sufficient imagination to find a solution, that could become a template for Cyprus. But making the Green Line of a divided Cyprus the template for Ireland will create more problems than it will solve. It will be going backwards.
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There are already a number of ‘fudges’ on the Irish border which seem to work ok. For example, in immigration, there is a lot of information sharing on non-EU citizens between Britain and Ireland (well, mostly one-way). In order to keep an open border Ireland never joined Schengen, and effectively shadows the UK system. There are no passport controls on the border but there is monitoring of public transport – I’ve heard a few stories of buses being stopped well within Northern Ireland with people being checked, and it often seems to be based on tip-offs or other forms of monitoring. I suppose you could call it a sort of informal rolling border between the real border and the ferries between NI and Scotland. Its a confusing situation as many legal immigrants in Ireland are unaware that they need a visa to cross over into NI. Its not unknown, btw, for people on transit through Heathrow to Dublin to be stopped and sent back by UK immigration in Heathrow on the basis that they believe the person will try to get into the UK via the existing border.
But the sheer volume of traffic over the shared border will make any sort of passport control extremely difficult. Many people live and work cross-border and will cross on a daily basis. Even during the ‘Troubles’ and prior to the opening up of the Common Market the border was of necessity quite loose and smuggling was a major industry (maybe the most important one) in those areas.
In reality probably the only workable solution would be for an arrangement whereby NI stayed as part of the EU – which is after all what they voted for. But under the current political situation there is no chance of that whatever.
Another issue is public unrest. Any border controls will be extremely unpopular for communities on either side as it is seen as vital for many businesses. Its not just political issues, I can well see sit-ins and demonstrations against any attempt to build physical barriers, just from local people fearing from their jobs. These things have a way of running out of control.
Constructing border posts could be a joint thing depending on the south’s attitude in which case it could be seen as less of a British imposition. For crossings of local people perhaps the identity database being introduced in the south can be used to help smooth it, by using it as proof of RoI nationality. I gather its statutory basis is very dodgy but with the border concerns in mind I expect the govt would succeed in legislating for it properly.
If the risk of illegal immigration from via the border today is considered low enough not to have routine passport controls then why introduce it now anyway? Though, I do see that phenomenon as increasing to whatever extent because of Brexit simply because some of the EU immigration to the UK will be redirected to Ireland instead, especially because of the English language. Some of those immigrants may then try and enter NI.
Re NI remaining part of the EU…
Even if the political situation were better, doesn’t that imply checks when goods cross from the rest of UK into NI and vice versa? Which in turn if correct would pretty much sound like NI isn’t part of the UK… For now I think fudging works because the UK is part of the EU.
But I am the first to say I know very little of the NI situation.
There have been a spate of stories in the Irish press recently, which i think, are preparing us for a hard border while laying the blame squarely on the Brits. See for instance
Varadkar since he came to power has taken a very consistent line – Brexit is a UK problem, its up to them to come up with solutions. He pretty much openly mocked the original position papers which tried to suggest there was some sort of technological fix.
While this stance is justified to some extent, it could backfire badly if and when it becomes apparent that a hard customs border is necessary. It is Ireland that will be under most pressure to put it in place, as London and Belfast would be quite happy to see an unregulated flow of goods, as they would be the primary beneficiaries.
The Irish government have given up being polite about it.
He said some months back that RoI wouldn’t design the border for the UK while also saying even the border between the US and Canada is disruptive. He also said fairly early on that it would be best if the UK and EU had some kind of customs area with each other. British Guardianistas latched on to the “but the peace process!” argument and commentators like Fintan O’Toole have reason to talk up this angle not just to get attention from Britain but I think more importantly from the EU. In other words it’s a plea for help with this disruption. As the Article 50 deadline approaches I suggest Brussels would throw cash at Dublin to help them set up the border. Meanwhile I suppose they can leave GB to stew in its own juice — if workable customs controls between GB and the continent haven’t been implemented yet, then tough.
“I’m walking backwards for Christmas across the Irish Sea”
— Spike Milligan
Any thoughts on the union of Northern Ireland and the Republic of Ireland? I know there has been a huge increase in passport applications for the Republic by Northern Ireland residents. And there have been many articles written about the possibility of this happening over the last year. I would think this would be the only solution other than a hard border if Northern Ireland does in fact want to be a part of the EU (they did vote to remain if I am not mistaken).
I wouldn’t read too much into the passport issue. I could get Irish citizenship any time I wanted and the only time I’ve ever spent in Ireland has been on holidays. I’m sure there are no Unionists applying for Irish passports. The Unionists are the reason we’ll never see a united Ireland without a bloodbath – which no one wants so we won’t see an united Ireland.
For all the infuriating tribalism of their politics, Ulstermen have turned out to be surprisingly practical. The Ceasefire did not really solve any of the serious issues yet both sides pretended it did because, given a slight opportunity for peace they jumped at it. Could similar pragmatism not be applied to the border question? If everyone pretends there is no problem then maybe it will go away. The people of Northern Ireland have enjoyed two decades of quiet. This new normal is something they’ll begrudingly go along with.
Nevertheless, the whole Brexit thing is a clear step towards an independent Northern Ireland. A Northern Ireland with an open border. Not a bad arrangement as both sides will get what they can live with, while the extremists will be treated like the criminals they are.
TBH an independent NI, which is part of the EU, would be probably the best solution, both short and long term – someone else might be able to comment whether it would be an acceptable compromise for both Unionists and Nationalists.
Of course, while this would have been a practicable strategy before the GE 2017, now that Tories need DUP to govern, it wouldn’t work anymore.
The more generl problem is that NI independence would like trigger Scotland’s renewed push (at the least they would want it to be NI +Scotland), and I can’t see any – Labour or Tory party, agreeing to that.
I had to laugh at that comment – when you say that an independent NI which remains part of the EU would be the best solution, from whose perspective are you speaking?
I understand that it is the best solution from the point of view of the EU, which wishes to continue to protect its single market from external competition. The protection afforded to that market is completely undermined by Brexit, of course. The reality of the situation in NI is such that the DUP would never agree to Northern Ireland being treated as separate from the rest of the UK, and they have an effective veto on any proposal on the subject put to the UK. I am also pretty sure that politicians in Eire are not really too keen to see a hard border either, since they have achieved a de facto united Ireland under the single market and the Good Friday Agreement. This has taken about a century to achieve.
It is certainly not the best solution from the point of view of the smugglers on the north and south of the border, plus any farmers, lorry owners, car owners and boat owners with access to the border crossings. It does not appear to be in the best interests of the UK government either, who presumably have a say in matters of sovereignty of the UK.
So what does “the best solution” mean in this context? Greatest happiness for the greatest number of people in Ireland? Given that Northern Ireland could be the greatest opportunity for arbitrage in the history of the modern world in the event of a hard Brexit, and consequently could become one of the richest places on the planet, I could easily argue that the best solution is to just forget about the border and ignore everything that the EU has to say on the subject.