What’s in an Irish Border? Brexit, the Backstop(s) and the Constitutional Integrity of the UK

Abstract

The decision of the UK Government to withdraw from the single market and the EU customs union after the end of the transition period has presented a significant challenge for the frictionless nature of the Irish territorial border. To effectively deal with this, several differentiated arrangements have been suggested for Northern Ireland. A number of political actors, however, have expressed their concerns over such arrangements claiming that they pose a threat to the status of Northern Ireland as an integral part of the United Kingdom. The current paper shows that territorial differentiation is a tool that the EU has used frequently in order to accommodate regions that already enjoy a degree of legal or constitutional differentiation in their relationship with the respective metropolitan State. In the case of Northern Ireland, the differentiation introduced by the Protocol on Ireland/Northern respects the right of self-determination of the people in the region as expressed through the principle of consent on which the GFA was built. As such, it protects the unique constitutional status of Northern Ireland rather than threatens UK’s constitutional integrity.

Keywords: EU law; Internal Market; Constitutional integrity; Northern Ireland; Self-determination