The Irish backstop, the letter and the spirit of the law

With just over a month to go until the United Kingdom is set to leave the European Union, a cloud of uncertainty still hovers over the country’s post-withdrawal relationship with the regional bloc. One of the biggest sources of this uncertainty comes from the fact that British lawmakers have yet to determine how Brexit will deal with the issue of Northern Ireland: a region that will remain part of the United Kingdom while sharing an island with the Republic of Ireland. The Northern Ireland “backstop,” included in Theresa May’s draft withdrawal agreement and met with heavy criticism, has emerged as a highly visible point of contention in the Brexit debate over the last several months.

So, what is the backstop? Simply put, it refers to an agreement to maintain an open border between Northern Ireland and the Irish Republic if an alternative arrangement can’t be negotiated before March 29 (i.e., no-deal Brexit). This arrangement would essentially preserve the status quo — as both the United Kingdom and Ireland are (presently) part of the European Union single market and customs union, goods and services can be traded between the two regions with few restrictions. The backstop ensures that in the event of a no-deal Brexit, this arrangement remains largely unchanged.

Despite all the talk of customs and travel, however, the Irish border issue is not just a question of commercial logistics – it is also entangled with “the Troubles,” the decades-long conflict that divided Northern Ireland over whether the region should remain a part of the United Kingdom or unite with the Republic of Ireland. The Troubles came to an end in 1998 with the signing of the Good Friday Agreement, an international agreement between the British and Irish governments that addresses the delicate issues surrounding nationality and the Irish border. Interpretation of the agreement has played a central role in the Brexit debate.

The British government’s legal position is that Brexit will not affect it. While the published advice on this issue provides little in the way of analysis, the British interpretation seems to adopt a strict textual approach to interpretation. Basically, as the Good Friday Agreement contains few specifics related to the border, it doesn’t prevent the United Kingdom from changing the current system.

In contrast, Irish lawmakers have tended to focus on the “spirit” of the agreement – placing the focus on its purpose rather than specific wording. So, while it may not explicitly prohibit a hard border, its objective is clearly to promote closer integration and facilitate cross-border interactions – an aim that is difficult to reconcile with a hard border approach. This position is arguably supported by the fact that many of the provisions in the agreement are drafted in aspirational and general language, suggesting the drafters’ intention to allow flexibility in how it would be applied.

So, which approach is correct? What makes this question of treaty interpretation so important is the impact it could have on Northern Ireland. While it would be misleading to depict Northern Ireland as teetering on the brink of war, tensions in the region still linger. Notably, Northern Ireland has never had a government-initiated reconciliation commission to address the conflict. In this light, the Good Friday Agreement (and the importance of interpreting the agreement more broadly) arguably takes on increased significance.

While a narrow reading may be politically expedient at present, it is unclear what negative impact this approach could have on Northern Ireland in the future.