Joel Diaz-Rodriguez , 29 octobre 2018

Negotiation are going on but little progress has been made to get the final agreement on the Northern Ireland issue.

The European Council (EC) on Art. 50, on October 17^th, finished with a revision of the state of the negotiations with the UKanda strong endorsement to the EU chief negotiator, Michel Barnier. The Ireland-Northern Ireland issue remains as a barrier to move forward in the negotiations that according to the conclusions of the EC, despite intensive negotiations, not enough progress has been achieved. Nonetheless, negotiations are going on in order to find a common ground for the Ireland-Northern Ireland border.

The state of the negotiations are in its second phase, and have progressed since a hard beginning on which red lines positions were announced by the Prime Minister Theresa May that included no custom union, no internal market, no free movement of persons and no jurisdiction of the Court of Justice. On the other side, the EU’s Guidelines for the Brexit adopted on April 29, 2017  expressed firmly, that an agreement on future relationship between both only can be concluded once the UK leaves the EU but argued that once UK leaves the EU, would be treated as third country because it cannot expect to have the same advantages than a member. The first round of negotiations was launched on May 22th, 2017 but, in spite of the initial different positions, common ground was met. Thus, on 8 December 2017, the  EU and UK published a joint report reflecting their agreement, in principle on three key areas: rights of EU citizens in the UK and UK citizens in the EU; framework for addressing the unique circumstances in Northern Ireland and a financial settlement. The 2017 December’s European Council considered that significant progress had been achieved and gave its approval to open the second round negotiations.

Following this, in 2018 negotiations continue, including on the nature of the transition period, as well as continued talks on the ways to avoid a hard border between the UK and Republic of Ireland. On February 28^th, European Commission published a draft withdrawal agreement between the EU and UK, translating into legal terms the joint report published in December 2017. This conducted to the adoption in March of a Provisional Agreement between the EU and UK based on the previous European Commission draft, including an agreement on a transition period. Notwithstanding all previous steps, important fields are still pending to be agreed. In the field of trade EU remains stick to its initial position that further market access in a FTA (Free Trade Agreement) con only be granted within the constraints of other EU FTAs, taking into account the Most Favored Nation clause). Other field on which have been difficult to reach a common ground is the internal security. UK propose exchange of information and access to data bases. On the other hand, EU offers cooperation on Europol and Eurojust but based on third countries model agreements and also the mutual recognition of the European Arrest Warrant. The Foreign Policy field, seems will be more easy to find common ground because both want an special arrangement given the UK status as UN Security Council permanent member and as significantly military power.

However, the main concern nowdays of the negotiations is at the contentious issue on the border of Northern Ireland and Ireland as is expressed in the Conclusions of the European Council of last June 29^th, recognizing that no substantial progress has yet been achieved. EU leaders have recalled last European Council on art. 50 for agreement in accordance with previously agreed European Council guidelines. On the other part, in the Joint Report document, both parties agreed that would respect the commitments of Good Friday or the Belfast Agreements of 1998. The UK wants also to avoid a hard border including physical infrastructure and keep the right of Northern Ireland people to have Irish nationality. Finally, the document also impulse future arrangement related to movement of persons that in practice means to keep the Common Travel Area between UK and Ireland.

But what at the heart of this issue? There are two discrete but entangled elements to the impasse in Brexit negotiations over the Irish border: the “backstop”, which is an insurance policy that Ireland wants to ensure the border remains completely open to trade, people, and services in the event of no deal; and the second set of negotiations on the future relationship between the UK and the EU and therefore Ireland The UK and the EU agreed that there would be regulatory alignment between both parts of the island of Ireland in the event of no deal. The December deal (The Joint Report) was struck and then undone after objections by the Democratic Unionist party, which had not been consulted. To placate their concerns that Northern Ireland would, post-Brexit, be treated differently, Theresa May also agreed there would be “no regulatory barriers” in the Irish Sea. This immediately sowed the seeds for an insoluble problem unless the UK struck a deal, which involved remaining in the single market and the customs union, both red lines for the prime minister.

This situation has taken negotiations to a deadlock. After the European Council, EU leaders have strengthened their initial guidelines and their support the EU negotiator. The political context in the UK with non-unique position in the conservatory party brings difficulties. Furthermore, supports for a second Brexit referendum are increasing in UK. Thus, a common solution towards a final withdrawal agreement next March seems for the time being non-foreseeable.

Joel Diaz Rodriguez; Is still possible an agreed Brexit by March 29th? Actualité du 29 octobre, 2018. Disponible en ceje.ch