The Empire Strikes Back: Brexit, the Irish Peace Process, and the Limitations of Law
The Irish government and the pro-remain majority of political parties in Northern Ireland have been solidly supported by the European Union in their determination to avoid a “hard border” in Northern Ireland lest it undermine the peace process. A key effect of the peace process was the removal of the physical border in Ireland. This was enabled partly by an improved security situation but also by virtue of the fact that both the United Kingdom and Ireland were members of the European Union. With security installations and customs posts removed, to all intents and purposes, the border between Northern Ireland and the Republic became invisible. Thirty thousand people cross this invisible border each day to work or attend school and approximately 1.8 million cars cross it each month. Successive British governments have stressed that they too are committed to avoiding a hard border in Ireland. They have, however, failed to persuade the European Union, the Irish government, or the pro-remain majority in Northern Ireland that such an outcome is feasible (e.g., through the use of technology) in a context whereby one part of the island of Ireland (the Republic) remains in the EU Single Market and Customs Union and the other (Northern Ireland) leaves. The difficulties associated with resolving this conundrum have been at the center of the British government’s negotiations and discussions with Ireland and the other EU member states since the Brexit referendum. Moreover, Brexit has thrown into sharp relief a range of important human rights and legal considerations concerning not just trade and commerce but also contested political and national identity issues which lay at the heart of the conflict in the first place.
Our central thesis in this Article is that the Leave Campaign and the determination to enact Brexit at all costs by sections of the British Conservative party has re-energized a variant of English nationalism and nostalgia for empire which has had a direct consequence on the peace process in Northern Ireland and upon relations across the island. In order to test the veracity of that proposition, we examine in detail a number of key components of the relationship between the peace process and the European Union.
First, drawing from the literature on imperialism and post-colonialism, we suggest how such a perspective helps us to make sense of elements of Brexit. We then explore in more detail how Brexit has impacted on aspects of the peace process in Ireland. Having reviewed the ways in which EU membership helped improve Anglo-Irish relations, we chart the deleterious consequences of Brexit. We then examine the role of the European Union in the peace process, the Good Friday Agreement and the transition from conflict since 1998. Next, we explore the impact of Brexit on political relations within Northern Ireland, including the mainstreaming of the debate on Irish reunification. We then examine the relationship between Brexit and the risk of future political violence and the challenges to the governance of security. In the final section, we argue that law in general and human rights guarantees, in particular, were central to the peace process. In analyzing the major Brexit-related legal challenges, we examine some notable government defeats concerning UK parliamentary sovereignty. However, we argue that law has largely failed to protect the peace process from the reckless imperial impulses provoked by Brexit. We conclude by considering what lessons can be learned from the Brexit experience concerning the role of law in general and human rights guarantees in particular as the constitutional conversations about a united Ireland gather momentum.
Recommended Citation: Kieran McEvoy, Anna Bryson, & Amanda Kramer, The Empire Strikes Back: Brexit, the Irish Peace Process, and the Limitations of Law, 43 Fordham Int'l L.J. 609 (2020).