The European Union published the first draft of a separation treaty with Britain on Wednesday. While open to debate, the draft includes controversial proposals for the Irish border that could trouble already fraught Brexit negotiations.
When Britain leaves the European Union in March 2019, the border between Northern Ireland and the Republic of Ireland will be the UK’s only land border with the bloc.
London and Brussels have agreed in principle to keep that border open, not least in order to honour Northern Ireland’s 1998 Good Friday peace accord, which helped put an end to decades of violence.
However, it is not yet clear how an open border would work in practice, given that both sides, for various reasons, see Brexit as a matter of the UK leaving the European single market.
EU chief Brexit negotiator Michel Barnier sought both to emphasise and the lack of clarity and accommodate it by laying out three options in the draft treaty.
The first two, allowing for a future free trade relationship or for technical solutions, are sources of scepticism in the EU and would require more input from the UK government.
The third and most controversial would keep Northern Ireland in the single market, thereby creating a de-facto trade barrier between it and the rest of the UK.
“Daily lives around the border should continue as today and, as I have said before, Northern Ireland already has rules in place that are different from the rest of the UK,” Barnier said. “We stand by our commitment to discuss all three options […] in parallel”.
Concessions or not?
From the EU’s point of view, the inclusion of these options is a concession to the UK government.
“The EU will actually refer to the government’s preferred options,” Mujtaba Rahman, who is following negotiations with the Eurasia Group. “That was not the EU’s position even a couple of weeks ago.”
As such, Rahman says, the EU is looking to accommodate what it perceives as lack of clarity from the UK government, “to allow time and space” for it to develop its position.
“The EU believes it can only have perspective on that once the government clarifies what future relationship it is seeking.”
However, the UK does not necessarily perceive the options as concessions.
British Prime Minister Theresa May, who will give an official response to the draft on Friday, told MPs her government would not accept any proposal that would “undermine the constitutional integrity of the UK”.
Different approaches to Irish border
The inclusion of the option of keeping Northern Ireland in the customs union also risks stirring tensions in the coalition between the Conservative party and Northern Ireland’s Democratic Unionist Party.
“From the UK’s perspective, the EU is launching an unbalanced text into a very febrile political context in Northern Ireland,” Rahman says.
“They are very concerned about the impact that will have in Northern Irish politics, not least given the breakdown in talks around power-sharing a couple of weeks ago.”
This does not mean talks over the status of the border are destined to fail, though.
“I think there is a tendency to overlook the divergences that already exist between Northern Ireland and Great Britain in certain areas,” says Katy Hayward, who specialises in Irish and EU border questions at Queen’s University Belfast.
“A much more constructive approach from the UK government would be one that starts from the 1998 agreement and the realities of devolution and says what might be possible from Northern Ireland.”
Barnier also stressed that talks need to pick up speed.
The UK leaves the EU in March 2019 but Brexit talks must conclude this autumn to give parliaments of the UK and all EU member states time to ratify the final deal.