The EU has demanded an “all-weather Backstop” in Northern Ireland. The stated aim is that the UK and EU arrangements should themselves ensure that the EU does not need to undertake any checks at the North-South borders.
The Backstop is aimed at guaranteeing that such checks are not needed because, absent UK-EU arrangements that do the job, then the EU’s authority in Northern Ireland should continue in Customs, Single Market for Goods, State Aid, and all other matters where EU law facilitates North-South Co-operation. Northern Ireland will become part of a Single Regulatory Area under EU authority should the EU think it is required to avoid a much as a single CCTV camera on the North/South border.
An “all-weather Backstop” is one that is “election-proofed” against a future UK government being elected that brings about a need for a hard-border. Therefore, whatever happens in the negotiations of that relationship, and whatever happens in the future, any need for the EU to carry out North-South border checks will trigger the Backstop. Such is the theory which the EU presses, and many in the UK accept.
Enforcing the backstop
The problem with an all-weather Backstop is that international law does not allow states to directly enforce treaty rights on the territory of another state. This means that, barring taking direct physical (ie military action) the EU cannot enforce its Backstop rights to legislate for and administer large parts of Northern Irish law without the sovereign government making way and co-operating.
As things currently stands, the EU doubtless has few worries. Few countries would entertain an equivalent of the EU’s claim for jurisdiction over Northern Ireland save after losing a war or facing overwhelming military force. The EU’s view has been that the UK must make the most radical concessions to solve the EU’s issues to the EU’s absolute satisfaction, and such a view could hardly have been pressed without it bringing some severe leverage to bear. It is difficult to see that the EU’s demands would have been entertained at all had they not been backed with a refusal to negotiate anything at all if the UK did not capitulate. The EU would even countenance a cessation of civilian air traffic with the UK if it did not comply. As with most issues, the EU has negotiated by way of diktat supported by a threat of a “North Korea minus” scenario for future EU/UK relations.
So, why does the EU need an “all-weather Backstop” – by which it means one that is “election-proof”?
If the EU has the shock and awe of breaking off all UK-EU relations, and has used this to such effect in the Article 50 process then why not continue to do so post-Brexit? If the EU also achieves its demand to have every part of the future relationship put into an Association Agreement, the EU will be well-placed to respond to any disobedience by the UK by creating a no-deal scenario.
The Backstop as a permanent block against UK dissent
The obvious answer is that they foresee a time when a UK government is not so easily awed.
Today the EU has the advantage of MPs in powerful positions accepting that the UK’s need for a deal means that it must concede to the economic duress applied. This may not last. Timothy Garton Ash argued that the more that the EU achieves a relationship of inequality and subordination, the more likely there is to a British reaction. This was his “Weimar Britain” idea. A humiliated country does not stay humiliated and humble. Treaties that cast countries as inferiors to their neighbours cannot last forever. Even where a country has started and lost a ruinous and unjust war, its position in the world cannot be forever defined by a treaty signed under the duress of defeat. Yet the EU appears to want to place the UK in a permanently subservient position.
Hence, the EU wants an “election proof” Backstop in anticipation of UK rebelling against its future role as a rule-taker to the EU.
The EU has thought one step ahead and wishes to anticipate a reaction by a legally binding Backstop. So even if the UK rebelled against its subordinate status, it would still face the problem of leaving Northern Ireland largely behind in the EU
But the EU were to think two steps ahead, it would realise that it was futile.
Futility of election proofing
It is difficult to see a government doing something that brings the Backstop into play by reason of desiring minor changes to the UK-EU relationship. It would almost certainly arise from a decision to confront the EU head on. Such a decision, and such a confrontational spirit in the UK, is unlikely to co-exist with meekly co-operation in the activation of the Backstop.
However, “election-proof” a Backstop might appear to be on paper, it could not be enforceable against a government elected not just to repudiate the UK-EU Association Agreement, but whose voters saw that agreement as an unjust imposition brought about the weakness of the Parliament that approved it. However much Remainers might scoff at such sentiments, it is difficult to imagine the EU being confronted post-Brexit by a UK government that did not think in that way. Such a government would be in the business of rewriting the relationship as one of sovereign equality and reciprocity – the basic respect due in international law to all states however small from their neighbours, however large.
The problems for the “all weather” Backstop should be clear.
The EU will be fine in achieving co-operation from the sort of government or Parliament that sees maintaining “the deal” as an overriding priority. The EU can rely on the that government’s fear of a no-deal threat of “North Korea minus”. However, a government that would cause the EU to reach for the Backstop would have been elected on the platform that a bad deal had been worse than no-deal, and Article 50 had given rise to a deal that could not be allowed to stand. Such a government would doubtless be taking Varoufakis’s advice that, when confronting the EU, it is best not to bother with negotiations and go straight to action. In short, such a government will be one for a Unilateral Declaration of Independence and will not oblige the EU by co-operating with the Backstop.
Limits of legal enforceability
If international law does not allow for the EU to directly enforce its claims under the Backstop without UK government cooperation, can an “election proof” Backstop be achieved by enshrining it in UK law.
The answer is, again, “no”.
This is not just a matter of Parliamentary Sovereignty making it impossible to perfectly entrench obedience to the Backstop. In no country are any laws entirely beyond the reach of democracy. Even in Germany, no constitutional provision is unrepealable. Even the permanent provisions such as the “state sovereignty” clause may be repealed if it is the clear and settled will of the German electorate.
The EU is threatening the UK a “North Korea minus”/no-deal if it does not agree an “election-proof Backstop”. But such a Backstop is impossible. It must also know that there is every chance that an unequal treaty might bring abut the sort of rebellion from the UK that Mr Garton Ash feared in his “Weimar Britain” hypothesis. It must know that any treaty that purports to subordinate one country under another can only truly be enforceable by military force.
The EU has posed the question “do you want the Backstop, or do you want no UK-EU relationship?” It is unfortunate that our present Parliament includes so many who would reply by waving a white flag. The EU does not seem satisfied with this. It wants a guarantee that no government can ever be elected which will throw this question back in the EU’s face. Such a guarantee is impossible to give. The Backstop’s only guarantee will be the UK’s fear of no-deal. Any promise given by a government acting on that fear will be worthless should a government be elected to act fearlessly.