As globalism continues apace it would be an easy trope to imagine borders matter less, but they still show their power. Whether it is the Russian war of aggression on Ukraine, waves of refugees and economic migrants crossing European borders, or the sea border demanded by the European Union and acceded to by the United Kingdom.
My own life both personal and political has been shaped by a border. My home county of Fermanagh is a border county. A childhood that saw the good and bad of border life.
Cross border shopping trips that would take advantage of different taxes and exchange rates to get the best deal. With branding in its infancy, I enjoyed the childhood curiosity at the different sweets or even same sweets in different packaging.
The dark side of that same border was as a shield for murderers. The Provisional IRA would cross back and forth to kill and destroy. The men who attempted to murder my father fled back across it with no prospect of being caught.
It would be borders within the British Isles that would shape my political life.
The development of the United Kingdom was a project that as it grew removed borders – social, cultural economic and political and created a hybrid of the unitary and nation state.
Fitting with the British democratic tradition though it was a gradual process . It began with Union of Crowns but in time became a Union of parliaments. The Act of Union of 1707 had brought Scotland and England together as the United Kingdom of Great Britain followed by the Act of Union of 1801 brought Ireland into the United Kingdom of Great Britain and Ireland with the abolition of its corrupt Dublin parliament.
In the first Articles of Union it made clear it was as much an common economic project as it was a political one with arguably more economic based ones than political. Centuries before others would conceive the European Single Market it set about building one in the British Isles and then across the globe through imperial expansion.
This process was at times violently opposed particularly in Ireland and Scotland as well as peaceful pressure to democratise faster from the Chartists and organised labour.
In the late 1800s and early 1900s a renewed challenge began in Ireland, inspired by the romantic ethnic nationalisms that were sweeping Europe with cultural revivals at their core. Within this challenge the majority chose the democratic path but there was a persisteny violent tendency. The mainstream sought Home Rule within the Empire and those who wanted full independence. Notably the Home Rulers still wanted the economic benefits.
During and after the First World War the violent element became the predominant and Ireland was bathed in blood. This ultimately resulted in the Anglo-Irish Treaty, accepted by the Dail. Ireland would gain more than Home Rule but less than full independence but Northern Ireland had the option to secede and remain in the United Kingdom. A land border was created through an agreed process of double secession – it was not a partition.
The new Irish Free State went through a tumultuous period of civil war with the greatest victim its Protestant minority. The forces who lost the Civil War would later succeed at the ballot box. In power they set about re-writing the Anglo-Irish Treaty through a new constitution. In 1937 it came into being. Of particular significance was Article 2 of that constitution which laid territorial claim to Northern Ireland – the National Territory of the Irish nation was the whole of the Island, ie including NI.
This was contrary to international law. Territorial integrity is the principle of international law that gives the right to sovereign states to defend their borders and all territory in them. It is enshrined in Article 2 (4) of the United Nations Charter and has been recognised as customary international law. It is a principle that the European Union has nominally built itself upon. It is the principle that Ukrainians are fighting and dying for.
It was a public breach of an international agreement, the Anglo-Irish Treaty of 1921. It was a direct attack on the existence of Northern Ireland by walking away from the terms of the Government of Ireland Act 1920.
It was used by republicans to give credence to their campaign of violence, the results of which I personally experienced when a bomb exploded on my school bus. It underpinned the Irish refusal to extradite wanted republican terrorists.
The United Kingdom chose to deafen its ear to the illegal claim, prioritising the maintaining of relations. Some during the decades that followed tried to assert that it was no more than a political claim but the Irish courts said otherwise.
In the 1974 Boland case a dissenting judgement said it was not just a political claim but a legal one. Case law developed and in Russel -v- Fanning one of the judges described articles 2 and 3 as not just an aspiration for re- unification but a constitutional imperative i.e. legally compelling the Irish state to seek re-unification.
This was confirmed in McGimpsey – v- Ireland. Re-unification of the national territory was a constitutional imperative requiring the state to advance unity.
The last case was taken after the signing of the Anglo-Irish agreement in 1985. I was 15 and it was my first contact with politics. An Irish role in Northern Ireland had been ceded, its constitutional imperative was advancing incrementally, all without democratic consent. A breach of international law remained ignored.
It was only through the signing of the Belfast Agreement that the Article 2 was amended with the Irish nation defined not in terms of territory but people.
The territorial claim on Northern Ireland was clearly illegal and contrary to International law but it was allowed to exist from 1937 until 1999.
The EU did nothing to challenge this claim even though at the time it was one member state claiming the territory of another – they simply ignored the clear breach. Pragmatism determined that people knew the claim was wrong but no-one did anything about it.
A precedent Unionists remember as the EU and Irish preach about obedience to international law.
However, a change in words did not result in a change in mindset. Following the UK referendum to leave the European Union the agreed international land border came into focus. Was it to be respected? No.
The EU wanted to punish the United Kingdom and find means to tie the UK after it left. For the Irish a new generation of politicians knew little of the hard-won compromises and relationships that had maintained a sometimes, faltering peace process.
The territorial claim was reborn in economic form, its name the All-Island economy – It is many times smaller in scale and importance than the UK economy to Northern Ireland but it became the new shibboleth.
But it was to protect the European Single Market? Northern Ireland trade represents 0.17% of all EU trade, it’s almost accounting error level.
But it was to protect the Belfast Agreement? It sought to partition Northern Ireland from UK democratic decision, something the Belfast Agreement made us fully subject to. It sought to economically partition the United Kingdom. It was a full frontal attack on the founding economic principles of the UK. The intricate balances of the multiple agreements had a protocol shaped hole blown in them resulting in devolution collapsing again and many Unionists questioning can relationships ever be repaired. Quite the legacy for the EU.
In the present protocol discussions a raft of legal, technical and practical solutions are up for consideration. These are the answers available to anyone who wishes to remove trade frictions. These are all solutions the EU previously dismissed as unworkable – where they lying then or lying now?
This was harmful enough but Ireland plumbed the depths when it mainstreamed terrorist threat as a justification. Leo Varadkar, the then Irish PM, brought along a front page of the Irish Times from when a Border check had been bombed by the IRA to a dinner and implied that if the EU did not back the Irish Govt in their quest for what they wanted that IRA violence would return.
A sea border whether offered by Theresa May or Boris Johnson had always been rejected by Unionism but the Benn Act and a chaotic parliament led to their terrible choices. However, it wasn’t them who forced those choices. The Irish couldn’t believe their luck and they knew full well it would unacceptable to unionists- therefore they knew the instability that would follow and still exists today. It was their conscious choice.
As Tom McTeague, the respected international journalist has said
“…at the heart of the matter is a reality few want to admit: the protocol is imbalanced, implementing in effect the nationalist solution to the Brexit border trilemma. “
The Irish commentator and author Eoghan Harris also commented that:
“…we did a dirty deal with the brits to shaft the unionists. We did not consult them on the erosion of their status. We did not treat them with the parity of esteem in the spirit of the Good Friday agreement ….A great stroke for Dublin and the DFA if the object was to build distrust and disunion”
It is only when matters have the agreement and consent of both communities in NI that devolution works – that is the heart of the Belfast agreement – the consent of both the nationalist and unionist community. In 2017 Sinn Fein collapsed the executive in NI as they claimed they did not have the respect they needed. The executive did not operate for 3 years through some very tough times and it was only in 2020 that Sinn Fein consented to come back into government. They also secured much of their respect agenda as part of it. Their demands were given priority by the governments. Now the largest unionist party has withdrawn from government over the impact of the NI protocol. They are using the only leverage open to them to get the protocol dealt with after living off unfulfilled promises for two years.
Now balance must be restored. A process made more deeply problematic by the non-relationship between the EU and Unionism, the collapse of the relationship between the Irish government and Unionism and the well of distrust with London for agreeing to the Protocol. Steve Baker may have made the gesture of an apology to the EU, Unionism is still waiting on the many owed to it.
The scale of the challenge should not be under-estimated. A quick and dirty deal won’t cut it. A deal which deals with the Protocol at a fundamental level is needed. Northern Ireland best future needs its full place in the UK’s internal market restored. Northern Ireland’s best future needs devolution restored.
The route map to achieve it does not need to be invented. It existed it was followed. It just needs taken out of the bin that the EU and Irish cast it into.