A question gets frequently asked in relation to Brexit – it always comes from the exit side and is “who is going to build a border with Northern Ireland?”. The argument is this ” Well, what if the United Kingdom declines to impose a hard border with the European Union, well then there’s nothing else to be said. Presumably the European Union could decide to build its own hard border, but that’s their problem?
Would that it was so simple… See below the fold
Any impetus for changing the existing completely invisible and seamless border, insofar as it pertains to the movement of goods services and people, will arise as a result of the decision by the United Kingdom to leave the European Union. Nobody doubts that.
In the event that United Kingdom managers to negotiate some sort of the free-trade agreement, perhaps along the lines of that pertaining between Norway and in the European Union, then some sort of relatively light touch border might be possible. However, the Norwegian Minister for relations with the European Union has poured a very large bucket of cold water on the idea that this would be other than a considerably harder border then exists at present. Let’s assume that she knows what she’s talking about.
Customs checks and rules of origin checks also exist on the Swiss European Union border.
In the case of both the Swiss and the Norwegian situations both countries find themselves rule takers. Access to the single market comes at the cost of paying for all of the benefits and getting little in terms of influence.
In the events that there is no arrangement then United Kingdom will find itself moving towards trading with the European Union on the basis of the arrangements as per the World Trade Organisation. Again, nobody doubts that. Some may even relish it.
One of the principles of the World Trade Organisation is that of the “most-favoured-nation”. In essence, what this states is that if you give one country special terms are a special deal, then you must give those terms to all countries with whom you trade
So let’s imagine a belligerent United Kingdom decides, post a breakdown of negotiations, that it will not impose a customs or hard border. If it’s not going to have a customs checks, tariff checks, rules of origin checks, and the whole paraphernalia of dealing with the country with whom you are not sharing a customs union then it must give those exact same terms to every country in the world.
Only those pushing for the absolute hardest form, the purest kind, of Brexit suggest that United Kingdom should expose itself unilaterally to complete global free trade. Of course, they could decide to not to do so, but that would then expose them to mass, ongoing, and internationally neatly binding arbitration and dispute resolution. If the UK thinks that this is having a torrid time in its relationship with its closest neighbours for 40 years, just wait until they start dealing with countries with whom they have had much less cosy relationships.
So it’s quite simple, for the UK. Having decided to leave the customs union and single market they need, unless they are happy to find themselves an international legal piñata, to impose the paraphernalia of a hard border, from their side.
So also does the European Union, by the way.
It really is a simple as this; if the United Kingdom insists on leaving the customs union and single markets, and refuses to allow for a binding European Court of Justice oversight (which has ruled out consistently) this is very likely to end up with them trading on something close to WTO rules. Of course, the UK could simply declined not to join the WTO. Some countries are not members. Countries such as Azerbaijan, Belarus and Bosnia and Herzegovina are not members. Mind you, in near every case where countries are not members of WTO they are taking active steps towards joining.
There is one further complication. Right now the United Kingdom is a member of the WTO by virtue its membership of the European Union. With Brexit it will be allowed to re-activate its original membership. But membership of the WTO brings with it a large and binding set of oversights in relation to the kind of trade agreements that can and cannot be made. There is no room for buccaneering.