The Island of Ireland and ‘Brexit’ – A Legal-Political Critique of the Draft Withdrawal Agreement

Based on a legal analysis of the position of the island of Ireland in the draft withdrawal agreement, this paper argues that the draft does neither fully protect socio-economic and civic cooperation between on the island of Ireland, nor do justice to the Agreement concluded in Belfast o Good Friday 1998 (the 1998 Agreement). While the common regulatory area is an ingenious proposal to keep Northern Ireland in the Customs Union as well as the EU Internal Market for goods (including agricultural goods and electricity), the fledgling service economy on the island of Ireland remains unprotected, as well as civic cooperation and an all-island services of (social) general interests such as (higher) education and health care. As a consequence, even the second draft falls short of fully safeguarding North-South cooperation on the island of Ireland. If that is to be achieved, Northern Ireland will have to remain not only in the Customs Union, but also in the Internal Market and covered by the EU citizenship acquis, including the anti-discrimination acquis. However, if Great Britain does not follow the same course, the existing constitutional divergence between Northern Ireland and Great Britain will become more pronounced. The draft is thus testimony to the decisive role of common EU membership of the UK and Ireland for safeguarding the 1998 Agreement.