Today, Fintan O’Toole recommends that the EU and the UK get back to living with ambiguity in regards to Northern Ireland. This is the creative ambiguity that allowed the Belfast Agreement to mean different things to different people.
Yet, as we know from a bunch of legal cases over Brexit, the EU is pretty much a stranger to the weird political physics of the Northern Irish Peace Process. It played a far greater role inside the minds of nationalists than it ever did at Berlaymont.
That much is clear from its recent precipitative action in invoking Article 16. In many respects, the Commission is little more than an outsourced law-drafting unit (which is one reason the savings projected by Brexiteers will never materialise).
The Belfast Agreement on the other hand is a billateral treaty laying out broad outlines on how two countries would manage their shared interests, without the need for enforcement. It is a political arrangement. The Commission is all about the law.
And the law abhors ambiguity. Indeed, it would not be too much a stretch to argue that at its worst moments the GFA has effectively enabled political concerns to outweigh the human rights of some victims whilst allowing the lauding of others.
As Fintan notes:
The EU’s threat of a sudden and unilateral suspension of the protocol was both stupid and outrageous. It undid in hours what the EU had managed to do over the years since 2016, which was to establish itself, in contrast to the Brexiteers, as a responsible actor in relation to Northern Ireland.
In defence of the EU, I’m not sure they ever promised that this best of both worlds scenario would come without a price. Fintan argues that these problems can “dealt with by competent officials acting with goodwill and applying common sense”.
However, in fighting a long hard war over shifting the border from one place (the land) to another (the sea) no one spent any time actually thinking about the nature of the border itself and how its negative effects might be mitigated.
It’s possible that in order to effect such a shift the EU has locked itself into a sea border that’s much harder than it might have been otherwise. Mutual recognition of standards and “max fac” now drift in the cold waters of the North Channel.
As noted here at the end of last week, the conflict is over the meaning of the word risk. Firstly unionists and now increasingly nationalists (as they find it affects constituents all over Northern Ireland) want it defined liberally.
The EU is concerned with being seen to be able to reach outside its geographical boundaries to enforce its hard legal arrangements to facilitate free trade within the United Kingdom. That doesn’t lend itself to good old creative ambiguity.
Because the future of a lot of jobs and not a few businesses are at stake, the conversation is well worth having. . But Brexit was never akin to the win win arrangements of the 1990s. To have winners (eg, NI/EU exporters) there must be losers.
The question is simple: to what degree can the damage be limited, whilst avoiding the sort of poisonous foundations that still underlies our own northern politics.
Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty