The EU could use an obscure provision in an international trade treaty to preserve a frictionless border in Ireland in the aftermath of a no-deal, no-transition Brexit, a new report commissioned by MEPs suggests.

The report to the European Parliament Constitutional Affairs Committee on the legal institutional implications of a hard Brexit – a prospect which is unlikely in the current state of negotiations, he suggests – has been prepared by Dublin City University’s energetic Prof Federico Fabbrini, director of its Brexit Institute, and will be presented at a meeting of the committee on Thursday. It warns that in the event of a hard, no-deal Brexit in which there was no transition arrangement or withdrawal agreement, from April 1st, 2019, “contingency plans would need to be put in place from the EU side to deal with the sudden emergence of a customs border between Ireland and Northern Ireland”. That could be done, he argues, by invoking Article XXIV(3) of the General Agreement on Tariffs and Trade (GATT) , which provides for a so-called “frontier traffic exception”. It is one way of doing what four parties in the North have urged in recent days – keeping the North inside the customs union and single market. The clause, which has never been used before, allows that custom provisions under the World Trade Organisation regime which would prevail in both the EU and UK in the event of a no-deal Brexit “shall not be construed to prevent: a) advantages accorded by any contracting party to adjacent countries in order to facilitate frontier traffic . . .”

This would allow the EU, Fabbrini says, to “declare the entire territory of Northern Ireland to be a frontier zone to the EU customs union; thereby removing the need for customs controls (at least on the EU side)”.

External frontier

Whether the 27 remainer states would be willing to allow such a gaping hole in the EU’s external frontier is not clear – they have been most firm to date in their insistence on preserving the “integrity of the single market” and it would immediately raise questions about how to deal with east-west trade across the Irish Sea.

Such a policy might also not completely obviate the necessity for border controls to ensure regulatory compliance in areas like veterinary/animal health standards.

Fabbrini’s paper also argues that a hard Brexit would not mean that the UK would not remain obligated in international law to fulfil its commitments to the current EU budget, which runs until the end of 2020. Prior to the joint report signed in December, some UK politicians insisted that the UK’s obligations to the budget would cease on Brexit. But the UK government conceded in the joint report that it would honour whatever undertakings it had made in the current budget round. Although the Brexit talks are based on the principle of “nothing is agreed until everything is agreed”, Fabbrini insists that under the legal principle of “fair play”, “the fact that the UK has already accepted its budgetary responsibilities as a condition of withdrawal implies that the EU will have a strong legal case against the UK for budgetary contributions even in a hard-Brexit scenario”.

Although he admits that finding a court with jurisdiction to uphold such an EU case would be difficult, he argues that the UK is unlikely to be willing to test the argument legally.

Serving of terms

The report also considers the effect of Brexit – whether hard or soft – on the ending of the terms of members of various institutions. Fabbrini argues that UK MEPs should continue to serve after Brexit on March 29th for a further six weeks until the European Parliament concludes its own term and has elections.

The UK European commissioner, Julian King, should quit on the 29th, he says. But the UK members of the European Court of Justice should be allowed to finish out their own six-year terms – technically speaking, they do not “represent” individual states. Leaving them in place, he says, would be “more consistent with the preservation of the constitutional integrity of the ECJ as an institution which has not been tainted by national interests”.

Fabbrini warns that a no-deal Brexit would see mechanisms of police and judicial mutual assistance like the European Arrest Warrant and the sharing of information “immediately suspended”, and instruments like extradition requests would have to be used to secure co-operation in the field of security. Law enforcement co-operation “would bounce back to classical instruments of international law [and] could try to replicate vis-à-vis the UK some of the co-operation agreements it has put in place with other non-EU countries”.