The Legal and Practical Implications of the UK-Ireland Border Post-Brexit

Nonetheless, a common misconception has emerged suggesting that the UK and Ireland, due to the Good Friday Agreement, can somehow bypass the need for border checks after Brexit. This view is fundamentally flawed and ignores the complex legal and practical realities shrouding this international border.

The Misconception of Schengen and the Good Friday Agreement

Firstly, the Schengen area is entirely irrelevant to the current discussion. Any reference to Schengen suggests a misunderstanding of the legal context or an attempt to propagate a provocative narrative. The Good Friday Agreement, which established a free-flowing border between Northern Ireland and the Republic of Ireland, is not part of any customs union and is not comparable to the Schengen arrangement.

Politically, the UK has now distanced itself from the EU, leading to a natural consequence of being treated as a third country. As a result, border controls and inspections will be necessary, reflecting a hardening of the border. The current scenario, where the UK is more aligned with its:

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This reality means that the UK cannot continue to operate as if it were still within the EU, especially regarding customs and border control. Being viewed as a third country inherently necessitates stringent border policies to ensure the security and integrity of goods and services within the EU.

Consequences for the EU and the Republic of Ireland

The EU is understandably concerned about the potential influx of non-EU approved goods across the border. Without effective border controls, the EU may compel the Republic of Ireland to enforce these measures, which would come into direct conflict with the principles of the Good Friday Agreement. This disagreement would place the Republic of Ireland in a difficult position, as it would have to navigate between the commitments under the Good Friday Agreement and the dictates of the EU.

In practical terms, if the UK must cease to operate under the EU's customs and border regulation framework, it would very likely result in a "hard" border, which would disrupt the free movement of goods but not the movement of people. The Republic of Ireland, as an EU member, would undoubtedly comply with EU rules and may be pressured to implement border controls to maintain its membership integrity.

Thus, the ease with which the UK and Ireland could maintain a borderless regime is far from guaranteed, especially after Brexit. The political and economic complexities between the two nations, coupled with the need to adhere to EU regulations, make a soft border almost impossible.

The Reality of the Common Travel Area vs. Customary Agreements

It is also important to note that the border is not a new development but a long-standing feature of the relationship between the UK and Ireland. The Common Travel Area, which existed since the 1920s, predates the Good Friday Agreement. The Good Friday Agreement, signed in 1998, did not formally address the issue of customs and border controls. Since it is primarily a political and peace agreement, it is more focused on the movement of people than on goods.

The exact nature of the border arrangements will be negotiated, but it is highly likely that customs posts will become a necessary feature. The Common Travel Area, while facilitating the free movement of people, does not provide the same level of flexibility when it comes to regulating the movement of goods and services. Any modernized border agreements would need to refine the relationship between the two jurisdictions to account for these practical requirements.

In conclusion, the Good Friday Agreement is not a cure-all for the future of the UK-Ireland border. The future will rely heavily on the ability to balance political agreements with the practical realities of customs and border controls. The UK's departure from the EU, combined with the legal obligations of the EU and the Republic of Ireland, means that a significant hardening of the border is probable.