By Jonathan Stanley
Downing Street would have us believe we are making progress on a free trade deal with the EU. Beyond trying to give away as much of our fish as possible for as long as possible I'm not so sure. Ultimately the Irish border remains a big issue and the recent Internal Market Bill, badly marketed by No.10, only confirms this. The Irish Backstop needs a "walkaway-safe" strategy that can be defended easily and points to prior art. If Brexiteers cannot manage more than years old slogans and hoping Downing Street won't blink against the EU it's time to look afresh at existing deals and laws to make the Irish border a non-issue. We are short of time. We always were. What we need is something the EU has no choice but to consider. Not necessarily agree to but to consider, likewise the Irish government who has a fresh leader in the form of Micheal Martin who strikes me as bright and purposeful. That makes a nice change. The EU's biggest weakness here is its own treaties. They are bound by them and by their precedents. This is why I think we can use a little known mechanism Article 349 of the Lisbon Treaty to solve the Irish Backstop. This could entirely replace the existing backstop in the Withdrawal Agreement or open up a new long term phase in Ireland's relationship with the UK and EU, very much to its economic advantage. The text that creates this special relationship is simple and one can see the Canaries and Azores together are not much smaller than the Republic's population. Indeed if the Canary Islands were a separate EU member state on population alone it would outrank six existing ones. This is no trivial economy.
"Taking account of the structural social and economic situation of Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the Treaties to those regions, including common policies. Where the specific measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act on a proposal from the Commission and after consulting the European Parliament. The measures referred to in the first paragraph concern in particular areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Union programmes."
"The Council shall adopt the measures referred to in the first paragraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Union legal order, including the internal market and common policies."
Article 349 has been used many times, including along a non-EU border far more divergent than our own with Ireland. The Canary Islands is the largest territory under it, if it were an EU member state it would have a bigger population than six existing ones. There is nothing to stop it applying to Republic of Ireland in its entirety as it otherwise completely satisfies 349 conditions. All Ireland has to do is ask the EU to do it, as France did as recently as 2012 with Mayotte.
By shifting the border in the Irish Sea from between Great Britain and Ireland, to Ireland and the Continent, we preserve the all-Ireland economy, the open internal border and the political and economic cohesion of the United Kingdom using a mechanism in use by the EU. Such a mechanism as can be seen will preserve the structural social and economic situation in Ireland where insularity and Brexit require a special situation for Ireland to keep the border open.
Given Brexit was be caused by the UK's domestic politics, the Republic of Ireland could cite this is third party pressure in requiring Ireland ask this of the EU. There would be precedent set for other existing EU member states. In the early 1990s when the EU was about to form the European Community did not hesitate in creating the EEA and that was for EFTA states who had no existing border challenges. Such a move required new treaties but Article 349 is already a part of EU in use. Indeed the EU has made repeated points as to the value of Article 349 including a European Parliamentary resolution in 2017 that,
"Stresses that while facing a significant disadvantage due to the geographical distance to the Union, the ORs benefit also from several important assets such as the potential of growing tourism related activities, blue growth, of exploiting significant renewable energy resources, of developing a circular economy, as well as building on their rich natural heritage and huge biodiversity takes the view that that Article 349 of the TFEU could be interpreted also in a more innovative and positive manner, particularly with a view to establishing ad hoc programmes and specific new policies, making use of the strong points of the ORs and giving them the means to make the most of the... recalls in this context the role the Union is assuming with a view to enable the ORs to overcome their challenges and build on their assets, but stresses at the same time the necessity that the respective Member States assume more responsibility as regards the use of available EU instruments that can support them in ensuring a sustainable development of their ORs."
That sounds to me like the EU would certainly consider Ireland's request to invoke Article 349 for ALL of the Republic of Ireland as a member state as an Outermost Region. Crucially almost all ORs are islands. It has been applied to a territory with a non-EU border, and that would be an ideal scenario to use Article 349 to attenuate any effects that border would have on the EU territory. It has been used in this regard by French Guiana that borders Suriname and Brazil.It has never been used by an entire EU member state but there is no reason why it cannot be. Guiana along with Martinique and Guadaloupe have MEPs, these areas really are part of the EU. If the entire territory of a member state fulfills the criteria otherwise applied to an OR then the EU may either directly invoke Article 349 or else apply its principles in entirety to the Withdrawal Agreement. This would be a genuine Irish backstop for it maintains the economic unity of Ireland, as well as the political unity of the UK, for as long as it required by the EU.
Mayotte was added to the Article 349 schedule, "As for Mayotte, it has ceased from January 1st 2014, to be an OCT (to which the provisions of part four of the Treaty on the Functioning of the European Union apply) in order to become an outermost region under Article 349 following an official request for a change of status from France, dated of October 26 2011, addressed to the European Council. This led to a reference to Mayotte in this article and in the article 355 (1) TFEU." This is how Article 349 can be applied to the Republic of Ireland as a whole citing Brexit as third party pressure requiring it. The EU must agree to it then again it must agree to any EU-UK trade deal in the future. Unlike the trade deal, Article 349 would be an entirely intra-EU arrangement. It would require Ireland to request a special status to avoid all border issues for as long as they remain and likely until the UK and EU agree a permanent deal.
Article 349 being driven by factors external to the EU is by its nature flexible and self amending, simply adapting under EU law as to ensure the Irish border remains open and free from checks at the border. The EU never imagined its treaties could be used in this manner but for them the law is the law. Brexit is happening. If risks to Ireland are as severe as they claim, they may end up trying to use this strategy out of desperation anyway. Far better to do it now cooperating with both the EU and the UK.
Isn't that what the Good Friday Agreement envisaged anyway?