12.1 Introduction
In order to understand Algeria’s position in relation to what is now the European Union (EU), we must consider several factors, especially historical factors.Footnote 1 Algeria became part of ‘France’ in the mid nineteenth century due to colonization. Consequently, a French administrative structure based on an absence of equality was established, reinforced by the presence of European settlers in the Maghreb.
Following the losses in the Indo-Chinese territories in 1954 and the Maghreb (Morocco and Tunisia) in 1956, coupled with the escalation of the Algerian War of Independence in 1954, French officials became increasingly convinced that creating a distinct legal status for Algerians was the only way to justify France’s objection to Algeria’s independence.
Intense European efforts to realize a unifying project in the mid 1950s resulted in the establishment of the European Economic Community (EEC). Initially comprising six founding members – France, Italy, West Germany, Belgium, the Netherlands, and Luxembourg – there was no intention to extend this new institution to the colonies. However, the Algerian cause, raised in international forums and notably at the United Nations, altered the course of negotiations. Algeria became the focal point of French–European struggles to ensure the expansion of this new European institution throughout the entire Mediterranean, with the possibility of directing European funds to Algeria.
Another aspect supporting France’s view of Algeria’s legal position was its adherence to the colonial concept of Eurafrica. Despite its gradual loss of relevance after the independence of former colonies, this concept continued in the form of a vision of the establishment of a complementary relationship between Europe and Africa. France supported this notion by legally asserting its keen defence of Algeria’s inclusion in the new European bloc under Article 60 of the 1946 French Constitution, which states that the French Union includes continental France, overseas departments, and territories.
The controversial idea of Eurafrica had widespread acceptance in 1957, the year the Treaty of Rome was signed.Footnote 2 Although European intentions to integrate Africa, including Algeria, were evident under the Treaty of Rome, several decades later it had become clear that a united Europe could not sustain that integration. Instead, and as this chapter will show, the inclusion of Algeria was replaced with various tools that reflected the EU’s institutional system and internal and external policies. Europe has yet to find what it appears to be seeking, namely a ‘special relationship for sustainable rapprochement’.Footnote 3
Against this background, this chapter will raise the following questions. What were the legal foundations that shaped the Euro–Algerian relationship? Did Europe depend on Algeria even after their separation? How has Algeria’s exit from the EEC impacted on the EU of today? Given its relationship with Algeria, has the EU ever truly succeeded in delineating a well-defined regional border law?
12.2 The Law of Extending European Borders: European Integration and Algeria
Algeria, through its European status imposed by France, de facto formulated the border law of the EEC. In other words, belonging and integration were not only a result of the geographical contiguity of regions, but rather could be achieved based on extra-regional extension through colonialism.
In the first decades of the EU, during the post-Second World War era, European leaders insisted on flexible borders. At a time when Europe and Africa did not have common interests, these leaders considered ‘integration’ as a tool to preserve imperialistic interests. France, in particular, promoted integration between the two continents, on the condition that European superiority was maintained within the integrational structure. The French also argued for preferential tariffs under the guise of development aid. This ‘integration’ was finally achieved mainly because four countries of the EEC group had colonies or administered territories under international trusteeship.
The inclusion of Algeria in the EEC was achieved specifically through extensive French efforts led by French minister of the overseas Gaston Defferre. The French insisted that its partners regulate Algeria in Article 227 of the Treaty of Rome.Footnote 4 Article 227 states that some provisions of the EEC are to be applied to Algeria, which means that Algeria was considered as a part of the EEC even though it was not an official Member State like the six founding countries. Megan Brown, in her book The Seventh Member State (in other words, Algeria) points out that although Article 227 mentioned Algeria, the latter’s status was not clearly defined at the time, making the Euro–Algerian relationship complex and ambiguous.
In sum, the Treaty of Rome was intentionally formulated to maintain Algeria’s administrative status within France.Footnote 5 The rights of Algerians were not, however, clearly defined within the EEC. Brown reached an important conclusion in this regard, namely that the ‘seventh Member State’, Algeria, challenged the concept of Europe’s natural borders by highlighting the extra-continental nature of the EEC at the time of its creation. In other words, she says, the integration process was never spatially restricted.Footnote 6
The ambiguity inherent in the Euro–Algerian relationship concerns Algeria’s status and the fact that the local population never benefitted from the same rights as Europeans. Moreover, requests made to the EEC to provide technical and professional assistance for Algerian workers were rejected.
After Algerian independence, the relationship mutated into cooperation agreements between the EEC and Algeria and several other Mediterranean countries. These agreements governed economic exchanges and technical and financial aid. Algeria was the first to express its desire to cooperate with the Community on an international scale in a letter of 24 December 1962, followed by a request to start exploratory conversations on 27 June 1963. Tunisia and Morocco expressed the same desire on 8 October and 14 December 1963 respectively.Footnote 7 The aim of the cooperation agreements was to facilitate trade and the movement of workers between Algeria and the countries of the EU. However, the preferential privileges granted under the agreements were limited, because these provisions were incompatible with the economic policy of a country that had until very recently been under colonial rule.Footnote 8 Algeria’s exhaustion from having been a colony for so long made it falter and stumble in its attempts to improve its economy. The Algerian authorities therefore accepted support and assistance agreements, but encountered technical, political, and material difficulties. As a newly decolonized state, Algeria was unable to perceive its relationship with the Europeans as anything other than a different form of colonialism, especially in the realm of workers’ rights. It must be remembered that under colonial rule, Algerian workers did not enjoy genuine equal rights alongside the Europeans.
Maintaining ties with the former colony was nevertheless still considered in the mainstream French discourse to be the most rational solution; consequently, the nature of the relationship between Algeria and the EU acquired a sense of inevitability.
Today the border problem continues to be an important topic in European politics, but it has changed shape. The centrality of borders in the relationship between Algeria (albeit not only) and the EU is illustrated in the ongoing debate concerning migration. Under the pretext of protecting their borders from the arrival of ‘unnecessary’ immigrant populations who do not ‘deserve’ to belong to their countries, or who are even considered a threat to their nations and to Europe as a whole, some politicians have sought to tighten these borders by various means including the creation of detention centres.Footnote 9
It will not then be difficult to understand the impact of Brexit in 2020. This was not just Britain’s exit from the EU and the contraction of the latter’s borders, but also an affirmation of the European illusion of establishing a system of borders between European and non-European regions. European countries were, and de facto are still, in need of what is non-European.
The vulnerability of European borders can be seen internally too. During the Covid-19 pandemic all Member States of the EU became isolated, which deepened the crisis in the legal system of integration established by the Treaty of Rome of 1957.
If we acknowledge that before the contemporary vulnerability and movement of European borders, the European integration of Algeria was in fact the first example of such a movement of the European border, many questions arise.Footnote 10 Most importantly, how was it possible for Algeria, a Muslim country in the southern Mediterranean, to join the EEC under the Treaty of Rome and remain a ‘member’ until 1976, when its withdrawal was formalized, even though it had gained independence in 1962? The answer to this question is best understood as a matter related to European needs and interests, especially those of the French.
Recalling Algeria’s role in European integration and the way in which Algeria moved the European border, the subsequent part of this study will highlight how the EU Member States, including France, have constructed multiple concepts of Euro–Algerian relations. First, a relatively brief period of ‘cooperation’. Second, and spanning several decades, ‘partnership’. Most recently, grafted onto the concept of partnership, ‘Neighbourhood Policy’ and ‘Union for the Mediterranean’.
12.3 Expansion of European Influence: The Euro–Mediterranean Cooperative Proposal
After the declaration of Algerian independence, some European countries did not want to continue granting a specific preference to certain African countries and advocated that preferential treatment should rather be kept within the EEC institutional framework. This prompted the opening of negotiations between Algeria and the EEC. However, the legal basis for interaction between Algeria and Europe had changed. Instead of coming under Article 227, which recognized the inclusion of Algeria into the EEC, Algeria’s relationship with the EEC now came under Article 238 of the Treaty of Rome, which states in part: ‘The Community may conclude with a third State, a union of States or an international organization, agreements establishing an association involving reciprocal rights and obligations, common action and special procedures.’
Article 238 uses an equitable formula to describe the relationship between the EEC and others by establishing agreements that guarantee equal rights and obligations to all states; creating joint initiatives and actions; and providing for special procedures. Cooperation implies interaction based on equality without discrimination or distinction between the states. Algeria, through its new position, formulated a proposal that differed from everything that had preceded it, by ensuring the expansion of the EEC’s intervention in spheres of influence in exchange for support and assistance. This can be understood as an attempt at replacing integration through colonization with integration through cooperation.
The EEC-Algerian Cooperation Agreement was signed in April 1976. This agreement defined a new relationship between the EC and Algeria in addition to the existing trade relationship. Moreover, the agreement was comprehensive and without any specific condition attached (this, as we will see, has since changed), opening the door to further bilateral agreements.Footnote 11
While the cooperation agreements were soon replaced with new forms of policy documents and agreements, as we will see later, the idea of cooperation has remained in the area of migration. Through an intersection of common interests between what is now the EU and Algeria, the management of borders and human mobility has historically been and still is entrenched in the EU–Algerian relationship. The ‘migration problem’ and its associated security challenges has remained a topic of cooperative policy. The issue of migration, connected to security and social challenges beyond borders, has always been the subject of complex and challenging negotiations between Algeria and European countries. On this issue there exist what could be described as genuine and continuous diplomatic efforts of cooperation.
12.4 Partnership with Algeria
12.4.1 The New Euro–Mediterranean Policy of the 1990s.
The European approval of a new Euro–Mediterranean policy was influenced by a combination of regional and international factors, which cooperation agreements alone could not accommodate.Footnote 12
The first tangible sign of this transformation within the EU was the signing of the Maastricht Treaty, which aimed to enhance the democratic legitimacy of European institutions and improve their efficiency. More importantly, the Treaty linked economic unity to the progress of the common foreign policy, as well as the common security policy, complemented by a common defence policy. The Maastricht Treaty turned the EU towards a ‘partnership framework’.Footnote 13 The European Commission proposed the idea of the Euro–Mediterranean partnership (Algeria, Morocco, and Tunisia), extending the financial protocol with these countries and reviving the project of a ‘free exchange’ area. It became clear that the European conviction and view was that a Euro–Mediterranean relationship was the best basis for regional stability.Footnote 14 For Algeria, Morocco, and Tunisia, the opportunity presented in the context of this ‘partnership framework’ was to rely on European assistance and paternalistic policies.
The Algerian crisis, which began in 1992, together with the political climate prevailing then in France, led the latter to reconsider once again the relations between the two countries. In this context, the paternalistic nature of what the European countries were trying to practise and impose became clear. For instance, we may recall the remarks of the French minister of foreign affairs Allain Jupé, according to which ‘France must help the Algerian government in the fight against terrorism’. In the same vein, the former president François Mitterrand proposed holding a European conference on Algeria; in other words, Europe determining the fate of Algeria from the outside as was done during the colonial period.Footnote 15
Europe’s shift towards diversifying partnership policies served as an alternative to cooperation. The EU directed its foreign policy towards new forms and areas. One example is the French proposal presented by former president François Mitterrand to establish a Council for Security and Cooperation in the Western Mediterranean, consisting of Algeria, Morocco, Tunisia, Italy, Spain, and France. However, the Maghreb countries, including Algeria, opposed the exclusion of some countries (such as Malta, Yugoslavia, and Libya); they also insisted that the conflict in the Middle East should not be ignored. The initiative was revived in 1990, resulting in the formation of the 5+5 Group. During a second meeting of the group in 1991 the ‘Algiers Declaration’ was issued. However, the group was short-lived, due to several security and political circumstances, most notably the Lockerbie crisis.
12.4.2 From the Barcelona Process to the Association Agreement: Shaping A European Foreign Policy.
Partnership has become the cornerstone of the EU’s common foreign policy.Footnote 16 In this context, the relationship with Algeria has shifted from revolving around commerce and trade to become a ‘strategic’ one with a greater focus on security challenges. Partnership is also the umbrella term used to delineate the legal framework for European migration.
The Barcelona Process, initiated in 1995 and involving the EU and twelve southern and eastern Mediterranean countries, addressed the ‘urgent need’ to connect the countries south of the Mediterranean Sea with the EU. However, the Barcelona Process had vulnerabilities and shortcomings. It excluded, for example, two key issues – agriculture and population flows – and established what many have described as an ‘unequal reciprocal relationship’. With its flexibility and limited commitment, it did not prove to be very effective. It is noteworthy that the Barcelona Declaration, while not legally binding or of contractual nature, is nevertheless considered a condition for joining the partnership between Europe and the Mediterranean countries.
In the year 2000, when France chaired the follow-up meeting of the Barcelona Process at the fourth Euro–Mediterranean Conference in Marseille, the goal was to continue the official discussion on the project ‘Charter of Stability in the Mediterranean’. This project revolved around peaceful resolutions to end conflicts, respect for human rights and democracy, and combating the root causes of terrorism. Due to the ongoing conflicts in the Middle East, however, the drafting of an agreement was abandoned. The outcome of this conference highlighted concerns about European attempts to revive colonial efforts and to ensure the longevity of projects related to European interests and thus European influence. The Marseille conference in fact revealed that the Barcelona Process had not achieved its intended goal of creating a region of prosperity, stability, and security.Footnote 17
A key component of the partnership as conceptualized by the Barcelona Process was the signing of an Association Agreement between the EU and Algeria on 22 April 2002, which came into effect on 1 September 2005. The following question arises: what has changed and what is new?
The agreement was signed by the EU and Algeria to strengthen historical and cultural ties, considering their ‘proximity and interdependence [with] historic links and common values’.Footnote 18 The Association Agreement commits both parties to a more substantial liberalization of bilateral trade and is meant to ensure that Algerian companies and consumers benefit from the development of international trade and investment. The agreement includes a gradual elimination of customs duties on European industrial products over a twelve-year period (Algeria already enjoys tariff-free access and a share in the European market for its industrial exports). The EU has chosen a policy of immediate liberalization (without duties or quotas) for a large number of Algerian agricultural products since the agreement became valid, except for a limited list of sensitive categories where quotas are established. Algeria must respond with significant tariff reductions on agricultural exports from the EU. Substantial tariff reductions have been agreed upon by both parties for manufactured agricultural products and fish products.
Algeria has benefitted from the customs exemption agreements, but these benefits have remained very limited due to several long-term obstacles of a political and legal nature. The Association Agreement lays a significant foundation for economic liberalization in Algeria. It obliges Algeria to enact what in Algerian legal scholarship could be termed modern legislation regarding competition and intellectual property protection to make it compatible with European standards.Footnote 19 The internationalization and the diffusion of exchanges under pressure from the European and international community have also led to the unification of the rules of international trade, whether in the form of general conditions, model contracts, or international agreements, and the adoption of alternative dispute resolution methods, such as international trade arbitration to resolve international trade disputes.
The Association Agreement covers more than just trade and the economy. It establishes new institutional structures to intensify ‘political dialogue’ across a wide range of areas, from education and culture to combating crime, money laundering, drugs, and terrorism. Both states are committed to upholding human rights and democratic principles. This initiative coincides with the development of an ambitious new programme for economic cooperation between Algeria and the EU with the view to help the Algerian economy adapt to the global market. Assistance will be provided to implement the Association Agreement in areas such as updating customs and tax administrations, supporting standards and technical regulation bodies, and enhancing the statistical system.
From a legal perspective, association agreements represent a regulatory and methodological shift compared to previous models, because their reach depends on the economic development of Mediterranean countries and the depth or intensity of the political, social, and economic relationships they share with the EU, which explains the commitment to negotiate between the ‘Partnership Council’ and the government of the concerned state within the framework of an annual meeting.
It must be emphasized that the EU is adopting an ‘assistance approach’. Through this approach, it seeks to ensure the sustainability of contractual relations and enhance them in local affairs across various sectors, thereby reinforcing the European presence and influence in Maghreb countries, including Algeria.
The Association Agreement employs the principle of political conditionality, similar to what is found in international institutions such as the World Bank and the International Monetary Fund, and relies on the preparation of structural reform programmes.Footnote 20 For instance, the absence of good governance was noted to have an impact on poverty, developmental setbacks, and social conditions.Footnote 21 Consequently, the agreement made the provision of loans and aid conditional on the establishment of the principles of good governance. Further, as reflected in Article 2 of the Association Agreement, the EU’s approach to external relations with African countries is characterized by yet another form of conditionality, whereby it purports to condition all of its provisions on the respect for human rights and democracy, under the threat of suspending or terminating the partnership or ending support.
12.4.3 The European Neighbourhood Policy.
Both Algeria and Libya approached the European Neighbourhood Policy with considerable hesitation. From Libya’s perspective, the ongoing problems of its ‘political dialogue’ with European countries have dominated bilateral relations for years, primarily due to its exclusion from the Barcelona Process of 1995. Unlike agreements reached in the past with other Mediterranean Arab countries (Tunisia, Morocco, Egypt, and Algeria), Libya has secured concessions from the Europeans with a lower political conditionality threshold. The EU turned a blind eye to the demand for political reforms in Libya, including commitments to ensure pluralism, freedom of the press, and judicial independence.
Moreover, France’s rush to strengthen ties with what the former president, Nicolas Sarkozy, termed the ‘Gateway to Africa’, and its preparation for building a nuclear reactor in Libya at that time, led to Libyan scepticism about the true European objectives regarding Libya and Algeria. The uncertainties surrounding European goals created an imbalance among Mediterranean counterparts.Footnote 22
When the EU Commission first introduced its ‘Neighbourhood Policy’, it was presented as a fresh framework for relations with countries not involved in integration into the EU. Although it stemmed from the Barcelona Process, this ‘new’ policy was sold as ‘Building Peace in the Neighbourhood’. For the countries of the southern Mediterranean, the partnership was described as being based on a mutual commitment to common values (democracy, human rights, rule of law, good governance, principles of the market economy, and sustainable development). Hence, the European Neighbourhood Policy went beyond existing relations to provide a deeper political relationship and economic integration.
The European Neighbourhood Policy is considered one of the most problematic policies, especially as it is based on a specific form of bilateral relations, namely ‘the European Union – partner country’. It is distant from regionalism or localism and keeps the door firmly closed on any possibility of accession to the EU. It favours the interests of the European countries over those of their partners and promotes some partner countries over others.Footnote 23
What first catches the attention is the diversity of forms of legal and non-legal instruments associated with the Neighbourhood Policy. There are initiatives such as ‘Expanded Europe’ and the ‘Geographical Neighbourhood Policy’, which were adopted in 2003. This was followed by the issuance of the Europe and Neighbourhood Policy document in May 2004, along with the strategic paper that determined this policy. It was then reinforced with action plans in December of 2004, culminating in the European Neighbourhood and Partnership Instruments,Footnote 24 a financial instrument considered a simplified political tool compared to the preceding MEDA or TACIS instruments.Footnote 25
12.4.4 The Union for the Mediterranean: From a French Initiative to a European Project.
The development of the Mediterranean Project for Contemporary Partnership is the crystallization of a French strategy that has existed since the seventies. It materialized as a political agreement with economic, social, cultural, and security content, laying the groundwork for the establishment of a new regional organizational structure. It began with a partnership, evolved into a Neighbourhood Policy, and ultimately took its final form as the Union for the Mediterranean in 2008.
In 2007, the then French presidential candidate Nicolas Sarkozy announced that the French recognized the importance of the common heritage between Europe and the Mediterranean region. He expressed regret that France and Europe had turned their backs on the Mediterranean. The idea was to build institutions with various missions and powers in order to reorganize selective migration, meet environmental challenges, develop education, as well as invest in renewable and nuclear energy. Gradually, in response to the EU’s call, the emphasis moved from an initiative based solely on French interests to a broader European proposal.
However, making this idea European rather than French is neither simple nor superficial, as the project was built on a very solid French foundation. One of its most important pillars was the Avicenne Report from 2007, which formulated French interests in the form of projects for developmental, security, and political reforms. This approach was meant to guarantee the effective implementation of policy, which differed from what was considered the disappointment of the Barcelona path. Additionally, a report from the French National Assembly laid the groundwork for how to build on existing institutions and how to involve the EU in the Mediterranean Union.Footnote 26 This report emphasized respecting the gains of Barcelona, while confirming that belonging to the Mediterranean Union is not a substitute for joining the EU. In December 2007, this stance was supported by the ‘Call from Rome for the Mediterranean’, a French, Italian, and Spanish political initiative.
The proposal was not presented to Algeria, perhaps with the aim of excluding any link between the interests of the French project and its former colony. Instead, Algeria demonstrated its position by joining what at that point was named the ‘Union for the Mediterranean’, in order to avoid being marginalized in the region.Footnote 27
All of this is aimed at elevating the political level of relations with Europe. The noticeable expansion of partnership areas characterized the new direction, now including political and security dialogue, urban development, water, energy, tourism, justice and law, women’s issues, civil society cooperation, migration, health, intercultural dialogue, industry, statistics, and more. However, over the first two years, amid many internal problems for countries (financial crises) and security setbacks in the Middle East, among other issues, the achievements were limited. These achievements focused on specific sectors, such as funds dedicated to alternative energy projects, civil protection, higher education and scientific research, and justice.Footnote 28
In this project, Algeria has proven to be an indispensable partner. There are, however, several challenges, such as the absence of clear positive indicators regarding the achievements and future goals of the partnership. In an era where China is emerging as a global power challenging the West it appears crucial that Europe reconsider its relations with former colonies. Pursuing independence and isolation poses a risk to the global influence of the EU.
For a long time, the EU has relied on specific policies tailored to the nature of its relationships with colonies in various regions worldwide.Footnote 29 However, these policies are primarily built upon a common factor: trade and aid connections. Nevertheless, in the face of new global transformations and the emergence of new international actors, the unified European entity that is the EU has struggled to maintain its position. The challenge for the Union is no longer merely that of sustaining existing relationships with former colonies but rather taking a leadership role and asserting global influence.
12.4.5 Evaluating the Partnership.
The slow pace of reforms and protectionist policies on both sides are the main factors hindering the partnership. The Mediterranean perspective, often non-European, considers development and reforms as projects, and projects require a significant amount of time. Regarding customs duties, Algeria is among the first group of South Mediterranean countries experiencing a very high rate, ranging between 18 per cent and 30 per cent. While the customs dismantling process varies by country, the region as a whole relies on reducing customs tariffs on imports and maintaining them for consumer goods. This protectionist policy, considered an advantage for developing countries, is not necessarily favoured by the EU. The EU, in turn, sought self-protection through other means such as data protection laws, designation of sensitive sectors, standardization, anti-dumping laws, and so forth.
On the other hand, regional integration failures and a lack of investment attraction contributed to undermining the role that the EU was expected to play in the region. For instance, the EU’s share as the primary source of foreign investment had already fallen to less than 50 per cent in 2002. Instead, the EU became not just an economic actor and partner but a player addressing security, stability, and prosperity challenges.
The Joint Assessment Document of the Partnership Agreement for the year 2017 stated that the trade budget’s imbalance and the significant deficit have imposed a new commitment on the EU to build an effective ‘win-win’ partnership. That was following the failure of many precedent joint meetings, in addition to the report of the French Senate (2016–2017), which described this kind of agreement as simply a means to secure short-term political and diplomatic interests.Footnote 30
The evaluation also revealed obstacles that hindered the partnership from progressing as envisioned by its founders. The most significant impediments included the absence of any role for non-governmental organizations and the high indebtedness of South Mediterranean countries due to the policies pursued by donor countries through international financial institutions such as the World Trade Organization (WTO). The donor countries seemed to be using the economic situations of the South Mediterranean countries as collateral. Pressure from the WTO resulted in the EU’s practice of using political conditionality with a focus on security. There was also a tightening of selective migration programmes due to insufficient management mechanisms, amidst the disparity between a series of joint agreements and treaties and the increasing contradictions in migration legislation. Moreover, the demographic decline in EU countries, and the resulting encouragement of skilled migration, further complicated the situation. All these factors hindered the securing of a sustainable partnership.
The problems of terrorism and cross-border crime, the growing tide of illegal migration, and the crisis of refugees and minorities on both shores of the Mediterranean are among the most important factors shaping European ‘partnerships’. For example, in the field of migration and border entry regulation, we see a difference between the 1960s when Mediterranean governments encouraged the migration of their citizens to Europe, and the 1970s and 1980s when they shifted towards discouraging migration and reclaiming skilled workers. Finally, in the 2000s, we witnessed an increase in the number of laws aimed at regulating migration from within, by, to give one example, rejecting or accepting dual nationality. The Algerian government, for example, initially rejected dual nationality but later recognized it through an amendment to the nationality law. Other issues include the matter of family reunification, or the right of foreigners to benefit from social security and social grants for students, all of which result from the varying views of European countries (such as France, Germany, and Spain) on the Mediterranean migrants. Some see them as a factor to ensure the vitality of the European economy, while others do not.
12.5 Conclusion
The Rome Treaty of 1957 was a pivotal moment in the establishment of the EU. Despite its primary goal being the creation of a common market, its historical connection to former colonies influenced the structure, approach, and system of the Union itself. During the post-Second World War decolonization period, the treaty impacted relations between European countries and their former colonies. Once the economic integration was completed, and once former colonies had gained independence, Europe shifted towards enforcing cooperation, leading to ongoing economic and political interactions in the development of a highly dynamic regional system. It cannot be denied that the EU has indissoluble historical ties, interests, and political considerations that bind it to Algeria.
It would appear that the EU’s overall approach to Algeria does not change whether Algeria is part of the EEC, by an extension of the integration project outside the continent, or whether the EU is assuming the role of influencer in Euro–Maghreb, Euro–Mediterranean, and Euro–Arab relations, or whether the EU acts strategically to secure its interests in the framework of projects like the Barcelona Process, the European Neighbourhood Policy, and the Association Agreement.
Different generations of agreements have embodied the Europeans’ perspective towards non-Europeans. The transition of purely economic agreements to agreements with a variety of social, political, security, and cultural aspects means that internal and external dynamics have played a significant role in shaping and redirecting the EU’s policy towards Algeria and its neighbours. These transformations indicate the level of adaptation of the relationship between the EU and Algeria.
The early phase of Algeria’s independence provided an opportunity to acknowledge the dynamic expansive movement of European borders. The Member States of the EU, however, needed to instil confidence in regional integration. Once achieved, the sole guiding principles from within towards those outside its borders became those that impact and shape not only the internal structure of the Union but also its common foreign policy centred on security, defence, migration, and development. Algeria did not completely detach from interacting in these policy areas as they remain fundamental for its own internal affairs. And since independence ended the colonial era, Euro–Algerian relations have shifted to a new form of partnership, which is not best described as cooperation. This new paradigm of partnership replaced the initial integration that characterized Algeria’s relationship with Europe.
It is true that France initially compelled Europe to accept Algeria within the framework of regional integration. France also sought, in one way or another, to ensure the continued importance and permanence of Algeria’s role within the EU for many years solely to achieve its own political and economic objectives. Nevertheless, one should not deny the European will to engage with Algeria in a mutually beneficial manner, based on common interests. Issues such as migration, border control, security, and the project of the Union for the Mediterranean are components of such a connection with Algeria.
13.1 Introduction
The relationship and colonial ties between Greenland and the European Union (EU) Member State Denmark contain elements that are hardly ever told. The history of this relationship has led to a rather volatile set-up with possible implications for the EU’s contemporary interests in the Arctic. Therefore, it is of importance to bring to the fore the long-standing histories that connect the Arctic and Europe, as those histories may help us understand the challenges of today, not least because of the EU’s new Arctic policies. Severe – yet often overlooked – democratic flaws, connected to three significant events in the past century, will be highlighted and analysed in this chapter. The first of these events is related to the decisions made in 1952 leading to the formal decolonization of Greenland through its integration into the Kingdom of Denmark; the second is related to Denmark’s accession in 1973 to the European Community (EC); and the third is related to Greenland’s withdrawal therefrom in 1986.
The aim of this chapter is to shed further light on what will be referred to as Eurarctic, while being primarily limited to a focus on the colonial history of Greenland as well as present EU–Greenland relations. The overall approach is fundamentally legal in spirit, although it is combined with an interdisciplinary touch to enhance appropriate contextual understandings. Also of significance is the fact that the history of the Nordic/Arctic countries to which the history of Greenland is anchored, is long, complex, and at times controversial. For this reason, the intention of this chapter is to rather modestly take a bird’s-eye view and focus on some of the most significant moments.
The chapter will firstly introduce the EU’s Arctic policy, as it has recently been stated, as well as the term Eurarctic and the importance of Greenland in that context (Section 13.2). It will then analyse the colonial history of Greenland (Section 13.3), which is then followed by an analysis of the links between the EU and Greenland with a specific focus on how Greenland went from being a Member State through Denmark to becoming an associated overseas country and territory (OCT) and the implications thereof (Section 13.4). The final section draws some overall conclusions about the key issues examined in the chapter (Section 13.5).
13.2 Eurarctic
In 2021, with the following few, yet rather noteworthy, words, the EU introduced its new Arctic policy:
The European Union (EU) is in the Arctic. As a geopolitical power, the EU has strategic and day-to-day interests, both in the European Arctic and the broader Arctic region. The EU also has a fundamental interest in supporting multilateral cooperation in the Arctic and in working to ensure that it remains safe, stable, sustainable, peaceful and prosperous. Being a major economic player, it shares the responsibility for global sustainable development, including in the Arctic regions, and for the livelihood of inhabitants, including Indigenous Peoples. The EU exerts a significant impact on the Arctic through its environmental footprint and demand for resources and products originating there.Footnote 1
At the same time, the EU committed itself to ‘increased engagement in and around the Arctic region, in response to the geopolitical, environmental, economic, security and social challenges they face, and to working with others to manage new opportunities there’.Footnote 2 Most recently, the president of the European Commission Ursula von der Leyen visited both the Faroe Islands and Greenland, in the latter case to inaugurate the EU Office in Nuuk with the aim of ensuring Europe’s physical presence in Greenland and in the wider Arctic region.Footnote 3 At the same time, President von der Leyen has signed agreements (together with Greenlandic prime minister, Múte Bourup Egede, and Danish prime minister, Mette Frederiksen) in relation to the EU–Greenland partnership totalling almost 94 million euros under the EU Global Gateway investment plan: 71.25 million euros for education and skills and 22.5 million euros for green growth, including renewable energy, critical raw materials, and biodiversity conservation.Footnote 4
The EU’s recently intensified engagement in Arctic matters could suggest associations with another project, namely Eurafrica. The relationship between Eurafrica and European integration has been analysed in detail in a remarkably insightful book by Hansen and Jonsson.Footnote 5 Eurafrica, as Hansen and Jonsson set out, was a particular intellectual and political project, conceived and articulated in the interwar period.Footnote 6 It saw Europe’s very survival as dependent upon its ability to appropriate land and extract labour and resources from the African continent.Footnote 7
Inspired by Hansen and Jonsson, the term Eurarctic is used here rather than the term European Arctic, which is used in the Joint Communication. This is done to embrace the possible colonial undertones connected with the EU’s engagements in the Arctic area. These may be seen as in themselves constituting a new wave of neocolonialism or neo-imperial ambition in the sense of exportation of a large part of the EU’s norms, values, and standards to the rest of the world – as demonstrated above so clearly including the Arctic area – and under all circumstances as being shaped by older, more traditional versions of colonialism. Indeed, the Arctic area, in parallel with Africa, has had a history heavily influenced by colonialism. In contrast to Africa, the Arctic area has only fairly recently truly become the centre of attention of strong and conflicting political forces.
Beyond any doubt, the Arctic area, although previously largely ignored by the big political players, has become extremely important for multiple reasons, including in particular climate change and support for sustainable development, security interests, and possible access to natural resources. Thus, it is both understandable and reasonable that the EU wishes to boost its presence. One may wonder, however, how the EU can justify its ‘claim’ to its presence and commitments. In that regard, it is on the one hand explained in the Joint Communication that the eight Arctic States – namely Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States – themselves have the primary responsibility for tackling challenges and opportunities within their territories. On the other hand, it is stated that many challenges extend beyond national borders and the region’s boundaries and therefore can be more effectively addressed through regional or multilateral cooperation.Footnote 8 Thus, the communication states that the EU sees its own role as legislator for part of Eurarctic as something that needs to be taken into account.Footnote 9
Among the eight Arctic States, which are listed in the before-mentioned Joint Communication, only three are Member States of the EU; namely the Kingdom of Denmark, Finland, and Sweden.Footnote 10 Although Sweden, in principle, is also a kingdom, only Denmark is designated as such in the Joint Communication. The reasoning behind this choice is likely that the Kingdom of Denmark includes three entities, namely Denmark, the Faroe Islands, and Greenland. In the Joint Communication, this is touched upon to some degree in the following manner:
The EU has important ties with Greenland and the Faroe Islands. Both are part of the Kingdom of Denmark, and both are seeking closer relations with the EU. In order to further consolidate and enhance the longstanding cooperation between the European Commission and Greenland, the European Commission will establish an office to be located in Nuuk. This office will manage EU support to Greenland as well as facilitating further strengthening and deepening of the partnership between the European Commission and the Government of Greenland, including through cooperation and dialogue in areas of common interest, in close cooperation with the Special Envoy for Arctic Matters.
Evidently, the EU’s ‘claim’ to and interest in the Eurarctic is mainly directed towards Greenland. The Swedish and Finnish importance in the Arctic area currently appears to be considered as rather vague in comparison with Greenland.Footnote 11 Similarly, the Faroe Islands are often not considered, and it is at times contested whether these are truly situated in the Arctic area.
In this context, it is highly intriguing that Denmark has the status of a Member State of the EU, while the two autonomous entities of the realm of Denmark, namely Greenland and the Faroe Islands, have the status of an OCT and a third country, respectively. Unlike the Faroe Islands, Greenland has consistently and formally been considered a former colony of Denmark and has had relations with the EU since 1973. With that background, the EU’s ‘claim’ to the Arctic, albeit limited to Greenland for the reasons indicated above, will be analysed.
13.3 The Colonial History of Greenland and Denmark
Geographically, Greenland is considered part of North America.Footnote 12 Yet, in most other respects its closest relations are with Denmark and therefore Europe. In what follows, the manner in which this relationship with Denmark originally came about is explained chronologically and by focusing mainly on aspects of colonization.Footnote 13 In that regard, it should be kept in mind that words like ‘colonies’ and ‘colonization’ today are viewed as unambiguously negatively charged words.Footnote 14 At the same time, historical events may be interpreted differently. Here, the classifications launched by the Greenlandic Constitutional Commission in a report from 2023, in which a Constitution for Greenland is proposed, are taken as the point of departure for the analysis, even though others might have viewed and presented the evolution differently.Footnote 15 On this basis, the following six different phases of development are presented: (1) ‘initial colonization’ (1721–1782); (2) ‘parasitic colonialism’ (1782–1830s) and ‘classic colonialism’ (1830s–1908); (3) ‘intensive colonialism’ (1908–1953); (4) ‘hidden colonialism’ (1953–1979); (5) ‘early decolonization’ (1979–2009); and (6) ‘matured decolonization’ (2009–).
13.3.1 ‘Initial Colonization’ (1721–1782).
It is generally considered that the first Inuits came to Greenland about 4,500 years ago, but eventually vanished. Later on, sometime between the twelfth and fourteenth century, another group of people – the Thule people – arrived, replacing the very first group of Inuits. The Inuits of today are considered as descending from this later group.
The Norse, as the first non-Inuits, are believed to have first arrived in the tenth century, constituting the first time in history that Europeans had settled in Greenland. More exactly, approximately 450 years of Norse presence started with Erik the Red’s ‘landnam’ in 985.Footnote 16 The settlement was at first organized as a free state based on a similar Icelandic model.Footnote 17 In 1261, the Norse farmers chose to join Norway, which in the following century became part of Denmark-Norway with the confirmation of the Kalmar Union in 1397.Footnote 18 From these Norse inhabitants, however, no news or signs of life had been received since 1408.Footnote 19 Thus, in principle, only Inuits inhabited Greenland as such. However, in the sixteenth and seventeenth centuries, Europeans returned, although not on a permanent basis. These would, for example, include the English, the Dutch, and even the Basques due to whaling and trade interests.Footnote 20
With the increased level of international and economic interests in Greenland, it eventually – and apparently without regard to the presence of indigenous peoples – became an international issue whether Greenland was Danish-Norwegian or ‘no man’s land’.Footnote 21 In Danish literature, Greenland has been seen as belonging to the Danish Crown originally under the Kalmar Union since the fourteenth century. However, it was considered first ‘properly’ colonized by Denmark in 1721, when the Danish-Norwegian priest Egede arrived.Footnote 22 Egede is thereby widely narrated as having turned Greenland into a Danish colony. At the same time, he has been considered to have proselytized Christianity among the indigenous Greenlandic population.Footnote 23 Thus, in the above-mentioned report from the Greenlandic Constitutional Commission, which distinguishes between six different constitutional phases, this first constitutional phase is called ‘initial colonization’, and is seen as beginning in 1721 and lasting until 1782.Footnote 24
This phase was influenced by uncertainties, experiments, and improvisations.Footnote 25 An essential element of the colonization took place with the help of trading companies that were granted state monopolies.Footnote 26 Land was controlled through the establishment of colonies, that is small colonial towns, as the seat of the institutions of colonization.Footnote 27 These colonies functioned as local centres under the leadership of merchants and missionaries responsible to the trading company and the missionary college respectively, but without a Greenlandic central government.Footnote 28 Consequently, this was not colonization by European settlers, but rather a colonization managed by posted Europeans in fixed-term employment and financed by the Greenlandic population as producers of the goods.Footnote 29
13.3.2 ‘Parasitic Colonialism’ (1782–1830S) and ‘Classic Colonialism’ (1830S–1908).
The second constitutional phase – among those presented by the Greenlandic Constitutional Commission – is seen as consisting of two periods. The first period is characterized by the Greenlandic Constitutional Commission as ‘parasitic colonialism’.Footnote 30 The period is seen as beginning on 19 April 1782 with the signing of so-called instructions (in Danish ‘Instrux’) in Copenhagen, which bear a title that may be translated as: Instructions according to which the merchants or those who either manage the trade or manage the whaling facilities in Greenland in particular, as well as all those who are at the bottom of the trade in general.Footnote 31 The instructions prescribe a form of minimal interaction and a formal separation between the Europeans and the local Inuits. Although not explained, by naming the period ‘parasitic colonialism’, it may be assumed that the Commission considers it as characterized by a parasitic relationship of mainly economic exploitation.Footnote 32 These principles of separation between the population groups were in practice valid for around fifty years.Footnote 33
At the end of the first period of this second constitutional phase, the Peace Treaty of Kiel was signed (in 1814), and Greenland, together with Iceland and the Faroe Islands, became purely a Danish area of responsibility.Footnote 34 Until then, Greenland, Iceland, and the Faroe Islands had been a Danish-Norwegian joint matter.Footnote 35 With the treaty, the Danish-Norwegian Union, which had existed since 1380, was dissolved, and mainland Norway went to Sweden, in principle as compensation for Finland, which Russia had taken in 1809.Footnote 36
In the report of the Greenlandic Constitutional Commission the second period of this second constitutional phase is referred to as ‘classic colonialism’ and is considered as beginning in the 1830s and ending in 1908.Footnote 37 It is explained that at the beginning of the 1830s, some major changes occurred in the Danish understanding of its presence in Greenland.Footnote 38 This led to the colonial government moving away from the principle of separation.Footnote 39 Among other things, it included involvement of the local Inuit population to a greater extent than before as well as initiating a more targeted assimilation strategy.Footnote 40 Furthermore, the school system was expanded.Footnote 41
When the first Danish Constitution (in Danish ‘Grundloven’) was adopted in 1849, Greenland kept its status as a colony, and was therefore not explicitly a separate part of the constitution.Footnote 42 The Faroe Islands (and Iceland), in contrast, had explicitly been part of the constitution and had never formally had the status of a colony.Footnote 43 Previously, in 1816, the Faroe Islands had been given the status of a region/county (in Danish an ‘amt’).Footnote 44
To these developments it may be added that from 1782 until the end of the 1850s, the only formal state organization consisted of two inspectorates (in Danish ‘inspektorater’), one for South Greenland and one for North Greenland.Footnote 45 Moreover, in the years 1857–1861, small steps towards establishing democratic political institutions were taken as local boards of trustees were established at the individual colonies.Footnote 46 However, only self-supporting local whalers (in Danish ‘fangere’) had the right to vote.Footnote 47
13.3.3 ‘Intensive Colonialism’ (1908–1953).
The third constitutional phase is referred to as ‘intensive colonialism’ and is considered to have lasted from 1908 to 1953.Footnote 48 Since the ‘instructions’ of 1782, it was not until 1908 that a new basic legal framework was adopted in Denmark for how the Danish state should act in Greenland.Footnote 49 This was entitled: ‘Act on the Administration of the Colonies in Greenland etc.’.Footnote 50
In 1911, the above-mentioned local boards of trustees were replaced by two regional councils, namely South Greenland’s Council (in Danish ‘Sydgrønlands Landsråd’) and North Greenland’s Council (in Danish ‘Nordgrønlands Landsråd’), which were located in Nuuk (formerly in Danish ‘Godthaab’) and Qeqertarsuaq (formerly in Danish ‘Godhavn’) respectively.Footnote 51 On the economic level, the colonial administration initiated an economic transformation by intensifying fishing and initiating an industrial fishing industry.Footnote 52
In 1905, Norway increasingly claimed parts of Greenland, and in 1931 it occupied Eastern Greenland.Footnote 53 This violation of Danish sovereignty was brought by Denmark before the Permanent Court of International Justice in The Hague, which in 1933 confirmed Denmark’s sovereignty over all of Greenland.Footnote 54 During the German occupation of Denmark in 1940, Greenland remained under Danish rule despite many challenges.Footnote 55 In contrast, in 1944, in the middle of the Second World War, Iceland declared its independence from Denmark and proclaimed the Republic of Iceland.Footnote 56
13.3.4 ‘Hidden Colonialism’ (1953–1979).
Soon after the Second World War came to an end, for colonial powers the world entirely changed. During that period, and after the United Nations (UN) was established in 1945, it became clear that new winds were blowing with regard to the European countries’ colonial arrangements, which were seen as more and more unacceptable.Footnote 57 For obvious reasons, these developments, among others, also had an impact on Denmark–Greenland relations.
On the basis of decisions made in 1952, Greenland was formally decolonized in 1953 by integration into the Kingdom of Denmark.Footnote 58 In contrast to most other decolonizations, an integration with the metropole – rather than independence therefrom – took place.Footnote 59 The chosen ‘solution’ was thus only one among several possible solutions, and the road thereto was not without obstacles.Footnote 60 Most importantly, a constitutional right for Greenlandic self-determination, although suggested at some stage in the process, was not inserted.Footnote 61
Greenland’s status then became, along with the Faroe Islands, what in Danish constitutional theory is commonly viewed as part of ‘Rigsfællesskabet’, which might be translated as the ‘community of the realm’ or ‘the commonwealth of the Danish State’.Footnote 62 Against that background, Paragraph 1 of the Danish Constitution was (with effect from 1953) amended to read: ‘This Constitutional Act shall apply to all parts of the Kingdom of Denmark.’ None of the previous constitutional acts had contained any equivalent provision regarding the geographical extent of the constitution.Footnote 63 The provision is commonly understood as implying that the constitutional Act applies to all three ‘members’ or ‘entities’ of the realm, in other words Denmark, the Faroe Islands, and Greenland. Formally, Greenland and the Greenlandic population were now an equal part of the Kingdom of Denmark.Footnote 64 Importantly, in 1953 Greenland was allocated two members in the Danish Parliament. Moreover, Denmark intensified its financial investments in Greenland.Footnote 65
In the Greenlandic Constitutional Commission’s report, this fourth constitutional phase is described as a phase of ‘hidden colonialism’, as large parts of the colonial structure and logic are seen to have continued unaltered.Footnote 66 The commission also highlights that the real decision-making authority for the overall framework for the control of Greenland remained with the Danish authorities in Copenhagen, and that examples of discrimination, at times severe, between Danes and Greenlanders could still be found.Footnote 67
Significantly, it is highlighted in the report that the Greenlandic population did not have the right to vote in the referendum on the new Danish Constitution, and that the incorporation process generally was characterized by major democratic shortcomings.Footnote 68 In that regard, Alfredsson explains that:
The concrete proposals for integration were worked out by a special Constitutional Commission in the summer of 1952, submitted to the Greenlandic Provincial Council in August and decided upon by this Council in September of that same year, i.e. within a month of receiving the proposed text. The Constitutional Commission was composed of Danes only, the expertise was Danish and, to the best of my knowledge, Greenlandic authorities had no expert advice on the implications, f. ex. the finality, of the enactment of the proposals. It also appears that the initiative for integration was Danish. In an essay (Grønlandssagen i FN 1946–54, Odense Universitetsforlag 1975) by historian Finn Petersen, who had access to public and private archives concerning the case, it was disclosed that suggestions to this effect were made by Danish officials as early as the late forties for the very purpose of avoiding unfortunate UN influence.Footnote 69
The Danish author Lidegaard explains in his book about Greenland’s history that delegates in the UN queried why the Greenlandic people had not been asked through a referendum.Footnote 70 According to Lidegaard, the Danish delegates could not come up with an explanation.Footnote 71 He further states that he cannot explain it himself either, because the result thereof would in his opinion undoubtedly have been in the positive, not preventing the decision-makers from going in that direction.Footnote 72 He then suggests that one explanation may be that a referendum seemed superfluous, as it all appeared straightforward, supported by the fact that the Greenlandic council (‘landsråd’) – as the above-mentioned two councils were merged into one around 1950 – had been involved in the process leading up to the referendum in Denmark itself.Footnote 73 However, other explanations may also be considered, for example perceived hindrances due to interpretations of the Danish Constitution; that Greenlandic representatives to some degree had been involved in the process beforehand;Footnote 74 or a lack of sincere respect for the importance of taking into consideration the opinions of Greenlanders.
The lack of a referendum in Greenland was in fact not only questioned, but also criticized during the negotiations in the UN, but at the end of the day the criticism had no effect.Footnote 75 Thus, the UN ended up acknowledging the requested change of status by adopting a resolution on 9 September 1954 in which Denmark was removed from the list of colonial powers.Footnote 76
13.3.5 ‘Early Decolonization’ (1979–2009).
Despite the above steps, it is not until the fifth constitutional phase that the Greenlandic Constitutional Commission refers in its report to ‘early decolonization’ as such, as a ‘home rule’ (in Danish ‘hjemmestyre’) construction for Greenland became a reality in 1979.Footnote 77 Beforehand, there had been a referendum in Greenland, where a majority voted in favour of the introduction of home rule.Footnote 78 In Danish, the term ‘home rule’ is applied as an equivalent to ‘self-governance’ (to some degree).Footnote 79
On 1 January 1980 Greenland’s home rule began to take over administrative tasks from the Danish state.Footnote 80 The arrangement may originally have been considered as conferring a limited autonomy in certain administrative matters within the realm, and as drawing its inspiration from the arrangement already established for the Faroe Islands.Footnote 81 More precisely, as summed up by Weiss, home rule established limited decentralization by the transfer of certain legislative and executive powers and concomitant financial responsibility in a number of specifically listed areas to Greenlandic authorities. However, matters such as foreign relations, the constitution, defence, and the court system remained the responsibility of the Danish government.Footnote 82 The home rule administration was essentially responsible for the development of Greenland’s society and had legislative powers concerning areas such as fishing, hunting, labour market affairs, social affairs, education and culture, health services, environmental protection, and municipal structures.Footnote 83 In April 1979, the new ‘Landsting’, which is the Danish name for Greenland’s regional Parliament, was elected on the basis of these new rules.Footnote 84
13.3.6 ‘Matured Decolonization’ (2009–).
The final constitutional phase, so far, is termed ‘matured decolonization’ in the report by the Greenlandic Constitutional Commission.Footnote 85 This phase is seen as beginning on 21 June 2009, where instead of the home rule arrangement, a new arrangement, now termed ‘self-rule’, entered into force.Footnote 86 In a prior referendum, a 75 per cent majority of the population had confirmed acceptance of this model in a vote on an enhanced version of home rule.Footnote 87 The background to the Danish Parliament’s passing of the Act on Greenland’s Self-Governance is stated in its preamble to be a recognition that the people of Greenland are a people pursuant to international law with the right of self-determination, where the Act is based on a wish to foster equality and mutual respect in the partnership between Denmark and Greenland.
Pursuant to Paragraph 1 of the Act on Greenland’s Self-Governance, the Greenlandic self-government authorities shall exercise legislative and executive power in the fields of responsibility taken over. In addition, the Act includes provisions regarding, for example, the economic relations between the Greenlandic self-government and the Danish government, provisions as to foreign relations, and cooperation between the Greenlandic self-government authorities and the Danish authorities of the realm regarding statutes and administrative orders. Although foreign affairs are formally still the responsibility of Denmark, in practice Greenland’s involvement has gradually increased in that regard.Footnote 88 Also, Greenland’s self-government took over responsibility for Greenland’s underground on 1 January 2010.Footnote 89 Ultimately, it is generally acknowledged that there are limits as to which areas can be transferred to Greenland.Footnote 90 Seemingly, the interpretation of self-government is dynamic.
Importantly, the Act on Greenland’s Self-Governance also stipulates how a decision regarding Greenland’s independence can be taken by the people of Greenland. However, there is a condition requiring the consent of the Danish Parliament.Footnote 91 Some forces, including the Greenlandic Constitutional Commission as demonstrated, envision full independence from Denmark. Thereby a final phase possibly designated as ‘final decolonization’ or ‘full sovereignty’ may be envisaged.Footnote 92
All in all, the colonial history of Greenland and Denmark is long and, from the perspective of today, widely considered not acceptable. Yet, many different narratives exist side-by-side.Footnote 93
13.4 EU–Greenland Relations
As it has been explained above, the Greenlandic population was not invited to vote in the referendum on the new Danish Constitution of 1953, according to which Greenland was formally decolonized by integration with the Kingdom of Denmark. It was also mentioned that the incorporation process has been characterized by other democratic shortcomings.Footnote 94 In relation to EU–Greenland relations, certain democratic shortcomings may similarly be claimed to have been present. In that light, two central events will be examined in what follows: firstly, the original Danish accession to the EC in 1973 with particular focus on Greenland; and, secondly, Greenland’s withdrawal from the EC in 1986.
13.4.1 The Accession in 1973.
In the 1972 Danish referendum on Danish membership of the EC, Greenland was not given the opportunity to have a separate referendum, although this was desired.Footnote 95 Certain initiatives to inform the Greenlandic population about the EC were undertaken.Footnote 96 Resistance in Greenland to EC accession appears to have been substantial as a majority of Greenlanders voted against accession. The votes for Denmark in isolation were 1,954,053 (‘Yes’) and 1,126,097 (‘No’).Footnote 97 The votes for Greenland in isolation were: 4,062 (‘Yes’) and 9,594 (‘No’).Footnote 98 Nevertheless, unlike the Faroe Islands, in 1973, Greenland – which at the time did not have a home rule arrangement – had to accede as an integral part of Denmark due to an interpretation made by the Danish government.Footnote 99 This has been ‘used as a basis for Greenlandic complaints that the island had been forced into the European Community by a majority of Danes’.Footnote 100 The referendum may thus have to be understood in light of having taken place during the so-called fourth constitutional phase, which in the Greenlandic Constitutional Commission report is described as a phase of ‘hidden colonialism’, as large parts of the colonial structure and logic were seen to continue in unaltered terms.Footnote 101
The referendum result has been seen as a catalyst for important subsequent political efforts. Greenlandic politicians and commentators had concluded that the fact that Greenland was subjected to an unwanted foreign policy situation could not simply be ignored and had to have consequences of a political nature.Footnote 102 Accordingly, attention first turned towards the future relationship between Greenland and Denmark as a necessary precondition for steps eventually being taken with regard to the relationship with the EC.Footnote 103
13.4.2 The Withdrawal in 1986 and Inclusion as Oct.
Only a few years after the establishment of the home rule arrangement in 1979 a consultative and non-binding referendum was held in Greenland on 23 February 1982 on whether the EC Treaties should continue to apply in Greenland. The referendum was not concerned with the possibility of a transformation into an OCT status, but simply with the question: ‘Do you want Greenland to remain a part of the European Communities?’Footnote 104 Also, the title of the Greenlandic Act on the referendum itself indicates that it was all about the continued application of the Treaties on the European Communities in Greenland.Footnote 105 It should be noted that an OCT status would signify that at least some elements of the treaties would still be in force in Greenland.
In the referendum 32,391 persons were entitled to vote among whom 12,615 voters (52 per cent of the total poll) voted ‘No’ and 11,180 (46.1 per cent of the poll) voted ‘Yes’ to the referendum’s question.Footnote 106 In other words, a fairly small anti-EC majority emerged. Although the Danish government was in support of Greenland remaining in the EC, it had announced prior to the referendum that it would respect the result.Footnote 107 Following the outcome, the ‘Landsstyre’ requested the Danish government, in which this competence was vested, to initiate the negotiations with the EC.Footnote 108 In other words, Greenland was not entitled to carry through the negotiations on its own. On 19 May 1982, the Danish government, with reference to Article 96 of the European Coal and Steel Community Treaty, Article 236 of the EEC Treaty, and Article 204 of the Euratom Treaty, then submitted its proposal in that regard.Footnote 109
Against this background, the Council of Foreign Ministers of the EU decided at its meeting on 29 November 1983 to negotiate expediently on the terms and conditions for the withdrawal and the transformation to a future association.Footnote 110 The Council reached agreement in February 1984, which was signed in Brussels in March of the same year.Footnote 111 There was a minor delay caused by the fact that the necessary ratification had not been completed in all the Member States before the deadline of 1 January 1985.Footnote 112 Greenland’s exit from the EC eventually took effect on 1 February 1985.
As mentioned above, the foregoing referendum in Greenland was concerned with whether Greenland should remain a part of the EC.Footnote 113 It was not asked whether Greenland should have the status of an OCT.Footnote 114 This may give rise to some surprise, because the possibility of OCT status was on the table beforehand. For instance, in a Statement Issued by the Greenland Government on Greenland’s Future Relationship with the European Community, directed to the EC and dated 2 October 1981, the following was said:
The Government is aware that many people will consider a third-country arrangement like that enjoyed by the Faroes as the most obvious course, but it wishes to confirm its interest in continued links with the European Communities if the referendum turns out in favour of Greenland’s withdrawal. As a result, the Government would like Greenland to be associated with the European Community as an overseas country or territory on the same basis as the EEC’s other overseas countries and territories. The Government would like to point out that many of these overseas countries and territories have an average per capita income similar to Greenland and that these areas’ historical and constitutional ties to a Member State of the European Community are the same as Greenland’s. The Government therefore finds it natural for Greenland to be associated with the European Community on the same conditions as the other overseas countries and territories and hopes that the Governments of the other Member States display the same sympathetic understanding as the Danish Government.Footnote 115
It may give rise to concern that the choice ultimately made was not necessarily in conformity with the theme of the referendum. On the surface, the term OCT refers to territories that are situated outside the EU but that, for historical, social, cultural, and/or political reasons, have a relationship to a Member State of the EU. In fact, the term constitutes an example of coded language for colonialism.Footnote 116 Thus, OCTs are in reality former colonies. OCTs of today are referred to in Annex II to the Treaty on the Functioning of the European Union (TFEU).Footnote 117 They are not sovereign states with an international legal personality and can be viewed as situated in a grey area, as neither Member States nor third countries.Footnote 118
The fact that Greenland was given such status was a product of negotiations.Footnote 119 Thereby, Greenland actually did to some degree remain related to the EC and subject to the applicability of some EC law (including some treaty provisions).Footnote 120 At the same time, a likely implication is that Greenlanders are to be considered Union citizens.Footnote 121 In some contrast, it should be noted that the psychological factor, understood as the Greenlanders not wanting Brussels to take over Copenhagen’s previous ‘psychological’ role after having achieved home rule in 1979, has been taken as among the reasons for Greenland’s leaving.Footnote 122 In combination, this points to an exceptionally paradoxical situation for Greenlanders.
The legal contours of the OCT formula were at the time reshaped to fit the future re-association of Greenland.Footnote 123 Thus, when Greenland in principle withdrew from the EC, a provision was inserted in what is now Article 204 TFEU. Here, it is stated that the provisions regarding the OCTs are applicable in Greenland. Article 198 TFEU highlights the basic purpose of association as being to promote the economic and social development of the countries and territories, and to establish close economic relations between them and the Union as a whole, as well as to serve primarily to further the interests and prosperity of the inhabitants of these countries and territories to lead them to the economic, social, and cultural development to which they aspire. Attention should also be given to Article 200 TFEU, which stipulates that customs duties on imports into the Member States of goods originating in the OCTs shall be prohibited in conformity with the prohibition of customs duties between Member States, and that customs duties on imports into each OCT from Member States or from the other OCTs shall be prohibited in accordance with the provisions of Article 30 TFEU.
Council Decision on the Overseas Association, including Greenland, is also of significance.Footnote 124 The essence of the interrelationship is stipulated in its preamble in the following manner:
The TFEU and the secondary legislation adopted on the basis of it do not automatically apply to the OCTs, with the exception of a number of provisions which explicitly provide for their application. Although not third countries, the OCTs do not form part of the single market and must nevertheless comply with the obligations imposed on third countries in respect of trade, particularly rules of origin, health and plant health standards and safeguard measures.
This means that with respect to trade, OCTs must meet, for example, the obligations laid down in relations with third countries, in particular with regard to rules of origin, unless provision is made to the contrary. The decision contains several provisions that have the consequence that Greenland (and other OCTs), in many respects, is in a more privileged position than third countries and in several areas even equates to Member States.Footnote 125 Accordingly, pursuant to Article 44 of the decision, products originating in Greenland (and other OCTs) shall be imported into the Union free of import duty, and the Member States shall, according to Article 45 of the Decision, not apply to imports of products originating in Greenland any quantitative restrictions or measures having equivalent effect. Also, pursuant to Article 47 of the Decision, the Union shall not discriminate between OCTs and the OCTs shall not discriminate between Member States. As an OCT, Greenland therefore has direct access to the internal market without import restrictions; and, at the same time, the OCTs are not prevented from maintaining or introducing customs or quantitative restrictions on imports of products originating in the Union within the meaning of Article 45 of the Decision.Footnote 126
In the above-mentioned new Arctic policy of the EU, there is a fairly brief reference to the OCT status of Greenland.Footnote 127 In particular, it is explained that under the Overseas Association Decision, Greenland has a wide-ranging political and policy dialogue with the EU, preferential trade arrangements to access the EU market, and is one of the largest OCT recipients of EU support per capita (225 million euros foreseen between 2021 and 2027).Footnote 128
13.5 Conclusions
This chapter has been concerned with showing how the present increase of the EU’s interest in the Arctic area is to some degree justified due to its ties with Greenland through the Member State Denmark. The ties between Denmark and Greenland, however, are built on a heavy heritage of colonialism. Thereby, Danish colonialism is at the core of the EU’s ‘passage’ to the Arctic. The ties in question may thus be considered as rather volatile, and the entire set-up may thereby harbour a looming backlash.
As to the heritage of colonialism, Greenland’s relationship with Denmark has by now been very long, although this relationship has at times also been challenged by other countries. It has, however, in the most recent decades been one moving towards greater independence, and as a clear manifestation thereof a home rule arrangement was established in Greenland in 1979. Replacing this home rule arrangement, a self-rule arrangement entered into force in 2009. There are now strong forces working to achieve full sovereignty, most recently culminating with the launch of the proposal for a Greenlandic Constitution.Footnote 129
Related thereto, the existence of democratic shortcomings in connection with significant referenda (or omission thereof) in the past century should be highlighted. Some of these democratic shortcomings in relation to Greenland are connected to the EU. As explained earlier, besides the flaws related to the decolonization of Greenland in 1953, there are flaws related to the EU accession in 1973 and subsequently to the withdrawal in 1985. Most significantly, the Greenlandic population did not have a separate vote and thus had to accede in 1973. In the same vein, the Greenlandic population had not been asked explicitly at the referendum concerning the withdrawal, whether it wanted to get an OCT status, as the question asked may rather be understood as a third-country status – like the Faroe Islands – being at stake. Moreover, it was not the Greenlandic ‘Landsstyre’, but rather the Danish government, in which this competence to carry through the negotiations of withdrawal was vested. Thus, Greenland’s ties – through Denmark – to the EU are first and foremost based on its OCT status, used in relation to former colonies. Greenland entered into this status without being a party as such to the negotiations that followed its voting to withdraw from the EC.
If Greenland were to end up completely leaving the Danish realm, which is constantly up for discussion not least due to the colonial history as explained earlier, to become a sovereign state no longer subject to the Danish Constitution, such a step would evidently also affect Greenland’s relationship with the EU. In that case this relationship would have to be redefined and renegotiated, since it at present is mainly defined through Greenland’s connection with Denmark as an EU Member State. The consequences might in fact be quite significant, as Greenland would then as a likely point of departure assume the status of a third country unless it could and would wish to become a Member State in its own right or some other construction could be designed.
All in all, the findings of this chapter cannot and should not be ignored in relation to the EU’s new, crucial Arctic policy, according to which the EU wishes to increase its engagement in and around the Arctic region, in response in particular to climate change and in support of sustainable development, security interests, and possible access to natural resources. All parties, the EU, Denmark, and Greenland, will soon have to face the complicated colonial history through improved dialogue and, even more importantly, through increased orientation towards finding solutions for a more stable, constitutional and/or international interrelationship. The interrelational platform, although currently volatile as the simmering conflicts in the Arctic are manifold, also contains positive elements, which however can only be realized through increased self-reflexivity.
14.1 Introduction
Brexit was in many respects a great revealer. Aside from the fractures it brought to the surface in the United Kingdom’s constitutional and political systems,Footnote 1 Brexit also taught us a lot about European Union law. Wightman provides a definitive and sophisticated statement of the constitutional nature of the Union.Footnote 2 More comprehensively, Brexit revealed the elements of European Union law that really mattered, namely economic integration and the laws and institutional structures which facilitate this process. What came to be at stake in the Brexit negotiations was the internal market and the customs union and the paraphernalia of laws and institutions which facilitate both.Footnote 3 Furthermore, it was not only the individual bodies of substantive law but the manner in which these all worked together to create an environment for economic integration and the creation of a single economic space. The UK’s attempts to ‘cherry-pick’ and the Union’s resistance to this, underlined the systemic nature of internal market law and its institutional framework – including legal procedures, legal effects and institutions. The metaphor of the ‘ecosystem’ of Union law is apt and useful.
Brexit also revealed another, more limited but nonetheless important and hitherto underappreciated characteristic or side effect of Union law. This was its role in facilitating the resolution of a postcolonial conflict with cross-border dimensions, which had persisted until the end of the last century in the north-west of Europe, namely what were known euphemistically as ‘the Troubles’ in Northern Ireland. This is the European Union as a peace project but perhaps differently than how that phrase is commonly understood. It was joint European Union membership of the United Kingdom and the Republic of Ireland that permitted conflicting political and constitutional aspirations of two communities – the legacy of a settler-type colony – to be accommodated. Intriguingly, and with some echoes of the Monnet method and the early hopes of neo-functionalism,Footnote 4 this operated not so much at the level of high constitutional principle: the so-called constitutional question and its link to post-sovereigntist tendencies in EU membership.Footnote 5 Instead, it was the day-to-day and quite technical operation of Union law and the common economic and social space it constructed between the two otherwise separate jurisdictions of Ireland and the United Kingdom which allowed the border to diminish as a marker of identity and separation, and for the aspirations of the nationalist community in Northern Ireland (i.e. that section of the population which typically identifies as Irish and would aspire for Northern Ireland to be unified with the Republic of Ireland) to be partially fulfilled.Footnote 6 The functional dimension of European Union law rather than (or in addition to) broader constitutional transformations played a key role in the facilitation of the peace process in Northern Ireland. Brexit entailed the removal of this largely unnoticed but crucial scaffold to the peace process in Northern Ireland and the resulting Belfast/Good Friday Agreement and, as a consequence, posed problems to the settlement embodied in that agreement, forcing constitutional choices which could be avoided in the context of joint EU membership.Footnote 7
The resulting Ireland/Northern Ireland Protocol (hereinafter referred to as the Protocol) is designed to compensate for the absence of joint EU membership caused by Brexit.Footnote 8 It is however an imperfect substitute. It is an attempt to keep Northern Ireland in the EU single market for goods and yet minimize any undermining of the constitutional position of Northern Ireland within the UK. As such, it has created a hybrid and truly liminal legal system,Footnote 9 especially when combined with the operation of devolved government in Northern Ireland. It combines legal sources from regional, national and transnational legal orders in a unique and complex way and crystallizes Northern Ireland’s position as lying between two unions.Footnote 10 It is a complex and far from ideal situation of legal pluralism or perhaps more accurately legal entanglement.Footnote 11 It is also a case study in the manner in which postcolonial conflict situations with cross-border dimensions can be facilitated by transnational law and legal systems and by a certain acceptance of legal pluralism.
After briefly providing some background on the colonial history of Ireland, this chapter will outline the crucial role played by Union law as a mostly invisible scaffold in the settlement embodied in the Belfast/Good Friday Agreement before reflecting on the necessary difficulties posed by Brexit and the resulting ‘solution’ in the form of the Protocol. A conclusion will reflect on the complex legal landscape which has emerged as a consequence of Brexit and also the role of legal pluralism or entanglement in the management of a cross-border postcolonial situation.
14.2 Northern/Ireland as Colony
There is by now a well-established tradition of postcolonial studies in Irish literature, cultural studies and historiography.Footnote 12 This is despite some resistance to attempts to place Ireland in the postcolonial world arising from its location in Western Europe and its constitutional integration with the United Kingdom in the nineteenth century.Footnote 13 Certainly, neither Ireland’s necessary exposure to and experience in processes of Western European modernization and capitalist development nor the role of Ireland and Irish people in processes of British (and other) imperial projects should be overlooked.Footnote 14 However, it remains the case that Ireland’s position for much of its history was as a colony in a position of economic and political subjugation to England and later within the United Kingdom, an experience which profoundly marked the economic, social and cultural development of the state up to the present day.Footnote 15
As put by Engels ‘Ireland may be regarded as the first English colony’.Footnote 16 It formed part of the first wave of North Atlantic colonization undertaken by Spain and England and other European states in the early modern period.Footnote 17 Early Norman invasion in the twelfth century led to a sporadic and only partially successful conquest of the island. Norman lords coexisted with local Gaelic lords and partially assimilated to the local culture; control by the English crown was limited. This group of ‘Old English’, remaining Catholic and involved in a number of rebellions against the English crown, was eventually displaced by the New English after the English Reformation and subsequent wars.Footnote 18 A more comprehensive conquest and assertion of control over the island took place in the seventeenth century during a number of wars, key amongst them the Cromwellian war.Footnote 19 A colonial project of settlement (‘plantations’) led to displacement and anglicization. The most successful of these plantation projects took place in the northern province of Ulster with large-scale migration of Protestants from England and Scotland.Footnote 20 A substantial community formed along distinct cultural, religious and linguistic lines, separate from the majority Gaelic community, which remained Catholic and Irish speaking until the mid-nineteenth century. In line with its position as a colony, the economy of Ireland tended to develop to complement and service rather than compete with the metropole.Footnote 21 Its economy remained largely agricultural with the exception of the Protestant-dominated north-east of the island, which participated in the industrial revolution of the nineteenth century, developing strong links with the industrial cities of northern England and Scotland. This divergence in economic trajectories also contributed to the economic and social distinctiveness of the north-eastern part of the island, with resulting effects on the distinctive identity of the region.Footnote 22
The result was the creation of a mixed settler colony in most of the island,Footnote 23 with assimilation and anglicization of the local population. The Catholic Gaelic population remained a significant and disenfranchised majority. Rapid introduction of Ireland into the North Atlantic capitalist world in the seventeenth and eighteenth centuries and the elimination or incorporation of the local elite, created a particular socio-economic structure, with a small, Protestant minority owning large estates, worked by impoverished peasant tenants.Footnote 24 In the north-eastern part of the island the situation was different. While a substantial population of indigenous people remained, this coexisted alongside a large and rooted community of Protestants with an English and Scottish background. This community had a distinct identity, a central part of which included an affiliation with the metropole, expressed in loyalism to the British state and a desire to maintain the union with the United Kingdom.Footnote 25 As a consequence, when Ireland secured its independence following a rebellion and War of Independence in the 1920s, part of the settlement provided that six counties in the north-east of the island could exercise an option to separate from this new state and remain part of the United Kingdom, an option they exercised in 1922, leading to the creation of two political entities on the island: the Irish Free State, later to become the Republic of Ireland, and Northern Ireland, a self-governing unit within the United Kingdom.Footnote 26 Partition of the island, along with other compromises, was deeply controversial within the Irish independence movement and contributed to a short but bitter civil war.
Northern Ireland was created with the goal of securing as large a territorial and economic unit as possible in order to ensure its viability while at the same time ensuring that this unit would retain a Protestant majority.Footnote 27 The Catholic minority found itself in an economically, socially and politically disadvantaged situation and experienced significant forms of discrimination.Footnote 28 Inspired by civil rights movements in the US, Irish Catholics organized politically in the 1960s to demand equal treatment and the reform of political processes.Footnote 29 Violent suppression of these social movements combined with inter-communal tensions and more militant tendencies in the Irish nationalist movement gave rise to a thirty-year period of terrorism and violent social unrest in Northern Ireland, a period known as ‘the Troubles’.Footnote 30 After a number of failed attempts at political settlement, a peace process was successfully launched in the 1990s and culminated in the signing of the Belfast/Good Friday Agreement in 1998.Footnote 31 The agreement has been amended a number of times and the peace process remains ongoing. Nonetheless, it remains the basis for the constitutional settlement of Northern Ireland and to date there has not been a widespread recurrence of political violence.
14.3 The Belfast/Good Friday Agreement and the Role of the European Union
14.3.1 The Belfast/Good Friday Agreement.
The Belfast/Good Friday Agreement consists of three strands, in an attempt to manage internal divisions in Northern Ireland, secure the rights of both communities as well as address the broader ‘constitutional question’ and Northern Ireland’s relationship with the Republic of Ireland and the rest of the United Kingdom.Footnote 32 The first strand deals with issues internal to Northern Ireland. This established a devolved assembly and government with a power-sharing arrangement based on the d’Hondt model, in effect a consociational system of government ensuring that both communities are represented in the Northern Ireland Executive (the regional, ‘devolved’ government).Footnote 33 Provisions were also included relating to policing reform and rights guarantees to address the concerns of the minority nationalist community.Footnote 34
The second strand deals with the ‘North–South’ relationship that is between Northern Ireland and the Republic of Ireland.Footnote 35 This established a number of bodies, foremost of which is the North–South Ministerial Council, bringing together ministers from both jurisdictions. Also included in the North–South dimension of the agreement are a set of implementation bodies managing implementation of joint action in a number of areas where cross-border cooperation would be useful, such as energy or tourism.Footnote 36 The North–South strand therefore has a political/symbolic and also functional dimension, giving some expression to the need to promote all-Ireland cooperation and indeed some embryonic form of a thicker political relationship between Northern Ireland and the Republic of Ireland while also having more practical, functional elements in specific policy fields.
Partially to address unionist sensibilities in the face of these North–South bodies, the Belfast/Good Friday Agreement also contained an East–West strand, managing the relationship between Ireland as a whole and the United Kingdom, including devolved governments as well as other political entities in the archipelago.Footnote 37 It consists of two bodies: a British–Irish Council and a British–Irish Intergovernmental Conference. The British–Irish Council is composed of parliamentary representatives from the various political entities in the British–Irish archipelago, namely the Irish and UK governments, the devolved governments of Wales, Scotland and Northern Ireland and representatives from the UK’s dependencies in the area, in particular the Isle of Man and the Channel Islands. The British–Irish Intergovernmental Conference consists of representatives at ministerial or prime ministerial level. While both the British–Irish Council and the British–Irish Intergovernmental Conference met infrequently and fell into abeyance for some time, their value has been recognized in the post-Brexit context where representatives of the British and Irish governments and officials will no longer meet at EU fora.
A compromise on the constitutional question resulted in the enshrinement of the so-called principle of consent. Northern Ireland’s constitutional status would only change with the wishes of a majority of its population as determined by a referendum.Footnote 38 The acceptance of this principle constituted an important concession for both the nationalist community and the Irish state, accepting as it does the legitimacy of Northern Ireland as a political unit and the partition of the island.Footnote 39 At the same time, it committed the United Kingdom under an international treaty to change the constitutional status of Northern Ireland in appropriate circumstances. This, alongside the institutionalization of opportunities for the Irish government to have input into governance questions relating to Northern Ireland in the British–Irish Intergovernmental Conference and its role as shared guarantor (alongside the UK government) of the Belfast/Good Friday Agreement, led to a nuancing of the question of sovereignty over Northern Ireland, away from an absolutist conception towards something more ambiguous. Related to these broader questions and further crystallizing Northern Ireland’s liminal constitutional status, was a commitment that individuals born in Northern Ireland would be entitled to identify as British, Irish or both and acquire the citizenship of either or both states.Footnote 40
14.3.2 The Role of the European Union.
The European Union and European Union law did not feature strongly in the text of the agreement, being mentioned only in relation to some aspects of North–South cooperation where fields governed by EU law were implicated.Footnote 41 The European Union provided some assistance, particularly on the question of financial aid for peace-building initiatives, in particular through the PEACE initiative, but was neither a party to the negotiations (unlike the key role played by the United States government in brokering the agreement) nor a guarantor of the agreement alongside the British and Irish governments.Footnote 42 Nonetheless, the role of joint EU membership of both the UK and Ireland was crucial, if underappreciated, to the successful development of the peace process in a number of ways.
Firstly, joint EU membership provided a key context for the maturing of the relationship between the UK and Ireland from asymmetrical dependence into one of equal and close partners.Footnote 43 European Union membership developed Ireland economically, providing the opportunity to diversify its economy away from the dependence on the UK market. Ireland’s economy had historically developed in order to service rather than compete with the metropole. The result was an economy based on agricultural exports, the main market for which was overwhelmingly the United Kingdom. European Union membership allowed Ireland to develop its industrial sector and diversify its trade. This is particularly the case after the 1990s when large multinational companies developed thriving technology and pharmaceutical industries, attracted in part by Ireland’s English-speaking workforce and access to the European market.
Meeting regularly as sovereign equals within the context of joint membership also underlined the formally equal nature of the two states, maturing a relationship which had been distinctly asymmetrical in the decades immediately after Irish independence.Footnote 44 Ireland was both a former colony and the much smaller and weaker state, economically and politically. As noted above, it was also heavily dependent on the UK as its main export market, a dependence which was not mutual. On a more practical level,
[j]oint membership of the European Union provided British and Irish ministers and officials with a forum for continuing contact across a whole range of public policy issues. EU meetings, particularly at the European Council, provided British and Irish prime ministers with an informal arena to discuss Northern Ireland at the margins of EU deliberations. Such bilateral meetings … provided an important opportunity for relationship building between the heads of government. Opportunities for informal contact meant that even when Anglo-Irish relations were at a low ebb, there was not a complete breakdown in communications.Footnote 45
The broader nature of the European Union as a post-sovereign entity, framing relationships between sovereign states in new ways and facilitating cross-border cooperation and interaction also provided an important context and model for the peace process. The ‘messianic’ mission of the European Union as a peace project and its attempt to bring together previously antagonistic states, indeed mortal enemies, did not escape some participants in the peace process.Footnote 46 That it did so by both attenuating the sharp edges of sovereignty and by encouraging transnational economic and social connections was also noted.Footnote 47
More concretely, the embedding of both Ireland and the United Kingdom (including Northern Ireland) within the broader economic structures of the European Union, especially after the completion of the single market and the abolition of customs checks, facilitated a process by which the border between the two legal jurisdictions, while continuing to exist as a matter of international law, was significantly diminished in importance socially and symbolically.Footnote 48 Customs and security checks had long existed between the two jurisdictions before the implementation of the Belfast/Good Friday Agreement. Security posts at the borders represented a visible and imposing symbol of British presence in Northern Ireland and the distinction between the two jurisdictions. They, alongside more prosaic border checks, were frequently the target of terrorist attacks. Removal of border checks was seen as a key component in the normalization of Northern Ireland’s security situation, the development of communities in the border region and the facilitation of greater cross-border cooperation.Footnote 49
There was also an important symbolic dimension to the removal of the border which could be understood as an integral part of the North–South strand of the Belfast/Good Friday Agreement. Different legal frameworks combined not just to remove the border but to allow the island of Ireland to be considered a single economic and social space, thereby facilitating the expression of the identity of the nationalist community and indeed the ability of members of that community to plan their lives on an all-Ireland basis.Footnote 50 The Common Travel Area (CTA), an informal arrangement between Ireland and the UK, abolishes border controls on persons between the two jurisdictions and extends rights of residence and equal treatment to United Kingdom and Irish nationals respectively.Footnote 51 The customs union and single market allow the same thing with respect to goods and economic life. Customs and regulatory checks with respect to goods are no longer necessary and hence the need for a physical border for goods disappears. The operation of the single market in all its regulatory and institutional complexity, allows economic actors to operate across borders with a great degree of freedom, developing supply chains and penetrating markets but also receiving services (including health and education) and engaging in employment. In short, the absence of a physical border and the opportunities for cross-border life facilitated by the internal market and the customs union (amongst other elements of EU law), combined with the CTA, created the conditions for Northern Ireland and Ireland to be treated as a single economic and social space and thus gave expression to the nationalist community’s aspiration to identify with the rest of Ireland in a concrete and meaningful way.
It is worth pausing to note the mixture of both the ‘high constitutional politics’ and the more mundane functionalist operation of a single market and customs union in the contribution of the EU to the peace process in Northern Ireland. The maturing of the relationship between Ireland and the United Kingdom within the context of the European Union and its predecessors was certainly key, as was the opportunity afforded by frequent meetings and the development of ongoing relations between politicians and senior officials. Likewise, the ‘post-sovereigntist’ hue to constitutional politics within the European Union certainly provided an alternative to the otherwise binary, mutually incompatible constitutional aspirations of the two communities. However, peace processes are not built on high constitutional and political rhetoric alone but demand the transformation of concrete, tangible conditions on the ground. The effective elimination of the border by the operation of mundane, functional single market legislation and the completion of the customs union had important symbolic effects and normalized the situation between the two jurisdictions. It also diminished the significance of the border for the purposes of daily life and for politics more generally. In some ways it harks back to the original Monnet method: functionalism and the facilitation of cross-border economic and social activities in the service of peace.
14.4 Challenges Posed by Brexit
Brexit posed a significant challenge for the peace settlement in Northern Ireland, particularly when the United Kingdom opted for a so-called ‘hard Brexit’, withdrawing from the customs union and the internal market. Withdrawal from the customs union and the internal market would necessarily mean the introduction of customs and regulatory checks between the United Kingdom and the European Union. Installing these on the border between Ireland and Northern Ireland would pose a number of practical, security and broader political risks. On a practical level, the nature of the border would make it extremely difficult to police. It would also pose difficulties for individuals and communities in the border area, many of whom engage in multiple border crossings in a single day, living in one jurisdiction and working or attending school in another.Footnote 52 This would be particularly the case if (in light of the large number of border crossings), the number of official border crossings was reduced and minor crossings closed. A number of commentators raised the possibility of new border installations being a target for remaining dissident republican terrorist organizations, a process which risked escalation with increasing securitization and even militarization of border crossings in response to security threats.Footnote 53 It is difficult to overstate the symbolic importance and potential for political destabilization of large-scale military installations in a post-conflict society such as Northern Ireland. Finally, the reinstatement of a physical border would undermine the North–South dimension of the Belfast/Good Friday Agreement, which depended on the diminishment of the border as a practical and hence political reality resulting from the joint embedding of Ireland and Northern Ireland in the European Union’s single market and customs union.
Ensuring the absence of a physical border was quickly identified as a priority for the Irish government within its broader response to Brexit, alongside securing as close a relationship as possible between the UK and the European Union in order to diminish the economic impact of Brexit on Ireland.Footnote 54 A deliberate choice was made by Ireland to align itself closely with the European Union, underlining its position as a Member State rather than as an ‘intermediary’ between the UK and the EU. Ireland launched an impressive diplomatic effort, engaging intensely both with the Union institutions and national capitals in order to press upon European decision-makers and fellow Member States the importance of the border issue to the peace process and to ensure that it would form part of the Union’s objectives in the first stage of the Brexit negotiations, that is in the context of the Withdrawal Agreement rather than the future relationship. This last point was key in ensuring that the border question was dealt with at the stage where the European Union had most leverage and also to ensure that the border would not be the subject of wider trade-offs in the context of negotiating the future relationship. In its diplomatic efforts to frame the issue for European partners and ensure that it was treated within the first phase of the negotiations, Ireland was entirely successful. This was achieved by the impressive efforts made by the Irish foreign service and its ‘first mover advantage’, facilitated by its preparation in advance of Brexit and the absence of similar preparation on the part of the United Kingdom.Footnote 55
The Brexit negotiations were long and tortuous, involving two British prime ministers, a number of extensions to the Article 50 Treaty on the Functioning of the European Union (TFEU) timeline and two agreements, one failed and one ultimately successful.Footnote 56 It resulted in the Protocol as an integral part of the Withdrawal Agreement concluded between the EU and the UK at the end of January 2020.Footnote 57 The necessity for the Protocol arose from the choices made by the United Kingdom during the Brexit negotiations. It became increasingly clear that Prime Minister Theresa May’s originally vacuous phrase ‘Brexit means Brexit’ in fact meant withdrawal from the customs union and internal market. This was a logical consequence of the UK’s goal to enjoy independent trade and regulatory policies following withdrawal and its refusal to be subject to the jurisdiction of the Court of Justice of the European Union (CJEU or Court of Justice).
With respect to the UK’s only land border with the EU, Theresa May made three promises which were impossible to keep at the same time. Firstly, she promised Eurosceptics in her own political party – the Conservative Party – to withdraw from the internal market and customs union. Secondly, she promised the Irish government and the European Union that there would be no hard border between Ireland and Northern Ireland. Indeed this promise was elevated to a somewhat formal status in a Joint Report published by the European Commission and the UK in December 2017, confirming the broad outline of agreements on the Withdrawal Agreement and allowing the opening of discussions on the future relationship.Footnote 58 Finally, Theresa May promised the unionist community in Northern Ireland and in particular its largest party, the Democratic Unionist Party (DUP), that there would be no ‘new borders’ between Northern Ireland and Great Britain and that Northern Ireland’s constitutional position within the United Kingdom would be maintained and that the entire United Kingdom – including Northern Ireland – would leave both the internal market and customs union.Footnote 59 This created what became known as the Brexit Trilemma. May had made three promises. She could keep any two of these but not all three. The UK as a whole could withdraw from the customs union and single market with no new border between Northern Ireland and Great Britain but this would entail a border between Northern Ireland and Ireland. It could also withdraw from the customs union and single market but keep Northern Ireland within the customs union and single market. This would have the benefit of ensuring that there would be no hard border between Northern Ireland and Ireland but would necessitate border checks between Northern Ireland and Great Britain. Finally, the UK could ensure no new borders between Northern Ireland and Ireland and between Northern Ireland and Great Britain but only by remaining as a whole within the customs union and single market. At least one promise would have to be broken.
May’s response was a compromise. The preferred solution would be for the border issue to be dealt with in the future relationship. If, however, the future relationship did not result in a situation where there was no need for a border between Ireland and Northern Ireland, a ‘backstop’ solution would kick in. In such a situation some internal market rules would continue to apply in Northern Ireland alongside appropriate jurisdiction for the Court of Justice while the United Kingdom as a whole would effectively remain within the customs union. This arrangement would remain in place until alternative arrangements (presumably based on technological innovations) would allow withdrawal from the customs union. This solution would eliminate the need for customs checks between Northern Ireland and Great Britain leaving minimal regulatory checks and would also ensure the absence of a hard border between Ireland and Northern Ireland. While the UK would leave the single market, it would not do so as a single unit and would (in the event the backstop was triggered) remain within the customs union. Unfortunately, May’s compromise was too much of a compromise. It was unacceptable to the DUP and, taking their lead from the DUP, the Eurosceptic wing of the Conservative Party. Given May’s weak political position, defeat was inevitable. Her version of the Withdrawal Agreement was defeated three times in Parliament and she resigned to be replaced by Boris Johnson.Footnote 60
14.5 The ‘Solution’: The Ireland/Northern Ireland Protocol
In an effort to break the political deadlock Boris Johnson renegotiated the Protocol changing the ‘backstop’ to a ‘frontstop’, applicable regardless of the outcome of the future relationship. Significant parts of internal market legislation, particularly as it applies to goods, would apply to Northern Ireland along with jurisdiction for the Court of Justice. Northern Ireland would remain within the customs territory of the United Kingdom, but goods at risk of onward movement to Ireland and hence the EU’s internal market, would be subject to the customs code of the European Union. The result was effectively the breaking of the promise made by Theresa May to the DUP: a border in the Irish sea would be necessary in order to ensure regulatory checks and some customs checks. After a number of failed attempts to gain approval for his renegotiated Withdrawal Agreement, Boris Johnson dissolved Parliament, calling a general election in which he won a considerable majority.Footnote 61 No longer reliant on the votes of the DUP, Johnson ratified the Withdrawal Agreement and legislated for Brexit generally and for the Protocol in particular with the adoption of the Withdrawal Agreement Act 2020.Footnote 62
This however was not the end of the story. The Protocol should have come into effect on 31 December 2020 with the end of the transition period.Footnote 63 However, problems with implementation combined with resistance from the unionist community resulted in the UK unilaterally deciding not to apply key provisions throughout 2022 and seeking to renegotiate the Protocol.Footnote 64 While unwilling to reopen the text of the Protocol as such, the EU did negotiate with the UK on its implementation, resulting in the adoption of the ‘Windsor Framework’.Footnote 65 The Windsor Framework is not a radical overhaul of the Protocol and is mainly concerned with the implementation of the provisions on the movement of goods. There is one change to the text of the Protocol, introducing a new ‘Stormont Brake’ (discussed further below). Nonetheless, the Windsor Framework does ‘provide for a significant reworking of the Protocol’ with de minimis rules for its application and the disapplication of some substantive rules (particularly on sanitary and phytosanitary requirements).Footnote 66
The main body of the Protocol is a relatively short document, with a total of eight Articles. Its short nature is deceptive. Various provisions of the Protocol refer to annexes, which themselves contain references to hundreds of pieces of Union legislation to be applied to Northern Ireland. To simplify a very complex legal arrangement, the Protocol ensures that Northern Ireland remains in the single market for goods and de facto within the customs union. While quite technical in places, some provisions of the Protocol and especially its recitals do emphasize its broader role in trying to maintain the conditions for the continued operation of the Belfast/Good Friday Agreement and the wider set of relations between Ireland, Northern Ireland and the rest of the UK.Footnote 67
14.5.1 EU Law Applicable in Northern Ireland.
While most focus has understandably been on the operation of the provisions of the Protocol relevant to the movement of goods and customs, the Protocol also protects another element of the peace process underpinned by European Union law. The Belfast/Good Friday Agreement contains a number of provisions on the protection of rights in Northern Ireland, committing the UK to be a party to and to implement the European Convention on Human Rights (ECHR) into domestic law with respect to Northern Ireland, establish a number of rights-protecting institutions and more broadly to ensure the non-diminution of rights in Northern Ireland.Footnote 68 A number of these rights derive from European Union law, in particular equality legislation. Article 2 of the Protocol guarantees those rights and institutions. Unlike the provisions on the movement of goods and customs, the commitment of the UK under Article 2 of the Protocol is merely to ensure the non-diminution of rights contained in EU legislation within Annex 1 to the Protocol.Footnote 69 It may replace those provisions with domestic law but in doing so must ensure a comparable level of protection. The CTA is also protected by the Protocol, recalling the essential role the CTA plays – both in its abolition of border controls and in providing for reciprocal free movement and equal treatment rights for UK and Irish nationals – in ensuring the absence of a border and the creation of a broader all-Ireland social and economic space. Article 3 of the Protocol permits the continuation of the CTA between the UK and Ireland and provides that it shall continue ‘without affecting the obligations of Ireland under Union law’, particularly with regard to free movement.Footnote 70
The main body of the Protocol is taken up with arrangements for the free movement of goods in an effort to ensure the absence of a hard border between Ireland and Northern Ireland. To simplify somewhat, this is achieved by ensuring that Northern Ireland remains in the single market for goods and that the EU’s customs code is applicable to Northern Ireland. Complexity is added by the desire of the UK government, with sensitivity to unionist concerns, to ease movement of goods between the rest of the UK and Northern Ireland. The result is that a large body of EU law relating to the single market, referenced in Annex 2 to the Protocol, will apply to Northern Ireland producers. Goods entering Northern Ireland from the rest of the UK or a third state will not have to comply with these regulations which may nonetheless (especially in particular areas such as agriculture and food) entail substantial certification and other regulatory requirements, unless they are at risk of onward movement to the single market or will be processed. Similarly, the customs code will apply to Northern Ireland with respect for goods which are deemed to be at risk of onward movement to the single market.Footnote 71 Criteria for determining which goods are at risk of onward movement are to be drawn up by the EU–UK Joint Committee which manages the implementation of the Withdrawal Agreement. Articles 30 and 110 TFEU shall also be applicable to Northern Ireland and quantitative restrictions prohibited between Northern Ireland and the Union.Footnote 72 Articles 7 to 11 make applicable other areas of EU law, including VAT and excise (Article 8), electricity (Article 9) and state aid (Article 10). Article 7 deals with registrations, assessments, certificates and so on of relevance to the free movement of goods.
14.5.2 Legal Nature of the Protocol.
If the substance of the Protocol, applying significant swathes of EU law to Northern Ireland and containing a cumbersome procedure for differentiating between goods destined for the local market and goods at risk of onward movement, is eye-catching and already complicates Northern Ireland’s legal situation, the governance arrangements and the nature of the law made applicable by the Protocol are also worthy of note. The Protocol is an integral part of the Withdrawal Agreement, which in turn enjoys primacy in UK law by virtue of Article 4 of the Withdrawal Agreement and section 7A of the UK’s Withdrawal Act 2018 (as amended by the UK Withdrawal Agreement Act 2020).Footnote 73 Section 7A replicates the language of the earlier European Communities Act 1972 which provided for direct effect and primacy of EU law within the UK domestic legal system.Footnote 74 All EU law made applicable by the Protocol, including relevant future law (applicable by virtue of ‘dynamic alignment’ i.e. the application of future, relevant EU law in Northern Ireland), thus enjoys direct effect and primacy over UK law. The Charter of Fundamental Rights of the EU will also apply.Footnote 75 It is important to distinguish this from what is known as ‘retained EU law’ in the UK legal system. In order to avoid the creation of large gaps in its legal system on its withdrawal from the EU, the UK effectively replicated the vast majority of EU law in UK domestic law. As a result, there is now a category of ‘retained EU law’ in UK law.Footnote 76 This is UK domestic law rather than EU law, even if the substance remains the same. Its application and interaction with other parts of UK law is subject to various rules of interpretation (including with respect to the case law of the Court of Justice, differentiating between cases decided pre- and post-withdrawal).Footnote 77 Not all EU law was incorporated in this manner, for example the Charter of Fundamental Rights was excluded.Footnote 78 Retained EU law applies in Northern Ireland with respect to those matters which do not fall within the scope of the Protocol. However, the Protocol also ensures that a body of law, also derived from EU law but with a different nature, and enjoying direct effect, primacy and dynamic alignment and bringing into play the Charter of Fundamental Rights, applies in Northern Ireland. Note should also be taken of the application of law derived from the Withdrawal Agreement proper, in particular provisions relating to citizens’ rights, which have their own institutional arrangements.Footnote 79
14.5.3 Implementation, Enforcement and Governance of the Protocol.
The single market does not just consist of a set of rules but operates as part of a wider legal ‘ecosystem’ including institutions and processes for monitoring and enforcement which in turn underpin the operation of mutual trust so central to the operation of EU law. While the practical operation of the Protocol will be implemented by UK officials, there are provisions relating to data sharing with the Commission and the possibility of on-site inspections by the Commission.Footnote 80 The Protocol also extends the jurisdiction of EU institutions to supervise and enforce the application of relevant EU law in Northern Ireland, including infringement proceedings. The judgment of the Court of Justice in Commission v. United Kingdom, fining the UK for failures in relation to fuel marking, is an indication that these provisions will bite.Footnote 81 Importantly, the Court of Justice found that, with respect to Northern Ireland, the infringement continued after the transition period (when EU law ceased to apply to the rest of the UK) by virtue of the operation of the Protocol and that moreover the fine for this element of the infringement should be calculated with reference not to the GDP of Northern Ireland but by reference to the GDP of the UK as a whole, in order to ensure adequate deterrence.Footnote 82
Article 12 of the Protocol also provides that the courts of the United Kingdom shall have the ability and in some cases the obligation to make a preliminary reference to the Court of Justice. In practice this will principally mean the courts of Northern Ireland. However, Article 12 of the Protocol is not limited to the courts of Northern Ireland and given that the UK Supreme Court will in certain circumstances be a court of final instance for matters falling within the scope of the Protocol, the obligation to make a preliminary reference under the third paragraph of Article 267 TFEU may fall on that court.Footnote 83 That this may have some impact is illustrated by the judgment of the Court of Justice in Commission v. UK, finding an infringement on the part of the UK as a consequence of the failure of the UK Supreme Court to refer an issue of European Union law on arbitration to the Court of Justice under Article 267 TFEU.Footnote 84
Governance of the Protocol falls to a set of committees established under the Withdrawal Agreement and the Protocol. The general Joint Committee, established under the Withdrawal Agreement, is the ultimate decision-making authority for the Protocol and is also the forum where sensitive matters such as ongoing alignment and possible safeguarding measures are discussed.Footnote 85 This is assisted by a Specialised Committee, concerned with the implementation of the Protocol and a Joint Consultative Working Group for gathering and exchanging information and assisting the Specialised Committee.Footnote 86 There is a safeguard clause contained in Article 16 of the Protocol, the use of which was already threatened by the UK during the initial period of the Protocol’s application.Footnote 87 Finally, there are important but complex democratic safeguards. New EU legislation in the context of dynamic alignment is to be incorporated in the Protocol by a decision of the Joint Committee. This requires the agreement of the UK government. If agreement is not forthcoming, then remedial measures may be taken by the EU. This procedure, contained in Article 13 of the Protocol, was supplemented by a new provision, with a view to increasing the democratic credentials of the Protocol as part of the Windsor Framework.Footnote 88 The new Article 13(3)(a) allows a group of members of Northern Ireland’s devolved legislative assembly (the ‘Stormont Assembly’) to request that the UK government trigger what is now known as the ‘Stormont Brake’, not applying new EU law to Northern Ireland in the event that the measure will have ‘“significant impact” for everyday life in Northern Ireland’.Footnote 89 As with the original procedure under Article 13(4) of the Protocol, in the event that the new measure is not applied to Northern Ireland, the Union may adopt remedial measures. Both the use of the ‘brake’ and any remedial measures shall be subject to the dispute resolution mechanisms under the Withdrawal Agreement, including arbitration.Footnote 90
14.6 Conclusion: Constitutional Entanglements in a Postcolonial Space
To say that the Protocol is a complex piece of legal engineering is an understatement. Placed alongside the already considerable particularities of Northern Ireland’s legal system it gives rise to not simply legal entanglement but arguably constitutional entanglement. This perhaps is inevitable to some extent and reflects the underlying historical position of Northern Ireland as a postcolonial entity and the social, political and identarian legacies of that position, in particular with two communities, with different political traditions and identifying with different bordering states. It is in the words of Brennan a quintessential ‘liminal space’.Footnote 91 The effects of this ‘liminality’ or in-betweenness was diminished in the context of joint membership of the European Union and especially its single market. This chapter has sought to trace how, in combination with the operation of the CTA, the importance of the border between Northern Ireland and Ireland was minimized both symbolically and practically. Largely unacknowledged, transnational legal frameworks, allowing for social and economic interactions, were key in facilitating a peace process in a postcolonial society of different political communities where one community identified with a neighbouring state. The Protocol is necessarily an imperfect substitute for joint membership of the EU. It has also complicated even further the ‘entangled nature’ of Northern Ireland’s law and arguably the entangled nature of its constitutional position.
Legal entanglement, defined by Krisch as a ‘situation in which law is constituted by the ways in which norms from different origins are linked with one another without being integrated into a common order’, is related to legal pluralism but emphasizes the absence of any systemic quality.Footnote 92 This chapter reveals that Northern Ireland now certainly experiences a situation where ‘norms from different origins’ apply ‘without being integrated into a common order’. After the withdrawal of the UK from the EU and the entry into force of the Protocol we now find applicable in Northern Ireland: ordinary UK law; retained EU law (not subject to ongoing legislative or interpretative alignment, and enjoying modified primacy); EU law derived from the Protocol (subject to ongoing legislative and interpretative alignment and enjoying direct effect and primacy); the shadow of the (soft-law) CTA governing reciprocal treatment of Irish and UK nationals; law from the devolved Stormont Assembly; rules flowing from the Belfast/Good Friday Agreement; and finally, the ECHR, in turn enjoying a particular status by virtue of the Belfast/Good Friday Agreement. All of these are simply the sources of public law in Northern Ireland’s unique constitutional position; presumably we must add to these other forms of international and transnational law, including private sources of norms and regulations.Footnote 93
But the entanglement of Northern Ireland law is not limited to varied sources of law, or rather a focus on the multiplicity of the different bodies of law alone does not capture the full picture. For it is arguable that Northern Ireland also experiences, particularly post-Brexit, considerable constitutional entanglement in the sense that there are multiple sites of legal authority operating in Northern Ireland, not always operating within the confines of a single system, nor perhaps particularly well integrated. Northern Ireland is of course first and foremost subject to the sovereign authority of the Westminster Parliament. And yet, while the basic fact of Northern Ireland’s constitutional position in the United Kingdom is unchanged and is in fact confirmed (and provides the basis for) the Belfast/Good Friday Agreement, it has also been pointed out that the Belfast/Good Friday Agreement is to some extent a constitutional charter for Northern Ireland and the Northern Ireland Act 1998 a quasi-constitutional statute, thereby limiting to some extent the core constitutional principle of the UK, namely the sovereignty of the king in Parliament.Footnote 94 As part of this, Northern Ireland now enjoys a legislative assembly and executive (albeit increasingly suspended amid political dysfunction) as part of an asymmetric quasi-federation. The ECHR and moreover its implementation in domestic law is also mandated by the same agreement which adds the authority of the European Court of Human Rights to the constitutional landscape of Northern Ireland. To this must be added the North–South and East–West institutions of the Belfast/Good Friday Agreement, albeit acknowledging their limited impact in practice and mostly symbolic and diplomatic function (particularly the East–West institutions). The Protocol, in contrast to the rest of the UK, also now involves EU bodies, including the Court of Justice and the Commission, in both the enforcement and application of a body of law in Northern Ireland. The EU also has a legislative function with respect to Northern Ireland in those areas of law covered by the Protocol. The interaction of the developing EU law with Northern Ireland law is then managed by an ‘interface’ institution, created under the Withdrawal Agreement, namely the Joint Committee. Multiple institutions, nested and overlapping, from different constitutional sites, now claim some form of legal authority over Northern Ireland.
It is important to specify exactly what form of legal pluralism this represents. Tamanaha, along with other authors, has identified the use of the language of legal pluralism in three contexts.Footnote 95 It was originally used by legal anthropologists in colonial and postcolonial settings. The language was then exported to the field of legal sociology and was used to reflect a multiplicity of state and non-state normative systems. Finally, it has most recently been used to describe the legal situation arising from increased international and transnational law, including private regulatory systems. The use of legal pluralism here to describe the situation in Northern Ireland falls within the third category. Legal pluralism with respect to (post)colonial situations was characterized by different forms of law. ‘European’ law emanating from the metropole was highly institutionalized and often applied exclusively to particular groups of the population (‘Europeans’). This existed alongside customary and other more socially embedded forms of law with local bodies which were formally institutionalized to a greater or lesser extent.Footnote 96 This pluralism frequently persisted after independence with formal, state law existing alongside more local forms of customary law. The coexistence and interaction between these different systems and forms of law gave rise to instances of legal pluralism.
The multiplicity of law in Northern Ireland today does not represent an instance of postcolonial legal pluralism as it is normally understood. Unlike postcolonial legal pluralism, it is not marked by ‘the stark contrasts and sheer diversity between coexisting bodies of formal and informal law derived from different traditions involving fundamentally different world views’. Rather the laws analysed here ‘are virtually all Western derived and … involve formal written regulatory regimes and tribunals operating in standard ways familiar to jurists’.Footnote 97 The legal pluralism arising in Northern Ireland as a result of Brexit is not a legal pluralism contrasting a formal, state-based system of law with local, customary or less formalized or institutionalized systems of law as is common in postcolonial situations. Rather, it is the application of a somewhat bewildering array of nonetheless formal legal provisions with different institutional origins (UK, Northern Ireland, EU) and with different legal effects and rules of interaction (so-called ‘interface rules’). Unlike legal pluralism in the context of (post)colonial societies, which is characterized by diversity, the legal pluralism of global/transnational law and hence that of Northern Ireland is characterized by multiplicity.Footnote 98
Thus, in form and nature, the legal situation in Northern Ireland is a species of global/transnational legal pluralism familiar to students of European Union law. However, its origins are postcolonial in the sense that it responds to needs arising from a conflict with its origins in a colonial situation. This colonial situation has a distinct cross-border dimension arising from the fact that one of the main communities in Northern Ireland identifies strongly with a neighbouring state as a result of a partition of the island of Ireland during a process of decolonization. Transnational legal pluralism can play a role in facilitating postcolonial conflict resolution, in particular by diminishing the practical and symbolic importance of borders, facilitating the aspirations of different national communities and allowing constitutional questions to recede into the background. European Union law was, unbeknownst to most observers, ideally suited to such a role.
The European Union and EU law engages with colonial concerns in many and varied respects, as analysed in this volume. The foundation of the EU in an era of imperialism and its development in an era characterized by decolonization is clear. It was at least partially a response to this retrenchment on the part of some Member States. The foreign policy and in particular trade policy of the Union was largely shaped by North–South and colonial legacies in the first decades of the Union’s existence.Footnote 99 The wider legacy of some Member States as empires and indeed as colonies also has an impact on some areas of EU law, for example citizenship.Footnote 100 That EU law played a role in managing a postcolonial situation that existed between two Member States is perhaps less acknowledged and was indeed ‘hidden’. Nonetheless, it was a remarkable effect of EU law that it provided a scaffold for a peace process by facilitating cross-border social and economic interactions and softening an otherwise contentious border. But this regional integration requires a certain pluralism of legal sources: an acceptance of common rules, particular effects of those rules and an institutional apparatus to enforce them. The UK has attempted to extract itself from this legal framework without jeopardizing the peace process in Northern Ireland. The result, with the application of law from multiple sources and interacting in a complex manner, is a particularly ‘entangled’ legal reality and yet one which, while intellectually unsatisfying, may nonetheless serve its function of providing a framework for the ongoing peace process.
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