Brexit: the question of borders between the European Union and the United Kingdom
By Henri Labayle, Centre de Documentation et de Recherches Européennes (CDRE)
Cet article est disponible en français.
The media circus of political commentary does not grasp the scale of the stakes involved in the Brexit result. Now that the referendum is over, the people who complained about the lies and estimations during the campaign still revere the technique of the referendum as a sacred process which should be revered in an established democracy. However, almost by its very nature, the referendum created the conditions for such liberties to be taken with the truth.
Forgetting the conditions surrounding the success of the “no” side of the 2005 Constitutional referendum, they continue to think we can respond to complex issues in a binary manner, and feed the illusion of democracy. Is Boris Johnson’s inconsistency today’s equivalent of Laurent Fabius’ “Plan B” during the Maastricht Referendum in France? And did it make sense at that time to mix the voices of the extreme left and the extreme right?
Indeed, the new champions of the (de) construction of Europe are ignoring the essential facts. Among the burning questions written off in the debate, which British citizens are now discovering, the issue of redefining the external borders of the United Kingdom is not insignificant. The challenges – whether maintaining past situations, such as Gibraltar and the Channel Tunnel, or the new concerns surrounding the relationship with the Republic of Ireland – are serious, but they are not of the same nature.
1. The open wound of Calais
From the point of view of the continent, Brexit immediately reignited the controversy surrounding the abnormal situation which has existed in the Calais region for over ten years. It is quite understandable perhaps that, after the UK leaves the EU, there would no longer be a reason for France to guarantee the exercise of British border controls on its territory.
But it is a bit more complicated than that.
Firstly, in law, the issue is essentially regulated by a bilateral agreement, and the current situation results from a combination of different factors addressed by texts of different type and scope. The first factor relates to the fact that the Channel Tunnel and its traffic require specific solutions to control flows of people, not to mention the constraints related to maritime traffic.
Since 1986 and the Treaty of Canterbury, the authorities of both states, including François Mitterrand and Margaret Thatcher, agreed to waive standard border control processes. By disconnecting the question of delimiting the physical border, located at sea on the dividing line of the two continental shelves, from the question of police and customs checks, which operate on the territory of each state in Gare du Nord and St Pancras Station, both states committed themselves to a difficult path of bilateral cooperation.
On 25 November 1991, to supplement the Treaty of 12 February 1986, the two countries signed the Protocol concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance Relating to the Channel Fixed Link, known as the “Sangatte Protocol“. This text was strengthened by an additional protocol on the establishment of Bureaux Responsible for Controls on Persons Travelling by Train between the United Kingdom and France, signed on 22 May 2000. Both agreements sought to enhance the means to fight against illegal immigration, but were soon unable to respond to the dramatic situation of Sangatte, whose sinister reputation was justified.
Attracted like moths to a flame by a British system perceived by them to be a paradise, thousands of third-country nationals, mostly irregular and sometimes seeking international protection, have ended up in inhuman and degrading conditions in the dead end that is Calais, as the French National Consultative Committee on Human Rights (CNCDH) vigorously condemned in a recent 2015 opinion.
Hence the conclusion of the Treaty of Le Touquet in 2003, under the leadership of the then Interior Minister Nicolas Sarkozy: to close the Sangatte camp and accentuate and perpetuate the collaboration with the British authorities through human and financial compensations. All this while maintaining ever obvious consequences: confining migratory pressure to a few square kilometres in France of those seeking to be smuggled into the United Kingdom. Hence, the reinforcement of the measures in a new arrangement in 2014, without however releasing migratory pressure, regardless of the claims of France’s current Interior Minister.
The most baroque aspect of the whole situation is rarely reported at face value: the Calais impasse shows that it is easier to enter irregularly into the Schengen area, as migrants in Grande-Synthe have done, than to leave towards Britain, a non-member state of the Schengen area.
Of course, the strictly bilateral character of this deal has not escaped anyone, and has only grown more prominent as the risk of a Brexit became more likely. The possibility of ending these agreements was therefore raised by some parties.
This is, in fact, legally possible under article 25 §2 of the Franco-British Treaty, which states that “each party can terminate at any time by notifying the other through the diplomatic channel, which shall take effect two years after such notification.” Everything would depend on an act of political will by the French authorities.
Still, in law, the answer to this question is less obvious than it seems. Certainly, emerging from the EU, the UK is likely to unburden itself of its commitments in asylum policy, notably the Dublin Regulation, which requires states to take back the asylum seekers who have passed through their territory. Allowing Britain to shrug off their responsibilities (despite some tentative gestures of goodwill towards unaccompanied minors selected by the CNCDH), is an outrageous situation, but one which keeps the peace for the British.
Nonetheless, from the perspective of borders, the British-French border has already been – and will remain – an external border of the Schengen area, of which the United Kingdom was never part. Its removal does not fundamentally change the situation concerning the obligations on each party or any other obligation weighing on France.
Thus, the Schengen Borders Code, to which France is subject, expressly emphasises in particular in Article 8, an obligation on the Member States, even if minimal, to control the crossing of the external borders by those leaving the common area. The reasons for this relating to public order are easily understood, regardless of the Touquet Treaty. This is especially true considering what has been said of the free movement of terrorists in the Schengen area during the attacks in Paris and Brussels in this regard.
Beyond this legal situation, in fact, there are additional considerations explaining the public pronouncements by French authorities hostile towards change.
The first is undoubtedly linked to the precariousness of the migration situation in France. If it was French cowardice which led it to shelter from the storm of the migration crisis that hit its main neighbours in 2015/2016 – which is particularly visible when one thinks in terms of volume rather than percentage of immigrants arriving in France – Paris intends to continue in this vein. Its main fear is the possibility of triggering a real “pull factor” if it were to denounce the Le Touquet agreements, as such a denunciation would, in its view, send a message of opening up to the outside world, even if this risk is overestimated. The difficulty of crossing the English Channel remains just as great in practice with or without Franco-British cooperation, and this message would not necessarily lead to improved chances of crossing the Channel. The French position is that of deterrence, and anything which runs counter to this strategy is therefore proscribed.
The second reason is that of security. It is systematically put forward by the French Minister of the Interior to reject the rhetoric which claims that migration will cease once the checks in favour of the United Kingdom disappear and that the British should somehow “pay” for their exit. This is the discourse not only of the opposition, but also of the government, if we listen to the Minister of the Economy. Unquestionably from this point of view, considerations relating to trafficking in human beings and other kinds of trafficking, as well as concerns related to terrorism such as the security of premises and facilities, lead to the maintenance of the status quo.
Even if we were to weigh the advantages and disadvantages of both the status quo and a denunciation of the agreements, despite the political price of public opinion, the first option seems to win out in the end, if one is to believe the concurring statements of the President of the French Republic, the Minister of Foreign Affairs and Minister of the Interior. Especially as the Franco-British relationship is about more than this one issue and there is no doubt that the French side will argue from this disadvantaged position in order to obtain compensation in another area under discussion.
Finally, a common sense reasoning requires caution: how can we concretely imagine a dismantling of port and rail facilities which currently secure the border where thousands of people have gathered, with an increasing number willing to travel by force onto British territory? How do we calmly consider the hypothesis of possible illegal maritime crossings like those of the Mediterranean in one of the busiest waterways in the world, under the sole pretext of making a defaulting partner “pay”? It is therefore likely that the only long-term support that poorly treated migrants refused by the Republic and the United Kingdom will receive is the attention that NGOs will give to their struggles.
2. The imbroglio of Northern Ireland
From the point of view of the British Isles, the most sensitive issue is likely the Irish question. Though insular, the position of the British Isles now poses a problem: each of the two states will have a different status in the European Union.
In fact, until now, the strength of ties that united the UK and the Republic of Ireland were the reason why, despite some Irish tendencies to the contrary, these two Member States have adopted the same attitude of rejection against the Schengen area of free movement. Hence a very special border relationship between the two states, both in general but also on either side of the 500 kilometre border which unites them and seems destined tomorrow, in all likelihood, to separate them.
In other words, the Irish border – a border which has never had any immigration controls – would become the only external land border of the European Union with the United Kingdom, other than the question of Gibraltar.
This relationship is based on two major texts: the peace agreement for Northern Ireland, known as the “Good Friday Agreement” signed on 10 April 1998 and, more importantly, the Common Travel Area (CTA) established 20 years ago, whose importance was formalised in the Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community in the UK and Ireland in the Treaty of Amsterdam, and was reiterated in the treaty of Lisbon.
The existence of the CTA means that British and Irish citizens traveling between the two states are not subject to passport checks and may even travel without documentation, and that the two countries have also developed bilateral cooperation on issues relating to immigration and border control (Amendment Order 1975).
Making the best of a bad situation, the Republic of Ireland therefore aligned itself with the United Kingdom’s uncompromising refusal to join the Schengen area, as the disadvantages of renouncing the CTA prevailed. However, in its Declaration No 56 attached to the Treaty on European Union, Ireland stated its “commitment to the Union as an area of freedom, security and justice respecting fundamental rights and the different legal systems and traditions of the Member States within which citizens are provided with a high level of safety” and recalled that “in accordance with Article 8 of the Protocol it may notify the Council in writing that it no longer wishes to be covered by the terms of the Protocol. “
The border between Northern Ireland and the Republic of Ireland will no longer be just an internal border within the British Isles, but will become an external border of the Union. This obviously raises a major question, not only for the 20 to 30,000 people who cross the border daily, but also for the EU and the two states concerned.
The people of Northern Ireland, who mostly voted to remain in the Union, made no mistake about the economic and political impact of an immediate departure. The remainder of the United Kingdom has decided otherwise, with the sirens of the Leave campaign presenting the Norwegian example as a model to achieve, and has now left everyone hanging in the balance.
One could indeed conceive that, ideally, an area of free movement as large as possible can be maintained between the two parties, as is claimed by some Northern Irish authorities, but this wish is facing a major obstacle. The free movement of people, which is one of the integral requirements of the European Community has been called into question by the British “no”, which lumped together EU and non-EU migration. It is therefore difficult to imagine any compromise on this matter of principle. This goes for the British side too, which made external border control a campaign argument, but Boris Johnson and Nigel Farage should not forget that Norway, too, is part of Schengen.
This impasse thus opens a double political risk that the Union will have to take, because it will no longer be an Irish case led by Irish negotiators, but a European one, with the transparency required of such a situation. First, a domestic risk to the Northern Ireland, as we know that the peace made in the last two decades owes so much to precisely this regime of free movement, and as it is feared that the return of the border would revive tensions and could pose a threat civil peace.
Second, there is an internal risk within the UK, as Northern Ireland begins to measure the concrete consequences of a departure from the Union on its economy, agriculture and relationship with its southern neighbour.
3. The threat of Gibraltar
From the point of view of another Member State, the Kingdom of Spain, Brexit raises another controversy relating to the status of Gibraltar. Populated by 33,000 inhabitants and a significant number of monkeys, the 6 square kilometres have been under British sovereignty since the Treaty of Utrecht in 1713.
From managing its part of the airport runway to raiding fishermen, without forgetting the European Parliament elections which were examined by the Court of Justice, these issues are all regularly a pretext for and the subject of tensions between the two Member States, sometimes going as far as to block the border and land access. If Brexit becomes a reality, it will be for the protagonists to devise a solution.
The Spanish view is clearly not nuanced. The Spanish foreign minister immediately stated: “we must now figure out what kind of relationship Gibraltar wants.” His vision is simple and his conclusion clear: “Our formula is that of British-Spanish co-sovereignty for a limited period, leading to the return of Gibraltar” to Spain, and “the prospect of the Spanish flag flying Gibraltar is getting closer.”
The authorities of the Rock, though fiercely supporting the status quo since the plebiscite referendum of 2002, thus resigned to explore ways to maintain their access to the European Common Market and their tax haven status, even if this means aligning itself with the diplomatic position of Scotland. If the spectre of the Falklands seems further away after Brexit, must we now revisit the spectre of Hong Kong’s status?