Dan O'Brien: 'Our only resort could be to forget the last resort'
Ireland's interests may soon require the backstop to be abandoned, writes Dan O'Brien
We are in a moment of great peril. The invisible infrastructure that allows life on the islands of Ireland and Britain to function as it does could shut down in just over 100 days. Such an unprecedented event could cause disruption many times greater than the 2001 foot and mouth outbreak and the 2010 grounding of flights owing to volcanic ash.
It is impossible to predict whether there could be shortages of imported goods, how serious those shortages could be and how long they might last. But there are real risks of major disruption to trade across the Irish Sea in the event of a no-deal Brexit. It is conceivable that the new trading regime, however chaotic in its initial stages, could be managed and the damage limited.
But it is just as possible, if not more so, that the Irish economy could slump and quickly slide into recession.
While the trade and economic issues around a no-deal Brexit are highly uncertain, there is less uncertainty about how such a rupture would affect relations among the peoples of these islands.
It is imperative that nobody has to find out how bad things could get.
If Britain does not agree to the terms of departure on offer from the EU and proceeds toward a no deal, whether intentionally or more likely by default, the Irish Government should rethink its position on the backstop to avoid the worst possible outcome for everyone.
This would not be easy. One of the many reasons that putting the backstop on the negotiating table was a miscalculation was because it has - inevitably - become politically totemic.
No elected representative publicly opposes it and the media has embraced it, asking few questions about what is one of the biggest foreign policy decisions in this State's history. Unless the national mood and the national conversions change, taking the backstop off the table will be difficult if not impossible for the Government.
If the conversation is to change, alternatives will need to be put forward. Here are three.
Last September this column suggested holding a referendum in Northern Ireland on which single market and which customs union people there wanted to belong to (these choices are, alas, binary).
Recent polling by LucidTalk suggests that there is a solid majority for staying with Ireland and the EU, with almost all those identifying as nationalists backing that choice and a third of unionists doing so.
If the people of Northern Ireland were to vote as this poll suggests, the British government would have cover to go along with it and, as the border issue would disappear, there would be no need for a backstop tying all of the UK to the EU's tariffs on goods imported from the rest of the world.
A referendum in Northern Ireland would have many drawbacks. Most seriously, it would heighten tensions between the two traditions. But given that there is some support among unionists, particularly in the business community, it may not be as divisive as might have been expected just three months ago.
It could also be sold on fairness grounds. As parity of privation in the Brexit fiasco, nationalists would lose EU membership and unionists would lose membership of the UK's customs territory.
Another option that needs consideration is customs checks only on the Republic's side of the border. That is because, if there is no deal, Ireland will be faced with the choice of putting up customs posts on the southern side of the border or ceasing to be a full member of the EU's single market.
Ireland's place in the European single market is what attracts foreign companies here and their presence is what has changed Ireland from a backwater to one of the continent's best-performing economies. Any question about full and permanent participation in it would raise questions for companies currently based here about their continued presence. It would also rapidly and seriously lessen the attractiveness of Ireland for companies considering where to base their European operations.
While nobody wants a border and there is deep and wide opposition to any infrastructure on either side of it, clarity is needed on the consequences of choices that may have to be made.
The Republic's entire economic model would be imperilled by exclusion from the EU single market. It is worth pointing out a united Ireland, which is looming into view, would be less likely if the Republic's economy were once again to become a backwater.
In return for removing the backstop provisions from the withdrawal agreement, Ireland and the EU could seek legally binding commitments from London that no infrastructure would ever return to the northern side of the border.
This is feasible, as discussed in detail below, despite quite a lot of talk in recent years that the UK would be obliged to police the border. Such a border would give assurance to communities on either side of it that barking British squaddies would never return.
Another concession that could be sought in return for removing the backstop is a greater role for the Irish government in Northern Ireland. If any kind of border goes up, no group would be more affected than nationalists in Northern Ireland. The depth of feeling is clear anecdotally from conversations and public commentary as well as from opinion polls.
EU membership gives a non-British dimension to the governance of the North. Brexit will reinforce the nature of Britishness of governance at a time when British politics is evolving in a way that can be viewed only as threatening, if not plain dangerous, by nationalists.
Guaranteed meetings of the Intergovernmental Conference under the Good Friday Agreement on a very regular and highly visible basis could be one way of reassuring nationalists post-Brexit. A discussion of Dublin-London joint authority in some areas around rights might also be worth exploring.
It is of course possible that the Irish-EU hardball backstop tactics end up causing Brexit to be abandoned altogether.
Talk of a second referendum is growing and the decision of the EU's highest court last week - that Britain could unilaterally withdraw its notice to leave - gives cause for hope to those on this side of the Irish Sea who believe Brexit is madness.
But it will be a close-run thing. As one Irish official told Bloomberg news agency last week: "This will either turn out to be an incredible diplomatic triumph by Ireland or a strategic mistake."
To close, a quick word on the World Trade Organisation and borders.
Policing borders usually gives greater security. The border on this island is unusual, although not unique, in that policing it has historically generated its own insecurities - border posts have provided targets for those who wanted to erase it and were prepared to use violence to that end.
After Brexit, Britain could choose not to put customs posts on its side of the land border if it wished - and, contrary to some suggestions, the WTO is not an obstacle to this.
The WTO is a member-led organisation. Unlike the European commission, which has some powers over EU member countries, the WTO's tiny secretariat in Geneva has no policing role.
If one WTO member believes another member has breached its obligations, a case can be taken to the organisation's judicial process.
It is possible in theory that an unpoliced Northern side of the border could result in a WTO case.
Brazil, to pick a country randomly, could claim that its exports to the UK were treated less favourably than exports from the Republic because they are checked on arrival in Southampton while southern-made goods would enter the North without British checks (this would be, it could be claimed, a breach of what is known in the jargon as the "most favoured nation" clause).
But even if such a case were to be taken in the future, London could cite Article 21 of the founding treaties of the WTO which allows governments to take trade-blocking measures in the interests of national security. Given the history of the Irish border, the UK would almost certainly win any case claiming British border posts were not a security risk.