From Britain and Ireland to Cyprus: Accommodating Divided Islandss in the EU Political and Legal Order

Abstract

In the Brexit referendum of 23 June 2016, England and Wales voted to leave the EU, while Scotland and Northern Ireland voted to remain. Following that, there has been a debate about how it would be possible to achieve the continuing EU presence of the UK constituent nations that do not want to be taken out against their will. This paper explores two pathways for Scotland and Northern Ireland to remain in the EU. The first entails the achievement of Scottish independence and the reunification of Ireland through democratic referendums. To this effect, the paper reviews the right of secession of those two constituent nations under UK constitutional law and revisits the debate on the appropriate legal basis regulating Scotland's future EU Accession. The second pathway explores how it would be possible for Scotland and Northern Ireland to remain in the EU even without seceding from the UK. In order to do that, the paper points to the remarkable flexibility of the EU legal order to accommodate the differentiated application of Union law. By focusing on Cyprus, in particular, the paper assesses the possible challenges that such an arrangement would entail.

Brexit and the changing international and domestic perspectives of sovereignty over Northern Ireland

“…Alternatives to a customs border were proposed, for example, drawing on the way in which the EU treats the island of Cyprus, where flexible rules are applied that allow goods from the Turkish Cypriot part of the island to enter the EU as EU goods. 27 While the Cypriot border remains closed for political reasons, the same legal flexibility in Ireland could have allowed an open border-but only with special provisions for Northern Ireland. In the Brexit discussions the solution that received the most attention involved either the whole of the UK remaining in the single market (for a limited time period) or Northern Ireland only remaining in the single market, with a de facto customs and regulatory border on the Irish Sea, between Northern Ireland and Britain.…”

What Options are Available to Scotland to Remain within the EU Given the ‘Brexit’ Referendum Result?

“…As Skoutaris points out, 'Cyprus is the only Member State where the acquis does not apply to a significant part of its territory and there is a territorial border between the part where it applies and where it does not.' 9 The application of the EU's acquis is suspended in the northern part of Cyprus, which is effectively controlled by Turkey (Protocol No 10 of the Treaty of Accession 2003). As long as that suspension is not withdrawn Article 2 of the Protocol allows the Council to define the terms under which the provisions of EU law apply to the 'Green Line' i.e.…”