Since the Brexit referendum, Prime Minister (PM) Theresa May’s administration has been under a constant barrage of legal entanglements and challenges. However, the issue of the Irish border could pose an existential risk to the Prime Minister’s efforts in achieving a hard Brexit. PM May has been incredibly clear that she intends to pull the United Kingdom out of the European Customs Union and the Single Market. But even if the Prime Minister’s administration manages to renegotiate bilateral trade agreements between Downing Street and Brussels, the question of the Irish border essentially stops any attempts of reaching a compromise.

The problems of Theresa May’s government in solving the Irish border dilemma traces back to the early twentieth century when Ireland was still a unified state under British rule. In 1920, The English Parliament passed a law that essentially partitioned Ireland into two distinct provinces, which later became the boundaries between the present Ireland and Northern Ireland.  However, a war of independence broke out between Irish nationalist forces and the British army which dissolved into a bloody conflict. Both sides managed to find compromise and established the Anglo-Irish Treaty of 1921. The agreement essentially allowed the Irish almost full sovereignty over their nation as a “free state” under the conditions that they were still a dominion under the British monarch. The treaty also stipulated that Northern Ireland had the choice of opting out of the agreement. This greatly marginalized the pro-republic factions of Northern Ireland as they felt the British gerrymandered their communities, forcing them to live with Irish unionists (the pro-British faction of Northern Ireland). This subsequently led to a civil war in Ireland that put Irish republican forces against Northern Irish Unionists and the Pro-free state treaty forces of Southern Ireland.

Although the Pro-free state forces managed to win the war, the question of full Irish independence still prevailed in the minds of many Northern Irishmen. It is important to note that the Irish Unionists and the Pro-Irish republican factions of Northern Ireland were also divided among religious ties. An overwhelming majority of Irish Unionists were Protestants, while Irish republican factions identified with their Southern counterparts as Roman Catholics. This religious divide as well as diametrically opposed political wills ultimately spiraled out of control during a dark period of Irish history known as “The Troubles.”

After a series of public protests and marches that campaigned against systematic discrimination by a Protestant majority government in Northern Ireland against Catholics, the political climate disintegrated into a hostile environment. Violence from police forces was countered by a rise of Pro-republic paramilitary organizations like the IRA (Irish Republican Army) which was also met with the rise of a loyalist paramilitary group called the UVF (Ulster Volunteer Force).

The fighting between each faction almost threatened to destroy Ireland, but was only halted by a peace agreement between the British and the Irish Argument. The Belfast Agreement, also colloquially called the “Good Friday Agreement,” ended the conflict in Northern Ireland and set a framework for normalizing the relationship between Northern Ireland and the Republic of Ireland. Among many political changes, the agreement stated that Northern Ireland would still remain a part of the United Kingdom and only by way of a popular referendum would the Northern Irish provincial government agree to merge with their Southern counterpart. This fundamentally solidified the current relationship between the Republic of Ireland and the United Kingdom. However, this relationship has essentially become problematic with the Brexit referendum.

The Good Friday Agreement made an underlying assumption that peace would be perpetuated as long as Ireland and the United Kingdom are all part of the European Union. However, with the Brexit referendum fully established in 2016, the question of the Irish Border became the centerpiece of Theresa May’s efforts of renegotiations with Brussels. The problem fundamentally lies in the geography of the United Kingdom. Before Brexit, the English Isles shared the same economic borders with Ireland due to their status as EU member states. However, as Britain slowly make their way out of the European Union, the border between the United Kingdom and the rest of the EU will become the demarcation which separates Northern Ireland and the Republic of Ireland. This becomes incredibly problematic as a post-Good Friday agreement essentially dissolved any border between the two nations. Businesses and workers have adapted to the lack of a border and rely on a free movement of goods and services to operate successfully. The Brexit negotiations, however, severely complicated this.

Before the Brexit referendum, the border between Ireland and Northern Ireland was never strictly enforced due to both countries being a part of the EU, which subsequently lead to a lack of need to inform customs checks on goods. However, if Britain left the customs union as Theresa May has outlined in her Brexit plans, this would force a hard border between the two countries as goods would need to be screened to meet EU customs standards in order to enter Ireland. Not only does this force the need of an actual border to be built, but it severely hurts the economies of local towns and cities. Furthermore, even Irish police forces have publicly stated that border checkpoints would reinvigorate old tensions that could lead to a rise in internal conflict.

Some conservatives in the UK Parliament have proposed advanced technology to be placed at the Irish border to screen goods crossing each side. However, PM May’s administration has stated that no such technology exists that could administer that level of screening at such a precise volume. Other conservatives have suggested that a “backstop” would be necessary in order for Brexit re-negotiations to continue. Theresa May has proposed that a “special customs and trade arrangement with the EU” would be established during a 20-month transition period that would ameliorate conflicts within the Irish Border. However, the Irish governments want an insurance policy to guarantee smooth trade relations if negotiations with the EU fail. A “backstop” is the last resort plan May’s administration has suggested and that would essentially force Northern Ireland to comply with EU law until renegotiations have been solved with Brussels. However, there are many political implications to this “backstop” plan, as well as legal predicaments.

The most obvious political problem PM May faces with this backstop plan is the growing opposition from the Democratic Unionist Party from Northern Ireland. PM May’s majority government in parliament is actually comprised of two major factions: the conservatives and the DUP. The DUP fundamentally oppose the backstop plan because it would essentially set an economic barrier between the English mainland and Northern Ireland. Furthermore, without full support from the DUP, the conservatives cannot maintain a majority in parliament and will subsequently lose control of their government. Therefore, PM May’s administration has been incredibly hesitant to push the initiative forward.

Furthermore, several questions of legality rise from this backstop plan. If the backstop plan allowed for Northern Ireland to comply with EU law, they would essentially have to become a sovereign state. “Plainly, Northern Ireland is not a sovereign state, and the question, therefore, is whether amendment of the EEA Agreement might open something of a ‘Pandora’s box’ in terms of regional demands for recognition in other organizations.” Allowing Northern Ireland to act as a sovereign state not only goes against the precedent stated by the Good Friday Agreement, but it also suggests that Northern Ireland is not a direct province of the United Kingdom. Secondly, if Britain forces Northern Ireland to become a hybrid state, EU law would have to fundamentally change in order for this to be allowed. “EU law would not be able to accommodate a hybrid option if that would allow the UK more broadly to benefit from hybridity in respect of one its component parts…A hybrid option that allows Northern Ireland to remain a part of the UK whilst also having special rights as regards the EU might challenge that rule.” Lastly, the Good Friday Agreement states that in order for the Northern Irish people to leave the United Kingdom, they must go through a popular referendum. If the backstop plan would be implemented, it would be a direct violation of that law and would subsequently leave Northern Ireland without an answer.

As the Brexit deadline looms in the horizon, PM May and her administration must be able to effectively re-negotiate trade agreements with the rest of EU while allowing the Northern Irish people the right to decide their own political destiny. Talks of a second popular referendum by Scotland to stay in the European Union has further galvanized talks of an Irish referendum to the Brexit question. These issues must be decided by the Irish people before any talks of Brexit can continue.