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WTO 'equal treatment' rules were not mentioned anywhere in the Good Friday Agreement (GFA) when it was first formulated in the late 1990s. But do Global Trade rules implicitly and automatically supplement the GFA such that if the EU chose to uni-laterally erect a border violating the GFA, and Rep Ireland (or even the EU themselves) chose to take the UK to a Global (i.e. non-ECJ) Court regarding the GFA violation alone (i.e. notwithstanding WTO rules), the UK could turn round, point the finger at the EU, and say ‘They put up the border under their own choosing and therefore violated the GFA, we didn’t. So they must be punished’. Or can the EU have a very legitiate claim that they were ‘acting in the (economic) self-defence of Rep. Ireland and the Single Market, and the GFA violation was unavoidale collateral damage’ ??? It is a somewhat analagous situation where somebody is threatening to kill you and there is one other person present with him but not threatening you, and in your self defence you end up killing that third person as a by-product, even though it was not your original intention.

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  • Sorry, but what exactly is the question here? – F1Krazy Sep 16 '20 at 15:19
  • Basically, If the EU puts up a land border in Ireland, can Rep Ireland say it was the UK that violated the GFA? Or can the UK say 'No, it was the EU that violated the GFA'? – Pat-S Sep 16 '20 at 15:22
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    There are two problems with the premise of this question: first, the EU cannot erect border controls on the border between the United Kingdom and the Republic of Ireland. Only the United Kingdom and the Republic of Ireland can do that. Second, the GFA says nothing whatsoever about border controls, so it's not at all clear that implementing them would constitute a violation of the GFA. Therefore, the facts contemplated in the question will never present themselves. @FluidCode what do you mean by "hopefully"? The UK has already left the EU. – phoog Sep 18 '20 at 4:17
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    @phoog. No. Actually with the temporary status proposed by Theresa May the UK didn't fully leave the EU. Basically since the referendum result more than 3 years ago they set themselves on the threshold shouting "we are leaving!", but with no intention of actually doing so. For the moment they remain with one foot in and one foot out drawing huge amount of time and resources from the EU to attend their spoilt child attitude. – FluidCode Sep 18 '20 at 14:33
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    @phoog I think FluidCode is right on this one. The UK is currently in a transition phase where it basically works the same way as before. At some point the transition period expires (which is set to happen in January, I think). If at that time no new agreement is reached between the EU and the UK then the UK becomes a third country. If we all pretend nothing happens, then some other country could file a case with the WTO claiming the EU favors the UK by keeping the border open (which it doesn't do for other countries). (I don't know the specific legal argument, but this is a starting point) – JJJ Sep 26 '20 at 2:35
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if the EU chose to uni-laterally erect a border violating the GFA

The EU cannot do that.

The border on one side is controlled by the UK Government and the sort-of-not-completely independent Northern Irish (NI) government and on the other side by the Republic of Ireland (ROI).

All the EU could do is say to the ROI that they consider an open border with NI which has no trade deal with the EU single market to be a danger to the integrity of that market.

ROI certainly would erect customs posts if needed (in the event of a No-Deal Brexit). The EU Single Market is vital to Ireland's economy and risking exclusion or penalties (e.g. EU tariffs) is not an option the ROI can risk.

and Rep Ireland (or even the EU themselves) chose to take the UK to a Global (i.e. non-ECJ) Court regarding the GFA violation alone (i.e. notwithstanding WTO rules), the UK could turn round, point the finger at the EU, and say ‘They put up the border under their own choosing and therefore violated the GFA, we didn’t. So they must be punished’. Or can the EU have a very legitimate claim that they were ‘acting in the (economic) self-defense of Rep. Ireland and the Single Market, and the GFA violation was unavoidable collateral damage’ ???

It is the nature of politics that any side can make any accusation or claim they like whether they made sense or are true or patently false. So yes, anyone can say what they want. It's a certainty that they will.

It is, however, unrealistic for the UK to say it did not understand the EU/ROI would be obliged to enforce the integrity of the EU Single Market as this has been pointed out from even before the Brexit referendum.

The best bet for Ireland is to be a loyal member of the EU and hope that the promised "we've got your back" the EU have repeatedly stated will turn out to be true. There is no upside for the ROI in getting into a fight with the EU. So borer posts are (and always were) a certainty in the event of a No Deal regardless of who claims someone else is to blame.

It is worth pointing out that there is basically no political disagreement within the ROI about following that course. While the UK is internally at war with itself, the ROI and EU (and US) positions are solid, unwavering and unchanged without any serious internal political or legal objections. The ROI has no pressure from the US or the EU to change it's stance.

It is a somewhat analogous situation where somebody is threatening to kill you and there is one other person present with him but not threatening you, and in your self defense you end up killing that third person as a by-product, even though it was not your original intention.

I think this is too extreme an analogy.

Politics is about compromise, but there are laws and international agreements that prevent all compromises being possible.

We're not talking about the EU or the UK threatening war and death. It is certainly a real fear that a so-called hard-border would create conditions for a resurgence of the terrorism that devastated NI for decades, but it's not a certainty. A severe economic downturn for NI is a certainty for a hard-border - the NI economy actually does depend to an enormous extent on the EU Single Market and in particular on access to the ROI market to survive.

There is no real court the UK, ROI or EU could be taken to to force any or all of them to do anything. However the effect of tariffs, no trade deals and what could well become a fisheries war (yet more insanity the UK seem determined to follow) will be devastating. But the bulk of that devastation would be to the UK as the EU has enough bulk and power and trade deals elsewhere to compensate.

Note that fisheries wars have, in the past, led to actual real warfare warships firing on what I think can be best described as hostile fishing trawlers. That kind of madness could lead to a real war, so this turn of events is appalling and arguably a greater threat to the peace of the UK and the EU than any other part of the Brexit problem.

What seems certain is that if the UK creates laws that damage the GFA then it will not get a trade deal with the USA, the EU or indeed Canada (who are in "talk to us after you have an EU deal" mode). It does seem pretty clear from this that the UK is not viewed as "defending itself" but of "recklessly endangering" the GFA and NI.

Given this, and the clout these blocs have in terms of influencing international trade and tariffs and policy globally, they are, in effect, the police. And in effect the police are shouting warnings to the EU through loud hailers saying "don't do this or you'll be the one we punish". Whether any particular person considers the UK right or wrong won't make any practical difference to the judgement that follows those kind of warnings.

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  • @CGCampbell I would be fine with you proposing an edit to correct that. Grammar ain't my best skill. :-) – StephenG Oct 1 '20 at 17:07
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    Shoulnd't it be "UK" instead of "EU" in the sentence "And in effect the police are shouting warnings to the EU through loud hailers" in the last paragraph? – Schmuddi Oct 1 '20 at 17:14
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    @StephenG I apologize in that I think I corrected some UK English spellings to US English, which is usually frowned upon, but in this case was because replacing "each" with "one" was not enough of an edit at my rep. – CGCampbell Oct 1 '20 at 17:18

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