BOR­DER IS A SIDESHOW, IF YOU’RE AN EEL

Brexit talks on Ire­land aren’t just about the Bor­der – threre are 142 ar­eas of North-South co-op­er­a­tion that also cover trade, tourism . . . and eel mi­gra­tion

The Irish Times - Weekend Review - - NEWS REVIEW - Pa­trick Smyth

Europe Ed­i­tor

The au­tumn spawn­ing mi­gra­tion of the Euro­pean eel ( s. An­guilla an­guilla) to the Sar­gasso Sea is one of the great an­i­mal mi­gra­tions.

It is an ar­du­ous 6,500km jour­ney from Europe’s in­land wa­ter­ways for the se­ri­ously en­dan­gered species which is threat­ened by his­toric over­fish­ing and the degra­da­tion and loss of its habi­tats due to land recla­ma­tion, the con­struc­tion of dams and re­duc­tions in wa­ter qual­ity.

And now at­tempts to con­serve the Ir­ish branch of the fam­ily have been, at the very least, com­pli­cated by, of all things, Brexit, their fate tied to the prospects for main­tain­ing a fric­tion­less Bor­der be­tween North and South on the Erne river at Ballyshan­non.

The de­cline of eel stocks in Lough Erne, where com­mer­cial fish­ing has been halted, has been at­trib­uted in part to the at­tri­tion of both elvers en­ter­ing the river from the At­lantic and of de­vel­oped sil­ver eels de­scend­ing from Lough Erne through the tur­bines of the ESB hy­dro­elec­tric power sta­tion.

The EU re­quires mem­ber states to de­velop eel man­age­ment plans and to take mea­sures to en­sure that at least 40 per cent of adult eels can es­cape from in­land wa­ters to the sea where they spawn. On the Erne that has meant the sea­sonal de­ploy­ment of lor­ries with aer­ated wa­ter tanks to trans­port trapped live eels around the tur­bines.

The pro­tec­tion of the eel is just one of 142 ar­eas of North-South co-op­er­a­tion that are un­der­pinned by joint obli­ga­tions to EU reg­u­la­tions and to the Belfast Agree­ment, and which form a key part of the Ir­ish strand of the Brexit dis­cus­sions.

Com­plex in­ter­de­pen­dence

They are a mea­sure of the com­plex in­ter­de­pen­dence of both the cross-Bor­der re­la­tion­ship and the scale and scope of the talks process.

For the most part there is no ques­tion of the UK wish­ing to re­pu­di­ate any of pro­grammes that range from en­vi­ron­men­tal projects to cross-Bor­der hospi­tals, but EU ne­go­tia­tors and their UK coun­ter­parts have to work on le­gal lan­guage to cop­per­fas­ten their post-Brexit fu­ture.

The eels – pro­vi­sions for safe­guard- ing the EU’s man­age­ment plan and reg­u­lat­ing the cross-Bor­der trans­port of live an­i­mals – will have their spe­cial place in An­nex 2.8 of the Ir­ish pro­to­col to the Brexit di­vorce deal, the With­drawal Agree­ment, cur­rently be­ing dis­cussed by the two sides.

Dis­cus­sions about the con­tro­ver­sial Bor­der “back­stop” – an agree­ment would fully align North­ern Ire­land with the rules of the EU to avoid a hard Bor­der – have tended to catch the head­lines and eclipse what can seem the more hum­drum but nev­er­the­less vi­tal is­sues.

Nec­es­sary con­di­tions

As the pro­to­col makes clear, how­ever, the range and de­tail of the dis­cus­sions is huge – as well as en­sur­ing free trade in goods, the pro­to­col says it shall also “be im­ple­mented and ap­plied so as to main­tain the nec­es­sary con­di­tions for con­tin­ued North-South co-op­er­a­tion, in­clud­ing in the ar­eas of en­vi­ron­ment, health, agri­cul­ture, trans­port, ed­u­ca­tion and tourism, as well as en­ergy, telecom­mu­ni­ca­tions, broad­cast­ing, in­land fish­eries, jus­tice and se­cu­rity, higher ed­u­ca­tion and sport”.

Guar­an­tee­ing many of th­ese, Ir­ish of­fi­cials stress, is also de­pen­dent on un­hin­dered move­ment across the Bor­der – the ne­ces­sity for a Bor­der deal per­me­ates the en­tire pro­to­col.

It also con­tains pro­vi­sions to safe­guard the com­mon travel area be­tween the Repub­lic of Ire­land and the UK, for joint cit­i­zen­ship pro­vi­sions for North­ern Ire­land, and to “re­spect the con­sti­tu­tional sta­tus of North­ern Ire­land and the prin­ci­ple of con­sent”.

It re­quires the UK to guar­an­tee that there is “no diminu­tion of rights” caused by its de­par­ture from the EU, in­clud­ing in the area of pro­tec­tion against forms of dis­crim­i­na­tion en­shrined in EU law.

The Ir­ish pro­to­col cur­rently runs to eight pages of the 129-page With­drawal Agree­ment, which is now be­ing turned into le­gal treaty lan­guage.

The chal­lenge EU lead­ers have set them­selves is to com­plete broad agree­ment on the treaty text by June, so that it can be fi­nalised by Oc­to­ber and then be put to mem­ber states and the Euro­pean Par­lia­ment for rat­i­fi­ca­tion ahead of the UK’s de­par­ture at the end of March, 2019.

The With­drawal Agree­ment con­tains the agree­ment on tran­si­tion, or the “im­ple­men­ta­tion pe­riod” as the UK calls it, and, like the rest of the text, it stands or falls on agree­ment on the whole pack­age, in­clud­ing the Ir­ish pro­to­col.

The im­por­tant par­al­lel dis­cus­sions now un­der way on the “fu­ture re­la­tion-

The chal­lenge EU lead­ers have set them­selves is to com­plete broad agree­ment on the treaty text by June

ship” be­tween the EU and UK, es­sen­tially the fu­ture trad­ing re­la­tion­ship, are also con­di­tional on no “back­slid­ing” on the agree­ments made in De­cem­ber in the “Joint Re­port” be­tween the EU and UK which is re­flected in the With­drawal Agree­ment.

Brus­sels and Dublin are adamant that un­less the UK hon­ours its com­mit­ment to the “back­stop” pro­vi­sion of that De­cem­ber agree­ment, the fu­ture re­la­tion­ship talks will stop and the With­drawal Agree­ment and the tran­si­tion deal will be put in jeop­ardy.

Those talks are set to pro­duce a po­lit­i­cal out­line of a fu­ture trad­ing re­la­tion­ship which will be ap­proved with the With­drawal Agree­ment, al­though not hav­ing the same le­gal stand­ing. A trade treaty can be agreed only once the UK i s no l onger an EU mem­ber-state.

The With­drawal Agree­ment text is colour-coded to re­flect dif­fer­ent stages of agree­ment – cur­rently 15 per cent of the pro­to­col is in green, ef­fec­tively agreed, 37 per cent re­mains in yel­low, on which there is po­lit­i­cal agree­ment on ob­jec­tives but not on draft­ing, and 47 per cent is white or un­coloured, un­a­greed. There is much still to do.

Most of the pro­to­col white text re­flects how the EU sees the op­er­a­tion of the “back­stop” ar­range­ment – the Bor­der fall­back guar­an­tee should the UK prove un­able to come up with and agree with the EU-pre­ferred sce­nario for pre­vent­ing a hard Bor­der.

The With­drawal Agree­ment text on safe­guard­ing hu­man ri ghts post- Brexit re­mains in yel­low – the UK is un­der­stood to ac­cept in prin­ci­ple that there should be “no diminu­tion of rights, safe­guards and equal­ity of op­por­tu­nity” in the North. How­ever, the lan­guage pro­posed by the com­mis­sion re­mains prob­lem­atic, and the full enumeration of such rights in the an­nex to the treaty pro­to­col has yet to be agreed.

The range of th­ese rights goes well be­yond the is­sues of dis­crim­i­na­tion, equal­ity and iden­tity that are tra­di­tion­ally seen as cen­tral to the con­flict – gen­der rights leg­is­la­tion, for ex­am­ple, or car­ers’ rights, or fam­ily law ar­range­ments, in­clud­ing cus­tody and main­te­nance is­sues, may have their roots in EU leg­is­la­tion.

Al­though most of such reg­u­la­tions will be in­cor­po­rated au­to­mat­i­cally into UK law by means of the Euro­pean Union ( With­drawal) Bill, cam­paign­ers in the North worry over the aban­don­ment by the UK of obli­ga­tions un­der the EU’s Char­ter of Fun­da­men­tal Rights.

“The EU Char­ter acts as an im­por­tant con­sti­tu­tional safe­guard un­der­pin­ning hu­man rights pro­tec­tions in North­ern Ire­land and its re­moval weak­ens the qual­ity and range of hu­man rights pro­tec­tions avail­able here,” the North­ern Ire­land Hu­man Rights Con­sor­tium warns.

‘Equal­ity stan­dards’

The EU’s pro­to­col text pro­poses that “The United King­dom shall con­tinue to fa­cil­i­tate the re­lated work of the in­sti­tu­tions and bod­ies set up pur­suant to the 1998 Agree­ment, in­clud­ing the North­ern Ire­land Hu­man Rights Com­mis­sion, the Equal­ity Com­mis­sion for North­ern Ire­land and the Joint Com­mit­tee of rep­re­sen­ta­tives of the Hu­man Rights Com­mis­sions of North­ern Ire­land and Ire­land, in uphold­ing hu­man rights and equal­ity stan­dards.”

Ir­ish of­fi­cials are said to be con­cerned at the lack of spe­cific com­mit­ments to ringfence such fund­ing.

Other non- Bor­der is­sues such as UK ad­her­ence to EU “state aid” rules – to pre­vent un­fair com­pe­ti­tion through state sub­si­dies – and the chal­lenge of cus­toms- free “tran­sit” for Ir­ish lor­ries and goods across the UK to EU mar­kets also re­main un­a­greed.

Al­though not men­tioned in the Ir­ish pro­to­col, and in the­ory an is­sue for the post-Brexit fu­ture re­la­tion­ship talks, be­cause it is an is­sue of spe­cific con­cern to Ire­land and not other mem­ber- states, Ir­ish of­fi­cials are keen to see the is­sue taken up in the Ir­ish talks strand.

The UK sig­nalled as far back as last Au­gust that it is will­ing to sign up to mem­ber­ship of the Com­mon Tran­sit Con­ven­tion to fa­cil­i­tate the tran­sit trade in both di­rec­tions, and there are prece­dents us­ing seals on lor­ries. But there are con­cerns at how the Ir­ish lor­ries will be able to by­pass po­ten­tially long cus­toms queues at ports such as Dover. Tran­sit across North­ern Ire­land will also re­quire main­tain­ing har­monised trans­port reg­u­la­tions such as recog­ni­tion of hauliers’ li­cences.

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The Euro­pean eel: At­tempts to con­serve the Ir­ish branch of the species have been com­pli­cated by Brexit. IL­LUS­TRA­TION: DEAGOSTINI/GETTY

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