This week, the now usual stories about the impact of the new UK-EU trading arrangements on consumers and the various issues faced by Britons with second homes in EU countries were overshadowed by the predictable, but nevertheless deeply saddening, news of a return of violence to the streets of Belfast and other towns and cities in Northern Ireland (NI).

Any reasonable commentator prefaced their analysis of the situation in Northern Ireland by saying that what is currently happening in NI is due to a complex set of circumstances – both long-term and short-term – and attributing it solely to Brexit would be an oversimplification.

But equally, there can be no doubt that the Johnson Government’s Brexit deal and in particular the Northern Ireland Protocol (NIP) have played a crucial role in the resurgence of violence. Unionist objection to the NIP has been one of the key Brexit-related stories since the end of the transition period on January 1st, 2021. Various commentators – including myself – have noted that the writing was – literally – on the wall for the situation to spiral out of control.

Ultimately, the outbreak of violence came less than a month after the Loyalist Communities Council (LCC) announced in a letter to the PM its withdrawal of support for the Good Friday Agreement until “our rights under the Agreement are restored and the protocol amended to ensure unfettered access for goods, services and citizens throughout the United Kingdom.” While the letter underscored that “that unionist opposition to the protocol should be peaceful and democratic,” David Campbell – chairman of the LCC – had earlier stated that unionists would "fight physically" against the NIP. The DUP too had threatened earlier to fight the NIP with “any means” at their disposal. Physical violence was hence on the cards. In this heated atmosphere, it comes as no surprise that other factors – such as the decision not to prosecute Sinn Féin politicians who allegedly broke Covid19 restrictions when attending the funeral of former IRA leader Bobby Storey – would lead to the flaring up of violence.

While there had been warnings about the impact of Brexit on the NI peace process, the pace at which slowly healing wounds were ripped open is still shocking. Arguably, this is the direct result of the UK government’s ‘identity politics’ strategy that turns Brexit into a cultural battle of ‘us against them,’ rather than addressing people’s very real political and economic concerns. This turns economic and political issues into questions of culture and belonging to a given group, which makes them very difficult to solve within the framework of pluralistic liberal democracy. Thus, Stephen Farry – MP for the northern Irish centrist, cross-community Alliance Party – stated that “[t]he problem is that unionism has decided to frame the protocol as an identity issue, and it’s very hard to see how you get round that and put the genie back in the bottle.”

It is no coincidence of course that Northern Ireland – with its painful history – is the place in the UK where the government’s identity politics have caused damage very quickly. However, old divisions may break up in other places very soon too and – if the current arrangement remains in place and the identity politics strategy continues – Brexit may become a serious centripetal force in other parts of the UK. Thus, while a second independence referendum in Scotland may very well go the same way as the first one – i.e. a majority of people voting to remain within the UK – Brexit means that Scots may have one less reason to vote in favour of remaining in the UK.

Yet, beyond the hugely important NI case (although it rarely makes the front page of British newspapers), the rapidly deteriorating situation in NI after the end of the Brexit transition period is a reflection of more fundamental issues with the current UK-EU post-Brexit arrangements. Indeed, it is hard to not see it as the logical consequence of the Johnson Government’s ‘hard Brexit’ strategy, which implied taking the UK out of the single market. This choice made a either a land border between the Republic of Ireland and NI or a sea border between Ireland and Great Britain inevitable. Since the EU – and the US – strongly objected to a land border on the island of Ireland – to safeguard the achievements of the Good Friday Agreement – and ‘hard Brexit’ taking off the table the option of the UK staying in the single market, the only other option was to have a border down the Irish Sea - even though conservative politicians still deny it exists.

There have been calls for the EU to be ‘flexible’ on the issue of Irish border controls, which can only mean the EU accepting the import of goods into the EU, which may not fully comply with EU rules and standards. However, asking for this sort of flexibility essentially means denying the EU the right to set and enforce its own rules for its internal market, which is of course the very same right that Brexiters invoke as main reason for wanting to leave the EU. It seems unlikely that what is unacceptable to the UK government will ever be acceptable to the EU. Therefore, in the long run, any future arrangement between the UK and the EU will have to acknowledge that the EU will insist either on checks at its external borders, or far-reaching alignment on rules and standards beyond them. The UK’s ability to ‘take back control’ will have to take place within the boundaries of that reality. The anger over the NIP clearly shows that Boris Johnson’s Trade and Cooperation Agreement (TCA) and the associated NIP do not get that trade-off right and do not constitute a solid foundation that would do justice to the complex and fragile balance that holds the UK’s nations together.

Therefore, there can be no doubt that the TCA/NIP will have to evolve into something else if the UK is to survive Brexit. Arguably, economically speaking, a closer association with the EU than the current one would be desirable so as to increase access to the single market and reduce trade barriers. Indeed, Statista recently published a figure that illustrates just how ‘hard’ Johnson’s Brexit was.

 Yet, what are the realistic possibilities for alternatives to the current arrangements? Membership in the European Economic Area (EEA) offers one model, which does come with a need to automatically adopt EU legislation and therefore is incompatible with the ‘taking back control’ promise. Another, more complex, but arguably also more ‘sovereignty-friendly’ arrangement, is the arrangement of bilateral agreements, which Switzerland has pursued since the Swiss people rejected EEA membership in 1992.

The Norway solution: EEA maximal market access at a high price

The EEA, which entered into force on 1 January 1994, unites three European Free Trade Association (EFTA) states – Norway, Lichtenstein, and Iceland – and the EU member states under an agreement that guarantees participation in the ‘four freedoms’ of the single market, namely free movement of capital, goods, people, and services. To make these four freedoms possible and guarantee “equal rights and obligations within the Internal Market,” the EEA agreement implies that non-EU member states that are part of the EEA very largely have to comply with EU legislation. While some important areas – such as agriculture and fisheries – are excluded from the agreement, in the areas that are covered, EEA membership for non-EU members essentially means gaining full access to the single market but at the price of having to follow EU law without having a say in its adoption. Indeed, the EEA is explicitly set up as a ‘dynamic’ treaty, which implies ‘the common rules of the EEA Agreement are updated continuously with new EU legislation.’ Moreover, the treaty rules are ‘interpreted in conformity with the relevant rulings of the [European Court of Justice] given prior to the date of signature.’ In other words, the European Court of Justice has indirect jurisdiction over non-member states in relevant areas.

This trade-off between complete market access against very close alignment with EU legislation has recently given rise to political tensions in Norway – the largest non-EU EEA member state. Norway decided in 1994 to reject EU membership for fear of losing its sovereignty. Yet, joining the EEA instead arguably has compromised Norway’s sovereignty to a much larger extent than membership would have.

In the current general election campaign, the Norwegian Centre Party is campaigning against EEA membership, objecting to the ever evolving EU legislation which Oslo has to adapt without any say in its formulation. In a debate that will ring familiar to anyone who follows the Brexit debates, conservative PM Erna Solberg warns of any attempts to leave the EEA pointing at the importance of access to the single market for a country that exports 70% of its non-oil exports to the EU. Centre Party leader Trygve Slagsvold Vedum – who is polling strongly ahead of the elections – rejects her arguments as “fearmongering” and promises that Norway is “still going to have an agreement with the EU, a better agreement.”

The Norwegian case illustrates the fundamental flaw in the idea that being outside the EU will automatically mean freedom to adopt one’s own rules (what Brexiters call ‘sovereignty’). Norway currently has not found any solution to the market access-sovereignty trade off that also lies at the heart of Brexit.

The Swiss Solution: The end of ‘cherry picking’?

Another arrangement that may hold some lessons for the UK is the Swiss solution. Like Norway, Switzerland never decided to join the EU, but – contrary to its fellow EFTA members – it also rejected membership of the EEA in a hotly disputed referendum in 1992. Since then, Switzerland has established a complex network of bilateral agreements with the EU, based on 120 sectoral treaties and agreements.

Arguably, Switzerland is the country that has pushed the sovereignty-market access balance as far as any third country. Switzerland largely participates in the single market – including the free movement of people, although with some accompanying measure [DE] in place to avoid the undercutting of working standards and wages by foreign workers  – , without accepting an automatic adoption of EU law as is the case of the EEA. Instead, Switzerland practices a legal doctrine called ‘autonomous adaptation’ (autonomer Nachvollzug) whereby EU law is selectively and flexibly incorporated into domestic Swiss law to guarantee a considerable alignment with EU rules.  This approach provides Swiss policy makers with considerable leeway, while still guaranteeing market access through extensive alignment on EU rules. Yet, this also makes constant renegotiation of the bilateral agreements with the EU necessary.

This system has increasingly come under pressure from the EU side, which has insisted on a ‘framework agreement’ and the establishment of a dispute resolution process involving ECJ jurisdiction. This has led over the past years to increasingly tense negotiations between Switzerland and the EU. While a draft framework agreement was agreed on in 2018, the agreement is considered to have little chance of finding domestic support in Switzerland, where it will be subject to a popular referendum.

The sticking points will sound familiar to observers of Brexit: Besides the ‘accompanying measures’ and the question of EU citizens’ rights, the key issues are the question of state subsidies and the role of the European Court of Justice [DE] in adjudicating disputes.

Just like in Britain, the latter point is a particularly thorny question in Switzerland where the rejection of ‘foreign judges’ is baked into the founding myth of the country. Indeed, the so-called Federal Charter, one of the founding constitutional documents of the Swiss Confederation from the 13th or 14th century (depending on who you ask), explicitly rejects judges that are not ‘compatriots.’ The rejection of foreign judges is a highly politicised issue. Thus, the right-wing populist Swiss People’s Party launched a popular initiative with the title ‘Swiss Law instead of Foreign Judges,’ which aimed at placing the Swiss constitute above international law, including the European Human Rights Convention. While the initiative was rejected by two-thirds of the voters, the Swiss government is aware of the sensitivity of the issue which makes an agreement with the EU on a framework agreement difficult.

The most recent solution to the ECJ jurisdiction issue – which may bear some lessons for the UK – consists of the establishment of a court of arbitration with three judges, one each elected by the EU and Switzerland and a third one elected by the these two judges. For conflicts concerning EU law, however, the arbitration court would be required to seek advice from the ECJ and would be bound by that advice. Therefore, under the draft agreement, the ECJ does have jurisdiction over Swiss persons in some circumstances. This is indeed the EU’s own red line. Given the Swiss rejection of ‘foreign judges,’ it will be interesting to see if the proposed arrangement that limits ECJ jurisdiction to cases concerning EU law only and the addition an additional judicial layer (the court of arbitration), which makes ECJ jurisdiction less direct and hence less visible, will constitute a politically acceptable solution for the Swiss Parliament and ultimately voters. The arrangement could become interesting for any future arrangement that the UK may negotiated with the EU. In fact, TCA already contains a dispute resolution mechanism that is not dissimilar to the Swiss solution, although the ECJ’s role is less explicitly acknowledged.

Switzerland has fared very well with its nearly 30 years of ‘cherry picking,’ but clearly the EU is increasingly reluctant to offer any third country such an advantageous arrangement without subjecting itself completely to EU legislation and ECJ jurisdiction, which British policy makers may need to keep in mind.

 The End of the EU’s Territorial Expansion?

The above examples show that the UK is by far not the only country struggling to find an arrangement with the EU that strikes the right balance between ‘sovereignty’ – rightly or wrongly defined as the ability to deviate from EU rules – and market access. Indeed, Andrew Duff – former Lib Dem MEP – recently argued that Brexit constitutes a turning point not just for the UK but also for the EU. After a long phase of continuous territorial expansion, it is likely that the EU will not grow much further. Brexit may mark new phase where the focus is not on expansion but on finding a new model form managing the long-term relationships with an increasing number of important trading partners that are not members states. Indeed, such a model could stabilise relationships not just with the UK, Switzerland, and Norway, but also other countries, which for different reasons do not want to or will not be allowed to become full members, such as Turkey and Ukraine. Duff argues for  an ‘associated country’ status that would avoid the highly politicised and ineffective models of constant renegotiation and conflicts that mars the relationship with its closest non-members at the moment. It is to be hoped that the EU will indeed refocus its priorities in this respect.

From the UK perspective, on the other hand, a key stumbling block on the path towards such a stable future arrangement with the EU is the Conservative Party’s denial of the reality that the TCA and NIP are not a solid foundation for the future relationship with the UK. A striking illustration of this denial came this week in the form of a Conservative Party social media invitation to participate in a ‘Global Britain Survey.’ The Facebook post contained the statement “We secured a trade deal with the EU which fully delivered on our promises to take back control of our laws, borders, money and trade.” Question 5 of the questionnaire asked “Now that we have reclaimed our independence, we’re committed to only do deals which benefit the whole UK. Do you support this red line?”

Running this survey during the week when the failure of the TCA and the NIP must have become blatantly obvious to all but the staunchest supporters of the hard Brexit line, illustrates a lack of realism in the governing party that will prevent any reasonable arrangement with the EU impossible. As long as this denial of reality remains the dominant political ideology, the focus will remain on identity politics and on blaming the other side for any negative consequences of Brexit. The sad events in NI this week should be a stark warning about where this may lead us.