Nikos Skoutaris, Lecturer in EU law at the University of East Anglia; website on Secessions, Constitutions and EU law.

When the UK voted to leave the EU on June 23, 2016, Northern Ireland voted to remain. This result has led Sinn Féin to call for a referendum on Irish unification, which would allow Northern Ireland to stay in the EU. This discussion has gained momentum following the most recent Northern Ireland Assembly election, which saw a significant decrease in the Unionist vote.

Putting aside the political feasibility of such an event, it’s important to note the legal perspective. The UK government has formally acknowledged that Northern Ireland can legally separate from the UK and join a unified Ireland if both the people of Northern Ireland and the Republic of Ireland vote in favor of it. This recognition is codified in Section 1 of the Northern Ireland Act 1998, which stands out as a rare example of a constitutional statute that explicitly grants a region the right to secede (see also the Good Friday Agreement). However, Schedule 1 of the Northern Ireland Act states that such a referendum can only happen if the UK Secretary of State believes there is a likely majority in favor of Northern Ireland leaving the UK to become part of a unified Ireland. Former Northern Ireland Secretary Theresa Villiers has stated that she sees no indication of majority support for such a poll.

Despite this, should the majority in Northern Ireland ever democratically choose to secede from the UK and unify with the Republic of Ireland, the EU’s legal framework can accommodate this. Northern Ireland’s secession wouldn’t create a new Member State. Instead, it would trigger a territorial expansion of an existing EU Member State (Ireland) where EU law already applies, as per Article 52 TEU. This reunification process could resemble the German reunification, where East Germany adopted the EU acquis without requiring amendments to primary EU legislation. However, a key difference is that the EU acquis did not apply in East Germany before reunification, unlike the current situation in Northern Ireland.

Interestingly, Irish Taoiseach Enda Kenny has recently called for a special provision in any Brexit deal that would allow Northern Ireland to rejoin the EU if it reunifies with the Republic. This request comes despite the UK government’s stated aim to secure a special deal for Northern Ireland.

This begs the question: what could such a provision look like?

The EU law doesn’t have many provisions that address the reunification of Member States. A relevant example is Article 4 of Protocol No 10 on Cyprus of the Act of Accession 2003. This protocol outlines how EU law applies to Cyprus, given the island’s division at the time of EU accession. Specifically, it suspends the application of the acquis in northern Cyprus until a solution for unification is reached.

Article 4 outlines a streamlined procedure for the EU to incorporate the terms of a reunification plan if such a solution emerges. It grants the EU the authority, through a unanimous Council Decision made at a future date, to modify the terms of Cyprus’s EU accession as laid out in the Act of Accession 2003. Essentially, it empowers the Council to amend primary EU law (the Act of Accession 2003) through a unanimous decision.

While this might seem unusual, the EU treaties allow for special amendment procedures in certain situations. A prime example is the Council decision based on Article 2(2) of the 1994 Accession Treaty. This decision adjusted the accession instruments following Norway’s rejection of the treaty. It amended several articles within the Accession Treaty and the Act of Accession through a simplified procedure that bypassed individual Member State ratification.

Assuming the ‘Brexit’ Agreement is considered part of primary EU law, a similar provision concerning Irish reunification could be included. This would facilitate a smooth transition for Northern Ireland back into the EU. However, it’s crucial to remember that Irish reunification, like many issues stemming from Brexit, is primarily a political matter. Nevertheless, this discussion highlights the adaptability of EU law in accommodating such political developments.

Barnard & Peers: chapter 27

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