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I don't believe this has been asked before: I looked at here, and here. These are different questions.

The answer is clearly yes as far as the EU’s jurists are concerned. But could they be wrong?

Ostensibly, the sole and single purpose of the Irish backstop under the WA (Withdrawal Agreement) is to prevent a breach of the GFA in the event that an FTA (Free Trade Agreement) is not reached during the (Brexit) transition period under the WA.

If it were at all possible, under ANY circumstances, to have a hard external border between the EU and the non-EU country which the UK will become after Brexit, and yet NOT breach the GFA by so doing, we’d have heard about it by now*. The EU Commission is absolutely insistent that the backstop is the ONLY way to safeguard the GFA which, by the way, is an international treaty.

It follows that the hard border which must follow a No Deal departure from the EU by the UK on Oct. 31 (or thereafter) MUST breach the GFA. At least as far as EU jurists are concerned.

So what about the text of the GFA itself? Anyone can in fact read the full text of the GFA. It’s a bit long and boring, as one might expect, but not particularly difficult language.

I’m not a lawyer or an expert, but I failed to see many references at all to the question of the or a border. This is partly because the thing is predicated on the assumed non-existence of a physical border. It several times makes reference to “cross-border” and “all-island” matters but doesn't say anything about the nature of this border.

Regardless of the social, sectarian**, political, economic and other consequences of a hard physical border, I rather surprisingly came to the conclusion that pretty much all the provisions of the Agreement could be satisfied despite there being a hard physical border, as far as I could see.

I don’t believe that the arguments and conclusions of the EU’s jurists are available for public scrutiny. In posing this question I'm really not asking for speculation. It is clear that the GFA is predicated on the existence of an island where there are no physical borders. But on the subject of such borders it is silent.

Continuing the functioning of cross-border bodies would be more irksome with a border present, but "irksome" is not "breach". Equally it would not prevent a border poll (Reunification referendum) being held at some point. And so on...

Does anyone know where these EU jurists' written findings can be found and read? Or failing that does anyone know the gist of these findings, i.e. in what exactly this breach is said to consist, and precisely which provisions would/will be breached on October 31 with No Deal, or following failed Free Trade talks if there is a Withdrawal Agreement?

* There's a very long and mysterious answer here about whether the EU will in fact require a physical border in the event of No Deal. If it can be avoided that way, in that eventuality, why couldn't that solution equally be implemented in the event of failed FTA negotiations, instead of the Backstop? Mysteries, mysteries...

** By listing the problems here, and specifically including the word "sectarian", I am not in any way whatsoever underestimating these difficulties. It can perhaps be argued that in reality a physical border is now politically impossible for Republicans, north or south. But if that is the rationale for the Backstop, rather than a legal breach of the GFA, I think we need to know that.

addendum (added after phoog's first comment)

phoog in her/his comment claims that the purpose of the backstop was essentially to keep the border open. From googling I've only been able to find out so much. If someone can point the EU Commission's own reasoning this would be immensely helpful. Nothing better than the horse's mouth.

But if that is the case I find the stance of the EU, and particularly the Republic (of Ireland, aka Ireland), even more ironically tragic than at first thought. My understanding has always been that because the GFA is an international treaty the EU's jurists could not consider a breach of it because that would be contrary to international law. There was, faced with the intransigence of the UK govt about the backstop, always an irony that (in the event of No Deal) the very thing designed to prevent a breach would have the consequence of causing that breach.

If it is in fact the case that there would be no breach of the GFA if a hard border were to be installed there, and that the rationale is in fact to maintain peace and stability across the island, the irony then becomes even more stark, since then the ONLY thing preventing the continuation of peace and stability (in the event of No Deal) is the desire to have a guarantee of peace and stability. I.e. international treaty obligations play no part in the reasoning or decision-making.

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    "sole and single purpose ... to prevent a breach of the GFA in the event that an FTA is not reached": as I understand it, the purpose of the backstop is to keep the border open because hardening the border will probably lead to violence. There's no need to involve the GFA in that line of reasoning. Also, a free trade agreement between the UK and the EU will not remove the need for customs controls; only a customs union can do that. – phoog Sep 01 '19 at 05:42
  • See https://fullfact.org/europe/avoiding-hard-border-ireland/ – Denis de Bernardy Sep 01 '19 at 11:29
  • @phoog The second part of your comment cannot logically be correct: the WA is predicated on the UK leaving the CU and the SM after the transitional period. The backstop is included in the event that a solution to this border question is not reached as a consequence of departure from the CU. If "alternative arrangements" (I'm not talking solely about technology here, but anything...) could not possibly overcome this conundrum then the EU would have insisted on NI remaining in the CU and SM from day 1 and forever. – mike rodent Sep 01 '19 at 12:42
  • @phoog your first point is so intruiging I'm going to add a short (hopefully) addendum to my question – mike rodent Sep 01 '19 at 12:48
  • @DenisdeBernardy that also does not explicitly say that border infrastructure would breach the GFA, except for "both the UK and EU agree that, in negotiating a deal on the relationship after Brexit, it is important to keep the border open and uphold the terms of the Good Friday Agreement," which is ambiguous. – phoog Sep 01 '19 at 12:50
  • @DenisdeBernardy The statement "If 'alternative arrangements' (...) could not possibly overcome this conundrum then the EU would have insisted on NI remaining in the CU and SM from day 1 and forever" is logically fallacious, again petitio principii, and also they can't insist on that because of member state sovereignty and, ironically, because of the GFA. – phoog Sep 01 '19 at 12:56
  • @phoog actually it was me who wrote that. You've lost me with that response. Rather than categorising it as begging the question, which I can't see, please explain how the UK could ever conceivably then leave the CU without either a) keeping NI inside it or b) establishing a hard border with customs controls. – mike rodent Sep 01 '19 at 13:09
  • @mikerodent so it was. I don't think it's possible for the UK to leave the CU without either making an exception for NI or establishing a customs border between NI and the republic. – phoog Sep 01 '19 at 13:37
  • @phoog Given that all sides are committed, under any deal, to not having such customs checks I don't then understand why the UK side spent however many months thrashing out a WA if the backstop is 100% inevitable. I think "alternative arrangements" would in practice have meant things like technology, electronic registration, and making RoI slightly more aligned with the UK than the other 26 EU MSs, i.e. putting "elements of a border" between RoI and the other 26 with various forms of scrutiny and controls at RoI's ports. A large proportion of RoI's exports go to or through the UK currently. – mike rodent Sep 01 '19 at 13:52
  • I think RedGrittyBrick's answer to one of my questions (linked above) answers this as well as it can be answered: the language of the GFA is fairly ambiguous in this respect, so open to interpretation. Also, your question includes a lot of commentary of marginal relevance rather than merely being a direct question, which is probably it got some downvotes. – the gods from engineering Sep 03 '19 at 10:58
  • I'm not sure how you've concluded that "The answer is clearly yes as far as the EU’s jurists are concerned." Especially since you then ask answers to show you those EU jurists' opinions you assert exist. (And which you personally contradict based on your reading of the GFA...) – the gods from engineering Sep 03 '19 at 11:13

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Does a hard border in Ireland necessarily breach the Good Friday Agreement?

According to my understanding, a hard border would not literally breach the Good Friday Agreement (GFA), but it would strongly contradict its principles. In other words, it's a matter of the letter of the GFA versus its spirit.

The GFA was a peace agreement between multiple parties, some of them being still in an open conflict with each other at the time of writing. As such, it had to carefully avoid hitting any of these parties' red lines. This implied a very cautious wording, purposefully vague in order to gather support from all the parties:

The vague wording of some of the provisions, described as "constructive ambiguity", helped ensure acceptance of the agreement and served to postpone debate on some of the more contentious issues. Most notably these included paramilitary decommissioning, police reform and the normalisation of Northern Ireland.

George Mitchell is the former US senator who brokered the GFA. As a neutral deal broker, his well informed opinion on the matter can shed some light on the relation between a hard border and the GFA. He said:

“When there was a hard border, there was very little commerce, there was very little interaction between the people of Northern Ireland and the people of the Republic, and that led to stereotyping, to the demonisation of others, to attitudes that were based upon acts from the distant past,” he said.

“The open border has meant people travelling back and forth, a degree of social interaction, of commerce, of people working together. If you reinstate a hard border, you go back to the delays when stereotyping resumes, demonisation resumes, and people turn inward as opposed to outward, and they lose the benefits that come from open borders.”

Asked if he believed there could be serious trouble ahead, he said: “Yes, there could be serious trouble ahead. No society is immune from the regressive forces that are part of every problem.”

Additional note about the "mystery of whether the EU will in fact require a physical border in the event of No Deal": this article says that "it is 'pretty obvious' border controls would be needed in this scenario". However the EU and Ireland were avoiding discussing it: "Ireland’s deputy prime minister, Simon Coveney, was caught on tape last week indicating his fellow ministers should not talk about the resumption of border checks publicly for fear of a backlash." (same article) In other words, politically no side wants to appear as the one which asks for a hard border, but there's no way around it in case of no deal Brexit.

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Firstly, the GFA is not the sole reason for the backstop. It also protects the Single Market, which is over 6x larger than the UK market so obviously the EU is going to prioritize it's security.

As for the GFA, a core part of it was removal of all border infrastructure via cooperation between Ireland and the UK. Failure to cooperate, necessitating infrastructure, would be a violation.

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  • The backstop is all about the GFA. If there could be a hard border between the two sides of the Irish border there wouldn't be a problem and no backstop clause would be seen as necessary. Not downvoting because of your second paragraph, though I believe OP wants to know the specific sections in the GFA that make this explicit. (There's some nonsense in pro-Brexit circles that suggest that, actually, the GFA doesn't require that there be no hard border.) – Denis de Bernardy Sep 01 '19 at 11:14
  • You have curtailed my first sentence. I said "... to prevent a breach of the GFA in the event that an FTA is not reached during the (Brexit) transition period under the WA." As for the second part, I specifically said I'd prefer no speculation. If you make this claim that this is a "core part" of the GFA, please could you stipulate the part in the GFA where this is laid down? – mike rodent Sep 01 '19 at 12:36
  • @Denis the backstop is about the EUs/UK position on what they feel acceptable for the Ireland situation, not what the GFA says, as well as the EUs position on a 'monitering' border. –  Sep 01 '19 at 12:40
  • @DenisdeBernardy I'm not at all pro Brexit, but I don't see anything in the GFA that mandates an open border. Where is it? Furthermore, the statement that the backstop is all about the GFA depends on the assumption that the GFA mandates an open border, so it is a classic case of begging the question. – phoog Sep 01 '19 at 12:42
  • @Orangesandlemons: I'm not privy with the GFA's specifics, but see the link I dropped as a comment to the question. It seemed fairly thorough, with plenty of references. – Denis de Bernardy Sep 01 '19 at 12:42
  • @phoog: see my answer to Oragesandlemons. – Denis de Bernardy Sep 01 '19 at 12:42
  • @Denis, if you read it carefully, it pretty much says what I said - the GFA in practice doesn't say it, but both the UK and EU agree that it isn't acceptable in the broader context of the GFA. I also suspect that if there is no deal Brexit and the UK do not put a hard border and the Irish government do, we will not be hearing about them breaking the GFA. –  Sep 01 '19 at 12:51
  • "a core part of it was removal of all border infrastructure via cooperation between Ireland and the UK": it actually speaks only of the removal of "security installations." Those were military checkpoints. Customs controls had been removed a few years earlier, and it is by no means clear that their reintroduction would be contrary to that provision. – phoog Sep 01 '19 at 13:03
  • @phoog "the statement that the backstop is all about the GFA depends on the assumption that the GFA mandates an open border". No, no circular reasoning. That statement might be wrong. You are the one claiming that the backstop is about keeping the border open, and you might be right. My understanding was that the backstop was designed to protect the GFA, for reasons of ethics and law, in the context of an island divided by an external EU land border. – mike rodent Sep 01 '19 at 13:33
  • I explained where in the GFA the border infrastructure requirement is. It's the "cooperation" part of the border issue. It's not spelt out but that's what it was understood to mean by all parties. – user Sep 02 '19 at 08:15
  • As for protecting the Single Market, given that the UK is absolutely refusing to put any infrastructure on its side of the border then yes, it is necessary for purely economic reasons. Ireland does a lot of trade with the UK and even a hard border wouldn't protect it in the same way that a customs union would. – user Sep 02 '19 at 08:18