Introduction
Historically,
the British government has been quite successful at
defining the situation in Northern Ireland in accordance
with its own national self-interests as it sees fit.
It has spent an enormous amount of resources on conveying
to the world news media why its particular approach
to the problem--whatever it might be at that particular
moment in time--is the only correct approach.
I would submit, however, that there is certainly another
way of looking at the situation in Northern Ireland.
That other way of analyzing this conflict is from
the perspective of international law, and in particular
the United Nations Charter. Therefore, it is
my task here to describe what I believe should be
the appropriate policy of the world community of states
toward the situation in Northern Irreland in accordance
with the requirements of international law.
Article
1, paragraph 2 of the United Nations Charter provides
that one of the "Purposes" of the United
Nations Organization is to develop friendly relations
among nations based on respect for the principle of
equal rights and self-determination of peoples.
This fundamental principle of self-determination for
peoples can also be found in the two seminal United
Nations Human Rights Covenants of 1966: The
International Covenant on Civil and Political Rights,
and the International Covenant on Economic, Social,
and Cultural Rights. Both of these Covenants
have been ratified by the British and Irish governments;
and of course both states are parties to the United
Nations Charter, as is true for most states of the
world community. Thus, both states are in basic
agreement upon the fundamentality of the principle
of self-determination of peoples and its integral
connection to the maintenance of international peace
and security. The principle of self-determination
of peoples has been a basic norm of international
law and of world politics since it was first proclaimed
by President Woodrow Wilson in his famous Fourteen
Points Address of 1918.
The Colonial Status of Northern Ireland
In 1960
the United Nations General Assembly took a monumental
step toward implementing the right of self-determination
of peoples throughout the world by means of adopting
its Declaration on the Granting of Independence to
Colonial Countries and Territories, Resolution 1514(XV)
of 14 December. I will not bother to discuss
all of its provisions here, but I would like to mention
its most salient features. In the Preamble,
the General Assembly "solemnly proclaims the
necessity of bringing to a speedy and unconditional
end colonialism in all its forms and manifestations."
It also declares in paragraph 1 that: "The
subjection of peoples to alien subjugation, domination
and exploitation constitutes a denial of fundamental
human rights, is contrary to the Charter of the United
Nations, and is an impediment to the promotion of
world peace and cooperation." Likewise
paragraph 4 provides that all armed action or repressive
measures of all kinds directed against dependent peoples
shall cease in order to enable them to exercise peacefully
and freely their right to complete independence, and
the integrity of their national territories shall
be respected.
Next,
paragraph 5 requires that immediate steps shall be
taken in trust and non-self-governing territories
or all other territories which have not yet attained
independence to transfer all powers to the peoples
of those territories without any conditions or reservations,
etc. Nevertheless, paragraph 6 makes it clear
that the implementation of paragraph 5 cannot be undertaken
in a manner that would aim "at the partial or
total disruption of the national unity and the territorial
integrity of a country." To quote from
the exact language of paragraph 6: "Any
attempt aimed at the partial or total disruption of
the national unity and the territorial integrity of
a country is incompatible with the purposes and principles
of the Charter of the United Nations."
In addition,
this basic principle of international law mandating
the equal rights and self-determination of peoples
has likewise been enshrined in the Declaration on
Principles of International Law Concerning Friendly
Relations and Cooperation Among States in Accordance
with the Charter of the United Nations, which was
adopted by the U.N. General Assembly on October 24,
1970 as Resolution 2625 (XXV). In particular
therein can be found the injunction: "Every
state shall refrain from any action aimed at the partial
or total disruption of the national unity and territorial
integrity of any other state or country."
This Declaration was adopted by the General Assembly
as a "consensus resolution," which means
that the British government did not dissent from it.
Finally, this particular resolution was also treated
by the International Court of Justice as enunciating
rules of customary international law in its 1986 judgment
on the merits in the case of Nicaragua v. United
States.
Pursuant
to the aforementioned Decolonization Resolution and
the Declaration of Principles Resolution, the continuing
partition of Ireland constitutes an illegal partial
disruption of the national unity and territorial integrity
of the state of Ireland, which violates the terms
of the United Nations Charter and, in particular,
the aforementioned right of the Irish People to self-determination.
From the perspective of international law, therefore,
the entity which the British government calls "Northern
Ireland" is in fact and in law a "colony"
as that term has been classically defined. I
submit that this is precisely how the world community
of states must proceed to think about the situation
in Northern Ireland if it is to make any sense of
what is going on over there, and more importantly,
to determine what should be done to solve the problems
of Northern Ireland.
The U.N. Decolonization of Northern Ireland
According
to this U.N. Decolonization Resolution of 1960 and
the two U.N. Human Rights Covenants of 1966, the British
government is under an absolute international legal
obligation to decolonize Northern Ireland in cooperation
with the United Nations as expeditiously as possible
and in the process to restore the territorial integrity
of the whole state of Ireland. In other words,
Britain must remove the last vestiges of the colonial
occupation it had imposed upon Ireland as a result
of its so-called Treaty of Partition of 1921.
Here the United Nations Organization as a whole, including
the Trusteeship Council, the Special Committee on
Decolonization, as well as the United Nations General
Assembly, have had an enormous amount of quite successful
practice with respect to obtaining the peaceful decolonization
of occupied territories by former colonial imperial
powers -- especially Great Britain -- around the world.
It is to this wealth of experience, then, that the
world community of states must look in order to obtain
some useful precedents that could be applied to the
peaceful resolution of the situation in Northern Ireland.
In this
regard, when the British government sent troops to
Northern Ireland in 1969 the Irish government sought
to raise the question of "the six counties of
Northern Ireland" before the United Nations Security
Council, appealing for the "dispatch to the area
of a United Nations peacekeeping force."
Due to threat of a British veto, however, the Security
Council adjourned without taking a decision on whether
or not to adopt the agenda. The Security Council
never again considered the question.
Nevertheless,
Irish Ambassador Cremin submitted an Explanatory Memorandum
on the situation in Northern Ireland to the General
Committee of the U.N. General Assembly requesting
that this topic be included on the Assembly's agenda.
Following the proposal of Nigeria, the General Committee
decided to defer a decision on whether or not to recommend
the inclusion of this agenda item. Since that
time, however, representatives of successive Irish
governments have reiterated the right to national
reunification in addresses to the U.N. General Assembly.
The situation
in Northern Ireland clearly constitutes a threat to
the maintenance of international peace and security.
Therefore the United Nations Security Council has
all the authorization it needs to act in whatever
manner it deems fit to deal with Northern Ireland
since the Security Council has "primary responsibility
for the maintenance of international peace and security"
under Charter article 24. Hence, some day a
majority of nine members of the Security Council could
decide to send a U.N. peacekeeping force to Northern
Ireland. In this fashion, the decolonization
of Northern Ireland could be initiated by the withdrawal
of British troops and the emplacement of a U.N. peacekeeping
force in their stead on a transitional basis.
Witness, for example, the recently successful decolonization
of Namibia (formerly Southwest Africa) under the auspices
of a United Nations peacekeeping force (i.e., the
U.N. Transition Assistance Group) organized under
the authority of the United Nations Security Council.
To be
sure, it has always been the case in United Nations
practice that a peacekeeping force has never been
dispatched against the will of the government with
military control over the territory involved, irrespective
of whether that government was legally entitled to
be there or not. So implementation of this U.N.
plan would ultimately depend upon the British and
Irish governments reaching some prior agreement on
the peaceful decolonization of Northern Ireland and
the reunification of Ireland as required by international
law. Therefore, it should be a primary goal
of the world community of states to encourage the
British government (1) to publicly endorse the principle
of decolonization for Northern Ireland, as well as
(2) to negotiate in good faith with the Irish government
on a reunification treaty. Thereafter, both
states should work in cooperation with the U.N. Security
Council, the U.N. Secretary General, and a U.N. peacekeeping
force to accomplish these objectives.
The Protection of Human Rights in Northern Ireland
At this
preliminary point in the analysis, no point would
be served by speculating about what type of United
Irish State might ultimately emerge from these reunification
talks. It could be a confederal state organized
along the lines of Switzerland, or a federal state
consisting of two parts, or a unitary state, etc.
The selection of any one of these alternatives (or
some other) would be for all of the people living
on the Island of Ireland--whether Protestant or Catholic--to
determine, subject to the final approval of the United
Nations Organization.
From an
international law perspective, however, the most important
part of these reunification negotiations to be considered
would be the protection of the basic fundamental human
rights of Protestants living in Northern Ireland and
the firm establishment of their right to continue
to live and practice their religion as they see fit.
The ability to do this has been made immeasurably
easier by the fact that both the British government
and the Irish government are parties to the two aforementioned
United Nations Human Rights Covenants of 1966.
The British government signed both U.N. Covenants
in 1968 and ratified them in 1976. The Irish
government signed both in 1973 and has recently ratified
them. Moreover, Ireland has also become a party
to the 1966 Optional Protocol to the International
Covenant on Civil and Political Rights giving competence
to the United Nations Human Rights Committee to receive
and consider communications from individuals claiming
to be victims of a violation by that state party of
any of the rights set forth in the Covenant.
In addition,
both Britain and Ireland are parties to the European
Convention on Human Rights. And it would be
necessary for a United Ireland to adopt domestic implementing
legislation for all three of these seminal international
human rights treaties as well. In this manner,
any Protestant residing in a United Ireland who believed
that his or her rights had been abridged on grounds
of religion or nationality would have direct and immediate
access to a court of law on the basis of any one or
more of these three treaties and their respective
implementing legislation.
In all
fairness, I should point out that this is not the
case today for Irish Catholics living in Northern
Ireland who allege discrimination against them on
the grounds of religion or nationality. The
British government has been quite clever at signing
various human rights treaties, but then derogating
from their provisions by proclaiming a public emergency
with respect to Northern Ireland. In addition,
the British government has not adopted domestic implementing
legislation for these three human rights conventions.
This then prevents Irish Catholics living in Northern
Ireland from going into court and pleading a cause
of action directly under these treaties in order to
strike down the widespread discriminatory practices
against Irish Catholics currently existing there.
Moreover, even large segments of the British People
themselves continue to lament the fact that they do
not have a domestic constitutional equivalent of a
Bill of Rights.
But just
because the British government has tolerated and condoned
widespread discrimination against Irish Catholics
in Northern Ireland would provide absolutely no good
reason for the Irish government to do the same against
Protestants in a decolonized state of United Ireland.
Indeed, it has been the gross violation of the fundamental
human rights of Irish Catholics in Northern Ireland--despite
these solemn international treaty commitments to the
contrary--that has produced the violent response by
the Provisional Irish Republican Army to the British
occupation army, regime, and practices. Hence,
the world community of states must understand that
the violence committed by the Irish paramilitary parties
to this international conflict can be directly attributed
to the continuation of the illegal British colony
on the Island of Ireland, as well as to the concomitant
gross violation of fundamental human rights perpetrated
by the British occupation forces upon Irish Catholics.
For this reason, then, the Provisional I.R.A. must
be fit within the broader political, economic and
legal context of an anti-colonial war.
These
phenomena are similar to those found in most other
anti-colonial wars around the world where the indigenous
people have risen up to throw off their colonial oppressors.
In such cases, it has proven to be standard operating
procedure for the colonial occupation power to play
off one group of indigenous people against another,
or settlers against the indigenous people; and then
for the colonial power to attempt to portray itself
as the "peacekeeper" between the contending
factions in order to justify the continuation of its
colonial occupation. This is precisely what
has happened in Northern Ireland. Despite pro-British
news media accounts to the contrary, it is the continued
presence of the British colonial army, occupation
regime, and their military practices in Northern Ireland
that have always been the primary source of bloodshed
and violence there.
Citizenship, Nationality, and Residence
Another
protection that could be afforded to Protestants in
Northern Ireland would be for them to be able to retain
their British citizenship while living in a United
Ireland. They would also retain their British
passports and could have the British Parliament guarantee
as a matter of domestic law their right (and that
of their descendants) to reside in Britain forever.
Moreover, the British Parliament could enact legislation
to permit British citizens living in a United Ireland
to vote in British elections by means of an absentee
ballot.
Protestants
living in Northern Ireland should be entitled to claim
citizenship in a United Ireland and thus become dual
nationals if they so desire. On the other hand,
Northern Ireland Protestants (and their descendants)
should not be forced to accept Irish citizenship or
nationality in a United Ireland if they do not want
to. Nevertheless, such individuals (and their
descendants) should still retain their right of permanent
residence in a United Irish State.
To be
sure, if such individuals choose to remain living
in United Ireland as exclusively British citizens,
then they would be bound to obey the laws of a United
Ireland--just as is true for permanent resident aliens
in any other country. Nevertheless, they would
still be entitled to invoke all the protections of
the international and domestic human rights regime
outlined above. Moreover, since they are currently
residents on the Island of Ireland, such individuals
should have the basic right to participate in the
drafting of a new Constitution for a United Irish
State that would contain within itself a Bill of Rights
protecting all the people who live in Ireland irrespective
of citizenship and nationality, let alone religion.
Furthermore,
under that new Constitution, such individuals should
be permitted to vote in whatever type of Irish elections
they so desire on the basis of their qualifications
as permanent residents in United Ireland. In
this way, communities in today's Northern Ireland
that consist of a majority of Protestants could continue
to maintain majority political control over local,
municipal, and county-wide political bodies in United
Ireland, subject to the non-discrimination regime
mentioned above. Indeed, the new Irish Constitution
should accord such permanent residents of a United
Ireland all of the legal, political, and constitutional
rights of Irish citizens without any distinction.
These rights should include those of full and equal
participation in voting, law-making, governance, administration,
adjudication, public office-holding, education, etc.
Of course such individuals would remain free to exercise
or not exercise any one or more of these rights guaranteed
to them by the new Irish Constitution. But for
all functional purposes, there should be no constitutional
or legal distinctions whatsoever drawn between these
Protestant permanent resident aliens and citizens
in a United State of Ireland.
No point
would be served by continuing to spell out the multifarious
constitutional, legal, political, and human rights
protections that could be designed for Protestants--with
their active participation--who would be living in
a United Irish State. Suffice it to say here
that enormous progress can be made in this direction
by breaking down and distinguishing the rights pertaining
to (1) citizenship; (2) nationality; (3) residence;
(4) voting; and (5) governance in a United Ireland.
Fortunately, all these questions will be made incredibly
easy to handle and therefore quite flexible to negotiate
because both Great Britain and Ireland are members
of the European Union (EU) -- formerly the European
Economic Community (EEC) -- and thus bound by the
various protections and privileges afforded citizens
of EU member states without discrimination.
Admittedly,
there might be a few hard-line Unionists in Northern
Ireland who would refuse to live in a United Ireland
even with exclusive British citizenship; a British
passport; the rights to vote in both British and Irish
elections; the right to hold any public office in
a United Ireland; and the ultimate right of permanent
residence for themselves and their descendants in
Great Britain, etc. But I suspect that number
would be very small. Such a small number of
individuals should not be enabled to stand in the
way of finally establishing a definitive peace between
the British People and the Irish People. Such
irreconcilable Unionists should be given the option
of emigration to Britain if they so desire, with relocation
assistance provided and full compensation to be paid
for any property interests they might decide to relinquish
in Northern Ireland. I suspect that number would
be even smaller.
Self-determination for the Peoples of Ireland
and Britain
This observation
brings the analysis to the heart of the British government's
claim that it is really in Northern Ireland to protect
the right of such irreconcilable Unionists to self-determination.
I find that argument to strain credulity. At
one time or another, the British government has invaded,
occupied and exploited over one-quarter of the known
world community of states and peoples during the course
of modern history, including substantial sections
of Asia, Africa, the Middle East, and North America.
Yet now it is portraying itself as the upholder of
the principle of national self-determination in Northern
Ireland in order to justify its control over one of
its last remaining colonial enclaves around the world.
Yet, by comparison, in Hong Kong the world community
of states saw the British government turn over five
and one-half million people to the Communist government
in Beijing with the stroke of a pen--against their
wishes and without even bothering to consult them.
So much for the British government's reputed concern
for the principle of national self-determination.
With respect
to Northern Ireland, under international law the principle
of self-determination of peoples appropriately
applies to the entire British People, not a small
group of irreconcilable Unionists. In this regard,
public opinion polls have repeatedly shown that only
25% of the British People want to remain in Northern
Ireland. It seems to me that the wishes of this
substantial majority of the British People should
-- and ultimately will -- be respected. For
reasons explained more fully below, it is only a question
of time before the British government will as a matter
of fact and of law decolonize Northern Ireland.
As for
those irreconcilable Unionists who are unwilling to
live as Britons in a United Ireland under any circumstance,
then of course they should be free to emigrate to
Britain. If they do not want to remain British
in a United Ireland, then by all means they should
be permitted to be British in Britain. This
option would fully implement whatever their self-proclaimed
right of self-determination means, as well as the
rights to peace and self-determination for everyone
else involved in this conflict--the entirety of the
British People and the entirety of the Irish People.
The U.N. principle of equal rights and self-determination
of peoples requires one and only one state
for the British People (i.e., Great Britain) and one
and only one state for the Irish People (i.e., Ireland).
It does not sanction the continuation of an illegal
British colony on the Island of Ireland.
The Anglo-Irish Agreement of 1985
These latter
observations bring the analysis directly to the Anglo-Irish
Agreement of 1985. It used to be the case that
the British government had always argued that the
situation in Northern Ireland was a "domestic
affair" or a matter of "internal concern"
invoking article 2, paragraph 7 of the United Nations
Charter prohibiting U.N. intervention "in matters
which are essentially within the domestic jurisdiction
of any state." This is similar to claims
that have always been made by imperial colonial powers
trying to keep the international community from dealing
with a colonial situation in order to better hold
onto the colony. Witness, for example, France's
outlandish claim that the colonial situation in Algeria
was part of the domestic affairs of France because
France had annexed Algeria and treated it as an integral
part of Metropolitan France, just like Paris.
Illegal
fictions to the contrary, however, Algeria was never
part of France. And Northern Ireland has never
been part of Great Britain. Northern Ireland
has always been an integral part of Ireland.
Note,
however, that after the signature of the Anglo-Irish
Agreement at Hillsborough on 15 November 1985, the
British government can no longer make that specious
type of claim. This recent Anglo-Irish Agreement
giving the Irish government a voice in all matters
relating to Northern Ireland represents the ultimate
and definitive British capitulation on this point.
Whatever the situation was before the Anglo-Irish
Agreement of 1985, thereafter, from the perspective
of international law, any British claim that the ultimate
legal status of, as well as the entire domestic situation
in, Northern Ireland are merely matters of "internal
concern," would be completely groundless.
This is
because of the famous holding of the Permanent Court
of International Justice in the Tunis-Morocco Nationality
Decrees Case of 1923 to the effect that the moment
a state concludes an international agreement on any
subject, that subject is no longer a matter of exclusively
internal concern but thereafter becomes a matter of
international concern. By signing the Anglo-Irish
Agreement with respect to Northern Ireland in 1985,
the British government knowingly removed the entire
legal status of, as well as the internal affairs in,
Northern Ireland from its so-called domestic jurisdiction
to become a matter of international law and world
politics. Indeed, the Anglo-Irish Agreement
of 1985 has been duly registered with the United Nations
Organization in accordance with U.N. Charter article
102. For this reason alone, that aforementioned
U.N. Charter article 2, paragraph 7 prohibition can
no longer be applied with respect to Northern Ireland.
Sovereignty over Northern Ireland
Quite obviously,
no point would be served by attempting to engage in
a detailed technical analysis of the 1985 Anglo-Irish
Agreement on an article-by-article basis. Suffice
it to say here that this interpretation of the Agreement
can be substantiated simply by reference to Section
A thereof:
A
STATUS OF NORTHERN IRELAND
ARTICLE 1
The two Governments
(a) affirm that any change
in the status of Northern Ireland would only come
about with the consent of a majority of the people
of Northern Ireland;
(b) recognize that the
present wish of a majority of the people of Northern
Ireland is for no change in the status of Northern
Ireland;
(c) declare that, if
in the future a majority of the people of Northern
Ireland clearly wish for and formally consent
to the establishment of a united Ireland, they
will introduce and support in the respective Parliaments
legislation to give effect to that wish.
In other
words, this international treaty specifically purports
to deal with the sovereign legal status of Northern
Ireland. Hence, according to the Tunis-Morrocco
Nationality Decrees Case, the sovereign legal
status of Northern Ireland is no longer a matter of
exclusive domestic concern with respect to Great Britain
alone, but is now also officially and legally proclaimed
to be the concern of Ireland as well. For that
reason, Northern Ireland also becomes the concern
of the entire world community of states, including
the United Nations Organization and the European Union,
inter alia.
Furthermore,
by means of this treaty provision alone, the British
government has effectively abandoned its claim to
exercise exclusive sovereign control over Northern
Ireland. The claim that a matter falls within
the "domestic affairs" of a state is another
way of saying that the matter involves a question
of that state's "sovereignty." By
definition, "domestic affairs" are a question
of "state sovereignty," and "state
sovereignty" means (in part) a state's exclusive
control over its "domestic affairs."
Under basic principles of international law, one state's
conclusion of an international treaty on a matter
of its alleged "domestic affairs" with another
state formally removes that subject matter from the
exclusive sovereign control of the first state and
endows the second state with the right to act upon
that subject matter. In this case, the Anglo-Irish
Agreement dealt explicitly with the sovereign "STATUS
OF NORTHERN IRELAND" as both a juridical and
a territorial entity, respectively.
Northern Ireland vs. New Mexico
If the
British government truly believed that Northern Ireland
was subject to its exclusive sovereign control, then
it never would have concluded a treaty with Ireland
over the sovereign legal status of Northern Ireland.
Here a good historical analogy would be to the United
States government signing a treaty with Mexico giving
Mexico a consultative role with respect to both the
legal status of, and the domestic affairs in, the
North American state of New Mexico. The United
States government would never sign such an agreement
if it really believed that the legal status and domestic
concerns of the state of New Mexico were subject to
its exclusive sovereign control.
Moreover,
I doubt very seriously that the United States government
would ever sign a treaty with Mexico to the effect
that if a majority of the people of New Mexico want
to join Mexico, then of course the United States Congress
would be prepared to pass domestic implementing legislation
that cedes New Mexico to Mexico. Quite frankly,
I could not envision any set of circumstances under
which the United States of America would countenance
the return of New Mexico to Mexico. Of course,
if American citizens living in New Mexico want to
be Mexicans, then they would have the perfect right
under international law and the United States Constitution
to go to Mexico and expatriate themselves. To
be sure, it might also be possible for many individuals
who have dual Mexican-American nationalities to live
in New Mexico. But even if someday the vast
majority of people living in New Mexico were to become
dual Mexican-American nationals, I doubt very seriously
that the United States Congress would honor any vote
by them for the retrocession of New Mexico to Mexico.
Conversely,
if the United States government were to sign such
a treaty with Mexico over New Mexico, then it would
be a pretty good sign that at some particular point
in time in the future, the United States would be
prepared to countenance the reversion of New Mexico
to Mexico. In any event, the conclusion of such
a treaty would mean ipso facto that both the
legal status of, as well as the domestic affairs in,
its subject matter (i.e., New Mexico) were matters
of international concern and jurisdiction that were
no longer subject to the exclusive sovereign control
of the United States of America, but henceforth involved
Mexico as well as the entire international community,
including the United Nations Organization. Today,
whatever the legal situation was before 1985, these
same principles of international law and world politics
now hold true for Northern Ireland.
The Unionists Are Right
I submit
that the British government knew full well that it
was doing this when it signed the Anglo-Irish Agreement
in 1985. In other words, the British government
purposely, knowingly, willingly, and voluntarily surrendered
its long-standing claim that Northern Ireland was
a matter of purely internal concern subject to its
exclusive sovereign control alone. I also believe
that the British government did this for the express
purpose of sending a signal to hard-line Unionists
in Northern Ireland of its eventual intention to withdraw
from (that is, to decolonize) Northern Ireland.
Thus,
I believe that hard-line Unionists in Northern Ireland
have performed the appropriate interpretation of the
significance of the Anglo-Irish Agreement. This
interpretation does not mean that the British government
is going to leave Northern Ireland tomorrow.
But it seems pretty clear from both the mere existence,
as well as the actual contents, of the Anglo-Irish
Agreement that the British government will eventually
withdraw from Northern Ireland. This interpretation
of the Agreement is also consistent with several public
statements made by British government officials to
the effect that there is no way the Provisional I.R.A.
can be defeated militarily.
Hence,
the Hillsborough Agreement cannot properly be interpreted
as a capitulation by the Irish government to the continued
presence of a British colony in Northern Ireland.
Even if the FitzGerald government had attempted to
do so in 1985, it had no authority to conclude such
a treaty that would have expressly violated article
2 of the Irish Constitution: "The national
territory consists of the whole island of Ireland,
its islands and the territorial seas."
And under international law, the British government
was charged with knowledge of this constitutional
provision.
As a party
to the Vienna Convention on the Law of Treaties, the
British government realized full well that the Irish
government had no authority to conclude an international
agreement that contradicted Ireland's constitutional
claim to Northern Ireland without obtaining a constitutional
amendment to that effect, which obviously never occurred.
So according to this Vienna Convention provision,
the Anglo-Irish Agreement can only be interpreted
in a manner consistent with the Irish Constitution
and its claim to sovereignty over Northern Ireland.
From the perspective of international law, therefore,
the Hillsborough Agreement cannot be interpreted as
a surrender of the Irish claim to sovereignty over
Northern Ireland, but rather, to the contrary, as
an implicit British acceptance of that claim.
Conclusion
Commenting
upon the reunification of Ireland, the Irish Nobel
Peace Prize Winner and former IRA Chief-of-Staff Sean
MacBride wrote an Introduction to Bobby Sands'
autobiography One Day In My Life (1983).
Robert Sands, M.P., spent the last four and one-half
years of his life in the H-Blocks of Long Kesh concentration
camp near Belfast. He started a hunger strike
on March 8, 1981 in order to protest the Thatcher
government's refusal to extend prisoner of war status
to captured members of the Irish Republican Army,
and eventually died on May 5, 1981.
At the
conclusion of his Introduction, Sean MacBride
wrote approvingly:
"In
the early stages of the last decade, Paul Johnson,
one of Great Britain's most distinguished journalists,
editor of the Spectator, and one of Prime
Minister Margaret Thatcher's most ardent supporters,
wrote in The New Statesman:
"In Ireland over the centuries,
we have tried every possible formula:
direct rule, indirect rule, genocide,
apartheid, puppet parliaments, real parliaments,
martial law, civil law, colonisation,
land reform, partition. Nothing
has worked. The only solution we
have not tried is absolute and unconditional
withdrawal."
Why
not try it now? It will happen in any event!"
With public opinion polls consistently demonstrating
that only 25% of the British People want to remain
in Northern Ireland, this author is fully convinced
that he will live to see the termination of British
colonial occupation in Northern Ireland and the reunification
of the Irish State. It is most tragic and unfortunate
that Sean MacBride could not live to see that glorious
day for whose realization he had worked an entire
lifetime to achieve. But he died fully convinced
of inevitable victory for the Irish People.
It is
my opinion that over time the vast majority of the
British People will manifest their intention to decolonize
Northern Ireland. Hence my conclusion that the
world community of states should be working now to
encourage the British government to publicly adopt
the position that it will decolonize Northern Ireland
in cooperation with the United Nations Organization
and the European Union, and with full and effective
guarantees for the Protestants of Northern Ireland
under the aforementioned treaties and implementing
legislation, as well as under a Bill of Rights incorporated
into a new Irish Constitution. Whenever that
becomes the official position of the British government,
I submit that most of the violence perpetrated by
the I.R.A. will terminate, the Irish economy could
be reintegrated, and the United States government
(together with the EU) would then proceed to provide
substantial economic assistance to a United Ireland
in order to help it get upon its feet.
Pursuant
to the proposals outlined above, every person living
in a United Ireland--whether Protestant or Catholic,
citizen, or resident alien--would have recourse to
a domestic court of law and ultimately, to the European
Court of Human Rights or the United Nations Human
Rights Committee, to assert his or her rights recognized
by three seminal international human rights treaties
as well as by a constitutionally protected Bill of
Rights. Indeed, these substantive and procedural
protections would constitute a dramatic step forward
toward the progressive liberalization of the human
rights situation for the people living in today's
Republic of Ireland as well. In other words,
under the aforementioned proposals, everyone currently
living on the Island of Ireland--whether Protestant
or Catholic--would have significantly more substantive
and procedural rights in a United Ireland than they
possess today in either Northern Ireland or the Republic
of Ireland.
In this
fashion, a United Ireland could become a "win-win"
solution for everyone living there. The concretization
of that prospect could provide a substantial incentive
for all people currently living on the Island of Ireland
to work toward the reunification of the Irish State.
There is an enormous amount of work toward progressive
reunification that can be done by people of good faith
on all sides of this dispute irrespective of the feeble
steps toward peace that have been taken by the two
governments involved.
The Irish
People (whether Protestant or Catholic) living on
both sides of this artificial border must no longer
allow themselves to remain captives to their respective
governments' shortsighted policies. The problems
of Northern Ireland have been created and perpetuated
by both governments--though, to be sure, to different
degrees and in different ways. For the most
part, the two governments are the problem, not the
solution, to the so-called "troubles" that
have plagued Northern Ireland for the past seventy
years.
It is
time for all the people living on the Island of Ireland
to stop looking toward the two governments to produce
a solution to the problems of Northern Ireland.
Rather, they must look to each other. They must
reach out to each other in fraternal solidarity with
the full realization that they share more in common
with each other than they do with either one of the
two governments involved. They must transcend
these two governments in order to work toward peaceful
reunification on the basis of the "functional-integration"
of their inescapably interconnected lives. As
the arch-realist himself, Hans Morgenthau, once said:
"Thus the future of the civilized world is intimately
tied to the functional approach to international organization."
The same can be said for the Island of Ireland.
POSTSCRIPT
On 15
December 1993 British Prime Minister John Major and
Irish Prime Minister Albert Reynolds concluded the
so-called Downing Street Declaration on Northern Ireland.
Once again, no point would be served here by analyzing
this lengthy document on a line-by-line basis.
Suffice it to say that from the perspective of international
law and politics, the primary significance of this
Declaration was that for the first time ever the British
government formally and publicly acknowledged the
right of the Irish People to self-determination on
the Island of Ireland. The critical passage
from the Declaration is as follows:
....
The
British Government agree that it is for the people
of the island of Ireland alone, by agreement between
the two parts respectively, to exercise their
right of self-determination on the basis of consent,
freely and concurrently given, north and south,
to bring about a united Ireland, if that is their
wish.
They
reaffirm as a binding obligation that they will,
for their part, introduce the necessary legislation
to give effect to this, or equally to any measure
of agreement on future relationships in Ireland
which the people living in Ireland may themselves
freely so determine without external impediment.
...
To be
sure, the Downing Street Declaration built upon the
Anglo-Irish Agreement of 1985. Nevertheless,
putting aside its ambiguities and obfuscations, the
Downing Street Declaration represented a major conceptual
breakthrough for the British government: After
800 years of colonial occupation in Ireland, the British
government finally recognized the right of the Irish
People to self-determination over the Island of Ireland.
Of course,
this basic concession on a matter of fundamental principle
by the British government was long overdue.
But at least and at last it was finally made.
This fundamental concession by the British government
paved the way for the decision by the Irish Republican
Army to announce "a complete cessation of military
operations" as of midnight, Wednesday, 31 August
1993. It is hoped that these developments will
gradually lead to the creation of a free and United
Ireland where Protestants and Catholics can live and
work together with peace, harmony, justice, equality,
and prosperity for all.
