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The Decolonization of Northern Ireland - The Decolonization of Northern Ireland

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The Decolonization of Northern Ireland
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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 1994.  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.


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