Life in Gestalt

Rethinking Northern Ireland

THROUGH A LOOKING GLASS

Today's suspension of the Northern Ireland power-sharing government led by David Trimble has just upset the paradigm for ending civil strife based on religious divide. Despite this unfortunate turn of events, it remains my belief that Northern Ireland may still be the test case for finding the appropriate diplomatic solution to religion-driven inter-state and intra-state conflicts such as in the Middle East, Kashmir, Chechnya, among others.

The following are excerpts from a paper I wrote last semester on the Northern Ireland dispute for my Public International Law course. After a brief discussion of the legal and sociological development of the conflict, the analysis focused on international law issues with respect to the republican North's claims to territorial sovereignty. The excerpts following focus on the first section and simply summarizes the second.

It is tempting to conclude that with the signing of the landmark “Good Friday” Agreement on April 10, 1998, the legal status of Northern Ireland has become a question rendered moot and academic. It may be said that the intermittent political deadlocks between the major parties in the power-sharing Northern Ireland government formed pursuant to the Agreement have been generated largely by differences regarding its implementation, particularly on issues of decommissioning by the Irish Republican Army, policing and the Royal Ulster Constabulary, the release of paramilitary prisoners, and judicial reform, among others.

It must be submitted, however, that the present issues do not belie the underlying dispute regarding the United Kingdom’s exercise of territorial sovereignty over Northern Ireland. While it may be conceded that the Agreement now casts doubt on the relevance of an ‘adjudication’ of any competing legal claims of the United Kingdom and the Republic of Ireland, the crux of the analysis of sovereignty lies with the principle of self-determination, and how the development of its norms under international law may ultimately alter the complexion of Northern Ireland’s sovereign status...

A History of the Conflict

The precise date of the English Crown’s articulated intention of expanding its territory to Ireland is itself a source of historical dispute. For example, some scholars refer to the Papal Bull allegedly granted by Pope Adrian IV to King Henry II of England in 1155, granting the latter authority to conquer Ireland in the name of the Holy Mother Church.

The first concrete manifestation of British involvement in Ireland began in 1170, when the forces of the Anglo-Norman Earl of Pembroke aided the Irish King of Leinster against a rival king. By the late 15th century, English monarchs’ domains in Ireland were restricted to a small area around Dublin. A line of fortifications called the ‘Pale’ was erected around this area, and Irish outside the boundary were considered by the English as barbarians ‘beyond the pale’. By 1541, King Henry VIII had declared himself King of Ireland, but failed to convert the majority population of Irish Catholics to Protestantism.

More than a century later, Oliver Cromwell’s army crushed Irish opposition with notorious massacres at Drogheda and Wexford. Land under Catholic ownership was forcibly seized. By 1703, Protestants would own 90% of land in Ireland, leaving Irish farmers as tenants on lands they formerly owned. Anglican Englishmen were formally settled by Cromwell in Ulster. Subsequent political policy favoring Protestants and disadvantaging Catholics encouraged further Protestant settlement in Northern Ireland. For nearly a century, Ireland would be indirectly governed by the Crown by means its viceroys in the Irish Parliament. However, in 1800, the Act of Union abolished the Irish Parliament and created the United Kingdom of Great Britain and Ireland. The Irish Parliament was dissolved, and 100 seats were provided for Protestant Irish as members of the British Parliament in Westminster. All Catholic Irish were excluded from political participation.

The desire for home rule among Irish Catholics gained impetus following the three year potato famine of 1845, which had killed more than 1 million Irish Catholics due to starvation and disease. By the 1880s, British Prime Minister William Gladstone would work in conjunction with Irish Parliamentary Party leader Charles Steward Parnell in obtaining support among their constituencies for the cause of home rule for Ireland. By 1914, Home Rule would be made into law , but would not take effect until after the First World War. The Ulster Unionist Party, the largest Protestant party in Ireland, accepted an offer from the British that would exclude the six northeastern counties of Ulster from any Home Rule settlement.

1916 marked the first signs of mass violence by the Irish Republican Army in an uprising popularly termed as the Easter Rebellion. 1,000 rebels proclaimed an Irish Republic at Dublin’s General Post Office on Easter Monday, April 24. After five days of fighting, the rebels surrendered with 400 dead, and 2,500 wounded from both sides. Four years later, the Government of Ireland Act came into force, providing for two parliaments in Ireland --- one for the south and another for the north, and both parliaments subject to the sovereignty of the Parliament at Westminster. A Council of Ireland was envisioned to oversee common facilities but was never put into operation. This partition was accepted by the Unionists but rejected by the Nationalists. It was only with the approval of the Home Rule Bill of 1920 that a semiautonomous Parliament was set up, with a Crown-appointed Governor advised by a cabinet of the prime minister and 8 ministers, as well as a 12-member representation in the House of Commons in London. In 1922, the Irish Free State Treaty converted 26 of the island’s 32 counties into an independent dominion within the British Commonwealth. The 6 northern counties remained part of the United Kingdom. Violence escalated as Catholics in the north opposed the division. Ten years later, Stormont would become the new home of the Northern Ireland government, located in east Belfast.

Ireland later declared itself a republic and withdrew from the British Commonwealth in the 1940s. The British Parliament recognized the new Republic but reasserted its claim over the 6 northern Irish counties. This claim was not recognized by the Republic of Ireland, with Articles 2 and 3 of the Irish Constitution explicitly calling for the reintegration of Ireland and construed by the Irish Supreme Court as reflecting a claim as a matter of legal right to the entire national territory including Northern Ireland.

The Irish Republican Army continued the struggle to end the partition of Ireland. In 1968, rioting and street fighting between the Protestants and Catholics occurred in Londonderry, fomented by extremist nationalist Protestants, who feared the Catholics might attain a local majority, and by Catholics demonstrating for civil rights. Government attempts to stop the fighting sparked more riots, setting of the Time of Troubles --- three decades of rioting and terrorist attacks by paramilitary groups from both ends of the political spectrum. The religious communities, Catholic and Protestant, became hostile armed camps. British troops were brought in to separate them, but themselves became a target of Catholics, particularly by the Irish Republican Army (IRA). A year later, even the IRA would demonstrate the increased factionalism pervading all supporters of republicanism for Northern Ireland, with the formal split of the IRA into two wings --- the Marxist-oriented Official IRA, and the more hard-line Provisionals. The goal of the IRA was to eject the British and unify Northern Ireland with the Irish Republic in the south. By contrast, the Ulster Unionists and other Protestant parties remained loyal to the United Kingdom. Catholic and Protestant terrorist organizations proliferated.
Various attempts at representational government and power-sharing foundered during the 1970s, and both sides were further polarized. Direct rule from London and the presence of British troops failed to stop the violence. In 1972, the Bloody Sunday killings triggered a long pattern of bombings, assassinations, and shootings by the IRA, allegedly in retaliation for the death of 14 Irish Catholics after British troops opened fire on a civil rights demonstration in Derry. The unrest that followed prompted Britain to abolish Stormont and announce Direct Rule. A year later, the Sunningdale Agreement, which would have allowed Republicans a role in the Northern Ireland government for the first time, was rejected by Protestant parties. Violence continued, and on Aug. 27, 1979, the IRA assassinated Lord Earl Mountbatten, a member of the British Royal Family. More violence ensued following the death of IRA hunger striker Bobby Sands, newly elected to the British Parliament, and nine others in 1981. Riots, terrorist attacks, and sniper fire killed more than 3, 200 people between 1969 and 1998 in Northern Ireland.

The next attempt at reconciliation found its form in the Anglo-Irish Agreement of 1985 , which marked the first time that the Republic of Ireland had been given an official consultative role in the affairs of Northern Ireland. This Agreement was never fully implemented because of Unionist opposition. In 1993, the Downing Street Declaration by British Prime Minister John Major and Irish Taoiseach Albert Reynolds significantly provided that the people of Northern Ireland will “decide their own future”. IRA’s political wing Sinn Fein was offered a seat at peace talks if the violence was ended. IRA declared a ceasefire in August, 1994, and pro-British paramilitaries followed suit.

Multi-party talks were underway by 1996. Representatives of the 8 major Northern Irish political parties participated. For the first time, Sinn Fein won 2 seats in the British Parliament, which went to Sinn Fein president Gerry Adams and second-in-command Martin McGuinness. Former US Senator George Mitchell chaired the talks, and proposed negotiations to parallel phased surrender of guerrilla weapons. IRA’s resumption of the 17 month ceasefire which collapsed in February, 1996 was achieved by diplomatic talks between British Prime Minister Tony Blair and Sinn
Fein President Gerry Adams.

Further developments in the peace process were spurred by the 19-month multilateral negotiations including 8 out of the 10 Northern Irish political parties. (Ulster Unionist Party and Sinn Fein were temporarily suspended from the talks because of continued paramilitary activities.) Mediators included Senator Mitchell, British Prime Minister Tony Blair, Irish Prime Minister Bertie Ahern, and then US President Bill Clinton. In April, the 65-page Good Friday Agreement was drawn up, proposing the devolution of central government power to a Northern Ireland Assembly. The accord called for Protestants to share political power with the minority Catholics in the Assembly, and gave the Republic of Ireland a voice in Northern Irish affairs through the North-South Ministerial Council. The Republic, together with the minority Catholics in Northern Ireland, agreed to abandon territorial claims of a united Ireland unless the majority of the citizen’s inhabitants voted in a referendum for union with the Irish Republic. The latter’s territorial claim was removed from its Constitution in compliance with the Agreement.

The accord was overwhelmingly ratified by 71% of the Northern Irish voters and 94% of the Irish Republic voters. On June 29, 1998, David Trimble was elected First Minister designate of the Northern Ireland Assembly, with the Social Democratic Labor Party’s Seamus Mallon as Deputy First Minister. Dissident republicans under the name ‘Real IRA’ would attempt to forestall the election of Northern Ireland Assembly members by detonating a bomb in Omagh on August 15, killing 29 civilians and injuring another 200 in the single worst atrocity since the Troubles. Despite the renewal of violence, the Northern Ireland Assembly elections were successfully held in September. The Ulster Unionists won the largest share of the vote (28 seats), followed by the Social Democratic and Labor Party (24 seats) and Sinn Fein (18 seats).

Summarizing the Legal Issues

It is difficult to argue with history, particularly when the controversy on territorial sovereignty in Northern Ireland has moved from competing claims of States to the subject territory’s right to exercise self-determination as recognized by the former competitor States. Based on the analysis of hypothetical territorial sovereignty issues, however, the weight of historical and documentary evidence lies with the United Kingdom. The principal bases of the United Kingdom’s claims to territorial sovereignty are acquisition of historic title through conquest, acquisitive prescription, recognition, acquiescence, and abandonment. Prior to the Downing Street Declaration and the Good Friday Agreement, adherents to the Republic of Ireland’s territorial claim to Northern Ireland posit the following as its grounds: the invalidity of the partition of Ireland under the 1920 Government of Ireland Act, the invalidity of the Irish Free State Treaty insofar as it caused the severance of the six northern counties from the Republic, the continuing objection of the Republic to the severance and non-recognition of the unilateral declaration of sovereignty over Northern Ireland by the United Kingdom under the 1949 Ireland Act, the respect for administrative frontiers under the doctrine of uti possidetis, and the principle of geographical unity and contiguity. While Irish republicans’ theory of the case is indeed novel, unfortunately, the dearth in evidentiary support of the case renders their claim less persuasive.

What is also telling is the fact that there is no indication in the ICJ annals that the Republic of Ireland ever sought to invoke the jurisdiction of the International Court of Justice to resolve this dispute. Neither has there been any concrete or substantial military or diplomatic attempt by the Republic to consolidate its claim over Northern Ireland. It is the Irish republican parties and republican paramilitary groups who constitute the protest to British rule in Northern Ireland. The 1922 Irish Free State Treaty was signed by Sinn Fein, the designated negotiator or representative of the Irish people. If the republicans wanted to impugn the validity of this treaty on the ground of error or fraud or corruption of the representative (especially since the allegations of partisanship by the Sinn Fein representative would later trigger the 1922 civil war in Ireland), perhaps the proper recourse would have been to show the vitiation of consent as the basis for withdrawing from the treaty under the Vienna Convention on the Law of Treaties. The Republic’s acquiescence through its lack of protest is firmly established by the signing of the 1922 Treaty and subsequent agreements with the United Kingdom recognizing the status of Northern Ireland (Such as the creation of a Travel Customs Area with the United Kingdom which dispensed with immigration controls between the two countries; the Anglo-Irish Agreement, the Sunningdale Agreement, the Downing Street Declaration, and finally, the Good Friday Agreement.). Even if the Irish Constitution defined the national territory of Eire as that of the whole island of Ireland, this unilateral act, without any attempt at enforcement, is insufficient to overcome the acquiescence demonstrated by the Republic’s overt acts in the sixty years following the 1922 Treaty.

The demand of the Irish republicans for reunion with Ireland, therefore, under the present legal framework of the Good Friday Agreement, must be decided upon by the people of Northern Ireland themselves, without imposition from either the UK or Irish governments. Of course, the fact that the 6 counties are dominated by Protestant Unionists is a consequence that must be dealt with by the Irish republican parties who all signed the Good Friday Agreement and are now participating in its implementation.

Posted by Angel Fidelis at October 14, 2002 10:48 PM