International law and the Island of Ireland’s future

Professor Aoife O’DonoghueAoife O'Donoghue

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the IACL-AIDC Blog and the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

As international law is the arbiter of statehood one would be forgiven for imagining that it delineates the pathways for new/(re)unified/breakaway states. The reality is different. The unhelpfulness of international law derives from its innate conservative nature. Change is unwelcome. Self-determination is so circumscribed that it is almost never fully legal until after the fact. Changing borders, say to alter the Monaghan polyp (a small piece of territory in the Republic of Ireland that is almost completely surrounded by UK territory), is inadvisable. Conversely, international law’s equivocation means where there is agreement, states are free to act once there are no violations of human rights or third-party rights. Recognising any changes is a matter for other states and international organisations. And it is states, not ‘people’, that are paramount. The Belfast/Good Friday Agreement (GFA), The Belfast/Good Friday Agreement (GFA)—the agreement between the parties in Northern Ireland and the related international treaty between the British and Irish Governments that was central to the peace settlement in 1998—sits within the transitional justice tradition making combined international/constitutional insight essential. This post sets out to provide the former.

At times, treaties are thrown into political debates as arbiters of rectitude. When states act unilaterally and contravene treaties, they are rightly condemned, but this does not mean that consensual solutions cannot be found or that contested meanings do not remain. Even if the GFA is far from perfect, it is settled lex specialis in the Northern Ireland context. The GFA resolves some issues, but not all. Its mixed character, its unintended consequences, its (intended) constructive ambiguities, Brexit and its evolution, all form part of the shaping of the ‘constitutional question’. The Vienna Convention on the Law of Treaties (VCLT) provides a baseline of good faith implementation and interpretation and incorporates modifications, including the St Andrews Agreement and New Decade New Approach, but the GFA’s text is paramount.

The distinction between unification or reunification has few legal implications, but it has political meaning for some. In Was Ireland Conquered Anthony Carty examines international law’s status through the Norman invasion, Surrender and Regrant, Plantations, the Act of Union, partition, the Government of Ireland Act 1920, and the 1921 Treaty, demonstrating the complexities in reading international law in its historical context. In their 2013 Government Report on Scottish Independence Boyle and Crawford state that before the 1801 Act of Union Ireland, unlike Scotland, was a colony. While under the 1921 Treaty it is likely that reunification is accurate, in practice there was scarcely a day between its coming into operation and Stormont’s notification to remain in the UK. A supplementary question is when Ireland achieved statehood. Whatever status the UK’s imperial constitutionalism may have granted, international law is the authoritative regime, and effective independent statehood was likely achieved in the mid-1920s.

International law pivots around the right to self-determination rather than on its content. External and internal self-determination, as well as remedial, colonial and seccessionary variants, are frequently utilised categorisations, but the GFA’s existence makes the classification of processes in Ireland largely irrelevant. Ireland was excluded from self-determination’s first international legal iteration at the Versailles Peace Conference, but both it and the UK have been amongst the states creating customary international law and UN Charter practice. As part of decolonisation, self-determination has its strongest legal form, but beyond this context its content remains much debated. Fortunately, the GFA settles these issues by recognising the self-determination claims of ‘the people of Northern Ireland’ and the ‘people of Ireland’; and the 1998 referenda democratically legitimates that recognition.

While the Northern Ireland Act 1998 and Ireland’s various constitutional and legislative practices (discussed elsewhere in this symposium) determine how both states go about referendums, the GFA sets the frame. Under international law, a referendum favouring secession does not necessarily give rise to independence, rather it begins discussions on settlement options, including enhanced autonomy.  However, under the GFA, the UK is bound to the referendum’s outcome. Ireland reserves the incorporation of Northern Ireland to determination via its domestic structures; another exercise of self-determination. The GFA absolutely requires a referendum in Northern Ireland but the difference in language for Ireland theoretically opens possibilities for alternative modes here. The GFA states that processes on either side of the border happen concurrently, which appears to require simultaneousness. Under the terms of GFA ‘the people of Northern Ireland’ are ‘all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence’. This excludes Irish citizens born in the Republic living in Northern Ireland from the franchise, but should both franchises align if concurrence is also important? 16-year olds voted in the Scottish referendum, should that be extended? London and Dublin will need to settle these questions early in any planning.

Just as in 1921, two new states are created. Both unification and break-up create specific issues including, amongst others, liability for state pensions, international debt, responsibility for any ongoing litigation and liabilities. These are normally settled via a treaty which conforms to the Vienna Convention on State Succession 1978. While there is no international legal prescription on state names, as Greece and the Republic of North Macedonia demonstrate, long-running complications can ensue. We could assume the names would be Ireland and the United Kingdom of Great Britain. ‘Clean slates’ as Czech Republic and Slovakia chose, where both states began afresh with their international obligations, is highly unlikely as the UK could wish to continue to hold its permanent seat on the UN Security Council and Ireland its EU membership. Depending on the timings of a new/revised constitution a lacuna of human rights obligations that conform to GFA standards, for instance, on parity of esteem (the central principle enshrining the need for recognition and respect for both main communities of Northern Ireland), could be created. However, both States are signatories to numerous human rights treaties including the European Convention on Human Rights and have domestic and shared human rights monitoring bodies (as part of the GFA) which should provide short-term fixes for both rights existence and enforcement.

Should either state fail to comply with the GFA, there are limited avenues for redress. For instance, should the Secretary of State for Northern Ireland refuse to hold a referendum both domestic and international options are possible. A violation of the treaty would be an international wrongfully act under The Articles on Responsibility of States for Internationally Wrongful Acts, but there is no dispute settlement clause in the GFA. Ireland excluded the International Court of Justice’s jurisdiction over disputes regarding Northern Ireland. General Assembly members could ask for an Advisory Opinion as per the Chagos Archipelago Opinion, but this would take a major diplomatic effort. Both states could create an ad hoc tribunal, but domestic avenues of judicial review are potentially more effective.

The GFA is not temporally limited. It contains future locks where ‘whatever choice … the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality’.  In 1998, Ireland’s Attorney General highlighted that ‘the commitments in the British-Irish Agreement to equality of treatment and parity of esteem, and to the dual citizenship rights of the people of Northern Ireland, are explicitly to apply irrespective of the status of Northern Ireland’. East-West cooperation and birth right provisions to claim UK citizenship and parity of esteem are set to continue even if a united Ireland comes to pass.

The GFA settles many issues, and other state practices are informative, but enough issues remain to demand imaginative forethought from all concerned parties.

Aoife O’Donoghue is a Professor of International Law and Global Governance at Durham University Law School. This work forms part of an ESRC Governance after Brexit project Performing Identities and the article, co-authored with CRG Murray ‘Life after Brexit: Operationalising the Belfast/Good Friday Agreement’s Principle of Consent’ is forthcoming in the Dublin University Law Journal.

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