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Max Planck Encyclopedia of Public International Law [MPEPIL]

Northern Ireland

Rainer Grote

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 May 2019

Subject(s):
Secession — Sovereignty — National liberation movements — Peace keeping — Disarmament — Armed forces

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The Northern Ireland conflict has been one of the longest and most protracted in recent European history. It is a legacy of England’s long and often violent involvement in Ireland, which started as early as the late 12th century when the first English settlers arrived in Ireland. Not surprisingly, the attempts to settle the conflict have been equally complex, often straddling the boundaries between international and constitutional law and establishing a multi-layered political and institutional framework. In the process, the British and Irish governments have also redefined and reshaped central concepts of international law such as sovereignty, self-determination, and minority rights (Minorities, European Protection) in a way for which there are few, if any, precedents.

B.  Development of the Northern Ireland Conflict until the Government of Ireland Act 1920

1.  Plantation and Military Conquest in Ireland

Prior to its conquest at the end of the 16th century the north-eastern part of Ireland, known by the historic name of Ulster, had been completely outside English control. Following the surrender and emigration of the Irish Lords of Ulster the English Crown used their lands in order to establish ‘plantations’ of English and Lowland Scots settlers in the newly occupied territories. The scope of confiscation was gradually widened as insurrections arose among the dispossessed native population and were put down. The bloody re-conquest of Ireland by Oliver Cromwell in 1649–50 was followed by a new plantation which involved a massive change in the ownership of the landed estates. The 1652 Act of Settlement stated that anyone who had held arms against Parliament in the English Civil War would forfeit their lands. This included the Irish rebels who in their great majority had supported Charles I in the hope that he would accept their demands—toleration for Catholicism, Irish self-government and an end to the plantation policy. Catholic hopes for the restitution of their lands and the restoration of their former role in public life, which had been revived by the return of the Stuarts to the English throne in 1660, were dealt a fatal blow by the Glorious Revolution of 1688. Although often called the ‘bloodless’ revolution in England, the overthrow of James II involved a series of major battles in Ireland. The military victories of William of Orange at Derry, Enniskillen, the Boyne and Aughrim secured Protestant British rule in Ireland for more than two centuries and would later come to be remembered by Ulster Protestants as the beginning of their ‘great deliverance’.

The policies of plantation and military conquest in Ireland resulted in the emergence of two distinct cultures and traditions in the island, and particularly in Ulster, which historically comprised the counties of Londonderry, Antrim, Down, Armagh, Fermanagh, Tyrone, Doneghal, Monaghan and Cavan. These traditions were based on ethnic as well as on religious factors. Despite a long history of migration between the British Islands and of intermingling of settlers and the native population, divisions between the Anglo-Irish and Scots-Irish on the one hand and the Irish-Irish on the other persisted for a long time. Religion has been an even more divisive element. The settlers arriving from Scotland and England were by and large Presbyterians and Anglicans whereas the earlier inhabitants remained in their great majority loyal to the Roman Catholic Church and suffered severe civil and political disabilities which were only lifted in the Catholic emancipation in 1829. During the late 19th and the 20th centuries, however, the ethnic and religious differences were increasingly eclipsed by political divisions created by the seemingly irreconcilable preferences of the majority Protestant community in Ulster wishing to maintain the union with the United Kingdom of Great Britain (‘UK’)—hence the name Unionists—and the Catholic minority which aspires to a united Ireland under the leadership of an independent national government based in Dublin—hence their denomination as Nationalists.

2.  Beginnings of the Nationalist Movement

These divisions crystallized with the campaign of the Irish nationalist movement for the repeal of the Act of Union of 1800 which had created the UK and Ireland with a united Parliament in Westminster during the last decades of the 19th century. The Ulster Protestants opposed such demands even at the level of Home Rule, ie Irish self-government in internal matters within a modified union framework, for fear of Catholic dominance in the self-governing institutions which would leave their vital political, economic and cultural interests unprotected (‘Home Rule means Rome Rule’). When the Third Home Rule Bill was introduced by the Asquith government in Parliament in 1912—the First and the Second Home Rule Bill having been defeated in the Commons and in the Lords respectively—the Ulster Unionists raised a volunteer military force and formed a provisional government ready to take over government in Ulster should the Bill become law. Outright civil war in Ireland was only averted by the outbreak of World War I, the Asquith government having agreed that it would not implement the controversial Government of Ireland Act, which had finally been adopted in 1914, before the end of the war. The Easter Rising in Dublin in April 1916 during which a group of Irish Nationalists led by Patrick Pearse and James Connolly proclaimed an independent Irish Republic had shown, however, that Ireland was inexorably sliding towards revolution and war. At the end of World War I the British government was thus faced with the choice of either implementing the Government of Ireland Act 1914 or of introducing some new scheme.

3.  Government of Ireland Act 1920

The solution came in the form of the Government of Ireland Act 1920 (‘1920 Act’), which provided for two bicameral Parliaments, one in Northern and one in Southern Ireland, which were to exercise jurisdiction on most domestic issues while matters of imperial concern were reserved to the Imperial Parliament in London. The jurisdiction of the Northern Ireland Parliament extended to six of the nine counties of the historical province of Ulster, allowing the three Ulster counties of Monaghan, Cavan and Donegal to go to Southern Ireland but retaining Fermanagh and Tyrone within Northern Ireland although both counties had a Catholic majority at the time. The remaining 26 counties fell within the remit of the Parliament of Southern Ireland. The 1920 Act effectively protected Ulster Unionists from Home Rule exercised by all-Ireland institutions in Dublin, not temporarily as had been initially envisaged, but permanently, and provided them with a sufficiently large territory to form a viable State. The 1920 Act addressed the issue of a future reunification with Southern Ireland by providing for the establishment of a Council of Ireland, which would promote co-operation between Northern and Southern Ireland and be responsible for those all-island services on whose joint administration the two Parliaments might agree. The Parliaments could also decide, by identical legislation, the replacement of the Council of Ireland by a Parliament for the whole of Ireland at a later stage. But as it soon turned out, not even the first stage of the envisaged reunification process would be completed. The Council of Ireland never became operative. It was finally abolished by legislation in 1925 and its powers in respect of the territory of Northern Ireland were transferred to the Parliament and government of Northern Ireland.

C.  The Anglo-Irish Agreement of 1921 and the Partition of Ireland

The institutions created by the 1920 Act were not recognized in the southern part of the island where Sinn Féin had emerged as the dominant voice of Irish nationalism. Following the last all-Ireland parliamentary elections in December 1918 in which it had won 73 of the 105 Irish seats in the British Parliament, Sinn Féin decided not to take up these seats, preferring instead to hold its own Parliament, the first Irish Dáil. The Dáil, which was not recognized by Britain, confirmed the proclamation of 1916 and declared itself to be the Parliament of the independent Irish Republic. Following this unilateral declaration of independence the military forces of the Irish Nationalists (Secession), the Irish Republican Army (‘IRA’), fought a guerrilla war against the British army and the British authorities (Guerrilla Forces). In July 1921, a ceasefire was agreed and the UK government entered into negotiation[s] with Sinn Féin’s leaders about a peaceful settlement. The negotiations finally produced the Articles of Agreement establishing the Irish Free State (‘Articles of Agreement’) which were approved by the second Dáil, elected under the procedures provided for the elections to the lower house of the Southern Ireland Parliament in the 1920 Act, by 64 votes to 57. The Dáil members who opposed the Articles of Agreement walked out of the Southern Parliament. An IRA convention in Dublin rejected the Articles of Agreement and reaffirmed its commitment to an all-Ireland Republic.

Under the Articles of Agreement the Irish Free State was to have the constitutional status of a self-governing dominion of the British Empire, on a par with Australia, Canada, New Zealand and South Africa. A Governor-General would represent the Crown in Dublin, members of Parliament would have to swear allegiance to His Majesty King George V and the British would retain control of a number of British ports. While the settlement formally extended also to Northern Ireland, the Articles of Agreement recognized the right of Northern Ireland to ‘opt out’ of the Irish Free State by providing for the continued application of the 1920 Act and the termination of the powers of the Irish Free State Parliament and government with regard to Northern Ireland should the Northern Ireland Parliament present an address to His Majesty to this effect within one month of the ratification of the Articles of Agreement by Act of the British Parliament. Both houses of the Parliament of Northern Ireland passed such resolution within three days of the adoption of the Act.

Art. 12 Articles of Agreement provided that if Northern Ireland chose to retain its status as defined in the 1920 Act a boundary commission (‘Commission’) would determine the boundaries between Northern Ireland and the rest of Ireland ‘in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions’. Following the refusal of the Northern Ireland government to appoint one of the three members of the Commission, as it was required to do under the Articles of Agreement, the British government eventually appointed two members and the Irish government one member. The member appointed by the Irish government, however, withdrew from the work of the Commission shortly before it could finish its report. The changes envisaged in the Commission report were disappointing to the Irish Free State since they did not recommend the main disputed areas in South Down, Fermanagh and Tyrone for transfer to the Irish Free State, although on balance more persons and land would have been transferred to the Irish Free State than to Northern Ireland under its recommendations. Another intergovernmental conference was called which resulted in a tripartite agreement between the UK, Northern Ireland and the Irish Free State in which the boundaries laid down in the 1920 Act were confirmed.

During the following two decades the imperial ties of the Irish Free State with the UK were gradually terminated. In 1937 the Irish Free State adopted a new Constitution which reaffirmed the right of self-determination of the Irish nation and its aspiration to a united Ireland. Art. 2 Constitution of Ireland 1937 declared that the national territory comprised the whole of Ireland, its islands and territorial sea[s]. However, Art. 3 Constitution of Ireland 1937 provided that, while the Parliament and government established by the new Constitution were entitled to exercise jurisdiction over the whole of the national territory, the laws enacted by that Parliament should, pending the reintegration of the national territory, have the same scope of application and effect as the laws of the Irish Free State, ie apply only to the 26 counties of Southern Ireland. In the following year an agreement was concluded between the British and the Irish governments which ended the former right to use ports in Ireland for defensive purposes and effectively allowed Ireland to remain neutral in World War II. The last ties with the UK were severed when the Irish Republic left the Commonwealth in 1949. The UK Parliament, for its part, recognized in the Ireland Act 1949 that the part of the island hitherto known as Eire had ceased to be part of His Majesty’s dominions, although the Republic of Ireland was not to be considered a foreign country for the purposes of UK legislation, a provision which effectively exempted Irish citizens from immigration control and allowed them to register as electors in UK elections if they were residing in UK territory. At the same time, the Ireland Act 1949 solemnly declared that Northern Ireland remained part of the UK and that ‘in no event’ (section 1 (2) Ireland Act 1949) would this status change without the consent of the Parliament of Northern Ireland.

D.  Home Rule in Northern Ireland 1922–72

1.  Electoral Politics

10  The partition of Ireland left a sizeable Catholic minority in Northern Ireland, a minority which had no real prospect of exercising political power. Although the 1920 Act originally provided for the election of the House of Commons in the bicameral Northern Irish Parliament on the basis of proportional representation in multi-member constituencies, it permitted the Parliament of Northern Ireland to alter the qualifications and registration of electors and the law relating to elections and constituencies after three years from the day of its first meeting. In 1929 the Northern Irish Parliament abolished proportional representation and introduced the traditional first-past-the-post system. While this change did not affect the fundamental balance of power in Northern Ireland—the Unionists were virtually assured to govern Northern Ireland so long as Protestants remained in the majority and were held together by their fear of Irish reunification—it further increased the polarization between the two main communities by reducing the prospects for parliamentary representation of smaller, non-confessional parties which could have exercised a moderating influence. This polarization was compounded by the switch from proportional representation to a simple majority system in local government elections in 1922. The legislation also allowed the Northern Irish Ministry of Home Affairs to redraw the electoral boundaries, a power which was used by the Unionist government in Belfast for gerrymandering purposes in order to obtain as large a number of Unionist local councils as possible. The legislation resulted a substantial number of local councils which had previously been dominated by Nationalists passing under Unionist control, even in areas where the number of Nationalist voters was considerably higher than that of Unionist voters.

2.  The Police and the Judiciary under Home Rule

11  Under the devolutionary system of government set up by the 1920 Act, the Northern Ireland Parliament and government were entitled to exercise those powers which did not relate to ‘reserved’ or ‘excepted’ matters, the latter including the armed forces, international relations, naturalization, external trade, but also the most important tax matters (‘reserved powers’ being those that were originally intended for transfer to an all-Ireland Parliament should one be created). In order to compensate for the withholding of those major powers, Northern Ireland continued to be represented in the UK Parliament, originally by 13 and since 1948 by 12 members of Parliament. Crucially, the powers devolved to the Northern Ireland Home Rule institutions included those relating to law and order and the police, albeit subject to the general principle of parliamentary sovereignty which meant that powers conferred on the legislature and executive of Northern Ireland were at all times removable by an Act of the Westminster Parliament. To confront the dangers of civil war and an IRA invasion from the South which accompanied the partition of Ireland, the Parliament of Northern Ireland enacted the Civil Authorities (Special Powers) Act 1922 (‘Special Powers Act’). This Act authorized the Northern Ireland Minister of Home Affairs to make regulations dealing with powers of arrest, detention, search and seizure, and to take the necessary steps to maintain peace and order. Although the Special Powers Act was originally to remain in force only for a limited period, it was subsequently renewed on several occasions until a further Act provided that it would continue in force until Parliament otherwise determined. Among other things, the Special Powers Act provided for the power of detention without trial or internment, a power which would be widely used in the first years after the outbreak of ‘the troubles’, turning the Special Powers Act into a powerful symbol, in the eyes of the Catholic community, of the repression of fundamental civil rights.

12  In order to deal with the threat of internal disturbances and external invasion which followed the partition of Ireland, the government of Northern Ireland established the Royal Ulster Constabulary and assigned to it, in addition to the functions normally associated with the police, additional security duties of a military nature. At the same time it continued with the build-up of the Ulster Special Constabulary, the ‘B Specials’, which initially had been assembled by the Imperial government in Northern Ireland to deal with the civil war. In neither force did Catholics enjoy any significant representation. Protestants also dominated the Northern Irish judiciary. The Parliament at Stormont was competent to legislate, under its general powers for peace, order and good government, on the courts below High Court level, and the Northern Ireland government used its appointment powers to send predominantly Protestants, many of them former politicians, to the bench.

3.  Protestant Domination in the Economic and Social Spheres

13  Protestant domination was carried over into the economic and social spheres where it almost inevitably resulted in discrimination against the Catholic minority in the provision of housing and other social services and in the unequal distribution of employment and job opportunities, especially in the public sector (Racial and Religious Discrimination). Local government appointments, in particular at the senior level, were often made to the detriment of non-Unionists. In order to maintain their political control, which might be threatened if Catholics moved into areas with a narrow Unionist majority, some Unionist councils resorted to a policy of segregated housing, cramming Catholics into wards already controlled by Catholic voters. The resulting injustices caused a powerful sense of resentment among the Catholic population, a sense of frustration which was further fuelled by the perceived failure of the government to investigate their complaints and to provide an adequate remedy for them. Exasperation over almost 50 years of continuous one-party rule, resentment with regard to the partisan character of the police and security forces, particularly the B Specials, and the discriminatory application of the special powers under the Special Powers Act were additional causes for the growing unrest among the Catholic population, an unrest which was matched to a certain extent by increasing apprehensions among Protestants of an increase in Catholic power and a future threat to Unionist domination.

4.  Disintegration of Home Rule 1968–72

14  The grievances of Catholics had been addressed since the mid-1960s by the Northern Ireland Civil Rights Association (‘NICRA’) which, borrowing from the tactics and the symbolism of the American civil rights movement, launched a human rights campaign in 1967. Unlike the American movement, the majority of the NICRA did not have any hope of an effective redress of the situation of the Catholic minority through the courts; its strategy therefore focused strongly on public protest and civil disobedience. The conflict with the Northern Ireland government escalated when its marches gave rise to widespread rioting and public disorder, culminating in the violent confrontation between the marchers and the police in Londonderry (Derry) on 5 October 1968. During the following months and years sectarian violence and communal strife became an ever more important feature of public life in Northern Ireland.

15  As a result, the UK government, which was responsible for the potential use of the armed forces in order to pacify the province, was drawn ever more deeply into the evolving violence. In August 1969 it started to deploy British troops in Northern Ireland in order to support the police in restoring order (‘Operation Banner’). In return it demanded from the government of Northern Ireland the introduction of reforms which would address the root causes of the violence and heal the divisions within Northern Irish society. Although a number of reform measures, such as the disbanding of the B Specials, were subsequently announced and partly implemented, they were overshadowed in the public perception by the wave of violence engulfing Ulster and the alleged and real excesses committed by the security forces, including the British troops, in their attempts to contain it, culminating in the fatal shootings of unarmed Nationalist demonstrators by British paratroopers in Derry in January 1972 (‘Bloody Sunday’). When in the wake of these events the British government announced its intention to take over the law and order powers in the province, the government of Northern Ireland reacted by submitting its resignation. In March 1972, the British government announced the temporary suspension of the devolved institutions in Northern Ireland and introduced a Bill in Parliament, subsequently adopted as the Temporary Provisions (Northern Ireland) Act 1972, which vested all governmental powers in Northern Ireland in the Secretary of State.

E.  Northern Ireland under Direct Rule 1972–98

1.  Attempts to Restore Home Rule

16  British policy in Northern Ireland in the following years continued to be based on the assumption that, as Northern Ireland remained part of the UK, the restoration of law and order in the province was primarily an internal matter. The British government therefore rejected early attempts by the Irish government to bring the situation before the United Nations and to allow peacekeeping forces into Northern Ireland. Following a border poll in March 1973 boycotted by the Nationalists in which a huge majority of those taking part voted for the maintenance of the Union with Britain, the Northern Ireland Constitution Act 1973 reaffirmed that Northern Ireland remained part of the UK unless and until the majority of the people of Northern Ireland voting in a poll held for that purpose would decide otherwise.

17  Nevertheless the British government was prepared to recognize an ‘Irish dimension’ when it attempted to restore Home Rule in the province in the same year. After the election of a new Northern Ireland assembly in June 1973 representatives of the British and Irish governments discussed with delegations of the parties represented in the assembly the prospects for the establishment of a Northern Ireland power-sharing executive in which both Unionists and Nationalists would participate and the creation of a Council of Ireland which would exercise certain executive functions for the whole of Ireland. The so-called Sunningdale Agreement, signed at the end of the negotiations, envisaged that the Council of Ireland would consist of a council of ministers and a consultative assembly, with an equal number of members drawn from the Irish and Northern Ireland executives and Parliaments, respectively. The territorial status of Northern Ireland was addressed in parallel declarations by the British and Irish governments in which the British government confirmed the status quo of Northern Ireland as part of the UK but expressed its readiness to support a change should a majority of the people of Northern Ireland so decide, while the Irish government solemnly recognized that in the absence of such wish the status of Northern Ireland would remain unchanged. The accord collapsed, however, when Unionist politicians were forced to withdraw from the power-sharing executive at Stormont following a general strike called by the pro-Unionist Ulster Workers’ Council in May 1974. Another attempt by the UK government to devolve power back to an elected assembly in 1982 failed when the main Nationalist political parties refused to take part in the parliamentary process.

2.  Counter-Terrorist Strategies and International Law

18  During much of the 1970s and 1980s, the policies of the British government focused on the eradication of violence as a precondition for any lasting political settlement in Ireland. This involved a hardening of the official attitude towards those responsible for the violence, especially the IRA, and their straightforward criminalization. Claims by the IRA that it was engaged in a war of national liberation against occupying British forces in Northern Ireland (Occupation, Belligerent; Wars of National Liberation) and that it could therefore claim the status of a national liberation movement (National Liberation Movements) under international law have never been accepted by the British government, nor by the international community—including the Republic of Ireland—at large. At the time of signing Additional Protocol I to the Geneva Conventions in 1977, the British government declared that the term armed conflict implied a certain level of intensity of military operations which must be present before the conventions or protocol could apply to a situation and that the claim of an armed group to represent a people would have to be recognized by the appropriate intergovernmental organization to be considered as valid (Geneva Conventions Additional Protocol I [1977] ; Geneva Conventions Additional Protocol II [1977]; Geneva Conventions I–IV [1949]). In the case of the IRA, no such recognition was afforded, and the British government denied that the level of military operations in Northern Ireland was sufficient to constitute a non-international armed conflict (Armed Conflict, Non-International). While special category status was granted to those detained for IRA-related activities in the early 1970s, this policy was phased out beginning on 1 March 1976, and no prisoner convicted on or after that date was accorded special category treatment.

19  Attempts were also made to use the enforcement machinery of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) in order to subject the security policies and anti-terrorism measures adopted by the Northern Ireland government and later by the British government to international scrutiny (Terrorism). The British government found it necessary to derogate under Art. 15 ECHR from certain obligations under the ECHR with regard to the situation in Northern Ireland (Emergency, State of). While the derogations limited the scope for international judicial review of security measures adopted in the province, they did not eliminate it altogether. In Ireland v United Kingdom (1978), the first inter-State application to reach it, the European Court of Human Rights (ECtHR) found that during the internment campaign of 1971 and 1972 in which more than 2000 persons of mainly Catholic origin had been detained and interrogated without a court warrant or any other form of judicial control under the Special Powers Act, the UK had violated Art. 3 ECHR by authorizing or condoning the use of interrogation techniques such as hooding, the deprivation of food and drink or enforced standing against a wall. In Brogan and others v United Kingdom (1988) it held that to detain suspected terrorists for periods of four to seven days without bringing them before a judge violated the requirement to be brought promptly before a judge under Art. 5 (3) ECHR. The British government responded to this ruling by making a derogation under Art. 15 ECHR. Finally, the extraterritorial aspects of the fight against the IRA came under scrutiny in McCann and others v United Kingdom (1995) where the ECtHR found that there was a lack of appropriate care in the conduct and planning of the arrest operation leading to the shooting of three IRA terrorists who were intending to detonate a bomb in Gibraltar, and that this amounted to a violation of Art. 2 ECHR (McCann Case).

3.  From the Hillsborough Agreement to the Good Friday Agreement

20  After the breakdown of the power-sharing arrangement and the Sunningdale Agreement in 1974 it took some time for a coordinated UK-Irish approach to the problem of Northern Ireland to emerge. The basis for coordinated action was finally provided by the Hillsborough Agreement of 15 November 1985. While that agreement did not define the precise status of Northern Ireland, it acknowledged that its present status reflected the wish of a majority of the people of Northern Ireland and could not be changed without the consent of a majority of the people of Northern Ireland. Challenges which were brought against this provision of the Hillsborough Agreement in Irish courts for alleged violation of Arts 2 and 3 Constitution of Ireland were unsuccessful, as challenges to similar formulations in the Sunningdale Agreement had been. To the dismay of Unionists who had not been informed of the negotiations, the Hillsborough Agreement for the first time formally recognized the right of the Irish government to present its proposals and to consult on specified matters concerning Northern Ireland. In addition, it provided for a close co-operation of both governments on security matters, including the pledge of the Irish government to accede to the European Convention on the Suppression of Terrorism, a move which was facilitated by the more restrictive jurisprudence adopted by the Irish Supreme Court since 1983 on the application of the political offence exception to UK extradition requests concerning persons allegedly involved in grave terrorist acts in Northern Ireland.

21  The Hillsborough Agreement paved the way for further bilateral negotiations on the subject of Northern Ireland which resulted in the Joint Declaration of 1993—also known as the Downing Street Declaration—and the Frameworks Agreement of February 1995 containing the proposals of the two governments for future institutional arrangements in Northern Ireland. In August 1994, the IRA announced the end of its military operations, an announcement that was followed by the calling of a ceasefire by some loyalist paramilitaries. Subsequent negotiations followed a twin track approach, consisting of talks between the different parties in Northern Ireland in order to find common ground for all-party negotiations on the one hand and the assessment of the decommissioning of weapons by an independent international commission headed by US Senator George Mitchell (‘Mitchell Commission’) on the other hand. Although the Mitchell Commission recommended that all-party talks and decommissioning occur simultaneously, this was opposed by the Conservative government in London which depended on the support of the Unionist members of Parliament in Westminster to preserve its slim parliamentary majority. It insisted on prior decommissioning and called for Northern Ireland elections, duly held in May 1996, as an entry mechanism into all-party talks.

22  The election victory of the British Labour Party in May 1997 gave the peace process a new impetus as the incoming Labour government was less beholden to Unionist pressure. The government pursued the engagement of Sinn Féin, the political wing of the Republican movement, into the peace talks, leading in December 1997 to the first reception of a Sinn Féin leader at the residence of the British Prime Minister in Downing Street. A new ceasefire was announced by the IRA in July 1997. Although the Democratic Unionist Party (‘DUP’) withdrew from the peace negotiations in frustration at the lack of progress on decommissioning, the remaining eight political parties and the British and Irish governments were able to conclude the talks successfully on 10 April 1998. The Good Friday Agreement—also known as the Belfast Agreement—was approved by a 71% majority in Northern Ireland and a 95% majority in the Republic of Ireland in separate polls held on 22 May 1998.

F.  Structure and Main Elements of the Good Friday Agreement

23  The Good Friday Agreement consists in fact of two separate agreements: the agreement reached at the multi-party talks in Northern Ireland (‘Multi-Party Agreement’), to which all the groups and parties in Northern Ireland which had taken part in the negotiations plus the two governments are parties; and a separate bilateral agreement between the UK and the Irish government (‘Bilateral Agreement’), which replaces the Hillsborough Agreement and lays down the obligations resulting from the Multi-Party Agreement for the two governments as binding obligations under international law. The latter treaty came into force on 2 December 1999 (Treaties), after the adoption of the implementing legislation and the notification thereof provided for in its Art. 4.

1.  Self-Determination

24  The historic compromise which made possible the Good Friday Agreement lies in the recognition, by the Irish government and Northern Irish Nationalists, that Northern Ireland at present is a part of the UK and that this status reflects the wish of a majority of the people in Northern Ireland and can only be changed by democratic means; and the acceptance, by Unionists, that the status of Northern Ireland is open to change and that a united Ireland can be brought about if this is supported by a majority of the people in Northern Ireland. The British and Irish governments as well as the participants in the multi-party talks recognize that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without internal impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given in both North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be exercised subject to the agreement and consent of a majority of the people of Northern Ireland. The British and Irish governments accept that it is their binding obligation to introduce and support in their respective Parliaments legislation to give effect to that wish. The UK Parliament has implemented this obligation by adopting the Northern Ireland Act 1998, which makes the union of Northern Ireland and Great Britain expressly dependent on the consent of the majority of the people in Northern Ireland and provides for the holding of a referendum if at any time it appears likely to the Secretary of State that a majority of those voting would express a wish that Northern Ireland should cease to be part of the UK and form part of a united Ireland. The Irish government, for its part, introduced amendments to Arts 2 and 3 Constitution of Ireland which received overwhelming support in the referendum of 22 May 1998. The amended Arts 2 and 3 Constitution of Ireland no longer contain any reference to Irish territorial claims with regard to the North but state that it is ‘the entitlement and birthright of every person born in the island of Ireland … to be part of the Irish Nation’ (Art. 2 Constitution of Ireland) and that it is:

the firm will of the Irish Nation … to unite all the people who share the territory of the island of Ireland … recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island (Art. 3 (1) Constitution of Ireland).

2.  Power-Sharing and Human Rights

25  In order to provide the two communities with a maximum sense of security, both governments affirm that, whatever the choice of the people of Northern Ireland with regard to the constitutional status of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with ‘rigorous impartiality’ (Art. 1 (5) Bilateral Agreement) based on the principles of full respect for human rights, freedom from discrimination, ‘parity of esteem’ (ibid) and ‘just and equal treatment for the identity, ethos and aspirations of both communities’ (ibid). The Bilateral Agreement recognizes the right of all individuals in Northern Ireland to claim either British or Irish nationality or both as part of their ‘birthright’ (Art. 1 (6) Bilateral Agreement). The principles of ‘parity of esteem’ and ‘just and equal treatment’ form the basis for the provisions of the Agreement on the Establishment of Power-Sharing Institutions for Northern Ireland which have been implemented by the Northern Ireland Act 1998. These institutions consist of a devolved assembly (‘Assembly’) in Northern Ireland elected on the basis of proportional representation—single transferable vote—and a power-sharing executive chaired by a First Minister and a Deputy First Minister of whom one is drawn from the Unionist and one from the Nationalist side of the community. The other ministerial offices in the executive and the chairs of the various Assembly committees which oversee the work of ministers are allocated to the respective parties sitting in the Assembly according to their proportion of seats. Key decisions in the Assembly, which include those on the election of the Assembly chair, of the First and Deputy Minister, standing orders and budget allocations, have to be taken on a cross-community basis, ie either with an absolute majority of the Assembly members present and voting which include a majority of the Unionist and Nationalist designations present and voting, or with a 60% majority which includes at least 40% of the Nationalist and Unionist designations. Under the Northern Ireland Act 1998, the Assembly has the power to adopt primary legislation on devolved matters, ie those matters that were administered by the six Northern Ireland government departments at the time of the Good Friday Agreement, including agriculture, economic development, education, the environment, health, and social security. Reserved matters which may be devolved to the Assembly at some future point include policing and justice matters, while excepted matters—eg foreign relations and defence—will continue to fall within the responsibility of the UK government unless Northern Ireland ceases to be part of the UK.

26  With regard to the protection of human and minority rights, the Good Friday Agreement requires the UK government to complete incorporation into Northern Ireland law of the ECHR, a process to which the Labour government was already committed throughout the UK. This was completed with the coming into force of the UK Human Rights Act 1998 on 2 October 2000. Moreover, the Northern Ireland Act 1998 contains a provision which makes it unlawful for any public authority to discriminate against any person or class of persons on the ground of religious belief or political opinion. The British government also agreed to establish a Northern Ireland human rights commission which has the task, among other things, to advise the Secretary of State on the scope for a Bill of Rights for Northern Ireland. The Good Friday Agreement embraces mainstreaming as the dominant legal approach to the problem of equality by providing for the creation of a statutory obligation on public authorities to carry out all their functions with due regard to the need to promote equality of opportunity (see section 75 Northern Ireland Act 1998) and for the establishment of a unified equality commission to monitor respect for equality and parity of esteem between the communities. It also provides for the review and overhauling of the police and the criminal justice sectors which had long been accused of partiality and bias by the Nationalist community.

27  The Good Friday Agreement requires the Irish government to take similar steps to strengthen further the protection of human rights in its jurisdiction, including further examination of the incorporation of the ECHR into domestic law, the establishment of a human rights commission with a mandate equivalent to that in Northern Ireland (Mandates), ratification of the Council of Europe (‘COE’) Framework Convention for the Protection of National Minorities, and the promotion of employment equality and equal status legislation. In keeping with its obligations, Ireland ratified the COE Framework Convention for the Protection of National Minorities in 1999 and incorporated the ECHR, including the first, fourth, sixth and seventh protocols, into domestic law on 1 January 2004. A 15-member human rights commission was set up in 2001, together with a joint committee of the Irish and the Northern Ireland Human Rights Commission which shall facilitate the enforcement of common human rights standards throughout the whole island.

3.  North-South Relations and the British-Irish Dimension

28  In addition, the Good Friday Agreement establishes a North/South Ministerial Council (‘Ministerial Council’) in order to provide a forum for the development and implementation of common policies of mutual benefit. The Ministerial Council consists of the heads of the Northern Irish and the Irish administrations, ie the First Minister and the Deputy Minister from Northern Ireland and the Taoiseach from Ireland, and the relevant ministers. Decisions are to be taken by agreement between the two sides. The Good Friday Agreement lists 12 areas for North/South co-operation, others may be considered by the Ministerial Council. In order to give the Ministerial Council the necessary credibility, the Good Friday Agreement provides for the establishment of implementation bodies which have the task to implement, on a cross-border and all-island basis, policies agreed in the Ministerial Council. The Good Friday Agreement declares the Ministerial Council and the Northern Ireland Assembly to be ‘mutually inter-dependent’ (Art. 13 Strand 2 Good Friday Agreement), so that one cannot successfully function without the other.

29  As a quid pro quo for the Unionists’ acceptance of the creation of the North/South cross-border institutions, the Good Friday Agreement provides for the establishment of a British-Irish council, a forum for bringing together representatives of the British and Irish governments as well as those of the devolved institutions in Northern Ireland, Scotland and Wales and of the Isle of Man and the Channel Islands (Channel Islands and Isle of Man). In addition, the Good Friday Agreement establishes a new British-Irish Intergovernmental Conference which effectively subsumes the institutions created by the Hillsborough Agreement and promotes the co-operation of the British and Irish governments on all matters of mutual interest within their competence.

4.  Decommissioning and Release of Prisoners

30  Finally the Good Friday Agreement addresses the sensitive issues of decommissioning and release of prisoners. The participants in the talks reaffirm their commitment to the total disarmament of all paramilitary organizations. The Mitchell Commission is given the task to monitor, review and verify the decommissioning of illegal arms, which would begin in the summer of 1998 and was to be completed within two years. In order to encourage the paramilitaries to abandon the armed struggle once and for all, the Good Friday Agreement commits the British government to the normalization of security arrangements, ie to the withdrawal of British troops from the province, although this is made dependent on the existing level of threat.

G.  Implementation of the Good Friday Agreement and Current Status of the Peace Process

1.  Early Progress

31  The first stages of the implementation of the Good Friday Agreement were completed relatively smoothly. The amendments to the Constitution of Ireland, which included the abandonment of the territorial claim over the North as well as provisions designed to create the constitutional basis in Irish law for the new North/South institutions, were adopted in a referendum in Ireland on 22 May 1998. The Northern Ireland Act 1998, which enacted in British law the constitutional status of Northern Ireland and made provision for the Assembly and a power-sharing executive, received Royal Assent on 19 November 1998. Already on 25 June 1998 the first elections to the ‘shadow’ assembly had taken place on the basis of proportional representation, and on 1 July 1998 David Trimble (Ulster Unionist Party) and Seamus Mallon (Social Democratic and Labour Party) were elected as First Minister and Deputy First Minister (Designate) respectively at the Assembly’s first meeting. On 8 March 1999 the British and the Irish governments concluded several agreements setting up the institutions of North/South co-operation, ie the Ministerial Council and the implementation bodies—the British-Irish Council and the British-Irish Intergovernmental Conference—provided for in the Good Friday Agreement. They entered into force on 2 December 1999, on the same day on which the new Anglo-Irish Agreement concerning Northern Ireland became effective and powers were formally devolved to the Assembly under the Northern Ireland Act 1998.

2.  Crisis over Decommissioning and Suspension of the Assembly

32  From then on, progress on implementation became increasingly difficult to achieve. Only two months later, in the absence of any significant progress on the issue of decommissioning, the Secretary of State for Northern Ireland decided to suspend the Assembly using his new powers under the Northern Ireland Act 2000. The legislation, which had attracted considerable criticism in Ireland, allows for the suspension of the devolved institutions by unilateral decision of the UK government. The suspension order was designed to prevent the resignation of the First Minister—David Trimble—whose Ulster Unionist Party had made its participation in the power-sharing institutions dependent on visible progress in the decommissioning of IRA weapons. In view of new assurances from the IRA that it would put its arms completely and verifiably beyond use, the leadership of the Ulster Unionist Party declared its readiness to re-enter the power-sharing executive at Stormont, and devolution was restored to Northern Ireland at the end of May 2000.

33  Even during this—as it turned out, limited—period of devolved government in Northern Ireland, things did not go smoothly. In October and November 2000, the First Minister refused to nominate Sinn Féin’s Ministers to the Ministerial Council meetings, in an attempt to put pressure on Sinn Féin to use their influence on the IRA to secure decommissioning of paramilitary arms in accordance with the Good Friday Agreement. His decision was declared unlawful by both the High Court and the Northern Ireland Court of Appeal which held that the power to nominate the Northern Ireland executive’s representatives to the talks in the Ministerial Council was intended to facilitate the work of the Ministerial Council and did not cover the collateral purpose of pressing for swifter decommissioning.

34  In view of the lack of progress achieved on the decommissioning issue, Trimble resigned at the beginning of July 2001, raising the spectre of an extraordinary election if the Assembly could not fill the vacancy within six weeks. In order to prevent this from happening, the Secretary of State for Northern Ireland resorted twice to a ‘technical’ suspension of the Assembly under the Northern Assembly Act 2000 for a short period in early August and in late September, with the sole aim of giving the parties more time for negotiations. However, on 2 November 2001 Trimble failed to become First Minister after two rebel members of his own party voted against him. Only after the Secretary of State decided to allow the Assembly to have another go shortly after the statutory deadline for the election of the First Minister and Deputy First Minister—a decision which was later challenged unsuccessfully in the courts, the House of Lords opting for a generous interpretation of the relevant statutory provisions in the light of the objectives of the Good Friday Agreement—and a deal was struck to allow three Alliance Party members to change their designation to Unionists was he finally able to obtain the required majority for his second election to the office of First Minister.

35  The second phase of devolved government lasted less than a year, however. Under continuous pressure from those sectors of his party which had distrusted the sincerity of the IRA’s and Sinn Féin’s commitment to decommissioning right from the beginning, Trimble announced that his party would withdraw from the power-sharing executive at Stormont at the beginning of 2003 if Republicans did not convincingly demonstrate that they had abandoned the armed struggle for good before that date. Some days later, Sinn Féin’s offices at Stormont were raided as part of a major police investigation into alleged intelligence gathering by Republicans. Faced with a virtually complete breakdown of communication between the main political forces in the Assembly and the executive, the Secretary of State for Northern Ireland decided to suspend devolution and to return to direct rule by London.

3.  Subsequent Events and Restoration of the Assembly

36  The British and Irish governments reacted to the breakdown of the cross-community executive with a joint declaration in May 2003 in which they set out proposals for securing the full implementation of the Good Friday Agreement in a way that could satisfy all parties. Alongside that declaration the governments published proposals for dealing with on-the-run terrorist suspects, who had not been in a position to benefit from the early-release provisions of the Good Friday Agreement, as well as an independent monitoring body to assess levels of paramilitary activity. The governments sought ‘acts of completion’—the cessation of violence for good—from all paramilitary groups as the key element to rebuilding trust and confidence between the parties to the Good Friday Agreement, and set up the Independent Monitoring Commission with members from the UK, Northern Ireland, Ireland and the United States of America which would report on the progress made on security normalization and the implementation of the principle of non-violence. In addition, they agreed by an exchange of notes on 19 November 2002 to take over certain functions from the Ministerial Council concerning specified all-Ireland services for the duration of the suspension.

37  The elections in November 2003 produced an assembly in which Sinn Féin and the DUP were the largest parties. The already difficult search for a political settlement was complicated further when the Independent Monitoring Commission suggested in February 2005 that senior Sinn Féin members had been involved in a bank robbery in Belfast in December 2004 which was widely attributed to the IRA and recommended financial sanctions against Sinn Féin members of the assembly. The outrage which followed the murder of Robert McCartney in January 2005 by the IRA increased the pressure on Sinn Féin to renounce violence and to break off links with the IRA. In April 2005, the Sinn Féin leadership called on the IRA to lay down its weapons. On 28 July 2005 the IRA announced the end of its military campaign and promised a complete decommissioning, to be verified by clergymen from the Catholic and the Protestant Churches. Two months later the Mitchell Commission published its fourth and final report in which it stated that it was satisfied that the IRA had decommissioned the totality of its weapons arsenal. The investigation of the McCartney murder in which relatives of the victim and members of the Republican community urged potential witnesses to overcome the Nationalists’ traditional mistrust of the police in Northern Ireland and to submit their testimony to the Police Service of Northern Ireland also gave a new impetus to the negotiations on the policing arrangements for Northern Ireland. The reforms of the police sector introduced under the Good Friday Agreement had included the creation of a policing board composed of representatives of both communities which has the power to hold the Chief Constable to account and the establishment of district policing partnerships which subject policing in the local community to the scrutiny of local representatives. Sinn Féin had refused to give the new policing arrangements its support and to join the policing board and the district policing partnerships. Under the pressure generated by the McCartney murder it was now ready to take up its seats on the policing board and to endorse the reformed Police Service of Northern Ireland, in return for a commitment by the UK government to devolve police and justice matters to the Northern Ireland Assembly.

38  In October 2006, the British and Irish governments and the major parties in Northern Ireland reached agreement at talks in St Andrews (‘St Andrews Agreement’) on the conditions for restoring devolution. The St Andrews Agreement provides for full acceptance of the reformed Police Service of Northern Ireland by Sinn Féin, the restoration of the Northern Ireland Assembly, and a commitment by the DUP to power-sharing with Republicans and Nationalists in the Northern Ireland executive. The British government pledges to consider the devolution of police and justice matters to the Northern Ireland Assembly within two years from the establishment of the new executive.

39  Devolution was restored to the Northern Ireland Assembly on 8 May 2007, following fresh assembly elections and the establishment of a four-party executive headed by the Reverend Ian Paisley from the DUP as First Minister and Martin McGuiness from Sinn Féin as Deputy First Minister. Two months later, on 31 July 2007, the British army formally ended its support role for the Northern Ireland police in the maintenance of law and order, ending a mission of 38 years.

H.  Assessment

40  The Good Friday Agreement stands out amongst most other recent peace deals which have tried to settle conflicts in politically, ethnically and religiously divided countries through the breadth of its ambitions and the complexity of its arrangements. It creates a complex institutional structure combining consociational (the power-sharing executive), confederal (the all-Ireland institutions and the British-Irish Council) and quasi-federal (devolution of powers within the framework of the unitary Constitution of the UK) in order to encourage dialogue between hitherto antagonist forces at all levels: between the relevant political and social actors within Northern Ireland as well as between Northern Ireland and Ireland and the British and Irish governments. But the Good Friday Agreement also aims to eradicate the root causes of sectarian conflict by addressing the grievances of all relevant parts of society and involving the kin-States in their solution.

41  The Good Friday Agreement makes the territorial integrity of one State, the UK, subject to the stated desire of the majority of the population living in a contested territory, Northern Ireland, and the concurring wish expressed by the majority population living in the neighbouring State, the Republic of Ireland, and restricts the role of the British government to that of a trustee using its powers merely in the interest and for the well-being of the local population concerned. At the same time, it obliges both governments to exercise their sovereign powers with rigorous impartiality in order to create similar conditions of pluralism and tolerance within their respective jurisdictions capable of accommodating the diversity of identities and traditions existing in Northern Ireland, whatever the final constitutional status of the province will be, thus further eroding the significance of the territorial boundaries in favour of the creation of a political space in which ‘parity of esteem’ and ‘just and equal treatment for the identity’ (see para. 25 above), the ethos and aspirations of both communities emphasized in the Good Friday Agreement, can thrive.

42  With regard to self-determination, the Good Friday Agreement also introduces a novel approach. While it is nominally ‘the people of the island of Ireland alone’ (Art. 1 (2) Bilateral Agreement) which shall exercise their right of self-determination, the requirement of a separate and freely given consent to a united Ireland by the majority of the people of Northern Ireland in fact identifies the population of Northern Ireland as a distinct subject of self-determination. It is, however, not a subject with a fixed political, religious, social or cultural identity but one which may change in accordance with the dynamics of demographics and the democratic procedures of a pluralist and tolerant society.

43  Finally, the Good Friday Agreement takes the concept of minority rights to new levels by providing not only for a comprehensive set of political, economic and social rights for both communities and new enforcement mechanisms, but also by allowing for unprecedented rights of interference of their respective kin-States in all matters affecting their status and their well-being and by granting them the right to claim either British or Irish nationality or both as part of their birthright. Whether this innovative hybrid mixture of international law and constitutional law concepts and ideas can serve as a model for other regional crises in which both self-determination and minority rights play a defining role remains to be seen.

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