|The Decolonization of Northern Ireland|
by Francis A. Boyle
Professor of International Law
Historically, the British government has been quite successful at defining the situation in Northern Ireland in accordance with its own national self-interests as it sees fit. It has spent an enormous amount of resources on conveying to the world news media why its particular approach to the problem--whatever it might be at that particular moment in time--is the only correct approach. I would submit, however, that there is certainly another way of looking at the situation in Northern Ireland. That other way of analyzing this conflict is from the perspective of international law, and in particular the United Nations Charter. Therefore, it is my task here to describe what I believe should be the appropriate policy of the world community of states toward the situation in Northern Ireland in accordance with the requirements of international law.
Article 1, paragraph 2 of the United Nations Charter provides that one of the "Purposes" of the United Nations Organization is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. This fundamental principle of self-determination for peoples can also be found in the two seminal United Nations Human Rights Covenants of 1966: The International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. Both of these Covenants have been ratified by the British and Irish governments; and of course both states are parties to the United Nations Charter, as is true for most states of the world community. Thus, both states are in basic agreement upon the fundamentality of the principle of self-determination of peoples and its integral connection to the maintenance of international peace and security. The principle of self-determination of peoples has been a basic norm of international law and of world politics since it was first proclaimed by President Woodrow Wilson in his famous Fourteen Points Address of 1918.
The Colonial Status of Northern Ireland
In 1960 the United Nations General Assembly took a monumental step toward implementing the right of self-determination of peoples throughout the world by means of adopting its Declaration on the Granting of Independence to Colonial Countries and Territories, Resolution 1514(XV) of 14 December. I will not bother to discuss all of its provisions here, but I would like to mention its most salient features. In the Preamble, the General Assembly "solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations." It also declares in paragraph 1 that: "The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations, and is an impediment to the promotion of world peace and cooperation." Likewise paragraph 4 provides that all armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territories shall be respected.
Next, paragraph 5 requires that immediate steps shall be taken in trust and non-self-governing territories or all other territories which have not yet attained independence to transfer all powers to the peoples of those territories without any conditions or reservations, etc. Nevertheless, paragraph 6 makes it clear that the implementation of paragraph 5 cannot be undertaken in a manner that would aim "at the partial or total disruption of the national unity and the territorial integrity of a country." To quote from the exact language of paragraph 6: "Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations."
In addition, this basic principle of international law mandating the equal rights and self-determination of peoples has likewise been enshrined in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, which was adopted by the U.N. General Assembly on October 24, 1970 as Resolution 2625 (XXV). In particular therein can be found the injunction: "Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country." This Declaration was adopted by the General Assembly as a "consensus resolution," which means that the British government did not dissent from it. Finally, this particular resolution was also treated by the International Court of Justice as enunciating rules of customary international law in its 1986 judgment on the merits in the case of Nicaragua v. United States.
Pursuant to the aforementioned Decolonization Resolution and the Declaration of Principles Resolution, the continuing partition of Ireland constitutes an illegal partial disruption of the national unity and territorial integrity of the state of Ireland, which violates the terms of the United Nations Charter and, in particular, the aforementioned right of the Irish People to self-determination. From the perspective of international law, therefore, the entity which the British government calls "Northern Ireland" is in fact and in law a "colony" as that term has been classically defined. I submit that this is precisely how the world community of states must proceed to think about the situation in Northern Ireland if it is to make any sense of what is going on over there, and more importantly, to determine what should be done to solve the problems of Northern Ireland.
The U.N. Decolonization of Northern Ireland
According to this U.N. Decolonization Resolution of 1960 and the two U.N. Human Rights Covenants of 1966, the British government is under an absolute international legal obligation to decolonize Northern Ireland in cooperation with the United Nations as expeditiously as possible and in the process to restore the territorial integrity of the whole state of Ireland. In other words, Britain must remove the last vestiges of the colonial occupation it had imposed upon Ireland as a result of its so-called Treaty of Partition of 1921. Here the United Nations Organization as a whole, including the Trusteeship Council, the Special Committee on Decolonization, as well as the United Nations General Assembly, have had an enormous amount of quite successful practice with respect to obtaining the peaceful decolonization of occupied territories by former colonial imperial powers -- especially Great Britain -- around the world. It is to this wealth of experience, then, that the world community of states must look in order to obtain some useful precedents that could be applied to the peaceful resolution of the situation in Northern Ireland.
In this regard, when the British government sent troops to Northern Ireland in 1969 the Irish government sought to raise the question of "the six counties of Northern Ireland" before the United Nations Security Council, appealing for the "dispatch to the area of a United Nations peacekeeping force." Due to threat of a British veto, however, the Security Council adjourned without taking a decision on whether or not to adopt the agenda. The Security Council never again considered the question.
Nevertheless, Irish Ambassador Cremin submitted an Explanatory Memorandum on the situation in Northern Ireland to the General Committee of the U.N. General Assembly requesting that this topic be included on the Assembly's agenda. Following the proposal of Nigeria, the General Committee decided to defer a decision on whether or not to recommend the inclusion of this agenda item. Since that time, however, representatives of successive Irish governments have reiterated the right to national reunification in addresses to the U.N. General Assembly.
The situation in Northern Ireland clearly constitutes a threat to the maintenance of international peace and security. Therefore the United Nations Security Council has all the authorization it needs to act in whatever manner it deems fit to deal with Northern Ireland since the Security Council has "primary responsibility for the maintenance of international peace and security" under Charter article 24. Hence, some day a majority of nine members of the Security Council could decide to send a U.N. peacekeeping force to Northern Ireland. In this fashion, the decolonization of Northern Ireland could be initiated by the withdrawal of British troops and the emplacement of a U.N. peacekeeping force in their stead on a transitional basis. Witness, for example, the recently successful decolonization of Namibia (formerly Southwest Africa) under the auspices of a United Nations peacekeeping force (i.e., the U.N. Transition Assistance Group) organized under the authority of the United Nations Security Council.
To be sure, it has always been the case in United Nations practice that a peacekeeping force has never been dispatched against the will of the government with military control over the territory involved, irrespective of whether that government was legally entitled to be there or not. So implementation of this U.N. plan would ultimately depend upon the British and Irish governments reaching some prior agreement on the peaceful decolonization of Northern Ireland and the reunification of Ireland as required by international law. Therefore, it should be a primary goal of the world community of states to encourage the British government (1) to publicly endorse the principle of decolonization for Northern Ireland, as well as (2) to negotiate in good faith with the Irish government on a reunification treaty. Thereafter, both states should work in cooperation with the U.N. Security Council, the U.N. Secretary General, and a U.N. peacekeeping force to accomplish these objectives.
The Protection of Human Rights in Northern Ireland
At this preliminary point in the analysis, no point would be served by speculating about what type of United Irish State might ultimately emerge from these reunification talks. It could be a confederal state organized along the lines of Switzerland, or a federal state consisting of two parts, or a unitary state, etc. The selection of any one of these alternatives (or some other) would be for all of the people living on the Island of Ireland--whether Protestant or Catholic--to determine, subject to the final approval of the United Nations Organization.
From an international law perspective, however, the most important part of these reunification negotiations to be considered would be the protection of the basic fundamental human rights of Protestants living in Northern Ireland and the firm establishment of their right to continue to live and practice their religion as they see fit. The ability to do this has been made immeasurably easier by the fact that both the British government and the Irish government are parties to the two aforementioned United Nations Human Rights Covenants of 1966. The British government signed both U.N. Covenants in 1968 and ratified them in 1976. The Irish government signed both in 1973 and has recently ratified them. Moreover, Ireland has also become a party to the 1966 Optional Protocol to the International Covenant on Civil and Political Rights giving competence to the United Nations Human Rights Committee to receive and consider communications from individuals claiming to be victims of a violation by that state party of any of the rights set forth in the Covenant.
In addition, both Britain and Ireland are parties to the European Convention on Human Rights. And it would be necessary for a United Ireland to adopt domestic implementing legislation for all three of these seminal international human rights treaties as well. In this manner, any Protestant residing in a United Ireland who believed that his or her rights had been abridged on grounds of religion or nationality would have direct and immediate access to a court of law on the basis of any one or more of these three treaties and their respective implementing legislation.
In all fairness, I should point out that this is not the case today for Irish Catholics living in Northern Ireland who allege discrimination against them on the grounds of religion or nationality. The British government has been quite clever at signing various human rights treaties, but then derogating from their provisions by proclaiming a public emergency with respect to Northern Ireland. In addition, the British government has not adopted domestic implementing legislation for these three human rights conventions. This then prevents Irish Catholics living in Northern Ireland from going into court and pleading a cause of action directly under these treaties in order to strike down the widespread discriminatory practices against Irish Catholics currently existing there. Moreover, even large segments of the British People themselves continue to lament the fact that they do not have a domestic constitutional equivalent of a Bill of Rights.
But just because the British government has tolerated and condoned widespread discrimination against Irish Catholics in Northern Ireland would provide absolutely no good reason for the Irish government to do the same against Protestants in a decolonized state of United Ireland. Indeed, it has been the gross violation of the fundamental human rights of Irish Catholics in Northern Ireland--despite these solemn international treaty commitments to the contrary--that has produced the violent response by the Provisional Irish Republican Army to the British occupation army, regime, and practices. Hence, the world community of states must understand that the violence committed by the Irish paramilitary parties to this international conflict can be directly attributed to the continuation of the illegal British colony on the Island of Ireland, as well as to the concomitant gross violation of fundamental human rights perpetrated by the British occupation forces upon Irish Catholics. For this reason, then, the Provisional I.R.A. must be fit within the broader political, economic and legal context of an anti-colonial war.
These phenomena are similar to those found in most other anti-colonial wars around the world where the indigenous people have risen up to throw off their colonial oppressors. In such cases, it has proven to be standard operating procedure for the colonial occupation power to play off one group of indigenous people against another, or settlers against the indigenous people; and then for the colonial power to attempt to portray itself as the "peacekeeper" between the contending factions in order to justify the continuation of its colonial occupation. This is precisely what has happened in Northern Ireland. Despite pro-British news media accounts to the contrary, it is the continued presence of the British colonial army, occupation regime, and their military practices in Northern Ireland that have always been the primary source of bloodshed and violence there.
Citizenship, Nationality, and Residence
Another protection that could be afforded to Protestants in Northern Ireland would be for them to be able to retain their British citizenship while living in a United Ireland. They would also retain their British passports and could have the British Parliament guarantee as a matter of domestic law their right (and that of their descendants) to reside in Britain forever. Moreover, the British Parliament could enact legislation to permit British citizens living in a United Ireland to vote in British elections by means of an absentee ballot.
Protestants living in Northern Ireland should be entitled to claim citizenship in a United Ireland and thus become dual nationals if they so desire. On the other hand, Northern Ireland Protestants (and their descendants) should not be forced to accept Irish citizenship or nationality in a United Ireland if they do not want to. Nevertheless, such individuals (and their descendants) should still retain their right of permanent residence in a United Irish State.
To be sure, if such individuals choose to remain living in United Ireland as exclusively British citizens, then they would be bound to obey the laws of a United Ireland--just as is true for permanent resident aliens in any other country. Nevertheless, they would still be entitled to invoke all the protections of the international and domestic human rights regime outlined above. Moreover, since they are currently residents on the Island of Ireland, such individuals should have the basic right to participate in the drafting of a new Constitution for a United Irish State that would contain within itself a Bill of Rights protecting all the people who live in Ireland irrespective of citizenship and nationality, let alone religion.
Furthermore, under that new Constitution, such individuals should be permitted to vote in whatever type of Irish elections they so desire on the basis of their qualifications as permanent residents in United Ireland. In this way, communities in today's Northern Ireland that consist of a majority of Protestants could continue to maintain majority political control over local, municipal, and county-wide political bodies in United Ireland, subject to the non-discrimination regime mentioned above. Indeed, the new Irish Constitution should accord such permanent residents of a United Ireland all of the legal, political, and constitutional rights of Irish citizens without any distinction. These rights should include those of full and equal participation in voting, law-making, governance, administration, adjudication, public office-holding, education, etc. Of course such individuals would remain free to exercise or not exercise any one or more of these rights guaranteed to them by the new Irish Constitution. But for all functional purposes, there should be no constitutional or legal distinctions whatsoever drawn between these Protestant permanent resident aliens and citizens in a United State of Ireland.
No point would be served by continuing to spell out the multifarious constitutional, legal, political, and human rights protections that could be designed for Protestants--with their active participation--who would be living in a United Irish State. Suffice it to say here that enormous progress can be made in this direction by breaking down and distinguishing the rights pertaining to (1) citizenship; (2) nationality; (3) residence; (4) voting; and (5) governance in a United Ireland. Fortunately, all these questions will be made incredibly easy to handle and therefore quite flexible to negotiate because both Great Britain and Ireland are members of the European Union (EU) -- formerly the European Economic Community (EEC) -- and thus bound by the various protections and privileges afforded citizens of EU member states without discrimination.
Admittedly, there might be a few hard-line Unionists in Northern Ireland who would refuse to live in a United Ireland even with exclusive British citizenship; a British passport; the rights to vote in both British and Irish elections; the right to hold any public office in a United Ireland; and the ultimate right of permanent residence for themselves and their descendants in Great Britain, etc. But I suspect that number would be very small. Such a small number of individuals should not be enabled to stand in the way of finally establishing a definitive peace between the British People and the Irish People. Such irreconcilable Unionists should be given the option of emigration to Britain if they so desire, with relocation assistance provided and full compensation to be paid for any property interests they might decide to relinquish in Northern Ireland. I suspect that number would be even smaller.
Self-determination for the Peoples of Ireland and Britain
This observation brings the analysis to the heart of the British government's claim that it is really in Northern Ireland to protect the right of such irreconcilable Unionists to self-determination. I find that argument to strain credulity. At one time or another, the British government has invaded, occupied and exploited over one-quarter of the known world community of states and peoples during the course of modern history, including substantial sections of Asia, Africa, the Middle East, and North America. Yet now it is portraying itself as the upholder of the principle of national self-determination in Northern Ireland in order to justify its control over one of its last remaining colonial enclaves around the world. Yet, by comparison, in Hong Kong the world community of states saw the British government turn over five and one-half million people to the Communist government in Beijing with the stroke of a pen--against their wishes and without even bothering to consult them. So much for the British government's reputed concern for the principle of national self-determination.
With respect to Northern Ireland, under international law the principle of self-determination of peoples appropriately applies to the entire British People, not a small group of irreconcilable Unionists. In this regard, public opinion polls have repeatedly shown that only 25% of the British People want to remain in Northern Ireland. It seems to me that the wishes of this substantial majority of the British People should -- and ultimately will -- be respected. For reasons explained more fully below, it is only a question of time before the British government will as a matter of fact and of law decolonize Northern Ireland.
As for those irreconcilable Unionists who are unwilling to live as Britons in a United Ireland under any circumstance, then of course they should be free to emigrate to Britain. If they do not want to remain British in a United Ireland, then by all means they should be permitted to be British in Britain. This option would fully implement whatever their self-proclaimed right of self-determination means, as well as the rights to peace and self-determination for everyone else involved in this conflict--the entirety of the British People and the entirety of the Irish People. The U.N. principle of equal rights and self-determination of peoples requires one and only one state for the British People (i.e., Great Britain) and one and only one state for the Irish People (i.e., Ireland). It does not sanction the continuation of an illegal British colony on the Island of Ireland.
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|Allen L. Jasson|