From this foundation, the law on self-determination of peoples has, in today's terms, to be compounded by referral to a variety of material sources some of which are worthy of note at this point:
United Nations Charter (1945): articles 1(2), 55; Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), General Assembly Resolution 1514 (XV): paragraph 2; Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter (1960), General Assembly Resolution 1514 (XV): principles VI to IX; International Covenant on Economic, Social and Cultural Rights (1966): article 1 (1); International Covenant on Civil and Political Rights (1966): article 1 (1); Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970), General Assembly Resolution 2625 (XXV): the principle of equal rights and self-determination of peoples; Final Act of the Conference on Security and Co-operation in Europe, Helsinki 1975: declaration on principles guiding relations between participating states: principle VIII; Jurisprudence of the International Court of Justice - (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, pp. 31-2; Western Sahara, Advisory Opinion, ICJ Reports 1975, pp. 31-3.
While recognising the cumbersome barriers to be overcome before gaining recognition of a right in international law, one general definition is particularly appropriate at this juncture:
“the right of cohesive national groups ("peoples") to choose for themselves a form of political organisation and their relations to other groups. The choice may be independence as a state, association with other groups in a federal state, or autonomy or assimilation in a unitary (non-federal) state.” (ref: Principles of Public International Law, I. Brownlie, Oxford , 1990, p595).
The people of the 32 counties that make up the island of Ireland have not been given the option of such decisions on a unitary basis, because of the restrictions imposed by an external power as demonstrated throughout our OVERVIEW.
In an age of growing intergovernmentalism, supranationalism in the form of interaction between states which takes place on the basis of sovereign independence, a question of principle is increasingly being posed: “Can a sovereign people bind itself, and permanently alienate some or all of its sovereignty?” (see for example A. Whelan, National Sovereignty in the European Union in Ireland's Evolving Constitution, Oxford, 1998, p. 289). Of more immediate relevance is the question of a willingness to delete, without sufficient enlightened debate, Articles 2 and 3 of the Irish Constitution. These above Articles were conceded without substantial guarantees that the structures of government mounted under The Belfast Agreement would remain in place. In essence, Britain gained on the territorial claims of a sovereign nation.
While in relation of intergovernmentalism, sovereignty is preserved through a process of unanimous decision-making that gives each state a veto, at least over matters of vital national importance, the same criteria was not applied to Ireland on a quid pro quo basis. This was most evidently demonstrated when The Belfast Agreement had to be acceptable to, and ratified by, the Parliament of Great Britain before it was presented to the Irish people for acceptance or rejection. In effect, the British Parliament retains the power of veto over the sovereignty of the Irish people. In total, the referenda on The Belfast Agreement did not give expression of true self-determination, as the political content offered was subordinate to British approval. (ref: A. Heywood, Politics, London, 1997 offers definitions of Intergovernmentalism/Supranationalism p.154). Rhetorical arguments based on exclusivity cannot eliminate a drive for that self-determination which is rooted in an experience of repression and denigration of the group to which one is attached. As a matter of perceived historical fact, this is widely recognised in global experiences. (ref: Article 2 of the Universal Declaration of Human Rights is very clear on this analysis)
APPENDIX II: THE IMPACT OF REFERENDA
Procedures for constitutional amendments can take many forms, one of which is by people’s referendum. An obvious use of this form of referendum in Britain was over membership of the European Community in 1975, but its workings are central to our argument in illustrating how allegations of rigging and comparisons with the 1921 Treaty of blackmail and lack of alternatives, ie. war or peace, can be paralleled with the 1998 arrangement. In 1979 the issue of devolution for Scotland was put to referendum and although 52% voted 'yes' and 48% 'no', the 'yes' votes were only 33% of the Scottish electorate and not the 40% required (ref: Leeds, op.cit.,p18.). There was a similar turnout in the Twenty Six Counties of 56.3%, with several thousand spoiled votes. (ref: The Belfast Agreement (ref: A. Morgan, The Belfast Agreement, London, 2000, p.180).
Apart from variations in political readings of returns, one drawback often cited is that particular questions of policy may lack sufficient information or are couched in such ambiguous terms that the electorate cannot form an intelligent opinion. In addition, some argue that very few political questions can be answered by a straight 'yes' or 'no' (ref: F. Randall, British Government and Politics, Suffolk, 1984). Others insist that referenda leave political decisions to those most susceptible to media and other influences and provide, at best, only a snapshot of public opinion at one point in time (ref: Heywood, op.cit., p. 208). Against the insistence that both governments attempted to ensure a fair and informed vote, counter arguments carry more weight. In addition to the fact that a unitary referendum was not conducted, or indeed one which could have included, from a Unionist perspective, the opinion of an inclusive British electorate; both parts of Ireland faced different questions. In relation to amendments to Articles 2,3 and 29 of the Irish Constitution (not in The Belfast Agreement), the question asked was: “Do you approve the proposal to amend the Constitution contained in the under mentioned Bill? Nineteenth Amendment of the Constitution Bill, 1998.” However, in the Referendum in the Northern Ireland booklet, Your Time to Decide, the following was stated: “The proposed amendment must be considered in the context of the agreement reached in the Multi-Party negotiations which has annexed, to it, the text of the British/Irish Agreement, and which is being, or will soon be delivered to your home.” In the Referendum in Northern Ireland booklet, Your Time to Decide, Articles 2 and 3 are described as follows: “It constitutes a legal claim by the State ... the provisions of Article 3 do not in any way delimit or reduce the claim made in Article 2 to the entire national territory.” In the said booklet, it was stated: “The proposed new Article 2 no longer makes a claim as a legal right to the territorial area of the whole of the island of Ireland.” (p.3) (ref: cited in Morgan op.cit., p.180).
In contrast to earlier assertions by people like Sean Lemass, the constitutional changes brought about by The Belfast Agreement are characterised predominantly by the end of the Irish territorial claim to the North. It can thus be rightly argued that despite the return of the word “territory” to Article 3.1, the words “national territory” have been removed from the Constitution and there is nothing in the completely new Article 2 and much amended Article 3 to constitute a territorial claim. In fact, the Constitutional imperative has been relegated to an aspiration (ref: for a detailed analysis of this point see Morgan, Part 2 Annex B). For many people, the complexities of these aspects of The Belfast Agreement, aligned with the unravelling of the relationship between politics and law, have been self evident in public debate since 1998. In addition, the implications and awareness of the relationship between international and municipal law in both jurisdictions, has received only cursory attention
APPENDIX III: THE BELFAST AGREEMENT IN INTERNATIONAL LAW
In the absence of a world legislature, international law draws on a number of sources: treaties, custom, general principles (such as respect for territorial integrity), and legal scholarship accumulated by the international courts. Traditionally, heavy emphasis was placed on international law, which was seen as a means of establishing order through respect for moral principles, thus making possible, the peaceful resolution of international conflicts.
Others have questioned the status of international law, arguing that, as it is not enforceable, it constitutes not 'law', but merely a set of moral principles (ref: Heywood, op. cit., cites the latter opinion, p.160). The Belfast Agreement is an international agreement between the UK and Irish states, which provided for devolved government in the North with additional north-south and east-west institutions within the 1920-22 partition settlement. International law is the law, not of nations, but of states. It has been pointed out by legal analysts that municipal lawyers in the North, who do not have to deal generally with international issues, are 'doubly' disadvantaged by the political use of international law. (ref: Morgan op. cit., p.15.).
An essential ingredient of the recognition of statehood in international law is a capacity to enter into relations with other states. One useful definition offers the following:
“…a state is perhaps a stable political community, supporting legal order, in a certain area. The existence of effective government with centralized administrative and legislative organs, is the best evidence of a stable political community.” (ref: Brownlie, op. cit., p.73).
In the context of international law, the 'state of Northern Ireland' could not exist as a self-sustaining entity, although the Six Counties have been recognised, by some, as an integral part of the UK since 1921. Since its perceived inception, 'the state of Northern Ireland' has appeared in academic literature, even though the negotiating powers, usually afforded to free standing sovereign states, never existed as applied in international law. It must be added that the 'statelet', bolstered by Westminster, has allowed a minority opinion within a national statehood context, to deny the Irish people’s right to sovereignty through a contrived arrangement.
The Belfast Agreement, read legally, is an international instrument, with only two parties but has, in varying degrees, been incorporated in the laws both North and South. Yet the courts, because of ambiguity, may still require interpretation of The Belfast Agreement as a treaty. As international instruments, treaties have flexibility, which is evident in the drafting stage that is not allowed in domestic (statute) law. Indeed, some hold the view that only treaties are legally binding, and that informal international instruments do not exist in comparable normative orders. (ref: J. Klabbers, The Concept of Treaty in International Law, The Hague, 1996). The Irish Supreme Court took the view that, as a matter of international law, the people have no sovereign power greater than that of their State, and that international obligations could inhibit, in some circumstances at least, the exercise of constitutional authority (ref: Crotty v. An Taoiseach (1987) IR 713, at 783). For further interpretation of The Belfast Agreement in international law, The Hague, Article 36 920 of the statute providing for inter alia the interpretation of a treaty can be consulted (ref: 1930 Hague Convention Containing Certain Questions Relating to the Conflict of Nationality Laws).
The Dublin Government has recognisably signed up to one principle in international law, that of linguistic diversity through the mechanisms of The Belfast Agreement, while in its domestic law it enshrines an entirely different principle, not because of the idea of official languages, but because Irish is deemed to be the national language and consequently, is the first official language. In contrast to political analysis, The Belfast Agreement has been interpreted legally to distinguish between: obligations on one or both contracting states; text which is not legally binding in international law (but may, once incorporated in UK and/or Irish law, bind a government or actual or potential office holder); and general principles of international law which operate upon the text to become implied in the Agreement. The actual title of The Belfast Agreement is seen as a standard feature for an international agreement between two contracting states, though it is the practice for each state to put itself first in its own version (held by the other contracting state). It is worthy to note that the practice, as regards international agreements in 1998 on the part of London and also Dublin, had changed clearly from that in 1985 (the UK of Great Britain and Northern Ireland and the Republic of Ireland versus Ireland and the United Kingdom). (ref: Morgan, op. cit., p. 415; pp. 548-9).
APPENDIX IV:
ASPECTS OF DEVOLUTION WHICH SHOW WESTMINSTER'S AUTHORITY
A unitary constitution is one in which the central government is sovereign. It, alone, makes the laws and it, alone, is responsible for carrying them out. It can of course delegate its authority and in Britain, this is done frequently. Parliament is, however, the supreme legislative authority in the United Kingdom and its supremacy extends over Britain, which, as shown throughout our OVERVIEW, includes Northern Ireland (sic). In 1972, the Northern Ireland Parliament was prorogued indefinitely because of the North’s disturbed situation. From that date, until the establishment of a Stormont Assembly, the Six Counties were ruled directly from Westminster. That Government's supremacy was again demonstrated through the offices of Secretary of State Mandelson when he decided on suspension of the Executive’s institutions. Stability is not guaranteed through the delegation of power, this being witnessed to the present day.
It was delegated legislation, namely The Prevention of Terrorism (Temporary Provisions) Act 1976 that enabled a system of travel controls to be imposed between Britain and the Six Counties. This Act, the effects of which are still being felt today, saw the uprooting and deportation of many Irish people from England and frequent harassment, on mere suspicion. Political analysts have stressed that increasing delegation of legislation tends to decrease the liberty of the subject (ref: Randall, op. cit. p.242). Very importantly, in relation to the Stormont Administration, it can be shown that, if delegated authority is not closely defined, there will be uncertainty as to its use. The Belfast Agreement is renowned for its ambiguous language, a failing which is used by all sides for political advantage and most definitely not for the common good and sovereign will of the Irish people.
Westminster is quite explicit in defining the role of the Secretary of State, central to which, is his right to approve and lay before the London Parliament, any Assembly legislation on reserved matters. Again, the supremacy of the legislative supremacy of parliament is outlined for Stormont in a third paragraph:
“The Westminster Parliament (whose power to make legislation for Northern Ireland would remain unaffected) will:
(a) legislate for non-devolved issues, other than where the Assembly legislates with the approval of the Secretary of State and subject to the control of Parliament;
(b) legislate as necessary to ensure the United Kingdom's international obligations are met in respect of Northern Ireland;
(c) scrutinise, including through the Northern Ireland Grand and Select Committees, the responsibilities of the Secretary of State” (ref: cited in Morgan, op. cit., pp. 241-2).
Clearly, and as demonstrated throughout this Submission, devolved government is only a rubber stamp for British rule in Ireland.
APPENDIX V: HOW IS PEACE DEFINED AND VIOLATIONS GAUGED?
Critics of what is termed 'negative peace' have argued that, while this approach might prevent violence in the short term, it is not conducive to creating a situation where former warring groups do not contemplate violence against each other in the future (ref: Leeds, op. cit., p.327). Opposing protagonists, now Assembly members, regularly announce or infer that, if their constitutional positions are threatened or aspirations legislatively diminished, 'war' is not entirely excluded from their respective political agendas. For supporters of the constitutional path from both sides of the political divide this threat or perceived threat of violence is intolerable and does not make for stable governance. In addition, the placing of emphasis merely on freezing or stopping physical conflicts may imply legitimisation of the status quo and of the suppression, by government, of groups within stages. Unquestionably, certain groups may suffer tyranny or deprivation, either directly or indirectly, through agencies of government. The demonisation in the media and other outlets, of groups opposed to what has been presented as a remedy for all ills, is a dangerous ploy as outlined in our OVERVIEW.
Researchers and peace activists place less emphasis on merely stopping conflicts, and instead, attempt methods for ensuring a lasting end to conflict. Positive peace implies the growth of a reformed society where features of structural violence, from whatever source, have been removed, and a high degree of social justice has been created, conflict, violence and war are considered unlikely to occur. The mockery that is now being played out under the guise of The Belfast Agreement and what masquerades as ‘THE PEACE PROCESS’, is not viewed as viable to those genuinely striving for a meaningful and lasting solution to what has been, quite wrongly referred to as, “the Northern Ireland problem.”
The conflict is frequently viewed as if only two parties (Unionist and Republican/ Nationalist) were aligned against each other. Yet, in every conflict, there are a number of groups with different interests, and AN AGREEMENT at one level may not actually resolve the overall conflict. While this, most certainly, is the case in Ireland, this is not unique to Ireland alone. For example, the 1979 Egypt-Israeli Agreement did not completely solve the Middle Eastern problem, because other Arab states, including the Palestinians and the oil states, were not parties to, and did not support, the Agreement. It is important to emphasise, however, that in relation to negotiating and the implementation of The Belfast Agreement, the constitutional voice of loyalism namely The Democratic Unionist Party chose not to take part in the process on offer, while some Republicans, on matters of principle and moral grounds, refused to participate.
Accusations of ‘secret deals’, either inferred or implied, together with manipulative practices, continue to add fuel to the unravelling of the ‘Peace Strategy’. In order to give support to this strategy and keep the disillusioned on board, both the British and Dublin governments continually pump money into both Republican and Loyalist ‘community based projects’. Clientele politics play a sizeable role in the manipulative practices to keep grass roots support content. By no stretch of the imagination can PEACE be bought, nor an arrangement sustained, based on a false premise. One political commentator hits the right key in defining clientele politics: “Usually the practice commands widespread popular support as long as it involves the provision of some special service or benefit by a public official to relatives, one's ethnic group or political allies. It does not command public support if only officials seem to benefit from the practice, e.g. seeking personal power.” (ref: Leeds., op. cit.,p.353). These lessons have not been lost on some leading parties and personalities within the Stormont Executive. Major 'funding' is being channeled to keep the foot soldiers happy and the guns silent. What happens if (as appears likely) the institutions are collapsed by the major players without armed wings? Is it back to ‘war’ to resolve the conflict? Loyalists now involved in the ‘Peace Process’ have vowed to protect the Union by “…whatever means necessary...” Where does this leave the peace strategists’ arguments of demographic changes and movements in electoral mandates? Against the argument that ‘…corruption may be functional to the preservation of a system…’ (ref: S.P. Huntington, Political Order in Changing Societies, Yale University Press, 1969), it can be countered that, in this case, it will not be sufficient to save the day. The continuation of violence, including murders and bombings, show that we do not have real ‘peace’ but, instead, what is regarded by the British Government as an acceptable level of violence which will not over-stretch their resources. Local press editorials are calling for vigilance, as they report that 50 pipe bomb attacks have been carried out on Catholic homes during the first six weeks of this year across the North (ref: Irish News, Feb. 26 2001).
In addition, armed militias are only too willing to put down opposition to their ‘peace strategy’, aided by repressive legislation. From the vigilantes installed to patrol Catholic/Nationalist areas after the 1969 pogroms, to the growing role of paramilitary policing in the 1970's to enforce law, the ‘peace strategy’ has been walking a tightrope. (ref: Provisional IRA statement in Andersonstown News,10 December 1977). There has been deep community division regarding the role of policing, but neither the Royal Ulster Constabulary (RUC) nor the paramilitaries have an unchallenged mandate to enforce law and order.
Since The Belfast Agreement, there has been an upsurge in the activities of armed militias, resulting in the suppression of open political freedom of assembly and freedom of expression, obvious human rights violations. These armed personnel have been identified as clearly being aligned to political parties administering British rule within the Stormont Assembly established by the seats of government in London and Dublin. The Universal Declaration of Human Rights is very clear in outlining these rights in its Articles 2,18 and 19.
It has been a constant feature of some pro-Agreement parties, to maintain an ambivalent attitude towards violence and a concerted policy has been agreed, by them, whereby, there is a refusal to explicitly condemn acts of violence. This well trodden course has been used at appropriate junctures in order to maximise electoral appeal. Indeed, as one political researcher has suggested, in a stalemate situation, where the state seems impervious to demands from a ‘constitutional’ party, it is all too tempting for political activists to switch their support to a party whose attitude towards violence is either ‘…ambivalent or outwardly supportive.’ (ref: E. M Browne in Political Violence, Belfast, 1990, p.169).
Human Rights activists have not been slow, however, in documenting and publishing accounts of abuses. Indeed at a seminar in Belfast in 1994 it was argued that people had become persuaded that Human Rights were no longer inalienable or universal, but that the only people who deserved to have their Human Rights respected were those who did not argue with the state. The speaker told her audience: that : “It does not matter what you do or who you are or where you have been, you are entitled as a minimum to the state's respect for your human rights....All of us collectively and individually are entitled to have our rights guaranteed as part of any new political .settlement.... We have to reiterate that Human Rights belong to everyone, being universal and inalienable...” (ref: Report of a Seminar held in Belfast on 10 December, 1994 sponsored by Unison NI, British Irish Rights Watch).
Scholars in recent times have highlighted the need to rethink the relationship between law and sovereignty. (ref: R. Bellamy, Constitutionalism, Democracy and Sovereignty, Hants, England, 1996, p.6). Given that the domestic laws of Britain cannot adequately accommodate the demands of a significant number of people for self-determination, we urge that the mechanisms within international law be fully utilized to secure this objective. One concise analysis is worth noting: “A sovereign state is one NOT subject to certain types of control, and its sovereignty is that area of conduct in which it is autonomous.” (ref: H.L.A. Hart, The Concept of Law, Oxford, 1961, p.217). The United Nations General Assembly meeting of October, 1998, was particularly enlightening and helpful in outlining in vivid terms the rights of peoples, a central focus of which was that of self-determination. (ref:-Official Record A/C.3/53/SR.23., p.7).
CONCLUSION
General Comment 21 of the Human Rights Committee defines the external aspect of self-determination, stating that it:
“…implies that all peoples have the right to determine freely their political status and their place in the international community based on the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.”
The internal aspect of the right to self-determination is characterised by General Comment 21 as:
“…the rights of all peoples to pursue freely their economic, social and cultural development without outside interference.”
In reiteration of the arguments presented herein, and with reference to relevant rights as defined in international law in both our 1998 Submission and this March 2001 Addendum, we respectfully request that the United Nations Commission On Human Rights strongly urge the Government of Britain to comply immediately and unconditionally with its international obligations and respect the democratic wishes and that most fundamental and non-negotiable right of the Irish People, the basic right to self-determination.
We, the 32 County Sovereignty Movement, submit, that a British declaration, relinquishing their sovereign claim to part of Ireland, would be the first step in establishing a permanent peace in Ireland.
United Nations Charter (1945): articles 1(2), 55; Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), General Assembly Resolution 1514 (XV): paragraph 2; Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter (1960), General Assembly Resolution 1514 (XV): principles VI to IX; International Covenant on Economic, Social and Cultural Rights (1966): article 1 (1); International Covenant on Civil and Political Rights (1966): article 1 (1); Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970), General Assembly Resolution 2625 (XXV): the principle of equal rights and self-determination of peoples; Final Act of the Conference on Security and Co-operation in Europe, Helsinki 1975: declaration on principles guiding relations between participating states: principle VIII; Jurisprudence of the International Court of Justice - (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, pp. 31-2; Western Sahara, Advisory Opinion, ICJ Reports 1975, pp. 31-3.
While recognising the cumbersome barriers to be overcome before gaining recognition of a right in international law, one general definition is particularly appropriate at this juncture:
“the right of cohesive national groups ("peoples") to choose for themselves a form of political organisation and their relations to other groups. The choice may be independence as a state, association with other groups in a federal state, or autonomy or assimilation in a unitary (non-federal) state.” (ref: Principles of Public International Law, I. Brownlie, Oxford , 1990, p595).
The people of the 32 counties that make up the island of Ireland have not been given the option of such decisions on a unitary basis, because of the restrictions imposed by an external power as demonstrated throughout our OVERVIEW.
In an age of growing intergovernmentalism, supranationalism in the form of interaction between states which takes place on the basis of sovereign independence, a question of principle is increasingly being posed: “Can a sovereign people bind itself, and permanently alienate some or all of its sovereignty?” (see for example A. Whelan, National Sovereignty in the European Union in Ireland's Evolving Constitution, Oxford, 1998, p. 289). Of more immediate relevance is the question of a willingness to delete, without sufficient enlightened debate, Articles 2 and 3 of the Irish Constitution. These above Articles were conceded without substantial guarantees that the structures of government mounted under The Belfast Agreement would remain in place. In essence, Britain gained on the territorial claims of a sovereign nation.
While in relation of intergovernmentalism, sovereignty is preserved through a process of unanimous decision-making that gives each state a veto, at least over matters of vital national importance, the same criteria was not applied to Ireland on a quid pro quo basis. This was most evidently demonstrated when The Belfast Agreement had to be acceptable to, and ratified by, the Parliament of Great Britain before it was presented to the Irish people for acceptance or rejection. In effect, the British Parliament retains the power of veto over the sovereignty of the Irish people. In total, the referenda on The Belfast Agreement did not give expression of true self-determination, as the political content offered was subordinate to British approval. (ref: A. Heywood, Politics, London, 1997 offers definitions of Intergovernmentalism/Supranationalism p.154). Rhetorical arguments based on exclusivity cannot eliminate a drive for that self-determination which is rooted in an experience of repression and denigration of the group to which one is attached. As a matter of perceived historical fact, this is widely recognised in global experiences. (ref: Article 2 of the Universal Declaration of Human Rights is very clear on this analysis)
APPENDIX II: THE IMPACT OF REFERENDA
Procedures for constitutional amendments can take many forms, one of which is by people’s referendum. An obvious use of this form of referendum in Britain was over membership of the European Community in 1975, but its workings are central to our argument in illustrating how allegations of rigging and comparisons with the 1921 Treaty of blackmail and lack of alternatives, ie. war or peace, can be paralleled with the 1998 arrangement. In 1979 the issue of devolution for Scotland was put to referendum and although 52% voted 'yes' and 48% 'no', the 'yes' votes were only 33% of the Scottish electorate and not the 40% required (ref: Leeds, op.cit.,p18.). There was a similar turnout in the Twenty Six Counties of 56.3%, with several thousand spoiled votes. (ref: The Belfast Agreement (ref: A. Morgan, The Belfast Agreement, London, 2000, p.180).
Apart from variations in political readings of returns, one drawback often cited is that particular questions of policy may lack sufficient information or are couched in such ambiguous terms that the electorate cannot form an intelligent opinion. In addition, some argue that very few political questions can be answered by a straight 'yes' or 'no' (ref: F. Randall, British Government and Politics, Suffolk, 1984). Others insist that referenda leave political decisions to those most susceptible to media and other influences and provide, at best, only a snapshot of public opinion at one point in time (ref: Heywood, op.cit., p. 208). Against the insistence that both governments attempted to ensure a fair and informed vote, counter arguments carry more weight. In addition to the fact that a unitary referendum was not conducted, or indeed one which could have included, from a Unionist perspective, the opinion of an inclusive British electorate; both parts of Ireland faced different questions. In relation to amendments to Articles 2,3 and 29 of the Irish Constitution (not in The Belfast Agreement), the question asked was: “Do you approve the proposal to amend the Constitution contained in the under mentioned Bill? Nineteenth Amendment of the Constitution Bill, 1998.” However, in the Referendum in the Northern Ireland booklet, Your Time to Decide, the following was stated: “The proposed amendment must be considered in the context of the agreement reached in the Multi-Party negotiations which has annexed, to it, the text of the British/Irish Agreement, and which is being, or will soon be delivered to your home.” In the Referendum in Northern Ireland booklet, Your Time to Decide, Articles 2 and 3 are described as follows: “It constitutes a legal claim by the State ... the provisions of Article 3 do not in any way delimit or reduce the claim made in Article 2 to the entire national territory.” In the said booklet, it was stated: “The proposed new Article 2 no longer makes a claim as a legal right to the territorial area of the whole of the island of Ireland.” (p.3) (ref: cited in Morgan op.cit., p.180).
In contrast to earlier assertions by people like Sean Lemass, the constitutional changes brought about by The Belfast Agreement are characterised predominantly by the end of the Irish territorial claim to the North. It can thus be rightly argued that despite the return of the word “territory” to Article 3.1, the words “national territory” have been removed from the Constitution and there is nothing in the completely new Article 2 and much amended Article 3 to constitute a territorial claim. In fact, the Constitutional imperative has been relegated to an aspiration (ref: for a detailed analysis of this point see Morgan, Part 2 Annex B). For many people, the complexities of these aspects of The Belfast Agreement, aligned with the unravelling of the relationship between politics and law, have been self evident in public debate since 1998. In addition, the implications and awareness of the relationship between international and municipal law in both jurisdictions, has received only cursory attention
APPENDIX III: THE BELFAST AGREEMENT IN INTERNATIONAL LAW
In the absence of a world legislature, international law draws on a number of sources: treaties, custom, general principles (such as respect for territorial integrity), and legal scholarship accumulated by the international courts. Traditionally, heavy emphasis was placed on international law, which was seen as a means of establishing order through respect for moral principles, thus making possible, the peaceful resolution of international conflicts.
Others have questioned the status of international law, arguing that, as it is not enforceable, it constitutes not 'law', but merely a set of moral principles (ref: Heywood, op. cit., cites the latter opinion, p.160). The Belfast Agreement is an international agreement between the UK and Irish states, which provided for devolved government in the North with additional north-south and east-west institutions within the 1920-22 partition settlement. International law is the law, not of nations, but of states. It has been pointed out by legal analysts that municipal lawyers in the North, who do not have to deal generally with international issues, are 'doubly' disadvantaged by the political use of international law. (ref: Morgan op. cit., p.15.).
An essential ingredient of the recognition of statehood in international law is a capacity to enter into relations with other states. One useful definition offers the following:
“…a state is perhaps a stable political community, supporting legal order, in a certain area. The existence of effective government with centralized administrative and legislative organs, is the best evidence of a stable political community.” (ref: Brownlie, op. cit., p.73).
In the context of international law, the 'state of Northern Ireland' could not exist as a self-sustaining entity, although the Six Counties have been recognised, by some, as an integral part of the UK since 1921. Since its perceived inception, 'the state of Northern Ireland' has appeared in academic literature, even though the negotiating powers, usually afforded to free standing sovereign states, never existed as applied in international law. It must be added that the 'statelet', bolstered by Westminster, has allowed a minority opinion within a national statehood context, to deny the Irish people’s right to sovereignty through a contrived arrangement.
The Belfast Agreement, read legally, is an international instrument, with only two parties but has, in varying degrees, been incorporated in the laws both North and South. Yet the courts, because of ambiguity, may still require interpretation of The Belfast Agreement as a treaty. As international instruments, treaties have flexibility, which is evident in the drafting stage that is not allowed in domestic (statute) law. Indeed, some hold the view that only treaties are legally binding, and that informal international instruments do not exist in comparable normative orders. (ref: J. Klabbers, The Concept of Treaty in International Law, The Hague, 1996). The Irish Supreme Court took the view that, as a matter of international law, the people have no sovereign power greater than that of their State, and that international obligations could inhibit, in some circumstances at least, the exercise of constitutional authority (ref: Crotty v. An Taoiseach (1987) IR 713, at 783). For further interpretation of The Belfast Agreement in international law, The Hague, Article 36 920 of the statute providing for inter alia the interpretation of a treaty can be consulted (ref: 1930 Hague Convention Containing Certain Questions Relating to the Conflict of Nationality Laws).
The Dublin Government has recognisably signed up to one principle in international law, that of linguistic diversity through the mechanisms of The Belfast Agreement, while in its domestic law it enshrines an entirely different principle, not because of the idea of official languages, but because Irish is deemed to be the national language and consequently, is the first official language. In contrast to political analysis, The Belfast Agreement has been interpreted legally to distinguish between: obligations on one or both contracting states; text which is not legally binding in international law (but may, once incorporated in UK and/or Irish law, bind a government or actual or potential office holder); and general principles of international law which operate upon the text to become implied in the Agreement. The actual title of The Belfast Agreement is seen as a standard feature for an international agreement between two contracting states, though it is the practice for each state to put itself first in its own version (held by the other contracting state). It is worthy to note that the practice, as regards international agreements in 1998 on the part of London and also Dublin, had changed clearly from that in 1985 (the UK of Great Britain and Northern Ireland and the Republic of Ireland versus Ireland and the United Kingdom). (ref: Morgan, op. cit., p. 415; pp. 548-9).
APPENDIX IV:
ASPECTS OF DEVOLUTION WHICH SHOW WESTMINSTER'S AUTHORITY
A unitary constitution is one in which the central government is sovereign. It, alone, makes the laws and it, alone, is responsible for carrying them out. It can of course delegate its authority and in Britain, this is done frequently. Parliament is, however, the supreme legislative authority in the United Kingdom and its supremacy extends over Britain, which, as shown throughout our OVERVIEW, includes Northern Ireland (sic). In 1972, the Northern Ireland Parliament was prorogued indefinitely because of the North’s disturbed situation. From that date, until the establishment of a Stormont Assembly, the Six Counties were ruled directly from Westminster. That Government's supremacy was again demonstrated through the offices of Secretary of State Mandelson when he decided on suspension of the Executive’s institutions. Stability is not guaranteed through the delegation of power, this being witnessed to the present day.
It was delegated legislation, namely The Prevention of Terrorism (Temporary Provisions) Act 1976 that enabled a system of travel controls to be imposed between Britain and the Six Counties. This Act, the effects of which are still being felt today, saw the uprooting and deportation of many Irish people from England and frequent harassment, on mere suspicion. Political analysts have stressed that increasing delegation of legislation tends to decrease the liberty of the subject (ref: Randall, op. cit. p.242). Very importantly, in relation to the Stormont Administration, it can be shown that, if delegated authority is not closely defined, there will be uncertainty as to its use. The Belfast Agreement is renowned for its ambiguous language, a failing which is used by all sides for political advantage and most definitely not for the common good and sovereign will of the Irish people.
Westminster is quite explicit in defining the role of the Secretary of State, central to which, is his right to approve and lay before the London Parliament, any Assembly legislation on reserved matters. Again, the supremacy of the legislative supremacy of parliament is outlined for Stormont in a third paragraph:
“The Westminster Parliament (whose power to make legislation for Northern Ireland would remain unaffected) will:
(a) legislate for non-devolved issues, other than where the Assembly legislates with the approval of the Secretary of State and subject to the control of Parliament;
(b) legislate as necessary to ensure the United Kingdom's international obligations are met in respect of Northern Ireland;
(c) scrutinise, including through the Northern Ireland Grand and Select Committees, the responsibilities of the Secretary of State” (ref: cited in Morgan, op. cit., pp. 241-2).
Clearly, and as demonstrated throughout this Submission, devolved government is only a rubber stamp for British rule in Ireland.
APPENDIX V: HOW IS PEACE DEFINED AND VIOLATIONS GAUGED?
Critics of what is termed 'negative peace' have argued that, while this approach might prevent violence in the short term, it is not conducive to creating a situation where former warring groups do not contemplate violence against each other in the future (ref: Leeds, op. cit., p.327). Opposing protagonists, now Assembly members, regularly announce or infer that, if their constitutional positions are threatened or aspirations legislatively diminished, 'war' is not entirely excluded from their respective political agendas. For supporters of the constitutional path from both sides of the political divide this threat or perceived threat of violence is intolerable and does not make for stable governance. In addition, the placing of emphasis merely on freezing or stopping physical conflicts may imply legitimisation of the status quo and of the suppression, by government, of groups within stages. Unquestionably, certain groups may suffer tyranny or deprivation, either directly or indirectly, through agencies of government. The demonisation in the media and other outlets, of groups opposed to what has been presented as a remedy for all ills, is a dangerous ploy as outlined in our OVERVIEW.
Researchers and peace activists place less emphasis on merely stopping conflicts, and instead, attempt methods for ensuring a lasting end to conflict. Positive peace implies the growth of a reformed society where features of structural violence, from whatever source, have been removed, and a high degree of social justice has been created, conflict, violence and war are considered unlikely to occur. The mockery that is now being played out under the guise of The Belfast Agreement and what masquerades as ‘THE PEACE PROCESS’, is not viewed as viable to those genuinely striving for a meaningful and lasting solution to what has been, quite wrongly referred to as, “the Northern Ireland problem.”
The conflict is frequently viewed as if only two parties (Unionist and Republican/ Nationalist) were aligned against each other. Yet, in every conflict, there are a number of groups with different interests, and AN AGREEMENT at one level may not actually resolve the overall conflict. While this, most certainly, is the case in Ireland, this is not unique to Ireland alone. For example, the 1979 Egypt-Israeli Agreement did not completely solve the Middle Eastern problem, because other Arab states, including the Palestinians and the oil states, were not parties to, and did not support, the Agreement. It is important to emphasise, however, that in relation to negotiating and the implementation of The Belfast Agreement, the constitutional voice of loyalism namely The Democratic Unionist Party chose not to take part in the process on offer, while some Republicans, on matters of principle and moral grounds, refused to participate.
Accusations of ‘secret deals’, either inferred or implied, together with manipulative practices, continue to add fuel to the unravelling of the ‘Peace Strategy’. In order to give support to this strategy and keep the disillusioned on board, both the British and Dublin governments continually pump money into both Republican and Loyalist ‘community based projects’. Clientele politics play a sizeable role in the manipulative practices to keep grass roots support content. By no stretch of the imagination can PEACE be bought, nor an arrangement sustained, based on a false premise. One political commentator hits the right key in defining clientele politics: “Usually the practice commands widespread popular support as long as it involves the provision of some special service or benefit by a public official to relatives, one's ethnic group or political allies. It does not command public support if only officials seem to benefit from the practice, e.g. seeking personal power.” (ref: Leeds., op. cit.,p.353). These lessons have not been lost on some leading parties and personalities within the Stormont Executive. Major 'funding' is being channeled to keep the foot soldiers happy and the guns silent. What happens if (as appears likely) the institutions are collapsed by the major players without armed wings? Is it back to ‘war’ to resolve the conflict? Loyalists now involved in the ‘Peace Process’ have vowed to protect the Union by “…whatever means necessary...” Where does this leave the peace strategists’ arguments of demographic changes and movements in electoral mandates? Against the argument that ‘…corruption may be functional to the preservation of a system…’ (ref: S.P. Huntington, Political Order in Changing Societies, Yale University Press, 1969), it can be countered that, in this case, it will not be sufficient to save the day. The continuation of violence, including murders and bombings, show that we do not have real ‘peace’ but, instead, what is regarded by the British Government as an acceptable level of violence which will not over-stretch their resources. Local press editorials are calling for vigilance, as they report that 50 pipe bomb attacks have been carried out on Catholic homes during the first six weeks of this year across the North (ref: Irish News, Feb. 26 2001).
In addition, armed militias are only too willing to put down opposition to their ‘peace strategy’, aided by repressive legislation. From the vigilantes installed to patrol Catholic/Nationalist areas after the 1969 pogroms, to the growing role of paramilitary policing in the 1970's to enforce law, the ‘peace strategy’ has been walking a tightrope. (ref: Provisional IRA statement in Andersonstown News,10 December 1977). There has been deep community division regarding the role of policing, but neither the Royal Ulster Constabulary (RUC) nor the paramilitaries have an unchallenged mandate to enforce law and order.
Since The Belfast Agreement, there has been an upsurge in the activities of armed militias, resulting in the suppression of open political freedom of assembly and freedom of expression, obvious human rights violations. These armed personnel have been identified as clearly being aligned to political parties administering British rule within the Stormont Assembly established by the seats of government in London and Dublin. The Universal Declaration of Human Rights is very clear in outlining these rights in its Articles 2,18 and 19.
It has been a constant feature of some pro-Agreement parties, to maintain an ambivalent attitude towards violence and a concerted policy has been agreed, by them, whereby, there is a refusal to explicitly condemn acts of violence. This well trodden course has been used at appropriate junctures in order to maximise electoral appeal. Indeed, as one political researcher has suggested, in a stalemate situation, where the state seems impervious to demands from a ‘constitutional’ party, it is all too tempting for political activists to switch their support to a party whose attitude towards violence is either ‘…ambivalent or outwardly supportive.’ (ref: E. M Browne in Political Violence, Belfast, 1990, p.169).
Human Rights activists have not been slow, however, in documenting and publishing accounts of abuses. Indeed at a seminar in Belfast in 1994 it was argued that people had become persuaded that Human Rights were no longer inalienable or universal, but that the only people who deserved to have their Human Rights respected were those who did not argue with the state. The speaker told her audience: that : “It does not matter what you do or who you are or where you have been, you are entitled as a minimum to the state's respect for your human rights....All of us collectively and individually are entitled to have our rights guaranteed as part of any new political .settlement.... We have to reiterate that Human Rights belong to everyone, being universal and inalienable...” (ref: Report of a Seminar held in Belfast on 10 December, 1994 sponsored by Unison NI, British Irish Rights Watch).
Scholars in recent times have highlighted the need to rethink the relationship between law and sovereignty. (ref: R. Bellamy, Constitutionalism, Democracy and Sovereignty, Hants, England, 1996, p.6). Given that the domestic laws of Britain cannot adequately accommodate the demands of a significant number of people for self-determination, we urge that the mechanisms within international law be fully utilized to secure this objective. One concise analysis is worth noting: “A sovereign state is one NOT subject to certain types of control, and its sovereignty is that area of conduct in which it is autonomous.” (ref: H.L.A. Hart, The Concept of Law, Oxford, 1961, p.217). The United Nations General Assembly meeting of October, 1998, was particularly enlightening and helpful in outlining in vivid terms the rights of peoples, a central focus of which was that of self-determination. (ref:-Official Record A/C.3/53/SR.23., p.7).
CONCLUSION
General Comment 21 of the Human Rights Committee defines the external aspect of self-determination, stating that it:
“…implies that all peoples have the right to determine freely their political status and their place in the international community based on the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.”
The internal aspect of the right to self-determination is characterised by General Comment 21 as:
“…the rights of all peoples to pursue freely their economic, social and cultural development without outside interference.”
In reiteration of the arguments presented herein, and with reference to relevant rights as defined in international law in both our 1998 Submission and this March 2001 Addendum, we respectfully request that the United Nations Commission On Human Rights strongly urge the Government of Britain to comply immediately and unconditionally with its international obligations and respect the democratic wishes and that most fundamental and non-negotiable right of the Irish People, the basic right to self-determination.
We, the 32 County Sovereignty Movement, submit, that a British declaration, relinquishing their sovereign claim to part of Ireland, would be the first step in establishing a permanent peace in Ireland.
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