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Certain legal aspects of Anglo-Irish relations
Published online by Cambridge University Press: 07 July 2009
Extract
The relations between the United Kingdom and the Republic of Ireland are beset with so many pitfalls and have their roots in such remote history that it will be as well for this article to begin with a fairly precise definition of terms.
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- Copyright © T.M.C. Asser Press 1972
References
1. In the Government of Ireland Act, passed by the British Parliament in 1920, Northern Ireland was defined as consisting of these six parliamentary counties and also the parliamentary boroughs of Belfast and Londonderry.
2. The nearest point on the English coast is about 70 miles from Northern Ireland.
3. By “Republican cause” is meant that political programme which stands for the unification of Ireland under a single Republic controlled from Dublin. A “Republican” is this sense does not necessarily favour a republic, rather than a monarchy, for England, Scotland and Wales.
4. By “unionist cause” is meant that political programme which opposes the unification of Ireland and which stands for some constitutional link between Northern Ireland and the rest of the United Kingdom. “Unionists” may be, indeed are, divided on the nature of this link (see note 7 below). “Unionism” of course originally meant support for the union between Great Britain and the whole of Ireland as effected by the Act of 1800. The continuing importance of “Unionism” in British politics is indicated by the fact that the highest organ of the Party usually known as the Conservative Party is the “National Union of Conservative and Unionist Associations”. A decisive watershed in British politics occurred in 1886 when the first Home Rule Bill for Ireland, introduced by Mr. Gladstone, the Liberal Prime Minister, was defeated in the House of Commons by 343 votes to 313. No fewer than 93 Liberals, of whom the most prominent was Mr. Joseph Chamberlain, voted against the Government, and on Irish matters these “Liberal Unionists” made common cause with the Conservatives. So prominent and decisive in British politics at the time were Irish affairs, that a leading historian describes the results of the two general elections of 1910, so far as the major parties were concerned, as follows: January election, Liberals 275, Unionists 273; December election, Liberals 272, Unionists 272. (Ensor, R.C.K., England 1870–1914, Clarendon Press, 1936, pp. 418, 427).Google Scholar
5. Interview reported in The Tablet 8 April 1972. The Catholic hierarchy is organised on an All Ireland basis, and the same is true of the Irish Rugby football team.
6. “The Treaty of Limerick 1691” by O'Higgins, P. in Grotian Society Papers (ed. Alexandrowicz, C.H., published by Martinus Nijhoff, The Hague, 1970), pp. 212–232.Google Scholar
7. A somewhat similar division exists among the Protestants in 1972. Some, probably the majority, would like the form of tie with Great Britain which has existed since 1922 to continue; others favour complete integration into the United Kingdom; yet a third group seems to want to proclaim a “unilateral declaration of independence” (UDI), just as the Smith regime has done in Rhodesia.
8. British politicians and writers habitually refer to “the Irish question” and it has been said that, just as the British are about to solve the question (Union, Home Rule, Partition, Direct Rule etc.), the Irish change the question. In an interesting book an Australian writer of Irish descent, Patrick, O'Farrell, has neatly turned the tables by referring to Ireland's English Question (B.T. Batsford Ltd., London, 1971).Google Scholar
9. English History 1914–1945 (Clarendon Press, 1965), p. 158.Google Scholar
10. A.J.P. Taylor, op cit., p. 157.
11. Speaking on 11 July 1971, on the occasion of the 50th anniversary of the truce which led up to the 1921 Treaty, Mr. John Lynch, Taoiseach (Prime Minister) of the Republic of Ireland quoted from a letter sent to Mr. Lloyd George by Mr. de Valera on 10 August 1921: “We cannot admit the right of the British Government to mutilate our country”. (Speeches and Statements on Irish Unity, Northern Ireland, Anglo-Irish Relations, August 1969. October 1971, by John Lynch, published by the Government Information Bureau of the Republic of Ireland).
12. I.C.J. Rep. 1962, p. 6. See also the Separate Opinion of Vice-President Alfaro in that case, p. 39.
13. Vienna Convention on the Law of Treaties, Article 31 (1).
14. Most of the documents connected with the arbitration have only recently been made public. For a full account of the whole affair, see Report of the Irish Boundary Commission 1925 (Irish University Press, Shannon, 1969)Google Scholar. This volume has been edited by Dr. Geoffrey J. Hand of the Faculty of Law, University College, Dublin, and it contains a valuable Introduction by Dr. Hand, as well as documents, speeches, maps etc. For a brief assessment of the arbitration see the article by the present writer in The Month (London, April 1970, pp. 228–234).Google Scholar
15. In considering “the wishes of the inhabitants”, the Commission was right to pay more attention to permanent than to temporary residents. But when it went on to introduce a classification of “owners and lessees of land or house property, including under the term lessees tenants of agricultural property … and tenants of dwellinghouse for periods of, say, a year and upwards” and to say that “more weight may fairly be attached to the wishes of a number of persons having such interests in land than to the wishes of an equivalent number of persons who have no such interests” (Report, p. 61), it may have introduced a class distinction, understandable perhaps in 1925, though not acceptable today.
16. According to Professor Taylor, Mr. Lloyd George “hinted privately to the Irish that the commission, which was to draw the boundary between Ulster and the rest of Ireland would so whittle down Ulster as to make her unworkable and anxious therefor/to join the Irish Free State. In this roundabout way the unity of Ireland would be saved after all. It is impossible to determine whether the hint was seriously meant or whether it was fraudulent from the start”. Later Professor Taylor says “Probably no conscious swindle was intended”, (op. cit., pp. 158–162).
17. Apart from the book edited by Dr. Hand (op. cit.), see Gallagher, F., The Indivisible Ireland (1957)Google Scholar; Frank, Pakenham, now Earl of Longford, Peace by Ordeal (1935)Google Scholar; D. Gwynn, The History of Partition (1950); Phillips, W. Alison, The Revolution in Ireland, 1906–1923 (2nd ed. 1926)Google Scholar; Ervine, St. John, Craigavon: Ulsterman (1949).Google Scholar
See also Hudson, M.O., “The Irish Boundary Question”, 19 A.J.I.L. (1925), 150.Google Scholar
18. Fawcett, J.E.S., The British Commonwealth in International Law. (London, Stevens, 1963) p.4.Google Scholar
19. Partition of Palestine was also the solution recommended by the General Assembly of the United Nations on 29 November 1947 (Resolution 181 (II) A).
20. The Second World War, Vol. VI, Appendix F. However, in the same broadcast, Sir Winston Churchill referred generously to “thousands of Southern Irishmen who hastened to the battle-front to prove their ancient valour” and said that, when he thought of that, “1 must confess that bitterness by Britain against the Irish race dies in my heart”. Sentiments such as these must at least partly explain two extraordinary decisions of the British Parliament. The first was the provision in the British Nationality Act, 1948, to the effect that United Kingdom law should in general “continue to have effect in relation to citizens of Eire who are not British subjects in like manner as it has effect in relation to British subjects” (S.3(2)); and the second was the provision in the Ireland Act, 1949, to the effect that “notwithstanding that the Republic of Ireland is not part of His Majesty's dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom” (S.2(1)). It must be almost unique for a state to grant such a privileged position to the citizens of a foreign state, and this privileged position has continued through Irish citizens being exempted from the restrictive provisions of immigration laws subsequently introduced in the United Kingdom. (See Clive, Parry, “Plural Nationality and Citizenship with Special Reference to the Commonwealth”, 30 B.Y.I.L. 244).Google Scholar
21. It is all the more significant that the British Government at the time was a Labour administration with an enormous majority in the House of Commons. The Labour and Liberal parties have traditionally been less unionist in sympathy than the Conservative party.
22. Northern Ireland (Temporary Provisions) Act, 1972. Section 2 of this Act provides that “Nothing in this Act shall derogate or authorise anything to be done in derogation from the status of Northern Ireland as part of the United Kingdom”. For a description of the constitutional position prior to the recent disturbances which led to the imposition of “direct rule” from Westminster, see Calvert, H., Constitutional Law in Northern Ireland (1968)Google Scholar, and Professor Claire, Palley, The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution (1972).Google Scholar
23. 29 March 1972.
24. Article 15 (1) provides: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”.
See 4 Y.B. European Convention on Human Rights 438; 31 International Law Reports 290:
25. Corfu Channel case, I.C.J. Rep. 1949, p. 22.
26. Eduardo Jiménez de, Aréchaga on “international Responsibility” in Manual of Public International Law (Ed. Max, Sørensen, London, 1968, p. 557).Google Scholar
27. Article 1(2) of the Charter of the United Nations provides that one of the purposes of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.
28. These figures are taken from The Times, 8 March 1972.
29. Without attemping a comprehensive list, it seems the matters which have attracted most interest have been state succession; extradition practice; and the emergence of the Irish Free State as an international person. See Garner, J.W., “A Question of State Succession”, 21 A.J.I.L. 753Google Scholar; Jenks, C.W., “State Succession in Respect of Law-making Treaties”, 29 B.Y.I.L. 105, 130Google Scholar; O'Higgins, P., “Irish Extradition Law and Practice”, 34 B.Y.I.L., 274Google Scholar; Chevallier, J.J., “La Societé des Nations Britanniques”, 64 Hague Recueil, 237, 264, 279Google Scholar; Chevallier, J.J., “Le droit de représentation diplomatique distincte des Dominions Britanniques et de l'Etat libre d'Irlande”, 13 Revue de droit international et de législation comparée, 277Google Scholar; Friedlander, L.M., “The Admission of States to the League of Nations”, 9 B.Y.I.L. 84, 95, 99Google Scholar; Jennings, R.Y. “The Commonwealth and International Law”. 30 B.Y.I.L. 320, 332Google Scholar. See also Baker, P.N., The Present Juridical Status of the Britisch Dominions in International Law (1929).Google Scholar
30. O'Connor, John F., “Disturbances in Northern Ireland – An International Problem and an International Solution”, 12 International Relations (David Davies Memorial Institute of International Studies, London) 966.Google Scholar
31. C. 761 M.261. 1924V. See also Hudson, M.O., “The Registration and Publication of Treaties” 19 A.J.I.L. 273, 287Google Scholar. Article 18 provided: “Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered”.