By: Adrian Wijemanne

  1. There are many ways of analysing the agreement arrived at on April 10th ’98 for ending the 29-year war in Northern Ireland. This article deals with its seminal importance in the domain of constitutional jurisprudence. Whether the settlement succeeds eventually or not, the innovations on which it is based, innovations of policy as well as of constitutional order, will remain and will have an influence far beyond the shores of this country and well into the next century.
  1. The Irish problem has bedevilled the British State for many centuries. In 1922 it was dealt with by dividing the British State in two. The UK was then the mother country of the largest maritime empire in the world. It was also the world’s leading industrial country and had emerged victorious only 3 years earlier from World War I. Yet it proved vulnerable to the internal secessionist challenge of Irish nationalism. To end that centuries-long sporadic guerrilla conflict 26 of the 32 counties on the island of Ireland were hived off into a separate, independent, sovereign state in 1922 by the Treaty of that year. The new state, initially called The Irish Free State ("Eire" in Gaelic) is now The Republic of Ireland.
  1. That event created two new sovereign states of the conventional kind - The United Kingdom of Great Britain and Northern Ireland on the one hand and The Irish Free State on the other. Each enjoyed that most basic attribute of the sovereign state, namely, the exclusive monopoly of armed might within its boundaries.
  1. However, the challenge of Irish nationalism to the British State did not end in 1922. It continued in the 6 counties (and 2 county boroughs, Belfast and Londonderry) that remained within the UK as the Province of Northern Ireland. This time the Irish nationalists did not aim for a separate, independent, sovereign state but instead for the separation of the Province of Northern Ireland from the UK and its joinder to The Irish Republic so that the whole island of Ireland could be a single, independent, sovereign, all-island state.. That challenge was resisted by the Protestant majority of the population of the Province. The dispute degenerated into armed conflict resulting in the British government having to introduce troops into the Province to back up the police and soon to play the leading role in separating the combatants. The Irish nationalists once again gave birth to an armed guerrilla movement, the Provisional Irish Republican Army or IRA for short, which resorted to urban guerrilla warfare against the state’s forces as well as against Protestant targets, first on the island of Ireland and soon in mainland Britain as well. Unsurprisingly, there soon emerged countervailing Protestant guerrilla forces, called "Paramilitaries" presenting another challenge to the forces of law and order.
  1. The armed conflict broke out in earnest in August 1968 - 29 years ago. The state’s best efforts to quell the disturbances and disarm the warring groups proved unsuccessful. Despite fielding 100 troops to 1 IRA guerrilla and incurring an annual expenditure on the effort of 3.25 billion per year the guerrilla forces of the IRA could not be overwhelmed and extirpated from the body politic. 29 years of conflict, the longest war the UK was engaged in this century, proved conclusively that armed combat against a nationalist challenger fighting on his home ground could not produce peace.
  1. A powerful sovereign state, which had but recently won a war 8,000 miles from its shores (The Falklands) against a well-armed opponent (Argentina) failed to quell an urban guerrilla adversary in its own backyard. Such is the nature and virulence of nationalist, secessionist guerrilla warfare waged on the guerrillas’ home ground. As in all similar cases in other parts of the world, the longer the conflict lasted the stronger the state’s guerrilla adversary grew.
  1. The journey towards peace commenced from the conventional starting-point adopted by all sovereign states, namely, the condition that the guerrilla challenger must lay down his arms as a pre-requisite for the commencement of peace negotiations. What could not be secured by armed combat was sought by insisting on the classical, conventional, and so far universal, jurisprudential concept, namely, the absolute imperative of the state’s monopoly of armed might within its boundaries. Predictably, it failed because jurisprudence cannot dispose of reality. The reality now was that the state’s monopoly of armed might within its boundaries was gone for good - undermined by the nationalist guerrilla challenge.
  1. Still the state struggled to hold on even to a semblance of the classical position. Negotiations could commence if there was a ceasefire coupled to a commencement of de-commissioning of arms by the guerrillas. That failed as well. The pre-condition was then watered down to a ceasefire coupled to an undertaking to de-commission arms during the progress of the negotiations being given by the guerrillas. That failed as well. As a last despairing gasp the final condition was a ceasefire coupled to a renunciation of the use of force by the guerrillas. When that too failed the state was reduced to negotiations with its armed adversary solely on the basis of a mutual ceasefiree.
  1. Such is the pass to which a powerful modern state was brought by the internal challenge of a nationalist guerrilla adversary after 29 years of conflict.
  1. The settlement itself is a quadri-partite one involving the UK Government, the government of The Irish Republic, the Protestant parties and the nationalist parties. All four parties have had to make uncomfortable compromises. The UK Government has agreed to repeal the Government of Ireland Act of 1920 and pass fresh legislation empowering the Secretary of State for Northern Ireland to hold referendums in Northern Ireland every 7 years "if it appears likely to him or her that a majority of those voting would express a wish that Northern Ireland should cease to be a part of the UK and form part of an United Ireland."
  1. The Government of The Irish Republic has agreed to amend its constitution, repealing its present articles 2 and 3 which lay claim to the whole of the island of Ireland and replacing them with an aspiration for the unity of all the peoples of Ireland rather than its soil.
  1. The Protestant parties have accepted a new Assembly for Northern Ireland in which they share power with the nationalists, with each side having a veto right over legislation unacceptable to its constituents. The new Assembly has no powers of taxation, which remain with the Westminster parliament.
  1. The nationalists have had to accept the continuance of British troops in Northern Ireland subject to their progressive reduction when a new policing system is devised in conjunction with international advice. Instead of the long-hoped-for union with The Republic of Ireland they have had to be content with "Cross Border" bodies with administrative responsibility for 6 relatively unimportant subjects. These "Cross Border" bodies are to be set up jointly by The Republic of Ireland and the new Northern Ireland Assembly.
  1. A system for the de-commissioning of weapons by all parties is to be set up by June this year with the Protestant and Nationalist parties undertaking to persuade their armed supporters to complete de-commissioning within two years. No sanctions for failure are spelt out. Clearly the fulfilment of this objective will depend on the success of the new institutional set-up.
  1. The agreement is shaped by the unique circumstances of the Northern Ireland situation. As such it cannot be bodily transposed to other theatres of conflict as a model solution. Nevertheless there can be distilled from the whole process some very important lessons for other theatres of similar conflict. Already the Basques and the Spanish Government both have welcomed the agreement, hailing it as a triumph for reason and realism over reliance on now-outmoded nostrums.
  1. Perhaps the most far-reaching departure that will serve as a precedent in other theatres of similar conflict is that peace cannot be secured by armed combat for however long such a course is pursued.
  1. Secondly, and as a corollary, negotiation with an armed adversary, who will continue to be armed, is indispensable for peace.
  1. Thirdly, as a consequence of that, for the first time, the state will have to co-exist with an armed party within its boundaries, eschewing any prospect of eradicating it by force and hoping, at best, for an eventual voluntary disarmament by the armed adversary when he judges that his security can be safely entrusted to the state. That day may come sooner or later or never.
  1. These are the irreversible realities which will have to be reflected in a new constitutional order which will be fundamentally different from the conventional forms which, so far, have embodied and projected the supremacy of the state. The classical notion of the sovereignty of the state will have to be transformed radically. It is nothing less than a new dawn for the evolution of the state in the 21st century.
  1. The stability of the state and of the society upon which it is based must needs be founded on freely given consent. This excludes the threat or use of force as a means of securing the underpinnings of both state and society. The very shape and size of the state must necessarily be governed by this overriding consideration. That is a fundamental lesson of 20th century history - not to learn it well and abide by it is a recipe for repeating the tragedies of this bloodiest of all centuries in the next.

Adrian Wijemanne

13th April ’98