- 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.
- 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 worlds 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.
- 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.
- 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 states 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.
- The armed conflict broke out in earnest in
August 1968 - 29 years ago. The states 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.
- 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 states guerrilla adversary grew.
- 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 states monopoly of armed might
within its boundaries. Predictably, it failed because jurisprudence cannot dispose of
reality. The reality now was that the states monopoly of armed might within its
boundaries was gone for good - undermined by the nationalist guerrilla challenge.
- 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.
- 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.
- 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."
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Secondly, and as a corollary, negotiation
with an armed adversary, who will continue to be armed, is indispensable for peace.
- 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.
- 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.
- 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.