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Published online by Cambridge University Press: 17 January 2008
The Northern Ireland Peace Agreement1 was concluded following multi-party negotiations on Good Friday, 10 April 1998. It received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on Friday 22 May, the day after Ascension. To some, it must have seemed that the timing was singularly appropriate following 30 years of “The Troubles”, which were perceived as being between a “Catholic minority” and a “Protestant majority”. While there are some minority groups identified by their religious affiliation that do require rights relating only to their religion, such as the right to worship in community,2 to practise and profess their religion,3 to legal recognition as a church,4 to hold property5 and to determine its own membership,6 some minority groups identified by their religious affiliation are properly national or ethnic minorities–religion is merely one factor which distinguishes them from the other groups, including the majority, in the population. One example of the latter situation is to be seen in (Northern) Ireland where there is, in fact, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole.7 The territory of Northern Ireland is geographically separate from the rest of the United Kingdom. The recent peace agreement addresses a whole range of issues for Northern Ireland, but included are, on the one hand, rights for the populations based on their religious affiliation, their culture and their language and, on the other, rights with respect to their political participation up to the point of external self-determination. It is a holistic approach. Like any good minority rights agreement,8 it deals with both standards and their implementation and, like any good minority rights agreement, it is not a minority rights agreement but, rather, a peace settlement.
1. Cm.3883; available at http://www.nio.gov.uk/agreement.htm. See also the speech of the Secretary of State for Northern Ireland, Marjorie (Mo) Mowland, to the House of Commons on 20 Apr. 1998: HC Hansard, 20 04 1998, cols.479–482.Google Scholar
2. Viz. Art.27, International Covenant on Civil and Political Rights, 1993 UNGA res.2299 A(XXI), UNGAOR, 21st Sess., Supp. No. 16, 52 (1966): 999 U.N.T.S. 171;Google Scholar(1967) 6 I.L.M. 368Google Scholar: (1967) 61 A.J.L.L. 870Google Scholar: (1967) “In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”Google Scholar
3. Kokkinakis v. Greece, Ser.A, Vol.260–A, para.31: “While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one's] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions.”Google Scholar
4. Canea Catholic Church v. Greece (143/1996/762/963), 16 12 1997. where the ECtHR held that the refusal by a Greek civil court to recognise the church had legal personality violated Art.6.1 of the ECHR, taken on its own or with Art.14.Google Scholar
5. Holy Monasteries v. Greece, Ser.A, Vol.301–A (1994).Google Scholar
6. Cf. Lovelace v. Canada, UNGAOR. 36th Sess., Supp. No. 40, 166 (1981)Google Scholar: (1981) 2 H.R.L.J. 158.Google Scholar
7. See Hadden, and Boyle, , Northern Ireland: The Choice (1994).Google Scholar
8. There has been a plethora of minority rights instruments since the break-up of the former Soviet Union. There is the legally binding Framework Convention for the Protection of National Minorities 1995 (Council of Europe), (1995) 341.L.M. 351Google Scholar; the politically binding but more progressive Copenhagen Document (OSCE (CHD) Copenhagen Document. (1990) 11 H.R.L.J. 232Google Scholar—and see Buergenthal, , “A New Public Order for Europe” (1990) 11 H.R.L.J. 217Google Scholar; and the UN General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (GA Res.47/135, Annex, 47 UNGAOR Supp. (No. 49) at 210, UN Doc.A/47/49 (1993)—see also the commentary by Asbjorn Eide, E/CN.4/Sub.2/AC5/1998/WP.1, 13 05 1998).Google Scholar
9. E.T.S. No.148.
10. Rights, Safeguards and Equality of Opportunity, Economic Social and Cultural Issues, clause 4: “The British Government will …
* take resolute action to promote the language;
* facilitate and encourage the use of the language in speech and writing in public and private life where there is appropriate demand;
* seek to remove, where possible, restrictions which would discourage or work against the maintenance or development of the language;
* make provision for liaising with the Irish language community, representing their views to public authorities and investigating complaints;
* place a statutory duty on the Department of Education to encourage and facilitate irish medium education in line with current provision for integrated education;
* explore urgently with the relevant British authorities, and in co-operation with the Irish broadcasting authorities, the scope for achieving more widespread availability of Teilifis na Gaeilige in Northern Ireland;
* seek more effective ways to encourage and provide financial support for Irish language film and television production in Norther Ireland; and
* encourage the parties to secure agreement that this commitment will be sustained by a new Assembly in a way which takes account of the desires and sensitivities of the community.”
11. Both supra n. 8. Copenhagen, paras.32 and 34; Framework Convention, Art.9, 19, 12, 13 and 14.
12. Rights, Safeguards and Equality of Opportunity, Human Rights, clause 9.
13. See Constitutional Issues, clause 1(v); Democratic Institutions in Northern Ireland, Safeguards, clause 5(3); Rights, Safeguards and Equality of Opportunity, United Kingdom Legislation, clause 4; and the British-Irish Agreement Art. 1(v).
14. Rawls, . Political Liberalism (1993), pp.133–134 and 141.Google Scholar
15. Constitutional Issues, clause 1(vi), repeated in the inter-govemmental British-Irish Agreement, Art.1(vi). This recognition is despite the fact that under Constitutional Issues, Annex B, the Irish government had to amend the Irish Constitution to repeal Arts.2 and 3 which had laid claim to the six counties of Northern Ireland as part of Irish territory—cf Russell v. Fanning [1986] I.L.R.M. 401Google Scholar (HC) (see also (1987) 5 Irish L.T. 1Google Scholar, [1988] I.L.R.M. 333 (SC), where Hederman J. argued, at 346–347, that the reintegration of Northern Ireland had been a constitutional imperative.Google Scholar
16. See e.g. Arts.3–6 of the Treaty of St Germain with Czecho-Slovakia (sic), 1919 (U.K.T.S. 20 (1919), Cmd 479).Google Scholar There does not seem to have been any consideration of the issue of dual nationality. Various reasons can be advanced, such as (i) the fact that the Allies were, for the most part, creating new States and giving them a population formed predominantly, but not exclusively, from one “nation”, (ii) the fear that if the minorities had the nationality of another State this would be a destabilising factor and, finally, (iii) because the treaties were influenced by a draft drawn up by a Jewish groups who at that time lacked a nation-State with which to have dual nationality—Macartney, , National States and National minorities (1934) pp.212 et seq. and 507–509Google Scholar, see also Franck, . “Clan and Superclan: Loyalty, Identity and Community in Law and Practice” (1996) 90 A.J.I.L. 359, 375.Google Scholar
17. Citizens of the Republic of Ireland can enter and travel freely throughout the UK without being subject to immigration control and they can vote in UK elections among several other statutory rights: see ss.1 and 9, Immigration Act 1971; s.31. British Nationality Act 1981 and s.1(1)(b)(ii), Representation of the People Act 1983.
18. See also Macedonia, which has encouraged a multi-ethnic army: CERD/C/270/Add.2, reported in E/CN.4/Sub.2/AC.5/1998/WP.2.
19. Policing and Justice, clause 1. Emphasis added.
20. Rights, Safeguards and Equality of Opportunity, New Institutions in Northern Ireland, clause 5.
21. Idem, Comparable Steps by the Irish Government, clause 9.
22. Human Rights Committee, General Comment 12, Art.1 (21st session, 1984) para.6. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc.HRI/GEN/1/Rev.1 at 12 (1994).Google Scholar
23. Beetham, , Democratic Audit of the UK: Key Principles and Indices of Democracy (1993), p.11.Google Scholar
24. Whether this has the effect of federating the UK is questionable, but it is an issue to be considered every time the UK ratifies a treaty with a federal clause in the future.
25. See Hadden, and Boyle, , “Internal Power-Sharing, Externally Shared Authority and Inter-Governmental Co-operation” (1997) 22: 2 Etudes Iriandaises 37.Google Scholar
26. See the problems such an approach has caused in Belgium—App.No.9267/81, Mathieu-Mohin Clerfayt v. Belgium, Ser.A, Vol.113 (1987), (1988) 10 E.H.R.R. 1, NB. Belgian parliamentary divisions are linguistically and regionally based.
27. Democratic Institutions in Northern Ireland, Operation of the Assembly, clause 6. “Other” is redundant if members want a say in cross-community decisions under clause 5(d), discussed below. Those who do not automatically classify themselves in either the nationalist or unionist camp, but who wish to see progress in the Assembly, should probably declare themselves to be unionists in order to produce a 5(d)(ii) weighted majority—see below.
28. Idem, Executive Authority, clause 16.
29. Either because it is laid down as such in the Agreement or because a significant minority of Assembly members (30/108, i.e. 27.77%) present a petition of concern—idem. Safeguards, clause 5(d).
30. NB: Note that under clause 5(d)(ii) there could be less than 50% support from either community and yet a measure might still be passed.
31. Democratic Institutions in Northern Ireland, Safeguards, clause 5(d).
32. Smith, , “Gastronomy or Geology? The Role of Nationalism in the Reconstruction of Nations” (1995) 1 Nations & Nationalism 3, 13.Google Scholar
33. Supra n.8: Framework Convention, Art.15; Copenhagen Document, para.35.
34. There is a third body, the British-Irish Council, which is meant to discuss issues of importance to England, Scotland, Wales, Northern Ireland and Republic of Ireland.
35. North/South Ministerial Council, clause 9(ii). See also Annex: “Areas for North-South co-operation and implementation may include the following:
1. Agriculture—animal and plant health.
2. Education—teacher qualifications and exchanges.
3. Transport—strategic transport planning.
4. Environment—environmental protection, pollution, water quality, and waste management
5. Waterways—inland waterways.
6. Social Security/Social Welfare—entitlements of cross-border workers and fraud control.
7. Tourism—promotion, marketing, research, and product development.
8. Relevant EU Programmes such as SPPR, INTERREG, Leader II and their-successors.
9. Inland Fisheries.
10. Aquaculture and marine matters.
11. Health: accident and emergency services and other related cross-border issues.
12. Urban and rural development”
36. British-Irish Intergovernmental Conference, clause 5.
37. See also Rawls, op. cit. supra n.14.
38. Although clause 4 of British-Irish Intergovernmental Conference claims that there is no derogation from the sovereignty of either government.
39. Thornberry, , “The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism”, in Tomuschat, Modern Law of Self-Determination (1993) p.107.Google Scholar
40. Art.1, British-Irish Agreement, annexed to the entire Agreement. See also Constitutional Issues, clause 1.
“Article 1: The two Governments: (i) recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland; (ii) recognise that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment to exercise their right of self-determination on the basis of consent, freely and concurrently given. North and South to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland; (iii) acknowledge that while a substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people of the island of Ireland for a united Ireland, the present wish of a majority of the people of Northern Ireland, freely exercised and legitimate, is to maintain the Union and accordingly, that Northern Ireland's status as part of the United Kingdom reflects and relies upon that wish; and that it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people; (iv) affirm that, if in the future, the people of the island of Ireland exercise their right of self-determination on the basis set out in sections (i) and (ii) above to bring about a united Ireland, it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish.”
The only additional point to note is that a poll on uniting with the Republic is to be held when it appears likely to the Secretary of State for Northern Ireland that a majority of those voting would favour such a change–Constitutional Issues, Annex A, Sch.1.2.
41. Gros, Espiell, The Right to Self-Determination—Implementation of United Nations Resolutions, E/CN.4/Sub.2/405/Rev.1, 1980Google Scholar; Pomerance, Self-Determination in Law and Practice (1982).Google Scholar
42. United Communist Party of Turkey (TBKP) v. Turkey ECtHR, 133/1996/752/951, 30 01 1998, paras.56 and 61.Google Scholar
