Territorial disputes: Northern Ireland (Part 27) [Post 112]

Brexit could be negative in many ways to the United Kingdom. That does not mean it has to be negative for Northern Ireland. In fact, Brexit opens many doors for Northern Ireland (doors that previously seemed to be closed).

Yesterday’s post referred to self-determination. It should be clear now independence is not the only way in which self-determination may evolve. Indeed, the population may vote to be administered by, or integrated into, one of the States claiming sovereignty (e.g. Puerto Rico, where the battle is between statehood and independence).

 

Then self-determination may lead to different results since the population might decide:

a) to be independent;

b) to be administered by or be part of one party—i.e. integration or free association;

c) to have shared sovereignty.

 

If self-determination leads either to independence or to integration/association, there are reasons why to avoid it is—at least—advisable. First, in cases such as Northern Ireland, to grant self-determination in the form of independence would imply an unbalanced situation amongst the involved agents. The fact that Norther Ireland had complete sovereignty would mean that its inhabitants had exclusive prerogatives over the territory including consequent rights and burdens; the rest of the international agents involved would not have any actual or future right or obligation to intervene in its internal or international affairs. So, the sovereign State that had closer relations with Northern Ireland before the self-determination would see its position both de jure and de facto improved. In light of Brexit, an independent Northern Ireland would have to apply to join (or re-join) the European Union. Therefore, if Northern Ireland achieved complete sovereignty they would be outside both the European Union and the United Kingdom. Indeed, it seems like an unreasonable (or not the most advantageous) option.

 

To leave aside self-determination in the form of independence does not have to do with the international institution itself but with the way it may be applied in this situation. It might have been useful in historical specific cases due to their own characteristics (e.g. Kosovo). But to use the same international institutions in the same manner in cases in which the interrelation amongst the involved agents is already peaceful—apart from Brexit—adds an unnecessary element of discord that goes against peaceful international relations.

 

REMINDER: self-determination may imply secession from an already sovereign State. In fact, self-determination can be one of the ways to secede but not the only one. However, to obtain independence through self-determination is not a solution that can be taken automatically in sovereignty issues. It is an ultimum remedium in situations in which a given sovereign State has a certain tension with a group of people, this group of people is large enough, their human rights are not acknowledged, and they have a common identity and decide to be independent; otherwise, their existence within the sovereign State could be compromised. But secession in the form of self-determination is an extreme remedy that may do more harm than good, in some cases.

 

NOTE: based on Chapter 5, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

31st July 2018

Territorial disputes: Northern Ireland (Part 26) [Post 111]

Before going into the way in which we may address the case of Northern Ireland by means of the Egalitarian Shared Sovereignty, it is important to clarify the concept of self-determination.

In the context of international public law, there are several documents that refer to self-determination:

Chapter 1, Article 1, part 2 of the UN Charter states amongst its purposes: “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.” 

UN General Assembly Resolution 1514 Article 2: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

UN General Assembly Resolution 2649 Article 1: “Affirms the legitimacy of the struggle of peoples under colonial and alien domination recognised as being entitled to the right of self-determination to restore to themselves that right by any means at their disposal.”

UN General Assembly Resolution 2625 Article e: “The principle of equal rights and self-determination of peoples.”

 

Although it is often thought to be intrinsically linked to independence, self-determination deserves a separate section because:

a) there is a vast quantity and variety of documents related to this international institution;

b) there are many populations around the world at least considering it as an option for their political status;

c) it may lead to solutions other than independence.

 

In international relations, self-determination can be understood as a principle that allows a certain group of people who live in a given territory to have the right to decide who will govern them. Although both are legal and political concepts, sovereignty gives priority to the State whereas self-determination gives preeminent place to the people. It is not uncommon in sovereignty conflicts that the population of the third territory seeks independence by applying the principle of self-determination. However, the fact that the third territory is granted self-determination—and hence, may become independent—implies always a negative response from at least one of the agents involved in the original conflict.

 

More precisely, independence is not the only way in which self-determination may evolve. This is key in Northern Ireland since self-determination could enable them to get the best bargaining situation out of Brexit resulting in multiple benefits to current inhabitants and their future generations. In other words, it may be the case that Brexit could be negative in many ways to the United Kingdom. That does not mean it has to be negative for Northern Ireland. In fact, Brexit opens many doors for Northern Ireland (doors that previously seemed to be closed).

 

NOTE: based on Chapter 5, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

30th July 2018

Territorial disputes: Northern Ireland (Part 25) [Post 110]

Time to solve the case of Northern Ireland. When referring to this particular case, the blog series TERRITORIAL DISPUTES presented with the first 20 posts (posts 86-105) relevant European Union law (free movement of persons, European citizenship, free movement of goods, capital and services). The last four posts (posts 106-109) introduced very briefly the background situation.

Post 21: Territorial disputes: Northern Ireland (Part 106)

Post 22: Territorial disputes: Northern Ireland (Part 107)

Post 23: Territorial disputes: Northern Ireland (Part 108)

Post 24: Territorial disputes: Northern Ireland (Part 109)

 

Territory, in principle, can be defined as an area owned and possessed by the population (in land, water, space and, perhaps, cyberspace). Like population, it may have features that could cause controversy in TERRITORIAL DISPUTES. Some of the features that constitute territory will be reviewed using the case of Northern Ireland in light of Brexit. Those that introduce controversy will be analyzed using the model proposed here. Next time we center the attention on borders, natural resources and defense.

 

Let us remember the way in why this series propose to deal with TERRITORIAL DISPUTES. The allocation of sovereignty will be given by: a) equal right to participate (egalitarian consensus principle); b) the nature and degree of participation depends on efficiency of accomplishing the particular objective/area/activity at issue (principle of efficiency); c) each party receives a benefit (in terms of rights and opportunities) that depends on what that party cooperates with (input-to-output ratio principle); and d) provided the party with greater ability and therefore greater initial participation rights has the obligation to bring the other two parties towards equilibrium (equilibrium proviso). I call this way of dealing with sovereignty conflicts or disputes the EGALITARIAN SHARED SOVEREIGNTY.

 

Many questions are to be expected. Amongst them: How is that translated into geographical borders between Northern Ireland and the Republic of Ireland after Brexit? What about the exploration and exploitation of natural resources? This question has two parts: a) the sea-zone adjacent to Northern Ireland only; and b) the portion that overlaps with the Republic of Ireland. Finally, in the hypothetical scenario that Northern Ireland had a referendum and decided to leave the United Kingdom, who would defend them?

 

The next posts on this blog series about TERRITORIAL DISPUTES will cover these questions. In order to answer them, the posts will explore the concept of self-determination in the event Northern Ireland decided to have a referendum in the future.

 

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Núñez

Twitter: @London1701

27th July 2018

Territorial disputes: Northern Ireland (Part 24) [Post 109]

Sovereignty issues like the one with Northern Ireland, the United Kingdom and the European Union in light of Brexit in which several international agents argue about sovereign rights for different reasons over the same piece of land have a particular feature: their solution seems to require a mutually exclusive relation amongst the agents because the sovereignty can be for only one of them. Indeed, sovereignty seems to be an absolute concept (that is to say, exclusive, and not shareable). Therefore, the United Kingdom (hence, Northern Ireland) are in or out the European Union.

Post 7: Territorial disputes: sovereignty

Post 8: Territorial disputes: sovereignty (cont.)

 

As it stands, the situation in Northern Ireland is a clear example of a zero sum game, with many negative outcomes of different sorts. The effect of Brexit remains unknown. Yet, it is evident there are many issues at stake domestically and internationally.

Post 9: Territorial disputes: issues at stake

 

Only to have a glimpse, today’s posts includes below a sample of articles from the media covering the case of Northern Ireland. It is evident the information is contradictory and any outcome divides the population’s views about the hard/soft border. Moreover, the last article includes a reference to a point often overlooked and has to do with natural resources.

 Although Northern Ireland is not a territorial issue, it has been and is object of study of many sciences—law, political sciences, international relations, only to name a few—these sciences do not share their developments and both different approaches and different languages were applied. Indeed, although multi and inter-disciplinary studies are promoted in speeches everywhere, it is more a nominal aim rather than an actual reality.

I realised that the answer was very simple. Some problems are never solved because most look for more problems, problems within a problem, or just simply give up or are so self-centred they think that problem will not affect them and hence, why would they even think about it. Ergo, the answer came to me: some problems like Northern Ireland evade a solution because people (or their representatives) do not look for answers.

 

BBC

Theresa May says EU must 'evolve' its Brexit position

“The UK and EU have agreed that there should be no hard border in Ireland, but are at odds over how to achieve it.”

“The EU has proposed a backstop that would mean Northern Ireland staying in the EU customs union, large parts of the single market and the EU VAT system.”

“However, the UK said that would effectively create a border down the Irish Sea.”

“On Friday, Mrs May again repeated her opposition to that, saying: "The economic and constitutional dislocation of a formal 'third country' customs border within our own country is something I will never accept and believe no British prime minister could ever accept".

Link to the complete article

 

Belfast Telegraph

Ireland 'will have hardest border in Europe if there's a no deal Brexit'

“In a blunt warning detailing the catastrophe that lies ahead if a 'no deal' Brexit materialises, Joachim Pfeiffer painted a dire picture of the outcome.”

“Mr Pfeiffer said Ireland would "have a border like we have a border with Ukraine or Belarus" as there would no longer be treaties in place with the UK that would ensure the rules and standards of the EU would be respected.”

Link to the complete article

 

Sky News

Northern Ireland 'unsupportive' of 'no deal' Brexit, study shows

 “Unionists and nationalists continue to disagree over the location of any physical border after Brexit - unionists opposing an East-West one in the Irish Sea, nationalists opposing a North-South land boundary.”

“But the university researchers who have collated this data believe it has revealed a "point of convergence" on the Irish border issue in operational terms.”

“Their key finding is that unionists and nationalists would both prefer the least intrusive border possible and that there is an arrangement that could command support across the two communities.”

Link to the complete article

 

Financial Times

Hard Brexit: the eye-catching contingency plans to stop NI power blackouts

“The situation could come about because Northern Ireland has shared a single energy market with the Irish republic for over a decade, in one of the consequences of the Good Friday Agreement of 1998. Northern Ireland relies on imports from south of the border because it does not have enough generating capacity itself.”

“Britain is hoping to negotiate a deal to allow that single electricity market on the island of Ireland to continue after Brexit.”

“But in the event of a totally disruptive rupture with the bloc Whitehall officials fear that power providers in the republic could end the provision of electricity because the UK would no longer be part of the European electricity market.”

Link to the complete article

 

Jorge Emilio Núñez

Twitter: @London1701

26th July 2018

Territorial disputes: Northern Ireland (Part 23) [Post 108]

Northern Ireland in light of Brexit presents many issues at stake. In fact, Northern Ireland still has the choice to have access to the European Union. The previous posts presented brief background information and a few views that included references to law and politics, the European Union, and many others.

Post 106: Territorial disputes: Northern Ireland (Part 21)

Post 107: Territorial disputes: Northern Ireland (Part 22)

Today’s post centres the attention of one of these parties: people. What do people in Northern Ireland want? Several documents give us an idea of what they want.

In the 2016 EU referendum, 58% of voters in Northern Ireland voted for Remain. This result, and the continuing uncertainty over the impact of Brexit on the Irish border, has led to calls for a border poll to allow the whole island of Ireland to remain in the EU.

 

 

Who is calling for a border poll to take place?

In April, Sinn Féin’s leader in Northern Ireland, Michelle O’Neill, called for this to happen within five years. The nationalist Social and Democratic Labour Party (SDLP) support a referendum on Irish reunification after the Brexit negotiations.

The Irish Government has also taken the position that the time is not right for a border poll. In July 2017, Irish Taoiseach Leo Varadkar stated that a vote on Irish reunification at this point would be defeated, and therefore "it would not achieve a united Ireland, but what it would do is give rise to further nationalist, further sectarianism and further polarisation."

 

Irish reunification Published on The Institute for Government (https://www.instituteforgovernment.org.uk)

Link to the complete document

 

A very recent poll by LucidTalk Opinion Panel (now 10,482 members) consists of Northern Ireland residents (age 18+) and is balanced by gender, age-group, area of residence, and community background, in order to be demographically representative of Northern Ireland. This is the report from LTs May NI Poll for YouGov and the BBC – Main topics covered: Identity, local influence over decisions, preference for future NI government, NI Border poll – should there be one, and what way would you vote if there was one, and decision making in Northern Ireland.

The complete poll (link) below. Some interesting results to note:

 

From all respondents, 56.7% consider themselves European while 46.7% consider themselves British. These figures are more polarized when we distinguish between protestant and catholic respondents:

For Protestant respondents, 30.9% consider themselves European while 82.9% British.

For Catholic respondents, 82.4% consider themselves European while 3.9% British.

 

From all respondents, 62.4% strongly disagree politicians in Westminster reflect their concerns.

 

In terms of what areas the UK Government should make decisions about, there is a large difference with this question between Protestant and Catholic respondents. Protestant respondents score all factors much higher than Catholics.

 

Question 16 is central to this blog series, Northern Ireland in light of Brexit. “If there was a referendum on the border between Northern Ireland and the Republic of Ireland, would you vote?”

The figures for ALL RESPONDENTS are:

45% REMAIN (vote for NI to stay within the UK)

42.1% LEAVE (vote for NI to join the RoI)

12.7% UNDECIDED

0.2% WOULD NOT VOTE

There is a large difference of opinion between Protestants and Catholics regarding this issue.

Protestant respondents: 78.5% would vote REMAIN; 8.5% would vote LEAVE.

Catholic respondents: 7.2% would vote REMAIN; 84.3% would vote LEAVE.

 

May 2018 – Northern Ireland Tracker Poll

Link to the complete poll

 

Jorge Emilio Núñez

Twitter: @London1701

25th July 2018

Territorial disputes: Northern Ireland (Part 22) [Post 107]

 

 

 

There are many academic and non-academic articles about Northern Ireland. Today’s post include references to two documents that offer a views about Northern Ireland in light of Brexit.

 

Previous post about Northern Ireland (part of the TERRITORIAL DISPUTES series):

 

Post 106: Territorial disputes: Northern Ireland (Part 21)

 

The first document introduces HM Government’s position about the future on Northern Ireland and the relationship with the United Kingdom and thE European Union.

The second document includes the analysis of this situation by the European Union.

 

Northern Ireland and Ireland. Position Paper. HM Government

This paper outlines the United Kingdom’s (UK) position on how to address the unique circumstances of Northern Ireland and Ireland in light of the UK’s withdrawal from, and new partnership with, the European Union (EU).

Introduction

1.   The United Kingdom welcomes the establishment of a dialogue on Northern Ireland/Ireland issues between the UK and the EU negotiating teams. The UK believes that this dialogue should be substantial and detailed, and seek to address the unique circumstances of Northern Ireland and Ireland in a comprehensive and flexible way. The UK and the EU had positive exploratory discussions in the July round of negotiations covering the UK’s proposals in relation to the Belfast (‘Good Friday’) Agreement and the Common Travel Area and associated rights.

2.   The UK’s withdrawal from the EU, and the development of a new, deep and special partnership between the UK and the EU, has important implications for Northern Ireland and Ireland. While continuing to take account of these interests across the board, the UK believes that there are four broad areas where a specific focus on the unique relationship between the UK and Ireland, and the importance of the peace process in Northern Ireland, is required in the initial phases of the dialogue. This paper sets out the UK’s proposals for these areas as follows:

Section 1: upholding the Belfast (‘Good Friday’) Agreement in all its parts;

        Section 2: maintaining the Common Travel Area and associated rights;

        Section 3: avoiding a hard border for the movement of goods; and

        Section 4: aiming to preserve North-South and East-West cooperation, including on energy.

         

3. An early and specific focus on these issues is consistent with the European Council’s negotiating guidelines and the European Commission’s directives, the Irish Government’s priorities paper, and the UK Government’s White Paper and Article 50. It is also in line with the issues “of particular significance” set out by the former First Minister and deputy First Minister of Northern Ireland in their joint letter of 10 August 2016 to the Prime Minister. The European Council’s negotiating guidelines are clear that “flexible and imaginative solutions” must be developed on border arrangements as an early priority in the negotiations.

4. There is significant overlap in the objectives set out by the UK Government, the Irish Government and the EU. In particular, it is clear that our high level objectives are wholly aligned with regards to: avoiding a hard border; maintaining the existing Common Travel Area and associated arrangements; and upholding the Belfast (‘Good Friday’) Agreement, including the principles of continued North-South and East-West cooperation. The UK therefore welcomes the opportunity to discuss how best to deliver these shared objectives

 

5. The UK believes that swift progress should be made in agreeing the way forward on the Common Travel Area and associated rights and some of the specific issues arising from the Belfast (‘Good Friday’) Agreement by October. The UK also believes it is possible in this phase to establish working principles for the movement of goods, energy and wider cross-border cooperation that will underpin the development of technical solutions as part of the negotiations on the future relationship between the UK and the EU. Given the complete alignment between the UK, Ireland and the EU on high level objectives for these crucial issues, and our strong support for the peace process in Northern Ireland, these solutions should be agreed at the earliest opportunity. To facilitate progress, the UK proposes to discuss in forthcoming negotiating rounds the high level principles and criteria that could be agreed and used to test potential future models for border arrangements.

Northern Ireland and Ireland. Position Paper. HM Government

Link to the complete document

 

The Impact and Consequences of Brexit for Northern Ireland  

KEY FINDINGS

·       Northern Ireland is the part of the UK most distinctly affected by Brexit. The introduction of a ‘hard border’ with the Republic of Ireland is a particular concern, with customs controls probable and immigration checks possible. Free movement across the island of Ireland remains a desired feature of a strong bilateral relationship which strengthened amid common EU membership and the Northern Ireland peace process.

·       Northern Ireland has no autonomy over Brexit. As such, Northern Ireland’s 2016 referendum vote to remain within the EU is, in constitutional terms, of no significance. The UK Supreme Court has stated categorically that the consent of the Northern Ireland Assembly is not required for the UK government to withdraw from the EU.

·       The UK’s relationship with the EU (and its termination) is an excepted power, retained by the UK government. No powers have been devolved to the Northern Ireland Assembly in this respect. The 1998 Northern Ireland Act gives the Assembly the right to pass laws but only in devolved policy areas and does not affect the power of the UK Parliament to make laws for Northern Ireland.

·       The Northern Ireland Assembly will be able to determine what EU legislation should be retained where it affects Northern Ireland in policy areas over which the Assembly holds devolved powers.

·       Brexit will require deletion of references to the EU within the 1998 Good Friday Agreement, Northern Ireland’s peace deal. The all-island aspects of the Agreement most embed the EU and provide institutional mechanisms for the continued financing of the peace process by the EU. Given the status of the Good Friday Agreement as an international treaty and its endorsement in referendums in Northern Ireland and the Republic of Ireland, a reworking could be challenged but there seems no legal room for such a challenge. The UK and Irish governments appear to desire some form of special status – without using that term - for Northern Ireland, given the potential adverse economic effects in both jurisdictions and the political sensitivities accruing to any hardening of the border dividing the island.

·       The political sensitivities of Brexit are considerable. Most nationalists voted to remain within the EU. They see themselves as Irish citizens, i.e. members of the EU, and wish to retain that status. A minimum demand is special status for Northern Ireland. A majority (but a far from overwhelming one) of unionists voted to leave. Whilst the risks to the current relative peace are minimal, the extent of continuing inter-communal polarity provides a strong case for special treatment for Northern Ireland.

·       A bilateral bespoke deal between the UK and Irish governments to maintain the Customs Union between the two states – which would continue to render invisible Northern Ireland’s frontier with the Irish Republic - would require EU approval. The UK government has listed tariff-free trade across borders, via a special agreement with the EU, as a priority. Failure to conclude such a deal will impact significantly upon Northern Ireland as a site of tariff checks.

·       The UK government has listed the maintenance of a Common Travel Area (CTA) between the UK and Ireland as one of its negotiating priorities. Its abolition would have significant potential impact upon travel across the border.

 

The Impact and Consequences of Brexit for Northern Ireland  

Link to the complete document

 

Jorge Emilio Núñez

Twitter: @London1701

24th July 2018