The Gazette 1971

Parliamentary sovereignty means neither more nor less

than this, namely, that Parliament thus defined has,

under the English Constitution, the right to make or

unmake any law whatever; and, further, that no person

or body is recognised by the law of England as having

a right to override or set aside the legislation of

Parliament."

Jurisdiction

So much for the "Constitution". But is there much

validity in the argument that, by recognising Storinont,

those in the South would thereby contribute to the

lessening of tensions in the North and also by this act

establish their own good faith towards the majority

living there? It is my opinion that this kind of argument

is fundamentally misconceived, that it ignores the

motives of those Unionist politicians who use this argu-

ment as a stick to berate their opposition, and that it

is based on a fallacy as to what recognition is all about.

Recognition is a device in international law which a

State uses to establish a legal relation with another

sovereign independent State.

The act of recognition may cover a large and impor-

tant area such as recognition of belligerency (as in the

Spanish Civil War), the recognition of another state

(such as Zambia's recognition of Biafra) or a new

government (especially after a civil war). Occasionally,

a State may recognise a government even where there is

doubt as to whether the government is firmly established

(as with the recognition of the Algerian F.L.N, during

the war with France). Conversely, attempts to obtain

recognition in such a context may fail, as occurred in

1918 with the Irish Republic.

Recognition is usually a formal act but it can also be

implied from conduct. But the important legal and

political factor to remember is that this device can only

operate between legal entities that have an existence in

international law.

The "Government" at Stormont has no such exis-

tence. In international law, that part of the earth

described as Northern Ireland is an integral part of the

United Kingdom and we have recognised it as such for

over forty years. Put in another way, Dr. Hillery's reply

that he did not understand how recognition could be

given "to an administration which has no sovereignty

of its own" asserts the ultimate British responsibility for

the affairs of Northern Ireland.

The

Constitution

What, then, is the relevance of Articles 2 and 3 of the

1937 Constitution? Article 2 describes the "national

territory" as the "whole island of Ireland, its islands and

the territorial sea." In international law, territory and

jurisdiction are necessarily coterminous in the sense that

it is only over territory under a State's sovereignty that

it can exercise jurisdiction. The Republic of Ireland

does not actually exercise jurisdiction over the whole of

the "national territory". It would be an international

wrong if it did or attempted to exercise jurisdiction over

that portion of the national territory which forms part

of the United Kingdom. This is the reason for Article 3

which limits the jurisdiction of the Government and

Parliament of the Republic to the twenty-six counties.

It is this article of the Constitution and the rules of

international law which forced us to accept the right of

British naval personnel to search Irish fishing vessels in

the territorial waters off the coast of Derry last year.

It should be clear from the law and practice that

Northern Ireland is a part of the United Kingdom. By

accepting the Boundary Commission's Report in 1925,

by entering into a large number of bilateral treaties

with the United Kingdom from 1938 onwards and by

accrediting the Irish Ambassador to the Court of St.

James, we have recognised this fact.

But this is very different from "recognising" Stor-

mont. The aim of those Unionists—moderate or extre-

mist—who push this demand is twofold: firstly, to

obtain recognition of the legitimacy of Unionist control

of the North and all that this implies and, secondly, to

remove the political aspiration of reunification from the

South's basic document, the Constitution. To assert the

relevance of Articles 2 and 3 is not to be a "hard-liner",

as has been implied in some criticism of the Taoiseach

from his "Panorama" interview. It is to affirm the right

to nationhood for the whole country. To give in to the

demands to recognise Stormont is to surrender to the

"two-nation" theoriests of the Carson/Balfour vintage.

It is also to ignore Britain's imperial role and respon-

sibility towards Ireland.

The Irish Times

(19th March 1971)

The North—A Federalist

Constitutional Solution

Mary Bourke-Robinson

Reid Professor of Constitutional Law, Trinity College, Dublin

To speak with authority on a subject one must have a

valid basis for so doing. As one of the Senate represen-

tatives of the Dublin University Constituency, I con-

sider myself accountable to the substantial proportion

of the electorate who live in Northern Ireland. As an

independent I can propose a Constitutional solution

without party political considerations and free of any

party whip. As a Professor of Constitutional Law and a

young person looking to the future of this country as a

whole, I am appalled at the violent and destructive

forces within it which are leading to a polarisation of

our people on sectarian grounds, and delaying so unne-

cessarily the badly needed social reforms upon which

we ought to be focusing our attention and energies.

The solution I now propose is not a blueprint or final

answer to the North/South problem but it elaborates on

the suggestion of "a federalist structure", which ought

to be sufficiently flexible to provide the first step in this

evolution by means of Constitutional co-operation. I

am aware that I risk the reaction of criticism of this

formula from both ends of the country: I shall be satis-

fied if my ideas promote thinking along these lines rather

than the arousing of a dangerous emotional response

to the grim situation facing every Irish person today.