International law could scupper Tory/DUP deal

In a case of political bad timing, still recovering from her electoral battering, Theresa May met with Northern Ireland’s five main political parties at Downing Street on Thursday June 15.

This was an attempt to resolve the deadlock in forming a governing executive that has existed since the elections to the Northern Ireland Assembly on March 2. As the current prime minister, May has a role in overseeing this process under the Good Friday Agreement signed in 1998.

The breakdown of the devolved assembly in late 2016 over the green fuels subsidy scheme led to the March elections. This means that Northern Ireland is facing one of its longest and deepest crises of the past 20 years.

However, at exactly the same time, the Conservative Party was attempting to come to a political agreement with the Democratic Unionist Party (one of those five political parties) to allow it to function as a minority government within the UK. DUP leader Arlene Foster, currently the ex-first minister of Northern Ireland, has said: “The talks are going well.”

It would seem that the prime minister is trying to manage two incompatible situations. But does it go even deeper than that? What are the legal implications of a proposed DUP/Conservative deal for the Good Friday Agreement?

Back to the 1990s

Politicians of a 1990s vintage have appeared attacking the UK government for giving up their ostensible “independence” in reaching agreements in Northern Ireland.

Peter Hain, the New Labour Northern Ireland secretary for two years from 2005 to 2007, stated the UK government is giving up its appearance to “act in good faith” to any party outside the DUP in Northern Ireland.

Alastair Campbell – Tony Blair’s “enforcer” throughout his time of government – has outlined his outrage, asking: “How can they (the goverment) be the mediators” of the current political crisis?

Even former Conservative prime minister John Major has emerged from retirement in a BBC interview to urge his party to resist entering a deal as it would threaten the entire peace process by “exaggerating the differences” between the Northern Ireland parties and ending the UK government’s “honest broker” role.

These are political issues, though. Meanwhile there could be a deeper significance, as the Good Friday Agreement has legal status within international law as a treaty lodged with the United Nations. In formal language, the Good Friday Agreement is a bilateral agreement between the UK and the Republic of Ireland. It created the devolved settlement and a number of cross-national and cross-border institutions to oversee the new structures. Clearly, when these break down, both governments have to play a role in getting them back on track.

The Agreement in Article 1(v) states:

The power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people. 

The treaty was brought into legal enforceability with the Northern Ireland Act 1998. It is this law that makes it a legal obligation for the UK government to facilitate a political solution when the government there breaks down – as is occurring now. So, if a political agreement is made with the DUP, could this be seen as legally breaching the Good Friday Agreement and, indirectly, the 1998 legislation? One of the immediate difficulties is the enforceability of any legal claims.

International courts

The most high-profile institution with jurisdiction would seem to be the International Court of Justice which regulates treaties. However, each country that signs up to the ICJ can make a declaration on to what extent they recognise the court. Ireland in its declaration states that it recognises the jurisdiction of the ICJ “with the exception of any legal dispute with the United Kingdom of Great Britain and Northern Ireland in regard to Northern Ireland”. So this explicitly prevents the Good Friday Agreement being discussed in the International Court of Justice.

As a notable aside, the UK recently revised its recognition of the ICJ to exclude judgments on nuclear weapons following a lengthy and controversial case brought by the Marshall Islands against the UK on nuclear proliferation in 2016.

With the ICJ ruled out, there would be a possibility of using another international institution, the Permanent Court of Arbitration (PCA) which has existed since 1899. Based in the Hague, this body can intervene in bilateral disputes between states over treaties if there is a disagreement and both sides agree to the hearing. In 2015, the PCA ruled against the UK over the controversial Chagos Islands case after Mauritius brought an action. This has led to further negotiations over the status of the displaced islanders and their potential return.

Such a legal route seems remote though given the need for mutual agreement to go to arbitration. So far the Irish Government has not raised the possibility of legal action.

The legal debate on the DUP/Conservative deal breaching the Good Friday Agreement is an echo of the discussion in the past couple of years of the Conservatives’ planned scrapping of the Human Rights Act 1998which could be seen to breach the Good Friday Agreement. This possibility now seems remote, given the current minority government, but even in the human rights context, raising a legal action would also be difficult.

So in the short term, although there are potential legal structures to deal with inter-state disputes which a challenge to the Good Friday Agreement could provoke, they look unlikely to be accessed.

It is unclear what legal action an individual citizen or one of the political parties in Northern Ireland could take to challenge any potential breach of the GFA although Sinn Fein have not ruled this out.

After meeting with May at Downing Street, Sinn Fein president Gerry Adams said his party would oppose any deal between the government and the DUP as he believed it would undermine the Good Friday Agreement. More likely is a political challenge to the prime minister to help restore power sharing in Northern Ireland rather than draw up a secret agreement with only one of the parties.

Strangely, the most internal domestic matter for any state – the democratic formation of its government – in the UK now could have implications in international law. Just one of the many unforeseen consequences of the 2017 general election.

First published by The Conversation

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