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No Way Out? the Search of an International Legal Response to Northem Ireland's Separatist Nationalists

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No Way Out? the Search of an International Legal Response to Northem Ireland's Separatist Nationalists No Way Out? The Search of an International Legal Response to Northem Ireland's Separatist Nationalists. O Colm V. Fahy Faculty of Law Institute of Comparative Law McGffl University Montreal. Thesis Subrnitted in Partial Fulfknent of the Requirements for the Degree of Master of Laws, McCill University, Montreal. 1997. The author has granted a non- L'auteur a accordé une licence non exclusive licence dowing the exclusive permettant à la National Library of Canada ta Bibliothèque nationale du Canada de reptoduce, 10- disûibutc or seil reproduire, prêter, distribuer ou copies of this thesis in microform, vcn&e des copies de cette thèse sous papa or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format élecîronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Ncikthe droit d'auteur qui protège cette thèse. thesis nor substantiaî extracts fkom it Ni la thèse ni dcs extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the authot's ou autrement reproduits sans son permission. autorisation. Table of Contents Acknow ledgemcnt vi List of Abbreviations vii Table of Cases i x Abstrüd Resumè x - xi Inîroduction - Exploring Separatism 3-7 Part 1 Chapter 1 Separatisrn from Se& Detemination to Decolonizatîhn 9 - 20 1. Inrrodttcrion 9- 11 II. Sev-Drremitiuriori: A Peoples Riglit 13 - 15 111. Tite Seif-Derennirlarion of'Peoples atid Deco1oni:urioti 15 - 21 Chapter 2 22 - 30 The Limas of Separatism: Territorial integrity and Uti Possedetis 1. Terriiorid Itiregrin: Cell, Sancrrraw, or Borti 12 - 27 II. Druwirig Lines: Uri Possedetis Jirris 27 - 30 Chapter 3 The Limits of Territorial integrity: Secession 1. Beyond Decoionization II. Separaiism as Recrfication Part II, Chapter 4 Group Rights: Minorities and Indigenous Peoples I- The Legal Personality of Minorities II. Indigenous Peoples Chapter 5 International Law and Practice Relating to National Se& Determination Claims Irirrïni~tctivnPart II, Chapter 5 I. A State for the Kurds? II. The Ibo Claim to an Independent Biafa III. Somalia IV. The Katangan Secession v. Transkei and the Bantustans M. Federutions in Crisis: Dissolution, Disintegrution and Separatism 67 - 8 1 UI. Eritrea: Ethiopia Divided 81 - 84 VIII. East Pakrstan (Bangladesh): A Case of Remedial Secession? 84 * 88 IX. Further Contexts 88 - 90 X Conclrcsion to Chupter Four 90 - 95 Part III. Chapter 6 97-116 No Way Out?: An Aroaiysis of Separaliwn in the Context of Norïhern Ireland Introduction 97 1. The Legal Personai~tyO! Northern Ireland's Separurisr Nationuiists 98 - 99 (1) fie Absence of lndigenous Title 99 - 101 b) Northern Ireland a DeJnjtely Constiîuted Stare ? 101 - 102 c) Is Norlhern Ireland a Non-Self Governing Siaie? 103 - 106 II. Northem Ireland: A People/ Minorïiy Dichoromy 106 - 109 III. Remdial Secession in Norrhern Natiowlists? 109- 115 I K Conclusion 115 - 116 Cbapter 7 Cortclusion: Understanding Separahm in Northern Ireland and Beyond 117- 122 1. Texts (by Author) II. Articles (by Author) [II. United Nations Security Council Resolutions IV. United Nations Generai Assembly Resolutions v. WC,Treaties and Conventions VI. Unsted Nations ikclarations and Agreements HI. Other National, Regidand International Sources VIII. United Naiians Onicial Statmmtsl Press hieases Bibliography Continuai VIII. United Nations Special Reports IX. International Press 1 Acknowledgement 1 I wish to take this opportunity to express my sincere thanks, for both his patience and helptùl cnticism in Montreal and since 1 returned to Ireland, to Professor René Provost, He was an excellent source of inspiration, providing both helpful argumentation and invaluable suggestions. 1 am gratetùlly indebted to him for his participation and guidance. To my colleagues in the ICL prograrn 19961 97, I extend a sincere measure of indebtedness for an inspirational and intellectually challenging year, not to mention many unforgettable lighter moments. A toutes et a tous, je vous remerci très sincèrement. Go raibh mile maith agaibh go Ièir, agus 30 n-eiri an b8thar libh. Not least, 1 owe an unspeakable debt to my parents and siblings who have shown immeasurable tolerance and generosity, both fiscal and emotional, over the many years that 1 have taken to reach this juncture. To my dear farnily and fiiends in Ireland, North and South, and al1 over the world, it's a great pleasure to know such diversity. 1 dedicate this thesis to Banno!k, and the new additions - rny niece and nephews and those not yet amved. I List of Abbreviations ADPE Annual Digest of Public international Law Cases AFDI Annuaire Francaise de droit international Amencan Journal of international Law British Yearbook of international Law CEQ La Centrale de 1'Enseignment du Québec ClLJ Canadian Journal of Law and Jurisprudence Columb. J. Transnat'l L. Columbia Journal of Transnational Law CUP Cambridge University Press ECOSOC Economic and Social Council E. Int'l L. R. Emory international Law Review EU European Union HMSO Her Majesty's Stationery Office HRC Human Rights Comminee ICCPR international Covenant on Civil and Political Rights ICESCR International Covenant on Economic. Social and Cultural Rights International Convention on the Elimination of al1 Fonns of Racial Discrimination iCJ international Court of Justice ICLQ international and Comparative Law Quarterly ILM international Legal Materials IL0 international Labour Organisation ind. J. Global L. Stud, indiana Journal of Global Legal Studies Israel L. Rev. lsrael Law Review rYHR Israel Yearbook on Human Rights Notre Dame L. Rev. Notre Dame Law Review OAU Organisation of Afncan Unity OHLJ Osgood Hall Law Journal ORGN GAOR Official Records of the General Assembly Ox. U. P. Oxford University Press PCU Permanent Court of international Justice Tulsa S. Comp. & int'l L. Tulsa Joumal of Comparative and International Law UDHR Universal Declaration on Human Rights UCLA L. RI U. of Cal. University of California Los Angeles Law Review Uni. Chi. L. Sch. Roundtable University of Chicago Law School Roundtable UN United Nations UNC United Nations Charter UN Doc. Unitcd Nations Document rnGA United Nations Gcneral Assernbly UNGA Res. United Nations General Assembly Resolution UN Sec. Co. Res. United nations security Council Resolution U.N.T.S. Unitcd Nations Treaty Series Va. J. Int'l L. Virginia Journal of international Law Wisc. int'l L. J. Wisconsin international Law Joumal Yale U. P. Yale University Press YEL Yearbook of European Law 1 Table of Cases: Opinions: Tribunals 1 a Aaland IslandF Case, Report of the International Committee of Jwists on the Aaland Islands Questions, League of Nations O.J.Spec. Supp. 3 (1920). The Case Concerning the Frontier Dispute (Burkina Faso v. Mali) 119861 ICJ Rep. 554 [Frontier Dispute Case]. Case Concerning the Land, Isinnd and Maritime Frontier Dispute (El Salvador v. Honduras), [ 19921 ICJ Rep. 3597 ILR 266 [El Salvad~rW. Honduras]. Greco- Bulgarian Case 197 PCU Ser. B. No. 17 at 2 1 Island of Las Palmas (Netherlands v. The United States), il R. int'l. Arb. Awards 83 1 ( 1928). Legal Consequencesjar the States for the Continued Presence ofSouth Afiica in Namibia, Namibia Opinion, [ 197 11 ICI Rep. 16. Mabo v. Queensland (No. 2) ( 1992) 107 ALR 1. North Sea Conrinentaf SheifCase (FRD v. Netherlandd Donmark) [1969] ICJ Rep. 3 Notrebohn; Case, [1985] ICJ 20 Temple of Preah Vihear Case (Cambodia v Thailand) Merits El9621 ICJ Rep. 6 Treatmenr of Pofish Nationais in Danzig [ 19321 PCU, ser AA,No. 44. Western Sahara, [ 19751 ICJ Rep. 12 [Western Sahara Case]. Conference on Yugoslaÿia Arbitration Commission: Opinions on Questions Arisingfiom 0 the Dissolution of Yugoslavia [hereinafter Badinter Opinions][Jan 1 1 & July 4, 19921 No. 3,3 1 ILM 1488 [1992] at 1500. - Abstract 1- - 1 Separatism is at the top of the international agenda. Most recently, the province of Kosovo lias become a matter of concem for Serbia, which aspires to retain the autonomous rtgion within its jurisdiction. However, some such movements have ken identified as having legitimate claims to independence and have rightfully succeeded in those claims. The ex-colonial states of Africa an a case in point. Bangladesh won it independence and global recognition, as did the ex-republics of the Soviet Union - including the Baltic States. Generally though, the proliferation of separatist movements is a cause for concem and political instability. The partitioned india has lived in fiagile neighbourliness with Pakistan since their political division in nineteen-forty-seven. The secessions of the former Yugoslav republics have had woeful human consequences, and Eritrea's jowncy to independence has ken arduous to Say the least. in the midst of such humoil, intemationai lawyers and jurists have ken employing ternis varying hm secession, partition, disintegration, and dissolution and refehg to rights such as selfdetermination, minonty rights, peoples rights and so on. However, there is not always a crystal clarity behind the terminological distinctions and legal issues. The rewlution of various legal issues in separatist confiicts is ofien a complex matter, For instance, it is not possible io respond fully to separatism without understanding the implications of variou undetlying institutions and what appear frequently to be conflicting rights. (What is self-determination and how does it relate to separatism? What is the difference beniveen an indigenous people and a minority? What is the difference between secession and partition?)
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