X.

Balancing Self-determination Claims

The balancing of self-determination claims is an innovative way of

overcoming the mutually exclusive positions of both sides in a self-
determination conflict. Essentially, balancing allows both sides to
claim that their view has prevailed, and that their legal position has
been preserved in the settlement. This is the secret of the success of
the Good Friday Agreement on Northern Ireland. The agreement
starts by recognising the self-determination dimension and its
application to the case of Ireland and Northern Ireland. Then the
agreement addresses the thorny issue of identifying the self-
determination entity – is it the island of Ireland as a whole, or is it
the North? The parties:222
i. Recognize 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. Recognize 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;

The first paragraph appears to identify the North as the self-

determination unit. Its decision alone appears to determine
continued union or a merger with the Republic of Ireland.
However, the second paragraph has been crafted to allow the
opposing interpretation. The reference to the “people of the island
of Ireland” as the body entitled to exercise “their right to self-
determination” could be taken to imply that the island as a whole

222
Agreement Reached in the Multi-Party Negotiations (Good Friday Agreement), 10
April 1998, Art. 2(1). Full text available at http://www.nio.gov.uk/agreement.pdf,
accessed 3 November 2008.

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is the self-determination entity. Under this reading, it is one act of
self-determination appertaining to one entity. The fact that it is
administered through two referenda is merely a procedural issue,
and not a substantive one affecting the definition of the entity. This
sense is confirmed by paragraph (vi) of the same Article where the
parties:
[a]ffirm 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;

Once again, the focus seems to be on the people of the island of

Ireland as the subject of the right. However, this is counterbalanced
by another paragraph wherein the parties:223
[a]cknowledge 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;

In accordance with this determination, the draft clauses included

in the agreement for incorporation into British legislation
provide:
(1) It is hereby declared that Northern Ireland in its entirety remains part
of the United Kingdom and shall not cease to be so without the consent
of the majority of the people of Northern Ireland voting in a poll held for
the purposes of this section in accordance with Schedule 1.
(2) But if the wish expressed by a majority in such a poll is that Northern
Ireland should cease to be part of the United Kingdom and form part of
a united Ireland, the Secretary of State shall lay before Parliament such
proposals to give effect to that wish as may be agreed between Her

223
Ibid., sub-para. (iii).

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 Balancing Self-determination Claims
Majesty’s Government in the United Kingdom and the Government of
Ireland.

This clause could be seen formally to establish a constitutional right

to self-determination. While previously the United Kingdom had
indicated less formally that it would comply with the wish of the
population of Northern Ireland to join the Republic of Ireland
should this be made manifest in a referendum in the North, this has
now been made express (subject to the doctrine of parliamentary
sovereignty). However, one must note that this is not a right of self-
determination in the full sense. Instead, it is a right to opt for a
specific territorial change, moving sovereignty in relation to
Northern Ireland from the United Kingdom to the Republic of
Ireland. Other options, such as independence for Northern
Ireland, are not available.
In terms of process, Schedule 1, to which reference is made in
the above provision, requires the United Kingdom Secretary of
State to order the holding of a poll on joining the Republic of
Ireland “if at any time it appears likely to him that a majority of
those voting would express a wish that Northern Ireland should
cease to be part of the United Kingdom and form part of a united
Ireland”.224 Under this clause, the Secretary is required to hold a
poll (“shall”), but this mandatory requirement comes into force
only subject to the exercise of his or her appreciation of popular
will – the very fact that can really be assessed only through the poll.
No further poll is to be held for seven years after a referendum
which has rejected a change in territorial status.
This provision makes a change virtually impossible until a
significant demographic shift has occurred, or until popular
sentiment in the North has changed dramatically due to the
experience of the new complex power-sharing arrangements
introduced by the accord. That arrangement provides for multi-
layered governance from the local level to the level of Northern

224
Ibid., Sched. 1, paras 1 and 2.

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 Escaping the Self-determination Trap
Ireland, the level of UK authority, and joint Anglo-Irish
mechanisms.
A further technique of addressing self-determination disputes
offers self-determination, but only if certain conditions are
fulfilled. This mechanism is sometimes called conditional self-
determination.

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