Territorial disputes: Northern Ireland (Part 1) [Post 86]

Today, we start the analysis of a new TERRITORIAL DISPUTE: the case of Northern Ireland.

Northern Ireland introduces a particularly interesting application of the term “shared sovereignty” is the case of divided societies or “cultural shared sovereignty”. Northern Ireland presents with two clearly defined sectors, that of the nationalists, mainly Roman Catholics, and that of the unionists, mainly Protestants. This model applies to two ethnic or nationality groups living in the same territory neither of which wants to belong to a state dominated by the other.

The current arrangements contemplate the existence of two communities within a single State (or in the case of Northern Ireland, in a single sub-State) who deal with their divisions by sharing in the exercise of political authority. Additionally, it gives a hint of how to deal with power-sharing institutions by including sharing groups and differentiating them between compulsory and voluntary.

On the positive side, the institutional scheme of the “cultural shared sovereignty” offers all the claimants certain degree of participation. It is not easy to imagine how the institutions would work in practice after Brexit.

It is for that in the case of Norther Ireland the first posts will differ from previous analysis presented by this blog series TERRITORIAL DISPUTES. This time the series will introduce the relationship between national law and international law. From there, the relationship between the law in the United Kingdom and the European Union will be explored by presenting the notion of supremacy or primacy (in a nutshell, European Union law has priority over the national legal order of the Member States). Thereafter, the particular emphasis will be on free movement of people, European Union citizenship, free movements of goods, capital and services. These are the “four fundamental freedoms” that all Member States part of the European Union reciprocally recognize and that the United Kingdom, and therefore Northern Ireland, will give up in 2019). For the sake of clarity, it will be only after the presentation of these elements the series will assess in detail the case of Northern Ireland.

 

International law and national law

International law is created by and binding between States (and international organizations) on the international plane. Treaty law is based on the principle of pacta sunt servanda whereby treaty obligations freely concluded by a State must be respected by that State. The term means that “agreements must be kept” and, accordingly, obligations must be performed in good faith. States cannot invoke their national law as an excuse for failing to perform their Treaty obligations towards other Contracting States.

 

The status of international rules within the domestic legal order is determined by constitutional rules of a State. The internal effect of a treaty is a matter for national law.

 

Monism and dualism

Monism (advocated amongst others by Hans Kelsen) holds that national legal orders are “creatures” of international law. Monist countries (such as France, Spain, and many others) are those where the view prevails that international legal norms are, upon their ratification, “received” within the national legal order while preserving their nature of international law.
 
Dualism (advocated by Triepel and Anzilotti) holds that national legal orders are separate legal orders, able to resist the penetration of international norms. Dualist countries (such as the U.K., Germany and Italy) are those believing that international treaties cannot display legal effects within the municipal sphere. Their norms must be “transplanted” into national law before they can become operational. International treaty norms are not enforceable as international law but they become, after transformation, enforceable by courts as national law – the wording of the norm may or may not have been changed, but the result will be achieved.  
What difficulties are posed by dualist States in respect of the primacy of international norms within their legal systems? May such difficulties exist in monist systems?
The E.E.C. Treaty had been transformed into national law in the dualist Member States, Germany and Italy, and thus nothing could prevent their courts from applying the norms contained in the individual cases brought before them. 

However, the difficulty for dualist States was the question of primacy. Dualism does not admit the primacy of international law over national law. The relation between a norm of international origin and a purely national norm becomes, through the transformation of the former, a matter pertaining to the internal cohesion of the domestic legal order and conflicts are to ordinary conflict rules applying within that order. As treaties are transformed by an act of the legislator, they will take precedence over conflicting earlier legislative acts but will be superseded by later legislative acts according to the rule lex posterior derogate priori. This was the case in Germany and Italy at the time of the conclusion of the E.E.C. Treaty.
The other Member States belonged to the monist school. Only in the Netherlands and Luxembourg was the primacy of international law an established practice. 

Tomorrow the blog will present the notion of supremacy or primacy of the European Union law.

 

NOTE: This post is based on Chapter 3 in 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

25th June 2018

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