The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland
| Date | 01 May 2003 |
| Author | Fionnuala Ní Aoláin,Colm Campbell,Colin Harvey |
| Published date | 01 May 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6603001 |
THE
MODERN LAW REVIEW
Volume 66 May 2003 No 3
The Frontiers of Legal Analysis: Reframing the
Transition in Northern Ireland
Colm Campbell, Fionnuala Nı´Aola
´in and Colin Harvey
n
British constitutional legal discourse is structurally limited in its capacity to
capture the complexity of the Good Friday Agreement. Rather than assessing the
Agreement in narrow devolutionary terms, it should be seen as a hybrid domestic
and international law instrument, making an important contribution to accepted
international law norms in relation to self-determination. The Agreement
transforms and partly transcends the Northern Ireland conflict by substituting
political contestation for violent conflict, and by defining the modalities of
conducting that contestation. This analysis complements classical international
law perspectives, and opens up the application of legal discourses associated with
‘transitional justice’ to the legal and political transformation in Northern Ireland.
These discourses focus on the problem of reconciling the demands of peace with the
imperatives of justice. The Agreement sits squarely in this terrain with its
provisions on ‘dealing with the past’ and ‘institutional legacies’. The insights
gained here challenge orthodox thinking about conflict-management and the
ongoing political process.
Introduction
The Good Friday Agreement (‘the Agreement’) is a negotiated document which
seeks to facilitate a resolution to the political problems in Northern Ireland.
1
It is
composed of three strands: Strand One - internal political arrangements within
n
Colm Campbell, Professor of Law, Transitional Justice Institute, University of Ulster (UU)
(email:c.campbell@ulster.ac.uk), Fionnuala Nı
´Aola
´in, Professor of Law, Transitional Justice
Institute, UU (email:f.niaolain@ulster.ac.uk), and Colin Harvey, Professor of Constitutional and
Human Rights Law, University of Leeds (email:lawcjh@leeds.ac.uk). The contribution of Colm
Campbell was greatly assisted by the award of a Senior Research Fellowhip by the Leverhulme
Trust, and by his appointment as Visiting Senior Research Fellow by Jesus College, Oxford.
Likewise the contribution of Fionnuala Nı
´Aola
´in was assisted by her participation in the Program
in Law and Public Affairs at Princeton University. Preparation of the paper also benefited from
conversations at the ESRC-funded seminar series, ‘Justice in Transition: Northern Ireland and
Beyond’ at UU. The authors are grateful for the helpful comments on a draft of the paper
provided by Professor Brendan O’Leary (University of Pennsylvania) and Dr Joshua Castellino of
the Irish Centre for Human Rights, NUI, Galway, and for the research assistance provided by
Adrienne Reilly (UU). Responsibility for the views expressed and for any errors that may remain is
the authors’ own.
1Agreement Reached in the Multi-Party Negotiations (Cm 3883, 1998); 37 ILM 751 (1998). Note
that in the Northern Ireland Act 1998 it is referred to as the ‘Belfast Agreement’. We have opted
here for the more popular usage – ‘Good Friday Agreement’.
rThe Modern Law Review Limited 2003 (MLR 66:3, May). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 317
Northern Ireland; Strand Two - bilateral relationships between Northern Ireland
and the Republic of Ireland; and Strand Three - multilateral relationships between
Northern Ireland, the United Kingdom and the Irish Republic. These are
variously set out in a political agreement reached between the negotiating parties,
and in a treaty binding in international law between the two state parties.
2
The Agreement was the culmination of a tortuous process of negotiation, which
had its roots in the Anglo-Irish Agreement signed in 1985 by the Irish and British
governments.
3
That process is ongoing, as its unresolved and ambiguous portions
have remained the location of contested political interpretation over the
intervening years. While the enforcement of and contestation about the
Agreement is of interest in its own right, it is not the subject of consideration in
this article. Rather, this article seeks to undertake a fundamental reassessment of
the document and to suggest the appropriate legal ‘home’ for it. We are concerned
that the dominant legal paradigm does not capture the complexity of the
Agreement or its politics.
This endeavour has been prompted by the near hegemony in some sectors of a
certain type of legal discourse on Northern Ireland in the wake of the Good Friday
Agreement. In particular, there has been a heavy emphasis amongst some British
based writers on the ‘devolution’ lensfor examining the Agreement and its legislative
progeny (though more complex analyses can be found both within and without
Northern Ireland
4
). Within this ‘devolution’ model events in Northern Ireland are
simply one part of the UK’s process of constitutional reform. While this is a useful
device for understanding parts of the Agreement, and some of the background to its
creation, it is limited, and in some respects just misleading. Rather, we take the view
that in addition to employment of the devolution lens, the Agreement must be
viewed in two complementary ways. First, as regards its international legal aspects,
we assert that the novel aspects of the Agreement mean that it is not simply reflective
of international norms, but is both constituted by them and marks a new departure.
Secondly, we argue for an analysis of the Agreement sited in an emerging field of
legal scholarship, that of ‘transitional justice’. This demands engagement with the
specific legal imperatives operative in the case of societies in transition from
prolonged violent political conflict to peace and democracy.
5
We argue that notwithstanding particular current political impasses, the
Agreement, and the legal issues it throws up, continue to demand exploration.
First, because the architecture of the Agreement follows a formula previously tried
out at all substantial attempts to bring the conflict to an end.
6
The essential
components of a negotiated settlement to the conflict are likely to survive or to
re-emerge, even if the title of the formula were to be abandoned. Secondly, even if
2 See also Belfast Agreement: Implementation Bodies (Cm 4293, 1999); Belfast Agreement: British
Irish Council (Cm 4296, 1999); Belfast Agreement: North/South Ministerial Council (Cm 4296,
1999).
3 K. Boyle and T. Hadden, The Anglo-Irish Agreement Commentary: Text and Official Review
(Dublin: Edwin Higel and Sweet and Maxwell, 1989)
4 C. Bell, Peace Agreements and Human Rights (Oxford: OUP, 2000) and C. J. Harvey (ed),
Human Rights, Equality and Democratic Renewal in Northern Ireland (Oxford: Hart Publishing,
2001).
5 See generally, R. Teitel, Transitional Justice (Oxford: OUP, 2002); N. J. Kritz (ed), Transitional
Justice: How Emerging Democracies Reckon with Former Regimes (Washington: US Institute of
Peace, 1995) and C. Hesse and R. Post (eds), Human Rights in Political Transitions: Gettysbury to
Bosnia (New York: Zone Books, 1999).
6 The Sunningdale Agreement, December 1973. The Conference between the British and Irish
governments and the parties involved in the Northern Ireland Executive (designate) met at
Sunningdale in December 1973.
The Modern Law Review [Vol. 66
318 rThe Modern Law Review Limited 2003
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