Sarah Kay, human rights lawyer
In the spring of 1998, I was a
sulky, resentful young teenager. I had grown up in a tiny one-story house with
my grandmother and my incoming, outgoing band of cousins. My grandfather,
active in the Republican movement, had passed a few years before. I was very
fortunate to be able to travel to the continent during the summer, where my
parents had custody of me. It was a door to the outside world very few in West
Belfast had access to. Our world was small, confined by walls, stuck between
few prospects of upward mobility and a perpetual cycle of conflict. Sometimes,
during bank holidays we would cross the border, a much more difficult endeavour
than it is now, to see relatives in north Dublin.
What transpired on 10 April 1998
took years in the making, building on the failures of what would have become
the 1993 Downing Street Agreement. Others recalled the historical negotiations
before. This twentieth anniversary however will not unfold the way we expected
it to then, or ten years ago. The Brexit referendum of 2016 placed the Northern
Irish situation in peril, forcing the bulk of the negotiations - at least on
the EU side - on the customs union the Prime Minister vowed to leave. A quick
look at the Good Friday Agreement turns it into three words that Brexiteers
should fear: it is the ultimate challenge to the divorce they intend to seal,
firstly because of its legal status, and secondly thanks to the protections it
affords.
The Good Friday Agreement and international human rights law
obligations
The Good Friday Agreement is a
multilateral agreement with the outstanding qualification that it was ratified
by a referendum of mutual consent, meaning that voters across the border – in
the Republic of Ireland and in the North of Ireland – had to agree to its terms
for those to be enforced. It places a specific emphasis on the respect of the
European Convention on Human Rights (ECHR) and the Bill of Rights of Northern
Ireland from both legislative and judicial processes; it requires that
cross-community consultation and cultural equality be paramount in the future
of Northern Ireland.
In 2017, an impact
assessment paper was commissioned for the European Parliament on what
Brexit would mean for the devolved region that had been too solemn to be as
vocal as Scotland, and too unstable to even maintain its own executive
representation. Since the late Martin McGuinness resigned as deputy First
Minister, Northern Ireland has been without an Assembly, and under threat of
London voting its budget under the principle of Direct Rule. Brexit has stoked
fear that London would regain sole authority of this portion of the island,
leaving behind the segment of the population that identifies as Irish or both
Irish and British. The Good Friday Agreement provides for the unique situation
of letting residents choose the sovereignty under which they are governed, or
keep simultaneous identities.
Under such provisions both the
United Kingdom and the Republic of Ireland are co-guarantors of the enforcement
of the Good Friday Agreement. They demand, among other things, that relations
with the Republic and with the European Union not be strained by any political
action that would not be reached by the aforementioned mutual consent. Brexit,
by all accounts, is a breach of the Good Friday Agreement itself.
It however does not require nor
demand continuous EU membership: the decision of
the High Court in Belfast with regards to the triggering of Article 50 underlined
that the GFA mentions Northern Ireland’s status as part of the UK or the event
of reunification with the Republic. According to the EuroParl paper, this
assumption of continued EU membership in Strand Two is crucial for the Good
Friday Agreement to be preserved. There is no alternative to the joint
membership of the co-guarantors unless the GFA itself is revised. This is a
risk many are unwilling to take. The rights outlined in Strand Two may appear
harmless enough to the untrained eye, but they are present after years of
negotiations over the freedom of political thought, the freedom from sectarian
harassment and the right to freely choose one’s place of residence.
Recently, the institute for
Ireland released a graphic explaining how tall the Belfast’s most infamous
“peace line” - the separation wall on Cupar Way – is compared with the Berlin
Wall and the Palestine Wall. Our architecture of conflict is slightly sanded
off the edges by an agreement that does not force anyone to live on a given
side of any wall. For children like me, for whom the sun rarely rose on one
side, this is change at its most effective.
I once wrote, at the time of the
Brexit referendum, about the Irish border being a fault line in the minds of
the GFA generation and those coming before it. My phone still capitalizes it as
if it was the only demarcation line still standing (“the Border”). What separates
it from our commonly shared idea of what constitutes the line separating one nation
from another is that it is, very much, physically inexistent. This fluidity has
also been facilitated across the years by harmonisation between EU services, namely
trade, regulation, but mostly just one element: the passing of time.
Over physical structures, such as
checkpoints, grew grass. Over terrains belonging to customs authorities sprang
country roads; the ground was returned to farmers or house owners. A considerable
portion of the local residents are cross-border commuters, meaning they lived
in the north and worked in the south, or vice-versa, allowing freedom of
movement within the custom union to provide for the change in currency. Annex
Two, Strand Two of the GFA does not address the border; the word appears ten
times in the whole of the document, in relation to cross-border community relations.
This is where much of it lies: the divide, once physical and technical, legal as
political, was allowed to be sanded off, for the improvement of community relations
and the fluidity of identity. It requires however that provisions be made for
support of commuting workers, that entitlement and services be distributed the
same.
A return to a physical border
would endanger those rights, presumably granted with the view that relations
will only improve over time and politics would cover “the island of Ireland”, as
is noted in the document, as opposed to two very distinct elements, one a state,
the other region, floating into space in weather forecast, separated and perhaps
not even equal.
The Good Friday Agreement and its role in Northern Ireland’s political
existence
Some have been callous and craven
enough to claim that the Good Friday Agreement was a failure, that the peace
process in Northern Ireland had not been successful and needed revision, self-governance had collapsed and Direct Rule
could be a bridge to a future. In an excellent piece for the Huffington Post, Durham Law scholar Dr.
Alan Greene explained
that the multilateral agreement was not meant to be thorough or comprehensive
enough to see Northern Ireland through the complex successive stages of
political transition from conflict. The document is a template that outlines
safeguards and necessities of implementation on which the future of Northern
Ireland can be built.
For us in Belfast, Derry,
Ballymena, and everywhere along County Donegal, it’s a reality for which we had
committed in 1998 to vote in favour of the text. Some voted against, including
the DUP. They did not recognize the equal footing of communities that the GFA
demanded, and would not look into a future in which shared power would be
drafted. This is one of the reasons why the Tory-DUP deal asked by Theresa May
following her poor performance in 2017’s General Election caused much distress
in this particular devolved region: it signaled an alliance with a party that
was ready to place sectarianism ahead of governance and violence ahead of stability. 20 years ago, the DUP was the only large
party to oppose the GFA.
In 2018, Northern Ireland finds
itself without an executive to represent its voices during one of the largest
transition periods of British history, an exit from the European Union it
helped build. The English press is discussing
its border as if it was a strict technical issue and was not linked to the
provisions in the text that allow for the coexistence of previously conflicting
identities. No one is asking my generation, people aged 30 and older, what its
memories of approaching the fault line are, or what the difference
power-sharing made. However incomplete the Good Friday Agreement is, it is a
foundation without which the conflict could have never subsided. It is placing
the interest of both and increasingly varied communities above sectarian
politics, under the umbrella of two nations that simultaneously accessed EU
membership based on a legally binding agreement a conflict had to be resolved.
The conclusion is thus: no possible
risk that should be taken. For many outside critics of a “hard Brexit”, the
situation in Northern Ireland belongs to a bygone era - that of my childhood -
one that has been solved and has the unfortunate legacy of difficult and opaque
litigation in local courts. It is a conflict that, for most, has been out of
sight and out of mind. But the gaps and blanks of the Good Friday Agreement are
opportunities to solidify the institutions that have preserved at least a
semblance of equity and approached governance with integrity and peacekeeping.
While EU membership is often
perceived by bleeding heart lawyers such as myself as a guarantor of peace and
stability, examples abound to the contrary. Transnational and supranational
lawmaking does not come easy to a continent based on former empires. It is the
downfall of one of those colonial powers that exists in Northern Ireland and
that makes 20 years of relative quiet a very fragile structure. Brexit gambles
with so much: security, trade, movement, and human rights. The latter are still
a battlefield in Northern Ireland. Why should we give up our achievement in the
name of a process still undefined?
Barnard & Peers: chapter 27
Photo credit: the author, West Belfast, aged 5
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