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(Austen Morgan, Belfast Telegraph)
As the Assembly meets for the first time today, just how legally binding is the the Good Friday Agreement which led to its establishment? Lawyer AUSTEN MORGAN gives his learned opinion
A SPECTRE is haunting Irish politics - the spectre of legalism. A consensus is emerging that the Agreement has the status of Moses's tablets of stone. Whatever of the political balance of April 10, and the moral imperative on the talks' participants, those 30 pages are not holy legal writ.
The Agreement requires to be interpreted; the silences as well as the words. It's like a cheese with holes. If the political parties cannot agree, then the meaning is a job for judges. The only legally binding text is the international agreement - or treaty - signed by the two premiers at Castle Buildings. And the World Court would probably find that decommissioning was a pre-condition for prisoner releases and the entry of Sinn Féin into government.
The hue and cry began with claims from some quarters, during the referendum campaign, that only an all-round renegotiation could add words to the Agreement. This political/legal opinion, which was not even true of a multilateral contract in domestic law, completely missed the Agreement's location in international law. Sinn Féin then criticised Yes unionists for cherry- picking the Agreement, their interpretation of a transitional arrangement to a united Ireland escaping censure as the biggest whopper of the election campaign.
Next, the NIO, rushing through the Prisoners' Bill, feebly invoked paragraph 2 of that section of the Agreement - non-ceasefire terrorists will not benefit - to justify the legislation. Mo Mowlam adopted initially only one of the four factors in Tony Blair's objective test, outlined in his May 14 Balmoral speech, and diluted two of his five pledges given at Coleraine six days later. She did not have the excuse of Dublin pressure (though Kevin McNamara MP kept a lone nationalist vigil during the debates.) All are wrong about the Belfast Agreement. And this is no mere lawyers' quibble.
Law is a subtle weapon in the war to preserve civilisation; it must not become political rhetoric. For the legal meaning of the Belfast Agreement, it is necessary to start at the end with pages 27 to 30. That is the new British-Irish Agreement (BIA), the parties being the two sovereign states. It was not negotiated by the participants at Castle Buildings. Annex 1 of the BIA is the multi-party agreement (MPA). That does not have any parties in a legal sense; the participants are not listed and no one signed anything (Sinn Féin did not even agree!).
The political parties are not legally bound; nothing could be enforced in a Northern Ireland court of law in the eventuality of an alleged breach. The 1969 Vienna Convention on the law of treaties shows that annexes are part of agreements. Nowhere does the Belfast Agreement say that sentenced prisoners shall benefit from an amnesty. Nor does it provide that terrorists may enter into the government of Northern Ireland. Sinn Féin is therefore wrong legally to criticise those constructively criticising the NIO.
The parties to the only legal agreement are the two states. This agreed concept of a political settlement is that political space would be created for Sinn Féin on the basis of a permanent end of terrorism. It can hardly be argued - interpreting the BIA - that Tony Blair and Bertie Ahern intended that decommissioning should not be linked to prisoner releases and the entry of Sinn Féin into government. There is much in the MPA to suggest the contrary, not least the section on decommissioning which refers to the de Chastelain Commission completing its work within two years. This is also the time scale for the release of prisoners - summer 2000.
An end point logically implies a beginning and arguably this was the end of June 1998 (when the decommissioning schemes of the two governments came into force, and London intended to have enacted the prisoners' legislation). There is - contrary to what is being said by No unionists and implied by Sinn Féin - linkage in the Agreement. And this justifies linkage in the Prisoners' Act and the Northern Ireland Bill still before Parliament. A political agreement was achieved on April 10 because of Tony Blair's last-minute letter to David Trimble suggesting that a removal from office provision would apply during the shadow phase. The Prime Minister stated that if terrorists got into government in the first six months, he would "support changes to these provisions to enable them to be made properly effective in preventing such people from holding office."
Tony Blair did not agree to let terrorists into government. On the contrary. Only Bertie Ahern can contradict that. The Irish government has not caused difficulties over linking decommissioning and prisoner releases. Will it do so over Sinn Féin in office? Only time will tell. If the Republic seeks to challenge legally any delay in the setting up of the shadow executive, it runs the risk of politically damaging the agreement it has worked to construct.
September 14, 1998
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*Austen Morgan is a London barrister interested in Irish constitutional matters.
This article appeared in the Belfast Telegraph on September 14, 1998.