Saturday, July 29, 2017

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Where Lies Lawful Authority In Ireland?

In a step-change from his recent call for a 'broad-based' initiative on Irish Unity, Sean Bresnahan, Chair of the Thomas Ashe Society Omagh, argues that a United Ireland, were one to be realised, should proceed from and restore the 'de jure' line of governmental succession. He writes here in a personal capacity.





British law and government in Ireland, with its successor regimes, has at all times succeeded from the de facto position and has never been established as de jure. There is no lawful right born of conquest and therefore Britain has never, and does not now, possess democratic title to any part of this country.

Under international law, continuity of government can derive either from said de facto or de jure positions. This is of note because the Irish Republic, while unfortunately never able to establish itself as the de facto government of Ireland, having succeeded a popular mandate still has claim to the de jure position over and above the partition system, which is merely de facto.

The latter proceeds not from a de jure constitutional succession but from conquest. While conquest can birth a de facto government, given there is no recognised lawful right to conquer and impose on others it cannot of itself give rise to a system of government that is de jure.

The Republic of Ireland entity, unable to reconcile its succession with the de jure position – as it succeeded the Irish Free State – which in turn succeeded the Government of the United Kingdom of Great Britain and Ireland – is outside of and apart from the Republican line, its lineage found not in the 1916 Proclamation but in British constitutional theory.

While the preceding government at the time in question – that being the Government of the United Kingdom of Great Britain and Ireland – may well have claimed lawful entitlement to rule Ireland, it succeeded from invasion and conquest – not lawful procession – and therefore was de facto and not de jure. On that basis, the entire existing order – while yes de facto and yes to be countenanced on that basis – has no de jure standing when stripped back to its point of origin. Rooted in invasion and conquest, it can never be otherwise.

The bottom line? Conquest does not award democratic title, British rule in Ireland must end, the British-created 'Treaty State' styling itself the Republic of Ireland must go and the constitutional integrity of the true Irish Republic, which remains de jure authority in all of Ireland, must in turn and from there be restored.

What could realise such lofty ambition? A British declaration of intent is the necessary first step and it is here where the national effort must focus. An election from there can give form to a Third All-Ireland Dáil, this to sit as a Constituent Assembly with the remit of restoring the Republican Constitution, with provision made that it be in keeping with the requirements of modern Ireland. This is the pathway before us. Onward to that day.

22 comments :

DaithiD said...

Sean,in terms of declarations,its worth recalling that when the Army Council delegation met with Whitelaw etc at Cheyne Walk in London, the timescale initially expressed by MacStiofain was of the order of a parliamentary lifetime (5 years), and this was dismissed as unworkably short from all quarters, a position quietly adopted by republicans sometime after. Presently, Brexit is being subverted after only a year from the vote, so its useful to confirm the dangers of leaving large timeframes for events of this kind to be realised.

Simon said...

Sean, I think you are mixing up the ethical and moral right of the people of Ireland as a whole to determine their own government, due to the arbitrary, gerrymandered border, with the legal ownership.

When territory and sovereignty is contested people have conflicting rights. Legally, the United Kingdom government holds sovereignty over a significant part of Ireland. It doesn't make it just or right. But the UK government holds part of Northern Ireland both in fact and in law.

What you want to do is challenge this legal right rather than say it doesn't exist.

Practically all nations' borders are shaped by conquest.

What determines the legal jurisdiction of a country or part of a country is international law. Recognition of that legal right to rule a particular piece of land is up to the other countries, international bodies and treaties. The majority of countries, if not all recognise the UK and it's borders. That above else, makes it de jure. Unfortunately the Good Friday Agreement got rid of the legal claim by the Republic of Ireland to the North.

There is a maxim that possession is 9 tenths of the law. This maxim is more apt when considering the problem we have with British rule rather than arguing over the difference between de facto and de jure.

To get possession you need a vehicle: War; population change; change of national allegiance; legal challenge, popular social movements; global event etc. They are unlikely to succeed soon, particularly war considering the might of the opponent.

The best case scenario is to focus on the benefits of a United Ireland and hope that economically it makes more sense for people than stating in the UK. We have seen how economic benefits of the UK keeps a significant section of the Nationalist community from voicing support for a United Ireland. It turns my stomach but the majority of people are swayed by selfish material benefits rather than cultural, socio-economic, or environmental benefits. Terence O'Neill was right.

These islands are right-wing, economically and socially and the inhabitants understand possession is 9 tenths of the law.

Social change can happen. However, it'll be a long hard slog trying to get it. Good luck with your endeavours. I mean it.

AM said...

Simon,

I agree - the British have a legal claim to the North, legally underpinned in international law. Much as they have a legal right to arrest or imprison. In some countries the state has a legal right to torture. None of that t makes it ethically right. The law however cannot dictate morality otherwise we have the morality of the lawmakers.

Not so fashionable now but in the early days of the conflict many republicans thought that the army council was the de facto government of the country whereas the London and Dublin authorities were de facto.

The problem with these types of arguments is that as someone commented on Twitter they can come across as very pedantic and formulaic - angels dancing on the head of a pin.

That said, how else do we sort out our own thoughts? I think committing them to paper leads us to spotting the strengths and weaknesses in our position. We actually change our minds due to the very process of writing. We don't even have to get to the point of engaging with others for that to happen.

So, these arguments are better out there than not.

Henry JoY said...

Sean,

rigid adherence to dogma inevitably tends to stagnation.

With Brexit we are entering a dynamic phase of possibilities. The more fluid the ideas and the more flexible the proponents of those ideas can be the greater the possibility of moving closer to the desired outcome.

It'd serve you and your cause better, me thinks, to somewhat loosen up!

Niall said...

Sean,
I can't see people supporting a de jure/de facto argument...it doesn't pay for school uniforms.

Simon said...

AM, I agree with everything you have said in the above comment. One thing I'd point out is that if your position is sound you should stick to it despite it appearing formulaic or pedantic.

Many people, including former Republicans, say Republicanism itself is formulaic or pedantic. Adherence to the 1916 Proclamation is as well, many say, most basing their arguments on the age of the document and changing times. However, like Sean, despite these comments, if he believes in the substance of his argument people should stick with them.

Paradoxically, I agree to the soundness of the 1916 Proclamation despite disagreeing with Sean's position.

If I can use the analogy of someone getting their bicycle stolen and the court deciding, based on the evidence, that the thief is the rightful owner due to subterfuge, or the fact that the thief has sway and influence with the court, the thief becomes lawful owner. As you say it doesn't make it ethically or morally right. You can assert your legal right to ownership but to gain it you should start at the point of recognising the other party has legal ownership. Otherwise why bring the law into it at all?

The thief has usurped the rightful ownership and you either win it back legally or by force. If you win it back by force the court has to be happy with your actions. That is the conundrum.

If debate can shape a sounder position all the better. I guess that brings us full circle and back to my full agreement with the points you made.

sean bres said...

Simon and Tony, thanks for the feedback. While understanding the merit of the point under discussion, I would say Britain's constitutional line in Ireland, at least as it stands, cannot reconcile with the de jure position given that its roots lie in conquest and the fact it has never been freely assimilated by the Irish. The latter is a necessary requirement under international law if a de facto succession is in time to become de jure. This is a passage from the article dealing with this point:

'While the preceding government at the time in question – that being the Government of the United Kingdom of Great Britain and Ireland – may well have claimed lawful entitlement to rule Ireland, it succeeded from invasion and conquest – not lawful procession – and therefore was de facto and not de jure. On that basis, the entire existing order – while yes de facto and yes to be countenanced on that basis – has no de jure standing when stripped back to its point of origin. Rooted in invasion and conquest, it can never be otherwise.'

I suppose I should have said, 'rooted in invasion and conquest, having never in turn been freely assimilated by the Irish, it cannot be otherwise.'

All of this is most certainly pedantic but it remains, no less, important. While an 'anoraky' line of discussion, if it didn't matter then be assured the British would not invest the effort they do into ensuring the constitutional integrity, according to their system, of their claim to Ireland. As John Crawley is wont to ask though, let Britain and her acolytes explain from where and at what point she accrued democratic title in Ireland. Britain bases her right to rule on legality so while we are not obliged to ever recognise that claim we are within our rights to demonstrate how the reality is to the contrary, even if it reads as archaic.

In terms of the argument that a de jure succession was born of an eventual acceptance of Britain's right to rule here, which international law demands must come to pass absent oppression and detention of opposition for such a succession to have standing, there has been internment in every decade since partition and there has been armed opposition throughout the British tenure in Ireland. We are still emerging from a 25 year-long war which contested that same right to rule, even if it ended with Britain successfully imposing her constitutional order. Imposition, though, does not birth a de jure succession. This is at the crux of the point alluded to, which holds that conquest, if assimilated by the host, gives rise to lawful authority - such as in Scotland for instance.

The Irish, however, have never consented to British rule. Even the Good Friday Agreement is not a consenting agreement to be ruled. It is, rather, an acknowledgment that Britain refuses to leave and will remain in Ireland until such times as a majority in the region she holds - against the will of the people - which as that same agreement acknowledges is in fact for a United Ireland - declares to the contrary.

sean bres said...

Niall and HJ, my comment was being written while your own was awaiting upload. Thanks for the replies - likewise to David.

Underneath all of this I'd be very much of the same mind as Simon. Regardless the ins-and-outs and the rights-and-wrongs according to this line of thinking or that, when all has been said and done the right of the Irish people to determine their own future, freely and of themselves, remains. It has already been acknowledged by all concerned that the will of the Irish is to live in a United Ireland. This, though, is thwarted on the basis that partition, no matter how it came to pass, is an acknowledgment of reality. The contention here is that it would be wrong to end it, no matter the wider will of the Irish people, without a majority in the British-held territory first agreeing towards that end. We might note that Britain introduced this concept on the strength of force.

While all of this may well usurp the will of the people it does not alter that their will is toward a United Ireland. We, then, must hold fast to the position that it is our right to determine our future in line with the internationally-respected right of nations to self-determine.

My view is that we should employ that right to restore the Irish Republic, in what would be a de jure governmental succession that bridges all of the contested constitutional realities under discussion above. No doubt this is as archaic as it is dogmatic but in reality it is necessarily so.

AM said...

Sean,

sometimes it is said that when you are explaining you are losing.

the logic being that the need to explain suggests the message is not getting across in the first place.

The torturous explanation you gave above will have lost the interest of most people before they get far I imagine. And because it is the type of point that allows for no other explanation than a torturous one, it is a point that will probably never be got across the line.

And if young people are to be interested in Irish republicanism in a way that resembles the interest of youth in Corbyn's Labour, then the above unfortunately will not appeal to them. They have to be hooked in different ways. The arcane might well be correct but is of limited value in motivating people.

In my view, best just to lay the argument out for the record rather than seek to elaborate on it via the esoteric in the comments section.

sean bres said...

Anthony, I agree regards the esoteric and arcane and the need to project in their stead a more modern and positive campaign for Irish Unity, one that isn't overly 'preachy' so-to-speak. Underpinning it though, even if not front and centre, should be the solid ideological foundation republicanism offers and that's the purpose of the article, to help chalk some of that down for the record. I only wrote it because Fergie suggested I commit these themes to paper, the thinking being they would be useful reading for some (if not all and everyone we need to reach, as you rightly suggest). In that sense, then, it's not about winning anything but I take your advice and don't intend commenting further. GRMA.

AM said...

Sean,

from talking with you prior to publication, I knew you were aware of the challenges the piece posed. It is a very tuned in audience that it needs to be directed it. But it is being read and I saw a very favourable response on Twitter which referenced the Second Dail - which in a sense tells us the nature of the challenge. It has to reach a wider audience than Second Dail adherents.

There is room for the esoteric. I guess for the writer it is important to be deterred by how it is met. And as you suggest, laying it out for the record is quite different from preaching it.

Thanks for posting it here.

sean bres said...

No problem and thanks for affording it a platform. Ultimately we must find the means to marry the traditional and the modern and that's the real challenge before us, of finding an approach that both 'Second Dáil adherents' and the ordinary 5' 8" can put their collective weight behind, with equal fervour and vigour.

Henry JoY said...

De Valera, Collins ‘never republicans’, West Cork History Festival told
An Irish republic was slogan used to gain support abroad, says historian David Fitzpatrick


In light of Fitzpatrick's take on things I guess your alternate perspective Sean is worthy of airing too.

jgr33n said...

I enjoyed the piece and the discussion but I do agree It is a difficult concept to market given that the millennial generation (among others) seem to be less and less interested in the concept of nation states and more interest in amorphous forms of communal living - much as many of us would still love to see a United Ireland in our lifetime, I fear the desire may not survive in generations to come.

Organized Rage said...

I am a bit puzzled by this debate, the British ruling class conquered Ireland and many other places by the Sword and then wrote the laws it was not the otherway around. The so called rule of Law is an aberration it's always in the gift of the ruling classes who cut and paste it to their best interest. International law is little different otherwise Bush and Blair would be in jail and Ireland would have been reunited.

To attempt to make a silk purse out of a sows ear as the countess might say is playing the bourgeoisies came, besides even if you could prove your case they would just change the law.

There is no better example of this than Israel, they occupied the Westbank and Gaza by force of arms, then dragged up British laws from the Empire days to arrest and imprison Palestinians who took offence at having their land stolen from under them.

The UK holds the north east of Ireland because it can, it has coerced or bribed 26 county governments and its settler population in NI into supporting their claim on that land. The Provos war sadly proved it cannot be won back in the short term by the Sword, so you're correct to look for other avenues of struggle but comrade Sean with respect we have to pick the battles we fight and this is one you cannot win, if anything all it will do is make you head spin.

All the best.

sean bres said...

Indeed Mick but I would still contend this type of under-arching 'ideological' logic is of use to the struggle. It's not an argument that expects Britain to up and leave Ireland should our 'case' be proven but one that simply contests British constitutional theory as it applies to Ireland and uses such to bolster the argument that change should ensue through restoring the Republican constitutional line. As you rightly intimate, it will not be restored by a victory in a court - not when the UN itself is an instrument of the Big Powers. This however - a victory in a court - is not the ambition or to where the article aims. It could, though, be restored by a national referendum - even should we first have to pass through the border poll to get there in turn. Ultimately, whatever it takes, we will get there but to ensure this we must be aware of what it is we are actually looking for in the first place and, as someone argued earlier, hold firm to the same: the Irish Republic and nothing less.

James Quigley said...

I had to look up de jure and de facto, we learn things every day. What I got in Cambridge dic was; de facto - "If it is on British soil then it is de facto British." That sounds like "if it is on Irish soil then it is de facto Irish"

Simon said...

I think John Cleese's character in 'The Meaning of Life' hit the nail on the head when he said "try to remember the names of all those from the Sudbury area who so gallantly gave their lives to keep China British."

jgr33n said...

Unfortunately James the British interpret it: "If it is on British soil then it is de facto British." and "if it is on Irish soil then it is de facto British" :-)

Organized Rage said...

Are there any nation's which gained full independence without blood shed, When you google this India comes up but that is nonsense as its history is not that dissimilar to Ireland's. In each generation they were Indian patriots who opposed British rule sword in hand.

sean bres said...

To my knowledge Mick, India introduced a Constituent Assembly after Britain legislated her independence. There the constitutional form of the Indian Republic was agreed by the people's elected representatives, who convened one's earn and were elected for that purpose. Something similar will likely need to occur here. Were a similar instance to go forward here, in Ireland, we would have restored our constitutional line while at the same time the British could be satisfied that they'd be leaving according to their own terms, their constitutional theory intact. A Constituent Assembly can bridge the de jure and the de facto and thus is a worthwhile object for us to put forward.

eurofree3 said...

in reply to Niall who wrote "I can't see people supporting a de jure/de facto argument...it doesn't pay for school uniforms".

Whatever the ins and outs of Sean's de facto/de iure argument, and at risk of sounding facetious -

I can see no reason why any irish child should wear a school uniform or why parent in ireland should pay for one or more said items!

https://eurofree3.wordpress.com/2016/06/01/why-are-british-and-irish-school-children-regimented/