The Gazette 1971

of its own" asserts the ultimate British responsibility for the affairs of Northern Ireland. The Constitution What, then, is the relevance of Articles 2 and 3 of the 1937 Constitution? Article 2 describes the "national territory" as the "whole island of Ireland, its islands and the territorial sea." In international law, territory and jurisdiction are necessarily coterminous in the sense that it is only over territory under a State's sovereignty that it can exercise jurisdiction. The Republic of Ireland does not actually exercise jurisdiction over the whole of the "national territory". It would be an international wrong if it did or attempted to exercise jurisdiction over that portion of the national territory which forms part of the United Kingdom. This is the reason for Article 3 which limits the jurisdiction of the Government and Parliament of the Republic to the twenty-six counties. It is this article of the Constitution and the rules of international law which forced us to accept the right of British naval personnel to search Irish fishing vessels in the territorial waters off the coast of Derry last year. It should be clear from the law and practice that Northern Ireland is a part of the United Kingdom. By accepting the Boundary Commission's Report in 1925, by entering into a large number of bilateral treaties with the United Kingdom from 1938 onwards and by accrediting the Irish Ambassador to the Court of St. James, we have recognised this fact. But this is very different from "recognising" Stor- mont. The aim of those Unionists—moderate or extre- mist—who push this demand is twofold: firstly, to obtain recognition of the legitimacy of Unionist control of the North and all that this implies and, secondly, to remove the political aspiration of reunification from the South's basic document, the Constitution. To assert the relevance of Articles 2 and 3 is not to be a "hard-liner", as has been implied in some criticism of the Taoiseach from his "Panorama" interview. It is to affirm the right to nationhood for the whole country. To give in to the demands to recognise Stormont is to surrender to the "two-nation" theoriests of the Carson/Balfour vintage. It is also to ignore Britain's imperial role and respon- sibility towards Ireland. The Irish Times (19th March 1971)

Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of So much for the "Constitution". But is there much validity in the argument that, by recognising Storinont, those in the South would thereby contribute to the lessening of tensions in the North and also by this act establish their own good faith towards the majority living there? It is my opinion that this kind of argument is fundamentally misconceived, that it ignores the motives of those Unionist politicians who use this argu- ment as a stick to berate their opposition, and that it is based on a fallacy as to what recognition is all about. Recognition is a device in international law which a State uses to establish a legal relation with another sovereign independent State. The act of recognition may cover a large and impor- tant area such as recognition of belligerency (as in the Spanish Civil War), the recognition of another state (such as Zambia's recognition of Biafra) or a new government (especially after a civil war). Occasionally, a State may recognise a government even where there is doubt as to whether the government is firmly established (as with the recognition of the Algerian F.L.N, during the war with France). Conversely, attempts to obtain recognition in such a context may fail, as occurred in 1918 with the Irish Republic. Recognition is usually a formal act but it can also be implied from conduct. But the important legal and political factor to remember is that this device can only operate between legal entities that have an existence in international law. The "Government" at Stormont has no such exis- tence. In international law, that part of the earth described as Northern Ireland is an integral part of the United Kingdom and we have recognised it as such for over forty years. Put in another way, Dr. Hillery's reply that he did not understand how recognition could be given "to an administration which has no sovereignty Parliament." Jurisdiction

The North—A Federalist Constitutional Solution Mary Bourke-Robinson Reid Professor of Constitutional Law, Trinity College, Dublin

To speak with authority on a subject one must have a valid basis for so doing. As one of the Senate represen- tatives of the Dublin University Constituency, I con- sider myself accountable to the substantial proportion of the electorate who live in Northern Ireland. As an independent I can propose a Constitutional solution without party political considerations and free of any party whip. As a Professor of Constitutional Law and a young person looking to the future of this country as a whole, I am appalled at the violent and destructive forces within it which are leading to a polarisation of our people on sectarian grounds, and delaying so unne-

cessarily the badly needed social reforms upon which we ought to be focusing our attention and energies. The solution I now propose is not a blueprint or final answer to the North/South problem but it elaborates on the suggestion of "a federalist structure", which ought to be sufficiently flexible to provide the first step in this evolution by means of Constitutional co-operation. I am aware that I risk the reaction of criticism of this formula from both ends of the country: I shall be satis- fied if my ideas promote thinking along these lines rather than the arousing of a dangerous emotional response to the grim situation facing every Irish person today. 41