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Independence day

02 Apr 2019 / Ireland Print

Independence day

The 1916 Proclamation was a defining moment in Irish history, akin to the American Declaration of Independence. However, there also exists an Irish Declaration of Independence, whose centennial anniversary was on 21 January 2019 – yet, compared with its proclamation predecessor, it receives little focus, legally or otherwise. 

Written in Irish, English and French, the declaration claimed jurisdiction over the entire island of Ireland and ratified the Proclamation in the name of the people of Ireland, as opposed to just the 1916 rebels.

Vindication

The Irish Declaration of Independence was delivered as part of a message to the Free Nations of the World to support “the Irish Republic by recognising Ireland’s national status and her right to its vindication at the Peace Congress [in Versailles]”. 

Free people

The declaration stated: “The Irish people is, by right, a free people” and “has never ceased to repudiate and has repeatedly protested in arms against foreign usurpation”.

Further, the “Irish people is resolved to secure and maintain its complete independence ... to ensure peace at home and goodwill with all nations ... with equal right and equal opportunity for every citizen”.

Also, “the Irish people alone has power to make laws binding on the people of Ireland”. Finally, “we claim for our national independence the recognition and support of every free nation in the world”. 

Adopted by the Dáil at its first meeting in the Mansion House on 21 January 1919, the declaration was the first political and, arguably, legal ratification of the principles and virtues pronounced in the 1916 Proclamation. 

Assertions of statehood

Declarations of independence have long been used as assertions by a territory that it is independent and constitutes, in itself, a state.

While the American Declaration of Independence is one of the most well known – starting with the eloquent: “We hold these truths to be self-evident” – declarations of independence have a long history under Celtic tradition. 

The Scottish Declaration of Arbroath in 1320 may be very well ‘redeclared’ as Brexit stumbles into being.

The Irish Confederation of Kilkenny had, in fact, already achieved independence from England (with de facto recognition from the papacy) between 1641 and 1649. 

Declarations are, however, neither creatures of statute nor constitutional law. Therefore, is there any legal basis for them? 

Built on the concept of natural law, such declarations are “a document performed in the discourse of jus gentium [law of nations] rather than jus civil [civil law] – and, hence, [are] a statement of the powers and capacities of states, as much as of the rights and duties of individuals (see JGA Pocock,“Political thought in the English-speaking Atlantic” in Pocock (ed) The Varieties of British Political Thought, 1500-1800 (Cambridge, 1995), p281). 

Statehood

The requirements of statehood, according to article1 of the 1933 Montevideo Convention on the Rights and Duties of States, are: 

  • A permanent population, 
  • A defined territory, 
  • A government, and
  • The ability to enter into relations with other states. 

There are, however, two theories of recognition of a state by other states: 

  • ‘Constitutive theory’, where the political act of recognition is a precondition to the existence of legal rights. Thus, recognition itself is necessary for the state to come into being.
  • ‘Declaratory theory’, where recognition is no more than formal acknowledgement of existing circumstances. Thus, the existence, or indeed disappearance, of the state is a question of fact. 

Unfortunately, the prevailing theory at the time of the Irish Declaration was the constitutive theory, which led to its lack of traction for recognition by other states. 

Declarations

Such declarations do not violate international law, as there is no prohibition on declarations of independence, as per an advisory opinion of the UN International Court on Kosovo’s declaration of independence in 2010. 

The recognition of such declarations is, essentially, one for the political domain. Interestingly, Britain’s political domain voted as part of the majority that recognised the Kosovo Declaration as not being a violation of international law (which would have differed from Lloyd George’s response to the Irish Declaration some 90 years previously). 

The same day as the Irish Declaration was made in Dublin, however, another fatal declaration of war was made in Soloheadbeg, Tipperary.

Two members of the RIC were shot, in the beginning of what became the War of Independence, which itself would see little regard for familial relationships, never mind esoteric theories of statehood and natural law. 

 

Ben Mannering
Ben Mannering is a solicitor at the State Claims Agency
Ben Mannering is a solicitor at the State Claims Agency