Friday, December 19, 2014

Carty & Zhang on Unequal Treaties

"Unequal to Equal Treaty: From the Anglo-Irish Treaty 1921 to the Belfast Agreement (Good Friday Agreement) 1998 - A Chinese Perspective" 
Vol. 7, December 2014, pp 1-56
Introduction (excerpt): ...[I]n the view of the present authors it is not useful to consider the Northern Ireland situation exclusively in the context of western dominated and, even more so, western European law regulated international relations. In the European context, this perspective will inevitably lead to an ahistorical view of “the conflict” in Northern Ireland as an “ethnic conflict” amenable to sociological description but not to normative evaluation. However, the perspective preferred here is the longevity of a hundred years old historical conflict, intelligible in terms of historical imagination and empathy, but, of course, not necessarily resolvable in these terms. Historically, Northern Ireland is a leftover of the imperialism of a global empire, the British Empire, and it can only be understood, if at all, also as an evolution of legal standards in a global context. There are probably an infinite variety of global contexts with which it can be compared, e.g. Cyprus, Palestine, Afghanistan, but the one chosen here is Hong Kong...
     It is not possible in the space of one article to cover meticulously every detail of the parallel developments of the relationships. Obviously comparison is made easier by the common denominator of the changing character of the UK. Indeed, there are striking resemblances of detail. For instance, as already mentioned, the Irish in 1921 were aware of and made comparisons with the UK draft Treaty and treaties already concluded with China, and Judge Feetham turns up on both scenes as an “expert” member of Commissions relating to treaties with both China and Ireland. The negotiations of the Naval Treaties are equally easily comparable and almost contemporaneous. However, what is fundamental to the comparison – whether the longevity of the relationship or its eventual relatively successful conclusion – is the framework of analysis which we offer... 
     By way of this introduction to illustrate the personal, material dimension of “legal subject-hood”, we will select a number of issues of treaty relations and their breakdown, from both the Chinese and Irish experiences. In the interests of portraying the longevity of the relationships, there will be inevitably some superficiality in the treatment of the immense resource of materials. Our analysis will represent work in progress. The crucial analytical point to retain in the two histories that will follow – the Chinese much shorter than the Irish and intended as illustrative of a tradition which is already very used to thinking in terms of unequal treaties – is the interplay between the legitimacy force attaching to relations of esteem and the legality force attaching to “pure legal forms”. Our analysis gives priority to the former. It may be the case that at certain points in time, clearly binding, legal agreements were made by both Ireland and China. China never renounced its treaties with the UK, even in 1984. Ireland not only ratified the 1921 Anglo-Irish Treaty and the 1925 Boundary Treaty, it proudly deposited them with the League of Nations, to evidence its treaty-making capacity, as a mark of full state sovereignty. However, neither country was prepared to accept the status quo of these legal relations. Because the relations were seen to be built on a lack of mutual respect and esteem, they were constantly destabilised by the insistent questioning of their legitimacy by the countries disputing them (for China – the system of extra-territoriality and the status of Hong Kong; for Ireland – the oath of allegiance, the “Treaty Ports”, the border and the status of the Northern minority). Since there is, in any case, no question of compulsory adjudication of treaty disputes, the effect of this endless contestation was that the treaties reflected and continued to reflect distortions and imbalances in the mutual relations, which would lead to breakdown. Arguably the delay in abolishing extra-territoriality contributed to the revolutionary break of China with the west in 1949 and the continuing festering of the “unequal treaties” issue. The unrest with which Ireland threatened the UK throughout the 1950s eventually materialised in 1969...

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