The problem is that the parties when drafting the GFA just never thought about this problem. Which is why the UK-EU Trade and Co-Operation Agreement is drafted completely differently. /4
Replies
The argument against Ekins is not that he's getting the text wrong, he just isn't. It is that if we look at the text in context and ask what the parties would have meant if they had contemplated the current situation, what would they have agreed. /5
sep 1, 2025, 2:00 pm • 1 0 • view
His interpretation of the text is completely wrong.
sep 1, 2025, 8:48 pm • 0 0 • view
But, as a matter of law, wheat the parties would have agreed if they had contemplated the problem, just is not the same as what they did in fact agree. /ends
sep 1, 2025, 2:01 pm • 1 0 • view
Well, I completely agree with that general point - even I disagree with your reading of 5(b), which again involves unnecessary playing around with clear text. ('There shall be...' can clearly be read as covering an existing safeguard.)
sep 1, 2025, 2:10 pm • 2 0 • view
Look at the rest of the list. Look at the heading ("Democratic Institutions in Northern Ireland"), Look at the text of 5(b) ("which neither the Assembly or public bodies can infringe, together with a human rights commission" . It is about the law to be applied to the institutions in NI.
sep 1, 2025, 2:13 pm • 0 0 • view
And the law includes the existing commitment to the ECHR.
sep 1, 2025, 2:14 pm • 1 0 • view
No. The ECHR applies and can only apply to the UK (and other signatory states). That isn't a peculiar English constitutional view, it is the way international law works.
sep 1, 2025, 2:16 pm • 0 0 • view
Are you back to accepting international law is law? In which case the rules of treaty interpretation are no going to help you in this persistent effort to parse the 1998 Agreement's terms...
sep 1, 2025, 3:02 pm • 0 0 • view
Who has said it isn't law? It isn't posited by authority, the primary source is agreement between states, and it is states (not you, me or the institutions of NI) that are subject to it.
sep 1, 2025, 3:13 pm • 0 0 • view
Which interpretive norm are you claiming I've not understood, or is important here so as to impact the meaning of 5(b) (by far the most important provision)?
sep 1, 2025, 3:14 pm • 0 0 • view
You did, the last time you were backed into a corner on these questions on this app.
sep 1, 2025, 3:15 pm • 0 0 • view
Fwiiw, I wrote about the usual argument people make about why international law isn't law here spinninghugo.wordpress.com/2015/11/02/s... I suspect you must be misremembering.
sep 1, 2025, 3:44 pm • 1 0 • view
Did I? Perhaps you could provide me with a reference. I can point you at several blog posts saying the exact opposite of you like.
sep 1, 2025, 3:16 pm • 1 0 • view
I see yourself and Aoife are cited in the paper Colin. I take it you agree with it?
sep 1, 2025, 3:06 pm • 0 0 • view
Love getting the metrics up, but as I posted earlier, this is a triumph of source manipulation.
sep 1, 2025, 3:08 pm • 1 0 • view
Characteristically modest.
sep 1, 2025, 3:45 pm • 1 0 • view
The international law 'safeguarding' framework remains in play, while particular provision via incorporated rights is made for its direct applicability in the legal system. None of this is even close to causing a problem for the plain text reading...
sep 1, 2025, 2:20 pm • 0 0 • view
The text could indeed have said "the international law safeguard of the ECHR shall remain in play, and particular provisions shall be incorporated to apply to democratic institutions in NI." But, it just didn't.
sep 1, 2025, 2:26 pm • 0 0 • view
Partly because no one at the time thought it was remotely conceivable that either party would even think about resiliation of the Convention. Poor drafting though: it should have provided for even the most unlikely of eventualities.
sep 1, 2025, 2:33 pm • 0 0 • view
To be fair, the drafting process was fraught - and they had more important things to worry about than lawyers chopping the text!
sep 1, 2025, 2:48 pm • 1 0 • view
But at least you're engaging with the interpretative question. The report doesn't - even though it provides clear textual support for the proposition that everyone knew at the time to be true, ie that the ECHR was a key background safeguard, crucial to Irish consent.
sep 1, 2025, 2:23 pm • 1 0 • view
Did they? The Blair government wanted to bring in the HRA, and this could be added in as part of the deal without it costing anyone anything. I doubt the Irish government gave a fig about it, but it was cosmetically attractive.
sep 1, 2025, 2:29 pm • 0 0 • view
But, of course, what the parties would have said at the time if you'd asked them just isn;t the same as the meaning of the words they actually agreed, so that doesn't really matter.
sep 1, 2025, 2:30 pm • 1 0 • view
Hugo, have you ever *met* anyone from the Irish government of the time? Because I have, Colm has, and we can tell you: the Government here did and does care about it as part of the deal.
sep 1, 2025, 2:31 pm • 4 1 • view
PS: I know you can't acknowledge an Oxfordian making a legal faux pas...😉
sep 1, 2025, 2:13 pm • 0 0 • view
To the contrary, my entire career is built upon arguing that they've made terrible mistakes and are to blame for everything. You should read the thing i wrote about Pollock.
sep 1, 2025, 2:14 pm • 2 0 • view
Or Birks!
sep 1, 2025, 6:01 pm • 2 0 • view
Mental note to self to look that up...
sep 1, 2025, 2:17 pm • 0 0 • view