The Anglo Irish Treaty – Legal Interpretation, 1921-1925

Abstract

This article examines contemporary legal analyses of the document that is often called the “Anglo Irish Treaty”, “Articles of Agreement”, the “1921 Treaty” or most often simply “the Treaty”. It takes a comparative approach by presenting the legal arguments used by British and Irish supporters and opponents of the settlement in the early 1920s. The article explains how the relative brevity of the document signed on 6 December 1921 ensured that many aspects of the settlement were vague and ambiguous. It argues that many of the ambiguities within the Treaty were not accidental features created by poor drafting but were, in fact, essential aspects of the final settlement. This leads to a conclusion that the provisions of the Treaty were often as important for what they did not say as for what they did. This leads to the conclusion that much of the opposition to the settlement was not merely based on an obsession with symbols of sovereignty but on a desire for greater clarity in a settlement whose existence depended on deliberate opacity. Some of the ambiguities created by the Treaty settlement are largely of historical interest, for example the nature of the parliamentary oath, the meaning of Dominion status and the relationship between law and practice in Commonwealth relations. Other legal issues connected with the Treaty, for example those connected to the foundation of the Irish Free State and the position of Northern Ireland, continue to form the subject of debate in the twenty first century. This article argues that these and other legal disputes are not capable of solution as the deliberate ambiguity of the Treaty was designed to ensure that they be insoluble so that both sides could interpret the settlement according to what they wanted to see.