The 'Region of War' Theory and the Cession of Northern Ireland
The question put to me can be phrased in two ways, viz.,
1) Would the Irish Government be entitled to claim to remain neutral in the present war while negotiating bilaterally with Great Britain for the immediate cession to Ireland of the Six Counties, or
2) Is Germany, as a belligerent in the present war, entitled to assert a vital interest in the territory of Northern Ireland sufficient to justify her in regarding Anglo-Irish negotiations for the cession of that territory during the war as an unfriendly act on Ireland's part? How would an Anglo-Irish arrangement to 'neutralise' the ceded territory affect Germany's rights, if at all?
2. It does not matter very much which of the above forms of the question at issue is taken as the basis of this note. The second approach, which starts out from Germany's pretensions, brings us, however, more quickly to the point. For the question before us involves, not merely the duties of a neutral, but also the rights of a belligerent.
3. We must first distinguish generally between the respective interests of Great Britain, Ireland and Germany at the present time in the territory known as 'Northern Ireland'. We have to admit that only Great Britain and Germany have any real rights in the Six Counties. Ireland has no legal claim whatever, and nothing at all that resembles a right in law. Thus, while both the belligerent Powers may lawfully insist upon world-recognition for their individual pretensions in respect of the Six Counties, Ireland's demand for the cession of all or any of those Counties is not cognisable by the law of nations.
4. The ad misericordiam aspect of our claim for Irish unity is something we have grown accustomed to during seventeen years of peace. In that long period the fact that we had no legal foundation for our claim was of little or no consequence. Owing, however, to the new European situation which has endowed a Central European Power with a definite interest recognised by international law in Northern Ireland, our position as a mere moral 'claimant' becomes both difficult and dangerous.
5. The basis of Germany's present interest in the fate of the Six Counties depends mainly on the international law theory of the 'Region of War'. This must be distinguished from the theory of the 'Theatre of War', a theory which would not apply to Northern Ireland at the moment, although it might do so in the near future. According to Oppenheim,1 Region of War is 'that part of the surface of the earth in which the belligerents may prepare and execute hostilities against each other'. So, for instance, as Oppenheim points out, during the War of 1914-18, 'Australia, Canada, India and so on, were included with the British Islands in region of war'. Clearly, then, Region of War is always potentially Theatre of War, and this is true even where a neutral State has been suddenly transformed into a region of war, as in the recent case of Norway after the laying of mines by Britain in Norwegian territorial waters. The least of belligerent rights in a region of war is that of occupation with a view to treating it as theatre of war.
6. Germany may allege, without fear of contradiction, that Northern Ireland is a part of the surface of the earth in which she is entitled to prepare hostilities against Great Britain. The question arises as to whether she could maintain her claim if the Irish and British Governments were simultaneously to declare that the Six Counties had been excluded from the region of war through neutralisation. Oppenheim and other writers have written several pages on this kind of action in time of war. From all these text books one point of essential importance arises. It is this:– A region of war can be neutralised only by means of a special treaty concluded between all the interested belligerents.
7. Consequently, it would not be within the competence of the Irish and British Governments to abstract Northern Ireland at this stage from the region of war. The British gesture would fail for being unilateral; Irish concurrence therein would be judged absolutely null and void as being no more than an expression of opinion of an outside neutral State in a matter at issue between belligerents.
8. From all this it follows that the only means of rendering the Six Counties neutral now would be to secure agreement to that effect between Great Britain and Germany. Mere cession of the territory to this neutral State could not possibly separate the North from the region of war and would soon come to be considered a vitiation of Southern neutrality.
9. I have not gone into other aspects of Germany's likely objections to Anglo-Irish negotiations about the North at present, because I am convinced that the foregoing in itself is uncontrovertible and final. You can, however, easily imagine some minor repercussions on German interests that a cession of British territory to a third party would occasion at this critical juncture. Should Germany win the war – as she confidently expects to – every inch of British soil would be regarded by her as her lawful prize. Apart from the remote possibility that she may wish to garrison Northern Ireland herself as a permanent means of subjecting England, there is the practical certainty that Germany will want to control all England's financial, economic and territorial assets until she has recouped her own outlay on the war. If neutral States were to be allowed to aid and abet Britain to unload her assets at this stage, Germany might find that, at the end of all the Reich's sacrifices in blood and treasure, her debtor could plead nulla bona. No neutral State dare lend itself to such a perilous transaction, even without intent to defraud. Otherwise, why should the British Empire not be at once transferred to the United States of America for safety? But it is not difficult to anticipate where the war would be carried by Germany if such an event were to take place.
