Article 2 and Article 3 of the
Constitution of Ireland
(Bunreacht na hÉireann) were adopted
with the constitution as a whole on 29 December 1937, but
completely revised by means of the Nineteenth
Amendment which took effect on 2 December 1999.
As amended
they grant the right to be "part of the Irish Nation" to all of
those born on the island of Ireland
and express
a desire for the peaceful political unification of the island
subject to the consent of the people of Northern Ireland
. Before 1999, Articles 2 and 3 made the
claim that the whole island formed one "national territory".
Current version
Ireland was bound by the terms of the 1998
Good Friday Agreement to submit Articles 2
and 3 to
amendment by
referendum. To this end, the Nineteenth
Amendment of the Constitution was adopted in June of the same year.
The new wording describes the Irish nation as a community of
individuals with a common identity rather than as a territory, and
is intended to reassure unionists that a united Ireland will not
come about without a majority of the Northern Ireland electorate
declaring in favour of such a move.
Full text
Article 2
It is the entitlement and birthright of every person
born in the island of Ireland, which includes its islands and seas,
to be part of the Irish Nation.
That is also the entitlement of all persons otherwise
qualified in accordance with law to be citizens of
Ireland.
Furthermore, the Irish nation cherishes its special
affinity with people of Irish ancestry living abroad who share its
cultural identity and heritage.
Article 3
- It is the firm will of the Irish Nation, in harmony and
friendship, to unite all the people who share the territory of the
island of Ireland, in all the diversity of their identities and
traditions, recognising that a united Ireland shall be brought
about only by peaceful means with the consent of a majority of the
people, democratically expressed, in both jurisdictions in the
island. Until then, the laws enacted by the Parliament established
by this Constitution shall have the like area and extent of
application as the laws enacted by the Parliament that existed
immediately before the coming into operation of this
Constitution.
- Institutions with executive powers and functions that are
shared between those jurisdictions may be established by their
respective responsible authorities for stated purposes and may
exercise powers and functions in respect of all or any part of the
island.
Article 2
As amended, Article 2 provides that everyone born on the island of
Ireland has the right to be a part of the Irish nation. The
intention is partly to allow the people of Northern Ireland, if
they wish, to feel included in the 'nation' without making what
might be perceived as an extraterritorial claim. This is a
reflection of the provision in the Belfast Agreement
recognising
the birthright of all the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both,
as they may so choose, and accordingly confirm that their right to
hold both British and Irish citizenship is accepted by both
Governments and would not be affected by any future change in the
status of Northern Ireland.
The new wording of Article 2 also had the legal effect of granting
to everyone born on the island the right to Irish Citizenship.
However this right has since been qualified by the
Twenty-seventh
Amendment. Adopted in 2004, this amendment did not alter the
wording of Articles 2 and 3 but nonetheless limited the
constitutional right to citizenship to those born on the island to
at least one Irish parent. Article 2 further recognises the
"special affinity" between the people of Ireland and the
Irish diaspora.
Article 3
As amended, Article 3, Section 1 expresses the "firm will" of the
Irish nation to create a united Irish people, though not,
explicitly, a united country. It stresses, however, that a united
Ireland should respect the distinct cultural identity of Unionists
and that it should only come about with the separate
"democratically expressed" consent of the peoples of both parts of
the island. This provision was intended to diminish the concerns of
Unionists, that their rights would be ignored in a united Ireland,
should that happen. Under the Good Friday Agreement the people of
Northern Ireland's "democratically expressed" consent must be
secured in a referendum. Interestingly for a provision that speaks
of the "Irish Nation"'s desire for unity, it adds an additional
legal requirement for a referendum to be held not only in Northern
Ireland but also in Ireland before a united Ireland could be
brought about. Section 2 allows Ireland to participate in the
cross-border 'implementation' bodies established under the
Agreement.
1937–1999 version
Full text
Article 2
The national territory consists of the whole island of
Ireland, its islands and the territorial seas.
Article 3
Pending the re-integration of the national territory,
and without prejudice to the right of the parliament and government
established by this constitution to exercise jurisdiction over the
whole territory, the laws enacted by the parliament shall have the
like area and extent of application as the laws of Saorstat Éireann
and the like extra-territorial effect.
History
The drafters of Bunreacht na hÉireann considered the
partition of Ireland under the 1922
Anglo-Irish Treaty illegitimate.
They desired the new constitution to proclaim the existence of a
single 'Irish nation', and the
theoretical right of the
state to encompass the whole island, while for reasons of
pragmatism recognising the
de facto reality of partition.
What emerged in 1937 was a delicately worded legal balancing
act.
The Bunreacht refers to two separate entities: a
nation,
encompassing the whole island of Ireland, and a
state,
extending, for the time being, only to the twenty-six counties of
the 'South'. In its 1937 form, Article 2 described the island of
Ireland as the "national territory". Article 3, however, stated
that the laws of the southern state would apply only to the South.
The purpose of Article 3 was to clarify that Article 2 was intended
largely as a kind of declaration, rather than as a provision that
would have actual force of law.
Controversy
Until their amendment in 1999 Articles 2 and 3 were the subject of
some controversy, particularly among
Unionists in Northern Ireland. To
Northern Ireland Unionists the articles were a hostile claim upon
"their" territory, and a declaration that they might be coerced
into a
united Ireland without their
consent, and in violation of the claim of sovereignty by the United
Kingdom over Northern Ireland. Furthermore, they claimed, the
articles constituted an extraterritorial claim to a part of a
"foreign" nation and were therefore in violation of
international law.
For many decades the correct interpretation of the articles also
caused some controversy among Irish nationalists. Some saw the
constitution as placing an enforceable legal obligation on the
government of the Republic to use its influence to actively seek
the unification of the island. Invoking Article 2, some Northern
Ireland nationalists elected to the UK parliament requested, but
were denied, the right to be recognised in the southern parliament
(the
Oireachtas) as
TD (members of
Dáil Éireann). Before 1999, however,
the
Irish Supreme Court affirmed
in consistent rulings that Article 2 created no rights or
obligations that were actually enforceable in a court of law.
Following the signing of the
Anglo-Irish Agreement in 1985,
unionist politicians
Christopher and
Michael McGimpsey brought a suit
against the Irish government in the
High Court arguing that the Agreement
was unconstitutional under Articles 2 and 3, because it recognized
that Northern Ireland was part of the United Kingdom. This argument
was unusual coming from unionists because of the traditional
unionist opposition to these two articles, but was undertaken to
undermine an agreement they opposed, albeit not for the reasons
they opposed it. Their case failed in the High Court, and again on
appeal to the Supreme Court.
Modern controversy
Of the two main Unionist parties in Northern Ireland, the amended
versions of Articles 2 and 3 have been accepted by the
Ulster Unionist Party but rejected by
the
Democratic Unionist
Party as not representing an improvement on their predecessors.
The DUP has, in recent elections, become the largest political
party in Northern Ireland.
By granting an unqualified right to citizenship to all of those
born on the island of Ireland, the new articles have also caused
further controversy in the Republic. In the last few years, the
Irish Government has accused asylum
seekers and/or illegal immigrant mothers of deliberately presenting
themselves at hospitals in the Republic in the late stages of
pregnancy in order to secure citizenship for their children.
In January 2003, the Supreme Court added to this controversy by
ruling that it was constitutional for the Government to deport the
parents of children who were Irish citizens. In October 2004 the
European Court of Justice
ruled (in the
Chen case) that a mother who
is neither a UK nor an Irish citizen, whose child was born in
Northern Ireland and had subsequently (as was the child's
entitlement) acquired Irish citizenship, had the right to live with
her child in the UK, since denying this would in effect deny
residence to the child, in violation of her rights as a citizen.
The ECJ ruling acknowledged that, under certain circumstances, a
person born in part of the UK (i.e. Northern Ireland) could not
gain citizenship of that nation state, but could gain Irish
citizenship, without having ever set foot in the Republic of
Ireland, or having any connection with it.
The Twenty-seventh Amendment was approved by referendum on
11 June 2004, voting taking
place concurrently with
European elections and
local elections, and became law on
24th
June. It inserted a new section in Article 9 of the
constitution stating that, "notwithstanding any other provision of
[the] Constitution", no-one would be automatically entitled to
Irish citizenship unless they had at least one parent who was (or
was entitled to be) an Irish citizen. The subsequent legislation
(Irish Nationality and Citizenship Act 2004) brought
Irish nationality law into line with
British citizenship laws
with regard to parentage and ended the anomalous Northern Ireland
situation.
Adoption of new versions of the Articles
At midnight on 1 December 1999, direct London rule came to an end
in Northern Ireland when power was formally devolved to the new
Northern Ireland Assembly.
On 2 December 1999, power was devolved to the
North-South Ministerial
Council and the
British-Irish
Council when commencement orders for the British-Irish
Agreement came into effect. However, Article 4(2) of the
British-Irish Agreement (the Agreement between the British and
Irish governments for the implementation of the Belfast Agreement)
required the two governments to notify each other in writing of the
completion of the requirements for the entry into force of the
Belfast Agreement. Entry into force was to be upon the receipt of
the later of the two notifications.
The British government agreed to
participate in a televised ceremony at Iveagh House
in Dublin, the Irish department of foreign
affairs. Peter Mandelson, the
Secretary of
State for Northern Ireland, attended early on 2 December 1999.
He exchanged notifications with
David Andrews, the Irish
foreign minister. Shortly after the ceremony, at 10.30 am, the
Taoiseach,
Bertie
Ahern signed the declaration formally amending Articles 2 &
3 of the Irish Constitution. He then announced to the
Dáil that the British-Irish Agreement had entered
into force (including certain supplementary agreements concerning
the Belfast Agreement).
Footnotes
- Address by Mr David Andrews, Irish Minister for
Foreign Affairs at the Exchange of Notifications ceremony at Iveagh
House, Dublin, 2 December 1999
- The parliament of the Irish Free
State (1922–1937).
The Belfast Agreement does not refer to the part of Ireland that is
not Northern Ireland by name.
- Saorstát Éireann is the Irish language translation of the
Irish Free
State: the name of the independent Irish state before
1937.
- McGimpsey v. Ireland — Irish Supreme Court
judgement in the case brought by Michael and Christopher
McGimpsey
- BRITISH-IRISH AGREEMENT ACT, 1999 (COMMENCEMENT)
ORDER, 1999, S.I. No. 377 of 1999
- BRITISH-IRISH AGREEMENT (AMENDMENT) ACT, 1999
(COMMENCEMENT) ORDER, 1999
- The Northern Ireland Act 1998 (Appointed Day) Order
1999
- [http://www3.british-irishcouncil.org/documents/text.asp Text
of the British-Irish Agreement (as distinct from the Belfast
Agreement)
- The Belfast Agreement - a practical legal analysis
- by Austen Morgan
- BBC website -A State Apart
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