The Belfast Agreement of 1998: from ethnic democracy to a multicultural, consociational settlement?

By Paul Bew

From: A farewell to arms? From 'long war' to long peace in Northern Ireland edited by Michael Cox, Adrian Guelke and Fiona Stephen

The McGimpsey Case

In that month, Mr Justice Finlay ruled in the Irish Supreme Court in the celebrated McGimpsey case that the words: 'The national territory consists of the whole island of Ireland, its islands and territorial seas', constituted a declaration of the extent of the national territory 'as a claim of legal right'. This unanimous ruling grounded the territorial claim and the 'constitutional imperative' towards Irish unity in Article 2; in retrospect, however, it is now clear that the McGimpsey ruling sounded the death knell for Article 2.

At the margins of the European Union Summit in Corfu in June 1994 John Major pressed Albert Reynolds on two points; was the Irish government prepared to amend their constitution to the point where they would say their territorial claim over the North had been removed, and would they in public recognise the legitimacy of British rule in Northern Ireland for so long as it reflected the consent of the majority? This became known as the 'Corfu test'.

Reynolds endeavoured to reassure Major as to his good intentions, but even on the eve of the Framework Document's publication, the then Fianna Fail Taoiseach was unwilling to change Article 2 though he was prepared to change Article 3 in a way which stressed both the consent principle and the existence of two jurisdictions in the island. (9) This represented progress of a sort but the problem remained - the Supreme Court ruling in the McGimpsey case had been based on Article 2 which remained unchanged. This is why David Trimble and his negotiators insisted so loudly that any change to the Irish Constitution had to be 'judge proof', in other words, Article 2 and not just Article 3 had to be revised.

In the new Stormont Agreement, Mr Ahern indicated that he was prepared to go further than Mr Reynolds to meet unionist concerns - and unionist concern about this matter was one of the major irritations in the framework controversy. Interestingly, the opposition to Bertie Ahern on this matter - centred on the Sunday Business Post and some Fianna Fail TDs - appears to have collapsed in the wave of euphoria following the Good Friday Agreement, though clearly Sinn Fein still have difficulties on this point.

The new Article 2 will now read:

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. This 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 (10)

From a national point of view, the 'Irishness' of northern nationalists is in no way diminished by these new arrangements. Some say that Ireland is thus giving up its case in international law but in truth Ireland has never had a case in international law anyway - as the Irish Foreign Affairs Department officials admitted privately in 1969, Dublin recognised Northern Ireland in 1925 as part of the UK and state cannot undo such recognition by changing their internal constitutions at a later date.

Under this Agreement, the days of Paddy Hillery disputing the legitimacy of British rule in the North at the UN, or of Dick Spring stating as he did in 1985 that the Irish claim to juridical sovereignty remained intact, are gone forever. Instead, the principle of consent, which is at the core of so much recent intergovernmental policy, is further enhanced. In particular, it is possible to interpret the outcome of the referendum in the Republic of Ireland, in which an overwhelming majority of voters endorsed the changes to Articles 2 and 3 as part of the Good Friday Agreement, as implicitly a devastating rebuke against the IRA's campaign to create a united Ireland by coercion.