Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
Mr Justice Kenny set out what he described as four of the fundamental doctrines of Irish Nationalism, repeating the analysis of the Criminal Law Jurisdiction Bill judgement and went on>
'I want to emphasise that these beliefs are in the political and not in the legal order. Article 3 was intended to be and is a statement of political belief and not of law: the right of the Parliament established by the Constitution to exercise jurisdiction over the whole of the island, which is referred to in article 3, is not a claim to a legal right to do this. It is the expression of a right which has its sole origin in the political doctrine of Irish nationalism. When the people enacted the Constitution, they did not make a legal claim that the Parliament and Government established by the Constitution had any legal powers under international or national law to exercise any power over Northern Ireland.'
This theme was taken up in a speech of great subtlety and interest, given by the (by then) Mr Justice Donal Barrington in 1988 as part of the Thomas Davis Lectures on RTE 11. He referred to the Criminal Law Jurisdiction Bill case (although perhaps significantly, not to Boland v An Taoiseach) and to Mr Justice Kenny's paper. He stated
'the point is that while these doctrines of political nationalism are reflected in article 2 of the Constitution, the Constitution is primarily concerned with the establishment of a parliament and system of Government, and that that parliament, whatever the creeds of Irish nationalism, is expressly prohibited from attempting to legislate for Northern Ireland until such time as the partition problem has been resolved.'
He also made the important point that the Constitution does not purport to be a treaty or a document of international law. He identified as particularly significant, the terms of Article 29 of the Constitution which had hitherto been ignored in the context of Articles 2 and 3. It was, as he said, of some significance that in 1936 when the Constitution was being drafted, Mr de Valera was President of the League of Nations and the language of Article 29 is clearly derived from the covenant of the League of Nations, in particular Article 29.2 which reads:
Ireland affirms its adherence to the principle of the Pacific settlement of international disputes by international arbitration or judicial determination.'.
Under this analysis, it is entirely appropriate, therefore, that Article 29 is the vehicle chosen to hold the proposed new Articles 29.
As Mr Justice Barrington pointed out, the 1925 Boundary Agreement was a treaty registered with the League of Nations. Accordingly, if the Constitution was to be viewed as a claim to be settled by international arbitration, it would not be difficult to predict the outcome of such an international arbitration, he went on to observe:
'It is for these reasons that I suggest that the national claim made in article 2 is, for all purposes, of domestic and international law, withdrawn in article 3 until such time as the unity of our country is restored. The formula contained in Articles 2 and 3 is, I suggest, a subtle one in which Mr de Valera has combined nationalist ideals with common sense and political caution in a manner not untypical of the man.'
Mr Justice Barrington suggested that in fact the Constitution committed the State to seek a peaceful method of reunification of the country. He concluded his lecture by suggesting that the formulation of policy in relation to any possible solution to the Northern Ireland problem is 'under our Constitution a matter for the Government'. There is nothing in Articles 2 or 3 he suggested:
'To inhibit the Government in its quest for an interim solution, provided that the aim of ultimate national unity is preserved. If at any time, the question of setting up any form of All Ireland Body exercising executive, legislative or judicial powers should arise, a Constitutional Referendum would be necessary but if that were to happen, we would be on the road to an ultimate solution.'
There the matter lay, until the Anglo Irish Agreement of the 15th of November
1985. The Agreement was challenged in the Irish Courts by Christopher and
Michael McGimpsey. One of the arguments they made (although not the best
argument) was that the Government's recognition that the status of Northern
Ireland could only be changed with the consent of the majority of the population
of Northern Ireland, was contrary to the provisions of the Constitution
of Ireland, 1937. They contended that to recognise the present status of
Northern Ireland violated Articles 2 and 3 of the Constitution. This was,
I think, their political argument. Their better legal argument was that
the Secretariat established restricted the Government's exercise of the
external relation powers of the State and required a constitutional amendment.
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