Articles 2 and 3 of the Constitution of Ireland
Encyclopedia
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".
was bound by the terms of the 1998 Good Friday (Belfast) 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.
Article 3
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
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.
without their consent, and in violation of the 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
s (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.
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 Ireland 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 24 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.
. 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).
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
) were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment
Nineteenth Amendment of the Constitution of Ireland
The Nineteenth Amendment of the Constitution of Ireland introduced changes to Articles 2 and 3 of the constitution required by the 1998 Belfast Agreement . Prior to 1999, Articles 2 and 3 made the controversial claim that the whole island of Ireland formed one single "national territory"...
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
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
and express a desire for the peaceful political unification of the island subject to the consent of the people of Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. Before 1999, Articles 2 and 3 made the claim that the whole island formed one "national territory".
Current version
The Irish GovernmentIrish Government
The Government of Ireland is the cabinet that exercises executive authority in Ireland.-Members of the Government:Membership of the Government is regulated fundamentally by the Constitution of Ireland. The Government is headed by a prime minister called the Taoiseach...
was bound by the terms of the 1998 Good Friday (Belfast) Agreement
Belfast Agreement
The Good Friday Agreement or Belfast Agreement , sometimes called the Stormont Agreement, was a major political development in the Northern Ireland peace process...
to submit Articles 2 and 3 to amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
by referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
. 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
United Ireland
A united Ireland is the term used to refer to the idea of a sovereign state which covers all of the thirty-two traditional counties of Ireland. The island of Ireland includes the territory of two independent sovereign states: the Republic of Ireland, which covers 26 counties of the island, and the...
will not come about without a majority of the Northern Ireland electorate declaring in favour of such a move.
Full text
Article 2It 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 recognisingthe 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
Twenty-seventh Amendment of the Constitution of Ireland
The Twenty-seventh Amendment of the Constitution of Ireland provided that children born on the island of Ireland to parents who were both non-nationals would no longer have a constitutional right to citizenship of the Republic of Ireland...
. 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
Irish diaspora
thumb|Night Train with Reaper by London Irish artist [[Brian Whelan]] from the book Myth of Return, 2007The Irish diaspora consists of Irish emigrants and their descendants in countries such as the United Kingdom, the United States, Canada, Australia, Argentina, New Zealand, Mexico, South Africa,...
.
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.Full text
Article 2The 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 IrelandPartition of Ireland
The partition of Ireland was the division of the island of Ireland into two distinct territories, now Northern Ireland and the Republic of Ireland . Partition occurred when the British Parliament passed the Government of Ireland Act 1920...
under the 1922 Anglo-Irish Treaty
Anglo-Irish Treaty
The Anglo-Irish Treaty , officially called the Articles of Agreement for a Treaty Between Great Britain and Ireland, was a treaty between the Government of the United Kingdom of Great Britain and Ireland and representatives of the secessionist Irish Republic that concluded the Irish War of...
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 IrelandUnited Ireland
A united Ireland is the term used to refer to the idea of a sovereign state which covers all of the thirty-two traditional counties of Ireland. The island of Ireland includes the territory of two independent sovereign states: the Republic of Ireland, which covers 26 counties of the island, and the...
without their consent, and in violation of the 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
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
.
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
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
) as TD
Teachta Dála
A Teachta Dála , usually abbreviated as TD in English, is a member of Dáil Éireann, the lower house of the Oireachtas . It is the equivalent of terms such as "Member of Parliament" or "deputy" used in other states. The official translation of the term is "Deputy to the Dáil", though a more literal...
s (members of Dáil Éireann
Dáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
). 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
Anglo-Irish Agreement
The Anglo-Irish Agreement was an agreement between the United Kingdom and Ireland which aimed to help bring an end to the Troubles in Northern Ireland...
in 1985, unionist politicians Christopher and Michael McGimpsey
Michael McGimpsey
Michael McGimpsey MLA is an Ulster Unionist Party Member of the Legislative Assembly for Belfast South who has twice served in the Northern Ireland Executive...
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 PartyUlster Unionist Party
The Ulster Unionist Party – sometimes referred to as the Official Unionist Party or, in a historic sense, simply the Unionist Party – is the more moderate of the two main unionist political parties in Northern Ireland...
but rejected by the Democratic Unionist Party
Democratic Unionist Party
The Democratic Unionist Party is the larger of the two main unionist political parties in Northern Ireland. Founded by Ian Paisley and currently led by Peter Robinson, it is currently the largest party in the Northern Ireland Assembly and the fourth-largest party in the House of Commons of the...
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
Irish Government
The Government of Ireland is the cabinet that exercises executive authority in Ireland.-Members of the Government:Membership of the Government is regulated fundamentally by the Constitution of Ireland. The Government is headed by a prime minister called the Taoiseach...
has accused asylum seekers and/or illegal immigrant mothers of deliberately presenting themselves at hospitals in Ireland 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
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
ruled (in the Chen case
Chen case
Kunqian Catherine Zhu, also known as Catherine , was born on 16 September 2000 in Belfast to Chinese parents who were living in Wales and working for a Chinese firm in Britain...
) 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 24 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
Irish nationality law
Irish nationality law is the law of the Republic of Ireland governing citizenship. A person may be an Irish citizen through birth, descent, marriage to an Irish citizen or through naturalisation. Irish nationality law is currently contained in the provisions of the Irish Nationality and Citizenship...
into line with British citizenship laws
British nationality law
British nationality law is the law of the United Kingdom that concerns citizenship and other categories of British nationality. The law is complex because of the United Kingdom's former status as an imperial power.-History:...
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 AssemblyNorthern Ireland Assembly
The Northern Ireland Assembly is the devolved legislature of Northern Ireland. It has power to legislate in a wide range of areas that are not explicitly reserved to the Parliament of the United Kingdom, and to appoint the Northern Ireland Executive...
. On 2 December 1999, power was devolved to the North/South Ministerial Council
North/South Ministerial Council
The North/South Ministerial Council is a body established under the Belfast Agreement to co-ordinate activity and exercise certain governmental powers across the whole island of Ireland...
and the British-Irish Council
British-Irish Council
The British–Irish Council is an international organisation established under the Belfast Agreement in 1998, and formally established on 2 December 1999 on the entry into force of the consequent legislation...
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
Iveagh House
Iveagh House is the headquarters of the Department of Foreign Affairs and Trade in Dublin. It is also sometimes used colloquially as a metonym referring to the department itself....
in Dublin, the Irish department of foreign affairs. Peter Mandelson
Peter Mandelson
Peter Benjamin Mandelson, Baron Mandelson, PC is a British Labour Party politician, who was the Member of Parliament for Hartlepool from 1992 to 2004, served in a number of Cabinet positions under both Tony Blair and Gordon Brown, and was a European Commissioner...
, the Secretary of State for Northern Ireland
Secretary of State for Northern Ireland
The Secretary of State for Northern Ireland, informally the Northern Ireland Secretary, is the principal secretary of state in the government of the United Kingdom with responsibilities for Northern Ireland. The Secretary of State is a Minister of the Crown who is accountable to the Parliament of...
, 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
Taoiseach
The Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
, Bertie Ahern
Bertie Ahern
Patrick Bartholomew "Bertie" Ahern is a former Irish politician who served as Taoiseach of Ireland from 26 June 1997 to 7 May 2008....
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).