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The Good Friday Agreement, 1998
by Desmond Clarke
Northern Ireland Legal Quarterly Vol.51,No.1.
The limited jurisprudence of Articles 2 and 3 will be radically revised since the provisions of the Good Friday Agreement were implemented and the Constitution was amended accordingly(33) However, the amended Articles continue to appeal to the reality of "the Irish nation" [naisiun na hEireann] as a basis for the new provisions and, to that extent, continue to reflect a nationalist philosophy, even if it is amended in significant ways.
The amendment to Article 2 explicitly extends membership of the nation to everyone born in the island of Ireland and to naturalised citizens.
"It is the entitlement and birthright of every person born in the island of Ireland, . . . 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."
This has the merit of recognising that membership of the Irish nation is open to all those born on the island of Ireland, irrespective of their cultural, religious or political traditions.
Nonetheless it is important, at this stage, to emphasise a distinction between what was adopted as amendments to the Irish Constitution, and what is otherwise included in the Belfast Agreement. The Agreement acknowledges that "the present wish of a majority of the people of Northern Ireland . . . is otherwise included in the Belfast Agreement. The Agreement acknowledges to maintain the Union," and that it is "the birthright of all the people of Northern Ireland to identify themselves . . . as Irish or British, or both, as they may so choose, and accordingly . . . to hold both British and Irish citizenship."(34) In this sense, the extension of membership of the Irish nation cannot deprive those who so choose of their British nationality. By conceding the right of people in Northern Ireland to hold both British and Irish citizenship, and by recognising that the relevant people have a choice, the Agreement implies that membership of one nation may overlap with that of another. Whether or not this concession about dual membership in the Agreement modifies the concept of Irish nationality in the Constitution remains an open question.
The question of consent to membership of the Irish nation is explicitly raised in the amended version of 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 . . . etc. [of the Irish Free State]."
This amendment, once implemented,(35) resolves the remaining ambiguity about the "claim of legal right" introduced by the McGimpsey decision and removes the claim from the Constitution that the Oireachtas may legislate for Northern Ireland. It also has the merit of acknowledging that the people on the island of Ireland have distinct cultural identities, and that the unification of the island is a political objective that may be pursued only within limits set by the democratically expressed consent of the people in each jurisdiction. All this must be welcomed as removing the constitutional ambiguity of the 1937 text and as recognising the role of democratic consent in political changes.
But underlying the amendments to Articles 2 and 3, there remains a commitment
to at least a modified version of the nationalism which inspired the original
text. This is apparent insofar as the amended Constitution continues to
assume the basic principle identified by Gellner, namely the ideal of congruence
between nation and state. The logic of nationalism implies that the Irish
nation has a right to a separate state that coincides with "the national territory", since there are many people living in Northern Ireland who prefer
to remain British citizens, and since one can assume that they will not
agree to emigrate elsewhere, the only way of realising a non-coercive congruence
between nation and state, in a united Ireland, is by extending membership
of the Irish nation to all those born in Northern Ireland. In other words
the underlying philosophy is: firstly, to claim the whole island as the
appropriate geographical region of the Irish nation and then to accept,
as the unavoidable price of making the nation and state coincide, that all
current residents of the island must be admitted to membership of the Irish
nation. The argument here is not that the Good Friday Agreement compromises
the British nationality of those born in Northern Ireland and who choose
to remain British citizens. It does not. However, only some provisions of
the Agreement have been included in the Irish Constitution, (36) and those
sections are consistent with the nationalist political aspirations of the
original text. This amounts to reading the Agreement as a compromise document
in which both the British and Irish governments set out their political
objectives and each recognises the legitimacy of the other's aspirations.
Apart from the principle of consent, which precludes coercive methods for
realising political objectives, the aspirations expressed by the amended
Irish Constitution remain fundamentally nationalist. |
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