constitutional law - nation and state notes Flashcards
what does article 1 set out?
Article 1 sets out the sovereignty of the Irish state in terms of an inalienable, indefeasible, and sovereign right to self-government and international relations.
what do hogan and whyte state?
Hogan and Whyte state that this constitution was based on the theory of nationalism.
Discuss McGimpsey v Ireland
This formulation also informed the jurisprudence of the court in McGimpsey v Ireland, where the claim to the six counties of Northern Ireland under the provision of the old article 2 and 3 of the constitution was determined to be a right rather than a political claim.
Discuss sovereignty in Ireland
Sovereignty is an important part of international law and statehood in that country is deemed to
have the ability to give itself and be independent and equal to other countries.
discuss article 1 of the constitution
Article 1 clearly signals the independence of the nation in both its internal and external governance. It is a clear signal to the history of the country that it is now independent and will be driven by its own cultural traditions.
Discuss the historical significance of the constitution
Article 2:
The national territory consists of the whole island of Ireland, its islands, and the territorial sea
Discuss article 3 of the constitution
Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by the constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that parliament shall have the like area and extent of application as the law of saorstát Éireann and the like extra-territorial effect.”
what was held in Mcgimpsey v Ireland
Considering that the 6 counties of ulster which still compromise of Northern Ireland was under the direct control of the United Kingdom, in McGimpsey v Ireland, the supreme court held that the former art.3 was a claim as of right and not just a political claim
anglo-irish agreement of 1985
This case was taken on the basis of the Anglo-Irish agreement of 1985 which included a provision affirming the existing status of Northern Ireland and that any change to its position would only happen with the consent of the majority of the population of Northern Ireland.
The Anglo-Irish Agreement 1985
The agreement also included provisions to establish an intergovernmental conference and to allow the Irish government to put forward its views on devolution and major legislative and policy proposals within Northern Ireland in relation to the interest of the minority community in Northern
Ireland.
The Anglo Irish Agreement 1985
The agreement also included other provisions related to security and legal matters, cross borders co-operation and economic development.
The Anglo-Irish Agreement 1985
The plaintiff argued that this agreement was contrary to art.2 and art.3 as it prevented the state from enforcing its right to Northern Ireland under international law. This argument was rejected by the court, but the judgement is notable in that it interprets the claim to Northern Ireland as a right.
what did the court say?
The court accepted that both governments of the UK and Ireland have an acknowledged concern in relation to the affairs of Northern Ireland and it “acknowledges that the government of Ireland may make representations, put forward proposals and try to influence the evolution of the peace process, Ireland agreed to relinquish its claim on Northern Ireland and hence this proposal was agreed to by the population by means of referendum.
Discuss the Good Friday Agreement?
Under article 4 of the good Friday agreement, the Irish government agreed to amend articles 2 and
3 of the constitution. The current provisions of these articles reflect the agreement of the parties.
The Good Friday Agreement:
As part of the agreement, the Irish government also committed to adding this agreement to the international relations section of the constitution as per amendment of art.29.7. The provisions of the Good Friday Agreement also instituted the Northern Irish
Assembly in Stormont, the importance of the baseline standard of the European Convention on Human Rights across Ireland, Northern Ireland and the United Kingdom, and the Northern Irish Executive.
Discuss the councils that were established due to the Good Friday Agreement?
To ensure joint supervision of the northern Irish political bodies through the good Friday agreement, the document also established the north/south ministerial council, the British-Irish council, and the British-Irish intergovernmental conference.
Discuss the councils that were established due to the Good Friday Agreement?
To ensure joint supervision of the northern Irish political bodies through the good Friday agreement, the document also established the north/south ministerial council, the British-Irish council, and the British-Irish intergovernmental conference.
The Sunningdale agreement 1985
Such moves were incorporated in the Sunningdale agreement 1973 and the Anglo-Irish agreement of 1985.The good Friday agreement contains provisions for remedial action where difficulties arise which include consultation with all parties and the two governments.
The current approach and challenges
The original article 2 and article 3 were replaced with article 2 which based the nation on nationality, which was to be subject to qualification in law, and was altered by the 27th amendment of the constitution in 2004.
The Good Friday Agreement:
The post-Good Friday agreement version included the jus soli claim to citizenship.
There have been two main consequences stemming from the new formulation:
1) citizenship
2) the principle of re-integration
discuss the re-integration of Europe:
The legal agreement between the UK government and the Irish government specifically includes a mechanism for the re-integration Of Northern Ireland into Ireland as it recognised
that it is for the people on the island of Ireland to exercise their right of self-determination on the basis of consent “freely and concurrently given, North and south to bring about a
united Ireland” where a “substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people”.
Democracy in Ireland
Article 5 declares Ireland to be a “sovereign, independent, democratic state”
De Búrca v Attorney General:
It was stated in de Búrca v Attorney General, “a democracy is a form of government in which the sovereign power resides in the people as a whole and is exercised by the people either directly or through their elected representatives. This obviously does not mean that every citizen has the right to take part personally in the government of the country”.
