Articles 2 And 3 Of The Constitution Of Ireland 1937

The drafters of Bunreacht na hÉireann considered the partition of Ireland 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.

1.3 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 the territory of their newly formed state, and a declaration that they might be coerced into a united Ireland without their consent. Furthermore, they claimed, the articles constituted an extra-territorial 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 TDs (MPs). Prior to 1999, however, the Republic of Ireland's Supreme Court affirmed in consistent rulings that Article 2 created no rights or obligations that were actually enforceable in a court of law.

2 Post-1999 version

The Republic of Ireland was bound by the terms of the 1998 Good Friday (Belfast) AgreementThe Belfast Agreement (also known as the Good Friday Agreement and, more rarely, as the Stormont Agreement was signed in Belfast on April 10 1998 by the British and Irish Governments and endorsed by most Northern Ireland political parties. It was endorsed to submit Articles 2 and 3 to amendmentA constitutional amendment is an alteration to the constitution of a nation or a state. In jurisdictions with 'entrenched' constitutions this requires a special procedure different from that used for enacting ordinary laws. Flexible constitutions A flexib by referendumA referendum (plural: referendums or referenda or plebiscite is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may be the adoption of a new constitution, a constitutional amendment, a law, the r. 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 the consent of the people of Northern Ireland.

2.1 Full text (1999–present)

Article 2

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. 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

1. 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 Parliament² that existed immediately before the coming into operation of this Constitution.

2. 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.

2.2 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 extra-territorial claim. This is a reflection of the provision in the Belfast Agreement recognising

the 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 citizenship of the Republic. However this right has since been qualified by the Twenty-seventh AmendmentThe Twenty-seventh Amendment of the Constitution of Ireland, the founding legal document of the Republic 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. Adopted in 20042004 is a leap year starting on Thursday (the link is to a full 2004 calendar), and has also been designated the: International Year of Rice International Year to Commemorate the Struggle against Slavery and its Abolition Elections are to be held in 73 co, 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 "specially affinity" between the people of Ireland and the Irish diasporaEthnic groups The Irish diaspora consists of Irish emigrants and their descendants in countries such as the United States, Great Britain, Canada, Quebec and Australia. By one estimate, the diaspora contains as many as 60 million people. There are also lar.

2.3 Article 3

As amended, Article 3, Section 1 expresses the "firm will" of the Irish nation to create a united Ireland. It stresses, however, that a united Ireland should respect the distinct cultural identity of Northern Ireland Unionists and Protestants and that it should only come about with the separate "democratically expressed" consent of the peoples of both parts of the island. Under the Good Friday Agreement the people of Northern Ireland's "democratically expressed" consent must be secured in a referendum. Section 2 allows the Republic of Ireland to participate in the cross-border 'implementation' bodies established under the Agreement.

2.4 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 PartyThe Ulster Unionist Party UUP sometimes referred to as the Official Unionist Party or OUP is a political party in Northern Ireland representing the unionist community, and was the party of government in Northern Ireland between 1921 and 1972. Until 2003 i but rejected by the Democratic Unionist PartyThe Democratic Unionist Party is a hardline Unionist party in Northern Ireland led by Ian Paisley. It is the largest unionist party at both the Northern Ireland Assembly level and in the Westminster Parliament. Established in the 1970s by Ian Paisley, it (DUP) as not representing an improvement on their predecessors. The DUP has recently become the largest political party in Ulster Unionism.

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 Republic. In the last few years, the Irish Government has accused asylum seeker and/or illegal immigrant mothers of deliberately presenting themselves at hospitals in the Republic 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 May 2004 the European Court of Justice ruled that a non-native mother whose child was born in Northern Ireland, had the right to live with her child in the UK. The implications are that the child, as an Irish citizen, has the right to reside anywhere in the EU with the protection of their mother.

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 24th 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.

3 Footnotes

Saorstát Éireann is the Irish language translation of the Irish Free State: the name of the independent Irish state prior to 1937.
i.e. the parliament of the Irish Free State ( 1922–1937). The Belfast Agreement does not refer to the part of Ireland that is not Northern Ireland by name.

4 External link

www.refcom.ie — Referendum Commission

Constitution of Ireland

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Home > Articles 2 and 3 of the Constitution of Ireland

1 1937–1999 version

1.1 Full text

1.2 History