German Reunification – Lessons to be Learned?

Prof Anna Katharina Mangoldcsm_mangold-photo-kopie_5c8f03077a

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Similarities seem to appear everywhere once one starts comparing reunification processes from a constitutional perspective. While recent constitutional developments seem to point in the direction of separation and independence movements rather than reunification, the German example springs to mind as a possibly comparable historical situation. However, as with all constitutional comparisons, the ever present historical, political, social and economic differences between states need to be kept in mind. Thus, there are certainly no ready-made and direct lessons to be learned but there might be some broader considerations that could point the way to what to expect, what best to avoid and hints to possible pitfalls in a constitutional reunification.

Starting Point: The Cold War

The border between the Federal Republic of Germany (FRG) and the German Democratic Republic (GDR) was also the border between the two major competing political and economic geopolitical blocks in the post-WW II period. Communism and capitalism clashed in a single country. The two German states were paradigmatic for the ideas and ideologies of capitalist and socialist systems, and they fought on many levels. One can say that up until the 1980s, the FRG and the GDR were archenemies.

Then, things started to shift in favour of the capitalist model as the economic collapse of the GDR was imminent. Civil society protests against the totalitarian approach of the SED (Sozialistische Einheitspartei Deutschlands, Socialist Unity Party of Germany) paved the way for a non-violent change. Where border patrol soldiers had previously shot those wanting to cross the border, forcefully separated families reunited on that truly magic night of the 9th November 1989 that to this day I remember vividly as a child growing up in Berlin.

At that point in history, the capitalist system seemed to be the “winner”. And before too long, the FRG indeed took it all.

Constitutional Theory: Constitution-Making Power or Constituted Power?

The Constitution of the FRG was not even called a “constitution” because the parliamentary assembly in 1948/49 thought of the “Basic Law” as an interim solution until Germany would be reunited. Article 146 of the Basic Law shows this quite clearly. In its 1949 version it read:

This Basic Law loses its validity on the day on which a constitution comes into force which has been freely decided by the German people.

There were various competing interpretations of what this article actually meant. Some figured it regulated the constitutional way to reunification. Others sought and found deeper meaning: they understood Article 146 to regulate the constitution-making power as opposed to the constituted power. Proponents of this view argued that a reunited German people would be absolutely unbound by the then invalid Basic Law.

Both politicians and constitutional lawyers did not foresee the events of November 1989. What had seemed to be a largely theoretical academic debate suddenly and unexpectedly became a relevant and decisive question.

No New Constitution for the Reunified German People

Contrary to an intuitive reading of Article 146, the Basic Law continues to be the Constitution of the (now reunified) Federal Republic of Germany No. 2. The new state even kept the name of the capitalist part of the country.

Instead, a solution was found by negotiating a lengthy “Unification Treaty”, concluded on the 31st August 1990. This international treaty between the FRG No. 1 and the GDR regulated the legal dissolution of the GDR, its accession to the Federal Republic of Germany and, finally, German unity. The GDR simply ceased to exist, its territory was transformed to fit into the federal organisation of the FRG No. 1, and all substantive decisions of the Basic Law extended to apply in the five new federal states.

Several annexes of a highly detailed and legally complex nature extended the validity of all law of the FRG No. 1 to the territory of the acceding GDR. Some exemptions were made, for example in funeral law, but largely the law of the former GDR ceased to exist at the same time as the socialist state.

Wounds that do not Easily Heal

The populace of the former GDR had to pay an unequally distributed share of the costs of German reunification – economically, mentally, politically, and democratically. The state in which people had grown up and which they knew, even if they disliked the authoritarian setup, disappeared overnight, and with it most laws regulating daily life. Everything was new now. The ideology of the former GDR was “defeated”, and so was its population. In November 1990, the widely circulated cover of a satirical journal from West Germany depicts “Zonen-Gabi” (Gabi, a woman from Eastern Germany) holding a partly pealed cucumber with the caption: “My First Banana”.

“Ossis”, people from East Germany, having grown up behind the Iron Curtain, were believed to be backward, not cultivated, and generally in need of thorough democratic education. Many “Wessis”, people from West Germany, were sent to fill the leading positions in administration and the former socialist companies. Soon, they were known as “Besser-Wessis” (those from West Germany that know everything better). Differences between the populaces of West Germany (former FRG No. 1) and East Germany (former GDR) were exacerbated, and they continue to have a major impact. In terms of power relations and in an anti-discrimination perspective, these differences amount to a relationship similar to that between a dominating group (West Germans) and a dominated group (East Germans). Anti-discrimination law is, however, not in a position to address this structural inequality meaningfully and protect East Germans (evidenced by a Stuttgart Labour Court decision from 2010 which allowed a person to be disregarded for a job on the basis of them being an “Ossi”).

Economically, it was evident from the beginning that East Germany was in a dire condition. Nevertheless, in 1990 German Chancellor Helmut Kohl famously claimed:

“Through a joint effort, we will soon succeed in transforming Mecklenburg-Western Pomerania and Saxony-Anhalt, Brandenburg, Saxony and Thuringia into flourishing landscapes again in which it is worth living and working.”

To this day, East Germany is economically less well off than West Germany. Employees on average earn less, and pensions are lower. Young people tend to “flee” to West Germany, for economic reasons.

Finally, the decision to enact German reunification in this way has at least contributed to the rise of nationalist, populist, and fascist political movements. A xenophobic, outright racist and misogynist party such as the so called “Alternative for Germany” has its strongest footing in East German federal states.

From the perspective of many, of course not all, East Germans, German reunification was a deeply unsettling experience, rendering biographies and people superfluous. After the fall of the Iron Curtain, capitalist systems were no longer under pressure to prove their “human side”. In the 1990s, EU Member States, the FRG No. 2 among them, started to implement a form of turbocapitalism that hurt (and still hurts) not only the East Germans but the western part of the German population in a particularly brutal form. To them, German reunification must have appeared not so much as a unification but indeed more as an annexation.

Postponement of the Constitution-Making Power

No referendum was held in either the FRG No. 1 or the GDR. In fact, the “Unification Treaty” is said to be an example of legal genius, negotiated by lawyers and bureaucrats. The highly complex nature of the Treaty made it impenetrable to the not legally trained populace.

Even in this really broadly sketched little narrative, it is obvious that this constitutional moment in German history was not the time of constitution-making power. Rather, the constituted power of FRG No. 1, brought into the world by the Basic Law 1949, changed the wording of Article 146. Today it reads:

“This Basic Law, which, since the achievement of the unity and freedom of Germany, applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.”

The time at which all Germans can exercise constitution-making power, together, is apparently postponed to another day.

Prof. Dr. Anna Katharina Mangold is a Director of studies at the Department of European and International Law, Europa-Universität Flensburg .

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Irish Re-Unification: Perspectives from Elsewhere

Cheryl SaundersCherylSaunders_004

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

All restructuring of the external territorial boundaries of states takes place in a distinctive context, requiring caution in drawing parallels with experiences elsewhere. The case of Ireland is no exception. The long and complex history of relations between what now is the south and the north, the separate trajectories of the two populations over a considerable period of time, the logic of cohabitation on a relatively small island, the role of the United Kingdom, and the various commitments in the Good Friday Agreement that would be relevant in any move towards reunification make the Irish case sui generis, in many respects. Nevertheless, there are experiences with the restructuring of state boundaries in various ways in other parts of the world that provide a contrast with Ireland and from which instructive insights might be drawn.

As Aoife O’Donoghue notes in her post in this series, reunification of Ireland would create two reconfigured states, effectively involving both ‘unification and breakup’. For this, there are no recent parallels; and even unification alone now is rare. Historically, many states were built by a process of unification, including the United Kingdom itself. Many older federations were created by aggregation, including the United States and Australia. The modern world is comprehensively covered by states, however, making any form of coming together in a state form unusual. The reunification of Germany following the fall of the Berlin Wall is the closest parallel, already covered in the post by Anna-Khatarina Mangold. The reunification of North and South Vietnam in 1976 and, arguably, the return of Hong Kong to China in 1997 are other examples, but too far removed from the conditions of Ireland for comparison to be of much use. On the other hand, attempts to reunite Cyprus, which so far have failed, have some relevance for Ireland as another example of the challenges of finding a basis on which two unequal part of a shared island, with a relatively recent history of hostility, can agree to live together. While both cases have been fraught, the Good Friday Agreement offers Ireland an auspice under which what would be likely to be challenging discussions could at least begin.

The possibility of reuniting the two Koreas is another case that may be waiting in the wings to which much thought has been given,  drawing on German experience. The magnitude of difficulty of reunification of the Koreas is significantly greater than in Ireland, given huge disparities in economic development, government services and political culture and the superadded problem of militarisation. Some strategies floated by President Moon may offer insights, nevertheless. One is timing reunification to coincide with what for both Koreas is the symbolic occasion of the centenary of liberation in 2045.

State restructuring through separation or attempted separation is a much more familiar contemporary phenomenon. Timor-Leste and South Sudan succeeded; Bougainville may do so; Catalonia, Scotland, Quebec and Kurdistan each have sought secession, although without success so far. The breakup of the former Yugoslavia and the separation of the Czech and Slovak republics are relatively recent examples of other kinds.

Separation from the United Kingdom is the least of the concerns raised by Irish reunification. It is envisaged by the Good Friday Agreement; UK acquiescence can be assumed, if the two parts of Ireland agree; and reunification would not add to the total number of states. Some insights may be drawn from these cases, nevertheless. Most sought to legitimise secession through a popular vote, although typically in the general terms now discredited by Brexit. Controversy over the referendum question in Quebec ultimately led to the determination by the Supreme Court of Canada in the Secession Reference that what was needed for ‘democratic legitimacy’ was what in the context was accepted as a ‘clear majority’ vote on a ‘clear question’. The common sense of this decision makes it relevant to referendums associated with state restructuring elsewhere. It may well be of interest in Ireland where, however, what is needed for a majority vote already has been identified by the Good Friday Agreement.

The absence of a referendum to authorise the ‘velvet divorce’ in Czechoslovakia also has some negative relevance for Ireland. The divorce was prompted by the difficulty of finding a form of multi-level government acceptable to the two parts of an unequal state, in the absence of effective unifying forces. It was resolved without a referendum because of uncertainties about sequencing and differential outcomes that Ireland would need to resolve. Consequential issues about the distribution of assets and treaty succession also were resolved by negotiation.

Other kinds of developments in constitution-building across the world over the past few decades may be of greater interest in Ireland than these assorted instances of reconfiguration of state boundaries. Many of these stem from attempts to find constitutional frameworks within which divided societies can live together in sustainable peace. South Africa was a case in point, where an impressive process of constitutional redesign sought to bring unity to the country after the fall of apartheid and the introduction of universal suffrage. Many states in this situation necessarily deal with a range of issues that uniting the island of Ireland also would confront. These include the design of national symbols that can be shared, of which the constitution preamble, the flag and the anthem are likely to be examples; language policy in conditions of linguistic pluralism; and, perhaps most challenging of all, the development of a shared account of history.

It is not possible here to canvass these experiences fully enough to identify all points of interest for Ireland.  Those wishing to pursue them further will discover an extensive literature, of which this is an example. Two issues on which these experiences cast light should be identified, however: one substantive and one procedural.

Much post-conflict state building uses territorial divisions within a state to provide a degree of autonomy for communities that are regarded as distinct for some reason. Such arrangements need not be permanent, although expressing them as transitional could undermine the already difficult task of making them work in the first place. There is no end to the potential forms of multi-level government, which currently range from varieties of federation (Germany, Nepal, South Africa), through regionalism (Italy, Spain, the United Kingdom), to special autonomy within an otherwise unitary state (Indonesia, Philippines, Papua New Guinea). Several pertinent generalisations can be made, however. One is that any significant form of multi-level government requires a commitment on the part of both levels of government to make it work and may be particularly challenging in previously unitary states. Another is that the design of systems of multi-level government requires attention not only to dividing powers and functions but also to providing institutions, principles and processes to unite the state in ways that are voluntary, rather than imposed.

Any proposal for significant constitutional change, in which multiple stakeholders may have different interests, is likely to begin by negotiating agreement on constitutional principles on which more detailed arrangements can be built. Such principles may, but need not, be set out in an interim Constitution. The Constitution of South Africa famously was drawn up in this way, as the post by Brendan O’Leary notes. Initial agreement on constitutional principles may well be a useful device for Irish reunification as well. The Good Friday Agreement offers a useful starting point for thinking about what some of the principles might be.

Less successful attempts to use principles elsewhere, in the wake of the South African achievement, suggest some guidelines that it may be helpful to consider. The principles should be clear, with enough detail to give key stakeholders confidence in the process and its outcomes, without being overly prescriptive. There should not be too many principles (South Africa had 34); the aim is to provide an agreed and intelligible constitutional foundation, not to pre-empt the constitution-making process. The principles should be negotiated in a way that will be accepted as legitimate, during the constitution-making process and thereafter. And, needless to say, the principles should be followed in settling the final constitutional arrangements. South Africa ensured this by providing for certification by the Constitutional Court.  This is not a solution that is likely to be available or acceptable everywhere, however. In other contexts where, as in Ireland, success is critically dependent on continuing mutual commitment, other kinds of guarantees may be sufficient instead.

Cheryl Saunders is a Convenor of the Constitution Transformation Network, Laureate Professor Emeritus at Melbourne Law School, and President Emeritus of the International Association of Constitutional Law (IACL).

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The Irish government and a referendum

Etain Tannam

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

The results of the 2016 Brexit referendum in the United Kingdom immediately placed the issue of Irish unification in the spotlight, further highlighted by the success of Sinn Féin in the February 2020 Irish General Election. When the Belfast/Good Friday Agreement was agreed, British and Irish governments assumed that unification was a distant prospect and that the UK and Ireland would remain member states of the EU. Thus, the Agreement provided for a majority rule in deciding whether unification would occur. Even if the Northern Irish electorate voted in favour of unification, under the Belfast/Good Friday Agreement there is no obligation for the Irish government to hold a referendum; ‘the difference in the language theoretically opens possibilities for alternative modes’ . Thus, there is very little detail in the 1998 Agreement about the referendum issue, or the Irish government’s role. However, as Oran Doyle notes on this blog ‘it would be appropriate and desirable to make significant changes to the Irish state in the event of unification, principally to make it more hospitable to new citizens with a British identity’. Some changes could be made by legislation, but constitutional amendment would be required for others. It is most likely that Irish governmental involvement in the decision of the Secretary of State for Northern Ireland to call a referendum would be significant for four key reasons:

 The constitutional, financial and public policy implications for Ireland

In practice, if a majority of voters in Northern Ireland vote to support unification, it is likely that a referendum would occur in Ireland, such would be the extent of constitutional and public policy change required. Issues such as creating a federal, or confederal state would arise, as well as a large range of public policy and financial issues. Unification would undoubtedly create extra financial burdens for the Irish state. A unilateral decision to call a referendum in Northern Ireland without adequate consultation with the Irish government would be highly unlikely. As Oran Doyle notes, the electorate in Northern Ireland need to know what exactly they are voting for, or against. Otherwise, the deep division created by the Brexit referendum would occur after a unification referendum and both governments would lack a clear mandate. The Brexit referendum shows the dangers of an open-ended question with no detail. Therefore, the Irish government’s role is significant in a Secretary of State’s decision to call a referendum, as its state would require significant transformation and preparation.

British -Irish intergovernmental cooperation, the peace process and the Belfast/Good Friday Agreement

For John Hume, former leader of the nationalist SDLP and the key strategist behind the peace process, the core reason for the conflict in Northern Ireland was that neither community felt it was protected securely by British and Irish governments. This logic first emerged in 1985 with the signing of the Anglo-Irish Agreement and came to fruition in 1998 when the Belfast/Good Friday Agreement was signed. For Hume, the key to peace was to reassure both identities and the key to reassurance was to enshrine the ‘totality’ of the relationship: internal cooperation in Northern Ireland (Strand 1), cross-border Northern Irish/Irish cooperation (Strand 2) and British and Irish intergovernmental cooperation (Strand 3). Thus, the 1998 Agreement provided for these 3 strands. Under Strand 3, the British-Irish Intergovernmental Conference (B-IIGC) was established and it was intended that it would be equally central to the Agreement as Strand 1 (providing for the consociational devolved government). Thus, the Agreement’s Declaration of Support stated that:

It is accepted that all of the institutional and constitutional arrangements – an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland – are interlocking and interdependent.

As regards the B-IIGC , article 5, Strand 3 stated:

In recognition of the Irish Government’s special interest in Northern Ireland and of the extent to which issues of mutual concern arise in relation to Northern Ireland, there will be regular and frequent meetings of the Conference concerned with non-devolved Northern Ireland matters, on which the Irish Government may put forward views and proposals. These meetings, to be co-chaired by the Minister for Foreign Affairs and the Secretary of State for Northern Ireland, would also deal with all-island and cross-border co-operation on non-devolved issues.

The logic of the peace process and the Agreement was that British-Irish cooperation would be institutionalised to ensure that sensitive issues would be managed jointly and a shared understanding would develop. A referendum on unification would clearly be one such issue necessitating British-Irish negotiation.

The need to protect and respect unionist and British identities in Ireland

The third reason why an Irish government would be likely to play a significant role informally in the decision to call a referendum is the scale of preparation necessary in the Irish state is at all levels if unification occurred – elite level and societal. A key issue would be the need to reassure unionists that their identity and rights were secure in an Irish state. Clear proposals to protect unionist identity and rights in Ireland would be necessary, on human rights grounds, but also to build a consent across both jurisdictions. As Aoife O’Donoghue notes: ‘In 1998, Ireland’s Attorney-General highlighted that “the commitments in the British-Irish Agreement to equality of treatment and parity of esteem, and to the dual citizenship rights of the people of Northern Ireland, are explicitly to apply irrespective of the status of Northern Ireland”. In this way, the 1998 Agreement offers protection to unionists in an Irish state, just as it does to nationalists in Northern Ireland. Specifically, the B-IIGC, though the subject of antipathy for many unionists, has the potential to protect unionist interests. Overall the need for specific measures to offer protection would necessitate British-Irish negotiation and discussion.

At societal level, the Irish public would also need to be prepared for a referendum on unification and for a united Ireland. Sensitivity to unionist and British identities would be required in a meaningful multicultural state. The recent controversy in Ireland about commemorating members of the (British) Royal Irish Constabulary who died in the Irish War of Independence highlights that not all Irish citizens have a reconciliation mindset and not all reflect on their attitudes to unionists and to the UK.

Therefore, while formally only the Secretary of State is responsible for a unification referendum, the Irish government is likely to play a significant role in planning for a unification outcome and also in providing information about the appropriate timing of a referendum in Ireland.

The 3 strands peace process approach and the Irish government’s commitment to the Belfast/Good Friday Agreement imply that the B-IIGC would be an appropriate forum for both governments to discuss a unification referendum, if a Secretary of State believed support for unification was increasing. However, the B-IIGC was not frequently convened after 2007 and despite Brexit’s challenges, it has barely met in the past few years. Many unionists opposed the B-IIGC, as they believed that by enshrining an Irish role, it signified a slippery slope to a united Ireland. It is unlikely that the current Tory government in London would warm to it. So there is a conundrum that while institutionalised cooperation may ensure long lasting cooperation with a multiplier effect, if there is an absence of political will, institutions are redundant and the multiplier effect cannot occur. However, no Irish government would allow the B-IIGC’s replacement. Apart from its centrality to the ‘totality of relations’ if it was abolished, then more unpicking could follow and the Agreement would unravel. It is possible that a re-framing of the B-IIGC to emphasise its protections for unionists and a repositioning of it would help strengthen it as a forum for British-Irish cooperation. For example, both the UK government and the Irish government have referred to the need to build networks between Ireland and British to help compensate for the loss of EU networks. Positioning the B-IIGC and the Agreement in these networks may make the B-IIGC more palatable to unionists and to the UK government.

To conclude, although legally only the Secretary of State for Northern Ireland has the power to call a unification referendum, the Irish role in the decision would be likely to be significant. However, Westminster politics, most recently the sacking of the much-praised Secretary of State, Julian Smith, imply that the UK government’s prioritisation of Northern Ireland, British-Irish cooperation and its awareness of the need for long term preparation for a referendum, may not be high. In addition, the UK’s departure from the EU leaves it with a daunting international bargaining agenda and overload. As before, it is likely that the Irish government will concentrate resources on lobbying its UK counterpart to intensify communication and cooperation, so that any issues, including the unification issue, are managed as strategically and as sensitively as possible. The relationship needs immediate reinforcement, so that in the event of mounting pressures both governments are well-equipped to weather the storms.

Etain Tannam is Associate Professor International Peace Studies, Trinity College Dublin. Her main area of expertise is Irish/Northern cross-border cooperation and British-Irish cooperation, with emphasis on Brexit’s impact. She is currently writing a book British-Irish Relations in the 21st Century, 2021, forthcoming, Oxford, Oxford University Press.

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A New and United Ireland?

Colin HarveyHarvey pic 2019 A

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Constitutional Context: The Right to Self-Determination

The island of Ireland is likely to be heading towards concurrent referendums on its constitutional future in the next decade. Although the outcome of the recent Irish general election has attracted global attention (the electoral success of Sinn Féin in particular), it is Brexit that has prompted intensified interest in Irish reunification. One jurisdiction is now outside the EU, and the other is still a Member State; an external border of the EU divides the island. The European Council confirmed in April 2017 that reunification is an automatic return option for Northern Ireland, and the impact of the special arrangement envisaged in the Protocol on Ireland/Northern Ireland remains hard to predict.

This all matters because the contested constitutional status of Northern Ireland rests on the principle of consent, and the Good Friday Agreement 1998 contains a mechanism for the exercise of the right to self-determination. The people of N. Ireland have the right to leave the UK and join a united Ireland if that is their wish, subject to the provisions of the 1998 Agreement. This is a compromise formulation designed to offer a credible solution to an ongoing conflict of national identity (British-Irish) that will involve ‘concurrent referendums’. Rather than view this as peripheral, this right is in reality foundational for the current peace process. It was democratically endorsed in referendums on the island of Ireland on 22 May 1998, is embedded in the constitutional legal orders of both states, and underpinned by international law. The triggering device vests considerable discretion in the Secretary of State for N. Ireland, with an obligation on him or her to hold a referendum where it appears likely that a majority would vote for a united Ireland. He or she has flexibility on the evidence that will inform this assessment, and this has prompted calls for additional clarity and certainty. The rights-based starting point, however, is a right to self-determination that belongs to ‘the people of the island of Ireland alone’.

A New Ireland and Human Rights?

How might human rights feature in these debates? First, the UK and Ireland share much in common, but they possess distinctive constitutional arrangements and inhabit a range of legal orders. Ireland has a codified constitution (Bunreacht na hÉireann) that contains rights guarantees (supplemented at the sub-constitutional level), anticipates eventual unity of people and territory, and provides for a referendum process for possible amendment (it has been amended over 30 times). The UK system still has the legislative supremacy of the Westminster Parliament at its core, with the Human Rights Act 1998 as the principal domestic legal measure and the EU (Withdrawal Agreement) Act 2020 raising intriguing constitutional questions for rights protection in the future.

Second, both are dualist states for international law purposes, have ratified a significant number of international human rights instruments (but are not perfectly aligned), and Ireland remains an EU Member State (recall that unity will have an impact on the EU as well). During this process of constitutional reflection the UK and Ireland will be bound by relevant international legal obligations, including, for example, concepts of continuity with respect to existing human rights guarantees in the event of constitutional change. Both are members of the UN and the Council of Europe and have, for example, served on the UN Human Rights Council. There is an ongoing and unhelpful reluctance in both states to incorporate international human rights treaties into domestic law, with some notable exceptions including, for example, the European Convention on Human Rights.

Third, the Good Friday Agreement will frame the constitutional conversation on these referendums, and it will also determine the shape of the ‘New Ireland’ that emerges. Why? Because just like Bunreacht na hÉireann, it anticipates this possible outcome, and has become the internationally and domestically recognised standard against which the process will be conducted and judged.  What will that mean? Unless and until it is superseded, the British-Irish Agreement (the bilateral legal underpinning) will continue to bind both states, and its institutional architecture may also be retained. The birth right guarantee (the right to identify and be accepted as British or Irish or both) is intended to flow into the future arrangements. The ‘rigorous impartiality’ obligation, including the neglected references to human rights protections, will transfer to Ireland in the event of reunification. The concept of equivalence (the notion that there should be at least an equivalent level of rights protection in Ireland) will be tested, and will place an additional responsibility on the Irish state to ‘level up’, where this is required to ensure that people do not experience a diminution with respect to relevant guarantees and existing accountability mechanisms as a consequence of reunification.

The Irish system will be subject to intense scrutiny for compliance with ideas that are central to the Good Friday Agreement, such as parity of esteem and mutual respect for the two main traditions in Northern Ireland. How will, for example, British identity be respected, and how will the rights of British citizens be guaranteed in the event of reunification?  This will be complicated by several factors. Brexit means that British citizens are no longer EU citizens. What, for example, will it mean in a United Ireland for British citizens to retain a right to identify and be accepted as British only? The failure to ensure the effective implementation of the Good Friday Agreement in the here and now may also inform the discussions to come. Promises on parity of esteem have not been realised, there is no Bill of Rights for Northern Ireland, no Charter of rights for the island, and the N. Ireland Human Rights Commission has experienced serious budgetary pressures. The conversation about the future would be easier if these values were more widely practised in the present.

Getting Ireland Reunification Ready?

This discussion has gained remarkable momentum, and serious reflection has commenced. What is notable is that much of the language is not about holding these referendums immediately. The dominant narrative remains one of sensible planning and preparation. This must include the active involvement of those working for the advancement of human rights on the island of Ireland. The doctrine of equivalence should, in principle at least, incentivise proactive engagement with the recently revived Bill of Rights process in Northern Ireland, for example. There is also no reason for Ireland to wait for reunification in order to begin making necessary changes. Ireland is generally more open to the relevant international human rights accountability machinery, however, the UK has, for example, ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Ireland has not as yet. What more might be done in both states to give further effect to the full range of international human rights obligations?

There is much that Ireland could do now to ensure that it is ‘reunification ready’ in rights-based terms, and in ways that ensure full and effective respect for the Good Friday Agreement. A larger constitutional conversation will emerge in Ireland around this point. If this is to be a ‘New Ireland’ is Bunreacht na hÉireann (even a substantially amended version) to be the constitutional framework? Does a ‘New Ireland’ require a new constitution with a bill of rights embedded in it?  Equally, the British Government will have to address the ongoing implementation failures in areas that include human rights and equality, and the widespread view that in a post-Brexit context the UK will be a ‘cold house’ for human rights. Should the spirit of the equivalence doctrine have much more impact on N. Ireland than it does now?

The idea that people in Northern Ireland should in principle experience no detriment as a consequence of their constitutional choices is being tested, and will be sorely tested in the years ahead, as the UK and Ireland embark on divergent constitutional journeys. The extent to which this will impact on decision-making when these referendums are held is an open question. But those concerned about the human rights of everyone on the island of Ireland, now and in the future, will want to place rights at the heart of this evolving constitutional conversation. Those who want a ‘New Ireland’ are therefore under an obligation to take human rights seriously.

Colin Harvey is Professor of Human Rights Law in the School of Law, Queen’s University Belfast, a Fellow of the Senator George J Mitchell Institute for Global Peace, Security and Justice, and an Associate Fellow of the Institute of Irish Studies. 

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Southern and nationalist concerns in a united Ireland

David KennyDavid Kenny

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Whereas support in Northern Ireland for a united Ireland is modest at present, support for the prospect of unification in the Republic of Ireland (southern Ireland) is relatively robust. A recent general election exit poll showed 57% of voters in favour of a border poll within the next five years. An exit poll after the European and local elections in May showed 65% in favour of the prospect when a time frame was not included, suggesting support is even stronger on a longer timeline. Support amongst younger voters is particularly high.

What these polls do not tell us, however, is what these voters see as central to a united Ireland, and how their support might be contingent on the details of unification in practice. What would matter to voters in the south, or to nationalists more generally, in conceiving of a united Ireland?

In some ways, the priority for those who favour unification is simple: for the two parts of Ireland to form a sovereign unit, as provided for in the Good Friday/Belfast Agreement. This is, conceptually at least, straightforward. Unlike Brice Dickson’s account of unionist priorities, there is no necessary reason to think that this group has any unified view on conservative/socialist politics or how the political economy of the state should develop.

Beyond this, this group’s priorities may mostly be negative or reactive: comprising concessions or compromises they might want to avoid rather than a strong affirmative agenda for unification.

Structure of government and state finances

A major issue for nationalists is likely to be the structure of government and its implications for regional governance. Would devolution be maintained, as Brice Dickson suggests, or replaced with some sort of federal government? How would power be divided between the central and local governments in this? Would the consociational arrangements of the Good Friday Agreement (GFA), with veto points and other community protections, be maintained? Or would it be acceptable to have a unitary state? These questions would be crucial for nationalists in Northern Ireland, as they will have a substantial effect on the way in which they would be governed in practice.

In the south, this issue would also raise acute questions around state finances. Northern Ireland runs a substantial budget deficit, and the burden of this is borne by Westminster. The scale of this deficit is the subject of some dispute, and would vary depending on how a “divorce bill” might be settled (e.g. who would bear pension costs incurred by the British administration, and what, if any, portion of the UK national debt would be taken on by a united Ireland?). Voters in the south might wonder how large a subvention to Northern Ireland from a new national government would be necessary, and how much oversight of budgeting and expenditure the new national government would have. Given that some of the most contentious policy issues – healthcare, education, policing – are also some of the most costly, any fiscal federalism will have to be carefully structured, and this would risk alienating southern support.

Symbolism

Aside from these more prosaic questions of governance and finances, there are profound symbolic issues that are likely to arise.

Flags, which have even in recent years been a flashpoint in Northern Ireland, are likely to be a significant point of symbolic contestation. The Union Jack and the Irish tricolour are intimately bound up with the two sides of the conflict in Northern Ireland. What national flag could do justice to all identities and traditions, and symbolise all communities in a united Ireland without causing great offence to anyone? Symbols currently associated with the Irish state – the celtic harp, the colour green – may have to be given in any compromise, perhaps to the dissatisfaction of nationalists north and south.

Similarly, problems of representing all communities while avoiding offence are acute in terms of a national anthem. The location of a national capital, and whether this ought fairly be Dublin, may also arise. Southern supporters of unification might have to consider decamping national institutions to a new capital on more neutral ground.

Language is also problematic. A dispute over an Irish Language Act in Northern Ireland was a central reason for the breakdown in powersharing in 2017, and it remains a highly controversial issue. At the same time, Irish is the national language and the first official language of the Irish State, with English as a second official language. How to square this – with joint and co-equal official languages or otherwise – will be complicated by other questions such as the use of Irish in a national anthem and the use of Irish terminology for offices and institutions, which is common in the current Irish state—e.g. Taoiseach (Prime Minister), Tánaiste (Deputy Prime Minister), Dáil (the Lower House) Teachta Dála (Dáil Deputy), Seanad (Senate), etc. Relegating the Irish language completely from the public life of a new state might be a bridge too far for nationalist and southern voters, making some careful compromise necessary.

The Identity of the State and Accommodating Britishness

Finally, the identity of the new state will raise issues. The Preamble of the current Irish Constitution speaks of the “heroic and unremitting struggle to regain the rightful independence of our Nation”, illustrating a state identity that is exclusive of Britishness, against whom the struggle was conducted. A new united Irish state would have to, in the first instance, develop a national identity that was far more inclusive and respectful of all communities and could acknowledge the Britishness of its unionist members. It would have to, as Dickson suggests, sufficiently acknowledge “the cultural heritage of [the unionist] community”.

Some aspects of this will be straightforward. The Good Friday/Belfast Agreement promises, in perpetuity, the right of people in Northern Ireland to identify as British or Irish or both. Principles in that agreement such as parity of esteem and rigorous impartiality would carry over to ensure cultural inclusion in various aspects of the life of the state. Cultural traditions would have to be respected and accommodated to the greatest extent possible.

But at a certain point, this could clash with the priorities of nationalists and those in the south. In the event that it was expected that a united Ireland should join the British Commonwealth, this might attract opposition from those who would find such close connection to what is often seen as an imperial institution to be difficult to accept. Beyond this, acknowledgment of some role for the British monarch, or acceptance of titles of nobility, might be seen as fundamentally undermining of the republican character of the state. The concept of Irishness would have to change, and this is a challenging prospect with the potential to alienate nationalists north and south.

There is some necessarily speculative element to this project of considering what these groups might care about in a united Ireland. We do not know if and to what extent the particular issues outlined here would matter in reality, if negotiations on unification were in train. We do not know if voters in the south have already factored in these matters as expected concessions when they say they support a united Ireland, or (I think more probably) if they have not considered them, and if doing so could affect that support. But if the prospect of unification becomes more likely in the coming years, time will tell which issues matter most.

Dr David Kenny is an Assistant Professor of Law at Trinity College Dublin, where he teaches and researches Irish and comparative constitutional law. He is currently a member of the Working Group on Unification Referendums on the Island of Ireland, convened by the Constitution Unit of University College London and supported by funding from the British Academy and the Joseph Rowntree Charitable Trust.

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