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.