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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