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1. Concepts of Irish Sovereignty
Constitution of the Republic of Ireland refers to sovereignty in two articles: l (^) Article 1 says that “the Irish nation hereby affirms its inalienable, indefensible and sovereign right to choose its own form of govern- ment, to determine its relations with other nations and to develop its life, political, economic and cultural ”. l (^) Article 5 characterises Ireland as “sovereign, independent, democra- tic state”. Both Irish constitutional doctrine and jurisprudence distinguish bet- ween internal and external sovereignty. The Irish state is fully sovereign only in the external sphere. Judge Finlay^1 formulated the essence of exter- nal sovereignty as situation when: state is not subject to any power but those chosen by the nation/people in the constitution and the state is not responsible to any external institution for its behaviour. In contrast to the external sovereignty, the Irish state derived form traditional Bri- tish doctrine of internal sovereignty as formulated in the phase “King/Queen can do no wrong”. In Judge Finlay’s opinion the position
2 0 0 2 AC TA U N I V E R S I TAT I S C A RO L I N A E – PAG. 1 9 7 – 2 1 1 S T U D I A T E R R I TO R I A L I A I V
WHERE IS THE HEART OF
CELTIC TIGER:
IRISH SOVEREIGNTY AND
THE EUROPEAN INTEGRATION
I V O Š L O S A R Č Í K
(^1) Crotty v. An Taoiseach, podrobněji v samostatné podkapitole věnované tomuto případu.
of the Irish state is not above the law/constitution but is bound by the constitutional limitations. The sovereignty which Article 5 refers to, is the internal sovereignty. Diarmuid Phelan^2 finds four basic concepts of sovereignty in the Irish constitution (1937) : l (^) Irish natural constitutional law. l (^) Sovereignty of the Irish state – State sovereignty. l (^) Sovereignty of the Irish nation – popular sovereignty. l (^) Common good. The potential inconsistency between concepts of state sovereignty, popular sovereignty and principle of protection of the common good has initiated tension in the Irish constitutional debate.
1.1. State sovereignty The state sovereignty is the concept traditionally used in both international and Community law. In the Irish constitutional discourse, the external concept of the state sovereignty is emphasised. The intensive debate was focused on the denial of impact of special British- Irish relations to the sovereignty of Ireland. Another sovereignty rela- ted issue was the separation of Irish state from the Commonwealth structures. The territorial aspect of the Irish state sovereignty is specific in the question whether the sovereign rights of the Irish state applies to the ter- ritory of the Northern Ireland. The Articles 2 and 3 of the Constitution 1937 describe the national territory (which is probably the term identical with the state territory) as the whole area of the Irish island, i.e. the Nort- hern Ireland included. Article 3 expresses the expectancy of the unificati- on of the whole national territory under jurisdiction of Dublin regime. However, the very same constitutional article limits the territorial and mate- rial applicability of the Dublin-regime norms to the territory which is actu- ally subject to the Dublin regime governance – which excludes the Nort- hern Ireland from the applicability of the Dublin-regime legal norms, albeit temporarily^3.
(^2) Phelan, Diarmuid R.: Revolt or Revolution (Constitutional Boundaries of the European Community), Sweet and Maxwell, Dublin 1997, 303. (^3) Chubb, Basil: THE GOVERNMENT AND POLITICS OF IRELAND, Longman 1998 (3. ed), 42–52.
Attempts to create parallels between the concept of “common good” (which is essential in the Irish system) and principle of subsidiarity (which is particularly important in the EC law) appeared^7. Main source of such analogies are, however, in the common origin of both principles in the Christian philosophy, more than the material similarity thereof.
2. International relations, international law and
Irish legal system
Ireland is an example of state with dualistic approach to the interna- tional law. The Constitution authorises the government to exercise the external relations of the state, including signature of international treati- es. No international treaty becomes the part of Irish legal system until/unless the Parliament (Oirechtas) determines so. As regards the customary law, the reference in the Irish Constitution is limited to the acceptance of generally recognised rules of the internati- onal law and alliance to the principle of peaceful solution of internatio- nal disputes. Dualism traditionally excluded/marginalised the direct applicability of extra-Irish legal sources within the territory of the Irish state^8. Irish judiciary follows the dualistic model even towards international instru- ments of human rights protection, such as European Convention on Human Rights, which was ratified by Ireland in 1953. The Irish courts expressed in a consistent line of case law an opinion that the internatio- nal human rights treaties do not form a part of Irish legal system irres- pective of their importance or beneficial content. The same position is kept towards the case-law of international human rights tribunals – their decisions have neither binding effect in Ireland nor the effect of prece- dent. However, the use of an international treaty as the interpretation tool before an Irish court has been accepted. The only exception from the abovementioned rule is the European Community law (EC law). Direct applicability of the EC law within Irish
(^7) Phelan, str. 308. (^8) The only “quasi-direct” applicability of international treaty appears in the situation when Irish legal norm explicitly refers to a material regulation in an international treaty of fore- ign legal order.
territory is based on the explicit constitutional authorisation and supple- mentary Irish legislation analogous to the European Communities Act in the United Kingdom.
3. Membership of Ireland in the European Union in the
Irish constitution
3.1. Constitutional amendments initiated by the Irish accession to the EEC In 1973 when Ireland joined the EEC, the Irish legislators have cho- sen one of the most simple formulations of the constitutional basis of the participation in the project of the European integration (if one leaves aside the possibility to ignore the European integration in the constituti- onal text at all). On June 8, 1972, the constitutional article No. 29 which regulates the external relations of the Irish republic, was amended. A new “European” paragraphs which were added stated : The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Ener- gy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligati- ons of membership of the Communities, or prevent laws enacted, acts done or measures adopted by the Communities or by the institutions the- reof, from having the force of law in the State. In 1992, during the process of ratification of the Maastricht Treaty, the second paragraph was amended (and re-numbered) in order to inclu- de also acts of the EU and special agencies within the EU.
3.2. Constitutional amendments initiated by Single European Act, Maastricht Treaty and Amsterdam Treaty The Single European Act was signed by Ireland at the Luxembourg summit in December 1985. The ratification procedure was complicated by the judicial intervention in case Crotty v. An Taoiseach (discussed bellow) and referendum held on May 26, 1986. The Constitution have reflected
3.3 European Communities Act 1972 The constitutional regulation of the EU membership does not, howe- ver, ensure that Ireland shall perform all its obligations according to the Community law. Ireland had to ensure that, in spite of tradition of dua- list approach to the external legal sources, Irish institutions will respect and enforce the EC law including its specifics of principles of priority and direct effect. Consistency between Irish and Community legal order shall be ensu- red/secured by the constitutional article No. 29.4.7. which declared all acts of the Irish state “necessitated” by the EEC (now EU) membership are considered to be compatible with the Irish constitutional system^10. Then, the Constitution guarantied the EC secondary legislation (such as e. g. directives and regulations) the legal strength of a law in within the Irish territory. Formulation used in the Constitution remains only little doubts that principle of priority and of direct effect of the EC law in Ireland is accep- ted – which is supported even by case-law of the Supreme Court^11. Howe- ver, the Irish constitution does not solve all potential problems of the interpretation and application. First, the scope of the meaning of the “necessitated” is unclear. Secondly, the question of inconsistency between an older EC norm and more recent Irish norm is not solved. From the position of the EC law, even older Community norm should take priority over every Irish law and the date of its adoption should not have any importance. In contrast to the EC position, some member states applied the doctrine which used principle “lex posteriori derogat priori” for the conflict between EC secondary norm and domestic laws. A certain “cook-book” or “manual” for Irish administration and judi- ciary is the European Community Act from 1972 which was also descri- bed as “vehicle of the implementation of the EC law”^12. This Act is a rela- tively short piece of legislation containing (it its current version) seven
(^10) No provision of this Constitution invalidates laws enacted, acts done or measures ado- pted by the State which are necessitated by the obligations of membership of the Euro- pean Union or of the Communities, or prevent laws enacted, acts done or measures ado- pted by the European Union or by the Communities or by the institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State. (^11) Pigs and Bacon Commission v. Mc Carren (1982). (^12) Byrne, McCutcheon: The Irish Legal System, Butterworths (3rd (^) ed.) 1998, 252.
articles. The most analysed part of the Act is the provision which gives individual ministers power to make regulations in order to incorporate EC law into Irish legal system. The ministerial regulation developed itself into an effective system of safeguarding Irish obligations according to the EC/EU membership, albeit the democratic character of the system was questioned before courts.^13 Even one of the proposals for amendment of the Czech Constitution contained analogous mechanism. According to the mechanism proposed, the Czech government should have power to adopt regulations with legal force of law which approximate Czech law to the Community one. However, this proposal has not survived the deba- te in the Czech Parliament.
4. Position of Irish Judiciary
4.1. Constitution Review in Ireland Irish Constitution permits a review of compatibility of “normal” law/acts with the Constitution. However, there is no special judicial or administrati- ve institution with such a task, analogous the Constitutional Court in Ger- many or Constitutional Council in France. In Ireland, the competence of constitutional review is vested in any High Court. The appellate body aga- inst a decision of the High Court is the Supreme Court in Dublin, whose decision is ultimate. The competence of the Irish judiciary has form of both concrete review (i. e. the court decides on the compatibility of the law which should be applied in the case before the court) and abstract review (the court decides on compatibility even in case of no actual controversy). The right to initiate the abstract review is limited to the President who can ask the Supreme Court for the review in the period between the adoption of law by the Irish Parliament and the signature of law by the President as the final formal step before the act enters into force. Irish Constitution does not explicitly regulate the right to review the compatibility of international treaties with the Constitution. This gap has been filled by the Supreme Court which repeatedly declared that such a competence exists. Therefore, the Supreme Court can declare an inter- national treaty (including EC/EU founding treaties) to be unconstitutio- nal and to block the ratification procedure. The logic of the Supreme Cour-
(^13) Meager v. Ministry of Agriculture (1994).
Finlay, held that “the authorisation given to the Irish state in the Consti- tution allows not only the accession to the EC as they were in 1973 as well to all its amendments unless the amendments do alter the scope or objectives in the significant way.” Further, the Supreme Court states that the European integration is a dynamic body and this dynamics is predic- ted by the article No. 29.4.3. Task for the Supreme Court was then, to decide whether the Single European Act remained in the limits which do not alter the scope or objec- tives of the European integration in significant way. The Court held that the vast majority of the SEA fulfilled such a test and did not require any consti- tutional amendment. The situation changed, however, in the review of the Political Co-operation which was a new mechanism of the co-ordination of external relations of the EC member states, formalised by the SEA. The Supreme Court decided with the very most narrow majority (3:2) and found the Political co-operation outside the scope of authorisation given by the Constitution. By the participation in the Political co-operation scheme, Ire- land would accept obligations limiting its freedom in the sphere of interna- tional relations. According to the Supreme Court, this would violate the characteristics of Ireland as “sovereign, independent and democratic state” (Art. 5) and the constitutional principle that the Irish government shall act “according the requirement of common good” (art. 6). Therefore, the ratification of the Single European Act required an amendment of Irish constitution which had been preceded by the refe- rendum. The constitutional conformity with post-SEA European Commu- nity membership has been restored by the simplest possible method – a sentence allowing the ratification of SEA has been added to the wor- ding of the constitutional article 29. Ratification of Maastricht and Amsterdam Treaties in Ireland was not accompanied by judicial intervention analogous to that in Crotty v. An Taoiseach. In both cases, it was the government itself which initiated the constitutional amendments reflecting the development of project of the European integration.
4.3. Other judicial decisions relevant for the Ireland – EC/EU relations Protection of unborn life is a sacrosanct of the Irish constitutional and political tradition. In the scale of possible approaches to the abortion issue, Ireland is situated on the very extreme protectionist position. In practice,
the abortion is prohibited in Ireland even in such extreme situations as the pregnancy caused by rape or pregnancy creating a serious medical risk for mother. Protection of unborn life and ban on abortions has even the constitutional basis in Ireland. In 1983–1992, Irish constitution contained article No. 40.3.3 which stated : “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” Importance of the abortion for the Irish participation in the project of the European integration was reflected even in the EU primary law. The Protocol No. 17 to the Maastricht declares that : “nothing (in this Treaties) does not influence application of the article 40.3.3. of the Con- stitution of the Republic of Ireland within the territory of Ireland.” In spite of the special protocol, the ban on abortion in Ireland have cre- ated a potential conflict between the Irish constitutional principle and the requirements of the acquis communautaire. The conflict is not concentra- ted in the very existence of the ban on abortion itself but in the prohibiti- on of two collateral activities: right to travel and right to information. Relatively common practice to travel to other EU states where abor- tion is legal medical activity, has developed in the Irish society. The Irish constitutional doctrine, however, did not consider this right to be unli- mited. Constitutional limits of this practise were analysed to its very extre- me in two leading cases of the 90’s. In the Attorney General v. X case (1992), the High Court prevented a pregnant 14-year-old rape victim from leaving Ireland to have an abortion in England. In appeal, the Supreme Court overturned this decision and allowed the girl to leave Ireland, ruling that “if it is established... that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoi- ded by the termination of her pregnancy, such termination is permissib- le”. Reviewing facts of the case, the Supreme Court concluded that there a substantial risk of suicide existed if the girl’s pregnancy not being ter- minated. In absence of such a risk, right of unborn child would prevail over the autonomy of the girl’s decision in spite of the circumstances of the case. The same logic was followed by the Irish judiciary in the Attor- ney General v. C Case (1998) where the right of a 13 year old girl, preg- nant as a result of rape, to leave Ireland for the United Kingdom in order to undergo a legal abortion there. The Irish court granted right to leave
laid down by law, information relating to services lawfully available in another state.” Constitutional provision on the information issue has been further elaborated by the “Regulation of Information Services outside the State for Termination of Pregnancies Act” in 1995. The Act enabled registe- red medical practitioners to provide pregnant women with advice on possibility to travel abroad to medical facilities where abortion is legal. The constitutionality of the Act has been confirmed by the Supreme Court. Third referendum proposal intended to incorporate a more mode- rate approach to the protection of unborn life by amending the con- stitutional test in the following way: “It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.” However, the proposal was defeated in the referendum and had no effect on the constitutional practice.
5. Treaty of Nice
The last constitutional change connected with the EU membership is currently in the process of relative turbulence. The Irish government inten- ded to amend the Constitution in the way analogous to amendments after Single European Act, Maastricht Treaty and Amsterdam Treaty. In the com- plex of three referenda (Nice Treaty, International Criminal Court and abolition of the death penalty), the Irish population (or its segment which participated in the referendum) rejected the ratification of the Treaty of Nice and the relevant constitutional amendment. Rejection of the ratification of the ES/EU primary law treaty is an uni- que experience of the Irish constitutional law, albeit not in the history of other member states. Therefore, three options are generally open: l (^) Ireland will not ratify the Treaty of Nice l (^) There will be another referendum (and consequent constitutional amendment) on the same issue while the Treaty remains unchanged. The more elaborated information campaign from the Irish govern- ment as well as higher number of Irish voters are expected then.
l (^) There will be another referendum (and consequent constitutional amendment) while the Treaty of Nice being partially renegotiated with Ireland receiving special opt-outs. This situation would be simi- lar to the procedure of ratification of Maastricht Treaty in Denmark in 1992–93.
6. Conclusion
Inter-relationship between Irish sovereignty and Irish membership in the European Union seems to have Janus-face. The “pro-European” face of the Celtic tiger reflects the constitutional authorisation of the EU mem- bership without any explicit reservations and/or limits as well as flexible method of implementation of acquis communautaire by ministerial regula- tions. The more traditional and nation-oriented face of the Celtic tiger con- tains the unclear and cryptic references to “common good” and “shared values of the Irish nation.” As so far, the most express emanation of the traditional approach to sovereignty has been the restrictions in the aborti- on issue. After Nice, the neutrality issue may become the second one. From the procedural point of view, Ireland has not provided example of an the intensive conflict between the governmental branches analo- gous to tensions between the Bundestag and the Constitutional Court in Germany. Instead, Ireland shows rather co-operative approach of legisla- ture, executive and judiciary to the EU participation where small “family- quarrels” (such as ratification of the Single European Act) are solved wit- hout great tension. After Nice, the direct intervention of the Irish voters may become the phenomenon which makes this harmony more questio- nable again. Concluding, Irish constitutional regulation of sovereignty and the European integration combines abstract and concrete approaches. Irish Constitution permits the ratification of concrete catalogue of European treaties. Further, it contains mechanism ensuring that the Irish domestic institutions could register, apply and enforce the whole complex of Irish obligations under Community law. On the other hand, Irish constitutio- nal system does not sign a bianco cheque to Brussels. The combination of international negotiation (special declarations and opt-outs for Ireland) and judicial interpretation ensures that areas which are extremely impor- tant for Irish self-identification, remain outside the EU intervention.
