Oran Doyle: Irish Unification: Processes and Considerations

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 Belfast/Good Friday Agreement (GFA)—the agreement between the parties in Northern Ireland and the related international treaty between the British and Irish Governments that was central to the peace settlement in 1998—built a new model of power-sharing politics on the foundation of a territorial compromise. On the one hand, Ireland and Irish Nationalists accepted the legitimacy of Northern Ireland’s status as a component part of the United Kingdom. They thereby relinquished a territorial claim to the whole island of Ireland that had been advanced in different ways since independence and partition of the island of Ireland in 1921-22. On the other hand, the United Kingdom and Ulster Unionists accepted that Northern Ireland would only remain part of the United Kingdom for as long as a majority of people in Northern Ireland so wished it. They thereby relinquished the right of the United Kingdom to preserve its own territorial boundaries.

In 1998, Irish unification seemed a distant prospect. The priority for most Irish nationalists—and certainly for all Irish Governments—was to make the new political arrangements work, not to advocate for a united Ireland. But demographic change was slowly producing an electorate more open to unification, and Brexit has now dramatically increased the attractiveness of a united Ireland replete with EU membership. As a result, although opinions on the likelihood of a united Ireland diverge widely, the territorial compromise of 1998 is under pressure.

The 1998 Agreement provides some (albeit not extensive) guidance as to the procedures through which unification could occur. On one reading, the Agreement envisages the standard UK approach to referendums that was subsequently practised for Scottish Independence and Brexit. First let people vote for a broad political direction; then require governments with conflicting objectives to negotiate a deal that respects that popular mandate.

This Brexit-referendum-model would prevent voters from fully understanding what they are voting on. Governments would be under a political imperative to do something, but would lack a political mandate for any particular course of action. This symposium is predicated on the belief that if unification is to occur, issues should be explored in advance and voters should have a clear idea of what they are voting for.

Part I of the Symposium explores the processes through which unification could occur from the perspective of public international law, United Kingdom law, and Irish law. Aoife O’Donoghue places Northern Ireland within general international law on territorial change, with a particular focus on the terms of the 1998 Agreement.

Colin Murray explores the implications of the Northern Ireland Act 1998, frequently characterised as the Constitution of Northern Ireland. Oran Doyle explores the implications of the Irish Constitution, itself amended in 1998 to reflect the current territorial compromise.

Part II of the Symposium identifies some of the constitutional issues that would need to be addressed in the context of unification. Of course, unification would involve far more than these constitutional issues—voters are likely to be as concerned by the future of the health service, for instance—but the constitutional decisions will at least frame many of the other issues.

Brendan O’Leary addresses what is probably the core constitutional question: would a unified Ireland be a unitary state—essentially just absorbing Northern Ireland into the existing Irish state—or would some special status for Northern Ireland continue, whether through devolution, federation, or confederation?

If unification occurs, it is likely that close to one sixth of the population of the new state will have objected to it. Brice Dickson therefore identifies concerns that former Unionists, i.e. those with a continuing British identity, might have about the structure of a united Ireland. David Kenny addresses the same questions from the opposite perspective: what concerns might the citizens of the current Irish state, as well as nationalists in Northern Ireland, have about a united Ireland?

Managing the sectarian divide between unionists and nationalists can sometimes dominate discussion of constitutional development. Redressing this balance, Colin Harvey considers the importance of rights and equality in a unified Ireland. Etain Tannam then concludes this Part with a consideration of the role of the British and Irish Governments during and subsequent to any unification process.

Discussion of Irish unification often occurs within a national—and perhaps nationalist—bubble. Part III of the Symposium aims to pierce that bubble by drawing on the experience and expertise of those who have considered other territorial adjustments and unification processes.

Anna-Katharina Mangold suggests some lessons from the process of German unification. Cheryl Saunders draws on her experience of constitutional transitions around the world, including her work as Senior Technical Advisor to the Constitution Building Program of International IDEA.

The participants in this symposium hold a wide range of views on the desirability of a united Ireland. Some may support it; some may oppose it; some may have no view at all. They all share their expertise, however, in the hope of informing public discussion and provoking public debate.

Oran Doyle is a professor in law at Trinity College Dublin and a visiting faculty member at the University of Pennsylvania Carey Law School.

(Suggested citation: O. Doyle, ‘Irish Unification: Processes and Considerations’, U.K. Const. L. Blog (12th Feb. 2020) (available at https://ukconstitutionallaw.org/))