International Law in Ireland
By Article 29 of the Constitution, Ireland affirms its devotion to the ideal of peace and friendly cooperation between nations founded on international justice and morality. It also affirms adherence to the principle of the pacific settlement of international disputes through arbitration or judicial determination. Additionally, it acknowledges the principles of international law as its rules of conduct in relationships with other States.
Several cases have attempted to challenge acts or executive actions on the basis of inconsistency with international law. Such attempts have mostly failed, except where specific international instruments have been adopted into Irish law. While certain cases have suggested that courts might consider the legality of actions relative to international law, most have taken the view that these provisions do not confer rights on individuals in the event of a conflict between international law and domestic law.
There is some authority suggesting that international law may have an effect domestically, particularly in relation to international customary law. For instance, principles such as the immunity of Sovereign States and their rulers, rooted in international law, are deemed part of domestic law by virtue of Article 29(3).
Treaty Making Authority
The executive power of the State concerning external relations is to be exercised by the government in accordance with Article 29. The government, for the purpose of exercising the State’s executive functions in connection with external relations, may adopt any organ, instrument, or method of procedure used for similar purposes by other groups or League of Nations with which the State is or becomes associated for international cooperation on common concerns.
The original provision accommodated the sole remaining function of the Crown under the Executive Authority External Relations Act 1936. This was ultimately replaced by the Republic of Ireland Act 1948, which provided that the President, on the authority and advice of the government, may exercise the executive power or any executive function of the State in connection with external relations.
Accordingly, the President accredits diplomatic representatives and executes Head of State agreements on behalf of the State, while routine agreements are executed by the government. The departure from membership of the Commonwealth was also addressed.
There is a presumption of constitutionality in the State’s international dealings and foreign policy. However, the courts have occasionally shown willingness to subject the State’s actions to judicial review on constitutional grounds. This was notably seen in the case challenging the Single European Act in Crotty v Attorney General, where the majority of the Supreme Court held that the government was not entitled to enter into arrangements with other States that unduly restricted freedom to decide matters of foreign policy.
The courts do not have the power to compel the government to ratify international agreements; this is solely a matter for the Executive and the Oireachtas. Article 29(5) stipulates that every international agreement to which the State becomes a party shall be laid before Dáil Éireann.
The State shall not be bound by any international agreement involving a charge on funds unless the terms of the agreement have been approved by Dáil Éireann. However, this does not apply to conventions of a technical or administrative character.
Article 29(6) provides that no international agreement shall be part of the domestic law of the State unless determined by the Oireachtas. Therefore, although the European Convention on Human Rights was signed in 1950 and ratified in 1953, it did not become part of the domestic law of the State until legislation made it so in 2003.
In several cases, the Supreme Court confirmed that the protections of the Convention could not and did not become part of domestic law unless specifically made so. For instance, in the famous Norris v Attorney General case, the clear principles established by the ECHR were recognized but were not part of Irish law. However, applicants could apply directly to the European Court and obtain a ruling that would effectively be binding on the State as a matter of international law.
The Irish approach aligns with the dualist approach internationally. According to dualist principles, international law and domestic law are separate systems. International obligations must be specifically incorporated into domestic law to become part of it. This approach views international law as regulating relationships between States and national law as regulating rights of individuals within States.
Consequently, if an individual seeks to assert an international right before national courts, only national law will be applied. Any breach of international obligations by the State becomes a matter for an international court, not a domestic one, potentially incurring international responsibility. The dualist principle is justified on the basis that it prevent governments and the executive from creating laws without Parliamentary content.
International agreements may have an indirect legal effect, as the State may agree internationally to comply with them, creating legitimate expectations. Domestic legislation may be interpreted in accordance with international obligations.
International laws are commonly implemented into domestic law through legislation. Similarly, if a finding is made against the State internationally, such as under the European Convention of Human Rights before 2003, the State has traditionally amended its laws to conform. An alternative approach would be to enter a reservation to the obligation.
The monist theory, on the other hand, holds that international law and national law are two elements of a single body of law. They are viewed as manifestations of the same thing. The monist theory assumes the superiority of international law in case of conflict with national law. It argues that international law deals with higher-order matters and provides a, for example, guarantee for human rights protection, justifying the superiority of human rights law over ordinary law.
Both approaches acknowledge that international and domestic law may address the same subject matter and issues. A third intermediary view, advocated by Fitzmaurice and Anzilotti, posits that international and domestic law never operate on the same subject matter; they do not contradict each other as systems of law.
National v International Law
When obligations under the law conflict, conflict of laws rules apply to determine which is given effect in particular circumstances. However, the practical effect of these differences in theories may not be significant.
A State may not use national law in international relations as a basis for avoiding or justifying a breach of international law obligations. It cannot use national law as authority to do something internationally unlawful.