Conduct of International Relations
The conduct of international relations is generally a matter for the executive and government in most States. Typically, the legislature or Parliament must authorise the use of armed force. Accordingly, in Ireland, the government has primary responsibility for foreign policy. The Dail must authorise a declaration of war. Treaties do not become part of the law of the State unless approved by the Dail, where they are a charge on public funds.
The external relations of the State are exercised by or on the authority of the Government. Generally, most such functions are undertaken by the Department of Foreign Affairs and Minister for Foreign Affairs through the diplomatic service which is under the auspices of the Department.
As originally adopted, the Crown retained a theoretical role in the exercise of external relations. The Republic of Ireland Act 1948 provided that the President may on the Government’s authority and advice, exercise the executive power and any executive function of the State in or in connection with its external relations. This commenced on the declaration of the Republic of Ireland and the formal leaving of the Commonwealth in 1949.
Article 49 provides that Ireland affirms its devotion to the ideals of peace and friendly cooperation amongst nations founded on international justice and morality.
Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination. Ireland accepts the generally recognised principles of international law as its rules of conduct in relations with other States.
Under the Executive Authority (External Relations) Act, the Crown had represented Ireland in international affairs for limited purposes through external association with the Commonwealth. Article 29.4.2 provides:
for the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions if any, as may be determined by law avail of or adopt any organ, instrument or method or procedure used or adopted for the like purpose by the members of any group or League of Nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern. This formerly permitted limited association with the Commonwealth.
The European Communities and Union
It did not of itself permit, admission to the European Union, nor did it allow expansion of the role of the European Union under the Single European Act. The Constitution has specifically provided for ratification of certain specified EU and other international instruments. The general approach has been to authorise the State to ratify or become party to the relevant institutions.
Accordingly, Ireland was authorised to become a member of the original European Communities, the European Coal and Steel Community, The European Economic Community and the European Atomic Energy Community. Consequent on a 1987 referendum, it was authorised to ratify the Single European Act.
It was specifically authorised to adopt, the Maastricht and Nice treaties. It was later authorised to adopt the Amsterdam Treaty and the Treaty of Lisbon, which itself provides for further power of amendment to a certain extent. It was also authorised to exercise discretions regarding enhanced cooperation on domestic and justice matters with the approval of both Houses of the Oireachtas.
Further referenda have authorised the ratification of the Treaty on Stability, Coordination and Governance in relation to the Euro. See generally the sections on the European Union and the Constitution.
The State was specifically authorised to become party to the British-Irish Agreement done at Belfast, 10 April 1998 governing relations with Northern Ireland. In parallel with the provisions in respect of the European Union, it has provided that:
any institution established under the Belfast Agreement may exercise the powers and functions thereby conferred on it in respect of all or any part of the island of Ireland, notwithstanding any other provision of the Constitution conferring a like power or function on any person or any organ of State, appointed under, created or established by or under the Constitution. Any power or function conferred on such institution in relation to the settlement or resolution of disputes or controversies may be in addition to or in substitution for any like power or function conferred by the Constitution on any such person or organ or State. See generally the sections on relations with Northern Ireland and the institutions established under British-Irish Agreement.
Referenda have also specifically permitted ratification of the statute of the International Criminal Court and the Agreement on Community Patents.
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 shall have been approved by Dáil Éireann. This does not apply to agreements or conventions of a technical or administrative character.
No international agreement shall be part of the domestic law of the State, save as shall be determined by the Oireachtas. See the sections on international law in relation to the law on treaties, and international agreements.
The UN charter requires Ireland to register treaties to which it is party. The UN publishes treaties in its United Nations Treaty Series. The State has published its own domestic Treaty Series (Department of Foreign Affairs).
The requirement that the Dail approves treaties imposing a charge may be give in legislation or by Dáil resolution.
In State (Gillen) v Governor of Mountjoy Prison held that a treaty is not effective, which imposes a charge on public funds, unless ratified by the Dail. It is not enough that the implementation of the Treaty may involve time and effort on the part of State officers. However, if expenses are required to be met by the public funds, the Dail’s approval is required, so that the Extradition Treaty which had not been approved of by the Dail was held to be invalid.
In Boland v. An Taoiseach, it was sought to hold the Sunningdale Agreement nvolving power-sharing in Northern Ireland, a Council of Ireland and r institutional structures in Northern Ireland to be unconstitutional. The State had accepted that the status of Northern Ireland could not be changed without a vote of the majority. This was argued to be contrary to the then Article 2 and 3 of the Constitution. This was rejected by the Supreme Court.
In Crotty v. Taoiseach, the Supreme Court famously held the Single European Act to be outside the competence of the State to ratify. It involved a major expansion of the competences of the then European Communities. The Supreme Court held that the Government was subject to the Constitution, even in relation to international foreign relations.
In the conduct of a State’s external relations, as in the exercise of the executive power and in other respects, the Government is not immune from judicial control, if it acts in a manner or for a purpose, which is inconsistent with the Constitution.
In Crotty, it was said:
“the freedom to decide matters of foreign policy… does not carry the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it, save by particular procedures and to bind the State in its freedom of action in foreign-policy”.
However, the Constitution, “clearly foresaw the possibility of being associated with group of nations for the purpose of international cooperation on matters of common interest and provided for the possibility of adoption of a common organ or instrument.”.
The Supreme Court held that Part II of the Single European Act dealing with expansion of EU competence was constitutional because the Europeam Communities Treaties themselves contemplated evolution, provided they did not radically depart from the original structure. The part dealing with cooperation in foreign policy was found by the majority of the Supreme Court to be unconstitutional.
In Pringle v. Government of Ireland, the Government’s entry into treaty on the European Stability Mechanism was challenged on the basis that it involved a fettering of sovereignty outside the scope of what was permissible under prior EU treaties.
The Supreme Court recognised that while the executive could not abrogate its power, enter into an agreement to subordinate its power to another body, or qualified servant, power to formulate foreign policy. The Supreme Court held that there was not a binding commitment to alienate to other States the conduct of foreign policy and that there was no fundamental transformation or diminution in sovereignty. There was no agreement to subordinate or submit the exercise of powers bestowed by the Constitution to other States.
Treaties do not take effect in Ireland unless they are made part of domestic law by legislation.
International law obligation subsist as between the States unless made part of domestic law. Treaties may place obligations on the State but they are not generally specifically enforceable by citizens until enacted domestically.
In interpreting legislation regard may be had to treaties which bind the State, when legislation is enacted to give effect to a treaty, the terms of that treaty may be reviewed in interpreting the legislation.
It appears that general principles of international law may become part of domestic common law, without necessarily being adopted by legislation. However, it does not follow that the State may be enjoined from acting against customary international law. Customary international law, may instead, may inform common law principles in matters between private persons.
The provision, Article 29.3 by which it is declared that Ireland accepts the generally recognised principles of international law as its rules of conduct in the relations with other States, does not create private rights. In Re Ó Laighléis 1960, the Supreme Court was unveiling to consider that domestic legislation might be displaced by customary rules of international law.
International law has evolved so that individuals may be the subject of international laws in certain circumstances. See generally the sections on international law. However, Article 29.3 by its terms, refers primarily to conduct and the relationship between States.
After the Belfast Agreement, Article 29.8 provided that the State may exercise extraterritorial jurisdiction in accordance with generally recognised principles of international law.
Historically, the States do not recognise and enforce each other’s penal and revenue law. However, EU States now under EU legislation, EU States are obliged to recognise each others’ tax, debts and liabilities.