The State and Northern Ireland
Originally, Article 2 of the Constitution purported to include as part of the State, the whole of Ireland, its islands and territorial seas. The original Article 3 of the Constitution provided that pending reunification, then, the laws enacted by the Parliament established by the Constitution shall apply to the like area and extent of application as laws enacted by the Parliament that existed immediately prior to coming into operation of the Constitution (the territory of the former Irish Free State, the 26 Counties.)
The Anglo-Irish Treaty had provided that Northern Ireland could elect not to be part of the Irish Free State, which it did. Its government elected to remain part of the United Kingdom. See separately, sections on historical constitutional law.
Following the 1998 Amendment pursuant to the Belfast “Good Friday” Agreement, the revised Article 2 of the Constitution declares that the State consists of the area formerly comprising the Irish Free State and laterally Éire Ireland or as described under the Republic of Ireland Act 1948, the Republic of Ireland (the 26 Counties).
Under Article 3, it is the firm will of the Irish nation in harmony and friendship to unite all the people who share the territory of the Island of Ireland in all the diversity of their identities and traditions, recognising that a united Ireland should be brought by it only by peaceful means with the consent of the majority of people, expressed in both jurisdictions in Ireland.
In Wyden v. An Taoiseach, Supreme Court rejected an attempt to prevent the new Articles 2 and 3 coming into force. The coming into force required a declaration by the government that the Belfast Agreement was being implemented.
Northern Ireland & Citizens
Article 2 provides that it is the entitlement and birthright of every person born in the Island of Ireland which includes its islands to be part of the Irish nation.
The Belfast Agreement contained a declaration on citizenship by which the British and Irish governments declared that it was their joint understanding that at the term the people of Northern Ireland under the Agreement meant for the purpose of giving effect of the provision, all persons born in Northern Ireland and having at the time of their birth at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restrictions on their residence. This is relevant to citizenship.
After ratification of the Belfast Agreement, and on commencement of Articles 2 and 3, the Irish Nationality and Citizenship Act 2001 gave effect to the citizenship entitlements under Articles 2 and 3. To large extent, these did not radically change the existing legislation which had provided for the right of every person born in Ireland to be an Irish citizen from birth.
Following legal anomalies and perceived abuses, a 2004 Amendment provided that notwithstanding any other provision of the Constitution a person born in the island of Ireland which includes its islands and seas, who does not at the time of birth have at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizen or nationality unless provided for by law. The Irish Nationality and Citizenship Act 2004 narrowed the categories of persons entitled to automatic Irish citizenship.
The Belfast (Good Friday) provides that institutions with executive powers and functions that are shared between these jurisdictions may be established by the respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the Island. See our separate section on Northern Ireland in relation to the all Ireland bodies and the North-South Ministerial Council.
Article 29.7.2 provides that any institution established under the British Irish 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 this Constitution conferring a like power or function on any person or organ of State appointed under or created or established under this Constitution.
Any power or function conferred on such an 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 and any such person or organ of State as aforesaid.
See generally the sections on Law of the Sea in relation to the extent of Ireland’s territorial sea. The United Nations Convention on the Law of the Sea reflects modern customary international law. The territorial sea is the sea close to the State over which international law allows the State to regulate. They include jurisdiction over vessels, warships, police, revenue functions, fishery rights and defence zones.
The United Nations Convention provides that the sovereignty of a coastal State extends beyond its land, territory and internal waters to a belt of sea adjacent to its coast described as the territorial sea. The sovereignty is exercised subject to provisions of the Sea (Convention of Law of the Sea). This is subject to the right of innocent free passage for ships from other States. The Maritime Jurisdiction Act has been amended so that the original three-mile limit was extended to 12 nautical miles.
The contiguous zone is provided under the Sea-Fisheries and Maritime Jurisdiction Act. It is an area between the outer limit of territorial seas and 24 nautical miles from the nearest baseline. The 2006 Act provides for an exclusive economic zone of 200 nautical miles from the nearest baseline. Governments may make arrangements with other State zones in accordance with equitable equidistant lines. The exclusive fishery zone was extended in 1979 to 200 miles.
The Continental Shelf extends out many hundred miles. Under the Convention on the Law of the Sea, the coastal State exercises over the Continental Shelf, sovereign rights for the purpose of exploring and exploiting its natural resources. These rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its resources, no one may undertake these activities or make a claim to the continental shelf without the express consent of the coastal State. The Convention does not provide for its outer limits or for borders.
Under the Continental Shelf Act 1968, the Government has designated areas as the continental shelf. The Act extends criminal and civil jurisdiction to places, including installations on the continental shelf.
The Minister may take measures to safeguard navigation and protect installations. The boundary with the United Kingdom has been settled by agreement. In 2013, Ireland and the United Kingdom entered an agreement on establishing a single maritime boundary between the exclusive economic zone and the respective extent of the continental shelf of both countries.
Generally, the rules of a State only apply within its boundaries. However, legislation in certain areas allows for prosecution of offences committed outside the State.
Article 29.8 of the Constitution permits State authorities to prescribe standards of behaviour to persons outside the national territory in accordance with general principles of international law. Criminal and regulatory laws may apply to citizens in respect of certain crimes committed worldwide.
Jurisdiction over activities directed against the security of the State or class of State interests may be exercised. There has been jurisdiction since the 1970s providing for jurisdiction in the State in respect of certain offences committed in Northern Ireland.
There is an increasing number of instances of extra territoriality in respect of certain types of crimes. This includes certain offences against children and certain terrorist type offences.