• Former DUP Leader Baroness Foster told a House of Commons committee that many unionists “believed” Ireland’s territorial claim to NI was illegal.
  • This is a statement of opinion – an opinion that is neither backed up or opposed by any definitive court ruling.
  • Although the claim was in place for over 60 years, its legality or otherwise was never fully adjudicated in Ireland, in the UK or internationally.
  • Within Ireland, some relevant court rulings were made but these never pinned down what the territorial claim actually is, let alone identified any legal ramifications.
  • In the UK, and elsewhere internationally, the legality of the Irish State’s claim was never tested in court.

On 7 June, during an evidence session to the Northern Ireland Affairs Committee (NIAC) in the House of Commons, Baroness Foster was asked the following question by Committee Chair Simon Hoare MP:

“Do you think the unionist community in all of its manifestations has forgotten the enormous step that the Republic made in constitutionally giving up its territorial claim?”

In response, the former DUP Leader said:

“Well, you see, Chair, for many unionists, including myself, it was an illegal claim that should have been challenged on many, many occasions including by the European Union but it wasn’t… If something is wrong and shouldn’t have been there in the first place, ab initio – it shouldn’t have been there to start with. Getting rid of something that shouldn’t have been there in the first place isn’t really a big thing.”

Was Ireland’s “territorial claim” to Northern Ireland illegal? To what degree was it challenged in the courts? And what did this claim actually amount to?

  • Uncertainty

Although those questions seem straightforward, the answers are not.

Firstlyl, Baroness Foster did not actually assert that the claim was illegal. Instead, she suggested that that was the opinion of many unionists.

Opinions are not verifiably right or wrong. More interestingly, this opinion is neither at odds with nor supported by any proper legal determination.

Not only was the legality or otherwise of the territorial claim not fully tested in courts, the substance of the claim itself was never pinned down.

The territorial claim was the result of Articles 2 and 3 of the original 1937 Constitution of Ireland. The Irish government never chose to enact its constitutional claims in any meaningful way. Comprehensive interpretations of the original Articles 2 and 3 were never definitively ruled upon in Irish Courts.

Some rulings concerning those articles were made by Ireland’s Supreme Court. However, these included apparently contradictory readings of the constitution – readings that remained in place, without resolution, until the claim was rescinded in 1999.

Outside of Ireland, the Articles 2 and 3 were never tested in courts at all.

In effect, the meaning and consequences of these claims remained vague until they were removed.

  • The territorial claim

References to the “territorial claim” of Ireland generally relate to the original versions of Articles 2 and 3 of the Constitution of Ireland (Bunreacht na hÉireann). When it was first adopted in December 1937, those articles read:

Article 2

The national territory consists of the whole island of Ireland, its islands, and the territorial seas.

Article 3

Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by this constitution to exercise jurisdiction over the whole territory, the laws enacted by the parliament shall have the like areas and extent of application as the laws of Saorstát Éireann [Irish Free State] and the like extra-territorial effect.

The Constitution therefore distinguished between the nation (or ‘national territory’) and the state (or ‘extent of application …[of] laws’) of Ireland.

It understood the former to include Northern Ireland and recognised that the latter effectively would not – however, it still asserted “the right” of the Irish parliament and government to “exercise jurisdiction over the whole territory” at their own discretion. This was the territorial claim.

  • The Belfast/Good Friday Agreement and the end of the territorial claim

In 1998, the Belfast/Good Friday Agreement was negotiated in a bid to provide a solid political basis for a new era of peace in Northern Ireland.

The Irish Government was a party in these negotiations. One of the compromises within the agreement was that Ireland would rescind its territorial claim on Northern Ireland, pending approval by a majority of its citizens in a dedicated referendum.

That referendum took place on 22 May 1998, with 94% of participating voters agreeing to the terms. The text still reflects a broad definition of “the Irish Nation” and entitles anyone born anywhere on the island, including in Northern Ireland, to membership of that nation.

However, Article 2 no longer makes a blunt assertion about the “national territory” and Article 3 has abandoned “the right” of the Irish state to make laws beyond its established jurisdiction. The territorial claim is, therefore, no more.

  • What did unionists think?

Baroness Foster noted that the territorial claim was “for many unionists… an illegal claim”.

Unionist politicians described the original Articles 2 and 3 as illegal on numerous occasions.

For example, speaking in the aftermath of the 1998 Agreement, then Ulster Unionist Party leader David Trimble said:

“…the illegal territorial claim to Northern Ireland in Article 2 and 3 of the Irish Constitution has been removed and the South now accepts the legitimacy of Northern Ireland.”

While inter-party talks that would lead to the Belfast Agreement were taking place, DUP Leader the Rev. Dr. Ian Paisley proposed a motion to the Northern Ireland Forum seeking to condemn “the illegal and immoral territorial claim” of Ireland and calling for its “immediate and unilateral removal”.

  • Was the territorial claim illegal?

Ultimately this question was left contested.

The original Articles 2 and 3 set out a claim that was not acted upon. Their legality, legal status and implications were never fully tested in court in Ireland, the UK, or internationally.

Baroness Foster stated that the territorial claim “was an illegal claim that should have been challenged on many, many occasions including by the European Union but it wasn’t”.

Was it challenged on “many, many occasions”? It’s certainly fair to suggest, as Baroness Foster did, that this was not the case.

Some legal scrutiny and relevant rulings were made, but the Irish Courts never agreed on an interpretation of the provisions prior to their removal.

A judgment of the Supreme Court in 1977 held that the “national claim to unity [i.e., of Ireland and Northern Ireland] exists not in the legal but in the political order and is one of the rights which are envisaged in Article 2; it is expressly saved by Article 3 which states that the area to which the laws enacted by the parliament established by the Constitution apply”.

This understanding of Article 2’s territorial claim, i.e. that it was political rather than legal in nature, was reiterated in some legal cases but refuted in others.

An example of the latter occurred in the high profile McGimpsey v. Ireland, in which two Northern Ireland unionists challenged the legality of 1985’s Anglo-Irish Agreement on the basis it contravened terms of the Irish Constitution, including Articles 2 and 3. The  Supreme Court determined that while “Article 2 of the Constitution consists of a declaration of the extent of the national territory as a claim of legal right” nonetheless that “Article 3 of the Constitution prohibits, pending the re-integration of the national territory, the enactment of laws with any greater area or extent of application or extra-territorial effect than the laws of Saorstát Éireann [i.e., the 26 counties of Ireland] and this prohibits the enactment of laws applicable in the counties of Northern Ireland”.

This means that two different interpretations of the claim existed in Irish jurisprudence until the constitution was amended following the Good Friday Agreement:

  1. it was political rather than legal; and 
  2. it was legal, but any action taken under it would not take effect unless and until a United Ireland was in place.

There isn’t much other Irish case law related to the original claim. Partly this is down to the fact that Ireland’s claim to the right of the state to make laws applicable in Northern Ireland remained a claim and was not legally acted upon.

The fact that two competing, clashing interpretations of the meaning of Articles 2 and 3, made by Ireland’s Supreme Court, both remained in law until the Articles were amended shows that this question remained unresolved until it became irrelevant.

  • Other jurisdictions

The legality or otherwise of the territorial claim was never tested in the UK, or under international law.

Under UK law, any attempt by the Irish Government to exercise authority over NI territory under Article 2 could have been challenged in domestic courts but no such attempt was ever made.

FactCheckNI was unable to find details of any UK court proceedings relevant to the territorial claim. Ruling on the legality or otherwise of the text of the Irish Constitution itself is not in the gift of UK domestic jurisprudence so no challenge brought on this level would have been heard.

It was never challenged in the Courts of Justice of the European Union (CJEU) – although it is worth noting that the EU has usually stayed out of territorial disputes within or between its Member States. For example, the CJEU opted not to rule on a case concerning an ongoing territorial dispute between two of its members, Croatia and Slovenia. 
One theoretical possibility would have been to test the legality of the territorial claim via, for example, the International Court of Justice or its precursor the Permanent Court of International Justice, where the United Kingdom was a founding member and Ireland was accepted for membership in 1923. The PCIJ did hear cases concerning territorial disputes and the scope or applicability of the legal principle of self-determination and right to secession, but the situation on the island of Ireland was never brought before the Court.