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Changed utterly? continuity and change in the regulation of Irish identities 2006

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CHANGED UTTERLY? CONTINUITY AND CHANGE IN THE REGULATION OF IRISH IDENTITIES by CIARAN MCNAMEE LL.B., Queen's University of Belfast, 2003 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF BRITISH COLUMBIA November 2006 © Ciaran McNamee, 2006 ABSTRACT The Supreme Court decision of A.O. & D.L. v. Minister for Justice [Lobe] and the Irish Citizenship Referendum of 2004 had the cumulative effect of restricting both the rights associated with Irish citizenship and the class of persons entitled to possess it. This thesis considers the dynamics underpinning those restrictions. The history of the regulation of Irish identities is not simply a story of ever tightening border controls. The Nineteenth Amendment to the Constitution of Ireland in 1998 seemingly widened the class of person entitled to call themselves Irish. Moreover, the Republic of Ireland's membership of the European Union has reduced the state's ability to exercise control over its borders and narrowed the distinction between Irish citizens and those of other EU countries. I argue that recent developments in the regulation of Irish identities demonstrate the Janus-like nature of modern law. Accepting the arguments advanced in Lobe and the Citizenship Referendum necessitates the embrace of contradiction, not rationality. They illustrate both continuity and change in the conception of what it means to be Irish. Measures to reduce perceived "abuse" of Irish citizenship seek to preserve a particular concept of Irishness and yet simultaneously serve to transform it. However, with its adherence to the creed of modernity - reason, objectivity, and the rejection of ambiguity - modern law cannot acknowledge these tensions. ii TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iii ACKNOWLEDGMENTS v CHAPTER ONE 1 1.1 Introduction 1 1.2 The Restriction of Citizenship: A Wider Context 3 1.3 Citizenship, Sovereignty and the Nation 5 1.4 Why Examine Lobe and the Citizenship Referendum Together? 6 1.5 The Citizenship Referendum: A Party Political Issue? 8 1.6 Border Control: A Global Issue 11 1.7 A Note on Terminology 13 CHAPTER TWO 15 2.1 Introduction • 15 2.2 Defining a Citizen 16 2.3 Citizenship 17 2.4 Challenges to Citizenship 19 2.5 Sovereignty .•••23 2.6 Models of Sovereignty 24 2.7 Classic Sovereignty 24 2.8 Liberal Sovereignty 25 2.9 Cosmopolitan Sovereignty 27 2.10 A Critique of Held's Model of Sovereignty 29 2.11 The Decline of Sovereignty? 31 2.12 Cosmopolitanism and Exclusivity 33 2.13 The Nation 36 2.14 The Ethnic Nation 37 2.15 The Nation as a Modern Phenomenon 40 2.16 The Impossibility of Nation 45 2.17 Law and Nation 46 2.18 The Cosmopolitan Nation 47 2.19 Conclusion 52 CHAPTER THREE 53 3.1 Introduction 53 3.2 Ireland and Sovereignty 54 3.3 Irish Citizenship 1922 - 1937 57 3.4 Irish Citizenship: 1937 - 1998 61 3.5 The Nineteenth Amendment to the Constitution of Ireland 65 3.6 Irish Sovereignty and the Rights of the Family 71 3.7 Challenges to State Sovereignty 83 3.8 Conclusion 86 CHAPTER FOUR 88 4.1 Introduction 88 4.2 Was a Citizenship Referendum Necessary? 89 4.3 The Contradiction of the Citizenship Referendum ....91 4.4 Judicial Interpretation of Article 2 94 4.5 Conceptions of Irishness 97 4.6 The Yes Campaign 99 4.7 Other Voices 106 4.8 The No Campaign 113 4.9 Legislative Changes Following the Referendum 117 4.10 Conclusion 119 CHAPTER FIVE 121 BIBLIOGRAPHY 127 iv ACKNOWLEDGMENTS I would like to thank my supervisor Dr. Catherine Dauvergne and second reader Dr. Ljiljana Biukovic for their support and enthusiasm - despite many missed deadlines - throughout my time at the University of British Columbia. I owe a huge debt to the Faculty of Law in general, and in particular to Professors Susan Boyd, Gordon Christie, Michelle LeBaron, Wes Pue and Steve Wexler, all of whom I had the pleasure of studying under. I would like to thank Professors Margaret Hall and Doug Harris for whom I worked as a Teaching Assistant for two years and Professor Ian Townsend-Gault who provided moral (and vehicular) support on many occasions. I would also like to thank the Administrator of the Graduate Law Program, Joanne Chung for all her help during my time in Vancouver. * I must extend thanks to my friends and family for their encouragement to apply to UBC. In particular I would like to thank my mum, dad, brother Johnny, auntie Ethne, Vicky Conway, Miriam Crozier and Gareth Mulvenna. I would like to thank all my friends in Vancouver for contributing to a wonderful chapter in my life. In particular, the students of the Graduate Law Program, Cindy Baldassi, Jessica Otte, Kevin Park and Robert Russo. I would also wish to thank Eileen Fegan, George Pavlakos and Rory O'Connell at Queen's University Belfast for providing me with the references to undertake graduate study and to Siobhan Mullally whose generous decision to allow me to read early transcripts of her work was invaluable to my own study. CHAPTER ONE 1.1 Introduction In the last decade, the regulation of Irish citizenship has become more restrictive. In A.O. & D.L. v. Minister for Justice [Lobe]? the Supreme Court upheld an appeal against a change in policy by the office of the Minister for Justice, Equality and Law Reform to assert tighter control of Irish borders. It held that refusing to let the non- national parents of a dependent child-citizen remain in the state did not violate the rights of that citizen. Following the 1990 case of Fajujonu v. Minister for Justice? the Republic of Ireland had allowed non-nationals with dependent citizen children to remain in the state. Fajujonu ruled that child citizens had a prima facie right to reside in Ireland with their non-national parents, subject to the exigencies of the public good. In Lobe, the Supreme Court held that the state had the right to deport the non- national parents of Irish child citizens, even if that meant that, as a consequence, the children would have to leave the state. The second restriction was effected by the approval of the Twenty-Seventh Amendment to the Constitution of Ireland, and subsequent introduction of the Irish Nationality and Citizenship Act 2004 [the 2004 Act].4 The Twenty-Seventh Amendment was billed as a "Citizenship Referendum." It was portrayed as a 1 A.O. & D.L. v. Minister for Justice, [2003] 1 IR 3 [Lobe]. 2 Fajujonu v. Minister for Justice, [1990] 2 IR 151 [Fajujonu]. 3 Ibid at 162. 4 Irish National and Citizenship Act 2004 (I.) 2004, c.38. 1 necessary precursor to the introduction of legislation to restrict entitlement to Irish citizenship through birth - a right previously enjoyed by anyone born in the island of Ireland.5 The Government claimed that Article 2 of the Constitution of Ireland had raised the entitlement to Irish citizenship through birth to a constitutional right.6 This study considers why the Republic of Ireland restricted both the class of persons entitled to claim Irish citizenship and the rights associated with possessing it. Others have already claimed that the decision in Lobe and the restrictions introduced by the 2004 Act are indicative of social change in Ireland. I agree with them, however, I argue the restrictions do not signal a fundamental change either in the regulation of Irish citizenship or the dominant national narrative of the Republic of Ireland. I examine the continuities as well as the changes between the regulation of Irish citizenship before and after the recent developments. Moreover, Lobe and the Citizenship Referendum cannot be characterized as simply part of an increasingly restrictive border control campaign. The European Union [EU] has to some extent curtailed its member states' ability to exert control over their national borders, at least in the case of EU nationals, and reduced the distinctions between citizens of different member states. Article 9.2.1 of the Constitution of Ireland 1937 now states "Notwithstanding any other provision of this Constitution^ person born in the island f Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law. The provision is limited to those born after it was enacted by Article 9.2.2. 2 1.2 The Restriction of Citizenship: A Wider Context The decision of the Supreme Court in Lobe was in many ways unremarkable. Whilst the factual scenario which led to the Lobe case is rare in a European context, this is indicative of how anomalous citizenship laws in the Republic of Ireland were prior to 2005. The Republic of Ireland was the only EU state to award citizenship to persons simply because they were born within a prescribed jurisdiction. The rarity of such a scenario in a European context makes a comparison with Lobe difficult. However, outside the EU, among states which award citizenship on the basis of a person's place of birth, the right of the state to control non-nationals within its borders is typically privileged over the right of the child citizen to remain in the state.7 Considered on an international level, the Irish Supreme Court decision in Lobe cannot be seen as particularly harsh either. The decision stressed that the Irish children were not being deported. Rather, their leaving the state was an indirect consequence of the deportation of their non-national parents. The Supreme Court stated that the children had the right to return to the state when they ceased to be dependent upon their parents. The rights of the Irish child-citizen in the wake of Lobe compare favourably with British citizens born to non-national parents. Caroline Sawyer points "Citizenship Referendum: The Government's Proposals," online: Department of Justice, Equality and Law Reform <http://www.iustice.ie/80256E010039C5AF/vWeb/flJUSO5ZJF5C- en/$Fi le/Govtproposals ,pdfi>. 7 Siobhan Mullally, "Citizenship and Family Life in Ireland: Asking the question 'who belongs?'" (2005) 25(4) Legal Studies 578 at 593. 8 Lobe, supra note 1 at 75, Murray J. 3 out that a British citizen has no right against expulsion, either in domestic or European law.9 Indeed, it is because the recent restrictions enacted by the Republic of Ireland in regard to citizenship law are common-place throughout the world that they are interesting. I argue that measured against the values modern law purports to uphold, the current Irish citizenship regime is unjust. In Lobe, the Supreme Court drew a distinction between the rights enjoyed by children born to non-national parents and those born of Irish citizens; as such, it is difficult to see all citizens as equal before the law. During the Citizenship Referendum, the restriction of entitlement to Irish citizenship was justified by depicting non-nationals with Irish children as lazy, work- shy, selfish parents by virtue of their non-Western cultural background. The use of such rhetoric to describe an entire class of persons is again contrary to the values of equality that law claims to promote. Many of the difficulties with the current regime were present, albeit less conspicuously so, under its predecessor, the Irish Nationality and Citizenship Act, 1956 [the 1956 Act}}0 The category of persons entitled to Irish citizenship under the 1956 Act was very broad. It allowed anyone born in the island of Ireland to become an Irish citizen by virtue of the place of their birth.11 The class of persons able to claim citizenship was widened further by allowing those of Irish ancestry to claim 9 Caroline Sawyer, "Not Every Child Matters: The UK's Expulsion of British Citizens" (2006) 14 Int'l J. Child. Rts. 157 at 160. . 10 Irish Nationality and Citizenship Act 1956 (I.) 1956, c.26. n Ibid. s.6(l) 4 citizenship regardless of where they were born. 1 2 Granting a person citizenship on the grounds of their place of birth or lineage does not, o f itself, seem unjust. However, as international migration becomes more common and the defence of national borders more fierce, the shortcomings o f determining the right to membership of a political community, in this way are exposed. Despite the seemingly generous definition of Irish citizenship provided by the 1956 Act, it was unable to deal with many of the more complex claims to belong to a national community. Irish citizenship law prior to the introduction of the 2004 Act entitled a larger class of persons to claim Irish citizenship than it does today. However, it was not demonstrably fairer. Both regimes entitled the citizen to rights denied to the non-citizen and distinguished the citizen from the non-citizen on narrow and arbitrary criteria. 1.3 Citizenship, Sovereignty and the Nation Establishing criteria to determine who is a citizen poses a dilemma for modern law. Modern law purports to cherish values such as equality, objectivity and rationality, and yet for the majority of persons within a state, the criteria used to determine their status is not the strength of their claim to be part of that community, but whether they were born in the right place or to the right person. However, the difficulty in reconciling citizenship with the tenets of modernity in no way detracts from the important role that it plays in sustaining modern law. Citizenship is central to the 12 Ibid. s.6(2) 5 l aw ' s c l a i m to leg i t imacy i n the exercise o f p o w e r . 1 3 In l ibera l democrac ies , l aw typ ica l l y derives its authority f rom a c l a im to act i n the name o f its c i t izens. Fo r example, the Const i tut ion o f Ireland states that it was enacted and adopted b y and for the people o f I re land. 1 4 Furthermore, the concept o f equal i ty before the l aw demands that one be able to k n o w what the law is. The bordered nat ion serves to prov ide the locat ion for the law. Lobe and the C i t i zensh ip Referendum serve to il lustrate a paradox that chal lenges the premises underp inn ing modern law. It may not be poss ib le to allocate and enforce the rights associated w i t h c i t izenship i n a manner consistent w i t h the values modern l aw purports to stand. The arbitrary d ist inct ion between c i t i zen and non-cit izen appears to be both necessary for the existence o f modern l aw and i r reconc i lab le w i t h the pr inc ip les for w h i c h it purports to stand. 1.4 W h y Examine ' Lobe and the C i t i zensh ip Referendum Together? I feel it is appropriate to consider Lobe and the C i t i zensh ip Re fe rendum together because they each consider the issues o f c i t izenship law, migra t ion l aw and border contro l . The opin ions o f the Irish Supreme Court Justices and the debate surrounding the C i t i zensh ip Re fe rendum both explore the extent to w h i c h the status o f c i t izen bestows leg i t imacy upon a c l a im to group membership . B o t h i l lustrate the d i f f i cu l t y 1 3 For a general introduction to contract theories of the state see Richard Tuck, "Thomas Hobbes: the skeptical state" and John Dunn, "John Locke: the politics of trust" in Brian Redhead ed., Plato to Nato: Studies in Political Thought (Penguin Books, 1995). 1 4 Preamble to the Constitution of Ireland 1937. 6 modern law has in reconciling the values it purports to espouse with its claim to exert legitimate control over the national territory. They are linked by concerns about the legitimacy and enforceability of state sovereignty. Having argued that it is appropriate to consider Lobe and the Citizenship Referendum together, it is important to acknowledge that each addresses different aspects of the debate surrounding the legitimacy of state sovereignty. Lobe considered the rights that could be invoked on behalf of a child-citizen born to non-national parents. The Supreme Court was asked to determine whether a child-citizen had an absolute right to remain in the state and whether the rights of the family, recognized in the Constitution of Ireland as "superior to all positive law," 1 5 included the right of a child citizen to the care and company of its parents in the state. The Citizenship Referendum addressed the issue of who should be entitled to the legal status of Irish citizen. In it, the Irish Government asked the people to approve a proposal affirming the right of the Irish Parliament [Oireachtas] to enact legislation restricting the application of the jus soli principle. With the approval of the proposal, the "default" position in Irish citizenship law changed from one in which citizenship was granted to anyone born in Ireland to excluding them unless certain criteria were met. In the wake of the Citizenship Referendum, the Irish Government passed the 2004 Act. Today, save for a few statutory exceptions, Irish citizenship is now only be bestowed upon those who, at the time of their birth, had at least one parent who was, or was entitled to become, an Irish cit izen. 1 6 1 5 Constitution of Ireland Article 41.1.1. 1 6 The criteria are set out in s.6 of the 1956 Act as amended by s.3 of the 2004 Act. 7 1.5 The Citizenship Referendum: A Party Political Issue? The Citizenship Referendum was held on 11 June 2004, the same day as local and European elections. The Government announced that doing so would maximize voter turnout and ensure that it was not just those with strong opinions regarding immigration who participated in the referendum. 1 7 A number of opposition parties questioned the motives underpinning the Government's choice of date. On 12 March 2004, Enda Kenny, the leader of the largest opposition party, Fine Gael, warned that holding a referendum on such a sensitive issue during an election campaign risked 18 feeding racism. Pat Rabbitte, leader of the Labour Party was more explicit, announcing "it makes my stomach sick to see [Mary Harney, Progressive Democrat leader] lend her party as a cover to Fianna Fai l in a transparent ploy to exploit the immigration issue in an election atmosphere."1 9 The Green Party leader, Trevor Sargent stated, "This is all about political opportunism and the forthcoming elections." 2 0 I do not believe it is particularly accurate or illuminating to view the Citizenship Referendum as a party political issue. In a 1996 study, "Ireland: the Referendum as a Conservative Device?" Michael Gallagher examined the character of referenda in the Republic of Ireland. 2 7 Whilst Gallagher's study pre-dates the Citizenship "ibid. 18 Ibid. 1 9 "Citizenship referendum sparks furore" Editorial, Irish Times (8 April 8 2004). 2 0 Senan Molony, "Green Party attacks the 'opportunism of coalitions citizen vote," Irish Independent (17 May 2004). 2 1 Michael Gallagher, "Ireland, the Referendum as a Conservative Device?" in Michael Gallagher and Pier Vincenzo Uleri ed., The Referendum Experience in Europe (Basingstoke, 1996) 86. 8 Referendum, it serves to contextualize it. It does not support the claim that the Citizenship Referendum was held for reasons of political opportunism or the Government parties exploiting the issue of immigration. Gallagher contends that since the implementation of the Constitution of Ireland in 1937, each referendum can be grouped into one of four issue areas: "institutional," "European," "moral" and "technical." He suggests the nature of referendum campaigns in Ireland depend upon two key factors: the extent to which the issue corresponds to the structure of the Irish party system and the salience of the issue in the eyes of the publ ic . 2 2 He argues that only a small number of referenda have been fought along the lines drawn by traditional party divisions. He states this is due in part to the unique party structure in Ireland; there is very little policy difference between the two largest political parties, Fianna Fai l and Fine Gael. Additionally, referenda in the Republic of Ireland tend to occur on issues of constitutional significance rather than economic matters in which a left-wing or right-wing position can be taken. Gallagher argues that Irish referendum campaigns typically take on one of four types. Firstly, quasi-elections in which the issue is fought along party lines and the electorate is interested in the issue. Secondly, referenda in which the electorate is interested but the argument is conducted along ambiguous party lines; some parties, but not all , have an official stance. Thirdly, referenda in which the issue matters to voters but either all parties endorse the proposal or the referendum is fought along "divided party" lines. Fourthly, there are referenda where the party line is indifferent; 9 party stance makes l itt le impact upon the vote because the pub l i c is uninterested i n the issue. E x a m i n i n g the C i t i zensh ip Referendum through the lens p rov ided b y Ga l lagher , it appears to fit most comfortab ly into the second category o f referendum. Turnout was h igh ; ind icat ing that the electorate was interested in the issue. The Government coa l i t ion o f F ianna Fa i l and the Progressive Democrats advocated a " Y e s " vote. A number o f parties - Labour , the Green Party and S inn F e i n - encouraged the pub l i c to vote " N o . " The largest oppos i t ion party, F ine Gae l , s ided w i t h the Government coa l i t ion but d id not campaign on the issue itself. The parties that endorsed a Y e s vote are t yp i ca l l y perce ived as centre-right parties, wh i l s t those that encouraged voters to vote N o are often considered left-wing. Howeve r , I be l ieve it is a mistake to v i ew the Y e s and N o campaigns as a left-right ideo log ica l struggle. In chapter two I draw upon literature that il lustrates w h y the merits o f open or c losed border po l ic ies do not easi ly fit into the left-verses-right po l i t i ca l spectrum. Furthermore, as chapter four expla ins , the rhetoric o f vo t ing Y e s or N o obscures the commona l i t i es o f the referendum campaigns. The two options presented to voters were not d iametr ica l l y opposed to each other. The Y e s campaign sought to restrict, rather than abol ish , the r ight o f those born to non-nationals to Ir ish c i t izenship. Converse ly , none o f the mainstream N o campaigners advocated w iden ing entit lement to Ir ish c i t izenship or the abol i t ion o f borders dur ing the referendum campaign. 10 Another reason I believe that it is a mistake to view the Citizenship Referendum as an election ploy by the ruling coalition is that, i f it was, it did not work. The results o f the local and European elections suggest that the stance taken by parties in regard to the Citizenship Referendum had little correlation upon their success in local and European elections. Support for the referendum did not increase electoral support for the parties that endorsed it. Although 80% of those participating voted Yes, each of the Government coalition parties lost seats in the local elections. 2 3 Fianna Fai l lost two seats in the European Parliament while the Progressive Democrats have yet to return an M E P . 2 4 Labour, the Green Party and Sinn Fein all gained seats in the local elections despite endorsing a No vote. 2 5 The Labour Party did not make any gains in the European elections. The Greens lost two seats. Sinn Fein returned their first M E P in the Republic of Ireland. 2 6 It is therefore necessary to consider alternative explanations for the restriction of entitlement to Irish citizenship. 1.6 Border Control: A Global Issue The past decade has seen widespread concern about the ability o f the Republic of Ireland to control inward - as opposed to outward - migration voiced for the first time. However, the increased prominence of the issue of border control in the political arena is not merely a local phenomenon. Lobe and the Citizenship Referendum are 2 3 Caroline O'Doherty, "Resouning Yes for citizenship change" Irish Examiner (14 June 2004). 2 4 Mark Brennock, "Fianna Fail suffers worst election results for 80 years" Irish Times (14 June 2004)- 2 5 See the "Election 2004," online: the Irish Times <http://www.ireland.com/focus/localelection2004/local_graphic.html> for a breakdown of the breakdown of the 2004 local elections in Ireland. 2 6 Sinn Fein also secured one seat in Northern Ireland. 11 local manifestations of a global "moral panic" about international migration. Chapter two considers the reasons for the rise in concern surrounding migration. It explores the concepts of citizenship, sovereignty and the nation and argues that these terms cannot be neatly defined. Drawing upon the work of scholars in each of these fields I suggest that the Republic of Ireland's recent preoccupation with border control is a product of trends that have not merely increased the number o f migrants to the Republic of Ireland, but have also prompted states to conceive of migrants and themselves differently. Chapter three seeks to contextualize the Lobe case and Citizenship Referendum by examining the legislative history of Irish citizenship law and Irish case law surrounding the rights of Irish citizens born to non-nation parents. It suggests Irish citizenship laws have always been used as a form of migration law. I argue that while the increase in numbers of people traveling to the Republic of Ireland has raised concerns about the state's ability to assert sovereignty, the Republic of Ireland has never been able to exert sovereignty as it is traditionally understood. Consequently, the regulation of Irish citizenship has always been of key importance to the state's claim to sovereignty. In chapter four I examine the arguments advanced for and against the proposal to restrict entitlement to Irish citizenship through birth. I argue that decision to hold the Citizenship Referendum was based upon two contradictory premises. Consequently, 2 7 Catherine Dauvergne, "Sovereignty, Migration and the Rule of Law in Global Times" (2004) 67(4) Mod. L. Rev. 588 at 588. 12 in a positivistic legal sense, it was unnecessary. B y examining the arguments advanced during the Citizenship Referendum campaign and the legislation subsequently introduced to restrict entitlement to Irish citizenship through birth, I suggest that the Citizenship Referendum is best seen as an expression of the Republic of Ireland's sense of national identity in the early 21 s t century. Chapter five reflects upon modern law's seeming inability to provide convincing answers to the issues raised by global migration. In particular, it considers the tension between law's claim to universality and its distinction in its treatment between citizens and non-citizens and, perhaps more worryingly, citizens born to non- nationals. I argue that through the lens provided by the issue of border control we see exposed the contradiction at the heart of modern law. I suggest that in order to address the issues raised by international migration it is necessary to consider the use of non-legal as well as legal strategies. 1.7 A Note on Terminology I use the term "Republic of Ireland" to refer to the 26 county state, officially called "Ireland." In doing so, I attempt to avoid confusion when referring to the Irish state, as distinct from "the island of Ireland" referred to in Article 2 of the Constitution of Ireland. "The island of Ireland" includes both the Republic of Ireland and Northern Ireland. Many of the sources I have relied upon in the course of this work use the term "Ireland" to refer to the 26 county state. Unless the distinction between the Irish 13 state and the island of Ireland is both unclear and directly relevant to the point under discussion I have not altered the wording of other writers. "Northern Ireland" has been a contentious term since the state was established by the Government of Ireland Act , 1920. 2 8 A s I explain in more detail in chapter three, Irish Nationalists have historically denied, or at least questioned, the legitimacy of Northern Ireland. This is reflected in Nationalist terminology in which Northern Ireland is referred to as "the North" or "the Six Counties" rather than by its official title. Unionists are generally more accepting of the term Northern Ireland, although some refer to the state as "Ulster," the name of the historic province of Ireland in which Northern Ireland is located. A s three of the counties o f historic Ulster are located in the Republic of Ireland, this term is not strictly accurate. The Agreement o f 1998 was accepted by voters in both jurisdictions on the island of Ireland in separate referenda. 2 9 A s the Agreement recognized "the legitimacy of the people of Northern Ireland with regard to its status"3 0 [my emphasis] I feel it is the least contentious of the possible terms for the state. I w i l l therefore use the term Northern Ireland in the course of this study. 2 8 Government of Ireland Act, 1920 (U.K.), 10 &11 Geo. V., c.67, s.l. 29 The Agreement of 1998 has no name. It is known variously as the Belfast Agreement, the Good Friday Agreement, the Stormont Agreement, the British-Irish Agreement, or simply the Agreement. See Brendan O'Leary, "The Nature of the Agreement," 22 Fordham Int'l L.J. 1628 for greater discussion of the name of the Agreement. 30 The Agreement (1998), Constitutional Issues, section 1(1). 14 CHAPTER TWO 2.1 Introduction This chapter locates the issue of the restriction of Irish Citizenship within a discussion of three inter-related concepts: citizenship, sovereignty and the nation. Each featured in Lobe and the Citizenship Referendum as the Irish courts and law makers sought to determine legitimate claims to Irishness, the rights bestowed by Irish citizenship and the measures the state could employ to protect its borders. I consider each concept in turn. As will become apparent, they are contested. Whilst I attempt to sketch a description of each, my focus is upon why there is a lack of certainty as to their meaning, rather than attempting to define them. I argue that an adequate definition of each concept is impossible. Definitions assume concepts to be rational. Those who purport to define a concept attempt to reduce it to an essence. However, the definitions of citizenship, sovereignty and the nation that have been offered have proved inadequate; they do not include all the qualities associated with the concepts; nor are the qualities described exclusive to them. I suggest that rationality is unable to define these concepts because they are borne out of contradiction rather than reason. Conceptual uncertainty is integral to their existence. It cannot be overcome by simply refining definitions. Consequently, attempts to justify the restriction of entitlement to Irish citizenship or the rights associated with Irish citizenship by appeals to reason are based on the mistaken 15 premise that the criteria that define citizenship, sovereignty, or membership of nation are rational. 2.2 Defining a Citizen In the majority of Western states, citizenship laws are based either on the principle of jus soli or jus sanguinis, or comprise some hybrid of the two. There are also naturalization processes, but that is not my focus here. Irish citizenship law is imbued with both jus soli and jus sanguinis principles. 3 1 The jus soli principle - literally "of the soi l" - is historically a feature of common law jurisdictions. It uses the criteria of birth within a state to determine whether a person is entitled to citizenship. The jus sanguinis principle awards citizenship to those with a "blood relationship" to the state. The origin of jus sanguinis principle has been attributed to the spirit o f nationalism and fraternity among the French following the 1789 revolution. Although awarding citizenship on the basis of a person's place of birth or their descent is not manifestly unjust of itself, neither the jus soli nor the jus sanguinis principle have the capacity to deal with the multi-faceted and complex claim to belong to a community. Joseph H . Carens highlights the potential difficulties faced by a non-citizen, resident in a state from shortly after his or her birth, that do not 31 Irish Nationality and Citizenship Act 1956. 3 2 James Brown Scott, "Nationality: Jus Soli or Jus Sanguinis" (1930) 60 A.J.I.L. 58 at 61. 16 trouble a citizen. The non-citizen who commits a crime, unlike their citizen counterpart, faces the threat of deportation. A citizen guilty of the crime may be sent to ja i l for a long time, but he or she cannot be removed from the state. Carens argues that the longer a person resides in a state, the greater moral claim he or she has to be considered a member of the national community, even i f they do not possess the legal status of citizen. Conversely, the greater the length of time a person has been resident in the state, the more the community should view that person's illegal actions as "their problem" rather than something to be dealt with by the person's country of or igin . 3 4 However, the jus soli and jus sanguinis principles are not concern with the reasons why someone may claim to belong to a community. Instead they distinguish the citizen from the non-citizen on grounds beyond that person's control. 2.3 Citizenship I now turn to the concept of citizenship itself. Broadly speaking, citizenship incorporates three related components: membership, rights and duties of members and participation. 3 5 However, theorists differ in the emphasis they place upon each of these notions. 3 6 3 3 Joseph H. Carens, "Cosmopolitanism, Nationalism, and Immigration: False Dichotomies and Shifting Presuppositions" in Ronald Beiner & Wayne Norman ed., Canadian Political Philosophy (Oxford University Press, 2001) 17 at 20-25. 3 4/fe/. 3 5 Catherine Dauvergne, "Beyond Justice: The Consequences of Liberalism for Immigration Law" (1997) 10(2) Can. J.L. & Jur. 323 at 324. 3 6 Marco Martiniello, "Citizenship in the European Union," in T. Alexander Aleinikoff & Douglas B. Klusmeyer eds., From Migrants to Citizens: Membership in a Changing World, (Carnegie Endowment for International Peace, 2000) 342. 17 One description of modern citizenship which is often cited is that offered by T . H . Marshal l . 3 7 Marshall identifies three distinct components - political, judicial and c iv i l citizenship - which he fuses together.3 8 The political aspect invokes a "self rule" principle; citizenship demands the people participate in ruling as wel l as being ruled. That requirement can be achieved by citizens becoming involved in the law-making process directly or by electing representatives to make laws on their behalf. A second aspect of Marshall 's account is the judicial conception of modern citizenship. It grants the status of legal personhood which makes persons subject to the law and gives them rights which may be enforced in court. Thirdly, the c iv i l aspect of citizenship creates a sense of identity as a member of an exclusive group for those granted the status of citizen. Marshall 's description proceeds on a number of assumptions. Firstly, his conception of citizenship is founded upon the liberal premises o f the Enlightenment. It necessitates a conceptual "flattening out" of society that is in contrast with the hierarchical structures of pre-modern societies. Marshall states, "In feudal society status was the hallmark o f class and the measure of inequality. There was no uniform collection of rights and duties with which all men...were endowed by virtue of their membership of the society. There was, in this sense, no principle of the equality of citizens to set against the principle of the inequality of classes." 3 9 Secondly, Marshall 3 7 See, for example, Jean L. Cohen, "Changing Paradigms of Citizenship and the Exclusiveness of the Demos" (1999) 14(3) International Sociology 245, Miriam Feldblum, "Reconfiguring Citizenship in Western Europe," in Christian Joppke ed., Challenges to the Nation State (Oxford University Press, 1998) 321, and Roel de Lange "Paradoxes of European Citizenship" in Peter Fitzpatrick ed., Nationalism, Racism and the Rule of Law (Dartmouth, 1995) 97. 3 8 T.H. Marshall & Tom Bottomore, Citizenship and Social Class (1992, Pluto Press) at 8. 18 assumes the emergence o f c i t izenship is an evolut ionary process. H e presumes that each o f the components o f c i t izenship fuse together harmonious ly . F i na l l y , his account also associates c i t izenship w i th the development o f the nation-state. K e y aspects o f Ma r sha l l ' s descr ipt ion, such as part ic ipat ion i n the law-making process and the sense o f ident i ty drawn f rom group membersh ip , infer a degree o f exc lus iv i ty . 2.4 Chal lenges to C i t i zensh ip Chal lenges to each o f these assumptions have raised questions about the appropriateness o f Marsha l l ' s descr ipt ion o f c i t izenship for the 2 1 s t century. Some challenges have been theoretical. M a r s h a l l l inks the concept o f c i t izenship to the modern era. A s such, he invokes the creed o f moderni ty , w h i c h Peter F i tzpat r i ck characterizes as the reject ion o f myth , the embrace o f rat ional i ty and ob jec t i v i t y . 4 0 The late 2 0 t h century saw the emergence o f postmodern cr i t iques, w h i c h disputed the premises upon w h i c h the Enl ightenment project was based. A l a n Hunt states, " Pos tmodern i sm 's cr it ique o f the Enl ightenment is o f a fa i led rational ist project w h i c h has run its course but w h i c h continues to encumber contemporary thought w i th i l lus ions o f a rat ional route to knowledge, a fa i th i n science and in progress . " 4 1 Postmodern thought brings into quest ion Ma r sha l l ' s assumpt ion that modern c i t izenship is the inevitable product o f progress. Instead, it contends that modern c i t izenship is temporary and contingent upon the exercise o f power i n mul t ip le Peter Fitzpatrick, Mythology of Modern Law, (Routledge, 1992) at. 1-3. 4 1 Alan Hunt, "The Big Fear: Law Confronts Postmodernism" (1990) 35 McGill L.J. 515 at 515. 19 decentralized sites. 4 2 Even before Marshall articulated his description of citizenship, the tension between the universal judicial aspect of citizenship and the exclusive political aspect was noted by Hannah Arendt. 4 3 Arendt noted the disparity between the claim to respect the rights of man - a universal principle - and its more limited application within the boundaries of the state witnessed in Revolutionary France. However, while Arendt attempted to resolve the tension by suggesting that citizenship itself was a universal right, more recent thinkers have challenged the assumption that the tension can be resolved. 4 4 Jean L . Cohen notes that the difficulty migration poses for liberalism is not that the logic of liberalism points to open or closed borders but rather it points to both. She argues that the difficult relationship between non-citizens, or child citizens with non- national parents, and the state is born out of the contradictions of liberal citizenship. The political component of liberal citizenship is inclusive, in the sense that it emphasizes participation, but it is participation of a particular group to the exclusion of others. In contrast, the judicial conception of citizenship has the capacity for universal inclusion, but that is achieved at the expense o f a collective identity of the demos. She states it was the hegemony of the liberal model that led to the component parts of citizenship being perceived as complimentary. This model is now being challenged as the impact of globalization makes apparent the state's lack of ability to control developments affecting its members' lives 4 5 4 2 Gerald Turkel, "Michel Foucault: Law, Power and Knowledge" (1990) 17(2) J.L & Soc'y at 170. 4 3 Hannah Ardent, The Origins of Totalitarianism, (Harcourt Brace and Company, 1973) at 230-31. 4 4 Cohen, supra note 37 at 254. 4 5 Cohen, supra note 37 at 252. 20 Other challenges to Marshall 's description of citizenship have emerged from more practical developments. In Marshall 's account, the state acts to guarantee uniform and equal rights to citizens. The Maastricht Treaty of 1992 [Maastricht] created European Union [EU] citizenship. 4 6 E U citizenship challenges both the presumption that the nation-state is the sole guarantor of rights and that rights must be applied uniformly and equally among citizens. Maastricht established a series of rights common to all E U citizens: The right to free movement and residence in member states47; the right to vote in local and European AO elections in the member state of residence ; the right to diplomatic protection in a third country 4 9; the right to petition the European Parliament and appeal to the European Ombudsman. 5 0 The rights of E U citizens were subsequently enhanced by the Amsterdam Treaty o f 1997 [Amsterdam]51: an anti-discrimination clause and articles seeking to better protect human rights and fundamental liberties were adopted. 5 2 The rights of E U citizenship are enforceable throughout the E U . They are not contained by the boundaries of a particular nation-state. Whilst Maastricht created the category of E U citizen, from its earliest incarnation, the E U has sought to maintain distinctions between member states, rather than forge a 46 Maastricht Treaty, O.J. C 191, 29 July 1992 [Maastricht]. 47 Ibid. Article 8A 48 Ibid, Article 8B 49 Ibid. Article 8C 50 Ibid. Article 8D. 51 Amsterdam Treaty, O.J. C 340 10 November 1997 [Amsterdam]. 52 Ibid. Articles 7 and J. 1.1. 21 col lect ive European identity. Hans L i ndah l observes, " W h i l e the Const i tu t ion o f the Un i t ed States... k i cks o f f w i th ' W e the people, ' the preamble to the Treaty of Rome defines European integration i n terms o f 'an ever c loser un ion among the peoples o f E u r o p e . ' " 5 3 Amsterdam af f i rms this concept ion o f the E U , stating that E U ci t izenship supplements, rather than replaces, nat ional c i t izenship. A t present, the rights associated w i th E U c i t izenship remain dependent upon pr io r membersh ip o f a member state. 5 4 The rights associated w i t h E U ci t izenship are not necessar i ly appl ied un i fo rmly . Th is is demonstrated b y the restrictions that exist regarding the vo t ing rights o f E U ci t izens resident i n another member state. The possession o f E U c i t izenship entitles a person resident i n a member state to vote i n loca l and European elections even i f they are not a c i t i zen o f that country. However , i f the number o f non-nationals resident i n a member state amounts to 2 0 % o f those o f vot ing age, that state m a y restrict vo t ing rights for those who have l i ved there for less than f ive years. Ma r t i n i e l l o states, " Eu ropean c i t izens l i v i ng i n a member state other than their o w n are considered to be equal to E U cit izens l i v i ng i n their o w n member state, but they are a bit less equal than t h e m . " 5 5 E U c i t izenship therefore s imultaneously chal lenges the tradit ional not ion o f c i t izenship and reaff i rms its l i nk w i t h the territorial state. Wh i l s t the state was 5 3 Hans Lindahl, "European Integration: Popular Sovereignty and a Politics of Boundaries" (2000) 6(3) Eur. L.J. 239 at 239. 5 4 Amsterdam, .supra note 51, Article 9 5 5 Martiniello, supra note 36 at 364. 22 prev ious ly perce ived to be the c i t izen 's on ly guarantor o f r ights, the c i t i zen can n o w also turn to the E U . Add i t i ona l l y , as E U c i t izens, non-nationals w i t h i n a nation-state can c l a im a number o f rights prev ious ly reserved for fu l l members o f the po l i t i ca l communi ty . Howeve r , it is not possible to see the rights associated w i t h E U c i t izenship s imp l y as nat ional c i t izenship wr i t large. To the extent that the E U has forged a po l i t i ca l imag in ing , it has done so by reference to the un ion o f the member states. In do ing so, reaff i rms the leg i t imacy o f those states. 2.5 Sovere ignty The issue o f c i t izenship is c lose ly l i nked to the concept o f state sovereignty. Sovereignty relates to a c l a im to have the r ight to exercise power legit imately. B e y o n d that, the term is ambiguous and disputed. M a r x and Weber suggested that i n order to be sovereign a state must ho ld supreme and absolute power w i th in a ter r i tory . 5 6 Th i s def in i t ion has been w i d e l y acknowledged to be inadequate. A l a n Rosas states " th is state, o f course, is not any s ta te . " 5 7 In response, some theorists have sought to show that sovereignty is an evo l v ing concept rather than f i xed one. Others have suggested that sovereignty is an outdated concept that is i n decl ine. In this sect ion I argue that the uncertainty o f the concept o f sovereignty poses a c o m m o n prob lem to both these approaches: because the themes associated w i t h sovereignty do not con fo rm to a l inear pattern there is no rat ional progress ion, nor conc lus ive decl ine, o f sovereignty. 5 6 Jurgen Habermas, The Inclusion of the Other (Polity Press, 1999) at 108. 23 2.6 M o d e l s o f Sovereignty D a v i d H e l d suggests that since the advent o f the nation-state, three models o f sovereignty can be discerned: " c l a s s i c , " " l i b e r a l " and " c o s m o p o l i t a n . " H e states that the c lassic mode l was dominant f rom the sixteenth century unt i l the twentieth century. It emerged f o l l ow ing the Treaty of Westphalia of 1648 [Westphalia] as an attempt to ensure po l i t i ca l stabi l i ty f o l l ow ing a per iod dominated b y a series o f re l ig ious wars. The classic sovereignty mode l pos i t ioned a l l alternative sites o f power , such as re l ig ious or customary communi t ies , subordinate to the power o f the state. The mode l envisaged b y theorists o f classic sovereignty gave the sovereign "the und iv ided and untrammeled power to make and enforce the l a w " w i t h i n a state or po l i t i ca l c o m m u n i t y . 5 8 2.7 C lass i c Sovere ignty C lass i c sovereignty has both an " i n t e rna l " and an " ex t e rna l " d imens ion . Internally, the sovereign c l a imed absolute and f ina l authority. Non-state actors that disputed the power o f the sovereign were deemed i l legit imate. The external d imens ion o f c lassic sovereignty denied the leg i t imacy o f any higher power to w h i c h a person inside the territory might appeal. It envisaged a commun i t y o f states w h i c h were nomina l l y 5 7 Alan Rosas, "The Decline of Sovereignty" in Jyrki Livonen ed. The Future of the Nation State in Europe (Edward Elgar Publishing Co, 1993) 130 at 131. 5 8 David Held, "Law of States, Law of Peoples: Three Models of Sovereignty" (2002) 8 Legal Theory 1 at 3. 24 equal; no state had a right to interfere in the internal affairs of another. Held does not suggest that power imbalances between states did not influence international relations during this period. Rather, he argues it meant that the manner in which the ruler of a state secured power internally had no bearing on its legitimacy when dealing with other states. Whether one wielded effective power was the only measure of legitimacy. 5 9 2.8 Liberal Sovereignty Liberal sovereignty placed restrictions upon the sovereign's right to exercise absolute power within its borders. Held states that this model began to emerge as the number of democratized states increased during the nineteenth and early twentieth century. It became dominant following World War II during which the failings o f the classic sovereignty model became apparent. The measure o f legitimacy among the international community has become whether the sovereign can demonstrate adherence to the principles of democracy and human rights. A s a consequence of the shift to the liberal sovereignty model, the actions of states are now curtailed by international agreements on a wide range of issues. Held cites examples of areas in which the legitimacy of state actions is now dependent upon an adherence to common principles. These include, but are not limited to, the development of common rules of warfare, the responsibility of individuals to adhere to certain norms during conflict, a Ibid, at 5. 25 cornmitment to human rights and the rights o f minor i t ies and, increas ingly , issues regarding the env i ronment . 6 0 L ibe ra l sovereignty, H e l d contends, has had some success i n cur ta i l ing the excesses poss ib le under the c lassic sovereignty mode l . However , he ident i f ies a number o f d i f f icu l t ies w i t h l ibera l sovereignty. One prob lem is that the values espoused b y l ibera l sovereignty are not a lways harmonious. It is not d i f f i cu l t to imagine circumstances i n w h i c h the electorate o f a state endorses a p o l i c y that is advantageous to those w i th in the state but has a detrimental effect upon the environment beyond state borders. Such a scenario places l iberal sovereignty 's endorsement o f democracy i n conf l i c t w i t h its support for the concept o f "the c o m m o n heritage o f m a n k i n d , " w h i c h has deve loped i n regard to environmental issues i n the last 40 years. Proponents o f the hypothet ica l po l i c y can appeal to the democrat ic mandate that endorsed that po l i cy . However , the widespread impact o f such a p o l i c y raises questions about the true accountabi l i ty o f state power. A s H e l d remarks, " [P Jo l i t ica l arrogance has been re inforced b y the c l a im o f the po l i t i ca l elites to derive their support f rom that most v irtuous source o f power - the demos. Democra t i c princes can energetical ly pursue pub l i c pol ic ies . . .because they feel , and to a degree are, mandated to do s o . 6 1 60 Ibid at 20-23. 61 Ibid.aX 21. 26 2.9 Cosmopolitan Sovereignty Held argues that in order for new sites of power to become truly accountable it is desirable to work towards a framework of universal law. He calls this cosmopolitan sovereignty. In a sense the cosmopolitan model builds upon liberal sovereignty; Held characterizes cosmopolitanism as "those basic values that set down standards or boundaries that no agent, whether a representative of a government, state, or c iv i l association, should be able to cross." 6 3 The values themselves are also familiar: equal worth and dignity; active agency; personal responsibility and accountability; consent; collective decision making through voting procedures; inclusiveness; avoidance o f serious harm and the amelioration of urgent need. To give effect to cosmopolitanism, Held proposes four institutional requirements. "Legal cosmopolitanism" would establish fundamental legal rights at a global level. It would place all persons under a basic law that embodies fundamental values and give them rights that may be enforced by the courts. In an effort to ensure effective political participation, "political cosmopolitanism" would increase the importance of regional and global representative institutions. Conversely, the role of national parliaments would diminish. "Economic cosmopolitanism" envisages political intervention in the economy in order to ensure that the basic values outlined above are safeguarded. It does not view intervention as a goal in itself, rather as a necessity in 62/to/.at38. 63 Ibid.dX 23. 27 order to bridge.the gap between the aspiration of equality and the danger posed by substantive inequality and sectional interests. Finally, "cultural cosmopolitanism" acknowledges that identities are not fixed and need not be confined by national borders. Where cosmopolitan sovereignty differs from liberal sovereignty is in loosening the link between membership of a territorial state and the right to participate in decision making. The measure of one's right to participate becomes whether one is affected by the outcome of that decision rather than whether one has been deemed a member of a fixed geo-political group. Held argues that the Social Chapter of Maastricht is compatible with the concept of cosmopolitan sovereignty. 6 4 However, he does not claim that the creation of E U citizenship amounts to cosmopolitan sovereignty. Rather, it offers a framework that could be built upon. A t present, the rights associated with E U citizenship remain dependent upon prior membership of a member state. The proposal to detach sovereignty from the territorial state demands a departure from the way in which sovereignty has traditionally been understood. The cosmopolitan sovereignty envisaged by Held far is much more radical than the challenge to the nation-state posed by the creation of E U citizenship. Both the classic and liberal models rely upon state borders to ensure formal equality before the law. They anticipate that the power o f the sovereign, exercised through the law, w i l l apply evenly throughout the state. Cosmopolitan sovereignty proposes that the formal 28 equal i ty accorded b y earlier models become subservient to substantive equal i ty among those affected b y the exercise o f power. 2.10 A Cr i t ique o f H e l d ' s M o d e l o f Sovereignty Wh i l s t H e l d ' s account o f the evo lut ion o f sovereignty is usefu l , i n the sense that it highl ights the conceptual changes that have taken place since the Westphalia, it r isks reduc ing the concept o f sovereignty to a grand narrative. D o i n g so over looks the shifts i n power relations that occurred have occurred w i th in the three t ime per iods he identif ies. Fo r example , i n He ld ' s account, c lassic sovereignty encompasses the per iod from Westphalia to the early 2 0 t h century. There is l itt le reference to the shifts i n power that took place f o l l ow ing the French and A m e r i c a n Revo lu t ions or the impact this had upon international re la t ions . 6 5 . Moreove r , H e l d emphasizes the differences between the mode ls o f sovereignty. In do ing so he downplays their continuity. Th is portrays sovereignty as a l inear and evolut ionary concept, rather than shi f t ing and contingent. Sovere ignty should be conce ived o f as a loose ly associated co l lec t ion o f themes rather than a l inear progression. Those themes compete w i th each other, r i s ing and fa l l i ng i n prominence over t ime. In H e l d ' s account, c lassic sovereignty is succeeded by l ibera l sovereignty because o f the abuse o f power under the former. Howeve r , this shift i n emphasis was not s imp l y a transit ion f rom an infer ior to a superior system. It marked a resurgence 64 Ibid, at 38. 6 5 Elie Kedourie, Nationalism (Hutchinson University Library, 1960) at 15. 29 of a theme that had fallen out of favour as the concept of the Rights o f M a n had taken hold. From the time of Westphalia until the French Revolution, the dominant concept of government in Europe was one of Enlightened Absolutism. It rested upon a premise that that there was a universal law of nature which could be identified through the use of reason. 6 6 The sovereign and his or her subjects were bound together in common pursuit of improvement. It was believed that by adhering to the law of nature, the welfare of all could be ensured. Between the French Revolution and the early 20 t h century the notion that the w i l l of the people was subject to a higher power fell into decline. The rise of liberal sovereignty was not simply an innovation. It was also a revival of a theme present in an earlier model of sovereignty. B y endorsing cosmopolitan sovereignty, Held seeks to overcome the tensions present in liberal sovereignty. However, cosmopolitan sovereignty does not resolve the conceptual difficulties found in earlier models. In cosmopolitan sovereignty, Held envisages participation by those subject to the exercise o f power rather than those with the formal status of citizen. However, it may be difficult to determine what constitutes being sufficiently affected by a power. For example, a new road built between two major cities is likely to impact upon the lives o f a large number of people in some form, yet determining the appropriate level of consultation is likely to be problematic. It is debatable whether all those affected, however marginally, should be consulted. It may be fairer to consult only with those upon whom the road 30 w i l l directly impact. Alternatively, it may be preferable to give greater weight to the views of those with expert knowledge on the need for the road and its potential environmental impact than to the views of the local community. A related concern is determining the appropriate weight that should be given to the views of those affected by a decision. It seems inconsistent with the principle of substantive equality to give a person who stands to be marginally affected by a decision equal standing with those whose life w i l l be severely disrupted. Yet Held offers no suggestions on how competing claims should be weighted against each other. Possession of citizenship in a bordered world determines the right to participate in decision making processes in a formal and arbitrary manner. Cosmopolitan sovereignty seeks to replace that arbitrary system with one in which the criteria for participation is no more rational. 2.11 The Decline o f Sovereignty? A n alternative to Held's evolutionary theory of sovereignty is the suggestion that sovereignty should be conceived of in the manner suggested by Marx and Weber but that it is in decline. Ohmaie Kenichi emphasizes the disparity between a strict adherence to the concept of sovereignty as supreme and absolute power within a territory and present day global economic trends as evidence o f the decline of the Ibid, at 10. 31 nation-state. He argues that in an era of globalization the nation-state has become an increasingly redundant "middle-man." However, Kenichi 's focus is narrowly economic. In his account, borders are simply a hindrance to economic progress. Kenichi declares nationalism "a jingoistic celebration of nationhood that places far more value on emotion-grabbing symbols than on real, concrete improvements in the quality of l i f e . " 6 8 However, as Richard Falk points out, the legacy of state sovereignty and nationalism is more ambivalent. Whilst resistance to globalization has highlighted the more chauvinistic aspects of nationalism, the concept of the secular, sovereign state has also been utilized as a means to reject privilege. 6 9 Moreover, Kenichi 's suggestion that we now live in "a borderless world" does not stand up to even a cursory examination. For those without the necessary skills or financial resources, the power o f the state to exercise control over national borders remain very real barriers to movement. Ne i l MacCormick argues that sovereignty is in decline but questions the extent to 70 which the state ever exercised absolute power within its borders. Instead, for MacCormick, the "decline" of sovereignty relates to the increasing dispersal of power among different bodies. He argues that sovereignty is primarily in decline in the sense that the state-centric model of legal systems proposed by theorists such as John Austin is increasingly redundant as a means of understanding the manner in which 6 7 Ohmae Kenichi, The End of the Nation State: The Rise of Regional Economies (HarperCollins, 1995). 6 i Ibid, at 13. 6 9 Richard Falk, "The Decline of Citizenship in an Era of Globalization" 2000 4(1) Citizenship Studies, 5 at 11. 7 0 Neil MacCormick, "Beyond the Sovereign State" 56(1) (1993) M L R 1. 32 law operates. Alternative sites of power, such as the EU, international law, and even forms of illegal regulation, are of increasing importance to daily life. He suggests that whilst these sites perform tasks once perceived to be the sole province of state law, they are too dispersed to be seen as "sovereign" powers in themselves. Therefore, as power becomes decentralized, the notion of sovereignty has fallen into decline. 2.12 Cosmopolitanism and Exclusivity Whilst MacCormick is of the view that sovereignty is an increasingly redundant concept, his argument, that the decline of sovereignty is primarily conceptual, has the capacity to accommodate a scenario in which some themes traditionally associated with sovereignty retain importance while others fall into decline. It is therefore at least partially compatible with a theory advanced by Saskia Sassen critiquing the theory that states are in terminal decline. Sassen argues that though globalizing forces have altered the role of the state, it retains relevance by providing the framework in which those forces operate. She states "much that we describe as global, including some of the most strategic functions necessary for globalization, is grounded in national territories."71 The reassessment of the legitimacy and effectiveness of state power on a global scale coincides with a weakening of the mono-cultural, Gaelic, Catholic identity that 7 1 Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (Columbia University Press, 1996) at 13. 33 dominated the Republic of Ireland throughout the twentieth century. John A. Harrington states, "In a series of referenda voters have abandoned irredentism, embraced secularism and liberalized the social code."72 In this section I consider why arguments in favour of restricting entitlement to Irish citizenship have become potent in recent years - as the paradigm that assumed a bordered world is being challenged and Ireland has embraced multiple and shifting identities as a member of the EU. One explanation for increased concern about the state's ability to control its borders is the growing importance of migration law in relation to state sovereignty. Catherine Dauvergne suggests that migration law has become the "last bastion" of traditional sovereignty.73 Other areas traditionally considered exclusively within the domain of the sovereign state, such as economic policy and law and order, have been challenged by other sites of power. The growth of a culture of human rights has placed restrictions upon the measures that can be introduced by governments in the name of law and order; the phenomenon of globalization prevents states from "managing" economies in the manner that they once felt they could. In contrast to this trend, states retain almost complete control of their borders. They are free to introduce immigration laws in which the selection of candidates is based upon the perceived advantage to the receiving state. There is no requirement that the state consider the wider impact of its policies, such as the removal of skilled workers 7 2 John A Harrington, "Citizenship and the Biopolitics of Postnationalist Ireland" (2005) 32(3) J. L . & Soc'y 424 at 424. 7 3 Catherine Dauvergne, "Sovereignty, Migration and the Rule of Law in Global Times" (2004) 67(4) Mod. L . Rev. 588 at 588. 34 from their country of origin. Dauvergne states that even in regard to refugee law, the one area of migration law which does involve commitment to international conventions, the state retains rights associated with traditional sovereignty: states enter into the Refugee Convention as sovereign powers; they limit the number of refugees who will benefit from the protection of the Convention; the practical impact of the Refugee Convention upon the exercise of sovereignty in Western states is limited, as a disproportionate number of refugees are admitted by poorer countries; and failure to adhere to the Convention carries no penalty.74 As traditional areas in which the state excised sovereignty have eroded, the importance of migration law has increased. Ironically, the role of migration law has changed by virtue of its staying the same. Dauvergne states, "As nations have seen their powers to control the flows of money or ideas and to set economic or cultural policies slip away, they seek to assert themselves as nations through migration laws and policies which assert their nation-ness and exemplify their sovereign control and capacity."75 The Republic of Ireland's insistence upon the right to assert sovereignty was clearly demonstrated in Lobe, where "the need to preserve the integrity of and respect for the state's asylum and immigration laws" was emphasized.76 The issue of control of state borders was, surprisingly, less obvious during the Citizenship Referendum. One of the central arguments advanced by the "Yes" campaign was that restricting 74 Ibid, at 597. 75 Ibid, at 595. 35 entitlement to Ir ish c i t izenship was necessary because it bestowed the r ight to l i ve and work anywhere i n Europe. The " abuse " o f Ir ish c i t izenship laws was portrayed as a threat not just to the Repub l i c o f Ireland but to the who le o f Europe. In the f o l l o w i n g pages I consider h o w the Ir ish cou ld at once embrace cul tura l cosmopo l i t an i sm - i n the fo rm o f " Europeanness " - and at the same t ime restrict its migra t ion laws. In order to reconci le the c l a im that the state has retained the characterist ics o f c lassic sovereignty i n regard to migrat ion l aw w i t h the argument advanced by the " Y e s " campaign, I employ , and attempt to b u i l d upon, a theoretical f ramework deve loped by F i tzpat r i ck and Harr ington. 2.13 The N a t i o n The nat ion has been descr ibed as "the most universa l ly legit imate va lue i n the po l i t i ca l l i fe o f our t i m e . " 7 7 Y e t despite its seeming omnipresence, ident i f y ing what it is has proves problemat ic . Peter F i tzpatr ick states, " W e f i nd it d i f f i cu l t to chal lenge nat ion because we cannot say what it is so as to ident i fy it exp l i c i t l y and thence confront i t . " 7 8 In F i tzpat r i ck ' s analysis, the nat ion is in t r ins ica l l y l i nked to cr i ter ia 79 * that fa i l to define it, such as history, territory and c o m m o n language. In this , account, it becomes imposs ib le to v i ew the nat ion as dist inct f rom the accounts o f its or igins and development. 76 A.O. & D.L. v. Minister for Justice, [2003] 1 IR 3 at 5 [Lobe] Keane C.J. 7 7 Benedict. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, (Verso, 1991) at 3. 7 8 Peter Fitzpatrick, "We Know What It Is When You Do Not Ask Us" (2004) 8 LTC 263. 36 Debate about the nat ion has tradi t ional ly sought to ascertain its or ig ins and chart its development. It is poss ib le to discern two broad schools o f thought. One contends that nations are long established human tradit ion; i f they are not quite " na tu ra l " phenomena they are at least long established means o f o rgan iz ing human society. Such theorists can be considered " o r g a n i c " or " e thn i c " theorists o f nat ion. The second school contends that the nat ion is a recent invent ion, emerg ing on l y i n the late 18 t h century. A s such they may be regarded as "modern i s t s . " 2.14 The E thn ic N a t i o n A n early example o f the nat ion conce ived o f as an " e thn i c " or " o r g a n i c " unit is found in the w o r k o f Johann Gott f r ied He rde r . 8 0 Herder 's w o r k was both in f luenced by , and a react ion to, eighteenth century Enl ightenment th ink ing . Theorists such as 81 Montesqu ieu promoted c lass ica l republ i can ism as the ideal government structure. The c lass ica l republ ican state demanded loya l ty from its c i t izens whi l s t s imultaneously emphas iz ing the l imi ted sphere i n w h i c h the state cou ld exercise power over ind iv idua ls . Herder wrote at a t ime when groups w i t h i n Europe, prompted b y the rev iva l o f the republ ican idea l , were beg inn ing to dist inguish themselves on the basis o f a "nat iona l ident i ty . " H e shared w i th eighteenth-century theorists a sense o f nat ional identity, but disagreed w i t h their exaltat ion o f the ind i v idua l and the cosmopol i tan . Herder objected to the dispar i ty he saw between the Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge, 2002) at 112. 0 Derek Heater, Theory of Nationhood (MacMillan Press Ltd, 1998) at 121. 1 Ibid, at 9. 37 po l i t i ca l state, as advocated by the thinkers o f the c lass ica l En l ightenment per iod , and the cultural nat ion he witnessed i n eighteenth century Germany . E rgang suggests Herder ' s wo rk represents a bridge between the 18th century intel lectual focus upon " r eason " and the 19th century emphasis upon " romance . " H e states, " T o the ind i v idua l i sm o f the eighteenth century Herder opposed the co l l ec t i v i sm o f the nineteenth." M a n y o f Herder ' s contemporar ies saw national differences as obstacles to be overcome b y un iversa l i sm. In contrast, Herder be l ieved in nurtur ing the cultural nat ion. H e be l ieved the nat ion was the ideal group i n w h i c h ind iv idua ls w o u l d achieve happiness and fu l f i l lment . T o " o v e r c o m e " the nat ion w o u l d go against what nature had decreed. Herder warned against the cosmopo l i t an i sm o f the eighteenth century, stating "Whe re nature has separated national i t ies b y language, customs, and character one must not attempt to change them into one uni ty by artefacta and chemica l opera t ions . " 8 3 The organic concept ion o f the nat ion is demonstrated again in Herder ' s explanat ion o f h o w different nations interact and co-exist. In Ideen, the rise and fa l l o f nations is compared to the l i fecyc le o f a tree: a nat ion grows, experiences maturity, then makes w a y for other na t ions . 8 4 Fo r Herder , the high-point o f human existence was " human i t y . " Herder ' s def in i t ion o f humani ty is unclear; E rgang states, " H e constantly accentuated the w o r d humanity , but became very vague when he tr ied to define i t . " 8 5 Whatever its conceptual 8 2 R. R. Ergang, Herder and the Foundations of German Nationalism (Octagon Books, 1966) at 248. 83 Ibid, at 97. M Ibid, at 85. 85 Ibid, at 82. 38 uncertainties, Herder 's " h u m a n i t y " was undoubtedly a communi ta r ian , rather than an ind iv idua l i s t i c , concept ion o f human good. Herder saw the ind i v idua l as a component part o f a larger group rather than the group as the sum o f its parts. It was through the group that the ind i v idua l achieved happiness and fu l f i l lment . Herder stated the nat ion was the part icular type o f group necessary for humans to achieve humanity . H e stressed that any other type o f group was insuff ic ient to achieve this a im. H e v iewed the nat ion as the natural unit o f society, un ique ly suited to b r ing out the best i n human beings; the members o f each nat ion were shaped by and suited to the group into w h i c h they were born. Herder be l ieved the human race was one species separated into different nations b y phys ica l environment, education, external relations w i th other groups, tradit ion and heredity. H e argued the heredity aspect o f the nat ion ensured that an "essence" o f the nat ion passed through successive generations. Descendants o f a nat ion w o u l d therefore continue to d isp lay the characterist ics o f that nat ion for some t ime even i f they resettled among another communi t y . A more recent example o f the organic theory o f nations is found in the work o f A n t h o n y D. Smi th . In the Ethnic Origins of Nations he argues that the move towards establishment o f the modern nat ion was gradual , a l l ow ing remnants o f the pre- modern era to inf luence the format ion o f the nation-state. 8 6 Sm i th attempts to chart the emergence o f modern nations f rom the groups that predated them. In do ing so, he hopes to determine the s imi lar i t ies and differences between modern nat ional units and the cultural units that predated them. Smi th uses the term " e thn i e " to abbreviate the Anthony D. Smith, Ethnic Origins of Nations (Blackwell, 1988). 39 " ' f o r m ' , ' ident i ty ' , ' m y t h ' , ' s y m b o l ' and ' commun i ca t i on ' codes " o f a communi ty . He c la ims that without the foundat ion prov ided by " e thn i e " attempts at nation- oo bu i l d ing are l i k e l y to be ser iously hindered. Fo r Smi th , " f o r m " pertains to f ramework i n w h i c h communa l symbols operate. He argues that a l though cultural symbols may change over t ime, the f ramework i n w h i c h they operate is less prone to change. Smi th ' s concept o f " i den t i t y " refers to a percept ion o f "shared h is tory . " It does not demand that the modern nat ion emerge f rom a group that prev ious ly had a sense o f co l lect ive ident i ty or adhered to a c o m m o n ideology. Smi th argues that over t ime the "shared mean ings " and " c o m m o n exper ience" o f a commun i t y generates a poo l o f myths , symbols and ways o f communica t ing . H e contends that the " m y t h i c " and " s y m b o l i c " character o f ethnicity that ensures its du rab i l i t y . 8 9 H e states, " The ' core ' o f ethnic i ty , as it has been transmitted i n the h istor ica l record and as it shapes the i nd i v idua l experience resides i n this quartet o f 'myths , memories , values and symbo ls ' and i n the characteristic forms or styles and genres o f certain histor ica l conf igurat ions o f popu l a t i ons . " 9 0 2.15 The N a t i o n as a M o d e r n Phenomenon Modern is ts contend that the concepts o f nat ion and nat iona l i sm d id not exist unt i l the late 18th century. The modernist concept ion o f the nat ion refers spec i f i ca l l y to the "ibid, at 14. 88 Ibid, at 15. 89 Ibid, at 16. 90 Ibid, at 15. 40 nation-state w h i c h , they contend, is i n stark contrast to the communi t ies o f the pre- modern era. Wh i l s t modernists do not deny that soc ia l groups existed pr io r to the late eighteenth century, they mainta in that such groups cannot be considered nations. E r i c J . H o b s b a w m states that the nat ion, " i s a socia l entity on l y insofar as it relates to a certain k i n d o f modern territorial state, the 'nation-state', and it is point less to discuss nat ion and nat ional i ty except insofar as both relate to i t . " 9 1 There are substantial differences between the theories advanced b y modernists. Fo r example , wh i l s t H o b s b a w m and Ernst Ge l lner agree on the t ime at w h i c h the concept o f the nat ion emerged, their account o f the concept o f nat iona l i sm diverges. Despite differences, it is useful to acknowledge the s imi lar i ty o f approach o f writers such H o b s b a w m , Ge l lne r and Bendedict Anderson . They share the v i e w that the nat ion emerged as a consequence o f a broader trend o f " m o d e r n i z a t i o n " w h i c h inc luded developments such as the emergence o f capi ta l i sm, bureaucracy and be l i e f that the w o r l d cou ld be expla ined through reason . 9 2 The contrast between the age o f nat ional ism and previous structuring o f societies is explored b y Anderson . H e contends that the order ing o f the w o r l d into states w i th ident i f iable borders was not a feature o f the pre-modern era. H e states, "[ I ]n the older imag in ing , where states were def ined b y centres, borders were porous and indist inct and sovereignties faded impercept ib ly into one another . " 9 3 A n d e r s o n argues that 9 1 E.J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (Cambridge, 1990) at 9-10 9 2 Smith, supra note 86 at 8. 9 3 Anderson, supra note 77 at 19. 41 un l ike earl ier soc ia l mode ls , i n w h i c h leg i t imacy der ived f rom a d i v ine order, the leg i t imacy o f the nation-state stems f rom the consent o f those it governs. H e contends the very concept o f the nat ion challenges the h ierarchica l order ing o f people found i n the pre-modern era; despite the very real presence o f internal inequal i ty , the nat ion is based on the modern premise o f hor izonta l comradeship rather than hierarchica l o rde r i ng . 9 4 Ge l lner argues that nations are contingent entities rather than the natural order o f human societies. H e contends that nations emerged towards the end o f the 18th century because condit ions enabled "standardized, homogenous, central ly sustained h igh cu l tures" to assert themselves as the standard o f po l i t i ca l l eg i t imacy . 9 5 Ge l lne r states that whi l s t the emergence o f nations was contingent upon w ide r soc ia l developments, the concepts o f the nat ion and nat iona l ism asserted themselves so successfu l ly that the nat ion came to be seen as a natural aspect o f the human condi t ion . Fo r Ge l lner , nat ional ism is " a po l i t i ca l p r inc ip le , w h i c h holds that the po l i t i ca l and national unit should be congruent . " 9 6 H e considers the modern era to be an "age o f na t i ona l i sm" i n the sense that the be l i e f that the w o r l d should be compr ised o f nations has became so dominant that conce iv ing o f a w o r l d ordered any other way is almost unthinkable. Ge l lner argues that it is the almost unquest ioned leg i t imacy o f nat iona l i sm that has prompted cultural groups to strive for the status o f nat ionhood. Anderson, supra note 77 at 7. Ernst Gellner, Nations and Nationalism (Oxford, 1983) at 55. Ibid, at 1. 42 Gel lner states "nat ions can be def ined on ly i n terms o f the age o f nat iona l i sm, rather than as y o u might expect, the other way r o u n d . " 9 7 H o b s b a w m ' s account o f the emergence o f nat iona l i sm differs somewhat f r o m that o f Gel lner . H e argues that the nat ion emerged i n the late eighteenth century wh i l s t nat iona l i sm dates f rom near ly a century later . 9 8 H o b s b a w m states that at the t ime o f the A m e r i c a n and French Revo lut ions , " the na t ion " and "the state" were understood to be " i n d i v i s i b l e . " The state was considered the express ion o f the w i l l o f the people. H e states, " The 'na t ion ' so considered, was the body o f c i t izens whose co l lect ive sovereignty constituted them a state w h i c h was their po l i t i ca l exp re s s i on . " 9 9 H o b s b a w m contends that what dist inguished the nat ion at this t ime was a c o m m o n reject ion o f a mode l o f society based on a hierarchica l structure. H e states the nat ion was characterized b y a commitment to "the c o m m o n interest against part icular interests, the c o m m o n good against p r i v i l e g e . " 1 0 0 Between 1790 and 1880, i n order to constitute a nat ion, a people had to be considered " v i ab l e . " Th i s was k n o w n as the " threshold p r inc ip l e . " In order to c o m p l y w i t h this pr inc ip le , a people had to be endowed w i th suff ic ient land, resources and p o p u l a t i o n . 1 0 1 Add i t i ona l l y , the group had to demonstrate a longstanding associat ion 102 wi th an exist ing state, the possession o f a cultural elite and a capaci ty for conquest. Ibid, at 55. Hobsbawm, supra note 91 at 102. Hobsbawm, supra note 91 at 19. 0 Hobsbawm, supra note 91 at 20. ' Hobsbawm, supra note 91 at 31. 2 Hobsbawm, supra note 91 at 37. 43 H o b s b a w m characterizes this concept ion o f the nat ion as a progressive force, b r ing ing smal ler communi t ies together to achieve " improvement . " H o b s b a w m suggests that the cr iter ia used to determine the l eg i t imacy o f a nat ion altered s ign i f i cant ly after 1880. The threshold pr inc ip le was abandoned and ethnici ty and language became key cr i ter ia for def in ing na t i ons ; 1 0 3 consequently, the number o f groups c l a im ing to be nations s igni f icant ly increased. H e states i n the late 19th century, nat iona l i sm - a term that reflected the be l i e f that nations had po l i t i ca l rights - e m e r g e d . 1 0 4 Th i s changed the character o f the nat ion. The theory that "non-v iab le " communi t ies w o u l d assimilate into larger nations was abandoned as cultural groups proc la imed themselves sovereign nations w i t h corresponding rights. H o b s b a w m argues it was on l y i n the late nineteenth century that the popul is t assumpt ion o f a l i nk between language, ethnici ty and the nat ion emerged - as a conservat ive react ion to socia l and po l i t i ca l change. H e attributes this development to the threat that tradit ional communi t ies felt f rom the impact o f modern i ty , the emergence o f a new urban soc ia l structure and the mass migrat ion o f the nineteenth century. These created circumstances i n w h i c h groups sought to d is t inguish those w h o were " l i k e themselves" f r om " o t h e r s . " 1 0 5 John Hutch inson argues that cultural nat iona l ism has been w rong l y perce ived as the regressive counterpart to po l i t i ca l nat ional ism. Instead, he contends is a distinct movement w i t h different aims - many o f w h i c h are progressive. Fo r Hutch inson , 1 0 3 Hobsbawm, supra note 91 at 102. 44 cultural nat iona l ism is "de fens i ve " i n the sense that it was t yp i ca l l y promoted by the elite i n " f o l k " societies i n response to the impact o f modern izat ion . Howeve r , he characterizes it as seeking to reconci le the traditions o f those societies w i t h modern i ty and is therefore " p r o g r e s s i v e . " 1 0 6 2.16 The Imposs ib i l i t y o f N a t i o n F i tzpat r i ck argues that attempts to define the nat ion either b y reference to ethnici ty or modern i ty have been unsuccessful . Spec i f i ca l l y , he is cr i t i ca l o f attempts to discover an "essence" o f nat ion by reference to ethnic or ig ins or histor ica l developments. F i tzpatr ick contends that hav ing set out to define what the nat ion is b y reference to part icular ethnic or ig ins or universa l h istor ica l developments, theorists then fa i l to do so on their o w n terms: as not a l l ethnicities are granted the status o f nat ionhood, d is t inguish ing nations from cultural groups becomes reliant upon qual i t ies i n addit ion to ethnic i ty; i f the modern nat ion is dist inguished b y contrast to the part icularit ies o f ethnicity, it is st i l l dependent upon ethnici ty for that point o f compar ison . The meaning o f the term nat ion, F i tzpatr ick contends, "seems fated to rema in t ied to the very cr i ter ia - o f c o m m o n language, territory, h istory and so on - w h i c h repeatedly fa i l to mark it d e f i n i t i v e l y . " 1 0 7 H e suggests that the search for the or ig ins o f nat ion demonstrates the paradox at the heart o f modern i ty ; modern i ty defines i tse l f i n oppos i t ion to myth , and yet the or ig ins 1 0 5 Hobsbawm, supra note 91 at 109. 1 0 6 John Hutchinson, The Dynamics of Cultural Nationalism (Allen and Unwin, 1987). 45 o f modern societies are expla ined b y u t i l i z ing the myth ic , to w h i c h modern i ty opposes itself. F i tzpatr ick states, "Wha t Enl ightenment and modern i ty supposedly reject, i n a wo rd , is transcendence.. . In the un i f o rm l ight o f modern i ty , there is no room for a dual i ty o f meaning or for any ult imate a m b i g u i t y . " 1 0 8 In the search for or igins and the be l i e f that the essence o f an object can be found, the my tho logy o f the pre-modern age is mere ly substituted b y a be l i e f that b y l o o k i n g to the past the essence o f an object can be found. 2.17 L a w and N a t i o n F i tzpatr ick argues that the concepts o f the nat ion and modern l aw are both distinct and interdependent. In c o m i n g together they f o rm a discourse i n w h i c h each concept aff i rms the leg i t imacy o f the other. He describes modern l a w as " i l l im i t ab l y-se l f generat ing," that is , l aw insists upon its legi t imacy by reference to itself, rather than any pr ior standard. F i tzpatr ick notes that, paradoxica l l y , the l aw is " con t a i ned " by the part icular i ty o f its locat ion, and yet is "uncon ta ined " i n the sense that it serves to define the l imi ts o f the nation-state. The nat ion, though dependent upon l aw for its existence, nonetheless retains some autonomy outside that re lat ionship; F i tzpat r i ck assumes that law and nat ion w i l l each intersect w i t h other concepts i n a manner independent o f the relat ionship examined above. Fitzpatrck, supra note 79 at 112. Fitzpatrick, supra note 40 at 48. 46 I v i sua l ize F i tzpat r i ck ' s concept ion o f l aw and nat ion by way o f an analogy w i th the corresponding beams o f a p i tched roof. The first o f the two beams represents the modern law. The beam is self-generating i n the sense that it undoubted ly creates the structure o f the roof ; there is nothing we can point to as more central to the r o o f s construct ion. The corresponding second beam represents the nat ion. It prov ides a locat ion for the first beam; without the second beam, the first w i l l co l lapse. The two beams remain distinct. It is possible to gain some understanding o f each beam without reference to the other, such as d iscover ing the mater ia l f r om w h i c h it is made. The i r interdependency does not tel l us everything about the ind i v idua l components. E ach is capable o f relat ionships beyond the one descr ibed above. However , cons ider ing the relat ionship between the two beams prov ides insight into each that we w i l l not gain b y studying them independently. 2.18 The Cosmopo l i t an Na t i on F i tzpatr ick argues that the concept o f " Europeanness " is founded on a concept ion o f i tse l f as universa l , ordered, dynamic and p rogress i ve . 1 0 9 Th i s ident i ty is created by oppos ing i tse l f to that w h i c h is " u n c i v i l i z e d . " The " c i v i l i z a t i o n " o f Europe contrasts i tse l f w i th the perce ived " l aw lessness " o f A f r i c a . F i tzpa t r i ck ' s starting point is what Der r ida refers to as "the paradox o f nat ions. " Nat ions , o f course, have borders and because o f this are necessar i ly geographica l ly l imi ted . Nevertheless, nations define themselves b y reference to the universal . H e suggests that the universa l i ty o f the nat ion is reconc i led w i th the part icular i ty o f geography through the abstract. The 47 nat ion overcomes the l imitat ions o f borders b y an appeal to grand narratives o f its history and destiny. F i tzpatr ick cites the example o f Ba l i ba r ' s descr ipt ion o f " F r ench i deo logy " to demonstrate this point. A s "the land o f the 'R igh ts o f M a n , ' " Ba l i ba r expla ins , "true ' F rench i d e o l o g y ' " entrusts the nat ion w i t h a m i s s i on to educate the w o r l d . 1 1 0 Th rough this m iss ion , the values o f the F rench extend beyond the part icular to the universal . France may be contained by borders, but the F rench have a duty to spread " F r e n c h " values to the rest o f the wor ld . The nat ion may alternatively achieve a sense o f universa l i ty though a c l a im to embody universa l traits. Though a nat ion w i l l not be unique i n possessing those traits, it perceives i t se l f to be an example , perhaps a necessary one, to the rest o f the wo r l d . F i tzpat r i ck states, " The Enl ightenment , or modern izat ion , or material achievement m a y be w o r l d projects, but the nat ion w i l l s t i l l c l a im to manifest them except iona l ly or to endow them w i t h part icular or ig ins or necessary supp lements . " 1 1 1 Nat iona l narratives, w h i c h appeal to the universa l , act as a homogen i z i ng force w i th in the nat ion. F i tzpatr ick suggests that the homogen iz ing effect o f nat iona l i sm became one o f the characteristics that def ined Europe from A f r i c a . The concept o f Western or European nations was formed by a process o f co l lec t i ve ly Other ing themselves f rom A f r i c a . The exempl i f i ca t ion o f universa l characterist ics, " e m b o d i e d " by Western nations, was contrasted w i th the part icular i ty and heterogeneity o f A f r i c a . F i tzpatr ick uses the term "the comi ty o f nat ions" to describe the co l lec t iv i ty o f Western nations. A l t h o u g h the cr i ter ia for membersh ip var ied over t ime, a constant 1 0 9 Fitzpatrick, supra note 79 at 125. 1 1 0 Fitzpatrick, supra note 79 at 120. 4 8 standard has been that o f " c i v i l i z a t i o n . " 1 1 2 The concept o f Europeanness, later "Westernness , " is formed in oppos i t ion to that perce ived to be unc i v i l i z ed . F i tzpatr ick cites Hege l ' s depict ion o f A f r i c a i n the Philosophy of History to demonstrate the importance o f the contrast between c i v i l i z a t i on and lawlessness found i n Western phi losophy. H e argues the comi t y o f nations emerged b y contrasting Europeanness, and the admirable traits it c l a imed to embody , w i t h a negative depic t ion o f A f r i c a . 1 1 3 A c c o r d i n g to Hege l , "the A f r i c a n " l ives i n a state o f lawlessness. H e represents man " i n his complete ly w i l d and untamed s ta te . " 1 1 4 The A f r i c a n has not yet achieved the standard o f universal i ty . European regimes, d i v ided into nations and under law, are contrasted w i th the lawless o f A f r i c a . The status o f nat ion becomes synonymous w i th c i v i l i za t i on . The negative depict ion o f the A f r i c a n serves a number o f funct ions. B y prov id ing contrast it af f i rms the European nat ion 's percept ion o f i tse l f as c i v i l i z ed . Hege l ' s A f r i c a also serves as a threat or warn ing to the c i v i l i z e d nat ion; the nat ion that has transcended savagery has mere ly progressed a long a scale ranging f rom savagery to c i v i l i za t ion . C i v i l i z a t i o n is therefore not detached f rom savagery but l inked to it. F i tzpatr ick states, " The poss ib i l i ty o f revers ion or regression to the badness w i th in also r e m a i n s . " 1 1 5 The c i v i l i z ed nat ion faces the constant threat o f reversion. 1 1 1 Fitzpatrick, supra note 79 at 121. 1,2 Ibid. {nIbid. 1 1 4 Fitzpatrick, supra note 40 at 126. 49 Harr ington argues the Lobe dec is ion and the outcome C i t i zensh ip Re fe rendum showcase the ideo log ica l shifts that have taken place i n Ireland i n recent years. H e describes the dominant Ir ish identity o f the 2 1 s t century as "postnat iona l is t , " a term w h i c h he borrows f rom R i cha rd K e a r n e y . 1 1 6 Kea rney ' s w o r k suggests the conf l ic t between Nat ional is ts and Un ion is ts i n Nor thern Ireland might be resolved b y l o o k i n g to a c o m m o n European identity. H e argues that tradit ional Nat iona l i s t and Un ion i s t identit ies were opposed to each other; each made exc lus ive terr i torial c la ims to Nor thern Ireland. Kea rney attributes the symbo l i c and actual v io lence o f the Nor thern Ireland " t roub les " to the impasse created by this ideo log ica l log jam. He suggests that the conf l ic t i n Nor thern Ireland cou ld best be resolved b y each side embrac ing "mu l t i p l e and shi f t ing i den t i t i e s . " 1 1 7 Th i s proposa l attempts to transcend the log jam by inv i t ing each group to embrace a c o m m o n European cosmopol i tan identity. Kearney states, "Na t i ona l identity [would] appeal to an histor ic past, and transnational, European identity to a projected future, [while] reg iona l identity 118 represents a commitment to part ic ipatory democracy i n the present." D r a w i n g on the work o f F i tzpatr ick , Har r ington argues that the "escape f rom national ist stalemate into the f l o w or European progress " necessari ly invo lves contrasting European identity w i th an "O the r . " Whereas the new l y independent Ir ish state o f the early-to-mid 2 0 t h century def ined i tse l f i n oppos i t ion to Great B r i t a in , the modern day European Ir ish state defines i tse l f i n contrast to the " b a c k w a r d s " nations 1 1 5 Fitzpatrick, supra note 79 at 128. 1 1 6 Richard Kearney, Postnationalist Ireland (Routledge Press, 1997) at 2. 1 1 7 Harrington, supra note 72 at 3. 1 1 8 Kearney, supra note 116 at 59. 50 o f A f r i c a and Eastern Europe. Har r ington states, " In a sense the border that matters is no longer the l ine separating N o r t h f rom South. It is instead the barrier between Europe and its others w h i c h runs through the ports and the airports, r ight into the maternity wards o f the s ta te . " 1 1 9 I suggest that the Repub l i c o f Ireland's embrace o f Europeanness re-invents the nat ion rather than transcends it. F i tzpat r i ck ' s analysis chal lenges the narrative i n w h i c h the nation-state progresses from a parochia l irredentist na t iona l i sm to a shi f t ing cosmopol i tan postnat ional ism. Instead cosmopol i tan ism is incorporated as a trait o f European nation-ness. F i tzpatr ick suggests that membersh ip o f the E U has come to symbo l ize the member state's embrace o f cosmopo l i tan ism. Thus membersh ip o f the 120 E U reaff i rms the leg i t imacy o f the nation-state rather than transcends it. In F i tzpa t r i ck ' s analysis , cosmopol i tan ism becomes a characterist ic o f En l ightened European nat iona l ism. He ld ' s diagnosis of fer ing the poss ib i l i t y o f ove rcoming the contradict ions o f l ibera l i sm serves to perpetuate the contradict ions o f the nat ion. A t present the wo r l d is d i v ided into " c i v i l i z e d " Western nations and the Other by borders. In H e l d ' s cosmopol i tan mode l , the c i v i l i z ed w o r l d is recast as cosmopol i tan i n oppos i t ion to the irredentist Other. Harrington, supra note 72 at 19. Fitzpatrck, supra note 79 at 136. 51 2.19 Conc l u s i on In the preceding pages I have sought to locate the Ir ish C i t i zensh ip Re fe rendum w i t h i n a d iscuss ion o f c i t izenship, sovereignty and the nat ion. I have argued that each o f these should be seen as a co l lec t ion o f loose ly associated inter-related themes rather than c lear ly def ined concepts. The dynamic qual i ty o f these themes results i n per iodic exposure o f the inadequacies o f the grand narratives o f moderni ty . Howeve r , the pervasiveness o f modern i sm 's be l i e f i n certainty leads us to develop ever more comp lex theories i n an attempt to accommodate the dynamic nature o f these themes. In the f o l l o w i n g chapters I explore how these themes p layed out i n Lobe and the C i t i zensh ip Referendum. I argue that whi l s t Lobe and the C i t i zensh ip Re fe rendum exposed the tensions present i n modern def ini t ions o f c i t izensh ip , sovereignty and nat ion, an examinat ion o f the history o f the regulat ion o f Ir ish c i t izenship demonstrates that those tensions were always present. A s such, Lobe and the C i t i zensh ip Re fe rendum mark a cont inui ty as w e l l as change. 52 C H A P T E R T H R E E 3.1 Introduct ion A s chapter two expla ined, one o f the trends o f the 2 0 t h century was a gradual nar rowing o f the d ist inct ion between the rights enjoyed b y c i t izens and non-cit izens. Personhood was increas ingly he ld as the criter ia for entitlement to rights rather than c i t i z ensh ip . 1 2 1 Th i s has led to questions be ing raised about the relevance o f c i t izenship, sovereignty and the nation-state i n the 2 1 s t century. Gerard De lan ty states " E spec i a l l y i n the countries o f the European U n i o n , residence is increas ingly com ing to be the over-riding factor i n c i t izenship r ights . . .a l though st i l l based on the pr ior i ty o f nat ional c i t izenship , a lega l ly cod i f i ed European c i t izenship n o w exists as a post- 122 national ist c i t izenship. In contrast, Sask ia Sassen argues that though it has re l inquished m u c h o f its tradit ional sovereign power , in regard to immigra t ion , the nat ion state continues to 123 assert the right to contro l its borders. Y o u w i l l reca l l , Cather ine Dauvergne contends that as other areas tradi t ional ly considered exc lus i ve l y w i t h i n the doma in o f the sovereign state, such as economic po l i c y and law and order, have been chal lenged by other sites o f power , migrat ion l aw has become the " last bas t ion " o f tradit ional 1 2 1 Joseph H. Carens, "Cosmopolitanism, Nationalism, and Immigration: False Dichotomies and Shifting Presuppositions" Ronald Beiner & Wayne Norman ed., Canadian Political Philosophy (Oxford University Press, 2001) 17 at 20. 1 2 2 Gerard Delanty, "Irish Political Community in Transition" (2005) 33 Irish Review 13 at 15. 1 2 3 Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (Columbia University Press, 1996) at 59. 53 sove re ign ty . 1 2 4 In this chapter I seek to b u i l d upon the f ramework establ ished b y Sassen and Dauvergne. I suggest that c i t izenship laws should be understood as a type o f migra t ion law. Possess ion o f c i t izenship entitles persons to exercise certain rights w i t h i n a state that non-cit izens cannot. B y increasing the number o f people e l ig ib le to receive c i t izenship - for example b y inc lud ing descendents o f c i t izens bo rn outside the state - a country increases the number o f people w h o can migrate to the state without the need to satisfy the requirements o f formal migra t ion laws. B y restr ict ing entitlement to Ir ish c i t izenship, the Repub l i c o f Ireland sought to exercise control over its borders. However , I suggest this manner o f exerc is ing sovereignty was not new to the Irish state. The pract ica l and symbo l i c use o f c i t izenship laws has a lways been o f part icular importance to the Repub l i c o f Ireland. Fo r m u c h o f the history o f the state, however, the use o f c i t izenship l aw as a fo rm o f migra t ion law was obscured b y the re lat ive ly sma l l number o f people immigra t ing to Ireland and the seemingly generous prov is ions o f Ir ish c i t izenship law. 3.2 Ireland and Sovereignty Wh i l s t I agree w i th Dauvergne that the control o f borders is o f increas ing s igni f icance to states i n their efforts to assert sovereignty, I suggest that use o f c i t izenship laws has long been o f part icular importance to the Repub l i c o f Ireland. T h o u g h it became fo rma l l y independent i n 1937, the extent to w h i c h the Repub l i c o f Ireland cou ld 1 2 4 Catherine Dauvergne, "Sovereignty, Migration and the Rule of Law in Global Times" (2004) 67(4) Mod. L . Rev. 588 5 4 exercise sovereignty i n the " t r ad i t i ona l " sense dur ing the ensuing decades was l imi ted . In the wake o f independence, the Repub l i c o f Ireland remained t ied economica l l y to the Un i t ed K i n g d o m . The major i ty o f Ir ish exports went to the U K ; though the Repub l i c o f Ireland established its o w n currency, it was a derivat ive o f S t i r l ing and Ir ish interest rates matched those set i n L o n d o n . B rendan H a l l i g a n states, " I re land was part o f an economic and monetary un ion , w i t h some m ino r 125 modi f i ca t ions because o f po l i t i ca l independence." The extent to w h i c h the Repub l i c o f Ireland cou ld c l a i m to exercise sovereignty i n regards to l aw and order was also l imi ted . The Government of Ireland Act, 1920 [the 1920 Act]126 part i t ioned Ireland into the Ir ish Free State and Nor the rn Ireland. Nor thern Ireland remained part o f the U K . Though A r t i c l e 2 o f the Const i tu t ion o f Ireland 1937 declared that the national territory compr ised " the who le Ireland o f I re land, " the Oireachtas d id not exercise power over the s ix counties i n the north-east corner, a fact acknowledged i n A r t i c l e 3. The Repub l i c o f Ireland's relat ionship w i th the U K has gradual ly altered. In 1972 both states j o ined the European U n i o n [ E U ] . 1 2 7 Th rough membersh ip o f the E U , the Repub l i c o f Ireland's relat ionship w i th the U K changed f r om one i n w h i c h it was economica l l y dependent upon the U K to one i n w h i c h the states are partners i n a Brendan Halligan, "What Difference did It Make?" in Rory O'Donnell ed., Europe: the Irish Experience, (Institute of European Affiars, 2000) 18 at 18. 126 Government of Ireland Act 1920 (U.K.) 1920, c.67, s.l. 1 2 7 Then the European Economic Community [EEC]. 55 broader un ion . F intan O ' T o o l e states that 1996 was the year i n w h i c h " i t became * • 128 possib le to understand the Repub l i c o f Ireland without reference to B r i t a i n . " Po l i t i ca l l y , the relat ionship between the Repub l i c o f Ireland and the U K has also changed. The B r i t i sh Government acknowledged Ireland's r ight to se l f determinat ion i n the Agreement o f 1 9 9 8 . 1 2 9 In the event that voters i n the Repub l i c o f Ireland and Nor thern Ireland were to endorse proposals for a uni ted Ireland the B r i t i sh Government has stated it w o u l d accept that r e su l t . 1 3 0 In a rec iproca l gesture, the Repub l i c o f Ireland removed its territorial c l a im to Nor thern Ireland i n A r t i c l e s 2 and 3 o f its Const i tut ion. Consequent ly there ceased to be a dispar i ty between the area that the Repub l i c o f Ireland c la ims as its nat ional territory and that over w h i c h it exercises effect ive sovereignty. ; Whi l s t these developments enabled the Repub l i c o f Ireland to achieve economic prosper i ty and norma l ized its relations w i th the U K , they have not resulted i n the Repub l i c o f Ireland exerc is ing sovereignty i n a tradit ional manner. It has ceased to be economica l l y dependent upon the U K , but has achieved that status through European integration and the embrace g loba l izat ion rather than through self-suff ic iency. It has ut i l i zed processes that have seen many facets o f state sovereignty transferred f rom states to supra-national bodies. Furthermore, wh i l s t the Agreement resulted i n the remova l o f the Repub l i c o f Ireland's territorial c l a i m to Nor thern Ireland, it also 1 2 8 Fintan O'Toole, quoted in Michael Mays, "Irish Identity in an Age of Globalisation" (2005) 13(1) Irish Studies Review at 7. 129 Northern Ireland Act 1998 (U.K.) 1998 c.47, s.l . 56 commit ted the state to establ ishing a H u m a n R ights C o m m i s s i o n to ensure that the 131 • state conforms to international human rights standards. Therefore, at the point i n w h i c h the state's c l a im to sovereignty co inc ided most strongly w i t h its abi l i ty to exercise authority over its proc la imed territory, the Repub l i c o f Ireland announced that its authority was subject to a standard set beyond the borders o f the nation-state. Consequent ly , the Repub l i c o f Ireland has never exerc ised m a n y o f the powers tradi t ional ly associated w i t h state sovereignty. In the f o l l o w i n g sections I demonstrate that regulat ion o f migrat ion laws is one o f the tools that it has consistent ly used as a means to assert sovereignty. 3.3 Ir ish C i t i zensh ip 1 9 2 2 - 1937 The Ir ish Free State was established i n 1922. The Const i tu t ion o f the Free State o f Ireland [the 1922 Const i tut ion] was based upon the terms o f the Anglo-Irish Treaty o f 1921 [the 1921 Treaty]. It granted the Irish Free State some po l i t i ca l autonomy as a d o m i n i o n o f the B r i t i sh Commonwea l th . A r t i c l e 3 dealt w i t h Ir ish c i t izenship. It stated, " E v e r y person, without d ist inct ion o f sex domic i l ed i n the area o f the Ir ish Free State (Saorstat Ereann) at the t ime o f the com ing into operat ion o f this Const i tu t ion , who was born i n Ireland or who has been ord inar i l y resident i n the area o f the Ir ish Free State (Saorstat Ereann) for not less than seven years, 131 The Agreement, 1998, Rights, Safeguards and Equality of Opportunity, s.9. Northern Ireland Office, online < http://www.nio.gov.uk/agreement.pdf>. 57 is a c i t i zen o f the Ir ish Free State (Saorstat Ereann) and shal l w i t h in the l imi ts o f the ju r i sd i c t ion o f the Irish Free State (Saorstat Ereann) enjoy the pr iv i leges and be subject to the obl igat ions o f such c i t izenship : p rov ided that any such person be ing a c i t izen o f another State may elect not to accept the c i t izenship hereby conferred; and the condit ions govern ing the future acquis i t ion and terminat ion o f c i t izenship i n the Irish Free State (Saorstat Ereann) shal l be determined by l a w . " 1 3 2 Unde r the 1922 Const i tut ion, anyone born i n the 26 counties that compr i sed the Ir ish Free State pr ior to the date upon w h i c h it came into effect became an Ir ish c i t izen. A n y o n e born i n the i s land o f Ireland and resident i n the Ir ish Free State at the t ime the 1922 Const i tut ion came into effect was also a c i t izen o f the Ir ish Free State.- So too was anyone born elsewhere who had l i ved i n the ju r i sd i c t ion o f the Ir ish Free State for the preceding three years. F r o m 1922 unt i l the passing o f the Irish Nationality and Citizenship Act 1935 [the 1935 Act] there was no statute govern ing Ir ish nat ional i ty or c i t izensh ip . Th i s led to the anomaly that those born i n the Irish Free State after 6 December 1922 were not Ir ish c i t izens unt i l the 1935 Act conferred c i t izenship upon them retrospectively. M a r y D a l y suggests that the delay i n int roduc ing an A c t was because the Ir ish Free State was reluctant to introduce legis lat ion acknowledg ing its c i t izenship was Constitution of the Free State of Ireland 1922, Article 3 (Stationary Office, 1922). 58 subservient to B r i t i sh na t iona l i t y . 1 3 3 She suggests that the Ir ish Free State resisted legis lat ing on c i t izenship i n the hope that negotiations at the Imper ia l Conference o f 1926 w o u l d lead to a declarat ion that C o m m o n w e a l t h c i t izenship and B r i t i sh nat ional i ty were o f equal status. Instead, The Ba l f ou r Dec la ra t ion o f 1926 adopted an " u m b r e l l a " theory o f B r i t i sh national ity. It stated that whi l s t C o m m o n w e a l t h states were equal , the status o f Commonwea l t h c i t izen was secondary to the al legiance subjects owed to the B r i t i sh C r o w n . The 1935 Act attempted to assert, as far as poss ib le , Ireland's c l a i m to be a sovereign nat ion wh i l s t m i n i m i z i n g the detrimental effect upon its re lat ionship w i t h B r i t a in . It was p r imar i l y concerned w i th the assertion o f sovereignty i n the terr i tory o f the Ir ish Free State. Sect ion 33 purported to repeal the B r i t i sh leg is la t ion, so those born i n the Ir ish Free State w o u l d not longer be both Ir ish c i t izens and B r i t i sh nationals. D a l y suggests that the cr i ter ia for Ir ish c i t izenship i n the 1935 Act were mode led on the corresponding B r i t i sh A c t i n an attempt to placate B r i t a i n . 1 3 4 The 1935 Act also marks the beg inn ing o f a process b y the Ir ish state to use its c i t izenship laws to assert sovereignty, i n a l imi ted fo rm, over the who le is land o f Ireland. The Constitutional (Amendment No. 26) Act, 1935135 r emoved the phrase " w i t h i n the l imi ts o f the ju r i sd i c t ion o f the Ir ish Free State (Saorstat E reann ) " f rom A r t i c l e 3 o f the 1922 Constitution. Th is enabled the Oireachtas to pass legis lat ion 1 3 3 Mary Daly, "Irish Nationality and Citizenship since 1922" (2001) 32 Irish Historical Studies 377 at 382. 1 3 4 Daly, ibid, at 385. 135 Constitutional (Amendment No. 26) Act 1935 (JL), 1935 c. 12. 59 w h i c h bestowed Ir ish c i t izenship upon those born outside the borders o f the Ir ish Free State. Sect ion 2 o f the 1935 Act enabled the ch i ldren o f male Ir ish c i t izens born outside the state to be awarded Irish c i t i z e n s h i p . 1 3 6 The 1935 Act also bestowed a discret ionary power to award c i t izenship to those born outside the Ir ish Free State upon the M in i s t e r for Jus t i ce . 1 3 7 It therefore became poss ib le for. residents o f Nor thern Ireland to become Ir ish c i t izens. The measures introduced b y the 1935 Act were c r i t i c ized b y some members o f the D a i l as not go ing far enough i n asserting Ir ish sovereignty. Deputy John A . Coste l lo stated that the 1935 A c t was a "na t iona l i t y " A c t i n name only . H e compla ined that the 1935 Act d id noth ing to assert the sovereignty o f the Ir ish nat ion " w h i c h springs f rom our sentiments as an independent race, f r om the fu l l knowledge o f our past history as a n a t i o n . " 1 3 8 In a sense he was correct. Despi te the w o r d i n g o f the 1935 Act, B r i t a in cont inued to v i ew Ireland as a C o m m o n w e a l t h member and d i d not recognize Irish c i t izenship as distinct f rom B r i t i sh nat ional i ty unt i l 1948. A s such, Ir ish c i t izens cont inued to be B r i t i sh subjects. Others raised cr i t i c isms o f the 1935 Act's treatment o f the residents o f Nor thern Ireland. D u r i n g the debate surrounding the Irish Nationality and Citizenship Bill, 1934, Depu ty John Esmonde compla ined that the measures were inappropriate as they treated members o f the " I r i sh na t i on " resident i n Nor thern Ireland i n the same manner as " fo re igners . " H e stated, 136 Irish Nationality and Citizenship Act 1935, (I.), 1936 s.2(2)(a). 137 Ibid. s.4. 6 0 "under this B i l l , i n future the Irish people o f the N o r t h are to be put i n the same pos i t ion as Turks . . . accord ing to the B i l l i n future the young Turks o f Tyrone and the dancing Derv ishes o f De r r y w i l l have to go on a p i lg r image to that M e c c a o f Ir ish national i ty, P i c cad i l l y C i r cus , and, at the H i g h Commiss ione r ' s of f ice there, w i l l have to have their names inscr ibed i n order 139 to obta in the benefits o f Ir ish c i t i zensh ip . " 3.4 Ir ish C i t i zensh ip : 1937 - 1998 In 1937, the 26 counties that today comprise the Repub l i c o f Ireland adopted its present const i tut ion. A r t i c l e 9 o f the Const i tut ion decreed that a l l c i t izens o f the Ir ish Free State became ci t izens o f the Ireland upon the Const i tu t ion c o m i n g into e f fec t . 1 4 0 Future acquis i t ion and loss o f c i t izenship continued to be determined b y the 1935 Act unt i l 1956. A t that point, the 1935 Act was replaced w i t h the Irish Nationality and Citizenship Act, 1956 [the 1956 Act] w h i c h , although amended since its introduct ion, was never repealed and remains i n effect t o d a y . 1 4 1 The c i t izenship regime implemented b y the 1956 Act sought to achieve two goals. It sought to further overcome the d i f f i cu l t y posed b y part i t ion to the Ir ish nationalist v i s i on , i n w h i c h the who le is land o f Ireland was recognized as a nation-state; it also 1 3 8 Deputy John A. Costello, Ireland, DM Debates, vol.55 (4 April 1935). 1 3 9 Deputy John Esmonde, Ireland, DM Debates, vol.55 (4 April 1935). 1 4 0 Constitution of Ireland 1937, Article 9.1.1. 141 Irish Nationality and Citizenship Act 1956 (I.) 1956, c.26 [the 1956 Act]. 61 attempted to counteract the p rob lem o f depopulat ion. The framers o f the 1956 Act hoped to achieve these goals b y extending the categories o f person entit led to c l a i m Ir ish c i t izenship. The inf luence o f the jus soli pr inc ip le is apparent i n Part II o f the 1956 Act. Part II o f the 1956 Act defines w h o is an Ir ish c i t izen. U n t i l recent changes i n the legis lat ion, Sect ion 6(1) stated anyone born i n Ireland was an Ir ish c i t izen . N o further qua l i f i ca t ion was required i n order to acquire Ir ish c i t i z e n s h i p . 1 4 2 The jus soli pr inc ip le remains w i th in the 1956 Act today; albeit i n a fo rm tempered b y a res idency requirement. Part II o f the 1956 Act is also extensive ly in f luenced by the jus sanguinis pr inc ip le . Sect ion 6(2) states that a ch i l d born to a parent w h o is an Ir ish c i t i zen is an Ir ish c i t izen. The rule applies regardless o f whether the c h i l d was born i n the state, the c i t i zen parent was resident i n Ireland at the t ime o f the ch i l d ' s b i r th , or i f the c i t izen parent was al ive at the t ime o f the ch i ld ' s b ir th. B y bestowing Ir ish c i t izenship upon the ch i ldren o f Ir ish c i t izens, regardless o f whether the ch i l d was born or w i l l be raised i n Ireland, Sect ion 6(2) demonstrates a concept ion o f Ir ish c i t izenship i n w h i c h Irishness is def ined b y lineage rather than b i r th into, or contr ibut ion to, Ir ish society. The inf luence o f the jus sanguinis pr inc ip le is also evident i n Part III o f the 1956 Act. Part III determines who can become an Ir ish c i t izen. Ord inar i l y , an a l ien must c o m p l y w i t h condit ions set out i n Sect ion 15 o f the A c t i n order to receive a 62 certif icate o f natural izat ion. Sect ion 15 is qua l i f ied b y Sect ion 16 w h i c h lists c ircumstances i n w h i c h the M in i s t e r for Justice m a y grant a certif icate o f natural izat ion regardless o f whether the condit ions are met. A m o n g the circumstances expressly stated by Sect ion 16 is "where the appl icant is o f Ir ish d e c e n t " 1 4 3 and "where the applicant is a parent or guardian act ing on beha l f o f a minor o f Ir ish decen t . " 1 4 4 B y the early 1950s, an increasing number o f people born i n Nor thern Ireland were not entit led to Ir ish c i t izenship under the 1935 Act because their fathers had been born outside the state. However , M a r y D a l y argues that extending the benefits o f Irish c i t izenship to their f e l l ow countrymen was not the pr imary goa l o f the framers o f the 1956 Act. H e r research indicates that the Ir ish Government was more concerned w i th securing the Repub l i c o f Ireland's c l a im to be a sovereign state than ensuring the we l lbe ing o f those i n Nor thern Ireland. She points out that wh i l s t the Ir ish Government had protested strongly about the British Nationality Act 1948145 it had hitherto shown l itt le concern for anomalies i n its o w n legis lat ion w h i c h prevented Northerners from exerc is ing rights w i th in the Repub l i c o f I r e l and . 1 4 6 The extension o f entitlement to c i t izenship was therefore p r ima r i l y a symbo l i c measure. B y ent i t l ing anyone born i n the is land o f Ireland to Ir ish c i t izenship , the 1 4 2 The exception to this rule was the case of those born in Northern Ireland who were required under Section 7 of the 1956 Act to "declare" that they were Irish in order to acquire Irish citizenship. Consequently, it is not correct to state they were Irish citizens solely from birth. 143 Supra note 141 s. 16(a). 144 Supra note 141 s. 16(b). 145 British Nationality Act 1948 (UK) 1948, c.56. 1 4 6 Daly, supra note 133 at 392 63 1956 Act served to further a nat ional narrative about the ind i v i s i b i l i t y o f the Irish nat ion i n the face o f chal lenge posed b y part i t ion. Though the power o f the Ir ish state on l y extended to 26 o f the 32 counties, the 1956 Act entit led those born i n Nor thern Ireland to c l a i m Ir ish c i t izenship. It sought to reduce, as far as poss ib le , the dist inct ion between those born i n the Repub l i c o f Ireland and those bo rn i n Nor thern Ireland. Remarks by then M in i s t e r for Justice, James Everett, dur ing the D a i l debate on what was to become the 1956 Act indicate the preva i l ing m o o d o f the t ime. H e stated, " A result o f this new prov i s ion is that b i r th i n the nat ional territory o f the S i x Count ies is recognized, just as i n the Twenty-S ix Count ies , as enabl ing Ir ish c i t izenship to be transmitted f rom either the father or mother to the ch i ldren i n a never ending cha in , without any formal i ty o f r eg i s t r a t i on . " 1 4 7 B y ent i t l ing a large class o f persons to c l a im Ir ish c i t izensh ip , the 1956 Act also sought to counter depopulat ion, one o f the pract ica l d i f f i cu l t ies fac ing the state at that t ime. A p p r o x i m a t e l y ha l f a m i l l i o n people - one seventh o f the popula t ion - left Ireland i n the 1 9 5 0 s . 1 4 8 In 1956 the threat depopulat ion posed to Ir ish society was perceived to be greater than that posed b y inward migrat ion. John A . Har r ington describes the nat ional c l imate o f the t ime as "one o f defeat and d e s p a i r . " 1 4 9 The 1956 Act entit led both those born i n the state and those descendent o f Ir ish c i t izens to c l a im c i t izenship i n the hope that it w o u l d decrease the threat posed b y depopu l a t i on . 1 5 0 It 1 4 7 Deputy James Everett, Ireland, Dail Debates, vol. 154 (29 February 1956). 1 4 8 Tim Pat Coogan, De Valera: Long Fellow, Long Shadow (London, Hutchinson 1993) at 661-667. 1 4 9 John A . Harringon, "Citizenship and Biopolitics of Postnationalist Ireland" (2005) 32(3) J.L. & Soc'y424at431. 1 5 0 Siobhan Mullally, "Citizenship and Family Life in Ireland: Asking the Question 'Who Belongs?'" (2005) 25(3) Legal Studies 578. 64 was a strategy l i nked to the concept o f Ir ish sovereignty i n the sense that it attempted to secure the state through economic wel l-being. 3.5 The Nineteenth Amendmen t to the Const i tut ion o f Ireland O n 10 A p r i l 1998, agreement was reached between negotiators charged w i t h securing a settlement for govern ing Nor thern I re l and . 1 5 1 The Agreement was accepted by voters i n Nor thern Ireland and the Repub l i c o f Ireland i n separate referenda. It effected s igni f icant change i n the relationships between the Repub l i c o f Ireland, Nor thern Ireland, and Great B r i ta in . The undertakings o f the parties envisaged a re- conceptual izat ion o f " I r i shness" and "B r i t i shness . " In the Repub l i c o f Ireland, voters approved the Nineteenth Amendment to the Const i tut ion o f Ireland. Th i s replaced the tradit ional c l a i m to Nor thern Ireland w i t h an inc lus ive def in i t ion o f Irishness. Howeve r , wh i l s t the Nineteenth Amendment s ignaled a re-conceptual izat ion o f " I r i shness" and the aspirations o f the state, the Repub l i c o f Ireland cont inued to use its c i t izenship laws as an expression o f state sovereignty. F r o m the t ime o f Ireland's part i t ion by the Government of Ireland Act, 1920 [the 1920 Act], Nor thern Ireland was the subject compet ing c la ims to sovereignty between the Ir ish Free State (wh ich became the Repub l i c o f Ireland) and the U n i t e d K i n g d o m . B road l y speaking, those who ident i f ied themselves as Ir ish Nat iona l is ts perce ived the part i t ion o f Ireland and the establishment o f Nor thern Ireland to be an i l legi t imate act, Ibid. 65 whi ls t those w h o saw themselves as B r i t i sh Un ion is ts he ld that Nor thern Ireland was a legit imate state. Nat ional is ts reasoned that the Genera l E l ec t ion o f 1918, i n w h i c h a major i ty i n Ireland had endorsed independence, gave leg i t imacy to the concept o f Ireland as an independent, unitary is land nation. That a major i ty o f voters i n the north-east o f Ireland had rejected independence d id not jus t i f y part i t ion. J J . Lee succ inct ly captures the dominant Nat iona l is t cr it ique o f part i t ion, stating " T h e U ls te r unionist m i n d saw no incongru i ty i n deny ing any nationalist right to rule the n ine counties o f 'Protestant ' U ls ter on the basis o f a 3:1 nationalist major i ty i n Ireland as a who le , wh i l s t s imultaneously ins ist ing on a right to rule U ls ter w i t h a 55 per cent Protestant 152 major i ty . " The rejection o f the leg i t imacy o f Nor thern Ireland was ref lected i n Ar t i c l es 2 and 3 o f the Const i tut ion o f Ireland 1937: " A r t i c l e 2. The nat ional territory consists o f the who le Is land o f Ireland, its islands and the terr itorial seas. A r t i c l e 3. Pend ing the re-integration o f the nat ional territory, and wi thout prejudice to the right o f the Par l iament and Government established by this Const i tut ion to 66 exercise ju r i sd i c t ion over the who le o f that territory, the laws enacted b y that Par l iament shal l have the l ike area and extent o f appl icat ion as the laws o f Saorstat E i reann and the l ike extra-territorial ef fect . " B y l ay ing c l a i m to "the who le is land o f I re land," A r t i c l e 2 denied the l eg i t imacy o f Nor thern Ireland. Reference to "the re-integration o f the nat ional terr i tory" i n A r t i c l e 3 ref lected a unitary concept ion o f the Ir ish nation-state. It perce ived a t ime in w h i c h "the N o r t h " (never Nor thern Ireland) w o u l d assimilate into the Ir ish Free State. The concept o f ass imi la t ion is central to the tradit ional Nat iona l i s t concept o f reuni f icat ion; the re-integration o f the nat ional territory w o u l d be a uni lateral act ion i n w h i c h the i l legi t imate northern state assimilated into the legit imate southern state. Un ion is ts argued that the 1920 Act created two legit imate states, Nor thern Ireland and the Ir ish Free State, when it part i t ioned the is land o f Ireland. Un ion i s t s reasoned that at the t ime o f part i t ion the who le o f Ireland was part o f the U n i t e d K i n g d o m and therefore subject to the Westminster doctrine o f Par l iamentary Supremacy. Consequent ly , the Westminster Par l iament had the authority to part i t ion Ireland i f it w ished . Furthermore, the doctrine o f Par l iamentary Supremacy ensured that, unt i l the event o f a repeal o f the 1920 Act, Nor thern Ireland was a legit imate po l i t i ca l entity. In contrast to the c la ims o f Nat ional is ts , Un ion i s t s mainta ined the Const i tut ion o f Ireland made an i l legi t imate territorial c l a im upon part o f the sovereign Un i t ed K i n g d o m . J.J. Lee, Ireland 1912-1925: Politics and Society (Cambridge University Press, 1989) at 4. 67 The Agreement sought to move away f rom what Kearney dubs " the nationalist- unionist l o g j a m " o f compet ing irredentist c la ims to sovere ign ty . 7 5 3 It envisaged a re- conceptual izat ion, not on l y o f northern Na t i ona l i sm and U n i o n i s m , but also w ider Ir ish and B r i t i sh identit ies. Ir ish and B r i t i sh identities were reconce ived as int imate ly inter-related rather than mutua l l y exc lus ive and necessar i ly incompat ib le . The Agreement envisaged that whi ls t people w o u l d retain their sense o f Irishness or Br i t ishness these w o u l d be seen as an histor ic aspect o f a broader communi ty . M e a n w h i l e , it w o u l d be possible to transcend longstanding d i f f i cu l t ies b y each group l ook ing to the future through the lens o f a c o m m o n European identity. In the Repub l i c o f Ireland, the or ig ina l A r t i c l e 2 o f the Const i tut ion o f Ireland w h i c h la id c l a i m to the who le is land o f Ireland was replaced w i t h an inc lus ive concept o f Irishness: " A r t i c l e 2. It is the entitlement and birthright o f every person born i n the is land o f Ireland, w h i c h includes its islands and seas, to be part o f the Ir ish Na t ion . That is also the entitlement o f a l l persons otherwise qua l i f i ed i n accordance w i t h law to be cit izens o f Ireland. Furthermore, the Ir ish nat ion cherishes its special a f f in i ty w i t h people o f Irish ancestry l i v i n g abroad who share its cultural identity and heritage." Richard Kearney, Postnationalist Ireland (Routledge Press, 1997) at 2. 68 The new A r t i c l e 3 acknowledged a p lura l i ty o f I r ish identit ies. Wh i l s t it retained the Nat iona l is t aspiration o f a united Ireland, it acknowledged the northern state. The concept o f un i f i ca t ion through ass imi lat ion was abandoned. A r t i c l e 3. 1. It is the f i rm w i l l o f the Ir ish nat ion, i n harmony and fr iendship, to unite a l l the people who share the territory o f the is lands o f Ireland, i n a l l the d ivers i ty o f their shared identities and tradit ions, recogn is ing that a united Ireland shal l be brought about on l y b y peaceful means w i t h the consent o f the major i ty o f the people, democrat ica l ly expressed, i n both jur isd ic t ions i n the is land. U n t i l then, the laws enacted b y the Par l iament that existed immedia te ly before the com ing into operat ion o f this Const i tut ion. 2. Institutions w i t h executive powers and funct ions that are shared between those jur isd ic t ions may be established b y their respective responsible authorities for stated purposes and may exercise powers and functions i n respect o f a l l or any part o f the i s l and . " The rev ised Ar t i c l es 2 and 3 acknowledge the leg i t imacy o f the Ir ish identity o f northern Nat ional is ts and the B r i t i sh identity o f northern Un ion is t s . A r t i c l e 2 entitles any person born on the is land o f Ireland " to be part o f the Ir ish na t ion . " A r t i c l e 3 acknowledges the leg i t imacy o f Nor thern Ireland. It recognizes that a united Ireland 69 can on l y be achieved w i th the consent o f the major i ty o f people w i th in the Repub l i c o f Ireland and Nor thern Ireland. Furthermore, the Agreement commi ts the Government o f the Repub l i c o f Ireland to part ic ipat ing i n cross-border bodies i n Nor thern Ireland ["the north-south d imens ion" ] and inter-governmental bodies w i t h the B r i t i sh Government in L o n d o n ["the east-west d imens ion . " ] The amending o f Ar t i c l es 2 and 3 indicated that the narrative i n w h i c h the who le is land o f Ireland was r ight fu l l y a mono-cultural nation-state had ceased to dominate Ir ish po l i t i ca l thought i n the way that it had throughout most o f the 2 0 t h century. However , wh i l s t the Const i tut ion o f Ireland adopted a new inc lus i ve def in i t ion o f Irishness, and the area over w h i c h the Repub l i c o f Ireland c l a imed as its r ight fu l territory altered, the state cont inued to use c i t izenship laws to exert sovereignty over that territory. In the D a i l , T D s raised concerns as to whether the A r t i c l e 2 w o u l d reduce the ab i l i t y o f ci t izens resident i n the state to ho ld their government to account. Fo rmer Taoiseach John B ru ton sought reassurance that I r ish c i t izens resident outside the state w o u l d not be entit led to vote i n elections w i th in the Repub l i c o f I r e l and . 1 5 4 The Taoiseach, Bert ie A h e r n assured the D a i l that the new A r t i c l e 2 w o u l d not extend vot ing rights to Ir ish c i t izens outside the state. H e pointed out that under A r t i c l e 16.2 o f the Const i tut ion residence i n the state was a prerequisite for c i t izens to exercise vot ing r i g h t s . 1 5 5 John Bruton, Ireland, Dail Debates, vol.489 (22 April 1998). Bertie Ahern, Ireland, DM Debates, vol.489 (22 April 1998). 70 Therefore, wh i l e one consequence o f the Agreement was that the Repub l i c o f Ireland fo rma l l y acknowledged northern Nat ional is ts and those o f Ir ish descent as part o f the Ir ish nat ion, it s imultaneously ensured that the operat ion o f c i t izenship rights remained t ied to the territorial state. In do ing so, the Repub l i c o f Ireland cont inued to exercise sovereignty over the nat ional territory through its c i t izensh ip laws. 3.6 Ir ish Sovereignty and the R ights o f the F a m i l y A year before the C i t i zensh ip Referendum, the Ir ish Supreme Cour t released the dec is ion o f A.O. & D.L. v. Minister for Justice [Lobe].156 It seeming ly restricted the rights o f Ir ish c i t izens born to non-nationals f rom res id ing i n the state. S ince the case of Fajujonu v. Minister for Justice [Fajujonu]?51 Government p o l i c y had proceeded on the misapprehension that non-national parents o f chi ld-ci t izens cou ld not be 1 CO deported. However , as I w i l l show, the Irish courts have a lways he ld that the rights o f ch i l d c i t izens to the care and company o f their parents i n the state were "subject to the exigencies o f the c o m m o n good . " Furthermore, courts def ined " the c o m m o n g o o d , " against w h i c h the ch i ldren 's r ight to remain i n the state was measured, as the state's abi l i ty to exercise sovereignty over the nat ional territory. The Supreme Court dec is ion i n Lobe indicated that the Repub l i c o f Ireland considered the c o m m o n good to be best served by rejecting appl icat ions from non-nationals to rema in i n the state 156 A.O.& D.L. v. Minister for Justice, [2003] 1 IR 3, 2003 [Lobe]. 157 Fajujonu v. Minister for Justice [ 1990] 2 IR 151 [Fajujonu] 1 5 8 Donncha O'Connell & Ciara Smyth, "Citizenship and the Irish Constitution" in Ursula Fraser & Colin Harvey ed., Sanctuary in Ireland: Perspectives on Asylum Law and Policy (Institute of Public Administration, 2003) 229 at 235. 71 for the.benefit o f their c i t i zen chi ldren. However , this dec is ion expressed a change i n prior i t ies o f the state, rather than a fundamental change o f po l i c y . The c l a i m that the state's abi l i ty to assert control o f its borders cou ld be outweighed by the r ight to f am i l y l i fe found i n A r t i c l e 41 o f the Const i tu t ion was considered i n Pok Sun Shum v. Ireland [Pok Sun Shum].'59 The p la in t i f f was a Ch inese nat ional who arr ived i n the Repub l i c o f Ireland i n 1978. H e marr ied an Ir ish c i t i zen and had four Ir ish ch i ldren. A t some point, the p la in t i f f was i nvo l ved i n " a serious inc ident " and to ld that he must leave the Repub l i c o f Ireland. Howeve r , he d id not do so. Instead, he remained i n the state and i n 1981 appl ied for a certif icate o f natural izat ion. H i s appl icat ion was denied and he was once again to ld that he w o u l d have to leave the state. The p la in t i f f sought a declarat ion f rom the H i g h Cour t that h is remova l f r om the state w o u l d v iolate his w i f e ' s right to f am i l y l i fe , protected under A r t i c l e 41 o f the Const i tut ion o f Ireland. The H i g h Court rejected his c l a im . Coste l lo J . stated that the right to f ami l y l i fe , guaranteed under A r t i c l e 41 cou ld be restricted i n the interests o f the pub l i c good. H e stated "I do not think that the rights o f the ' f a m i l y ' are absolute, i n the sense that they are not subject to some restrictions by the s ta te . " 1 6 0 Cos te l lo J . cont inued b y emphas iz ing the need for the state to be able to assert sovereignty through control o f its borders. "It seems to me that the State.. .must have very w ide powers in the Pok Sun Shum v. Ireland, [1986] 6 I.L.R.M. 593 Ibid, at 597. 72 interest o f the c o m m o n good to control al iens, their entry into the state, their departure and their activit ies when in the s ta te . " 1 6 1 The Ir ish Courts adopted a s imi la r approach i n Osheku v. Ireland [Oskeku].162 The p la in t i f f was a N ige r i an c i t izen who had l i ved i n the Repub l i c o f Ireland since 1979. U p o n arr iva l , the he agreed to leave the state w i th in a month. Instead he marr ied an Ir ish c i t izen and had a ch i l d who was also an Ir ish c i t izen. The p l a in t i f f sought an order to restrain the M in i s t e r for Justice f rom deport ing h i m . The power to deport aliens was bestowed upon the M in i s t e r b y sect ion 4 o f the Alien Act 1935. The p la in t i f f argued that i n cases where a non-national was part o f an Ir ish f ami l y , the Alien Act 1935 was i n conf l ic t w i t h the right to f am i l y l i fe guaranteed b y Ar t i c l es 40 , 41 and 42 o f the Const i tut ion. Gannon J . rejected the p l a i n t i f f s c l a im . H e quoted, apparently w i t h approva l , the remarks o f Coste l lo J . i n Pok Sun Shum w h i c h stated that the rights o f the f ami l y guaranteed b y the Const i tut ion were not absolute. Gannon J . he ld that there were circumstances i n w h i c h it was necessary to restrict the rights o f ind iv idua ls i n pursuit o f the c o m m o n good. He stated, "There are fundamental r ights o f the state as we l l as fundamental rights o f c i t izens, and the protect ion o f the former m a y invo lve restrictions i n circumstances o f necessity on the l a t t e r . " 1 6 3 H e went on to emphasize that the control o f borders was o f key importance to the integrity o f the state. H e ruled that the integrity o f the state, "const i tuted as it is o f the co l lec t ive body o f its 161 Ibid, at 599. 162 Osheku v. Ireland [1986] IR 735 [Osheku]. 73 ci t izens w i t h i n the nat ional territory must be defended and v ind ica ted b y the organs o f State and by the c i t izens so there m a y be true socia l order w i t h i n the territory and concorde mainta ined w i th other nations i n accordance w i t h the objectives declared i n the preamble to the C o n s t i t u t i o n . " 1 6 4 The m a i n authority upon w h i c h the fami les i n Lobe re l ied was a prev ious Ir ish Supreme Court case, Fajujonu v. Minister for Justice.165 M r . and M r s . Fa ju jonu were N ige r i an and M o r o c c a n c i t izens respectively. They had l i ved i n Ireland i l l ega l l y f rom 1981. Be tween 1983 and 1987 they had three ch i ldren w h o , b y virtue o f the place o f their b i r th , were Ir ish cit izens. A t some point i n 1981 a deportat ion order was issued against M r . Fa ju jonu, a l though it was never enforced. In 1983 the Fa ju jonu f am i l y asked the court to recognize that their ch i ldren had a right to the care and company o f their parents i n the state under A r t i c l e 41 o f the Const i tu t ion , and guarantee that the parents w o u l d not be deported. The H i g h Court ru led that whi ls t ch i l d c i t izens had a const i tut ional r ight to be i n the state, and to the care and company o f their non-national parents, they d i d not have a right to the society o f their parents i n the state. O n appeal, the Supreme Cour t he ld the ch i ldren i nvo l ved had a constitut ional right to the care and company o f their parents and had a prima facie entitlement to exercise that r ight i n the state. It he ld that the parents cou ld indicate a choice o f residence on the ch i l d c i t izen 's beha l f i f it 163 Ibid, at 746. 164 Ibid. 165 Fajujonu, supra note 157. 74 was " i n the interests o f those infant c h i l d r e n . " 1 6 6 Fajujonu, establ ished that the ch i ld ' s r ight to the care and company o f his or her parents i n the state cou ld on ly be restricted "subject to the exigencies o f the c o m m o n g o o d . " 7 6 7 The Supreme Court d id not overrule the H i g h Cour t dec is ion and d id not f ind for the appellants. Rather, it inv i ted the M in i s t e r for Justice to reconsider his op in ion to deport M r . Fa ju jonu. A s it happened, the or ig ina l deportation order had become inva l i d and a new order was not issued. D u r i n g the 1990s the Repub l i c o f Ireland changed f rom a country o f net emigrat ion to one o f net immigra t ion . A m o n g those entering the country was an increased number o f asy lum seekers. The number o f people seeking asy lum in Ireland rose f rom 39 in 1992 to approximate ly 12,000 i n 2 0 0 2 . 1 6 8 In response to this, the Government introduced the lengthy Refugee Act, 1996.169 However , Government p o l i c y i n regard to the non-national parents o f Ir ish chi ldren proceeded on the misapprehens ion that 170 they cou ld not be deported. The percept ion that, as a consequence o f Fajujonu, the non-national parents o f ch i l d c i t izens cou ld ef fect ive ly bypass the asy lum and immigra t ion system and remain in the state b y asserting a cho ice o f residence on beha l f o f the ch i l d was seen as a threat to the integrity o f that system. Consequent ly , a dec is ion was made to beg in refus ing appl icat ions to remain i n the state i n the hope ,&t> Ibid at 162. 161 Ibid. 1 6 8 Maurice Manning, "Introduction" in Ursula Fraser & Colin Harvey ed., Sanctuary in Ireland: Perspectives on Asylum Law and Policy (Institute of Public Administration, 2003) xi at xii 169 Refugee Act 1996 (I.), 1996, c.17. 1 7 0 O'Connell & Smyth, supra note 158 at 235. 75 that it w o u l d provoke a legal chal lenge that w o u l d result i n Fajujonu be ing " o v e r t u r n e d . " 1 7 1 The chal lenge to the M in i s t e r for Justice's dec is ion to refuse residence rights to non- nat ional parents was raised i n Lobe. The Lobe case concerned the L o b e f a m i l y f rom the C z e c h Repub l i c and the Osayande f am i l y f rom N ige r i a . The L o b e f am i l y came to Ireland i n M a r c h 2 0 0 1 ; the Osayandes arr ived i n M a y o f the same year. In each instance, the parents c l a imed asy lum upon arr iva l i n the state but their appl icat ions were unsuccessful . A n order to deport both the Lobe and Osayande fami l ies was issued but, before it cou ld be enforced, each f am i l y gave b i r th to a ch i l d . A t the t ime o f the ch i ldren 's b i r th , anyone born i n Ireland automat ica l ly rece ived Ir ish c i t izenship. The fami l ies contended that in l ight o f the b i r th o f a c h i l d c i t izen , the state cou ld no longer deport the parents. The Lobe case considered whether a ch i l d c i t izen had the right to reside w i th his or her non-national parents i n the Repub l i c o f Ireland. The fami l ies submitted three arguments on beha l f o f the ch i ldren. F i rs t l y , they contended that as the ch i ldren were Ir ish c i t izens, i n accordance w i t h A r t i c l e s 2 and 9 o f the Const i tut ion o f Ireland, they had an unqua l i f ied r ight to reside i n the state. A s the ch i ldren were dependent upon the care o f their parents, and the deportat ion o f the parents w o u l d lead to the remova l o f the ch i ldren f rom the state, the deportat ion o f the parents amounted to a v io la t ion o f the ch i ldren 's r ight to reside i n the state. Secondly , it was submitted that the deportation order was a v io l a t ion o f A r t i c l e s 40.1 1 7 1 O'Connell & Smyth, supra note 158 at 231. 76 and 40.3 o f the Const i tut ion. A r t i c l e 40.1 holds that a l l persons must be treated equal ly before the law; A r t i c l e 40.3 commits the state to upho ld ing the rights o f the ind iv idua l . The fami l ies argued that as the deportation order w o u l d lead to the remova l o f the ch i ldren , as w e l l as their parents from the state, it d is t inguished the qual i ty o f c i t izenship enjoyed b y cit izens born o f non-nationals from those born o f Ir ish c i t izens. Th i s , they c la imed, amounted to a fo rm o f d i sc r imina t ion , forb idden b y Ar t i c l es 40.1 and 40 .3 , against ch i l d c i t izens born o f non-national parents. F ina l l y , the fami l ies argued that the Const i tut ion entit led the ch i ld ren to the care and company o f their parents i n the state. A r t i c l e 41 recognizes "the F a m i l y " as possessing " ina l ienable and imprescr ipt ib le rights, antecedent to and superior to a l l pos i t ive l aw . " It commi ts the state to protect ing the fami l y , " i n its const i tut ion and author i ty . " It was submitted that, as the ch i ldren were dependent upon their parents, deport ing the parents w o u l d remove the ch i ldren from the state and deprive them o f their r ight to the state's protect ion o f the fami ly . The fami l ies were unsuccessful i n their b i d to rema in i n the state. A major i ty o f the Supreme Cour t he ld that whi ls t , i n general, a c i t i zen has the r ight not to be expel led f rom the state, the right is not absolute. Keane C.J. c i ted the extradit ion process as an example o f a c ircumstance i n w h i c h a c i t izen may legi t imate ly be compe l l ed to leave 172 the state. The court stressed that the deportation o f the parents d i d not affect the r ight o f the ch i ldren , as c i t izens, to return to the state when they were capable o f asserting a choice o f residence independent o f their parents. Rather, the ch i ldren Lobe, supra note 156 at 27. 77 were leav ing the state merely as a pract ical consequence o f their parents' depor ta t ion . 1 7 3 The Supreme Cour t also rejected the argument that the Const i tu t ion o f Ireland's commitment to the protect ion o f the f am i l y guaranteed the ch i ld ren the right to the care and company o f their parents i n the state. Keane C.J . po inted to impr isonment as an instance i n w h i c h the integrity o f the f am i l y may be restricted legit imately , ind icat ing that whi l s t the f ami l y may possess rights that are superior to a l l posi t ive law, the Cour t d id not recognize the integrity o f the f am i l y as an absolute r i g h t . 1 7 4 The major i ty o f the Supreme Court he ld that the r ight o f the ch i l d c i t i zen to reside i n the state had to be balanced against the right o f the Oireachtas to exercise power over the entry o f non-nationals into the state. In that ba lanc ing act, they considered the contro l o f borders o f greater importance than the rights o f the ch i l d c i t izen . E a c h o f the Justices i n the major i ty endorsed the v i ew expressed b y Gannon J . i n Osheku v. Ireland175 that "the nat ional territory must be defended by the organs o f the State and by the c i t i z e n s . " 1 7 6 Exe r c i s i ng control over non-nationals w i t h i n the nat ional territory was considered so essential to the integrity o f the state that it outweighed the rights o f ch i l d c i t izens to reside i n the state. Th is was expressed most fo rce fu l l y b y Keane J . who stated " i t w o u l d seem to me that it cannot be said, as a matter o f law, that, i n a case such as the present, the parents o f the m ino r applicants can assert a choice to 173 Lobe, supra note 156 at 75. 174 Lobe, supra note 156 at 27. 175 Osheku, supra note 162 at 746. 78 reside i n the State on beha l f o f the m inor applicants, even i f that cou ld be said to be i n the interests o f the m inor app l i c an t s . " 1 7 7 The increase i n the numbers o f people entering the country c lear ly in f luenced the dec is ion o f the Supreme Court i n Lobe. Compa r i ng the circumstances i n w h i c h Fajujonu was decided w i th those o f Lobe, M u r r a y J . stated "There is manifest ly a dist inct ion to be drawn between a situation where the number o f persons seeking to enter the State i n any one year is very l ow , for example 30 or 40, and the situation where many thousands seek to do s o . " 1 7 8 H i s comments indicate that it was the change i n mater ia l c ircumstances, rather than a change i n the rights associated w i t h Ir ish c i t izenship , that prompted the court to rule that the fami l ies i n Lobe cou ld not 179 remain i n the state. Keane C J . made s imi lar remarks i n his judgment . The Lobe case he ld that, p rov id ing the immigra t ion services gave appropriate considerat ion to the c l a i m o f a ch i l d c i t izen when mak ing its dec is ion , the Repub l i c o f Ireland cou ld remove the non-national parents o f ch i l d c i t izens f rom the state, even i f that was to the detriment o f the chi ldren. In do ing so, the courts a f f i rmed that the rights associated w i t h possessing Irish c i t izenship were subservient to the state's r ight to assert sovereignty over the national territory. C la i re B reen suggests that the dec is ion to deny res idency rights to the non-national parents o f Ir ish ch i ldren at best ignores the rights o f the c h i l d and at worst 176 Lobe, supra note 156 at 24, 45, 85, and 134, Keane C.J., Denham, Murray and Hardiman JJ. Geoghegan J. endorses the decisions of Keane C.J. and Hardiman J. at 166. 177 Lobe, supra note 156 at 20, Keane C.J. 178 Lobe, supra note 156 at 45, Murray J. 7 9 discr iminates against c i t izens on the grounds o f their parents' nat ional i ty. She argues that the Lobe dec is ion disregarded Ir ish jur isprudence that emphas ized the need to pr ior i t ize the best interest o f the c h i l d . 1 8 0 The Const i tut ion o f Ireland places part icular importance upon the (nuclear) fami ly . It permits state interference i n f am i l y l i fe on l y 181 when parents fa i l i n their "phys i ca l or m o r a l " duty to their ch i ldren. The we l l- be ing o f ch i ldren has often been cited as jus t i f i ca t ion for intervent ion i n f am i l y l i fe . They t yp i ca l l y invo lve socia l services r emov ing ch i ldren f r om the custody o f their parents. B reen contends that the best interests o f the ch i l d were disregarded i n Lobe i n favour o f ensuring the state retained the power to contro l its borders. She argues that the Supreme Court cou ld have drawn upon the Conven t ion on the R ights o f the C h i l d [ C R C ] to defend the rights o f the ch i l d c i t izen. The Repub l i c o f Ireland assumes a dual ist ic approach to international law. In theory, dua l i sm holds that international law can o n l y be enforced i f it has been incorporated into domest ic law. However , B reen points out that the Ir ish experience o f the relat ionship between domest ic and international l aw is more complex than the formal def in i t ion o f dua l i sm suggests. Ir ish courts have repeated stated that international law is not enforceable unless incorporated into domest ic law. Nevertheless, they have i nvoked international l aw as guidance for interpreting the meaning o f const i tut ional p rov is ions and domestic legis lat ion. A t the t ime o f Kelly v. O 'Neill the European Conven t ion on H u m a n 179 Lobe, supra note 156 at 25, Keane C.J. 180 Claire Breen, "Refugee Law in Ireland: Disregarding the Rights of the Child-Citizen, Discriminating against the Rights of the Child" (2004) 15(4) Int'l J. Refugee L. 750. 1 8 1 Constitution of Ireland Article 41.1. 80 Rights [ E C H R ] d id not fo rm part o f the Repub l i c o f Ireland's domest ic law. However , the court deemed the state's rat i f icat ion o f the E C H R suff ic ient authority to take the jur isprudence o f the European Court o f H u m a n R ights into account. Therefore, wh i l s t domest ic l aw provides the on l y source o f enforceable r ights i n the Repub l i c o f Ireland, the character o f those rights has been in f luenced b y international law. The Lobe case stands i n marked contrast to such decis ions. It saw rights repeatedly emphas ized i n international l aw marg ina l ized b y the Supreme Court . F o r example, A r t i c l e 2 o f the C R C , o f w h i c h the Repub l i c o f Ireland is a signatory, requires states ensure their practices are non-discr iminatory, " i r respect ive o f ch i l d ' s , or his or her 182 parent 's . . .s tatus. " The universa l nature o f rights emphas ized i n A r t i c l e 2 o f the C R C was not used to interpret the rights o f the Ir ish c i t i zen born to non-national parents. Instead, the Supreme Court emphasized the need for the state to e able to exercise contro l over its borders. S iobhan M u l l a l l y agrees that the Supreme Cour t ' s w i l l ingness to permit the Execut ive to intervene i n the private sphere o f f ami l y l i fe i n Lobe was i n marked contrast to previous decis ions regarding the rights o f the fami ly . She notes that on l y a year before the Supreme Court ruled that constitut ional prov is ions regarding the fami l y permitted the state to intervene on l y i n the most except ional o f c i r cumstances . 1 8 3 She argues that act ing i n the best interest o f the ch i l d has repeatedly been used to jus t i f y 1 8 2 Breen, supra note 180 at 753. 1 8 3 Mullally, supra note 150 at 579. 81 state intervent ion i n the Repub l i c o f Ireland. Therefore, despite the state's ostensibly " p ro- f am i l y " const i tut ion and extensive jur isprudence emphas iz ing the importance o f act ing i n the best interest o f the ch i ld , the Lobe case mi r rored the approach o f courts i n other Western countries w i th jus soli c i t izenship regimes. B reen and M u l l a l l y demonstrate that there was suff ic ient j ud i c i a l precedent to make a case against deport ing the fami l ies i n Lobe. However , I suggest that that the p rob lem is not that the Supreme Court made the w rong dec is ion but that m a k i n g a dec is ion compromised the pr inc ip les that law purports to stand for. It w i l l be reca l led that i n chapter two I employed the work o f Jean L. Cohen , who argues that the component parts o f c i t izenship - po l i t i ca l , j ud i c i a l and identity - do not a lways f it together harmonious ly . In Lobe the j ud i c i a l component o f c i t izensh ip , i n the f o rm o f the r ight o f the ch i l d c i t izens to equal treatment before the law, came into conf l i c t w i t h the po l i t i ca l aspect, w h i c h asserted that the state had a right to contro l non-nationals w i th in its territory. The response o f the Supreme Court was not to acknowledge the tension between the component parts o f c i t izenship, but rather to deny it. A major i ty he ld that the law demanded the deportation o f the parents, ignor ing that the l aw also required the ch i ldren be accorded the same rights as c i t izens born to Ir ish parents. In do ing so, the Supreme Court downp layed the precedents w h i c h placed the rights o f the f ami l y and the best interests o f the ch i l d at the forefront o f j ud i c i a l dec is ion m a k i n g . B reen and M u l l a l l y ' s cr i t ic isms o f the Lobe dec is ion are not wi thout meri t , but p lac ing the 82 emphasis upon the rights o f the ch i l d does not resolve the tension posed to legal systems b y ci t izens born to non-national parents. It s imp l y places the emphasis on difference pr inc ip les . 3.7 Chal lenges to State Sovereignty D u r i n g the C i t i zensh ip Referendum campaign, the op in ion o f the Advoca te Genera l i n the case o f Chen v. Secretary of State for the Home Department [Chen] was r e l e a s e d . 1 8 4 Chen considered whether a ch i l d c i t izen o f an E U member state, who is ef fect ive ly i n the care o f a national o f a non-member country, had the right to reside in another member state. A l t hough the case direct ly concerned the Government o f the Un i t ed K i n g d o m , the outcome was o f general s igni f icance throughout the E U . The ch i l d i n quest ion, Catherine Chen , was born i n Be l fast to a Ch inese nat ional , M a n Lavette C h e n [Mrs . Chen] i n September 2000. M r s . C h e n traveled from Great B r i t a in , where she l i ved at the t ime, to Nor thern Ireland so that her c h i l d w o u l d be entit led to Irish c i t izenship. Though h is tor ica l l y the U n i t e d K i n g d o m awarded c i t izenship on the basis o f the jus soli p r inc ip le , a res idency requirement was inserted into U K ci t izenship law b y the British Nationality Act 1981.185 Nor the rn Ireland is part o f the Un i t ed K i n g d o m . However , under Sect ion 7(1) o f the Ir ish Nat iona l i t y and C i t i zensh ip A c t , 1956, M r s Chen was entit led to "dec l a re " Cather ine an Irish c i t izen , at w h i c h point she retrospectively became an Ir ish c i t i zen "at b i r t h . " A f t e r 184 Chen v. Secretary of State for the Home Department, Case C-200/02 [2004] E.C.J, at para. 47 [Chen]. 83 Cather ine was born , she and M r s . Chen returned to B r i t a in where they appl ied for a long-term residency permit . The appl icat ion was refused. M r s . C h e n appealed to the European Court o f Justice [ECJ ] to have the dec is ion to refuse her long-term res idency appl icat ion overturned. She argued that the U K H o m e Department 's refusal was a breach o f Cather ine 's right o f free movement w i th in E U M e m b e r States, as guaranteed to E U cit izens b y A r t i c l e 18 E C and D i rec t i ve 90/364. The E C J was asked to determine whether Cather ine 's dependency upon her mother conferred a right upon M r s . Chen to reside w i th her daughter i n a member state o f w h i c h Cather ine was not a c i t izen. The Advoca te Genera l , and later the E C J itself, he ld that a ch i l d whose parents were not E U nationals cou ld reside i n another member state i n the company o f its parents . 1 8 6 It he ld that p rov ided Catherine was covered by "appropr iate sickness insurance" and the parents had suff ic ient f inanc ia l resources to ensure the ch i l d d id not become " an unreasonable burden upon the state," the U K Government cou ld not restrict Cather ine 's r ight to free movement. In the Repub l i c o f Ireland, advocates o f the restr ict ion o f Ir ish c i t izenship argued that the op in ion o f the Advoca te Genera l i n Chen demonstrated the threat that Ireland's exist ing c i t izenship l aw posed, both to its o w n sovereignty and to the sovereignty o f its E U par tners . 1 8 8 I suggest that the impl ica t ions o f the Chen case are more complex than the react ion o f " Y e s " campaign 185 British Nationality Act 1981 (U.K.) 1981, c. 61, s.l. 186 Chen, supra note 184 at para. 47. 187 Chen, supra note 184 at para. 47. 84 suggested. It demonstrates the cont inu ing potency o f the sovereignty o f E U member states as m u c h as it chal lenges it. B y dec lar ing that free movement prov is ions entitle E U c i t izens to reside i n any member state, p rov ided that they do not become an unreasonable burden upon their state o f residence, the E C J appeared to detach the abi l i ty to contro l admiss ion o f non- nationals f rom the nation-state. To the extent that Chen represents a chal lenge to the sovereignty o f E U member states, the chal lenge comes not from non-nationals but from the E U itself. Peter F i tzpat r i ck argues that despite the part icular i ty o f its 189 locat ion, the nat ion posits i t se l f as embody ing universa l characteristics. Th is universal i ty is among the posi t ive characteristics attributed to the nat ion and is p laced in contrast to the part icular and parochia l . F i tzpat r i ck suggests that rather than transcending the nat ion, the E U promotes i tse l f as embody ing those at t r ibutes . 1 9 0 A s chapter two expla ined, rights enjoyed b y E U ci t izens resident i n other member states do not correspond fu l l y to those enjoyed b y ci t izens res id ing i n their o w n state. Typ i ca l l y , the E U c i t izen res id ing i n their o w n state is p r i v i l eged over those from another member state . 1 9 1 The Chen case highl ights that certain rights associated w i th E U c i t izenship are restricted to those outside their home state. S iobhan M u l l a l l y notes that the rights i nvoked i n Chen were dependent upon the ch i l d res id ing i n 1 8 8 See Carol Coulter, "European finding bolsters case for referendum made by Government" Irish Times (19 May 2004) and "Citizen Chen" Editorial, Irish Independent (19 May 2004). 1 8 9 Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge, 2002) at 132. 190 Ibid, at 136. 1 9 1 Marco Martiniello, "Citizenship in the European Union" in T. Alexander Alienikoff & Douglas B. Klusmeyer ed., From Migrants to Citizens: Membership in a Changing World (Carnegie Endowment for International Peace, 2000) 324 at 366. 85 another member state. She suggests that as the Direct ives re l ied upon i n the Chen case depend upon the c i t izen crossing a nat ional border, the dec is ion i n Chen was no ind ica t ion that an appeal to the E C J w o u l d result i n the dec is ion i n Lobe be ing ove r tu rned . 1 9 2 Howeve r , it should be noted that the rights bestowed by E U c i t izenship and af f i rmed by the E C J remain dependent upon the pr ior possession o f c i t izenship o f a member state. A s the C i t i zensh ip Referendum demonstrates, this is an area i n w h i c h the member states retain fu l l control . Furthermore, the restrict ions p laced upon the member states' r ight to control the movement o f non-nationals w i t h i n its borders apply on l y to ci t izens o f other E U states and certain members o f their fami l ies . M e m b e r states fu l l y retain the right to control the movement o f n o n - E U nationals. Therefore, whi l s t the transfer o f authority to exert contro l o f its borders indicates a loss o f the sovereignty b y the member states, paradox ica l l y , the process s imultaneously reaff i rms the sovereignty o f those states. 3.8 C o n c l u s i o n I have sought to demonstrate that the issue o f the regulat ion o f c i t izenship has long been l i nked to the Repub l i c o f Ireland's assertion o f nat ional sovereignty. The right o f the state to contro l its borders is considered so central to nat ional identity that even when the non-national invokes values that the Repub l i c o f Ireland has declared superior to nat ional law, he or she is un l i ke l y to be successful i n their appl icat ion. A s 1 9 2 Mullally, supra note 150 at 590. 86 we have seen, membersh ip o f the EU has, to some extent, restricted the ab i l i t y o f its member states to exercise fu l l contro l over their nat ional borders. In the f o l l o w i n g chapter I examine the themes o f the C i t i zensh ip Re fe rendum and consider w h y the EU was not perce ived as a threat to Ir ish sovereignty. 87 C H A P T E R F O U R 4.1 Introduct ion Th is chapter explores the themes o f cont inuity, change and contradict ion i n the Ir ish C i t i zensh ip Referendum. I examine the Government ' s jus t i f i ca t ion for seeking the approval o f a const i tut ional amendment pr ior to in t roduc ing legis lat ion. I suggest that the two c la ims upon w h i c h the Government ' s re l ied were contradictory. The first assumed that the terms "the na t ion " and "the c i t i zen ry " were interchangeable wh i l e the second p laced them in opposi t ion to each other. M y focus then turns to the under ly ing mot iva t ion for seeking to restrict entitlement to Ir ish c i t izenship. Th i s , I suggest, was also ambiguous. It sought both to preserve an exis t ing concept o f Irishness and advance a new Ir ish European identity. The restr ict ion o f entitlement to Ir ish c i t izenship was therefore s imul taneous ly defensive and transformative. In the latter part o f this chapter I examine the arguments advanced b y proponents and opponents o f the C i t izensh ip Referendum. I argue that it is not possible to see the arguments advanced by the two " s i d e s " i n terms o f a progressive/conservative d ichotomy. Instead, both sides advanced a v i s i on o f the " g o o d " Ir ish society by drawing upon the not ion o f tradit ion wh i l s t advanc ing a narrative o f nat ional progress. 88 4.2 Was a C i t i zensh ip Referendum Necessary? The C i t i zensh ip Referendum was just i f ied on the grounds that a const i tut ional change was necessary i n order to alter Ir ish c i t izenship law. The assumpt ion that there was a need to change Ireland's c i t izenship l aw o f course prefigures this. In support o f the c l a i m that a referendum was necessary, the Government advanced two arguments. The first concerned the substantive need to restrict I r ish c i t izensh ip . In the early 1990s the Repub l i c o f Ireland changed from a country o f net emigrat ion to one o f net i m m i g r a t i o n . 1 9 3 Ch i l d r en born to those non-nationals became Ir ish c i t izens because o f the jus soli pr inc ip le in Sect ion 6(1) o f the Irish Nationality and Citizenship Act 1956 [1956 Act]}94 The Government c l a imed that people w i t h no previous connect ion to Ireland were choos ing to give bir th there i n order to secure Ir ish passports for their ch i ldren. It dubbed the scenario i n w h i c h non-national w o m e n arr ived i n the State i n the late stages o f pregnancy "passport t o u r i s m " and claimed- that, i n effect, Ir ish c i t izenship laws were be ing " a b u s e d . " 1 9 5 The Government ' s second argument addressed why it be l ieved a referendum on the issue o f c i t izenship was necessary. The M in i s t e r for Justice stated that a l though 1 9 3 "Statistical Yearbook of Ireland 2004," online, Central Statistics Office <http://www.cso.ie/releasespublications/documents/statisticalyearbook/2004/statisticalyearbook200 df> 194 Irish Nationality and Citizenship Act 1956 (I.) 1956 c.26. 1 9 5 "Citizenship Referendum: The Government's Proposals," online: Department of Justice, Equality and Law Reform <http://www.iustice.ie/80256E010039C5AF/vWeb/flJUSO5ZJF5C- en/$File/Govtproposals.pdf>. 89 Sect ion 6(1) o f the 1956 Act was st i l l i n force at that t ime, the Ir ish Par l iament [Oireachtas] no longer had the power to legislate on the issue o f c i t i z e n s h i p . 1 9 6 It w i l l be recal led that a redrafted vers ion o f A r t i c l e 2 stating " i t is the entit lement and birthright o f every person born i n the is land o f Ireland.. .to be part o f the Ir ish na t i on " was inserted into the Const i tut ion i n 1998. The Government stated that s imp l y amending the 1956 Act w o u l d be ineffect ive because any legis lat ive restr ict ion on 197 • • entitlement to Ir ish c i t izenship w o u l d be i n conf l i c t w i t h the A r t i c l e 2. W r i t i n g i n the Sunday Independent, the M in i s t e r for Justice expla ined, "I have consulted w i th the At torney Genera l to see i f we cou ld solve this b y br ing ing forward a suitable A c t o f Par l iament, but his f i rm advice strongly concurred w i t h m y o w n v i ew : that any A c t i n o w o u l d be inconsistent w i th the Const i tut ion as it n o w stands." In cons ider ing the c la ims advanced b y the Government i n order to jus t i f y restr ict ion o f Ir ish c i t izenship I emp loy an analyt ica l approach deve loped b y Jacques Derr ida . D o i n g so prov ides insights into perceptions o f " l eg i t ima te " and " a b u s i v e " uses o f Ir ish c i t izenship law. I suggest that the two c la ims upon w h i c h the Government ' s jus t i f i ca t ion for ho ld ing the C i t i zensh ip Referendum re l ied were contradictory. The first explanat ion re l ied upon the assumption that terms "the na t i on " and "the c i t i zenry " were interchangeable wh i l e the second p laced them in oppos i t ion to each other. 90 4.3 The Cont rad ic t ion o f the C i t i zensh ip Re fe rendum The Government stated that A r t i c l e 2 elevated entitlement to Ir ish c i t izenship to a right. Th is was based on the assumption that the terms "part o f the Ir ish na t i on " and " I r i sh c i t i z e n " were interchangeable. However , the arguments advanced by the Government i n support o f restr ict ing c i t izenship presented them as dist inct and in oppos i t ion to each other. W r i t i n g i n the Irish Examiner i n M a y 2004, P r ime M in i s t e r [Taoiseach] Bert ie A h e r n argued that exist ing Ir ish c i t izenship l aw resulted i n variance between the nat ional group and those entit led to Ir ish c i t izenship . H e stated, "I bel ieve that Ir ish c i t izenship should be avai lable to ch i ldren born i n Ireland i f their parents have a real connect ion to this i s l and . " M r . A h e r n cont inued, " W h a t a Y E S vote w i l l do is close a loophole i n our law that has been open to abuse. It w i l l ensure that Ir ish c i t izenship remains open to those who have a genuine connect ion to this c o u n t r y . " 1 9 9 The very use o f language that suggests c i t izensh ip is be ing abused indicates that something pr ior to c i t izenship is the measure b y w h i c h the leg i t imacy o f a c l a im to Irishness is measured. In Of Grammatology,200 Der r ida argues that the metaphys ica l t radit ion that dominates Western thought conceives o f a hierarchy o f s ignif iers i n w h i c h those perce ived to be closest i n p rox im i t y to a s ign i f ied " T r u t h " are pr i v i l eged , wh i l e " l e sse r " s ignif iers are 1 9 8 Michael McDowell, "Proposed Citizenship Referendum" Sunday Independent (14 March 2004). 1 9 9 Bertie Ahern, "Conception of Citizenship" Irish Examiner (31 May 2004). 91 presented as oppos ing that T r u t h . 2 0 1 Der r ida cites Saussure's p r i v i l eg ing o f the spoken w o r d over wr i t ten language as an example o f this hierarchy. Saussure states, " Language and wr i t i ng are two distinct systems o f s igns; the second exists for the sole purpose o f representing the f i r s t . " 2 0 2 In this example, the spoken w o r d is conce ived o f as s ign i fy ing the Truth o f the speaker's experience. The wri t ten w o r d is not considered an alternative s igni f ier o f the Truth but the s igni f ier o f the spoken word . It is relegated to the status o f the s igni f ier o f a s ignif ier . Howeve r , not on l y is the writ ten w o r d beneath the spoken w o r d i n the hierarchy because o f its perce ived p rox im i t y to the Truth o f the speaker's experience, it is also conce ived o f as a negative to the Truth. Th i s is because its status as "not the s ign i f i e r " constructs the writ ten w o r d as opposed to the Truth. The w o r d " n o t " i n the above statement is central to understanding Derr ida ' s c l a im that as a s ign i f ie r ' s p rox im i t y f r om the s ign i f ied Truth increases it becomes opposed to that Truth . In the example o f the spoken and wri t ten wo rd , because the writ ten w o r d does not s ign i f y the Truth, s ign i f y ing instead the spoken word , it is opposed to the Truth . In M r . A h e r n ' s v i ew , the fact that a ch i l d was an Ir ish c i t i zen was insuff ic ient to render it part o f "the Ir ish nat ion . " Rather, the ch i ld ' s status as an Ir ish c i t i zen poses a threat to the nat ion. No t on l y was the ch i l d c i t izen not part o f the Ir ish nat ion, it was opposed to it. The dist inct ion between members o f the nat ion and Ir ish cit izens was made more exp l i c i t l y by M r . A h e r n i n a D a i l debate. Pressed by a member o f the oppos i t ion as to why the " abuse " o f Ir ish c i t izenship l aw had not been anticipated 2 0 0 Jacques Derrida, Of Grammatology (John Hopkins University Press, 1997). 201 Ibid, at 11. 92 when A r t i c l e 2 was drafted i n 1998, M r . A h e r n responded, "I d i d not v i sua l i se . . . Russ ians, M o l d o v a n s (sic) and Ukra in ians c o m i n g to this count ry . . . fo r two or three weeks to have ch i ldren, s imp ly for the benefit o f Ir ish c i t i zensh ip . " Throughout the C i t i zensh ip Referendum, the Government argued that possess ion o f Ir ish c i t izenship d id not, o f itself, indicate that a person had a " rea l connec t ion " to Ireland. In approv ing the Twen ty Seventh Amendment to the Const i tu t ion , I r ish voters endorsed the v i ew that ch i ldren o f non-nationals were not members o f the nat ional group and therefore should not be g iven the legal rights accorded c i t izens. Howeve r , i n do ing so, they negated the procedural reason for ho ld ing the referendum. In accept ing that the Ir ish nat ion and the Ir ish c i t izenry were distinct, Ir ish voters apparently endorsed the v i ew that a legis lat ive change to Irish c i t izenship laws was poss ib le and a referendum was unnecessary. B y the Government ' s o w n posi t iv is t ic log ic , the C i t i zensh ip Re fe rendum was unnecessary. The assertion that the referendum was he ld s imp l y to overcome a legal loophole is contradictory. A l i teral reading o f A r t i c l e 2 reveals noth ing to suggest a right to Ir ish c i t izenship. Converse ly , a purposive interpretation invokes concepts o f an essential Irishness that is pr ior to the legal status o f c i t izen w h i c h i n turn negates the Government ' s assertion that the referendum was he ld pure ly to overcome a legal technical i ty. Ibid, at 11. Bertie Ahern, Ireland, Dail Debates vol.582 (30 March 2004). 93 4.4 Jud ic ia l Interpretation o f A r t i c l e 2 N o n e o f the Repub l i c o f Ireland's po l i t i ca l parties disputed the Government ' s c l a i m that a referendum was necessary to restrict entitlement to Ir ish c i t izenship . B o t h advocates and opponents o f the restr ict ion o f entitlement to Ir ish c i t izenship focused upon whether that restr ict ion was desirable rather than whether a referendum was necessary to enact change. However , the Government ' s interpretation o f A r t i c l e 2 differs substantial ly f rom the major i ty o f the Supreme Court i n Lobe a year before the C i t i zensh ip Referendum was held. Keane C.J. rejected the suggestion that A r t i c l e 2 created a r ight to Ir ish c i t izenship for a l l those born i n I r e l and . 2 0 4 H e he ld the ch i ldren i n Lobe had become Irish cit izens because o f Sect ion 6(1) o f the 1956 Act, w h i c h at the t ime stated " E v e r y person born i n Ireland is an Ir ish c i t izen f rom b i r t h . " 2 0 5 H a r d i m a n J . declared that A r t i c l e 2 acknowledged, rather than conferred, r i g h t s . 2 0 6 L i k e the C h i e f Justice, he he ld that entitlement to Ir ish c i t izenship was st i l l governed by Sect ion 6(1) o f the 1956 Act?01 Geoghegan J . agreed w i t h Keane C.J. and Ha rd iman J . 2 0 8 Denham J . declared that A r t i c l e 2 created a const i tut ional r ight to Ir ish c i t izenship. However , hav ing announced that the terms "part o f the na t i on " and " c i t i z e n " should be considered interchangeable, she drew a dist inct ion between the two concepts 204 A.O. & D.L. v. Minister for Justice, [2003] 1 IR 3 at 18 [Lobe]. 205 Ibid. 206 Ibid, at 130. m Ibid, at 131. 208 Ibid, at 166. 94 which contradicts that statement. Denham J. attempted to balance "the rights of the Nation, of individuals and of the family uni t ." 2 0 9 The concept of "balancing" necessarily involves separating that which you wish to balance; it is impossible to balance something against itself. This makes a conceptual distinction between the children as "citizens" and members of "the Irish nation." The inference of Denham J's statement is that she did not view the child citizens are part of the Irish nation. Rather, they were non-nationals who, through their status as citizens, acquired some rights against the state. Denham J. did not consider the children's well-being as contributing to the well-being of the nation. Instead, their status as citizens was conceived of as a threat to the nation. Murray and McGuinness JJ. stated that Article 2 created a birthright to Irish citizenship. Whilst neither held that Article 2 bestowed Irish citizenship itself, they suggest that it gave constitutional protection to the right found in Section 6(1) of the 1956 Act. Murray J. suggested that Article 2 did effect some change to entitlement to Irish citizenship, declaring "Prior to the adoption of the amendment, citizenship was acquired by l a w . " 2 1 0 He considered the impact of Article 2 to be "declaratory of the existing right to citizenship of a person born in Ireland as provided for by law." In her dissenting judgment, McGuinness states, "Given the changes in the pattern of immigration to this country, it is not impossible that, in the absence o f constitutional Ibid, at 60. Ibid, at 81. 95 protection, the statutory provision in this jurisdiction might...have been changed...In 211 light of Article 2 such a statutory change cannot now occur." Fennelly J. interpreted Article 2 as "a qualitative statement of the nature of citizenship."212 He states that Article 2 should have "real content." However, this does not necessarily mean that it must create a right to Irish citizenship. At no point does Fennelly J. state that Article 2 creates a right to Irish citizenship. Whilst Fennelly J. suggests that Article 2 extends a right to be part of the Irish nation to citizens and people of Irish ancestry living abroad he does not state that the right to be part of the Irish nation includes the right to be an Irish citizen - either for those born in Ireland or those of Irish ancestry. Therefore, in Lobe, only two of the seven Supreme Court Justices expressly stated that Article 2 granted Irish citizenship or gave constitutional protection to the right to Irish citizenship through birth. Of those, one made remarks later in her decision which contradict her previous declaration on the meaning of Article 2. Another Justice, Murray J., inferred the right existed. Three of the Supreme Court Justices endorsed the view that Article 2 did not create a right to Irish citizenship whilst the remarks of Fennelly J. were inconclusive. Consequently, the assumption that Article 2 raised the statutory entitlement to Irish citizenship to a constitutional right was far from a certainty. 211 Ibid, at 99. 2 , 2 Ibid, at 181. 96 4.5 Conceptions of Irishness As an amendment to the Constitution of Ireland was not necessary in order to change Irish citizenship laws, it prompts consideration of the function the Citizenship Referendum. I suggest it exercised a purpose of the Constitution recognized in Finn v.Att. Gen2U In Finn, the plaintiff sought a declaration that the Eighth Amendment to the Constitution Bill, 1982 [the Eighth Amendment Bill} was unconstitutional. The proposed Eighth Amendment sought to insert a "pro life" clause into the Constitution. In an attempt to ensure that abortion was deemed unconstitutional, the plaintiff argued that the Constitution of Ireland already protected the unborn child's right to life and therefore the Eighth Amendment Bill was superfluous. Barrington J. held that whilst the plaintiff was correct to state that unborn child's right to life was already protected by the Constitution, that did not make the Eighth Amendment Bill unconstitutional. He held that Article 46.1 allows for unlimited amendment to the Constitution of Ireland. He stated "I am satisfied that by Article 46 s.l , the people intended to give themselves the full power to amend any provision of the Constitution and that this power includes a power to clarify or make more explicit anything in the Constitution."2 1 4 The Citizenship Referendum should be seen as a statement about the values officially endorsed by the Irish State in the early 21st century. It was a campaign in which 97 concept ions o f the good society competed. It was not a two s ided argument i n w h i c h one side advocated a racist po l i c y and the other objected to it. Ne i ther advocates nor opponents o f the proposed constitut ional amendment compr ised a s ingle group. T o v i ew the C i t i zensh ip Referendum in this way ignores the d i f fe r ing v iewpoints w i t h i n the " Y e s " and " N o " camps. It also over looks the cont inuity between the two " s i des . " B o t h mainstream Y e s and N o campaigns assumed a w o r l d d i v ided into nations and therefore made c la ims about inc lus ion and exc lus ion. They each presented a v i s i on o f the " g o o d " Ir ish society. E ach vers ion re l ied upon myths about the nat ional character o f the Ir ish. Th is i n turn meant that both advocates and opponents o f the proposed amendment to the Const i tut ion re l ied upon cr i ter ia that d is t inguished the Ir ish f rom other nations. A c c o r d i n g to Hege l , our concept ion o f who we are is rel iant on a sense o f "the Other . " T o a f f i rm who or what we are we must distance ourselves f r om that w h i c h we are not. Hege l ' s starting point is Descartes ' assertion "I th ink therefore I a m . " Se l f consciousness is p roo f for Descartes that there is Truth . H e g e l considers the prob lem o f d is t inguish ing that w h i c h we are f rom that w h i c h we are not. H e suggests that i n order to discover the " s e l f we need to d is t inguish it f r om that w h i c h it is not. H e states, "Consc iousness . . .has a double object: one is the immediate object, that o f sense-certainty and percept ion, w h i c h however for self consciousness has the 213 Finn v. Alt. Gen [1983] I.R. 154 [Finn]. 214 Ibid, at 163. 98 character o f a negative; and the second, v i z . itself, w h i c h is the true essence, and is present on ly i n the first instance as opposed to the first object. In this sphere, se l f consciousness exhibits i t se l f as the movement i n w h i c h this 215 antithesis is removed, and the identity w i th i tse l f becomes exp l i c i t for i t . " F o r Hege l , the se l f is the essence that is left when that w h i c h it is not is removed. In the f o l l ow ing sect ion I out l ine the just i f icat ions g iven b y advocates and opponents o f the amendment to the Const i tut ion. B y exp lor ing the assumptions under l y ing just i f icat ions g iven for and against restrict ing entitlement to Ir ish c i t izenship I argue that both " s i d e s " re l ied upon a concept ion o f Irishness that was p laced i n contrast to an Other. Wh i l s t the mainstream Y e s and N o campaigns d i d not use overt ly racist language, the assumptions underpinning their arguments re l ied upon a cultural essent ia l ism also found i n racist discourses. 4.6 The Y e s Campa ign The mainstream Yes campaign compr ised o f the ru l ing F i anna Fa i l and Progressive Democrat parties. The largest oppos i t ion party, F ine Gae l d id not act ive ly campaign dur ing the referendum, although it d id endorse the referendum and the Government ' s plans to restrict entitlement to Irish c i t izenship. 2 1 5 Georg Hegel, Phenomenology of Spirit, trans, by A . V . Miller, (Oxford University Press, 1977) at 105 (emphasis his own.) 99 The Government coa l i t ion advanced three reasons for restr ict ing entit lement to Ir ish c i t izenship: F i rs t l y , it c l a imed that non-nationals f rom outside the E U were t rave l ing to Ireland to give b i r th to ch i ldren for sel f ish reasons: to ga in soc ia l , po l i t i ca l and economic rights w i th in Ir ish society and to a right o f residence w i t h i n the E U for themse l ves . 2 1 6 Secondly , the Government stated that the number o f non-national w o m e n arr iv ing i n Ireland i n order to give b i r th to ch i ldren was p l ac ing a strain on maternity services i n D u b l i n . The f ina l argument presented b y the Government was that r emov ing entitlement to Ir ish c i t izenship b y b i r th w o u l d remove the incent ive for w o m e n to travel to Ireland dur ing the late stages o f pregnancy. Th i s argument was couched i n the language o f humanitar ianism. The Government stressed the danger o f the journey to both the mother and her ch i ld . It speculated that the prospect o f securing Ir ish, and therefore European, c i t izenship for their ch i l d was p lac ing vulnerable w o m e n at r isk. Unde r pressure f rom their partners, w h o w i shed to secure a r ight to res idency themselves through their l i nk to an Ir ish c i t i zen , pregnant w o m e n were t rave l ing to Ireland. The Government therefore presented the restr ict ion o f entitlement to Ir ish c i t izenship as a humane measure . 2 1 7 Harr ington suggests that the outcome o f the C i t i zensh ip Re fe rendum reflected changes i n the dominant concept ion o f I r i shness . 2 1 8 H e contends that the dominant nat ional narrative has changed since the founding o f the I r ish state i n the ear ly 2 0 T H century. D u r i n g the per iod f o l l ow ing Irish independence f r om B r i t a in , Ireland 2 1 6 "Citizenship Referendum: The Government's Proposals," supra note 195 at 5. 2 1 7 McDowell, supra note 198. 2 1 8 John A Harrington, "Citizenship and the Biopolitics of Postnationalist Ireland" (2005) 32(3) J. L . & Soc'y 424 at425. . ' ' 1 0 0 def ined i tse l f i n oppos i t ion to "B r i t i shness . " Indeed, a be l i e f i n a fundamental d is t inct ion between Irishness and Br i t ishness was used to jus t i f y Ireland's independence and to forge a sense o f nat ional ident i ty for the new Ir ish state. Har r ington suggests that f rom the mid-1950s, but espec ia l ly s ince the Repub l i c o f Ireland's entry into what was then the European E c o n o m i c C o m m u n i t y , the Repub l i c o f Ireland has moved away from def in ing i tse l f i n oppos i t ion to B r i t a i n and has embraced a cosmopol i tan European identity. It has rejected a fixed mono-cultural identity, l ibera l ized and embraced the "mu l t i p l e and shi f t ing ident i t ies " o f cosmopol i tan E u r o p e . 2 1 9 However , as Har r ington acknowledges, embrac ing a European ident i ty does not transcend the need to define onese l f i n oppos i t ion to an Other. D r a w i n g on the work Peter F i tzpatr ick , Har r ington indicates that i n embrac ing a European identity, Ireland embraces a Eurocentr ic w o r l d v i ew to the exc lus ion o f non-European Others. Har r ington 's analysis appears to be conf i rmed by the rhetoric o f the Y e s campaign dur ing the C i t i zensh ip Referendum. Throughout the campa ign , the Government emphasized that the restr ict ion o f Ir ish c i t izenship was necessary i n order for Ireland to f u l f i l l its responsibi l i t ies as a European nat ion. Rather than de f in ing Ireland i n oppos i t ion to B r i t a in , the Y e s campaign presented the Repub l i c o f Ireland as a European nat ion deal ing w i t h a European prob lem. 2 , 9 Ibid, at 422. 101 The restr ict ion o f entitlement to Irish c i t izenship was presented as a means o f 990 • e l iminat ing a danger to pregnant w o m e n and unborn ch i ldren. Th i s constructed Ireland as a compassionate nation. The non-European male was character ized as w i l l i n g to r isk the wel l-being o f his ch i l d or pregnant partner i n order to increase his c l a im to reside i n Europe. H i s reasons for seeking entry to Europe , i n order to c l a im socia l security benefits f rom a society he had not contr ibuted to, were equal ly contemptible. European Ireland was portrayed as both good and under threat f rom the non-European. Ireland contrasted i tse l f favorably against the non-European countries o f A f r i c a and the former Eastern B l o c . Non-European nations were constructed i n an extremely negative l ight. The non-European embodied the negative, threatening traits that a c i v i l i z ed European Ireland had transcended. Ireland was portrayed as protect ing the health o f non-national w o m e n and their unborn ch i ldren who w o u l d otherwise be coerced into travel ing dur ing the late stages o f pregnancy. Ireland was also portrayed as a v i c t i m o f the non-European; the fragi le European c i v i l i z a t i on faced threats i n the fo rm o f maternity wards at burst ing point , soc ia l security abuse and uncontro l led borders. Despite the strength o f m u c h o f Harr ington 's argument, I have d i f f i cu l t ies w i th some o f the inferences he draws. O n a theoretical leve l I am concerned that the term "pos tna t iona l i sm" is mis lead ing. Harr ington uses postnat ional ism, a term he borrows f rom R i cha rd K e a r n e y , 2 2 1 to s ign i fy a po l i t i ca l ident i ty that has transcended the phys ica l and ideo log ica l boundaries o f tradit ional Ir ish nat iona l i sm to embrace a 2 2 0 McDowell, supra note 198. 2 2 1 Richard Kearney, Postnationalist Ireland (Routledge, 1997). 102 cosmopol i tan European identity. H e exposes the rac ia l ized underpinnings o f the postnational ist project by the appl icat ion o f Peter F i tzpa t r i ck ' s cr i t ique o f Hege l . Howeve r , i n ident i fy ing the European identity as postnational ist , Har r ington over looks a key point i n F i tzpat r i ck ' s theory; European ident i ty recreates rather than transcends nat iona l ism. F i tzpatr ick states, "the E U achieves this seeming transcendence, not b y becoming different to its member-nations but, rather, b y 222 conta in ing them i n a repl icat ion o f the d imensions and dynamic o f the na t ion . " A s such, it is perhaps more accurate to talk o f " I r i sh European na t iona l i sm. " The second concern I have is the assumption that those who voted Y e s d i d so because they embraced a cosmopol i tan identity. A l t hough an ove rwhe lm ing major i ty o f voters endorsed the proposed amendment, there is a shortage o f strong data to indicate w h y they chose to support it. O p i n i o n po l l s taken before the referendum suggested there was m u c h voter confus ion regarding the purpose o f the r e f e rendum. 2 2 3 The on l y exit p o l l taken on the day o f the referendum suggested that ")")A many supported the referendum because o f anti-immigrant sentiment. The Yes/No nature o f the referendum gives a false impress ion o f homogene i ty among the sides. The mainstream Y e s campaign argued that the Repub l i c o f Ireland's status as a cosmopol i tan state just i f ied changing its c i t izenship laws. A s such it accords w i th Harr ington 's analysis. However , there were also voices who advocated a Y e s vote i n order to reject cosmopo l i tan ism i n favour o f a conservat ive, inward- look ing identity. 222 Ibid, at 133. 2 2 3 Carol Coulter, "Confusion over what Yes or No vote means" Irish Times, 2 June 2004. 2 2 4 By the Irish Broadcaster RTE, cited in Priya Rajsekar "Can I Look You Confidently in the Eye Again" Irish Times (6 June 2004). 103 W i t h a lack o f in format ion on w h y Ir ish voters endorsed the proposa l , the extent to w h i c h the C i t i zensh ip Referendum reflected a reconceptual izat ion o f Ir ish ident i ty b y the general pub l i c , and h o w m u c h it remains an aspiration o f a cosmopol i tan elite, is unclear. The extent to w h i c h the tradit ional preoccupations o f Ir ish nat iona l i sm continue to p lay a role i n the 2 1 s t century has been explored b y Patr ick H a n a f i n . 2 2 5 Har r ington 's account suggests an almost l inear transit ion f rom irredent ism to cosmopol i tan ism. Hana f in ' s wo rk considers the complex i t y o f socia l change i n the Repub l i c o f Ireland. H e argues that w i t h the establishment o f the Ir ish State, c i t izenship was founded upon R o m a n Ca tho l i c construct ion o f the ind iv idua l . It conce ived o f the c i t i zen as " l i v i n g for death. The " i d e a l " I r ish c i t izen was one who was prepared to sacr i f ice their o w n l i fe , either l i tera l ly or f igurat ively , for the l i fe o f the nat ion. Hana f i n contends that though Ir ish society has l ibera l ized s igni f icant ly , the concept o f Irishness as a fo rm o f self-sacrif ice continues to assert i t s e l f . 2 2 6 Hanaf in ' s study considers the role o f unborn ch i ldren and Ir ish martyrs as v i r tua l , ideal Ir ish c i t izens. H e employs a Der r id ian analysis to argue that the change from irredentist Ir ish nat iona l ism to l iberal cosmopo l i tan ism is not s imp l y a matter o f soc ia l progress. Cosmopo l i t an i sm does not s imp ly replace tradit ional I r ish identit ies. Rather, the engagement o f cosmopo l i tan ism w i t h Irishness has a mutua l l y 2 2 5 Patrick Hanafin, "Valourising the Virtual Citizen: The Sacrificial Grounds of Postcolonial Citizenship in Ireland" 2G03 ( 1 ) Law, Social Justice and Global Development Journal http://elj.warwick.ac.uk/global/03-l/hanafin.html. 226 Ibid, at 3. 104 transformative effect upon each concept. Fo r example , i n regards to the issue o f abort ion, Hana f in suggests that l ibera l izat ion i n other areas o f Ir ish l i fe p rovoked a response f rom conservative sections o f society that might otherwise not have occurred. Though the Ir ish State has never permitted abort ion, concerns that a more general process o f l ibera l izat ion w o u l d lead to its lega l izat ion prompted the format ion o f anti-abortion groups who successful ly lobb ied for the insert ion o f a "p ro- l i f e " clause into the Const i tut ion o f Ireland i n 1983. L ibe ra l i za t ion shou ld therefore be seen as a catalyst for change; however , its impact is in f luenced b y the circumstances o f the exis t ing society. It s imultaneously challenges the dominant soc ia l order and reasserts tradit ional values o f that society. Con t inu ing the theme o f cont inui ty and change, I suggest that i n Lobe and the C i t izensh ip Referendum we witness the evocat ion o f a new ident i ty through themes fami l i a r to Ir ish society. S iobhan M u l l a l l y points out that the C i t i zensh ip Referendum centred on the migrant woman ' s reproduct ive role , reca l l ing the longstanding debate i n Ir ish society surrounding a b o r t i o n . 2 2 7 Lobe i n voked the rights o f the fami l y , w h i c h are considered so central to Ir ish ident i ty that A r t i c l e 41 o f the Const i tu t ion declares the "super ior to a l l posi t ive l aw . " Ye t , f o l l o w i n g the embrace o f a broader European identity, the tradit ional " I r i s h " approach towards these themes was seemingly abandoned. The l i fe o f the ch i l d and role o f the mother was not celebrated. N o r were the rights o f the f ami l y considered superior to the state's right to control its borders. M u l l a l l y states, "Where migrant w o m e n have invoked the 2 2 7 Siobhan Mullally, "Gendered borders: reproduction, family unity and immigration law in Ireland" in Walsum S (ed., Women and Immigration Law (Cavendish: London, 2005) 4 (forthcoming). 105 const i tut ional protections afforded to the f ami l y or the State's duty to 'defend and v ind icate ' the right to l i fe o f the 'unborn , ' the State has been qu ick to appeal to the requirements o f comi t y w i t h other nations and its inherent and universa l right to control i m m i g r a t i o n . " 2 2 8 Interestingly, the perce ived power relat ionship w i t h i n immigrant fami l ies indicates that the patr iarchal nuclear f am i l y cont inued to dominant the Ir ish imaginat ion . A s we have seen, the expectant mothers were depicted as v i c t ims , l a ck ing autonomy. They were conce ived o f as subservient to their male partners - t rave l ing to Ireland at his behest and for his benefit. Therefore, even though the C i t i zensh ip Referendum serves as an indicator o f soc ia l change i n the Repub l i c o f Ireland, it also rev is i ted and af f i rmed themes associated w i t h more tradit ional I r ish identit ies. 4.7 Other V o i c e s A s stated earlier, the choice o f vot ing Y e s or N o i n the C i t i zensh ip Referendum imp l i ed a d i cho tomy between the v iews o f advocates and opponents that d id not rea l ly exist. In this section I outl ine some o f the v iews expressed b y advocates o f the const i tut ional amendment. These voices often endorsed v iews that were either overt ly racist or based upon cultural stereotypes c o m m o n to racist discourses. I be l ieve that though they were not endorsed b y the Government coa l i t ion , without evidence o f what prompted Ir ish voters to endorse the Twenty-Seventh Amendmen t the v iews expressed by those voices cannot be discounted. 106 There is a g row ing body o f work suggesting that rac ism is a m u c h misunderstood concept i n Ireland. Though the U N has recognized that r ac i sm is not about sk in co lour but prejudice based upon hierarchy, in fer ior i ty and super ior i ty drawn a long ethnic or rac ia l l ines, i n Ireland rac i sm tends to be def ined nar rowly . B r y a n Fann ing states, " Popu la r understandings o f rac ism tend to define i t . . . i n terms o f bel iefs about b io log i ca l infer ior i ty , phys ica l attacks and verbal a b u s e . " 2 2 9 A m o n g the myths that continue to have currency is the v i ew that the Ir ish are not racist and that the phenomenon o f rac i sm is something that Ireland has on l y exper ienced i n the last f i fteen or twenty yea r s . 2 3 0 These v iews have been exposed as based upon a myth about the homogenei ty o f Irishness. Fann ing describes that m y t h as " an ideo log ica l construct. It was born , i n part, out o f nineteenth-century c l a ims that there was such a th ing as the Ir ish r a c e . " 2 3 1 A Y e s vote was endorsed b y the unashamedly ant i- immigrat ion " Immigra t i on Cont ro l P l a t f o r m " [ ICP ] . 2 3 2 The I C P is a smal l Euro-skeptic group opposed to almost any immigra t ion to Ireland, inc lud ing f rom E U states. It endorsed a Y e s vote i n the C i t i zensh ip Referendum, stating that it was a step towards reasserting Ireland's sovereignty as a state, w h i c h " fo r ced mu l t i cu l tu ra l i sm" was e r o d i n g . 2 3 3 The ICP be l ieved the Government proposals to restrict entitlement to Ir ish c i t izenship should 2 2 9 Bryan Fanning, Racism and Social Change in the Republic of Ireland (Manchester University Press, 2003) at 19. 2 3 0 Louise Beirne & Vinodh Jaichand, "Breaking Down Barriers: Tackling Racism in Ireland at the Level of the State and its Institutions," (Amnesty International, 2006) at 33. 23[Ibid. at 8. 2 3 2 Immigration Control Platform, online: <www.immigrationcontrol.org>. 2 3 3 Sean McCarthaigh, "Putting Irish people first" Irish Examiner (27 May 2004). 107 have gone further. It argued for the restrictions on Ir ish c i t izenship should be appl ied retrospect ively and employed the fami l iar compla int that tax-payer's money was be ing used to support " b o g u s " asy lum seekers. There might be a tendency to dismiss the I CP as a sma l l , ins igni f icant group. However , mainstream commentators advanced arguments that shared that group's be l i e f that the Ir ish were a cul tura l ly homogenous group unused to immigrants i n nat ional newspapers dur ing the referendum campaign. W r i t i n g i n the Irish Times, co lumnis t John Waters d ismissed the suggestion that the C i t i zensh ip Re fe rendum w o u l d encourage racist tendencies, c l a im ing "There is very l itt le rac i sm i n Ireland, and astonishingly l itt le cons ider ing that we learned very m u c h o f what we k n o w about l i fe at the knee o f the most racist power on the p l a n e t . " 2 3 5 In m a k i n g this c l a im , M r . Waters reiterated a v i ew st i l l w ide l y he ld i n Ireland; the Ir ish are not r a c i s t . 2 3 6 A r g u i n g that the referendum w o u l d be heav i ly defeated, he conf ident l y recal led the generous nature o f the Ir ish. H e stated, "It is less than a generation since Ir ish people l ined up at their teachers' desks to give their pennies to the b lack babies. T o ask them now...to snatch passports f rom the grasp o f the babies o f the b l ack babies is a l itt le too m u c h for this breed o f white m a n . " The a id campaigns referred to have since been descr ibed as " w e l l meaning but pa t ron iz ing " and ident i f ied as contr ibut ing " to the See remarks by Pat Talbot in Sean McCathaigh "Putting Irish People First," Irish Examiner, May 27 t h 2004. 2 3 5 John Waters, "Citizenship Stroke an Act of Folly" Irish Times (19 Apri l 2004). 2 3 6 B i l l Rolston & Michael Shannon, Encounters: How Racism came to Ireland (Beyond the Pale, 2002) at 2. 2 3 7 Waters, supra note 235. 108 deep-seated attitudes o f rac ia l superiority i n the psyche o f the major i ty ethnic g r o u p " b y an A m n e s t y International r epor t . 2 3 8 The rhetoric o f " b l a ck bab ies " was undoubtedly intended to be i ronic . However , there is noth ing to indicate that M r . Waters v i ewed the A f r i c a n miss ionary campaigns as anything but p r o o f that rac i sm was not an issue i n Ireland. H i s argument re l ied upon stereotypes o f the Ir ish, portrayed as w e l c o m i n g and generous, w h i c h were contrasted w i t h a portrayal o f the B r i t i sh as "the most racist power on the planet . " Rather than d ispe l c l a ims that rac ism exists i n Ireland, M r . Waters used rac ia l ized assumptions to (wrongly ) predict the outcome o f the C i t i zensh ip Referendum. The widespread be l i e f that Ireland, was unt i l recently a society free f r om rac i sm i tse l f was promoted by Ir ish nat iona l ism, w h i c h def ined i tse l f as " g o o d " i n oppos i t ion to " b a d " B r i t a in and Br i t ishness. In his history o f twentieth century Ireland, J.J. Lee contrasts the character o f Ir ish nat iona l ism w i th that o f U l s te r U n i o n i s m . O f Un ion is ts he states, "Race and re l ig ion were inextr icably intertwined i n U ls ter unionist consciousness. Un ion is ts cou ld not re ly on the cr i ter ion o f co lour , for the Catho l ics lacked the imaginat ion to go off-white, nor on the cr i ter ion o f language, for the Catho l ics had unsport ingly abandoned their own . It was therefore imperat ive to sustain Protestantism as the symbo l o f rac ia l supe r i o r i t y . " 2 3 9 In contrast, Lee states " r a c i sm was far less central to the ideo logy o f Ir ish nat iona l i sm than to that o f U ls te r u n i o n i s m . " 2 4 0 ' Beirne & Jaichand, supra note 230 at 33. ' J.J. Lee, Ireland 1912-1985: Politics and Society (Cambridge University Press, 1989) at 4. 109 A var iat ion on the c l a im that Ireland is not racist is the argument that r ac i sm is a new phenomenon in I r e l and . 2 4 1 Ro l s ton and Shannon ident i fy two versions o f this narrative. The first they term an " immigran t b l a m i n g " narrative, i n w h i c h the emergence o f rac i sm is attributed to the arr ival o f the immigrant rather than the actions o f the host society. The second is a s l ight ly more l ibera l account i n w h i c h the actions o f the host society are attributed to the "natural teething p r o b l e m s " o f a homogenous society encountering different cultures for the first t ime. The second o f these two narratives was endorsed i n an editor ia l entit led " I t 's R ight to Vo te Y e s , " by the Ir ish Independent . 2 4 2 A m o n g the reasons it gave for tak ing this v i ew was that the jus soli pr inc ip le was unsuited to a country such as Ireland. The paper stated that most countries that retained birthright c i t izensh ip laws were " immigran t countr ies . " In do ing so it shared the v i ew taken b y the I C P that Ireland was not a land o f immigrants . A s i d e f rom the mis lead ing nature o f the account o f the development o f Ir ish c i t izenship l a w 2 4 3 the Irish Examiner's edi tor ia l served to re- enforce a c o m m o n l y he ld my th about the homogenei ty o f the Ir ish. B r yan Fann ing describes the my th as thus, " I re land has a lways been a homogenous society and that the Ir ish identity is something that remains fixed and u n c h a n g e d . " 2 4 4 The concept o f Ir ish ident i ty as fixed and unchanging is perhaps best i l lustrated b y the 240 Ibid, at 10. 2 4 1 Rolston & Shannon, supra note 236 at 2. 2 4 2 "It's right to vote Yes," Editorial, Irish Independent (19 May 2004). 2 4 3 The division of citizenship regimes into jus soli and jus sanguinis regimes is largely dependent upon whether they derive from a common law or civil law tradition, not their status as "old world" or "new world" nations. 2 4 4 Fanning, supra note 229 at 3. 110 many references found to Gae l i c Ireland found i n Ir ish national ist literature. In Padraic Pearse's " M i s e E i r e " ["I am Ire land"] , for example , the is land o f Ireland is portrayed as the c o m m o n mother o f Gae l i c and modern day I r e l and . 2 4 5 C l o s e l y related to this v i ew is an assumption that it is both natural and inevi table that the is land o f Ireland should a single autonomous po l i t i ca l unit. Lee cr i t ic izes U ls te r Un ion is ts for seeking to establish the part i t ion o f Ireland, stating " T h e nine county prov ince o f U ls ter was neither an administrat ive nor a po l i t i ca l u n i t y . " 2 4 6 In contrast, for Lee , the log ic o f Ir ish Na t iona l i sm seeking to establish a sovere ign independent Ireland where one had not existed before is so se l f evident as to go unquest ioned. The concept ion o f the Ir ish as a homogenous group is beg inn ing to be questioned. D .G . B o y c e points out i n his history o f Ir ish nat iona l i sm, that it is " bad h is to ry " to regard the Gaels as "the Irish i n the infancy o f their r a c e . " 2 4 7 H e argues that the importance o f the Gaels to modern Ir ish identity comes f rom their s ymbo l i c status g iven to them in the more recent past. Boyce states, "It may w e l l be that the tacit assumption b y many nationalist historians that this last Ce l t i c invas ion was ' good , ' and a l l post-Celt ic incursions and invasions ' b ad ' was because the later invaders were unfortunate enough to have their misdeeds chron ic led , wh i l e the Gae ls were able to compose their own , more f lattering vers ion o f their h i s t o r y . " 2 4 8 A ccoun t s o f the or ig in o f the Ir ish nat ion, prov ided i n poems such as " M i s e E i r e , " served to mark the Ir ish as a dist inct group w i th nat ional characteristics. Such narratives g ive a narrow 2 4 5 Padraic Pearse, The Collected Works of Padraic Pearse: Plays, Stories, Poems (Manunsel and Co. Ltd, 1917) at 40. 2 4 6 Lee, supra note 247 at 9. 2 4 7 D.George Boyce, Nationalism in Ireland (Routledge, 1995) at 25. I l l and exc lus ionary account o f Irishness. They p layed a key role i n jus t i f y ing Ireland's independence at what is considered b y H o b s b a w m the high-point o f nat iona l i sm by f raming Ireland's populat ion as distinct, and necessari ly h o m o g e n o u s . 2 4 9 The Irish Examiner's edi tor ia l endorsed a concept ion o f Irishness w h i c h has l itt le scope to a l l ow for the contr ibut ions o f the Normans , Anglo- I r i sh , Irish-Italians, or Ir ish Travel lers , to name a few groups. The argument that the Ir ish nat ion is a construct and not a g i ven n o w f inds i tse l f " i n tune w i t h the w ider intel lectual currents o f the a g e . " 2 5 0 John Har r ing ton argues that Ireland has recently moved away from irredentist nat iona l i sm and embraced a cosmopol i tan European identity. A s such, essentialist nat iona l i sm is n o w be ing questioned. Th i s is borne out b y the reasons g iven b y the mainstream Y e s campaign dur ing the C i t i zensh ip Referendum. There are many prob lems w i t h the Eurocentr ic v i s i on for Ireland set out b y the current Government , but it d i d not advocate a restr ict ion o f entitlement to Irish c i t izenship on the grounds that on l y those o f Gae l i c decent should be entit led to it. However , that mainstream Ir ish newspapers publ ished articles such as the Examiner's editorial or John Waters ' article wi thout comment being passed indicates that the v i e w that there is a " t rue " Irishness w h i c h is Wh i te , Ce l t i c , Ca tho l i c and dates back to myth i ca l t imes s t i l l gains w ide acceptance throughout the country. E.J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (Cambridge, 1989). 2 5 0 R.V. Comerford, Ireland: Inventing the Nation, (Arnold, 2003) at 1. 112 4.8 The N o Campa ign A N o vote was endorsed by Labour , Ireland's th i rd largest po l i t i ca l party, and two smal ler parties: S i nn Fe i n and the Greens. It also attracted support f rom approximate ly 45 g r o u p s 2 5 1 w h i c h inc luded groups such as the Ir ish C o u n c i l for C i v i l L i b e r t i e s , 2 5 2 the Method is t C h u r c h i n I r e l and , 2 5 3 as w e l l as a number o f a number o f organizat ions formed spec i f i ca l l y to oppose the referendum, such as " L a w y e r s against the A m e n d m e n t . " 2 5 4 Because o f the large number o f sma l l groups oppos ing the referendum it is not possible to outl ine i n detail the reasons g iven b y each. Instead I w i l l l im i t m y analysis to the c l a im that the Government ' s proposals were racist. A number o f opponents o f the proposed amendment raised concerns that the p lan to restrict entitlement to Ir ish c i t izenship was racist or cou ld encourage those w i t h racist tendencies. In do ing so they focused upon the Government ' s plans to restrict entitlement to Ir ish c i t izenship, should the proposed amendment be passed, rather than the effect o f the referendum itself. Green Party leader, T revor Sargent, stated " T h i s plays into the hands o f those who are t ry ing to heighten tension and p lay the race card i n the run-up to European and loca l e l e c t i o n s . " 2 5 5 S i nn F e i n c l a imed that the Government was seeking a c i t izenship regime based on " b l o o d t i es " (seemingly ove r look ing that Ir ish c i t izenship l aw was already, in part, based upon such a 2 5 1 Grainne Cunningham & Helen Bruce, "Alliance of Voices United in Calling for No Vote" Irish Independent (9 June 2004). 2 5 2 Aisling Reidy, "Conception of Citizenship" Irish Examiner (31 May 2004). 2 5 3 Patsy McGarry, "Methodists Say Vote is 111-Judged" Irish Times, (26 May2004). 2 5 4 Michael O'Farrell, "Citizenship Referendum will Target Innocent Children i f Passed, warn Lawyers" Irish Examiner (20 May 2004). 2 5 5 Senan Molony, "Green Party Attacks the 'Opportunism' of Coalition's Citizenship Vote" Irish Independent, (17 May 2004). 113 concept.) Fo r the most part, the Labour Party restricted its c r i t i c i sm to the manner i n w h i c h the referendum was he ld , stating that the Government had fa i led to f o l l ow the protoco l for const i tut ional amendments b y proper ly consul t ing a l l parties elected to the D a i l and had fa i led to prov ide any compe l l i ng evidence for a const i tut ional change . 2 5 7 However , Pat Rabbitte, leader o f the Labour Party also suggested at one point that ho ld ing the C i t i zensh ip Referendum was a cyn i ca l attempt b y the ru l ing coa l i t ion to make gains i n elections, he ld on the same day, b y exp lo i t ing pub l i c concerns about i m m i g r a t i o n . 2 5 8 The argument that the proposed Twenty-Seventh Amendmen t was racist over looked the rac ia l ized character o f Ir ish c i t izenship pr ior to the C i t i zensh ip Referendum. A rac ia l ized concept ion o f Irishness already p layed i n def in ing the nat ional group. In the wake o f independence, nat ional identity i n the Irish Free State was dominated by an associat ion w i th C a t h o l i c i s m 2 5 9 and the my th o f a Gae l i c mono-cultura l n a t i o n . 2 6 0 A s a consequence, alternative narratives o f the Ir ish experience were suppressed; the leg i t imacy o f Trave l lers ' culture was denied; the role o f Protestantism i n shaping Irish cultural ident i ty was downp layed ; w o m e n were relegated to the private sphere . 2 6 1 D u r i n g this per iod, the construct ion o f a nat ional ident i ty i n oppos i t ion to B r i t a in Aengus O Snodaigh, in Brian Dowling, "Tanaiste Rejects Racist Charge over Poll" Irish Independent (22 May 2004). 2 5 7 Pat Rabbitte, Ireland, Dail Debates, vol. 582 (7 April 2004). 258 Ibid. 2 5 9 Beirne & Jaichand, supra note 230 at 33 2 6 0 Fanning, supra note 229 at 10. 2 6 1 Breda Gray & Louise Ryan, "The Politics of Irish Identity and the Interconnections between Feminism, Nationhood, and Colonialism" in Ruth Roach Pierson ed., Nation, Empire and Colony: Historicizing Gender and Race (Indian University Press, 1998) 121 at 126-28. 114 posi ted Ireland and the Ir ish as good against negative depict ions o f B r i t a in and Br i t ishness. Those advocat ing a N o vote were as reliant on a concept ion o f the good society, w i th borders, as proponents o f a Y e s vote. A s such, they also required a bad society f rom w h i c h to Other themselves. In some cases B r i t a in , the Other h i s tor i ca l l y used b y Ir ish nat iona l ism, was used. One N o campaign s logan compared the proposa l to restrict entitlement to Ir ish c i t izenship w i t h the rac i sm experienced b y Ir ish immigrants i n B r i t a in i n the 1950s and 1960s. It read, " Remember ' N o B l a cks , N o Dogs , N o I r i s h ? ' " 2 6 2 In this concept ion o f the good society, Irishness - the v i c t i m o f co lon i a l i sm rather than its perpetrator - was contrasted favourab ly w i t h B r i t a in . In his study o f Ireland's interaction w i th co lon ia l i sm, Stephen H o w e suggests that the rhetoric o f Ir ish ant i- imperia l ism is o f recent pedigree. H o w e argues that though some prominent advocates o f Ir ish independence, such as Dan i e l O ' C o n n e l l , made c o m m o n cause w i th oppressed peoples i n the B r i t i sh Co lon i es , Ir ish nat iona l i sm's relat ionship the co lon ia l era is , on the who le , ambivalent. H e states that most early Ir ish nationalists s imp l y d i d not ident i fy their cause w i t h non-European struggles. Some, though not a major i ty , o f Ir ish nationalists went further, arguing for Ir ish independence on grounds o f Ireland's d iss imi la r i ty to B r i t a in ' s other colonies rather than mak ing c o m m o n cause w i th them. Fo r John M i t c h e l , it was the supposed b io log ica l superior i ty o f the white Ir ish that made Ireland's status as a co lony 2 6 2 Socialist Workers Party, online: http://www.swp.ie/html/home.htm. 2 6 3 Stephen Howe, Ireland and Empire, (Oxford University Press, 2000) at 43. 115 unbearable because it relegated a " W h i t e " nat ion to the status o f "the N e g r o . " H o w e ' s is one o f a number o f recent studies that suggest that the denia l o f rac i sm i n 265 Ireland was i tse l f based upon an inherently racist depic t ion o f the E n g l i s h Other. Ir ish national ist accounts o f Ireland's relat ionship w i t h B r i t a in over looked the b io log i ca l and cultural essential ism upon w h i c h the d is t inct ion between the Ir ish and B r i t i sh was based. Through an examinat ion o f D a i l debates o f the t ime, M u l l a l l y demonstrates that despite the inc lus ive def in i t ion o f Ir ish c i t izenship set out i n the 1956 Act it pursued a rac ia l ized concept ion both o f the Ir ish and the O t h e r . 2 6 6 She draws attention to the remarks o f Depu ty A n t h o n y Esmonde , who raised concerns that the 1956 Act w o u l d entitle people " w h o might not be exactly satisfactory, f r om the standpoint o f Irish culture and Ir ish thought, or to the overwhe lming major i ty o f the Ir ish peop l e " to Ir ish c i t izenship. Moreove r , despite the seemingly inc lus ive nature o f the 1956 Act, it was introduced i n pursuit o f a state-building project that was h i g h l y rac ia l ized . The 1956 Act reflects a concept ion o f the Irish as a homogenous, cu l tura l l y dist inct nat ion l inked b y b l o o d and their relat ionship w i th the i s land o f Ireland. It a imed to reduce, as m u c h as poss ib le , the d ist inct ion between those born i n the Repub l i c o f Ireland and those born i n Nor thern Ireland i n furtherance o f the be l i e f that the Ir ish are a dist inct cultural unit. The v iews o f James Everett, M in i s t e r for Justice at the t ime, i l lustrate h o w the a im o f the 1956 Act was to give legal recogni t ion to those perce ived to be 264 Ibid, at 44. 2 6 5 See generally Beirne & Jaichand, supra note 230 and Fanning, supra note 229. 2 6 6 Siobhan Mullally, "Citizenship and Family Life in Ireland: Asking the question 'Who Belongs?'" (2005) 25(3) Legal Studies 578 at 581. 116 cul tura l ly Ir ish. The M in i s t e r is carefu l to note i n the course o f exp la in ing the impact o f the legis lat ion that since the legis lat ion w o u l d require a person resident i n Nor thern Ireland to "dec l a re " their Ir ish c i t izenship, the 1956 Act w o u l d not bestow c i t izenship upon those " o f entirely a l ien parentage without any rac ia l t i e s . " 2 6 7 The use o f an inc lus ive jus soli pr inc ip le i n the 1956 Act was jus t i f i ed b y reference to a nat ional narrative that was not opposed to a rac ia l ized concept ion o f the w o r l d , but rather dependent upon it. B y entit l ing those born i n Nor the rn Ireland to retrospect ively c l a i m Ir ish c i t izenship f rom bi r th the 1956 Act a f f i rmed the nationalist narrative that Ireland was cul tura l ly homogenous, regardless o f part i t ion. 4 . 9 Leg is la t ive Changes F o l l o w i n g the Re fe rendum H a v i n g considered the assumptions underp inning earl ier c i t izenship leg is lat ion and the Ir ish C i t i zensh ip Referendum, I n o w consider the changes enacted b y the Irish Nationality and Citizenship Act 2004 [the 2004 Act], Sect ion 4 o f the 2004 Act amended Sect ion 6 o f the 1956 Act26S Sect ion 6 A n o w reads, " A person born i n the is land o f Ireland shal l not be entit led to be an Ir ish c i t i zen unless a parent o f that person has, dur ing the per iod o f 4 years immedia te ly preceding the person 's birth, been resident i n the is land o f Ireland for a per iod o f not less than 3 years or periods the aggregate o f w h i c h is not less than 3 y e a r s . " 2 6 9 Wh i l s t sect ion 6 A restricts the entitlement o f both Europeans and non-Europeans to Ir ish c i t izensh ip , it ensures that 2 6 7 James Everett, Ireland, Dail Debates, vol. 154 (29 February 1956.) 268 Irish Nationality and Citizenship Act 2004 (I.) 2004, s.4 [the 2004 Act]. 117 the ch i ldren o f non-Europeans are less l i ke l y to acquire Ir ish c i t izenship . The right to free movement o f persons is guaranteed to E U cit izens b y A r t i c l e 18 E C and 270 Di rec t i ve 90/364. The case o f Chen v Secretary of State for the Home Department af f i rmed that the r ight to reside i n another M e m b e r State is dependent upon E U cit izens hav ing adequate resources to support themselves. Therefore, wh i l e Europeans have a prima facie r ight to enter and remain i n Ireland, non-Europeans face the prospect o f be ing denied the necessary documentat ion to stay i n the state long enough for their ch i ldren to be born Ir ish c i t izens. The opportunity for a ch i l d born to non-European parents to become an Ir ish c i t izen is further d imin i shed by subsections 6A(4 ) and (5). These draw an exp l i c i t d is t inct ion between the cr iter ia that European and non-European c i t izens must f u l f i l l i n order for their ch i ldren to be entit led to Irish c i t izenship, should they be bo rn i n Ireland. Fo r the ch i l d o f a non-European to receive Ir ish c i t izenship, its parents must have been lega l ly resident i n either the Repub l i c o f Ireland or Nor thern Ireland for three out o f the preceding four years. Furthermore, t ime spent i n Ireland under a study permit does not count towards that requ i rement . 2 7 1 There is no corresponding requirement o f legal i ty o f residence for the European c i t izen parents o f a ch i l d bo rn i n Ireland. Wh i l s t it cou ld be argued that such a requirement is unnecessary i n the case o f a European parent because A r t i c l e 18 E C and D i rec t i ve 90/364 give European cit izens the r ight to l i ve and w o r k i n any member state, it must be remembered that that right 269 Irish Nationality and Citizenship Act 1956 (I.) 1956, s.6A [the 1956 Act] 270 Chen v Secretary of State for the Home Department, Case C-200/02 [E.C.J.]. 271 Irish Nationality and Citizenship Act, 1956, s. 6A(4)(b) as amended by the Irish Nationality and Citizenship Act, 2004. 118 is not absolute. The Chen case he ld that the right to reside i n another member state is dependent upon European cit izens hav ing adequate resources to support themselves. They m a y be required to leave another M e m b e r State i f they become an unreasonable burden upon the soc ia l services o f that country. U n d e r the new Ir ish c i t izenship regime, it is conceivable that a ch i l d born to a European c i t izen w h o has fa i led to c o m p l y w i t h an order to leave Ireland w o u l d receive Ir ish c i t izenship w h i l e a ch i l d born to a non-European, lega l ly resident for the purposes o f educat ion, w o u l d not. "Europeanness , " as prescr ibed b y the 2004 Act, is not conf ined to ci t izens o f countries that are members o f the European U n i o n . It also inc ludes c i t izens o f countries that are members o f the European E c o n o m i c A r e a ( E E A ) and S w i t z e r l a n d . 2 7 2 Furthermore, the jus sanguinis pr inc ip le found in the or ig ina l vers ion o f the 1956 Act was not substantial ly altered b y the 2004 Act. Co l l e c t i ve l y , the amendments to the 1956 Act made b y the 2004 Act amount to a p r i v i l eg ing o f c i t izens o f the histor ic " c o m i t y o f nat ions" to the exc lus ion o f those w h o fa l l outside that co l lect ive o f nations. 4.10 Conc l u s i on In this chapter I have sought to explore the themes o f cont inui ty , change and contradict ion i n the Ir ish C i t i zensh ip Referendum. I argued that the just i f icat ions for g i ven for ho ld ing a referendum on the issue o f c i t izenship were contradictory. 2 7 2 The 2004 Act, supra note 268, s. 2. 119 Therefore the referendum was not necessary i n a pos i t iv is t ic sense. I therefore considered the purpose served. I argued it is best seen as a fo rum . i n w h i c h conceptions o f the good society competed. However , there are s imi lar i t ies as w e l l as differences i n the conceptions o f the good society. Wh i l s t those support ing the C i t i zensh ip Referendum advocated restr ict ing entit lement to Ir ish c i t izenship and those opposed to it advocated keeping the law as it was, both agreed that there should be a border. Moreove r , the mot iva t ion beh ind restr ict ing entit lement to Ir ish c i t izenship also served a dual purpose. It sought both to preserve a tradit ional concept o f Irishness and advance a v i s i on o f the Repub l i c o f Ireland as a European nat ion. The subsequent legis lat ion introduced b y the 2004 A c t was geared towards restr ict ing non-Europeans rather than s imp ly those perce ived to be non-Irish. Th i s indicates that the Repub l i c o f Ireland increas ingly sees i tse l f as a European nat ion. However , this does not imp l y that it has or w i l l abandon " I r i shness" i n favour o f "Europeanness . " Rather, the values perceived to be embod ied by Europeanness are incorporated as part o f the Ir ish nat ional identity. 120 C H A P T E R F I V E In this thesis I have sought to locate the recent changes to the regulat ion o f Ir ish C i t i zensh ip i n a g loba l and histor ica l context. I have argued that wh i l s t the changes enacted b y A.O. & D.L. v. Minister for Justice [Lobe]273 and the Irish Nationality and Citizenship Act 2004 [the 2004 Act]214 have made the regulat ion o f I r ish c i t izenship more restr ict ive, the story o f the regulat ion o f Ir ish identit ies is , on the who le , a more dynamic affair. Chapter two prov ided a theoretical f ramework for examin ing the perce ived need to restrict entitlement to Ir ish c i t izenship and introduce tighter border controls. I argued that c i t izenship is a conceptual ly uncertain term that overlaps w i t h other, equal ly ambiguous concepts such as sovereignty and nat ion. E a ch is best seen as a descript ive term for a series o f loosely related themes that fa l l and rise i n prominence over t ime. Though the concepts o f c i t izenship , sovereignty and nat ion are demonstrably uncertain, a preva i l ing be l i e f i n the tenets o f modern i ty - rat ional i ty, object iv i ty and the reject ion o f ambigui ty - demands that they can and must be neatly def ined. The dynamic nature o f the themes encompassed b y these concepts per iod i ca l l y exposes the tensions that are a lways present i n their def in i t ion . A.O.&D.L. v. Minister for Justice, [2003] 1 IR 3 [Lobe]. Irish Nationality and Citizenship Act 2004 (I.) 2004 [the 2004 Act]. 121 In chapter three I argued that the regulat ion o f I r ish c i t izenship has a lways been c lose ly l i nked both to the Irish state's assertion o f sovereignty and a sense o f Ir ish nat ional identity. B y reference to D a i l debates on earl ier leg is la t ion, I showed that concerns about the state's abi l i ty to assert sovereignty, and the perce ived disparity between the Ir ish nat ion and those entit led to c l a i m Irish c i t izensh ip , are not mere ly a recent phenomenon. The Repub l i c o f Ireland has long used its c i t izenship laws as an expression o f its sovereignty. M y examinat ion o f case l aw also reveals the over - r id ing importance ascr ibed to the r ight o f the state to assert i t se l f as sovereign b y the Ir ish courts. I suggested that the creation o f European U n i o n [ EU ] c i t izenship has to some extent chal lenged the Repub l i c o f Ireland's abi l i ty to exercise contro l over its borders. Howeve r , b y mak ing E U c i t izenship dependent upon nat ional c i t izenship , the E U s imultaneously reaff i rms the sovereignty o f its member states. Chapter four considers the contradict ions i n the jus t i f i ca t ion for ho ld ing the C i t i zensh ip Referendum. I suggest it was not str ict ly necessary i n a pos i t i v i s t i c legal sense. Instead, I argue that the C i t i zensh ip Referendum is best seen as an expression o f the dominant Ir ish nat ional identity i n the 21 s t century. I therefore explore the assumptions underpinning arguments advanced dur ing the campaign. Wh i l s t I agree w i t h others who have suggested Repub l i c o f Ireland is fo rg ing a new European identity, I argue that it is not an ind icat ion that it is n o w a postnational ist society. Rather, Ir ish nat iona l ism has adopted "Europeanness " as a nat ional trait. 122 In Lobe and the C i t i zensh ip Referendum the tools o f modern i ty - c la ims to reason, object iv i ty , fairness and the language o f rights - were used to jus t i f y a j ud i c i a l dec is ion and constitut ional amendment contrary to the pr inc ip les modern i ty purports to stand for. There are two interesting points to be drawn f r om this: F i rs t ly , the be l i e f i n modern i ty is so pervasive that even as the values it purports to stand for are neglected, that neglect is jus t i f i ed b y reference to moderni ty . Secondly , substantive equal i ty is wa i ved i n order ensure the surv iva l o f structures that preserve the myths o f modern law. I f a major i ty o f the Ir ish Supreme Court had come to a different conc lus ion i n Lobe, the outcome w o u l d have been advantageous for the fami l ies concerned. S im i l a r l y , i f those e l ig ib le to vote i n the C i t i zensh ip Re fe rendum had rejected the proposa l , ch i ldren born to non-nationals l i v i ng i n the state might have cont inued to receive the benefit o f entitlement to Ir ish c i t izenship through b i r t h . 2 7 5 Nevertheless, m y purpose is not to argue that Lobe was wrong l y decided. N o r is it to argue that a reject ion o f the C i t i zensh ip Re fe rendum w o u l d have been a v ic tory for the oppressed. Rather, it is to suggest that the contradict ions that are apparent in the reasoning o f the Supreme Court Justices i n Lobe and the just i f i ca t ion for ho ld ing the C i t i zensh ip Referendum il lustrate the extent to w h i c h modern law is based upon my th and also the f ragi l i ty o f the seemingly incontrovert ib le truths o f modern law. Although, as I have argued, a constitutional amendment was not strictly necessary in order for the Oireachtas to restrict entitlement to Irish citizenship. 123 Lobe i l lustrates that because the pr inc ip les underp inn ing the modern concept o f c i t izenship conf l ic t i n many ways , the Supreme Court cou ld not have reconc i led them. Howeve r , because the concept o f modern law is premised o n the assumpt ion that there is a rat ional answer to a p rob lem, the courts do not address that tension. It is therefore necessary for the courts to promote one element o f the d i l e m m a presented to it as over-r iding i n its importance. B y emphas iz ing either the r ights o f the state or those o f the ch i l d the court attempts to a f f i rm the premise under l y ing modern l aw that it has an answer to the p rob lem posed b y ch i l d c i t izens bo rn to non-nationals. I suggest that a major i ty o f the Supreme Court chose to emphasize the state's right to contro l non-cit izens w i th in the national territory because such a dec i s ion better af f i rms the l aw ' s concept ion o f itself; i f non-nationals can assert a r ight to reside i n the state, by virtue o f the rights o f their c i t izen ch i ldren, the l aw ' s c l a i m to authority over the nat ional territory is d imin ished. The imp l i ca t ion o f this is that when the courts are faced w i t h a d i l e m m a that challenges the c la ims o f modern i ty l aw w i l l seek to a f f i rm its ab i l i t y to resolve the p rob lem. H a d the court ru led i n favour o f the ch i l d c i t izen , it w o u l d have substantively upheld a value espoused b y modern i ty . However , it w o u l d have been at the expense o f the r ight o f the state to contro l its borders. W h e n the l aw upholds the r ight o f the state to control its borders, it continues to assert that it can strike a balance between the rights o f the c h i l d and those o f the state. A c c e p t i n g the argument that the rights o f the ch i l d outwe igh the rights o f the state concedes that the l aw does not have absolute contro l over the nat ional territory. In Lobe, the Supreme Cour t ' s preoccupat ion became defending the my th o f moderni ty rather than enforc ing the values for w h i c h modern i ty purports to stand. 124 A s imi la r paradox emerged dur ing the referendum campaign. E x p l a i n i n g w h y he be l ieved the C i t i zensh ip Referendum was necessary, the M i n i s t e r for Justice employed the tools o f moderni ty - spec i f i ca l l y c la ims to rat ional i ty and fairness. The proposal to ho ld a referendum was launched by p i tch ing it between the two equal ly i rrat ional and unfair straw-men o f the r ight-wing racist and the left-wing Utopian dreamer; the M in i s t e r stated, "I s imp ly won ' t a l l ow the proposa l to be hi-jacked by those who w i s h to further a racist agenda; but equal ly I w i l l be harsh i n m y c r i t i c i sm o f those on the other end o f the po l i t i ca l spectrum who c l a i m to detect rac i sm in any act ion, however rat ional , fair-minded or soundly based, that affects immigra t ion or c i t izenship p o l i c y . " 2 7 6 However , as I have shown, accepting the Government ' s jus t i f i ca t ion for ho ld ing the C i t i zensh ip Referendum requires the embrace o f contradict ion rather than rationality. Wh i l s t I be l ieve that wh i l e law has an important role to p lay i n the issue o f international migra t ion , its capacity to address the issues raised is l im i ted . A s we have seen, law is int imately l inked to the bordered nat ion. It is therefore not an independent adjudicator but an interested party. The capaci ty o f modern l aw to engage w i t h the matter o f international migrat ion is also restricted b y its be l i e f that it can f ind a rat ional and correct answer to the p rob lem. I suggest that we must therefore look to non-legal as w e l l as legal strategies to engage w i t h the matter o f international migrat ion. Unfortunate ly , t ime and space constraints prevent me from exp lo r ing those strategies i n the course o f this thesis. The concept ion o f law as a 125 myth is compat ib le w i t h a be l i e f that l aw is inf luenced b y less dominant discourses, a l though l aw i tse l f cannot fu l l y acknowledge the debt that it owes to those sources. Wh i l s t it is not poss ib le to overcome the problems generated b y a bordered w o r l d , m y hope is that b y acknowledg ing the l imitat ions o f modern l aw a step is taken towards engaging w i t h the issue o f international migrat ion i n a more ho l is t i c manner. Michael McDowell, "Proposed Citizenship Referendum" Sunday Independent (14 March 2004). 126 BIBLIOGRAPHY LEGISLATION: REPUBLIC OF IRELAND Aliens Act 1935 (I.) 1935 c.12. Bunreacht na hE i reann: Const i tut ion o f Ireland 1937. Const i tu t ion o f the Free State o f Ireland 1922. Constitutional (Amendment No. 26) Act 1935 (I.), 1935 c.12. Irish Nationality and Citizenship Act 1935 (I.) 1935, c. 13. Irish Nationality and Citizenship Act 1956 (I.) 1956, c.26. Irish National and Citizenship Act 2004 (I.) 2004, c.38. Refugee Act 1996 (I.) 1996, c.17. LEGISLATION: OTHER British Nationality and Status of Aliens Act 1918 ( U K ) 1918 c.38. 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" The Po l i t i cs o f Irish identity and the Interconnections between F e m i n i s m , Na t ionhood and C o l o n i a l i s m " i n Ru th R o a c h P ierson, ed., Nation, Empire and Colony: Historicizing Gender and Race ( Indian Un i ve rs i t y Press, 1998) 121. 131 Habermas, Jurgen. " M o d e r n i t y : A n Un f in i shed Pro ject " i n D a v i d Ingram & Ju l ia S i m o n Ingram ed., C r i t i ca l Theory (Para House , 1991) 158. Ha l l i gan , Brendan. "Wha t Di f ference D i d It M a k e ? " i n R o r y O ' D o n n e l l , ed., Europe: the Irish Experience (Institute o f European A f f a i r s , 2000) 18. Hederman-O 'B r i an , M i r i a m . " The W a y W e W e r e " i n R o r y O ' D o n n e l l , ed., Europe: The Irish Experience (Institute o f European A f f a i r s , 2000) 6. Ho lmes , M i c h a e l . 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" The Nature o f the Ag reement " 22 Fordham Int'I L.J. 1628. Sawyer, Caro l ine . " N o t E ve ry C h i l d Matters: the U K ' s E x p u l s i o n o f B r i t i sh C i t i z e n s " (2006) 14 I n tT J . C h i l d . Rts. 157. Schneff ler , Samual . "Concep t ions o f C o s m o p o l i t a n i s m " (1999) 11(3) Ut i l i tas 255. Tu rke l , Gera ld . " M i c h e l Foucaul t : L a w , Power , and K n o w l e d g e " (1990) 17(2) J . L. & Soc ' y 170. Wa ld ron , Jeremy. " W h a t is Cosmopo l i t an ? " (2000) 8 Journal o f Po l i t i ca l Ph i losophy 227. Wa rd , Ian. " B e y o n d Const i tu t iona l i sm: The Search for a European Po l i t i c a l Imag ina t ion" (2001) 17(1) Eur. L. J. 24. SECONDARY MATERIAL: ELECTRONIC SOURCES Be i rne , Lou i se & Jaichand, V i n o d h . " B r eak i ng D o w n Barr iers : T a c k l i n g rac i sm in Ireland at the leve l o f the State and its Inst i tut ions" (Amnes ty International, 2006) , on l ine : <http://www.amnesty.ie/user/content/view/full/5486>. Hana f in , Patr ick. " V a l o r i z i n g the V i r tua l C i t i z en : The Sacr i f i c i a l Grounds o f Postco lon ia l C i t i zensh ip i n I re land" (2003) Law, Social Justice & Global Development Journal, on l ine : <http://elj.warwick.ac.uk/global/03- l/hanafm.html>. SECONDARY MATERIAL: FORTHCOMING MANUSCRIPTS —. " C r o s s i n g Borders : Gender, C i t i zensh ip and Reproduct ive A u t o n o m y in I re land" ( forthcoming) . SECONDARY MATERIAL: NEWSPAPER ARTICLES A h e r n , Bert ie. "Concep t i on o f c i t i zensh ip " Irish Examiner (31 M a y 2004) . 135 — . " W h y a Y e s vote w i l l ensure fairness and ba lance" Irish Independent (7 June 2004). Ande r son , N i c o l a . "Non-nat ionals , ch i ldren face exc lus ion i f amendment passed, lawyers wa rn . " Irish Independent (20 M a y 2004) . — . " A m e n d m e n t cou ld spark f l ood o f actions over c i t i zensh ip " Irish Independent (21 M a y 2004) . A r n o l d , B ruce . "Re fe rendum on c i t izenship is not the answer " Irish Independent (12 M a r c h 2004) . — . " V o t i n g i n elect ions devo id o f compe l l i ng issues" Irish Independent (5 June 2004) . Bac i k , Ivana. " Race referendum cou ld face serious legal cha l lenges" Irish Independent (11 M a r c h 2004) . Bees ley , Ar thur . "C i t i z ensh ip right under study by G o v e r n m e n t " Irish Times (31 January 2004). — . " F G to support government on c i t izenship p o l l " Irish Times (24 M a r c h 2004) . — . " M c D o w e l l rejects c r i t i c i sm o f po l l by human rights b o d y " Irish Times (28 A p r i l 2004) . — . "Coa l i t i on defends proposals on c i t izenship r ights " Irish Times (22 M a y 2004) . — . "Re fe rendum booklets to be posted to a l l homes this w e e k " Irish Times (25 M a y 2004) . — . "Tao i seach defends ' l i be ra l ' c i t izen l a w " Irish Times (27 M a y 2004) . — . "Vo te r s urged to a id 'genuine m ig ran t s ' " Irish Times (4 June 2004) . B i n chy , W i l l i a m . "Re fe rendum caters to worst, not best, i n a l l o f u s " Irish Independent (26 M a y 2004) . B rady , T o m . " I l legals deported after dawn ra ids " Irish Independent (31 M a r c h 2004) . B rennock , M a r k . " C o a l i t i o n determined on c i t izenship p o l l " Irish Times (12 M a r c h 2004) . — . " M c D o w e l l changes argument on re fe rendum" Irish Times (9 A p r i l 2004) . — . "Tao i seach urges Y e s vo te " Irish Times (9 June 2004) . 136 —. " G r e e n Party urges voters to reject c i t izenship re fe rendum" Irish Times (15 A p r i l 2004) . — . "Tanaiste staunchly defends c i t izenship po l l p l a n " Irish Times (20 A p r i l 2004) . — . " B r i t i s h back c i t izenship re ferendum" Irish Times (20 A p r i l 2004) . — . ' " C i t i z e n s h i p tourists ' a t iny group, statistics ind icate " Irish Times (22 A p r i l 2004) . — . " L a b o u r says c i t izenship proposal 'deeply f l a w e d ' " Irish Times (28 M a y 2004) . B res l i n , John. " A s y l u m seekers face bone tests to check ages" Irish Examiner (14 M a y 2004) . B rowne , V incent . " P u n i s h P D s over this racist caper" Irish Times (9 June 2004) . Buck l e y , Dan . " Immigrant pastor stands i n Y o u g h a l " Irish Examiner (4 June 2004) . C a h i l l , A n n . " E U battles to f ind c o m m o n immigra t ion p o l i c y " Irish Examiner (7 June 2004) . Cass idy , Edd ie . " C i t i zensh ip vote ' w i l l create racia l d i v i s i o n ' " Irish Examiner (12 M a r c h 2004). Coul ter , Ca ro l . " Tempora ry permits should be ' except ion ' for m ig ran ts " Irish Times (31 M a r c h 2004) . — . " U K case may have bear ing on c i t izenship re fe rendum" Irish Times (3 A p r i l 2004) . — . " A m e n d m e n t w o u l d end the automatic r ight to Irish c i t i zensh ip " Irish Times (9 A p r i l 2004) . — . " C i v i l rights group voices concern at c i t izenship re fe rendum" Irish Times (14 M a y 2004) . — . " Eu ropean f ind ing bolsters case for referendum made by Gove rnmen t " Irish Times (19 M a y 2004). — . " L a w y e r s united against re fe rendum" Irish Times (20 M a y 2004) . — . " N u m b e r o f 'don ' t k n o w s ' reflects a compl icated i ssue " Irish Times (24 M a y 2004). 137 —. "Po l i t i c i ans asked to be 'moderate ' i n referendum debate" Irish Times (26 M a y 2004). —. " C o n f u s i o n over what Y e s or N o vote means " Irish Times (2 June 2004) . — . " A m e n d m e n t w i l l guard c i t izenship f rom abuse, Government argues" Irish Times (10 June 2004) . — . "Re fe rendum: a l l y o u need to k n o w . " Irish Times (10 June 2004) . — . "U rgen t need for immigra t ion p o l i c y " Irish Times (14 June 2004) . — . " M c D o w e l l plans range o f moves on i m m i g r a t i o n " Irish Times (14 June 2004) . C u l l e n , Pau l . "Gove rnment accused o f m i s i n fo rma t i on " Irish Times (24 M a y 2004) . — . "C i t i z ensh ip loophole is damaging credib i l i ty o f entire a sy lum sys t em" Irish Times (3 June 2004). Cunn ingham, Gra inne & Brady , T o m . "Ch inese ru l ing ' just i f ies dec i s ion ' on p o l l " Irish Independent (19 M a y 2004) Cunn ingham, Gra inne & Bruce , He len . " A l l i a n c e o f voices unite i n ca l l for N o vo te " Irish Independent (9 June 2004). Donaghy , Ka thy . " N e w unit set up to deal w i t h ' I r ish baby ' c l a i m s " Irish Independent (18 M a r c h 2004) . Donne l l y , Kather ine. " R a c i s m in schools and col leges 'needs to be t a c k l e d ' " Irish Independent (12 M a r c h 2004) . D o w l i n g , B r i an . "Re fe rendum result is 'not a foregone c o n c l u s i o n ' " Irish Independent 21 M a y 2004) . — . "Greens l ist 10 reasons to vote N o in re ferendum" Irish Independent (22 M a y 2004). —. "Tanaiste rejects racist charge over p o l l " Irish Independent (22 M a y 2004) . — . "Greens urge the undec ided to vote N o in 'unfa i r , unnecessary ' p o l l " Irish Independent (8 June 2004). D u n d o n , M a r y . " Fa i lu re to reveal passport f igures at tacked" Irish Examiner (10 M a y 2004). F in lay , Peter. " Equa l i t y should be cornerstone o f l aw on c i t i zensh ip " Irish Times (4 June 2004) . 138 Gurdg iev , Constant ine T., " The referendum for and against" Irish Times (8 June 2004). Hana f in , M a r y . " W h y we have to close c i t izenship l oopho l e " Irish Independent (19 M a y 2004) . Hayden , A n n e . " Immigrant r ip-off c la ims ' i n s u l t i n g ' " Irish Examiner (21 M a y 2004) . Hef fernan, Breda. " C o a l i t i o n accused o f running 'm i s in fo rmat ion c a m p a i g n ' " Irish Independent (24 M a y 2004) . Hennessy, M a r k . "Date set for c i t izenship re ferendum" Irish Times (7 A p r i l 2004) . — . "R igh t s body ' s v iews not sought" Irish Times (14 A p r i l 2004) . —. " M o r r i s o n terms po l l on c i t izenship 'dangerous ' " Irish Times (14 A p r i l 2004) . — . " C o u r t w i l l grant w o r k rights to i l legals i f l aw is not altered - P D s " Irish Times (26 M a y 2004). Hogan , Eugene. " H a r k i n accuses F F o f engaging i n dirty tr icks campa ign against he r " Irish Independent (27 M a y 2004) . Hogan , Lou ise . "Greens push for debate on c i t izenship vo te " Irish Examiner (27 M a y 2004). H o l l a n d , K i t t y . "C i t i z ensh ip referendum fue l l ing rac ism, say doc to rs " Irish Times (1 June 2004) . Humphreys , Joe. " T i m i n g o f referendum c r i t i c i z ed " Irish Times (22 M a r c h 2004) . L a l l y , Connor . "Seventy fa i led asy lum seekers for deportat ion" Irish Times (31 M a r c h 2004) . Len ihan , B r i an . "C i t i z ensh ip change c o m m o n sense" Irish Times (28 M a y 2004) Lucey , A n n e . "Debate canceled due to reluctance o f Ye s speakers" Irish Independent (1 June 2004) . M a c E o c h a i d h , C o l m . " C i t i z e n referendum is unnecessary" Irish Times (20 A p r i l 2004) . M a r t i n , M i c h e a l & B i n chy , W i l l i a m . " C i t i z e n I re land" Irish Examiner (8 June 2004). 139 M c C a r t h a i g h , Sean . "C i t izensh ip referendum to be he ld despite fears o f r a c i s m " Irish Examiner (22 M a r c h 2004) . — . " Eu ropean court dec is ion cou ld affect c i t izenship vo te " Irish Examiner (18 M a y 2004) . — . "Gove rnment accused o f 'm i s l ead ing ' voters " Irish Examiner (24 M a y 2004) . — . " T a k i n g a stand for the l oca l i t y " Irish Examiner (27 M a y 2004) . — . "Pu t t ing Ir ish people f i r s t " Irish Examiner (27 M a y 2004). — . " N o basis to ' c i t izensh ip tou r i sm ' , says s tudy" Irish Examiner (28 M a y 2004) . M c D o n a l d , B r i an . " Peop le being rai l roaded into referendum, says Rabb i t t e " Irish Independent (15 M a y 2004) . M c D o n a l d , B r i a n & M o l o n y , Senan. " M i n i s t e r attacks ' N o ' vote i n c i t i zen debate" Irish Independent (27 M a y 2004). M c D o w e l l , M i c h a e l . " P roposed C i t i zensh ip Re fe rendum" Sunday Independent (14 M a r c h 2004). — . " W e must be able to manage migrat ion i n a sensible f a sh i on " Irish Times (24 A p r i l 2004) . — . " Y e s " Irish Examiner (7 June 2004). M c E n r o e , Juno. "Doc to r denies M c D o w e l l tour ism bir th c l a i m s " Irish Examiner (28 M a y 2004) . M c G a r r y , Patsy. "Me thod i s t s say c i t izenship vote is ' i l l - j u d g e d ' " Irish Times (26 M a y 2004) . — . " B i s h o p s warn on rights issue i n c i t izenship p o l l " Irish Times (5 June 2004). — . " Jesuit centre advises a ' N o ' vo t e " Irish Times (8 June 2004) . — . " F o r m e r moderator says referendum proposal w o u l d exc lude most i n need " Irish Times (10 June 2004).\ M c G e e , Harry . " V o t e r issue study led to referendum c a l l " Irish Examiner (24 M a r c h 2004) . — . " F F and F G face loca l e lect ion losses, po l l shows " Ir ish Exam ine r (17 M a y 2004) . 140 —. " W a r o f words on c i t izenship referendum heats u p " Irish Examiner (27 M a y 2004) . M c G i n n , Dan . " R u s h e d referendum campaign underrates vo ters " Irish Examiner (22 M a y 2004) . M c K e n n a , G e n e . " F F rounds on ' rac ist ' attack i n po l l over b i r thr ight " Irish Independent (24 M a y 2004) —. " P o l l shows comfortable major i ty for Y e s vote i n re fe rendum" Irish Independent (24 M a y 2004). M c K e n n a , Gene & O ' C o n n o r , A l i s o n . " L a w change p lanned to c lose 'baby tourist ' t r a i l " Irish Independent (11 M a r c h 2004). — . "Turnout up as double po l l stirs voters " Irish Independent (12 June 2004) . M o l o n y , Senan. " G r e e n party attacks the ' oppor tun ism ' o f coa l i t ion ' s c i t i zen vo te " Irish Independent (17 M a y 2004). M o l o n e y , Senan & M c K e n n a , Gene. " M o u n t i n g pressure on p o l l p r o p o s a l " Irish Independent (26 M a y 2004) —. " W i d e and evenly spread Y e s for birthright change" Ir ish Independent (14 June 2004). Mo rahan , J im . " M c D o w e l l hits back at mount ing oppos i t ion to c i t izensh ip vo te " Irish Examiner (20 M a y 2004) . M o r r i s o n , B ruce A . " The referendum: for and against" Irish Times (8 June 2004) . M u l l e n , Ronan . " C o m p a s s i o n plus control w o u l d obviate this dangerous re fe rendum" Irish Examiner (26 M a y 2004) . N e w m a n , Chr is t ine & C u l l e n , Pau l . " M o t i v e for referendum is ques t ioned" Ir ish T imes (7 June 2004). N o l a n , N i a m h . " Equa l i t y laws 'must be changed ' " Irish Examiner (10 June 2004). N o l a n , N i a m h & C a h i l l , A n n e . "Res idency ru l ing backs referendum move , says M c D o w e l l " Irish Examiner (19 M a y 2004). O ' B r i e n , C a r l . "C i t i z ensh ip referendum confus ing voters " Irish Times (29 M a y 2004) . 141 O ' B r i e n , Pau l . " U n u s u a l , uneasy al l iances make up. both sides o f referendum campa ign " Irish Examiner (26 M a y 2004). O ' C o n n e l l , D o n n c h a & Smyth , C iara . "The case for urgent const i tut ional re form has s imp ly not been made " Irish Times (1 A p r i l 2004) . O ' C o n n o r , A l i s o n . "State is ' p l ay ing race card ' over p o l l s " Irish Independent (12 M a r c h 2004). — . " A s y l u m seekers to ld they can't f o rm F F c u m a n n " Irish Independent (27 M a y 2004) . — . "Re fe rendum on c i t izenship courageous, says M c D o w e l l " Irish Independent (10 June 2004) O ' C o n n o r , N i a l l . " M a r t i n says opponents distort ing the fac ts " Irish Times (1 June 2004). O 'Doher t y , Caro l ine . "I am afraid they w i l l take m y b a b y " Ir ish Exam ine r (26 M a y 2004) . — . "Resound ing Y e s for c i t izenship change" Irish Examiner (14 June 2004) . O ' F a r r e l l , M i c h a e l . " Immigra t ion B i l l passes i n D a i l am id Oppos i t i on 'rubber- stamping ' c l a i m s " Irish Examiner (6 February 2004) . — . " Immigra t ion b i l l to be passed despite protests" Irish Examiner (5 February 2004) . — . " C i t i z e n s h i p referendum ' i n breach o f A g r e e m e n t ' " Irish Examiner (15 M a y 2004) . — . " C i t i z e n s h i p vote w i l l damage G o o d F r iday Agreement,says co-author" Irish Examiner (20 M a y 2004) . — . "Gove rnment is p l ay ing catch-up in c i t izenship c a m p a i g n " Irish Examiner (21 M a y 2004) . — . "Gove rnment i n danger o f los ing c i t izenship vo te " Irish Examiner (21 M a y 2004) . — . " C o u g h l a n hits out at referendum race c l a i m s " Irish Examiner (24 M a y 2004) . — . " A m e n d m e n t a reasonable response, says Ha rney " Irish Examiner (26 M a y 2004) . — . " Y e s camp gets a boost f rom Leinster p o l l " Irish Examiner (28 M a y 2004) . 142 — . " Y e s vote backed by clear D u b l i n major i t y " Irish Examiner (2 June 2004) . O ' H a l l o r a n , Ma r i e . "C i t i z ensh ip referendum date not set, says H a r n e y " Irish Times (24 M a r c h 2004) . — . " C i t i z e n s h i p system 'be ing abused ' " Irish Times (31 M a r c h 2004) . O ' K e e f f e , Co rmac . " C a l l for ch i l d asy lum seeker cont ro l s " Irish Examiner (14 M a y 2004). —. " 2 0 fami l ies o f Irish-born ch i ldren deported" Irish Examiner (22 M a y 2004) . — . " Issue beh ind the c i t izenship vote were put into focus last w e e k " Irish Examiner (25 M a y 2004) . — . " A s y l u m seekers ' g i v i ng their ch i ldren a better l i f e ' " Irish Examiner (1 June 2004). — . "Two-in-f ive voters 'do not k n o w issue o f r e f e r endum ' " Irish Examiner (2 June 2004). — . " C o u n c i l query maternity doctors ' role i n debate" Irish Examiner (3 June 2004) — . " F F a ims stop Ireland being magnet for migrants " Irish Examiner (4 June 2004) . — . " A s y l u m appl icat ions i n first quarter down 5 5 % on last year " Irish Examiner (5 June 2004) . — . " S ign i f i can t increase i n numbers deported" Irish Examiner (8 June 2004) . — . " F i l i p i n o nurses ca l l for referendum N o vo te " Irish Examiner (9 June 2004) . — . " Emergency i f c i t izenship laws not changed, warns M c D o w e l l " Irish Examiner (10 June 2004) . — . "Gove rnment urged to rev iew immigra t ion p o l i c y " Irish Examiner (14 June 2004). — . "R igh t s body to study l eg i s l a t ion " Irish Examiner (14 June 2004) . O ' M a h o n y , Peter. "Wan ted : a reasoned looked at c i t izenship i ssue " Irish Times (21 M a y 2004) . O ' Regan , E i l i s h . "Hosp i t a l sees surge i n immigrant b i r ths " Irish Independent (19 M a y 2004) . 143 "State turning into apartheid regime, ' N o ' doctors ma in t a i n " Irish Independent (1 June 2004) . O ' T o o l e , F intan. "Rac i s t ? N o this po l l is far wo r se " Irish Times (27 A p r i l 2004) . Parker, Chr is ty . "C i t i z ensh ip po l l mora l l y wrong , says candidate" Irish Examiner (12 M a r c h 2004) . Q u i n n , D a v i d . " B i shops urge act ion on ' c i t i zen by baby ' app l i cants " Irish Independent (12 M a r c h 2004) . — . " C h a m p i o n o f U S visas ' shocked ' at c i t izenship proposa ls " Irish Independent (20 M a y 2004) . — . " C h i l d r e n ' s rights 'at stake' i n State" Irish Independent (26 M a y 2004) . — . "Repor t reveals 60pc drop i n pregnant w o m e n seeking a s y l u m " Irish Independent (28 M a y 2004) . — . " Jesuits ca l l for ' N o ' vote i n c i t izen re fe rendum" Irish Independent (7 June 2004). Rajsekar, P r iya . " H u r r i e d referendum has put negative focus on sk in c o l o u r " Irish Times (7 June 2004). — . " C a n I look y o u conf ident ly i n the eye aga in? " Irish Times (16 June 2004) . R e i d , L i a m . "Opponents must face reality o f ' c i t izensh ip shopp ing ' - M i n i s t e r " Irish Times (31 M a y 2004). R i n g , E ve l yn . "R igh t s al l iance urges voters to th ink o f ch i ldren and vote against amendment " Irish Examiner (26 M a y 2004) . Shanahan, Catherine. C i t i zensh ip tour ism 'not on ly i n D u b l i n ' " Irish Examiner (1 June 2004) . Sheahan, F ionnan . " G r e e n card p lan for sk i l l ed immig ran t s " Irish Examiner (4 M a y 2004) — . "C i t i z ensh ip vote makes immigra t ion elect ion i ssue" Irish Examiner (11 M a r c h 2004) . — . "Gove rnment p lay ing race card, c la ims oppos i t i on " Irish Examiner (12 M a r c h 2004) . — . " F G backs Government on c i t izenship re ferendum" Irish Examiner (12 M a y 2004). 144 —. "Revea l ed : p roo f o f c i t izenship t o u r i s m " Irish Examiner (27 M a y 2004) . — . "One-stop c i t izenship shop " Irish Examiner (27 M a y 2004) . — . " L i t t l e Anastas ia cou ld have been Irish c i t i z e n " Irish Examiner (27 M a y 2004) . — . " C i t i z e n s h i p tourists 'h i t maternity se rv i ces ' " Irish Examiner (28 M a y 2004) . — . " I r i sh patients felt i n a m ino r i t y " Irish Examiner (28 M a y 2004) . — . " W o m e n 'arr ive f rom airport i n l abou r ' " Irish Examiner (31 M a y 2004) . S igg ins , Lo rna . "Re fe rendum a ' ra i l road ing ' a f fa i r " Irish Times (15 M a y 2004) . Sweeney, Conor . " 'Wave o f migra t ion ' fears not jus t i f i ed , says P r o d i " Irish Independent ( 18 t h M a r c h 2004) . Ty r re l l , F iona . " L a b o u r spokesman for just ice says people ' w i l l l i ve to regret' Y e s vo te " Irish Times (14 June 2004). Wa lshe , John. "Numbe r s i n wo rk at record level as fore ign labour r i ses " Irish Independent (7 June 2004). Waters, John. "C i t i zensh ip stroke an act o f f o l l y " Irish Times (19 A p r i l 2004) . — . " M i s u s i n g concept o f c i t i zensh ip " Irish Times (7 June 2004) . SECONDARY MATERIAL: NEWSPAPER EDITORIALS " Immigrant abuse: Protect ion o f ch i ldren paramount , " Ed i to r i a l , Irish Examiner (14 M a y 2004) . "C i t i z ensh ip referendum jus t i f i ed , " Ed i to r i a l , Irish Examiner (27 M a y 2004) . " W e need t ime to get this r ight , " Ed i to r i a l , Irish Examiner (28 M a y 2004) . " F G backs coa l i t ion over c i t izenship p o l l , " Ed i to r i a l , Irish Independent (12 M a y 2004) . "Re fe rendum dr ive to get underway , " Ed i to r i a l , Irish Independent (18 M a y 2004) . " C i t i z e n C h e n , " Ed i to r i a l , Irish Independent (19 M a y 2004) . " It 's r ight to vote Y e s , " Ed i to r i a l , Irish Independent (11 June 2004) . 145 ' C i t i zensh ip changes not rac is t " Ed i to r i a l , Irish Times (8 A p r i l 2004) . 'C i t i zensh ip referendum sparks furore " Ed i to r i a l , Irish Times (8 A p r i l 2004) . 'C i t i zensh ip vote , " Ed i to r i a l , Irish Times (9 A p r i l 2004). ' O n be ing Ir ish today , " Ed i to r i a l , Irish Times (17 A p r i l 2004) . 'Case not proven on re ferendum," Ir ish T imes (24 M a y 2004) .

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