“The executive power of the State in or in connection with its external relations shall be exercised by or on the authority of the Government.”
Article 29.4.1° of the Constitution.
The conclusion of an international agreement is an exercise of the executive power of the State in connection with its external relations and is therefore concluded by or on the authority of the Government.
The authority to conclude international agreements is exercised on behalf of the Irish Government by the Minister for Foreign Affairs and Trade (with one exception, namely International Labour Organisation Conventions which are the responsibility of the Minister for Jobs, Enterprise and Innovation).
In practice, where an international agreement is concerned with a particular policy area, the Minister with primary responsibility for that area will undertake the relevant negotiations in liaison with the Minister for Foreign Affairs and Trade. For example, negotiations for an international agreement concerning co-operation between police forces may be undertaken by the Minister for Justice and Equality in liaison with the Minister for Foreign Affairs and Trade. At the conclusion of negotiations the Minister for Foreign Affairs and Trade will seek the express authority of the Government for all necessary treaty actions by submission of a memorandum to the Government on behalf of the Minister concerned (in the example above, the Minister for Justice, and Equality).
- Consent to be Bound
- Full Powers
- Meeting our Obligations
- Constitutional Requirements
- Incorporation into Irish Law
Consent to be Bound
The State will consent to be bound by an international agreement by one of three means:
- ratification, acceptance, approval or notification of the completion of procedures required for its entry into force (where the agreement has first been signed on behalf of the State); or
- signature (but only where this is done without reservation as to any of the above actions); or
- accession (in the case of a multilateral agreement that has not first been signed on its behalf).
Upon consenting to be bound by a treaty the State becomes a “contracting state”, whether or not that treaty has entered into force. It becomes a “party” to the treaty only once the treaty enters into force.
In the case of a multilateral treaty, consent to be bound will usually be expressed by transmitting the required legal instrument to the Government or other authority designated by the treaty as the depository. For a bilateral agreement these instruments are usually exchanged between the parties. Instruments of Ratification and Accession will normally be executed under the seal and signature of the Minister for Foreign Affairs and Trade.
Signature, ratification and accession are treaty actions performed on the authority of the Government. In international law, Heads of State and Government and Ministers for Foreign Affairs enjoy, by virtue of the offices they hold, full powers to perform these actions. For any other person to perform a treaty action they must be expressly authorised to do so by an Instrument of Full Powers executed under the seal and signature of one of these office holders.
In Irish practice an Instrument of Full Powers authorising signature of an international agreement is executed under the seal and signature of the Minister for Foreign Affairs and Trade (or of the Taoiseach if the Minister is unavailable). An Instrument of Full Powers is executed under the seal and signature of the President only for the Treaties establishing the European Community and the European Union and treaties amending these Treaties.
Meeting our Obligations
In Irish treaty practice, the State must be in a position to meet the obligations it assumes under the terms of an international agreement from the moment it enters into force. Often it will not be possible for the State to meet these obligations without first taking steps required by domestic law, or otherwise, enabling it to do so. In these circumstances the agreement will usually be signed on behalf of the State subject to ratification. The steps required by law, or otherwise required, may include the following:
- enactment of legislation (for instance the agreement may require that certain acts where committed in Ireland, on an Irish ship or by an Irish national be made a criminal offence in Irish law);
- the making of a statutory instrument (such as to confer legal personality in Irish law on an international organisation of which the State will become a member upon ratification, pursuant to the Diplomatic Relations and Immunities Acts);
- approval of the terms of the agreement by Dáil Éireann where they involve a charge on public funds (as required by Article 29.5.2° of the Constitution, which provides that the “State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann”); and
- administrative arrangements (for instance it may be necessary to recruit or reorganise staff in order to carry out administrative processes required under the terms of the agreement).
As entry into an international agreement is a significant measure that impacts upon Ireland’s legal obligations and its relations with other states, the Constitution sets down a number of substantial and procedural requirements that must be strictly followed whenever an international agreement is being concluded.
The implications of article 29.4.1° of the Constitution of Ireland were previously noted – i.e., that as the conclusion of an international agreement is an exercise of the executive power of the State in connection with its external relations, any such agreement is concluded by or on the authority of the Government.
Further, article 29.5.1° of the Constitution provides that every international agreement to which the State becomes a party shall be laid before Dáil Éireann. Although agreements of a technical and administrative character are excluded from this requirement by article 29.5.3°, it is our practice to lay such agreements also.
Under article 29.5.2 of the Constitution, the terms of all international agreements which impose a charge on public funds and are not of a technical and administrative character must be approved by Dáil Éireann prior to the Government agreeing to the State being bound by it.
In Irish treaty practice, therefore,
(a) if the terms of an international agreement would impose a charge on public funds, approval of Dáil Éireann is first sought in accordance with article 29.5.2° of the Constitution
(b) thereafter (or as a first step in the case of an international agreement which would not impose a charge upon public funds), a Government decision authorising signature, ratification or accession is sought in accordance with article 29.4.1° of the Constitution
(c) a further Government decision authorising ratification is required in the case of international agreement approved subject to ratification
(d) when the State has consented to be bound by an international agreement and it has entered into force, it is laid before Dáil Éireann in accordance with Article 29.5.1° of the Constitution. It is the Department’s policy to ensure that all international agreements entered in
(e) Following the laying of international agreements before Dáil Éireann notification of their entry into force for the State is published in Iris Oifigiúil and they are published in the Irish Treaty Series.
(f) The Minister for Foreign Affairs and Trade will also arrange for the agreement to be registered with the United Nations pursuant to Article 102 of the Charter of the United Nations.
Incorporation into Irish Law
Like other common law legal systems, the Irish legal system is a dualist one. This means that the terms of an international agreement do not become part of the domestic law of the State unless expressly incorporated by or under an Act of the Oireachtas. This principle is contained in article 29.6 of the Constitution.
By contrast, some other states have monist legal systems in which a treaty may enjoy supremacy over conflicting domestic law.
It is rarely necessary for the terms of an international agreement themselves to be incorporated into domestic law in order for the State to consent to be bound by that agreement or to fulfil the obligations it assumes under it.