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If the Irish government ratifies WHO’s Pandemic Treaty without holding a referendum, all hell will break loose

If the Irish government ratifies WHO’s Pandemic Treaty without holding a referendum, all hell will break loose

In 1987, the Irish Supreme Court ruled that the Irish government, as guardians of the Irish Constitution, could not enter into certain international agreements without a majority approval of Irish citizens through a referendum.  This ruling is famously known as the “Crotty judgement.”

The World Health Organisation’s (“WHO’s”) proposed amendments to the International Health Regulations and Pandemic Treaty were the subject of presentations made to the Irish parliament on Tuesday.  One of those who spoke was Irish author and presenter Eddie Hobbs.

“Under Crotty, the Irish people are entitled – as a right, it’s part of our estate – to a referendum on the WHO [agreements],” Hobbs said.  “If the government say ‘no we’re going to ratify it at cabinet’ – well then, all hell will break loose.”

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Raymond Crotty, who died in 1994, is probably best known to the general public for the “Crotty judgement” of 1987, which may yet prove to be the country’s strongest defence against unwarranted pressures from the larger EU member states. This Irish Supreme Court ruling forced the government to accept that significant changes to EU treaties had to be ratified by referendum in Ireland.

Treaties do not take effect in Ireland unless they are made part of law through legislation.  Treaties may place obligations on the State but they are not generally specifically enforceable by citizens until enacted domestically.

Read more: International Relations, Irish Legal Blog

The case of Crotty v. An Taoiseach [1987] IR 713 – the “Crotty judgement” – was a landmark judgment both because of its impact on the doctrine surrounding popular referenda in Ireland and because of the impact that it has had on the process of European integration.

The Irish Supreme Court famously held the Single European Act to be outside of the competence of the State to ratify as it involved a major expansion of competencies of the then-European Communities.  The Court held that the Government was subject to the Irish Constitution, even concerning international foreign relations.

The question Crotty posed to the Court was whether the Single European Act, a treaty agreed upon by the then twelve Member States of the then European Economic Community in 1986, could be ratified by the Parliament or whether it needed to be put before the Irish people in a referendum.

In a majority of 3:2, the Court held that Title III of the Single European Act, which involved some co-operation in foreign relations, should be laid before the people for their approval. It established that the people will sometimes have a constitutional right to vote on international treaties that cause changes to the national constitutional arrangements.

In the ensuing referendum, the Irish people voted in favour of the Single European Act.

In subsequent referendums, they accepted the Maastricht Treaty and the Treaty of Amsterdam that followed. However, they rejected the Treaty of Nice in 2001 and the Treaty of Lisbon in 2008. As a result, those treaties could not be ratified by the Irish government and, therefore could not come into force across the European Union. Both times, the Irish referendum process became a subject of European debate as diplomatic negotiations were conducted and eventually, both treaties were ratified following successful second referendums.

Read more: The Crotty case and EU Treaty Referendums in Ireland, International Association of Constitutional Law (IACL), 7 November 2023

It’s not only EU treaties that require referenda.  United Nations (“UN”) international agreements have also been subject to the authority of the Irish people.  A referendum specifically permitted ratification by the Dáil Éireann (Irish Parliament) of the statute of the International Criminal Court, which was established in 2002 pursuant to the Rome Statute adopted by the UN General Assembly in 1998.

WHO is the UN agency responsible for international public health and as such, its Pandemic Treaty represents another international agreement or treaty being proposed by the UN; and it is subject to the approval of the Irish people before it can be ratified by parliament.

In April 2022, Member of the Irish Parliament Mattie McGrath submitted a written question to the Irish Minister of Health about “his plans to hold a referendum prior to signing up to the World Health Organisation-led process to negotiate a binding legal instrument on pandemic preparedness and response; and if he will notify the WHO that Ireland cannot agree to a legally binding treaty without holding a referendum.”

The Minister for Health, Stephen Donnelly, responded:

Below is a short video report by Ivor Cummins from the presentations at the Irish parliament on WHO’s Pandemic Treaty held earlier this week, on 6 February.  It includes an explanation of the Crotty judgement by Irish author and presenter Eddie Hobbs.

Beginning at timestamp 4:45, Hobbs said that in the Crotty judgement, the judge was “very clear, he said the Cabinet, the Government, cannot pass powers that are unfettered by the Constitution. They cannot fetter them, they cannot dispose of them – that it is not within their gift to do so.”

The ruling clearly demonstrated that the government acts as the guardian of the Constitution, Hobbs explained. “[The government] are not the disposers of the Constitution and that was really crystal clear as to why there is now a Supreme Court ruling which says that Ireland cannot adopt an external treaty which diminishes or sovereignty without running foul of the Supreme Court [Crotty] ruling.”

“Under Crotty, the Irish people are entitled – as a right, it’s part of our estate – to a referendum on the WHO [agreement] … If the government say ‘no we’re going to ratify it at cabinet’ – well then, all hell will break loose because that will mean the government are forced into the high court and forced to defend themselves legally against taking away the Irish right under Crotty,” he said.

“If you take something off the Irish … [If you] take something they already have, which is a right under Crotty, I think all hell will break loose.”

The full video, including Eddie Hobbs’ explanation of the Crotty judgement and why it puts Ireland up front and centre in the pushback against WHO’s power grab, will hopefully be made available by the organisers in due course.

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