Irish Political Commitments

A couple of years ago, Josh Newcomer and I argued that political commitments have developed to a point where they should receive constitutional scrutiny.  In other words, we do not accept that because political commitments lack international legal force they should have absolute immunity from domestic legal processes.  Indeed, to the extent that political commitments may perform the same (or at least similar) functions as treaties, it seems strange that negotiators can avoid any domestic review of a deal by a state’s legislature by simply indicating an intention that, whatever the text says, it is not intended to be legally binding.  On the contrary, we argued that the increasing utility of political commitments (not to mention their ability to contain highly normative, precise commitments that may establish significant institutional structures or precommitments to later legal obligations) suggests  that these instruments are worthy of domestic attention.   

Our focus was solely on the United States.  But Ireland may be the first to offer a serious inquiry into the issue as debates now rage over its political commitments with the IMF to bail it out of the latest EU debt crisis.  Darren O’Donovan had a great piece on the topic in last Thursday’s Irish Times:

The IMF memorandum is a declaration, not a treaty. It probably does not invoke constitutional need for Dáil approval

QUESTIONS HAVE been raised regarding the applicability of Article 29.5.2 of the Constitution to the emerging agreement between Ireland and the International Monetary Fund (IMF). The article 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”.

To the non-international lawyer, this looks to require a Dáil vote on the memorandum of understanding which was published in draft form yesterday evening.

There is, however, strong evidence to suggest that IMF standby arrangements consisting of letters of intent and memoranda of understanding do not constitute binding international agreements under the provision. The Supreme Court in Boland v An Taoiseach held in reference to the Sunningdale Agreement that a political declaration or assurance falls outside it, while binding international treaties require a Dáil vote.

We measure what is an international treaty by reference to, among other things, the intention of the parties and the actual terms of the agreement.

The IMF has traditionally been quite clear that it does not regard memoranda of understanding as binding international agreements, and has required its staff to avoid binding or contractual language in their drafting. Furthermore, memoranda are not lodged with the United Nations as formal treaties are.

The IMF is, in essence, relying on its market influence and reality of our economic dependency to enforce its conditions. If we breach conditions it will not be legal power that is mobilised, but the fund may suspend payments, with severe consequences for our bond yields.

This position has important consequences.

If Ireland fails to meet a memorandum target, it is not in violation of international law.

More adversely, however, the non-legal status of memoranda means that their contents cannot be interpreted in the light of international law rules and, should we end up in dispute with the IMF over the meaning of the terms, our recourse to international courts and arbitration is limited. Although the fund claims the agreements are general and macroeconomic, what can emerge is an unequal debate around what constitutes sufficient compliance with the terms of the standby arrangement to justify disbursing the next tranche of the funds.

I’m no expert on Irish treaty law, so I can’t really speak to the issue of whether IMF MOUs qualify as international agreements for purposes of domestic approval. I’m inclined, however, to agree with O’Donovan that they’ll likely fall outside of existing constitutional constraints. But that makes my point all the more starkly — that states and international institutions have now adopted significant and serious forms of commitment that were not contemplated by, nor addressed in, domestic constitutional orders focused on treaty commitments. To the extent that the IMF and states themselves seek to use their political deals as an end run around democratic review by legislatures, it raises the question of whether those domestic systems should adjust to ensure at least some review occurs. Given the seriousness of the EU debt crisis, I wonder if it may not be an appropriate catalyst for such change?