If all of those currently involved in the talks process ever manage to engage fully in the dialogue necessary to move things forward they will quickly come up against a major stumbling block in the shape of the constitutional question. So far, the two governments seem to believe that the concept of "balance" will provide an effective way of dealing with this complex issue.

To begin with, the Downing Street Declaration said there had to be a "balanced constitutional accommodation". Then the Joint Framework Document stated that agreement required "a balanced accommodation of the differing views of the two main traditions on the constitutional issues", and last August the Northern Secretary, Dr Mowlam, said she "hoped a constitutional balanced settlement would emerge". Finally, it's worth noting that the first three words of the Propositions on Heads of Agreement Document are "balanced constitutional change".

In my view this approach is fatally flawed because the two governments are in pursuit of something that in the main already exists. In formulating the words of Articles 2 and 3, Eamon de Valera, the wily mathematician, created an algebraic parallel to the British claim to sovereignty in Ireland expressed by the Act of Union 1800, and the Government of Ireland Act 1920. Until 1937, when the Constitution was adopted by the Irish people, the British claim stood unchallenged in all its unambiguous and atavistic glory.

For the record, Article 1 of the Act of Union states "that the said kingdoms of Great Britain and Ireland shall, upon the first day of January which shall be in the year of our Lord 1801, and for ever after, be united into one kingdom", and even though, from any perspective, this claim must appear both anachronistic and ridiculous, nevertheless, even now after almost two centuries, it still stands unrepealed and unamended.

Another plank in Britain's claim to sovereignty in Ireland that de Valera sought to balance with Articles 2 and 3 is the Government of Ireland Act 1920, the Act that partitioned Ireland. Section 75 of that Act states: "The supreme authority of the parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Ireland and every part thereof."

Such wording and the wording of Article 1 of the Act of Union must strike any objective observer as both unequivocal and imperious in tone; yet, on the other hand, the wording of Articles 2 and 3 hardly represents an aggressive or arrogant claim by the Irish people. Article 2 states that "the national territory consists of the whole island of Ireland and the territorial seas". These words represent a definition of the Irish nation. Articles 2 and 3 are not about territory but about people and exemplify the historical, cultural and political right of all the people to be regarded as equal citizens of the Irish Republic and children of the Irish nation.

Article 3 specifically refers to the de facto situation and in effect defines the present 26-county State.

"Pending the reunification of the national territory", laws passed by the Dail shall apply only to the 26 counties. It is clear to see that a distinction has been drawn, quite deliberately, between the nation and the state in the Irish Constitution. Under the provisions of Article 3 the limited jurisdiction of a 26-county state is reluctantly accepted; however, on the other hand, Article 2 quite clearly rejects the notion of a 26-county nation.

What this means is that even though partition frustrates the participation of Northern nationalists in the Irish democratic process, Article 2 still guarantees their right to be part of the historic Irish nation.

It is also worth noting that the Irish claim has never been more than a de jure one, and it has never been aggressively pursued by an Irish government (in fact, Article 29.2 of the Constitution insists on Ireland adhering to the pacific settlement of international disputes), whereas the British claim is an undemocratic de facto one imposed by force of arms for almost 200 years.

If de Valera succeeded in achieving a constitutional balance in 1937, that equilibrium was fundamentally disturbed in 1973 when the Northern Ireland Constitution Act was passed.

Section 2 of this Act declares "that Northern Ireland remains part of Her Majesty's dominions and of the United Kingdom and it is hereby affirmed that in no event will Northern Ireland or any part of it cease to be part of Her Majesty's dominions and of the United Kingdom without the consent of the majority of the people in Northern Ireland". That legislation put in place for the first time the concept of unilateral consent, or, to put it crudely, "the unionist veto".

The late Cardinal Tomas O Fiaich said "the present policy of the British government - that there will be no change in the status of Northern Ireland while the majority want British rule to remain - is no policy at all. It means you do nothing and it means that loyalists in the North are given no encouragement to make any move of any kind. It is an encouragement to sit tight." So far I have seen few suggestions for amendments to the British claim on the Six Counties. But, ironically, the Government is, apparently, considering inserting a reference to "consent" in Article 3 in return for an amendment to Section 75 of the Government of Ireland Act, which would include a provision that should a majority in Northern Ireland affirm the wish to become part of a united Ireland the British government would facilitate that.

THE point to be stressed here is that what is on offer in return for Irish constitutional change is what has been conceded by the British government on several occasions before the current process.

In essence, what is now being presented as the product of exhaustive negotiations has already been attained, is on record and has never been questioned - namely, that should a majority in Northern Ireland desire to become part of a united Ireland the British government will introduce the necessary legislation.

I believe that the move to include a unilateral consent clause in the Constitution represents a retrograde step because, if passed by the Irish people, it would enshrine in the Constitution the majoritarian principle; something that, in a divided society like the North, has frustrated democracy since the forced partition of the country against the will of the people.

In my opinion, the concentration by the two governments on the notion of balanced alteration to the two conflicting constitutional claims is not a helpful one. The only possible outcome must result in bitterness and resentment on both sides. Originally I had hoped that if all the participants had begun to engage fully in the talks process they could have moved beyond entrenched positions and begun to examine and discuss new and imaginative proposals for a historic compromise.

Surely concepts like shared sovereignty with shared institutions and parallel sovereignty with voting and representation implications are all worthy of discussion, particularly if they are scrutinised under the important headings of choice, equality and democracy.

Robert Ballagh, the artist and de- signer, is chairman of the Irish National Congress