Bliainiris Éireannach an DlÍ Idirnáisiúnta The Irish Yearbook of International Law Volume 11–12, 2016&2017 9781509925643, 9781509925674, 9781509925667

Table of contents :
Editorial Board
Table of Contents
Editorial
Articles
Leaving the Union: Brexit and Complex Constitutionalism in Northern Ireland
Introduction
The Context
Unique, Special and Particular: Finding a Place for Northern Ireland
Ways Forward?
Conclusion
The Processes of the 'Unfinished Businesses' of the Good Friday/Belfast Agreement: An All-Island Charter of Rights and the Northern Ireland Bill of Rights
Introduction
Bill of Rights and Charter Processes
Processes
Conclusion
Crossing the Irish Land Border after Brexit: The Common Travel Area and the Challenge of Trade
What's in a Border?
The Common Travel Area: A Legal Anomaly38
The CTA and Brexit
Protocols 19-21
Citizens
The Challenge of Brexit
The 'Back Stop' and Northern Ireland
Trade and the CTA
Conclusion
The Implications of the Good Friday Agreement for UK Human Rights Reform
Introduction
Pressure for the HRA's Repeal
The GFA, Human Rights and International Law
Options for HRA Reform in Light of the GFA
International Law"s Impact upon HRA Reform
Conclusion
NATO-EU Relations: An International Law Perspective
Development of the Institutional and Legal Framework for Cooperation
Current and Future Areas of Cooperation
Conclusion
Correspondent Reports
Irish State Practice on the Law of the Sea 2015 and 2016
Introduction
Building a Sustainable Ocean Economy
European Maritime and Fisheries Fund
Foreshore
Straight Baselines
Ports and Harbours
Area-Based Management Tools
Marine Strategy and Water Framework Directives
Marine Protected Areas
Marine Debris
EU Law Enforcement Proceedings
Offshore Hydrocarbons
Maritime Labour and Training
Marine Living Resources
Fisheries Law Enforcement and Compliance
Penalty Point System
International Whaling Commission
Continental Shelf and Rockall
Voisinage Arrangement
Humanitarian Missions to the Mediterranean Sea
Marine Scientific Research
The 2030 Agenda on Sustainable Development
Paris Agreement
Biodiversity beyond National Jurisdiction
First Range State Workshop on European Eel
Law of the Sea Capacity Building
Human Rights in Ireland 2016–2017
Legislative Developments
Human Rights in the Superior Courts
Ireland before the European Court of Human Rights
Other Developments
Developments regarding Article 40.3.3 of the Constitution ('the Eighth Amendment')
Human Rights in Northern Ireland 2016 and 2017
Brexit and Human Rights in Northern Ireland
Dealing with the Past
The Right to Life
The Right not to be Ill-Treated
Domestic Violence and Child Abuse
The Right to Liberty
The Right to a Fair Trial
The Right to a Private and Family Life
The Right to Free Expression and to Information
Social Rights
Other Developments
Conclusion
Ireland and the European Union 2016 and 2017
Part One: Brexit and Ireland
Part Two: Ireland and the European Union 2016–2017
Conclusion
Ireland and International Law 2016 and 2017
Introduction
International Agreements
Diplomatic Matters
Foreign Policy, Bilateral Relations, Consular Services and the Diaspora
Foreign Conflicts and International Terrorism
Peace Support Operations
Sustainable Development Goals
Human Rights
Overseas Development Aid and Humanitarian Assistance
Book Reviews
David Fennelly, International Law in the Irish Legal System (2014) reviewed
Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (2016) reviewed
Individual Legal Personality as Independent from the State
Responsibility to Protect
Conclusion
Cahal McLaughlin and Siobhán Wills (Directors), It Stays with You: Use of Force by UN Peacekeepers in Haiti (2017) reviewed
Overview of the Documentary
Themes Raised by the Documentary
Contribution to the Wider Transitional Justice Literature
Conclusion
Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire (2017) reviewed
Anita Ferrara, Assessing the Long-Term Impact of Truth Commissions: The Chilean Truth and Reconciliation Commission in Historical Perspective (2015) reviewed
Documents
Document 1 Statement by the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, on Ireland-China Relations, 7 April 2016
Minister Flanagan Announces Ireland’s Election to the UN Commission on the Status of Women, 8 April 2016
National Statement at the Chemical Weapons Convention 21st Conference of States Parties, delivered by Caroline Whelan in The Hague on 30th November 2016 at the Twenty-First Session of the Conference of States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 28 November–2 December 2016
Statement by Minister Flanagan on Aleppo, Syria, 16 December 2016
Minister Flanagan Welcomes UN Resolution on Aleppo, 19 December 2016
Trafficking in Persons in Conflict Situations, Statement by Mr Tim Mawe, Deputy Permanent Representative of Ireland, Security Council Chamber, New York, 20 December 2016
Document 2 Statement by Minister Coveney on North Korean ICBM launch, 29 November 2017
Minister for Foreign Affairs and Trade, Simon Coveney, TD, Statement in the Dáil on Catalonia, 24 October 2017
Statement by Minister Coveney on the Situation in Rakhine State, Myanmar, 15 September 2017
Statement by Minister Coveney on North Korean Nuclear Weapons Test, 4 September 2017
Statement by HE Ambassador Kevin Kelly, Permanent Representative of Ireland to the OPCW at the Fifty-Fourth Meeting of the Executive Council, 13 April 2017
Trafficking in Persons in Conflict Situations: Forced Labour, Slavery and other Similar Practices, 15 March 2017
Minister for Foreign Affairs and Trade, Mr Charles Flanagan, TD, Statement on behalf of the Government: US Executive Order (27 January, 2017)
Document 3 Statement by Ms. Anne-Marie O’Sullivan Assistant Legal AdviserDepartment of Foreign Affairs and Trade at the Sixth CommitteeUnited Nations General Assembly 71st Session
Document 4 Statement by Ms Anne-Marie O’Sullivan Assistant Legal AdviserDepartment of Foreign Affairs and Trade at the Sixth CommitteeUnited Nations General Assembly 71st Session
Document 5 Statement by Ms Anne-Marie O’Sullivan Assistant Legal AdviserDepartment of Foreign Affairs and Trade at the Sixth CommitteeUnited Nations General Assembly 72nd Session
Document 6 Statement by Ms. Anne-Marie O’Sullivan Assistant Legal AdviserDepartment of Foreign Affairs and Trade at the Sixth CommitteeUnited Nations General Assembly 71st Session
Document 7 Statement by Mr James Kingston Legal Adviser Department of ForeignAffairs and Trade at the Sixth Committee United Nations GeneralAssembly 72nd Session
Document 8 Common Travel Area: Information Note from Ireland to the Article 50Working Group
Document 9 Good Friday Agreement and Peace Process: Information Note from Irelandto the Article 50 Working Group

Citation preview

BLIAINIRIS ÉIREANNACH AN DLÍ IDIRNÁISIÚNTA IMLEABHAR 11–12, 2016 & 2017 THE IRISH YEARBOOK OF INTERNATIONAL LAW VOLUME 11–12, 2016 & 2017 The Irish Yearbook of International Law (IYIL) supports research into Ireland’s practice in international affairs and foreign policy, filling a gap in existing legal scholarship and assisting in the dissemination of Irish policy and practice on matters of international law. On an annual basis, the Yearbook presents peer-reviewed academic articles and book reviews on general issues of international law. Designated correspondents provide reports on international law developments in Ireland, Irish practice in international bodies, Ireland and the law of the sea, and the law of the European Union as relevant to developments in Ireland. In addition, the Yearbook reproduces key documents that reflect Irish practice on contemporary issues of international law. This volume of the Yearbook includes a symposium issue on Brexit, Ireland and international law, bringing together leading academics exploring the international legal-political context of Brexit for Ireland.

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Bliainiris Éireannach an Dlí Idirnáisiúnta Imleabhar 11–12, 2016 & 2017 Curtha in Eagar ag

Fiona de Londras agus Siobhán Ní Mhaolealaidh

The Irish Yearbook of International Law Volume 11–12, 2016 & 2017 Edited by

Fiona de Londras and Siobhán Mullally

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © The editors 2018 The editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50992-564-3 ePDF: 978-1-50992-566-7 ePub: 978-1-50992-565-0 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

EDITORIAL BOARD Members of the Advisory Board Lord Lester of Herne Hill QC Professor Conor Gearty, London School of Economics and Political Science Professor Gráinne de Búrca, New York University Judge Teresa Doherty, Special Court for Sierra Leone Ms Patricia O’Brien, Ambassador of Ireland to France Editors-in-Chief Professor Fiona de Londras, Professor of Global Legal Studies, University of Birmingham ­Professor ­Siobhán Mullally, Established Professor and Director of the Irish Centre for Human Rights, NUI Galway Editorial Board Professor Jean Allain, Monash University Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Dr Dug Cubie, University College Cork Dr Shane Darcy, Irish Centre for Human Rights, NUI Galway Professor Jeffrey L Dunoff, Temple University Professor Imelda Maher, University College Dublin Professor Joseph McMahon, University College Dublin Professor Fionnuala ní Aoláin, University of Minnesota and Transitional Justice Institute, Ulster University Professor Aoife O’Donoghue, Durham University Professor Michael O’Flaherty, EU Fundamental Rights Agency Professor Jaya Ramji-Nogales, Temple University Professor Philippe Sands, University College London Professor William Schabas, Middlesex University

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Table of Contents Editorial Fiona de Londras and Siobhán Mullally

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Articles Leaving the Union: Brexit and Complex Constitutionalism in Northern Ireland Colin Harvey The Processes of the ‘Unfinished Businesses’ of the Good Friday/Belfast Agreement: An All-Island Charter of Rights and the Northern Ireland Bill of Rights Anne Smith and Leo Green Crossing the Irish Land Border after Brexit: The Common Travel Area and the Challenge of Trade Imelda Maher

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The Implications of the Good Friday Agreement for UK Human Rights Reform71 CRG Murray, Aoife O’Donoghue and Ben TC Warwick NATO–EU Relations: An International Law Perspective Steven Hill and David Lemétayer

97

Correspondent Reports Irish State Practice on the Law of the Sea 2015 and 2016 Ronán Long

107

Human Rights in Ireland 2016–2017 Sandra Duffy

139

Human Rights in Northern Ireland 2016 and 2017 Esther McGuinness

165

Ireland and the European Union 2016 and 2017 Roderic O’Gorman

197

Ireland and International Law 2016 and 2017 Dug Cubie

219

Book Reviews David Fennelly, International Law in the Irish Legal System (2014) reviewed by Aoife O’Donoghue

245

viii  The Irish Yearbook of International Law 2016–17 Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (2016) reviewed by Jane M Rooney

249

Cahal McLaughlin and Siobhán Wills (Directors), It Stays with You: Use of Force by UN Peacekeepers in Haiti (2017) reviewed by Erin Pobjie 

258

Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire (2017) reviewed by Luke Moffett

268

Anita Ferrara, Assessing the Long-Term Impact of Truth Commissions: The Chilean Truth and Reconciliation Commission in Historical Perspective (2015) reviewed by Elin Skaar 

274

Documents 2016 Statement by the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, on Ireland-China Relations, 7 April 2016 281 Minister Flanagan Announces Ireland’s Election to the UN Commission on the Status of Women, 8 April 2016

281

National Statement at the Chemical Weapons Convention 21st Conference of States Parties, delivered by Caroline Whelan in The Hague on 30th November 2016 at the Twenty-First Session of the Conference of States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 28 November–2 December 2016

282

Statement by Minister Flanagan on Aleppo, Syria, 16 December 2016

284

Minister Flanagan Welcomes UN Resolution on Aleppo, 19 December 2016

285

Trafficking in Persons in Conflict Situations, Statement by Mr Tim Mawe, Deputy Permanent Representative of Ireland, Security Council Chamber, New York, 20 December 2016

286

2017 Statement by Minister Coveney on North Korean ICBM launch, 29 November 2017

289

Minister for Foreign Affairs and Trade, Simon Coveney, TD, Statement in the Dáil on Catalonia, 24 October 2017

289

Statement by Minister Coveney on the Situation in Rakhine State, Myanmar, 15 September 2017 

291

Statement by Minister Coveney on North Korean Nuclear Weapons Test, 4 September 2017

292

Table of Contents ix Statement by HE Ambassador Kevin Kelly, Permanent Representative of Ireland to the OPCW at the Fifty-Fourth Meeting of the Executive Council, 13 April 2017

292

Trafficking in Persons in Conflict Situations: Forced Labour, Slavery and other Similar Practices, 15 March 2017

294

Minister for Foreign Affairs and Trade, Mr Charles Flanagan, TD, Statement on behalf of the Government: US Executive Order (27 January, 2017) by Minister for Foreign Affairs and Trade

296

Selected Documents Statement by the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, on Ireland-China Relations

281

Statement by Minister Coveney on North Korean ICBM Launch

289

Statement by Ms. Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 71st Session

301

Statement by Ms Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 71st Session

305

Statement by Ms Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 72nd Session

309

Statement by Ms. Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 71st Session

313

Statement by Mr James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 72nd Session

317

Common Travel Area: Information Note from Ireland to the Article 50 Working Group

319

Good Friday Agreement and Peace Process: Information Note from Ireland to the Article 50 Working Group

323

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Editorial

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E ARE DELIGHTED to again publish a selection of academic writing and commentary on key issues in international law. In this double issue, covering the years 2016 and 2017, we reflect on the significant international law events particularly affecting Ireland and Northern Ireland in a symposium of papers on the international law implications of Brexit. As an event and process of law and politics, Brexit has dominated much of Ireland’s engagement both with and within the European Union (EU) and bilaterally with our nearest neighbour, the United Kingdom (UK). The international law implications of the outcome of the Brexit referendum, particularly in relation to the status of Northern Ireland and North/South relations, are significant. The referendum on exiting the EU took place in the UK in June 2016. The majority, as is well known, voted to leave the EU, and the Prime Minister, Theresa May, served the Article 50 notice to begin the formal withdrawal process in March 2017. Since then, negotiations between the EU and the UK have been intensive and as yet, inconclusive, with key issues including the status of Northern Ireland, and the significance of the border between North and South following exit day, continuing to be contested. Not only are these negotiations and legal and political developments reflected in many of the correspondence reports that form a key part of the Irish Yearbook of International Law, but also in the articles that we publish in this volume. There are at least three dimensions to the Northern Ireland/Brexit question that are of significance from an international law perspective. The first relates to the components of the peace agreement, Good Friday/Belfast Agreement and the ways in which removing Northern Ireland from the EU—the laws of which, underpin significant components of the equality and human rights elements of the Agreement— might impact on the operation of the Agreement itself. As such, the withdrawal of the UK from the EU, without sufficient guarantees as to the status of EU law and non-diminution of rights and equality standards in Northern Ireland, raises complex questions of international law. However, while there has been much commentary on the rights and equality implications of Brexit in the context of the Good Friday/Belfast Agreement, as this symposium notes, Brexit may also offer opportunities for some unfinished elements of the Agreement to be returned to the spotlight. In their article, Smith and Green explore what they call the ‘unfinished business’ of the Agreement: the proposed All-Island Charter of Rights and the Northern ­Ireland Bill of Rights. Of course, with or without Brexit, Northern Ireland presents interesting challenges in the context of human rights law reform in the UK. In their article, Murray, O’Donoghue and Warwick explore this in the particular context of the (on again off again) proposals to reform/repeal the Human Rights Act 1998. Key to the fulfilment of the promise in the Agreement that the European Convention on

2  The Irish Yearbook of International Law 2016–17 Human Rights would be given domestic effect North and South, this legislation is deeply divisive in British politics, but perceived as fundamental to equality and rights in much of Northern Irish political and legal discourse. Whether Brexit strengthens or weakens its position remains to be seen. In many ways this relates to the second point of international legal interest relating to Northern Ireland and Brexit: the constitutional status of Northern Ireland itself. Northern Ireland is a jurisdiction within the UK, in the eyes of international law. The emerging lex pacificatoria premised on the Good Friday/Belfast Agreement, however, raises additional questions as to this status, particularly in light of the Irish Government’s role and that of North/South institutions, such as the treaty-based Joint Committee of the Northern Irish Human Rights Commission and the Irish Human Rights and Equality Commission. One proposed solution to the ‘border problems’ posed by Brexit to the island of Ireland (the so-called ‘backstop solution’) is that Northern Ireland would effectively retain a status within key elements of the EU, such as the Customs Union, thus introducing radically different arrangements across the component jurisdictions of the UK. While the UK Prime Minister, Teresa May, has declared this proposal to be unacceptable, in the absence of an alternative solution to the status of the border between Ireland North and South, this proposal may become the default outcome of the UK’s exit from the EU. In such a situation, as Harvey’s contribution to this volume shows, the contested questions relating to the constitutional identity, nature and status of Northern Ireland, would be elevated to a new level of complexity. Reflecting on the significance of the border between North and South points us to the third way in which Northern Ireland and Brexit are of international legal interest: the movement of goods, services and people. While the ‘backstop solution’ would keep Northern Ireland in the Customs Union, at the time of writing, the realpolitik of compromise require to secure such a solution, including in relation to the free movement of persons, would seem to weigh against such an outcome. And there is no appetite on any part for the Common Travel Area, with its exceptional legal provisions for the free movement of persons, to be brought to an end. How, then, can the movement of people, goods and services be managed between the two parts of the island of Ireland when the border shifts from being an internal border of the EU to an external border, albeit still within a Common Travel Area? The potential implications of this shifting status are the subject of Maher’s contribution to this volume. While Brexit dominated proceedings to a large extent in 2016 and 2017, international law, politics and practice of course proceeded. In their short essay, Hill and Lemétayer focus our attention on another key issue for the EU: cooperation with NATO in order to face contemporary security challenges, many of which arise in the neighbourhood of the EU. Fiona de Londras, Birmingham Siobhán Mullally, Galway

Articles

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Leaving the Union: Brexit and Complex Constitutionalism in Northern Ireland COLIN HARVEY*

INTRODUCTION

B

REXIT CONTINUES TO dominate discussions across these islands and beyond. The decision of the United Kingdom (UK) to leave the European Union (EU) has generated a remarkable amount of comment and controversy. The narrow nature of the vote was further complicated by a clear disparity within the UK.1 Unlike the position in England and Wales, Northern Ireland and Scotland did not vote to leave.2 Although there was no internalised ‘lock’ on Brexit,3 in the sense that it was a UK-wide vote, it raises significant questions about the current nature of the UK and, in particular, what might be required to embark on (and complete) such a major process of constitutional change. What is striking is the contrast between legal and political forms of constitutionalism, when read in the light of arguments about a more pluralist UK. Visions of a multi-national ‘union state’ have had to confront the re-emergence of constitutional legal orthodoxies. Brexit has serious implications for Northern Ireland and Ireland, and attempts to design a defensible ‘solution’ have proved challenging. The aim of this article (written and edited during the process of negotiation) is to focus on the position in Northern Ireland and to reflect on the potential consequences. First, an attempt is made to contextualise the debate; second, thought is given to how the process has advanced; and finally, there is consideration of ways forward. The suggestion * Professor of Human Rights Law, School of Law, Queen’s University Belfast. Professor Harvey is leading a research project team (BrexitLawNI) working on an ESRC-funded project exploring the Constitutional, Conflict Transformation, Human Rights and Equality Consequences of Brexit for Northern Ireland. For further information see: www.brexitlawni.org (last accessed 2 May 2018). 1 For details of the referendum result see: www.electoralcommission.org.uk/find-information-bysubject/elections-and-referendums/past-elections-and-referendums/eu-referendum/electorate-and-countinformation (last accessed 2 May 2018). 2 Ibid. In Northern Ireland, on a turnout of 67.2%, it was: Remain: 440,707; Leave: 349,442. In Scotland, on a turnout of 67.2% it was: Remain: 1,661,191; Leave: 1,018,322. 3  In an analysis of the various questions around the result, note the following from Stephen Tierney: ‘In my view a more convincing concern rests upon a vision of the UK as a multinational union in which the consent of each of the constituent territories should be required for such a significant change. This raises a broader question about the federalisation of the UK (the full engagement of the devolved territories in the exit process will be essential for the stability of the state), but this is not the main objection of those who now question the legitimacy of the referendum result and was rarely heard beyond the borders of the devolved territories before the referendum.’ Stephen Tierney, ‘Was the Brexit Referendum Democratic?’, available at: https://ukconstitutionallaw.org/2016/07/25/stephen-tierney-was-the-brexit-referendumdemocratic/ (last accessed 2 May 2018).

6  The Irish Yearbook of International Law 2016–17 in this article is that Brexit has sharpened the constitutional dilemmas of Northern Ireland, and in doing so it has prompted a transnational debate about its unique position and future. The region has increasingly functioned as a signifier of what is endangered in the Brexit process. This comes at a time when the political institutions in Northern Ireland are no longer operational, an outcome that Brexit did (in part) contribute to.4 Dealing with the consequences will also mean addressing the divisions that it has done so much to perpetuate; this will include putting power-sharing constitutionalism in Northern Ireland back together again. THE CONTEXT

National Identity and Constitutional Contestation: The Good Friday Agreement Revisited Brexit must be located in context if its ramifications for the island of Ireland are to be fully understood; the Good Friday Agreement 1998 (GFA) has a special place as the framework for this constitutional conversation.5 Whatever impact it may have had within mainstream British constitutionalism, the GFA represented a major turning point for the island of Ireland, underlined by its clear democratic endorsement North and South.6 It is evident that although much was anticipated in this Agreement, departure from the EU was not one of those things. The textual references, and political background, suggest that EU membership was a firm and unproblematic common assumption of all participants.7 This multi-stranded and multi-party peace agreement is once again the subject of considerable interest, as the document that gave life to the institutional architecture of Northern Ireland’s current politics moves to the centre of the Brexit negotiations. What was adopted was a political agreement but also a British–Irish Agreement that provides the international legal underpinning for its vision, commitments and guarantees.8 Domestic legal meaning was given to this political agreement through legal reform in both states, notably, for example, amendment of the Irish Constitution.9 The Northern Ireland Act 1998 (as amended) still provides the legal framework in UK law and more attention is turning to the relationship between the GFA and this legislation. The Preamble to the British–Irish Agreement is suggestive of how the EU was viewed at the time: Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the ­European Union … 4 See: www.irishtimes.com/news/politics/full-text-of-martin-mcguinness-s-resignation-letter-1.2930429 (last accessed 2 May 2018). 5  10 April 1998 (Cmnd 3883). 6  Referenda were held in both jurisdictions on 22 May 1998. 7  It is worth recalling that one of the major political parties at the time the GFA was negotiated (the Social Democratic and Labour Party (SDLP)) was a consistently strong advocate for the EU—evident in particular in the work of its then leader, John Hume. 8  UK Treaty Series No 50 (2000). 9  See Articles 2 and 3, www.irishstatutebook.ie/eli/cons/en/html (last accessed 2 May 2018).

Articles—Harvey 7 The GFA has been supplemented by subsequent agreements, the St Andrews Agreement 2006 in particular,10 but although they have brought further changes they have not departed from the fundamentals of the original document. In Robinson v Secretary of State for Northern Ireland and others,11 Lord Hoffmann noted that the ‘most fundamental purpose of the Agreement’ was ‘to create the most favourable constitutional environment for cross-community government’.12 He regarded the Northern Ireland Act 1998 as ‘a constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in Belfast’.13 In order to underline the constitutional nature of what was agreed, he noted this: According to established principles of interpretation, the Act must be construed against the background of the political situation in Northern Ireland and the principles laid down by the Belfast Agreement for a new start. These facts and documents form part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States.14

In the fairly cursory treatment of the Northern Ireland issues in R (Miller and another) v Secretary of State for Exiting the European Union,15 the majority in the Supreme Court stated: The NI Act is the product of the Belfast Agreement and the British-Irish Agreement, and is a very important step in the programme designed to achieve reconciliation of the communities of Northern Ireland. It has established institutions and arrangements which are intended to address the unique political history of the province and the island of Ireland.16

It may be unwise to read too much into the language of a judgment that essentially revolved around the need for parliamentary approval for triggering Brexit, but it does suggest a much less constitutional tone (it does not represent, however, a rejection of the spirit of Robinson). Nevertheless, the Northern Ireland Act 1998 was intended to give legal force to the GFA principles and is clearly a ‘constitutional statute’ within the UK’s established tradition of classification. Although there is a persistent debate about what is achievable within the flexible contours of British constitutionalism, it seems possible for Parliament to take steps that would give genuine weight to Northern Ireland’s unique circumstances while respecting the ­post-conflict form of complex constitutionalism that is evolving. There are several senses in which the GFA is relevant as context. First, there are the values that emerge from it. The Declaration of Support talks of ‘reconciliation, tolerance, and mutual trust, and the protection and vindication of the

10 See, www.gov.uk/government/publications/the-st-andrews-agreement-october-2006 (last accessed 2 May 2018). 11  Robinson v Secretary of State for Northern Ireland and others [2002] UKHL 32. 12  Ibid [30]. 13  Ibid [25]. 14  Ibid [33]. 15  R (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5. 16  Ibid [128].

8  The Irish Yearbook of International Law 2016–17 human rights of all’.17 This emphasis on human rights is one of the more remarkable features of the GFA (a document occasionally criticised for its ‘both communities’ narrative).18 It also speaks to the question of relationships across these islands and notes a commitment to ‘partnership, equality and mutual respect’.19 This is relevant when considering the ‘interlocking and interdependent’ nature of ‘all of the institutional and constitutional arrangements’.20 The GFA is steeped in relational thinking grounded in values such as human rights but it has become intellectually impoverished through patchy implementation and often ill-informed commentary. Second, everything in the document can be read as framed by the overarching provisions on ‘Constitutional Issues’; and it is worth taking these provisions step-by-step. The participants and both governments endorsed propositions that can be misunderstood.21 The status of Northern Ireland (within the UK or a reunited Ireland) rests on the consent of a majority of its people.22 There is no requirement for a special majority (but these provisions should be read in the principled context noted above).23 The right of self-determination is to be exercised by ‘the people of Ireland alone, by agreement between the two parts respectively and without external impediment’ and subject to the ‘agreement and consent of a majority of people in Northern Ireland’.24 If a majority decision to leave the UK is made then it is a ‘­binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish’.25 This would in principle not simply be an advisory referendum, as both governments have agreed to take forward the outcome, but this is always subject to the inherent limitations of British constitutionalism (reflected too in the relevant and more ambiguous provisions of the Northern Ireland Act 1998). This does not leave the currently ‘sovereign government’ free of obligations. The GFA contains a requirement of ‘rigorous impartiality’ and therefore responsibility must be exercised respectfully: … on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and ­cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities …26

The ‘birthright’ of people in Northern Ireland to ‘identify themselves and be accepted as Irish or British, or both, as they may so choose’ is of significant r­elevance. 17 

GFA para 2. Harvey and Stephen Livingstone, ‘Human Rights and the Northern Ireland Peace Process’ [1999] European Human Rights Law Review 162. 19  GFA para 3. 20  GFA para 5: ‘ … and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on that of the other.’ 21  In Mark Devenport, ‘Varadkar Faces Heat over Constitution Comments’, www.bbc.co.uk/news/uknorthern-ireland-41655699 (last accessed 2 May 2018), the Taoiseach was criticised for suggesting that 50+1 might not be sufficient to secure Irish Unity. 22  GFA para 1(i). See also, Northern Ireland Act 1998 s 1 and sch 1. 23  Colin Harvey, ‘A Unity Referendum is not a Silly Idea’, http://qpol.qub.ac.uk/irish-unity-referendum/ (last accessed 2 May 2018). 24  GFA para 1(ii). 25  GFA para 1(iv). 26  GFA para 1(v). 18  Colin

Articles—Harvey 9 It ­provides vital reassurance that no one in Northern Ireland should be forced to identify themselves in a way that conflicts with their national preference or political aspirations. Third, the GFA is multi-stranded; it was never envisaged that a purely ‘internal’ Northern Ireland solution would or could work. Strand One deals with democratic institutions in Northern Ireland, Strand Two addresses the North–South Ministerial Council, and Strand Three covers the British–Irish dimension. Strand One refers to ‘effective co-ordination’ and to ‘national policy-making, including on EU issues’.27 Strand Two mentions the format of North–South Ministerial Council meetings with EU matters listed as ‘cross-sectoral’.28 The EU is plainly implicated in relation to the Implementation Bodies created under this element of the GFA (for example, the Special EU Programmes Body). It is also stated: The Council to consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings.29

Fourth, a range of other issues are addressed in the GFA that merit attention here. The ‘Rights, Safeguards and Equality of Opportunity’ section contains no reference to EU law, but if it was being negotiated now it is hard to imagine that a reference to the (subsequently adopted) EU Charter of Fundamental Rights would be absent. It is also difficult to read the references to equality without thinking of the taken for granted advances on that concept in the EU. What this aspect of the GFA does reveal is the critical centrality of rights and equality, both in terms of normative standards and institutional protections (Human Rights Commissions on the island—including a Joint Committee30—and a new unified Equality Commission in Northern Ireland31). The British Government agreed to incorporate the European Convention on Human Rights (ECHR) into Northern Ireland law32 with the Irish Government committing to ‘bring forward measures to strengthen and underpin the constitutional protection of human rights’.33 Although much followed in terms of, for example, the creation of new Commissions, and giving effect domestically to the ECHR, the anticipated Bill of Rights for Northern Ireland never appeared (despite comprehensive advice from the Human Rights Commission in 200834) and the idea of a Charter of Rights for the island of Ireland has not advanced beyond the position reached by both Commissions in 2011.35 27 

GFA para 31. GFA para 3(iii). 29  GFA para 17. 30  GFA paras 5, 9 and 10. 31  GFA para 6. 32  GFA para 2. 33  GFA para 9. 34 Northern Ireland Human Rights Commission, ‘A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland’ (10 December 2008). The Charter of Fundamental Rights is drawn upon in this advice see, for example, p 111, www.nihrc.org/publication/detail/advice-to-thesecretary-of-state-for-northern-ireland (last accessed 2 May 2018). 35  Joint Committee on Human Rights, ‘The Advice of the Joint Committee on a Charter of Rights for the Island of Ireland’ (June 2011). The EU Charter of Fundamental Rights is referenced throughout this 28 

10  The Irish Yearbook of International Law 2016–17 The aspects of the GFA dealing with ‘Security’ and ‘Policing and Justice’ are relevant to the extent that they envisage all-island co-operation along with measures to render the border relatively ‘invisible’. The progressive ‘normalisation of security arrangements and practices’ had clear implications for border areas36 and consultation with the Irish Government on ‘any continuing paramilitary activity’ is noted.37 Discussion with the Irish Government regarding policing and criminal justice reform is mentioned38 and the terms of reference for the Commission on Policing (what became the ‘Patten Commission’) refers to structured co-operation with the Garda Síochána.39 This review of the 1998 Agreement is necessary principally because it is such a focus of attention within the Brexit discussions. This includes the argument that Brexit itself is in conflict with or incompatible with its terms. Brexit arguably touches on almost all aspects of the ‘Constitutional Issues’, in addition to the specific textual references within the British-Irish Agreement and sections relating to the North–South Ministerial Council (for example, how will the views of the Council on North–South matters be ‘represented appropriately at relevant EU meetings’ after Brexit?). There is little doubt that ‘consent’ has a particular meaning in the GFA, relating specifically to continuing constitutional status. Much emphasis is placed on what the majority of the ‘people of Northern Ireland’ decide. While it is possible to confuse the different meanings of consent, it still makes its notable absence in relation to Brexit a relevant consideration. The debate on this point is often hampered by versions of narrow legalism that are themselves trapped within notions of British constitutionalism that pay little regard to the distinctive form of political constitutionalism that has evolved to provide a principled basis for stability in Northern Ireland. Without further action there is a real risk that exit from the EU would be an ‘external impediment’ to the right of self-determination; Northern Ireland would be in a third-country for EU purposes. This fact was spotted and acted upon, following closely the example of German reunification.40 It generated much excitement and comment but was little more than a political display of basic respect for the GFA. The ‘birthright’ elements of the GFA will raise their own complications. Entitlement to and conferral of nationality in both states (an issue that remains within the competence of states) mean that things can look (legally) different when viewed from London or Dublin. Unless a special arrangement is put in place then EU citizenship will be a potential source of division and differential treatment. This may cause a host of practical problems, as well as lead to several intriguing dilemmas

document, www.nihrc.org/documents/charter%20of%20rights/charter-of-rights-advice-june-2011-final. pdf (last accessed 2 May 2018). 36 

GFA para 1. GFA para 3. 38  GFA para 6. 39  GFA Annex A. 40 Denis Staunton, ‘Brexit Summit: EU Accepts United Ireland Declaration’, www.irishtimes.com/ news/world/europe/brexit-summit-eu-accepts-united-ireland-declaration-1.3066569 (last accessed 2 May 2018). 37 

Articles—Harvey 11 (for unionists in Northern Ireland, for example) many of which may still not have been anticipated.41 Power-Sharing Constitutional Politics The constitutional politics of Northern Ireland must be noted, as Brexit has helped to re-open the sovereignty fracture that the EU and the peace process attempted to heal and mend. The two major political parties took opposite positions in the referendum campaign. Sinn Féin supported ‘Remain’ and the Democratic Unionist Party (DUP) opted for ‘Leave’. The difference between the UK result and the Northern Ireland outcome has complicated matters further. A number of elections then followed the Brexit result. There were both ­Northern Ireland Assembly and UK parliamentary elections in 2017. The Assembly elections in March saw the two main parties draw closer together, unionism in ­Northern ­Ireland no longer enjoys an overall majority (in the Assembly).42 The DUP secured 28.1 per cent of the first preference votes (28 seats) while Sinn Féin was on 27.9 per cent (27 seats).43 The Westminster elections in June 2017 saw all three sitting Social Democratic and Labour Party (SDLP) MPs lose their seats.44 The DUP vote share rose markedly (to 36 per cent: 10 seats) with Sinn Fein’s vote also rising notably (to 29 per cent: seven seats).45 These elections confirmed that the electorate of Northern Ireland is wedded to the DUP and Sinn Féin as the lead partners in power-sharing constitutional politics (with the DUP remaining as the ‘largest’ political party). The outcome for nationalism/republicanism is notable because (due to Sinn Féin’s long-standing position on abstention from Westminster) there is now no ‘Irish nationalist voice’ in the House of Commons. The decision of the DUP to reach a ‘confidence and supply agreement’ with the Conservative Party attracted much comment, including on the DUP’s questionable record on human rights.46 This has made agreement more difficult within the delicate constitutional politics of Northern Ireland, and provoked debate about the implications for the role of the Secretary of State.47 Brexit is therefore now 41  The Taoiseach, for example, has made the point that Northern Ireland may be a legal space outside of the EU where the majority of people are EU citizens. See Pat Leahy, ‘Even Unionists Will Want Irish Passport after Brexit, says Varadkar’, www.irishtimes.com/news/ireland/irish-news/even-unionists-willwant-irish-passport-after-brexit-says-varadkar-1.3262088 (last accessed 2 May 2018). 42 See Raymond Russell, ‘Election Report: Northern Ireland Assembly Election, 2 March 2017’ NIAR 20-17, www.niassembly.gov.uk/globalassets/documents/raise/publications/2017-2022/2017/general/ 2217.pdf (last accessed 2 May 2018). 43 Ibid. 44  Ray Russell, ‘General Election 2017: A Detailed Look at the Result in Northern Ireland’, www. assemblyresearchmatters.org/2017/06/20/general-election-2017-detailed-look-result-northern-ireland/ (last accessed 2 May 2018). 45 Ibid. 46  Fiona de Londras, ‘The DUP’s Worrying Human Rights Record’ (13 June 2017), http://ohrh.law. ox.ac.uk/the-dups-worrying-human-rights-record/ (last accessed 2 May 2018); Colin Harvey, ‘What Price Human Rights and Equality in Northern Ireland?’ (16 June 2017), http://ohrh.law.ox.ac.uk/what-pricehuman-rights-and-equality-in-northern-ireland/ (last accessed 2 May 2018). 47 Colin Harvey, ‘Northern Ireland and Rigorous Impartiality: Untangling a Constitutional Mess’ (13 June 2017), http://qpol.qub.ac.uk/ni-rigorous-impartiality/ (last accessed 2 May 2018).

12  The Irish Yearbook of International Law 2016–17 ­ rogressing with a UK Government that is in an arrangement with one of the main p political parties in Northern Ireland and when the Northern Ireland Assembly and Executive are not operational. At the time of writing, Northern Ireland remained without a government and in a strange form of confusing and rudderless political/ legal limbo.48 UNIQUE, SPECIAL AND PARTICULAR: FINDING A PLACE FOR NORTHERN IRELAND

Brexit Does Not Mean Brexit? Brexit includes and excludes Northern Ireland. ‘Includes’ in the sense that the UK plans to leave; ‘excludes’ because the term (if it is referring to Britain) automatically leaves the region out (the UK is exiting the EU). The process so far has prompted agonised reflection about the nature of the UK and its constitution, but this seems to have only occurred to many participants after the decision was taken.49 To what extent has the constitutionalisation process of the GFA had a practical impact in the world of law? Although the Miller case significantly underlined the role of Parliament in taking forward Brexit, the treatment of the devolution issues provided a reminder that many of the ‘basics’ of the traditional British constitution persisted (including its habit of paying insufficient regard to the dynamics and normativity of peace process constitutionalism in Northern Ireland).50 This is evident in relation to matters of consent and the much discussed impact of the Sewel Convention. The Supreme Court stressed the essentially political nature of conventions of the constitution and concluded that there was no legal requirement of legislative consent from the Northern Ireland Assembly. So, legally the devolved institutions cannot block Brexit. However, it did observe that although non-legal this did not mean that conventions are irrelevant: In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.51

It is easy to skip over this statement but it is a reminder that the political constitution has profound value52 and that the Sewel Convention has an important and even 48  The problems (particularly for civil servants) are evident in the following High Court judgment: Buick’s (Colin) Application (ARC21) [2018] NIQB 43. 49 Although there were attempts to stress the potential impact, see Colin Harvey, ‘EU Referendum Perspectives’, www.youtube.com/watch?v=_xbrx5UbhVg (last accessed 2 May 2018). 50 See R (Miller and another) (n 15). 51  R (Miller and another) (n 15) [155]. 52 It is possible to neglect the distinctive nature of political constitutionalism in Northern Ireland, see Colin Harvey, ‘Reconstructing the “Political Constitution” of Northern Ireland’, https://ukconstitutionallaw.org/2012/08/02/colin-harvey-reconstructing-the-political-constitution-of-northern-ireland/ (last accessed 2 May 2018).

Articles—Harvey 13 fundamental constitutional role (but the courts will not police it). So, although no legal remedy is available, and the courts will not enforce the Convention, it is equally plain that by neglecting it the Westminster Government would be acting against the wider interest in facilitating ‘harmonious relationships’ within the UK (and therefore risk operating unconstitutionally). It was apparent from the discussions over the EU (Withdrawal) Bill that devolved consent was a major problem for the Westminster Government and although initially the Scottish and Welsh Governments adopted a common approach, this harmony fractured around the subsequent amendments proposed by the UK Government (at the time of writing the Scottish Parliament had refused its consent and passed its own legal continuity legislation, which has been referred to the UK Supreme Court).53 The idea that the Government may be planning to act in an unconstitutional (but lawful) way is something that still merits serious attention. It highlights the extent of the constitutional problems unleashed by Brexit. Grappling with the GFA and its Implications The scale of engagement with Brexit around these islands (and across Europe) is staggering. The decision has prompted deep and wide consideration of ways f­ orward across politics and society. It is an ongoing process and at the time of writing the EU27 and UK had agreed a Joint Report in December 2017 and the Commission had produced a draft Withdrawal Agreement, containing a Protocol on Ireland/Northern Ireland (as a way of reflecting the agreement to provide a ‘backstop’ guarantee in the absence of UK-wide or other specific solutions).54 Where do the Irish and UK Governments stand in all this? Both the UK and Irish Governments have indicated their desire to see the unique circumstances of ­Northern Ireland (and the island of Ireland) respected.55 The UK’s position thus far has been to reiterate its commitment to the Common Travel Area (CTA), the GFA,

53 See The Scottish Government, ‘Legislative Consent Memorandum, EU (Withdrawal) Bill’, www. parliament.scot/S5ChamberOffice/SPLCM-S05-10-2017.pdf (last accessed 2 May 2018) and The ­Scottish Government Supplementary Consent Memorandum, www.parliament.scot/S5ChamberOffice/LCM-S510a.pdf (last accessed 29 May 2018). The motion to refuse consent was agreed on 15 May 2018, see www.parliament.scot/parliamentarybusiness/report.aspx?r=11533&mode=pdf (last accessed 29 May 2018) and for details of the continuity bill see www.parliament.scot/parliamentarybusiness/Bills/107725. aspx (last accessed 29 May 2018). See also The Welsh Government, ‘Legislative Consent Memorandum, EU (Withdrawal) Bill’, www.assembly.wales/laid%20documents/lcm-ld11177/lcm-ld11177-e.pdf (last accessed 2 May 2018) and The Welsh Government, ‘Supplementary Legislative Consent Memorandum (No 2) www.senedd.assembly.wales/documents/s74890/CLA5-13-18%20-%20Supplementary%20Legisaltive%20Consent%20Memorandum.pdf (last accessed 29 May 2018). 54 For the Joint Report see: https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf (last accessed 29 May 2018); and for the draft Withdrawal Agreement see https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf (last accessed 29 May 2018) 55 HM Government, ‘Northern Ireland and Ireland: Position Paper’ (16 August 2017), www.gov. uk/government/publications/northern-ireland-and-ireland-a-position-paper (last accessed 2 May 2018); ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union: The Government’s Approach’ (May 2017) https://merrionstreet.ie/en/EU-UK/Key_Irish_Documents/Government_Approach_ to_Brexit_Negotiations.pdf (last accessed 2 May 2018).

14  The Irish Yearbook of International Law 2016–17 the need to avoid a hard border as well as continuing North–South and East–West co-operation.56 In its position paper the UK indicated that: There is significant overlap in the objectives set out by the UK Government, the Irish ­Government and the EU. In particular, it is clear that our high level objectives are wholly aligned with regards to: avoiding a hard border; maintaining the existing Common Travel Area and associated arrangements; and upholding the Belfast (‘Good Friday’) Agreement, including the principles of continued North-South and East-West cooperation. The UK therefore welcomes the opportunity to discuss how best to deliver these shared objectives.57

There is something in this; at a high level of abstraction the key participants at state and supranational level do appear to share the same broad objectives. The challenge has been to articulate in precise terms what this might mean, and to translate political agreement into legally meaningful texts. The UK Government’s paper does attempt to offer a measure of detail. On the GFA, for example, there is reference to mutual recognition of support for the peace process, formal recognition of GFA citizenship rights and the continuation of funding.58 There is a proposal that the Withdrawal Agreement should confirm that the position on citizenship remains unchanged59 and that the CTA should be formally recognised too.60 The UK Government also stresses its desire to commence the conversation about creating as ‘frictionless and seamless a border as possible’.61 Although the CTA matters and citizenship issues will present formidably difficult challenges, there is a measure of clarity on how these might be resolved and addressed (and there is now recognition that the UK and Ireland can continue this system). The situation remains much less clear with the debate on the nature of the border, where the overall aims of Brexit appear to conflict in a direct way with the objective of invisibility.62 The Irish Government has outlined its approach to the Brexit negotiations, and made clear the impact on Ireland.63 It has been proactive, both before and after the vote and identified itself strongly as one of the EU27. The establishment of an all-island Civic Dialogue process underlined this commitment to reflect deeply on

56 

HM Government ibid. Ibid p 2. Ibid p 24. 59  Ibid p 5. 60  Ibid p 11. 61  Ibid p 15. 62  For comment on the UK position, see: European Parliament resolution of 3 October 2017 on the state of play of negotiations with the United Kingdom (2017/2847(RSP), www.europarl.europa.eu/sides/ getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2017-0361%2b0%2bDOC%2bX ML%2bV0%2f%2fEN&language=EN (last accessed 2 May 2018) ‘9. Strongly believes that it is the responsibility of the UK Government to provide a unique, effective and workable solution that prevents a “hardening” of the border, ensures full compliance with the Good Friday Agreement in all its parts, is in line with European Union law and fully ensures the integrity of the internal market and customs union; believes also that the United Kingdom must continue to contribute its fair share to the financial assistance supporting Northern Ireland/Ireland; regrets that the United Kingdom’s proposals, set out in its position paper on “Northern Ireland and Ireland”, fall short in that regard; notes on the other hand that in her speech of 22 September 2017 the Prime Minister of the United Kingdom excluded any physical infrastructure at the border, which presumes that the United Kingdom stays in the internal market and customs union or that Northern Ireland stays in some form in the internal market and customs union.’ 63  See ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union (n 55). 57  58 

Articles—Harvey 15 the consequences and attempt to include a range of voices.64 In terms of the matters of deep concern to Ireland, the Government has indicated: Our headline priorities are clear: minimising the impact on our trade and economy, protecting the peace process and the Good Friday Agreement, maintaining the Common Travel Area with the UK, and securing Ireland’s future in a strong European Union. All of these underpin the most fundamental objective of all—ensuring the continued wellbeing of our citizens.65

Many of the themes are familiar, with a particular emphasis on the GFA and the peace process.66 Specific issues are mapped out and explored, including the shared land border, the constitutional status of Northern Ireland, and citizenship and human rights provisions.67 The Irish Government has clearly articulated its position and its objectives during the negotiations. These embrace questions around the avoidance of a hard border but also address ‘continued EU engagement in Northern Ireland’ and the ‘protection of the unique status of Irish citizens in Northern Ireland’.68 As with the UK, Ireland continues to emphasise the value of the CTA and the need for the maintenance of these arrangements.69 The Joint Report of December 2017 ­indicated that it was possible to find a measure of agreement between the EU27 and the UK around core principles and possible approaches. Before the collapse of the institutions in January 2017, the First and deputy First Ministers (Arlene Foster and the late Martin McGuinness) did agree a joint letter (August 2016), in which they set out matters that are of ‘particular significance’ for Northern Ireland and that were presented as ‘initial thoughts’.70 Given the political context this letter has taken on added importance, as a relatively isolated indicator of possible shared concerns. It makes clear that ‘the region is unique’, ‘the border should not become an impediment to the movement of people, goods and services’ and that it should not ‘create an incentive for those who wish to undermine the peace process and/or the political settlement’.71 There is not much in this communication, but it does hint at the optimistic notion that a joint position around some core areas of common concern might be carved out, if the political institutions were working. Amidst all the intense conversations and disagreements there would appear to be sufficient consensus around the idea that Northern Ireland faces unique regional challenges.

64 

See, https://merrionstreet.ie/en/EU-UK/Consultations/ (last accessed 2 May 2018). See ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union (n 55) p 4. 66  See ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union (n 55) p 19: ‘The outcome of the UK referendum raises particular challenges in Northern Ireland, not least as the electorate in Northern Ireland voted to remain while the UK as a whole voted to leave. The preservation of the gains of peace over the past 20 years must be a priority for the EU in the upcoming negotiations with the UK and we must ensure that there is no disruption to the integrity of the peace settlement achieved through the Good Friday Agreement.’ 67  See ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union (n 55) pp 20–21. 68  See ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union (n 55) p 22. 69  See ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union (n 55) p 24. 70  See, www.executiveoffice-ni.gov.uk/sites/default/files/publications/execoffice/Letter%20to%20PM% 20from%20FM%20%26%20dFM.pdf (last accessed 2 May 2018). 71 Ibid. 65 

16  The Irish Yearbook of International Law 2016–17 There have been several parliamentary inquiries in the UK and Ireland, and much of this work is ongoing. The Seanad Committee on the Withdrawal of the UK from the EU published its report in July 2017, dealing with what it termed the potential implications and practical solutions,72 and the Joint Committee on the Implementation of the Good Friday Agreement produced its report in August 2017.73 The Northern Ireland Affairs Committee published a report prior to the referendum in which it set out matters it regarded as of note for Northern Ireland.74 It has also published a report on the issue of the land border between Northern Ireland and Ireland.75 The EU has paid considerable attention to Northern Ireland in its own negotiating stance, and this is one of the more remarkable features of the Brexit story thus far. It is arguably the case that the EU has considered the unique regional anxieties of Northern Ireland more intensively and sensitively than the Westminster ­Government. For example, it has made the situation on the island of Ireland a priority issue for the negotiations.76 The European Council has adopted negotiating guidelines that stress the phased nature of its approach, as well as how central the unique circumstances of Northern Ireland/Ireland are: The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while ­respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.77

The Commission has published Guiding Principles for the Dialogue on Ireland/ Northern Ireland.78 There is again a firm commitment in this document to the GFA

72  See the Seanad Committee on the Withdrawal of the UK from the EU report, https://beta.oireachtas. ie/en/committees/32/seanad-committee-on-the-withdrawal-of-the-uk-from-the-eu/ (last accessed 2 May 2018). 73  See Joint Committee on the Implementation of the Good Friday Agreement, ‘Brexit and the Future of Ireland Uniting Ireland & Its People in Peace & Prosperity’ (August 2017), https://data.oireachtas.ie/ie/ oireachtas/committee/dail/32/joint_committee_on_the_implementation_of_the_good_friday_agreement/ reports/2017/2017-08-02_brexit-and-the-future-of-ireland-uniting-ireland-and-its-people-in-peace-andprosperity_en.pdf (last accessed 2 May 2018). 74  Northern Ireland Affairs Committee, ‘Northern Ireland and the EU Referendum’, https://publications.parliament.uk/pa/cm201617/cmselect/cmniaf/48/4802.htm (last accessed 2 May 2018). 75 See, www.parliament.uk/business/committees/committees-a-z/commons-select/northern-irelandaffairs-committee/inquiries/parliament-2017/future-of-the-irish-land-border-17-19/ (last accessed 2 May 2018). 76  European Council (Art 50) guidelines following the UK’s notification under Article 50 TEU (EUCO XT 20004/17) www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf (last accessed 2 May 2018). 77  Ibid para 11. 78 European Commission, ‘Guiding Principles for the Dialogue on Ireland/Northern Ireland’ (21 ­September 2017), https://ec.europa.eu/commission/publications/guiding-principles-dialogue-irelandnorthern-ireland_en (last accessed 2 May 2018). In this paper the Commission is clear on where the emphasis rests on matters of solutions (p 2): ‘The present paper does not put forward solutions for the Irish border. The onus to propose solutions which overcome the challenges created on the island

Articles—Harvey 17 ‘in all its parts’ and a call for ‘flexible and imaginative solutions’.79 The Principles call on the UK to ensure there is ‘no diminution of rights’ and this includes nondiscrimination guarantees that are part of EU law.80 In terms of citizenship rights arising from the GFA, there is clarity that the Withdrawal Agreement should ‘respect and be without prejudice to these rights’.81 As with the position taken by the UK and Irish Governments, the Commission notes the need to continue the CTA ‘in conformity’ with EU law.82 These Commission priorities all found their way into the Joint Report and the draft Withdrawal Agreement.83 WAYS FORWARD?

What can be extracted from the various positions adopted to date? The question raised by the analysis thus far is precisely what is to be done about translating broad agreement in the abstract into precise legal language and what models might offer workable solutions. There have been several proposals advanced. These range from ideas around membership of the European Economic Area (EEA),84 suggestions on a ‘Cyprus Model’ or ‘reverse Greenland’85 to the notion of a special designated ­status for Northern Ireland86 and options around a ‘GFA plus model’,87 as well as the suggested value of the German example when considering questions of future Irish reunification.88 As with much of the discussion on Northern Ireland, the problem is rarely the absence of proposed solutions (a library could be filled with suggested ways forward). In fact, across many of the areas of continuing constitutional ­contestation there are multiple models on offer, all with varying degrees of detail (feasibility is always dependent on perspective). It is the cross-communal political demands of consensus (equally vital in terms of Northern Ireland’s version of constitutionalism)

of ­Ireland by the United Kingdom’s withdrawal from the European Union and its decision to leave the ­customs union and the internal market remains on the United Kingdom.’ 79 

Ibid pp 2–3. Ibid p 4. 81  Ibid p 4. 82  Ibid p 5. 83  See above n 54. 84  See Seanad report (n 72), it talks about EEA+; Brian Doherty et al, ‘Northern Ireland and Brexit: The European Economic Area Option’ (Discussion Paper, European Policy Centre, 7 April 2017), http:// epc.eu/documents/uploads/pub_7576_northernirelandandbrexit.pdf (last accessed 2 May 2018). 85  Caoilfhionn Gallagher and Katie O’Byrne, ‘Report on How Special Designated Status for N ­ orthern Ireland within the EU Can be Delivered’ (16 October 2017), www.doughtystreet.co.uk/documents/ uploaded-documents/NI_Special_status_report_161017_FINAL.pdf (last accessed 2 November 2017) p 56. 86  Ibid. See also Sinn Féin, ‘The Case for the North to Receive Special Designated Status within the EU’, www.sinnfein.ie/files/2016/The_Case_For_The_North_To_Achieve_Special_Designated_Status_ Within_The_EU.pdf (last accessed 2 May 2018); Sinn Féin, ‘Securing Special Designated Status for the North within the EU’, www.sinnfein.ie/files/2017/BrexitMiniDocs_April2017_Final.pdf (last accessed 2 May 2018). See the work undertaken by the BrexitLawNI project: https://brexitlawni.org/ (last accessed 2 May 2018). 87 Katy Hayward and David Phinnemore, ‘Brexit Necessitates an Agreement-Plus for Northern ­Ireland’, http://qpol.qub.ac.uk/brexit-necessitates-agreement-plus/ (last accessed 2 May 2018). 88  Gallagher and O’Byrne (n 85) p 56. 80 

18  The Irish Yearbook of International Law 2016–17 that stand in the way. At the time of writing, the Commission’s attempt to offer a legal answer, as a ‘backstop’, met with considerable resistance in mainstream British politics (even though to many in Ireland it seemed like a logical conclusion flowing from the Joint Report and in tune with the asymmetrical, differentiated, decentralised and pluralist UK that has evolved since 1998). There are several points to highlight in reflecting on ways forward but five themes are drawn out here. First, there is a division between those suggestions that focus narrowly on what might be termed ‘technical fixes’ to immediate problems and those that scope out the wider constitutional implications. British constitutionalism is well known for being historically prone towards pragmatism over constitutional or normative pyrotechnics. However, there is a clear need to ensure that the consequences of Brexit for the island of Ireland are fully understood in all their constitutional and normative complexity. A singular UK-wide decision has been taken that is expressly against the wishes of the majority of people of Northern Ireland. Viewed from within the dynamics of UK constitutional law this may appear justifiable and legally permissible. However, if events are understood through the lens of political and legal constitutionalism, as it has developed over the course of the peace process, then it is a problematic outcome. Brexit will mean that one part of the island of Ireland will be outside of the EU with all the implications that flow from that. It is therefore appropriate that the questions have been escalated to the EU level and gained such prominence in those debates and within the negotiations. The challenge for the Irish Government and the EU will be in maintaining this level of focus as these discussions advance and other matters come to dominate. Second, it is plainly possible, with the required political will, to design arrangements that would reflect and respect the unique circumstances of Northern Ireland. The vast body of work already undertaken reveals that the EU recognises a host of special arrangements.89 The UK constitution can be criticised for many things but rigidity is not one of them; this flexible constitutional system has the capacity to deliver an ‘imaginative’ outcome if the requisite political will is there. In this context, the legislative supremacy of the Westminster Parliament means that major constitutional initiatives can be taken (it is the question of binding any future Parliament to what is agreed that is the problem). There are risks with this model but in terms of designing solutions there is ample scope for creative constitutional thinking. Third, the human rights and equality framework takes on additional meaning in the light of Brexit. The GFA gave weight to guarantees in these areas, some of which, such as the Bill of Rights, have never been delivered.90 Although human rights advocates have tended historically to look to the Council of Europe, the EU has increasingly taken on a rights-based orientation. This is evident, for ­example, in the EU Charter of Fundamental Rights and there is a sense in which

89  See, for example, Nikos Skoutaris, ‘From Britain and Ireland to Cyprus: Accommodating “Divided Islands” in the EU Political and Legal Order’ (EUI Working Paper AEL 2016/02), https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2809230 (last accessed 2 May 2018). 90 See Christopher McCrudden, ‘The Good Friday Agreement, Brexit and Rights (A Royal Irish Academy—British Academy Brexit Policy Discussion Paper)’, www.britac.ac.uk/sites/default/files/ ­ TheGoodFridayAgreementBrexitandRights_0.pdf (last accessed 2 May 2018).

Articles—Harvey 19 (while ­acknowledging the limits of its scope of application) the potential of this instrument is still being r­ealised. The EU has had much to say about matters of equality and n ­ on-discrimination and here departure may have severe implications. Debates on the future of the UK remain speculative and the volatility of politics means that much is uncertain. However, it is possible to imagine a future Westminster Government that is minded to view the equality, rights and social justice dimensions of domestic law and policy as impediments to Global Britain’s new economic ambitions (particularly as these relate to trade). Without reasonably robust guarantees on rights and equality (that are sustainable and have mechanisms of enforcement and oversight) there is a real risk that the UK could fall behind and fail to keep pace with European developments. The decision of the current Government to defer (but not abandon) repeal and replacement of the Human Rights Act 1998 adds to the level of worry about the future. The tendency to refer to its replacement as a ‘British Bill of Rights’ does not appear to demonstrate much sensitivity to the ethno-national divisions of Northern Ireland.91 This has all inevitably re-opened a much-needed debate about a possible Bill of Rights for Northern Ireland as well as discussion of a Charter of Rights for the island of Ireland. The GFA already envisaged these as constitutionalised solutions to the potential problems that ethno-national powersharing might give rise to. Whatever the outcome of these reflections, Brexit will prompt tough questions about the implementation and enforcement of rights and how any commitments undertaken now will be guaranteed into the future. One of the lessons from the ­history of the peace process since 1998 is precisely the need for clarity and codification in this area. Fourth, and as noted, there is much energy being invested in working out how to address the British–Irish dimensions of Brexit, including the question of a ‘hard border’ on the island of Ireland, the specific citizenship provisions of the GFA as well as the continuation of the CTA. This is vital and essential work but Brexit has disturbing implications for ‘others’ who reside on these islands (or who wish to do so) and this makes human rights a particularly apt frame of reference. UK immigration and asylum law remains a consistent source of unease for those working for human rights and equality. Successive governments have adopted ever more repressive measures and the ‘Leave’ campaign’s language of ‘take back control’ clearly sought to bring migration into view. It is distinctly possible that UK migration policy will become ever more restrictive and that this approach will frame the conversation in Northern Ireland too (immigration remains an ‘excepted’ matter). The long-term price of an ‘invisible border’ on the island of Ireland may be paid by minority ­ethnic communities if the end product is enhanced internalised migration control with the subsequent risk of racial profiling and racial discrimination.92 The UK ­Government is steadily ‘subcontracting’ aspects of migration control throughout society and while

91  Colin Harvey, ‘Northern Ireland and a Bill of Rights for the United Kingdom’ (British Academy Briefing 2016), www.britac.ac.uk/sites/default/files/NI%20BOR%20178.pdf (last accessed 2 May 2018). 92  BrexitLawNI, ‘Preliminary Findings Report—Brexit, Xenophobia and Racism in Northern Ireland’, https://brexitlawni.org/library/resources/preliminary-findings-report-brexit-xenophobia-racism-northern-ireland/ (last accessed 2 May 2018).

20  The Irish Yearbook of International Law 2016–17 it may be possible to resist elements of this trend in Northern Ireland, it is clear that ‘immigration status’ is going to become a key determining factor in how people are treated in the post-Brexit world. This is likely to manifest itself in enhanced requirements to demonstrate a right to be in the UK in order to access services, as well as more penalties for those who do not pay sufficient attention to these rules. This will all be part of a rebranded but unchanged ‘hostile or compliant environment’ for those deemed to be ‘illegal migrants’ in the UK.93 These measures may also pose challenges for attempts to respect the citizenship provisions of the GFA, depending on what arrangements are eventually put in place. And finally, the debate on Brexit has also triggered a conversation about Irish unity. Although this has generated tired and predictable responses, it is an appropriate question to raise for reasons that go beyond well-worn debates.94 The constitutional status of Northern Ireland is supposed to rest on continuing consent, and the position at present is that a majority appear to want to remain within the UK.95 If consent really is the underpinning element then it hardly seems excessive to ask that it be tested. Brexit alters the proposition around Irish unity in a fundamental way; the constitutional context for the debate is now different. For example, one way for Northern Ireland to remain in the EU is to simply leave the UK. This can be comfortably framed within the GFA and there is an argument that it should be normalised in political discourse (primarily to avoid potential future antagonism when a vote is held). There is a tendency to avoid this solution for reasons that are connected to well-founded anxieties about the peace process. That is understandable, and there is little doubt that a referendum on unity would generate dissent. The reaction to the suggestion remains concerning, however, primarily because it seems to call into question a constitutional fundamental of the GFA; it promotes the idea that this constitutional option might be for decorative purposes only. One solution to Brexit, that would respect the GFA fully, would be for Northern Ireland to be given the option of continuing membership of the EU through a vote on Irish reunification (a vote would also be held in Ireland). As with other proposals, it is one among many possible options and will come into play in a focused way once the outcome of the negotiations are clear (especially if they fail to deliver on the rhetoric about the peace process and the need to avoid a hard border on the island of Ireland). The idea of a vote also poses the question of whether the final agreement reached, particularly if it has serious implications for the GFA and subsequent agreements, should be put to a vote in Northern Ireland (or even on the island of Ireland). Although much has been done since 1998, including amending the approach within the architecture of the GFA, Brexit is arguably of such profound constitutional

93 Alan Travis, ‘Immigration Bill: Theresa May Defends Plans to Create “Hostile Environment” (10 October 2013), www.theguardian.com/politics/2013/oct/10/immigration-bill-theresa-may-hostileenvironment (last accessed 2 May 2018). 94  Colin Harvey, ‘Uniting and Sharing the Island: Normalising Good Friday Agreement Constitutionalism?’, http://qpol.qub.ac.uk/normalising-gfa-constitutionalism/ (last accessed 2 May 2018). 95  See, for example, the election results noted in nn 42 and 44.

Articles—Harvey 21 s­ eriousness that any ‘flexible and imaginative’ solutions that emerge should be put to the electorate and not simply left to the Westminster Parliament. This option would fall short of a vote on Irish unity but it would have the merit of testing the views of the people of Northern Ireland. CONCLUSION

The decision to leave the EU was a profound constitutional moment for the UK and the island of Ireland. As simple as it may have seemed to some, it has provoked major constitutional contestation and been a destabilising factor in the politics of Northern Ireland. It also reveals the depth of complexity within the current political constitution of the UK.96 Practical measures are being advanced that might address the priorities that all seem agreed on, in principle at least; the problem is whether the political will is there to be genuinely creative and undertake binding (and enforceable) legal obligations. These debates too, however, can be a sophisticated form of linguistic constitutional code; what is ‘flexible and imaginative’ to some may not be to others and there is a real risk that solutions that emerge may be unified merely by their profound lack of imagination and failure to address, for example, human rights and equality concerns. The GFA is relevant to these conversations precisely because of the creativity on display there. Those who crafted this document displayed a dedication to contextualised thinking about the law and politics of these islands and a sensitivity to models of co-operation that might work. It gave life to a form of ‘both/and’ constitutionalism that has its weaknesses but which still represents a framework that stands the best chance of promoting long-term stability on a sustainable basis. It is difficult to escape the conclusion that despite the many verbal commitments to the GFA its spirit is more often breached than respected. This seems particularly evident in the story of rights and equality, where reasonable expectations from the peace process have not been achieved, including but not limited to a Bill of Rights. Brexit makes addressing this gap even more urgent but also presents an opportunity to confront complacency around rights and equality. There might even be a slender prospect that the intense constitutional dialogue that has erupted gives legal life to meaningful guarantees. At this point, however, the long-term consequences of Brexit, and the constitutional outcomes of the new forms of political volatility, are hard to predict.

96 Colin Harvey, ‘Complex Constitutionalism in a Pluralist   UK’, https://ukconstitutionallaw.org/ 2016/07/02/colin-harvey-complex-constitutionalism-in-a-pluralist-uk/ (last accessed 2 May 2018).

22 

The Processes of the ‘Unfinished Businesses’ of the Good Friday/Belfast Agreement: An All-Island Charter of Rights and the Northern Ireland Bill of Rights ANNE SMITH* AND LEO GREEN**

INTRODUCTION

T

HE GOOD FRIDAY/BELFAST Agreement 19981 (the 1998 Agreement or GFA) has been widely acclaimed for its embedded and extensive human rights and equality provisions. Mary Robinson, former United Nations High Commissioner for Human Rights and former President of Ireland, described the Agreement as ‘conspicuous by the centrality it gives to equality and human rights concerns’.2 This is evident as the text of the Agreement is threaded with commitments of support for human rights protection, equality, non-discrimination, and mutual respect.3 The Agreement therefore generated hope that it would lead to a fairer, more inclusive and human rights-based society across the whole island4 and *  Dr Anne Smith is a Senior Lecturer, Transitional Justice Institute/School of Law, Ulster University. The interview quotations are from interviews conducted by Anne Smith, Monica McWilliams and Priyam Yarnell as part of a project funded by the Joseph Charitable Rowntree Trust, ‘Political Capacity Building: Advancing a Bill of Rights for Northern Ireland’ (September 2014). Although this article draws upon the interviews conducted for that research, the views in the article are those of Smith and Green alone. **  Leo Green is a former party political manager in Northern Ireland and is a Doctoral student at the Transitional Justice Institute/School of Law, Ulster University. We are grateful to Colin Harvey, Rory O’Connell, Monica McWilliams and the external reviewers for comments on earlier drafts. All errors are solely the authors’ responsibility. 1  Agreement reached in the multi-party negotiations, Cm 3883(1998) 37 ILM 751. The Agreement resulted from the talks in Northern Ireland in 1998 which produced a blueprint for how future relationships within and between the Republic of Ireland, Northern Ireland and the UK should be developed. 2  M Robinson, ‘Equality and Human Rights—Their Role in Peace Building’ (speech at the Stormont Hotel, 2 December 1998) quoted in P Mageean and M O’Brien, ‘From the Margins to the Mainstream: Human Rights and the Good Friday Agreement’ (1999) 22 Fordham International Law Journal 1499, at 1499. 3  Good Friday Agreement 1998 (GFA), Declaration of Support, para 3; GFA, Constitutional Issues, para 1(v); GFA, Strand 1, Annex A, Pledge of Office (c); GFA, Rights, Safeguards and Equality of Opportunity, para 1; GFA, Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland. 4  M Farrell, ‘The Irish Government’s Compliance with Its Commitments’ in ‘Mapping the Rollback? Human Rights Provision of the Belfast/Good Friday Agreement 15 Years On’ (Committee on the Administration of Justice, 2013) at 25.

24  The Irish Yearbook of International Law 2016–17 it held out the promise of the protection and vindication of the human rights of all.5 However, although many of its provisions, including some significant commitments on human rights and equality,6 have now been implemented, the full potential of the Agreement in this respect has not been realised.7 The Agreement mooted the possibility of the adoption of an all-island Charter of Rights and also provided for a Bill of Rights for Northern Ireland.8 Such a Bill has not yet been implemented. Together, they represent the principal elements of, what Farrell describes as the ‘unfinished business’9 of the Agreement in the human rights area. However in contrast to the intensive deliberations on the Bill of Rights, the Charter of Rights for the island has drawn only limited attention.10 According to Egan and Murray, despite its transformative potential the Charter has provoked only minimal political engagement in both Northern Ireland and the Republic of Ireland.11 O’Cinnéide echoes this sentiment, on the one hand extolling the Charter’s potential as a vehicle to give effect to an all-island convergence and commonality of rights protection,12 while, on the other hand, pointing out that it remains marooned in political apathy.13 This lack of political focus, combined with its secondary status on the list of the 1998 Agreement’s human rights unfinished business, has effectively confined deliberations on the Charter to the work carried out by the Joint Committee of the Northern Ireland Human Rights Commission (NIHRC) and the Irish Human Rights and Equality Commission (IHREC)14 and a limited number of academic contributions. A fuller and wider consideration of why the Charter has been

5 

GFA, Rights, Safeguards and Equality of Opportunity, paras 2 and 9. example, the incorporation of the European Convention on Human Rights into domestic law (Human Rights Act 1998 and the Republic’s European Convention on Human Rights Act 2003 and the establishment of Human Commissions in both jurisdictions. In the Republic of Ireland, the Irish Human Rights Commission is now merged with the Equality Authority and is renamed the Irish Human Rights and Equality Commission (Irish Human Rights and Equality Commission Act 2014). A statutory equality duty was introduced in section 75 of the Northern Ireland Act 1998 on public authorities when carrying out their duties. A weaker form of the positive duty on public authorities has been introduced in the Republic of Ireland. This is referred to as the public sector equality and human rights duty (section 42 of the Irish Human Rights and Equality Commission Act 2014). It is important to note that despite the introduction of these human rights and equality provisions, the Irish Government’s record on some of these human rights and equality commitments has been described as ‘less impressive’. See Farrell (n 4) at 22. 7  Murray, O’Donoghue and Warrick argue that the place of the human rights and equality provisions within Northern Ireland’s legal order remains ‘politically contentious’. See Murray, O’Donoghue and Warrick’s contribution to this volume in their article, ‘The Implications of the Good Friday Agreement for UK Human Rights Reforms’. 8  GFA, ‘Rights, Safeguards and Equality of Opportunity’, paras 4, 16–17. 9  Farrell (n 4) at 26. The introduction of adequate measures in the Republic of Ireland to match, at minimal, the human rights protections pertaining in the north also comes under this package of ‘unfinished business’. See GFA, ‘Rights, Safeguards and Equality of Opportunity’, para 9. 10 C O’Cinnéide, Equivalence in Promoting Equality—The Implications of the Multi-party Agreement for the Further Development of Equality Measures for Northern Ireland and Ireland (The Equality Authority, Dublin 2005) 31, at 72. 11  S Egan and R Murray, ‘Casting a Cold Eye on the Origins and Development of an All-Island Charter of Rights’ (2010) 34 Fordham International Law Journal 78, at 80. 12  O’Cinnéide (n 10) 31, at 72. 13 Ibid. 14  Hereinafter the Joint Committee. 6  For

Articles—Smith and Green 25 the cinderella of the ‘unfinished business’ of the 1998 Agreement merits attention. To address this issue, the article argues that process issues preceding the adoption of the NIHRC’s advice on a Bill of Rights for Northern Ireland and the Joint Committee’s approach to its consideration of an all-island Charter of Rights are among some of the factors that may help to explain why there is less public and political interest in the Charter. In contrast to the extensive scholarly debate on the process preceding the adoption of the NIHRC’s advice on a Bill of Rights, there remains a significant deficit of understanding about the process prior to the drafting of the Joint Committee’s advice on an all-island Charter of Rights. The article highlights the strengths and weaknesses in the approaches adopted both by the Joint Committee and the NIHRC in their consideration of the Charter and a Bill of Rights for Northern Ireland respectively. As no work has examined both processes collectively, this article will address this gap in the literature. The key implications that follow from this article are manifold. One, the article highlights the importance of adopting a bottom-up approach and an underpinning of such a process with principles reflective of participatory democracy, including transparency, inclusiveness, public participation and responsiveness. Two, those responsible for drafting the remit for the processes for Bills/ Charter of Rights particularly in post-conflict transitions should set out very clearly for those in charge what exactly is their remit. Failure to do so will result in different schools of thought about what those in charge ought/should be doing. Three, governmental disinterest, lack of political leadership, weak remit and limited resources will have damaging implications for processes. Four, while such factors are beyond the control of the body which is responsible for the process, there needs to be a collective will and enthusiasm for those in charge to ensure the process is managed and carried out effectively. Finally, conducting cross jurisdictional processes to advance rights protection for all can be a formidable task. Such a major constitutional task is compounded with lack of both political and civic leadership and endorsement for such processes by those that are sceptical about the importance of Bills of Rights/ Charters especially in ethno-nationally divided societies. At this early stage, it is important to acknowledge that the context for the Charter and a Bill of Rights for Northern Ireland differ. The 1998 Agreement states that the Joint Committee ‘will consider … the possibility of establishing a charter’15 and subsequent Agreements, such as the St Andrew’s Agreement, do not expressly refer to a Charter. In contrast, a Bill of Rights for Northern Ireland was regarded as being an integral part of the 1998 constitutional settlement. There was no mere reference to considering a ‘possibility’ of such a Bill under the 1998 Agreement and further explicit provisions obligations can be found in other negotiated settlements.16

15 GFA, ‘Democratic Institutions’, para 5 and ‘Rights, Safeguards and Equality of Opportunity’, para 10. 16 Joint Declaration by the British and Irish Governments, April 2003, Annex 3, paras 2 and 14; Proposals by the British and Irish Governments for a Comprehensive Agreement, Annex A—Timetable, 8 December 2004; Agreement at St Andrews 2006, ‘Human Rights, Equality, Victims and Other Issues’ Annex B; Agreement at St Andrews: ‘We will establish a forum on a Bill of Rights and convene its inaugural meeting in December 2006’.

26  The Irish Yearbook of International Law 2016–17 Given the wording of these negotiated settlements around the Charter and the Bill of Rights, arguably, one could interpret the non-committal language used around the Charter and the lack of explicit reference in subsequent agreements as rendering the Charter to be the ‘cinderella’ of the two human rights provisions. This article is being published at a time (August 2017) when there is so much uncertainty about the protection and safeguarding of rights with a real risk of lesser rights for fewer people in the UK. The increased prospect of a repeal of the Human Rights Act 1998 (HRA) and its replacement with a British Bill of Rights,17 and the potential resulting implications for the European Convention on Human Rights (ECHR)-related provisions of the Agreement18 raises the spectre of a further lowering of the threshold of rights protection. Similarly, the United Kingdom (UK) Government’s decision to leave the European Union (EU) following the narrow referendum outcome (48 per cent voted to remain against 52 per cent who voted to leave)19 has raised additional concerns relating to declining rights protections. As soon as the UK exit from the EU takes effect, it will lose the ‘engine that has hauled the development of UK anti-discrimination law along in its wake’.20 Post Brexit, the UK will no longer be bound by the provisions of the EU Charter of Fundamental Rights.21 EU directives will also cease to apply and the benefits accruing to Northern Ireland from the current EU equality legislation, such as the Race Equality Directive 200022 and the Employment Equality Directive23 will be lost. Far from being unique to the island of Ireland, this article will have broader resonance for those involved in constitution-making, Bills of Rights and negotiating peace agreements around the globe and in particular in post conflict transitions. This article therefore straddles the academic interface with policy-making and political issues and will assist in informing those responsible for drafting Bills of Rights/ Charters and state formation. The first section attempts to offer an overview of the importance of processes and public participation, not only in drafting Bills of Rights/Charters, but also in

17 The Conservative Party, Protecting Human Rights in the UK: Changing Britain’s Human Rights Law (October 2014); See also the Conservative Party Manifesto (2015) 60. The British Government has stated that the British Bill of Rights will be delayed until after Brexit, see Daniel Bond, ‘EXCL British Bill of Rights delayed until after Brexit, Liz Truss reveals’ (Politics Home, 23 February 2017), available at www.politicshome.com/news/uk/political-parties/conservative-party/news/83591/excl-british-billrights-delayed-until-after. 18  GFA, ‘Rights, Safeguards and Equality of Opportunity’, paras 2 and 4. 19  HM Government, The Process of Withdrawing from the European Union (February 2016). In the UK referendum held on 23 June 2016, 51.9% voted to leave the EU. 20  Joint Committee on Human Rights, ‘The Human Rights Implications of Brexit’ (December 2016), para 70, available at www.publications.parliament.uk/pa/jt201617/jtselect/jtrights/695/69506.htm (last accessed 3 May 2018). 21  The EU Charter of Fundamental Rights was given legal footing by the Lisbon Treaty 2007 (­Article 6 EU Treaty) and came into force in 2009. It is therefore legally binding on EU Member States. The Great Repeal Bill: White Paper is explicit that the EU will cease to apply as soon as the UK leaves the EU, see chapter 2, para 2.23, available at www.gov.uk/government/uploads/system/uploads/attachment_data/ file/604516/Great_repeal_bill_white_paper_accessible.pdf (last accessed 3 May 2018). 22  Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 23  Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

Articles—Smith and Green 27 constitution-making. This requires revisiting the theoretical aspects of public participation, understanding the benefits gained and the problems encountered in countries which have experience in drafting Bills of Rights and constitution-making generally. This section sets out the fundamental principles which will then be used in the next section as the basis of assessing and comparing how participatory the drafting processes preceding the submission on the Northern Ireland Bill of Rights advice and the all-island Charter were. This section analyses and outlines the participatory initiatives (if any) in these processes. The article then sets out possible recommendations to take forward the process for the Charter which is designed to protect and enhance human rights protections in a rapidly changing political landscape on the island.24 The article concludes that on the basis of this analysis, the drafting processes of the Northern Ireland Bill of Rights and the Charter can be described as almost textbook examples of different approaches to linking process with outcomes. It further argues that the Northern Ireland Bill of Rights process could arguably be used as a model for others in facilitating participation in their Bill of Rights and/or constitutionalmaking processes.25 Processes The importance of popular engagement in processes of adopting Bills of Rights or Charters and constitutional change in general has been highlighted by several writers. In Tully’s seminal book Strange Multiplicity. Constitutionalism in an Age of Diversity, the author emphasises the importance of ‘constitutional dialogue’ in reaching an agreement in constitutional negotiations and regards dialogue as ‘foundational, universal and the fixed background to democracy’.26 The author refers to constitutional negotiations as ‘intercultural dialogues’ rather than ‘monologues in an imperial voice’.27 Albie Sachs talks about the ‘participatory formulation of rights’,28 and political theorists have also described it as a form of ‘deliberative democracy’. This concept, originally expounded by Bessette,29 has subsequently been developed by

24  One of the authors is engaged in a research-funded project with Professor Colin Harvey to progress the enforcement and implementation of a Northern Ireland Bill of Rights. For more information, see www.ulster.ac.uk/research/institutes/transitional-justice-institute/research/current-projects/where-nextfor-a-bill-of-rights-for-northern-ireland (last accessed 3 May 2018). 25  We acknowledge that although there has been no successful outcome as the Northern Ireland Bill of Rights has not been implemented (this is primarily as a result of the lack of political leadership/will, on this point see A Smith, M McWilliams and P Yarnell as part of a project funded by the Joseph Charitable Rowntree Trust, ‘Political Capacity Building: Advancing a Bill of Rights for Northern Ireland’ (Transitional Justice Institute, Ulster University 2014)), the process is still nonetheless of value particularly in facilitating public participation. 26 J Tully, Strange, Multiplicity. Constitutionalism in an Age of Diversity (Cambridge, Cambridge ­University Press, 1995) 135. 27  Ibid 183. 28 Quoted by S Gloppen, South Africa: The Battle over the Constitution (Aldershot, Ashgate, 1997) 65. 29  J Bessette, ‘Deliberative Democracy: The Majority Principle in Republican Government’ in How Democratic is the Constitution? (Washington, DC, AEI Press, 1980).

28  The Irish Yearbook of International Law 2016–17 both political scientists and constitutional lawyers.30 The concept emphasises the importance of participation of the citizen in the political process and has been associated with other cognate terms such as ‘participatory democracy’.31 Harvey argues persuasively that the process of adopting a Bill of Rights is essential as it legitimises outcomes. He opines that a Bill of Rights has the potential to enhance democratic life by promoting the conditions which make a healthy ‘participatory democracy’ possible.32 Such a ‘participatory democracy’ is dependent on what Tierney refers to as the ‘instantiation of principles of deliberative democracy’.33 These principles include participation (informed citizens making informed decisions); public reasoning (enabling citizens to meaningfully participate in the process); inclusion and parity of esteem (a deliberative process needs to facilitate engagement from minorities); and consent in collective decision-making (the end product/outcome is legitimate because the process is fair and inclusive irrespective of whether there is agreement and consensus).34 These principles reflect the sub-principles enshrined in the Treaty on the European Union: openness, inclusiveness and responsiveness.35 Openness requires transparency, allowing public access to information on the input, process and outcome; inclusiveness is ensuring that the widest cross section of the people are included avoiding the domination of particular strong and organised groups; and responsiveness requires feedback to the public on the result and how it will be used.36 Responsiveness also requires those responsible for the drafting process to be clear as to why a consultation process is being conducted. Is the purpose of the process about asking people to contribute to the drafting process with a genuine interest to take the content of submissions into consideration? Or is the fact that submissions were made suffice? If submissions from the public are given weight, it requires effective procedures to be in place so those responsible can manage the enormous material that has to be taken into consideration. There are also a number

30  J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, Polity Press, 1996); J Rawls, Political Liberalism (Columbia, Columbia University Press, 1993); J Cohen, ‘Deliberative Democracy and Deliberate Legitimacy’ in A Hamlin and P Petit (eds), The Good Polity (Oxford, Blackwell, 1989); S Tierney, Constitutional Republicanism: The Theory and Practice of Republican Deliberation (Oxford, Oxford University Press, 2012); X Contiades and A Fotiadou, Participatory Constitutional Change: The People as Amenders of the Constitution (Abingdon, Routledge, 2017). 31  C Harvey, ‘The Politics of Rights and Deliberative Democracy: The Process of Drafting a Northern Irish Bill of Rights’ [2001] European Human Rights Law Review 48. See also Colm O’Cinneide who highlights the significance of a broad and open drafting process, C O’Cinneide, ‘What a Bill of Rights Can and Cannot Achieve’ (2006) NIHRC Review summer (2) at 5. 32  Harvey (n 31) 70. 33  S Tierney, Direct Democracy in the United Kingdom: Reflections from the Scottish Independence Referendum’ (2015, on file with the authors). 34  Tierney (n 30) 45. Although Tierney uses this normative framework in the context of constitutional referendums, it can be applied to the drafting process of Bills of Rights/Charters. 35  Consolidated version of the Treaty on European Union, open for signature 7 February 1992 [2012] C 326/13 (entered into force 1 November 2013) Art 11. 36 See European Commission, European Governance—A White Paper (25 July 2001) (Communication) COM (2001) 428 (‘2001 White Paper’) 10; European Commission, Plan-D for Democracy, Dialogue and Debate (13 October 2005) COM (2005) 494 (‘Plan-D’) 9; discussed by J Day, ‘Participatory Democracy in EU and Australia International Investment Law Policy Processes’ (2017) 18 The University of Notre Dame Australia Law Review 20, at 26.

Articles—Smith and Green 29 of normative problems such as whether you treat some submissions more seriously than others. Furthermore, as one report notes, if participants are led to believe that their submissions will in fact feed into the final product, be it a Bill of Rights or an all-island Charter, there needs to be a clear way of demonstrating that this has actually happened.37 If certain opinions are not accepted, the public needs to know why this has been the case. If there is no explanation, there is a risk of undermining the development of a broad consensus in support of the Bill of Rights proposals, something which is essential especially in a political environment which is sceptical towards Bills of Rights. Paradoxically, the public dimension of the drafting process may have the opposite effect—instead of creating ownership and inclusiveness, people may feel alienated and have a sense that this is ‘not their document’. Vipond also talks about the importance of ‘building from below’38 or what has been referred to as the ‘bottom-up’ approach. This takes its inspiration from the field of development and environmental studies, where ‘bottom-up’ approaches’ enjoy a longer pedigree than in the field of human rights.39 In contrast, a Bill or Charter of Rights imposed from ‘above’ and based primarily on the input of elite groups such as senior civil servants, politicians and lawyers with little or no involvement from the public will be products of a ‘top-down’ approach.40 Several authors have pointed out the risks of a ‘top-down’ approach. One academic argues that if Bills of Rights are produced using a ‘top-down’ approach, such Bills could be ‘crippled’41 and will always run the risk of being regarded as merely ‘damaged goods …’ and a ‘lawyer’s plaything’.42 Vipond also argues that any constitutional strategy that does not understand the importance of building from below is profoundly ‘short-sighted’.43 Drafting processes therefore must be based on the principles of ‘deliberative democracy’, otherwise the process may be ‘short-sighted’.

37  Parliamentary Office of Science and Technology, ‘Open Channels: Public Dialogue in Science and Technology’ March 2001) at 1, available at www.parliament.uk/documents/post/pn153.pdf (last accessed 3 May 2018). 38  R Vipond, ‘Constitutionalism as a Form of Conflict Resolution’ in PJ Hanafin and MS Williams (eds), Identity, Rights and Constitutional Transformation (Aldershot, Ashgate, 1999) 184. 39  See the African Charter for Popular Participation in Development and Transformation, Resolution 691 adopted at the 25th session of the African Commission on Peoples and Human Rights, 19 May 1990. See in particular para 11 where the Charter emphasises ‘the basic fact that the role of the people and their popular organizations is central to the realization of popular participation. They have to be fully involved, committed and, indeed, seize the initiative. In this regard, it is essential that they establish independent people’s organisations at various levels that are genuinely grass-root …’ See also B Seel, M Paterson and B Doherty (eds), Direct Action in British Environmentalism (London, Routledge, 2000) and D Wall, Earth First! And the Anti-Roads Movement: Radical Environmentalism and Comparative Social Movements (London, Routledge, 1999). 40  Vipond (n 38) 184. In the context of community-based restorative justice programmes, McEvoy points out that the debate surrounding these programmes has been constantly ‘nuanced and indeed “thickened” by the practical experiences of community-based practitioners (many of them ex-­combatants) and the people in local communities with whom they are working rather than by lawyers or state officials’. See K McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 411. 41  O’Cinneide (n 31) 5. 42  O’Cinneide (n 31) 5. 43  Vipond (n 38) 184.

30  The Irish Yearbook of International Law 2016–17 The juxtaposition of the lack of public involvement in the drafting of the 1960 statutory Canadian Bill of Rights with the broad consultation that preceded the implementation of the Canadian Charter, highlights the importance of process in conceptualising a Bill of Rights.44 A public consultation process impacts directly on the content and wording of a Bill of Rights.45 Harvey calls this the principal reason and states that deliberation is always an important aspect of reflective law and policy formation in a political community.46 Furthermore, it confers a high degree of legitimacy on and a sense of public ownership of the document.47 It also has the capacity to encourage a less restrictive approach by the judiciary to its ­interpretation.48 Additionally, maximising participation in the process can play a critical role in promoting awareness about human rights issues and establishing a human rights culture in the wider society. According to Murray, survey results have demonstrated that the scale of public participation in the construction of the 1996 South African Bill of Rights succeeded in creating a sense of public ownership in it.49 In Canada, maximising public participation in the shaping of the Canadian Charter of Rights built a momentum behind the Government’s position at a critical time when it met with provincial resistance to its proposal for an entrenched Bill of Rights.50 This ‘bottom-up’ approach which preceded the introduction of the Canadian Charter of Rights both raised awareness of the Charter and enhanced its legitimacy.51 As the Chief Justice of the Canadian Supreme Court stated, contrary to the general expectation that the Charter would be: something of a dead letter …. And would not have made much difference … this has not proved to be the case. I think this is due partly to the process-the extensive debate which had taken place and the fact that so many people had indicated that they were serious about the document. This meant also that the courts themselves did a lot of thinking about it.52

We are also cognisant that participatory processes can be complex tasks. Much depends on resources, a realistic timeframe and the level of public and government interest and understanding of what the public are being asked to do. Addressing the last two factors, there is always going to be a level of apathy and even suspicion amongst those who are sceptical about the importance of Bills of Rights/Charters, especially in ethno-nationally divided societies such as Northern Ireland. In such a context, it is important to educate sections in both the community and political

44  A Smith, ‘Bills of Rights as Process: The Canadian Experience’ (2008) 3 International Journal of Law in Context 343, 345. 45 Ibid. 46  Harvey (n 31) 61. 47  Smith (n 44) 345. 48  Smith (n 44) 360; Harvey (n 31) 61; R Penner, ‘The Canadian Experience with the Charter of Rights: Are there Lessons for the United Kingdom?’ [1996] Public Law 104. 49  R Murray, ‘The Importance of a Bill of Rights in Northern Ireland as a Process: Comparative Reflections from South Africa’ (2001) 52 Northern Ireland Legal Quarterly 385, 405. 50  Smith (n 44) 359. 51  Smith (n 44) 360. 52  Chief Justice B McLachlin, ‘The Canadian Experience of a Bill of Rights’ in Human Rights and Peace-Building in Northern Ireland: An International Anthology (Committee on the Administration of Justice, 2006) 4.

Articles—Smith and Green 31 s­ector about what a Bill of Rights is and what it can and cannot achieve. Bills of Rights are political as well as legal documents—they get adopted because it is in someone’s political or other interest to adopt them or because groups struggle and demand rights protection. So it is not only a case of educating people but making it clear that a Bill of Rights is in their short/medium/long term enlightened interest. This is particularly relevant for Northern Ireland where a Bill of Rights could potentially provide a legal framework in relation to the contentious rights issues that are the cause of so much conflict and political antagonism. It is therefore vital to use the right strategies during the process so people know what a Bill of Rights does. Otherwise, dialogue processes will serve to accentuate existing divisions within society. Sarkin aptly sums up the situation: ‘inclusivity can inspire a sense of national ownership; a non-inclusive process can be a source of tension and further division’.53 A contributing factor to a non-inclusive process is a lack of resources. If a process lacks funding, this will impact negatively on its ability to increase public knowledge and ownership of any Bill of Rights/Charter. Not only does the process need to be well resourced financially, it also needs to be well resourced in human terms. Thus, this requires the support of a secretariat to advance the process and to provide the necessary outreach to ensure civic and political participation. Furthermore, for the sake of the credibility of the process, it is important that deadlines are set and met to keep momentum alive. If there is a huge gap between the various drafts of the Bill of Rights, the public may become disillusioned and disheartened by the whole process. On the other hand, it is important not to underestimate the time it takes to draft a Bill of Rights/Charter. If the timescale is too limited and pressurised, this will leave insufficient time for public education and reflection. It is important that rights, especially those which are contentious are not glossed over. Time needs to be taken to ensure the eventual product is actually worth the paper it is written on and reflects the country’s particular context and stands a chance of becoming a workable proposition in the implementation phase. There needs to be time to consult with experts and interest groups. If such time is not set aside, not only could this negate the legitimacy of the Bill of Rights, it could also result in a vague and unfocused process. The implications of failing to do this were aptly illustrated in the drafting of the South African Interim Bill of Rights as the drafters began ‘working against time’ and in the words of Du Plessis and Corder, this was ‘to the detriment of the process’.54 One way to ensure that deadlines are met while at the same time making sure there is a realistic timescale so people do not feel pressurised, is to establish a special committee, which is what happened in the drafting of the 1996 South African Final Bill of Rights. A Management Committee oversaw the whole project and ensured that deadlines were met, in particular the final deadline of 8 May 1996.55 As Ebrahim rightly states, ‘timekeeping … was an essential ingredient in the … recipe for success.

53 J Sarkin, ‘The Drafting of South Africa’s Final Constitution from a Human Rights Perspective’ (1999) 47 American Journal of Comparative Law 67, 86. 54  H Corder and L du Plessis, Understanding South Africa’s Transitional Bill of Rights (Juta & Co Ltd, 1994) 46. 55  This was comprised of 12 members who met once a week throughout the process.

32  The Irish Yearbook of International Law 2016–17 Confronted with the hard reality of a two-year deadline,56 it was clear that unless structures worked according to plan, the constitution would not be completed by 8 May 1996’.57 The final deadline was met and is arguably partly due to the pivotal role of the Management Committee. As the following section will show, the drafting processes preceding the NIHRC’s advice on a Northern Ireland Bill of Rights and the Joint Committee’s advice on an all-island Charter are suggestive of these and other difficulties. BILL OF RIGHTS AND CHARTER PROCESSES

Before examining the processes, it is important to examine the distinct historical and legal trajectories between the two processes and the specific provisions in the Belfast/Good Friday Agreement relating to a Northern Ireland Bill of Rights and an all-island Charter. This contextual background is important as it shows how both the Northern Ireland Bill of Rights and the all-island Charter were launched in a difficult political environment. An environment that is fair to say was and is still not embracing the rights-based approach as set out in the 1998 Agreement. Background Context Bill of Rights The origins of a Northern Ireland Bill of Rights can be traced back to the mid-1960s when Sheelagh Murnaghan, an elected member of the newly formed Ulster Liberal Party, attempted on four separate occasions to initiate legislation on a Bill of Rights in the Northern Ireland Parliament. On each occasion she failed to garner sufficient support amongst the Unionist parties dominant in the Stormont Parliament at that time.58 When serious civil unrest broke out in Northern Ireland in the late 1960s, some held the view that if Murnaghan’s earlier proposals on a Bill of Rights had been passed by Northern Ireland’s Parliament, much of the later conflict could have been avoided.59

56 This deadline was set under the Interim Constitution which included an Interim Bill of Rights (­Chapter 3). The Interim Constitution contained 34 constitutional principles from which the Final Constitution and Bill of Rights could not deviate. The constitutional principles stipulated that the newly elected parliamentary body, the Constitutional Assembly, had two years (May 1996) to draft a Final Constitution and Bill of Rights which would be the cornerstone of democracy in South Africa and which should also enjoy the support and allegiance of all South Africans. See section 73(1) of the Interim Constitution. 57  H Ebrahim, The Soul of a Nation: Constitution-making in South Africa (Cape Town, Oxford University Press, 1998) 182. 58  C Harvey and A Schwartz, ‘Designing a Bill of Rights for Northern Ireland’ (2009) 60 Northern Ireland Law Quarterly 181; and C Rynder, ‘Sheelagh Murnaghan and the Ulster Liberal Party’ (Summer 2011) 71 Journal of Liberal History 15–16. 59  M Hayes, Minority Verdict: Experiences of a Catholic Public Servant (Blackstaff Press, 1995) at 81.

Articles—Smith and Green 33 The momentum around a Bill of Rights for Northern Ireland took place a number of years later, arising consistently at key constitutional moments over the following decades. In the period from 1972–1998, there were a number of constitutional moments in which proposals for a Bill of Rights for Northern Ireland were routinely discussed. In 1972 the Northern Ireland Parliament60 was dissolved after 50 years61 and replaced by direct rule from Westminster.62 The UK Government embarked on a series of consultations with the political parties in Northern Ireland to find a system of government acceptable to the majority of people of Northern Ireland. Each consultation proposed various systems of self-rule alongside a Bill of Rights that could contribute to a stable system of government for Northern Ireland. This constitutional debate continued into the mid-1980s with the signing of the Anglo-Irish Agreement which provided the Irish Government with a consultative role in the administration of Northern Ireland for the first time.63 The two main Unionist parties opposed the inter-governmental agreement and they subsequently refused to engage in government consultations. From the early 1990s consultations again took place on the devolution of power to Northern Ireland and, following the ceasefires in the mid-1990s, multi-party peace talks commenced involving the British and Irish governments and the ­Northern ­Ireland political parties. This culminated in the signing64 of the 1998 Agreement which agreed power-sharing arrangements for a new Northern Ireland Legislative Assembly. This Assembly would act, along with the other institutions in N ­ orthern Ireland, in accordance with the ‘European Convention on Human Rights and any Bill of Rights’.65 The 1998 Agreement therefore helped move the debate on a Northern Ireland Bill of Rights from an abstract to a very concrete phase. However,

60  The division of Ireland in 1921 resulted from an initial attempt to give some form of independence to the whole of Ireland (the 32 counties). The Irish Free State (consisting of 26 counties) came into existence in 1922 whilst the six counties of Ulster became ‘Northern Ireland’ and remained under UK sovereignty with its own Parliament established the same year. This political move was opposed by Protestants in Ireland, who became the minority in the new Irish jurisdiction, as well as by a substantial Catholic minority within Northern Ireland whose identity was linked to the emerging Irish state. Thus, the polarisation of the two communities was built from the inception of the state along religious and political lines. Religious affiliation thus came to define political identity and became the means by which the state characterised citizenship and loyalty. These incompatible objectives were broadly, on the one hand, the desire of the Catholic community for the political integration of Northern Ireland with the Irish Free State (1922–1948)/Irish Republic (1948 onwards) and, on the other, the wish of their Protestant counterparts for the territory and governance of the jurisdiction to remain the responsibility of the UK. 61  Northern Ireland Office, The Future of Northern Ireland: A Paper for Discussion (October 1972) para 12: ‘The most striking feature of the executive government of Northern Ireland throughout this period of more than half a century was its virtually complete concentration in the hands of a single political party, the Ulster Unionist Party’, available at http://cain.ulst.ac.uk/hmso/nio1972.htm#part2, and in hard-copy at the Linenhall Library Belfast (LHL-P209) (last accessed 3 May 2018). 62  Northern Ireland (Temporary Provisions) Act 1972, ch 22, s 1(1). 63  Anglo-Irish Agreement 1985, Article 2, available at http://cain.ulst.ac.uk/events/aia/aiadoc.htm#b (last accessed 3 May 2018). 64  Signed by the British and Irish Governments, and all the Northern Irish political parties with the exception of the Democratic Unionist Party (DUP) and UK Unionist Party (UKUP). 65 GFA, ‘Strand One: Democratic Institutions in Northern Ireland’. This proposal is repeated four times in Strand One.

34  The Irish Yearbook of International Law 2016–17 the wording of the main provision for a Bill of Rights in the 1998 Agreement has been problematic: The new Northern Ireland Human Rights Commission will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the European Convention on Human Rights—to constitute a Bill of Rights for Northern Ireland.66

Among the issues for consideration by the Commission will be: the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.67

Experience elsewhere shows that countries that have adopted a Bill of Rights, such as South Africa, Zimbabwe and Canada, have done so within a political process and are often drafted by politicians as part of the constitution-making process. In Northern Ireland, the Agreement gave the task of advising on a Bill of Rights to the NIHRC and there was an assumption that political discussions would then take place, following the submission of the Commission’s advice. During the negotiations leading to the 1998 Agreement the political parties agreed on a proposal for a Bill of Rights but did not spend time deliberating on the contents of the Bill.68 Rather, the issues for both governments and the Northern Ireland political parties were the constitutional relationships between Great Britain, Ireland and Northern Ireland alongside the arrangements for a new power-sharing Executive and Legislative Assembly. The deliberations also focused on proposals for institutional change, such as policing and criminal justice, and the decommissioning of weapons. The discussions on human rights received less time during the negotiations and the sections on the Bill of Rights were drafted into the Agreement at the later stages in what has been described as ‘a somewhat haphazard way’.69 According to one civil servant, even the 66 

GFA, ‘Rights, Safeguards and Equality of Opportunity’, para 4, 16–17. There are other references to a Bill of Rights, see ‘Strand One, Democratic Institutions in Northern Ireland, Safeguards’, 5. ‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission; (c) arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’; ‘Operation of the Assembly’, 11.‘The Assembly may appoint a special Committee to examine and report on whether a measure or proposal for legislation is in conformity with equality requirements, including the ECHR/Bill of Rights’; ‘Legislation’, 26. ‘The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR and any Bill of Rights for Northern Ireland supplementing it which, if the courts found to be breached, would render the relevant legislation null and void.’ 68  A Smith, ‘The Drafting Process of a Bill of Rights for Northern Ireland’ (2004) Public Law 526. 69  S Livingstone, ‘Human Rights in Northern Ireland: In from the Margins?’ in I Bacik and S ­Livingstone (eds), Towards a Culture of Human Rights in Ireland (Cork, Cork University Press, 2001) 57. 67 Ibid.

Articles—Smith and Green 35 transferral of responsibility to the NIHRC was done in a ‘fairly cursory manner, it wasn’t that people spent hours on it’.70 This was also the case for a number of other key proposals, such as the clauses on victims that were also drafted during the final stages of the negotiations. While it was vital to secure agreement on issues at the macro level between the various negotiating parties, it is also recognised that enhancing equality and greater protection of human rights is fundamental to the constitutional arrangements in post conflict societies. As comparative and international experience shows, Bills/Charters of Rights are important as they aim to provide legal protection for fundamental rights as a practical matter and place them beyond the reach of any government. This helps to ensure that the protection of fundamental rights is ‘not at the mercy of changing governmental policies and programmes’.71 Placing fundamental values and rights beyond government is particularly important for post-conflict societies where parliamentary politics has failed or where discriminatory practices existed. As noted earlier, derogations from human rights protection were identified as being amongst the key factors that sustained, and prolonged, the Northern Ireland conflict.72 It is also the case that the contested legacy over human rights in Northern Ireland meant that the proposal for a Bill of Rights was launched in a difficult political context. Given the contested legacy of human rights in Northern Ireland it was not left to the politicians in Northern Ireland to negotiate and develop a Bill of Rights. Many argue that a Bill of Rights for Northern Ireland was removed from the political process here because it was recognised that it would not progress if left solely to the Northern Irish parties.73 As we know, the Agreement established a new and independent human rights commission to advise the UK Government on a Bill of Rights for Northern Ireland, which would be passed as Westminster legislation. However, the Agreement’s main provision relating to the Bill of Rights did not make it easy for the NIHRC. Perhaps the most problematic phrase has been ‘the particular circumstances of Northern Ireland’. The 1998 Agreement does not specify what these are which has resulted in a wide range of views on what these ‘particular circumstances’ are. On the one hand, there are those who argue that this phrase should be interpreted narrowly and should not result in creating new rights for Northern Ireland. Groups and political parties representing mainstream political unionism and culture are advocates of this school of thought: It [the NIHRC] was not mandated to devise a new bill of rights or to change our socioeconomic context through the creation of numerous new rights.74 70  Interview with a civil servant from the Irish Secretariat, Belfast, October 2002, quoted in A Smith, A Dialogic Approach to Constitutionalising Equality: Lessons from South Africa and Canada for Northern Ireland (unpublished PhD Thesis, Ulster University, November 2007) 243. 71 A Eide and A Rosas, ‘Economic, Social and Cultural Rights: A Universal Challenge’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd edn (Leiden, ­Martinus Nijhoff, 2001) 6. 72  B Dickson, ‘The Protection of Human Rights—Lessons from Northern Ireland’ (2000) 3 European Human Rights Law Review 213. See also O Grech, Human Rights and the Northern Ireland Conflict: Law, Politics and Conflict, 1921–2014 (Abingdon, Routledge, 2017). 73  A Smith, M McWilliams and P Yarnell, Advancing a Bill of Rights For Northern Ireland (Transitional Justice Institute, Ulster University, 2014) 23. 74  Mr Kennedy, Northern Ireland Assembly, Private Members’ Business on the NIHRC (3 November 2009), http://archive.niassembly.gov.uk/record/reports2009/091103.htm (last accessed 3 May 2018).

36  The Irish Yearbook of International Law 2016–17 [the words of the phrase ‘the particular circumstances of Northern Ireland’] do not open the door to economic, social and cultural rights.75

On the other hand, advocates from the expansive school of thought argue that as Northern Ireland is emerging from conflict where the denial of human rights and discrimination against the Catholic minority was a contributing factor to the conflict, any Bill of Rights should reflect the needs and experiences of people that are related to the conflict such as socio-economic rights. Nationalist parties alongside non-­ governmental organisations (NGOs), community groups, trade unions and other civil society organisations favour this expansive approach. Speaking specifically about the inclusion of socio-economic rights, some of the political parties have stated that: had we [Northern Ireland] had a [Bill of Rights] in the 1960s whenever people like Sheelagh Murnaghan were advocating a Bill of Rights, we might have avoided some of the issues that exploded into the civil rights campaign and in particular socio-economic rights … one of the principle problems … was the allocation and distribution of housing and if we’d had them—[socio-economic rights] we might not have had that problem or we could have managed that problem differently … I say the same in relation to jobs. If we had a human rights charter in relation to the area of job discrimination and equal opportunity we could have perhaps avoided some of those problems because job discrimination was another aggravating factor that gave rise to the civil rights campaign and the Troubles ultimately.76

The same politician suggested that: ‘political rights [need] to be protected and that’s to be the core, and then [include] the outer core of socio-economic rights … the marriage of those two things I think is important …’77 The Alliance Party, also in favour of socio-economic rights, adopts the approach that: ‘there is a need for socioeconomic rights but I think a more minimalist approach to that aspect of it is likely to gain more traction’.78 Sinn Féin goes further regarding socio-economic rights as essential and rejected any decoupling of one set of rights from another: Our view all along is that the Bill … should be fully inclusive of economic, social and political rights[reflecting] the particular circumstances extend beyond the very narrow view that the British government have of the conflict here and the broader view needs to be included. That includes housing, employment …79

It is this approach that the NIHRC subsequently adopted when submitting its advice to the British Government as the advice was fully inclusive of socio-economic and political rights. In clear recognition of the link between process and legitimacy, the NIHRC set out supplementary guidelines for the discussion of the ‘particular circumstances of Northern Ireland’ when submitting its final advice.80 Hindsight suggests, for example, that inclusion of the term ‘particular circumstances of Northern

75  Miss Mcllveen, Northern Ireland Assembly, Private Members’ Business on the NIHRC (3 ­November 2009), http://archive.niassembly.gov.uk/record/reports2009/091103.htm (last accessed 3 May 2018). 76  Interview, 1 May 2013. 77  Interview, 1 May 2013. 78  Interview, 2 October 2013. 79  Interview, 7 June 2013. 80 NIHRC, ‘A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland’ (10 December 2008), Appendix 1 for supplementary guidelines for the discussion of the ‘particular circumstances of Northern Ireland’ to which the Commission may have regard.

Articles—Smith and Green 37 Ireland’ has had a negative effect on the debate. The language used was part of the constructive ambiguity of the 1998 text.81 The term ‘the legacy of communal division including high levels of deprivation’ might have served the Bill of Rights debate better. What also might have served the Bill of Rights debate better would have been selecting a more sophisticated formulation of another problematic phrase, that is the duty to ‘consult and advise’. The NIHRC’s mandate to ‘consult and advise’ was also interpreted differently. Those associated with political unionism argued for a narrow interpretation. Accordingly, under such an interpretation the NIHRC was invited to advise only on the ‘scope for defining rights’ supplementary to the ECHR. Proponents of this school of thought took the view that when the NIHRC chose ‘not to confine itself to advising on the scope for defining the requisite rights but to advise on the requisite rights themselves’,82 it exceeded their mandate as it was ‘not asked to draft a Bill of Rights (or something that looked uncannily like it)’.83 Others favoured the NIHRC’s broad interpretation of its mandate and agreed that the mandate, as outlined in the Agreement, was intended to be broad.84 The Agreement therefore did not make it easy for the NIHRC as it was presented with a formidable constitutional task. The Joint Committee’s work on an all-island Charter has also been complicated by the wording of the Agreement An All-Island Charter of Rights The idea of addressing human rights issues on an all-island basis appears as far back as the Sunningdale Agreement85 in 1973 and recurs in subsequent attempts to reach a political agreement in the period between then and 1998. Sunningdale included proposals to establish a power-sharing Executive in Northern Ireland and a crossborder Council of Ireland. It envisaged the Council of Ireland considering, inter alia, ways to incorporate the principles of the ECHR into domestic legislation in each part of Ireland and making recommendations on whether or not other measures were required ‘in either part or embracing the whole island to provide additional protection in the field of human rights’.86 Sunningdale collapsed within six months in the face of a withdrawal of unionist support and widespread strike action organised by the Ulster Workers Council, which represented unionist and loyalist workers. The possibility of a common or collaborative approach to rights protection across the island reappeared in the Anglo Irish Agreement (AIG) in 1985 with a more

81  J Dingley, ‘Constructive Ambiguity and the Peace Process in Northern Ireland’ (2005) 13(1) Low Intensity Conflict & Law Enforcement (2005) 1, available at http://dx.doi.org/10.1080/0966284050022 3531(last accessed 3 May 2018). 82  NIHRC, ‘Making a Bill of Rights for Northern Ireland: A Consultation by the Northern Ireland Human Rights Commission’ (September 2001) 14. 83 Ibid. 84  NIHRC, ‘Summary of Submissions on a Bill of Rights’ (July 2003) 19. 85 The Sunningdale Agreement (9 Dec 1973), available at http://cain.ulst.ac.uk/events/sunningdale/ agreement.htm (last accessed 3 May 2018). 86  Ibid para 11.

38  The Irish Yearbook of International Law 2016–17 pointed focus on Northern Ireland.87 The AIG gave the Irish Government a consultative role in the government of Northern Ireland via an Intergovernmental Conference which would meet regularly to consider political, legal and security matters along with the promotion of cross-border co-operation. Within the ambit of political matters, it was envisaged that the Conference would address the need for measures to accommodate the rights and identities of the two traditions in Northern Ireland and to protect human rights and prevent discrimination.88 Of particular note in the AIG was the assertion that this consideration of human rights issues would be ‘mainly concerned with Northern Ireland’.89 Although, like Sunningdale, the AIG was widely opposed by unionism, it remained in place until it was superseded by the Belfast Agreement in 1998. Sunningdale and the AIG notwithstanding, the genesis of the concept is more often traced to the Joint Framework Document 1995 which was published jointly by the British and Irish governments to assist discussions and negotiations involving the political parties in Northern Ireland. The Protection of Rights section of the document carries an elaboration of what an all-island Charter might contain90 and the text of the Charter provision in the 1998 Agreement draws directly from it.91 The lineage of the Charter concept, including in particular the Framework document elaboration on what it might contain, may be interpreted to reflect a persistence at government level with the need to develop human rights protections on an all-island basis. The wording of the Charter provision in the Agreement, on the other hand, is confined to a single paragraph: The Joint Committee will consider, among other matters, the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland.92

This single sentence paragraph raises three important points with implications for the drafting process. One, the 1998 Agreement’s focus is restricted to purpose, suggesting that a Charter of Rights for the island of Ireland should reflect and endorse measures for the protection of rights of everyone living in the island. Two, the wording of the Charter provision in the Agreement described it as no more than a ‘possibility’. Three, the reference to signature by all political parties suggest this is not intended to be legally binding, but more of an aspirational statement of common values. From the outset, the Joint Committee’s task of consideration of a Charter and of generating interest in and support for the concept of a Charter was therefore going to be an uphill one. The Agreement therefore did not make it easy for both the Joint Committee and the NIHRC as they were presented with a formidable constitutional task. For the Charter to succeed, it would need to be taken forward by the

87 

Anglo-Irish Agreement (15 Nov 1985) (Cmnd 9657, 1985). Ibid Article 5(a). 89  Ibid Article 5(b). 90  A New Framework for Agreement, Ir-UK., 22 February 1995, 34 ILM 946 (1995), paras 51–53. 91  See ibid para 51 and GFA, ‘Rights, Safeguards and Equality of Opportunity’, para 10. 92  GFA, ‘Rights, Safeguards and Equality of Opportunity’, para 10. 88 

Articles—Smith and Green 39 political parties and both the British and Irish governments. For the Bill of Rights to succeed, it would need to be taken forward by the sovereign government and passed as UK legislation as laid out in the Agreement. However, 20 years on, neither the Bill of Rights nor the Charter has come to fruition. Although both of these potential human rights instruments are now parked in the same political cul-de-sac, their respective journeys to this destination have been markedly different. PROCESSES

Bill of Rights The NIHRC championed the Bill of Rights and made strenuous efforts to make the process deliberative, open and popularised the process from the outset. Indeed the launch of the Bill of Rights process in March 2000 has been described as: a textbook performance of what everything should be, there was DUP getting up saying this, there was a cross-section of most, from one spectrum to the rest. There was people cutting across that debate, there was the internationalisation of the debate, the room was packed with people who had no engagement with human rights at all. … there were all these people that weren’t from the human rights community, weren’t from the NGO world, young people’s groups … bringing up things and having concerns, wanting to address it, and there was moving forward.93

Stretching over an eight-year period, the process involved the following, all of which reflect the principles of deliberative democracy: engaging in an extensive range of consultations resulting in the publication of a number of consultation papers and discussion pamphlets; carrying out and publishing opinion surveys; education, training and awareness-raising programmes to assist those who wished to contribute to the debate; the training of community facilitators; a schools programme; and an extensive range of relevant workshops, conferences, information events and public and private meetings with individuals, political parties and various groups.94 The NIHRC received over 650 formal submissions from individuals and agencies.95 Of particular importance for the credibility of the drafting process was that the NIHRC evidenced a willingness to respond positively to criticism, modifying, for example, its initial proposals relating to the proposed rights to culture, identity and language in response to feedback received.96 Responsiveness of any process is the most difficult to assess and it is therefore commendable that the NIHRC was responsive to the feedback on this particular controversial issue.97

93  Interview with a former member of the NIHRC (Derry, May 2003), cited in Smith (n 70) 248. The Bill of Rights process was launched in both Belfast and Derry. 94  NIHRC (n 80) 10–13. 95  NIHRC (n 80) 10. 96  Harvey and Schwartz (n 58) 187–88, 194. 97 For more detail on the controversy on the proposed rights to culture, identity and language, see A Smith, ‘Internationalisation and Constitutional Borrowing in Drafting Bills of Rights’ (2011) 60 International Comparative and Law Quarterly Review 867.

40  The Irish Yearbook of International Law 2016–17 The Commission also met regularly with the Human Rights Consortium which was established in 2000, independent of the Commission, and which was engaged in an intensive awareness-raising campaign on the Bill of Rights.98 The Commission’s deliberations included a rigorous consideration of the recommendations of the Bill of Rights Forum which included representation from all the main political parties in Northern Ireland and various sections of civic society.99 This particular aspect of the process deserves particular attention as it brought together political parties and civil society to discuss the Bill of Rights. The Bill of Rights Forum was comprised of 28 members with 14 representatives from civil society and 14 representatives from the main political parties100 and was chaired by an independent human rights expert, Chris Sidoti.101 The Forum’s terms of reference were consistent with the NIHRC’s mandate as set out in the 1998 Agreement: to produce agreed recommendations to inform the Northern Ireland Human Rights Commission’s advice to Government on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international human rights instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and—taken together with the ECHR—to constitute a Bill Rights for Northern Ireland.102

When the Bill of Rights Forum handed over its 245 page report to the NIHRC in March 2008,103 it concluded that the Forum was unable to reach a ‘clear and public agreement’ and that it had instead presented a range of options as part of

98 

NIHRC (n 80) 11. (n 80) 13. The Bill of Rights Forum was created by the Joint Declaration by the British and Irish Governments, April 2003, Annex 3, para 3. Harvey and Schwartz quote from a previous Chief Commissioner of the NIHRC, Professor Brice Dickson, who suggested that the idea for a Bill of Rights Forum was first proposed by the Social Democratic and Labour Party (SDLP), B Dickson, ‘Where now for the Bill of Rights?’ (February 2009) Fortnight 11, quoted in Harvey and Schwartz (n 58) 188. A further commitment to move the establishment of a Bill of Rights Forum is contained in the proposals for a Comprehensive Agreement published by the two governments in December 2004. Annex A details actions to be taken by the Government in the context of an agreement and stated: ‘Secretary of State further consults with parties and announces arrangements for an independently facilitated forum on a Bill of Rights for Northern Ireland including details of independent facilitator’. See ‘Proposals by the British and Irish Governments for a Comprehensive Agreement’, Annex A—Timetable (8 December 2004), available at http://cain.ulst.ac.uk/events/peace/soc.htm#2004 (last accessed 3 May 2018). The establishment of such a Forum was then included in the St Andrews Agreement 2006, an agreement between the Executive’s political parties and the two governments. Agreement at St Andrews 2006, ‘Human Rights, Equality, Victims and Other Issues’ Annex B; Agreement at St Andrews: ‘We will establish a forum on a Bill of Rights and convene its inaugural meeting in December 2006’, available at www.gov.uk/government/uploads/ system/uploads/attachment_data/file/136651/st_andrews_agreement-2.pdf (last accessed 3 May 2018). 100 Civil society representation included two seats for trade unions, two for employers, two for churches, one for the human rights NGO sector and seven for the community and voluntary sector. The political parties comprised three seats for the DUP, Sinn Féin, Ulster Unionist Party and the SDLP and two seats for the Alliance Party. This composition was modelled on the Preparation for Government sub-committee. 101  Chris Sidoti, an Australian human rights lawyer, former Director of the International Service for Human Rights and a former Australian Human Rights Commissioner, was appointed in March 2007. 102 Bill of Rights Forum, ‘Final Report: Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland’ (31 March 2008) at 6. 103 Ibid. 99  NIHRC

Articles—Smith and Green 41 its ­findings.104 Although the Forum did not lead to a consensus on the content of a future Bill of Rights, many of those participating agreed that it was useful in the sense of getting politicians around the table to talk. As the Chairperson concluded later, ‘they [the politicians] learned the perspectives—both rational and prejudiced—of others in the community with whom they might never previously had such conversations’.105 However, one interviewee noted that while he found the process to be an interesting exercise and certainly what went on at a Committee stage or in terms of the working groups, the discussions were useful, informative, educative […] when push came to shove in the final report people backed-away, politicians backed away from signing up the stuff they had actually, apparently, been interested in or engaged in at the working group stage and because there was no end process in sight, there was no point, from the political negotiation perspective of showing their cards too early or giving away too much.106

Another participant of the Forum noted that the process ‘was too top heavy’.107 Although the process resulted in little political consensus, the NIHRC welcomed the Forum’s findings and agreed to pay ‘rigorous attention to the proposals contained in the Forum Report, with each of its proposals considered in detail’.108 On receipt of the Forum’s advice, the NIHRC publically stated its intention to submit its advice on a Bill of Rights to the Secretary of State for Northern Ireland on 10 December 2008. Having met this deadline, the NIHRC’s advice was published on 10 D ­ ecember 2008.109 It took the form of a comprehensive report detailing the Commission’s advice on the content of a Bill of Rights, addressing the rationale for the inclusion of each specific right recommended for inclusion. It dealt with the issues of enforcement, derogation and implementation. It also addressed the Commission’s methodology and, in clear recognition of the link between process and legitimacy, set out in considerable detail how it had approached the fulfilment of its remit. Although the NIHRC’s final recommendations on a Bill of Rights attracted a degree of criticism from across the political spectrum and two out of the nine commissioners dissented from the final advice,110 the process the Commission had engaged in to arrive at its advice was broadly welcomed by human rights activists and acknowledged as meticulous, fair-minded and robust.111 This was clearly expressed by a community representative: I think they’ve tried to be as inclusive as possible and we’ve had a lot of advertisements about it and they really have tried to reach as many people as possible. I mean they have 104 The key areas of disagreement were what constituted the ‘particular circumstances’ of Northern Ireland; cultural and identity rights; and social and economic rights. Bill of Rights Forum, ibid 70, 73, 86, 102. 105  C Sidoti, ‘Talking in a Safe Space: The Experience of the Northern Ireland Bill of Rights Forum’ (Australian Catholic University, April 2009) 8, available at www.acu.edu.au/__data/assets/pdf_ file/0013/201316/chris_sidoti_northern_ireland_paper.pdf (last accessed 3 May 2018). 106  Interview, 6 November 2013. 107  Interview, 19 February 2014. 108  NIHRC (n 80) 13. 109  NIHRC (n 80). 110  The two commissioners who dissented were Mr Jonathan Bell and Lady Daphne Trimble. Both are from mainstream political unionism. 111  Smith, McWilliams and Yarnell (n 25) 33. See also Committee on the Administration of Justice’s submission to the Northern Ireland Office (NIO) on ‘A Bill of Rights for Northern Ireland—Next Steps’ (Committee on the Administration of Justice, 2010) 3.

42  The Irish Yearbook of International Law 2016–17 been very supportive and they have offered us to help … in ways in which we can raise the profile.112

As noted earlier, the NIHRC championed the Bill of Rights from the outset. Responding to the Agreement’s vision of the realisation of a higher level of rights protection than afforded by the ECHR provisions,113 it included economic, social and cultural rights in its recommendations for a Bill of Rights,114 along with a number of other rights which it considered would reflect the ‘particular circumstances of Northern Ireland’.115 The Commission took the position that all the recommendations were capable of judicial enforcement. The Commission also adopted a number of innovative recommendations, including annual reporting to the Northern Ireland Assembly and the Westminster Parliament on progress, as well as the establishment of a Human Rights Committee in the Assembly and a five-year independent review. The Commission also recommended that the Bill would apply to both the Assembly and the Executive and have vertical as well as horizontal application. Underscoring this proactive, enthusiastic and robust approach, the Commission ultimately challenged in a public and forthright way the Northern Ireland Office’s (NIO) effective rejection of their recommendations.116 All-Island Charter The process adopted by the Joint Committee of the NIHRC and the IHREC117 in arriving at its eventual advice to the British and Irish governments on an island-wide Charter sits in stark contrast to the above, similar only in the timeframe it took to complete. Whilst some of the factors which impacted adversely on the process may not have been of the Joint Committee’s making, others cast a degree of justifiable criticism in its direction regarding how it developed the concept. The Committee’s early consideration of a Charter was premised on the working assumption that the parties to the Agreement were committed to the principle of an all-island approach to the protection of human rights and that a Charter of Rights

112 

Interview, October 2002 cited in Smith (n 70) 248. Meehan, ‘Towards a Northern Ireland Bill of Rights’ (2001) 23 Liverpool Law Review 33, 41–42. 114  See NIHRC (n 80). 115  GFA, ‘Rights, Safeguards and Equality of Opportunity’, para 4. The recommendations include: the right to life; right to liberty and security; right to a fair trial and no punishment without trial; right to marriage or civil partnership; right to equality and prohibition of discrimination; democratic rights; education rights; freedom of movement; freedom from violence, exploitation and harassment; right to identity and culture; language rights; rights of victims; right to civil and administrative justice; right to health; right to an adequate standard of living; right to accommodation; right to work; environmental rights; social security rights; children’s rights. 116 NIHRC, ‘A Bill of Rights for Northern Ireland: Next Steps, Response to the Northern Ireland Office’ (November 2009). 117  The NIO’s response supports the inclusion of only two out of the 78 recommendations put forward by NIHRC. These are the right to vote/be elected and the right to identify oneself and be accepted as British or Irish or both. NIO, A Bill of Rights for Northern Ireland: Next Steps (Northern Ireland Office, November 2009) 34, 42. 113 M

Articles—Smith and Green 43 with cross-jurisdictional character might form the basis for this.118 The expectation (as was the proposal in the Agreement) was that the Committee’s advice would then be taken forward both by the political parties and the two governments. That advice was then to be developed by the two legislatures. However, while such a generous interpretation of the position of the parties to the Agreement might have been justified in the immediate aftermath of the Agreement’s adoption and its overwhelming endorsement in referenda in both parts of the island, the limited response to the Committee’s 2003 Pre-Consultation Paper on a Charter119 must have alerted the Committee to a prevailing disinterest in the issue. Of just 121 bodies which were asked to give their views on the issue, less than 30 offered substantive replies.120 Only two political parties responded, the Alliance party and Sinn Féin,121 debunking immediately the Joint Committee’s early assumptions. The lack of political interest was epitomised when the Speakers in both legislatures (Dáil Éireann and the Northern Ireland Assembly) did not accept the Joint Committee’s proposal and failed to take it forward. Indeed the Speaker of the Northern Ireland Assembly refused to formally accept the Committee’s proposal from the NIHRC and agreed to have it placed in the Assembly’s library for consideration by the Assembly Members.122 The focus in the Assembly was on the Northern Ireland Bill of Rights. If the Speaker was unwilling to accept the presentation of the advice on the Charter, then the process was never going to proceed to any further consultation. It should therefore be acknowledged that the Committee’s task of generating interest in and support for the concept of a Charter was an uphill one, compounded by several factors. One, the wording of the Charter provision in the Agreement which described it as no more than a ‘possibility’; two, a prevailing logic that the Charter might better be considered when the Bill of Rights process had been completed;123 and finally, the lack of political as well as civic leadership. From the outset, and by default, the Charter was thus consigned to secondary status. As noted earlier, the process by which a Bill or Charter of Rights is drafted has a key role to play in both influencing its content and securing broad support for its adoption.124 Smith, reflecting on the Canadian approach to the development of the Canadian Charter, highlights the importance of process in conceptualising a Bill of Rights.125 A public consultation process impacts directly on the content and

118 Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights Commission, ‘A Charter of Rights for the Island of Ireland: Pre-Consultation Paper’ (May 2003) [Hereinafter referred to as ‘the Pre-Consultation Paper’] para 5. 119 Ibid. 120  M Manning, ‘Paper on a Charter of Rights for the Island of Ireland’ (University College Cork, 2 October 2004) on file with authors. 121 Ibid. 122  The Speaker of the Northern Ireland Assembly (William Hay) at that time was a member of the DUP. 123  The Pre-Consultation Paper (n 118) para 7; Irish Council for Civil Liberties (ICCL), ‘­ Charter of Rights Response’ (2004) 17, available at www.iccl.ie/wp-content/uploads/2017/11/charterresponse_ 2004-1.pdf (last accessed 3 May 2018). 124  Smith (n 44) 343. 125  Smith (n 44) 345.

44  The Irish Yearbook of International Law 2016–17 ­ ording of a Bill of Rights.126 It confers a high degree of legitimacy on and a sense w of public ownership of the document.127 According to Murray, survey results have demonstrated that the scale of public participation in the construction of a South African Bill of Rights succeeded in creating a sense of public ownership in it.128 In Canada, maximising public participation in the shaping of the Canadian Charter of Rights built a momentum behind the Government’s position at a critical time when it met with provincial resistance to its proposal for an entrenched Bill of Rights.129 This ‘bottom-up’ approach which preceded the introduction of the Canadian Charter of Rights both raised awareness of the Charter and enhanced its legitimacy.130 Moreover, commentators have noted the positive impact public participation in its definition had on the Canadian judiciary.131 The Joint Committee’s initial thinking reflected the importance of consultation in validating the process as it clearly signalled plans for a wider consultation in their Pre-Consultation Paper.132 However, there was a limited response to its pre-­ consultation process. Those that did respond cautioned against merely adding another level of complexity to the plethora of existing mechanisms, given the multiplicity of human rights instruments already at the disposal of human rights advocates and g­ overnments.133 Egan and Murray, at a later point, similarly criticised the Joint Committee for failing to carry out an evaluation of the existing gaps between national law and international law as a precursor to a fuller consideration of the viability of a ­Charter.134 However, one must remember that this was a cross jurisdictional process so the Joint Committee had first to do an enormous amount of work to compare the rights that applied in each jurisdiction and identify the gaps with a finite budget. The Northern Ireland Office did not provide any funding for this work and both governments expected the Joint Committee to do this without additional resources. Credit therefore must be given to both the former Chairs of the Joint Committee NIHRC (Professor Monica McWilliams and Professor Maurice Manning) in submitting the final advice. Without the enthusiasm, diligence and hard work of those committed to seeing it through, there was a real risk that it would have been buried in the long grass. Farrell describes the ‘Advice on a Charter of Rights’ as the only major piece of work completed by the Joint Committee, and no more than a modest ­contribution.135 A comparison of the Pre-Consultation Paper which it issued on a limited basis in

126 

Smith (n 44) 345. Smith (n 44) 345. 128  Murray (n 49) 405. 129  Smith (n 44) 359. 130  Smith (n 44) 360. 131  Smith (n 44) 360. 132  The Pre-Consultation Paper (n 118) para 2. 133 Combat Poverty Agency, ‘Submission to the Human Rights Commission on Joint Committee Pre-Consultation Document on an All-Ireland Charter of Rights’ (2003) para 3, available at www. combatpoverty.ie/publications/submissions/2003_Sub_HumanRightsCommission.pdf (last accessed 4 May 2018). 134  S Egan and R Murray, ‘A Charter of Rights for the Island of Ireland: An Unknown Quantity in the Good Friday/Belfast Agreement’ (2007) 56 International and Comparative Law Quarterly 797, 806. 135  Farrell (n 4) 25. 127 

Articles—Smith and Green 45 2003, with its Advice on a Charter of Rights,136 which it published in 2011, bears out his assertion that the Joint Committee’s initial enthusiasm eventually petered out.137 The disconnect between the earlier Pre-Consultation Paper and the eventual Advice is manifest. The Pre-Consultation Paper offers the view that the Agreement envisaged a Charter which is more than a declaratory document138 and which includes strong enforcement mechanisms.139 The Paper presents three possible models for consideration, detailing some advantages and disadvantages of each: Model A—a declaratory model, similar to the Universal Declaration of Human Rights, which sets out the rights the people should have and how they might be guaranteed; Model B—a programmatic model, similar to the UN’s International Covenant on Economic, Social and Cultural Rights (ICESCR), which sets out both basic principles and a programmer for their implementation;140 and, Model C—a legally enforceable Charter, like the ECHR, which sets out standards which courts in both parts of Ireland would have to adhere to when applying domestic law.141 The Paper identifies Model B, the programmatic model, as the Joint Committee’s preferred option and one that ‘… strikes the best balance between a purely declaratory approach and detailed legalistic approach’, and which, if adopted, will make a significant difference to the lives of people in both jurisdictions.142 The Paper also indicates that the Joint Committee will commission research from internationally recognised experts to identify models in use elsewhere in the world143 and, importantly, signals up the initiation of a broader consultation later in the year.144 The 2011 Advice, in contrast, recommends a Charter which includes little more than a listing of existing human rights protections common to both jurisdictions.145 Bizarrely, it makes no reference to the three models specified in the 2003 Pre-­ Consultation Paper. Significantly, and without explanation, it falls short of the Joint Committee’s preference for a programmatic model set out in the Pre-Consultation Paper and leans heavily towards a declaratory model. Proposing only a minimum framework of rights protection, it leaves the issue of whether or not the bar of human rights protection should be raised and the model a Charter might take to the politicians.146 Noticeably, it redefines somewhat the Joint Committee’s initial rationale for a Charter away from the potentially measurable objective of ‘making

136  The Advice of the Joint Committee on a Charter of Rights (June 2011) [hereinafter ‘Advice of the Joint Committee’] 4, available at www.nihrc.org/documents/charter%20of%20rights/charter-of-rightsadvice-june-2011-final.pdf (last accessed 4 May 2018). 137  Farrell (n 4) 25. 138  The Pre-Consultation Paper (n 118) para 10. 139  The Pre-Consultation Paper (n 118) para 44. 140  The ICESCR is not purely programmatic, though some rights are subject to progressive realisation. 141  The Pre-Consultation Paper (n 118) para 13. 142  The Pre-Consultation Paper (n 118) para 23. 143  The Pre-Consultation Paper (n 118) para 24. 144  The Pre-Consultation Paper (n 118) para 2. 145  Farrell (n 4) 24. 146 See M McWilliams, ‘Charting the Way Forward on Human Rights’, The Irish Times, 27 June 2011, available at www.irishtimes.com/opinion/charting-the-way-forward-on-human-rights-1.608347 (last accessed 4 May 2018).

46  The Irish Yearbook of International Law 2016–17 an appreciable difference to the lives of people’147 to the more generalised goal of ‘underpinning the peace process’.148 The absence from the Advice on a Charter of any evaluation of the various models previously proposed and the lack of feedback from the pre-consultation or explanation as to why the exercise in a wider consultation did not materialise, raises questions about the efficacy of the Joint Committee’s approach to the preparation of its Advice. Without evidence to the contrary, it can only be presumed that the promised commissioning of research from international experts did not materialise and that over the course of an eight-year period the Committee pursued only a comparatively small number of engagements on the issue. Resource problems and governmental disinterest notwithstanding, the approach of the Committee to both the development of the concept of the Charter and to the governments’ disregard149 for its advice, begs a number of questions with respect to its approach to this particular piece of work. However, rather than adding to the chorus of criticism, a more constructive approach is to put forward some suggestions of what could be done to help take the process forward. One possibility is to use a similar forum like that of the 2012–2014 Irish Constitutional Convention.150 The Convention consisted of 100 people with representatives from Irish society, politicians from the island of Ireland chaired by an Independent. The Convention made recommendations on certain matters of contention that it wished to take forward.151 The Convention’s recommendations are then sent to the Government which then pledge to hold a debate in the Oireachtas and set out its response within four months. The Convention is based on the principle of ‘participative democracy’ reflecting the ‘bottom-up’ approach outlined in this article. Decisions by the Convention can and have resulted in the Government holding a referendum on issues voted by the Convention. One successful example is the Irish Government’s decision to hold a referendum on the 22 May 2015 to extend civil marriage rights to samesex couples.152 This was as a result of a vote in the Constitutional Convention which

147 

The Pre-Consultation Paper (n 118) para 23. Advice of the Joint Committee (n 136) 2. 149  The two governments’ disinterest is evidenced by the lack of formal response to the 2011 advice. Responding to questions on the Charter in the Dáil in May 2013, the then Taoiseach, Enda Kenny, stated: ‘According to the terms of the Good Friday Agreement, the charter of rights would be for signature by the political parties. This advice should now be given serious consideration by all of the political parties on the island of Ireland. I urge our colleagues here and in the Northern Ireland Assembly to make every effort to progress this particularly important decision’. Dáil Éireann Debate, Northern I­reland Business (14 May 2013), available at http://oireachtasdebates.oireachtas.ie/debates%20authoring/ debateswebpack.nsf/takes/dail2013051400027 (last accessed 4 May 2018). 150  The Convention has now been replaced with the Irish Citizens’ Assembly. This Assembly’s first inaugural meeting was on the 15 October 2016. See the Irish Citizens’ Assembly’s website for more details, available at www.citizensassembly.ie/en/ (last accessed 4 May 2018). For further information on the Constitutional Convention (2012–2014) see the Convention’s website, available at www.constitution. ie/Convention.aspx (last accessed 4 May 2018). 151  The Resolution of the Houses of the Oireachtas sets out a list of topics for consideration by the Constitutional Convention, see www.constitution.ie/Education.aspx#video (last accessed 4 May 2018). The Convention can also ‘make such other recommendations for constitutional reform as it sees fit’, available at ibid. 152  Irish Times, ‘Same-Sex Marriage Referendum’, 22 May 2014, available at www.irishtimes.com/ news/politics/marriage-referendum (last accessed 4 May 2018). 148 

Articles—Smith and Green 47 recommended the Irish Constitution be changed to allow civil marriage for same-sex couples.153 Legislation was passed which gives effect to the result of the marriage equality referendum.154 Using his experience as a participant in the Irish Constitutional Convention to reflect on the benefits of developing a process that could lead to a more open and public process and greater collegiality amongst the parties, the Green party spokesperson stated: It’s a very public process, everything is live-streamed. There’s a steering committee which is private—things like selecting the speaker but 90% of it is live-streamed. … after all the formal business we’re all staying in the one hotel and we all, inevitably, go for dinner afterwards.155

This forum could therefore help to create a more congenial atmosphere and opened up space for discussion.156 Another possibility is the construction of a forum, similar to that created for the Northern Ireland Bill of Rights (Bill of Rights Forum), under an independent human rights expert to include the political parties and civic society from both Northern Ireland and the Republic of Ireland. Such a forum could provide the necessary political as well as civic leadership to drive the issue forward. Although the Bill of Rights Forum did not reach agreement, the process itself has been commended: The Forum was helpful, however, in gauging support for the alternate proposals and clarifying the positions of the political parties and civil society groups. It might also be argued that the process itself was of value, particularly in bringing political parties and civil society together to discuss human rights.157

Nevertheless, some in-depth analysis of the factors contributing to the continuing stalemate on the Bill of Rights will be required prior to the definition of its remit and to win support for its establishment. The Bill of Rights Forum report, and indeed the broader Bill of Rights debate, may provide some important insights in this regard, not least with respect to the origins of prevailing unionist suspicions about the rights agenda despite independent survey evidence of widespread support for a broad ranging rights bill.158 The eventual outcome of the Bill of Rights debate, with political unionism in favour of a minimalist bill and nationalists arguing for an expansive one,159 lends credibility to the argument that constitutional

153  Irish Times, ‘Constitutional Convention backs Extension of Marriage Rights to Same-Sex Couples’, 14 April 2013, available at www.irishtimes.com/news/social-affairs/constitutional-convention-backsextension-of-marriage-rights-to-same-sex-couples-1.1359910 (last accessed 4 May 2018). 154  The Marriage Act was introduced on 15 September 2015, signed into law on 29 October 2015 and came into effect on 16 November 2015. 155  Interview with a political representative, 2 May 2013. 156 For further information on the Constitutional Convention, see D Farrell, ‘The Irish Constitutional Convention Offers a Potential Route Map for Renewing UK Democracy’ Democratic Audit 2014, available at http://eprints.lse.ac.uk/63414/1/democraticaudit.com-The%20Irish%20Constitutional%20 Convention%20offers%20a%20potential%20route-map%20for%20renewing%20UK%20democracy. pdf (last accessed 4 May 2018). 157  Harvey and Schwartz (n 58) 189. 158  NIHRC (n 80) 8. 159  R Whitaker, ‘Debating Rights in the New Northern Ireland’ (2010) 25 Irish Political Studies 1, 31 and 39.

48  The Irish Yearbook of International Law 2016–17 politics played a s­ ignificant role in the disagreement. Even the briefest examination of the Bill of Rights Forum’s final report corroborates the view that party politics has a significant impact on the debate, with Ulster Unionist Party (UUP) and DUP positions almost invariably converging on one side, and Sinn Fein and Social Democratic and Labour Party (SDLP) positions converging on the other.160 Historically, of course, the demand for enhanced human rights protection in Northern Ireland has been associated with the nationalist parties and the Irish Government.161 The casting of the rights protection as a nationalist demand in both the pre and post 1998 Agreement eras, with an almost singular focus on rights issues in Northern Ireland, must surely have impacted adversely on unionism’s contribution to the debate. A more manifest recognition of the reality of rights problems island-wide might, for example, have led to a more positive outcome. While the origins of unionist suspicions about the rights agenda have been identified by many commentators, a means to assuage them remains elusive and begs some creative thinking. Propositions which open the prospect of a renewed rights debate, disaggregated from party politics and party political agendas, are in similar short supply. Nevertheless, some contributions have identified a potential focal point for an innovative approach to the rights issue which offers the prospect of re-focusing political minds on human rights protection, given particularly the rapidly changing Irish political landscape. A renewed consideration of the rights agenda in the context of both Brexit and changing demographics in Northern Ireland may yet cause the paradigm shift which Ní Aoláin suggests is required to open up the rights domain to the unionist community and which might offer them guarantees of future rights protection in the event of any change in the constitutional status of Northern I­reland.162 Finding a formula, for inclusion in a Bill/Charter of Rights, which addresses the constitutional status issue of Northern Ireland along similar lines as addressed in the 1998 Agreement, might alleviate political unionism’s suspicions about the rights agenda and liberate their engagement with the broader spectrum of rights issues. The Joint Framework Document, which preceded the 1998 Agreement, mooted such an approach.163 It is worth noting that in post-apartheid South Africa, support for a Charter or Bill of fundamental rights was almost unanimous, with the white majority coming round to the view that such a document would provide them with protections, including property rights, in the new political dispensation there.164 Any newly constituted forum needs of course to be adequately resourced and the support of a secretariat to advance this work. The process also needs to be supported by the two governments, as well as international actors whose experiences are critical to enabling political parties to reach agreement. But the two governments should also build in local institutional capacity and expertise. There is also the question of 160  For examples, see Bill of Rights Forum Final Report: Recommendations relating to the Preamble at 21; Recommendations relating to Substantive Rights at 32–34; Right to Life at 37; Right to Liberty and Security of Person at 50; Right to Nationality and Identity at 70. 161 F Ní Aoláin, ‘Human Rights in Negotiating Peace Agreements: The Good Friday Agreement’ (2005) The International Council on Human Rights Policy, Review Meeting Working Paper 2. 162  Ibid 3. 163  A New Framework for Agreement (n 90) para 52. 164  Murray (n 49) 399–400.

Articles—Smith and Green 49 ownership of the process. Initially the parties should be given the space to work out their points of agreement, and differences, but a policy framework should identify all relevant stakeholders for the later stages and advocate an inclusive process that brings in civil society in order to ensure broad support for any future all-island Charter. The Joint Committee also recommended in 2015 that the Charter become part of the business of the North–South Parliamentary Forum.165 However a year later, the NIHRC reported that ‘no further developments have occurred in 2016’.166 In recent correspondence with the IHREC we were informed that ‘there is no update on the Charter of Rights at the moment’.167 The lack of any substantive response from both governments both to the Committee’s 2011 advice and to the Committee’s recommendations to progress this issue is further evidence that both governments are failing to seriously address this issue and suggests that the governments’ position of leaving it to ‘all of the political parties on the island of Ireland … to make every effort to progress this particularly important decision’168 has prevailed. CONCLUSION

The early optimism that the 1998 Agreement might realise its potential with respect to the enhancement of human rights protection rested on a combination of its founding principles, thematic declarations and a number of its substantive provisions. Reflecting its overall aspiration, its underlying principles required the exercise of government on the basis … of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities.169

The prospect of a successful translation of this aspiration into reality is linked directly to the implementation of the full range of rights-protection measures envisaged by the Agreement. Although there has been much progress in this regard, two significant issues remain elusive, with detrimental consequences for the development of the domestic rights protection framework. The Bill of Rights for Northern Ireland, despite more than a decade long extensive consideration, has not been adopted,170 and the prospect of an all-island Charter of Rights has not yet been given a full and meaningful consideration. 165  Northern Ireland Human Rights Commission Annual Statement 2015, 86, available at www.nihrc. org/uploads/publications/NIHRC_Annual_Statement_2015.pdf (last accessed 4 May 2018). 166 Northern Ireland Human Rights Commission Annual Statement 2016, 94, available at www. nihrc.org/uploads/publications/StrictlyEmbargoeduntil00.01hrs8December2016.NIHRCAnnual Statement2016.pdf (last accessed 4 May 2018). 167  Email correspondence with the IHREC 16 March 2017, on file with the authors. 168  Dáil Éireann Debate, Northern Ireland Business available at http://oireachtasdebates.oireachtas.ie/ debates%20authoring/debateswebpack.nsf/takes/dail2013051400027 (last accessed 4 May 2018). 169  GFA, ‘Constitutional Issues’, para 1(v). 170  After the article was written and prior to publication, a leaked draft ‘Agreement’ aimed at restoring devolution in February 2018 makes reference to an ‘ad-hoc committee’ to ‘consider’ a Bill of Rights with a strong emphasis on the 1998 Agreement mandate. For more information on this see C Harvey and A Smith, ‘The Return of the Bill of Rights?’ RightsNI (29 March 2018) available at http://rightsni. org/2018/03/the return-of-the-bill-of-rights (last accessed 20 August 2018).

50  The Irish Yearbook of International Law 2016–17 This article acknowledges a variety of factors which may have impacted adversely upon the prospect for the realisation of both of these human rights instruments; including ambiguity of language within the 1998 Agreement; resource issues; the specific political context within which each of the instruments was firstly considered; lack of political leadership; and a prevailing presumption that a Bill of Rights should be agreed in advance of any deliberation about additional rights protection measures. By way of background context for contrasting the respective drafting processes of the Bill of Rights and the all-island Charter, the article, drawing on both theory and practical examples, highlights the importance of process in both the drafting of Bills/ Charters of Rights and constitution-making. The article emphasises the need for a bottom-up approach and an underpinning of such a process with principles reflective of participatory democracy, including transparency, inclusiveness, public participation and responsiveness. Maximising public participation in the drafting process establishes public ownership of the draft Bill/Charter and confers a legitimacy on the document which heightens the prospect of its eventual adoption. Against this background context, the article compares the drafting processes of both the Bill of Rights and the all-island Charter, identifies polar opposite approaches by those charged with responsibility for oversight of the respective processes and sets out possible solutions. The Bill of Rights has been the subject of rigorous process and presents as a textbook bottom-up approach, complying fully with the key markers of deliberative democracy, and standing tall as a best practice model for the facilitation of public participation in the drafting of Bills of Rights and constitutions elsewhere. By way of contrast, the all-island Charter of Rights process was a very different one as it was reliant on political as well as civic leadership to progress the issue. Hamstrung from its inception by a lack of specificity of mandate and under-resourcing, and faced with widespread indifference at government, political party and broader public level with respect to the Charter, the Committee resiled from an enthusiastic start to its work on the Charter and opted ultimately for a minimalist approach. Whilst the shortcomings of the process provide a clear rationale for a renewed consideration of the potential of an island-wide Charter, the case for such and the need to start thinking about ways forward for these two outstanding issues becomes all the more compelling when referenced against the prospect of diminishing human rights protections in a post-Brexit UK and the consequent implications for the 1998 Agreement. The Brexit-related inter-government negotiations, involving the British and Irish governments and the EU Commission, are now underway. All parties have an obligation to ensure that any withdrawal agreement protects the substance of the 1998 Agreement and does not undermine the peace that has been achieved in Northern Ireland.171 A renewed debate on both a Bill of Rights for Northern Ireland and an island-wide Charter can play a vital and timely role in informing how best to protect and enhance human rights protections in a rapidly changing political landscape on the island. 171  M O’Farrell, ‘All-Island Civic Dialogue Sectoral Consultation on Human Rights under the GFA on Post-Brexit Approaches for All-Island Human Rights Frameworks (Maynooth University, County Kildare, 13 February 2017), on file with the authors.

Crossing the Irish Land Border after Brexit: The Common Travel Area and the Challenge of Trade1 IMELDA MAHER2

While the wind of change may be about to blow the precise direction in which it will blow cannot yet be determined so there is a level of uncertainty, as is evident from discussion about, for example, how Northern Ireland’s land boundary with Ireland will be affected by actual withdrawal by the United Kingdom from the EU. Maguire J in Re McCord3

M

AGUIRE J WAS prescient in his observations as to the uncertainty ­surrounding the only land border there will be between the EU and the UK after Brexit.4 This raises the question of how to maintain an invisible border between Northern Ireland and Ireland, that invisibility being one of the most conspicuous outcomes of the Belfast/Good Friday Agreement. The answer to that question depends on how people and goods are dealt with post-Brexit. This in turn depends on the preservation of the long-standing Common Travel Area (CTA) and the nature of the trade relationship between the EU and UK post-Brexit and whether there are special arrangements in relation to Northern Ireland. The border emerged as a key issue in the final hours of the first phase of the Brexit talks and remains a major focus,5 highlighting how it is a complex challenge. 1 

This article is dedicated to the memory of Elizabeth Meehan MRIA. Sutherland School of Law, UCD Centre for the Common Law in Europe. Earlier versions of this paper were presented at The CBLP Annual Lecture, University of Leeds; the Jean Monnet Summer School, National University of Ireland Maynooth, 2017; The ESRC/ University of Glasgow expert seminar, ‘­Borders, Constitution and Money’, Belfast 2017; UCD Garrett FitzGerald School, 2017; The Implications of Brexit, Seminar, Royal Irish Academy 2016. Thanks to all the participants and Colin Scott for comments and thanks to Francis McNamara for research assistance. It also builds on I Maher, ‘The Common Travel Area: More than just Travel’ A Royal Irish Academy–British Academy Brexit Briefing, October 2017. 3  Re McCord [2016] NIQB 85 [107]. The case addressed specific constitutional issues relating to Northern Ireland and whether they constrained the triggering of the withdrawal process for the UK under Article 50 TEU. On appeal, the case was joined with the more famous Miller case. The applicant in this case lost at first instance and on appeal, see R (Miller & Anor) v Secretary of State for Exiting the ­European Union (Rev 3) [2017] UKSC 5 (24 January 2017). 4  This article proceeds on the basis that following the giving of notice to withdraw by the UK Government, Brexit will take place after the two-year time limit set down in Article 50 TEU, ie on 29 March 2019. See letter from the UK Prime Minister, Theresa May, to the President of the EU Council, Donald Tusk, available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/604079/Prime_ Ministers_letter_to_European_Council_President_Donald_Tusk.pdf (last accessed 4 May 2018). 5  ‘Round-up: International Press Reporting on the Collapse of Brexit Deal’ Irish Times 5 December 2017 see www.irishtimes.com/news/politics/round-up-international-press-reporting-on-the-collapse-of2  UCD

52  The Irish Yearbook of International Law 2016–17 That border has many dimensions. There is the obvious question of geography: a land border of almost 500 km that currently is invisible. There is the legal context of the CTA between the UK and Ireland, which the UK and EU have agreed will continue after Brexit.6 There is the Belfast/Good Friday Agreement, which the same parties have agreed to protect.7 And there are the EU treaties, the Draft Withdrawal Agreement and the future agreement between the UK and the EU following Brexit. There are the practical considerations of movement of people and goods across the border and there is the sensitive political context that this has been a violently contested border in the past. This article explores these dimensions focussing mainly on the movement of people across the border. It analyses how the CTA will survive Brexit and specifically how a border can(not) be avoided if the UK leaves the customs union. It explores the CTA, the Draft Withdrawal Agreement and December Joint Report between the UK and EU marking the end of the first phase of Brexit negotiations.8 It sets out the challenges for the law posed by the conflicting political ambitions of a soft border and a hard Brexit. Its conclusion is in the spirit of the comment of Maguire J above: that while legal certainty and coherence is to be aspired to, that sometimes it can be elusive. The article is written while there is great political fluidity as the UK Government considers how to reconcile the conflicting objectives of a frictionless border and the UK leaving the customs union and single market. The back stop of regulatory alignment and customs union for Northern Ireland remains the most realistic outcome, with a long transition period to another arrangement. While politically unpalatable, legally it represents the most coherent avenue, providing legal certainty at a time of technical and political experimentation. Divided into four parts, the article first provides some context in relation to ­economics and politics, before turning to the opaque, legally obscure and practically significant CTA. The CTA and Brexit are then analysed before turning to the issue of how trade and in particular how the UK leaving the customs union will affect the guarantee of no hard land border before concluding. WHAT’S IN A BORDER?

A border, understood as a noun, implies splitting apart and as a verb it suggests ­adjoining.9 It is this contradiction that lies at the heart of the discussion of the only land border that there will be between the EU/Ireland and the UK. The UK ­Government of

brexit-deal-1.3316249 (last accessed 4 May 2018); D Staunton, ‘Irish Border Centre Stage at Westminster and in EU Negotiations’ Irish Times 2 May 2018. 6  Joint Report from the Negotiators of the EU and the UK Government on Progress during Phase I of Negotiations under Article 50 EU on the United Kingdom’s Orderly Withdrawal from the European Union (8 December 2017) para 54. 7  Ibid para 42. 8  Ibid for the Joint Report and EU Draft Withdrawal Agreement (19 March 2018), available at https:// ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf (last accessed 17 May 2018). 9  L Tankard, ‘Review of Roy Jacobsen, Borders’ (2017) World Literature Today January 2017.

Articles—Maher 53 Ireland Act 1920 set out that Northern Ireland constituted six ­parliamentary counties and the parliamentary boroughs of Belfast and ­Londonderry.10 This implicitly defined the border for Northern Ireland and hence for the UK, the 1925 Boundary Commission ultimately not leading to any change.11 In Ireland, the 1937 constitution did not recognise the border explicitly as it referred to the national territory as the whole island of Ireland noting its future reintegration.12 This was changed in 1999 as part of the Belfast/Good Friday Agreement13 where the aspiration of a united Ireland was expressed in terms of peaceful consent by majorities in both jurisdictions.14 One of the most tangible outcomes of that Agreement is that the border security structures were dismantled and the border is now invisible.15 The only indication of having entered another jurisdiction is that the road signs move between metric and imperial measures and between bilingual and monolingual. There are no customs posts and no systematic passport checks on either side of the border. The EU, and especially the single market and customs union, made customs posts redundant several years before the Good Friday Agreement. Movement of vehicles across the roughly 300 roads crossing the border is substantial with over 1.8 million car crossings every month.16 Across the 15 ­principal crossing points alone there are 118,000 vehicle crossings each day with around 43 million estimated annually. The numbers on frontier workers vary. The Irish ­Central ­Statistics Office puts the figure at just over 14,50017 with the Centre for Cross Border ­Studies providing a larger figure of 30,000.18 The discrepancy points to the difficulty of counting given the porous border. Students move across the border, including over 300 primary and secondary school students.19 Over 112,000 British citizens live in Ireland (2.5 per cent of the population)20 while about 380,000 people born in ­Ireland live in the UK, of which 38,000 live in Northern Ireland.21 Following the

10 

UK Government of Ireland Act 1920, section 1(2). McCall, ‘From Barrier to Bridge: Reconfiguring the Irish Border after the Belfast Good Friday Agreement’ (2002) 53 Northern Ireland Legal Quarterly 479 at 483. 12  Bunreacht na hEireann (Irish Constitution), Articles 2 and 3. 13 April 1998, see www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/ agreement.pdf (last accessed 4 May 2018). 14  Nineteenth amendment of the Irish Constitution. 15  UK Government, ‘Northern Ireland and Ireland’, Position Paper (16 August 2017) 12, www.gov. uk/government/publications/northern-ireland-and-ireland-a-position-paper (last accessed 17 May 2018); C Gormley-Heenan and A Aughey, ‘Northern Ireland and Brexit: Three Effects on “the Border in the Mind”’ (2017) 19(3) The British Journal of Politics and International Relations 497, 499–502. 16  Seanad Special Select Committee, ‘Withdrawal of the United Kingdom from the European Union Brexit: Implications and Potential Solutions’ (June 2017) 32/SSSCWUKEU/01, 18. 17  Central Statistics Office, ‘Brexit-Ireland and the UK in Numbers’ (December 2016) 13. 18  Border People Briefing no 5, ‘The Referendum on UK Membership of the EU: Freedom of Movement of People’ (May 2016), http://borderpeople.info/a-z/briefingpaper-eu-referendum-free-movementof-people.html (last accessed 4 May 2018). 19  HM Government, ‘Additional Data Paper: Common Travel Area Data and Statistics’ (16 August 2017) 4. 20  Central Statistics Office (n 17) citing 2011 census in ss 1.1. 21  Office for National Statistics, ‘Living Abroad: Dynamics of Migration between the UK and Ireland’ (17 September 2017) 15. Because those born in Northern Ireland can claim citizenship, it is more complicated to calculate numbers with the UK statistics referring to those born in Ireland while Irish figures tend to refer to Irish citizens. 11  C

54  The Irish Yearbook of International Law 2016–17 Brexit referendum there has been a large increase in the number of British citizens either born in Northern Ireland or with an Irish parent or grandparent seeking Irish passports.22 In relation to trade, in 2015, Ireland was Northern Ireland’s biggest external trading partner, with £2.7 billion of goods exported to Ireland, representing 6 per cent of sales in goods by value and 36 per cent of total goods exports.23 These figures, however, disguise the extent to which the market is all-island in some ­sectors, notably agriculture and the single energy market.24 There is also an east–west dimension to people and trade. The London–Dublin air route is the busiest in Europe.25 More tourists come to Ireland from Great B ­ ritain than anywhere else.26 In 2014, 13.3 per cent of goods for export from Ireland went to Great Britain and 30.5 per cent of imports into Ireland came from Great B ­ ritain. Ireland is the fifth most important export destination for the UK. In essence, as noted by the House of Lords Select Committee on the EU, the scale of the economic and trade relations between the UK (Great Britain and Northern Ireland) are significant.27 The Good Friday Agreement defines the tripartite relationship between Great Britain, Northern Ireland and Ireland and allowed something of a renaissance ­ between the two states culminating in reciprocal visits of the two Heads of State.28 Unusually in international law, the Agreement recognises that territory currently in one state (Northern Ireland) may become part of another state (Ireland) should Irish reunification be agreed by referendums in the two jurisdictions on the island.29 The Agreement creates a consociational power-sharing arrangement for governing Northern Ireland based on a divide between two dominant identities: unionist and nationalist. In addition, there are six institutions in place governing relations on the island and two further bodies designed to address east–west relations.30

22  There was a 26.53% increase in applications from Northern Ireland and a 40.56% increase in applications from Great Britain in 2017, see www.dfa.ie/passports-citizenship/faqs/statistics/# (last accessed 4 May 2018). 23  UK Government Northern Ireland and Ireland Position Paper (n 15) 13. 24 House of Lords Select Committee on the EU, ‘Brexit: UK-Irish Relations 6th Report of Session 2016–17’ (12 December 2016) HL Paper 76 Ch 2 paras 68 and 71. UK Government Position Paper (n 15) 22. 25 OAG, ‘Punctuality Report: On-Time Performance for Airlines and Airports and Top 20 Busiest Routes’ (January 2018) 18, www.oag.com/hubfs/Free_Reports/Punctuality_League/2018/Punctuality Report2018.pdf?hsCtaTracking=355de328-d17a-4f61-9f5b-137270b39310%7Cf2bdd8b5-dbe9-49fd9563-aa256d348cfa (last accessed 17 May 2018). 26  The figure stands at 42%. See A Barrett, A Bergin, J FitzGerald, et al, ‘Scoping the Possible Economic Implications of Brexit on Ireland’ ESRI Research Series No 48 (Dublin, November 2015) 20. For the implications of a hard border in the Irish Sea for Welsh ports, see External Affairs and Additional Legislation Committee, National Assembly for Wales, ‘Inquiry into the Implications of Brexit for Welsh Ports’ (August 2017), www.assembly.wales/laid%20documents/cr-ld11158/cr-ld11158-e.pdf (last accessed 18 May 2018). 27  House of Lords Select Committee on the EU Report (n 24) Ch 2, para 15. 28  House of Lords Select Committee on the EU Report (n 24) Ch 1.3. 29  K Hayward, ‘The Irish Border and Brexit: An Explainer, Parts I & II’ (January 2017), available at http://ukandeu.ac.uk/explainers/the-origins-of-the-irish-border/ (last accessed 4 May 2018) 3. 30 See generally J Ruane and J Todd (eds), After the Good Friday Agreement: Analysing Political Change in Norther Ireland (Dublin, UCD Press, 1999).

Articles—Maher 55 The implementation of the Agreement has not been straightforward31 with a supplementary St Andrews Agreement in 2006 following a period of direct rule.32 The executive was suspended in January 2017 following a breakdown in relations between the two largest parties, and which was not resolved by elections. This left Northern Ireland without a government during the Brexit negotiations.33 The Good Friday ­Agreement and the much older CTA are formally distinct from the EU but both are deeply embedded in European assumptions about mixed sovereignty.34 The EU played an important role in developing a consensus approach on matters of common concern35 and provided the context of shared EU citizenship for the Agreement.36 It has also underpinned the Good Friday Agreement through funding programmes.37 Hence, it has been part of the legal, political and economic context of the border between Ireland and Northern Ireland and, with Brexit, that context is now about to change. The degree to which there will be change depends on the nature of the post-Brexit agreement between the UK and the EU. Before looking to what form that agreement might take, the article first explores the CTA. THE COMMON TRAVEL AREA: A LEGAL ANOMALY38

The CTA is an old bilateral arrangement between Ireland and the UK under which citizens from Ireland, the UK, and the Crown Dependencies of the Channel Islands and the Isle of Man have extensive rights of free movement.39 The UK and I­reland ­co-operate on immigration so European Economic Area (EEA) citizens40 and those nationals who do not require visas for both states benefit.41 For UK and Irish ­citizens, rights extend well beyond free movement including residence, work, study, access to social welfare entitlements and benefits (to a greater degree than exists 31  For an outline of the history of the Agreement and its implementation, see J Todd, ‘Northern ­Ireland: Timing and Sequencing of Post-Conflict Reconstruction and Peacebuilding’ in A Langer and GK Brown (eds), Building Sustainable Peace: Timing and Sequencing of Post-Conflict Reconstruction and Peacebuilding (Oxford, Oxford University Press, 2016). 32 For the agreement see www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/northernireland/st-andrews-agreement.pdf (last accessed 4 May 2018); G Anthony, ‘The St Andrews Agreement and the Northern Ireland Assembly’ (2008) 14(2) European Public Law 151. 33  ‘Northern Ireland Notches up a Year without a Government’ The Economist, 24 January 2018. 34  On this point and the Good Friday Agreement, see M Keating, ‘Brexit and Devolution in the UK’ (2017) 5(2) Politics and Governance 1. 35  E Meehan, ‘From Conflict to Consensus: The Legacy of the Good Friday Agreement: The BritishIrish and European Contexts’ IBIS Working Papers 83/2009; Hayward (n 29) 5. 36  For EU citizenship, see Article 18–25 TFEU; E Burke, ‘Who Will Speak for Northern Ireland? The Looming Danger of an Ulster Brexit’ (2016) 161(2) Royal United Services Institute Journal 4. 37  Seanad Special Select Committee (n 16) 31. The Joint Report commits the parties to continue such funding for the current cycle and they agree to examine favourably possibilities for future support. See Joint Report (n 6) para 55. 38  See Maher (n 2). 39 See www.citizensinformation.ie/en/moving_country/moving_abroad/freedom_of_movement_within_ the_eu/common_travel_area_between_ireland_and_the_uk.html (last accessed 4 May 2018). 40  The EEA consists of all the Member States of the EU and Iceland, Liechtenstein, Norway with Swiss citizens having similar rights. 41  T McGuinness and M Gower, ‘The Common Travel Area, and the Special Status of Irish Nationals in UK Law’ House of Commons Library Briefing Paper No 7661 (9 June 2017).

56  The Irish Yearbook of International Law 2016–17 for EEA c­ itizens), health care and the right to vote in local and parliamentary elections.42 No s­ pecific permission is required to secure these rights. This is important in particular for ­Northern Ireland where rights are available without the need to assert British ­citizenship.43 In effect, British and Irish citizens’ rights are almost indistinguishable. One of the few differences is that British citizens in Ireland cannot vote in Irish r­ eferendums and Presidential elections. After the Irish Free State was established in 1922, there was no change to border arrangements. It was a Dominion and Irish citizens had a right to travel and work in the UK with no passports required for citizens moving between either state.44 From 1924, the two states shared information on those ­entering, had a common visa list and shared suspects list.45 The CTA was suspended during World War II46 and reinstated by an exchange of letters between British and Irish officials in 1952.47 The main difference with the revised CTA was that there was no longer a common visa list but the two states renewed sharing information on the movement of aliens on the assumption that they would move between the two states. One of the most anomalous characteristics of the CTA is the relative lack of legal formality, although this lack of a clear statutory footing did not prevent it securing a ringing endorsement from the Irish High Court in the Kweder case.48 The two states have approached the CTA differently from a legal perspective. In the UK under the 1948 British Nationality Act, Irish citizens were not viewed as aliens such that the law was to apply to them in the same way as British citizens. Under section 2(1) of the Ireland Act 1949, Ireland was not a foreign country for legal purposes. The UK Immigration Act 1971 now governs the CTA under British law with immigration controls not applying to those arriving from Ireland subject to exceptions mainly regarding those from states who require visas. In Ireland, for political reasons there was a greater reluctance to formalise the CTA.49 British citizens were exempted from the Aliens Act 1935 under a statutory instrument50 and that exemption survives the Immigration Act 2004.51 The CTA was first recognised formally by both states in the Treaty of Amsterdam (1999) where it is referred to in Protocol 20. That ­Protocol recognises that there are special travel arrangements between Ireland and the UK.

42  See the UK Representation of the People Act 1983 and the Irish Electoral Act 1992. The change in Irish law arose out of the Good Friday Agreement and voting rights had not been reciprocal prior to that. 43 E Meehan, ‘The Origins of the Common Travel Area between Ireland and the United Kingdom and its Fate in an Era of Governmental Concern about Undocumented Migration and International Terrorism’ European Migration Network (Ireland) and Economic and Social Research Institute Research Conference on Documenting Irregular Migration (Dublin, 8 December 2011). 44  B Ryan, ‘The Common Travel Area between Britain and Ireland’ (2001) 64 Modern Law Review 855; S de Mars, CRG Murray, A O’Donoghue and BTC Warwick, ‘Brexit, Northern Ireland and Ireland’, Policy Paper (June 2016). 45  Meehan (n 43). 46  M Daly, ‘Brexit and the Irish Border: Historical Context’, A Royal Irish Academy-British Academy Brexit Briefing (October 2017) 4. 47  Ryan (n 44) 858. Meehan (n 43). 48  Kweder v Minister for Justice [1996] 1 IR 381; G Butler, ‘Not a “Real” Common Travel Area: ­Pachero v. Minister for Justice and Equality’ (2015) 54 Irish Jurist 155, 161. 49  Meehan (n 43) who discusses the careful language used in the Dáil on the re-activation of the CTA. 50  The Citizens of the United Kingdom and Colonies (Irish Citizenship Rights) Order 1949. 51  Ryan (n 44) 862; Butler (n 48) 158.

Articles—Maher 57 This is the only formal interface between EU Law and the CTA with the CTA being recognised as an exemption from the Europe without borders provisions of the TFEU.52 There is no reference to the CTA in the Good Friday Agreement, but it is part of the context of that Agreement. The intermingling of the CTA, the Good ­Friday Agreement and the British relationship with the EU post-Brexit was one of the key issues addressed during the first round of the Brexit talks. THE CTA AND BREXIT

The CTA was one of the early issues identified as a priority in the first strand of the Brexit talks by the EU,53 the UK54 and the Irish55 governments. The ideal scenario is to maintain the CTA as a bilateral agreement that pre-dates the EU. As a legally scattered quasi-administrative arrangement that has an inherent flexibility, it has worked well for British and Irish citizens. The practical outcome of an invisible land border is desirable. There are however several challenges to be considered for this border in the context of Brexit because there is more than one border, conceptually56 and practically: a physical border, a border managed by technology, a border for people, and a border for trade. All of these borders are interlinked and even if there is a political commitment to maintain the CTA by the EU and the UK57 as well as Ireland,58 the challenge is that the CTA is not an isolated arrangement that can be divorced from future trade arrangements between the UK and the EU in particular. Hence, the seemingly innocuous CTA can become collateral damage in the broader question of the future trade relations between the EU and the UK especially if the frictionless border envisaged by the UK Government is different from the current invisible border.59 Before turning to the question of trade however, it is necessary to highlight the different legal issues that can arise for the CTA post-Brexit.60 52 

Articles 26 and 77 TFEU. three institutions indicated it was a priority, see European Commission, ‘Guiding Principles Transmitted to EU27 for the Dialogue on Ireland/Northern Ireland’ 7 September 17 TF50 (2017) 15; European Council, ‘Art 50 Guidelines for Brexit Negotiations, 29 April 2017 and Directives for the Negotiation of an Agreement with the United Kingdom of Great Britain and Northern Ireland Setting out the Arrangements for its Withdrawal from the European Union, 22 May 2017; European Parliament, Resolution of 5 April 2017 on Negotiations with the United Kingdom Following its Notification that it Intends to Withdraw from the European Union’ 2017/2593(RSP). 54  UK Government, ‘Position Paper on Northern Ireland and Ireland (n 15). 55  Government of Ireland, ‘Ireland and the Negotiations on the UK’s Withdrawal from the European Union: The Government’s Approach’ Position Paper (May 2017) 24. 56  For a conceptual analysis of the complexity of territory, governance and space, see B Jessop, ‘Territory, Politics, Governance and Multispatial Metagovernance’ (2016) 4(1) Territory, Politics Governance 8 in particular Table I. 57  Joint Report (n 6) para 54. 58  Government of Ireland Position Paper (n 55) 4. 59  See the discussion of the EU Draft Withdrawal Agreement 19 March 2018, https://ec.europa.eu/ commission/sites/beta-political/files/draft_agreement_coloured.pdf (last accessed 18 May 2018 and the House of Lords defeat of the Government on 2 May on the Northern Irish border designed to prevent new border arrangements, see Lord Patten, Hansard col 2073 et segue. 60  See I Maher, ‘Briefing on Protocols for the Joint Committee on European Union Affairs’ (26 February 2015), available at https://webarchive.oireachtas.ie/parliament/media/committees/euaffairs/archiveeuaffairs/opening-statement-professor-imelda-maher.pdf (last accessed 5 June 2018). 53 All

58  The Irish Yearbook of International Law 2016–17 PROTOCOLS 19–21

First, it is important to note that Ireland and the UK have several opt-outs in the EU Treaty relating to free movement. The first opt-out, as noted above, allows them to maintain border controls and recognises the CTA.61 The two states also have an optout from the Schengen Convention, which creates a Europe without borders with a common external frontier, common visa, asylum and immigration policies and was incorporated into EU law by the Amsterdam Treaty.62 Under the Protocol, they can request to opt into Schengen measures with the consent of the other Member States. In addition to Schengen, EU Treaty provisions aim to create an Area of Freedom, Security and Justice allowing for measures to be adopted on border checks, asylum, immigration, judicial co-operation in civil and criminal matters and police co-operation.63 Ireland and the UK have an opt-out also for these provisions and unlike the Schengen Protocol their opt-ins cannot be vetoed by other Member States.64 This Irish opt-out seems to have been driven by concerns about the integrity of the common law system and differences with the civil law traditions dominant among Member States and by the fact the UK was opting out.65 Following Brexit, the UK will not participate in Schengen although that option is open to it in principle as a small number of non-EU states participate in it.66 It is expected that Ireland will choose to remain outside the Schengen area, retain its opt-out for measures relating to the Area of Freedom, Security and Justice and retain the CTA. The prioritisation of a local CTA rather than one covering the other 26 Member States is driven by geography, practice and politics: the long land border cannot be effectively sealed; the control of migration to the state has been arranged on the basis of border controls since the foundation for sea and air entry with the land border was treated ­differently; and despite the Good Friday Agreement, the border remains contentious, has been violently contested in the past, and there is a concern not to allow friction to re-emerge following Brexit. The CTA as a pre-existing bilateral arrangement expressly recognised by the EU does not appear to need the consent of the 27 Member States to remain in place.67 61 

Protocol 20. Protocol 19. Bulgaria, Croatia, Cyprus and Romania have signed but are not yet fully incorporated into the Schengen area. Iceland, Lichtenstein, Norway and Switzerland are not in the EU but are members of Schengen. 63 Article 3(2) TEU, Title V TFEU; S Peers, ‘In a World of their Own? Justice and Home Affairs ­Opt-Outs and the Treaty of Lisbon’ (2007–08) 10 Cambridge Yearbook of European Legal Studies 383. 64 B Laffan and J O’Mahony note that Ireland and the UK have opted into measures on civil ­co-operation, asylum and irregular migration but to a limited extent on visas, border controls and legal migration. They participate in almost all criminal and policing provisions of Schengen and irregular migration. See Ireland and the European Union (Hampshire, Palgrave Macmillan, 2008) 173. 65  Ibid 172. Ireland in Declaration 56 affirms its commitment to the Area of Freedom, Security and Justice and indicates that it will participate to the maximum extent and can at any time notify the Council in writing that it no longer wishes to be covered by this Protocol and if it does so, then the normal Treaty provisions apply. 66 Iceland, Lichtenstein, Norway and Switzerland. There are also special travel arrangements for ­Turkey, see generally E Guild, ‘Equivocal Claims? Ambivalent Controls? Labour Migrant Regimes in the European Union’ in E Guild and S Mantu (eds), Constructing and Managing Labour Migration: Perspectives of Control from Five Continents (London, Routledge, 2011) especially 214. 67  M Dougan, Northern Ireland Affairs Committee Oral Evidence: Future of the Land Border with the Republic of Ireland, HC 700 (Wednesday 16 November 2016). 62 

Articles—Maher 59 This argument does not give sufficient attention to the language of Protocol 20 itself which is framed in Article 1 in terms of the UK retaining its border controls and then within that context refers to the CTA in Article 2. It expressly says that as long as there is a CTA, then the right to retain border controls set out in Article 1 ‘shall apply to Ireland under the same terms and conditions as the UK’. With the UK leaving the EU, Article 1 becomes redundant, leaving the status of the exemption for Ireland under Article 2 in question. While the opt-out from Schengen and the Area of Freedom, Security and Justice allows Ireland to retain its border and visa controls, it must still comply with other EU free movement rules.68 CITIZENS

The relationship between EU law and third country nationals is, as Elspeth Guild reminds us, extremely complex69 with the EU Commission proposing an EU travel authorisation scheme for non-visa travellers.70 The continuing recognition of the CTA is important as it will create an exemption for British citizens in, and travelling to, Ireland. Hence, the TFEU Protocols are part of the solution to the continuation of the CTA and an invisible Irish land border. At the same time, Ireland is bound by its free movement obligations for EU nationals which are fundamental to EU ­Member States. The negotiation parties have agreed in some detail to retain the rights of those EU citizens in the UK and British citizens in the EU who have exercised their free movement rights before the date the UK leaves the EU.71 Both agree to implement what is agreed so as to ensure the legal effects of the citizens’ rights. The parties also agree that citizens will be able to rely on such rights directly and that any conflicting legislation will be disapplied.72 Hence the UK agrees to introduce legislation and the EU notes that the Withdrawal Agreement will bind both the EU institutions and the Member States.73 Neither this part of the joint report nor the Draft Agreement ­differentiate between EU and Irish citizens (who are also EU citizens) or between British citizens in Ireland and those elsewhere in the EU. No specific reference is made to the status of Irish citizens in Great Britain as this will be governed by the 68  The EU Draft Withdrawal Agreement of 19 March 2018 shows that the continuation of the CTA has been agreed, see Ch II Article 2 (n 8). 69  E Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law (The Hague, Kluwer, 2004) 217. 70  For a critical discussion, see S Alegre, J Jeandesboz and N Vavoula, ‘Travel Information and Authorisation System (ETIAS): Border Management, Fundamental Rights and Data Protection Study’, European Parliament Policy Department for Citizen’s Rights and Constitutional Affairs (April 2017). An agreement between the Council and European Parliament was announced on 25 April 2018, see www.consilium. europa.eu/en/press/press-releases/2018/04/25/european-travel-information-and-authorisation-systemetias-council-confirms-agreement-with-european-parliament/ (last accessed 18 May 2018). 71  Joint Report (n 6) para 6–41. The relevant date as the date of the UK’s withdrawal is set out in para 8; Draft Withdrawal Agreement (n 8) Part II. 72 Joint Report (n 6) para 35. See also clause 5 and Schedule 1 of the European Union (Withdrawal) Bill. 73 Joint Report (n 6) para 34–36. Regarding the binding nature of the agreement in the EU see ­Article 216(2) TFEU.

60  The Irish Yearbook of International Law 2016–17 CTA. The recognition by both parties that the UK and Ireland may continue the CTA implicitly sets apart Irish and British citizens in these two jurisdictions from other EU citizens. This allows for the CTA to continue and to develop in its current format with both British and Irish citizens enjoying travel and related rights under the CTA. In the Joint Report and Protocol the CTA is acknowledged by the parties in the context of full respect for the rights of natural persons under EU law, and an acknowledgement by the UK that the CTA can continue without affecting Ireland’s obligations under EU law, in particular in relation to the free movement of citizens.74 Irish compliance with EU law is essential and EU recognition of the CTA necessary to allow the Irish state to treat non-EU nationals (post-Brexit British citizens) more favourably than EU citizens.75 This means that, provided Ireland remains outside Schengen, EU citizens can come to live and work in Ireland under the free movement rules and will be subject to no more than the usual requirement to provide an official form of identity when accessing the state by sea or air. They can also continue to move to/from the UK from/to Ireland across the land border without any border controls. At the moment, checks may be carried out in the UK under anti-terrorism legislation at (air)ports76 with passengers on flights originating from Ireland arriving either through domestic channels or designated special lrish/Channel Islands flights arrivals, depending on the size of the airport and without the need to go through standard passport controls. This is likely to continue. It is likely that EU/EEA ­citizens will be able to stay for three months in the UK77 but beyond that or should they wish to take up employment then the internal borders of the UK will be triggered. There are extensive controls already in the UK in places of employment, study and for tenancies to check identity and migration status.78 The Good Friday Agreement acknowledges that those born in Northern Ireland can choose to be British, Irish or both.79 EU citizenship does not exist independently

74  Joint Report (n 6) para 54. For the Protocol see the EU Draft Withdrawal Agreement (n 8) Ch II Article 2. 75  C-55/00 Gottardo, EU:C:2002:543; E Spaventa, ‘The Impact of Brexit in Relation to the Right to Petition and on the Competences, Responsibilities and Activities of the Committee on Petitions’ Study for the PETI Committee (European Parliament, June 2017). 76  Independent Chief Inspector, ‘Inspection Report on Countering Abuse of the Common Travel Area in Northern Ireland and Scotland’ (May 2011), available at www.gov.uk/government/publications/inspection-report-of-the-common-travel-area-in-scotland-and-northern-ireland-may-2011 (last visited 17 May 2018). 77 HM Government, ‘Status of EU Citizens in the UK: What you Need to Know’ Information for European Union citizens living in the UK, Guidance, see www.gov.uk/guidance/status-of-eu-nationals-inthe-uk-what-you-need-to-know (last accessed 4 May 2018). There were reports of a leaked Home Office Report suggesting three months, but the final report has not emerged. See S Saeed, ‘UK to Allow Visa-Free Travel for EU Citizens after Brexit: Report EU Citizens could Enter the UK without a Visa but would Need a Permit to Work’ (Politico, 17 August 2017), available at www.politico.eu/article/uk-to-allow-visafree-travel-for-eu-citizens-after-brexit-report/ (last accessed 17 May 2018). 78  For an overview, see N Vaughan-Williams, ‘The UK Border Security Continuum: Virtual Biopolitics and the Simulation of the Sovereign Ban’ (2010) 28 Environment and Planning D: Society and Space 1071, especially 1077 et seg. 79  Good Friday Agreement, Article 1(iv) and Annex 2. As well as being born in Northern Ireland, it is also necessary to have at least one parent who is a British or Irish citizen or who is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.

Articles—Maher 61 of citizenship of a Member State80 so those in Northern Ireland who choose only British citizenship will not be EU citizens, while those who choose to identify as Irish or Irish and British will be EU citizens living outside the EU, albeit in their country of origin.81 Hence, in the Joint Report and Protocol of the Draft Agreement, unlike the provisions addressing the status of other EU citizens settled in the UK which are silent as to the rights of those coming to the UK or the EU de novo after Brexit, the status of future Irish citizens born in Northern Ireland is acknowledged.82 The parties agree that the Withdrawal Agreement should respect and be without prejudice to their EU rights, opportunities and identity. This is underpinned by a commitment to ensuring that anti-discrimination protection enshrined in EU law will not be diminished following withdrawal. While the Good Friday Agreement and EU Law are formally distinct, the Report and Protocol Preamble note that the EU provides a supporting framework for provisions on rights, safeguards and equality of opportunity in the Agreement in Northern Ireland and Ireland. Hence the safeguards of Irish citizens in Northern Ireland are recognised and they will continue to enjoy their rights as EU citizens even where they continue to reside in Northern Ireland. The Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission recommend that considering the principle of equality and parity of esteem in the Good Friday Agreement, the rights to live, work and travel in the EU should be extended to all the people of Northern Ireland to ensure that the choice of identity is not based on fear of practical consequences. In a similar vein, it calls on Ireland to retain voting rights and the right to stand for European Parliamentary elections to those in Northern Ireland, while acknowledging these rights are based on residency in Ireland.83 Wiener, in discussing EU citizenship notes how its introduction challenged the borders of citizenship leaving central aspects of belonging and identity on shaky ground. She argues that EU citizenship is fragmented, emerging as it did at a time of increasing globalisation, marking it out from citizenship tied to nationality84 (on which EU citizenship is parasitic). Brexit further fragments EU citizenship in Northern Ireland, creating a privileged community for those who choose to avail of it and hence of all the rights that adhere to it. It is the creation of this new border of belonging between the

80  Article 20 TFEU: ‘Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ 81  Citizens of Moldova and Ukraine, both non-EU states, can secure Romanian citizenship without having to live in Romania if they are descendants of Romanians (Dumbrava, 2013) and Hungarian law gives preferential citizenship to anyone who is of Hungarian descent and whose knowledge of the ­Hungarian language is proven (Tóth, 2010). However, the analogy is limited given the context of the Belfast/Good Friday Agreement and the importance it gives to respect for the rights, opportunities and identity for the people of Northern Ireland who choose to assert their right to Irish citizenship. See C Dumbrava, ‘Rolling Back History: The Romanian Policy of Restoration of Citizenship to Former Citizens’ (CITSEE, 15 May 2013); J Tóth, ‘Changes in the Hungarian Citizenship Law’ (European Union Democracy Observatory Update, July 2010). 82  See Joint Report (n 6) para 52. 83 Policy Statement on the UK Withdrawal from the EU (March 2018), www.ihrec.ie/app/uploads/ 2018/03/Joint-Committee-IHREC-NIHRC-Brexit-Policy-Statement_March-2018.pdf (last accessed 5 June 2018). 84  A Wiener, ‘Making Sense of the New Geography of Citizenship: Fragmented Citizenship in the EU’ (1997) 26 Theory and Society 529.

62  The Irish Yearbook of International Law 2016–17 two communities based on EU citizenship that gives additional meaning to the ­recommendation of the Joint Committee. Finally, a brief comment on non-EU travellers coming into the CTA. The CTA only applies to British and Irish citizens. At the moment, some categories of travellers coming from Ireland to the UK require leave to enter. This is mainly those who require visas or are deemed a security threat.85 In Ireland, Irish immigration officers can treat those from outside the EU and EEA coming from the UK as though they have come from elsewhere.86 Both states retain their own visa and immigration rules although there are high levels of practical co-operation and policy co-ordination.87 Common visa arrangements are in place for India and China—essentially to promote tourism. Ireland also unilaterally permits some short stay visa holders to the UK to visit Ireland without a visa.88 Nonetheless, the lack of immigration controls can cause problems for the naïve traveller. In Pachero, the absence of a land border led to the detention of two Bolivian students legally in Ireland who travelled to the UK via the Stranraer Ferry from Northern Ireland unaware of their visa requirements. Hogan J noted that while they were technically in breach of the immigration rules, ‘legal archaeology’ was required to establish the legal position under the CTA and he suggested a sympathetic view be taken of their plight, even if legally they could be deported.89 The CTA will no doubt remain a trap for the unwary although this is not exacerbated by Brexit and may in fact be alleviated by it as non-EU ­visitors may be more aware of the different status of the two states. THE CHALLENGE OF BREXIT

Even if the CTA can be maintained, the complexities raised by the British ­withdrawal from the Single Market and the customs union pose challenges.90 The tensions between the EU and UK can be seen in the contrast between how the UK in its August 2017 position paper emphasised the importance of reciprocity and the need for detailed joint work in devising how to achieve a frictionless border in relation to goods.91 The September 2017 European Commission guiding principles also baldly state that [T]he onus to propose solutions which overcome the challenges created on the island of Ireland by the United Kingdom’s withdrawal from the European Union and its decision to leave the customs union and the internal market remains on the United Kingdom.92

85 

Immigration (Control of Entry through Republic of Ireland) Order 1972 (as amended). Aliens (Amendment No 3) Order 1997. 87 Independent Chief Inspector Inspection Report (n 76); Joint Statement by Mr Damian Green, ­Minister of State for Immigration, the United Kingdom and Mr Alan Shatter, Minister for Justice and Equality, Ireland regarding Co-operation on Measures to Secure the External Common Travel Area ­Border (20 December 2011). 88  SI 473/2014 Immigration Act 2004 (Visas) Orders 2014; McGuinness and Gower (n 41) 10. 89  See eg Pachero v Minister for Justice [2011] IEHC 491. 90  See KA Armstrong, Brexit Time: Leaving the EU—Why, How and When? (Cambridge, Cambridge University Press, 2017) Ch 11 For the impact on Brexit on Ireland, see T Connelly, Brexit and Ireland: The Danger, Opportunities, and the Inside Story of the Irish Response (Ireland, Penguin, 2017). 91  UK Government, Position Paper on Northern Ireland and Ireland (n 15). 92  European Commission Guiding Principles (n 53) 15, 2. 86 

Articles—Maher 63 The UK government preferred position is to exit the single market and the customs union (to allow trade deals with other non-EU countries), while retaining a frictionless border with the EU between Ireland and Northern Ireland and by sea with other Member States so there are no additional barriers between Northern Ireland and the UK. In its July 2018 White Paper it proposes that this is achieved through the UK and EU have an agreed common rule book on goods and a fair trade common rule book on state aid, cooperation between regulators on competition, high regulatory standards for the environment; climate change; and social, employment and consumer protection. Most controversially the White Paper proposed a new Facilitated Customs Arrangement, with UK officials collecting EU customs on goods destined for the EU coming through the UK supported by improved technologies, trusted trader arrangements and supports for small businesses removing customs checks and controls between the UK and EU so the Northern Irish backstop solution would not be triggered (see next section).93 In other words, rather than a special arrangement just for Northern Ireland, there would be a frictionless border between all of the UK and the EU for goods with the UK retaining as much free trade in goods as possible without any of the other three freedoms (people, services and capital) that define the Single Market. The EU did not reject the White Paper outright. Barnier, the EU chief negotiator on Brexit, posed a series of questions e.g. asking how non-EU officials could be allowed to collect EU duties, noted the indivisibility of the four freedoms and maintained the need for a backstop for Northern Ireland.94 The timing of the White Paper was important as an outline agreement was needed by the summer for there to be any chance of it being finalized in October so it can gain parliamentary approval by the end of March 2019 in order for Brexit to proceed within the two year time limit set down in Article 50 TEU. The time line is however so tight that Member States have now been warned to prepare for a no-deal Brexit as a precaution. Provided an agreement is reached, the parties are also agreed that there will be a transition period to the end of 2020 at least.95 Unless these alternative arrangements are agreed, a back stop is proposed for Northern Ireland to allow negotiations on the future trade relationship between the UK and EU to proceed under Article 218(3) TFEU. The backstop was set out in the December 2017 Joint Report and given expression in the Draft Agreement in March 2018. As the Joint Report forms the background to the Draft Agreement it is discussed in detail below. THE ‘BACK STOP’ AND NORTHERN IRELAND

The Joint Report notes the unique circumstances on the island of Ireland and that it does not pre-determine the wider negotiations to follow on the relationship between 93  HM Government, The Future Relationship between the United Kingdom and the European Union Cm 9593, July 2018. For political reaction see IIEA, Brexit Brief Issue 45, 18 July 2018 https://www.iiea. com/wp-content/uploads/2018/07/BrexitBrief45.pdf (last visited August 19, 2018). 94  M. Barnier, Press Statement following the July 2018 General Affairs Council (Article 50) Brussels, 20 July 2018, http://europa.eu/rapid/press-release_STATEMENT-18-4626_en.htm last visited August 19, 2018. 95  For the transition period see Article 121 of the Draft Agreement (n 8). On Member States being warned to prepare for no deal see IIEA p. 2 (n. 93).

64  The Irish Yearbook of International Law 2016–17 the UK and the EU.96 In other words, the UK commitment and guarantee97 to avoid a hard border including any physical infrastructure or related checks or controls98 does not shape what sort of trade relationship the UK will have with the EU. The Report goes onto say that commitments and principles on Northern Ireland are made and must be upheld in all circumstances irrespective of that future ­agreement.99 The UK notes that it respects Ireland’s ongoing membership of the EU and its rights and obligations in relation to the internal market and customs union, while also noting its commitment to the British internal market and the place of Northern Ireland within it.100 There are three options set out in the Report in relation to the final agreement: (1) that the protection of North–South co-operation and the avoidance of a hard border will be achieved in the wider context of the future EU–UK relationship; (2) if that is not possible then the UK will propose specific solutions to address the unique circumstances of Ireland; and (3) if there is no agreement, then the UK will maintain full alignment with those existing and future internal market and custom union rules which support North–South co-operation, the all-island economy and the protection of the Good Friday Agreement. This last option is the back stop set out in the Protocol in the Draft EU Agreement.101 Hence, in the absence of a pan-EU arrangement that accommodates a soft border, the burden falls on the UK to find a solution to the guarantees it has given to not have a hard land border with Ireland. There is one major difference between the Joint Report and the Draft Agreement. The Joint Report refers to the UK aligning its laws. The Draft Agreement Protocol refers to a common regulatory area consisting of Northern Ireland and Ireland, ie that alignment would be just for Northern Ireland and not for all the UK.102 This would introduce a border in the Irish Sea which is not acceptable to the Democratic Unionist Party (DUP) on which the Conservative Government is dependent for support to remain in power and it is also at odds with what Theresa May proposed in her ­Mansion House speech where she talked of the UK aligning regulatory standards. On the other hand, it is not acceptable to the EU that the whole of the UK remains part of a common regulatory area for trade only, without having free movement of people. The ambiguous language in the Joint Report arises because the UK is the entity with which the EU negotiates, not Northern Ireland, and the ambiguity of language used in the Joint Report allowed the agreement to be approved by the Government with the support of the DUP. This issue is central to the negotiations and shaped the British negotiating position where Northern Ireland is seen as indivisible from Great Britain.103

96 

Joint Report (n 6) para 46. Joint Report (n 6) para 49. 98  Joint Report (n 6) para 43. 99  Joint Report (n 6) para 46. 100  Joint Report (n 6) para 45. 101  Joint Report (n 6) para 49. Draft Withdrawal Agreement (n 8). 102  See Draft Withdrawal Agreement (n 8) Article 32. 103 T Connelly, ‘The Irish Protocol: How Theresa May’s Backstop Somersault is Fraught with­ Danger’ (19 May 2018), available at www.rte.ie/news/brexit/2018/0518/964505-tony-connelly-brexit/ (last accessed 20 May 2018). White Paper July 2018 (n 93). 97 

Articles—Maher 65 Alignment104 to EU laws is not a new concept. Alignment of national competition laws with those of the EU emerged in the 1990s.105 It is different from convergence, where different laws gradually become more similar over time but may never end up the same.106 It is not harmonisation which in EU law involves measures being introduced to ensure approximation of national laws relevant to the functioning of the internal market.107 EU international trade agreements commonly contain a clause calling for approximation of laws. This is also different from alignment as the expectation is that it is for the non-EU partner to approximate their laws to those of the EU rather than this being an exercise in mutual convergence.108 Hence, it is not surprising to see a commitment by the UK to alignment rather than approximation in the Joint Report. Alignment is seen as a solution to the problem of significant legal differences constituting a barrier to trade.109 The aligning laws have a different genesis, belong to different jurisdictions and run in parallel. Alignment is multi-faceted, relating to text, form, procedure and underlying policy. There is also the question of time—how long should parties have in order to align their rules? In short, it allows for separate but parallel laws but complexity may remain precisely because of the multi-faceted nature of the concept. This may be why the Joint Report allows for the creation of implementation and oversight arrangements to safeguard the EU internal market and customs union (but not specifically those of the UK). This is reflected in the Draft Agreement Protocol where a Specialised Committee is envisaged reporting into the Joint Committee overseeing the Brexit Agreement.110 TRADE AND THE CTA

The Joint Report is important in that it marks a shared acknowledgement by both parties of the unique position of the island in the context of Brexit and a joint commitment to the continuation of the CTA and the absence of a hard border. The most important part of the agreement for the smooth operation of the CTA is the three alternatives identified to avoid the hard border, as it provides a framework as to the next phase of negotiations. The Draft Agreement in its Protocol then sets out what the third option—the back stop—will look like if the first two alternatives are not realised.111

104  The term ‘regulatory equivalence’ is used in the Position Paper on Northern Ireland and Ireland (n  15) para 58. The term regulatory alignment is used in the previous paragraph to refer to the current status which suggests some possible conceptual distinction. 105  I Maher, ‘Alignment of Competition Laws in the European Community’ (1996) 16 Yearbook of European Law 223. 106 M Drahos, Convergence of Competition Laws and Policies in the European Community (The Hague, Kluwer, 2001). 107  See Articles 115 and 116 TFEU; R Schütze, European Union Law (Cambridge, Cambridge University Press, 2015) Ch 14. 108  G Harpaz, ‘When East Meets West: Approximation of Laws in the EU-Mediterranean Context’ 43(4) Common Market Law Review 993, 999. 109 Ibid. 110  Joint Report (n 6) para 51; Draft Withdrawal Agreement (n 8) Article 8. 111  It was also agreed that issues relating to Ireland and Northern Ireland be addressed through a separate strand of the negotiations. See Joint Report (n 6) para 56.

66  The Irish Yearbook of International Law 2016–17 The challenge is that the UK alternatives are not deemed viable or acceptable by the EU even with the White Paper now published.112 The internal market is the framework underpinning the free movement of goods, people, services and capital in the EU, requiring not only the removal of barriers to trade and people but also the setting of common standards to facilitate free movement, with a presumption that goods lawfully produced in one Member State can be traded freely across the EU.113 It is at the core of the EU although membership of the EU is not necessary in order to be party to it. Hence Norway is part of the internal market but is not in the EU. Turkey on the other hand is part of the Customs Union for most goods, but is not part of the internal market.114 Norway, Iceland and ­Liechtenstein are all members of the EEA, whereby single market measures agreed by the EU are incorporated into the EEA.115 This renders these states law-takers rather than law-makers as they agree to be bound by the single market rules and are consulted on them but are not otherwise part of the law-making process. Membership of the EEA secures access to the internal market (but for agriculture) without being a member of the Customs Union. This means that Norway is free to negotiate customs agreements with third countries. In a recent speech in Dublin, a Norwegian minister noted that there is a customs border between these states with customs checks. This is despite Norway being a member of Schengen which allows passportfree travel with Sweden and Finland.116 On this basis, the Norwegian model per se would not meet the guarantees offered by the UK in the Joint Report. The Swiss model is one of multiple bilateral agreements numbering around 120.117 It includes an agreement on customs security simplifying the operation of customs controls at the border by inter alia removing the need to notify of exports in advance which is important for the 20,000 trucks crossing the shared borders daily.118 This does not remove border controls although intelligence is used to identify suspect

112  HM Government, The Future Relationship between the United Kingdom and the European Union Cm 9593 July 2018; T Connelly, ‘Brexit, the White Paper, Westminister Chaos and the Few Choices Remaining’ July 2018. https://www.rte.ie/news/analysis-and-comment/2018/0721/980069-brexit-tony-connelly/. 113  Article 3(3) TEU; Snell reminds us that the nature of the internal market is contested, lacks clarity and tends toward circulatory with an internal market understood by reference to the four freedoms but the four freedoms having to be understood in the context of an internal market. See J Snell, ‘The Internal Market and the Philosophies of Market Integration’ in C Barnard and S Peers (eds), European Union Law (Oxford, Oxford University Press, 2014) 300. 114  S Togan, ‘The EU-Turkey Customs Union: A Model for Future Euro-Med Integration’ MEDPRO Technical Report No 9 (March 2012). 115  For a comprehensive review of EEA law, see C Baudenbacher (ed), The Handbook of EEA Law (Basel, Springer, 2016). 116  M Berger Røsland, ‘Norway’s Relationship with the EU in Light of Brexit’ (Dublin, 9 November 2017), www.regjeringen.no/en/aktuelt/statement_iiea/id2578433/ (last accessed 4 May 2018); de Mars, Murray, O’Donoghue and Warwick (n 44) 7. 117  M Maresceau, ‘EU-Switzerland: Quo Vadis’ (2011) 39 Georgia Journal of International and Comparative Law 727. The author notes that the Swiss also frequently unilaterally align their laws with those of the internal market to reduce trade friction for Swiss exports. 118  Agreement between the European Community and the Swiss Confederation on the simplification of inspections and formalities in respect of the carriage of goods and on customs security measures [2009] OJ L199/24. For a presentation on the Swiss agreements see www.eda.admin.ch/dam/dea/en/documents/ folien/Folien-Abkommen_en.pdf (last accessed 4 May 2018).

Articles—Maher 67 vehicles, be it cars or trucks and vehicles can be stopped far away from the border. While the British Government has put a lot of emphasis on the use of technology, and some technology is already in place in relation to the Northern Ireland border, eg vehicle registration recognition, the Swiss experience suggests that this does not remove the need for physical inspections to check goods and to deter smuggling and other illegal activities around what has always been a contested border.119 Hence the Swiss model would also not meet the guarantee of no border. The UK Government is careful to say that having looked at other agreements, it is not seeking to replicate any of them, suggesting a bespoke solution.120 The options it has put forward to address its departure from the internal market and the Customs Union (the customs partnership and max fac) are politically contentious in the UK, have not been accepted by the EU and both are novel with the latter in particular radical.121 Unlike the Turkey Customs Union agreement, the UK wants an agreement that would cover all goods. The Turkey–EU Customs Union does not include agricultural products. Given that this sector is particularly integrated between ­Ireland and Northern Ireland, the Turkish model is not suitable122 and in fact the UK is keen to prioritise agreement on Sanitary and Phytosanitary measures to facilitate agrifood trade.123 Finally, while a border in the Irish Sea is the necessary outcome of the EU Draft Agreement, this has been rejected by the UK Government124 and indeed given the volume of trade between Ireland and Great Britain this is a challenge for Ireland economically. The next phase of negotiations will need to address this tension between trade and British Constitutional arrangements. McMahon125 discusses two options for Northern Ireland after Brexit: first, that it (but not the rest of the UK) joins the EEA, as proposed by the European Policy ­Centre.126 He warns that the EEA proposal would need a number of modifications, eg to be extended to agriculture. The powers of the Northern Irish Executive also would need to be extended so it could harmonise its rules on, eg veterinary and foodstuffs issues and phytosanitary measures. Because it would be necessary to establish the origin of the goods as Northern Irish to avoid customs duties for other UK goods going into Ireland, this would not remove the need for customs checks in relation to the land border, as the authors of the European Policy Centre report acknowledge.

119 K Hayward and M Komarova, ‘Written Evidence Submitted to the Northern Ireland Affairs Committee’s Inquiry into the Future of the Land Border with the Republic of Ireland’ (BDR0026) 5 December 2016. 120  HM Government, ‘Future Customs Arrangements: A Future Partnership Paper’ (15 August 2017) para 29; HM Government, ‘The United Kingdom’s Exit from and New Partnership with the European Union’, Cm 9417, 2 February 2017 (last updated 15 May 2017) para 8.47. 121  HM Government, White Paper, July 2018 (n 93). 122  UK Government, Northern Ireland and Ireland Position Paper (n 15) para 50. 123  UK Government, Northern Ireland and Ireland Position Paper (n 15) para 55. 124  UK Government, Northern Ireland and Ireland Position Paper (n 15) para 53. 125 J McMahon, ‘Northern Ireland and Brexit: Avoiding a Hard Border—EEA or a Special Protocol?’ (4 December 2017). UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No 21/17. Available at SSRN: https://ssrn.com/abstract=3082202 or http://dx.doi.org/10.2139/ ssrn.3082202 (last visited 4 May 2018). 126  B Doherty, J Temple Lang, C McCrudden, L McGowan, D Phinnemore and D Schiek, ‘Northern Ireland and Brexit: The European Economic Area Option’ (European Policy Centre Discussion Paper, 7 April 2017).

68  The Irish Yearbook of International Law 2016–17 Also, the clear guarantees given to the Good Friday Agreement and the acknowledgement of the constitutional status of Northern Ireland as part of the UK in the Joint Report would render this proposal difficult.127 The second model is more promising with McMahon proposing a Protocol on trade on the island of Ireland. This is based on an amalgam of the West German protocol that allowed the then West Germany to continue to trade with East Germany as if they were a single territory,128 and the rules on Cypriot accession requiring the UK Sovereign Base areas in Cyprus (which were excluded from the accession treaty) to apply the relevant EU customs measures on goods entering or leaving them and the free movement of goods across the divided island.129 These arrangements did not necessitate that the territory from which the goods arrived become part of the Member States of the EU, but in effect recognised their special status. For West ­Germany, this meant it did not have to apply the Custom Union rules to goods arriving from East Germany. For the other Member States, the rather woolly language of the ­Protocol was that they could take measures to prevent any difficulties arising from trade with West Germany because of this arrangement. The European Court interpreted this as allowing for prior authorisation but set a fairly high bar—that a ban on German goods where origin was not clear as between the two parts would only be justified if it would constitute a threat to the importing Member State economy as a whole.130 The challenge with this model is that it would be necessary to note the origin of Northern Irish goods to allow their importation without duty into Ireland unless goods were checked on entry onto the island, which may undermine the commitment to the UK internal market in the Joint Report.131 Second, the old German model is one way: it does not address West German goods going to East Germany so it only operates as a model for one side of the border as it does not address the question of Irish goods moving to Northern Ireland. In relation to Cyprus, Zenios warns against it being viewed as a model, certainly in relation to the border between the two parts of the island given its fortification. However, it is worth noting that the EU rules allow goods validated by the Greek-Cypriot Chamber of Commerce as originating in the North can be imported without duty. Nonetheless, smuggling, and even more so, illegal migration, are major issues.132 Illegal migration is not an issue for the Irish land border given the very different history of the CTA but nonetheless smuggling is a concern. Hence the UK Government is right: no ­existing model

127 

Joint Report (n 6) para 44. Protocol 3, Treaty establishing the European Economic Community, (Treaty of Rome); McMahon (n 125) 10; J-P Jacqué, ‘German Unification and the European Community’ (1991) 2 European Journal of International Law 1, 3–5. 129  Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded—Protocols No 3 and No 10 on Cyprus [2003] OJ L236/940 and 955. 130  Case 12/88 Schäfer Shop BV v Minister van Economische Zaken [1989] ECR 2956. 131  Joint Report (n 6) para 45. 132  S Zanios, ‘There are Few Good Solutions from a Divided Cyprus for Northern Ireland’ (London School of Economics), available at http://blogs.lse.ac.uk/brexit/2017/11/16/there-are-few-good-from-adivided-cyprus-for-northern-ireland/ (last accessed 4 May 2018). 128 

Articles—Maher 69 is likely to work should it leave the internal market and Customs Union. These are useful precedents as McMahon reminds us, in particular in relation to the German experience before 1989, Cyprus and, to a limited degree, Switzerland133 so should a bespoke solution emerge for Northern Ireland these are likely to have some variation to take account of the need for a soft land border. The UK and EU have agreed on a transition period to 31 December 2020 with the issue now being whether a longer transition can be agreed to facilitate the introduction of technologies that will make a reality of a frictionless border—the max fac with delay.134 One ambiguity that remains is that the British Government consistently refers to a frictionless border, while the EU (and Irish Government) refers to the current border as invisible. It is not clear if invisibility is the same as frictionless. This immediately makes clear the challenges ahead in the second round of negotiations given that the time frame is short and the full application of EU law during an extended transition period will be politically difficult for the UK. Whether Northern Ireland can be differentiated from the Great Britain, or the UK operates as a single trading entity, remain key issues between the UK and the EU and calls for a delicate balance of economic and constitutional concerns. CONCLUSION

The CTA can be maintained post-Brexit in a narrow and technical sense of allowing British and Irish citizens free movement and even the more extensive rights associated with it. The threat to the CTA is the broader context of the withdrawal of the UK from the internal market and especially the Customs Union, potentially requiring regulation of imports and exports at the one shared land border between the UK and the EU. The land border is the only border where the CTA reaches its full potential, is the most fragile politically and is a key achievement of the Belfast/Good Friday Agreement. An invisible border is not possible where goods cannot move freely, and customs requirements need to be addressed. Some technical and ad hoc inspections at some distance from the physical border can be achieved but are not full solutions. A border in the Irish Sea would be a functional solution for the land border but is unattractive economically given Northern Ireland and Ireland both have far more trade with Great Britain. It is also unattractive politically for Northern Irish unionism and the UK government. The continuation of the UK in the Customs Union and the internal market would maintain the seamless border. Given that this may not happen, creative solutions and alignment of laws will minimise impact but the seamless operation of the CTA within the context of common membership of the EU is likely to change in acknowledgement of the new political and legal realities of Brexit.

133  The Swiss model of over 100 agreements is not one the EU wishes to replicate with negotiations for a framework agreement having started. See European Parliament, ‘The European Economic Area (EEA), Switzerland and the North, Factsheets on the European Union’, available at www.europarl.europa.eu/ atyourservice/en/displayFtu.html?ftuId=FTU_5.5.3.html (last accessed 4 May 2018). 134  Draft Withdrawal Agreement (n 8) Article 121.

70 

The Implications of the Good Friday Agreement for UK Human Rights Reform CRG MURRAY, AOIFE O’DONOGHUE AND BEN TC WARWICK*

Abstract Speculation is rife over the impact of the Good Friday/Belfast Agreement upon the Conservative Government’s plans to repeal the Human Rights Act 1998. In the face of this speculation, the UK’s Conservative Government has provided little detail as to how UK human rights reform will address the requirement for incorporation of the European Convention on Human Rights in the Northern Ireland settlement. We therefore analyse the Agreement as both an international treaty and peace agreement and evaluate its interrelationship with the Human Rights Act and the Devolution Acts. Once the hyperbole surrounding the Agreement and its attendant domestic legislation is stripped away, the effects of the 1998 settlement are in some regards more extensive than has to date been recognised, whilst in other respects are less farreaching than some of the Human Rights Act’s supporters claim. The picture that emerges is of an intricately woven constitution dependent on devolution arrangements, peace agreements and international relationships. INTRODUCTION

S

HORTFALLS IN HUMAN rights protection exacerbated and sustained the conflict in Northern Ireland.1 As such, the Good Friday/Belfast Agreement (GFA) foregrounds human rights safeguards.2 The place of human rights within Northern Ireland’s legal order nonetheless remains contested by Northern Ireland’s political parties. This friction has been highlighted by the Conservative Government’s commitment to replace the Human Rights Act 1998 (HRA) even though the advent of Brexit has slowed these plans and other Brexit-related human rights

* Reader, Newcastle Law School; Professor, Durham Law School; and Lecturer, Birmingham Law School. Our thanks to Sylvia de Mars (Newcastle) and Anne Smith (Ulster) for their encouragement and comments upon earlier drafts of this article. Any errors remain our own. 1  See B Dickson, ‘The Protection of Human Rights—Lessons from Northern Ireland’ (2000) European Human Rights Law Review 213, 214. 2  Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (with annexes) (1998) 2114 UNTS 473.

72  The Irish Yearbook of International Law 2016–17 c­onsiderations have come to the fore. Sinn Féin has condemned the policy as ‘a direct attack on the Good Friday Agreement and the international treaty signed by the British and Irish Governments, which gives legal effect to the agreement’.3 The Democratic Unionist Party (DUP), by contrast, has been broadly supportive of repeal, and has down-played the links between the HRA and the GFA. A representative noted that, ‘[t]he concept that the Human Rights Act 1998 was in some way central either to the Good Friday Agreement or to its passage by way of referendum is a high level of revisionist history’.4 Unionist opposition to rights discourse is deep-rooted. It is partly premised upon an historic commitment to the place of parliamentary sovereignty within constitutional arrangements resulting from the Glorious Revolution of 1688–89.5 Unionist antipathy towards the European Convention on Human Rights (ECHR)6 developed during the Northern Ireland conflict, amid concerns that high-profile Strasbourg judgments including Ireland v United Kingdom,7 Brogan v United Kingdom8 and McCann v United Kingdom9 prioritised individual rights at the expense of security considerations. However, in spite of this distrust of human rights arrangements, under David Trimble’s leadership, the Ulster Unionist Party (UUP) accepted the place of enhanced human rights protections within the eventual GFA settlement. Unionists might not have enthusiastically ‘picked up the human rights ball and [run] with it’,10 but they accepted that rights-based commitments would become a prominent part of the post-GFA legislative settlement. The Northern Ireland Act 1998 (NIA) makes the ECHR enforceable with regard to Northern Ireland Assembly legislation and the activities of the Northern Ireland Executive. The HRA can also be relied upon in the Northern Ireland context as it renders the ECHR rights enforceable in respect of Westminster legislation and the activities of public bodies throughout the United Kingdom (UK). Proposals for repeal of the HRA potentially put these protections at risk. The repeal proposals also threaten Westminster’s relationship with the N ­ orthern Ireland Assembly and expose rifts between unionist and nationalist parties over human rights.11 Although the proposals also raise inter-institutional frictions with the UK’s other devolved legislatures, the place of devolution and human rights

3 

Caitríona Ruane, MLA, NIA Deb, vol 105, no 2, page 41 (1 June 2015). Peter Weir, MLA, NIA Deb, vol 105, no 2, page 48 (1 June 2015). 5  See A Morgan, The Belfast Agreement: A Practical Legal Analysis (Belfast Press, 2000) 358–59. See also C Turner, ‘Political Representations of Law in Northern Ireland’ (2010) PL 451, 454–56. 6  European Convention on Human Rights and Fundamental Freedoms (1953) 213 UNTS 222. 7  Ireland v United Kingdom (1978) 2 EHRR 25, relating to inhuman and degrading treatment of republican internees. 8  Brogan v United Kingdom (1989) 11 EHRR 117, relating to police pre-charge detention powers in Northern Ireland found to breach the right to liberty. 9  McCann v United Kingdom (1996) 21 EHRR 97, relating to breach of the right to life as a result of inadequate planning in an SAS operation in which three Provisional IRA members were shot dead. 10  P Mageean and M O’Brien, ‘From the Margins to the Mainstream: Human Rights and the Good Friday Agreement’ (1998) 22 Fordham International Law Journal 1499, 1538. 11  Equality and Human Rights Commission, ‘The Case for the Human Rights Act: Part 1 of 3 Responses to the Commission on a Bill of Rights: HRA Plus not Minus’ (2011) 86. Available at www.academia. edu/28366994/The_case_for_the_Human_Rights_Act_PART_1_OF_3_RESPONSES_TO_THE_ COMMISSION_ON_A_BILL_OF_RIGHTS_HRA_PLUS_NOT_MINUS (last accessed 16 May 2018). 4 

Articles—Murray, O’Donoghue and Warwick 73 within the GFA raise particular issues.12 The confluence of the UK’s GFA obligations, the rift between the Northern Ireland parties over the application of humanrights norms within Northern Ireland’s governance and the complexity of relations between Westminster and the devolved Assembly has produced an ‘obscure yet systemic constitutional conundrum’.13 This article analyses the impact of this conundrum upon human rights reform in the UK. We argue that substantive reform to how the HRA applies in Northern Ireland will face barriers in both international and domestic law which are, under the current settlement, all but insurmountable. We first outline the pressure upon the HRA and how its detractors have failed to address its significance within the GFA. Second, we consider how the GFA’s obligations upon the UK (as a peace settlement and international agreement) impact upon reform or repeal of the HRA. Third, we assess whether the UK Government needs, as a matter of constitutional convention, to obtain the consent of the Northern ­Ireland Assembly in reforming or repealing the HRA. Fourth, if the UK Government acts in contravention of these obligations, we consider the remedies which exist either under international law. We conclude that these barriers to HRA reform can only be overcome through a proactive redrawing of the human rights and devolution elements within the 1998 settlement. PRESSURE FOR THE HRA’S REPEAL

The HRA formed part of a wider package of constitutional reform that was brought forward in the first term of Tony Blair’s Labour Government. Labour’s consultation process on the Human Rights Bill was framed as ‘bringing rights home’,14 and, as such, the subsequent legislation was a response to the long-recognised need to align the UK’s domestic rights protections with its international legal obligations under the ECHR.15 Prior to the HRA the dualist nature of the UK’s constitutional order meant that, as an unincorporated treaty, the ECHR (and with it the European Court of Human Rights’ (ECtHR) jurisprudence) played a minimal role in domestic civil liberties cases.16 As a result of the inability of domestic courts to resolve many rights claims, the pre-HRA system contributed to a series of embarrassing adverse ECtHR judgments. As the renown of the Strasbourg system grew, an increasing number of

12  Perhaps demonstrated by the First Ministers’ of Scotland and Wales concerns with the GFA’s provisions; Scottish Government, ‘News—First Ministers of Scotland and Wales Meet’. Available at http:// news.scotland.gov.uk/News/First-Ministers-of-Scotland-and-Wales-meet-1988.aspx (last accessed 8 May 2018). 13  P England and A Barnett, ‘Why Does the UK Need a Constitutional Convention? An Interview with Anthony King’ Our Kingdom (29 Jul 2015). Available at www.opendemocracy.net/ourkingdom/anthonybarnett/why-does-uk-need-constitutional-convention-interview-with-anthony-barnett (last accessed 8 May 2018). 14  J Straw and P Boateng, ‘Bringing Rights Home: Labour’s Plans to Incorporate the European Convention on Human Rights into UK Law’ (1997) European Human Rights Law Review 71. 15  J Straw, MP, Rights Brought Home: The Human Rights Bill (HMSO, 1997) para 1.11. Available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf (last accessed 8 May 2018). 16  See Lord Donaldson, HL Deb, vol 560, col 1154 (25 Jan 1995).

74  The Irish Yearbook of International Law 2016–17 claims were lodged from the UK. This volume of cases did not, however, indicate that the pre-HRA arrangements made for an effective system of rights protections. Between the 1960s and the 1990s claims of rights abuses could, in practice, only be escalated to the Strasbourg institutions by a category of able and well-resourced claimants.17 The HRA therefore increased the human-rights role of the UK’s domestic courts. Section 6 imposes a duty upon public authorities to act in a manner compatible with a range of incorporated ECHR rights (unless they are otherwise bound by primary legislation) which can be enforced by the domestic courts. When a literal interpretation of primary legislation permits an abuse of human rights, section 3 obliges judges to re-interpret the legislation in a human rights compliant fashion if it is possible to do so. This provision gives Parliament’s blessing to the judiciary making human-rights compliant readings of statute, in theory shielding them from accusations of unwarranted judicial activism.18 And if a reinterpretation is not possible, as it would go against the grain of the legislation,19 section 4 allows senior judges to issue a declaration of incompatibility, warning Parliament that a measure is at serious risk of an adverse ruling by Strasbourg. Only 20 such declarations have been made since the HRA’s introduction,20 and these notifications can be ignored by the Government and UK Parliament. For example, successive Governments have chosen not to act upon a Declaration of Incompatibility on the issue of prisoner disenfranchisement issued over a decade ago.21 These powers have enabled many clear-cut cases of rights abuses to be dealt with within the UK’s domestic legal orders. The years since the HRA entered force have consequently seen a decline in the number of adverse Strasbourg judgments against the UK, despite a higher number of claims being ­instituted.22 Therefore, if the HRA is measured against its objective of ‘bringing rights home’, it can be deemed a success. Notwithstanding these apparent benefits, many Conservative politicians and large sections of the press have been sceptical of what they consistently label ‘Labour’s Human Rights Act’.23 Disagreement within the Conservative–Liberal Democrat Coalition Government over the HRA’s operation led to the establishment of a Commission on a Bill of Rights in 2011.24 The commissioners agreed that there was an ‘ownership issue’ over human rights for large sections of the public.25

17 

See Straw (n 15) para 1.14. Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264 [24] (Lord Bingham). 19 See Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 [33] (Lord Nicholls). 20  Joint Committee on Human Rights, Seventh Report: Human Rights Judgments (2015) HL Paper 130/HC 1088, para 4.1. 21  Ibid, para 4.13. 22  See A Donald, ‘The Implementation of Judgments of the European Court of Human Rights against the UK: Unravelling the Paradox’ in L Hodson, L Wicks and K Ziegler (eds), The UK and European Human Rights—A Strained Relationship? (Oxford, Hart Publishing, 2015) 135. 23  D Cameron, MP, HC Deb, vol 598, col 311 (8 July 2015). 24  The Commission on a Bill of Rights, ‘A UK Bill of Rights? The Choice Before Us’ vol 1 (December 2012). Available at http://webarchive.nationalarchives.gov.uk/20130128112038/http:/www.justice.gov.uk/ downloads/about/cbr/uk-bill-rights-vol-1.pdf (last accessed 8 May 2018). 25  Ibid, vol 1, 28–29. 18 See

Articles—Murray, O’Donoghue and Warwick 75 This ­disaffection, they noted, had been fuelled by misgivings over the role and influence of the ECtHR within the UK’s legal systems.26 Although, as a counter-majoritarian constitutional device, the HRA was always likely to be relied upon by unpopular or disadvantaged groups within society, the Conservative Party has regularly presented it as ‘a charter for miscreants to pursue their individualistic interests through the courts’.27 The Conservatives have taken issue with the limited ability of courts to re-interpret legislation in a rights-compliant manner as a threat to parliamentary sovereignty.28 They have also castigated the legislation for introducing foreign elements into the UK’s constitutional order, complaining that the HRA’s requirement that the domestic courts ‘take into account’ Strasbourg’s case law29 ‘means problematic Strasbourg jurisprudence is often being applied in UK law’.30 For some of the Bill of Rights commissioners, however, these misgivings were the product of a campaign of misinformation against the HRA31 which has also exaggerated how often the ECtHR finds the UK to be in breach of its commitments.32 THE GFA, HUMAN RIGHTS AND INTERNATIONAL LAW

The GFA involved both a settlement between the parties in Northern Ireland and a bilateral international treaty between Ireland and the UK. In contemporary peace settlements this duality is not unusual, with state-only treaties and settlements having given way to inter-linked settlements between state and non-state actors.33 This shift might well reflect broader changes within international law but it leaves aspects of the concept of a ‘peace agreement’ both under-defined and under-explored.34 The GFA as a Bilateral International Treaty The ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (with annexes)’ comes firmly within the purview of public international law. That both governments sought to have their bilateral agreement indexed with the UN Treaty Series demonstrates the 26 

Ibid, vol 1, 183 (Lord Faulks QC and Jonathan Fisher QC). Donald and E Mottershaw, ‘Identifying Human Rights Stories: A Scoping Study’ (July 2014) 3. Available at www.mdx.ac.uk/__data/assets/pdf_file/0021/135318/Identifying-human-rights-stories-July2014.pdf (last accessed 8 May 2018). 28 Conservative Party, ‘Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’ (2014) 6. Available at www.conservatives.com/~/media/Files/ Downloadable%20Files/HUMAN_RIGHTS.pdf (last accessed 8 May 2018). 29  HRA, s 2(1). 30  Conservative Party (n 28) 4. 31  Commission on a Bill of Rights, vol 1 (n 24) 232 (Lord Lester of Herne Hill QC). 32  See Joint Committee on Human Rights, Seventh Report (n 20) para 2.1–2.2. 33  A database of contemporary peace agreements is available at www.transitionaljustice.ulster.ac.uk/ peace_agreements_database.html (last accessed 8 May 2018). 34  C Bell, ‘Peace Agreements: Their Nature and Legal Status’ (2006) 100 American Journal of International Law 373, 374. 27  A

76  The Irish Yearbook of International Law 2016–17 intended ‘international’ character of the Treaty and its binding nature under international law. The exact legal position of Northern Ireland’s political parties within the GFA is complex. Although the negotiating parties35 reached agreement on the text of the document, only the commitments between the UK and Ireland are legalised.36 Christine Bell notes that the 1998 ‘Agreement’ is in fact composed of two agreements; one between all of the negotiating and consenting parties at the 1998 talks (the multi-party agreement), and another between the UK and Ireland (the inter-state agreement).37 Even though the GFA expressly recognises the interests of the negotiating participants and Northern Ireland’s inhabitants in the fulfilment of its terms, under international law the UK’s obligations are in fact owed to Ireland. This section of our analysis therefore focuses on the Bilateral Treaty between the UK and Ireland and its interpretation under customary international law and the Vienna Convention on the Law of Treaties (VCLT).38 The annexed provisions referred to in the GFA’s full title include the Agreement Reached in the Multiparty Negotiations. Annexes are considered to be essential elements of a treaty and are thus not less binding than the main text unless an agreement indicates otherwise, which is not the case with the GFA.39 Within the Treaty’s annexed provision is a section on ‘Rights, Safeguards and Equality of Opportunity’, which opens with the parties affirming a partial catalogue of ‘the civil rights and the liberties of everyone in the community’. Although this account of fundamental rights ‘is purely aspirational as between the political parties’,40 it sets the tone for the subsequent provisions which deal with the two governments’ legislative commitments: The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.41 … The Irish Government will also take steps to further strengthen the protection of human rights in its jurisdiction.42

The conformity of Ireland and the UK’s legislative arrangements with the requirements of the GFA can therefore be evaluated, within international law, by reference to the terms of the Bilateral Treaty and its Annexes. 35  Eight Northern Ireland political parties signed up to the GFA (in order of their then vote-share, the Ulster Unionist Party, the Social Democratic and Labour Party, Sinn Féin, the Alliance Party, the Progressive Unionist Party, the Northern Ireland Women’s Coalition, the Ulster Democratic Party and Labour). The Democratic Unionist Party was the only major Northern Ireland Party to oppose the GFA. 36 For full details of the complexities of peace agreement construction, see C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford, Oxford University Press, 2008) 144. 37  ibid 146. 38  Both parties are signatories to the Vienna Convention on the Law of Treaties 1969 (1980) 1155 UNTS 331. Although Ireland did not accede until 2006, by the mid-1990s the Vienna Convention had come to be regarded as reflective of customary international law; see I Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester, Manchester University Press, 1984) 5–10 and A Aust, Modern Treaty Law and Practice, 3rd edn (Cambridge, Cambridge University Press, 2013) 10–11. 39  GFA, Article 4. 40  Morgan (n 5) 376. 41  GFA, s 6, para 2. 42  Ibid, section 6, para 9.

Articles—Murray, O’Donoghue and Warwick 77 The VCLT provides a method of scrutinising the latitude available under the Bilateral Treaty.43 Under the doctrine of pacta sunt servanda, parties are bound to act in good faith throughout negotiation and implementation, and must abide by a treaty.44 These rules provide the basis for interpreting parties’ conformity with treaty obligations.45 Once a treaty is in force, the states parties—in this case Ireland and the UK—must act in good faith with regard to all elements of the Treaty. The requirements of good faith depend upon the ordinary meaning of a treaty’s terms, considered in light of its object and purpose.46 To ascertain the object and purpose, parties can use both the wording of a treaty and also the preamble and annexes.47 Other relevant materials include instruments made by one or more of the parties in the course of concluding a treaty (and which are accepted by other parties as related to it). Not acting in good faith under international law would include the non-­ performance of a specific treaty term, such as a failure by the UK to introduce legislation incorporating the ECHR into the law of Northern Ireland. A subsequent abrogation of ECHR rights in Northern Ireland could similarly be interpreted as a bad faith breach of international obligations. States cannot invoke changes in the political complexion of the executive or legislative branches of government, or even changes in domestic law, to negate their obligation to act in good faith.48 The GFA as a Peace Agreement State parties to international peace agreements do not merely owe obligations to each other, but also to individuals within their jurisdiction.49 Accordingly, action by the UK Government which violates the terms of the GFA is not only a breach of the UK’s obligations to Ireland, but also a violation of its commitments to the people of Northern Ireland. These commitments to individuals tend to be enforced in more diffuse ways than would be the case with the commitments to other countries, but in the context of the GFA there are a number of local, national and international monitoring bodies and organisations that could flag up potential breaches. With regard to the proposed repeal of the HRA, the Northern Ireland Human Rights Commission has already expressed its concerns,50 civil society organisations have issued

43  See Aust (n 38) and E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford, Oxford University Press, 2011). 44 J Klabbers, The Concept of Treaty in International Law (Kluwer Law International, 1996) 39. See also O Schachter, International Law in Theory and Practice (M Nijhoff Publishers, 1991). 45  VCLT, Article 26. 46  Ibid, Article 31. 47 See V Crnic-Grotic, ‘Object and Purpose of Treaties in the Vienna Convention on the Law of Treaties’ (1997) 7 Asian Yearbook of International Law 141. 48  VCLT, Article 27. 49  On these obligations in the context of peace agreements and human rights, see respectively; ibid 145; M Evans (ed), International Law, 3rd edn (Oxford, Oxford University Press, 2010) 800–01. 50  Northern Ireland Human Rights Commission, ‘Chief Commissioner Responds to Human Rights Proposals’ (12 May 2015). Available at www.nihrc.org/news/detail/chief-commissioner-responds-tohuman-rights-proposals (last accessed 8 May 2018).

78  The Irish Yearbook of International Law 2016–17 ­statements51 and the United Nations Human Rights Committee has been alerted.52 Other non-state bodies, including the United Nations Human Rights Council, the Council of Europe and cross-border groups, could also exert pressure upon the UK to comply with its undertakings.53 The GFA, reflecting the significant mistrust by many within Northern Ireland of loose talk of ‘British values’, does not require ECHR-equivalent protections which would be defined by and adjudicated in the UK. Rather it requires the rights protections of the ECHR itself. As a double lock to ensure Northern Ireland’s elected decision makers’ respect for human rights, the GFA also envisaged that the Northern Ireland Assembly would be bound to legislate in compliance with the ECHR.54 The HRA and the NIA together implement these aspects of the GFA. Under the NIA, the Northern Ireland Assembly can legislate to enhance rights protections within Northern Ireland’s law, but cannot undermine the basic ECHR standards.55 Where Northern Ireland Assembly legislation conflicts with the incorporated ECHR rights, ‘the courts are supreme and are required to strike down all and any “unconstitutional” acts of the devolved legislature’.56 In terms of Westminster legislation, by contrast, HRA mechanisms such as declarations of incompatibility and the reinterpretation clause created ‘a delicate constitutional dialogue, and a dance of deference between the judiciary and legislature but one where ultimately Parliament has the last word’.57 The resultant human rights protections in Northern Ireland are not always entirely coherent. The Northern Ireland Assembly has the power to alter existing statutes within its areas of competence, at which point the Assembly legislation can be struck down by the courts if it is not ECHR compatible. Until the Assembly legislates on one of these devolved matters, however, the courts only possess the limited powers which exist under the HRA over existing Westminster statutes. When the courts identify an inadequate protection in an existing statute it is for the Northern Ireland Assembly to take legislative steps to rectify such provisions. In NIHRC’s ­Application,58 for example, the Northern Ireland High Court declared that the criminal offences relating to abortion operative in Northern Ireland Law, as set out under the Offences Against the Person Act 1861,59 is incompatible with Articles 8 ECHR.60 51  Committee on the Administration of Justice, ‘Tory Plan to Repeal Human Rights Act in NI Would Constitute Flagrant Breach of GFA’ (11 May 2015). Available at http://rightsni.org/2015/05/tory-planto-repeal-human-rights-act-in-ni-would-constitute-flagrant-breach-of-belfastgood-friday-agreement/ (last accessed 8 May 2018); Amnesty International (Ireland), ‘Human Rights Act: Amnesty Warns Repeal Moves Could Undermine Peace In Northern Ireland’ (14 May 2015). Available at www.amnesty.ie/humanrights-act-amnesty-warns-repeal-moves-undermine-peace-northern-ireland/ (last accessed 8 May 2018). 52 Northern Ireland Human Rights Commission, ‘UK Commissions Alert United Nations Committee on Human Rights Act’ (18 Jun 2015). Available at www.nihrc.org/news/detail/uk-commissions-alertunited-nations-on-human-rights-act (last accessed 8 May 2018). 53  See Bell (n 36) 175. 54  GFA, Strand 1, para 26. 55  NIA, s 6(2)(c). 56  A O’Neill, ‘Stands Scotland Where it Did?’ (2006) 57 Northern Ireland Legal Quarterly 102, 106. 57  Ibid, 106. 58  Northern Ireland Human Rights Commission’s Application [2015] NIQB 96 and [2015] NIQB 102. 59  Offences Against the Person Act 1861, ss 58 and 59. See also the Criminal Justice Act (Northern Ireland), s 25. 60  Northern Ireland Human Rights Commission’s Application [2015] NIQB 102 [5] (Horner J).

Articles—Murray, O’Donoghue and Warwick 79 The High Court could not strike down these provisions, as they are contained within an Act of Parliament, but the Assembly (and not Westminster) has the choice of whether and how to amend the legislation. The messiness inherent in such arrangements highlights the half-finished nature of Northern Ireland’s peace process.61 The ­Bilateral Treaty and its Annex envisaged an ‘ECHR-plus’ arrangement for Northern Ireland, whereby the obligations and justiciability of incorporated ECHR provisions would ultimately be supplemented by the Northern Ireland Human Rights Commission’s (NIHRC) work on a Bill of Rights for Northern Ireland.62 When the Commission’s proposals were debated in 2011, however, the Assembly divided 46–42 against their adoption, with the unionist parties combining to block any extension to rights protections in Northern Ireland’s law.63 Having received no responses from the ­Northern Ireland parties to subsequent queries on the proposals, an exasperated Northern Ireland Office minister informed Paul Murphy, Minister for State at the Northern Ireland Office at the time of the GFA, that there was now little scope for pursuing a Northern Ireland Bill of Rights: The House will want to acknowledge the right hon. Gentleman’s part in the Good Friday agreement in trying to pursue the Bill of Rights. Frankly, however, that was when he should have pursued it, instead of squandering the good will that he and his Government had generated at that time.64

In the face of this mixture of apathy and antipathy from the Northern Ireland parties towards altering its human rights arrangements, the UK and Irish governments have consistently reaffirmed the GFA’s human rights provisions in subsequent negotiations. The 2006 St Andrews Agreement reaffirmed the importance of human rights protections65 and in an annex which outlines the UK Government’s obligations relating to ‘Human Rights, Equality, Victims and Other Issues’, new powers were outlined for the Northern Ireland Human Rights Commission.66 The unagreed final draft that resulted from the Haass talks in 2013 placed significant emphasis on the ECHR with regard to parading.67 The 2014 Stormont House Agreement also indicates the ECHR’s continued centrality in the peace process. In the contexts of parades68 and the Historical Investigations Unit,69 compliance with the ECHR is required. Elsewhere, the 2014 Agreement affirms the need for mechanisms for dealing with the

61  See C McCrudden, ‘Consociationalism, Equality, Minorities in the Northern Ireland Bill of Rights Debate: The Role of the OSCE High Commissioner on National Minorities’ in J Morison, K McEvoy and G Anthony (eds), Judges, Transition and Human Rights (Oxford, Oxford University Press, 2007) 315. 62  GFA, s 6, para 4 and NIA, s 69(7). 63  See H Swire, MP, HC Deb, vol 541, col 832 (7 March 2012). 64  Ibid, col 831. 65  ‘Agreement at St Andrews’ (13 October 2006), sections 3 and 8 and Annex E. Available at www.gov. uk/government/publications/the-st-andrews-agreement-october-2006 (last accessed 8 May 2018). 66  Ibid, Annex B. 67  R Haass, ‘Proposed Agreement 31 Dec 2013: An Agreement Among the Parties of the Northern Ireland Executive on Parades, Select Commemorations, and Related Protests; Flags and Emblems; and Contending with the Past’ (31 December 2013) 4. 68 ‘Stormont House Agreement’ (23 December 2014), s 19. Available at www.gov.uk/government/ publications/the-stormont-house-agreement (last accessed 8 May 2018). 69  Ibid, s 31.

80  The Irish Yearbook of International Law 2016–17 past to be ‘human rights compliant’,70 and notes the role of the negotiating parties in promoting human rights in lieu of an agreed Bill of Rights for Northern Ireland.71 Recent negotiations to recommence devolved government at Stormont included discussions around re-starting the Bill of Rights process.72 Human rights issues are not extraneous to Northern Ireland’s peace process, but a consistent thread within it. The ECHR and its institutions provide an international system for the protection of human rights which all the GFA parties could accept as neutral. The ‘foreignness’ of the ECHR to the UK’s legal traditions, which many within the Conservative Party find so suspect, was therefore essential to the Convention’s place within the GFA. The ECHR could not, in 1998 or since, be claimed as particular to the narrative of one community within Northern Ireland.73 This perhaps explains why the UK Bill of Rights Commission recognised considerable reticence from Northern Ireland about the need for HRA reform.74 Indeed, two commissioners went so far as to conclude that in Northern Ireland ‘the existing arrangements … are not merely tolerated but strongly supported’.75 When many of the concerns that are voiced about the HRA in the remainder of the UK concern the rights of prisoners and terrorist suspects, it can come as little surprise when this debate plays out very differently in the Northern Ireland context. The GFA’s Relationship with the HRA The relationship between the GFA and the HRA could therefore appear to be, at most, indirect. The GFA deliberately requires the UK to incorporate the ECHR into Northern Ireland’s legal order, with the substance of this obligation being more important than the legislative instrument used to achieve it. At the time of the GFA, the parties seem to have considered UK-wide rights protections as an interim measure within the peace settlement, to operate while a Northern Ireland Bill of Rights was being drafted. These factors do not, however, negate the GFA’s relevance to the issue of whether the HRA is repealed. Despite the lack of specific reference to the HRA within the GFA, the broader context of a treaty’s operation may be considered in assessing the obligations it generates, including pre-existing and subsequent practice relevant to the treaty’s application. In April 1998 the negotiating parties were on notice of the substantial progress already made towards the HRA’s enactment. The White Paper which preceded the

70 

Ibid, s 21. Ibid, s 69. 72  DUP-Sinn Féin Negotiating Text (9 February 2018). Available at http://eamonnmallie.com/2018/02/ full-draft-agreement-text/ (last accessed 8 May 2018). 73  See G Hogan, ‘Incorporation of the ECHR: Some Issues of Methodology and Process’ in U Kilkelly (ed), ECHR and Irish Law (Jordans, 2004) 13, 16. The ECHR’s cultural neutrality has not prevented the GFA’s human rights provisions and institutions being perceived as a threat by unionists, see Turner (n 5) 451, 457–59. 74  See Commission on a Bill of Rights, vol 1 (n 24) 165. 75  Commission on a Bill of Rights, vol 1 (n 24) 32 (Helena Kennedy QC and Philippe Sands QC). 71 

Articles—Murray, O’Donoghue and Warwick 81 Bill explained some key aspects of its effect upon any devolved institutions which might subsequently be agreed by the Northern Ireland parties.76 Moreover, although the HRA does not in fact incorporate the ECHR in its entirety,77 in Dáil debates the Irish Government was satisfied that it had been. It was noted that, ‘[i]n the area of Human Rights, the British Government undertook to complete incorporation of the European Convention on Human Rights. This was achieved through the Human Rights Act, 1998.’78 Joint Irish–UK Government statements which acknowledge the HRA’s significance for the GFA are also important. The Joint Declaration issued in April 2003, for example, commended the introduction of the HRA and discussed the further extension of human rights protections.79 The ECHR-incorporation provision must also be assessed in light of other elements of the Bilateral Treaty, including the UK Government’s broader commitments to ensure the fair functioning of the criminal justice system80 and the requirement upon the Irish Government to examine ‘the question of incorporation of the ECHR’ as well as to ‘ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland’.81 Under international law the doctrine of reciprocity envisages that a state’s obligations under a treaty are balanced against consequent advantages, an outcome that is mirrored by the obligations upon, and advantages secured by, other state parties. Reciprocity does not necessarily require that state parties mirror each other’s actions in responding to treaty obligations and instead depends upon whether divergent approaches are proportionate in light of a treaty’s aims.82 The Bilateral Treaty envisages different arrangements for implementation of the ECHR into law in Northern Ireland and in Ireland. The GFA does not, for example, explicitly call for the ECHR’s incorporation into Irish law, meaning that the existence of some distinctions in the approaches to rights protection within these jurisdictions do not indicate a breakdown in reciprocity. In light of the obligation upon the UK to make the ECHR rights justiciable within Northern Ireland’s legal order it nonetheless proved difficult for the Irish Government to develop an alternate means by which Ireland could satisfy the equivalent-protection requirement.83 Indeed, once the GFA entered into effect, the Irish Government explicitly based its plans for the incorporation of the ECHR on the HRA model.84 Reciprocity is therefore central to Ireland’s objections to any weakening of human rights protections inherent in HRA reform. As proposals for the HRA’s repeal

76 

Straw (n 15) para 2.23. See HRA, Sch 1 and NIA, s 71(5). The right to an effective remedy (ECHR, Article 13) is not incorporated into UK law and the UK has not signed up to some of the rights contained within the ECHR’s additional protocols (such as Article 2, Protocol 4, on freedom of movement). 78  B Cowen, TD, Dáil Éireann Debates, vol 539, WA 19135/01 (27 June 2001). 79  ‘Joint Declaration by the British and Irish Governments’ (April 2003) Annex 3, para 2. Available at http://cain.ulst.ac.uk/events/peace/docs/bijoint010503.pdf (last accessed 8 May 2018). 80  GFA, s 6, para 8. 81  GFA, s 6, para 9. 82  DW Greig, ‘Reciprocity, Proportionality, and the Law of Treaties’ (1994) 34 Virginia Journal of International Law 295, 298. 83  Morgan (n 5) 395–96. 84  J O’Donoghue, TD, Dáil Éireann Debates, vol 523, WA 20184/00 (5 October 2000). 77 

82  The Irish Yearbook of International Law 2016–17 g­athered pace, Ireland’s then Minister for Foreign Affairs, Charles Flanagan, reminded the Seanad that Ireland had upheld its side of the GFA’s reciprocal arrangements by enacting the European Convention on Human Rights Act 2003.85 The then Irish Minister for Justice and Equality, Frances Fitzgerald, corresponded with her then UK counterpart, Michael Gove, to the effect that ‘[i]t is my Government’s view that, while a domestic Bill of Rights could complement incorporation, it could not replace it’.86 The Irish Government’s position that any weakening of the degree of implementation of the ECHR into the law of Northern Ireland would contravene the Bilateral Treaty therefore has the potential to restrict the UK Government’s HRA reform options. OPTIONS FOR HRA REFORM IN LIGHT OF THE GFA

The 2015 Conservative Party Manifesto pledged to ‘scrap the Human Rights Act, and introduce a British Bill of Rights’.87 In response to questions on the implications of the GFA for the Conservative Government’s plans, the Justice Minister Dominic Raab would only assert that ‘[w]e will consider the implications of a Bill of Rights on devolution as we develop our proposals’.88 His counterpart in the House of Lords maintained that the Government ‘will fully engage with the devolved Administrations and the Republic of Ireland in view of the relevant provisions of the … Good Friday … Agreement’.89 These holding statements indicate that even if HRA reform could satisfy the GFA’s human-rights provisions, its devolution arrangements provide further challenges for the Conservative Government’s agenda. The GFA provided the platform by which power could be devolved to Northern Ireland institutions alongside similar transfers to Wales and Scotland. Westminster ‘loaned’ law-making powers within certain areas of competence to the Northern Ireland Assembly, but maintained its own legal power to legislate in respect of devolved matters.90 The UK Parliament’s sovereignty has, nonetheless, been tempered as a matter of practice by the operation of constitutional conventions when it seeks to legislate in devolved areas. HRA reform, therefore, is a complex proposition for the Conservative Government with its slender Commons majority. The repeated delays in the publication of a draft Bill of Rights point to ministers wrestling with the constitutional difficulties posed by unpicking one element from the 1998 constitutional reforms. In this section we examine the problems facing different models of HRA reform.

85 

C Flanagan, TD, ‘Commencement Matters: International Agreements’ (Seanad, 14 May 2015). Fitzgerald, TD, to Michael Gove, MP (3 February 2016). Available at www.parliament.uk/ documents/lords-committees/eu-justice-subcommittee/RepealofHRAeffectonEULaw/Minister-FrancesFitzgerald-toSofSJus.pdf (last accessed 8 May 2018). 87  Conservative Party, ‘The Conservative Party Manifesto 2015’ 60. Available at www.conservatives. com/manifesto (last accessed 8 May 2018). 88  D Raab, MP, Written Answer 5209 (6 July 2015). 89  Lord Faulks, HL Deb, vol 762, col 2209 (2 July 2015). 90  NIA, s 5(6). 86 F

Articles—Murray, O’Donoghue and Warwick 83 Cosmetic Change to the HRA The most limited way for the Conservative Government to give effect to its headline proposal to scrap the HRA would be to rebadge the legislation in a manner which does not erode the ECHR protections or the role of ECHR institutions. This would involve replacing the HRA with a ‘British Bill of Rights’, which retains the rights incorporated into the UK’s legal orders and the duty of domestic courts to have regard to Strasbourg jurisprudence and the right of individual petition to ­Strasbourg. Such a reform would ‘not appear to depart significantly from the Human Rights Act’,91 and would potentially allow the Conservative Government to circumvent many of the legal and political difficulties surrounding the GFA. The GFA has been read by some as requiring that the HRA must continue in its present form.92 The text of the GFA, however, requires the UK Government to ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’.93 It does not specify the HRA as the vehicle by which this incorporation is to be achieved. As we discussed above, at the time the GFA was concluded the HRA had already made some progress through the UK’s Parliament, a fact which the HRA’s supporters claim implies that the parties saw it as relevant to the ­negotiations.94 Indeed, the then Irish Minister for Foreign Affairs had informed the Seanad that the UK’s obligations were ‘given [effect] in the 1998 UK Human Rights Act’.95 The HRA explicitly extends to Northern Ireland, whereas Wales and Scotland are not mentioned in the text (being covered by implication).96 However, given the Northern Ireland Human Rights Commission’s remit under the GFA to draft a Bill of Rights for Northern Ireland,97 the negotiating parties must have appreciated that the HRA, if enacted, would be a placeholder measure, which would assume at most a background role when a Northern Ireland-specific Bill of Rights came into effect. The substance of the connection established between Northern Ireland’s domestic law and the ECHR, not the legislative form, therefore remains the key to fulfilling the GFA’s requirement. Nonetheless, labelling any replacement for the HRA a ‘British’ Bill of Rights would be loaded with symbolism for Northern Ireland. Throughout the GFA, ‘British’ and ‘Irish’ are used to distinguish the different traditions within Northern Ireland society.98 In this context, regardless of the substance of such legislation, a ‘British’ Bill of Rights would inevitably be perceived as partisan in its operation. Entitling the new legislation, a ‘United Kingdom Bill of Rights’ avoids this specific incongruence with the language of the GFA, but any national appellation within the legislation’s title is likely to remain a point of contention in

91 

European Union Committee, The UK, the EU and a British Bill of Rights (2016) HL 139, para 46. See, for example, S Agnew, MLA, NIA Deb, vol 105, no 2, page 47 (1 June 2015). 93  GFA, s 6, para 2. 94  See Commission on a Bill of Rights, vol 1 (n 24) 252 (A Speaight QC). 95  C Flanagan, TD, ‘Commencement Matters: International Agreements’ (Seanad, 14 May 2015). 96  HRA, s 22(6). 97  GFA, s 6, para 4 and NIA 1998, s 69(7). 98  See, eg, British–Irish Council, British/Irish Agreement, British–Irish Intergovernmental Conference; GFA, Strand 3. 92 

84  The Irish Yearbook of International Law 2016–17 the Northern Ireland context. Therefore, even though an entirely cosmetic change to the title of the legislation would not fall foul of the GFA, even this minimal reform could have a destabilising effect within Northern Ireland. The conformity of any reforms which go beyond a mere rebadging of the HRA with the GFA are very much dependent upon the impact of those reforms on the degree to which the ECHR remains incorporated within the UK’s domestic legal systems. For example, the Conservatives have focused their outline reform proposals on weakening the courts’ power to reinterpret legislation so far as possible to conform with human rights,99 arguing that this power allows courts to adopt unnatural readings of a statute which were not intended by Parliament.100 Proposals also suggest introducing a seriousness threshold for bringing human rights claims, which ‘could undermine the commitment of the UK to facilitate direct access to the courts and to remedies for breaches of the Convention’.101 In light of the fact that the powers Northern Ireland’s courts possess to address statutory human rights breaches are already weak under the HRA, any further reduction in their powers would, in many cases, render human rights protections nugatory. The Conservatives’ most prominent proposal, however, has been to revisit the HRA’s requirement that the UK Courts should take into account interpretations of human rights adopted by the Strasbourg Court.102 At the very least, proposals suggest a reworking of the wording of this provision to make it explicit that the Strasbourg’s human rights jurisprudence is purely ‘advisory’ in character.103 As scope already exists under the HRA for the UK’s courts to adopt interpretations of rights which diverge from the position taken by Strasbourg, such a reform might ultimately be cosmetic in character.104 Any approach which explicitly seeks to prevent the UK courts from relying upon Strasbourg’s jurisprudence will have a substantial impact on human rights in Northern Ireland, and therefore warrants separate consideration. Breaking the Link with the ECHR Institutions In some cases domestic judges have relied upon their duty to ‘take into account’ Strasbourg’s jurisprudence to cleave closely to Strasbourg’s approach to particular rights.105 Leading Conservative ministers have suggested that the HRA therefore makes the UK courts subservient to Strasbourg.106 One of the 2015 ­Conservative

99 

HRA, s 3(1). Conservative Party (n 28) 6. 101  M Murphy, ‘Repealing the Human Rights Act: Implications for the Belfast Agreement’ (2015) 26 Kings Law Journal 335, 342. 102  HRA, s 2(1). 103  Conservative Party (n 28) 5. 104  Roger Masterman reviews jurisprudence under the HRA which confirms that section 2 does not require UK courts to ‘slavishly’ follow or mirror the European Court; R Masterman, ‘Deconstructing the Mirror Principle’ in R Masterman and I Leigh (eds), The United Kingdom’s Statutory Bill of Rights: Constitutional and Comparative Perspectives (Oxford, Oxford University Press, 2013) 111. 105  See, eg, R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, [20] (Lord Bingham). 106  See, eg, J Forsyth, ‘Chris Grayling: I Want to See Our Supreme Court Supreme Again’ The Spectator (28 September 2013). 100 

Articles—Murray, O’Donoghue and Warwick 85 Manifesto’s express objectives was therefore to ‘curtail the role of the European Court of Human Rights’.107 Of particular concern for the Conservatives has been the Court’s ‘living instrument’ doctrine,108 by which some ECHR rights have been given more extensive interpretations than would have been envisaged when the ECHR was drafted. Plans to ‘break the formal link between the British Courts and the European Court of Human Rights’109 are intended to prevent any subsequent extensions of the ECHR rights by Strasbourg jurisprudence from affecting the UK. Once the link has been severed the Conservatives hope that the Strasbourg Court will grant a more substantial ‘margin of appreciation’110 to any efforts by the UK Parliament to restrict the ambit of human rights through clear legislation. In response to these drivers, the Conservative Government could legislate to maintain enumerated rights which are comparable to, or even mirror, those listed in the 1950 Convention in the UK’s domestic law, but resile from the Strasbourg Court’s subsequent interpretations of these rights. The former Bill of Rights Commissioner, Lord Faulks, put the following gloss on proposals to break the link: Our reforms are not about eroding people’s human rights. They are not about walking away from the list of fundamental rights set out in the European Convention on Human Rights. The Government are and will remain committed to the protection of those rights.111

Such statements downplay the significance of upheavals in human rights protections, making them sound like cosmetic changes. Legislation which recapitulates the original rights contained in the 1950 Convention would maintain a substantial degree of incorporation, and some Parliamentarians are convinced that such reforms would be compatible with the GFA’s requirements.112 The Government has actively promoted this view, with one minister solemnly attesting that ‘the protection of human rights is a key part of the Belfast agreement, and our Bill of Rights will continue to protect the rights set out in the European Convention on Human Rights’.113 The GFA, however, expressly stipulates that ‘[t]here will be safeguards to ensure [that] … neither the Assembly nor public bodies can infringe [the ECHR]’.114 Restricting the Northern Ireland courts’ ability to take into account Strasbourg case law would inhibit their assessment of whether actions by public bodies and Assembly legislation are ECHR compliant. Such reforms would therefore substantially weaken human rights protections within the law of Northern Ireland, to the point where it could no longer be said to involve a meaningful incorporation of the ECHR rights.

107 

Conservative Party Manifesto 2015 (n 87) 60. Tyrer v United Kingdom (1978) 2 EHRR 1 [31]. 109  Conservative Party Manifesto 2015 (n 87) 60. 110  Connors v United Kingdom (2005) 40 EHRR 9 [82]: ‘[A] margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions’. 111  Lord Faulks, HL Deb, vol 773, col 282 (24 May 2016). 112  Lord Flight, HL Deb, vol 762, col 269 (1 June 2015). 113  Lord Bridges, HL Deb, vol 773, col 376 (24 May 2016). 114  GFA, Strand 1, para 5. 108 See

86  The Irish Yearbook of International Law 2016–17 Unless the Northern Ireland Assembly consented to the new legislation, imposing such major changes to human rights protections from Westminster would also undermine the GFA’s institutional arrangements. Lord Sewel, who was responsible for piloting the 1998 devolution legislation through the House of Lords, explained that ‘Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’.115 The same convention extends to cover Wales and Northern Ireland.116 If the UK Government proposes any legislation which touches on a devolution matter then under the Sewel Convention such a change would need to be assented to by the Northern Ireland Assembly (and the other devolved legislatures) by means of a Legislative Consent Motion.117 Under the Northern Ireland Assembly’s standing orders Westminster legislation which covers a ‘devolution matter’ includes any measure which touches upon an area of competence transferred to Northern Ireland’s institutions or which attempts to change the Assembly’s legislative competence.118 As the GFA requires,119 the Northern Ireland Assembly has no competence to make laws which are incompatible with incorporated ECHR rights.120 The NIA’s interpretation clause specifies that any reference to ECHR rights within the legislation ‘has the same meaning as in the Human Rights Act 1998’,121 which would mean that any amendment to the HRA would alter the competences of the Assembly, and trigger the need for a Legislative Consent Motion. Even under a hypothetical scenario by which the unionist parties combined to create a slender majority in the current Assembly chamber in favour of HRA reform, the NIA contains consociationalism provisions intended to prevent measures passed by the majority of the Assembly from having a disproportionate impact upon minority community interests. When 30 or more Members of the Legislative Assembly (MLAs) issue a Petition of Concern122 regarding a piece of legislation, it can only be passed if it gains ‘cross-community support’.123 These provisions allow Sinn Féin and the Social Democratic and Labour Party (SDLP) (with 40 MLAs between them) to block a Legislative Consent Motion even though they are in a minority within the 108-member Assembly. Such a response would be in keeping with the settled position of both parties with regard to the HRA. As the SDLP’s Margaret Ritchie told Parliament, Northern Ireland ‘cannot be covered by a UK Bill of Rights’.124 An attempt by Westminster to ignore such an outcome would seriously destabilise Northern Ireland’s institutions. Therefore, although the expectation that Westminster will seek the Assembly’s consent before legislating upon a devolved matter is not enforceable as a matter of law, the UK Government has accepted that attempting to act unilaterally on an issue 115 

Lord Sewel, HL Deb, vol 592, col 791 (21 July 1998). See Murphy (n 101) 336–37. 117  See Commission on a Bill of Rights, vol 1 (n 24) 251 (A Speaight QC). 118  Northern Ireland Assembly, Standing Order 42A, para 10. 119  GFA, Strand 1, para 5 and para 26. 120  NIA, s 6(2)(c). 121  Ibid, s 98(1). 122  Ibid, s 42(1). 123  Ibid, s 4(5). 124  M Ritchie, MP, HC Deb, vol 577, col 370 (12 Mar 2014). 116 

Articles—Murray, O’Donoghue and Warwick 87 so bound up in the GFA would challenge the very nature of the 1998 settlement; ‘We take our responsibilities under the Belfast agreement very seriously; we will not do anything to undermine it and we will work with parties to that end’.125 If these commitments hold any weight a major overhaul of human rights arrangements applying to the UK as a whole would appear to be all but unachievable. Even if such a reform occurred, the NIA allows the Northern Ireland Assembly to strengthen human rights protections in Northern Ireland’s law. As a matter of law it would therefore be possible (unless the British Bill of Rights placed further restrictions on the Assembly’s competences) for the Assembly to reincorporate the ECHR for the purposes of Northern Ireland law.126 In light of the ongoing deadlock over a Northern Ireland Bill of Rights, however, reforms which restricted national protections would have little prospect of being rectified by action in Northern Ireland, and would leave the UK in breach of its GFA commitments.127 More Radical Departures from the 1998 Settlement The two approaches to HRA repeal evaluated above are predicated upon replacing the 1998 Act with a British Bill of Rights which provides for a broadly equivalent statement of rights. This assumption draws upon David Cameron’s pledge, at the 2014 Conservative Party Conference, to replace the HRA with provisions ‘passed in our Parliament rooted in our values’128 and the 2014 Conservative Party Policy Paper which placed a new British Bill of Rights and Responsibilities which will include the original ECHR’s text ‘at the heart of our plan’.129 These plans seemed to become less ambitious after the 2015 general election, to the point that one select committee was left ‘unsure why a British Bill of Rights was really necessary’.130 Since Theresa May has taken office, however, we must consider the possibility of a more radical departure by which the Conservative Government attempted to repeal the HRA and return to the ‘civil liberties’ model which prevailed in the UK’s legal systems before the HRA entered force, albeit Brexit has resulted in many Government plans taking a backseat.131 Any attempt to return to civil liberties along pre-HRA lines, by which individuals were supposedly free to act in any way which does not contravene the law, would 125 Lord Bridges, HL Deb, vol 773, col 376 (24 May 2016). See also Dominic Grieve’s pledge ahead of the 2010 General Election that a UK Bill of Rights would not be imposed ‘against the will of devolved administrations’; D Grieve, MP, ‘Can the Bill of Rights Do Better than the Human Rights Act?’ (30 November 2009). Available at www.dominicgrieve.org.uk/news/can-bill-rights-do-better-human-rightsact (last accessed 8 May 2018). 126  See A O’Donoghue and B Warwick, ‘Constitutionally Questioned: UK Debates, International Law and Northern Ireland’ (2015) 66 Northern Ireland Legal Quarterly 93, 99. 127  See EU Committee (n 91) para 171. 128 D Cameron, ‘Speech to the Conservative Party Conference’ The Spectator (1 October 2014). Available at http://blogs.spectator.co.uk/coffeehouse/2014/10/david-camerons-speech-to-the-­ conservativeconference-full-text/ (last accessed 8 May 2018). 129  Conservative Party (n 28) 5. 130  See EU Committee (n 91) para 46. 131  See D Feldman, Civil Liberties and Human Rights in England and Wales (Oxford, Oxford University Press, 2002) 3–33.

88  The Irish Yearbook of International Law 2016–17 undoubtedly conflict with the GFA and would run into the same devolution challenges that would hamper major changes to the HRA’s core provisions. The 2014 Conservative Party Policy Paper on Human Rights talks up the fact that ‘over the centuries through our Common Law tradition, the UK’s protection of human rights has always been grounded in real circumstance’.132 But this tradition was insufficient to curtail human-rights abuses by state agents during the Northern Ireland conflict and cannot substitute for the incorporation of the ECHR into Northern Ireland’s law. The common law may well have moved on since 1998, with an increasing number of appellate judgments emphasising fundamental rights inherent within the common law,133 but this does not substitute for the ECHR’s catalogue of enumerated rights. The ECHR system has also moved on since 1998. Conterminous with the enactment of the HRA, Strasbourg’s jurisdiction to hear individual claims became compulsory.134 If the UK wished to remain within the ECHR without a general incorporation of the ECHR rights into domestic law, it could not do so on the basis of the temporary grants of jurisdiction to hear individual petitions it had employed into the 1990s. These temporary grants were often used by states to exert leverage over the Court, allowing governments to threaten a state’s withdrawal of individual access to the Court if its judgments became too uncomfortable.135 But even if individual petition, and by extension the oversight of the Strasbourg Court, are now fixed features of the ECHR system, this does not suffice to address the GFA’s requirement for incorporated rights which can be employed before the domestic courts. Rather than attempting to turn back the clock to before 1998, the UK Government could contemplate withdrawing from the ECHR, an outcome supported by many prominent pro-Brexit campaigners.136 During the 2015 UK General Election campaign David Cameron refused to rule out the UK’s withdrawal,137 although after the election he maintained that ‘[o]ur intention is very clear: it is to pass a British Bill of Rights, which we believe is compatible with our membership of the Council of Europe’.138 His successor, Theresa May, has however been even more acerbic towards an ECHR system which, in her view, ‘can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals, and does nothing to change the attitudes of

132 

Ibid, 2. See, eg, AXA General Insurance Limited v Lord Advocate [2011] UKSC 46; [2011] UKSC 46 and R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115. 134  ECHR, Protocol 11. 135  See C Warbrick, ‘“Federal” Aspects of the European Convention on Human Rights’ (1989) 10 Michigan Journal of International Law 698, 709–710. 136  See R Dearlove, ‘Brexit would not Damage UK Security’ Prospect (23 March 2016). Available at www.prospectmagazine.co.uk/opinions/brexit-would-not-damage-uk-security (last accessed 8 May 2018). 137  For an example of the mooting of this option, see M Dathan, ‘David Cameron Refuses to Rule out Quitting the European Convention on Human Rights’ The Independent (6 March 2015). Available at www. independent.co.uk/news/uk/politics/david-cameron-refuses-to-rule-out-quitting-the-european-conventionon-human-rights-10294385.html (last accessed 8 May 2018). 138 D Cameron, MP, HC Debs, vol 598, col 311 (8 July 2015). See also Justice Committee, ‘Oral Evidence: The Work of the Secretary of State for Justice’ (17 July 2015) HC 335, Q54 (Michael Gove). 133 

Articles—Murray, O’Donoghue and Warwick 89 g­ overnments like Russia’s when it comes to human rights’.139 In her campaign to become Conservative leader she recognised that she could not at present gain parliamentary support for withdrawal, and made it clear that she would not pursue such a policy in the remainder of the current Parliament.140 This does not, however, preclude a much more aggressive push against the UK’s membership of the Council of Europe being part of the next Conservative manifesto. Passing a British Bill of Rights in the current Parliament would lay the groundwork for this move,141 which would remain intuitively attractive to many leading Conservatives even if it would certainly undermine the GFA and destabilise politics in Northern Ireland. A  Northern Ireland-Specific Solution The prominence of the GFA’s ECHR incorporation provisions should therefore inhibit any UK Government effort to redraw UK-wide human rights arrangements or withdraw from the ECHR. Because the GFA’s obligations apply specifically to Northern Ireland’s law, however, another option could be to produce a Northern Ireland Bill of Rights and then proceed with reforming the HRA without concern for the GFA’s requirements. We must therefore evaluate whether compliance could be achieved by establishing a separate regime covering its ‘particular … situation’,142 and the difficulties inherent in separating out Northern Ireland from the model of rights protection in the remainder of the UK. Some Conservative Party thinking on the replacement for the HRA has proceeded on the basis of a distinct regime for Northern Ireland. As Dominic Grieve QC acknowledged in 2009, ‘I can see no reason … why our UK Bill of Rights should not make special provision for Northern Ireland to reflect its need to tackle the particular circumstances there’.143 Up until 2012 the Conservatives remained breezily confident that some Northern Ireland provisions could be ‘tagged on’ to UK-wide reform.144 Although the increasing use of the less-considered ‘British Bill of Rights’ wording has been accompanied by equivocation over the place of Northern Ireland in human rights reform,145 in legal terms a separate regime for Northern Ireland would still provide the most direct means of addressing the GFA’s requirements. Christine Bell has gone so far as to argue that the GFA’s reciprocity requirements commit the UK to

139  A Asthana and R Mason, ‘UK Must Leave European Convention on Human Rights, says Theresa May’ The Guardian (25 April 2016). Available at www.theguardian.com/politics/2016/apr/25/uk-mustleave-european-convention-on-human-rights-theresa-may-eu-referendum (last accessed 8 May 2018). 140  See J Parkinson, ‘The Human Rights Act Helps us Hold Power to Account. We Must Defend It’ The Guardian (26 July 2016). Available at www.theguardian.com/commentisfree/2016/jul/26/theresa-mayrepeal-human-rights-act-defend-it (last accessed 8 May 2018). 141  M Wilkinson, ‘Human Rights Act Will be Scrapped in Favour of British Bill of Rights, Liz Truss Pledges’ The Telegraph (22 August 2016). Available at www.telegraph.co.uk/news/2016/08/22/newbritish-bill-of-rights-will-not-be-scrapped-insists-liz-trus/ (last accessed 8 May 2018). 142  M Ritchie, MP, HC Deb, vol 577, col 370 (12 March 2014). 143  Grieve (n 125). 144  H Swire, MP, HC Deb, vol 541, col 832 (7 March 2012). 145  See D Raab, MP, Written Answer 1446 (15 June 2015).

90  The Irish Yearbook of International Law 2016–17 human rights protections throughout the UK and not simply in Northern Ireland.146 The Bilateral Treaty, however, explicitly compares standards of rights protection between Northern Ireland and Ireland, meaning that adjustments in the standard of human rights protections in other parts of the UK cannot, of themselves, be taken to breach the requirements of reciprocity under international law. For its part, the Irish Government has been keen to kick start progress towards a Northern Ireland Bill of Rights, lamenting the absence of renewed commitments from the Stormont House Agreement, ‘despite the best encouragement of this Government’.147 Proposals for a Northern Ireland Bill of Rights could not undermine ECHR incorporation. The sections of the GFA which discuss a Northern Ireland Bill of Rights maintain that no matter what ‘supplementary’ protections might result, the baseline of the relationship between the law of Northern Ireland and the ECHR should be maintained.148 Even if a draft Northern Ireland Bill of Rights satisfied these requirements, this would not necessarily mean that it would simply be accepted by the Assembly. The NIHRC’s Bill of Rights proposals foundered upon unionist opposition to extensions to the rights protections within Northern Ireland.149 Under the Coalition Government successive Northern Ireland Secretaries refused to proceed with the Bill of Rights for Northern Ireland without consensus amongst the main parties in Northern Ireland: [A] legislative consent motion must be passed by the assembly in circumstances where the government brings forward any legislation at Westminster such as a Bill of Rights which will have a significant impact on devolved policy. … The British government is happy to move, but there is no point in moving until we have achieved some sort of consensus which is very much lacking at the moment.150

For his part, the then First Minister Peter Robinson maintained that ‘responsibility of a Bill of Rights lies with the UK Government’, indicating that the DUP is unwilling to expend much effort upon reform.151 Attempts to resuscitate devolution in early 2018 once again mentioned work on the Bill of Rights, but these negotiations ultimately collapsed.152 Moreover, although they are not in a majority in the Assembly, the nationalist parties could employ a Petition of Concern to reject a Legislative Consent Motion which permitted separate human rights protections for Northern Ireland in the context of diminishing human rights protections in

146  See C Bell, ‘Human Rights Act Repeal and Devolution: Quick Points and Further Resources on S­ cotland and Northern Ireland’ (13 May 2015). Available at http://rightsni.org/2015/05/human-rights-actrepeal-and-devolution-quick-points-and-further-resources-on-scotland-and-northern-ireland/ (last accessed 8 May 2018). 147  C Flanagan, TD, (Minister for Foreign Affairs) Seanad Debates (14 May 2015). 148  GFA, s 6, para 4. 149 NIHRC, ‘A Bill of Rights for Northern Ireland: Advice to the Secretary of State for Northern Ireland’ (10 December 2008). Available at www.nihrc.org/uploads/publications/bill-of-rights-for-­northernireland-advice-to-secretary-state-2008.pdf (last accessed 8 May 2018). 150  Owen Paterson, reported in: M Hennessy ‘“Stormont Agreement” Needed for Rights Bill’ Irish Times (23 November 2010). See also T Villiers, MP, Westminster Hall, col 197WH (16 July 2013). 151  P Robinson, MLA, NIA Deb, vol 77, page 32 (17 September 2012). The GFA, it should be noted, explicitly states that a Northern Ireland Bill of Rights should be enacted at Westminster; GFA, s 6, para 4. 152  DUP-Sinn Féin Negotiating Text (n 72).

Articles—Murray, O’Donoghue and Warwick 91 the remainder of the UK.153 Rights abuses committed against Irish people in Great Britain, as exemplified by the cases of the Birmingham Six and Guildford Four, retain a totemic place in nationalism’s narrative. Although UK-wide arrangements were not explicitly required by the GFA arrangements, Sinn Féin and the SDLP could nonetheless claim that their acceptance of the GFA was in part predicated on the progress towards the HRA’s UK-wide protections. There would be little which could incentivise these parties to abandon their settled position of support for the overarching HRA arrangements. With the Conservative Government looking for a means to disentangle the human rights element in the Northern Ireland peace settlement from UK-wide human rights arrangements, it might well come to regret its studied disinterest in the NIHRC proposals and the failure to build towards a Northern Ireland Bill of Rights into the Stormont House Agreement. If separate arrangements which are acceptable to the Northern Ireland Assembly are developed, it is likely that Scotland or Wales will seek a similar dispensation. Even though the GFA’s imperatives do not cover the other devolved legislatures, on a political level they are as unlikely to accept HRA reform as Northern Ireland, and can build upon any campaign against repeal in Northern Ireland. A separate arrangement covering all of the devolved nations might therefore be contemplated, by which the HRA would be amended to confine its operation to the law of the devolved jurisdictions. This would not alter the level of HRA incorporation within the law of any of these jurisdictions, satisfying the GFA’s requirements and obviating the need for Legislative Consent Motions. This approach would nonetheless have obvious costs for the Conservative Government. The distinct character of the Welsh legal sytem, currently slowly diverging from the traditionally conjoined legal system of England and Wales as the Welsh Assembly exercises its legislative competences, would become an undeniable fact.154 Under such an approach, moreover, the Conservatives would have to accept that the HRA will remain, in its amended form, on the statute book, and that their supposedly ‘British’ Bill of Rights would not extend beyond England. INTERNATIONAL LAW’S IMPACT UPON HRA REFORM

Modifying the GFA An alternate way to circumvent the GFA’s restrictions would be for the UK Government to seek to renegotiate the settlement’s human rights provisions. Treaties are, of course, not set in stone. Successor treaties, treaty amendments, engagement of severability provisions and fundamental changes in circumstance all provide recognised

153  See A Smith, M McWilliams and P Yarnell, ‘Political Capacity Building: Advancing a Bill of Rights for Northern Ireland’ (Transitional Justice Institute, 2014) 45–46. Available at www.ulster.ac.uk/__data/ assets/pdf_file/0005/58271/Advancing_a_BOR_NI.pdf (last accessed 8 May 2018). 154  On the emergence of a Welsh Legal System, see Commission on a Bill of Rights, vol 1 (n 24) 247 (A Speaight QC) and C Himsworth, ‘Devolution and its Jurisdictional Asymmetries’ (2007) 70 MLR 31.

92  The Irish Yearbook of International Law 2016–17 means by which the binding character of some or all of a treaty, like the Bilateral Treaty, can be altered. This, however, does not take account of the political questions which form part of the broader context of the Northern Ireland peace process. The first issue arises with regard to the relationship between successor and predecessor treaties.155 While the Irish Government was present at the negotiation of the 2006 St Andrews Agreement, in the end the Agreement was concluded between the UK Government and the Northern Ireland parties. The Irish Government is not a party to this Agreement. However, in being present, Ireland would be regarded as having acquiesced to the amendments made to the GFA arrangements. Annex B of the St Andrews Agreement, regarding human rights, specifically references the HRA, but does not mention the ECHR (putting into context the degree to which the HRA has come in practice to underpin the human rights aspects of the 1998 settlement). The language of Annex B appears to follow the GFA in regarding the ECHR as a human-rights baseline and that in Northern Ireland a form of ‘ECHR-plus’ would be employed in the development of a Northern Ireland Bill of Rights by the Bill of Rights Forum. The St Andrews Agreement can be understood as subsequent practice by the UK and Irish Governments in implementing the Bilateral Treaty. As such, it seems to reinforce the role of the ECHR, rather than undermining it. Article 59 of the VCLT allows treaties to be suspended or terminated, which as a matter of law remains an option available to both Governments.156 The VCLT also allows for successive treaties, an option which is particularly straightforward with regard to bilateral treaties and a route which the Irish and UK Governments have employed since the establishment of the Free State in 1921.157 In the circumstance of suspension or termination, the Bilateral Treaty including the Annex would be suspended or terminated, but the GFA as a political agreement within Northern Ireland would stand. Its political position would instead become a UK constitutional issue between the devolved Government and Westminster rather than a question of international law. In the circumstance of a successive treaty (as with the Anglo-Irish Agreement before) the Bilateral Treaty and Annex could be terminated between the two governments and replacement terms agreed between the two parties. Nonetheless, it is extremely unlikely that such a change would be attempted without the consent of the Northern Ireland political parties. The VCLT allows for the amendment of treaties. One of the issues arising from this option is that it is the Annex to the Treaty that requires amendment rather than the main part of the document. This Annex was of course subject to intense negotiation in Northern Ireland and thus, whilst international law would allow for its amendment, the political viability of such a course of action is a separate issue (in this regard, amendment would take place in the context of the emergent lex post

155  It is notable that the 1985 Anglo Irish Agreement was specifically rescinded by the Bilateral Treaty and cannot therefore be used to interpret the terms of the subsequent treaties. 156  VCLT, Article 59. 157 VCLT, Article 30. See the Government of Ireland Act 1920 and Treaty between Great Britain and Ireland, 1921, available from http://treaty.nationalarchives.ie/document-gallery/anglo-irish-treaty6-december-1921/ (last accessed 8 May 2018). For analysis of the choice of names for the two parties and the nature of the GFA as a treaty, see Morgan (n 5) 64–66.

Articles—Murray, O’Donoghue and Warwick 93 ­bellum or lex pacificatoria).158 This pre-supposes that the Irish Government would be open to an amendment that would change obligation of the ‘ECHR-plus’ protection to one of ‘ECHR-minus’. The Irish Government, however, regards the human rights provisions of the GFA as clear and unchanged: [A] strong human rights framework, including external supervision by the European Court of Human Rights, has been an essential part of the peace process and anything that undermines this, or is perceived to undermine this, could have serious consequences for the operation of the Good Friday/Belfast Agreement.159

As a guarantor of the GFA, the Irish Government has affirmed its responsibility to safeguard its institutions and principles.160 In clearly voicing its intention to carry out this responsibility, the Irish Government is positioning itself as an essential component in any discussion on reform or repeal of the current arrangements. None of the main political parties in Ireland will want to be regarded as not acting to guarantee human rights in Northern Ireland particularly with the recent electoral success of Sinn Féin across the island. Negotiating a New British–Irish Human Rights Protocol If the UK Government is not to fall foul of the obligations owed to Ireland under international law with regard to Northern Ireland and human rights in the course of the more far-reaching reform options which we have set out above, it will have to engage in a proactive process of treaty renegotiation with regard to the 1998 settlement. The precedent for this process came in 2004, when, as a result of the citizenship referendum in Ireland, changes to Ireland’s Constitution instituted in response to the GFA161 were in part reversed. To maintain its international obligations, the Irish Government first sought the UK Government’s agreement that ‘that this proposed change to the Constitution is not a breach of the … Agreement or the continuing obligation of good faith in the implementation of the said Agreement’.162 Although simple in legal terms, negotiating a new British–Irish Human Rights Protocol would undoubtedly face serious challenges in light of the fact that the 1998 Agreement is not a simple bi-lateral treaty. Both governments would operate under the pressure of perceptions from various constituencies, notably the Northern Ireland parties.163 The Irish Government’s actions in renegotiations would attract pressure from the public in both the Republic and Northern Ireland. A key element of the settlement has been the inclusion of Northern Ireland’s politicians in British–Irish negotiations which affect the region. In 2004 it was notable that the

158  See Bell (n 36) and C Stahn, J Easterday and J Iverson (eds), Jus Post Bellum: Mapping the Normative Foundations (Oxford, Oxford University Press, 2014). 159  Fitzgerald (n 86). 160  C Flanagan, TD, ‘Commencement Matters: International Agreements’ (Seanad, 14 May 2015). 161  Constitution of Ireland, Nineteenth Amendment. 162  Citizenship Referendum: Interpretative Declaration by the Irish and British Governments Regarding the British Irish Agreement (Dáil Debate, 21 April 2004) Vol 583, No 6. 163  See Murphy (n 101) 343.

94  The Irish Yearbook of International Law 2016–17 British–Irish Interpretive Declaration was negotiated in the absence of the Northern Ireland parties (and over the opposition of the SDLP and Sinn Féin). At the time, Mark Durkan alleged that ‘[t]he DUP can now cite a precedent which they can say shows you can unilaterally change, vary and alter the agreement, even going to its constitutional core’.164 This claim, however, fails to take account of Interpretive Declaration’s significance in international law. The centre of his complaint is that the Northern Ireland parties were not also involved. Much as they were excluded from the drafting of the Interpretive Declaration, negotiations on a new British–Irish Human Rights Protocol would be highly unlikely to follow this pattern. On an issue as central to the GFA as human rights, side-lining the democraticallyelected representatives in Northern Ireland could not be countenanced by the Irish Government. As noted above, the Northern Ireland parties’ attitudes towards the human rights elements of the 1998 settlement are by no means uniform, with the DUP maintaining a stance as hostile to these provisions as they had presented in 1998. There seems no obvious route towards cross-party agreement on renegotiation. As such, although renegotiating the human rights elements of the 1998 settlement are a precursor to efforts to repeal the HRA, the necessary inclusion of Northern Ireland’s parties in such negotiations will generate near insurmountable political difficulties. Challenging Unilateral Action by the UK While it is possible to pass a subsequent treaty, or to amend or sever the existing Bilateral Treaty’s provisions, it is not possible for the UK to do so unilaterally. Any modifications by the UK must be done through renegotiation with the Irish Government and, given the circumstances of the GFA, in tandem with the parties in Northern Ireland. It would be near-impossible to reopen the human rights element of the 1998 settlement in isolation from other aspects of the Agreement. If, in spite of these obligations the UK did proceed to act unilaterally, several options would become available to Ireland under international law and the VLCT.165 If it considered the unilateral act to be a material breach, which is a valid interpretation of such action, Ireland would be entitled to terminate or suspend the whole or part of the treaty. Although the GFA’s Bilateral Treaty includes no dispute settlement clause, several options remain open to Ireland if it believes the UK to be in violation of the Agreement. However, one of the more obvious options—an action before the International Court of Justice (ICJ)—does not appear to be a possibility. Both states, in making their declarations of compulsory jurisdiction (the formal recognition of the Court’s authority), have included qualifications that could be interpreted as excluding the other. The Irish Government has the most evident exclusion, which allows for all disputes to be heard at the International Court except those that arise between it and

164  165 

See W Graham, ‘Nationalists Concerned Over Referendum’ Irish News (8 June 2004). VCLT, Article 60.

Articles—Murray, O’Donoghue and Warwick 95 the UK with regard to Northern Ireland. The UK’s declaration is slightly more open in that it states ‘any dispute with the government of any other country which is or has been a Member of the Commonwealth’.166 Whether the UK’s exclusion would include Ireland is questionable. The Commonwealth is a sui generis organisation and if this clause were to be extensively interpreted it would include a vast number of countries which were once part of the British Empire. Which countries are considered a part of the ‘Commonwealth’ changes depending on the definition one uses. One definition of the Commonwealth can be interpreted to exclude those countries which were not part of the organisation in 1949 when the London Declaration made all Member States ‘free and equal’.167 Ireland had passed the Republic of Ireland Act 1948 which came into effect 10 days before the London Declaration, and thus it had left the Commonwealth before its modern incarnation. In any case, however, the Irish Government’s declaration does appear to exclude an ICJ case with the UK regarding Northern Ireland. Although the Irish Government could choose to revoke its declaration, the UK could argue that it relied on the Irish Government’s declaration in its dealings with the country including in respect of the GFA. This position is made more difficult by the date of Ireland’s declaration of compulsory jurisdiction, which took place after the GFA negotiations. Beyond the ICJ, remedies for breach may be available through the Law of State Responsibility. The International Law Commission’s 2001 Articles on State Responsibility for Internationally Wrongful Acts have not been adopted as a treaty, though they are now largely regarded as reflecting binding customary international law.168 An international wrongful act can be an act or omission which is attributable to a state and which constitutes a breach of an international obligation owed by that state. The internal conditions or domestic law of a country are irrelevant to a determination of a breach.169 The Bilateral Treaty imposes international obligations upon the UK, and any of the options for human rights reform which were indicated above as breaching these GFA obligations, would trigger the Law of State Responsibility. Under international law, the injury to Ireland would include both material and moral damage, which are subject to reparations including restitution, compensation and or satisfaction.170 Ultimately, if a state refuses to acknowledge its breach or provide reparations, the injured state can invoke proportionate ‘countermeasures’.171 166  Both states’ declarations are available at www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3 (last accessed 8 May 2018). 167  London Declaration (26 April 1949) lists the UK, Canada, Australia, New Zealand, South Africa, India, Pakistan and Ceylon (Sri Lanka) as members. Available at http://thecommonwealth.org/sites/ default/files/history-items/documents/London%20Declaration%20of%201949.pdf (last accessed 8 May 2018). 168 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), GA Resolution A/56/10. Available at http://legal.un.org/ilc/texts/instruments/english/­ commentaries/9_6_2001.pdf (last accessed 8 May 2018). See also J Crawford, ‘ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96 American Journal of International Law 874. 169  Draft Articles on Responsibility of States for Internationally Wrongful Acts, ibid, Articles 1, 2 and 3. 170  Draft Articles on Responsibility of States for Internationally Wrongful Acts (n 168) Articles 31 and 34. 171  Draft Articles on Responsibility of States for Internationally Wrongful Acts (n 168) Articles 49 and 51.

96  The Irish Yearbook of International Law 2016–17 Even if it is difficult to imagine such a collapse in relations between the UK and Ireland, if the UK does proceed to act unilaterally international law does not leave Ireland without recourse in such circumstances.172 CONCLUSION

A desire for an unalloyed version of national sovereignty, ‘taking back control’ to borrow the Brexit mantra, underpins the Conservative Party’s aversion to the ECHR and fuels its obsessions with the enactment of a British Bill of Rights. Its proposals have, however, given little consideration to Northern Ireland, seemingly taking a leaf out of the late Anthony King’s book and proceeding on the basis that ‘[w] hat happens in Northern Ireland scarcely affects British constitutional development; constitutional development in Britain scarcely affects what happens in Northern Ireland’.173 Our account challenges the wishful thinking inherent in the notion that Northern Ireland has no special influence over the Bill of Rights debate; there can be no ‘British’ Bill of Rights without consideration of its application to Northern Ireland. The GFA, moreover, was not a simple Bilateral Treaty between the UK and Ireland. As the primary instrument enabling Northern Ireland’s peace settlement it became part of the ‘metaconstitutional discourse’ between the two countries.174 As such, it is unsurprising to find that the GFA was anchored in the ECHR and, indeed, in the European Union,175 as established examples of supranational arrangements overarching the relations between the UK and Ireland. It should therefore come as little surprise that attempts at UK-wide human-rights reform will engage the GFA. The UK’s Conservative Government will therefore have to compromise upon the vision of a British Bill of Rights which it has sold to its supporters if it is to respect the Agreement’s terms.

172 If Ireland consented to the UK breaching the Bilateral Treaty this would vitiate any claim to a wrongful act; Draft Articles on Responsibility of States for Internationally Wrongful Acts (n 168) Article 20. 173  A King, The British Constitution (Oxford, Oxford University Press, 2007) ix. 174 N Walker, ‘Flexibility within a Metaconstitutional Frame: Reflections on the Future of Legal Authority in Europe’ in G de Búrca and J Scott (eds), Constitutional Change in the EU: From Uniformity to Flexibility (Oxford, Hart Publishing, 2000) 9, 20. 175  See, eg, GFA, Strand 2, para 17. Space precludes an analysis of the impact of Brexit upon the GFA in this article, but it will have a significant impact upon human rights in Northern Ireland both because of the terms of the EU (Withdrawal) Bill and the Protocol on Northern Ireland to the draft Withdrawal Agreement between the EU and UK. See C Murray, A O’Donoghue and B Warwick, ‘Discussion Paper on Brexit’ (Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission, 23 January 2018). Available at https://www.ihrec.ie/documents/discussionpaper-brexit/ (last accessed 8 May 2018).

NATO–EU Relations: An International Law Perspective1 STEVEN HILL AND DAVID LEMÉTAYER2

O

NE OF THE most important current questions facing the transatlantic ­community is how to promote cooperation between the North Atlantic Treaty Organisation (NATO) and the European Union (EU) to address today’s security challenges. Before moving on to the topic, we would be remiss if we did not recall that in 2013 the then NATO Secretary General Anders Fogh Rasmussen spoke at Dublin’s Institute of International and European Affairs (IIEA) on the great value we attach to Ireland’s participation in the Partnership for Peace.3 NATO and its 29 Allies remain as grateful now as then for the important contribution that Ireland makes to the maintenance of international peace and security. This includes through UN peacekeeping as well as NATO-led operations in Kosovo and Afghanistan and participation in various Trust Fund projects. The partnership with NATO fully respects Ireland’s policy of neutrality. It is a symbol of a mutual commitment to work together to promote the development of a just and peaceful international society based on the rule of law and respect for human rights and fundamental freedoms. These values are also at the heart of the work that NATO and the EU are now undertaking together. NATO and the EU share 22 of the same member countries. Both organisations must stand together, and work together, to continue to protect the interests and security of their people. In July 2016 in Warsaw, NATO Secretary General Stoltenberg signed a joint declaration with Presidents Juncker and Tusk, setting out their determination to move forward together; to increase co-operation in a range of areas; and to do so in a

1  This article builds on a presentation given at the Institute of International and European Affairs on 12 October 2017. See www.iiea.com/event/nato-eu-relations-from-an-international-law-perspective/ (last accessed 9 May 2018). 2  Steven Hill is Legal Adviser and Director of the Office of Legal Affairs at NATO. As Chief Legal Adviser to the NATO Secretary General, he advises on all legal aspects of NATO operations and co-ordinates NATO activities in the legal field. David Lemétayer is Assistant Legal Adviser within the NATO Office of Legal Affairs. The views and remarks expressed in this article do not necessarily reflect the official views of NATO, nor of its members. 3  ‘NATO and Ireland: Working Together for Peace’, Speech by NATO Secretary General Anders Fogh Rasmussen (IIEA, 12 February 2013), www.nato.int/cps/en/natohq/opinions_98369.htm (last accessed 9 May 2018).

98  The Irish Yearbook of International Law 2016–17 spirit of collaboration, and not competition.4 It is indeed vital that both organisations make the most of the means at their disposal, and not waste them through duplication. In December 2016, NATO Foreign Ministers issued a statement on the implementation by staff of the two organisations of that joint declaration, agreeing on practical measures across a wide range of areas. But even more important is the change to the culture of the relationship between the two organisations. Cooperation is now the norm, and not the exception. For example, October 2017 saw an unprecedented set of parallel and coordinated exercises in which NATO and the EU worked together to address a fictitious—yet realistic—hybrid warfare situation breaking out across Europe. In 2018, the EU will lead work on a similar set of parallel and coordinated exercises. This makes it an exciting time in NATO–EU relations. The purpose of this article is to discuss the legal framework that has developed over the years to underpin this cooperation and make it possible. The development of the legal framework is a good lens through which to understand not only the historical development of NATO–EU cooperation, but also its current and future potential. DEVELOPMENT OF THE INSTITUTIONAL AND LEGAL FRAMEWORK FOR COOPERATION

Let us go back briefly in history to review the development of the institution and legal framework for cooperation. This historical legacy is a prime example of how a range of institutions and structures can be made to develop in a way that facilitates cooperation while still respecting different policy orientations, mandates, as well as decision-making autonomy and institutional integrity of each organisation. The current legal situation is the result of parallel developments within NATO, the EU but also within a third actor: the Western European Union (WEU) before its core functions had been carried out either by NATO or the EU.5 A first step was the adoption of the 1992 Maastricht Treaty on the EU which includes provisions on a European Common Foreign and Security Policy (CFSP). According to the Maastricht Treaty,6 the CFSP would include all areas of foreign and security policy/all questions related to the security of the Union, therefore also the military aspects. The WEU would serve as the EU’s military arm. The EU would request the WEU to elaborate and implement decisions and actions of the EU which have defence implications.7

4  Joint declaration by the President of the European Council, the President of the European Commission, and the Secretary General of the North Atlantic Treaty Organization, 8 July 2016, www.nato.int/ cps/ic/natohq/official_texts_133163.htm (last accessed 9 May 2018). 5 In March 2010, the Presidency of the Permanent Council of the WEU, on behalf of its Member States, decided to terminate the Brussels Treaty and cease WEU’s activities by the end of June 2011. 6  Maastricht Treaty, Arts J.1 and J.4 (1). 7  Ibid, Art J.4 (2).

Articles—Hill and Lemétayer 99 The Maastricht Treaty contained an important general provision that the CFSP shall not prejudice the specific character of the security and defence policy of certain Member States.8 This general provision is of course known as the ‘Irish clause’. It also facilitated the subsequent membership of Austria, Finland and Sweden in the EU. Along with the Irish clause, the Maastricht Treaty also provides that the CFSP shall respect the obligations of certain Member States under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework (the ‘NATO clause’). A second step, linked to the previous one, was the adoption, in 1992, of the so-called Petersberg tasks during the Ministerial Council of the WEU.9 Those tasks were addressed a broad range of topics from humanitarian and rescue tasks across peacekeeping tasks to tasks for combat forces in crisis management. The Member States further agreed to deploy their troops and resources from across the whole spectrum of the military under the authority of the WEU, in accordance with their obligations under the UN Charter and the North Atlantic Treaty. At the 1996 NATO Berlin ministerial meeting,10 an agreement was reached whereby the WEU would contribute to establishing a European Security and Defence Identity as a ‘European pillar’ within NATO structures. The compromise reached at Berlin allowed European States—through the WEU—to use NATO assets if they so wished. The EU incorporated the Petersberg tasks on the basis of the 1997 Treaty of Amsterdam, framing a common security and defence policy based on these tasks.11 In 1999, it was decided at the Cologne European Council to incorporate the role of the WEU within the EU. At NATO’s Washington Summit, the Allies declared their readiness ‘to define and adopt the necessary arrangements for ready access by the EU to the collective assets and capabilities of the Alliance, for operations in which the Alliance as a whole is not engaged militarily as an Alliance’12 and reached agreement on proposals made three years earlier in Berlin. Institutionalised relations between NATO and the EU were then formally launched in 2001, with the establishment of joint meetings, including at the level of foreign ministers and ambassadors following an NATO Secretary General and the EU ­Presidency exchange of letters defining the scope of cooperation and the modalities of consultation between the two organisations. This led to the 2002 NATO–EU Declaration on a European Security and Defence Policy13 setting out the political principles underlying the relationship and r­ eaffirmed

8 

Ibid, Art J.4 (4). See www.weu.int/documents/920619peten.pdf (last accessed 9 May 2018). 10  See www.nato.int/docu/pr/1996/p96-063e.htm (last accessed 9 May 2018). 11  Art 17 (2) of the Amsterdam Treaty. The Amsterdam Treaty created the post of the High Representative for the CFSP, tasked with assisting the Council in CFSP matters. The former Spanish Foreign Minister and Secretary-General of NATO, Javier Solana, exercised this function until 2009. 12 In order to avoid the so-called ‘Three Ds’: duplication, decoupling and discrimination. See www.nato.int/cps/fr/natohq/official_texts_27440.htm?selectedLocale=en (last accessed 9 May 2018). 13  See www.nato.int/cps/en/natolive/official_texts_19544.htm (last accessed 9 May 2018). 9 

100  The Irish Yearbook of International Law 2016–17 EU assured access to NATO’s planning capabilities for the EU’s own military operations. Following the principles of ‘separable, but not separate’ forces, the so-called ‘­Berlin Plus Agreement’ of 17 March 2003 provided the institutional foundations of such cooperation.14 This ‘agreement’ referred to a comprehensive package of arrangements, exchange of letters and declarations which was meant to constitute the framework for NATO–EU relations and aimed to allow the EU to use NATO structures, mechanisms and assets to carry out military operations if NATO declines to act. The Berlin Plus Agreement has several parts including ‘Terms of reference for using NATO DSACEUR who is a European for commanding EU-led operation’; ‘assured EU access to NATO planning capabilities’; the ‘presumption of availability to the EU of pre-identified NATO capabilities and common assets’; ‘Modalities for the participation of EU staff in the planning’; and the ‘further adaptation of NATO’s defence planning system to incorporate more comprehensively the availability of forces for EU-led operations’. The implementation of this package was contingent upon the conclusion of an agreement between NATO and the EU on the security of information which was eventually signed in March 2003. It governs access to, exchange and release of ­classified information between NATO, the Council of the EU, the High Representative and the European Commission.15 Subsequently, in 2010, it was expanded so as to also cover the European External Action Service. This information exchange is crucial to the cooperation between both organisations and is an area of close continuing attention. The 2007 Lisbon Treaty brought several important changes, including Article 42 of the TEU and Protocol No 10 on Permanent Structured Cooperation (PESCO) established by this Article. In particular, Article 42 (7) of the TEU introduces a mutual assistance clause, ­mirroring Article 5 of the North Atlantic Treaty, stating that if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the UN Charter.

This commitment is followed by another reiteration of the ‘Irish clause’, permitting the permanently neutral or alliance-free members to opt out of the obligation. Similarly, the ‘NATO clause’ is once again inserted, emphasising consistency with commitments under the Atlantic Alliance, which remains the foundation of the collective defence and the forum for its implementation for its members.

14 ‘On 3 June 1996, at its Ministerial Meeting in Berlin, the NAC decides to adapt the Alliance’s structures so as to build a European Security and Defence Identity within NATO. In particular, the development of the concept of Combined Joint Task Forces (CJTF) should enable Europeans to make use of separable but not separate NATO military capabilities in Western European Union (WEU) operations’. (Final Communiqué of the Ministerial Meeting of the North Atlantic Council on building a European Security and Defence Identity—Berlin, 3 June 1996). 15  Agreement between the European Union and the North Atlantic Treaty Organisation on the Security of Information (14 March 2003) [2003] OJ L80/39.

Articles—Hill and Lemétayer 101 It is interesting to consider the potential interplay between Article 5 of the North Atlantic Treaty and Article 42(7) of the Treaty. Each has only been invoked once: Article 5 in the case of the September 11 attacks and Article 42(7) by France­ following the November 2015 terrorist attacks in Paris. They are both very flexible ­provisions, enabling a wide range of potential responses to an armed attack. They have never been invoked at the same time, although this possibility is not excluded. In this case, for NATO Allies, the ‘NATO First’ principle would apply. NATO and the EU could contribute, each in its own way, to a wide range of areas. This brings us more or less to the present: at the Warsaw Summit in July 2016, the Allies restated that the EU remains a unique and essential partner for NATO and the necessity to reinforce this strategic partnership ‘in a spirit of full mutual openness, transparency, and complementarity, while respecting the organisations’ ­different mandates, decision-making autonomy and institutional integrity, and as agreed by the two organisations’.16 They also welcomed the above mentioned joint declaration by the NATO Secretary General, the President of the European Council, and the President of the ­European Commission, outlining a series of actions the two organisations intend to take together in concrete areas, including countering hybrid threats, enhancing resilience, defence capacity building, cyber defence, maritime security and exercises. As a direct follow-up to the Joint Declaration, the two organisations are opening their activities to each other to gain better knowledge and understanding of each other. As we said at the outset, cooperation is now the established norm and daily practice, fully corresponding to the new level of ambition referred to in the Joint Declaration, providing a solid basis for further enhanced interaction. In December 2016, the North Atlantic Council (NAC) and the Council of the EU approved (in separate and parallel processes) a series of 42 proposals to deepen cooperation recalling that NATO–EU cooperation will continue to take place in the spirit of full openness and transparency and in full respect of the decision-making autonomy and procedures of both organisations. CURRENT AND FUTURE AREAS OF COOPERATION

As a result of the progressive set up of this framework, NATO and EU have progressively expanded their cooperation on crisis management and operations, in particular in the Western Balkans and Afghanistan. In recent years, cooperation has also expanded to maritime security as NATO and EU naval forces have worked together in counter-piracy missions and in response to the refugee and migrant crisis. In 2004, following the conclusion of the NATO-led Stabilisation Force (SFOR) in Bosnia and Herzegovina, the EU deployed Operation EUFOR Althea, drawing 16  At the 2010 Lisbon Summit, the Allies underlined their determination to improve the NATO–EU strategic partnership and the 2010 Strategic Concept committed the Alliance to working more closely with other international organisations to prevent crises, manage conflicts and stabilise post-conflict situations. See www.nato.int/cps/en/natohq/official_texts_68828.htm (last accessed 9 May 2018) para 11.

102  The Irish Yearbook of International Law 2016–17 on NATO planning expertise and other Alliance assets and capabilities. The NATO DSACEUR is the Commander of Operation Althea. The EU Operation Headquarters is located at SHAPE in Belgium. In Kosovo, the NATO peacekeeping force KFOR works closely in the field with the EU’s Rule of Law Mission in Kosovo (EULEX). In Afghanistan, the NATO-led Resolute Support Mission and its predecessor, the International Security Assistance Force (ISAF), have cooperated with the EU’s Rule of Law Mission (EUPOL). Both NATO and the EU supported the African Union’s mission in Darfur, in ­particular with regard to airlift rotations. NATO and EU naval forces have been deployed side-by-side off the coast of ­ Somalia for counter-piracy missions. NATO’s Operation Ocean Shield and EUNAVFOR Atalanta cooperated together for eight years, until the conclusion of Ocean Shield in December 2016. In February 2016, NATO defence ministers decided that NATO should assist with the growing refugee and migrant crisis in Europe. NATO has deployed a maritime force to the Aegean Sea—‘the Aegean Activity’ to conduct reconnaissance, monitoring and surveillance of illegal crossings, supporting Turkish and Greek authorities and the EU’s Frontex agency. A technical agreement concluded last year, at ­operational level, supports this work. At the Warsaw Summit in July 2016, NATO leaders also agreed on a NATO role in the Central Mediterranean, complementing and supporting EU Operation Sophia. This support is now ongoing with ships and maritime patrol aircraft assigned to NATO’s Operation Sea Guardian providing information and logistics. Cooperation and coordination between Operations EUNAVFOR Sophia and Sea Guardian have been enhanced through regular information sharing and logistical support.17 This brings us to the current proposals we already mentioned. Some specific actions are worth highlighting. Ten out of the 42 initial proposals are linked to the fight against hybrid threats. The EU and NATO, along with Member States and Allies, will contribute to and participate in the activities of the European Centre of Excellence for Countering Hybrid Threats set up in Helsinki. This new Centre, which was inaugurated in October 2017, has the potential to become an important focal point for work on hybrid threats facing us in the current environment. Much cooperation is in the cyber area. A ground-breaking Memorandum of Understanding (MOU) concluded last year between the NATO and EU Computer Incident Response Teams enables this cooperation. In that context, in November 2017, the EU participated in NATO’s Cyber Coalition and the NATO Secretary General also took part in a cyber exercise with European Defence Ministers. In December 2017, a common set of new proposals on the implementation of the Joint Declaration18 was endorsed by the North Atlantic Council which will cover 17  In July 2017, NATO Allies agreed to support Operation Sophia in the implementation of UN ­Security Council Resolution (UNSCR) 2236(2016) and 2357(2017) related to the arms embargo on Libya. 18  See www.nato.int/cps/en/natohq/official_texts_149522.htm (last accessed 9 May 2018).

Articles—Hill and Lemétayer 103 other important strands of work, especially military mobility, but also informationsharing in the fight against terrorism, as well as promoting the role of Women in Peace and Security in support of UN Security Council Resolution (UNSCR) 1325. CONCLUSION

In conclusion, in the current strategic environment, EU and NATO are faced with unprecedented challenges: neither organisation has the full range of tools to address these security challenges on its own. Activities of the two organisations are complementary to each other. At the same time, EU–NATO cooperation constitutes an ­integral pillar of the EU’s work aimed at strengthening European security and defence which also contributes to transatlantic burden sharing. Cooperation between the two organisations is essential. A stronger EU and a stronger NATO are mutually reinforcing. Finally, a word about European defence. Recently the EU has taken substantial steps in this regard. These include the launching of PESCO,19 the European Defence Fund (EDF), the creation of a Military Planning Conduct Capability (MPCC), as well as the Co-ordinated Annual Review on Defence (CARD). NATO has welcomed these initiatives provided they are developed in a spirit of coherence, complementarity and transparency. In this context, the possible modalities for the involvement of non-EU Allies, which contribute substantially to E ­ uropean defence overall, will be of paramount importance. In the end, both current and future cooperation rests on a carefully developed legal framework that has evolved over time. The core principles of this framework— especially the respect for different policy orientations, mandates, as well as decisionmaking autonomy and institutional integrity—provide a solid foundation for this work.

19 See https://eeas.europa.eu/sites/eeas/files/pesco_factsheet_09-03-2018_0.pdf (last accessed 9 May 2018).

104 

Correspondent Reports

106 

Irish State Practice on the Law of the Sea 2015 and 2016 RONÁN LONG*

INTRODUCTION

T

HE 1982 UNITED Nations Convention on the Law of the Sea (1982 LOS Convention) and related instruments continue to have a major bearing on Irish state practice on the law of the sea during the report period, which covers the years 2015 and 2016.1 In many ways, the progress development of the law of the sea is inseparable from the development of the law in general. In this regard, there have been many positive developments on the legal landscape, which are tempered by on-going scientific concern about the status of the marine environment and fisheries resources in sea areas adjacent to the island of Ireland.2 In line with international best practice and the European Union’s (EU’s) integrated maritime policy,3 Ireland continues to grow its ocean economy and to implement a distinctive marine plan that is aimed at achieving a more coherent approach to the sustainable ­development of offshore resources. Other remarkable highlights of the progressive development of Irish law over the two-year review period stem from the case law of the Superior Courts of Ireland, as well as the making of new statutory provisions updating the law on baselines. Specifically, the Supreme Court clarified the meaning of the foreshore in Irish law for the purpose of the planning code. In addition, Ireland’s long-established straight baseline legislation was updated in light of the results of a technical survey of the Irish coast using modern geodetic survey techniques. There was significant reform of the laws pertaining to ports and harbours, largely reflecting the outcome and recommendations of a strategic review of Irish port policy undertaken in 2013. Similar to previous years, many other regulatory and policy developments in the maritime domain were shaped by requirements arising under EU law and policies pertaining to the marine environment and commercial sea-fisheries. This has proved

* Nippon Foundation Chair Ocean Governance and the Law of the Sea; Director, WMU-Sasakawa Global Ocean Institute, World Maritime University, Malmö, Sweden. 1  Irish Treaty Series No 1 of 1996. Entered into force with respect to Ireland on 28 July 1996. 2  Marine Institute, ‘Stock Book: Annual Review of Fish Stocks in 2016 with Management Advice for 2017’ (Galway, Marine Institute, 2017). 3  Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Guidelines for an Integrated Approach to Maritime Policy: Towards Best Practice in Integrated Maritime Governance and Stakeholder Consultation’ COM(2008) 395, Brussels, 26 June 2008.

108  The Irish Yearbook of International Law 2016–17 to be a double-edged sword in some respects with experience over the review period demonstrating that the on-going implementation of EU law pertaining to area based management tools in the form of maritime spatial planning instruments, along with marine protected areas, are continuing to pose a number of regulatory and scientific challenges in Ireland. On the other hand, the practical implementation of the Marine Strategy Framework Directive,4 as well as the rolling out of the nascent national policy on marine debris, appear to be largely on track despite some probing and evaluation by the European Commission. The latter in its capacity as guardian of the EU treaties remains vigilant regarding the implementation of EU law in general by the Member States and it is notable that several law enforcement proceedings were pending against Ireland during the review period, including cases concerning the designation of protected areas and the investigation of maritime accidents. There were further developments in the licensing of offshore hydrocarbon exploration and production activities. The implementation of international instruments on maritime labour and training remains a priority for the Irish Government. Other highpoints of the review period include: the relatively high level of compliance with fisheries law at sea, as evident from Naval Service monitoring, control and surveillance activities; the extensive jurisprudence of the Irish Superior Courts on the statutory penalty points system addressing illegal, unregulated and unreported fishing; a statement by the Minister for Foreign Affairs and Trade on the legal status of Rockall; as well as weighty jurisprudence of the Supreme Court on the voisange arrangement with Northern Ireland that sheds considerable judicial light on a relatively arcane but nonetheless important aspect of bilateral fisheries relations. The Law of the Sea Group at the National University of Ireland Galway hosted the First Range State Workshop on the European Eel, CMS Secretariat and the Sargasso Sea Commission. Further afield, Ireland continued to influence the contours of the law of the sea through several important international initiatives including: successful humanitarian missions by the Naval Service to the Mediterranean Sea in response to the migrant crises; the adoption of a leadership role by Ireland at the United Nations in the negotiation of the 2030 Agenda on Sustainable Development; and the active engagement by the Irish delegation in shaping the outcome of the preparatory process negotiations of a new legal instrument on the conservation and sustainable use of biodiversity in areas beyond national jurisdiction. Closer to home, less evident perhaps is Ireland’s commitment to the effective implementation of the 2015 Paris Agreement and the climate change regime, despite the increased frequency of extreme weather events and the ever-increasing threat of sea-level rise. Elsewhere, in line with the spirit and letter of Parts XIII and XIV of the 1982 LOS Convention, ­Ireland continues to engage in a broad range of capacity development initiatives within the wider framework of the law of the sea and ocean governance. We turn first to the status of the ocean economy and the conundrum of sustainable development and the provision of ecosystem services.

4  Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [2008] OJ L164/19–40.

Correspondent Reports—Long 109 BUILDING A SUSTAINABLE OCEAN ECONOMY

Reconciling economic interests with environmental protection is often a contentious consideration in the formulation and implementation of modern law of the sea. In recent years, it is beginning to have a major bearing on the content and shape of regulation that applies to offshore activities in sea areas under Ireland’s sovereignty and jurisdiction. The reasons for this development are numerous, with some of the impetus to balance economic growth with sustainable development derived from European policies such as the European Union’s Blue Growth Strategy and accompanying Roadmap,5 as well as the European Commission’s Action Plan for a Maritime Strategy in the Atlantic.6 There are a number of diverse regulatory methods to balancing and mitigating conflicts between different users of the sea. In particular, economic and social analysis, as well as an assessment of ecological services, must be undertaken under the European Union’s Marine Strategy Framework Directive, which is described in further detail later in the report. The significance of ecological services has also been acknowledged for the first time in the recent adjudication by the International Court of Justice in the case concerning Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua).7 The Court held that ‘damage to the environment, and the consequent impairment or loss of the ability of the environment to provide goods and services, is compensable under international law’.8 The prosperity of many coastal communities in Ireland depends on building a sustainable ocean economy. Against this background, Ireland’s marine plan entitled ‘Harnessing Our Ocean Wealth’ accords in general terms with contemporary EU and international law trends in so far as it provides a blueprint for offshore economic development, along with the improvement of governance and environmental protection, while at the same time fostering sustainable coastal communities.9 Under the scheme advanced by the plan, Ireland’s ocean economy continues to grow faster than the overall economy.10 In 2016, the marine economy had a turnover of over €5 ­billion, amounting to just less than one per cent of gross domestic product (GDP) for the reference year 2014.11 For the purpose of the assessment, the marine sector is

5 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Innovation in the Blue Economy: Realising the Potential of our Seas and Oceans for Jobs and Growth’ COM(2014) 254 final/2, Brussels, 13 May 2014; Commission Staff working document, ‘Marine Knowledge 2020: Roadmap Accompanying Communication Innovation in the Blue Economy: Realising the Potential of our Seas and Oceans for Jobs and Growth’ SWD/2014/0149 final, Brussels, 8 May 2014. 6  Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Action Plan for a Maritime Strategy in the Atlantic Area Delivering Smart, Sustainable and Inclusive Growth’ COM(2013) 279, 15 May 2013. 7  International Court of Justice, reported online, 2 February 2018. For a summary, see www.icj-cij. org/files/case-related/150/150-20180202-SUM-01-00-EN.pdf (last accessed 9 May 2018). 8  Ibid, paras 39–43. 9  Marine Institute, ‘Harnessing Our Ocean Wealth: An Integrated Marine Plan for Ireland’ (Galway, Marine Institute, 2012). 10 Socio-Economic Marine Research Unit (SEMRU), ‘Ireland’s Ocean Economy’ (Galway, SEMRU, 2016) 1. 11 Ibid.

110  The Irish Yearbook of International Law 2016–17 made up predominantly of highly regulated sectors including shipping, sea fisheries, aquaculture, offshore hydrocarbons, and to a lesser degree tourism, marine manufacturing and marine retail services.12 There were some noteworthy successes during the report period, with the aquaculture industry employing 85,000 people and the production of aquaculture products increasing by nine per cent to 44,000 tonnes.13 The export of Irish seafood was worth €559 million, with the industry contributing €1.1 billion to Ireland’s GDP.14 Moreover, during the report period, all of the emerging marine industries were reported as growing strongly including marine technology products and services, marine commerce, bio-technology and marine renewable energy.15 The overall objective of the Marine Plan is to double the value of the contribution of ocean economy to GDP by 2030, with an interim target of achieving turnover of €6.4 billion annually by 2020.16 In meeting the ambitious economic targets, there are environmental costs associated with rolling out the economic blueprint underpinning ‘Harnessing Our Ocean Wealth’ and it will become increasingly more difficult to reconcile economic growth with the sustainability objectives set down under various EU and national instruments over the coming decade. According to the Marine Institute, for example, economic development contributes to nutrient and chemical discharges into the marine environment along with the physical disturbance of marine habitats by pollution, litter, noise and light.17 Increased pressures from land-based and offshore activities have the potential to impair the attainment of good environmental status under the Marine Strategy Framework Directive,18 as well as other environmental objectives under the law of the sea more generally.19 In relation to the use of Ireland’s marine space, the environmental risks are considerable because of the abundance of biodiversity found in Irish waters amounting to 7,300 marine species. This includes 25 species of cetaceans, 600 species of seaweed and 24 species of seabirds.20 Moreover, marine biodiversity helps generate significant economic benefits in its own right in the form of ecosystem services, which are currently subject to evaluation by projects supported by the Environmental Protection Agency, as well as by the EU under the Horizon 2020 programme such as the ATLAS and MERCES projects.21 Furthermore, the conservation and restoration of ecological services is a fundamental objective of Ireland’s National Biodiversity Plan Action for Biodiversity 2011–2016.22 Indeed, in applying an ecosystem approach 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid.

17  Marine Institute, ‘Ireland’s Marine Strategy Framework Directive Article 19 Report—Initial Assessment, GES and Targets and Indicators’ (Galway, Marine Institute, 2013). 18  The Directive will be discussed later in the report. 19  See discussion below on the 2030 Agenda on Sustainable Economic Development. 20 Department of Housing, Planning and Local Government, ‘Towards a Marine Spatial Plan for ­Ireland: A Roadmap for the Delivery of the National Marine Spatial Plan (Dublin, Department of ­Housing, Planning and Local Government, 2016) 6. 21  These will be discussed further later in the report. 22  Department of the Arts, Heritage, Gaeltacht and the Islands, ‘National Biodiversity Plan Action for Biodiversity 2011–2016’ (Dublin, Government of Ireland, 2010).

Correspondent Reports—Long 111 to the management of human activities, priority must be given to the attainment of good environmental status of EU waters in line with the scheme of protection and conservation advanced by the Marine Strategy Framework Directive.23 The latter is therefore of paramount importance in the rolling out of Ireland’s marine plan and in balancing the three limbs of sustainable development. Moreover, implementing measures that contribute to the good ecological status of marine and coastal habitats will also help Ireland discharge some of the regulatory requirements that arise under the Habitats Directive, Water Framework Directive and under the OSPAR Convention for the protection of the marine environment in the North East Atlantic.24 With a view to balancing competing maritime interests, Ireland can use a range of tools including bio-economic modelling and blended fiscal support options as a means to balance competing interests and to discharge the regulatory burden in the era of human-induced climate change. In this regard, perhaps somewhat counterintuitively, some of the most difficult challenges encountered in the on-going efforts to implement Ireland’s marine plan is how to take a gradual and sustainable approach to growing the ocean economy, while at the same time contributing to sustainable development goals.25 Moreover, salutary lessons concerning the growth of new economic sectors can be derived from the proliferation of litigation that continues to afflict the development of commercial aquaculture in Ireland.26 Looking forward, the principal regulatory task for the law of the sea in Ireland is to provide a stable regulatory framework that facilitates the balancing of economic growth with conservation objectives, including strengthening resilience to the adverse effects of climate change. EUROPEAN MARITIME AND FISHERIES FUND

Apart from promoting greater maritime policy and regulatory coherence, the European Commission has sought to provide political and fiscal support for the growth of marine industries in Ireland, as pointed out by the European Commissioner for the Environment, Maritime Affairs and Fisheries, Mr Vella, in his speech to the 2nd Annual Our Ocean Wealth Conference in Cork in 2015.27 The European Union subsequently granted Ireland €239 million under the European Maritime and Fisheries Fund (EMFF) to support the development of the fisheries and aquaculture sectors and maritime projects for the period 2014–2020 in line with the requirements of the EU’s Common Fisheries Policy (CFP) and Integrated Maritime Policy in Ireland.28

23 

Article 1(3), Marine Strategy Framework Directive. See further below. 25 Ibid. 26  Lett & Company Limited v Wexford Borough Council and ors [2014] 2 IR 198; Lough Swilly Shellfish Growers Co-operative Ltd & anor v Bradley & anor [2013] 1 IR 227; Cromane Foods Ltd & anor v Minister for Agriculture, Fisheries & Food & ors [2016] IESC 6; Dunmanus Bay Mussels Ltd v Aquaculture Licences Appeals Board [2014] 1 IR 403; and Barlow & others v Minister for Agriculture, Food and the Marine & others [2016] IESC 62. 27  European Commission Press Release (8 December 2015). 28 Ibid. 24 

112  The Irish Yearbook of International Law 2016–17 The Commission noted the importance of supporting small-scale fishermen and local coastal communities under the financial package, as well as the development of ‘new IT tools and technologies to support control and enforcement, to improve the collection, management and use of data that are vital for a sustainable fisheries sector, and to build knowledge to better protect the marine environment in Ireland’.29 FORESHORE

Much of the economic activity described above takes place on or over the foreshore and is subject to the various statutory consents that apply under the Foreshore Acts and the planning code.30 Clarity in the law that applies to the foreshore is therefore of cardinal importance for both onshore and offshore development adjacent to the coast. Thus, it is noteworthy that the Supreme Court handed down a significant judgment in Fingal Co Council v Kennedy concerning the meaning of the foreshore in Irish law.31 The case concerned an appeal arising out of efforts by the respondent in the High Court, Fingal County Council, to remove the privately-owned vessel Portisham from the quayside at Balbriggan Harbour in County Dublin.32 Specifically, the respondent sought a planning injunction under s 160 of the Planning and Development Act 2000 on the basis that the placement and mooring by the appellant (‘Mr Kennedy’) of the said vessel and his use of it for habitation amounted to an unauthorised development under the planning code.33 The High Court ruled in favour of the respondent and ordered that Mr Kennedy be prohibited from keeping the Portisham at Balbriggan Harbour. At the same time the Court authorised Fingal County Council to remove the vessel for demolition.34 One of the grounds of appeal to the Supreme Court concerned the meaning of the foreshore in Irish law.35 In construing the precise meaning of the term, Ms Justice Laffoy cited Long, Marine Resource Law,36 which stated: Remarkably, although the matter is of considerable importance, there is still some doubt in the public mind about the spatial element of the foreshore. Some of this doubt stems from the general perception that the foreshore is the inter-tidal zone that is covered and uncovered by the ebb and flow of the tide …37

Ms Justice Laffoy pointed out that the author of the book had cautioned that considerable care should be taken with the use of the term ‘foreshore’, which has different

29 Ibid. 30 

R Long, Marine Resource Law (Dublin/London/Hong Kong, Thomson/Round Hall, 2007). In the matter of section 160 Planning and Development Act 2000 (as amended) on application of Fingal County Council and Shane Kennedy [2015] IESC 72. Concurring: Hardiman J, McKechnie J, Clarke J, Laffoy J and Dunne J. 32 Ibid [1]. The Portisham is a decommissioned Royal Navy inshore minesweeper, 32.5 metres in length and in excess of 100 gross registered tonnes. 33  Ibid [11]. 34  HC 18 February 2013. 35  Fingal County Council v Kennedy (n 31) [22]–[29]. 36  Long (n 30). 37  Long (n 30) [2-09]. 31 

Correspondent Reports—Long 113 meanings for different statutory and other purposes.38 In the case at hand, the Court was concerned with the meaning of the foreshore for the purposes of the planning code.39 The Court held that the vessel was located on the foreshore as defined in both the 1933 Foreshore Act and in s 224 of the 2000 Planning and Development Act, being located just below the high-water mark.40 Planning permission was therefore required for any development on the foreshore adjoining the functional area of the Council.41 In relation to the appeal, however, the Court held that the Council had not proved that the vessel was moored or floats over the foreshore in so far as the line of ordinary medium tides may be ascertained for that purpose by reference to the large-scale maps produced by Ordinance Survey of Ireland.42 On the latter point, the decision in Brown v Donegal County Council permitted the admissibility of certified copies of Ordinance Survey maps to establish boundaries, landward or seaward.43 Accordingly, an Ordinance Survey map can be tendered for the purpose of showing the line of high-water.44 In this particular instance, there was no evidence before the Court that the map tendered as evidence was a certified copy of the relevant Ordinance Survey map. That being the case, the Court found that the respondent had not proved that the vessel was moored to and floats over the foreshore. The Court requested further evidence regarding the location of the foreshore before making a determination that the vessel constituted unauthorised development requiring planning permission, which the applicant had neither sought nor obtained. In subsequent proceedings, the Chief Justice was surprised that the Council failed to tender the appropriate technical evidence in the form of certified Ordinance Survey maps.45 The appeal was thus decided in favour of Mr Kennedy.46 The gravamen of the case nonetheless remains that certified Ordinance Survey maps may be tendered in evidence to establish the locus of the foreshore for planning purposes. STRAIGHT BASELINES

A core task for the law of the sea is to establish the spatial extent of coastal State maritime jurisdiction. In this regard, the characteristics of the Irish coast reflect a variety of geographical configurations from a law of the sea perspective. The extent of national jurisdiction over maritime space is measured from the baselines. In line with the decision of the International Court of Justice in the Anglo-Norwegian Fisheries case and in conformity with the Convention on the Territorial Sea and Contiguous Zone 1958,47 Ireland established a system of straight baselines under the

38 

Fingal County Council v Kennedy (n 31) [23] citing Long (n 30) at para 2-16. Section 224, Planning and Development Act 2000, as since amended. 40  Fingal County Council v Kennedy (n 31) [24]. 41  Fingal County Council v Kennedy (n 31) [24]. 42  Fingal County Council v Kennedy (n 31) [29] citing Long (n 30) at [2-18]. 43  Brown v Donegal County Council [1980] IR 132 44  Fingal County Council v Kennedy (n 31) [29] and [30]. 45  Fingal County Council v Kennedy (n 31). 46  Fingal County Council v Kennedy (n 31). 47  [1951] ICJ Rep 116; 516 UNTS 205. 39 

114  The Irish Yearbook of International Law 2016–17 Maritime Jurisdiction Act 1959 and the Maritime Jurisdiction (Straight Baselines) Order 1959.48 There was an absence of precision in the 1959 Order and this shortcoming is addressed by the Maritime Jurisdiction (Straight Baselines) Order 2016, which was made under s 85(2) of the Sea and Fisheries and Maritime Jurisdiction Act 2006 and came into operation on 1 February 2016.49 The 2016 Order replaces the Maritime Jurisdiction (Straight Baselines) Order 1959.50 In doing so, the 2016 Order redresses technical shortcomings highlighted in the case law and academic literature over the intervening years, including important geodetic and cartography matters raised in People (DPP) v Van Onzen.51 As such, there is no change to the general configuration and delineation of the straight baselines under the 2016 Order. With a view to improving the accuracy of the straight baselines, however, the 2016 Order was compiled from data acquired from an extensive resurvey of the 50 basepoints used in the 1959 Order. The technical field work was undertaken by government agencies in a state of the art project using modern geodetic surveying techniques.52 Similar to the original scheme adopted in 1959, the 2016 Order applies to straight baselines that run in a counter clockwise direction from Malin Head in County Donegal to Carnsore Point in County Wexford. In line with best practice, each basepoint in the straight baselines system is recorded in a schedule appended to the 2016 Order in the form of coordinates of latitude and longitude accurate to five decimal places on the World Geodetic System 84 (WGS 84) datum. In addition, a small map is provided for illustrative purposes showing the terminal points in the straight baselines with reference to the numbers in the Schedule to the 2016 Order. The resurvey and updating of the baseline legislation is a welcome and a longoverdue development in Irish law that cleans up the statute book on technical matters concerning the straight baselines. As mentioned previously, the new instrument is of critical importance for the accurate projection of maritime limits and touches many essential aspects of jurisdiction including criminal law enforcement at sea. In general, the law in Ireland conforms with the dicta of the International Court of Justice in Bahrain (Qatar v Bahrain) in that the method of straight baseline delineation codified in the 1982 LOS Convention is applied restrictively and is an exception to the normal rules for the determination of baselines.53 Perhaps one ancillary issue that remains outstanding is that Ireland has yet to avail of its full remit of enabling powers under the 2006 Maritime Jurisdiction Act to enclose a number of bays that meet the juridical bay criteria under the 1982 LOS 48 

No 22 of 1959 and SI No 173 of 1959. SI No 22 of 2016. 50  SI No 173 of 1959. 51  People (DPP) v Van Onzen [1996] 2 ILRM 387. For commentary on the reform of the 1959 legislation, see Long (n 30) 3-24 to 3-29; J Edwards and M Mellett, ‘Ireland’s Maritime Boundaries and the Prosecution of Offences Committed within the Territorial Seas of the State’ (1999) University of Limerick Law Review 91. 52  The baseline review was carried out by a working group chaired by the DFAT with the actual survey work done by Ordinance Survey of Ireland(OSI), Geological Survey of Ireland (GSI), the Naval Service and the Air Corps, with the latter two services getting the surveyors to often remote and otherwise inaccessible points around the coast. 53  Case concerning the maritime delimitation and territorial questions between Qatar and Bahrain (Qatar v Bahrain) [2001] ICJ Rep 40 [212]. 49 

Correspondent Reports—Long 115 Convention,54 such as Dundalk Bay, Dublin Bay, Rosslare Harbour/Wexford Bay and Smerwick Bay in the Dingle Peninsula.55 Indeed, the provisions on bays codified in the 1982 LOS Convention are now considered to express general customary law.56 Furthermore, the closing of bays is significant in view of current developments regarding the expansion of Irish ports and harbours for trade and other maritime purposes including law enforcement operations at sea. PORTS AND HARBOURS

Over 12,242 vessels arrived in Irish ports in 2015 with 4.3 million passengers travelling to and from Ireland by ferry in the same year.57 Ports and harbours are therefore of major economic and security importance in so far as they handle around 84 per cent of international trade in terms of volume and 62 per cent in value.58 The national port policy review in 2013 proposed significant changes to the governance structures that apply to Irish ports. Several of the proposed changes are given effect by the Harbours Act 2015,59 which provides for the transfer of shareholdings in port companies of regional significance to local authorities for the ports of Drogheda, Dún Laoghaire, Galway, New Ross and Wicklow, along with other ports that handle commercial freight. The Act provides a legal basis for the transfer of certain port companies to local authority control and for the dissolution of certain port companies, as well as for a number of statutory amendments to the Harbours Acts 1996 to 2015, the repeal of the Harbours Acts 1946 and 1947, along with the amendment of the Merchant Shipping Act 1992 and the Fishery Harbour Centres Act 1968.60 The streamlining of port ownership and control accords with the recommendation of the 2013 policy in so far as the regional ports are estimated to handle as little as 4.5 per cent of international trade.61 The new structures therefore do not appear to raise any competition law issues. Furthermore, the suggested changes received the imprimatur of the Oireachtas (Irish Parliament) Joint Committee on Transport in its independent assessment of the proposed changes.62 Foreign vessels will continue to use the minor harbours on a needs basis and this is unlikely to change in view of the new structures for port control, which brings about fundamental changes to the Harbours Act 1946 as since amended.63 54 

Article 10, 1982 LOS Convention. (n 30) 3–29. The OSI and GSI also resurveyed the natural entrance points to Dundalk and Dublin Bays and Wexford Harbour with the intention of making an order establishing bay closing lines for those three bays. These lines have been operated on an administrative basis since the 1930s. (DFAT personal communication with the author). 56  Land, Island and Maritime Frontier Dispute [1992] ICJ Reports 588, para. 383. 57 Marine Institute, ‘Harnessing Our Ocean Wealth Review of Progress 2015’ (Galway, Marine ­Institute, 2015). 58  Dáil Éireann Debate Vol 888 No 1, Col 35/102. 59  No 12 of 2015. 60 Ibid. 61  Dáil Éireann Debate Vol 888 No 1, Col 35/102. 62 Ibid. 63  Following on from the enabling legislation, control over Wicklow port was transferred to Wicklow County Council. The regulation for the transfer of Drogheda port was also signed by the Minister for Public Expenditure and Reform in August 2016. The other local authorities commenced a due diligence process with respect to the transfer of the remaining ports. 55  Long

116  The Irish Yearbook of International Law 2016–17 AREA-BASED MANAGEMENT TOOLS

The adoption of area-based management tools took a major step forward with the transposition into Irish law of Directive 2014/89/EU establishing a framework for maritime spatial planning (the MSP Directive).64 The latter is achieved in the main by the European Union (Framework for Maritime Spatial Planning) Regulations 2016.65 The Regulations set out the broad framework and governance structures for undertaking spatial planning of maritime areas, which is defined as the foreshore, the exclusive economic zone of the State, and any area designated by order under the Continental Shelf Act 1968.66 Moreover, in line with the definition of ‘marine waters’ in the parent MSP Directive,67 the geographical scope of the Regulations is extensive in so far as they apply to the waters, the seabed and subsoil over which the State enjoys sovereign rights and jurisdiction including coastal waters.68 Again in accordance with the scheme of the MSP Directive, the material scope of the Regulations is also broad with a narrow exemption that applies to defence or national security related activities.69 Initially, the Minister for the Environment, Community and Local Government was designated as the competent authority for maritime spatial planning. The Regulations however also empowers the Minister to designate other bodies as competent authorities.70 Similar to the approach to MSP in other jurisdictions, the Regulations provide for the preparation of spatial plans having regard to a number of objectives including: supporting sustainable development and growth in the maritime sector; applying an ecosystem based approach to the management of activities that impinge upon the marine environment; and promoting the coexistence of relevant activities and uses of marine areas.71 In particular, the plans must contribute to the sustainable development of several sectors including offshore energy, maritime transport, fisheries and aquaculture, along with environmental protection and improving resilience to the impact of climate change.72 The latter consideration is an urgent matter in view of the frequency and extent of extreme weather events and coastal flooding on Irish coasts, along with the legal requirements to adapt to the effects of climate change that arise under the 2015 Paris Agreement on Climate Change, as will be seen further below.73 Provision is also made in the regulations for public participation in the making and the amendment of the plans, data sharing and use, as well as international

64 

[2014] OJ L257/135. SI No 352/2016. 66  No 14 of 1968. Regs. 2(1), European Union (Framework for Maritime Spatial Planning) Regulations 2016. 67  Articles 3(2) and 3(4), MSP Directive. 68  Regs 2(2), 3(1) and 3(2) of the European Union (Framework for Maritime Spatial Planning) Regulations 2016; s 82 and s 86, Sea-Fisheries and Maritime Jurisdiction Act 2006. 69  Reg 3(3), ibid. 70  Regs 4 and 5, ibid. The competent authority functions were transferred subsequently to the Minister of Housing, Planning, Community & Local Government. 71  Reg 6, ibid. 72  Reg 7, ibid. 73  Reg 7(2), ibid. Irish Treaty Series No 20 of 2016. 65 

Correspondent Reports—Long 117 ­cooperation.74 International cooperation is a fundamental feature of maritime spatial planning and the Minister must engage in transnational cooperation with neighbouring EU Member States whose waters border Irish marine waters, namely France and Spain, with a view to ensuring that the plans are coherent and coordinated across the North-East Atlantic marine region. The latter is very much a core objective of spatial planning in regional and semi-enclosed seas under the MSP Directive.75 This extends in particular to the use of existing regional institutional structures that apply to the North-East Atlantic marine region, such as OSPAR Commission, North East Atlantic Fisheries Commission (NEAFC), International Commission for the Conservation of Atlantic Tunas (ICCAT), North Atlantic Salmon Conservation Organization (NASCO) and other regional seas bodies, as well as by using relevant networks of competent authorities in the Member States. There is also an obligation placed on the Minister to ‘endeavour’ to cooperate with third countries in respect of their actions with regard to maritime spatial planning in adjacent seas.76 At the time of writing, it is anticipated that the UK will constitute a third country when the MSP Directive takes full effect in 2020. Again, the legal basis for such cooperation is through the good offices of multilateral fora or regional institutional structures in accordance with international law. MARINE STRATEGY AND WATER FRAMEWORK DIRECTIVES

Sea areas under Ireland’s sovereignty and jurisdiction are within the North-East Atlantic Ocean marine region and within the Celtic Seas marine sub-region for the purpose of the Marine Strategy Framework Directive (MSFD).77 As highlighted above, all offshore economic development must comply with regulatory measures protecting the marine environment. In 2015–2016, work continued on the development of the marine monitoring programme and indicators of good environmental status under the MSFD. Also in 2016, Ireland submitted a programme of measures to the EU Commission and this is an important milestone in national efforts under the Directive to contribute to the attainment of good environmental status of all European waters by 2020.78 The pace of progress in implementing the MSFD entered a critical phase during the report period and progress in that regard was subject to review by the European Commission.79 Ireland set down the standard of good environmental status of the 74 

Regs 8 to 10, ibid. Reg 11, ibid. 76  Reg 11(3), ibid. 77 Marine Strategy Framework Directive (n 4) See, R Long, ‘The EU Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services’ (2011) Journal of Energy and Natural Resources Law 29 (1) 1–45. 78  Marine Strategy Framework Directive (n 4). 79 Report from the Commission to the Council and the European Parliament, ‘The First Phase of Implementation of the Marine Strategy Framework Directive (2008/56/EC) The European Commission’s assessment and guidance’ COM(2014)097 and Commission Staff Working Document Accompanying the Commission Report assessing Member States’ monitoring programmes under the Marine Strategy Framework Directive (COM(2017)3 and SWD(2017)1 final). 75 

118  The Irish Yearbook of International Law 2016–17 Irish marine environment for all descriptors under the MSFD. This broad-brush approach has since been questioned by the Commission, on the basis that many of the descriptors in the designation process were too ‘general’ in ambit and not sufficiently precise in quantitative and qualitative terms.80 Following on from this, the Commission expressed the view that it was not possible to say that Irish waters satisfied the requisite standard of good environmental status under the scheme advanced by the Directive.81 The descriptors used by Ireland therefore need further refinement to constitute an appropriate framework to monitor progress towards the attainment of the objectives of the Directive.82 On the positive side, there was considerable progress in streamlining the administrative and governance structures that oversee implementation of the MSFD and its sister instrument, the Water Framework Directive, including the establishment of an inter-departmental and agency technical expert group tasked with identifying gaps in national targets, indicators and the monitoring programme. Furthermore, in order to improve the functioning and transparency of local authority structures concerned with the implementation of the Water Framework Directive,83 the Local Authority Waters and Community Office was tasked with promoting better management of the aquatic environment, as well as estuaries, coastal waters and groundwater for the benefit of present and future generations through improved regional structures along with greater stakeholder engagement.84 MARINE PROTECTED AREAS

Similar to other coastal States worldwide, Ireland must meet the target of designating at least 10 per cent of coastal and marine areas as marine protected areas by 2020 to comply with the requirements of the Aichi Biodiversity Targets under the Convention of Biological Diversity.85 This is also a requirement under Goal 14 of the sustainable development goals and the OSPAR Convention.86 As noted in previous reports, the absence of political commitment in several Member States to use marine protected areas (MPAs) as a means to halt the loss of biodiversity has been highlighted by the European Environmental Agency.87 During the report period, a number of issues arose in Ireland in relation to the designation of MPAs in the form of special areas of conservation (SACs) and special

80  European Commission, ‘The EU Environmental Implementation Review Country Report—Ireland’, Brussels SWD (2017) 60, 3 February 2017, at 14. 81 Ibid. 82 Ibid. 83  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L327/1–73. 84  For further information, see http://watersandcommunities.ie/about/ (last accessed 9 May 2018). 85 UNEP/CBD/SBSTTA/18/2. 86  See discussion of the 2030 Agenda on Sustainable Development below. Also, R Long, ‘Law of the Sea; The North East Atlantic and North Sea’ in D Rothwell, A Oude Elferink, T Stephens (eds), Oxford Handbook On The Law Of The Sea (Oxford, Oxford University Press, 2015) 647–71. 87  European Environment Agency, ‘Marine Protected Areas in Europe’s Seas: An Overview and Perspectives for the Future (Luxembourg, Publications Office of the European Union, 2015) 32.

Correspondent Reports—Long 119 protected areas (SPAs) under the Habitats and Birds Directives.88 On the plus side, some progress was made on practical matters including the completion of technical fieldwork to support the implementation of the Habitats Directive. In 2015, for instance, the Department of Arts, Heritage and the Gaeltacht completed monitoring work on marine mammal sites and published conservation objectives for a total of 121 protected sites that form part of the Irish component of the pan-European ­Natura 2000 network.89 Again in 2015, the Codling Fault Zone was identified as a site containing the habitat ‘submarine structures made by leaking gases’ and included in the list of Irish candidate SACs submitted to the European Commission under the Habitats Directive.90 In general, however, progress appears to fall short of the EU timeline in so far as Member States have six years under Article 4(6) of the Habitats Directive to designate protected areas under their national law and to adopt the required conservation measures for species and habitats. In 2016, the European Commission noted that Ireland had not complied with the deadlines and had only designated a minor proportion of sites requiring protection.91 Failure to adopt appropriate conservation objectives and management measures at national level appears to have compounded this oversight. The Commission instituted enforcement proceedings by sending I­ reland a reasoned opinion under Article of the Treaty on the Functioning of the European Union.92 In 2016, the Commission launched an investigation in relation to the completeness of the Natura 2000 network for the marine environment.93 According to its assessment, significant gaps remain in the marine SPA network and the ‘completeness’ of the SCI marine proposals remained undetermined.94 The ­Commission classified the conservation status of a number of aquatic species designated for protection as ‘bad’ including salmon.95 In summary, Ireland needs to complete the designation process for marine sites under the Natura 2000 network and to adopt the relevant conservation objectives and management plans.96 MARINE DEBRIS

The extent of the marine debris and pollution from plastics is a major problem in all oceans and was the subject of international, regional and national regulatory and 88  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7 (Habitats Directive). Transposed into Irish law by the EC (Natural Habitats) Regulations, SI 94 of 1997. 89  Marine Institute (n 57) 40. 90  Marine Institute (n 57). 91  European Commission (n 80). 92  EC. 21 MEMO/16/1452. According to the Commission, this concerns ‘Ireland’s failure to designate the majority of 423 SCIs as SACs within the six-year deadline established by Article 4(4) of the Habitats Directive; define sites specific conservation objectives which underpin the establishment of targeted conservation measures; and put in place appropriate conservation measures, which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.’ European Commission (n 80). 93  European Commission (n 80) at 11. 94  European Commission (n 80) at 11. 95  European Commission (n 80) at 11. 96  European Commission (n 80) at 11.

120  The Irish Yearbook of International Law 2016–17 policy initiatives during the report period.97 In particular, it was the focus of extensive debate and scientific analysis at the seventeenth meeting of the United Nations Informal Consultative Process on the Law of the Sea.98 Moreover, target 14.1 of Sustainable Development Goal 14 (discussed in greater detail below) requires the prevention and reduction of marine pollution of all kinds, including marine debris specifically.99 Tackling marine debris was also addressed at the second session of the United Nations Environment Assembly with a view to advancing the adoption of marine litter action plans and other actions to alleviate plastic litter in the marine environment.100 As part of the Global Partnership on Marine Litter, the International Maritime Organization and the Food and Agriculture Organization (FAO) published a report on marine litter in the context of the London Convention and the London Protocol.101 The FAO addressed litter pollution by the fishing industry by a number of means including publishing a major study highlighting the risks of microplastic pollution contaminating the food chain.102 Marine debris is a significant pollutant in the Irish coastal environment and has been subject to longstanding scientific surveys and studies.103 National mitigation measures underway include: a fishing for litter programme which encourages the industry and ports to collect litter at sea; scientific assessments of micro-plastic in sediments, as well as the ingestion of plastics by seabirds.104 In 2016, tests were conducted on the use of new waste management technologies applicable to the marine environment.105 EU LAW ENFORCEMENT PROCEEDINGS

The European Treaties vest the European Commission with the power to oversee the application of EU law.106 In its capacity as guardian of the EU Treaties, the Commission took a number of initiatives during the report period to improve compliance with EU law. This included the adoption of a new communication on enforcement policy, entitled: ‘EU Law: Better Results through Better Application’.107 In general, the Commission exercises a wide discretion in EU law enforcement and the current enforcement strategy is focused on three strands of infringements, namely: failure to transpose EU directives adequately; failure to comply with a judgment of the Court of Justice under Article 260(2) of the Treaty on the Functioning of the European

97 

United Nations, A/71/74/Add.1, 6 September 2016. United Nations, A/71/204, 26 July 2016. 99  See discussion of the 2030 Agenda on Sustainable Development below. 100  United Nations, A/71/74/Add.1, 6 September 2016. 101  United Nations, A/71/74/Add.1, 6 September 2016. 102 A Lusher, P Hollman, J Mendoza-Hill, ‘Microplastics in Fisheries and Aquaculture: Status of Knowledge on their Occurrence and Implications for Aquatic Organisms and Food Safety (Rome, FAO Fisheries and Aquaculture Technical Paper No 615, 2017). 103  See, eg, OSPAR Marine Litter Survey 2015 and 2016. 104  Marine Institute (n 57). 105  Marine Institute (n 57). 106  Article 17, Treaty European Union. 107  COM(2016) 8600 [2017] OJ C18. 98 

Correspondent Reports—Long 121 Union (TFEU); serious damage to EU financial interests; and violations of EU exclusive powers.108 According to the annual reports on the monitoring of EU law in the Member States, Ireland has considerable scope for improving the implementation of EU laws and policies. For instance, new complaints investigated by the European Commission against Ireland under Article 258 of the TFEU more than doubled in 2016,109 with a total of 258 complaints open at the end of the year.110 The Commission opened 40 new infringement cases against Ireland including a number with law of the sea implications concerning: the inadequate treatment of urban waste water in line with the requirements of relevant Directive;111 the poor application of the Habitats Directive as regards the designation of special areas of conservation and establishment of the necessary conservation measures (discussed previously above);112 non-compliance of the national food safety control system as regards the production and marketing of live bivalve molluscs with the EU health standards;113 and incorrect implementation of the Directive establishing the fundamental principles governing the investigation of accidents in the maritime transport sector.114 Significantly, during the report years, the Commission did not refer any cases pertaining to Ireland to the Court of Justice of the European Union under Articles 258 and 260(3) of the TFEU.115 Elsewhere in the EU, the Commission’s law enforcement strategy is concentrated on areas of fisheries conservation and control, which it deemed ‘essential’ to building a ‘circular’ economy based upon the concept of ­sustainability.116 Particular attention was paid to national fisheries’ monitoring systems and control of illegal fishing activities, as well as non-respect by the Member States of the EU’s exclusive external competence, which undermined the on-going efforts by the EU to become a stronger global actor on fisheries.117 The latter considerations pertaining to fisheries and enforcement and compliance do not pose any particular difficulty for Ireland, as will be seen further below. OFFSHORE HYDROCARBONS

Ireland is vested with significant sovereign rights and duties under the 1982 LOS Convention in relation to the exploration and exploitation of offshore hydrocarbons 108  European Commission, ‘Monitoring the Application of European Union Law 2016 Annual Report’ COM(2017) 370, 6 July 2017 at 6. 109  European Commission, ‘Monitoring the Application of European Union law 2016 Annual Report, SWD(2017) 260 final, 6 July 2017 at 45. 110 Ibid. 111  Press Release MEMO/16/3125. 112  Press Release MEMO/16/1452. Discussed further above. 113  Regulation No 853/2004 and in Regulation No 854/2004. 114  Directive 2009/18/EC, Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council [2009] OJ L131/114–27. 115  European Commission (n 109) at 45. 116  European Commission (n 108) at 6. 117  European Commission (n 108) at 6.

122  The Irish Yearbook of International Law 2016–17 in sea areas under national sovereignty and jurisdiction.118 An important milestone was passed in 2015 with the production of gas for the first time from the Corrib Gas Field in the Slyne-Erris basin.119 The same year, a new Atlantic Margin Oil and Gas Exploration Licensing Round was opened for all of Ireland’s major Atlantic basins.120 Two-year exploration options were offered under the reformed licensing terms and a total of 28 licences were awarded in 2015 and 2016.121 There was an important enactment on maritime safety in the form of the Petroleum (Exploration and Extraction) Safety Act 2015.122 The latter transposes ­Directive 2013/30/EU on safety of offshore oil and gas operations.123 The 2015 Act brings Irish law into line with changes in international best practices adopted by the industry and the EU after the Deepwater Horizon disaster in the Gulf of Mexico in 2010.124 In the briefest of terms, the 2015 Act vests the Commission for Energy Regulation as the national competent authority for safety; brings the assessment of potential major environmental hazards offshore within the scope of the safety regime; ensures greater clarity on industry liability in the event of a major accident; and sets down specific safety obligations on both operators and owners of petroleum infrastructure.125 The Finance Act 2015 implements the revised oil and gas fiscal terms following the recommendations made by an expert report completed in 2014.126 Under the revised terms, a petroleum production tax is payable in addition to the 25 per cent rate of corporation tax that applies to the profits from oil and gas production.127 MARITIME LABOUR AND TRAINING

The 2006 Maritime Labour Convention entered into force with respect to Ireland on 21 July 2015.128 As noted previously,129 preserving and enhancing maritime safety and professional training for the shipping industry is a priority for the Irish Government. During the report period, Ireland maintained its position on the Paris Memorandum of Understanding ‘White List’ and also remained on the ‘White List’ for seafarer training under the 1978 International Convention on Standards of ­Training,

118 

Article 77, 1982 LOS Convention. Institute, ‘Harnessing Our Ocean Wealth Review of Progress 2015 and 2016’ (Galway, Marine Institute, 2015, 2016). 120 Ibid. 121 Ibid. 122  No 26 of 2015. 123  Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC [2013] OJ L178/66. 124  Explanatory and Financial Memorandum, Petroleum (Exploration and Extraction) Safety Amendment Bill 2015. 125 Ibid. 126 No 52 of 2015. On the revised terms, see R Long, ‘Law of the Sea 2014’ in F de Londras, S Mullally (eds), The Irish Yearbook of International Law, Volume 9, 2014 (Oxford/ Portland, Hart Publishing, 2016). 127  Section 20, Finance Act 2015. 128  No 8 of 2015. 129  Long (n 126). 119  Marine

Correspondent Reports—Long 123 Certification and Watchkeeping for Seafarers.130 Ireland also shows a strong performance and positive indicators under the criteria evaluated in the International Chamber of Shipping flag state performance table.131 MARINE LIVING RESOURCES

The conservation status of marine living resources under the common fisheries policy is cause for concern and remains a problem for all coastal Member States.132 According to the Stock Book published by the Marine Institute, there was a decline in the number of fish stocks that were overfished in 2016, but the figure remains high with the number of depleted stocks increasing from 14 to 18.133 This means that 25 per cent of all stocks within the assessment scheme are considered to be depleted by the Marine Institute.134 There was some progress however in the adoption of technical conservation measures for vulnerable stocks. In 2015, the European Commission tabled a proposal aimed at halting the decline of sea bass in the Celtic Sea, Irish Sea, Channel and North Sea.135 The measure aims to reduce fishing mortality but allows for incidental by-catch. Ireland had previously introduced a fishing moratorium for this vulnerable stock by vessels flying the Irish flag and the EU proposal extends the scope of the conservation measures to all EU vessels. FISHERIES LAW ENFORCEMENT AND COMPLIANCE

The implementation of the regulatory schemes underpinning the European common fisheries policy and international fisheries law cannot be guaranteed without effective mechanisms to ensure compliance.136 In its capacity as a flag, coastal and port State, Ireland undertakes a broad range of enforcement activities including the boarding, inspection and the detention of fishing vessels with a view to ensuring compliance with national law, the common fisheries policy and the law applicable to regional fisheries agreements.137 The Naval Service and the Sea Fisheries Protection Authority (SFPA) discharge a broad range of operational tasks associated with fisheries law enforcement and compliance in Ireland.138 As can be seen from the 130 

Irish Treaty Series No 13 of 2007. Available at www.ics-shipping.org/docs/flag-state-performance-table (last accessed 9 May 2018). 132  R Long, ‘Regulating and Managing Marine Living Resources: Five Decades of Triumph and Failure in the European Union’ in H Scheiber, Nilufer Oral (eds), Fifty Years of the Law of the Sea Institute (Berkeley, University of California, 2018) 287–328. 133  Marine Institute (n 2). 134  Marine Institute (n 2). 135 Council Regulation (EU) 2015/960 of 19 June 2015 amending Regulation (EU) 2015/104 as regards certain fishing opportunities [2015] OJ L157/ 1–19. 136  Y Tanaka, International Law of the Sea, 2nd edn (Cambridge, Cambridge University Press, 2015) at 256–64. 137  Art 73(1), 1982 LOS Convention. 138  In 2015, the SFPA reported 35 incidents including the detention of 7 vessels, one file was transferred to the jurisdiction of a neighbouring Member State; one file was not proceeded; 21 files were forwarded to the DPP. That year, 14 cases were also determined in court. See SFPA, ‘Annual Report 131 

124  The Irish Yearbook of International Law 2016–17 i­nformation presented in Table 1 below, the Naval Service undertook 1079 inspections of the 1162 vessels sighted in 2015, cited six vessels for infringements and detained 10 vessels. The vessels detained for fisheries offences were flagged in Ireland (seven) and the UK (three) respectively. Vessels boarded and inspection under the NEAFC Scheme of Control and Enforcement that applies in the North East Atlantic were flagged in Norway, Denmark, Lithuania and the Russian Federation. In 2016, as can be seen from the information shown in Table 2, the Naval Service boarded and inspected 1249 of the 1448 vessels sighted, handed out four infringements and detained three vessels. Similar to 2015, the vessels detained were flagged in Ireland (two) and the UK (two). Notably, the high incidence of inspections of Spanish and French vessels revealed an impeccable record of compliance during the report period. In 2016, vessels flagged in Lithuania, the Russian Federation, ­Norway, the Faroe Islands and Mongolia were boarded and inspected under the NEAFC Scheme of Control and Enforcement. Table 1:  Fisheries Vessels Boarded, Inspected and Detained by the Naval Service in 2015 Nationality

Sightings

Boardings

Infringements

Detentions

Ireland

534

493

2

7

Spain

266

248

-

-

UK

109

99

3

3

France

207

196

-

-

Belgium

3

3

-

-

Germany

7

7

-

-

13

10

-

-

8

8

1

-

11

11

-

-

2

2

-

-

Netherlands Russian Federation Norway Lithuania Denmark Total

2

2

-

-

1162

1079

6

10

Source: Information provided to the author by the Naval Service.

Table 2:  Fisheries Vessels Boarded, Inspected and Detained by the Naval Service in 2016 Nationality

Sightings

Boardings

Infringements

Detentions

Ireland

686

605

2

2

Spain

295

246

0

0

UK

150

136

2

1

France

268

241

0

0 (continued)

Correspondent Reports—Long 125 Nationality Belgium German

Sightings 3

Boardings

Infringements

Detentions

2

0

0

7

4

0

0

18

10

0

0

Lithuania

1

1

0

0

Russian Federation

14

2

0

0

Norway

3

1

0

0

Faroes

2

0

0

0

Mongolia

1

1

0

0

1,448

1,249

4

3

Netherlands

Totals

Source: Information provided to the author by the Naval Service.

PENALTY POINT SYSTEM

Illegal, unreported and unregulated (IUU) fishing is the subject of an extensive body of regulation at international and EU levels.139 The topic is the subject of contentious proceedings periodically. During the report period, there were two sets of parallel proceedings in the Superior Courts that should be read together for a full account of the operation of the fisheries penalty points system in Ireland. In the first set of proceedings, fundamental constitutional issues concerning the supremacy of EU law, along with the implementation of EU law in Ireland, arose in a case concerning the detention of the fishing vessel Tea Rose at Castletownbere in 2015. At issue was the absence of primary legislation underpinning the power of the Minister to make specific regulations addressing IUU fishing pursuant to the European Communities Acts 1972 to 2012 (the 1972 Act). In 2016, the High Court held that the Minister of Agriculture, Food and the Marine had exceeded his vires under the 1972 Act by making the European Union (Common Fisheries Policy) (Point System) Regulations 2014.140 This was primarily because the Minister had failed to recognise the absence of principles and policies to introduce a novel way of determining serious infringements through the imposition of penalty points on the holders of fishing vessel licences. The Court was of the view that the principles and policy of the relevant EU Regulations relied upon by the Minister were indeed

2015’ (­ Clonakilty, SFPA, 2016). Available at www.sfpa.ie/Portals/0/corporate%20affairs/annual%20 reports/2015/SFPA%202015%20Annual%20Report%20IRISH.PDF (last accessed 9 May 2018). 139  Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 [2011] OJ L022/8. 140  SI No 3 of 2014. O’Sullivan & anor v Sea-Fisheries Protection Authority & ors [2016] IEHC 77. On the penalty point systems, see L O’Keeffe, ‘The Point System for Fishing Vessels—Dead in the Water?’ (2016) 39(2) Dublin University Law Journal.

126  The Irish Yearbook of International Law 2016–17 demanding but they were also general in nature. In particular, they required the Minister to ignore established systems for independent adjudication and recourse to the courts in such matters. According to the Court, ‘effectiveness and dissuasiveness can be achieved without abandoning established norms for the determination of events for the imposition of administrative penalties’.141 The regulations were thus deemed ultra-vires and unconstitutional on the grounds that they contravened Article 15.2.1 of the Irish Constitution, which provides that the sole and exclusive power of making laws is vested in the Oireachtas (Irish Parliament). The decision of the High Court in the O’Sullivan case was upheld subsequently by the Supreme Court, which held that the 2014 Regulations were invalid in so far as they did not comply with fair procedures.142 As a result of the aforementioned High Court proceedings, the 2014 Regulations were repealed and replaced by the European Union (Common Fisheries Policy) (Point System) Regulations of 2016.143 The latter provides a legal basis for the establishment of a Determination Panel,144 which is comprised of a member of the SFPA, an independent legal professional and a serving member of the Naval Service.145 The Panel has power to determine if on the balance of probabilities an infringement occurred and whether it constituted a serious infringement. The 2016 Regulations also establish an independent Fisheries Adjudicator to review the decision of the Determination Panel on the request of the holder of the fishing licence.146 Also in 2016, in companion proceedings to the O’Sullivan case, the High Court ruled in Crayden Fishing Company v Sea Fisheries Protection Authority on the issue of procedural fairness under the 2014 Regulations.147 The arguments overlapped with part of the decision in the O’Sullivan case in that the Court held that the lack of procedures adopted under the Regulations did not accord with fair procedures, including: the absence of a right of making representations to the SFPA; the failure by the SFPA to submit reasons for its decision; the limited scope of the hearing before the Appeal Officer; as well as the onus of proof was placed on the party challenging the proposed application of points to prove that the event did not occur or did not involve the vessel.148 The Supreme Court subsequently upheld the decision of the High Court on the narrower basis of unfair procedures.149 INTERNATIONAL WHALING COMMISSION

Ireland participated at the 66th Meeting of the International Whaling Commission (IWC) in Slovenia in 2016. At the previous meeting, Ireland supported the Resolution

141 

O’Sullivan, ibid. O’Sullivan v Sea Fisheries Protection Authority & ors [2017] IESC 75. 143  European Union (Common Fisheries Policy) (Point System) Regulations 2016 SI No 125/2016. 144 Ibid. 145 Ibid. 146 Ibid. 147  Crayden Fishing Company v Sea Fisheries Protection Authority [2016] IEHC 30. 148 Ibid. 149  Crayden Fishing Company Limited v Sea Fisheries Protection Authority & ors [2017] IESC 74. 142 

Correspondent Reports—Long 127 on Aboriginal Subsistence Whaling (ASW).150 The Resolution called for a ‘better understanding of the relationship between needs and consumption patterns for ASW hunts, including by collecting data on landings for each category, local consumption and use and the extent of monetary transactions’.151 At the 66th meeting, Ireland along with other Contracting Parties noted with concern that Japan had issued new scientific permits in 2015 before the Scientific Committee review was complete and before the Commission had considered the report of the Scientific Committee.152 Moreover, on the basis of the information before the Commission, the permits were not ‘for purposes of scientific research’ as required by Article VIII.1 of the International Convention for the Regulation of Whaling.153 Accordingly, Ireland along with the majority of the Contracting Parties attending the meeting requested that Japan cease the lethal component of the New Scientific Whale Research Program in the Antarctic Ocean.154 CONTINENTAL SHELF AND ROCKALL

The Continental Shelf of Ireland extends beyond 200 nautical miles from the baselines and has been subject to partial and joint submissions to the Commission on Limits of Continental Shelf in accordance with Article 76 of the 1982 LOS ­Convention.155 In 2016, in a reply to a parliamentary question, the Minister of Foreign and Affairs and Trade made a statement in the Dáil Éireann in relation to the continental shelf and Rockall that reads as follows: Rockall is a small uninhabitable rock located approximately 160 nautical miles west of the Scottish islands of St. Kilda and 230 nautical miles to the north-west of Donegal. It marks a point at which the Rockall Bank, part of the very large Hatton-Rockall area of continental shelf extending under the north-east Atlantic Ocean, protrudes 21 metres above sea level. During the 1960s and 1970s the issue of Rockall was a source of legal and political controversy in both Ireland and the United Kingdom. The UK claims sovereignty over Rockall and has sought to formally annex it under its 1972 Island of Rockall Act. While Ireland has not recognised British sovereignty over Rockall, it has never sought to claim sovereignty for itself. The consistent position of successive Irish Governments has been that Rockall and similar rocks and skerries have no significance for establishing legal claims to mineral rights in the adjacent seabed or to fishing rights in the surrounding seas. During the course of the Third United Nations Conference on the Law of the Sea, which took place from 1973 to 1982, Ireland worked hard to achieve agreement on this principle. The UN Convention on the Law of the Sea, which was adopted at the conclusion of the

150 Submitted by Italy, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, ­ stonia, Finland, France, Germany, Hungary, Ireland, Lithuania, Luxembourg, the Netherlands, Poland, E Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and the UK. 151  International Whaling Commission, WC/65/15, IWC65 Agenda item 3. 152  Chair’s Report of the 66th Meeting of the International Whaling Commission, 26 October 2016, para 337, at 31–32. 153 Ibid. 154 Ibid. 155  Long (n 30) 3-29.

128  The Irish Yearbook of International Law 2016–17 Conference on 10 December 1982, provides at Article 121, paragraph 3 that: ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’ Rockall falls into precisely this category. In 1988, Ireland and the UK reached agreement on the delimitation of areas of the continental shelf between the two countries, stretching out up to 500 nautical miles from their respective coastlines. This included the division of the Hatton-Rockall area of continental shelf on which Rockall is situated, although under the terms of the Law of the Sea Convention the location of Rockall was irrelevant to the determination of the boundary. According to that determination, Rockall is situated to the north of the boundary agreed with the UK in 1988 and lies outside the zone claimed by Ireland. As with any claim to continental shelf lying beyond 200 nautical miles from a state’s coast, the UN Convention requires that Ireland and the UK submit their claims for examination by the UN Commission on the Limits of the Continental Shelf. However, the claims to the Hatton-Rockall shelf agreed between Ireland and the UK are not accepted by Iceland or Denmark (on behalf of the Faroe Islands), which make their own claims. The four countries have met regularly since 2001 in an effort to resolve the overlapping claims issue, but to date have been unable to reach agreement. The 10-year deadline for the making of submissions to the UN Commission expired for Ireland in May 2009. The Government therefore submitted the national claim for this area at the end of March 2009, as did the British Government in respect of the UK’s claim. Denmark submitted its claim on behalf of the Faroe Islands in 2010. Iceland has not made a submission to date. The Commission’s rules of procedure prevent consideration by the Commission of a submission relating to a disputed area without the consent of all the states concerned and ­Iceland does not currently consent to the consideration of these submissions. The submission within the deadline preserved the State’s legal position and since then the Government has continued to work for the creation of conditions that will permit its consideration as soon as possible.156

Unrelated to Rockall, there are a number of other matters increasingly evident at an international level regarding the practical implementation of the continental shelf provisions of the 1982 LOS Convention. Apart from Ireland, only a handful of coastal States have deposited the relevant information with the United Nations describing the outer limits of the continental shelf on the basis of the recommendations of the Commission on the Limits of the Continental Shelf.157 This, thereby, making it impossible to identify with any precision the limits of the Area. VOISINAGE ARRANGEMENT

Voisinage fisheries agreements have been described as belonging to a category of ‘reciprocity agreements, in that it involves an exchange of benefits of the same type between the two contracting States which each grant each other fishing rights in the zones subject to their respective jurisdictions’.158 Or, as noted by the Supreme 156 

Written Answer, Dáil Éireann Debate Vol 926 No 2, col 32243/16. 16 October 2016. Secretary-General, Report Oceans and the Law of the Sea, September 2016. the Gulf of St Lawrence between Canada and France (the La Bretagne Arbitration), 17 July 1986, UN Reports of International Arbitral Awards, Vol XIX, 225–96, cited by C Symmons, 157 

158 Within

Correspondent Reports—Long 129 Court in Ireland, ‘an arrangement between neighbouring states under which fishermen (and it was a sign of the times in 1964 that it appears only one gender was contemplated) had fished in each other’s waters’.159 The precise nature of a voisinage arrangement agreed by means of correspondence between public servants in Ireland and Northern Ireland in 1964–1965 was examined by the Supreme Court in an erudite judgment concerning litigation by Irish fishermen suing the State for deprivation of their livelihood, as a result of the activities of Northern Irish-registered boats fishing for mussel seed in Irish waters.160 The Supreme Court held that there is no reason why Northern Ireland vessels may not be permitted to fish for mussel seed in specified portions of the exclusive areas of Ireland’s territorial waters.161 The Court expressed the view that ‘cooperation should be easier now than in 1965 due to cross-border cooperation in a number of areas’.162 Nonetheless, the Court held that the voisinage arrangement agreed under Article 9 (2) of the 1964 London Fisheries Convention cannot be said to be law for the purposes of Article 10.3 of the Irish Constitution, even though it contains specific provisions that permit the exploitation of a natural resource.163 According to the Court, those provisions ‘cannot become “law” for the purposes of Article 10.3 of the Constitution’ merely by a statutory reference to fishing in accordance with an arrangement, and still less by the attempted reading of section 10 of the Sea Fisheries Maritime Jurisdiction Act 2006 in conjunction with section 8 thereunder, as suggested by the State in the case at hand.164 The Court found the ‘administrative arrangement’ was merely a ‘gentleman’s agreement’ and thus not binding on either the British or Irish governments in international law.165 The Court declared that fishing for mussel seed is not permitted by law within the territorial waters of Ireland by vessels from Northern Ireland. On the determination of the case, Ireland brought forward draft legislation to provide for access to fish by sea-fishing boats owned and operated in Northern Ireland within six nautical miles of the baselines.166 In withdrawing from the EU, however, the UK announced that it will also withdraw from the London Fishery Agreement.167 HUMANITARIAN MISSIONS TO THE MEDITERRANEAN SEA

Ireland dispatched Naval Service ships to the Mediterranean Sea in 2015 and again in 2016 to undertake search and rescue tasks as part of a humanitarian response to the migrant crises. The naval operations were conducted pursuant to a bilateral

‘Recent Developments in Ireland: The Voisinage Doctrine and Irish Waters: Recent Judicial and Legislative Developments’ (2018) 49(1) Ocean Development and International Law 79–84. 159 

Barlow & others (n 26). Barlow & others (n 26). 161  Barlow & others (n 26). 162  Barlow & others (n 26). 163  Barlow & others (n 26). 164  Barlow & others (n 26). 165  Symmons (n 158) 79–84. 166  No 19 of 2017. 167  See Symmons (n 158). 160 

130  The Irish Yearbook of International Law 2016–17 arrangement between Ireland and the Italian Government aimed at preventing loss of life at sea and rescuing people in distress in line with the applicable international law including the 1974 International Convention for the Safety of Life at Sea (SOLAS) and the 1979 International Convention on Maritime Search and Rescue (SAR).168 At a practical level, the coordination of the search and rescue efforts of the Irish naval vessels and the provision of humanitarian assistance was undertaken in close cooperation with the Italian Marine Rescue Coordination Centre and other public and private bodies concerned with providing assistance to the migrants. In 2015, as part of Operation Pontus, three Naval Service ships, the LÉ Eithne, LÉ Niamh and the LÉ Samuel Beckett, carried out 57 search and rescue operations and rescued 8,631 persons, as well as recovering the bodies of 39 people who had perished at sea.169 The following year (2016), the Naval Service deployed three vessels, the LÉ Roisin, LÉ James Joyce and the LÉ Samuel Beckett, which rescued 7,029 persons and recovered the bodies of 36 people.170 As noted in Dáil Éireann (the Lower House in the Irish Parliament),171 the rescue of 15,600 migrants during the two-year period demonstrated the value of the humanitarian response under the bilateral agreement between Ireland and Italy. During the review period, Ireland did not participate in the various EU operations conducted within the framework of the EU Common Security and Defence Policy, or under the auspices of Frontex, as part of the wider EU response to the migrant crises adopted at the Foreign Affairs Council meeting in Brussels on 22 June 2015.172 In particular, Ireland did not participate in European Naval Force Operation (EUNAVFOR MED) Sophia in the south-central Mediterranean, which is aimed at combatting people smuggling, enforcing the arms embargo on Libya, as well as being more recently tasked with training the Libyan coastguard and navy.173 As such, EUNAVFOR MED is an armed international peace support operation mandated by the United Nations Security Council. Participation by Ireland in the latter operation therefore requires the approval of both the Government and the Dáil, which was under review in 2016.174 Ireland’s humanitarian efforts have to be seen within the broader context of the commitment by the European Council to bolster the presence of naval forces at sea and to prevent illegal migration across the Mediterranean Sea. In this context, there is also a push to forge greater consensus on strengthening the application of the rule of international law as it applies to human migration by sea. As pointed out in

168  The arrangement does not have the formal status of an international agreement. Copy with the author. Also, see, P Burke, ‘Troubled Waters: The Legal Issues Inherent in the Irish Defence Forces’ Role in the Mediterranean Migrant Crisis’ in F de Londras, S Mullally (eds), The Irish Yearbook of International Law, Volume 10, 2015 (Oxford/Portland, Hart Publishing, 2017). 169  Personal communication with the Naval Service, 23 January 2018. 170 Ibid. 171  PQ 39809/16, 13 December 2016. 172  Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L122. 173 Belgium, France, Spain, Italy, Germany and the UK. See conclusions, Foreign Affairs Council, Brussels, 20 June 2016. Available at www.consilium.europa.eu/en/press/press-releases/2016/06/20/faceunavfor-med-sophia/ (last accessed 9 May 2018). 174  PQ 39809/16, 13 December 2016.

Correspondent Reports—Long 131 the decision of the Foreign Affairs Council in 2015,175 there is a wide spectrum of international instruments applicable to the work of EUNAVFOR MED, including the 1982 LOS Convention, the 2000 Protocols against the Smuggling of Migrants by Land, Sea and Air (the Protocol against the Smuggling of Migrants) and to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, SOLAS, SAR, the 1976 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), the 1951 Geneva Convention relating to the Status of Refugees, as well as the principle of non-refoulement and other aspects of human rights law.176 The Defence Forces received the European Movement Award for its contribution to international peacekeeping and humanitarian work including the naval humanitarian operations in the Mediterranean Sea.177 MARINE SCIENTIFIC RESEARCH

Foreign flagged research vessels have undertaken research activity in sea areas under Ireland’s sovereignty and jurisdiction since the 1970s.178 The number of foreign vessels availing of their rights under Part XIII of the 1982 LOS Convention to undertake scientific research cruises in sea areas adjacent to Ireland dropped significantly in 2015 and 2016.179 The first transatlantic mapping survey took place with the vessel Celtic Explorer undertaking a mapping expedition between Newfoundland and Galway. THE 2030 AGENDA ON SUSTAINABLE DEVELOPMENT

Ireland continues to play an active part in multilateral law of the sea negotiations since the high-profile role played by the Irish delegation under the leadership of Ambassador Mahon Hayes at the Third United Nations Conference on the Law of the Sea in the 1970s and early 1980s.180 In this regard, the year 2015 is remarkable in that it saw the conclusion of three international negotiation processes and the adoption of new instruments that will have a major bearing on ocean governance decisions and the implementation of the law of the sea in Ireland and elsewhere over the coming decade, namely: the Paris Agreement on Climate Change;181 the Addis

175  Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) [2015] OJ L122. 176  Ibid, Recital. 177  Irish Times, 12 March 2016. 178  Long (n 30) 684–724. 179  Marine Institute, Foreign Marine Research surveys 2016. 180  M Hayes, The Law of the Sea: The Role of the Irish Delegation at the Third United Nations Conference on the Law of the Sea (Dublin, Royal Irish Academy, 2011). 181 United Nations. Framework Convention on Climate Change. Report FCCC/CP/2015/10/Add.1. 29 January 2016.

132  The Irish Yearbook of International Law 2016–17 Ababa Agenda on Financing for Development;182 and the 2030 Agenda for Sustainable Development (the 2030 Agenda).183 Vitally, each instrument advances the concept of sustainable development and addresses fundamental challenges faced by society in the twenty-first century.184 First and foremost, Ireland played a leadership role in forging international consensus on the sustainable development goals with Ireland’s Permanent Representative to the United Nations in New York, Ambassador David O’Donoghue, co-facilitating the long and difficult intergovernmental negotiations that lead to the agreement of the 2030 Agenda in August 2015,185 which was subsequently adopted by the United Nations General Assembly in September 2015.186 Briefly stated, the 2030 Agenda sets out a 15-year blueprint for international action between 2016–2030, based upon a plan of action for the so-called five ‘Ps’: people, planet, prosperity, peace and partnership.187 The Agenda is highly ambitious and founded on an altruistic vision of the future world that is ‘free of poverty, hunger, disease and want, where all life can thrive’.188 The Agenda is made up of 17 Goals addressing poverty, hunger, education, gender, water, energy, industrialisation, inequality, consumption and production, climate change, oceans, ecosystems, institutions and partnerships.189 The broad thematic areas are further elaborated by 169 ambitious targets that are indivisible, integrated and universally applicable, with the overall objectives of addressing the scourge of hunger, poverty and ­oppression.190 In balancing the three limbs of sustainable development, economic, social and environmental, countries and stakeholders are more generally committed under the 2030 Agenda to achieving a broad and universal policy agenda. Moreover, as pointed out by Mary Robinson, Former United Nations High Commissioner for Human Rights and the UN Secretary-General’s Special Envoy on Climate Change, the 2030 Agenda is ‘an agenda for the people, by the people and with the people’.191 From a law of the sea perspective, it is important to keep in mind that the 2030 Agenda is underpinned by international treaty and customary law, including the Charter of the United Nations. The 1982 LOS Convention and related instruments

182 

UNGA Resolution 69/313. 27 July 2015. UNGA Resolution A/RES/70/1. 25 September 2015. 184  Updated from a more detailed discussion of some of the law of the sea implications of the 2030 Agenda, see: R Long, M Rodriguez Chaves, ‘Bridging the Ocean, Water and Climate Action Goals Under The 2030 Agenda on Sustainable Development’ in M Nordquist and J Norton Moore (eds), The Marine Environment and UN Sustainable Development Goal 14 (Life Below Water) (Leiden/Boston, Brill Nijhoff, 2018). 185  Felix Dodds, Ambassador David Donoghue and Jimena Leiva Roesch, Negotiating the Sustainable Development Goals: A Transformational Agenda for an Insecure World (London/New York, Routledge, 2017). 186  UN Doc A/RES/70/1—‘Transforming Our World: The 2030 Agenda for Sustainable Development’ 21 October 2015. 187  UNGA, A/RES/70/1, at 2/35. 188  Ibid, at 3/35. 189  Ibid, at 15–37/35. 190  Ibid, at 23/35. 191  Mary Robinson in Felix Dodds, Ambassador David Donoghue and Jimena Leiva Roesch, Negotiating the Sustainable Development Goals: A Transformational Agenda for an Insecure World (London/ New York, Routledge, 2017) at XV. 183 

Correspondent Reports—Long 133 add substance to the specific targets in Goal 14 including: the prevention and reduction of pollution by 2025; the sustainable management and protection of marine ecosystems and further action for their restoration by 2020; and a raft of other objectives extending to the minimisation of ocean acidification, the effective regulation of illegal, unreported and unregulated fishing (discussed above), the conservation of at least 10 per cent of marine areas, the ending of fisheries subsidies, along with increasing economic benefits to small island developing States.192 Other targets relate to the enhancement of scientific knowledge and the transfer of marine technology, as well as improved access for small-scale artisanal fishers to marine resources. Shoring up all of the targets is the call for effective implementation of international law and the 1982 LOS Convention specifically. PARIS AGREEMENT

The Taoiseach (Irish Prime Minister) delivered a statement on behalf of Ireland at the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) in 2015.193 Subsequently, Ireland deposited its instrument of ratification of the Paris Agreement on 4 November 2016, which entered into force with respect to Ireland on 4 December 2016.194 The Paris Agreement reflects the international response to scientific reports demonstrating that ‘continued emissions … will cause further warming and long-lasting changes … increasing the likelihood of severe, pervasive and irreversible impacts.’195 Furthermore, that ‘limiting climate change would require substantial and sustained reductions in greenhouse gas ­emissions’.196 The Paris Agreement aims to mitigate the risks posed by climate change by holding increases in the global average temperature to well below 2° Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5° Celsius.197 The Preamble of the Paris Agreement recognises the importance of greenhouse gas sinks and calls for the adoption of measures that ensure the integrity of ecosystems and the protection of biodiversity including the oceans.198 Similar to the sustainable development goals (discussed above), the Paris Agreement places particular emphasis on a bottom-up approach to addressing the effects of climate change in the form of nationally determined contributions (NDCs). The approach allows for collective action on the part of Contracting Parties and the pursuit of more ambitious mitigation targets. Thus, for example, Ireland is committed to contributing to the collective 192 

Ibid, at 23–24/35. Statement delivered by An Taoiseach Enda Kenny TD, 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, 30 November 2015. Copy in deLondras and Mullally (n 169). 194  Irish Treaty Series No 20 of 2016. 195 Intergovernmental Panel on Climate Change (IPCC), ‘Climate Change 2014 Synthesis Report: Summary for Policymakers’ (2014) 2–20. Available at www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_ SYR_FINAL_SPM.pdf (last accessed 10 May 2018). 196 Ibid. 197  Article 2, Paris Agreement. 198  Recital 13, Preamble, Paris Agreement. 193  National

134  The Irish Yearbook of International Law 2016–17 target to reduce greenhouse gases (GHGs) by at least 40 per cent by 2030 compared to the 1990 levels, as part of the EU’s climate action measures.199 In the broader context of the law of the sea, there appears to be a number of strands to Ireland’s diffuse approach to the obligations that arise under the climate change treaties including the Paris Agreement. First, Ireland enacted the Climate Action and Low Carbon Development Act 2015 to provide a legal basis for the adoption of plans that facilitate the transition to a low carbon, climate resilient and environmentally sustainable economy.200 Second, the Climate Change Advisory Council was established under the 2015 Act. In parallel, the Department of Agriculture, Food and the Marine, along with the Department of Transport, were designated as the lead departments in the sectoral adaptation planning process, tasked with producing a catalogue of impacts of climate changes on the marine sector. This process was completed in 2016. The third strand entails the publication of national mitigation and adaptation frameworks.201 In designing mitigation and adaptation measures, it must be borne in mind that sea level rise, temperature changes, ocean acidification and extreme weather events pose real threats to coastal communities in Ireland.202 For instance, the Environmental Protection Agency has cautioned that the sea has risen 3.5 cm since the 1990s.203 Moreover, the rise is anticipated to increase to 60 cm by the end of the century and will therefore amplify the effects of storm surges, coastal erosion, as well as the wider impacts of urban inundation.204 In light of these threats, it is surprising to note that Ireland is not on track to achieve its 2020 emission reduction targets under the EU’s effort sharing decision.205 Moreover, Ireland ranked at 49th place of the 56 countries assessed under the Climate Change Performance Index.206 The latter constitutes an international peer-review standard that gauges progress in the implementation of climate policies at country level. In light of this performance, Ireland will need to make a concerted effort to build and implement a cross-sectoral approach addressing the adverse effects of climate change on sea areas adjacent to Ireland, including building effective partnerships with all the principal stakeholders. BIODIVERSITY BEYOND NATIONAL JURISDICTION

The EU and its Member States, including Ireland, negotiated as one and participated in the work of the Preparatory Committee established by General Assembly 199 Submission by Latvia and the European Commission on behalf of the European Union and its Member States, 6 March 2015. 200  No 45 of 2015. 201 Department of Communication, Climate Action and Environment, ‘National Mitigation Plan’ (Dublin, 2017); National Adaptation Framework (Dublin, 2018). 202 Environmental Protection Agency (EPA), ‘State of the Environment Report 2016’ (EPA, 2016) at 246. 203 Ibid. 204 Ibid. 205  European Environmental Agency (EEA), ‘Trends and Progress in the EU’ (Copenhagen, EEA, 2015) at 10. 206 Germanwatch, ‘New Climate Institute and the Climate Action Network, Climate Performance Index Results’ (2018).

Correspondent Reports—Long 135 ­ esolution 69/292 on the development of an international legally binding ­instrument R under the 1982 LOS Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABNJ).207 The Preparatory Committee held two sessions in 2016, with the second session attended by representatives of 116 UN Member States, three non-Member States, six United Nations programmes, funds and offices, and five specialised agencies and related organisations of the United Nations system, nine intergovernmental organisations and 22 non-governmental organisations.208 The negotiation mandate of the Preparatory Committee focused on four substantive topics, namely: marine genetic resources, including questions on the sharing of benefits derived therefrom with the least developed countries; area-based management tools including MPAs; environmental impact assessments; capacity-building and the transfer of marine technology. The agenda was supplemented by a range of cross-cutting elements such as dispute settlement, principles and approaches, state responsibility and liability.209 Hence, the topic of marine litter remains outside the scope of the discussions on the so-called biodiversity beyond national jurisdiction (BBNJ) package as its stands under the General Assembly Resolution. Discussions at the Preparatory Committee follow the consensus approach as adopted at all law of the sea negotiations since 1975. The outcome of process and the subsequent intergovernmental conference is of vital strategic importance to ­Ireland, mainly because the geographical scope of the new instrument when adopted will apply to the high seas over the extensive area of Irish continental margin that exists beyond 200 nautical miles measured from the baselines.210 Furthermore, ­Ireland is taking the lead on a range of deep-ocean science research projects applicable to ABNJ, including the European research project ATLAS.211 Under the direction of Dr Anthony Grehan, one of the tasks of the latter is to explore the application of area based management tools to the Atlantic’s deep-sea ecosystems and marine genetic resources with a view to creating an integrated and adaptive planning to sustain ‘Blue Growth’ of offshore activities. During the course of the Preparatory Committee, the ATLAS consortium briefed participants on research developments within the framework of the project at a side-event at the United Nations. Other ­European projects with Irish participation of direct relevance to the negotiations include MERCES,212 which is examining marine restoration in changing European

207  UN A/RES/72/249—International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. 208  Report of the Preparatory Committee established by General Assembly Resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/AC.287/2017/PC.4/2, 31 July 2017. 209  Ibid. See also, R Long and M Rodríguez Chaves, ‘Anatomy of a New International Instrument for Biodiversity beyond National Jurisdiction: First Impressions of the Preparatory Process’ [2016] 6 Environment Liability: Law, Policy and Practice 214–29. 210  UN A/RES/72/249, 19 January 2018. 211 See http://whitakerinstitute.ie/project/atlas-a-trans-atlantic-assessment-and-deep-water-ecosystembased-spatial-management-plan-for-europe/ (last accessed 10 May 2018). 212  See http://www.merces-project.eu/ (last accessed 10 May 2018).

136  The Irish Yearbook of International Law 2016–17 seas including the duty to restore under international and European law.213 As will be seen further below, Ireland contributed to the trust fund established for the purpose of ensuring greater participation by developing States in the multilateral negotiation processes appertaining to BBNJ. FIRST RANGE STATE WORKSHOP ON EUROPEAN EEL

Catadromous species such as eels are subject to specific provisions under the 1982 LOS Convention.214 The management and regulation of eels and their poor conservation status has been the subject of litigation in Ireland.215 Moreover, there is an urgent need for more advanced conservation measures based upon the principle of international cooperation. In 2016, the Law of the Sea group at the National University of Ireland, Galway hosted the First Range State Workshop on the European Eel, CMS Secretariat and the Sargasso Sea Commission. The Workshop was attended by 30 representatives of the Range States to the Convention of Migratory Species, the Sargasso Sea Commission, the European Commission, as well as invited experts. The Workshop worked on various strategies and regulatory approaches that could contribute to the recovery of European eel stocks, which are listed for protection under Appendix II of the Convention on Migratory Species. The proceedings of the Workshop are published by the Secretariat of the Convention on Migratory Species.216 In light of the diversity of threats to eels, workshop participants agreed that there is a need to take a flexible approach to measures within any international instrument. Some of the conservation measures reviewed during the course of the Workshop and a summary of outcomes included: setting a measurable conservation target with a timeframe; the international scope of conservation measures including possible protection of spawning grounds such as Sargasso Sea; the creation of National Management Plans; timely submission including approval process; a ‘tool box approach’ with indicative menu of optional measures that could be used nationally; a regular reporting mechanism; review/compliance mechanism; requirement for baseline data for monitoring; best practice guides on technology maintained and up to date and available to all parties; the non-duplication of scientific knowledge, using existing scientific bodies for advice; identification of strategic partners that would work closely with the instrument, including Regional Seas Conventions and Action Plans (Barcelona Convention, Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992 (HELCOM Convention)), Regional Fisheries Management Organisations (RFMOs) including the General Fisheries Council Mediterranean Sea.217 213  R Long, ‘Marine Ecological Restoration and Biodiversity Beyond National Jurisdiction: Establishing a New Normative Framework’ 55(2) (2018) Ecology Law Quarterly 35. 214  Article 67, 1982 LOS Convention. 215  R Long, ‘Law of the Sea 2012’ in F de Londras and S Mullally (eds), The Irish Yearbook of International Law Volume 7, 2012 (Oxford/ Portland, Hart Publishing, 2014) 275–78. 216 UNEP/CMS/Eels WS1/Report. Available at www.cms.int/sites/default/files/document/Report%20 with%20outcome%20and%20participants%20list.pdf (last accessed 10 May 2018). 217 Ibid.

Correspondent Reports—Long 137 The next steps included: the convening of a further policy workshop inclusive of Range States from North Africa (possibly including American colleagues as well); the distribution of a questionnaire to Range States to identify conservation gaps; a feasibility assessment of including American eel in a conservation instrument; the feasibility of Sargasso Sea protection under possible international instrument; bringing the urgency of conservation measures to the attention of CMS Parties, seeking their advice; the Sargasso Sea Commission to look at CMS criteria more closely; and the Secretariat to brief General Fisheries Council Mediterranean Sea on the status of the European eel and on the outcome of the Galway Workshop.218 The WMU-Sasakawa Global Ocean Institute will host the Second Range State Workshop on the European Eel at the World Maritime University in Malmo, Sweden, in 2018. LAW OF THE SEA CAPACITY BUILDING

During the report period, academic institutions in Ireland continue to undertake many law of the sea capacity building initiatives with a view to fostering greater international understanding on the application of the rule of law to ocean affairs and to improve global implementation of Parts XIII of the 1982 LOS Convention and related instruments. In 2016, a new post-graduate LLM (Marine and Maritime Law) programme commenced at University College Cork. At the United Nations, Ireland continues to support the voluntary trust fund for the purpose of defraying the cost of participation of the members of the Commission on the Limits of the Continental Shelf from developing States in the meetings of the Commission, as well as the trust fund for the regular process for global reporting and assessment of the State of the marine environment, including socioeconomic aspects.219 Ireland also made a significant contribution to the BBNJ trust fund established under General Assembly Resolution 69/292 with a view to supporting attendance at meetings of the Preparatory Committee and the follow-on intergovernmental conference by representatives from developing countries, in particular the least developed countries, landlocked developing countries and small island developing States. As part of the United Nations-Nippon Foundation Research Fellowship Programme, Ms Mutindi Lydia Mulwa of the Law Reform and Development Commission in Namibia undertook a post-graduate thesis at the National University of Ireland Galway exploring options for fisheries law reform in her home country. In 2016, Ms Margaret Odanwu from the Ministry of Justice in Nigeria reviewed the Nigerian maritime legal framework with a view to improving the prosecution of maritime crimes. With support from the Pew Charitable Trusts, Ms Mariamalia Rodriguez Chaves completed her PhD thesis under the title: The Conservation and

218 Ibid.

219  Report of the Secretary-General, Oceans and the Law of the Sea, A/69/71/Add.1, 1 September 2014, 44/44.

138  The Irish Yearbook of International Law 2016–17 Sustainable Use of Biodiversity in Areas Beyond National Jurisdiction of the Costa Rica Thermal Dome: Moving from Lex Lata to Lex Ferenda. As part of its series on legal aspects of sustainable development and the Law of the Sea, Brill will publish the latter in 2018. The Law of the Sea Group at the National University of Ireland Galway co-convened the 40th Annual Conference of the Center for Oceans Law & Policy in conjunction with the School of Law at the University of Virginia and the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs of the United Nations, Economic and Social Council Chambers. The Conference had strong participation from United Nations Member States and was held at the United Nations Headquarters in New York from 27 to 28 June 2016. Conference proceedings have been distributed worldwide.220 A former distinguished member and PhD graduate of the Law of the Sea Group at the National University of Ireland Galway, Vice Admiral Mark Mellett DSM was promoted to the position of Chief of Staff of the Defence Forces of Ireland in 2015. The author of the report, Professor Ronan Long, was appointed to the Nippon Foundation Professorial Chair Ocean Governance and the Law of the Sea and Director of the Sasakawa Global Ocean Institute at the World Maritime University of the International Maritime Organisation, a specialised agency of the United Nations.

220  M Nordquist, J Norton Moore and R Long, Legal Order in The World’s Oceans: UN788i Convention On The Law Of The Sea (Leiden/Boston, Brill/Nijhoff, 2018).

Human Rights in Ireland 2016–2017 SANDRA DUFFY*

T

HE YEARS 2016–2017 were marked by repeated criticisms of Ireland’s human rights record by international bodies, particularly in reference to reproductive rights. The successive findings in the Mellet v Ireland and Whelan v Ireland cases at the United Nations Human Rights Committee are an indictment of Ireland’s failure to ensure the protection of pregnant people’s human rights. At home, reproductive justice continued to be the defining political and legal issues of the period. The Citizens’ Assembly, a deliberative democracy body, was asked to consider whether Article 40.3.3 of the Constitution, which prohibits abortion in all circumstances except to save the pregnant person’s life, should be repealed. The recommendations for repeal and for a much broader abortion regime were considered by Government and a referendum is mooted for May 2018. The asylum process was also spotlighted, with the entry into force of the International Protection Act 2015 and the successful Supreme Court challenge in NHV v Minister for Justice Equality, and Law Reform,1 which established the unconstitutionality of the ban on employment for asylum seekers. LEGISLATIVE DEVELOPMENTS

The International Protection Act 2015, which came into force on 31 December 2016, reformed the manner in which applications for international protection are made under Irish Law. Its primary role was the development of a Single Application Procedure, allowing assessment of an applicant’s entitlement to refugee status, ­ ­subsidiary protection, and leave to remain in the State to be undertaken simultaneously. The 2015 Act also changed the structure of the determining bodies, abolishing the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The protection mechanism was re-established as the Protection Office in the Department of Justice and Equality, while the independent International ­Protection Appeals Tribunal became the appellate body. The 2015 Act defines a person eligible for refugee status as a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of

* Irish Centre for Human Rights, NUI Galway. 1  NHV v Minister for Justice, Equality, and Law Reform [2017] IESC 35.

140  The Irish Yearbook of International Law 2016–17 the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it

and defines a person eligible for subsidiary protection as one (a) who is not a national of a Member State of the European Union, (b) who does not qualify as a refugee, (c) in respect of whom substantial grounds have been shown for believing that he or she, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country.2

On application for asylum on entry to the State, an applicant is interviewed by an immigration officer.3 A person over 18 years of age may make an application on their own behalf and on behalf of any dependent minors.4 The Child and Family Agency should be notified of the arrival of an unaccompanied minor, and a person appointed by the Agency should represent the minor’s guardian during the application process.5 The Act also provides for the medical examination of an unaccompanied young person to determine whether they have reached the age of 18, provided it is ‘performed with full respect for the applicant’s dignity … the least invasive examination possible [and] carried out by a registered medical practitioner’.6 At first instance, the international protection officer will examine each a­ dmissible application in order to determine if the applicant is eligible for refugee status, ­subsidiary protection, or neither.7 If the applicant does not qualify for either status, the Minister for Justice may decide whether to grant them leave to remain,8 with due regard to (a) the nature of the applicant’s connection with the State, if any, (b) humanitarian considerations, (c) the character and conduct of the applicant both within and (where relevant and ascertainable) outside the State (including any criminal convictions), (d) considerations of national security and public order, and (e) any other considerations of the common good.9

The Minister may also grant permission to remain when the return of the applicant would breach the obligation of non-refoulement.10 A negative finding by the Protection Office may be appealed to the International Protection Appeals Tribunal.11 An entitlement to family reunification remains in the 2015 Act; however, it is more restrictive than under the Refugee Act 1996. Under the 1996 Act, a qualified person12 2 

International Protection Act 2015, section 2(1). Ibid, section 13. 4  Ibid, section 15. 5  Ibid, section 14. 6  Ibid, section 24(2)(b). 7  Ibid, section 34. 8  Ibid, section 49. 9  Ibid, section 49(3). 10  Ibid, section 50. 11  Ibid, section 41. 12  A person who has been granted refugee status or subsidiary protection. 3 

Correspondent Reports—Duffy 141 may apply for permission to enter and reside in the State for a spouse, a parent of a minor, or a minor child, as well as any ‘dependent member of the family’.13 Under the 2015 Act, the entitlement to apply for permission is granted only to a spouse or civil partner, a minor child, or the parent(s) and minor sibling(s) of a minor.14 The application for family reunification must be made within 12 months of the ­declaration of refugee status or subsidiary protection.15 The Preamble to the 2015 Act also states that it is intended to give further effect to Council Directive 2001/55/EC,16 Council Directive 2004/83/EC,17 Council Directive 2005/85/EC18 and the 1951 Convention and 1967 Protocol on the status of refugees. It repeals the Refugee Act 1996 and amends, among others, the Immigration Act 1999, the Immigration Act 2003 and the Immigration Act 2004. HUMAN RIGHTS IN THE SUPERIOR COURTS

In May 2017, the Supreme Court considered the case of NHV v Minister for Justice Equality, and Law Reform.19 The key questions in this case concerned the nature of the unenumerated right to work under Article 40.3 of the Constitution, and whether it could be held unconstitutional to deny asylum seekers access to the labour market. A prohibition on the right to work for persons in the asylum system was contained in Section 9(4) of the Refugee Act 1996, which stated that ‘an applicant shall not … seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration’. ­Section 9(11) of the 1996 Act clarified that Section 9(4) ‘shall apply only to an applicant who, but for the provisions of this Act, would not be entitled to enter or remain in the State’. When the International Protection Act 2015 superseded the 1996 Act, a similar provision was enacted in the form of Section 16(3)(b) of the 2015 Act: ‘an applicant shall … not seek, enter or be in employment or engage for gain in any business, trade or profession’. NHV was a Burmese national who had arrived in Ireland and commenced his application for asylum in 2008. Since that time, he had been resident in a Direct Provision facility in Monaghan. He was legally prohibited from seeking employment

13  Refugee Act 1996, section 18(4)(b). Dependent family members are defined as ‘any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully’. 14  International Protection Act 2015, section 56(9). 15  Ibid, section 57(7). 16  Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12. 17 Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12. 18 Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13. 19  NHV v Minister for Justice (n 1).

142  The Irish Yearbook of International Law 2016–17 and was living on the given allowance of €19.10 per week. He stated that the inability to work was having negative effects on his health and self-esteem. NHV had already experienced long delays in the asylum process. His original application had been turned down by the Office of the Refugee Applications Commissioner (ORAC) in 2008; the subsequent Refugee Appeals Tribunal hearing upheld this decision. In 2013 the Tribunal decision was quashed in judicial review, and NHV was told that he would have to recommence the asylum process. His second application was again turned down by ORAC, and once more that decision was upheld by the Refugee Appeals Tribunal in 2013. In 2014, the Tribunal decision was quashed by consent, and NHV was told again that he would have to restart the process, despite at this point having been resident in Direct Provision for six years and with no definite endpoint to his residence there. In 2013, NHV had been offered paid employment within the Direct Provision facility. He applied to the Minister for Justice for leave to accept the offer, which was refused under the terms of Section 9(4). Following this, he commenced proceedings challenging the validity of Section 9(4) under the Irish Constitution, the ­European Convention on Human Rights, and the Charter of Fundamental Rights of the ­European Union. The High Court case was heard by McDermott J, who dismissed the applicant’s claims under all three sources of law. McDermott J established that, in Cafolla v O’Malley20 the Court had stated that ‘the right to earn a livelihood can properly be regarded as an unspecified personal right first protected by Article 40. 3, sub-section 1 [of the Constitution]’. However, [t]he rights, including fundamental rights, to which non-nationals may be entitled under the Constitution do not always coincide with the rights protected as regards citizens of the State, the right not to be deported from the State being an obvious and relevant example.21

Accordingly, the High Court found that the prohibition on the right to work was a prerogative legitimately exercised by the Irish Government. Furthermore, on application of the Heaney proportionality test,22 the measure was held to be founded on a rational basis—the regulation of the access of asylum seekers to the employment market—and not to be ‘arbitrary, unfair or based on irrational considerations’. McDermott J also found no right to work for asylum seekers under European Union law, noting that not only does the Charter of Fundamental Freedoms not delineate a specific right to work, but that Ireland had explicitly opted out of Council ­Directive 2003/9/EC (the Reception Directive)23 and Council Directive 2013/33/EU24 (ie the directives underpinning the duty of States Parties to provide access to the labour market for asylum seekers). Finally, under the European Convention on Human Rights, the Court was

20 

Cafolla v O’Malley [1985] IR 486 at 493. Re Article 26 and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 1 IR 360 at 384. 22  [1994] 3 IR 593 607. 23  Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18. 24 Council Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2003] OJ L180/96. 21 

Correspondent Reports—Duffy 143 not satisfied that the right to private life encompasses a derived right to work or earn a livelihood by an asylum seeker who has been granted leave to enter and remain in the State on the condition that he/she will not seek or enter employment.25

The Court of Appeal issued its judgment on this case in 2016, upholding the High Court decision by a 2–1 majority. Finlay Geoghegan J authored the majority opinion, joined by Ryan J, while Hogan J dissented on the findings with regard to the Constitutional rights of the appellant. All three judges, however, dismissed the appellant’s arguments under the European Union Charter and European Convention. Accordingly, O’Donnell J’s Supreme Court judgment addressed only the Constitutional questions raised by the judgment of Hogan J. The Supreme Court identified the following key questions arising under Constitutional law: [M]ay a non-citizen, and in particular, an asylum seeker without any other connection to the State, rely on any right guaranteed by the Constitution of Ireland, and if so the ­unenumerated right to work? If so what is the nature of the right to work guaranteed by the Constitution? If a non-citizen may invoke such a right, what is the nature and extent of the right which must be accorded to a non-citizen and in particular asylum seeker with no other connection to, or claim to remain in the State?26

Thus, the Court first turned its attention to the extent to which a constitutional right can be said to be guaranteed to non-citizens of Ireland. To do so, it had regard to the Article 40.1 provision that all citizens be held equal before the law ‘as human persons’. Building on this provision, the Court found that an unenumerated personal right under Article 40.3 could potentially be depended upon by an asylum seeker or other non-citizen, providing it could be established that the failure to allow them access that right would be contrary to their equality as a human person.27 The Court then addressed the substantive nature of the right to work as understood under the Constitution. A general right to work, within reasonable limitations, may be read into Article 40.3. The right is social and economic in nature; however, it is also tied to human dignity. The Court stated that as such, the right to work should be considered under the equality guarantee in Article 40.1, and ‘­cannot be withheld absolutely from non-citizens’.28 Following this, the Court turned its attention to the question of legitimate distinctions between citizens and non-citizens, including asylum seekers. As non-citizens do not have the same ties to the State as citizens, there is a difference substantial enough to legitimise ‘significant distinction in the field of employment’.29 The Court felt that the Government, utilising executive power, could justifiably allow for significant but proportionate restriction of the right to work as presented to asylum seekers.30 Having made this distinction, the Court once more turned its attention back to Section 9(4) of the Refugee Act, which did not ‘merely limit the right severely: it remove[d] it altogether’.31 Read together 25 

Cafolla v O’Malley (n 20) [60]. NHV v Minister for Justice (n 1) [10]. 27  NHV v Minister for Justice (n 1) [11]. 28  NHV v Minister for Justice (n 1) [17]. 29  NHV v Minister for Justice (n 1) [17]. 30  NHV v Minister for Justice (n 1) [18]. 31  NHV v Minister for Justice (n 1) [19]. 26 

144  The Irish Yearbook of International Law 2016–17 with the indefinite length of an asylum seeker’s stay in Direct Provision, the effect was a total prohibition on employment without a legal or practical limitation on the time-limit for processing an asylum application. The Court held that ‘if a right is in principle available’, that it is not ‘appropriate and permissible … to remove the right for all time from asylum seekers’.32 The Court suspended the consideration of its order in this case for six months in order to allow the executive and legislative parties concerned time to make submissions on potential statutory remedies. In July, a governmental taskforce was established to consider potential ways in which to effectuate the Supreme Court judgment. In November 2017 it was announced by the Minister for Justice and Equality, Charlie Flanagan, that the Irish Government had decided to opt in to the ‘Reception Directive’, Directive 2013/33/EU, which holds that access to the labour market must be allowed to asylum seekers no later than nine months after the beginning of asylum proceedings. The Minister also affirmed that this would apply to all asylum seekers, whether they chose to accept accommodation in Direct Provision Centres or otherwise. IRELAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

In 2017, the European Court of Human Rights (ECtHR) issued its judgment in the case of Independent Newspapers (Ireland) Ltd v Ireland.33 This case concerned an alleged violation of the applicants’ right to freedom of expression as protected by Article 10 of the European Convention on Human Rights (the Convention or ECHR). The ECtHR was asked to consider whether the high award of damages in a defamation suit violated Article 10 ECHR. The applicant had been ordered to pay what it considered to be a disproportionately high award of damages to a plaintiff following a defamation suit in the Irish courts. The Irish plaintiff, Ms L, had sued the applicant following a series of articles which alleged that she had obtained government consultancy work and travel due to an illicit affair with a government official. The jury in the High Court awarded her damages to the sum of €1,872,000. In 2014, the Supreme Court heard an appeal against the extent of the award and the Supreme Court reduced it to €1,250,000 in damages, having found the original award to be disproportionately high, but nevertheless that Ms L had suffered ‘a serious and sustained attack’ on her ‘business and personal integrity’.34 Following this, Independent Newspapers made an application to the ECtHR. The first question before the ECtHR was that of admissibility. The State argued that as the requisite safeguards on freedom of expression in the media were in place in domestic law, and had in fact been approved by the ECtHR in the case

32 

NHV v Minister for Justice (n 1) [19]. Independent Newspapers (Ireland) Ltd v Ireland, Application No 28199/15 (ECtHR, 15th June 2017). 34  Ibid [28]. 33 

Correspondent Reports—Duffy 145 of Independent News and Media v Ireland,35 the application was inadmissible. However, the Court felt that as the distinct question in the present discussion did not debate the existence of these safeguards but their ability to protect against ­disproportionate awards, the case was admissible and the Court would decide on the merits of the case. Neither party disputed that the award of damages against the applicant company constituted a restriction on its freedom of expression, nor that the aim of the award, to vindicate Ms L’s right to protect her reputation, was legitimate. The Court first considered whether the interference could be considered ‘prescribed by law’ given the absence of specific guidelines on damages for defamation in Irish law. Recalling its own jurisprudence in Tolstoy Miloslavsky v the United Kingdom,36 where it held that ‘the absence of specific guidelines … must be seen as an inherent feature of the law of damages’,37 the Court held that the fact that there existed an uncertainty over the amount of damages awarded in a given case could not be seen as violating the principle of prescription by law.38 On the question of whether the award was ‘necessary in a democratic society’, the ECtHR first found that the award in this case was ‘unusual by domestic standards’39 and noted that it was accepted that ‘unpredictably large damages awards in libel cases’40 imply a chilling effect on media and ‘therefore require the most careful scrutiny’. It then proceeded to examine the procedure followed by the High Court judge with regard to briefing the jury. In Irish law, the rules in such an instance derive from the case of Barrett v Independent Newspapers: … it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaintiff, the extent of the publication, the conduct of the Defendant at all stages of the case and any other matter which bears on the extent of damages. … a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered.41

The ECtHR found that the trial judge’s charge to the jury followed Barrett ­guidelines.42 It included the salient points that the judge is not permitted to suggest appropriate sums in damages, and that both parties must be considered when deciding the amount to be awarded. Although the ECtHR felt that the judge had operated

35  Independent News and Media Plc and Independent Newspapers (Ireland) Limited v Ireland, ­Application No 55120/00 (ECtHR, 16th June 2005). 36  Tolstoy Miloslavsky v the United Kingdom (1995) 20 EHRR 442 (ECtHR, 13th July 1995). 37  Ibid [41]. 38  Independent Newspapers (n 33) [81]. 39  Independent Newspapers (n 33) [84]. 40  Independent Newspapers (n 33) [85]. 41  Barrett v Independent Newspapers [1986] IR 13. 42  Independent Newspapers (n 33) [86].

146  The Irish Yearbook of International Law 2016–17 correctly within the capacity allowed to him by Irish law, the resulting direction given to the jury was found to be overly generic, not capable of limiting uncertainty, and not ‘such as to reliably guide the jury towards an assessment of damages bearing a reasonable relationship of proportionality to the injury sustained’.43 At Supreme Court level, the ECtHR noted that the safeguard of appellate discretion to set aside a disproportionate award was shown to be operational.44 However, the Supreme Court had failed to offer an explanation for its decision to make an alternate award of damages, rather than referring the case for a retrial or adjudicating the matter. Notwithstanding the margin of appreciation afforded to the domestic Court in these cases, the unusually large award decided upon by the Supreme Court should have been accompanied by a strong justification. Although the Supreme Court decision did display some reasoning, notably the restatement of the Barrett principles, it was not substantial, and the ECtHR held that ‘judicial control exercised at appellate level should, through the statement of reasons for the award, reduce uncertainty to the extent possible’.45 The Supreme Court also failed to examine the effectiveness of the safeguard regarding judicial charges to juries, despite the discomfort expressed by the trial judge with the constraints inflicted on him by Irish law.46 The Court noted in closing that it did not wish to impugn the role of juries in defamation hearings, a role that it accepted was important within the Irish legal system. It restated that its issues lay not with the jury, but the inability of the trial judge to charge them in a manner limiting uncertainty, and the reasoning—or lack thereof— of the superior Court to justify its decision to award a disproportionately high level of damages.47 It also acknowledged that since the instigation of Ms L’s proceedings, the Irish law has changed with the adoption of the Defamation Act 2009, which allows a trial judge to give more detailed directions to a jury, and welcomed the Supreme Court’s indication that practice will develop in this manner.48 Accordingly, the ECtHR found that there had been a violation of Article 10 ECHR with regard to Independent Newspapers.49 Despite the applicant company’s claim for €1,075,000 in pecuniary loss, based on its own assessment of an appropriate amount of damages for Ms L subtracted from the Supreme Court’s award, the ECtHR did not award pecuniary damages as it considered that it was impossible to accurately predict what the outcome of the case would have been had there been no breach of Convention rights.50 In the case of Brennan v Ireland,51 the complainant alleged a violation under ­Article 6(1) of the ECHR (the protection of the right to due process). Ms Brennan had entered into a dispute with the other parties to the construction of her house: Mr and Mrs F (from whom she had purchased the site), T&C Developments L ­ imited

43 

Independent Newspapers (n 33) [92]. Independent Newspapers (n 33) [93]. 45  Independent Newspapers (n 33) [99]. 46  Independent Newspapers (n 33) [101]. 47  Independent Newspapers (n 33) [105]. 48  Independent Newspapers (n 33) [106]. 49  Independent Newspapers (n 33) [107]. 50  Independent Newspapers (n 33) [111]. 51  Brennan v Ireland, Application No 44360/15 (ECtHR, 2nd November 2017). 44 

Correspondent Reports—Duffy 147 (the company owned by the Fs which had overseen the building of the house), and Homebond (a guarantor company which covered the house). After Ms Brennan took up residence she noticed ‘serious structural defects’ in the build. She applied to Homebond to perform repairs. Homebond agreed to perform repairs but refused to issue an Engineer’s Certificate afterward, without which Ms Brennan believed the house to be unsaleable. Ms Brennan instituted proceedings against all four parties to the construction, as well as a Mr Q, the engineer who had certified the house despite, or without knowledge of, the defects, and his company, in early 2003. For several years, the applicant continued to be frustrated at the delays and lack of responses she and her counsel received from the defendants. Between 2004 and 2015, the applicant attempted repeatedly to have her complaints answered by the defendants in court, via communications by solicitor, and in mediation. She was frustrated in each attempt. In 2013, the High Court found against the first, second, third and fourth defendants; however, this was overturned by the Court of Appeal and the applicant was refused permission to appeal to the Supreme Court. The applicant alleged a breach of the ‘reasonable time’ requirement under Article 6(1) ECHR. The complaint was judged admissible. The ECHR heard submissions critical of the length of proceedings, particularly at appellate level, from the applicant. The Irish Government responded that the length of time taken did not arise because of ‘any backlog before the courts, or an insufficient number of judges or any other failure on the part of the authorities’; rather, it was due to the ‘exceptional procedural complexity’ involved in the case.52 The Government also disputed the claim that there had been particular delay from the appellate courts. The ECtHR considered that the duration of the case(s) should be assessed with regard to ‘the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute’53 in order to decide on the reasonableness of the timeframe. The issues at stake in the case did not produce any particularly difficult questions of law, but there were difficulties presented by both the number of defendants involved in the case, and the manner in which the applicant conducted it. The applicant had caused delays in serving the defendants with notice at the outset of the case; she let the case lie dormant between 2005 and 2009 while her solicitor corresponded with the fourth defendant; and she issued three consecutive notices to proceed. The Court noted that it had ‘repeatedly held that an applicant cannot be blamed for making full use of the multiple remedies available to them under domestic law’54; however, citing McMullen v Ireland,55 it held that an applicant’s behaviour can be considered in deciding on the reasonableness of a case’s duration. In this case, the delay could be attributed to Ms Brennan’s own conduct. The Court then considered the actions of the domestic Courts and the timescale on which they conducted the proceedings, finding that the domestic Courts had not been at fault for any unreasonable delays. The Irish Courts had set deadlines for 52 

Ibid [41]. Ibid [45]. Ibid [49]. 55  McMullen v Ireland, Application No 42297/98 (ECtHR, 29th July 2004). 53  54 

148  The Irish Yearbook of International Law 2016–17 submissions from the parties; they had recommended, legitimately, the potential of a settlement through mediation, but when that did not transpire, they were efficient in continuing with judicial proceedings.56 The 12-year span of proceedings in this case, over three different instances, was in fact legitimate and reasonable in the light of the legal matters covered and the manner in which the applicant had conducted it.57 Accordingly, the ECtHR found no breach of Article 6(1) ECHR. Applications Deemed Inadmissible In Adigun v Ireland,58 the ECtHR heard submissions under Articles 6, 13, and 14 ECHR. The applicant, who has dual Irish and Nigerian nationality, was the artistic director of the theatre company Arambe. He had become involved in a dispute with the Abbey Theatre in Dublin with regard to the division of proceeds from a play which he had co-authored and produced. He applied to the Equality Tribunal alleging racial discrimination in his treatment by the theatre. The Abbey’s management denied the allegation and contested the admissibility of the challenge on the grounds that the applicant had never been in a contractual employment relationship with the theatre. At a preliminary hearing, the Equality Officer struck out the applicant’s complaint on the grounds of locus standi, a decision which the applicant sought to challenge by judicial review in the High Court. At appellate level, the Equality Officer’s decision was upheld by the High Court and, subsequently, the Supreme Court. The Supreme Court also indicated that there were other forms of remedy available to the applicant should he have been able to prove that there was a breach of a contractual relationship, whereas ‘judicial review is not an appeal against the merits of the Tribunal’s decision but is essentially concerned with jurisdiction and procedure’. The Court turned first to the applicant’s arguments under Article 6(1). Although the applicant was alleging a breach of his right to freedom from racial discrimination, which would be justiciable under Irish law and allowable under Article 6(1), he had chosen to base his complaint on what he saw as an employment relationship with the Abbey Theatre. This had been shown by the Irish Courts to be fundamentally untrue, and the Court judged their findings to be rational and fair. Therefore, Article 6(1) was deemed inapplicable. Turning to the applicant’s allegations under Articles 13 and 14, the Court found these too to be inapplicable, and the overall complaint was rejected as inadmissible under Article 35(4) ECHR. In Blehein v Ireland,59 the applicant alleged violations under Articles 6 and 13 ECHR with regard to proceedings brought by him to obtain compensation following a Supreme Court decision finding a violation of his constitutional rights. He alleged that the proceedings had extended beyond a reasonable time, and furthermore that there was no available remedy in domestic law for his complaint.

56 

Brennan v Ireland (n 51) [52]. Brennan v Ireland (n 51) [59]; citing McNamara v the United Kingdom, Application No 22510/13 (ECtHR, 12th January 2017). 58  Adigun v Ireland, Application No 19673/16 (ECtHR, 31st January 2017). 59  Blehein v Ireland, Application No 14704/16 (ECtHR, 25th April 2017). 57 

Correspondent Reports—Duffy 149 The Irish Government responded to the complaint with a unilateral declaration acknowledging ‘that the length of proceedings and the lack of an effective remedy in that regard was incompatible with the reasonable time requirement contained in Article 6(1) and Article 13 of the Convention’. They proposed to cover the applicant’s costs as well as awarding him €7000 in pecuniary damages for the delay. However, the applicant remained unsatisfied with the unavailability of remedy under domestic law. The Court recalled that under Article 37(1) it is empowered to strike a complaint from the list on establishment of a reason rendering it ‘no longer justified to continue the examination of the application’. Furthermore, its case law has established that the Court may strike out an application even if the applicant wishes it to continue. The Court held that, having regard to the unilateral declaration submitted by the Irish Government, it was satisfied that it had no obligation to continue the proceedings. Finally, it noted that if the Irish Government failed to honour its unilateral declaration, the case could be restored to the Court’s list, per Article 37(2). PH v Ireland60 concerned a complainant who had undergone treatment in a Cork hospital for his chronic ulcerative colitis. Following an operation, a pelvic swab appeared positive for MRSA. Under hospital procedure PH was then required to stay in an isolation ward until he had tested clear for MRSA three times. He was in isolation for approximately one month before being released with a clean bill of health. He subsequently brought proceedings in the High Court against the hospital, alleging that there had been negligence in the manner in which his condition had been explained to him. Among other issues, he alleged that he had experienced great distress in the belief that his life was in danger. The trial judge decided in favour of the hospital, finding that the conduct of the staff was not negligent and that the appropriate information had been given to PH. She also held that under Irish law, damages could not in any case be awarded for ‘distress and anxiety that did not attain the level of psychiatric injury’.61 The applicant appealed the judgment. In 2016, the Court of Appeal found against the applicant, holding that the trial judge had not erred in her assessment of the witnesses or in her reasoning. While there had been a mistake made by the defence counsel in failing to present evidence of one particular conversation with a consultant at cross-examination, it did not ­warrant a mistrial. PH sought leave to appeal to the Supreme Court, but this was denied. The application to the ECtHR was brought under Articles 6(1) and 13 of the ECHR. PH claimed that the trial judge had been neither fair nor impartial; that the proceedings had lasted an unreasonable duration; and that there was no domestic remedy available to him. The ECtHR, citing De Tommaso v Italy,62 stated that ‘it is not its function to deal with alleged errors of law or fact committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention’.63 On examining the conduct of the domestic courts, as well 60 

PH v Ireland, Application No 45046/16 (ECtHR, 10th October 2017). Ibid [10]. De Tommaso v Italy, Application No 43395/09 (ECtHR, 23 February 2017) [170]. 63  PH v Ireland (n 60) [18]. 61  62 

150  The Irish Yearbook of International Law 2016–17 as the duration of the proceedings, it found that the applicant’s contentions under the Convention were manifestly ill-founded and they were rejected as inadmissible. As Article 13 only applies where an applicant has an ‘arguable claim’ to a violation of their Convention rights,64 the claim in that regard was also rejected. In Mills v Ireland,65 the ECtHR heard a complaint from an Irish man convicted on drugs charges following several transactions with undercover police officers. He alleged a violation of his Article 6(1) right to a fair trial as he believed the e­ vidence submitted by the National Drugs Unit officers should have been ruled inadmissible due to entrapment. On examination, the Detective Sergeant in charge of the operation detailed the briefings he had given to his officers, including the warning that they were not to ‘entice any person to commit an offence. Rather, they were permitted to initiate the commission of an offence.’ He acknowledged that there had been ‘no official protocol or written procedure in place at that time’66—although a protocol had subsequently been introduced—however, he was confident that via training, certification and supervision, the operation had been conducted correctly. The trial judge refused to exclude the evidence and the applicant was subsequently convicted. His submission to the Court of Appeal thereafter was rejected, as was his request for leave to appeal to the Supreme Court. At all stages the Irish Courts determined that while it would be preferable had there been an official protocol in place for undercover operations, the lack thereof did not automatically imply a Convention violation nor had the trial or appellate judges wrongly applied ECtHR precedent in making their decisions. The ECtHR applied its test on entrapment, formulated in Matanović v Croatia,67 which focuses on ‘the reasons for carrying out the undercover operation and conduct of the police’.68 On Matanović principles, the Garda operation was found not to constitute entrapment. The Court also addressed the procedural element of the Matanović test, on the efficacy of the domestic court system, and found the conduct of the trial judge to be correct. Accordingly, Mills’ complaint was held to be manifestly ill-founded and was dismissed. In Campion v Ireland,69 the ECtHR heard an application from an Irish man ­serving a life sentence for murder, who made two claims under Article 6 of the Convention. First, he claimed that his conviction breached Article 6(3)(d) due to the inclusion of out-of-court statements by a witness, EI, who had been ­unavailable to him for cross-examination; and second, that Section 16 of the Criminal Justice Act 2006, which sets out the conditions for the inclusion of statements from hostile prosecution witnesses as evidence at trial, was incompatible with Article 6 of the Convention.

64  PH v Ireland (n 60) [38]; citing Boyle and Rice v United Kingdom, Applications Nos 9659/82 and 9658/82 (ECtHR, 24th March 1988). 65  Mills v Ireland, Application No 50468/16 (ECtHR, 10th October 2017). 66  Ibid [7]. 67  Matanović v Croatia, Application No 2742/12 (ECtHR, 4th April 2017). 68  Mills v Ireland (n 65) [23]. 69  Campion v Ireland, Application No 29276/17 (ECtHR, 10th October 2017).

Correspondent Reports—Duffy 151 EI had been an eyewitness to the incident in which Campion had allegedly shot the victim, and had been the person to summon the emergency services. On the evening of the incident, he had given a statement to the Gardaí in which he denied knowing the identity of the gunman, a statement which he repeated the following day. He had then been arrested on suspicion of withholding information pursuant to the Offences Against the State Act 1939, but continued to repeat his statements over the course of six interviews. Following a conversation with a family member of the victim, EI told the Gardaí in an unrecorded statement that it was indeed Mr Campion who had shot the victim. However, at trial, he reverted to his original account and testified that the identification had been a lie told to obtain his release from custody. Section 16 of the Criminal Justice Act 2006 governs the admission of inconsistent previous witness statements at trial. The statement can be admitted if the witness confirms it or it is proved that he made it, and the court is satisfied that direct oral evidence of the contents would be admissible, that it was made voluntarily, and that it is reliable. In addition, the court must be satisfied that either the statement was made on oath, affirmation, or similar statutory declaration, or that when the statement was made the witness understood the requirement to tell the truth.70

Furthermore, the Court ‘shall consider how the statement was made’,71 including any reasoning or explanation the witness gave for the inconsistency. The Court may also refuse to admit the statement into evidence if it is its opinion that the statement should be excluded, or is unnecessary in the context of other evidence given. The trial judge at the Central Criminal Court heard submissions regarding EI’s statement at voir dire, and was satisfied that the evidence should be admitted pursuant to ­Section 16 of the Criminal Justice Act. Furthermore, when charging the jury he was careful to draw their attention to the inconsistencies in EI’s evidence, the fact that the original statement was not made under oath, and the contents of Section 16. Campion appealed his conviction, citing EI’s evidence as the ‘sole or decisive’ evidence against him, which he had not been able to cross-examine (following Al-Khawaja and Tahery v the United Kingdom72). He alleged that EI’s statements were involuntary and unreliable, and that the trial judge had erred in their inclusion and in his charge to the jury. The Court of Appeal had considered that Section 16 constituted ‘a high bar for the prosecution’,73 but that the inclusion of EI’s statement did not constitute unfairness to the applicant. He also noted that, although the defence had focused on Al-Khawaja and Tahery, in that case the Grand Chamber of the ECtHR ‘had moved emphasis away from a consideration as to whether the challenged evidence was the sole and exclusive evidence to one which focused on the overall fairness of the trial’.74 Citing the availability of EI to cross-examination in the courtroom and the attention to explanation of the circumstances in the charge

70 

Ibid [24]. Ibid [25]. 72  Al-Khawaja and Tahery v the United Kingdom, Application Nos 26766/05 and 22228/06 (ECtHR, 15th December 2011). 73  Campion v Ireland (n 69) [18]. 74  Campion v Ireland (n 69) [19]. 71 

152  The Irish Yearbook of International Law 2016–17 to the jury, the Court of Appeal found that the trial judge had conducted the hearing fairly, and dismissed the appeal. Campion applied for leave to appeal to the Supreme Court, but was denied. The ECtHR first considered the applicant’s reliance on Al-Khawaja and Tahery, summarising the Grand Chamber’s findings in the case as where the evidence of an absent witness was the sole or decisive basis for a conviction, sufficient counterbalancing factors were required, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place.75

It then differentiated Al-Khawaja and Tahery from the matter at hand, citing EI’s presence at the trial and the cross-examination which took place at both voir dire and at trial.76 The ECtHR also stated that the admissibility of evidence is a matter which should be regulated in domestic law, with its own function being to examine the application and fairness of those laws. In this case, Ireland was held to have ‘numerous procedural safeguards against unfairness to defendants’.77 The trial judge had acted reasonably in their application, and the review process at ­appellate level was both fair and thorough. Accordingly, the applicant’s claim under Article 6(3)(d) was dismissed as manifestly ill-founded. The ECtHR then turned its attention to the applicant’s second argument, namely the compliance of Section 16 of the Criminal Justice Act 2006 with Article 6 ECHR. As the applicant had not challenged the section during the domestic hearings, he was found not to have exhausted domestic remedies and the complaint was held to be inadmissible. OTHER DEVELOPMENTS

Views Adopted by the United Nations Human Rights Committee The Human Rights Committee published its view adopted in the case of Amanda Jane Mellet v Ireland78 in June 2016. The case had been taken by Ms Mellet under the individual communications procedure as detailed in the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The author of the communication was represented by the Centre for Reproductive Rights. Ms Mellet is an Irish woman who received a diagnosis of a fatal foetal anomaly (an anomaly which is incompatible with life, meaning the foetus would die in utero or shortly after birth; in this case, Trisomy 18) during her 2011 pregnancy. When the anomaly was first detected, she was told that even if it proved to be fatal, she could

75 

Campion v Ireland (n 69) [29]. Campion v Ireland (n 69) [30]. 77  Campion v Ireland (n 69) [33]. 78 Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning Communication No 2324/2013, Amanda Jane Mellet v Ireland (UN Human Rights Committee, 31st March 2016). 76 

Correspondent Reports—Duffy 153 not obtain a termination in Ireland and would have to ‘travel’ if she wished to end the pregnancy. Abortion in Ireland is regulated by Article 40.3.3 of the Constitution, and the Protection of Life During Pregnancy Act 2013. Together, they restrict the legality of abortion to situations in which the life of the pregnant person is directly at risk. Under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995, the provision of information regarding abortion provision overseas is also strictly limited. After the severity of the anomaly was confirmed, the midwife again told her she would have to ‘travel’ and referred her to a family planning agency to seek information about what that would entail. The Irish hospital was not permitted to schedule a direct referral to a hospital outside the jurisdiction for her. The family planning agency contacted the British hospital on her behalf. As it is legal to seek and receive aftercare for a miscarriage in Ireland, before travelling to Liverpool the author had another scan at the Rotunda Hospital in Dublin to determine whether the foetus still had a heartbeat. When the examining doctor located a heartbeat, he attempted to dissuade her from terminating, even though her main concern was that her child would be born suffering. The author delivered a stillborn baby girl after 36 hours of induced labour in ­Liverpool Women’s Hospital, and was then forced to travel back to Ireland within 12 hours after the delivery because she and her husband could not afford to stay longer in the United Kingdom. She could not obtain financial support from the Irish State nor was she provided with bereavement counselling, as would have been the case if she had endured a spontaneous stillbirth. The author brought claims against the Irish State under Articles 2 (1), 3, 7, 17, 19, and 26 of the ICCPR. The Committee first considered the author’s complaint under Article 7 ICCPR. She alleged that the State had violated her right to freedom from cruel, inhuman and degrading treatment in ‘(a) denying her the reproductive health care and bereavement support she needed; (b) forcing her to continue carrying a dying fetus; (c) ­compelling her to terminate her pregnancy abroad; and (d) subjecting her to intense stigma’.79 Although the State Party argued that the law in Ireland was clear and well-known, the Committee called to mind the principle that the legality of an action under domestic law does not grant it automatic compliance with the ICCPR.80 The Irish regime had subjected the author to ‘conditions of intense physical and mental suffering’.81 She suffered trauma in facing the financial, emotional and physical burdens of travel and experiencing discontinuity of care between the Irish and British hospital systems. She was not offered bereavement counselling in the aftermath of her experience. She also attested to the ‘severe emotional pain’82 inflicted by the criminalisation and stigmatisation of abortion in Ireland. In conjunction with the illegality of abortion, the Committee considered that the Abortion Information Act 1995 further exacerbated the author’s situation by disrupting the provision of

79  80 

Ibid [3.1]. Ibid [7.4].

82 

Ibid [3.4].

81 Ibid.

154  The Irish Yearbook of International Law 2016–17 healthcare. As Article 7 is a non-derogable provision of the ICCPR, there is no justification for violations of the provision. Accordingly, the Committee held that there was a breach of the author’s rights under Article 7. With regard to Article 17 ICCPR right to privacy and family life, the author alleged that the Irish State, in denying her the option to terminate her pregnancy at home, had interfered in her decision-making in an arbitrary matter. The law in I­reland held ‘the moral interest in protecting fetal life as superior to the author’s right to mental stability, psychological integrity and reproductive autonomy’.83 In this case, although the intent of the Constitutional Article 40.3.3 restriction on abortion is the protection of foetal life, the author’s foetus was non-viable therefore rendering that motivation moot. The State Party contended that the interference with her privacy was neither arbitrary nor unlawful; the State acted proportionately with a legitimate aim in enacting its abortion laws. The Committee recalled that in its opinion in KL v Peru,84 the decision to terminate a pregnancy falls under Article 17 ICCPR. On the merits of the arguments, the Committee found that, with regard to the author’s case, the balance Ireland has chosen to strike through its laws ‘cannot be justified’.85 The State Party’s interference in the author’s decision on terminating her non-viable pregnancy therefore constituted a breach of Article 17 ICCPR. Finally, the author alleged a breach of her right to non-discrimination under Article 26 ICCPR. The restrictions on abortion in Irish law place a burden on women. Men are not routinely and consistently compelled to travel abroad for healthcare procedures. The State Party denied the allegation of discrimination, but argued that if there is a distinction in law, it is due to the ‘reasonable and o ­ bjective d ­ ifferentiation’86 between women and men. The Committee chose to examine the difference in treatment between persons who receive a diagnosis of a fatal foetal anomaly and choose to continue with the pregnancy, and those who choose to t­erminate. Those who continue the pregnancy until term or until a spontaneous stillbirth receive care under the public healthcare system. They are covered by health insurance, and therefore do not bear an extra financial burden, and they are given bereavement and post-natal medical attention. Persons who choose to travel to ­terminate do not receive any of these medical or social aids. Accordingly, the ­Committee found that the legal regime in the State Party ‘failed to adequately take into account her medical needs and socioeconomic circumstances and did not meet the requirements of reasonableness, objectivity and legitimacy of purpose’,87 thereby violating the author’s rights under Article 26 ICCPR. The Committee elected not to separately consider the author’s complaints under Articles 2(1), 3 and 19 ICCPR. The Committee held that the State Party was liable to the author for compensation and any psychological care needed. It also advised the State Party that it was

83 

Ibid [3.6]. KL v Peru, Communication No 1153/2003 (UN Human Rights Committee, 3rd November 2005.) 85  Mellet v Ireland (n 78) [7.8]. 86  Mellet v Ireland (n 78) [4.13]. 87  Mellet v Ireland (n 78) [7.11]. 84 

Correspondent Reports—Duffy 155 responsible for averting any future breaches of individuals’ Convention rights, and should therefore amend its law on the voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, ensuring effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that healthcare providers are in a position to supply full information on safe abortion services without fearing they will be subjected to criminal sanctions.88

In June 2017, the Human Rights Committee once again published views on a communication from an Irish woman who had been forced to travel for a termination following a fatal foetal anomaly diagnosis. Siobhán Whelan v Ireland89 concerned an Irishwoman who had received a foetal diagnosis of holoprosencephaly and ­Trisomy 13 incompatible with life, following her 20-week scans. Her doctors did not give her information about her options or counselling services, but offered a report on the scan ‘in case [they] wanted to travel’.90 She faced considerable obstacles to obtaining information and confirming an appointment with Liverpool Women’s Hospital. Her labour was induced in Liverpool and she gave birth to a stillborn boy, whose remains they were obliged to leave in England. As they left Ireland, Ms Whelan said she had felt like ‘a criminal’.91 The reasoning of the Committee in Whelan followed its previous Mellet decision closely. Although the State once again attempted to argue that the abortion regime in Ireland was reasonable and followed legitimate aims in attempting to balance the competing rights of the pregnant person and the foetus, the Committee found that due to ‘a high level of mental anguish that was caused to the author by a combination of acts and omissions attributable to the State party’,92 the State’s laws were a breach of the author’s Article 7 ICCPR right to freedom from cruel, inhuman and degrading treatment. Similarly, the Committee found violations of Articles 17 and 26 ICCPR in the author’s regard, as the State had made a legal but arbitrary interference with her right to privacy, and the treatment she had received was an unjustified discrimination vis-a-vis a pregnant person who chose not to travel and terminate. Although General Comment No 28 of the Human Rights Committee reads that ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’,93 the Committee did not find that the actions of the Irish State met the criteria of rationality, objectivity and legitimacy of purpose. The Committee decided not to consider the author’s claims under Articles 2(1), 3 and 19 ICCPR.

88 

Mellet v Ireland (n 78) [9]. adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning Communication No 2425/2014, Siobhán Whelan v Ireland (UN Human Rights Committee, 12th June 2017). 90  Ibid [2.2]. 91  Ibid [2.4]. 92  Ibid [7.7]. 93  Ibid [7.12]. 89  Views

156  The Irish Yearbook of International Law 2016–17 Committee on the Rights of the Child: Concluding Observations on the Third and Fourth Periodic Reports of Ireland The UN Committee on the Rights of the Child heard Ireland’s submissions on its combined third and fourth periodical reports in January 2016 and delivered its Concluding Observations on 29 January.94 The Committee welcomed Ireland’s ratification of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, in 2014, and the Domestic Workers Convention 2011 (No 189) of the International Labour Organization (ILO), in 2014.95 It also welcomed legislative developments in the State, including the Thirty-First Amendment of the Constitution (Children) Act 2012, the Children and Family Relationships Act 2015, the Gender Recognition Act 2015 and the Civil Registration (Amendment) Act 2014.96 It also acknowledged the establishment of the Irish Human Rights and Equality Commission, and the Child and Family Agency, and the adoption of the Better Outcomes, Brighter Futures National Policy Framework for Children and Young People 2014–2020.97 The Committee began by recalling the State’s attention to the previous recommendations which had not been implemented within this reporting period,98 along with the State’s failure to fully incorporate the Convention into domestic law.99 It welcomed the establishment of the Department of Children and Youth Affairs,100 and issued recommendations regarding the importance of budgeting and resource allocation to children’s rights programmes, including allocation of resources to Traveller and Roma children.101 It also noted with concern the lack of data aggregation regarding Traveller children.102 The Committee recommended that the State ‘ensure the independence of the Ombudsman for Children’s Office, including with regard to its funding and mandate’.103 It also issued recommendations on the promotion of training and Convention principles to persons working with children.104 The Committee recommended that the State amend the Family Law Act 1995 to remove all exceptions allowing for marriage for children under 18 years.105 Regarding the General Principles provisions of the Convention, namely Articles 2, 3, 6, and 12, the Committee addressed non-discrimination, the best interests of the child and respect for the views of the child. On non-discrimination, it recommended that the State strengthen efforts to combat discrimination against children on the

94  UN Committee on the Rights of the Child (UN CRC), ‘Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland’ (1st March 2016) CRC/C/IRL/CO/3-4. 95  Ibid, para 3. 96  Ibid, para 4. 97  Ibid, para 5. 98  Ibid, para 7. 99  Ibid, para 8. 100  Ibid, para 13. 101  Ibid, para 16. 102  Ibid, para 17. 103  Ibid, para 20. 104  Ibid, para 22. 105  Ibid, para 26.

Correspondent Reports—Duffy 157 basis of Traveller or Roma ethnicity, or sexual orientation or gender identity.106 It directed the State to its General Comment 14 to ensure that the best interests of the child are a primary consideration across legal and policy initiatives.107 It also recommended that the State amend family and educational statutes to ensure the voice of the child is heard in proceedings, as well as considering a referendum to lower the voting age in Ireland to 16 years.108 On the right to identity, the Committee recommended that the State ensure access to information and consideration for children born as a result of assisted reproduction technologies; whose father is a Catholic priest; or who lack legal certainty due to having unmarried parents.109 It also recommended that children be facilitated in opting out of religious education classes in accordance with their background if desired.110 The Committee made a number of recommendations regarding violence against children. It recommended that the Child and Family Authority be given adequate resources to address the needs to children at risk and that the State provide sufficient refuge accommodation for families fleeing domestic violence.111 While it noted the adoption of the Gender Recognition Act 2015 with approval,112 it remained concerned that the right of intersex children to be free from medically unnecessary surgical interventions was not guaranteed in the State.113 The Committee also made recommendations on the care of children deprived of a family environment. Directing the State to the UN Guidelines for the Alternative Care of Children, it urged the State to ensure that social care is adequately resourced and monitored.114 The Committee also recommended that the State amend the Adoption Act 2010 to include ‘information disclosure, family tracing and post-adoption support measures, in accordance with international practice’.115 The Committee also made numerous recommendations regarding health, welfare and disability, under Articles 6, 18 (3), 23, 24, 26, 27 (1-3) and 33. It cited concerns regarding lack of educational inclusion, care and accommodations for children with disabilities116 and recommended that the State resource and enforce these services in line with General Comment No 9 (2006) on the rights of children with disabilities.117 The Committee was also ‘deeply concerned’ about the health of children from disadvantaged backgrounds,118 recommending that the State address socioeconomic disadvantages and in particular, to ensure that Traveller and Roma children

106 

Ibid, para 28. Ibid, para 30. 108  Ibid, para 32. 109  Ibid, para 34. 110  Ibid, para 36. 111  Ibid, para 38. 112  Ibid, para 39. 113  Ibid, para 40. 114  Ibid, para 44. 115  Ibid, para 46. 116  Ibid, para 47. 117  Ibid, para 48. 118  Ibid, para 49. 107 

158  The Irish Yearbook of International Law 2016–17 had access to medical cards and health services.119 It also made recommendations on improving mental healthcare services for children and focusing on suicide prevention strategies.120 The Committee also strongly criticised the laws on abortion in Ireland, stating that they ‘prevent[] doctors from being able to provide services in accordance with objective medical practice’.121 In order to protect the health of adolescents, including pregnant minors, the State should decriminalise abortion and legislate for access to safe abortion services, as well as implementing a comprehensive sexual and reproductive education programme in schools.122 Commenting on education, the Committee expressed concern at the continuing discriminatory school admission policies on the basis of the child’s religion123 and recommended that the State review those policies. Ireland’s asylum and reception procedures were also criticised by the Committee, in particular the use of accommodation centres (Direct Provision Centres) which are not appropriate for families with young children.124 The Committee recommended that Ireland bring its asylum system into line with its international obligations.125 Another issue of concern was the ‘continued inadequacy of the framework in fully addressing the needs of migrant children’,126 whereafter Ireland was advised to adopt comprehensive, clear and accessible legal measures for children and families in irregular migration situations.127 The Committee was deeply concerned at the ‘structural discrimination’ endured by Traveller and Roma children in the fields of health, welfare and education,128 and urged Ireland to take steps including the recognition of Travellers as an ethnic group.129 The Committee recommended that Ireland reset the age of criminal responsibility from 10 to 14; ensure that children and adults are not detained in the same facilities;130 and recalled the State’s attention to the importance of the Optional Protocol on the involvement of children in armed conflict.131 Lastly, the Committee urged Ireland to ratify Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the Convention on the Rights of Persons with Disabilities and the International Convention for the Protection of All Persons from Enforced Disappearance,132 and to cooperate with the Council of Europe and the ECtHR as regional human rights institutions.133

119 

Ibid, para 50. Ibid, para 53–56. 121  Ibid, para 57. 122  Ibid, para 58. 123  Ibid, para 63. 124  Ibid, para 65. 125  Ibid, para 66. 126  Ibid, para 67. 127  Ibid, para 68. 128  Ibid, para 69. 129  Ibid, para 70. 130  Ibid, para 72. 131  Ibid, para 73. 132  Ibid, para 77. 133  Ibid, para 78. 120 

Correspondent Reports—Duffy 159 Committee on the Elimination of All Forms of Discrimination Against Women: Concluding Observations on the Sixth and Seventh Periodic Reports of Ireland In February 2017, the Committee on the Elimination of All Forms of Discrimination Against Women considered Ireland’s combined sixth and seventh periodic reports. The Committee’s Concluding Observations were published on 9 March 2017.134 The Committee highlighted positive actions taken by Ireland within the reporting period, including the adoption of the Paternity Leave and Benefit Act 2016; the Gender Recognition Act 2015; the Children and Family Relationships Act 2015; the Criminal Justice (Female Genital Mutilation) Act 2012; the second National Action Plan on Women, Peace and Security (2015–2018); and the National Sexual Health Strategy (2015–2020).135 The Committee also welcomed Ireland’s ratification or accession to the Optional Protocol to the Convention on the Rights of the Child, in 2014, the Domestic Workers Convention 2011 (No 189) of the International Labour Organization, in 2014; and the United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, in 2010.136 The Committee also addressed areas of concern in women’s rights in Ireland. First, it noted that Ireland maintains reservations under Articles 11 (1), 13 (a) and 16.1 (d) and (f) of the Convention on the Elimination of Discrimination Against Women, despite having previously received recommendations from the Committee on the issue.137 It also cited issues of concern within Ireland’s domestic legal system, recommending that Ireland amend Article 41.2 of the Constitution to remove the stereotypical language regarding women in the home; supplement Article 40.1 with legislation focused on substantive, as opposed to merely procedural, equality; and amend Article 40.3.3 to remove the Constitutional barrier to legislation expanding abortion access.138 With regard to historical abuses of women, the Committee regretted the failures on the part of the State in investigating and prosecuting those who oversaw the Magdalene institutions, Mother and Baby Homes, and industrial schools, as well as those doctors who performed non-consensual symphysiotomy procedures, and in ensuring that survivors of historical abuses obtain effective redress.139 The Committee welcomed the adoption of the Irish Human Rights and ­Equality Commission Act 2014,140 but cited concerns over gender mainstreaming in ­public policy, including the National Women’s Strategy.141 The Committee recommended

134  UN Committee on the Elimination of Discrimination Against Women (UN CEDAW), ‘Concluding Observations on the Combined Sixth and Seventh Periodic Reports of Ireland’ (9th March 2017) CEDAW/C/IRL/CO/6-7. 135  Ibid, para 4. 136 Ibid. 137  Ibid, para 8. 138  Ibid, para 11. 139  Ibid, para 14. 140  Ibid, para 16. 141  Ibid, para 18.

160  The Irish Yearbook of International Law 2016–17 increasing funding to non-governmental organisations working on women’s rights142 and implementing ‘temporary special measures, including statutory quotas’ into areas of public life wherein women are underrepresented.143 The Committee also recommended that the State adopt a comprehensive strategy on discriminatory stereotypes regarding gender roles in society, and develop and implement a comprehensive healthcare protocol for intersex children.144 The Committee also made recommendations on gender-based violence against women, trafficking and exploitation. It noted that Ireland was working towards ratification of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention), and urged the State to expedite the process.145 It also recommended that Ireland strengthen protections for victims of gender-based violence, including implementing training for police and prosecutors, criminalise and introduce a specific legal definition of domestic violence,146 and provide funding for civil legal aid for victims of domestic violence.147 With regard to trafficking, the Committee welcomed the adoption of the Criminal Law (Human Trafficking) Act in 2008,148 but warned the State to effectively implement laws to investigate trafficking and prosecute offenders.149 It also requested that the State report on the impact of the Criminal Law (Sexual Offences) Bill 2015, which criminalises the purchase of sexual services.150 The Committee also recommended that Ireland continue to take measures to ensure women’s participation in public life151 and to regularly review the National Action Plan on Women, Peace and Security (2015–2018).152 It emphasised the importance of access to education for Traveller, migrant and Roma women and girls,153 as well as the importance of compulsory and standardised sexual and reproductive health education in schools.154 While welcoming the adoption of the Paternity Leave and Benefit Act 2016 and the European Union (Parental Leave) Regulations 2013, it cited concern at the persistent gender wage gap in the State and the high cost of childcare.155 The Committee cited several concerns regarding abortion in Ireland.156 It recommended that Ireland revise its legislation to allow for abortion in cases of ‘rape, incest, risk to the physical or mental health or life of the pregnant woman, and severe impairment of the foetus, and decriminalize abortion in all other cases’. It also

142 

Ibid, para 21. Ibid, para 23. 144  Ibid, para 25. 145  Ibid, para 26. 146  Ibid, para 27. 147  Ibid, para 29. 148  Ibid, para 30. 149  Ibid, para 31. 150  Ibid, para 33. 151  Ibid, para 35. 152  Ibid, para 37. 153  Ibid, para 38. 154  Ibid, para 39. 155  Ibid, para 40. 156  Ibid, para 42. 143 

Correspondent Reports—Duffy 161 recommended repeal of the Regulation of Information (Services Outside the State For Termination of Pregnancies) Act of 1995 to allow for ‘free access to sexual and reproductive health information and education’ and remove the threat of prosecution for healthcare providers.157 Finally, the Committee made recommendations on the welfare of particular marginalised groups of women in the State, including disadvantaged women, ­Traveller women, women in detention and rural women,158 and recommended that the State consider the financial impact of divorce on women.159 The Committee also recommended that Ireland ratify the international Conventions and Optional Protocols to which it has not already acceded or ratified.160 Committee Against Torture: Concluding Observations on the Second Periodic Report of Ireland In July 2017, the UN Committee Against Torture reviewed Ireland’s second periodic report under the Convention Against Torture. Its Concluding Observations were published in August 2017.161 The Committee cited several positive developments in the State within the reporting period. Notable among these were the State Party’s accession to and ratification of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, in September 2014;162 the adoption of the Irish Human Rights and Equality Commission Act 2014; the Children (Amendment) Act 2015; the Residential Institutions Statutory Fund Act 2012; the Criminal Justice (Female Genital Mutilation) Act 2012; the Child and Family Act 2013; the International Protection Act 2015; and the Assisted DecisionMaking (Capacity) Act, in 2015. It also welcomed legislative reforms to criminal justice, policy reforms related to places of detention, the continuing investigations and reports into historical abuses and domestic violence-related policy initiatives.163 It noted that several of its recommendations from the previous reporting cycle had been addressed within these developments.164 With regard to ensuring safeguards against abuse, the Committee recommended that the State ‘immediately ratify the Optional Protocol’ in order to establish a national preventative mechanism with power to investigate all places of detention, as well as ensuring monitoring bodies also have unimpeded access to such places.165 The State was also recommended to provide safeguards for persons in police detention, including ensuring ‘the right of prompt access to a lawyer; the rigorous keeping

157 

Ibid, para 43. Ibid, para 46–53. 159  Ibid, para 57. 160  Ibid, para 61. 161 UN Committee Against Torture (UN CAT), ‘Concluding Observations on the Second Periodic Report of Ireland’ (31st March 2017) CAT/C/IRL/CO/2. 162  Ibid, para 3. 163  Ibid, para 4. 164  Ibid, para 6. 165  Ibid, para 8. 158 

162  The Irish Yearbook of International Law 2016–17 of detention records, including in a centralized register; and systematic closed-circuit monitoring of interview rooms’.166 The Committee also made recommendations on the treatment of asylum seekers and migrants. It recommended that asylum seekers should be detained only as a matter of last resort; that screening and specific care and rehabilitation should be implemented for victims of torture; and that legal advice and access to information are ensured for persons denied ‘leave to land’.167 The Committee also recommended that public and medical officials be trained on gender-based violence and the care of victims of torture (based on Article 10 of the Istanbul Protocol).168 The Committee noted significant concerns regarding the Irish prison system and the living conditions of persons in detention. In particular, it cited overcrowding, in-cell sanitation, healthcare, solitary confinement, lack of exercise and restraint during medical procedures, as issues of concern.169 It made recommendations to rectify these concerns, citing international standards such as the Mandela rules, the Bangkok rules, and the Istanbul rules, as well as targeted domestic prison ­policy improvements.170 The Committee also made recommendations on the ­reduction of inter-prisoner ­ violence171 and, while noting positively the establishment of the Garda Ombudsman Commission, recommended that its independence and ­efficacy be strengthened and that victims of ill-treatment be entitled to remedies and ­reparation.172 Equally, it recommended the establishment of an independent ­authority to consider complaints from persons in detention.173 In addition, the Committee addressed historical abuses in institutions of detention, including industrial and reformatory schools, Magdalene laundries, Mother and Baby Homes and non-consensual inflictions of symphysiotomy. It urged the State to continue investigations into these abuses, to punish perpetrators, and to ­provide adequate redress and rehabilitation to victims.174 With regard to the ‘significant percentage’175 of Irish women who report having been victims of sexual and/ or gender-based violence, the Committee recommended that the State amend the Domestic Violence Bill to include ‘a specific criminal offence of domestic violence that encompasses physical and psychological abuse committed within a relationship’. It also recommended that the State ensure that all reports of violence against women are investigated and the perpetrators prosecuted, with funding being provided to ensure access to legal aid for victims who require assistance.176 The Committee also cited the ‘severe physical and mental anguish and distress’ inflicted on women and girls by Ireland’s policy on abortion, although it recognised the establishment of the

166 

Ibid, para 10. Ibid, para 12. 168  Ibid, para 13–14. 169  Ibid, para 15. 170  Ibid, para 16. 171  Ibid, para 18. 172  Ibid, para 20. 173  Ibid, para 22. 174  Ibid, para 23–30. 175  Ibid, para 31. 176  Ibid, para 32. 167 

Correspondent Reports—Duffy 163 Citizens’ Assembly and noted the expected referendum on the Eighth A ­ mendment.177 Finally, it recommended that the State proactively investigate and prosecute breaches of the law against removing a girl from the State for the purposes of female genital mutilation.178 Lastly, the Committee noted the situation of older persons and persons living in residential care179 and urged the State to commence the substantive provisions of the Assisted Decision-Making (Capacity) Act 2015, and to investigate and prosecute allegations of ill-treatment, in order to better ensure their care.180 DEVELOPMENTS REGARDING ARTICLE 40.3.3 OF THE CONSTITUTION (‘THE EIGHTH AMENDMENT’)

Following criticism from international human rights bodies and in response to ­growing political pressure at home regarding Ireland’s restrictive abortion laws, in July 2016 the Oireachtas adopted a motion to establish a Citizens’ Assembly to examine and report to the Oireachtas on matters including the Eighth Amendment to the ­ Constitution.181 The Assembly was to consist of 100 members of the public (randomly selected and ‘broadly representative’) and would be led by a ­ Government-appointed Chair. The Assembly held its inaugural meeting on 15 ­October 2016 under the stewardship of Ms Justice Mary Laffoy. In detailing the Government’s response to the decision in Mellet v Ireland,182 discussed above, Minister for Health, Simon Harris, informed the UN Human Rights Committee of the establishment and the outlined work of the Assembly.183 Following five meetings held between November 2016 and April 2017, in which the Assembly heard from medical and legal experts as well as pro-choice and antiabortion lobby groups, the Assembly held ballots on its intended recommendations to Government. The Assembly voted overwhelmingly not to retain Article 40.3.3 in full,184 and to replace it with a Constitutional provision explicitly empowering the Oireachtas to legislate on abortion.185 The Assembly went on to make further recommendations as to the contents of potential legislation on abortion. It recommended that abortion be allowed without gestational limits in cases of real and substantial risk to the life of the pregnant person,186 in cases of serious risk to the

177 

Ibid, para 31. Ibid, para 34. Ibid, para 35. 180  Ibid, para 36. 181  Motion submitted by Minister for State, Damien English, TD, 13th July 2016. 182  Mellet v Ireland (n 78). 183 Statement from Minister for Health, Simon Harris, TD, regarding the United Nations Human Rights Committee in the case of Ms Amanda Mellet, 30th November 2016. 184  First Report and Recommendations of the Citizens’ Assembly: The Eighth Amendment to the Constitution, 29 June 2017, para 31. 185  Ibid, para 69. 186  Ibid, para 82(1) and (2). 178  179 

164  The Irish Yearbook of International Law 2016–17 health of the pregnant person,187 or in cases of fatal foetal anomaly diagnosis.188 It also recommended that abortion be available without restriction as to grounds until 12 weeks’ gestation,189 as well as until 22 weeks’ gestation in cases of risk to the health of the pregnant person,190 in pregnancy as a result of rape,191 following a non-fatal foetal anomaly diagnosis,192 or on socioeconomic grounds.193 It also made ancillary recommendations on sexual and reproductive health.194 The Report of the Citizens’ Assembly was presented to Government on 29 June 2017, and a Joint Oireachtas Committee was established to consider the recommendations therein. The Committee held its first meeting on 20 September 2017, with a deadline of three months from that day to present its recommendations to Government. The Committee held 13 meetings, hearing from a variety of legal, medical and public policy experts. Its Report, published on 20 December 2017, made recommendations which in the main aligned with those of the Citizens’ Assembly. It recommended that the referendum question to be put to the public ballot be ‘repeal simpliciter’: to delete Article 40.3.3 from the Constitution without replacement.195 With regard to legislative reform, the Committee recommended: That termination be available where the life or health of the pregnant person is at risk, ­without distinction between physical and mental health, and that gestational limits if specified should be provided for in legislation and guided by the best available medical evidence;196 That termination following a fatal foetal anomaly diagnosis be available without gestational limit;197 That termination should be available without restriction as to reason until twelve weeks’ gestation, where provided for by law and delivered by a general practitioner-led service.198

The Committee diverged from the Citizens’ Assembly with regard to diagnosis of non-fatal foetal anomaly, which it did not consider to be a suitable ground on which to allow termination,199 and in holding that socioeconomic grounds and pregnancy as a result of rape could both be best addressed by enacting unrestricted access to abortion care until 12weeks’ gestation.200 At the time of writing, in January 2018, the recommendations of the Committee are under debate in the Oireachtas, with a provisional timetable for a referendum date in May or June 2018.

187 

Ibid, para 82(3), (4) and (5). Ibid, para 82(10). 189  Ibid, para 82(13). 190  Ibid, para 82(8). 191  Ibid, para 82(9). 192  Ibid, para 82(11). 193  Ibid, para 82(12). 194  Ibid, para 87. 195  Report of the Joint Oireachtas Committee, para 1.15. 196  Ibid, para 2.18. 197  Ibid, para 2.32. 198  Ibid, para 2.40. 199  Ibid, para 2.35. 200  Ibid, para 2.40. 188 

Human Rights in Northern Ireland 2016 and 2017 DR ESTHER McGUINNESS*

R

EADERS OF THE correspondent reports in this section of the Yearbook, will be aware that political bickering in the Northern Ireland Assembly and ­Executive has overshadowed political progress in the region since the first Assembly was elected under the terms of the Northern Ireland (Elections) Act 1998.1 Just nine days into 2017, the late Deputy First Minister, Martin ­McGuinness, resigned from that post citing a variety of political complaints, including the refusal by the First Minister, Arlene Foster, to temporarily stand down amid allegations of her improper involvement in a renewable heating initiative (RHI). McGuinness noted that this alleged involvement created a public mood which is rightly outraged at the squandering of public money and the allegations of misconduct and corruption,2 and for which he argued the First Minister should stand aside in order to ensure confidence in the necessary investigation and in the wider public interest.3 Inevitably, given the joint nature of their appointment, the Deputy First Minister’s resignation had the effect of removing Mrs Foster from the office of First Minister of Northern Ireland, which led to the immediate collapse of the Assembly.4 Despite the elections which followed in June 2017, at the end of 2017 Northern Ireland was still without a functioning government.5 The collapse of the Assembly, coupled with the extraordinary results from the United Kingdom’s (UK) ‘Brexit’

* 

Ulster University School of Law. The Northern Ireland Assembly was established as a result of the Belfast Agreement of 10 April 1998. to view at www.documentcloud.org/documents/3258303-Letter-of-Resignation-MartinMcguinness.html. 3 Ibid. 4 See The Belfast Agreement: An Agreement Reached at the Multi-Party Talks on Northern Ireland (Cm 3883, 1998) 37 ILM 751 (1998) 9–10. 5  This point is all the more acute when one considers that in the UK General Elections in June 2017, the Conservative Party Government, having been denied an overall majority, made ‘a confidence and supply’ agreement with Northern Ireland’s main Unionist party, the Democratic Unionist Party (DUP). In this agreement, the DUP agrees to support the Government on all motions of confidence; and on the Queen’s Speech; the Budget; finance bills; money bills, supply and appropriation legislation and Estimates. In line with the parties’ shared priorities for negotiating a successful exit from the EU and protecting the country in the light of recent terrorist attacks, the DUP also agrees to support the Government on legislation pertaining to the UK’s exit from the EU; and legislation pertaining to national security. Support on other matters will be agreed on a case by case basis. The DUP agrees to support the Government in 1 

2 Available

166  The Irish Yearbook of International Law 2016–17 referendum in June 2016, and set against a backdrop of challenges to a range of human rights issues which require a functioning government to action, has meant that in the two years covered in this report for the Yearbook there has been a renewed focus on the constitutionality of the Good Friday Agreement and on securing rights for all. BREXIT AND HUMAN RIGHTS IN NORTHERN IRELAND

On 23 June 2016, a referendum was held in the UK on whether to remain a member of the EU or to leave. The result of that ‘advisory’ referendum6 was that 51.89 per cent of the valid votes which were cast in the UK were in favour of leaving the EU, while 48.11 per cent were in favour of remaining. In Northern Ireland, 55.8 per cent of the valid votes were in favour of remaining and 44.2 per cent were in favour of leaving.7 On 24 June, the then Prime Minister, David Cameron,8 accepted the result of the referendum and indicated that it would be for a new Prime Minister to decide when to trigger Article 50 of the Treaty on European Union (TEU).9 By August 2016, two applications for judicial review of the Government’s intention to use the Royal Prerogative to invoke Article 50 were lodged in the High Court in Belfast. The first application was made by Raymond McCord,10 the second application, Agnew and Others, was made by multiple applicants.11 The five principal

votes in the UK Parliament, in line with the agreement. See, Conservative and DUP Agreement and UK Government financial support for Northern Ireland, available at www.gov.uk/government/publications/ conservative-and-dup-agreement-and-uk-government-financial-support-for-northern-ireland. 6  Briefing Paper 07212, sent to MPs on 3 June 2015 before the debate in the House on the 2015 ­ eferendum Bill made it perfectly clear that the referendum was ‘advisory’ and ‘consultative’ only and R that neither the Government nor Parliament was bound by it. See, European Union Referendum Bill 2015–16, s 5, p 25, http://researchbriefings.files.parliament.uk/documents/CBP-7212/CBP-7212.pdf. 7  As O’Connell has commented, ‘the statistics show a divided country and closer inspection reveals even more serious divisions. The United Kingdom is a union of different entities; while England (53.4%) and Wales (52.5%) voted to leave, Scotland (62%) and Northern Ireland (55.8%) to remain’. See further, www.justsecurity.org/36785/uk-supreme-courts-brexit-judgment/. 8 David Cameron resigned on the morning after the EU Referendum, on 24 June 2016 and was replaced as Leader of the Conservative Party and Prime Minister of the UK, by Mrs Theresa May, after a leadership contest. 9  Article 50 provides that any Member State may decide to withdraw from the EU in accordance with its own constitutional requirements. A Member State which decides to withdraw shall notify the ­European Council of its intention. The Union shall then negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. The agreement shall be negotiated and shall be concluded on behalf of the Union by the Council, acting on a qualified majority, after obtaining the consent of the European Parliament. The Treaties shall cease to apply to the State in question from the entry into force of the withdrawal agreement or, failing that, two years after the notification unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 10  McCord’s (Raymond) Application [2016] NIQB 85. 11  In the matter of an application for leave to apply for judicial review by Agnew and others [2016] NIQB 85. The applicants are: Steven Agnew MLA, Colum Eastwood MLA, David Ford MLA, John O’Dowd MLA, Dessie Donnelly, Dawn Purvis, Monica Wilson, the Committee on the Administration of Justice and the Human Rights Consortium.

Correspondent Reports—McGuinness 167 grounds advanced by the applicants in both cases when it returned for hearing to the High Court in Belfast, on 6 October, included:12 1. That prerogative power could not be exercised to trigger Article 50 because it had been displaced by the Northern Ireland (NI) Act 1998, surrounding ­Agreements and other constitutional provisions. 2. The Court should consider that if an Act of Parliament was required, whether there was a requirement for a Legislative Consent Motion to be granted by the Northern Ireland Assembly before such legislation could be passed authorising notification in accordance with Article 50. 3. There were various public law restraints, including the requirement to take all relevant considerations into account and not to give excessive weight to the ­referendum result. 4. There was a failure by the Northern Ireland Office to comply with the terms of Section 75 of the NI Act and its own equality scheme, prior to notice being given under Article 50. 5. Mr McCord also contended that Article 50 could not be triggered without the consent of the people of Northern Ireland and that the Good Friday Agreement created a substantive legitimate expectation that there would be no change in the constitutional status of NI without the people’s consent. In light of the overlap with proceedings in England and Wales, brought by Mrs Gina Millar and Mr Deir Dos Santos,13 the Court stayed consideration of the means by which Article 50 was to be triggered and subsequently, on 28 October 2016, Mr Justice Maguire dismissed the two judicial review challenges, indicating that in respect of Issues 1, 2, 3 and 4 it was prepared to grant leave but not in respect of Issue 5. Consequently, in the Miller Case,14 which was heard in the High Court in London on 3 November 2016, the Court held that the Secretary of State did not have power under the Royal Prerogative to give notice under Article 50 and thereby commence the process under which the UK would leave the European Union. The Court further held that when interpreting the European Communities Act (ECA) 1972, Parliament intended EU rights to have effect in domestic law and that this effect should not be capable of being undone or overridden by action taken by the Crown in the exercise of its prerogative powers.

12  On 2 October 2016, the Prime Minister in her key note address at the Conservative Party Conference, announced that there would be ‘a Great Repeal Bill’ to repeal the European Communities Act (ECA) 1972, and clearly undeterred by the imminent legal challenges, declared that: “It is not up to the House of Commons to invoke Article 50, and it is not up to the House of Lords. It is up to the Government to trigger Article 50 and the Government alone.” See speech of Mrs Theresa May, Prime Minister, available at http://press.conservatives.com/post/151239411635/prime-minister-britain-after-brexit-a-vision-of. 13  R (Miller) v Secretary of State for Exiting the European Union (High Court of Justice, Queen’s Bench Division, Divisional Court, 3 November 2016), commonly referred to as the ‘Miller Case’. Available at www.judiciary.gov.uk/wp-content/uploads/2016/11/r-miller-v-secretary-of-state-for-exiting-eu-amended20161122.pdf. 14 Ibid.

168  The Irish Yearbook of International Law 2016–17 Immediately after this decision, the Government announced that it would appeal the High Court’s decision and was granted permission to ‘leapfrog’ the Court of Appeal and go straight to the Supreme Court to determine who could trigger ­Article 50. In the Northern Ireland cases, the issue to be adjudicated was whether Parliament was obliged to consult with, and obtain consent of, the devolved assemblies, on specific legislation that would be required to leave the EU. The Supreme Court delivered its decision in the Miller Case15 on 24 January 2017.16 In an 8–3 majority judgment, the Court held that Article 50 cannot be triggered by the prerogative, ie that an Act of Parliament would be required.17 In considering whether the Northern Ireland Act 1998 precluded the use of the prerogative to trigger Article 50 without an Act of Parliament, the Court concluded that ‘it is not necessary to reach a definitive view’.18 In considering whether there was a legal obligation to consult the devolved assemblies, the majority concluded that the Sewel Convention19 is an important part of the political system but remains a convention, and therefore cannot be enforced in the courts as a legal requirement, ergo there was no legal obligation to seek consent from the devolved assemblies.20 Whilst the decision in the Miller Case would appear to have settled the legal issues, the UK’s exit from the EU will impact on the extent and delivery of a wide array of rights in Northern Ireland, unless effective steps are taken to ameliorate its effects.21 These EU-underpinned rights include those specifically mentioned in the Good ­Friday Agreement (GFA) (such as equality rights), fundamental rights deriving directly from EU membership (including those in the EU Charter of Fundamental Rights), labour and employment rights deriving from EU law, and the right to an effective judicial remedy.22

15  R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) REFERENCE by the Attorney General for Northern Ireland from the High Court of Justice in Northern Ireland: In the matter of an application for leave to apply for judicial review by Agnew and others REFERENCE of a devolution issue by the Court of Appeal of Northern Ireland: In the matter of an application by Raymond McCord for Judicial Review [2017] UKSC 5. On appeal from [2016] EWHC 2768 (Admin); [2016] NIQB 85. 16  The case was heard between 5–8 December 2016. 17  R (on the application of Miller and another) (n 15) [60]–[125]. 18  R (on the application of Miller and another) (n 15) 132. 19 The Sewel Convention provides that the UK Parliament may not legislate for devolved matters ­without the consent of the devolved legislature affected. Motions giving consent under the Convention are now known as Legislative Consent Motions. 20  R (on the application of Miller and another) (n 15) [126]–[135]. 21  See C McCrudden, et al, ‘Why Northern Ireland’s Institutions Need Stability’ (Queen’s University Belfast, 2017), available at https://pure.qub.ac.uk/portal/files/37675348/why.pdf. 22  A huge amount of literature on Brexit, and in particular on the impact of Brexit on Northern Ireland, the Republic of Ireland and human rights, has now arisen. Among others, see for example: C Barnard, ‘Law and Brexit’ (2017) 33 Oxford Review of Economic Policy 1, S4–S11; C McCrudden, et al, ‘Northern Ireland and Brexit: The European Economic Area Option’ (Queen’s University Belfast, 2017), available at https://pure.qub.ac.uk/portal/files/128224891/EPC_Northern_Ireland_and_Brexit_the_European_ Economic_Area_Option_Published_20170407.pdf; A Smith, M McWilliams and PNR Yarnell, ‘Does Every Cloud Have a Silver Lining?: Brexit, Repeal of the Human Rights Act and the Northern Ireland Bill of Rights’ (2016), papers.ssrn.com, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2950586; J Tonge, ‘The Impact and Consequences of Brexit for Northern Ireland’ (2017), available at www.europarl.europa.eu/RegData/etudes/BRIE/2017/583116/IPOL_BRI(2017)583116_EN.pdf.

Correspondent Reports—McGuinness 169 Also open to negotiation are reciprocal rights for UK and Irish nationals, which arise out of common travel arrangements (CTA), and which include the right to enter and reside in the UK and Ireland, the right to work, the right to study, access to social welfare entitlements and benefits and access to health services, and the right to vote in local and parliamentary elections.23 The potential impact on human rights in Northern Ireland of leaving the customs union and introducing new ­immigration controls, as is currently envisaged by the UK Government, are also significant. ­Leaving the customs union will require customs controls of some kind, which will require some policing. Taken together, it would be reasonable to suppose that there will be a need for enhanced police powers, and increasing police activity on and around the border between Ireland and Northern Ireland. To the extent that this involves policing by bodies other than the Police Service of Northern Ireland, such as the UK Border Force, such bodies may be outside the police accountability mechanisms established in Northern Ireland since 2001. A return to much more contentious policing would potentially have significant negative effect in Northern Ireland on public confidence in the rule of law. All of these impacts could have a destabilising effect on the constitutional, political and legal settlement that, in the main, ended the violent political conflict which devastated the people of Northern Ireland and gravely affected those in the rest of the UK and Ireland.24 Brexit has the potential, therefore, to reshape devolved government, by both increasing the powers of devolved institutions in some respects, and decreasing their powers in others, in both cases adding to the political difficulties of forming and maintaining devolved government in Northern Ireland.25 When it was concluded, the GFA clearly presupposed that both Ireland and the UK would both be members of the European Union. This, in turn, affected the framework of the Northern Ireland Act 1998 and, indirectly, the wider UK devolution settlement. Whilst the EU was never conceived as the sole guarantor of rights in Northern ­Ireland, rights deriving from the EU are, nevertheless, an important dimension of the post-GFA architecture.26 A significant layer of rights protection in Northern Ireland now derives from the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Proposals to replace the Human Rights Act 1998 with a

23 

McCrudden, et al (n 21). ‘Protecting the Agreement from Brexit—Practical Suggestions’ Committee on the A ­ dministration of Justice (CAJ), Just News, Aug/Sept 2017, 10–11. Available at https://s3-eu-west-1.amazonaws.com/caj. org.uk/2017/09/25130424/Just-News-Aug-Sept-2017.pdf. 25 In her letter to the European Council notifying the UK’s intention to withdraw from the EU, the Prime Minister, Teresa May, suggested as a principle for the Art 50 negotiations that the UK and the EU ‘must pay attention to the UK’s unique relationship with the Republic of Ireland and the importance of the peace process in Northern Ireland’. Theresa May, Letter to His Excellency Mr Donald Tusk, London, 29 March 2017, www.gov.uk/government/publications/prime-ministersletter-to-­donald-tusk-triggering-article-50. This has also been recognised by the Secretary of State for Northern Ireland, James Brokenshire, when he recently acknowleged that ‘it (Brexit) presents one of the most complex challenges in our preparation for Exit’. J Brokenshire, Institute of International and European Affairs (IIEA) Speech, Dublin, 1 March 2017, available at www.gov.uk/government/speeches/ institute-of-international-and-european-affairs-iiea-speech. 26  McCrudden, et al (n 21). 24  See,

170  The Irish Yearbook of International Law 2016–17 UK Bill of Rights, and the possible withdrawal of the UK from the ECHR, although temporarily stayed, have not gone away.27 The EU-27’s paper on ‘Guiding P ­ rinciples for the Dialogue on Ireland/Northern Ireland’, published in September 2017, marked a considerable deepening of the EU-27’s commitments to protect rights in Northern Ireland.28 As a result, the aim of the negotiations from the perspective of the EU-27 is now that the UK ‘should ensure that no diminution of rights [in Northern Ireland] is caused by the United Kingdom’s departure from the European Union, including in the area of protection against forms of discrimination currently enshrined in Union law’.29 As the European Union (Withdrawal) Bill 2017–1930 progresses through the House of Commons, the Equality Commission for Northern Ireland (ECNI) has recommended that the Bill includes provisions that will ensure the non-regression of equality rights and the implementation of future equality enhancing protections in Northern Ireland.31 The exact status of Northern Ireland and rights enjoyed there post-Brexit continues to be a central part of the Brexit negotiations at the end of the 2017 reporting period for this report.

27 

McCrudden, et al (n 21). et al (n 21), see also the EU-27’s paper on ‘Guiding Principles for the Dialogue on Ireland/Northern Ireland’ (‘EU-27’s Guiding Principles’) (6 September 2017), available at https:// ec.europa.eu/commission/sites/beta-political/files/guiding-principles-dialogue-ei-ni_en.pdf. See also The House of Lords Report on Brexit and Devolution, available at https://publications.parliament.uk/pa/ ld201719/ldselect/ldeucom/9/9.pdf. Former Secretary of State for Northern Ireland, Lord Peter Hain, has commented that precedent for special arrangements with other countries were not without precedent in the EU in states such as Andorra. Available at www.theguardian.com/uk-news/2017/sep/05/ northern-ireland-post-brexit-customs-deal-lord-peter-hain. 29  EU-27’s Guiding Principles, ibid, para 4, p 4. 30  The European Union (Withdrawal) Bill 2017–19, otherwise known as the Great Repeal Bill, is a Bill to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the UK from the EU. The Bill is available at https://publications.parliament.uk/pa/bills/ cbill/2017-2019/0005/cbill_2017-20190005_en_1.htm. 31  The ECNI have made the following recommendations: 28  McCrudden,

Withdrawal Agreement Ensures that the Withdrawal Agreement provides, as regards equality rights in Northern Ireland, for non-regression of rights, equivalent standards of protection with the Republic of Ireland, and that changes to EU law and interpretations by the Court of Justice of the EU (CJEU) continue to have effect in Northern Ireland. International Trade or Investment Agreements That the Bill will prohibit the UK Government from agreeing or ratifying an international trade or investment agreement that would require or permit the reduction of any protections for human rights and fundamental freedoms in Northern Ireland, including those relating to non-discrimination and equality, ensured under UK law. The Good Friday/Belfast Agreement We recommend the UK Government clarifies the legal status of the Good Friday/Belfast Agreement, and incorporates safeguards so as to ensure compliance with the Good Friday/Belfast Agreement, including in the Withdrawal Agreement and any future trade and investment agreements. The ECNI document is available at www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/EUWithdrawalBill-RecommendationsOct17.pdf.

Correspondent Reports—McGuinness 171 The Assembly may have collapsed in the wake of the RHI scandal,32 but Martin McGuinness’ indication that there would be no return to the status quo unless the full provisions of the Agreements were implemented33 pointed to a broader problem of failure to implement and apply power-sharing and human rights safeguards detailed in those Agreements. From a human rights compliance perspective, in the 14 months between the signing of the Stormont House Agreement and Implementation Plan in November 201634 and McGuinness’s resignation in ­January 2017, no mechanisms were established to try to ensure the right of women to full and equal political participation.35 The Executive’s allocation of the Social Investment Fund (SIF) also came under renewed scrutiny.36 The Fund, which was jointly created by Sinn Féin and the Democratic Unionist Party (DUP) in 2011 as a major project to combat poverty in deprived communities, raised claims of bias due to lack of transparency when the Minister for Social Development was accused of sidestepping the equality duty to screen in relation to housing regeneration ­programmes,37 and the Minister for Communities came under fire in relation to the dis-imbursement of £500,000 for its Community Halls Minor Works Programme, which had a financially enriching effect on a high proportion of Orange halls and with no apparent documentation to promote similar funding for lesbian, gay, bisexual and trans (LGBT) initiatives.38 Other disparities emerged in December 2016, when the Communities Minister who oversaw the Community Halls Minor Works ­Programme, made the decision to ­discontinue a £50,000 bursary scheme to allow persons, including children from low-income families, to attend summer courses in the ­Donegal Gaeltacht.39 The need to reassert the value of equality and human rights principles would appear to be as critical now, as it was at any time in Northern Ireland’s history.

32  The establishment of the independent public inquiry into the Non-Domestic Renewable Heat Incentive Scheme (the RHI Inquiry) was announced in a statement by the Finance Minister, on 24 January 2017. Details about the Inquiry are available at www.rhiinquiry.org/. 33 As well as the GFA, see also the St Andrews Agreement, available at: www.legislation.gov.uk/ ukpga/2006/53/contents and the Stormont House Agreement, with additional research papers available at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CDP-2017-0008. 34 Ibid. 35 See, www.theguardian.com/commentisfree/2017/aug/22/women-northern-ireland-abortion-reproductive-rights-westminster-change-law. 36 See, www.thedetail.tv/articles/stormont-s-social-investment-fund-should-have-set-off-alarm-bellslong-before-now. 37 See, www.thedetail.tv/articles/documents-reveal-dup-lobbying-over-north-belfast-housing-and-allegations-of-gerrymandering. 38  See www.cacd.org.uk/news--events/department-for-communities-community-halls-programme. 39  See, www.irishnews.com/news/2017/01/05/news/legal-action-to-be-launched-over-scrapping-ofirish-language-bursary-scheme-865777/. Available at www.irishnews.com/news/2017/01/05/news/legalaction-to-be-launched-over-scrapping-of-irish-language-bursary-scheme-865777/. See also, ‘Human Rights Safeguards must be Implemented to Re-establish Stormont’, CAJ, Just News, Feb/March 2017, 1–5. Available at https://s3-eu-west-1.amazonaws.com/caj.org.uk/2017/05/19152737/JN-FebruaryMarch-2017.pdf.

172  The Irish Yearbook of International Law 2016–17 DEALING WITH THE PAST

Having assumed the Presidency of the Northern Ireland Coroner’s Court in ­November 2015, the Lord Chief Justice, Sir Declan Morgan, appointed Lord ­Justice Weir to conduct a Case Management Review of the so-called ‘legacy’ inquests, in January 2016.40 This series of publicly heard Case Management Reviews, was conducted in back to back daily sessions, from Monday 18 January until Friday 29 January, during which the presiding Judge, Weir LJ, was unambiguous in where he considered the responsibility for the delays and failures to comply with disclosure requests lay.41 In an unprecedented move, the Lord Chief Justice, along with Weir LJ, personally met with the families of those affected by the delays in the inquest system, on Friday 12 February 2016, to present the conclusions of a report prepared by Lord Justice Weir, and the way forward to be proposed to the Department of Justice. He said that the failure to deal with legacy inquests has cast a long shadow over the entire justice system but that all inquests into controversial killings could be completed within five years if the Government were to provide enough resources.42 He went on to say,43 It is clear that the existing Coroners Service is not adequately resourced to carry the weight of these cases and so we will need to establish a new, dedicated Legacy Inquest Unit as a matter of urgency. My ambition is to start listing cases from September onwards but this will be predicated on the availability of resource.

On 9 March 2016,44 the Lord Chief Justice outlined his specific plans at a Conference convened by the Commission for Victims and Survivors at the Titanic Centre, in Belfast, wherein he stated: I am satisfied that the plan I have developed represents the best way forward for these cases and satisfies the criteria that need to be met in order to discharge the UK Government’s Article 2 obligations. In order to implement that plan, however, I will of course need to be provided with the necessary resources, and there will be cost implications for a number of other organisations which are required to support the work of the Coroner. I have set a timescale of five years for completion of the existing legacy cases which are before the coroner, from the point at which resources are provided.45

He concluded his remarks by setting a very specific time scale for a decision to be made with regards to his receipt of resources for the detailed business plan for a 40  See, http://data.niassembly.gov.uk/HansardXml/committee-18426.pdf. Available at http://data.niassembly.gov.uk/HansardXml/committee-18426.pdf. 41  See, https://relativesforjustice.com/coroner-lambasts-psni-approach-to-disclosure-of-information-onpensioners-killings/. 42  See, www.irishnews.com/news/northernirelandnews/2016/02/12/news/legacy-inquests-could-becompleted-in-five-years-says-lord-chief-justice-416917/. 43 Ibid. 44 A video clip of the Lord Chief Justice expressing his disappointment is available at www.bbc. co.uk/news/uk-northern-ireland-37277655 and in these related video links www.bbc.co.uk/news/ uk-northern-ireland-36208777. 45  The Lord Chief Justice’s speech is available at www.cvsni.org/media/1340/report-on-review-of-thevictims-and-survivors-strategy-2009-19-conference.pdf.

Correspondent Reports—McGuinness 173 dedicated Legacy Inquest Unit which accounts for the required extra investigators, lawyers and administrators, as well as the creation of an electronic system to manage the vast documentation. Commenting that: There remains time before the Assembly elections for the Executive to take a decision to put forward a bid to the Secretary of State for the draw-down of funding to allow legacy inquests to proceed. If this request elicited a positive response, we would aim to have a Legacy Inquest Unit established within a matter of months and for some legacy hearings to begin in September. If there is no response before the election, we will almost certainly not be able to achieve a September start date, which would be extremely disappointing. We might at best be able to get one or two cases on before Christmas, but we would be unable to achieve the step change that is required to deal with all of these cases in an Article 2 compliant way.46

On Tuesday 3 May 2016, it was claimed that First Minister Arlene Foster blocked the funding request from being included on the Executive’s discussion agenda. During a BBC election debate, she said she had wanted more time to discuss the ­proposal with the Lord Chief Justice.47 Meeting on 7 June 2016, the Council of Europe Committee of Ministers48 made clear its severe misgivings about the impasse. Analysis by human rights officials for the Committee noted that failure to establish the Historical Investigations Unit (HIU) and other legacy Institutions49 committed to under the 2014 Stormont House Agreement50 was ‘deeply concerning’, and noted that the ‘major obstacle’ had been a ‘national security veto’ over information that might be provided to victims’ families. Reporting after his visit to the UK and Northern Ireland in November 2016, the Lord Chief Justice, Pablo de Grieff, the United Nations Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, commented on the plan proposed by the Lord Chief Justice, saying that it51 … Include[d] applying a thematic approach, creating structured and systematic linkages between cases, sequencing cases, ensuring that the presiding coroner reviews all relevant

46 Ibid.

47 See, www.irishnews.com/news/northernirelandnews/2016/05/04/news/troubles-inquests-delayed-againafter-dup-blocks-funding-bid-508502/. 48  The Committee of Ministers draws its membership from the 47 Member States of the Council of Europe (an entirely separate entity from the EU) and oversees the implementation of judgments of the European Court of Human Rights. See also, 1259th meeting of the Ministers’ Deputies in June 2016 and CAJ Submission on State Impunity, at https://caj.org.uk/2016/04/01/3667/. 49 The Stormont House Agreement provided for the establishment of four new institutions to deal with the past in Northern Ireland, namely: the Historical Investigations Unit (HIU) ‘an independent body to take forward investigations into outstanding Troubles-related deaths’; an Independent Commission on Information Retrieval (ICIR) ‘to enable victims and survivors to seek and privately receive information about the deaths of their next of kin’; an Oral History Archive to provide a central place to share experiences and narratives related to the Troubles’; and an Implementation and Reconciliation Group ‘to oversee themes, archives, and information recovery’. 50  The Stormont House Agreement is available at http://researchbriefings.parliament.uk/ResearchBriefing/ Summary/CDP-2017-0008. 51  Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence on his Mission to the United Kingdom of Great Britain and Northern Ireland (17th November 2016). Available at A/HRC/34/62/Add.1 www.ohchr.org/EN/Issues/TruthJusticeReparation/ Pages/CountryVisits.aspx.

174  The Irish Yearbook of International Law 2016–17 material in unredacted form, and establishing a dedicated legacy inquest unit. This initiative, as a wisely designed strategy to maximize the truth-telling potential of inquests for individual cases, and illustrating the structural dimensions of violations, deserves strong support.52

The protracted litigation in the case of Pearse Jordan53 has set a bar for the scope of inquests and the parameters of a verdict. An inquest into the disputed circumstances of Jordan’s death in 1992 was finally held on 7 November 2016,54 and demonstrates the difficulties that gross and inordinate delays of nearly a quarter of a century, makes it almost impossible to reach any conclusion on the balance of probabilities as to what happened.55 Judge Horner, in that case, added: ‘The sooner such inquests are held the better for all parties. The rule of law and justice demand no less.’56 By December 2016, relatives of those killed in Ballymurphy in 1971 and Loughgall in 1987 mounted a legal challenge with regards to the ongoing failure of the Executive Office, the Northern Ireland Executive, the Department of Justice for Northern Ireland and the Secretary of State for Northern Ireland, to put in place adequate funding to prevent further delay to legacy inquests.57 A date for hearing has been set for 11 September 2018.58 Despite the sustained call from numerous groups for funding for ‘legacy’ inquests, and the statement of Judge Horner in the Pearse Jordan case, in February 2017 the presiding Judge with management responsibility for the Coroners Court, Mr Justice Colton, expressed his profound regret that an ongoing funding row had hampered progress in the ‘legacy’ inquests. Justice Adrian Colton said preparatory work he would like to undertake simply could not be actioned due to lack of resources.59 To date, despite details around ‘legacy’ inquests and dealing with the past, having been specifically agreed to as part of the Stormont House Agreement,60 none 52 Ibid.

53  To date there has been 24 judicial reviews, 14 appeals to the Court of Appeal, one hearing in the House of Lords, one hearing before the European Court of Human Rights and one inquest. 54 [2016] NICoroner 3, available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/In%20 the%20matter%20of%20an%20inquest%20into%20the%20death%20of%20Patrick%20Pearse%20 Jordan.pdf. 55 Ibid. 56  Ibid. In a subsequent hearing arising of that judgment, [2016] NICoroner 3, Judge Horner made the decision to report Officers M and Q to the Director of Public Prosecutions on the basis of their behaviour during the investigation into Jordan’s death, which he determined sought to conceal the role played by DP2 in the events of 25 November 1992 and that the attempted concealment could have seriously impacted on the hearing. Available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/In%20 the%20matter%20of%20an%20inquest%20into%20the%20death%20of%20Patrick%20Pearse%20 Jordan.pdf. 57  See comments made by Niall Murphy, solicitor for the families, in ‘Inquests and the Failure by the State to discharge its international legal obligations and comply with the Lord Chief Justice’s Concept Plan’, available at https://krw-law.ie/wp-content/uploads/2016/12/QUB-PhD-Class-Inquests-SHA-andfailure-to-comply-with-LCJ-Concept-Plan-6.12.16.pdf. 58 See, www.belfasttelegraph.co.uk/news/northern-ireland/families-emotional-as-inquest-date-set-inballymurphy-case-35709379.html. 59 See, www.belfasttelegraph.co.uk/news/northern-ireland/coroner-says-funding-dispute-is-obstructing-progress-on-troubleslinked-inquests-35476242.html. 60  The Stormont House Agreement (n 50). With regard to legacy inquests, the Stormont House Agreement states: ‘Legacy inquests will continue as a separate process to the HIU. Recent domestic and European judgments have demonstrated that the legacy inquest process is not providing access to a sufficiently

Correspondent Reports—McGuinness 175 of the four proposed institutions have been established. Indeed, by January 2017, despite repeated warnings by the Lord Chief Justice that delays to hearing ‘legacy’ inquests could result in a derogation from the State’s obligation under Article 2 of the Human Rights Act,61 only a few cases had progressed through the Coroner’s Court.62 These included the case of Manus Deery,63 a 15-year-old boy who was fatally injured by a British soldier in Derry in 1972,64 the Kingsmill massacre, in which 10 Protestant workmen were murdered,65 and the inquest of Daniel Carson,66 a young ­Catholic man who worked on the Shankill Road and who was murdered by the Ulster ­Volunteer Force (UVF). This delay in dealing with the past persists despite the most recent call from the Human Rights Council of the United Nations, for the British Government to deal with legacy issues of the Troubles.67 In June 2016, the Police Ombudsman for Northern Ireland issued a report into the 1994 Loughinisland massacre, which stated that security force collusion was a ‘significant feature’ in the massacre of civilians in a pub by the Loyalist UVF paramilitary group.68 This included the involvement of police informants ‘at the most

effective investigation within an acceptable timeframe. In light of this, the Executive will take appropriate steps to improve the way the legacy inquest function is conducted to comply with ECHR Article 2 requirements.’ 61  In making such remarks, the Lord Chief Justice would have been cognisant of the judgment of the European Court on Human Rights (ECtHR) in the cases of Hemsworth v the UK and McCaughey and Grew v the UK, Application no 43098/09 (ECtHR, 16 July 2013), where the Court ruled that the delays (in relation to inquests) cannot be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths. 62  Verdicts in both cases are unlikely to be published until 2018 at the earliest. 63  In the matter of an inquest into the death of Manus Deery [2017] NICoroner 1. The case was heard in 2016. 64  Mr Justice Colton’s verdict set out at ibid [195], found that:

(m) Neither Manus nor anyone close to him was acting in a manner that could reasonably have been perceived as posing a threat of death or injury to Private Glasgow or any other person. (n) There was no gunman in the vicinity of the archway or funnel in the Meenan Square area of the Bogside, Derry, but Manus and his friends were present in the archway and should have been visible to Private Glasgow at the relevant time. (o) Even if Private Glasgow had an honest belief that there was a gunman present, the force used was disproportionate to the threat perceived and therefore more than was absolutely necessary in the circumstances. (p) The rules of engagement for soldiers in force at the time of Manus Deery’s death, namely the yellow card, were not adhered to by Private Glasgow. (q) For these reasons Private Glasgow was not justified in opening fire. (r) The investigation into the death of Manus Deery was flawed and inadequate. 65 

See, www.itv.com/news/utv/2017-05-16/kingsmill-guns-linked-to-dozens-of-terrorist-attacks/. www.belfasttelegraph.co.uk/news/northern-ireland/main-suspect-in-daniel-carson-shootingnot-held-in-two-other-murder-probes-35412642.html. 67 The Human Rights Council of the United Nations Follow up Procedure: ‘Accountability for Conflict-Related Violations in Northern Ireland’ (CCPR/C/GBR/CO/7). Available at http://webarchive. nationalarchives.gov.uk/20160206043319/http://www.equalityhumanrights.com/sites/default/files/ uploads/documents/humanrights/UN/CCPRC%20GB%20concluding%20observations%20(1).pdf. 68 Submission from the CAJ to the United Nations Human Rights Committee in response to the Concluding Observations on the 7th Periodic Report of the UK under the International Covenant on Civil and Political Rights (ICCPR). Available at https://caj.org.uk/2017/06/30/s465-united-nations-humanrights-committee-response-concluding-observations-7th-periodic-report-uk-international-covenant-civilpolitical-rights-iccpr/. 66 See,

176  The Irish Yearbook of International Law 2016–17 senior levels within Loyalist paramilitary organisations’ in the importation of large amounts of weapons from apartheid South Africa in the mid to late 1980s which were then used, according to police figures, in at least 70 murders and attempted murders.69 Following the publication of the Report, the Ombudsman faced a legal challenge from two retired police officers on the basis that he acted ultra vires in that there was no legal basis for the Report.70 Judgment was reserved in the case which was heard on 21 December 201771 and subsequently, the Police Ombudsman published an amended report in March 2018.72 Mr Justice Maguire has ruled that persistent government underfunding of the Police Ombudsman’s office is impeding the timely completion of investigations of complaints against police officers. On 31 May 2017, Justice Maguire delivered a verdict in a legal challenge by the family of Patrick Murphy who was murdered in 1982. No one was ever convicted of the killing, believed to have been carried out by loyalist paramilitaries.73 The family lodged complaints with the Police Ombudsman about the handling of the murder investigation in 2004 and in 2009. However, in 2014 they were told that reduced staffing levels meant the Ombudsman’s investigation would not be complete until 2025. The judge held that the ­Department of Justice had acted unlawfully by failing to provide a sufficient level of funding to enable the Ombudsman to carry out its statutory obligation to investigate the family’s complaint within a reasonable time. According to Mr Justice Maguire, the source of the problem besetting the Police Ombudsman’s office lies with the failure of government.74 Two other legal challenges in relation to victims of Troubles-related killings arose in 2016 and 2017. The 2016 case was a challenge by Michael Gallagher75 whose son Aidan was killed in the Omagh bomb atrocity in August 1998. The central issue in the case was that there has been no adequate investigation into the issue of the preventability of the deaths so as to satisfy Article 2 of the ECHR. After considering closed evidence from the Secretary of State for Northern Ireland, Ms Teresa Villiers, the Court considered that a claim for public interest immunity on the grounds of national security had been made.76 Earlier that year, the case against the only suspect charged with the bombing collapsed due to the unreliability

69 Police Ombudsman, ‘The Murders at the Heights Bar in Loughinisland’ Updated March 2018. Available at https://policeombudsman.org/PONI/files/e3/e3583bf2-a7fc-49a3-9b59-3acf8f042e29.pdf. 70  IN THE MATTER OF AN APPLICATION BY THOMAS RONALD HAWTHORNE AND RAYMOND WHITE FOR JUDICIAL REVIEW, 21 December 2017. View case summary at www.judiciary-ni. gov.uk/sites/judiciary/files/decisions/Summary%20of%20judgment%20-%20In%20re%20Thomas%20 Hawthorne%20and%20Raymond%20White.pdf. 71 Ibid. 72  Police Ombudsman (n 69). 73  Bell’s (Patricia) Application [2017] NIQB 38. 74  See, McQuillan’s (Margaret) Application AND In the Matter of a Review of The Historical Inquiries Team in the Circumstances of the Death of Mrs Jean Smyth and of other suspected British Army Military Reaction Force Killings AND In the Matter of Decision and on-going failures of the Chief Constable of the PSNI, The DOJ and NIO AND In the Matter of the Failure by the Chief Constable and the PSNI to produce the Historic Inquest Files; [2017] NIQB 28. 75  In re Gallagher’s (Michael) Application [2016] NIQB 95. 76  Ibid [25], 15.

Correspondent Reports—McGuinness 177 of the State’s only witness.77 In February 2017, Geraldine Finucane, the widow of murdered solicitor, Pat Finucane, was refused leave to appeal the Government’s decision not to hold a public inquiry into his murder.78 It is expected that Mrs Finucane will now take her challenge to the Supreme Court. A highly controversial proposal by the Parliamentary Defence Committee, published in April 2017, recommended methods for setting out a statute of limitations covering every death caused by a soldier before 1998.79 The report stated that as well as an amnesty for soldiers, a truth and recovery process should be established for bereaved families. It also repeated claims that ex-servicemen were being unfairly targeted despite protests from the Northern Ireland Public Prosecution Service (PPS) that there was no evidence for such a complaint. Referring specifically to ‘legacy’ inquests, the report stated: So far, the overall process of investigations into fatalities in Northern Ireland has been deeply unsatisfactory. The instability of the investigatory bodies, the limited resources and manpower provided to them, and continuing question marks over the independence of the investigations has delivered a vicious cycle of investigation and re-investigation that fails both former service personnel and the families of those who died.80

In response, the Northern Ireland Human Rights Commission (NIHRC) advised the Government that a ban on prosecuting soldiers and police officers suspected of crimes during the Troubles would amount to an amnesty and may also breach international human rights law.81 Readers of this Yearbook may be familiar with the ruling of the ECtHR in the 1978 case of Ireland v UK (the ‘Hooded Men’ case).82 In 1971, Ireland took the first inter-state case to come before the ECtHR, alleging that the UK had breached the ECHR through the torture and ill-treatment of 14 men, who experienced what has come to be known as the five techniques of torture: hooding, wall-standing, white

77 See, www.theguardian.com/uk-news/2016/mar/01/omagh-northern-ireland-bombing-case-againstremaining-suspect-collapses. 78  Finucane (Geraldine) v The Secretary of State for Northern Ireland [2017] NICA 7. 79  The Defence Committee, Seventh Report of Session 2017–19 [HC 1064], ‘Investigations into Fatalities in Northern Ireland Involving British Military Personnel’ (26 April 2017). Available at https://publications.parliament.uk/pa/cm201617/cmselect/cmdfence/1064/106402.htm. 80  Ibid, para 24. 81  NIHRC advice on House of Commons Defence Committee report on ‘Investigations in Fatalities in Northern Ireland Involving British Military Personnel’. Available at www.nihrc.org/publication/detail/ nihrc-advice-on-hoc-defence-committee-report-on-investigations-in-fatalitie. Professor Jonathan Tonge, of the department of politics at the University of Liverpool, presented data to the Committee that showed a cross-community rejection of amnesties for those who admitted perpetuating violence during the Troubles. He also submitted data which showed cross-community support for the principles that all those killed or injured in the Troubles should be seen as victims and that all those bereaved should be treated equally. Professor Tonge’s evidence is available at: http://data.parliament.uk/WrittenEvidence/CommitteeEvidence.svc/EvidenceDocument/Defence/Investigations%20into%20fatalities%20in%20Northern%20Ireland%20involving%20British%20military%20personnel%20%E2%80%8B/written/48154. html. Evidence to the Committee from Professor Kieran McEvoy, Queen’s University Belfast, is available at: http://data.parliament.uk/WrittenEvidence/CommitteeEvidence.svc/EvidenceDocument/Defence/ Investigations%20into%20fatalities%20in%20Northern%20Ireland%20involving%20British%20 military%20personnel%20%E2%80%8B/written/48436.html. 82  Ireland v United Kingdom (5310/71) [1978] ECHR 1 (18 January 1978).

178  The Irish Yearbook of International Law 2016–17 noise, food and water deprivation and sleep deprivation. These were combined with physical assaults and death threats to the detainees, and were allegedly carried out during their detention by the British army and the Royal Ulster Constabulary (RUC). The Court in the 1978 case, found a violation of Article 3, but did not classify the ill-treatment as torture. Rather, it found that it amounted to a violation of the prohibition of inhuman and degrading treatment. Following the discovery of new evidence by RTÉ (Raidió Teilifís Éireann, Ireland’s National Public Service Broadcaster) in 2014, which showed that the UK authorities, including senior government ministers, sanctioned the use of the ‘five techniques’ in Northern Ireland, some surviving members of that group sought a judicial review of the Police Service of Northern Ireland (PSNI’s) decision not to undertake a further investigation.83 In October 2017, the High Court in Belfast quashed that decision and held that a completely fresh decision process should begin.84 The issue of the ‘on the runs’ was revisited in September 2016, when an application for leave to apply for a judicial review of the ‘On the Run’ administrative scheme which was devised by the Government as a means of giving comfort to persons who were on the run to the effect that they would not be the subject of arrest or prosecution for any offence committed on behalf of a terrorist organisation prior to the Good Friday Agreement, unless new evidence came forth, was refused. The application was brought by Mrs Elizabeth Morrison whose son, partner and grandchild were killed in the Shankhill bombing in 1993.85 Justice Maguire found that the public interest in the matter was met in substance by the findings of the Hallett Review and reached the conclusion that it should not grant leave to apply for judicial review in this case for public interest reasons.86 THE RIGHT TO LIFE87

The issue of abortion was prominent during 2016/17. In April 2016, a young woman who at the age of 19 procured an abortion by purchasing pills on the Internet was given a three months suspended sentence at Belfast Crown Court. The defendant could not afford to travel to England to obtain a legal termination. However, she sought advice from a clinic in England about what pills to buy and induced an abortion. She pleaded guilty to two offences: procuring her own abortion by using a poison, and supplying a poison with intent to procure a miscarriage, contrary to

83 

McGuigan’s (Francis) and McKenna’s (Mary) Application [2017] NIQB 96. available at McGuigan’s (Francis) Application Neutral Citation No. [2017] NIQB 132. Available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/McGuigan%27s%20%28Francis% 29%20Application.pdf. 85  Morrison’s (Elizabeth) Application [2016] NIQB 72. 86  The Hallett Review was commissioned by the Prime Minister in February 2014 to produce a full public account of the operation of the administrative scheme for the so-called ‘on the runs’ (OTRs) following the collapse of the trial against John Downey. The Review can be viewed at www.gov.uk/ government/publications/the-report-of-the-hallett-review. 87  The narrative on abortion in this section should be considered against the right set out in Article 8 ECHR and Article 8 Human Rights Act 1998. 84  Decision

Correspondent Reports—McGuinness 179 the Offences Against the Person Act 1861.88 In a similar case in January 2017, a mother who helped her 15-year-old daughter procure abortion pills online has won the right to contest the decision to prosecute her.89 The girl at the centre of the case is not being prosecuted (and has not been named), but her mother faces two charges of unlawfully procuring poison with intent to procure a miscarriage, contrary to the 1861 Offences Against the Person Act, and supplying that poison to her daughter. These are just two of a number of cases which are due to be heard in court in Northern Ireland in the coming months. In September 2017 The Guardian reported that over 700 women from Northern Ireland travel to UK clinics each year to have abortions.90 Critically, the extent to which Northern Ireland abortion law contravenes human rights law was the subject of consideration in a Judicial Review application by the NIHRC in 2015.91 In that application, the NIHRC sought a declaration of incompatibility under the Human Rights Act 1998 on the basis that Northern Ireland abortion law breached Article 8 of the Convention.92 In delivering his decision, it is clear that Horner J considered it necessary to have regard to legislation in other jurisdictions, ‘[t]he incompatibility is simple to identify and straightforward to correct as is demonstrated by the legislation in other jurisdictions’.93 At first this decision appeared to mark a significant step forward until on the 29th June 2017 when the Northern Ireland Court of Appeal allowed the Attorney General’s Appeal against the ruling, concluding that decisions on abortion law in Northern Ireland were a matter for the legislature and not the judiciary.94 The case was heard in the Supreme Court in October 2017.95 Les Allamby, the Chief Commissioner of the NIHRC, said: This case has the opportunity to bring about a real change to the law on termination of pregnancy in Northern Ireland. Recognising how difficult it would be for a woman or girl 88 See, www.belfasttelegraph.co.uk/news/northern-ireland/northern-ireland-woman-who-boughtabortion-pills-given-suspended-prison-sentence-34597487.html. In June, the United Nations Human Rights Committee (UNHRC) ruled that Ireland’s (Republic of Ireland) abortion laws subject women to ‘discrimination and cruel, inhuman or degrading treatment. Decisions of the UNHRC are not directly binding, legally binding in Ireland, but they have persuasive value. The UNHRC recommended that Ireland should ‘amend its law on voluntary termination of pregnancy, including if necessary its constitution, to ensure compliance with the [ICCPR], including effective, timely and accessible procedures for pregnancy termination in Ireland’. Views adopted by the Committee under Article 5(4) of the Optional protocol, concerning Communication No 2324/2013. 89 www.theguardian.com/world/2017/jan/26/ulster-woman-who-bought-abortion-pills-for-daughtercan-challenge-prosecution. 90 See, www.theguardian.com/uk-news/2017/sep/07/no-prosecution-risk-for-northern-ireland-medicalstaff-over-abortion-referrals. 91  Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2015] NIQB 96. 92  By failing to allow access to lawful abortion in circumstances where the woman was carrying a foetus with a serious foetal abnormality or where the pregnancy was a consequence of a sex crime. 93  Re Northern Ireland Human Rights Commission’s Application for Judicial Review (n 91) [178] 56. 94  Attorney General for Northern Ireland & The Department for Justice v The Northern Ireland Human Rights Commission Neutral Citation No [2017] NICA 42. Available at www.judiciary-ni.gov. uk/sites/judiciary/files/decisions/Attorney%20General%20for%20Northern%20Ireland%20%26%20 The%20Department%20for%20Justice%20v%20The%20Northern%20Ireland%20Human%20 Rights%20Commission.pdf. 95  In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) UKSC 2017/0131. Available at: www.supremecourt.uk/current-cases/.

180  The Irish Yearbook of International Law 2016–17 to challenge the law in the circumstances covered by the case, the NIHRC took the case in its own name.96

The Supreme Court handed down judgment in this case on 7 June 2018.97 In a lengthy judgment, the Court dismissed the appeal by the NIHRC, on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.98 That decision aside, the Scottish Government announced earlier in 2017 that it would bring an amendment to the Scotland Act 2016 before the Scottish Parliament which would allow women from Northern Ireland to access abortions free of charge at NHS Scotland. That legislation came into effect in November 2017.99 In the UK, MP Stella Creasy spearheaded a campaign to provide Northern Irish women free access to terminations and that policy has just been introduced.100 A decision of the Chief Constable of the PSNI, George Hamilton, to transfer the work of the Historical Enquiries Team (HET) into a branch of the PSNI, was found to be fundamentally inconsistent with Article 2 and frustrated any possibility that there would be an effective investigation in the Glenanne cases.101 The application was brought by Edward Barnard, the older brother of Patrick Barnard who was murdered, aged 13, by a bomb placed by the UVF outside the Hillcrest Bar in ­Dungannon on 17 March 1976. Four others were also killed in the attack. The HET considered that the bombing was part of the ‘Glenanne series’ of cases. The applicant sought relief arising from a failure/refusal on the part of the HET to conduct a lawful, effective and independent investigation into the murder of his brother, particularly the failure/refusal of the HET to complete and publish an overarching thematic report regarding the linked Glenanne gang cases. THE RIGHT NOT TO BE ILL-TREATED

The number of victims from paramilitary style shootings in Northern Ireland doubled in 2016/17.102 Annual crime statistics, published by the PSNI in May 2017, shows there were 28 casualties resulting from paramilitary style shootings; double the number recorded in the previous year. Republicans were deemed responsible for 25 of these with Loyalists responsible for the remaining three. The number of

96 See, www.nihrc.org/news/detail/uk-supreme-court-to-hear-our-appeal-case-on-termination-ofpregnancy-laws. 97  In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27. 98 Ibid. 99  See, the Scotland Act 2016, available at www.legislation.gov.uk/ukpga/2016/11/contents/enacted. 100 See, www.theguardian.com/world/2017/jun/29/rebel-tories-could-back-northern-ireland-abortionamendment. 101  Barnard’s (Edward) Application for Judicial Review of the Decision by Chief Constable of the Police Service of Northern Ireland [2017] NIQB 82. Available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/Barnard%27s%20%28Edward%29%20Application%20for%20Judicial%20 Review%20of%20the%20Decision%20by%20Chief%20constable%20of%20the%20Police%20Service%20of%20Northern%20Ireland.pdf. 102 See, www.psni.police.uk/globalassets/inside-the-psni/our-statistics/security-situation-statistics/2017/ annual-security-situation-statistics-report-2016-17.pdf.

Correspondent Reports—McGuinness 181 casualties from paramilitary style assaults in 2016/17 also increased from the previous year from 58 to 66. Loyalists were deemed responsible for 56 of these with the remaining 10 attributed to Republicans. Meanwhile, there were 23 fewer bombing incidents than the previous year with 29 in 2016/17, and five security related deaths, the highest number per year since 2008/09. In 2016/17, 137 people were arrested under Section 41 of the Terrorism Act, 12 fewer than the 149 arrested in 2015/16. The number of persons subsequently charged following arrest under Section 41 of the Terrorism Act rose by one from 18 in 2015/16 to 19 in 2016/17.103 In comparison to the previous year, there were decreases in all but two of the six hate incident types. Sectarian incidents fell by 357 (-26.4 per cent), racist incidents fell by 167 (-13.7 per cent), homophobic incidents fell by 65 (-19.0 per cent) and disability incidents were down by 22 (-16.4 per cent). In 2016/17, the PSNI recorded 1,054 racist incidents, 995 sectarian incidents, 278 homophobic incidents, 112 disability incidents, 44 faith/religion incidents and 20 transphobic incidents.104 The number of complaints received by the Police Ombudsman’s Office during 2016/17 decreased by eight per cent from the previous year to fewer than 2,800 complaints. Criminal investigation was the most common situation which gave rise to complaints, as has been the case in four of the last five years. The most frequent allegations received during the year were allegations of failure in duty, of oppressive behaviour and of incivility.105 Around four out of 10 (41 per cent) complaints dealt with by the Police Ombudsman’s Office were subject to a full investigation. In 22 per cent of these complaints the Office found evidence to substantiate all or part of the complaint, or identified another concern during the investigation. On 24 ­occasions during the year the Police Ombudsman recommended that the Director of Public Prosecutions should prosecute an officer. Worryingly, this is more than in each of the four previous years. The Police Ombudsman recommended on 261 ­occasions, that a police officer should receive a discipline or performance action. In March 2016 the Divisional Court held that police interview tapes, retained under the Code of Practice on the audio recording of interviews for persons detained under Section 41 of the Terrorism Act 2000, can only be used in criminal or civil proceedings or an investigation of a complaint of ill treatment related to the interviews conducted with the person detained. The applicant, Mr Corbitt, was arrested on 7 May 2015 in connection with the discovery of a bomb hidden at the junction of Brompton Park and Crumlin Road, Belfast. During the initial police interviews, the applicant failed to answer any questions and did not make any statement either personally or though his solicitor. The following day, the applicant’s solicitor requested that the PSNI give an undertaking that any recording of the applicant’s voice in the interviews would not be retained for use in alternative or future investigations. The PSNI refused to give such an undertaking. The Lord Chief Justice, delivering the

103 Ibid. 104 Ibid.

105  Complaints and Allegations Received by the Police Ombudsman for Northern Ireland Quarterly Statistical Update to 30th September 2017, 5. Available at https://policeombudsman.org/getmedia/ f5fac533-f3a9-4eb8-a03f-1cf678c8b3c2/Q2-2017-18-Statistical-Update.pdf.

182  The Irish Yearbook of International Law 2016–17 judgment of the Court, said it was plain that the requirement to access the recording could only arise in relation to events occurring in the course of or related to the conduct of the actual interviews, which were subject to audio and video recording. Further, the purpose of the recording is to secure the protection of the applicant and the interviewing officers.106 One week after this decision, the Court of Appeal set aside the conviction of Sean Reilly, for refusing to answer a question when stopped by the police under the terrorism legislation on the basis that the PPS had charged him under the wrong legislation. Mr O’Reilly was stopped in his car by the police on 11 March 2014. He was told that he had been stopped under Section 21 of the Justice and Security Act 2007. When asked to provide details of his movements he said he was going to his mother’s home but refused to give her address. He was informed that it was an offence under the 2007 Act not to provide the required information and that he was liable to be arrested if he continued to refuse to do so. He was subsequently arrested and charged with obstruction of a police officer in the due execution of his duty contrary to Section 66(1) of the Police (Northern Ireland) Act 1998 (‘the 1998 Act’). At the hearing in the Magistrates’ Court, the appellant’s counsel argued that he should have been charged under Section 21 of the 2007 Act rather than Section 66(1) of the 1998 Act and that the judge should stay the proceedings. The District Judge took the view that the PPS could charge the appellant with either offence as each was made out on the facts. The appellant was convicted and fined £50. The case was stated for the opinion of the Court of Appeal with the question being whether the judge was correct in law in ruling that an offence under Section 21 of the 2007 Act (refusing to answer a question under the stop and question power) could alternatively be prosecuted as obstructing a police officer in the due execution of his duty contrary to Section 66 of the 1998 Act. The Court of Appeal concluded that where a person fails to provide required details under Section 21 of the 2007 Act he can only be prosecuted for that statutory offence and dealt with by the punishment contained in that statute. It is not an option to alternatively prosecute for obstructing a police officer under Section 66 of the 1998 Act as there is no duty under that provision to provide the requested details. The Court allowed the appeal and set aside the conviction. The annual report of the Prisoner Ombudsman revealed that three prisoners died in Maghaberry prison in November 2016. At the time of their deaths, none of those who died were being managed under the procedures for prisoners who are considered to be at imminent risk. In 2016/17 there were 4,299 complaints to the Prisoner Ombudsman, a 25 per cent increase on the 2015/16 figures. Of those complaints, 84 per cent came from Maghaberry Prison, which houses prisoners who align themselves with paramilitary organisations. Prisoners’ main concerns are dominated each year with issues such as controlled movement and full body searches. In March 2016, Mr Justice Treacy allowed a judicial review challenge to the Prison Service policy by which forced strip searches are recorded on a video camera and retained for a period of six years.107 The applicant, Mr Flannigan, contended that the policy of record106  Corbitt’s (Conal) Application [2016] NIQB 23. Available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/Corbitt%E2%80%99s%20%28Conal%29%20Application.pdf. 107  Flannigan’s Application [2016] NIQB 27.

Correspondent Reports—McGuinness 183 ing the forced searches is incompatible with his rights under Article 8 of the ECHR. He accepted that searches are expressly provided for in Rule 16 of the Prison and Young Offenders’ Centre Rules (Northern Ireland) 1996, and that the concept of searches, subject to proportionality on each occasion, can be brought within the exemptions contained within Article 8, namely the need to prevent disorder or crime. However, he argued that Rule 16(6) is antithetical to the policy of video recording searches as it provides that the only persons permitted to see the prisoner in a state of undress are ‘the officers conducting the search’. The applicant submitted that there is no provision for extra persons to video record the event, commentate or watch the proceedings via a live stream or by way of the recording. Mr Justice Treacy found that: In the absence of any proper basis in domestic law the recording of the search and its retention and the policy under which it was carried out are not ‘in accordance with law’ and therefore not a justified interference with the applicant’s Article 8 rights.108

A decision taken by the Department of Finance and Personnel that a former convicted terrorist was not suitable to work with the Conservation Volunteers was quashed by Mr Justice Maguire in June 2016. Justice Maguire found that the Minister in charge of the Department in 2007, Peter Robinson, breached the ­Ministerial Code by failing to bring his decision to dis-apply the existing policy on the recruitment of persons with conflict-related convictions to the Executive Committee. Mr Martin Neeson was convicted of a number of terrorist offences in 1975 and 1976 when he was 16-years-old. The offences were murder, two counts of attempted murder, belonging to a proscribed organisation, common assault and carrying a firearm with intent. He spent 11 and a half years in prison and was released on life licence in 1987. He had not come under police notice since his release.109 DOMESTIC VIOLENCE AND CHILD ABUSE

As regards domestic violence, the figure of 29,404 incidents for the latest 12 months (October 2016 to September 2017) shows a continued increase in the number of incidents and represents the highest level recorded since 2004/05.110 Of these, no offence was recorded in 16,810 cases, but the remaining 12,594 incidents involved a total of 14,188 actual crimes, the highest ever number recorded. The number of sexual assaults also reached111 a peak level for the first time since new reporting mechanisms were introduced almost 20 years ago. In 2016, there were 810 reports of rape and, despite the number of reported rapes, detection figures were low and less than 10 per cent (9.4 per cent) resulted in prosecution. After 223 days of public hearings, the Historical Institutional Abuse Inquiry (HIAI) delivered its Report to the Office of the First Minister and Deputy First

108 

Ibid, p 12 [50]. Neeson’s (Martin) Application [2016] NIQB 58. 110 Figures are taken from www.psni.police.uk/globalassets/inside-the-psni/our-statistics/domesticabuse-statistics/2017-18/q2/quarterly-domestic-abuse-bulletin-period-ending-sep17.pdf. 111 Ibid. 109 

184  The Irish Yearbook of International Law 2016–17 ­ inister (OFMDFM) on 6 January 2017. The Inquiry investigated 22 institutions, M as well as the circumstances surrounding the sending of child migrants from ­Northern Ireland to Australia, and the activities of Fr Brendan Smyth. In making a number of recommendations, the Inquiry Panel considered that the Executive should, so far as is reasonably possible: —— Ensure that the nature and scale of the experiences of children abused whilst in residential institutions in Northern Ireland are appropriately acknowledged. —— Where there were systemic failings on the part of the state and/or the institutions that provided residential care to children under 18, that practical forms of redress are made to them. —— Where necessary, appropriate steps are taken to ensure that such abuse and systemic failings are prevented in the future.112 Soon after the Report was published, the Diocese of Down and Connor issued a statement acknowledging with a ‘profound sense of shame, the harrowing review and analysis of historical abuse across residential homes in Northern Ireland over many decades’.113 Unfortunately, in the absence of a functioning Executive and without the necessary political authority, the Report’s recommendations cannot yet be implemented. Since it was established in 2015, the PSNI’s Modern Slavery Human T ­ rafficking Unit has recovered more than 100 victims from slavery. The Department of Justice published its second strategy on Human Trafficking and Modern Slavery for 2016/17114 and shows that in 2017, the PSNI investigated 21 cases of suspected slavery. THE RIGHT TO LIBERTY

Non-Terrorist Cases In the period 1st April 2016–31st March 2017, 39 road checks were authorised, all of which were for the purpose of ascertaining whether a vehicle was carrying a witness to an indictable offence. In the same 2016–2017 period there were 29,939 arrests under the Police and Criminal Evidence (NI) Order 1989 (the PACE Order).115 Forty six people were detained in police custody for more than 24 hours and released without charge. There were 16 applications to Magistrates’ Courts for warrants of further detention in 2016/17. One of these applications was for 24 hours or less, one

112  View the HIAI Report at www.hiainquiry.org/sites/hiainquiry/files/media-files/Chapter%204%20 -%20Recommendations.pdf. 113 View the Press Statement at https://catholicnews.ie/diocese-of-down-and-connor-statement-onthe-hiai-report/. 114  Available at www.justice-ni.gov.uk/sites/default/files/publications/justice/ni-human-trafficking-andmodern-slavery-strategy-2016-17.pdf. 115 Figures taken from www.psni.police.uk/globalassets/inside-the-psni/our-statistics/security-situation-statistics/2017/annual-security-situation-statistics-report-2016-17.pdf.

Correspondent Reports—McGuinness 185 was for between 25 and 35 hours and the other 14 were for a period of 36 hours. Of the 16 applications to Magistrates’ Courts for warrants of further detention, one of these was for a second warrant of further detention. Of the 15 persons subject to a warrant of further detention, eight spent less than 24 hours under its authority, while six spent between 24 hours and 36 hours in detention, and the remaining one person was detained over 36 hours under the authority of these warrants.116 A total of eight persons were subsequently charged. There were five intimate searches carried out by a suitably qualified person during this period. All of these were drug offence searches, of which one resulted in a quantity of Class A drugs being recovered. The remaining four were negative results. During 2016/17 one x-ray was carried out (negative result). No ultrasounds were recorded. In PT v The Official Solicitor117 the Belfast Health and Social Care Trust sought a declaration that the applicant, PT, lacked capacity to consent to treatment, care and ancillary arrangements in so far as the care plan deprived PT of his liberty. The applicant was born in 1993 and had significant physical health problems and a number of diagnoses. From birth he was made a Ward of Court and later a Deemed Care Order and placed in care. He was made the subject of guardianship in 2011. PT’s psychiatrist noted that he had Global Developmental Delay since early childhood, which resulted in impairment of intelligence and social functioning which falls within the scope of severe mental impairment in the Mental Health (NI) Order 1986. The Court found on the basis of the evidence of the respondent’s psychiatrist that he lacked capacity to litigate, to make decisions about his care and residence and about whether to leave the home unescorted. It further held that a care plan which involves the deprivation of liberty of a person subject to guardianship cannot be sanctioned under the Mental Health (NI) Order 1986 and can only be sanctioned by the High Court acting under its inherent jurisdiction. In relation to Article 5 ECHR, the Court found that a Trust seeking to deprive a person of his liberty, must apply to court for an order before detention commences. Terrorist Cases As regards terrorism-related arrests in 2016/17, 137 persons in total were detained in Northern Ireland under Section 41 of the Terrorism Act 2000. There were a total of nine applications for an extension of detention, all of which were granted. To put this into perspective, in the whole of the rest of the UK there were 60 arrests under Section 41 in 2016/17, but 310 arrests under ‘other terrorist legislation’. This suggests that the police in Northern Ireland continue to resort to the powers within the Terrorism Act 2000, which allows them to detain individuals for longer than is permitted under ‘ordinary’ criminal law.

116 

Figures taken from http://researchbriefings.files.parliament.uk/documents/CBP-7613/CBP-7613.pdf. Belfast Health and Social Care Trust and PT and The Official Solicitor to the Court of Judicature Northern Ireland [2017] NIFam 1. Available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/ Belfast%20Health%20and%20Social%20Care%20Trust%20and%20PT%20and%20The%20Official%20Solicitor%20to%20the%20Court%20of%20Judicature%20Northern%20Ireland.pdf. 117 

186  The Irish Yearbook of International Law 2016–17 In September 2017, Derry man Eamon Bradley went on trial accused of terrorist offences in the Middle East linked to the civil war in Syria. Mr Bradley claimed that he took part in three battles against Islamic State and Assad forces after travelling to Syria as a ‘matter of conscience’. He further claimed that he spent months at a training camp run by opposition groupings but never used a weapon in combat.118 The bedrock of the prosecution case was Mr Bradley’s alleged confessions during eight interviews, in which he told detectives about joining Syrian rebels opposed to President Bashar Assad and Islamic State. However, his defence counsel claimed that the alleged admissions by Mr Bradley were unreliable, given that he was unsure of the correct spelling of his own first name and had difficulty in remembering his date of birth. The defence contended that far from being a Muslim fundamentalist, Mr Bradley’s only crime was that of being an attention-seeking fantasist. THE RIGHT TO A FAIR TRIAL

Trials without Juries Section 1 of the Justice and Security Act (Northern Ireland) 2007 enables the ­Director of Public Prosecutions for Northern Ireland to issue a certificate in relation to any trial on indictment of a defendant (and anyone tried with that defendant). The effect of the certificate is that the trial is conducted in the Crown Court without a jury. Fifteen defendants were disposed of at non-jury trials under Section 1 of the Justice and Security Act (Northern Ireland) 2007 in 2016. Fourteen of those defendants were found guilty of at least one offence, while the remaining defendant was found not guilty of all charges.119 The Director of Public Prosecutions for Northern ­Ireland issued a total of 19 non-jury trial certificates in 2016/17 under the Justice and S­ ecurity (Northern Ireland) Act 2007. In the same period, 18 preliminary inquiries were conducted under Section 3 of the Justice and Security Act (Northern Ireland) 2007, eight of which were subsequently committed to the Crown Court. In 2016/17 five persons were convicted of an offence under the Terrorism Act 2000, the Terrorism Act 2006 or the Counter-Terrorism Act 2008. All of these were convicted in the Crown Court. Four of these convictions occurred in the first six months of 2016/17 (April to September 2016) and one in the second half of the year (October to March 2016/17). The second ‘supergrass’ trial to be conducted in Northern Ireland in 25 years commenced in Belfast in 2016. The ‘supergrass’, Mark Haggarty, is a former member of the UVF. There has been much speculation that families of some of Haggarty’s victims would sue the Ministry of Defence (MoD) if they were aware of Haggarty’s involvement in the killings and did not act to prevent them. The vast majority of those Haggarty targeted were Protestants from north Belfast and Newtownabbey, 118 

See, www.bbc.co.uk/news/uk-northern-ireland-41388923. taken from NI Terrorism Bulletin 2016–17. Available at https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/656524/2016-17_NI_Terrorism_Bulletin_-_PDF.PDF. 119  Figures

Correspondent Reports—McGuinness 187 and in many cases the victims were loyalists.120 In June 2017, Haggarty pleaded guilty to 200 terrorist offences, including five murders. Access to Legal Advice In November 2016, the Northern Ireland Assembly’s Public Accounts Committee condemned the Department of Justice and the Legal Services Agency for a lack of progress in reducing the non-criminal legal aid bill in Northern Ireland.121 The average cost of legal aid is currently around £102 million per annum. Despite assurances of progress given to the Committee in 2011, the first phase of a new digitised management information system will not be in place until 2018 at the earliest.122 THE RIGHT TO A PRIVATE AND FAMILY LIFE

During the reporting period, the High Court of Northern Ireland delivered two related judgments dealing with the issue of same-sex marriage. In the case of Re X,123 the Court held that the rights of a man who entered into a same sex marriage in London in 2014 were not violated by virtue of the fact that in Northern ­Ireland it is only recognised as a civil partnership. X brought legal proceedings to seek a declaration that his marriage in London is a valid and legal marriage under Northern Irish law. He claimed that the failure to recognise the marriage breached his rights under the ECHR. The Court paid particular attention to the recent judgments from the ECtHR on these issues.124 The European case law had revealed there is no consensus on the issue of same-sex marriage within the countries that have signed up to the Convention. The High Court therefore concluded that the ECtHR has held that access to or recognition of same-sex marriage is not a Convention right. Therefore, while it is open to the Government and Parliament to provide for it, they are not obliged to do so, and whether they do so is a matter for them, not the Courts. On 16 March 2016 the Court of Appeal made a ruling that the Northern Ireland Minister of Health is the correct person to make a decision on the appropriate deferral period from giving blood for males who have sex with other males.125 It held that the Minister’s approach in 2011 in maintaining the status quo (ie a permanent 120 See, www.belfasttelegraph.co.uk/sunday-life/news/uvf-victims-featured-in-the-supergrass-trialcould-get-multimillion-pound-compensation-payout-35217876.html. 121 See, www.niassembly.gov.uk/globalassets/committee-blocks/pac/pac-reports/report-on-managinglegal-aid.pdf. 122 Ibid. 123  Re X [2017]. X [2017] NI Fam 12. 124  See recent ECtHR case law such as; Ratzenböck and Seydl v Austria (ECtHR) 26 October 2017; Schalk and Kopf v Austria (ECtHR) Application no 30141/04, 22 November 2010; Vallianatos and Others v Greece, (ECtHR) Application nos 29381/09, 7 November 2013 and 32684/09; Oliari and ­Otheres v Italy (ECtHR) Application nos 18766/11 and 36030/11, 21 December 1999. 125 Re Judicial Review [2016] NICA 20 (16 March 2016). Available at www.bailii.org/nie/cases/ NICA/2016/20.html.

188  The Irish Yearbook of International Law 2016–17 ban on blood donations from men who have sex with other men) pending further consideration and investigation of the issue was not irrational or biased. In England, Scotland and Wales, men can give blood if they have not had sex with another man for at least a year. The Lord Chief Justice Sir Declan Morgan refused leave, but he indicated that the Supreme Court may, nevertheless, identify points it would want to explore. On that basis, lawyers are to petition the Supreme Court for a hearing. In the judicial review case of Chilinda Fula,126 the applicant challenged a decision by the Secretary of State to the decision that any appeal relating to the decision to deport him, breached his human rights and could only be brought after he had left the UK. The challenge was limited to the question of whether that decision would breach Article 8 of the ECHR. The applicant arrived in the UK with his mother when he was 14-years-old in 2005. Both were granted indefinite leave to remain in November 2010 and the applicant’s mother is now a naturalised British ­citizen. In February 2013 the applicant received a custodial sentence of five years and 10 months, with half the sentence to be served on licence, for having caused death by dangerous driving in December 2011. In April 2015, the applicant was served with deportation documentation, which informed him that the Home Secretary was minded to deport him. He was invited to make representations. He made the case that such a decision would breach his human rights, in particular, Article 8 of the ECHR. The applicant proceeded with only one ground of challenge, which was that the Home Office acted irrationally by failing to take into account relevant factors and evidence in relation to Article 8 of the ECHR when considering the certification. It was asserted that this stance was wrong in law as it gave no weight for Article 8 purposes to the applicant’s rehabilitation. The Court would have to be satisfied that there was material relevant to the Article 8 assessment which was not considered and was therefore left out of account. The Court was not satisfied that the applicant had established this. Even if it had found a material factor, the Court stated that it would not have quashed the certification decision, but would have considered whether the outcome would have been the same even if the issue of rehabilitation had been considered. It held that taking rehabilitation into account would not have altered the decision. THE RIGHT TO FREE EXPRESSION AND TO INFORMATION

The issue of sexual orientation was prominent throughout 2016/17 as a result of the ‘Ashers Bakery Case’.127 The case, which was supported by the Equality Commission Northern Ireland (ECNI), involved a gay man who ordered a cake displaying the QueerSpace logo and the caption ‘Support Gay Marriage’. The bakery initially accepted the order, but on reflection contacted the respondent and stated that it could not fulfil the order because it was a Christian business. The claimant brought an action on the grounds of discrimination. He won his case at the County Court

126  127 

In the matter of an application by Chilinda Fula for judicial review [2017] NIQB 11. Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Ltd [2016] NICA 55.

Correspondent Reports—McGuinness 189 where he was awarded £500 compensation. Ashers subsequently appealed the decision on the grounds that the ruling impacted their Convention rights and by March 2016, the Attorney General (AG) for Northern Ireland, John Larkin QC, had intervened on the basis that there was theological context to the interpretation of the sexual orientation regulations that would require further clarification. The Court of Appeal dismissed the appeal finding that: ‘The fact that a baker provides a cake for a particular team or portrays witches on a Halloween cake does not indicate any support for either.’128 The Court also held that Ashers would not have objected to a cake carrying the message:129 ‘Support Heterosexual Marriage’ or indeed ‘Support Marriage’. We accept that it was the use of the word ‘gay’ in the context of the message which prevented the order from being fulfilled. The reason that the order was cancelled was that the appellants would not provide a cake with a message supporting a right to marry for those of a particular sexual orientation. This was a case of association with the gay and bisexual community and the protected personal characteristic was the sexual orientation of that community. Accordingly this was direct discrimination.130

The Court found that the refusal to provide the cake was contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 and the Fair Employment and Treatment (NI) Order 1998. This legislation was found not to be incompatible with the bakery owners’ rights to freedom of thought, conscience and religion and freedom of expression, or the related claim of discrimination on grounds of religious belief and political opinion. The AG sought to refer the case to the Supreme Court but the Court of Appeal refused. The Court held that the power to require the Court to refer is designed to enable the AG to refer proceedings he is involved in prior to judgment. Once judgment is given the AG has the same appeal rights of any other litigant.131 There were no exceptional circumstances to justify the reopening of the case. Ashers had previously been refused leave, but the McArthur family who own the bakery, petitioned for leave to appeal to the Supreme Court. On 2 May 2018, the Supreme Court reserved judgment in the case after a two-day hearing. At the end of proceedings, the President of the Supreme Court, Lady Hale, said people should not expect an answer on the case immediately. ‘People will of course not expect the answer any time soon’, she told the court. ‘This is not to say that we don’t hope that it might be before the summer—but these cases are by definition complex and difficult.’132 In June 2017, the High Court in Belfast ruled that the lack of legal recognition to humanist marriages in Northern Ireland breaches human rights law by p ­ rivileging

128  Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Ltd [2016] NICA 39, 20 [67]. 129 Ibid. 130  Lee v Ashers Baking Co & ors [2016] NICA19. 131 See Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Ltd (n 127) [13] 4 and 5. Available at www.judiciary-ni.gov.uk/sites/judiciary/files/decisions/Lee%20%28Gareth%29%20 v%20McArthur%20%28Colin%29%2C%20McArthur%20%28Karen%29%20and%20Ashers%20 Baking%20Company%20Limited.pdf. 132  Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) UKSC 2017/0020. Available at www.supremecourt.uk/cases/uksc-2017-0020.html.

190  The Irish Yearbook of International Law 2016–17 religious believers (who can have legal marriages) over humanists.133 The challenge related to the General Register Office’s (GRO) refusal to officially authorise a marriage ceremony due to be conducted by a British Humanist Association (BHA) celebrant. Humanist marriages are legally recognised in Scotland and the Republic of Ireland. In Northern Ireland a humanist marriage ceremony must also have a separate civil registration for the marriage to be legally recognised. In this case, the applicant, Miss Lacole, complained that whilst a wide range of religious groups are afforded the legal privilege of being able to marry their members in accordance with their own beliefs and traditions, this same legal privilege is being denied to humanists without any proper justification in law. She argued that the term ‘religious marriage’ can, and should, now be read to include the concept of ‘belief marriage’ which should be afforded equal protection and which would encompass a humanist marriage performed by a BHA accredited celebrant. Alternatively, she argued that those provisions of the Marriage (Northern Ireland) Order 2003, which permit only authorisation of religious marriage on behalf of a religious body by the GRO and which thereby operate to exclude the possibility of granting temporary authorisation (and thereby legal recognition) for a humanist marriage ceremony, are unlawful as they are in breach of Articles 9 and/or 14 of the ECHR. That decision was subsequently appealed by the Northern Ireland Government to the Court of Appeal, which initially issued a stay on the decision, albeit while letting the applicant marry in a legal humanist wedding ceremony.134 The case came before the Court of Appeal on 11 September when the Court decided to issue a further stay on the High Court ruling, in order that the different parties in the case can have more time to attempt to negotiate a compromise solution. In DB v Chief Constable of PSNI,135 the Supreme Court ruled unanimously that the police had legal powers to stop the ‘flag protests’ that took place in Belfast in December 2012 and continued into March 2013. On 3 December 2012, Belfast City Council took the decision to stop flying the Union flag over Belfast City Hall every day. Instead, the flag would be flown on designated days. This resulted in protests by loyalists throughout Northern Ireland for a number of months and the episode was generally known as the ‘flag protest’. Protestors marched to and from East Belfast to City Hall via the Short Strand, an area in which residents ‘are perceived to be nationalist’. In this area, residents were subjected to violence, disorder and sectarian abuse. Under the Public Processions (NI) Act 1998, it was an offence to partake in a public procession without notifying the commission. No notification under the 1998 Act was made in respect of any of the parades. The police initially had taken the decision not to permit the protesters to enter the City Centre but between 6 and 8 December 2012, they made a decision to facilitate the protests and did not take preventative action believing that they had no power to stop them.

133 See, https://humanism.org.uk/2017/09/11/northern-ireland-court-of-appeal-stays-humanist-marriage-case-pending-further-negotiations/. 134  Smyth’s (Laura) Application [2017] NIQB 55. Available at www.judiciary-ni.gov.uk/sites/judiciary/ files/decisions/Smyth%27s%20%28Laura%29%20Application.pdf. 135  DB v Chief Constable of PSNI [2017] UKSC 7.

Correspondent Reports—McGuinness 191 The applicant, a resident of Short Strand, judicially reviewed the PSNI’s decision. The High Court found that the PSNI had failed to appreciate the extent of its powers to stop un-notified parades. The Court of Appeal disagreed and allowed the Chief Constable’s appeal. The Supreme Court reversed the Court of Appeal’s decision and ruled that police have a duty under the general law to prevent the commission of offences and participation in an un-notified parade is a criminal offence. Police were not obliged by Article 11 of the ECHR, which protects freedom of assembly and association, to facilitate peaceful protests which are technically illegal. However, they did have a duty to protect the Article 8 rights of residents. In J20 v Facebook Ireland Ltd,136 the High Court found that Facebook was liable for misuse of ­private information. A series of offensive comments about the applicant was posted on Facebook in relation to demonstrations following the decision in December 2012 to limit the flying of the union flag at Belfast City Hall. In the pages, the applicant was described as ‘a sectarian parade organiser’, ‘a loyalist bigot’, ‘a scum woman beating snake’ and so on. There was an allegation that he did not bother with his children because they were Catholic and an inference that he was a police informant. The applicant’s grounds for challenge related to harassment and misuse of private information. The judge held that while ‘these comments are offensive and distasteful’ they ‘do not cross the boundary between what is unattractive and unreasonable as opposed to what is oppressive and unacceptable’.137 Therefore the web postings could not constitute harassment. However, the judge held that the reference to the children, who could be identified, constituted a misuse of private information. He was also concerned about the inference that the applicant was a police informer given the particular political resonance of this issue in Northern Ireland. This also amounted to a misuse of private information. The judge found that while there was no obligation for Facebook to actively monitor sites, the defendant had been made aware of this matter through requests by the applicant to remove the material. It did not reply to these requests. It then deduced that there was no violation of its terms of service. Facebook was ordered to pay the applicant damages of £3000.138 Pastor James McConnell was found not guilty of sending, or causing to be sent, a grossly offensive message by means of a public electronic communications network contrary to the Communications Act 2003, in January 2016. The charges relate to a sermon given by Pastor McConnell at a Church in Belfast in May 2014, which caused a furore among the Muslim community in Northern Ireland. The judge considered the proportionality of a conviction under the 2003 Act in light of the defendant’s rights under Articles 9 and 10 of the ECHR and concluded that the words upon which the charges were based, whilst offensive, do not reach the high threshold of being ‘grossly offensive’.139

136 

J20 v Facebook Ireland Ltd [2016] NIQB 98. Ibid, 6 [16]. 138  J20 v Facebook Ireland Ltd (n 136). 139  DPP v James McConnell [2016] NIMag 1. Available at www.judiciaryni.gov.uk/sites/judiciary/files/ decisions/DPP%20v%20James%20Mcconnell.pdf. 137 

192  The Irish Yearbook of International Law 2016–17 SOCIAL RIGHTS

In McLaughlin’s (Siobhan) Application in 2016,140 the applicant lived with her ­partner for 23 years and they had four children together. On the death of her p ­ artner, the Department of Social Development (DSD) refused to provide Bereavement Benefit and Widowed Parent’s Allowance under the Social Security Contributions and Benefits (NI) Act 1992, solely because of the fact that she and the deceased had neither been married nor in a civil partnership. The High Court decided that refusal of payment is justified where the sole beneficiary of the benefit claimed is the cohabiting partner of the deceased but should not be refused where the purpose is to ease the financial burden on a family following the death of a parent. It found that the DSD’s decision unlawfully discriminated against the applicant on the grounds of her marital status. The applicant was therefore entitled to Widowed Parent’s Allowance but was not entitled to Bereavement Benefit. The DSD appealed the decision to the Court of Appeal which overturned the decision of the High Court finding that,141 [T]he relationship of an unmarried cohabitee is not analogous with that of a spouse or civil partner in the context of Widowed Parent’s Allowance; the different treatment of cohabitees and spouses/ civil partners in that context is justified; there is no violation of Article 8 read with Article 14 and the treatment of the children is not on the ground of their birth status.

On appeal, the Court of Appeal felt that it was not for the courts to determine the policy in this area and that the matter fell within the remit of Parliament. While granting Ms McLaughlin permission to appeal her case to the Supreme Court, the Court of Appeal recognised that, unlike marital status, birth status is not a matter of choice and in reaching a different conclusion than the High Court, found that, whilst the benefit is child-related, it is not paid to the children and therefore the restriction does not discriminate against them. The case, which was heard alongside the Ashers Case, on 1 May 2018,142 heard that the state’s refusal to pay Siobhan McLaughlin bereavement benefit amounted to discrimination against children born out of wedlock. Whilst judgment has been reserved, if Ms McLaughlin’s case is successful, the criteria for these benefits could be opened up to families of cohabiting parents throughout Northern Ireland and the UK. With an estimated 2,000 families per year being turned down for support on the basis of marital status, the judgment could be extremely significant in alleviating hardship for bereaved families. In March 2017, the Supreme Court unanimously allowed an appeal by a woman from Northern Ireland, in which she claimed that she was entitled to a share of her deceased’s partner’s pension.143 The applicant, Ms Denise Brewster, challenged a ruling that she was not automatically entitled to a survivor’s pension but would have been had she been married to the deceased. The applicant and the deceased

140 

McLaughlin’s (Siobhan) Application [2016] NIQB 11. An Application by Siobhan McLaughlin for Judicial Review [2016] NICA 53. 142  In the matter of an application by Siobhan Mclaughlin for Judicial Review (AP) (Northern Ireland) UKSC 2017/0035. Available at www.supremecourt.uk/watch/uksc-2017-0035/300418-am.html. 143  In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8. 141 

Correspondent Reports—McGuinness 193 had lived together for 10 years and owned their own home. The applicant’s partner passed away a few days following their engagement. He had worked for Translink for 15 years and paid into Northern Ireland’s local government pension scheme. The scheme is governed by the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009. There was a provision within the scheme that unmarried cohabiting partners must be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. This nomination had not been provided by the deceased. While the High Court allowed the challenge, the Court of Appeal disagreed and allowed the Department’s appeal, finding that the nomination requirement was neither unjustified nor disproportionate. The Supreme Court declared that the requirement in the 2009 Regulations that the appellant and the deceased should have made a nomination be disapplied and that the appellant was entitled to receive a survivor’s pension under the scheme. OTHER DEVELOPMENTS

In 2012, Anthony McIntyre, who had been formerly linked to the IRA, was granted leave to judicially review the PSNI and the Public Prosecution Service for issuing an International Letter of Request (ILOR) concerning recordings held at Boston ­College.144 McIntyre was one of the main researchers in a major project to compile an oral history of the conflict in Northern Ireland. A large number of testimonies from people with links to loyalist and republican paramilitary organisations were provided to Boston College on the understanding that they would only be made public after their death. However, legal challenges resulted in police obtaining transcripts and interview tapes by Dolores Price who had links with the IRA, and Winston Rea, who had links to loyalist organisations. The PSNI is seeking access to Anthony McIntyre’s recorded recollections as part of investigations into alleged terrorist offences stretching back more than 40 years. A subpoena seeking copies of his interviews was served on Boston College by the UK Government. It concerned an ILOR setting out alleged offences, including a bomb explosion in Belfast in 1976 and membership of a proscribed organisation. The tapes were released and flown from America, but they remain under seal within the Court pending the judges’ ruling. On 16 January 2018, the High Court in Belfast reserved judgment in the case. The Lord Chief Justice Sir Declan Morgan said: ‘We want to consider the voluminous papers and recent submissions.’145 In October 2017 the Office of the Police Ombudsman for Northern Ireland announced that it had begun an investigation into three of Northern Ireland’s most senior police officers for alleged misconduct in public office and criminality that could amount to conspiracy to pervert the course of justice.146 The Chief Constable

144 

McIntyre’s Application [2012] NIQB 65. Irish Times press release: www.irishtimes.com/news/crime-and-law/attempt-to-access-former-iraman-s-boston-college-tapes-replete-with-errors-court-told-1.3357750. 146  Press release available at https://policeombudsman.org/Media-Releases/2017/Police-Ombudsmanstatement. 145 See

194  The Irish Yearbook of International Law 2016–17 George Hamilton, his deputy Drew Harris, and Assistant Chief Constable Mark Hamilton have been named in the local press as the three officers concerned.147 The Police Ombudsman has declared the matter to be a ‘critical incident’, the outcome of which could have a significant impact on the person making the complaint, on the police or on the wider community. The announcement by the Ombudsman added that given that some of the officers are above the level of Chief Superintendent, the Policing Board has been notified. The Office has not recommended the suspension of any of the police officers concerned.148 CONCLUSION

In December 2016, the Annual Statement issued by the NIHRC149 commented that in that year, three UN Committees issued concluding observations on the UK’s progress in implementing its treaty obligations. The reports on the Convention on the Rights of the Child,150 the International Covenant on Economic, Social and Cultural Rights (ICESCR)151 and the Convention on the Elimination of Racial Discrimination (CERD)152 all contain significant recommendations pertinent to Northern Ireland. Publication of the concluding observations illustrates the Northern Ireland Executive’s inconsistent contributions to the UK Government’s UN reporting duties; while the Executive played an active role in the CERD examination, no one appeared from the Executive at the equivalent examination held by the ICESCR Committee. The failure to attend means that any explanation of progress or otherwise on treaty obligations goes by default. Finding agreement to introduce legislation to create the institutions in the Stormont House Agreement remains tantalisingly out of reach. The lack of progress in completing investigations into Troubles-related deaths also remains elusive. There is a window of opportunity for dealing with outstanding legacy inquests. This requires the requisite financial resources to be made available for them to move forward with some pace. The NIHRC launched its 2017 Annual Statement on 10 December 2017.153 In the Preamble, the Chief Commissioner, Les Allamby, comments that it is difficult to

147 

See, www.bbc.co.uk/news/uk-northern-ireland-41666235. Press release available at: https://policeombudsman.org/Media-Releases/2017/Police-Ombudsmanstatement. 149  Available at www.nihrc.org/uploads/publications/StrictlyEmbargoeduntil00.01hrs8December2016. NIHRCAnnualStatement2016.pdf. 150 See, UN Convention on the Rights of the Child. The UN CRC Committee examined the UK’s fifth periodic report on compliance with the UN CRC in 2016. The Committee published its concluding observations in May 2016. Available at www.crae.org.uk/media/93148/UK-concluding-observations-2016.pdf. 151  International Covenant on Economic Social and Cultural Rights. The UN ICESCR Committee examined the UK’s sixth periodic report on compliance with the ICESCR in 2016. The Committee published its concluding observations in June 2016. Available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E/C.12/GBR/CO/6&Lang=En. 152  UN Convention on the Elimination of Racial Discrimination The UN CERD Committee examined the UK’s 21st to 23rd periodic reports on compliance with the ICERD in 2016. The Committee published its concluding observations in July 2016. Available at https://fncaringsociety.com/sites/default/files/ CERD_C_CAN_CO_21-23_28714_E.pdf. 153  Available at www.nihrc.org/uploads/publications/NIHRC_Annual_Statement_2017.pdf. 148 

Correspondent Reports—McGuinness 195 write in a positive vein on the developments in human rights in 2017. He further comments that there has been no effective response to addressing specifically identified human rights issues in Northern Ireland in the past year. The lack of progress reflects the absence of a working Northern Ireland Assembly throughout this year. A further year has also passed without concrete progress being made on the outstanding legacy inquests, inquiries and other issues of our past. While the decision of the Supreme Court in both the McLaughlin and Ashers cases may bring some positive news in the areas of sexual orientation and marital status, the existing inertia in each of the other areas listed in this report is likely to remain until a functioning government is reinstated in Northern Ireland.

196 

Ireland and the European Union 2016 and 2017 DR RODERIC O’GORMAN*

H

AVING COME THROUGH the rigours of the global Financial Crisis which challenged the basic notions of solidarity between Member States and which required measures that strained the boundaries between legality and political necessity, 2016 saw the European Union (EU) faced with a new and potentially even more impactful challenge: Brexit. The decision of the British electorate to vote to leave the EU on 23 June, while not unforeseeable in light of the tightness of the polls throughout the campaign, came as an enormous shock to the political establishment within the United Kingdom (UK), across Europe, and in Ireland. The graph illustrating the sudden plummet in the value of Sterling following the very close result in the Newcastle constituency early in the evening, became one of the enduring images of the results night. The consequences of this decision for Ireland are particularly significant, given the shared history, common land border, embedded trading relationships and delicate political and institutional arrangements provided for under the Belfast Agreement to secure peace in Northern Ireland. Since the referendum, the Irish Government has sought to prepare domestically for the UK’s departure and engage with the EU’s negotiating team to ensure that Irish priorities are reflected in the Union’s own negotiating stance. Part one of this report traces the key actions undertaken by the Irish Government leading up to and during the Brexit negotiations. Beyond the ramifications of the Brexit decision, Union law continued to operate in Ireland and within the period encompassed in this report, a number of interesting cases covering a range of policy areas were considered before the Court of Justice. Part two of the report discusses these. PART ONE: BREXIT AND IRELAND

On the morning following the Brexit referendum the immediate reaction of the Irish Government was a brief statement ‘noting’ the outcome and the ‘significant implications for Ireland’.1 Following an emergency Cabinet meeting later that day, the first policy steps were put in place, with a Brexit Contingency Framework

* 

Dublin City University. www.taoiseach.gov.ie/eng/News/Government_Press_Releases/Government_statement_on_the_ outcome_of_the_UK_EU_referendum.html. 1 See,

198  The Irish Yearbook of International Law 2016–17 being announced.2 This document contained a list of priority policy areas, how they would be addressed immediately and in the medium term pre-negotiation phase, and which government department or state agency would take the lead.3 The centrality of the Belfast Agreement was rapidly emphasised by the Government, with the ­Minister for Foreign Affairs meeting with the Secretary of State for Northern Ireland in the days following the referendum and stating that ‘… irrespective of [the ­ referendum] result, the Good Friday Agreement remains the template for political relationships on this island and between these islands’.4 The significance of the result for the regional relationships on the two islands was emphasised at the extraordinary summit of the British Irish Council, where representatives of the devolved administrations met with the Taoiseach and senior British Ministers.5 Summer 2016 saw intensive research being undertaken by the Government on potential impacts of Brexit, with the Department of Finance publishing an initial sector by sector assessment of the State’s trade exposure.6 Internal reorganisation within the civil service saw the appointment of a Second Secretary General in the Department of An Taoisearch (John Callinan) and restructuring of the EU unit in the Department of Foreign Affairs.7 The Taoiseach had attempted to create a forum in which the challenges generated by Brexit across the island of Ireland could be explored by a wide range of representative groups, through the initiation of the ­All-Island Civic Dialogue.8 This had its first plenary session in November 2016, but was immediately undermined by the decisions of the Democratic Unionist Party and the Ulster Unionist Party not to attend. Prime Minister May’s Lancaster House speech9 was welcomed by the Irish Government, specifically her commitment to avoiding a hard border on the island and maintaining the Common Travel Area.10 In its subsequent response to the Article 50 of the Treaty on European Union (TEU) notification in March, the Government highlighted its priorities in the negotiating process as minimising the impact on trade and the economy, protecting the peace process in Northern Ireland and maintaining an open border, continuing operation of the Common Travel Area, and working

2 See, www.taoiseach.gov.ie/eng/News/Government_Press_Releases/Irish_Government_Brexit_ Contingency_Plans_Announced.html. 3  See, https://merrionstreet.ie/en/News-Room/News/Contingency_Framework_Summary.pdf. 4  See, www.dfa.ie/news-and-media/press-releases/press-release-archive/2016/june/flanagan-addressesni-dimension-referendum-result/. 5  See, www.britishirishcouncil.org/sites/default/files/communiqu%C3%A9s/Extraordinary%20Summit %20-%20Cardiff%20-%2022072016.pdf. 6 ‘UK EU Exit: Trade Exposures of Sectors of the Irish Economy in a European Context’ (­ September 2017), available at http://igees.gov.ie/wp-content/uploads/2017/10/UK-EU-Exit-Trade-­ Exposures-of-Sectors-of-the-Irish-Economy-in-a-European….pdf. 7  See, www.taoiseach.gov.ie/eng/News/Government_Press_Releases/Government_appoints_new_Second_ Secretary_General_in_the_Department_of_the_Taoiseach.html. 8  See, https://merrionstreet.ie/en/EU-UK/Consultations/#All-Island%20Civic Dialogue. 9 See, www.gov.uk/government/speeches/the-governments-negotiating-objectives-for-exiting-the-eupm-speech. 10 See, www.taoiseach.gov.ie/eng/News/Government_Press_Releases/Government_Statement_on_ Brexit.html.

Correspondent Reports—O’Gorman 199 for a positive future for the European Union.11 This statement emphasised a theme common across much of the Government’s response: an effort to link the specifics of Brexit with wider policy actions being taken by the Government (in this example, referencing Brexit related measures taken in Budget 2017, the Action Plan for Jobs and the newly published Trade and Investment Strategy). The Irish Government felt that its key priorities—no hard border, maintenance of the Common Travel Area and the importance of the Peace Process—were all clearly in evidence within the Union’s Recommendation for Opening Negotiations on Brexit, issued following the April European Council meeting.12 All three issues formed the central part of the specific Guiding Principles for the Dialogue on Ireland and Northern Ireland, published in September by the Union’s Chief Brexit Negotiator, Michel Barnier.13 From the start of the negotiations, the position of Northern Ireland has been central, with agreement in the first round that the question of the border in Ireland was one of the key challenges that should be decided as soon as possible.14 Northern Ireland has featured as a central feature of the subsequent ­second,15 third16 and fifth17 rounds, and has also been referenced in the fourth18 and sixth rounds.19 Following a contentious period of negotiation in late 2017, characterised by increased tension in the political relations between Ireland and the UK,20 the ­Commission was finally in a position to advise the European Council that sufficient progress has been made in the first phase of negotiations to allow movement to the second phase.21 The Communication from the Commission dealt extensively with Northern Ireland, stating inter alia that the UK would: protect the operation and institutions of the Good Friday Agreement; avoid a hard border including physical infrastructure or related checks and controls; respect Ireland’s ongoing EU membership and all of the corresponding rights and obligations; and would continue to operate the Common Travel Area.22

11  See, www.taoiseach.gov.ie/eng/News/Government_Press_Releases/Government_Statement_UK_ Government_Notification_under_Article_50.html. 12  See, www.taoiseach.gov.ie/eng/News/Government_Press_Releases/Government_Statement_on_Brexit_ Preparations.html; See also https://ec.europa.eu/info/sites/info/files/recommendation-uk-eu-negotiations_ 3-may-2017_en.pdf. 13  See, http://europa.eu/rapid/press-release_SPEECH-17-3145_en.htm. 14  See, http://europa.eu/rapid/press-release_SPEECH-17-1704_en.htm. 15  See, http://europa.eu/rapid/press-release_SPEECH-17-2108_en.htm. 16  See, http://europa.eu/rapid/press-release_SPEECH-17-3043_en.htm. 17  See, http://europa.eu/rapid/press-release_STATEMENT-17-3921_en.htm. 18  See, http://europa.eu/rapid/press-release_SPEECH-17-3547_en.htm. 19  See, http://europa.eu/rapid/press-release_STATEMENT-17-3921_en.htm. 20 N O’Connor, ‘Brexit: Varadkar “being Smeared by London’ as Tensions Rise, Belfast Telegraph (1 December, 2017), available at www.belfasttelegraph.co.uk/news/northern-ireland/brexit-varadkarbeing-smeared-by-london-as-tensions-rise-36368849.html. 21  Communication from the Commission to the European Council (Article 50) on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union Brussels, 8.12.2017 COM(2017) 784 final. 22  Ibid, at 8.

200  The Irish Yearbook of International Law 2016–17 PART TWO: IRELAND AND THE EUROPEAN UNION 2016–2017

Immigration and Asylum While it was noted in the ‘Ireland and the European Union 2015’ report that Ireland had passed the International Protection Act 2015 which significantly altered the process for seeking protection status in Ireland, a number of legacy cases concerning the previous legislative arrangements still came before the Court of Justice.23 In its decision in Danqua, the Court was initially asked a question about the application of the principle of equivalence in Union law, but ended up deciding the case against Ireland on the basis of the principle of effectiveness.24 The applicant had been denied refugee status and, under the legislation then in operation, she had 15 working days following the decision to put in a subsequent application for subsidiary protection. She did not make the application within this time period and her application was rejected on this basis. Ms Danqua appealed to the High Court, arguing that the principle of equivalence was undermined, as the short time period for making the subsidiary protection application was not mirrored by the period for making the initial refugee status application.25 The High Court rejected this position on the basis that the situation was one where two measures implementing EU law were being compared, whereas equivalence applies between a Union measure and a piece of domestic law.26 However, on appeal to the Court of Appeal, two questions were referred to the Court of Justice. On the point of equivalence, the Court of Justice determined that the relevant Irish law was in fact implementing provisions of Union law, namely the Directive on Minimum Standards for Third Country Nationals and Stateless Persons.27 As there was no evidence of Irish domestic legislation supplementing the Union provisions, the Court determined that the principle of equivalence could not apply.28 However, at this point the Court stated its obligation to provide the referring court with ‘… all those elements for the interpretation of EU law which may be of assistance in adjudicating on the case pending before it, whether or not the referring court has specifically referred to them in its questions …’.29 This includes the right to reformulate the question from the national court.30 The Court thus interpreted the question from the Irish Court as being whether the condition to submit a subsidiary protection application within 15 days of a rejection of a refugee application complied with the principle of effectiveness.31 The Court noted that the test was 23 

International Protection Act 2015 (No 66 of 2015). C‑429/15 Evelyn Danqua v Minister for Justice and Equality, Ireland, Attorney General EU:C:2016:789. 25  Ibid [16]. 26  Ibid [17]. 27  Ibid [33]. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12. 28  Ibid [34]–[35]. 29  Ibid [37]. Citing C-152/03 Ritter-Coulais EU:C:2006:123 [29]. 30  Ibid [36]. 31  Ibid [38]. 24 Case

Correspondent Reports—O’Gorman 201 whether the national rule would make the enjoyment of the EU rule impossible or excessively difficult to enjoy.32 It had to determine whether the applicant was in a position to assert the rights which she derived from the Directive.33 Where a national rule made enjoyment of the rights more difficult, the features of that national rule need to be specifically examined, bearing in mind the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure.34 While time limits on the enjoyment of EU law rights may be appropriate, they need to be considered in light of … the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration.35

Bearing these factors in mind, the Court determined that the time limits in the Irish legislation were particularly short and did not provide persons with a genuine opportunity to make an application.36 They could not be justified by the need to return unsuccessful applicants to their home country, as the time limit was not linked to such returns.37 As such, the Irish rules did not comply with the principle of effectiveness. In MM v Minister for Justice, the Court of Justice was again examining aspects of the Irish asylum system, this time the two step process of examining asylum applications and subsequently subsidiary protection applications, which then existed.38 M, who had come to Ireland on a student visa, had subsequently sought asylum, with his application being rejected by both the Refugee Applications Commissioner and on appeal, the Refugee Appeals Tribunal. He later made an application for subsidiary protection which was rejected on grounds similar to the grounds for the rejection of the original asylum application.39 He challenged this rejection in the High Court, the hearing of which led to a first reference to the Court of Justice.40 The outcome of this was that the Court of Justice held that in a state that operated a two-step process such as Ireland, the fact that an applicant was heard in their application for refugee status does not mean that the right to be heard was then dispensed with in respect of the subsequent application for subsidiary protection. Following this reference, the case returned to the High Court which determined that the Minister had failed to protect M’s procedural rights. This was appealed by the Minster to the Supreme Court, which referred a number of questions, primarily concerning whether the right to be heard in the context of a subsidiary protection application in a two-step process required that an applicant be granted an oral hearing and whether the applicant would have the right to cross examine witnesses in

32 

Ibid [39]. Ibid [40]. 34  Ibid [42]. 35  Ibid [44]. 36  Ibid [46]. 37  Ibid [47]. 38  Case C‑560/14 MM v Minister for Justice and Equality EU:C:2017:101. 39  Ibid [14]. 40 C-277/11 MM v Minister for Justice, Equality and Law Reform and Others EU:C:2012:744. 33 

202  The Irish Yearbook of International Law 2016–17 such a hearing. The Court noted initially that, as Ireland was operating a two-step process, the provisions of Directive 2005/85/EC did not apply.41 However, the Court found that the right to be heard constituted a general principle of Union law and applied ‘even where the applicable legislation does not expressly provide for such a procedural requirement’.42 The Court determined that while the right to be heard needed to be fully protected in both elements of the process, this did not automatically mean that an interview had to be provided in the subsidiary protection application.43 It sought to clarify what it had stated in the original MM preliminary reference, stating that … the Court simply pointed out the need to ensure that the right of the applicant for subsidiary protection to be heard is observed even if he has already been heard in the course of examination of his asylum application, and did not thereby find an obligation that an interview relating to the application for subsidiary protection must be arranged in all circumstances.44

The Court then examined the requirements of Directive 2004/83, in particular Article 2(e) setting out the standard required for receipt of subsidiary protection and Article 4, outlining the indicators that can be used in substantiating this.45 It held that the fact that an applicant for subsidiary protection had only been allowed to make their case in written form during that second element of the process would not automatically equate with having been denied an effective right to be heard prior to a decision being taken.46 Such a written procedure would have to be flexible enough to allow the applicant to comment in detail on the various elements and make provision for granting the applicant assistance if necessary.47 The Court noted that the applicant in this case had had an interview when first applying for asylum, and while commenting that this on its own would not equate with a full right to be heard in the second, subsidiary protection process, elements of the interview could be used to contribute to the decision being made on the subsidiary protection application.48 While the possibility of a second interview during the subsidiary protection phase was not necessarily always an element of the right to be heard, the Court also noted that sometimes, ‘… specific circumstances may make it necessary for an interview to be arranged in order that the right of the applicant for subsidiary protection to be heard is effectively observed’.49 This would be the case if the deciding national authority was not objectively in the position after the written material was provided to it, to make a determination as to whether the requisite grounds for international protection had been demonstrated.50 An interview would also be necessary if there

41 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L326/13 para 24. 42  MM v Minister for Justice and Equality (n 38) [25]. 43  MM v Minister for Justice and Equality (n 38) [26]–[27]. 44  MM v Minister for Justice and Equality (n 38) [29]. 45  Directive 2004/83 (n 27) paras 34–37. 46  MM v Minister for Justice and Equality (n 38) [38]. 47  MM v Minister for Justice and Equality (n 38) [40]. 48  MM v Minister for Justice and Equality (n 38) [42]–[44]. 49  MM v Minister for Justice and Equality (n 38) [47]. 50  MM v Minister for Justice and Equality (n 38) [49].

Correspondent Reports—O’Gorman 203 were specific vulnerabilities on the part of the applicant (age, health or having been subjected to serious forms of violence) that required further comment in order to make the case for protection.51 Finally, the Court determined that a putative right to call and cross examine witnesses went beyond the requirements of the right to be heard in administrative ­proceedings.52 As such, an applicant for subsidiary protection did not possess a right to such a facility. Family Law In MH v MH the Court of Justice had to examine the Recognition of Judgments in Matrimonial Matters Regulation.53 This sets out the rules regarding which court is seised with responsibility for a family law case when proceedings are lodged in two separate Member States. In the instant case, judicial separation proceedings had been lodged in the Irish High Court and, on the same day, divorce proceedings had been lodged in the Family Law Court in England. The Irish High Court had determined that, under the Regulation, the English Court was seised. This decision was appealed to the Court of Appeal, which referred two questions regarding the interpretation of Article 16 of the Regulation. Article 16(1)(a) states that a court is seised ‘… at the time when the document instituting the proceedings or an equivalent document is lodged with the court …’. The referring Court asked whether this meant a) the time at which the document instituting the proceedings is received by the Court even if such receipt does not of itself immediately commence the proceedings in accordance with national law or b) the time at which, following receipt of the document instituting the proceedings by the court, the proceedings are commenced in accordance with national law?54 With respect to the Regulation, the Court held that the Union legislature had adopted a single definition of when a court was seised, which was brought about by the performance of a single act—the lodging of the document instituting the proceedings or the serving of the same document. However, this definition also took account of whether any necessary secondary act was actually performed.55 By way of clarification, the Court stated that the time at which the court is seised is dependent on one, and not two, acts. The court becomes seised once the relevant document is lodged, but depending on the applicant also doing any further acts required of him.56 As such, so long as the requirements of Article 16(1) are fulfilled, the relevant court will be determined to be seised, ‘… irrespective of any national procedural rule

51 

MM v Minister for Justice and Equality (n 38) [51]. MM v Minister for Justice and Equality (n 38) [54]. Case C-173/16 MH v MH EU:C:2016:542; Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1. 54  Ibid [15]. 55  Ibid [25]. 56  Ibid [26]. 52  53 

204  The Irish Yearbook of International Law 2016–17 intended to determine when and in what circumstances proceedings are initiated or are considered to be pending …’.57 The Recognition of Judgments in Matrimonial Matters Regulation was also at issue in Child and Family Agency v JD, where the Supreme Court referred a number of questions surrounding the interpretation of Article 15.58 This provision allows for the transfer of a case concerning a child to a different Member State, if the initial court considers that the court in the second state would be ‘better placed’ to hear the case.59 The child in this case, R, had been born in Ireland. The child’s mother, D, a UK national, had moved to Ireland a few weeks before the birth. Her first child was in institutional care in the UK following physical abuse undertaken by D. The UK authorities had been taking steps to provide for the fostering of R following the birth. When R was born, the Child and Family Agency secured an order in the Circuit Court providing for the child to be fostered. D had visitation rights, which she ­exercised. The Child and Family Agency subsequently made an application to the High Court under Article 15 of the Regulation seeking to have the case transferred to the High Court of England and Wales. The order was granted, but D appealed this to the Supreme Court, which then referred a number of questions. In the first of these, the national court asked whether an application under ­Article 15 of the Regulation meant that a child welfare authority of the State to which the case was being transferred would have to commence a separate set of proceedings. The Court of Justice replied that this was the case.60 It further stated that it was permissible that this new set of proceedings may take account of facts and evidence that were different to those discussed in the original case in the first jurisdiction.61 The next set of issues concerned the interpretation of the terms ‘best interests of the child’ and ‘better placed’, and how they interacted. As neither were defined in the Regulation, it was up to the Court to determine their meaning within the context of the objectives of the legislation. The Court noted that the principle of ‘best interests of the child’ was to ensure the protection of the child’s fundamental rights, and that generally, this was secured through the proximity criterion being applied, whereby the case was decided in the jurisdiction where the child was habitually resident at the time the case started.62 Article 15 of the Regulation constituted a derogation to this, so the national court requesting the transfer of jurisdiction must therefore rebut the strong presumption in favour of maintaining its own jurisdiction.63 A transfer could be made where there was a ‘particular connection’ between the child and the new jurisdiction and the factors used to determine this were set out in Article 15(3)(a) to (e).64 Having discussed these factors, the Court held that the 57 

Ibid [29]. Case C‑428/15 Child and Family Agency v JD EU:C:2016:819; Regulation 2201 (n 53). Regulation 2201 (n 53) Article 15(1). 60  Child and Family Agency v JD (n 58) [36], 38. 61  Child and Family Agency v JD (n 58) [37]. 62  Child and Family Agency v JD (n 58) [44]–[46]. 63  Child and Family Agency v JD (n 58) [48]–[49]. 64  Child and Family Agency v JD (n 58) [50]–[51]. 58  59 

Correspondent Reports—O’Gorman 205 national court making a determination under Article 15(1) must compare the child’s relationship to the State of first jurisdiction under the usual proximity criterion, with its relationship to the State of proposed jurisdiction, as outlined by the five factors.65 Having considered this, the national court has to determine whether there is a court in the State of the proposed jurisdiction that is better placed to hear the case, where that court would ‘provide genuine and specific added value’.66 The national court should take account of the procedural rules of the other Member State, but should not examine the substantive law of that state, as that would undermine the principle of mutual trust between Member States. Finally, the national court should determine that there would be no detrimental effect from transferring the case to the other Member State, considering any negative effects it would have on the familial, social and emotional attachments of the child.67 The final issue the Court had to address was whether the court hearing the case had to consider any impact of a decision to move the case would have on free movement rights, and consideration of why the mother of the child exercised this right in the first place.68 The Court noted that Article 15 and any decision to transfer a case were based on the ‘best interests of the child’ principle. The impact of the transfer of jurisdiction on the child was therefore one of the issues to be taken account of in the overall decision.69 The impact on other persons’ free movement rights, including the mother’s in this case, should not be considered unless they were of direct relevance to the best interests of the child.70 Fundamental Rights In Pardue the Court of Justice resisted any temptation to seek to widen the remit of the Charter of Fundamental Rights of the European Union by applying it to situations beyond those outlined in Article 51.71 The District Court had made a reference, concerning potential breaches of the rights of an individual who had been arrested on three separate occasions in respect of the same incident, where on the initial two occasions, the charges had been thrown out by the Court on the basis that the prosecution had not brought forward a book of evidence.72 The Court queried whether the Irish Director of Public Prosecutions had breached the applicant’s rights under Articles 6, 20, 41, 47 and 48 of the Charter. The District Court judge supplied no rationale demonstrating how the matter fell within the scope of Union law and this was quickly seized upon by the Court of Justice, which noted that Article 51(1) of the Charter stated its provisions only

65 

Child and Family Agency v JD (n 58) [54]. Child and Family Agency v JD (n 58) [56]–[57]. 67  Child and Family Agency v JD (n 58) [58]–[59]. 68  Child and Family Agency v JD (n 58) [62]. 69  Child and Family Agency v JD (n 58) [63]–[64]. 70  Child and Family Agency v JD (n 58) [65]–[66]. 71  Charter of Fundamental Rights of the European Union [2012] OJ C 326/2; Case C‑321/16 Maria Isabel Harmon v Owen Pardue EU:C:2016:871. 72  Ibid [4]–[11]. 66 

206  The Irish Yearbook of International Law 2016–17 applied to the Member States when they are implementing EU law, while both­ Article 51(2) of the Charter and Article 6(1) TEU state that the Charter does not extend the competence of Union law.73 As such, ‘where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction’.74 Equal Treatment In Parris v Trinity College the Court had to address legal matters arising from the introduction of civil partnership legislation for same-sex couples in Ireland (prior to the subsequent introduction of full marriage equality).75 The applicant had worked in Trinity College as a lecturer for 38 years, prior to taking early retirement at the end of 2010. On so doing, he was informed that under the rules of his occupational pension scheme, a survivor’s pension would only be available to his partner if they had contracted a civil partnership prior to him turning 60. At this time, the applicant was 63 and, while he had a civil partnership recognised in the UK, the relevant legislation providing for civil partnerships in Ireland was not yet in force. The Civil ­Partnership Act 2011 finally came into force on 1 January 2011 and Mr Parris’ UK civil partnership was recognised on 12 January. The applicant challenged the refusal to provide the survivors pension in the Equality Tribunal and subsequently the Labour Court, with the latter making a number of references to the Court of ­Justice, essentially asking if the Irish legislation breached the Equal Treatment ­Directive on the basis of discrimination on the grounds of sexual orientation, age or a combination of the two.76 The first question asked whether discrimination on the grounds of sexual orientation in breach of Article 2 of the Directive occurred as a result of the national rule which only allowed the survivors pension to be paid if the couple had been in a civil partnership prior to the applicant’s 60th birthday, in a situation where national law did not allow for a civil partnership prior to the applicant’s 60th birthday. Having found that the benefit at issue did constitute ‘pay’ for the purposes of Article 157 of the Treaty on the Functioning of the European Union (TFEU),77 the Court examined whether direct discrimination was occurring. Having determined that the requirement of having a civil partnership before the age of 60 also applied to heterosexual couples in respect of being married at that age in order to claim the benefit, the Court held that direct discrimination was not apparent.78 Moving to consider indirect discrimination, the Court noted that the applicant could not meet the condition of the

73 

Ibid [18]. Ibid [19]. 75  Case C‑443/15 David L Parris v Trinity College Dublin, Higher Education Authority EU:C:2016:897. 76  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 77  David L Parris v Trinity College Dublin (n 75) [40]. 78  David L Parris v Trinity College Dublin (n 75) [47]–[50]. 74 

Correspondent Reports—O’Gorman 207 pension scheme due to the lack of relevant civil partnership legislation in I­ reland at the necessary time.79 The Court noted that Recital 22 of the Directive states that the legislation was to be applied without prejudice to national laws on marital status.80 Significantly, the Court declared that Member States were … free to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect.81

As such, EU law did not compel Ireland to provide for either marriage or civil ­partnership for same-sex couples, require any civil partnership legislation to have retrospective effect, or for specific transitional provisions to be implemented.82 Therefore, there was no indirect discrimination on the grounds of sexual orientation. Regarding the issue of discrimination on the basis of age, the national tribunal asked whether Articles 2 and 6 of the Directive were breached by the rule of the pension scheme. Article 6(2) permitted the use of determined ages for admission or entitlement to various benefits, so long as the use of such age did not constitute sex discrimination. As the rule of the pension scheme in question set out an age limit for entitlement to the benefit, it was a rule covered by Article 6(2) and was not discrimination on the basis of age.83 Finally, the Court rejected the suggestion that there was a new category of ­discrimination prohibited under the Directive, formed by the combination of two of the existing grounds of discrimination, when evidence of discrimination on the basis of either ground on its own had not been established.84 Taxation In European Commission v Ireland the Commission was taking an Article 258 TFEU action against the State on the grounds that the system whereby vehicle registration tax (VRT) was charged on vehicles rented by Irish citizens in other Member States and used in Ireland was an infringement of Article 56 TFEU.85 At issue were sections of the Finance Act 1992.86 This required that, when an Irish citizen rented a vehicle in another Member State and brought it into Ireland, an entire year’s worth of VRT had to be paid on it upfront, even if the vehicle was only in Ireland for part of that period. While there was provision for the refunding of the tax paid if the vehicle did not remain in Ireland for the entire year, this involved a €500 administration charge, a compulsory technical examination and the potential loss of interest. Ireland sought to justify the measures on the basis that the national measures represented a choice

79 

David L Parris v Trinity College Dublin (n 75) [56]. David L Parris v Trinity College Dublin (n 75) [57]. David L Parris v Trinity College Dublin (n 75) [59]. 82  David L Parris v Trinity College Dublin (n 75) [60]. 83  David L Parris v Trinity College Dublin (n 75) [74]–[75]. 84  David L Parris v Trinity College Dublin (n 75) [80]–[81]. 85  Case C‑552/15 European Commission v Ireland EU:C:2017:698. 86  The Finance Act 1992 (No 9 of 1992). 80  81 

208  The Irish Yearbook of International Law 2016–17 made by Ireland to use residence as a criterion for exercising its powers of taxation, that there were environmental protection reasons for the measures, that they helped safeguard competition and the coherence and effectiveness of the regime governing the registration tax and finally that any change would give vehicle renting companies based in Northern Ireland a competitive advantage.87 There had been an extensive pre-litigation procedure, with letters of notice and response passing between the Commission and Ireland. Following the expiration of the time period provided for in the final reasoned opinion, the Irish Government agreed to make certain changes to the way in which the scheme was implemented, providing for the payment of interest and reducing the repayment administrative charge to €100.88 However, the Court determined that these changes could not be considered as they had occurred outside of the time period set down for compliance.89 The Court noted that taxation of motor vehicles had not been harmonised at Union level.90 However, it determined that the obligation to pay the entire VRT in advance did constitute a disincentive to Irish citizens living in Ireland from renting vehicles from service providers in other Member States, and thus represented a potential infringement of Article 56 TFEU.91 The Court then proceeded to examine the possible justifications for this restriction. It noted that while the issue of motor taxation did fall within national competence, this competence still had to be operated in a way that was compatible with Union law.92 Responding to Ireland’s argument that the measure was necessary to cover the costs of road wear and tear caused by vehicles, the Court determined that purely economic justifications could never be used as a reason to limit the freedom to provide services.93 The Court gave detailed consideration to Ireland’s argument that there was an environmental justification for the measures, as the VRT scheme was linked to the carbon dioxide emissions of vehicles. It noted that discouraging the use of vehicles with heavy fuel consumption may have a public-interest objective.94 However, it found that the system in operation here was not linked to the duration of the use of the vehicle.95 The objective of protecting the environment could have been achieved in a more proportionate manner, in that at the time of registration, a tax could be levied on vehicles consistent with their usage.96 Ireland also objected to the notion that a system could be set up whereby an initial tax payment would be made, followed by a balancing payment at the end of the period of use, as this could risk the loss of revenue.97 However, the Court found that Ireland’s claim regarding the risk of the impossibility of recouping the tax was unfounded.98 87 

European Commission v Ireland (n 85) [13]. European Commission v Ireland (n 85) [20]. European Commission v Ireland (n 85) [35]–[37], 69. 90  European Commission v Ireland (n 85) [71]. 91  European Commission v Ireland (n 85) [82]. 92  European Commission v Ireland (n 85) [86]–[87]. 93  European Commission v Ireland (n 85) [89]. 94  European Commission v Ireland (n 85) [90]. 95  European Commission v Ireland (n 85) [98]. 96  European Commission v Ireland (n 85) [99]. 97  European Commission v Ireland (n 85) [103]. 98  European Commission v Ireland (n 85) [106]. 88  89 

Correspondent Reports—O’Gorman 209 Finally, the Court had to rule on the Commission’s contention that the conditions placed around the refund of the VRT (no interest payment, €500 administrative fee) were disproportionate. Ireland conceded the point on the lack of interest­ payments.99 The State could not directly link the charge to the individual cost of each application for a refund, but rather attempted to connect it to the costs of establishing the entire system of refunds.100 The Court noted that the Advocate General had stated that the costs of the organisation of a refund system cannot be financed by deductions from amounts due to persons entitled to repayment.101 As such, this element of the national system was also found to be disproportionate. In National Roads Authority v The Revenue Commissioners, the Court of Justice dealt with a reference from the Appeal Commissioners, the independent body created to hear appeals against decisions of the Revenue Commissioners.102 At issue was whether the National Roads Authority (NRA) was obliged to charge VAT on toll booth transactions it undertook on toll roads it operated. Under Article 13(1) of the VAT Directive, ‘bodies governed by public law’ were not to be considered taxable persons within the meaning of the Directive.103 However, the provision also stated that where a body governed by public law is engaged in ‘activities or transactions’, they are to be regarded as a taxable person if not doing so would ‘lead to significant distortions of competition’. The NRA was a state body, governed by public law, established to manage the national roads network. It had the right to impose tolls on certain roads and also enter into agreements with third parties, allowing them to impose tolls on roads.104 The key issue concerned whether the NRA was involved in competition or potential competition with private operators, to the extent to which it could not benefit from the exemption that bodies governed by public law gained under the VAT Directive. Examining earlier jurisprudence on the issue, the Court recalled that a significant distortion of competition would be evaluated taking into account the activity in question and by reference to both actual, but also potential, competition.105 The latter would not be established in the event of a ‘purely theoretical possibility of a private operator entering the relevant market’.106 It also found that the mere presence of private operators on a market, without account being taken of matters of fact, objective evidence or an analysis of the market, cannot demonstrate the existence either of actual or potential competition or of a significant distortion of competition.107

99 

European Commission v Ireland (n 85) [117]. European Commission v Ireland (n 85) [121]. European Commission v Ireland (n 85) [122]. 102  Case C‑344/15 National Roads Authority v The Revenue Commissioners EU:C:2017:28. 103  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L347/1 (‘the VAT Directive’). 104  National Roads Authority v The Revenue Commissioners (n 102) [9]–[15]. 105  National Roads Authority v The Revenue Commissioners (n 102) [41]. C-79/09 Commission v Netherlands, not published, EU:C:2010:171 [91] and the case law cited, and of 29 October 2015, C-174/14 Saudaçor, EU:C:2015:733 [74]. 106  National Roads Authority v The Revenue Commissioners (n 102) [42]. 107  National Roads Authority v The Revenue Commissioners (n 102) [44]. 100  101 

210  The Irish Yearbook of International Law 2016–17 Examining the factual situation, the Court determined that the only way private operators could enter the market of providing access to road infrastructure on payment of a toll was if the NRA permitted them.108 There was no possibility of a private operator providing rival road infrastructure.109 In light of these conclusions, the NRA could not be regarded as being in competition with private operators.110 As such, the NRA did not lose its exemption as a non-taxable person for the purpose of VAT payment. The question of competence over tax policy featured prominently following the decision of the European Commission that Ireland had provided illegal state aid in the form of undue tax benefits to Apple, valued at over €13 billion.111 The decision, strongly contested by the Irish Government, required Ireland to seek repayment of the unpaid taxes from Apple for the years 2003 to 2014, plus interest. The Commission found that a tax ruling by the Irish Revenue Commission, which endorsed a profit allocation method for two Irish incorporated companies (Apple Sales International and Apple Operations Europe), each fully-owned by the Apple group, which departed from a market-based outcome in line with the arm’s length principle, gave those companies a competitive advantage compared to other firms.112 Both Ireland and Apple rapidly initiated Article 263 TFEU procedures, seeking the annulment of the Commission’s Decision.113 In light of Ireland’s challenge to the Decision, it had not implemented the recovery of the alleged underpaid taxes, which led to a threat by the Commission in October 2017 to pursue a separate case against Ireland in the Court of Justice for failure to implement the decision.114 A subsequent agreement between Ireland and Apple led to the establishment of an escrow account, which Apple will begin paying into from early 2018, while the action for annulment is pending before the General Court.115 Financial Crisis In Dowling and Others v Minister for Finance, the Court of Justice had to address measures undertaken by the Irish Government in response to the economic crisis and mandated by the economic adjustment programme that was entered into with the Troika.116 At issue was a challenge to the Irish Government’s recapitalisation of the Permanent TSB building society. Using section 7 of the Credit Institutions (Stabilisation) Act 2010, the Minister for Finance had made a ‘Direction Order’ to

108 

National Roads Authority v The Revenue Commissioners (n 102) [46]. National Roads Authority v The Revenue Commissioners (n 102) [49]. 110  National Roads Authority v The Revenue Commissioners (n 102) [51]. 111 Commission Decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple [2016] OJ L187/ 1. 112  National Roads Authority v The Revenue Commissioners (n 102) [413]. 113 Case T-892/16 Apple Sales International, Apple Operations Europe and Ireland v Commission EU:T:2017:925. 114  See, https://ec.europa.eu/ireland/news/eu-commission-refers-ireland-to-court-re-apple-tax_en. 115 P Smyth, ‘Government Reaches Agreement on €13bn Apple Tax Account’ The Irish Times (4 December, 2017), available at www.irishtimes.com/business/technology/government-reaches-agreementon-13bn-apple-tax-account-1.3314970. 116  Case C‑41/15 Gerard Dowling and Others v Minister for Finance EU:C:2016:836. 109 

Correspondent Reports—O’Gorman 211 Permanent TSB, increasing its share capital despite this measure being rejected by a general meeting of that company, issuing new shares at a price lower than their nominal value and denying existing shareholders a pre-emptive right to subscribe to this new issue.117 This measure was undertaken as part of the range of obligations the Irish Government had signed up to in the economic adjustment programme. Article 3(7)(g) of the Implementing Decision provided for the recapitalisation of domestic banks.118 The applicants argued that the measures provided for in the Minister’s Direction Order were in breach of provisions of Union law, namely Articles 8, 25 and 29 of the Second Council Directive on the formation of public limited liability companies (‘Second Directive’).119 These provisions required that shares cannot be issued at a price lower than their nominal value (or at least at their accountable par), that increases in capital must be decided upon by the general meeting and if share capital is increased by consideration in cash, the shares must be offered on a pre-emptive basis to shareholders in proportion to their existing shareholding. The core issue was whether, as the Minister argued, the provision of Regulation No 407/2010,120 Implementing Decision 2011/77 and a number of Treaty provisions, particularly Articles 119 and 120 TFEU, permitted Ireland to undertake the various actions, despite the provisions of the Second Directive.121 Discussing the function of the Second Directive, the Court determined that its role was to provide minimal protection for both shareholders and creditors of public limited liability companies, but emphasised that this related ‘to their n ­ ormal ­operation’.122 The Court contrasted this to the provision for a Direction Order, which … is an exceptional measure taken by the national authorities intended to prevent, by means of an increase in share capital, the failure of such a company, which failure, in the opinion of the referring court, would threaten the financial stability of the European Union.123

As such, the protections contained in the Second Directive did not apply against a measure such as this, adopted during a time of serious economic disturbance, linked to a systemic threat to the financial stability of the EU. The fact that the Direction Order was an administrative measure as opposed to a judicial measure did not detract from this position.124 117 

Ibid [43]. Article 3(7)(g) Council Implementing Decision 2011/77/EU of 7 December 2010 on granting Union financial assistance to Ireland [2011] OJ L30/34. 119  Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of [the second paragraph of Article 54 TFEU], in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent [1977] OJ L26/1. 120  Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism [2010] OJ L118/1. 121  Gerard Dowling v Minister for Finance (n 116) [29]. 122  Gerard Dowling v Minister for Finance (n 116) [49]. 123  Gerard Dowling v Minister for Finance (n 116) [50]. 124  Gerard Dowling v Minister for Finance (n 116) [52]. 118 

212  The Irish Yearbook of International Law 2016–17 Public Procurement In the case of Ireland and Aughinish Alumina Ltd v Commission, the General Court had to consider an Article 263 TFEU application for annulment of a Commission decision determining that Ireland had provided illegal state aid to the Aughinish Alumina factory (AAL) on the Shannon estuary, by charging a reduced rate of excise duty on fuel oil it used. The original Commission decision finding a breach of stateaid rules (Alumina Decision I),125 had been adopted in 2005, but had been challenged in both the General Court and the Court of Justice on two separate occasions and had been referred back both times.126 In this hearing of the issue, Ireland argued that there had been an error of law in the classification of the aid at issue in the light of Article 108 TFEU and secondly that there had been an infringement of the principle of legal certainty, the estoppel principle and of Article 8(5) of Directive 92/81.127 The multifaceted range of legal issues that the Court had to address was further complicated by the fact that the Council of Ministers had permitted the exemption of fuel oil from the excise duty via a series of decisions from 1992 to 2006.128 On the issue of estoppel, the Court noted that as this was a common law doctrine, it did not exist as a principle in EU law, so the action on that ground was d ­ ismissed.129 However, the Court also stated that the absence of an estoppel principle … does not mean, however, that certain principles, such as the principles of legal certainty and of protection of legitimate expectations, and certain rules, such as the nemo potest venire contra factum proprium rule enshrined in EU law may not be regarded as connected or related to that principle.130

It also rejected the argument that, by the Commission initiating the state aid procedure under Article 108 TFEU, it was encroaching on the competences of the Council in the field of the harmonisation of excise duty legislation, as the Commission was rightfully undertaking the powers conferred upon it in the area of state aid.131 Nor could the Commission undertaking the state aid procedure be regarded as a misuse of powers, as this term has a set meaning within Union law.132 A broad treaty based argument made by the applicants, that the action of the Commission breached the now repealed Article 3(1)(m) EC and Article 173 TFEU

125  Decision 2006/323/EC concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy [2006] OJ L119/12. 126  Ireland and Others v Commission (T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06; Commission v Ireland and Others (C-89/08 P, ECR, EU:C:2009:742; Ireland v Commission (T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV, ECR, EU:T:2012:134; Commission v Ireland and Others (C-272/12 P, ECR, EU:C:2013:812. 127  Ireland v Commission (n 126) [38]. 128 Decision 92/510/EEC of 19 October 1992 authorising Member States to continue to apply to certain mineral oils, when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81/EEC [1992] OJ L316/16. 129  Ireland v Commission (n 126) [56]. 130  Ireland v Commission (n 126) [56]. 131  Ireland v Commission (n 126) [68]–[69]. 132  Ireland v Commission (n 126) [75].

Correspondent Reports—O’Gorman 213 which, respectively, seek ‘the strengthening of the competitiveness of Community industry’ and that ‘[t]he Community and the Member States shall ensure that the conditions necessary for the competitiveness of the Community’s industry exist …’ was also rejected as unfounded.133 In doing so, the Court noted the Commission’s own submission, with respect to the two Articles that both were designed to ensure that measures could not be introduced that would distort competition.134 In response to the AAL argument that the Commission infringed Article 107(1) TFEU by incorrectly finding that the aid at issue gave it an advantage, as required by the Article in order to classify as state aid, the Court determined that the Commission is not required to carry out an economic analysis of the actual situation on the relevant markets, of the market share of the undertakings in receipt of the aid, of the ­position of competing undertakings or of trade flows between Member States.135

State aid included both subsidies, but also other interventions which might lessen the costs incurred by an undertaking.136 In light of this, AAL’s argument that the exemption was not an ‘advantage’ but merely a compensatory measure that lessened other competitive disadvantages that the company faced when compared with companies in other Member States, was rejected.137 The issue of whether the measure being challenged constituted ‘new aid’, within the meaning of Article 108(3) TFEU, or as ‘existing aid’, as per Article 108(1) TFEU, required a detailed analysis of the engagement between Ireland, the Commission and the Council over almost two decades.138 The applicant’s claim that the excise duty exemption constituted existing aid was based on a number of grounds, including that the Commission’s conduct reflected its own belief that the aid at issue was existing aid,139 that Ireland had originally committed to providing the exemption even before the country joined the European Economic Community.140 The Court found that the fact that the exemption had not been in operation prior to accession and had only been applied from 1983 meant that one of the conditions for a measure to be classified as ‘existing aid’ under Article 1(b)(i) of Regulation No 659/1999 was therefore not satisfied.141 In relation to the legitimate expectation and legal certainty arguments that AAL made in respect of basing its arrangements on the measures introduced by Ireland, the Court held that a company in receipt of aid could not maintain a legitimate expectation that the aid is provided legally until it had been approved under the ­Article 108 TFEU process. A diligent business operator would be able to clarify this.142 133 

Ireland v Commission (n 126) [91]–[92]. Ireland v Commission (n 126) [87]. 135  Ireland v Commission (n 126) [112]. 136  Ireland v Commission (n 126) [117]. 137  Ireland v Commission (n 126) [119]–[120]. 138  Ireland v Commission (n 126) [136]–[137]. 139  Ireland v Commission (n 126) [162]. 140  Ireland v Commission (n 126) [186]. 141  Ireland v Commission (n 126) [203]; Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty [1999] OJ L83/1. 142  Ireland v Commission (n 126) [214]. 134 

214  The Irish Yearbook of International Law 2016–17 Finally, on the issue of delay, the Court found that 49 months had passed between the adoption of the decision to initiate the formal investigation procedure and the adoption of Alumina Decision I,143 and that this length of time could not be justified by the Commission.144 Neither the complexity of the legal issues at hand,145 its claim that it needed additional information,146 or perceived difficulty arising from the evolution of the Community system of taxation of mineral oils,147 were acceptable ­reasons for the time taken. However, despite this finding, the Court did not consider the delay as reasonable grounds to base AAL believing that the Commission no longer had concerns about the excise duty exemption and thus justify a refusal to grant the recovery of the aid.148 The Court found that the delay was ‘… not particularly significant from the perspective of applying the State aid rules to the aid at issue …’.149 Delay would only justify an annulment of the decision if it could be proved that it had undermined the right of defence of AAL, something that was not established by the applicants here.150 Area of Freedom, Security and Justice In Vilkas, the Court of Justice addressed a reference from the Court of Appeal where it had to consider whether the execution of a European Arrest Warrant (EAW) could be prevented due to the deliberate undermining of the process by the person being extradited.151 In the instant case, the High Court had made two separate orders for Vilkas to be extradited from Ireland to Lithuania under the provisions of the EAW. On both occasions, the flight on which he was to be transported could not take off due to his behaviour. Under the EAW Framework Directive, Article 23(2) states someone must be surrendered within 10 days of the final decision of the execution of the arrest­ warrant.152 Under Article 23(3), if the surrender is delayed by circumstances outside either of the Member State’s control, the authorities of that State and the receiving State may agree a new date, and the surrender must take place within 10 days of the new date. Article 23(5) states that following the expiry of the time limits referred to in the Article, if the person is still being held in custody, that person shall be released. Following the second failed attempt to surrender Vilkas, he was returned to the High Court which stated that it lacked the jurisdiction under the Framework Decision to make a third surrender date, and as such ordered him freed. The Minister for 143 

Ireland v Commission (n 126) [237]. Ireland v Commission (n 126) [239]. Ireland v Commission (n 126) [242]. 146  Ireland v Commission (n 126) [244]. 147  Ireland v Commission (n 126) [245]. 148  Ireland v Commission (n 126) [249]. 149  Ireland v Commission (n 126) [255]. 150  Ireland v Commission (n 126) [270]. 151  Case C-640/15 Tomas Vilkas EU:C:2017:39. 152  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 [2009] OJ L81/24. 144  145 

Correspondent Reports—O’Gorman 215 Justice appealed this to the Court of Appeal, which made a preliminary reference, seeking clarification as to whether a national court can make a new surrender date on more than one occasion. The Court of Justice undertook a detailed analysis of Article 23, and how it operated in conjunction with Article 15, which states: ‘The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.’ The Court noted there was no express limit on the number of new surrender dates,153 and that a literal reading of the Framework Decision did not necessarily preclude new surrender dates.154 However, the Court focused on undertaking a purposive interpretation of the provision, in light of its context and the objectives it was pursuing, which was to accelerate judicial cooperation by imposing time limits for adopting decisions relating to a European arrest warrant.155 An interpretation which precluded the possibility of a new surrender date would undermine the effectiveness of the procedures provided for under the Framework Decision.156 Thus, Article 23 was interpreted as allowing another new surrender date when adherence to the first new surrender date was ­prevented by circumstances beyond one of the Member States’ control.157 The Court then considered whether Article 6 of the Charter of Fundamental Rights had any impact on the interpretation. It determined that in the event of the granting of a second new surrender date, it was for the national court executing the EAW to decide if the person was to stay in prison, and that the individual could be released so long as the State put in place measures to prevent absconding.158 In reaching its decision, it had to undertake a concrete review of the situation at hand, taking account of all of the relevant factors, including whether the surrender ­procedure has been carried out in a sufficiently diligent manner and if the duration of the custody was not excessive.159 The Court undertook detailed consideration of whether the fact that the delay in executing the EAW was due to the resistance of the requested person was sufficient to warrant the issuing of a second new surrender date, with a particular focus on textual differences in how the terms ‘force majeure’ and ‘circumstances beyond the control of the Member States’, contained in the Framework Decision had been interpreted in various national languages.160 While it concluded that it was for the national court to determine if the resistance was force majeure,161 it was sceptical as to whether such resistance could be considered an unforeseeable circumstance and, as such, constitute force majeure. The final issue the Court addressed was the consequences of the expiry dates provided for in the Framework Decision and whether a person should remain in

153 

Tomas Vilkas (n 151) [25]. Tomas Vilkas (n 151) [29]. 155  Tomas Vilkas (n 151) [30], [32]. 156  Tomas Vilkas (n 151) [37]. 157  Tomas Vilkas (n 151) [39]. 158  Tomas Vilkas (n 151) [42]. 159  Tomas Vilkas (n 151) [43]. 160  Tomas Vilkas (n 151) [44]–[64]. 161  Tomas Vilkas (n 151) [65]. 154 

216  The Irish Yearbook of International Law 2016–17 custody in the event of a second surrender date being provided. Considering the text of Article 15, the Court determined that it could not be interpreted as meaning that, once the time limits in Article 23 of the Framework Decision have expired, an EAW cannot be executed.162 While Article 23(5) meant that, once the time limits contained in Article 23(3) and (4) were passed, the requested person had to be released, it did not mean that the obligation to execute the arrest warrant was removed from the Member State.163 Harmonisation of Standards In James Elliott Construction Ltd v Irish Asphalt Ltd, the Court of Justice considered a case concerning litigation on the issue of the contamination of building material by the mineral pyrite.164 The applicant had constructed a youth centre in Ballymun which was subsequently rendered unusable due to cracking in the walls and floors. The applicant took legal action against the defendant, alleging that the cracks were due to the presence of pyrite in rock material supplied by the latter.165 The applicant succeeded in the High Court and, on appeal to the Supreme Court, a number of issues were referred to the Court of Justice. The primary question was whether Sections 10(2) and (3) of the Sale of Goods and Supply of Services Act 1980, which implies a condition of merchantable quality into contracts for the sale of goods, had to be interpreted in harmony with the Construction Products ­Directive.166 The Directive provided how national quality standards for materials used in the ­construction process would be harmonised across the Member States. The first issue to be addressed was whether the Court had jurisdiction to give an interpretation on a domestic standard transposing a harmonised Union standard, when a question about the domestic standard was raised in proceedings between private entities. The Court noted that such harmonised standards were published in the C-series of the Official Journal of the European Union and publication within it gave a presumption of conformity with the basic elements of the Directive.167 As such, the standard forms part of EU law, as it is by reference to the standard that the provisions of the Directive apply to a particular product.168 The Court noted that the development of the standard was also mandated by the Directive.169 The second issue concerned whether the only way in which non-compliance with the national standard transposing the Union standard was through those tests outlined within the Directive.170 The Court determined that neither the Directive nor

162 

Tomas Vilkas (n 151) [67]–[69]. Tomas Vilkas (n 151) [70]. 164  Case C-613/14 James Elliott Construction Ltd v Irish Asphalt Ltd EU:C:2016:821. 165  Ibid [23]–[25]. 166  Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products [1989] OJ L40/12. 167  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [37]–[8]. 168  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [40]. 169  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [44]. 170  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [48]. 163 

Correspondent Reports—O’Gorman 217 the harmonised standard itself replaced the national rules applicable to proof in the context of a contractual dispute such as that in the main proceedings.171 As such, the national court was not bound as regards the method of establishing if the product supplied had met the required standard.172 The next question was whether the national court had to place an assumption of fitness for use on a product when it was manufactured in accordance with the harmonised standard, when interpreting a generally applicable national law which requires that goods are of merchantable quality.173 The Court noted that the provisions of the Directive were designed to allow the free circulation of goods which met the requirements of the harmonised standard.174 This did not mandate the harmonisation of national rules on contractual terms and as such, the presumption of fitness for use did not apply in this contractual dispute.175 Case law on incidental horizontal direct effect impacted on the final issue the Court had to address. It had to determine if the national legislation about ­merchantable quality was a ‘technical regulation’ within the meaning of Art 1(11) of ­Directive 98/34 and whether, as required by that provision, Ireland’s failure to notify the C ­ ommission of this particular national law meant that it could not be relied upon in the instant case.176 Noting that it had previously determined that nonnotification of technical regulations can be raised in proceedings between individuals, the Court examined the national legislation to see if it constituted such a technical regulation.177 Noting how the term was defined within the Directive and within case law, the Court determined that the Irish legislation did not fall within this definition.178 CONCLUSION

The period covered saw a continuation of the pattern where the Article 267 TFEU process is used by courts and tribunals beyond the superior courts, with references coming from the District Court, the Labour Court and the Appeals Commissioners. Immigration and asylum cases continue to feature as preliminary references, along with the protection of fundamental rights in both the domestic criminal law situation, and in attempts to undertake extradition. The case concerning VRT illustrates the continued relevance of national sovereignty to the issue of taxation and highlights an argument that will take centre stage in the battle over Apple’s alleged tax liability to Ireland. The presence of a case concerning measures taken by the Irish

171 

James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [52]. James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [53]. 173  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [54]. 174  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [57]. 175  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [58]–[59]. 176  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services [1998] OJ L204/37. 177  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) 64–65. 178  James Elliott Construction Ltd v Irish Asphalt Ltd (n 164) [67]–[71]. 172 

218  The Irish Yearbook of International Law 2016–17 Government in the midst of the financial crisis is a reminder of the still too-slow pace of the administration of justice before the Union courts. Finally, it is worth noting that three of the cases discussed here involved Irish and or British citizens exercising their free movement rights between the two states (MH v MH, Child and Family Agency v JD, Parris v Trinity College) while a fourth required discussion of the consequences of the land border in Northern Ireland for free movement of services (European Commission v Ireland). Post Brexit the legislative framework around such cases will be different, the range of rights may well be restricted and whatever legal certainty applicants coming before courts in both Ireland and the UK once had will be undermined.

Ireland and International Law 2016 and 2017 DR DUG CUBIE*

INTRODUCTION

T

WO KEY GLOBAL events had a profound effect on Ireland’s bilateral and multilateral relationships over the course of 2016 and 2017. First of all, despite the extensive preparatory work undertaken by the Irish Government and diplomats during 2015,1 the slim majority vote in favour of the United Kingdom leaving the European Union (‘Brexit’) on 23 June 2016 came as a surprise to many. The ramifications for Ireland resulting from Brexit, not least in terms of the status of the future border arrangements with Northern Ireland and the implications for Irish business, continue to be played out. Second, the election of Donald Trump as ­President of the United States of America on 8 November 2016 has impacted a multitude of foreign policy arenas, from the future of US multinational corporations in Ireland to global peace and security. Ireland’s centenary year of 2016 commenced with a visit by the Minister for ­Foreign Affairs and Trade, Charlie Flanagan TD, to New York to launch a 1916 Easter Rising commemorative programme. Reflecting on the deep links between ­Ireland and America, not least arising from the Peace Process in Northern Ireland, Minister Flanagan noted: The special relationship between Ireland and the United States is long and enduring. ­America is the only foreign country specifically referenced in the 1916 Proclamation and, as such, merits special attention in this important centenary year.2

Following the general election in February 2016, both parties in the Fine GaelLabour coalition lost substantial numbers of seats, with Fine Gael down from 76 to 50 seats and Labour down from 33 to seven seats. However, Fine Gael remained the largest party in the Dáil, with Fianna Fáil on 44 seats and Sinn Féin

* 

University College Cork. As reported in International Yearbook of International Law (IYIL), Volume 10, 2015 (Oxford, Hart Publishing, 2017). 2  Department of Foreign Affairs and Trade (DFAT), ‘Minister Flanagan to Launch USA Ireland 2016 Centenary Programme’, Press Release (5 January 2016). 1 

220  The Irish Yearbook of International Law 2016–17 on 23 seats. Independents and smaller parties obtained 34 seats.3 Due to their poor result, Labour decided not to return into government, and Fine Gael entered into a minority government supported by Fianna Fáil via a confidence and supply agreement.4 Key government personnel changes that took place during the reporting period were the resignation of Enda Kenny TD as leader of Fine Gael and Taoiseach [Prime Minister] on 17 May 2017,5 and the subsequent election of Leo Varadkar TD as the new Fine Gael leader and Taoiseach.6 Simon Coveney TD was appointed ­Minister for Foreign Affairs and Trade (with responsibility for Brexit) in June 2017, following Charlie Flanagan’s appointment as Minister for Justice and Equality. Simon Coveney was also appointed as Tánaiste [Deputy Prime Minister] in ­November 2017 following the resignation of Frances Fitzgerald TD. Ciarán Cannon TD was appointed as Minister of State at the Department of Foreign Affairs and Trade with special responsibility for the Diaspora and International Development in June 2017, s­ ucceeding Joe McHugh TD. As a result of the two calendar years that this report covers, by necessity not all events of relevance for Ireland and international law can be addressed. Therefore, this report aims to highlight some of the key issues and themes that arose during 2016 and 2017, as well as specific statements made and commitments entered into by the Irish Government in the reporting period. INTERNATIONAL AGREEMENTS

Ever since the first use of nuclear weapons in Hiroshima and Nagasaki at the end of World War Two,7 the world has faced a potentially existential threat from the use of weapons that can destroy vast areas and contaminate the global environment for hundreds of years. During 2017 potential for nuclear attack was at its highest since the depths of the Cold War and the Cuban Missile Crisis in 1962. The escalating nuclear and ballistic missile testing by the Democratic People’s Republic of Korea (DPRK), led by Kim Jong-un, and corresponding responses by US President Donald Trump starkly highlighted the fragility of the nuclear peace which has held for the past 70 years. After missile testing by the North Korean regime in August 2017 accompanied by a threat to teach the US a ‘severe lesson’, President Trump announced via Twitter that North Korea ‘will be met with fire and fury like the

3 ‘Election 2016: Results’ RTÉ News Online (3 March 2016), available at www.rte.ie/news/ election-2016/ (last accessed 6 August 2018). 4  See, eg, S Collins, ‘Seismic Shift Sends Irish Politics into New Phase’ The Irish Times (28 February 2016); F Kelly, ‘The Full Document: Fine Gael-Fianna Fáil Deal for Government’ The Irish Times (3 May 2016). 5  F Kelly and S Bardon, ‘Enda Kenny Announces Resignation as Fine Gael Leader’ The Irish Times (17 May 2017). 6 ‘Fianna Fáil to Facilitate Election of Varadkar as Taoiseach’ RTÉ News Online (7 June 2017), ­available at www.rte.ie/news/2017/0607/880782-varadkar-meetings/ (last accessed 6 August 2018). 7  For a first-hand account by a Red Cross delegate of the devastation in Hiroshima three weeks after the attack, see M Junod, Warrior without Weapons (International Committee of the Red Cross, 1982: first published 1947).

Correspondent Reports—Cubie 221 world has never seen’ if it threatened the United States again.8 In more diplomatic language, as part of his speech at the UN General Assembly in September 2017, Minister for Foreign Affairs and Trade, Simon Coveney TD, remarked: I understand that I will be followed today on the podium by the representative from the DPRK, and I would urge him to deescalate the provocative language and tensions of this week. This is a conflict that the world does not need, and we need to move away from.9

Amongst the chorus of condemnation of the use of provocative rhetoric by both sides, the Elders urged the leaders of the United States and of the DPRK to search for a peaceful solution to the crisis.10 Former UN Secretary-General, Kofi Annan, stressed: The current situation in the Korean peninsula is deeply alarming. The current crisis clearly demonstrates the wider dangers and instability caused by nuclear weapons, made worse by the increasing reluctance of nuclear armed states to pursue disarmament.11

Against this worrying backdrop, there were however some positive moves. In particular, on 7 July 2017 the UN adopted the historic Treaty on the Prohibition of Nuclear Weapons.12 Building on the International Court of Justice’s Advisory Opinion on the Legality of Nuclear Weapons13 and the Nuclear Non-Proliferation Treaty,14 state parties to the Convention undertake to ‘never under any circumstances’, inter alia, develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices; or to use or threaten to use nuclear weapons or other nuclear explosive devices.15 In welcoming the adoption of the Treaty, Minister for Foreign Affairs and Trade, Simon Coveney TD, noted that I­reland has ‘consistently been in the vanguard of the move for nuclear ­disarmament since we

8  ‘Trump Vows New Nth Korean Threats will be Hit with “Fire and Fury”’ RTÉ News Online (8 August 2017), available at www.rte.ie/news/world/2017/0808/896077-trump-north-korea/ (last accessed 6 August 2018). For analysis, see V Grzelczyk, ‘Trump’s “Fire and Fury” Fuels North Korea’s Propaganda Machine’ RTÉ Brainstorm (25 September 2017), available at www.rte.ie/eile/brainstorm/2017/0810/896415trumps-fire-and-fury-is-a-gift-to-north-koreas-prop/ (last accessed 6 August 2018). See also DFAT, ‘Statement by Minister Coveney on North Korean Nuclear Weapons Test’, Press Release (4 September 2017). 9  DFAT, ‘Minister for Foreign Affairs & Trade Simon Coveney, T.D. Address United Nations General Assembly’, Speech (24 September 2017). 10 The Elders are a group of former world leaders founded by Nelson Mandela, and currently includes inter alia former US president Jimmy Carter, former Irish president and UN High Commissioner for Human Rights Mary Robinson, and Archbishop Desmond Tutu. For more information, see www.theelders.org (last accessed 6 August 2018). 11 The Elders, ‘The Elders Urge Strong Multilateral Response to DPRK Nuclear Tensions’, Press Release (21 September 2017). 12 UN, Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017), C.N.476.2017. TREATIES-XXVI.9 (Depositary Notification). As of 12 December 2017, 54 states have signed the Convention, including three states which have ratified the Convention (Guyana, The Holy See, and Thailand). None of the acknowledged nuclear weapon-possessing states have signed or ratified the Convention. 13  International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. 14 UN, Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 161 (adopted 1 July 1968, entered into force 5 March 1970). 15  Article 1(1), Treaty on the Prohibition of Nuclear Weapons (n 12).

222  The Irish Yearbook of International Law 2016–17 joined the UN over sixty years ago’.16 Ireland signed the Treaty in S­ eptember 2017, at which point Minister Coveney stressed: [T]he Government of Ireland will move swiftly to ratify the Treaty and we urge other States to do likewise. We have a deep sense of the risks and catastrophic consequences of any use of nuclear weapons; risks and consequences which, considering the current security environment in the DPRK, remain at the forefront of our minds and serve to heighten our ambition to prohibit these weapons.17

Reflecting the increasing international commitment to the prohibition and elimination of nuclear weapons, the Nobel Peace Prize for 2017 was awarded to the International Campaign to Abolish Nuclear Weapons (ICAN). In accepting the prize, and reflecting the tensions between North Korea and the United States of America, ICAN Executive Director, Beatrice Fihn, warned that ‘the deaths of millions may be one tiny tantrum away’.18 Minister Coveney warmly congratulated ICAN and reiterated that: Nuclear disarmament has been a priority for Ireland from the outset of our membership of the United Nations. […] Ireland will continue to support the work of civil society organisations including the International Campaign to Abolish Nuclear Weapons to achieve this goal.19

December 2017 also marked the twentieth anniversary of another key arms control agreement—the Anti-Personnel Mine Ban Convention (also known as the Ottawa Treaty). Noting that Ireland was the second state in the world to sign and ratify the Ottawa Treaty, Minister Coveney reiterated that: Ireland continues to support the Ottawa Convention and remains one of the world’s most committed and biggest donors to humanitarian mine action, providing €38 million between 2006 and 2016. We support and believe in the vision of a world free of landmines by 2025, and will continue our endeavours to reach this key objective for humanity.20

Meanwhile, in April 2017, the Minister for Foreign Affairs and Trade, Charlie ­Flanagan TD, unreservedly condemned an alleged chemical weapons attack in Syria, and reiterated that: ‘Those responsible for this appalling act and for all the war crimes and crimes against humanity in Syria must be held accountable.’21

16 DFAT, ‘Statement by Minister Coveney on the UN Adoption of a Treaty on the Prohibition of Nuclear Weapons’, Press Release (7 July 2017). 17 DFAT, ‘Ireland Signs Ground-Breaking Treaty on the Prohibition of Nuclear Weapons’, Press Release (20 September 2017). 18 ‘Nobel Peace Prize Winner Ican Warns Nuclear War ‘A Tantrum Away”’, BBC News Online (10 December 2017), available at www.bbc.com/news/world-europe-42298453 (accessed 6 August 2018). 19 DFAT, ‘Minister Welcomes Nobel Peace Prize to International Campaign to Abolish Nuclear ­Weapons’, Press Release (6 October 2017). 20 DFAT, ‘Celebrating the 20th Anniversary of the Anti-Personnel Mine Ban Convention (Ottawa Treaty)’, Press Release (7 December 2017). 21  Department of Foreign Affairs and Trade, ‘Statement by Minister Flanagan on Alleged Chemical Weapons Attack in Syria’, Press Release (4 April 2017).

Correspondent Reports—Cubie 223 List of Multilateral Agreements that Entered into Force during 2016 The following is a list of the multilateral agreements that entered into force for ­Ireland during 2016.22 ITS Number No 1 of 2016

Title of Agreement Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund, done at Brussels on 21 May 2014. Ireland’s Instrument of Ratification deposited on 26 November 2015, entered into force on 1 January 2016

No 2 of 2016

Additional Protocol to the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, to take account of the accession of Croatia to the European Union, done at Brussels on 25 March 2014. Concluded on behalf of the European Union and its Member States on 11 November 2014 and the Republic of Korea on 22 December 2015, entered into force on 1 January 2016

No 5 of 2016

Singapore Treaty on the Law of Trademarks, done at Singapore on 27 March 2006. Ireland’s Instrument of Accession deposited on 21 December 2015, entered into force with respect to Ireland on 21 March 2016

No 6 of 2016

UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, done at Paris on 17 October 2003. Ireland’s Instrument of Ratification deposited on 22 December 2015, entered into force with respect to Ireland on 22 March 2016

No 7 of 2016

Cooperation Agreement on Satellite Navigation between the European Union and its Member States and the Kingdom of Norway, done at Brussels on 22 September 2010. Ireland’s notification of the completion of the procedures necessary for the entry into force of this Agreement deposited on 22 April 2013, entered into force on 1 April 2016

No 8 of 2016

Protocol to the Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 17 December 2014. Concluded on behalf of the European Union and its Member States on 26 November 2015 and the Russian Federation on 29 March 2016, entered into force on 1 April 2016 (continued)

22  Details of multilateral agreements that entered into force in 2017 were not available at time of writing this Report, but can now be accessed on the DFAT website: https://www.dfa.ie/our-role-policies/international-priorities/international-law/find-a-treaty/treatyresults/?bilat_multilat=&search_depository=&its_ no_1=&its_no_2=&search_keywords_title=&search_party=&year_search=2017.

224  The Irish Yearbook of International Law 2016–17 ITS Number

Title of Agreement

No 9 of 2016

Protocol of 3 June 1999 for the Modification of the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, done at Vilnius (Vilnius Protocol), with its annex, the Convention concerning International Carriage by Rail (COTIF 1999), as amended, done at Vilnius on 3 June 1999. Ireland’s Instrument of Accession deposited on 14 April 2016, entered into force with respect to Ireland on 14 April 2016

No 11 of 2016 Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part, done at Brussels on 27 June 2014. Ireland’s Instrument of Ratification deposited on 17 April 2015, entered into force on 1 July 2016 No 12 of 2016 Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, done at Brussels on 27 June 2014. Ireland’s Instrument of Ratification deposited on 17 April 2015, entered into force on 1 July 2016 No 13 of 2016 Cooperation Agreement on a Civil Global Navigation Satellite System (GNSS) between the European Community and their Member States, of the one part, and the Republic of Korea, of the other part, done at Brussels on 9 September 2006. Notification of the completion of the procedures necessary for the entry into force of this Agreement deposited on 13 February 2012, entered into force on 1 July 2016 No 14 of 2016 Seat Agreement between the Government of Ireland and the European Union (European Foundation for the Improvement of Living and Working Conditions), done at Dublin on 10 November 2015. Notification of the completion of the procedures necessary for the entry into force of this Agreement deposited on 19 July 2016, entered into force with respect to Ireland on 19 July 2016 No 15 of 2016 ELIXIR Consortium Agreement establishing the European Life-Science Infrastructure for Biological Information (ELIXIR), done at Heidelberg on 26 June 2013. Signed, without reservation as to ratification, on behalf of Ireland on 28 July 2016, entered into force with respect to Ireland on 28 July 2016 No 17 of 2016 Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States, of the one part, and the Socialist Republic of Viet Nam, of the other part, done at Brussels on 27 June 2012. Notification of the completion of the procedures necessary for the entry into force of this Agreement deposited on 6 January 2016, entered into force on 1 October 2016 (continued)

Correspondent Reports—Cubie 225 ITS Number

Title of Agreement

No 19 of 2016 Protocol of Amendments to the Convention on the International Hydrographic Organization (with text of the Consolidated Version of the Convention on the International Hydrographic Organization), done at Monaco on 14 April 2005. Notification by Ireland of approval of the Protocol on 9 September 2010, entered into force with respect to Ireland on 8 November 2016 No 20 of 2016 Paris Agreement, done at Paris on 12 December 2015. Ireland’s Instrument of Ratification deposited on 4 November 2016, entered into force with respect to Ireland on 4 December 2016

Statements on the Work of the International Law Commission Over the course of 2016 and 2017, the Department of Foreign Affairs and Trade (DFAT) provided written statements in the UN General Assembly Sixth C ­ ommittee (Legal) on a variety of topics under consideration by the International Law ­Commission. These statements are included in full in the Documents section of this Yearbook.23 The five statements covered the following topics: —— Statement to UNGA 71, 26 October 2016 on Part 1 of the ILC Report relating to the Protection of Persons in the Event of Disasters, Identification of­ Customary International Law, Subsequent Agreements and Subsequent Practice in ­relation to the Interpretation of Treaties.24 —— Statement to UNGA 71, 1 November 2016 on Part 2 of the ILC Report relating to Crimes against Humanity and Jus Cogens.25 —— Statement to UNGA 71, 2 November 2016 on Part 3 of the ILC Report relating to Immunity of State Officials from Foreign Criminal Jurisdiction and Provisional Application of Treaties.26 —— Statement to UNGA 72, 25 October 2017 on Part 1 of the ILC Report relating to Crimes against Humanity.27 —— Statement to UNGA 72, 27 October 2017 on Part 2 of the ILC Report relating to Immunity of State Officials from Foreign Criminal Jurisdiction.28 23 

See p 301 et seq below. Statement by Ms Anne-Marie O’Sullivan, Assistant Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 71st Session, Agenda Item 78: The Report of the International Law Commission on the Work of its 68th Session (26 October 2016). 25  Statement by Ms Anne-Marie O’Sullivan, Assistant Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 71st Session, Agenda Item 78: The Report of the International Law Commission on the Work of its 68th Session (1 November 2016). 26  Statement by Ms Anne-Marie O’Sullivan, Assistant Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 71st Session, Agenda Item 78: The Report of the International Law Commission on the Work of its 68th Session (2 November 2016). 27  Statement by Ms Anne-Marie O’Sullivan, Assistant Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 72nd Session, Agenda Item 81: The Report of the International Law Commission on the Work of its 69th Session (25 October 2017). 28  Statement by Mr James Kingston, Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 72nd Session, Agenda Item 81: The Report of the International Law Commission on the Work of its 69th Session (27 October 2017). 24 

226  The Irish Yearbook of International Law 2016–17 DIPLOMATIC MATTERS

Roger Casement, born in Dublin in 1864 and brought up in Antrim, was a British diplomatic representative who was executed for treason in London on 3 August 1916 following his role in the Easter Rising. In commemorating the centenary of his death, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, reflected on his diplomatic work and support of Irish nationalism: Looking back at Casement’s life with all the benefit of historical reflection, perhaps what stands out most is the generosity of spirit and selflessness which led him to take a central role in the Irish independence movement as well as to spend much of his life in the African and South American continents campaigning against the terrible abuse of the rights of people happening there at the time. For Casement, these endeavours were not two separate parts of his life.29

Meanwhile, during 2016 and 2017, the President of Ireland Michael D Higgins received credentials from ambassadors representing: the Argentine Republic, Bosnia and Herzegovina, the Republic of Azerbaijan,30 the State of Eritrea, the Kingdom of Bahrain, the Republic of Zambia,31 Belize, the State of Qatar, the Commonwealth of The Bahamas,32 the People’s Republic of China, the Republic of Malawi, the ­Republic of Indonesia,33 Mexico, the Republic of the Sudan, the Republic of Chile, the United Kingdom,34 the Kingdom of Norway, Australia, the Kingdom of Sweden,35 the Kingdom of Morocco, the Republic of Turkey, Peru,36 the Republic of India, Montenegro, the Republic of Iraq,37 the Republic of Nicaragua, the Republic of Fiji, the Republic of Costa Rica,38 Nepal, the Republic of Mozambique, the Republic of El Salvador,39 Austria, the Republic of Panama, the Republic of Rwanda,40 Mauritius, Venezuela, New Zealand,41 the Vatican, France, the Republic of Malta, the Republic of Latvia,42 the Kingdom of the Netherlands, the Republic of Lithuania, the Federal Republic of Nigeria, the Federative Republic of Brazil,43 the Russian Federation, the Kingdom of Belgium and the Portuguese Republic.44

29 DFAT, ‘Remarks by Minister Charles Flanagan TD at Execution Commemoration for Roger ­Casement’, Press Release (3 August 2016). 30  DFAT, ‘New Ambassadors of Argentina, Bosnia and Herzegovina, Azerbaijan Present Credentials’, Press Release (31 March 2016). 31  DFAT, ‘New Ambassadors Present Credentials’, Press Release (13 April 2016). 32  DFAT, ‘New Ambassadors Present Credentials’, Press Release (1 June 2016). 33  DFAT, ‘New Ambassadors Present Credentials’, Press Release (5 July 2016). 34  DFAT, ‘New Ambassadors Present Credentials’, Press Release, (13 September 2016). 35  DFAT, ‘New Ambassadors Present Credentials’, Press Release (13 October 2016). 36  DFAT, ‘New Ambassadors Present Credentials’, Press Release (29 November 2016). 37  DFAT, ‘New Ambassadors Present Credentials’, Press Release (13 December 2016). 38  DFAT, ‘New Ambassadors Present Credentials’, Press Release (2 March 2017). 39  DFAT, ‘New Ambassadors Present Credentials’, Press Release (27 April 2017). 40  DFAT, ‘New Ambassadors Present Credentials’, Press Release (16 May 2017). 41  DFAT, ‘New Ambassadors Present Credentials’, Press Release (15 June 2017). 42  DFAT, ‘Apostolic Nuncio and New Ambassadors Present Credentials’, Press Release (5 September 2017). 43  DFAT, ‘New Ambassadors Present Credentials’, Press Release (21 September 2017). 44  DFAT, ‘New Ambassadors Present Credentials’, Press Release (14 November 2017).

Correspondent Reports—Cubie 227 In July 2016, a joint service was held in Dublin to commemorate the 40th anniversary of the murder of the British Ambassador to Ireland, Ambassador Christopher Ewart-Biggs, and his colleague Judith Cooke in an IRA bomb. The commemoration event was attended by the Minister for Foreign Affairs and Trade, Charlie ­Flanagan TD, and the British Ambassador to Ireland, HE Dominick Chilcott, as well as members of Ambassador Ewart-Biggs’ family. Following a tree planting ceremony, M ­ inister Flanagan reiterated the core message of the eulogy given by Dr ­Garret Fitzgerald, then Minister for Foreign Affairs, at the memorial service held in St ­Patrick’s Cathedral in 1976: No doubt the perpetrators calculated, with their unfailing lack of insight or understanding, that Anglo-Irish relations would be severely weakened, perhaps permanently damaged by such an atrocity. That the opposite has been the case is now evident to all. Our two peoples, whose pasts have been so closely linked for ill and for good throughout eight centuries, have confounded our common enemy by responding to this tragedy with a deepened sense of our close interdependence, and of our common interest in combating violence and ­averting anarchy.45

Meanwhile, as part of the continuing release of historical foreign policy documents, Volume X of the Documents on Irish Foreign Policy series was launched on 24 November 2016. The period covered by this volume, June 1951 to March 1957, includes Ireland’s entry into the United Nations in 1955 and corresponding shift in outlook to a more internationally engaged foreign policy. In welcoming the publication, Minister Flanagan recalled that: ‘Many of the core values that underpin our [foreign policy] approach today, such as our commitment to human rights, support for multilateralism and the pursuit of fairness, can be traced to this period.’46 FOREIGN POLICY, BILATERAL RELATIONS, CONSULAR SERVICES AND THE DIASPORA

Foreign Policy Following the comprehensive review of Ireland’s foreign policy, which culminated in the publication of The Global Island: Ireland’s Foreign Policy in the Changing World in January 2015,47 the DFAT convened a departmental meeting of over 80 Irish Ambassadors and Consul Generals in Dublin in August 2016. Occurring soon after the UK Brexit referendum result, the event provided an opportunity for

45 DFAT, ‘Minister Flanagan Addresses Ceremony in Memory of Ambassador Christopher EwartBiggs, Judith Cooke’, Press Release (25 July 2016). 46  DFAT, ‘Minister Flanagan Launches Publication of Volume X of Documents on Irish Foreign Policy’, Press Release (24 November 2016). The Documents on Irish Foreign Policy (DIFP) series was established in 1997 as a partnership between the Royal Irish Academy (RIA), the Department of Foreign Affairs (DFA) and the National Archives of Ireland (NAI). 47 DFAT, The Global Island: Ireland’s Foreign Policy in the Changing World (January 2015).

228  The Irish Yearbook of International Law 2016–17 s­ enior diplomatic representatives to consider a raft of critical challenges.48 In addition to deliberations on Ireland’s role in the EU and political relations with L ­ ondon, ­Edinburgh, Cardiff and Belfast, agenda items included Ireland’s UN Security Council campaign, humanitarian challenges, trade and how the Department could best assist Irish companies overseas, reform of the Passport Service, readiness for ­consular emergencies abroad and Ireland’s bid to host the 2023 Rugby World Cup.49 The Brexit vote resulted in some commentators calling for a so-called ‘Irexit’, ie for Ireland to also leave the European Union. Prominent amongst the proponents was Ray Bassett, the former Irish Ambassador to Canada,50 and Ray ­Kinsella, economics and retired Professor at UCD Michael Smurfit Graduate School of Business.51 Such calls were also made by the former leader of the UK Independence Party (UKIP), Nigel Farage. Responding to Farage’s contention on RTÉ radio in January 2017 that public opinion in Ireland will move towards an ‘Irexit’ if the UK secured a good deal in negotiations with the EU, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, responded that it was ‘fanciful thinking’ that Ireland would also leave the EU.52 Indeed, throughout 2016 and 2017, the Irish Government has reiterated its support for membership of the EU,53 and public opinion for remaining in the EU has remained consistently high.54 At a global level, the annual meeting of the UN General Assembly provides an opportunity for the Irish Government to set out the key issues and priorities for the coming year. In September 2016, Minister Flanagan highlighted the interconnected challenges posed by migration. Minister Flanagan recalled Ireland’s long history of emigration and famine, and highlighted the drivers of contemporary migration including conflict, violence and poverty. Minister Flanagan then set out the Government’s strong support for multilateral approaches and the United Nations system.55 In October 2017, in a speech to the UN Security Council, the Minister for Children and Youth Affairs, Katherine Zappone TD, stressed the disproportional impact of armed conflicts on children.56 Minister Zappone highlighted the need to protect

48 DFAT, ‘Minister Flanagan Convenes Meeting of Ireland’s Ambassadors and Consuls General in Dublin’, Press Release (29 August 2016). 49 Ibid. 50  P Leahy, ‘Former Ambassador Condemns Ireland’s Brexit policy’ The Irish Times (3 April 2017). 51  R Kinsella, ‘Why Ireland should Seriously Consider Irexit’ The Irish Times (30 August 2017). 52 ‘Flanagan dismisses Farage’s “fanciful” Irexit suggestion’ RTÉ News Online (4 January 2017), available at www.rte.ie/news/2017/0104/842545-brexit-ambassador/ (last accessed 6 August 2018). 53  See, for eg, Department of Foreign Affairs and Trade, ‘In a Keynote Address to the EMI, Minister Flanagan says Ireland is Firmly on “Team EU”’, Press Release (15 December 2016). For full details of government statements on Brexit, see https://merrionstreet.ie/en/EU-UK/Speeches_Statements/ (last accessed 6 August 2018). 54  See for example: ‘Poll Suggests 88% of Irish People Want Ireland in EU’ RTÉ News Online (9 May 2017), available at www.rte.ie/news/2017/0509/873610-eu_poll/ (last accessed 6 August 2018); European Commission, ‘Public Opinion in the EU: National Report Ireland’, Standard Eurobarometer 86 (Autumn 2016). 55  DFAT, ‘Address to the United Nations General Assembly by Minister Charles Flanagan TD’, Speech (24 September 2016). 56  Statement by Katherine Zappone, TD, Minister for Children and Youth Affairs of Ireland, at the Security Council Open Debate on ‘Children and Armed Conflict’, United Nations, New York, 31 October 2017.

Correspondent Reports—Cubie 229 women and girls from gender-based violence and sexual exploitation and abuse, and confirmed the Government’s commitment to accepting more separated children from the Calais refugee camps (known as ‘the jungle’) into Ireland.57 Likewise, in his first speech to the UN General Assembly in September 2017, the new Minister for Foreign Affairs and Trade, Simon Coveney TD, stressed the importance of multilateral institutions and collaboration at the European and global level. In thinly veiled criticism of Brexit and the foreign policy approach of US President Donald Trump, Minister Coveney stated: The case for international cooperation and multilateralism is compelling. By working together we lay foundations of trust, we align our perspectives more closely, we accept our differences more willingly and we build habits, perhaps most importantly, of cooperation that better allow us to address the common threats and opportunities that we should be facing together. The alternatives of unilateralism, transactional diplomacy, protectionism and confrontation are not, in fact, viable alternatives at all. Their short-term populist appeal obscures their long-term cost, and surely we have learned that from history.58

Reflecting the Irish Government’s aim of securing a seat on the UN Security Council for the two-year period of 2021–22,59 Minister Coveney also highlighted the need for reform of the Security Council including expansion of representation of African and Small Developing Island States, and the use of the veto by the five Permanent members.60 Bilateral Relations As noted in the Introduction and elsewhere in this report, Ireland’s bilateral relationships with the United Kingdom and the United States of America were tested following the UK referendum decision to leave the European Union and the changed dynamics of America’s domestic and foreign policy approaches under President Trump. During the US presidential election campaign in 2016, in response to a question in the Dáil, the Taoiseach Enda Kenny TD, criticised candidate Donald Trump stating that: ‘If Trump’s comments are racist and dangerous, which they are, there is an alternative to vote for.’61 Following Trump’s election as US President, during the traditional St Patrick’s Day visit to the White House, and in the face of increasing criticism of President Trump’s proposed immigration ban on six predominantly

57 Ibid. 58 

DFAT, ‘UNGA Address: Simon Coveney’ (n 9). Mac Cormaic, ‘Campaign for UN Security Council Must not Lurk in Shadows’ The Irish Times (26 August 2017). 60  DFAT, ‘UNGA Address: Simon Coveney’ (n 9). 61  ‘FactCheck: Did Enda Kenny Really Never Call Donald Trump Racist”?’ TheJournal.ie (16 March 2017), available at: www.thejournal.ie/enda-kenny-donald-trump-racist-comments-facts-video3290245-Mar2017/ (last accessed 6 August 2018). 59  R

230  The Irish Yearbook of International Law 2016–17 Muslim countries, the Taoiseach stressed that ‘St Patrick was an immigrant’,62 and forcefully argued that: Four decades before Lady Liberty lifted her lamp, we were the wretched refuse on the teeming shore. We believed in the shelter of America, in the compassion of America, in the opportunity of America. We came and became Americans.63

Meanwhile, in welcoming the nomination of Rex Tillerson as the US Secretary of State, Minister of Foreign Affairs and Trade, Charlie Flanagan TD, pointedly noted: I greatly valued my working relationship with the current US Secretary of State, John Kerry who has been a great friend of Ireland over many years. As he approaches the end of his tenure, I wish to express my appreciation to Secretary Kerry for the very helpful role he has played in Ireland-US relations over recent years, not least in regard to Northern Ireland.64

In November 2017 an important legacy issue was addressed with the publication of the general scheme of the Criminal Justice (International Cooperation) Bill 2017 which aims to enhance cooperation between Ireland and the UK for ongoing Coroners’ inquests in Northern Ireland into historical deaths. In particular, the Bill provides access to testimony from members of An Garda Síochána [Irish police] for coroners in Northern Ireland and Britain, as well as establishing structured mechanisms for enhanced cooperation between bodies such as the Historical Investigations Unit in Northern Ireland and the Ireland-UK Independent Commission on Information Retrieval. In launching the Bill, the Minister for Justice and Equality, Charlie Flanagan TD, noted: The Government has been steadfast in our commitment to dealing with the painful legacy of conflict in Northern Ireland. Acknowledging and addressing the needs of the victims of the troubles is a key aspect of our efforts to support and to promote reconciliation.65

The 60th anniversary of bilateral relations between Ireland and Japan was celebrated in January 2017 with the official visit of the Minister for Foreign Affairs of Japan, Mr Fumio Kishida, to Dublin. At the opening ceremony, Minister Kishida recalled that over the last 60 years, Japan and Ireland have established a ‘solid cooperative relationship based on shared fundamental values of freedom, democracy, human rights and the rule of law’.66 Minister Flanagan paid a reciprocal visit to Japan in February and March 2017, where he stated: Minister Kishida and I discussed the opportunities to deepen Ireland and Japan’s trade relationship. Brexit was high on our agenda and I assured Minister Kishida that Ireland remains committed to the EU providing an attractive location to Japanese investors …

62 C Pope, ‘Why was the Irish Response to Enda Kenny’s Stirring “Trump Lecture” so Muted?’ The Irish Times (20 March 2017). 63 Ibid. 64  DFAT, ‘Minister Flanagan Welcomes Nomination of Rex Tillerson as US Secretary of State’, Press Release (13 December 2016). 65  Department of Justice and Equality, ‘Minister Flanagan Publishes Proposals for a Criminal Justice (International Cooperation) Bill 2017’, Press Release (22 November 2017). 66  DFAT, ‘Minister Flanagan Holds Bilateral Meeting with Japanese Foreign Minister Kishida’, Press Release (10 January 2017).

Correspondent Reports—Cubie 231 I spoke with Minister Kishida about my moving visit to Hiroshima, his hometown. Japan and Ireland share a strong commitment to achieving a world free from nuclear weapons and both countries are well known for our work in Disarmament and non-proliferation at the United Nations. We also discussed our mutual commitment to UN peacekeeping.67

Bilateral relations between Ireland and Mexico also continued to strengthen during 2017. Following the state visit conducted by President Michael D Higgins to Mexico in October 2013, and a series of high level dialogues, the Minister for Foreign Affairs and Trade, Simon Coveney TD, hosted the Deputy Foreign Minister of Mexico, Ambassador Carlos de Icaza, in November 2017 to discuss the continued development of political, trade and direct relationships between Ireland and Mexico. In particular, the Irish Government highlighted its commitment to deeper bilateral engagement with Mexico, as well as expanding Ireland’s presence in Latin America (including the announcement of two new diplomatic missions in the region and the planned Americas Strategy), and strengthening Ireland’s relationship with the Pacific Alliance.68 The two sides also discussed the political situation in Latin America, and exchanged views on their respective relations with the United States, on the UK’s departure from the European Union, and on EU-Latin America relations.69 List of Bilateral Agreements that Entered into Force during 2016 The following is a list of the bilateral agreements that entered into force for Ireland during 2016.70 ITS Number No 3 of 2016

Title of Agreement Agreement between Ireland and the Argentine Republic for the Exchange of Information relating to Tax Matters, done at Berlin on 29 October 2014. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 11 December 2014 and 23 December 2015, entered into force on 21 January 2016

No 4 of 2016

Agreement between the Government of Ireland and the Government of the Republic of Botswana for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, done at Gaborone on 10 June 2014. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 6 January 2015 and 3 February 2016, entered into force on 3 February 2016 (continued)

67 DFAT, ‘Minister Flanagan Holds Talks with Japan’s Foreign Minister in Tokyo’, Press Release (1 March 2017). 68 DFAT, ‘Joint Communiqué between Ireland and Mexico Following High-Level Talks in Dublin (16 November 2017) para 6. 69  Ibid, paras 12 and 13. 70  Details of bilateral agreements that entered into force in 2017 were not available at time of writing this Report, but can now be accessed on the DFAT website: https://www.dfa.ie/our-role-policies/international-priorities/international-law/find-a-treaty/treatyresults/?bilat_multilat=&search_depository=&its_ no_1=&its_no_2=&search_keywords_title=&search_party=&year_search=2017.

232  The Irish Yearbook of International Law 2016–17 ITS Number No 10 of 2016

Title of Agreement Audiovisual Co-Production Treaty between the Government of Ireland and the Government of Canada, done at Ottawa on 4 February 2016. Notifications of the completion of the procedures necessary for the entry into force of this Treaty exchanged on 6 April 2016 and 1 June 2016, entered into force on 1 July 2016

No 16 of 2016

Convention between Ireland and the Federal Democratic Republic of Ethiopia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, done at Addis Ababa on 3 November 2014. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 23 December 2015 and 12 August 2016, entered into force on 12 August 2016

No 18 of 2016

Convention between the Government of Ireland and the Government of the Islamic Republic of Pakistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, done at Dublin on 16 April 2015. Notifications of the completion of the procedures necessary for the entry into force of this Convention exchanged on 7 January 2016 and 11 October 2016, entered into force on 11 October 2016

Consular Services Reflecting both the improved budgetary condition and the need for a strengthened international presence, in October 2017 the Minister for Foreign Affairs and Trade, Simon Coveney TD, announced plans to open new Embassies in Chile, Colombia, Jordan and New Zealand, as well as new resident Consulate Generals in Vancouver and Mumbai.71 The impact of Brexit was also reflected in the 2018 Budget, with additional funding to increase staff numbers working on Brexit in Dublin and several European capitals including Brussels, Berlin, Paris and London.72 Following the launch of the new Irish passport in January 2015 and introduction of an online passport application system in March 2017, the Irish Passport Service won the World Class Civil Service award at the Civil Service Excellence and Innovation Awards in November 2017.73 The need for the revised procedures and increased work load was evident, with 750,833 applications for Irish passports

71  DFAT provided consular assistance to over 2,300 Irish citizens in 2015, including support to the families of 263 people who passed away while abroad in 2015. See DFAT, ‘Over 2,300 Irish Citizens Received Consular Assistance in 2015—Minister Flanagan’, Press Release (10 January 2016). The equivalent figures for 2016 were not reported by the Department. 72  DFAT, ‘Minister Coveney Announces New Diplomatic Missions, Reinforced Brexit and increased ODA’, Press Release (10 October 2017); Department of Foreign Affairs and Trade, ‘Ireland to Open Embassy in Wellington, New Zealand’, Press Release (24 October 2017). 73  DFAT, ‘Passport Service Wins 2017 World Class Civil Service Award’, Press Release (28 November 2017).

Correspondent Reports—Cubie 233 made ­during 2016, an increase of over 10 per cent compared to 2015. A key component of this increase arose from applications made from the United Kingdom and Northern ­Ireland following the Brexit referendum. The trend continued during 2017, with a 28 per cent increase in Irish passport applications from Great Britain, and a 20 per cent increase from Northern Ireland.74 Meanwhile, the pre-trial detention in Egypt of 21-year-old Irish citizen Ibrahim Halawa continued in 2016 and 2017. The Government continued to express its concern at the numerous adjournments of the case against Halawa by the Egyptian courts.75 Finally, in September 2017 after more than four years of detention, Ibrahim Halawa and his sisters were formally acquitted of all charges against them.76 In welcoming the release of Halawa from prison in Cairo on 20 October 2017, Minister Coveney thanked the work of Ambassador Sean O’Regan and Irish diplomatic and consular officials in Dublin and Cairo.77 Following Halawa’s subsequent return to Ireland, Minister Coveney noted: This case has been one of the most complex, sensitive and difficult consular cases to which the Irish Government has ever responded. Work on Ibrahim Halawa’s behalf has involved significant and sustained effort at the highest Government levels, by Parliamentarians of all hues; engagement at a range of senior official and diplomatic levels; widespread consultation, dialogue and advocacy with EU partners and in many capitals; the harnessing of expertise in Egyptian and international law and other areas; and an exceptional commitment by many public servants and Embassy officials—both diplomats and locally-engaged staff—over more than four years. There were some difficult and dark times, but sight was never lost of our two key objectives—to get Ibrahim home, and to do everything possible to safeguard his rights and welfare for as long as he remained in the custody.78

The Diaspora Following the publication of the Government’s Diaspora Policy in March 2015,79 a series of initiatives took place over the course of 2016 and 2017 to provide 74 For full figures, see DFAT, ‘Passport Statistics’, available at www.dfa.ie/passporttracking/ passportstatistics/ (last accessed 6 August 2018). 75 See, for eg, DFAT, ‘Minister Flanagan Expresses Concern on Further Adjournment of Ibrahim ­Halawa Case’, Press Release (9 January 2016); DFAT, ‘Minister Flanagan Expresses Disappointment and Concern Following Delay in Ibrahim Halawa Case’, Press Release (29 June 2016); DFAT, ‘Update on Consular Case of Ibrahim Halawa’, Press Release (3 October 2016); DFAT, ‘Statement by Minister ­Flanagan on Ibrahim Halawa Case’, Press Release (13 December 2016); DFAT, ‘Minister Coveney Statement on Fourth Anniversary of the Detention of Ibrahim Halawa in Egypt’, Press Release (17 August 2017). 76  DFAT, ‘Minister Coveney Welcomes Acquittal of Ibrahim Halawa’, Press Release (18 September 2017). See also: C O’Doherty, ‘Justice as Ibrahim Halawa Acquitted on all Charges in Egypt’ Irish Examiner (23 September 2017). 77 DFAT, ‘Minister Coveney Welcomes Release of Ibrahim Halawa in Cairo’, Press Release (20 October 2017). See also P McGarry et al, ‘Ibrahim Halawa Expected to Return Home within Days’ The Irish Times (20 October 2017). 78 DFAT, ‘Min Coveney Welcomes Ibrahim Halawa’s Return Home to Ireland’, Press Release (24 October 2017). See also R Nugent, ‘“It Still Feels Like a Dream”—Ibrahim Halawa Arrives Back in Ireland After More than Four years in Prison in Cairo’ Irish Independent (24 October 2017). 79 DFAT, Global Irish: Ireland’s Diaspora Policy (March 2015). As reported in IYIL (n 1).

234  The Irish Yearbook of International Law 2016–17 a­ dditional support to the Irish Diaspora, including an agreement to continue to provide RTÉ radio services to Irish communities in the United Kingdom,80 strengthening links with the Irish Diaspora in Uganda, and sharing good practices for other ­countries interested in expanding their own diaspora policies.81 In particular, in May 2017, the Minister of State for the Diaspora and International Development, Joe McHugh TD, announced a new government funded mentoring programme to support returning Irish emigrants who wish to set up businesses in Ireland. The programme received funding of up to €100,000 for 2017 as part of the work of the DFAT on local diaspora engagement.82 Likewise, in September 2017, the new Minister for State for the Diaspora and International Development, Ciaran Cannon TD, launched the first Global Irish Diaspora Directory which includes the details of Irish community welfare, culture and heritage and networking groups in 34 countries.83 FOREIGN CONFLICTS AND INTERNATIONAL TERRORISM

It is not possible to cover the litany of foreign conflicts and individual terrorist attacks that occurred during the reporting period. Of note, despite receiving increasingly less media attention, the vicious conflict in Syria continued throughout 2016 and 2017.84 Meanwhile, the humanitarian impact of the conflict in Yemen that commenced in 2015 progressively deteriorated over the reporting period, resulting in over 20 ­million people in need of humanitarian assistance—many of whom ­continue to face real prospects of famine, starvation and diseases such as cholera. In July 2017, the President of the International Committee of the Red Cross (ICRC) f­orcefully stated: ‘I find this needless suffering absolutely infuriating. The world is sleepwalking into yet more tragedy.’85 Likewise, during his speech to the UN ­General Assembly in September 2017, Minister Coveney stressed: The conflicts in Syria and Yemen have caused untold suffering. Ireland has responded as generously as we can, with almost €100 million euros of humanitarian aid, but what the people of Syria and Yemen need most right now is peace, to enable them to rebuild their lives, and to start the process of rebuilding their countries. I urge all sides in the two ­conflicts to work for an end to violence, to engage in the search for peaceful political solutions under UN auspices and for accountability for crimes committed.86

80  DFAT, ‘Minister McHugh Welcomes RTÉ Services for Irish in Britain’, Press Release (10 March 2017). 81 DFAT, ‘Minister of State Joe McHugh to Visit Uganda and Launch New Five Year Strategy for ­Ireland in Uganda’, Press Release (8 July 2016). 82 DFAT, ‘Minister McHugh Announces Programme for Returning Emigrant Entrepreneurs’, Press Release (3 May 2017). 83  DFAT, ‘Minister of State Cannon Announces Publication of the Global Irish Diaspora Directory’, Press Release (22 September 2017). 84  See, for eg, DFAT, ‘Minister Flanagan Demands an End to the Slaughter of Civilians in Aleppo’, Press Release (14 December 2016). 85  International Committee of the Red Cross (ICRC), ‘Yemen: ICRC President Visits Country, Decries “Needless Suffering”’, News Release, 23 July 2017. 86  DFAT, ‘UNGA Address: Simon Coveney’ (n 9).

Correspondent Reports—Cubie 235 In contrast, despite the widespread media coverage of the forcible displacement and attacks on the Rohingya minority in Myanmar, there has only been one official statement by the DFAT. In September 2017, Minister for Foreign Affairs and Trade, Simon Coveney TD, condemned specific attacks on civilians on 25 August 2017, and expressed his deep concern over reports of excessive responses by the Myanmar security forces.87 Despite the limited official response, there were well publicised calls for Aung San Suu Kyi’s freedom of the city of Dublin to be revoked, and Bob Geldof returned his own Freedom of Dublin in protest, stating that he did not wish to be associated with the award while Suu Kyi was still a recipient.88 Separately, drawing on Ireland’s own experience of conflict and post-conflict ­transitional justice, Ireland continued its support for the Colombian peace process, and the August 2016 signature of a peace agreement between the Government of Colombia and the FARC (Fuerzas Armadas Revolucionarias Colombianas) in Havana, Cuba.89 PEACE SUPPORT OPERATIONS

At the end of 2016, the Irish Permanent Defence Forces (PDF) amounted to 9,126 personnel, comprised of 7,332 Army, 704 Air Corps and 1,090 Navy personnel (a total reduction of 14 personnel, or 0.2 per cent, compared to the end of 2015).90 Of these personnel, 568 were women (476 Army personnel, 59 Naval Service personnel and 33 Air Corps personnel), representing 6.2 per cent of the overall strength of the Permanent Defence Forces (this represents an increase of seven personnel compared to 2015, and a marginal proportional increase in relation to the overall ­personnel numbers serving in the PDF). The Programme for a Partnership Government, agreed in 2016, set as a target the goal of doubling the rate of female ­participation in the PDF from six to 12 per cent over a five-year period. An additional 2,2970 personnel were members of the Reserve Defence Forces (comprised of 1,927 Army Reserve, 122 Naval Service Reserve and 248 former PDF personnel in the First Line Reserve). This was a decrease of 223 personnel (nine per cent) compared to 2015. At the end of 2016, 609 personnel were stationed abroad, representing 6.7 per cent of the total PDFs, a significant increase from 2015. The m ­ ajority of this increase arose from Ireland’s ongoing and expanded commitment to the UN peacekeeping mission in Lebanon (UNIFIL). On 19 July 2016, Major General Michael Beary took up an appointment as Head of Mission and Force Commander,

87  DFAT, ‘Statement by Minister Coveney on the Situation in Rakhine State, Myanmar’, Press Release (15 September 2017). 88  ‘Geldof to Return Freedom of Dublin in Suu Kyi Protest’ RTÉ News Online (13 November 2017), available at www.rte.ie/news/ireland/2017/1112/919535-bob-geldof-dublin/ (last accessed 6 August 2018). 89 See, for eg, DFAT, ‘Minster Flanagan Welcomes Colombia Peace Agreement’, Press Release (25 August 2016); DFAT, ‘Statement by Minster Flanagan on Colombian Peace Process’, Press Release (1 December 2016). 90 All figures from Department of Defence and Defence Forces Annual Report 2016, 38–39. The Annual Report for 2017 was published in June 2018, and is available on the Department of Defence website at: https://www.defence.ie/en/news/publications (last accessed 6 August 2018).

236  The Irish Yearbook of International Law 2016–17 UNIFIL, and on 22 November 2016 Ireland assumed the lead of the joint Battalion in UNIFIL from Finland. During 2016, 1,480 members of the PDF served overseas in various missions, including postings with the UN, EU, Organisation for Security and Co-operation in Europe (OSCE) and the North Atlantic Treaty Organisation (NATO). In particular, Ireland participated in the European Defence Agency and the NATO Partnership for Peace (PfP), and continued as an active contributor to UN peace support operations. The overall total commitment to Peace Support Operations during 2016 is set out in the following table:91 Missions

01 Jan 16

31 Dec 16

UN-led operations UNTSO (Middle East)

13

12

MINURSO (Western Sahara)

3

3

MONUSCO (Democratic Republic of Congo)

4

4

UNOCI (Côte d’Ivoire)

2

1

UNIFIL HQ (Lebanon)

9

30

184

341

4

8

131

130

8

6

358

535

UNIFIL Infantry Battalion (Lebanon) UNIFIL Sector West HQ (Lebanon) UNDOF Infantry Group (Golan Heights) UNDOF HQ (Golan Heights) Sub-total (UN) EU-led operations EUFOR (Bosnia & Herzegovina)

7

7

10

10

UK-led Battlegroup 2016

5

5

EUTM Mali

9

18

31

40

12

12

7

0

19

12

2

2

German-led Battlegroup 2016

Sub-total (UN Mandated Missions) NATO-led operations KFOR HQ RSM (Resolute Support Mission in Afghanistan) Sub-total (NATO/PfP) OSCE-led operations OSCE

(continued)

91 

Ibid, 50–53.

Correspondent Reports—Cubie 237 Missions

01 Jan 16

Sub-total (OSCE)

31 Dec 16

2

2

UNNY (New York)

1

1

EUMS (Brussels)

Military Reps/Advisors/Staff Postings 3

4

(Belgium)92

5

5

Irish delegation to OSCE (Vienna)

1

1

CSDP/PSC (Brussels)93

9

9

19

20

429

609

NATO/PfP

Sub-total (Military Reps/Advisers/Staff) Total Personnel Overseas

The real risks that UN peacekeepers face were starkly highlighted in December 2017, when 14 UN peacekeepers from Tanzania were killed in an attack in the eastern Democratic Republic of Congo. Expressing his condolences, the Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney TD, stated: The Blue Helmets epitomise the ideals of the UN, striving to bring peace and protect civilians across the globe. This attack is an affront to these ideals. We in Ireland know well the dangers faced by peacekeeping troops in the service of the UN. I express my deep condolences on behalf of Ireland to the families and loved ones of those killed.94

In December 2017, the Irish Defence Forces belatedly honoured the surviving Irish UN peacekeepers who were besieged in Jadotville in the Katanga region of the Congo in September 1961 with a specially commissioned medal.95 The five-day siege, where 155 Irish soldiers faced a force of over 2,000 men, was also dramatised in a major film released by Netflix in 2016.96 As part of Ireland’s commitment to supporting humanitarian search and rescue operations in the Mediterranean Sea for refugees and migrants arriving from ­conflict,

92  Both civil and military staff from the Defence Organisation are deployed to NATO/PfP offices in Brussels. 93  Both civil and military staff from the Defence Organisation are deployed to CSDP/PSC offices in Brussels. 94  DFAT, ‘Statement by Tánaiste on Deaths of UN Peacekeeping Troops in the DRC’, Press Release (8 December 2017). 95  ‘Survivors of Jadotville Siege Presented with Medals’ RTÉ News Online (4 December 2017), available at www.rte.ie/news/2017/1202/924518-medal-jadotville/ (last accessed 6 August 2018). 96  C Byrne, ‘The True Story of the Heroic Battle That Inspired the New Netflix Film The Siege of Jadotville’ Time Magazine (27 July 2016), available at http://time.com/4408017/the-siege-of-jadotvillethe-true-story-netflix-film/ (last accessed 6 August 2018).

238  The Irish Yearbook of International Law 2016–17 violence and poverty, on 6 April 2016 the Government recommitted Irish naval vessels to assist in the EU’s humanitarian Operation PONTUS. Irish deployments as part of Operation PONTUS during 201697 were as set out in the following table: Dates of deployment

Naval vessel

Numbers of persons rescued

Numbers of bodies recovered

1 May–15 July

LÉ Róisín

1,264

3

8 July–30 Sept

LÉ James Joyce

2,678

21

23 Sept–16 Dec

LÉ Samuel Beckett

3,087

12

7,029

36

Totals

SUSTAINABLE DEVELOPMENT GOALS

Continuing Ireland’s commitment to supporting the UN Sustainable Development Goals (SDGs), Ireland participated in the first UN Conference to Support the Implementation of SDG 14 (Ocean Conference) in June 2017. Co-hosted by the governments of Fiji and Sweden, this large-scale event brought together heads of state and government with a wide variety of stakeholders from non-governmental organisations and the private sector. In addition to the final outcome document, entitled ‘Our Ocean, Our Future: A Call for Action’,98 conference participants made over 1,300 voluntary commitments towards ocean conservation and awareness-raising.99 The statement made by the Minister of State for Employment and Small Business, Pat Breen TD, at the Conference, highlighted that: ‘Increases in global temperature, sea level rise, ocean acidification and other climate change impacts are seriously affecting coastal areas and low-lying coastal countries, including many least developed countries and Small Island developing States.’100 Additionally, Minister Breen stressed that: Plastic marine litter, including microplastics, represent a serious and growing threat to the health of our marine ecosystems and to human health and I am pleased therefore to confirm that Ireland will support Sweden’s initiative calling for ban on microbeads in cosmetics.

97  Two vessels, LÉ Eithne and LÉ William Butler Yeats, were deployed between May and October 2017 and rescued 1,888 persons. See: Department of Defence and Defence Forces Annual Report 2017, 38. 98 UN General Assembly, Resolution 71/312, ‘Our Ocean, Our Future: A Call for Action’, UN Doc A/RES/71/312 (14 July 2017). 99  C Benson Wahlén, ‘UN Ocean Conference Concludes with Call for Action and 1,300 Commitments’ International Institute for Sustainable Development (13 June 2017), available at http://sdg. iisd.org/news/un-ocean-conference-concludes-with-call-for-action-and-1300-commitments/ (last accessed 6 August 2018). 100  Ireland’s National Statement at High Level UN Conference to support the Implementation of SDG 14 Life Below Water: Conserve and Sustainably Use the Oceans, Seas and Marine Resources for Sustainable Development (5–9 June 2017), made by Minister for Employment and Small Business, Pat Breen TD.

Correspondent Reports—Cubie 239 Ireland will legislate domestically to prohibit the sale or manufacture of certain products containing microbeads including not just cosmetics, but also body care and cleansing products as well as detergents and abrasive surface cleaning products … It will not solve the microplastic problem, but it is an important start.101

These commitments were reiterated at a second major marine conference held in Malta in October 2017, where the Minister of State for the Diaspora and International Development, Ciaran Cannon TD, announced €6 million in funding for marine research as well as the commencement of a Global Citizenship, Marine Environment education module for Irish school children.102 HUMAN RIGHTS

As proposed in the review of Ireland’s foreign policy which was undertaken in 2014–15,103 an Inter-Departmental Committee on Human Rights was convened in September 2016. The objective of the Committee is to improve the coherence of the promotion and protection of human rights in Ireland’s foreign policy. It is also mandated with assisting progress towards ratification by Ireland of key international human rights treaties and reporting to the UN and Council of Europe human rights monitoring bodies.104 A further meeting was held in January 2017, where the ­Minister of State for the Diaspora and International Development, Joe McHugh TD, underlined the centrality of human rights to every aspect of the Government’s work at home and abroad.105 Separately, under the Good Friday Agreement, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, hosted a meeting of the All-Island Civic Dialogue on Human Rights in February 2017 to consider how the human rights provisions in the Good Friday Agreement could be protected and upheld during the Brexit process. In advance of the meeting, Minister Flanagan noted: The UK’s decision to leave the European Union raises significant and complex issues for the island of Ireland. It is essential that the Government hears from all parts of society on how to manage Brexit collectively on an all-island basis.106

101  DFAT, ‘Ireland Supports Sustainable Development Goals at UN Oceans Conference’, Press Release (7 June 2017). 102 DFAT, ‘Ireland Announces Commitments at Our Ocean Conference in Malta’, Press Release (6 October 2017). 103  As reported in IYIL (n 1). 104 DFAT, ‘Minister McHugh Convenes Inter-Departmental Discussions on Human Rights’, Press Release (28 September 2016). 105 DFAT, ‘Minister McHugh Convenes Inter-Departmental Discussions on Human Rights’, Press Release (25 January 2017). 106  DFAT, ‘Minister Flanagan Convenes All-Island Civic Dialogue on Human Rights under the Good Friday Agreement’, Press Release (13 February 2017).

240  The Irish Yearbook of International Law 2016–17 In November 2016, the Council of Europe Commissioner for Human Rights, Nils Muižnieks, undertook his first official visit to Ireland. In welcoming Commissioner Muižnieks, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, noted that: Ireland shares the Commissioner’s commitment to creating and maintaining space for civil society, ensuring the protection of human rights defenders, and the prevention of discrimination based on sexual orientation and gender identity.107

Despite these official events, Ireland’s ongoing lack of ratification of the UN ­Convention on the Rights of Persons with Disabilities108 was highlighted throughout the reporting period. Although Ireland was one of the first countries in the world to sign the Convention in early 2007, by the end of 2017 Ireland had become the only EU Member State not to have ratified it. As noted by Senator John Dolan, the failure to ratify ‘is a long-running national embarrassment and quite ­inexplicable’.109 Despite the then Minister for Justice and Equality, Francis Fitzgerald TD, introducing the Disability (Miscellaneous Provisions) Bill in December 2016,110 the Convention remained unratified at the end of 2017. Separately, Donal Toolan, a tireless advocate and one of the founders of the disability rights movement in Ireland, passed away in April 2017. Professor Gerard Quinn, Director of the NUIG Centre for Disability Law and Policy, commemorated his achievements and legacy: We have now lost Donal. And we recently lost Frank Mulcahy and Martin Naughton. Together they were the best generation. They reminded people that the founding ideals of this Republic over 100 years ago concerning the inherent equality of all citizens was just an empty myth for several generations of people with disabilities. But they were equally clear that it was also an ideal worth fighting for. Its time now for a new generation to emerge and take the baton. Donal lit a bright path for them. We mourn his loss, treasure our memories and will try hard to send the next generation on their way in his—and their—honour.

OVERSEAS DEVELOPMENT AID AND HUMANITARIAN ASSISTANCE

There was a substantial growth of Irish Overseas Development Assistance (ODA) in 2016—from €647.56 million in 2015 to €723.71 million in 2016, representing a 12 per cent increase. However, reflecting the overall improvements in the Irish economy, this real increase only equated to a 0.01 per cent increase in the proportion of Irish Gross National Product (GNP) which is provided as ODA. The Irish

107  DFAT, ‘Minister Flanagan Meets with Council of Europe Commissioner for Human Rights’, Press Release (23 November 2016). 108 UN, Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 (adopted 13 December 2006, entered into force 3 May 2008). 109  J Dolan, ‘A decade on and UN Convention on Disability Rights still not Ratified’ The Irish Times (29 March 2017). See also: ‘FactFind: Why on Earth hasn’t Ireland Ratified the UN’s Convention on Disabilities?’ TheJournal.ie (9 September 2017), available at www.thejournal.ie/factfind-un-crpd-3595556Sep2017/ (last accessed 6 August 2018). 110  For analysis of the Bill, see Submission from the Centre for Disability Law and Policy, NUI Galway on the General Scheme of the Equality/Disability (Miscellaneous Provisions) Bill (November 2016), available at www.nuigalway.ie/centre-disability-law-policy/research/legislativesubmissions/ (accessed 6 August 2018).

Correspondent Reports—Cubie 241 Government’s long-standing commitment is to achieve the UN target of spending 0.7 per cent of Gross National Income (GNI*)111 on ODA. The breakdown of Irish ODA for the period 2011–2016112 is set out in the following table: Year

2011

2012

2013

2014

2015*

2016

Total ODA Budget (€ millions)

657.0

628.9

637.1

614.9

647.5

723.71

% of GNP

0.50

0.47

0.46

0.39

0.32

0.33

the Irish Aid Annual Report 2015 (p.48) stated that the ODA budget of €647.5 million equated to 0.36% GNP. However, the Annual Report 2016 (p.52) states that the ODA budget of €647.5 million for 2015 equated to 0.32% GNP. No explanation is given for this discrepancy in the text. * Note:

Over the course of 2016 and 2017, the Irish Government provided humanitarian assistance in a variety of emerging and ongoing crises. Additionally, the Irish ­Government provided €14 million to the UN Central Emergency Response Fund for 2017, which Minister Flanagan stressed ‘provides a lifeline to forgotten and underfunded crises such as those in the Central African Republic, DRC, Burundi and Libya. It is vitally important that Ireland continues to be supportive of this work.’113 Likewise, in his September 2017 address to the UN General Assembly, the M ­ inister for Foreign Affairs and Trade, Simon Coveney TD, highlighted that: Ireland is proud of its strong and targeted contribution to eradicating global hunger, reducing extreme poverty, addressing conflict and instability and responding to humanitarian crises wherever they occur. And it is horrifying to think that in 2017 we have four famines, effecting more that 20 million people, 70% of them children, and that we as an international community have allowed that to happen, knowing that it was on the way.114

Looking to the future, in September 2017, the Taoiseach Leo Varadkar re-affirmed the Government’s commitment to ODA,115 and the 2018 Budget allocated an additional €26 million for Irish Aid. In welcoming the increase, the Minister for Foreign Affairs and Trade, Simon Coveney TD, stated: We […] remain committed to making incremental, sustainable progress towards the UN target of providing 0.7% of GNP in ODA. As the Taoiseach has said, we need a clear roadmap towards the achievement of this target and I will be bringing proposals in this respect to Government early next year.116

111  As explained by the Central Statistics Office (CSO): ‘Modified GNI (or GNI*) is defined as GNI less the effects of the profits of re-domiciled companies and the depreciation of intellectual property products and aircraft leasing companies. This new indicator of the level of the Irish economy will be a useful additional input to debt ratio analysis’. See: CSO, Press Statement Macroeconomic Releases Year 2016 and Quarter 1 2017 (14 July 2017, available at www.cso.ie/en/csolatestnews/pressreleases/2017pressreleases/ pressstatementmacroeconomicreleasesyear2016andquarter12017/ (last accessed 6 August 2018). 112  The equivalent figures for 2017 are not yet available. 113  DFAT, ‘Minister Flanagan & MoS McHugh Announce €14 million in Humanitarian Funding to the UN CERF’, Press Release (13 December 2016). 114  DFAT, ‘UNGA Address: Simon Coveney’ (n 9). 115 Dóchas, ‘Dóchas Welcomes Taoiseach’s Commitment to Increase overseas aid’, Press Release (14 September 2017). 116  DFAT, ‘Minister Coveney Announces New Diplomatic Missions, Reinforced Brexit and Increased ODA’, Press Release (10 October 2017).

242 

Book Reviews

244 

David Fennelly, International Law in the Irish Legal System (Dublin, Round Hall Thomson Reuters, 2014) 388pp ISBN: 9780414034815 Price: €235 Global and domestic events infrequently require those not concerned with ­international legal developments to know the minutia of Ireland’s approach to international law. Nonetheless, when those moments arise detailed guidance is a must. A present example is the constitutional upheaval of Ireland’s nearest neighbour as the UK redefines its place in the world, which in turn requires Ireland to reconsider its legal relationship with the UK and the wider European and Global neighbourhood. In those moments a clear sighted, detailed and engaging volume on Ireland’s relations with the rest of the world is necessary. David Fennelly’s book International Law in the Irish Legal System is a very welcome addition to the international law canon, and from an Irish perspective, a necessary outlining of Ireland’s position on and approach to international law. For those in Ireland, teaching, researching, going before the courts, or developing policy this book offers great insight. Externally, those who engage with Ireland, who want to know its state practice, to enforce international law before its courts, or understand Ireland’s external policy will find this book to be an excellent resource. Ireland has a long history of engagement with international law. This volume gives proper credit to both Ireland’s role as an actor within international law but also its attitude towards its international obligations. Brexit offers an excellent example of the types of questions now facing lawyers— academic and practitioner—as well as policy makers in Ireland. A series of questions arise that have partial if not wholly international legal answers and which necessitate an understanding of how international law is interpreted, implemented and enforced in Ireland. First, the nature of the future border with Northern ­Ireland, how Ireland will police the EU’s external border, the potential for World Trade Organisation complications and how to operate customs checks. Second, fishery rights, an area long since considered to be archaic regarding the UK, where dormant claims may have to be reasserted. Third, a maze of bilateral trade, individual and political arrangements, some treaty, some practice, some statute based are now suddenly under the microscope. Of particular import is the nature of the Common Travel Area: is it treaty based or only partially so or is it something else entirely and how is it to be implemented post Brexit? Fourth, of real concern is the Good Friday/Belfast Agreement as a bilateral treaty between London and Dublin. The Good Friday/Belfast Agreement has become a significant factor as Ireland seeks to work with the UK in its new non-EU guise and as the EU incorporates protecting the peace into its Brexit negotiations. Naturally, there are many other questions that will arise as Brexit proceeds and is implemented over the coming decades, but when setting out to answer these questions, when needing to know the detail of Ireland’s international legal practice, David Fennelly’s book is not only an excellent place to start but is also one of the few places you will find discussion of Ireland and the EU as an international legal issue. This is besides the wider international issues that the book discusses relating to climate change, environmental law, trade law, Ireland’s relationship with human rights treaties and their enforcement mechanisms, i­nternational criminal law and migration. Each of these topics makes a book of this sort invaluable.

246  The Irish Yearbook of International Law 2016–17 The range of books on international law within Ireland or about Ireland is limited. Antony Carty’s Was Ireland Conquered? International Law and the Irish ­Question (Pluto Press, 1996); Gernot Biehler, International Law in Practice: An Irish ­Perspective (Round Hall, Dublin, 2005); Documents on Irish Foreign P ­olicy ­Volumes  I–X (1919–1957) (Royal Irish Academy, 1997–2017); Siobhán ­Mullally, Cliodhna Murphy, Liam Thornton, Migration, Asylum and Citizenship Law in ­Ireland: New Borders (Bloomsbury Publishing, 2017); Francis Boyle, United ­Ireland, Human Rights and International Law (Clarity Press, 2012); Fiona de ­Londras and Cliona Kelly, European Convention on Human Rights Act: Operation, Impact and Analysis (Round Hall, 2010); and of course this Yearbook are amongst the very few that tackle Ireland’s practice as an actor within international law and how this is translated into the domestic sphere directly. There are of course c­ hapters on international law and Ireland in several collections and articles published on various ­elements of Irish practice.1 Of these publications, Biehler’s 2005 book comes closest in substance to Fennelly’s volume, yet they remain distinct. The Biehler book focuses on international law from an Irish perspective and in many ways is more akin to a traditional international law textbook with an Irish flavour, whereas the Fennelly book focuses more on Irish practice and the use of international law domestically. Both books sit alongside each other in taking Ireland’s contribution to international law and practice seriously, but are distinct in their contributions to our understanding of how international law and Ireland interrelate. As Fennelly correctly suggests, except for human rights and EU law, there is a general neglect within scholarship on the implementation of international law within the Irish Legal System. Arguably this inattention is manifested in some of the judgments emerging from Irish Courts which traditionally significantly undervalue or misuse international legal arguments.2 One strength of the book is its focus on case law, unpicking what for some might seem like quite an extensive array of cases before the Irish Courts, as well as those pertaining to Ireland beyond its shores including the Court of Justice of the European Union (CJEU), the European Court of Human

1  For articles specifically on Ireland and international law beyond this journal published in Ireland see: Brian Ó Beirne, ‘An Eye for that Blind Eye: Retributive Justice As a Means to Re-Legitimating Ireland’s International Law Obligations Post-Rendition’ (2010) 10(1) Hibernian Law Journal 193; Claire Michelle Smyth, ‘Restrictive Abortion Laws as Torture in International Law’ (2016) 34(9) Irish Law Times 127; Liam Thornton, ‘The Rights of Others: Asylum Seekers and Direct Provision in Ireland’ (2014) 3 Irish Community Development Law Journal 22; Michael Lynn, ‘Hathaway and the Rights of Refugees under International Law’ (2006) 11 (2) Bar Review 69; Patrick T Eicher, ‘International Forum Shopping: The Mox Plant Case and the ECJ’ (2008) 30(1) Dublin University Law Journal 367; Alan DP Brady and James Mehigan, ‘Universal Jurisdiction for International Crimes in Irish Law’ (2008) 43 Irish Jurist 59; Christopher Campbell, ‘Has Ireland done enough to Prevent Extraordinary Rendition?’ (2009) 27 Irish Law Times 122; CR Symmons, ‘The Criminal Law (Jurisdiction) Act 1976 and International Law’ (1978) 13 Irish Jurist 36; Áine Ryall, ‘Beyond Aarhus Ratification: What Lies Ahead for Irish Environmental Law?’ (2013) 20(1) Irish Planning and Environmental Law Journal 19. 2  Some recent cases to refer to international law in their judgments include HAH v SAA & ors [2017] IESC 40. Critically, this includes the very first reference by an Irish Court to a General Comment from an International Human Rights Body, in this instance the United Nations Committee on Economic, Social and Cultural Rights; and NVH v Minister for Justice & Equality & ors [2017] IESC 35. For a historic example of some interesting interpretations of international law by Irish Courts see McGimpsey v Ireland [1990] 1 IR 258.

Book Reviews 247 Rights, and the International Tribunal for the Law of Sea amongst others. The range of cases discussed in the book makes the general lack of engagement by the Irish Courts more puzzling as this neglect does not correspond with a lack of import for the Irish Legal System. As Fennelly argues, international law is at the core of the foundation of the state and it was through international law that Ireland sought to establish itself as an independent state through the League of Nations. Indeed, during the years before 1921 Ireland engaged directly with and utilised international law in its attempts to gain recognition as a state.3 Of particular value is the prism of Ireland’s relationship with the EU. The relationship between the EU and Ireland is one of the key narratives that this book establishes and is interesting in light of Brexit, when Ireland’s partner in membership— the UK—will go down another path. Not all EU lawyers are necessarily comfortable seeing EU law as a genre of international law.4 Yet, by regarding EU law as part of the complex international system that Ireland operates within and the insights gained by that approach, the arguments for doing so far outweigh any qualms regarding the special status sometimes accorded to EU law by either EU lawyers ignoring international law or international lawyers deciding to sidestep discussions of EU law. The ease in which Fennelly works with both international and EU law is one of the real strengths of the scholarship in this book and it is an approach rarely taken by scholars and ought to be applauded. This book provides a clear point of navigation through the complexities of constitutional jurisprudence and broader EU evolution demonstrating that the ease of monist/dualist categorisations of domestic legal orders is perhaps no longer fully sustainable, albeit the impact of Brexit suggests a push back towards a more traditional approach by some. The discussion of the theoretical elements of the monist/dualist debate is useful in understanding recent political debates on the role of international law, and international organisations including the EU, Council of Europe and the UN in Ireland even if, for some formalist legal academics, there is no longer purchase in that debate. The debates before the Oireachtas Joint Committee on the Eighth Amendment of the Constitution about the nature of UN Human Rights Treaty Bodies’ General Comments and the evolution of international human rights law are a clear example of how the integration and acceptance of international obligations into Irish law is perceived.5 Structurally, the book centres around the sources of international law, although it takes this in a broad sense not limiting itself, which is very often the case, to the sources set out in the International Court of Justice Statute. Treaties, EU Treaties,

3  Documents on Irish Foreign Policy Volume I (1919–1922) (Royal Irish Academy, 1997); Michael Kennedy, Ireland and the League of Nations, 1919–1946: International Relations, Diplomacy and ­Politics (Irish Academic Press, 1996). 4 See for instance, Andrés Delgado Casteleiro, The International Responsibility of the European Union: From Competence to Normative Control (Cambridge University Press, 2016) 1–3; Karen J Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford University Press, 2001). 5  Transcripts from the Joint Committee on the Eighth Amendment to the Constitution are available at http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/committeedatelist?read form&year=2017&code=EA (last accessed 17 May 2018).

248  The Irish Yearbook of International Law 2016–17 customary international law, acts of international organisations, decisions of international courts and tribunals form the main chapters, with a final seventh chapter dedicated to specialised areas of practice such as commercial, criminal, environmental, family, human rights, immunities, immigration and taxation. While this may not be a comprehensive overview and the unforeseen impact for example, on fisheries post-Brexit, or the increasingly international legal interventions in counterterrorism mean that there are gaps in its coverage, the comprehensive nature of the other ­sections of the book means that a reader ought to be well equipped to enlighten themselves of the relevant location of answers within the Irish legal system. The gaze is very much on Ireland looking outward. Rarely does the gaze directly turn the other direction, although Fennelly is clear when there are gaps between Irish practice and Ireland’s international obligations. Whilst a more critical approach may have questioned Ireland’s claimed leadership in developing certain areas of international law from neutrality to women in armed conflict, the book’s aim is different, and within its descriptions of cases and practices it is possible to see where Ireland falls short of its own claims to be a ‘good international citizen’. A common thread throughout the book is the constitutional space given to international law in Ireland, most obviously through Article 29 of the Constitution but also through Articles 40–44 and the Irish Court’s jurisprudence. In particular, it highlights how international law as a constitutional value is of particular import to the cases that have come before the courts. Arguably whether the Courts always pay heed to these moments and utilise the space they have to exploit international law is questionable. Certainly, the book establishes how Ireland likes to see itself as a ‘good’ member of the international legal community.6 This is so even though on more difficult issues such as historical justice claims for the Magdalene ­Laundries, symphysiotomy, Traveller Rights, abortion and economic and social rights, Ireland’s sluggish responses suggests it perhaps is not as righteous as it would like to see itself within the prism of constitutional values. Indeed, in many ways the courts hide behind the Constitution and, at times, feign appreciation for international law. Fennelly h ­ elpfully points out where CJEU and EU law more generally are used circumspectly in incidences before the Irish Court. This book successfully sets out the spaces in which debates as to the salience and utility of international law play out and points to some of the inconsistencies that abound. In particular, it demonstrates where the Europeanisation of international law has caused distinctive trends to emerge. While the book does not repeat this activity as acutely regarding international human rights or environmental obligations, in demonstrating the manner by which the Courts sidestep obligations and what arguments can be made within the strictures of Irish law it sheds a light on the possibilities, thus far largely unacknowledged by Courts, for international law in Irish courts. David Fennelly’s book is a very welcome, necessary and accomplished addition to the Irish legal landscape. It highlights the import of international law to

6  For a discussion of the use and misuse of international law in Irish Courts see Máiréad Enright, Julie McCandless and Aoife O’Donoghue (eds), Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Bloomsbury Publishing, 2017) Chapters 5, 11, 13 and 28.

Book Reviews 249 ­ ractice, even where courts are hostile to arguments, to academia in understanding p how I­reland goes about fulfilling its obligations and contributing to state practice, and for the ‘outsider’ seeing how Ireland really regards itself within the international legal sphere. It makes Irish state practice readily available. At a time when international law has re-emerged as critical to our relationship with our nearest neighbour, it is reassuring to know such a comprehensive tome is available to those trying to find out what Ireland actually does when it comes to international law. For those long engaged in trying to get Irish policy makers and courts to acknowledge their ­international obligations, this book offers guidance about how this might be achieved. Aoife O’Donoghue Professor of Law, Durham University Anne Peters, Beyond Human Rights: The Legal Status of the Individual in ­International Law (translated by Jonathan Huston) (Cambridge, Cambridge ­University Press, 2016) 644pp ISBN: 9781107164307 Price: £89.99 Beyond Human Rights: The Legal Status of the Individual in International Law1 is a translation by Jonathan Huston, revised and updated by the author, Anne Peters, of the 2013 monograph entitled Jenseits der Menschenrechte: Die Rechtstellung des Individuum sim Völkerrecht.2 A valuable and extensive analysis is provided on the rise in prominence of the individual in International Criminal Law, the Law of Armed Conflict, the Responsibility to Protect doctrine (R2P), law regulating humanitarian assistance, Investment Law, Consular Law and Diplomatic protection. The book claims that the individual has international legal personality, defined as ‘the capacity to be a holder of international rights and duties’.3 However, the central proposition is that the ‘massive increase … in the practice and opinio juris of acknowledging rights and duties on a large scale has … crystallised … an o ­ riginal (primary) international legal personality of the human being’.4 Treaty provisions, customary international law, general principles of law under Article 38(1) of the Statute of the International Court of Justice5 (ICJ Statute) all indicate the original personality of the individual, unassailable and untouchable by the traditionally accepted central subject of international law: the state.6 Further, Article 6 of the ­Universal Declaration of Human Rights and Article 16(2) of the International

1 Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (­translated by Jonathan Huston) (Cambridge, Cambridge University Press, 2016). 2 Anne Peters, Jenseits der Menschenrechte: Die Rechtstellung des Individuum sim Völkerrecht (T­übingen: Mohr Siebeck, 2014). 3  Peters (n 1) 2, 32, 50. 4  Peters (n 1) 551 [emphasis added]. 5  Statute of the International Court of Justice (adopted 26 June 1945). 6  Peters (n 1) 551.

250  The Irish Yearbook of International Law 2016–17 Covenant on Civil and Political Rights, stating that ‘[e]veryone has the right to ­recognition everywhere as a person before the law’, confer international individual personality.7 This new international legal status is an expression of a normative individualism: ‘politics and law ultimately should be guided and justified by the concerns of the persons affected by them’.8 Peters’ argument is convincing in relation to individuals having capacity to bear rights and duties. However, the claim that the empirical study demonstrates original international legal personality, and that all of the doctrinal chapters represent a strengthening of the position of the individual in international law, may be ­ challenged. This review is divided into two sections addressing these two points.9 The first s­ ection questions the assertion of original (primary) international legal personality of the individual: that there is evidence that international individual legal personality is not dependent upon state consent and to demonstrate instances of where the individual possesses law-creating power.10 The argument here is that Peters, first, predominantly recognises that non-state actors fall short of law-making capabilities; second, that the example of law-making capacity in Tadić does not withstand scrutiny;11 and further, the claim that international courts ‘consolidate’ individual international personality is not fully made out. The second section of this review addresses one of the chapters that purportedly evidences a strengthening of individual legal personality: Chapter 8 addressing the development of the R2P doctrine. I argue that the doctrine of R2P does not in principle or practice illustrate prioritisation of the individual over states in international law. INDIVIDUAL LEGAL PERSONALITY AS INDEPENDENT FROM THE STATE

In order to support Peters’ proposition that there exists original international legal status, the international legal personality of the individual cannot be dependent upon state consensus and states cannot be the only actors with the capacity to create international law.12 Original legal personality of the individual is usually denied on the grounds that only states can grant—or set aside—individual legal status, most obviously in relation to treaty-making but also through individual rights conferred under customary international law, which can ‘fall desuetude pursuant to state practice’.13 Positive international law needs to be generated by ‘direct’ democratic procedures without mediation by states, created directly by non-state actors.

7 

Peters (n 1) 551. Peters (n 1) 553. 9  For a fuller overview of the layout and content of the book, see Andreas Th Müller, ‘Anne Peters, ­Jenseits der Menschenrechte: Die Rechtstellung des Individuum sim Völkerrecht (Tübingen: Mohr ­Siebeck, 2014)’ (2015) 26(1) European Journal of International Law 295. 10  Ibid 434. 11  International Criminal Tribunal of Yugoslavia (ICTY), Case No IT-94-1-AR72, Prosecutor v Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber of 2 October 1995. 12  Peters (n 1) 434. 13  Peters (n 1) 409. 8 

Book Reviews 251 For Peters, although transnationally operating businesses, arbitral tribunals, nongovernmental organisations and certain international organisations can participate in discourse relating to norm creation, they are still not empowered to create binding norms of international law.14 She cites the International Criminal Tribunal of ­Yugoslavia (ICTY) Appeals Chamber in Tadić as stating that the behaviour of insurgents contributes to the formation of new rules in the law of armed conflict15 as support for the proposition that non-state actors can potentially participate in law creation through their behaviour. However, this is a misconstruction of Tadić insofar as the Appeals Chamber merely recognised the lack of rules and regulation on nonstate actor activity in non-international armed conflicts (NIACs). Only Common Article 3 to the Geneva Conventions and the 1977 Additional Protocol II regulated NIACs prior to Tadić. Tadić expanded rules applicable to NIACs by analogy to rules concerning international armed conflict (IAC), justifying the application of rules traditionally regulating IACs to the context of insurgencies in order to facilitate the development of international criminal law and prosecution of non-state actors: Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign states are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State?16

The Appeals Chamber did not endorse the view that insurgents could create law but that the activity of non-state actors should come within the jurisdiction of the ICTY to facilitate their prosecution. The non-state actors would have argued that this development was in contravention of the principle of nullem crimen sine lege and would not have perceived it as an endowment of law-making powers. The development of international law by international courts has strengthened and expanded rights, ‘consolidat[ing]’ individual international personality, according to Peters.17 While it is true that international judges and arbitrators enjoy ­judicial independence and this means that the development of law occurs without direct state control, this does not necessarily provide an indication of individual international legal personality. A sufficient connection is not made between the individual bringing the complaint who wishes to influence global governance—­insofar as it affects them—through instigating proceedings at an international court, and the decision made by the international judge to perhaps grant or not grant the ­individual’s wishes. An international judge who makes a decision in adversarial proceedings on the application of law to a given set of circumstances is not the same as the ­individual participating in law-making processes. While international judicial proceedings may facilitate individual participation in producing international law

14 

Peters (n 1) 545. Peters (n 1) 547 citing Tadić (n 11) [108]: ‘In addition to the behaviour of belligerent States, Governments and insurgents, other factors have been instrumental in bringing about the formation of customary rules at issue.’ 16  Prosecutor v Tadić (Interlocutory Appeal on Jurisdiction) [97]. 17  Peters (n 1) 549. 15 

252  The Irish Yearbook of International Law 2016–17 and increasing democratic accountability,18 that connection is not explicitly made here by Peters. Unconsidered are arguments as to whether international courts have law-making capacity at all, and debates on their legitimacy as law-making bodies as a minority of elites. Further discussion may have helped explain how they potentially facilitate original individual legal personality. After stating that international court decisions consolidate individual legal ­personality, Peters concedes that court judgments are no substitute for democratic international law-making. In particular, courts only provide ex post accountability and not anticipatory accountability.19 What is required is a dual democracy, individual participation through domestic democratic participation procedures and direct individual participation in global governance, for original individual international legal personality to exist.20 Peters’ conclusion that individuals are ‘halfway between ownership of rights and capacity to make law’ is not synonymous with original international legal personality.21 A separate, but overlapping, argument posited is that courts provide an independent source of individual legal personality as interpreting bodies increasingly move away from reliance on the original intent of state drafters of the treaty and towards implicit protection of the individual.22 While Müller welcomes Peters’ focus on ‘individual rights’ as distinct from ‘human rights’,23 the latter would have helped the development of the argument on how courts have, or have not, contributed to the crystallisation of individual legal personality. The International Court of Justice decision in the La Grande Case24 may represent an instance of where courts used their interpretation powers to prioritise the individual, but what of the voluminous human rights jurisprudence, including non-human rights courts, taking into account human rights: will this body of jurisprudence not have a bearing on whether there is a visible normative shift towards the individual in international law, and whether the individual is prioritised over the state? Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides that ‘any relevant rules of international law applicable in the relations between the parties’ must be taken into account in the interpretation of treaties.25 In this context, courts overseeing compliance and enforcement of their respective constitutive treaties may take into account human rights in their interpretation of the requirements of those provisions. For example, the Kadi decision of the European Court of Justice

18  See further, Jane M Rooney, ‘The Paradox of Extraterritoriality at the European Court of Human Rights: A Global Constitutionalist Approach’ (Doctoral Thesis, 2016) available at http://etheses.dur. ac.uk/11888/ (last accessed 17 May 2018). 19  Peters (n 1) 550. See MacDonald and MacDonald who argue that ex post accountability can ­suffice as a form of democratic accountability: Terry MacDonald and Kate MacDonald, ‘Non-Electoral Accountability in Global Politics: Strengthening Democratic Control within the Global Garment Industry’ (2006) 17(1) European Journal of International Law 89. 20  Peters (n 1) 550. 21  Peters (n 1) 551. 22  Peters (n 1) 414–15. 23  Müller (n 9) 295. 24  La Grande (Germany v Italy) (2001) ICJ 466. 25 Vienna Convention on the Law of Treaties (adopted on 23 May 1969, entered into force on 27 ­January 1980).

Book Reviews 253 on 18 July 2013 and the Nada v Switzerland decision of the European Court of Human Rights in September 2013, both gave preference to human rights standards over UN Security Council (UNSC) sanctions under the UNSCR 1267 (1999) sanctions regime.26 The outcome of those decisions provides strong evidence of the ­prioritisation of the individual that would give great credence to the ambitious thesis put ­forward by Peters. In contrast, the European Court of Human Rights in Jones v United Kingdom upheld the immunity of Saudi Arabian state officials accused of torture, pursuant to the International Court of Justice’s Jurisdictional Immunities judgment which clearly accepted prioritisation of state immunity over the jus cogens norm.27 These decisions on fundamental human rights norms versus state immunity should have been included in the context of a thesis on the new normative shift of prioritisation of individual over the state, and would have tempered the normative appraisal. Consideration of the effect of human rights on other international law norms and vice versa may have also served to paint a more accurate picture of whether it is true that international law obligations are increasingly oriented towards the individual to substantive claims of crystallisation of original individual legal personality independent of the state. International human rights courts often defer to states in establishing the content of rights, indicating prioritisation of the state over the individual. For example, the ‘margin of appreciation’ in the European context has led to blanket bans on the burqa,28 a conception of reproductive rights that prioritises domestic consensus over European and international consensus,29 and the killing of 800 civilians who were hostage to Chechen terrorists as a proportionate use of force by the Russian state,30 to name a few instances of where the state is prioritised over the individual. Judges do not necessarily find in favour of the interests of the individual as the more powerful state actors can be determinative of the very existence of the international organisation for which they adjudicate. Human rights jurisprudence is unavoidably illuminating in deciding whether there is an emerging original international legal personality, and there are many indications that the state is prioritised over the ­individual in this context. Article 38(1) of the ICJ Statute stipulates that in order to qualify as a general principle of international law, the principle needs to be widespread in domestic law and transposable to the international level.31 Peters contends that there is universal recognition of legal personality of the individual in private law: all individuals can

26  European Commission & the Council of the European Union v Yassin Abdullah Kadi, joined Cases C-584/10 P, C-593/10 P and C-595/10 P [2013] ECR; Nada v Switzerland, Application no 10593/08 (ECtHR, 12 September 2012). See further, Erika de Wet, ‘From Kadi To Nada: Judicial Techniques ­Favoring Human Rights Over United Nations Security Council Sanctions’ (2013) 12(4) Chinese Journal of International Law 787. 27  Jones v United Kingdom (2014) 59 EHRR 1; Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) (International Court of Justice, General List No 143, 3 February 2012). 28  SAS v France [2014] ECHR 695. 29  A B C v Ireland (2011) 53 EHRR 13. 30  Tagayeva v Russia, Application no 26562/07 (ECtHR, First Section 13 April 2017). 31  Peters (n 1) 421.

254  The Irish Yearbook of International Law 2016–17 contract, buy property, make wills, etc. However, she neglects that some private law transactions are not available to all individuals, not even in liberal-thinking, ­western democratic societies. One example is the private transaction of marriage which creates rights and obligations between spouses. In Northern Ireland, in the United Kingdom, same-sex marriage is prohibited and the marriage of a same-sex couple in a different jurisdiction will not be acknowledged as their legitimate legal status in Northern Ireland for the purpose of pursuing further private transactions.32 The state decides who can engage in this private transaction and from whom private rights and obligations can ensue, which does not point to recognition of original ­individual legal personality. It is not apparent that there exists under Article 38(1) ICJ Statute a widespread recognition of domestic original individual legal personality. Ultimately, the book leaves us less than certain that non-state actors are close to establishing an ability to create law or that there has been a ‘massive increase … in the practice and opinio juris of acknowledging rights and duties on a large scale’ which has then ‘crystallised … an original (primary) international legal personality of the human being’.33 RESPONSIBILITY TO PROTECT

While Müller commends the careful distinctions drawn between lex lata and lex ferenda by Peters, they should be viewed with greater suspicion in the context of the broader argument of the book which is that the empirical and doctrinal chapters evidence the crystallisation of a customary international norm of an international individual right. One chapter which deals with lex ferenda is Chapter 8 on R2P and humanitarian assistance. Here I argue that the doctrine of R2P does not in principle or practice provide evidence of prioritisation of the individual over states in international law. The Responsibility to Protect (R2P) is defined in the UN General Assembly World Summit Outcome Document34 as requiring that ‘[e]ach individual State … protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.35 States must take ‘collective action … through the [UN Security Council (UNSC)], in accordance with the Charter, including Chapter VII, on a case-by-case basis … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations’.36 Peters is an advocate of R2P, and recognises the normative desirability of a shift from the state right to intervene towards a possible obligation to intervene, and from non-intervention towards non-indifference to mass crimes37 and a ‘victim-centric’ approach. State sovereignty must only be

32 

In Re X [2017] NIFam 12, 17 August 2017. Peters (n 1) 551 [emphasis added]. 34  United Nations General Assembly World Summit Outcome Document 2005, UN Doc RES/60/1, paras 138–40. 35  Ibid para 138. 36  Ibid para 139. 37  Peters (n 1) 237. 33 

Book Reviews 255 justifiable as an instrument to protect human beings. A state’s own sovereignty is contingent upon its responsibility towards the inhabitants of its territory. If a territorial state is ‘unwilling or unable’ to honour this responsibility,38 it temporarily forfeits its territorial integrity and therefore protection against third party intervention.39 Peters specifies that R2P should entail a procedural obligation to justify non-intervention, especially an obligation for the permanent members of the UNSC to justify veto.40 Whether or not R2P can be justified on the grounds that it is ‘victim-centric’ and prioritises the needs of the individual over state sovereignty itself is debatable. The ‘unwilling or unable’ doctrine, a central justification for state military intervention under R2P, was used by the Obama administration to expand the scope of the ­application of the right to self-defence under Article 51 of the UN Charter, stating that: ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including the United States … States must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense, … when, … the government of the State where the threat is located is unwilling or unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will not confront these safe-havens effectively itself. Accordingly, the United States has initiated necessary and proportionate ­military actions in Syria in order to eliminate the ongoing ISIL threat to Iraq, including by protecting Iraqi citizens from further attacks and by enabling Iraqi forces to regain control of Iraq’s borders.41

In other words, as the Syrian Government was ‘unwilling or unable’ to protect its own people and nationals of other states from the threat of ISIS, this was justification for multinational forces to resort to military intervention in Syria. This was ­without UNSC approval. In this context, Ntina Tzouvala argues that the ‘unwilling or unable’ doctrine ‘reintroduces a hierarchy of states in the operation of jus ad ­bellum’ whereby states’ rights and duties are tailored accordingly.42 This is reminiscent of the ‘infamous nineteenth-century distinction between civilised, semi-civilised and uncivilised states … civilised states enjoyed full international legal personality, while uncivilised states were just objects … of international law’.43 This ‘unapologetically’ challenges the notion of sovereign equality—that all states are sovereign and equal.44

38  Peters (n 1). See further, ‘Responsibility to Protect’, United Nations Office on Genocide Prevention and the Responsibility to Protect, available at: www.un.org/en/genocideprevention/about-responsibilityto-protect.html (last accessed 17 May 2018). 39  Ibid 237. 40  Ibid 240. 41  Samantha Power, Letter written on 23 September 2014 to Mr Ban Ki Moon, Secretary-General of the United Nations. 42 Ntina Tzouvala, ‘TWAIL and the “Unwilling or Unable” Doctrine, Continuities, and Ruptures’ (2016) 109 American Journal of International Law Unbound 266. 43  Ibid, citing James Lorimer, The Institutes of the Law of Nations: A Treaties of the Jural Relations of Separate Political Communities (London, William Blackwood and Sons, 1883). 44 Ibid.

256  The Irish Yearbook of International Law 2016–17 Therefore, rather than orienting the international legal system towards the interest of individuals, R2P in adopting the doctrine of ‘unwilling or unable’—which justifies third party intervention and undermining of state sovereignty—facilitates the use of force by powerful actors by providing a legal basis to take action against other, destabilised states. This is not so much a shift towards the individual as victim, as a consolidation of the political power of strong states against other weaker states. That foreign military intervention leads to less human loss or atrocity is not inevitable. Peters recognises that the UNSC-mandated NATO intervention in Libya ‘did not improve the situation of the population’.45 NATO admitted to a number of fatal mistakes during its 9,65846 strike sorties in Libya, including one on 19 June 2011 in Tripoli that lead to civilian deaths.47 While the number of deaths resulting from the NATO bombardment of Libya is contested, modest estimations are that 60 ­civilians were killed and 55 wounded,48 while others place the numbers into the thousands, arguing that NATO provided indispensable support for atrocities ­committed by insurgents.49 The fixation on R2P as ‘military intervention’ rather than consideration of the other two tenets of R2P—prevent and rebuild50—calls into question the real motives of foreign states that decide to intervene in territories where populations, and often the government, are vulnerable. This is evidenced in relation to the intervention in Libya. Amnesty International reported that EU Member States did ‘not adequately respond … to the unfolding human tragedy by assisting those fleeing conflict and persecution in Libya to reach safety’ despite backing the NATO campaign in Libya, and the declared raison d’être as being the protection of civilians.51 In 2017, the UN Refugee Agency (UNHCR) recorded 1,073 people dead or missing in that year alone on the treacherous passage between Libya and Italy.52 Some reports estimate that the UK spent 13 times more on the NATO bombardment than on post-conflict rebuilding.53 R2P is not sufficiently defined to be practicable or to prevent against the blurring of the line between legitimate motives of protection of a population and 45 

Peters (n 1) 6. ‘Counting the Cost of NATO’s Mission in Libya’ BBC Online (31 October 2011), available at www. bbc.co.uk/news/world-africa-15528984 (last accessed 17 May 2018). 47  NATO, ‘NATO Acknowledges Civilian Casualties in Tripoli’ (NATO, 19 June 2011), available at: www.nato.int/cps/en/natolive/news_75639.htm (last accessed 18 May 2018). 48 Report of the International Commission of Inquiry on Libya, UN Human Rights Council 19th ­Session, A/HRC/19/68. 49 Seumas Milne, ‘If the Libyan War Was About Saving Lives, it was a Catastrophic Failure’ The Guardian (26 October 2011), available at www.theguardian.com/commentisfree/2011/oct/26/libyawar-saving-lives-catastrophic-failure (last accessed 18 May 2018). 50  See, eg, Sandra Fabijanić Gagro, ‘The Responsibility to Protect (R2P) Doctrine’ (2014) 3(1) International Journal of Social Sciences 61. 51  Amnesty International, ‘The Battle for Libya: Killings, Disappearances and Torture’ (Amnesty International, 2011) 87–88. 52 Lizzie Dearden, ‘Refugee Death Toll Passes 1,600 in Record 2017 as Charities Attacked for ­Conducting Mediterranean Rescues’ Independent (22 April 2017), available at: www.independent.co.uk/ news/world/europe/refugee-crisis-migrants-asylum-seekers-mediterranean-see-libya-italy-ngos-smugglers-accusations-a7696976.html (last accessed 18 May 2018). 53  Jody Harrison, ‘UK Government Spent 13 Times more Bombing Libya than on Rebuilding Post War’ Herald Scotland (26 July 2015), available at www.heraldscotland.com/news/13499912.UK_government_ spent_13_times_more_bombing_Libya_than_on_rebuilding_post_war/ (last accessed 18 May 2018). 46 

Book Reviews 257 ­ pportunistic intervention by third party states. While Peters prescribes that the o UNSC has the status of guarantor, the ‘unwilling or unable’ doctrine is being used to justify intervention without UNSC approval.54 Peters may acknowledge that ‘the codification or recognition of a direct and transboundary international individual right to p ­ rotection … could easily be abused as an excuse for intervention and could in practice hardly or only selectively be enforced’, but it is unclear why she does not recognise these difficulties in the concept of R2P as it is currently understood. CONCLUSION

The assertion that ‘individuals take precedence over states as subjects of international law cannot be justified on the basis of international law as it currently exists’.55 While many of the developments evidenced by Peters may on their face indicate the strengthening of the position of the individual in international law, the inherent remaining weakness of the individual vis-à-vis the state should be considered when asking whether a normative shift has occurred. Global governance has shifted once again since the publication of the ­translation of the original monograph. Burundi is the first state to leave the International ­Criminal Court (ICC) amongst numerous threats of withdrawal,56 whilst contemporaneously the crime of aggression will come into force in December 2017 which may see more Western state leaders being prosecuted—or maybe not. ICC Prosecutor, Fatou Bensouda, has requested the Pre-Trial Chamber to authorise an investigation into allegations of war crimes committed by the UK and US in Afghanistan. The European Union (EU) has lost the membership of the UK, and remaining in, or leaving, the EU forms part of electoral manifestos of parties in Member States across Europe. This signifies an abrupt reassertion of the state in Europe. In the UK, it signals revocation of individual rights through the disabling of the principle of direct effect of EU law enshrined under section 2(1) of the European Communities Act 1972. This was pointed out in Miller which insisted upon parliamentary intervention for the triggering of Article 50 of the Treaty of the European Union rather than through the prerogative, as withdrawal entailed depriving UK citizens of fundamental rights.57 The status of the individual remains unpredictable rather than entrenched in international law. Whilst some specialist legal regimes have embraced the individual as a subject or potential subject, powerful state and non-state actors provide constant reminders of their vulnerability as active participants in global ­governance, which undermines the assertion of a normative shift towards prioritisation of the individual. Jane M Rooney University of Bristol Law School 54 

Peters (n 1) 248. Müller (n 9) 248. 56  Gambia and South Africa have revoked their declarations of withdrawal from the ICC. 57  R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [69]–[73]. 55 

258  The Irish Yearbook of International Law 2016–17 It Stays with You: Use of Force by UN Peacekeepers in Haiti (2017) directed by Cahal McLaughlin and Siobhán Wills, 49 minutes, English, French and Kreyol https://itstayswithyou.com/ ‘Well, there’s no one to speak to. Who would we talk to about it? … A massacre takes place in an area and no one comes to find out how many victims there were, how many people were lost, how many cases there are.’1

Documentary film provides a unique space for observation and reflection, positioning the viewer between two worlds of direct presence on the ground and the (often) spatially distant scholarly writings in academic books and journals. It constructs a third space between direct experience and abstract thought, in which the viewer is invited to participate in a mediated yet direct way. Documentary film also presents an opportunity to reach a wider audience than academic publications, and in some forms can itself participate in the process of ‘justice’, broadly conceived, by giving a voice to marginalised individuals, documenting and disseminating a historical record of events and inviting an emotional as well as critically reflective engagement from the viewer. The documentary It Stays with You: Use of Force by UN Peacekeepers in Haiti (2017) produced and directed by Cahal McLaughlin2 and Siobhán Wills3 applies these possibilities to an exploration of the use of force by UN peacekeepers in Haiti and engages broader themes of the limitations and challenges of transitional justice (TJ), especially with respect to structural inequality and marginalisation. OVERVIEW OF THE DOCUMENTARY

It Stays with You deals with the use of force by the UN Stabilization Mission in Haiti (MINUSTAH) in 2005 in the Bois Neuf neighbourhood of Cité Soleil, an area of slum housing in Port-au-Prince. MINUSTAH was mandated by the UN Security Council to provide a secure and stable environment in the face of civil unrest following President Aristide’s forced departure in 2004.4 A major problem MINUSTAH faced was violence by gangs operating from Cité Soleil and other poor neighbourhoods of the capital, which it responded to in a series of heavily militarised raids. According to It Stays with You: There were 15 major raids in Cité Soleil between 2005 and 2007. One of the largest was Operation Iron Fist on 6 July 2005 in which MINUSTAH stated it used: 22,700 firearm cartridges, 78 grenades, 5 mortar shells. US Ambassador to Haiti, James Foley, stated 1 

It Stays with You: Use of Force by UN Peacekeepers in Haiti (2017). Professor, School of Arts, English and Languages, Queen’s University Belfast. 3 Professor of Law, Ulster University. For further research undertaken by Wills on peacekeeping, see Siobhán Wills and Ray Murphy, ‘United Nations Peacekeeping Operations’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press, 2017) 585–613; Siobhán Wills, ‘Continuing Impunity of Peacekeepers: The Need for a Convention’ (2013) 4(1) Journal of International Humanitarian Legal Studies 1–32; Siobhán Wills, ­Protecting Civilians: The Obligations of Peacekeepers (Oxford University Press, 2009). 4 For information on the UN Stabilization Mission to Haiti (MINUSTAH), see www.un.org/en/ peacekeeping/missions/minustah/mandate.shtml (last accessed 18 May 2018). 2 

Book Reviews 259 ‘it is likely that rounds penetrated many buildings, striking unintended targets’. Deputy US Ambassador to Haiti, Douglas Griffiths, reported that allegations that MINUSTAH had killed twenty women and children were ‘credible’.5

Despite the magnitude of the force used and the damage caused by MINUSTAH’s operations in Cité Soleil, there was little international media coverage of the incidents, and the UN has not released the outcome of any investigation into the ­incidents. The survivors featured in It Stays with You state that the production of the documentary was the first time that they had been consulted and listened to regarding the attacks. The format of the documentary, which features extensive indirect interviews with survivors (in which the interviewee speaks directly to the viewer), challenges and confronts this marginalisation. The documentary starts with direct testimony of survivors of the raids, filmed in their corrugated iron shanty homes. Apart from the opening titles and mise-en-scène featuring street scenes in Port-au-Prince, little additional context is provided. Survivors describe indiscriminate, heavily militarised attacks by MINUSTAH that caused deaths, injuries and extensive property damage. The film continues on to corroboration from other sources and more information about the attacks, then adds a broader context of the international law framework of rights and responsibilities with respect to the process that should have been f­ ollowed and the broader transitional justice themes engaged. This part features interviews with international law experts as well as with members of international and Haitian civil society. The film then turns to the aftermath of the attacks, and closes with the theme of lack of accountability. The sparing and direct style of the documentary (which contains no voice-over narrative) lends itself well to the themes that it addresses of marginalisation and exclusion, and invites a critical reflection by the viewer on the themes raised. Apart from limited intertitles providing basic context about the events described, the documentary is very sparing with the factual background to the events that it portrays, assuming a certain level of knowledge of recent events in Haiti. The spare nature of the exposition is probably a good thing, since the explanation of the situation in Haiti and its root causes is highly politically contested and controversial, with complex and often conflicting accounts given of the underlying causes. Leaving aside these contested issues allows the viewer to focus on the key themes presented in the documentary. For the documentary to be accessible to a wider audience it would benefit from providing more background explanation about the antecedents of the incidents covered in the film, but this would result in losing an element which gives the documentary its powerful impact—the impression of immediacy and direct and unfiltered conveyance of the incidents described. THEMES RAISED BY THE DOCUMENTARY

It Stays with You provides an opportunity for reflection and critical analysis with respect to four key themes that will be addressed here: the conception of peacekeeping and its application in Haiti; process; accountability; and marginalisation. 5 

It Stays with You (n 1).

260  The Irish Yearbook of International Law 2016–17 Conception of Peacekeeping and its Application in Haiti A central reflection provoked by It Stays with You that touches on the core of the other critical issues it raises is the conception of peacekeeping and its application in Haiti. The documentary suggests or reveals how a particular conception of transitional justice—one that is primarily focussed on security—reinforces established structural inequalities and entrenches local individuals and groups in a particular power relationship with international actors (in this case, MINUSTAH). While it is acknowledged that the UN got some important things right in Haiti by applying lessons from other peacekeeping operations,6 the top-down, militarised approach employed by MINUSTAH played a key role in the failures demonstrated by this particular incident, which raise deeper questions about the aims and practice of transitional justice and peacekeeping in a transitional setting such as Haiti. The focus of the MINUSTAH mission on rule of law as a means for building a stable peace was demonstrated by the emphasis in its mandate on ensuring ‘a secure and stable environment within which the constitutional and political process in Haiti [could] take place’.7 Rule of law and policing activities have been an explicit part of all UN peace operation mandates since 2001.8 The main reason for this expansion is ‘the growing recognition from the mid-1990s onwards that establishing the rule of law is a crucial element in the transition from war to stable peace.’9 This was recognised by Boutros-Ghali’s An Agenda for Peace (1992),10 and in the Brahimi Report which recommended a doctrinal shift in the use of civilian police, other rule of law elements and human rights experts in complex peace operations to reflect an increased focus on strengthening rule of law institutions and improving respect for human rights in post-conflict environments.11

The approach of MINUSTAH to implementing its security mandate to support ­democratic processes in Haiti was heavily militarised and as the security situation deteriorated in the face of gang violence and violent crime, its efforts and resources were increasingly devoted to this part of its mandate. MINUSTAH’s original mandate provided for 6,700 troops and 1,622 civilian police. It has been questioned ‘whether

6  See, eg, Rama Mani, ‘Déjá Vu or Something New? Lessons for Future Peacebuilding from Haiti’ (January 2006) Sicherheit und Frieden, Security and Peace 1, 11–15, who includes in this category a timely response and generous allocation of ground forces; clear and strong mandate; strong leadership; mandate for local ownership (working alongside Haitian institutions); recognition by MINUSTAH senior management of ‘the need to balance security with reconciliation’ and a commitment to staying in Haiti in the long-term. 7 UN Security Council, Security Council Resolution 1542 (2004) [on establishment of the UN ­Stabilization Mission in Haiti (MINUSTAH)], 30 April 2004, S/RES/1542, para 7(I)(a). 8  Alex Bellamy and Paul Williams, Understanding Peacekeeping (Cambridge, Polity, 2010), 380, citing William G O’Neill, ‘UN Peacekeeping Operations and Rule of Law Programs’ in Agnès Hurwitz (ed), Civil War and the Rule of Law (Lynne Rienner, Boulder, CO, 2008) 95. 9 Ibid. 10  B Boutros-Ghali, ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’ Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992. SC Doc S/24111, 17 June 1992. 11  Report of the Panel on United Nations Peace Operations, 21 August 2000, A/55/305 S/2000/809, para 47(b).

Book Reviews 261 the composition and structure of the mission constituted an appropriate response to the context and needs of Haiti in 2004’ given that there was no armed conflict and it was not a ‘typical post-conflict situation’.12 Mani argues that ‘[s]oldiers who have been trained for warfare are ill-equipped to deal with such situations. … When the military takes on policing operations, the distinction between defence and security becomes blurred, which leads to move coercive and military responses’.13 The UN Security Council Resolution establishing MINUSTAH [e]mphasize[d] the need for Member States, United Nations organs, bodies and agencies and other international organizations … to continue to contribute to the promotion of the social and economic development of Haiti, in particular for the long-term, in order to achieve and sustain stability and combat poverty.14

But by not adequately addressing poverty and economic development concurrently with ensuring a secure and stable environment and supporting the political process, the transitional mechanisms in Haiti in some ways reinforced and exacerbated the effects of poverty and inequality. For instance, the opportunity cost of the peacekeeping mission has been perceived among Haitians as a ‘trade-off between poverty reduction and international intervention for peace building or justice’.15 It is also clear from the interviews in It Stays with You that the poverty of the victims played a significant role in the harm that they suffered from the MINUSTAH attacks. This was due to a lack of protection within their iron shacks, lack of access to affordable medical care after the attacks, and the trauma exacerbated by a lack of resources, such as one survivor’s account of taking the body of her dead child to the sea because the family could not afford a proper burial. Another survivor states: ‘From 3 a.m. until 2 p.m., we were cowering under the bullets … We fell victim because we lived in a corrugated iron shack’.16 At the same time, those who are most vulnerable to the gang violence and insecurity that MINUSTAH were attempting to address are the poor themselves, who live in neighbourhoods in which the gangs are operating and who often do not enjoy adequate protection by the police (who in some cases are themselves human rights violators). Yet the issue of rising gang violence that MINUSTAH was mandated to address cannot be separated from the context of political violence and the conditions that lead to the political crisis.17 By attempting to enforce security through heavily militarised means, the UN peacekeeping mission in Haiti could be criticised for not taking adequate measures to address the root causes of the violence and insecurity. On the other hand, such a critique is itself open to the counter-argument that establishing the rule of law and conditions of security is fundamental to addressing the economic problems facing Haiti due to the relationship of the political crisis with the

12 

Mani (n 6) 12. Mani (n 6) 12. 14  UNSC Res 1542 (n 7) para 13. 15 Rama Mani, ‘Dilemmas of Expanding Transitional Justice, or Forging the Nexus between ­Transitional Justice and Development’ (2008) 2 International Journal of Transitional Justice 253. 16  It Stays with You (n 1). 17  Mani (n 6) 259. 13 

262  The Irish Yearbook of International Law 2016–17 economy and with the deteriorating conditions of security in the capital. Commentators have argued that the political crisis in Haiti exacerbated the ‘already dismal economy’ and that the dismantling of the Haitian army by Aristide in 1995 ‘weakened state authority and filled the slums with disgruntled and well-armed former soldiers’.18 The link between security and development and between the rule of law and human rights is also well-interrogated.19 The prioritisation of civil and political rights through a focus on establishing the rule of law by ensuring security in Haiti raises deeper questions about the aims and practice of transitional justice and peacekeeping in such transitional settings, including its underlying assumptions and limitations. The conceptualisation of transitional justice and the particular form of justice that it seeks has been shaped by early events in its development, since the field arose in the late 1980s and early 1990s as a response to the political repression in Latin America and subsequent transition to democracy.20 These authoritarian regimes were characterised by particular types of human rights violations, such as extrajudicial executions, enforced disappearances and torture.21 Consequently, the perceived legitimate responses focused on accountability of individual perpetrators of international crimes and the consolidation of the rule of law and democracy.22 Various definitions of transitional justice highlight this ‘distinctive conception of justice’ and its unique temporal context of ‘transitioning societies’.23 The perception of the transitions during this early period formed part of a discourse of progress towards democracy, which failed to consider underlying structural inequality.24 This paradigm conceptualised transitional ­justice as a process of negotiation between political elites rather than a broader socio-economic ­transformation.25 This narrow understanding of ‘transition’ ignores that the limbo between conflict or repression and genuine democracy is not exceptional but widespread.26 However, Ruti Teitel argues that despite the rise of ‘steady-state transitional justice’, transitional periods share common elements and unique challenges that should shape the type of justice being sought.27 Ultimately the scope of transitional justice depends on the type of justice being pursued. This raises the questions of whether transitional justice should address issues of structural inequality. As Teitel states, ‘transitions are rare periods of rupture which

18  David Malone and Sebastian von Einsiedel, ‘Haiti’ in Mats Berdal and Spyros Economides (eds), United Nations Interventionism 1991–2004 (Cambridge University Press, 2007) 168–91, 178 and 185. 19  See, eg, Pablo de Greiff and Roger Duthie, Transitional Justice and Development: Making Connections (New York, SSRC, 2009). 20  Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’ (2009) 31(2) Human Rights Quarterly 321, 325–26. 21  Juan Mendez, ‘Accountability for Past Abuses’ (1997) 19(2) Human Rights Quarterly 255, 280. 22  Arthur (n 20) 355. 23 See, eg, Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69, 69. 24 Rolando Ames Cobián and Félix Reátegui, ‘Toward Systemic Social Transformation: Truth ­Commissions and Development’, in de Greiff and Duthie (n 19) at 155. 25 See, eg, Guillermo O’Donnell and Philippe Schmitter, ‘Transitions from Authoritarian Rule: ­Tentative Conclusions about Uncertain Democracies’ (1986) discussed in Arthur (n 20) at 346–47. 26  Thomas Carothers, ‘The End of the Transition Paradigm’ (2002) 13 Journal of Democracy 5, 17–18. 27  Teitel (n 23) 93.

Book Reviews 263 offer a choice among contested narratives’.28 They accordingly present a transformational opportunity to bring about structural and fundamental change, by ­transforming the systems and ideology that allowed the conflict or repression to take place,29 ‘reducing the justification for further violence’,30 empowering the marginalised and opening political space.31 Issues such as extreme poverty, discrimination, inequality in distribution of and access to resources and endemic corruption fuel conflict and repression, lead to further violations of human rights and continue to affect victims after the end of the conflict or repression.32 A focus on civil and political rights violations and the rule of law overlooks the connection with related violations of economic, social and cultural rights and obscures underlying structural violence and inequality.33 This affects victims’ perception of justice and fails to address their often-precarious economic situation.34 Understanding and addressing these issues is required to effectively tailor transitional justice measures to the needs of the local population. It would also broaden the scope of individuals who benefit from its measures, and seize the transformational opportunity in transitioning societies to ‘ensure respect for human rights and human dignity’.35 Facilitating social transformation by addressing root causes and violations of all human rights is not just an imperative of abstract notions of justice, but is required to affirm the status of victims as rights bearers and empower the marginalised to participate in the (re)construction of society through active citizenship.36 However, the challenges and limitations of transitional justice measures dealing with structural inequality and addressing a wider range of rights include doctrinal, practical, political and resource issues. Violations of economic, social and cultural rights are ‘more culturally entrenched and more widespread, and therefore much harder to redress’.37 The politically and economically powerful elites in transitioning societies may feel threatened by such measures since it requires structural reform of a system that they benefit from.38 The economic and institutional situation in transitioning societies is often dire, resulting in a high opportunity cost of addressing economic, social and cultural rights.39 Seeking to address violations of these rights in addition to violations of civil and political rights may overburden transitional justice measures and result in a dilution of purpose, with attendant implications

28 

Teitel (n 23) 86–87. Ames and Reátegui (n 24) at 145. 30  Louise Mallinder, ‘Can Amnesties and International Justice be Reconciled?’ (2001) 1 International Journal of Transitional Justice 208, 209. 31  Pablo de Greiff, ‘Articulating the Links between Transitional Justice and Development: Justice and Social Integration’ in de Greiff and Duthie (n 19) at 63. 32  UN Secretary-General, Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice (2010), principle 9; Roger Duthie, ‘Introduction’ in de Greiff and Duthie (n 19) at 19. 33 Louise Arbour, ‘Economic and Social Justice for Societies in Transition’ (2007) 40 International Journal of Law and Politics 1, 4. 34  See J Herz, ‘An Historical Perspective’ in AH Henkin (ed), State Crimes: Punishment or Pardon (Aspen Institute, Queenstown, Md, 1989) at 22. 35  Arbour (n 33) 23 and 26. 36  de Greiff (n 31) at 58 and 62. 37  de Greiff (n 31) at 41. 38  de Greiff (n 31) at 41. 39  Duthie (n 32) at 19. 29 

264  The Irish Yearbook of International Law 2016–17 for garnering political, popular and donor support. In these circumstances, some ­commentators have argued that instead of expanding the scope of transitional justice, practitioners should assess and consolidate its performance with respect to civil and political rights.40 Despite these challenges, transitional justice measures arguably can and should address violations of economic, social and cultural rights and issues of structural inequality. For instance, standards should be developed to promote the careful ­ sequencing and prioritisation of different rights rather than assuming that civil and political rights are always more important.41 The issue of prioritisation has also been raised by Rama Mani, who notes that although: [t]he senior leadership of MINUSTAH came in with a clear idea that both security on the one hand and reconciliation and longer-term consolidation of peace on the other would be pursued in tandem … events got the better of them as violence and in security spiralled out of control; security dominated the agenda, ruling out any meaningful investment in reconciliation. … The lesson is that volatility and uncertainty are constant albeit unpredictable in post-conflict situations. Therefore, an attitude of waiting till improved security will permit investment in longer-term reconciliation and consolidation is ill placed. However difficult, the two must be pursued together because they reinforce each other.42

The conceptualisation of peacekeeping in Haiti and its prioritisation of security and the rule of law influenced the other critical issues addressed in It Stays with You, namely, the implementation of measures in a way that undermines other key goals of transitional justice including human rights; a lack of accountability to the local population, which raises the question of who is being served by such measures; and the key theme that runs through the documentary of marginalisation and voicelessness. Process The militarisation of law enforcement has led to a perception by some local communities and non-governmental organisations that MINUSTAH was imposing, rather than simply keeping, peace. The process of implementation of the security part of MINUSTAH’s mandate appeared to suffer from a lack of adequate training, a militarisation of the peacekeeping operation and a failure to take required steps to minimise civilian casualties. As Philip Alston (UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions 2004–2010) notes in the documentary, the standards that apply to peacekeepers in a law enforcement context are international human rights law, even if the enforcement methods are militarised: That means force should only be used to defend against a threat to life, it means that all precautions should be taken to ensure that minimum casualties take place, and that human rights should inform all of the activities of the enforcement force.43 40 Lorna McGregor, ‘Transitional Justice and the Prevention of Torture’ (2013) 7(1) International Journal of Transitional Justice 29. 41  Arbour (n 33) 13. 42  Mani (n 6) 16, fn omitted. 43  It Stays with You (n 1).

Book Reviews 265 Christof Heyns (United Nations Human Rights Committee) notes that ‘anyone who plays the role of a police enforcement official is bound by the rules of necessity, proportionality and also the requirements on the use of force’.44 While Alston and Heyns do not directly comment on the legality of the MINUSTAH operation in the documentary, the implication is that if these requirements were not met then the use of force was excessive. The choice of MINUSTAH to deploy Brazilian soldiers in armoured personnel carriers (referred to by survivors in the documentary as ‘tanks’) in a situation that was not an armed conflict was criticised by some commentators in the documentary. Camille Chalmers (Haitian Platform to Advocate Alternative Development) stated ‘[n]ot only were they shooting, also from helicopters, but they used tanks, that came in at four in the morning. We are talking about an area where the houses are quite fragile, often poorly-built, so houses were most likely destroyed.’45 Chalmers argued that MINUSTAH is geared to repressing and controlling the population of the shanty towns. … In fact, many of the MINUSTAH soldiers, many of the Brazilian soldiers said that, when they left Haiti, they were sent to Rio or São Paulo. They had been training in how to repress shanty towns and favelas, like those in Rio or São Paulo. Thus, it is clear that this is part of a general model, this MINUSTAH model.46

The militarisation of MINUSTAH’s law enforcement operations in Cité Soleil was characterised by Ricardo Seitenfus (Special Represenative of the Organization of American States in Haiti 2008–2011) as ‘offensive actions’ that were not just ‘­promoting peace [but] about imposing peace’.47 Accountability A related theme that is addressed in It Stays with You is the failure of accountability mechanisms in the aftermath of the Cité Soleil attacks. Beatrice Lindstrom, Staff Attorney at the Institute for Justice and Democracy, notes in the documentary that ‘MINUSTAH’s operations in Haiti are governed by a Status of Forces Agreement … Under that SOFA MINUSTAH has an obligation to provide compensation and support when its peacekeepers are responsible for personal injury, illness or death that’s attributable to MINUSTAH.’48 However, in practice this system is incredibly opaque, and it is very difficult for victims to actually even know that this system exists, there is no public information really available about how one might file a claim with MINSUTAH and what happens to that claim when it’s filed.49

The experts interviewed in It Stays with You point out that the international human rights law obligations to investigate the potential arbitrary deprivations of the right 44 

It Stays with You (n 1). It Stays with You (n 1). 46  It Stays with You (n 1). 47  It Stays with You (n 1). 48  It Stays with You (n 1). 49  It Stays with You (n 1). 45 

266  The Irish Yearbook of International Law 2016–17 to life, ensure accountability and provide compensation to victims were not met in this case. As Heyns notes in the film, ‘the failure to have accountability itself is a violation of the right to life’ and that the duty to investigate does not expire.50 In contrast to this required response, Camille Chalmers (Haitian Platform to Advocate Alternative Development) noted that: [a]fter [MINUSTAH] intervened in Cite Soleil in December 2006, they issued a communiqué saying it had been a ‘successful operation’ because MINUSTAH had suffered no ­casualties. But they never carried out any assessment of many people died in Cite Soleil, of how many were injured in Cite Soleil, of the material damage caused by the use of tanks. These are things that we must demand. An operation on that scale, involving hundreds of soldiers and tens of armoured vehicles, there has to be an assessment not just of the force, but of the effect on the population.51

The lack of a clear evaluation of MINUSTAH’s operations in Cité Soleil in terms of its process or its consequences for the local population reflects a top-down approach to imposing peace. The depiction of the operations in testimony in the documentary raise questions about whether MINUSTAH even gave consideration to minimising casualties or to the impacts of its operations on the community that they were supposed to serve. This in turn raises questions about who these measures were ­supposed to benefit. Furthermore, a lack of investigation and accountability represents a lost opportunity to identify ‘lessons learned’. Most of all, the lack of accountability is devastating for the survivors of the attacks, whose voices have not been heard and who continue to await redress for the harm they have suffered. Marginalisation Finally, a common thread running through all three issues above is the lack of voice of the individuals who are supposed to benefit from the transitional justice and peacekeeping measures and who bear a disproportionate amount of its costs both in terms of actual harm from their implementation, as well as the opportunity costs of such measures in the poorest country in the northern hemisphere. This marginalisation relates to the process (lack of local ownership or meaningful consultation) as well as the goals and results of transitional justice (who benefits, and who experiences the costs of such measures). This theme was noted by Ricardo Seitenfus in the film, who commented that [b]ecause there is the hope raised by MINUSTAH’s arrival, there is the immense disappointment at the results. But also MINUSTAH spent almost 12 billion dollars on itself, for its operation. 12 billion dollars could create an economic revolution in Haiti. And this was spent to keep soldiers here, in a country where there is no war.52

The allocation of resources to the peacekeeping operation is brought into contrast with a statement by a resident of Bois Neuf standing amidst the rubble of destroyed 50 

It Stays with You (n 1). It Stays with You (n 1). 52  It Stays with You (n 1). 51 

Book Reviews 267 homes, stating that ‘[w]e need help to rebuild these houses so people can live in them, so that the Haitian people who are outside, who are sleeping in the streets, those who had to leave, can return to their homes that were destroyed.’53 Scholars have also noted the perceived trade-off between security and development in Haiti. Mani notes that the expense of the UN operation has led to a ­public perception that the money is being ‘“squandered” on peacekeeping’, and that ‘[w]hen asked, Haitians have a varied list of priorities for MINUSTAH attention and international funds: infrastructure, employment, institutions, and education’.54 Mani argues that lessons to draw from this relate to the need for transparency and communication. This should include consultation with the local population on their needs, since they should be the ultimate beneficiaries of (and ideally, active partners in) international efforts at reconstruction and transitional peacekeeping. Paying greater attention to these needs may also go some way towards resolving the tension that Mani notes between two models for improving governance in Haiti, namely, UN-led (as in Kosovo), or UN-supported, and ameliorate problems of the UN being seen as a colonising or occupationist force given Haiti’s history. Ultimately the film returns to where it began, to the voices of the survivors of the attacks. One woman notes the lack of possibility of communication between MINUSTAH and the civilians they were supposed to protect due to the language barrier of the Brazilian MINUSTAH personnel and local residents. Several of the survivors say that they are happy because it is the first time that anyone has come to speak to them about the incident and listened to them. Another woman says, ‘It’s as though you’re worthless. After everything that happened, there is no one to come and talk to you, you’re worth nothing.’55 It Stays with You goes some way towards addressing this marginalisation, by placing individuals at the centre and giving them a voice and recognising their agency. A second version of the documentary (which premiered in Haiti) dubs the foreign interviews into Kreyol, so that the film can also form part of a conversation at the local level about these issues. CONTRIBUTION TO THE WIDER TRANSITIONAL JUSTICE LITERATURE

What is interesting about the format of It Stays with You is that it subverts the dominant discourse (of peacekeeping as an international, inter-organisational phenomenon in which individuals are either beneficiaries or spoilers of the process) and begins directly with the voices of the survivors and only later adds the lens of international law and corroboration and commentary from other sources. It also touches on various themes including structural inequality, poverty and the rights of women. The format provokes a direct emotional response which is then filtered through an analytical framework. Since the documentary circles back to survivors and their ­feelings of marginalisation and voicelessness, the documentary invites the viewer to critically reflect on transitional justice process and mechanisms through a particular 53 

It Stays with You (n 1). Mani (n 6) 15. 55  It Stays with You (n 1). 54 

268  The Irish Yearbook of International Law 2016–17 lens: local, and individual. The approach of It Stays with You also aligns with the critical theory approach to peace operations. Such an approach includes ‘the view that it is important to seek out and illuminate the perspectives, concerns and experiences of those whose voices are often unheard—marginalized groups, o ­ rdinary citizens, women and children’.56 The documentary highlights this key point by beginning with marginalised voices and then layering the transitional justice framework on top of this as an additional layer of interpretation. CONCLUSION

After 13 years and serious problems including MINUSTAH’s role in the deadly ­cholera outbreak following the devastating earthquake that hit Haiti in 2010 and persistent allegations of sexual abuse, the UN Security Council voted unanimously in April 2017 to withdraw peacekeepers from Haiti.57 Despite the planned ­withdrawal, the UN must ensure that it addresses the consequences of MINUSTAH’s actions in Haiti, including a full investigation of the incidents in Cité Soleil and redress for the harm caused.58 In addition to complying with its human rights obligations, the UN should also use the opportunity to reflect on ‘lessons learned’ from the Bois Neuf incident and in particular, the need for consultation and local ownership when designing, implementing and evaluating peacekeeping measures in a transitional context. It Stays with You provides a reminder of the importance of broadening the perspectives and inputs of transitional justice to include voices from the ‘margins’ to ensure that its framework and mechanisms serve individuals both as agents and beneficiaries of its processes. Erin Pobjie Institute for International Peace and Security Law, University of Cologne Dug Cubie, The International Legal Protection of Persons in Humanitarian ­Crises: Exploring the Acquis Humanitaire (Oxford, Hart Publishing, 2017) 348pp ISBN: 9781849468008 Price: £80 Concern for alleviating human suffering in times of crisis is long-standing; it can be traced as far back as the 697 AD Cáin Adomnáin (Law of the Innocents), to Emer de Vattel’s call in 1758 for nations to contribute to aid in other nations suffering 56 

Bellamy and Williams (n 8) at 28–29. Security Council, Security Council Resolution 2350 (2017) [the question concerning Haiti], 13 April 2017, S/RES/2350. 58 In another example of the lack of accountability of UN peacekeeping operations in Haiti, the UN has claimed immunity from legal claims related to the cholera outbreak, asserting that such claims are ‘not receivable’ pursuant to section 29 of the Convention on the Privileges and Immunities of the United Nations adopted by the UN General Assembly on 13 February 1946: www.un.org/press/en/2013/ sgsm14828.doc.htm (last accessed 18 May 2018). 57 UN

Book Reviews 269 from disaster such as in the aftermath of the 1755 Lisbon earthquake in Portugal, and to the eventual emergence of the International Committee of the Red Cross (ICRC) and Red Crescent after Henri Dunant observed the aftermath of the battle at Solferino in 1859. However, the complexity of humanitarian crises and of designing appropriate responses thereto continues to challenge the international community. Even a cursory glance at a newspaper verifies this; from Yemen where there is now a large-scale outbreak of cholera amidst the conflict, to the displacement of millions of people due to conflicts in Syria and Sudan, and FARC1 offering support to the town of Mocoa where a mudslide killed over 300 people, humanitarian crises are complex, often transnational, and multi-actor. In contrast with human rights and humanitarian actors, international law and the international community’s response to disasters tends to be driven by the type of disaster in question, and particular whether it is caused by conflict, displacement, or natural or human-made hazards. In other words, international law on disasters exists at present in silos, with different regimes applying to different situations, and ineffective responses to the real nature of complex crises. As between those silos there is a hierarchy of laws in response to human suffering, with the laws of war and human rights law more embedded, compared to the softer law approaches that tend to characterise responses to disasters or are aimed at the protection of displaced persons. Dug Cubie’s book proposing an acquis humanitaire comes at an auspicious time; when the need to cohere these seemingly disparate legal regimes is clear. Having worked as a practitioner addressing disasters, conflicts and displacements in a ­variety of countries for over a decade, Cubie is well-placed to find a way forward for humanitarian action. While conflict, displacement and disaster are being precipitated and compounded by the wider impact of global warming, he shows that international law and the international community’s response is moving, and should continue to move, from silos to a more comprehensive body of law. Cubie suggests that there is a ‘common conceptual and operational thread running through our preparations for and responses to a broad range of different humanitarian crises …’2 to the extent that there is an emerging ‘law of humanitarian assistance’. Tracing these movements, Cubie proposes an acquis humanitaire as a framework to draw together the existing diffuse strands of law, policy and practice on humanitarian action into a principle based on human dignity and humanity. This would improve accountability for failure to ensure the protection of persons in times of humanitarian crisis. Part I of the book sets out the conceptual framework of the acquis humanitaire beginning with the foundations of humanitarianism. Cubie explores the underpinnings of humanitarianism, noting that the imperative for humanitarian action is found in moral or ethical obligations, rather than legal ones, enabling states and humanitarian agencies to interpret it from their own institutional or philosophical stance. Indeed, such tensions on the philosophical basis of interventions have

1 

Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo. Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire (Oxford, Hart Publishing, 2017) xxxvii. 2  Dug

270  The Irish Yearbook of International Law 2016–17 contributed to splits within large humanitarian organisations, such as Médecins Sans Frontières (MSF) breaking away from the ICRC in 1971 over the Biafra conflict. Moreover, different agencies and states operate under a range of ambits, from ‘humanitarian assistance’ to the much broader ‘humanitarian action’ that includes an array of activities ‘at all stages of the emergency prevention, mitigation and response, not simply material assistance’.3 In addition, Cubie argues that the protection of persons plays a fundamental part alongside material assistance. It is here that international law has taken a stronger role in obliging states to take preventive and responsive actions, which are explored in later chapters in Part II. Together, Cubie tempers these two principles with realities on the ground under the headings of hazards, vulnerability and resilience. Cubie then briefly traces these tenets of humanitarianism in the laws of war and disaster law, finding that, in spite of some differences in substance and practice, there are two common underpinning ­principles: ‘humanity’ and ‘respect for human dignity’. These then form the starting point for his acquis humanitaire. In Chapter two, Cubie defines the parameters of his acquis humanitaire. While not a strict definition, he outlines that the acquis humanitaire is a ‘body of laws, policies and practices relating to the protection of persons in humanitarian crises’.4 He takes a ‘broad tent’ approach, demarcating a conceptual framework for engaging and discussing humanitarian action that draws from legal and non-legal sources followed by states and agencies. Indeed, this wide umbrella includes hard and soft law, and both needs-based and rights-based approaches to humanitarian action. As such, it is intended to provide a one-stop-shop for states, civil society and institutional agencies to find common ground on law and practice so as to provide a conceptual basis and ‘space for discussion’ in moving forward the creation of new law in this area.5 Cubie delineates that there are three constituent parts of the acquis humanitaire: (1) the prime objective of the protection of persons; (2) the conceptual basis of humanity and human dignity; and (3) accountability mechanisms provided by international and domestic oversight. These three parts are inter-related and mutually supportive, but will vary depending on the humanitarian crisis. The acquis draws from a wide range of international law, from humanitarian crises to refugee law, the law of armed conflict, and disaster law. Despite this diversity, there are emerging legal instruments that connect these conceptual and legal spheres, such as the AU ­Kampala ­Convention for the Protection and Assistance of Internally Displaced Persons. Yet there are also tensions, such as a rights-based versus a needs-based approach, the proliferation of laws and forums, and the increasing variety of ­humanitarian actors. Cubie never shies away from these tensions, instead recognising and tackling them head on throughout the book. In Chapter three, Cubie interrogates the prime objective of the acquis humanitaire of the protection of persons, looking at the international legal context and the frictions between the rights-based and needs-based approaches to humanitarian action. He finds that a human rights protection approach should not be c­ ompletely 3 

Ibid 22. Ibid 38. 5  Ibid 38. 4 

Book Reviews 271 and blindly endorsed by humanitarian actors responding to crises, but can inform humanitarian organisations in their operations. He argues that four human rights principles can be useful at such a juncture: empowerment of rights-holders, participation in decision-making processes, non-discrimination and prioritisation of ­vulnerable groups, and accountability of duty-bearers to rights-holders. Whilst these principles will not by themselves ensure individuals’ rights in humanitarian crises, they may ensure procedural fairness for affected communities. Such a stance may not please some human rights actors, but Cubie’s framework offers a useful and workable way to ensure the integration of human rights in these situations, while still allowing that a more specialised regime may have lex specialis status. Chapter four acknowledges the challenges in developing the normative promise of the acquis humanitaire across the different international legal spheres. Cubie draws upon Harold Koh’s theory of norm internalisation via transnational legal process for promoting compliance and implementation of the acquis humanitaire by actors involved in humanitarian action. Such norm implementation comes into conflict with state sovereignty and state consent and, as in all areas of international law, that conflict inhibits action; in this case military intervention and the establishment of the responsibility to protect doctrine. On the other hand, humanitarian crises can also be used as a pretext to undermine a state’s government and governance structures, as happened in Ukraine/Crimea. Intervention, particularly the use of military force, can ‘exacerbate the suffering of the affected population’6 so that greater legal accountability is needed at the international and domestic level to ensure that states and other responsible actors respect the law in humanitarian crises and honour its central purpose: the protection of the civilian population. Part II of the book maps out the normative content of the acquis humanitaire through the five bodies of international law of which it is composed: international human rights law; the law of armed conflict; international criminal law; international disaster law; and refugee and displaced persons law. Starting with Chapter five, Cubie surveys the position of international human rights law and its implications for humanitarian crises. It focuses in particular on the rights of access to protection and assistance, an adequate standard of living and physical security and integrity. He finds that a right to humanitarian assistance in all types of humanitarian crises remains debatable and has not yet solidified in human rights law. However, the benefit for Cubie of engaging with a human rights approach for humanitarian action is that it can promote a more effective way to protect persons in such crises through rights discourse, such as the inclusion of affected communities in decision-making processes on humanitarian assistance. Cubie tempers such optimism with a caveat that human rights law is ‘not necessarily the panacea for strengthening the protection of persons in humanitarian crises’.7 This position plays into his construction of the acquis humanitaire as a broad framework drawing from different legal spheres, where even international humanitarian law in certain circumstances can provide greater protection than human rights law.

6  7 

Ibid 125. Ibid 174.

272  The Irish Yearbook of International Law 2016–17 Chapter six turns to examine the law of armed conflict and its place in the acquis humanitaire, drawing upon the examples of humanitarian flotillas to Gaza, ­state-building and the occupation of Iraq by US-led forces, and cross-border humanitarian operations in Syria. While the law of armed conflict has specific provisions on humanitarian operations and obligations on belligerents to respect the work of relief societies (such as the protection of relief personnel), the law does differ depending on whether the conflict is international or non-international. Cubie finds that although the law of armed conflict recognises that individuals have a right to request humanitarian assistance during international armed conflicts, it is very much constrained by military considerations. For non-international armed conflicts, the legal terrain is much bleaker: relief societies’ ability to offer and provide assistance to the civilian population suffering undue hardship is predicated on the consent of the affected state. Connected to his earlier argument on accountability, Cubie highlights the practical challenges that arise as humanitarian actors are increasingly being directly targeted by belligerents in order to cause further suffering to civilian populations, gain political capital or remove international organisations from their territory. Rarely is anyone held responsible for these actions. Resolving this is perhaps beyond the scope of Cubie’s study, but the targeting of relief agencies and humanitarian actors clearly places important practical obstacles in the way of ­delivering humanitarian assistance in real terms. In Chapter seven Cubie assesses the protection of persons in international criminal law. Despite the protection afforded to humanitarian actors in the laws of war and similar provisions on criminalisation in international criminal law, attacks continue to be made against them, with few prosecutions. Cubie considers in particular war crimes involving attacks against humanitarian personnel and medical facilitates, misuse of emblems, and the use of starvation as a means of warfare. This he does by examining case studies in Afghanistan, Syria and Bosnia. Cubie also discusses the implications of wilful denial of humanitarian assistance amounting to genocide, drawing upon the Al-Bashir case at the International Criminal Court (ICC).8 While there is not an explicit recognition of such wilful denial as constituting genocide, the jurisprudence in the Akayesu case at the International Criminal Tribunal for Rwanda (ICTR) suggests that the deliberate infliction of conditions intended to cause physical destruction of the group can amount to genocide.9 However, Cubie notes that genocide has a high threshold of special intent to destroy, in whole or in part, a protected group. He then turns to examine the potential for crimes against humanity to occur when civilian populations are mistreated, including in the aftermath of disasters, such as the delayed response for humanitarian aid in Myanmar after Cyclone Nargis. Again satisfying the evidential requirements of proving mistreatment through the contextual elements of crimes against humanity of widespread or systematic attacks directed against a civilian population may make such a prosecution difficult, but not impossible. Nonetheless there is an increasing recognition that intentional attacks or barriers to humanitarian assistance that result in the deaths

8  9 

The Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09. The Prosecutor v Jean-Paul Akayesu, Judgment, ICTR-96-4-T, 2 September 1998 [505]–[508].

Book Reviews 273 of civilians can amount to international crimes in war and peace. Such criminalisation may provide a deterrent effect, but given the lack of prosecutions for denying humanitarian assistance or targeting humanitarian workers it remains questionable whether it would be an effective tool in fighting for the protection of persons with humanitarian needs in crises. Chapter eight surveys international disaster laws. Although these laws have only recently captured the attention of academics and practitioners, Cubie argues that they include a range of initiatives over the past 100 years. Most of the law comes from UN resolutions, declarations and guidelines or draft international instruments (such as the International Law Commission (ILC) draft articles on the protection of persons in the event of disasters),10 reflecting the proliferation of soft law in this corpus. That said, different actors have shown increasing awareness of the need to improve responses to humanitarian disasters, such as through the Disaster Risk Reduction, Prevention and Preparedness (DRR) agenda. Cubie offers the 2004 ­tsunami in the Indian Ocean that killed 226,000 people across 14 countries and the post-earthquake intervention in Haiti and subsequent cholera outbreak as examples of where hard lessons have been learned in responding to large-scale disasters with multiple agencies and organisations. While there is a nascent field of international disaster law, it remains very much anchored in soft law practice of promoting the protection of persons, but does provide a fertile area of growth for the acquis humanitaire. Chapter nine is the last piece of the normative acquis humanitaire outlined in Part II. Here Cubie considers the place of refugee and displaced persons law in the protection of persons in humanitarian crises. This area comprises both hard law (especially the 1951 UN Convention Relating to the Status of Refugees) and soft law, both of which are canvassed by Cubie who focuses especially on legal solutions to sexual and gender-based violence in Bhutanese refugee camps in Nepal, and the internalisation of the UN Guiding Principles on Internal Displacement in Colombia to illustrate their operation. This area of law reflects the intertwined links between the different normative bases of the acquis humanitaire, where in the aftermath of conflict or disaster it can have a knock-on effect on the location, living conditions and legal situation of civilians both domestically and internationally. This is apparent in Syria, where large-scale and long-term conflict has witnessed the displacement of civilian population within and outside the country’s borders, which requires an understanding of the different and interrelated parts of international law in responding to such a humanitarian crisis. The final part of the book draws together the conceptual and substantive aspects of the acquis humanitaire. Chapter 11 reflects on whether or not a general right to humanitarian assistance has crystallised in international law. Cubie finds that there is a limited individual right to request and receive humanitarian assistance from aid agencies in armed conflict, but there are no avenues for redress to seek compliance 10  International Law Commission, Draft Articles on the Protection of Persons in the Event of Disasters, adopted on the second reading (August 2016). See Official Records of the General Assembly, Seventh-first Session, Supplement No 10 (A/71/10), Chapter IV: Protection of Persons in the Event of Disasters (2016).

274  The Irish Yearbook of International Law 2016–17 for this right, and such a right differs between international and non-international armed conflicts. This would suggest a lack of legal basis for an individual right classically understood. In times of peace, Cubie points out that a binding right to humanitarian assistance only exists in refugee law for children, although there have been suggestions that this should be broadened to include internally displaced ­persons.11 This is a sensible development given the high numbers of civilians who died because of conflict displacement and lack of assistance, such as in the conflict in eastern Congo. What does seem a stronger basis in international law is the entitlement of humanitarian agencies to offer assistance, but this often is limited by states not giving consent, reflecting the overbearing nature of international law’s commitment to sovereignty over the protection of persons. As such, Cubie acknowledges that the right to humanitarian assistance is starting to crystallise, but more work needs to be done to achieve the overarching goal of the protection of persons in humanitarian crises. Despite this, in his final chapter Cubie remains optimistic that the broad-tent, flexible approach of the acquis humanitaire can contribute to better attaining the protection and assistance of persons in humanitarian crises. Accordingly, the acquis humanitarian remains the best way to actualise our underlying goals of humanity and human dignity in times of crises. In all, Cubie’s monograph pulls together the different strands of international law in the face of ever-complex humanitarian crises to shape a well-thought out and sober approach to humanitarian action. The valuable contribution this book makes to the number of fields it touches upon is clear, but it also potentially provides a pivot point for our legal and practical continuum as an international community in how we respond to some of the greatest challenges we face as the human race. It is apparent that this book will be helpful for practitioners in the field of humanitarian assistance, a vital guide to policy makers in developing legal responses and states’ obligations in humanitarian crises, and a provocation to scholars in the disparate areas of law Cubie engages with. Yet the value of this book is not just in how it speaks to and moves the debate on for different stakeholders, but how it pulls together the key principles of humanity and human dignity to illustrate how, as an international community, we can respond to and reduce the suffering of humankind when war and disaster strike. Luke Moffett School of Law, Queen’s University Belfast Anita Ferrara, Assessing the Long-Term Impact of Truth Commissions: The ­Chilean Truth and Reconciliation Commission in Historical Perspective (­Abingdon, ­Routledge, 2015) 258pp ISBN: 9781138215214 Price: £37.99 There have been around 40–70 national truth commissions around the world— depending on how one defines a truth commission and on how one counts them. 11 

Cubie (n 2) 325.

Book Reviews 275 A sizeable bulk of these fact-finding commissions are geographically located in Latin America, which is considered a pioneer region in terms of investigating and documenting the truth about gross and systematic human rights violations after transitions from authoritarianism or military dictatorship to democracy, or from internal armed conflict to peace. One of the first, and most merited, national truth commissions in the world, is the Truth and Reconciliation Commission (TRC) in Chile. It was established by President Patricio Aylwin directly after the democratic transition in 1990 to document the atrocities committed under the military dictatorship of Augusto Pinochet (1973–90). The truth commission report documented more than 3,000 politically executed and detained-disappeared. This commission is the core subject of Anita Ferrara’s new book, Assessing the Long-Term Impact of Truth Commissions: The Chilean Truth and Reconciliation Commission in ­ Historical Perspective. As the book title suggests, Ferrara takes a long-term perspective on the experience of truth-finding in Chile following the end of the military dictatorship. One of her central points is that, only with hindsight—here over three decades—can one really assess the contributions or impacts of a truth commission. This book fits well with the transitional justice literature that for the past decade or so has been concerned with measuring the impact of transitional justice mechanisms (truth commissions, trials, reparations, local justice initiatives, etc) on various societal goals, such as democracy, human rights, or the rule of law. Without going into the ­methodological complexities of measurement (arguably a slight weakness of the book), Ferrara takes a step back from the larger impact debates and narrows her project to documenting ‘how the effectiveness and influence of the Chilean truth commission has evolved over time’.1 Her project is about showing how the ‘Chilean TRC supported or strengthened later transitional justice initiatives’.2 It is this interplay between a changing socio-political context and the evolving human rights initiatives which forms the core of the analysis. In particular, Ferrara analyses the impact of the ­Chilean TRC on reparations programmes, later truth telling measures, human rights trials, and the belated memorialisation initiatives. Although each of these transitional justice mechanisms have received substantial scholarly attention, Ferrara is the first to link all these initiatives together in a systematic and thorough way. This, in my opinion, is the main strength and achievement of her book. Bringing something new to the table is a challenge in itself given that the Chilean TRC is arguably one of the most widely studied truth commissions in the world, possibly with the exception of the South African Truth and Reconciliation Commission (which indeed was partly modelled on the Chilean TRC). Yet, Ferrara manages to shed new light on the work and legacy of this commission—especially in the ­second half of the book. The first half provides a thorough introduction to the political background and operations of the Chilean TRC, popularly called the Rettig Commission after the

1 Anita Ferrara, Assessing the Long-Term Impact of Truth Commissions: The Chilean Truth and ­Reconciliation Commission in Historical Perspective (Abingdon, Routledge, 2015) 12. 2  Ibid 13.

276  The Irish Yearbook of International Law 2016–17 head of the commission, Raúl Rettig. Chapter one details the context of the pacted transition to democratic rule, and shows how President Aylwin considered setting up a truth commission as the only politically viable alternative to dealing with the violations committed under military rule, since General Pinochet was still head of the Armed Forces when he stepped down in 1990. The second chapter focuses on the direct consequences of the Chilean TCR, specifically the follow-up body that was tasked with ensuring that the recommendations made by the TRC in its final report were actually implemented. In the third chapter, the author takes stock of the early debates surrounding the establishment of the TRC and evaluates its role in the ­context of political transition. So far, the book presents a mainstream political analysis of early Chilean post-dictatorship rule. To a person not so familiar with Chilean politics or transitional justice history, this is an excellent introduction. The second half of the book I find much more interesting. In each of the remaining five chapters, Ferrara carefully explores the link between the Rettig Commission and other transitional justice mechanisms. Chapter four details how the arrest of ­Pinochet in London in 1998 opened up a political space in Chile where societal demands for truth and justice took on a much more active and critical turn. One ­government response was to set up a so-called Round Table, or Mesa de ­Dialogo, tasked with finding out more about the fate of the thousands of detained disappeared that were documented in the Rettig report. Ferrara in Chapter five elegantly traces how the dimension of international justice becomes significant after Pinochet’s arrest. ­Multiple court cases against Pinochet and other military officials in Spanish courts, as well as several rulings from the Inter-American Court of Human Rights against the Chilean state, explicitly and successfully drew on the meticulous documentary evidence made by the Rettig Commission (which Ferrara correctly notes was based on the archives from the non-governmental organisation Vicaría de la ­Solidaridad). This mass of court cases amounts to what many scholars have called ‘late justice’ or ‘post-transitional justice’, which Ferrara details in Chapter six. In Chapter seven she proceeds to analyse the links between the TRC and a ­second formal state-sponsored truth commission, the National Commission on Political Imprisonment and Torture (popularly called the Valech Commission after its head). The Valech Commission was established in 2003 to document two central kinds of abuses that had been left out of the mandate of the TCR: torture and politically motivated imprisonment. Operating in two rounds, concluding evidence from Valech I and Valech II showed that around 30,000 Chileans had been illegally detained and tortured by state agents. Ferrara’s careful comparative analysis of the Rettig and Valech commissions brings out how societal and state institutions’ reactions to the findings of the reports changed significantly over time. In her final main chapter, Chapter eight, Ferrara bridges two strands of literature (transitional justice and memory studies) when she draws the explicit links between the truth-finding efforts of the three truth commissions and the increased political and societal focus on memorialisation. She traces the history of such state and civil society initiatives until the end of 2013 (when data collected for this book presumably ended), concluding with the opening of the Museo de la Memoria; a landmark in Chilean memory politics. This museum also functions as a vault for the information gathered by the two Valech Commissions—demonstrating an interesting link

Book Reviews 277 between truth commissions and memorialisation politics. As Ferrara concludes, her investigations into the truth-finding process in Chile suggests that the moral and social pressure generated by a truth commission, can, in the longer term, lead to change of attitudes and beliefs at the institutional level, making those institutions more responsive to the demands of victims and society in general.3

Indeed, her book clearly demonstrates that, at least in the Chilean case, ‘Truthtelling efforts and public engagement with the issue of past human rights violations can gradually transform the political, legal, and social interactions that take place’. This is not a superficial observation. Ferrara’s book is clearly very well researched and minutely documented. Although she draws heavily on a limited number of interviews and although she may be criticised for perhaps overly depending on information from persons who have had the struggle for truth and justice close to heart, she does supplement this information with an impressive archival research into newspaper sources, opinion polls and surveys. Very little of Ferrara’s book comes across as unsubstantiated. There is a footnote and a reference or three for every figure and every opinion. Yet, the book does not appear over-referenced. Ferrara has a clear voice throughout: her judgment of the issue at hand is never left to the reader to guess. She knows the Chilean context very well, but still has the advantage of the outsider who has not lived the conflict, when conducting her analysis and drawing her conclusions. The main strength of this book, in my opinion, is that it very clearly and convincingly draws the explicit connections between the different states of the truth-finding efforts in Chile (ie the Rettig Commission, the Mesa de Diálogo, and the two Valech Commissions) and other transitional justice policies, such as reparations, court cases and memorialisation policies. The book is more thorough than provocative. It is empirical rather than theoretical. It gives an excellent overview of Chilean truth politics in the larger context of political transition and transitional justice. It does not pretend to generalise from the Chilean case to truth commissions in other countries, except for one central take-home point: evaluations of truth finding processes clearly benefit from taking a long-term rather than short-term perspective. It is this longitudinal, thorough analysis of the Chilean Truth and Reconciliation Commission and all the related transitional justice activities in the wake of the publication of the Rettig Report that makes this book absolutely worthwhile to read. In short, the book is well written, well presented, and flags an important topic in the transitional justice literature. Although the topic might be too narrow to be used for undergraduate courses or as textbook material, it is of high academic standard, and should be of interest to scholars concerned with transitional justice and human rights in general—and those interested in transitional justice in Chile more specifically. Ferrara’s book is a welcome contribution to the current discussion on the impact of transitional justice mechanisms. As the author correctly points out, the current debate is on how to statistically ‘prove’ whether or not particular transitional justice mechanisms have a positive or negative impact on variables x, y or z— such as for example on democracy, peace, or human rights. The author proposes 3 

Ibid 219.

278  The Irish Yearbook of International Law 2016–17 to complement statistical findings with an in-depth qualitative study of the Chilean Truth and Reconciliation Commission. Qualitative studies of high quality are useful as both a check on and complement to statistical findings in analyses covering a large number of cases. Ferrara’s solid analysis nicely complements research already done in the field. I think this book makes an important contribution to the transitional justice impact literature, which now seems to be moving away from quantitative studies back into more qualitative studies. Elin Skaar Chr. Michelsen Institute, Bergen, Norway

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Document 1 Statement by the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, on Ireland-China Relations 7 April 2016 ‘Ireland enjoys warm and positive bilateral relations with China and maintains open and respectful dialogue on all issues. Through the Chinese Embassy in Dublin and the Irish Embassy in Beijing and our Consulates in Shanghai and Hong Kong, we work closely together to promote partnerships in a range of areas including trade, tourism, culture and education. On 10th March, in response to a report on China by the UN Commissioner for Human Rights, Ireland along with the UK, Germany, Denmark, Sweden, Finland, the Netherlands, Norway, Iceland, Australia and Japan joined a US statement at the UN Human Rights Council in Geneva in support of the UN Commissioner’s report. The position taken by Ireland was wholly consistent with EU policy in relation to China as set out in a letter by EU Ambassadors in China to the State Counsellor Guo Shengkun on 24th February 2016. It is consistent also with our national position on global human rights issues articulated repeatedly at the UN. No explicit linkage has been drawn by the Chinese authorities between this motion and the progress of Ireland’s application for beef access. The Government remains wholly committed to further building on our strong bilateral relationship with China.’ ENDS

Minister Flanagan Announces Ireland’s Election to the UN Commission on the Status of Women 8 April 2016 The Minister for Foreign Affairs and Trade, Charles Flanagan TD, has announced that Ireland has been elected to the United Nations Commission on the Status of Women for the first time.

282  The Irish Yearbook of International Law 2016–17 He stated: Ireland has been elected to serve as a member of the United Nations Commission on the Status of Women for the first time and our term of office will begin next year. Empowerment of women and girls is an important foreign policy priority for Ireland and we now have a great opportunity to promote our goals as the UN Commission on the Status of Women is the principal global inter-governmental body for the promotion of gender equality and women’s empowerment. We will use this opportunity to strengthen the Commission’s role and to build on our international engagement on the full realisation of the rights of women and girls. Ireland has pledged to work to strengthen the voice and functioning of the Commission and to promote the participation of civil society in its work. Ireland has been internationally recognised for the agenda-setting role it plays at the UN, most recently in relation to our contribution to the Sustainable Development Goals. As a member of the Human Rights Council (2013–2015) and the Executive Board of UN Women (2012–2013) Ireland worked to highlight a range of issues affecting women and girls. We are a longstanding advocate for the Women, Peace and Security Agenda at the UN while the promotion of gender equality and women’s empowerment is also an integral part of our programme for overseas development.’ ENDS

National Statement at the Chemical Weapons Convention 21st Conference of States Parties, delivered by Caroline Whelan in The Hague on 30th November 2016 at the Twenty-First Session of the Conference of States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 28 November–2 December 2016 Mr Chairperson Allow me to first express our congratulations to you Ambassador Christoph Israng of Germany on your appointment as incoming Chair of the Conference of States Parties. I would also like to express our warm thanks and appreciation to Ambassador Eduardo Ibarrola Nicolín of Mexico for his excellent efforts as outgoing Chair. Ireland fully aligns itself with the statement delivered on behalf of the European Union.

2016 Documents 283 Mr Chairperson Chemical weapons represent an entire category of weapons of mass destruction that impact civilians in a cruel and devastating manner. Ireland believes that all weapons of mass destruction and their means of delivery remain among the most immediate and pressing global threats to humanity. Last year marked the 100th anniversary of the first use of chemical weapons during the First World War. Since that time we have made valiant efforts to eliminate chemical weapons from our world. We were pleased to support the resolution on chemical weapons at this year’s First Committee and would like to thank Poland for its efforts in ensuring the resolution was passed by a strong majority. We would also like to express our deep appreciation to the members of the OPCW-UN Joint Investigative Mechanism (JIM), the Director-General and Technical Secretariat of the OPCW, along with the members of the OPCW Fact-Finding Mission (FFM), for their dedication and professionalism in investigating chemical weapons attacks in Syria. Allow me to reaffirm Ireland’s view that the use of chemical weapons by anybody, anywhere and under any circumstances must be rigorously condemned by the international community. We believe that those who are responsible for these reprehensible acts must be held accountable, for violations of international law cannot go unpunished and unaddressed. Last month Ireland’s Minister for Foreign Affairs and Trade Charles Flanagan TD stated that the situation in Syria should be referred to the International Criminal Court in order to ensure legal accountability for the victims of these unspeakable crimes. Ireland welcomes the adoption by the Security Council of a resolution to renew the mandate of the Joint Investigative Mechanism. This year-long extension allows for a continuation of vital investigative work in a place where civilians have experienced first-hand the devastating effects of chemical weapons attacks from both the Syrian Armed Forces and the so-called ‘Islamic State of Iraq and the Levant’ (ISIL), as identified in the third and fourth JIM Reports. We request that all stakeholders engage fully with the efforts of the FFM and JIM, and that there are no attempts to hinder or delay the work of the Declaration Assessment Team. Ireland is also gravely concerned by the reported use of chemical weapons by nonState actors in Iraq. We welcome the OPCW’s efforts to investigate these incidents and we encourage Iraq to continue to work closely with the technical experts at the OPCW to address this serious issue. On a more positive note, Ireland commends Libya, other States Parties and the OPCW for the progress to date in the removal and destruction of chemical precursors from Libya. This important development highlights the results that can be achieved when there is full cooperation between States Parties. Mr Chairperson As the twenty-first century advances, so too does our ability to develop and foster new technology. In this context, it will be important to recognise new developments in the use of chemistry, as well as new types of potential chemical weapons agents,

284  The Irish Yearbook of International Law 2016–17 to ensure sufficient protections are put in place to keep the global community safe from chemical attacks. We support the Australian paper on Central Nervous SystemActing Chemicals, and its call for further discussions on this subject. As part of our own practical contribution to countering WMD, the Irish Defence Forces, in collaboration with the ICRC, has for the last two years delivered training for aid workers in surviving the effects of a chemical, biological, radiological or nuclear attack. We hope to continue with the delivery of similar training courses in the future. The Chemical Weapons Convention entered into force in 1997 with the aim of making the world safe from the threat of chemical warfare. Its adoption, as stated by the Director General of the OPCW H.E. Ambassador Ahmet Üzümcü, ‘signalled the beginning of an era in which chemical weapons were to be eliminated forever’. That era is within our grasp. The universalisation of the Convention must remain an objective for States Parties if we are to truly achieve success. We encourage all states who have yet to join the Convention to do so without further delay. Ireland is fully committed to ensuring that all 192 states which are party to the Convention comply with each and every one of its requirements. In closing, I would like to request that this statement be circulated as an official document of the Conference and be published on the OPCW website and extranet. Thank You

Statement by Minister Flanagan on Aleppo, Syria 16 December 2016 I am extremely concerned by reports of renewed violence in East Aleppo, and the suspension by the Syrian regime of the evacuation of civilians. The protection of the civilian population is a binding legal obligation for all parties and must be observed in Aleppo. The forced displacement of a population is in itself also a violation of international law, however, I recognise that the alternative of a mass slaughter of thousands of Syrians is a far more horrendous crime. I urge all sides to urgently resume the evacuation operation now. I acknowledge the deep concern of the Irish people for the plight of the Syrian people, and particularly the people of Aleppo, at this appalling time. The besieging of the population and the scale of the death, injury and destruction that is being wrought in Syria at this time is truly appalling. Ireland has provided an unprecedented scale of humanitarian support to the victims of this conflict, which reached €67 million this week. That aid is providing vital food and shelter for those who have fled their homes in fear of their lives. At political level, I strongly support the efforts of the UN Secretary General and the EU to end the conflict. All of our diplomatic and humanitarian actions are in support of a free and peaceful Syria. In Brussels on Monday, EU Foreign Affairs Ministers

2016 Documents 285 discussed Syria. There was a consensus that the EU must press Russia and Iran to use their influence on the Assad regime to ensure the illegal siege of the civilian population in Eastern Aleppo ends. At my direction, senior officials in my Department have reinforced the EU’s actions by conveying these views and the Irish Government’s concerns to the Russian and Iranian Ambassadors. The conflict that is consuming Syria has its origins in the violent repression imposed by Bashar al Assad’s regime. The UN’s Commission of Inquiry has repeatedly made public the monstrous actions of the regime, publishing findings of war crimes and crimes against humanity. I have stated many times our position that Bashar al Assad and his regime must be held accountable for these actions. There can be no impunity for such grotesque crimes. I strongly support the implementation of UN Security Council resolution 2254 which demands an end to violence; release of political prisoners; formation of a transitional governing body with executive powers and a constitutional reform process. ENDS

Minister Flanagan Welcomes UN Resolution on Aleppo 19 December 2016 The Minister for Foreign Affairs and Trade, Charles Flanagan TD, has welcomed the approval by the UN Security Council of resolution 2328, which calls for humanitarian access and the protection of all civilians in Aleppo. Minister Flanagan said ‘the protection of civilians in Aleppo is a fundamental obligation on all parties to the horrific conflict in Syria. I welcome the approval of the resolution earlier today by the Security Council, and the provision for international monitoring by the UN of the evacuation to ensure the safety of civilians. It is vital that the many thousands seeking to leave the city of Aleppo are free to leave in safety and that those who remain are not targeted as a result. I strongly endorse the Security Council’s demand for complete, immediate, unconditional, safe and unhindered access for humanitarian assistance across Syria. In the last week, I approved an additional €5 million in humanitarian assistance for the victims of the Syrian conflict, bringing the total humanitarian assistance from Ireland to €25 million for 2016. Ireland’s total national support for the victims of the Syrian conflict has now reached €67 million and this funding has gone to provide critical services to those affected by the horrific violence plaguing Syria. Ireland remains committed to supporting the UN’s efforts to finding a peaceful resolution to the Syrian crisis. ENDS

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Trafficking in Persons in Conflict Situations Statement by Mr Tim Mawe, Deputy Permanent Representative of Ireland, Security Council Chamber New York, 20 December 2016 Mr President, Human trafficking is not always the first thing that comes to mind when we think about violent conflicts. Often our news stories and our attention spans are consumed with images of bombings, tanks and refugee camps. But the link between trafficking and conflict is a major issue in need of our attention. Last December’s Presidential Statement on Trafficking in Persons in Situations of Conflict was an important achievement. First, it reaffirmed that human trafficking must be considered in the context of threats to international peace and security. ­Second, it asserted a role for the UN Security Council in consolidating the international response to this challenge. We thank Spain for organising this important debate and we align ourselves with the statement delivered by the European Union. In my national capacity, Mr President, I will outline four areas of opportunity for a stronger international response to trafficking in conflict. One, the pursuit of accountability for conflict-related sexual violence. The link between human trafficking and conflict-related sexual violence is irrefutable. We’ve seen this in horrific cases involving the trafficking and sexual abuse of women by ISIL and Boko Haram. There are also less reported cases, for example, the sexual exploitation by illegal traffickers of those who are fleeing war zones. In addition to being linked through causes, or points of origin, there are more invidious links; ones that we can do something about. One is accountability, or the lack thereof. A clear thread exists between conflict-related sexual violence and human trafficking because impunity for one allows the other to flourish. The UN Security Council can act as an important accountability mechanism in this respect. At its most simple, let us have incidents of trafficking called out in this chamber where we see them occurring. In addition, the Council can serve to bolster other accountability measures by for example supporting Special Representative Bangura, by active deployment of women protection advisers in peacekeeping missions, by referring cases to the International Criminal Court, and by supporting regional and national systems of accountability. Two, preventing the conditions conducive to human trafficking.

2016 Documents 287 Mr President, We have seen clearly that war acts as a potent catalyst to human trafficking. It breaks down institutional and social protections. And it leaves masses of people vulnerable to traffickers. It is startlingly obvious therefore that greater focus by the international community on preventing conflicts, and stopping their reoccurrence, will have a direct impact on human trafficking. Prevent the conflict and you prevent the trafficking. We call for increased momentum in putting our words about conflict prevention and peacebuilding—often heard in this chamber—into practice. We welcome a stronger role for the Peacebuilding Commission and regional institutions in informing the Security Council about human trafficking in conflict situations. And we look to the Secretary General-Designate to maximise his good offices in advancing conflict prevention. Three, partnerships that extend beyond the Security Council. Trafficking has mobility at its core. It transcends borders and jurisdictions. It presents far too big a challenge for any one entity to confront. Although the issue of human trafficking in conflict should indeed be addressed by the Security Council, we will also need to look beyond this chamber to find a comprehensive solution. The implementation of the Sustainable Development Goals will be crucial in this regard. This will mean a focus not only on Target 8.7, which addresses modern slavery and human trafficking directly, but also on Goal 5, to ensure women’s empowerment, and Goal 16 to prioritise the building of strong and inclusive institutions. To achieve this, partnerships must be fostered between the UN and regional systems, many of which have developed comprehensive strategies on this issue. For example, as Member States work to implement the Palermo Protocols and the New York Declaration for Refugees and Migrants they will play a crucial role in comprehensively addressing human trafficking. Trafficking is an egregious violation of people’s human rights and we are encouraged that the UN’s human rights bodies are taking an increasingly comprehensive approach to human trafficking. Finally, Mr President, a stronger response needs to place the needs of the most vulnerable at its core. Through our support to Justice Rapid Response and UN Women, we heard last year harrowing accounts of investigations into sexual violence and human trafficking by Boko Haram. Many victims were too traumatised to speak to interviewers about their ordeals. In some cases, they were more concerned about shelter, food or their own personal safety, than the investigation. For them, justice meant more than a prison sentence for their abusers.

288  The Irish Yearbook of International Law 2016–17 Uncomfortable though it may be, we need to hear these accounts. We need the participation of those who have survived or who are most vulnerable to human trafficking in conflict. And in crafting our response, we need to put them in the centre. This applies in particular to women, but also to young people, including former child combatants. The participation of civil society, academia and the private sector will also be crucial in stemming flows of human traffic. Mr President, we are grateful to Spain for working to ensure that the Council remains focused on this issue. However, as we have noted, our response must include—and also extend beyond—the Security Council if we are to finally end human trafficking in conflict. ENDS

Document 2 Statement by Minister Coveney on North Korean ICBM Launch 29 November 2017 ‘I am deeply concerned by reports that North Korea has tested another ­intercontinental ballistic missile. Such tests constitute a flagrant violation of international law, as ­outlined in multiple United Nations Security Council Resolutions, and I join with EU colleagues in condemning such actions unreservedly. The international community remains united in calling on North Korea to ­abandon its programmes to develop ballistic missiles, nuclear capabilities and weapons of mass destruction in a manner that is complete, verifiable and irreversible. Its provocative actions only serve to heighten tensions in the region and beyond. Engagement on nuclear disarmament by all stakeholders is more urgent than ever. Ireland fully supports the international sanctions regime against North Korea, including the EU autonomous restrictive measures.’

Minister for Foreign Affairs and Trade, Simon Coveney, TD Statement in the Dáil on Catalonia 24 October 2017 Ireland’s concern at developments in Catalonia is evident and is reflected in today’s statements. I know that some Members of this House have also visited Catalonia, including recently, and their perspectives contribute to our consideration of the situation there. Irish people know Spain well. After Britain, it is the country that we travel to most. Cities and towns across Spain are home for many Irish people. In addition, some 1.8 million visits were made to Spain from Ireland during 2016. A growing and welcome element of this traffic is connected with the increasing ­number of Spaniards visiting and living in Ireland. What happens in Catalonia and Spain clearly matters to all of us in this House and in the communities that we represent. Tensions are running high but we must not lose sight of the fact that the Spain that we know well is an established democracy where citizens have full rights protected by the rule of law. In any democracy, political developments must take place within a legal framework. This is not a procedural point. This is a fundamental requirement if the rights of all citizens are to be

290  The Irish Yearbook of International Law 2016–17 ­ rotected. Respecting the rule of law, its possibilities and protections but also its p limits, is not a choice but an obligation. The resolution of the current crisis needs to be within Spain’s constitutional framework, through Spain’s democratic institutions. The freedom to express contesting views is an essential check and balance in any democracy. However, differences of opinion must be contested with full respect for the law and the rights of all citizens. This is the foundation that underpins and protects modern democratic societies and indeed the functioning of the EU. We can disagree with and work to change the law but we cannot ignore the law as it stands or act beyond it. We are all familiar with the vote in Catalonia on 1 October. I share the dismay felt by many people in Ireland and elsewhere at the disturbing clashes and injuries. Let me reiterate that violence has no place in politics. In Catalonia, and elsewhere in Spain, as in all our democracies, public representatives and all citizens must work to advance their goals within democratic institutions such as parliaments with full respect for the law. Clearly, any decision on a question as important as independence requires legitimacy. It requires legitimacy both in terms of the broadest possible political consensus and in terms of a sound legal framework. On that basis, the referendum vote of 1 October cannot be accepted as legitimate. I do not believe that it provides the basis for a declaration of independence. The holding of this referendum was ruled illegal by Spain’s constitutional court. It is clear, including from the massive gatherings that we have seen in Catalonia, that many there support independence but we also know that there are many others who do not. In early September, a small majority of the regional Catalan Parliament voted through referendum and transition legislation in controversial circumstances. Those in parliament opposed to the measures, who made up nearly half the region’s parliamentarians, argued that the legislative process breached the parliament’s own procedures and was illegal. Spain’s constitutional court later ruled the legislation illegal. It is political dialogue rather than escalating tensions that we all want to see but dialogue needs to respect the constitution of Spain, the rights of all citizens of Spain and the regional and national parliamentary institutions that represent them. Any political action outside of that framework lacks legitimacy and cannot claim to respect the plurality of opinion across Spain. I am conscious that there have been many calls for external involvement in the resolution of this matter, particularly after the violence that occurred on 1 October. However, the Government’s position is that in Spain, as in any other country in the EU, internal political and constitutional arrangements are the prerogative of a country and its people and should be determined by them through the institutions of the country and in accordance with the rule of law. Internal divisions, contesting aspirations and robust debates are to be expected in any democracy but they have to be resolved in keeping with the rule of law. Constitutions can be changed, as we know, but this has to happen in a constitutional way. I, therefore, welcome the cross-party support in the Spanish Parliament for the establishment of a committee

2017 Documents 291 to consider the issue of constitutional reform, which may address some of the current concerns. I am very concerned at the impact on people’s lives that the political uncertainty has given rise to, including the decisions of more than 1,000 companies to transfer their corporate headquarters out of Catalonia. I am also dismayed at reports of fractures within families and communities to which this divisive issue is giving rise. The validity and legitimacy of political effort requires, as I have said, securing the broadest possible consensus within the law. Citizens also deserve the certainty that the rule of law extends to them. This is why I remain of the view that it is for all Spaniards—all Catalans and all Spaniards—to arrive at a shared view on what steps within their laws and their own democratic institutions might best support a process towards a resolution. Clearly, this is proving very difficult. The decision taken by the Spanish Government to apply Article 155 of the constitution marks a significant point. Nonetheless, there still remains an opportunity for engagement. We hope that leaders take the necessary steps to return to the space where differing views are contested through national and regional democratic institutions with full respect always for the law and the rights of citizens. Upholding the constitution and the rule of law in all its aspects is a key underpinning of all democracies. Ireland respects the constitutional and territorial integrity and unity of Spain. The Government’s position remains that the constitutional and political arrangements in Spain are matters to be determined by its own citizens though its own institutions in keeping with its own laws.

Statement by Minister Coveney on the Situation in Rakhine State, Myanmar 15 September 2017 The Minister for Foreign Affairs and Trade, Simon Coveney TD, expressed serious concern about the recent escalation of violence in Rakhine State, Myanmar and the consequent humanitarian crisis. ‘I condemn the attacks on 25 August and subsequent actions undertaken by ARSA militants. I am also deeply concerned by the reports of excessive responses by ­Myanmar’s security forces following those attacks. I call on the security forces to de-escalate the situation, to respect international human rights law, and to ensure the protection of all civilians in the affected area. I encourage the Government of Myanmar to continue to engage with the UN. I also welcome the commitment of the Government to implement the recommendations of the Advisory Commission on Rakhine State and urge them to take forward this work as soon as possible. This provides a basis for dealing with the long-term resolution of the challenges facing all communities in the region.’ ENDS

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Statement by Minister Coveney on North Korean Nuclear Weapons Test 4 September 2017 The Minister for Foreign Affairs and Trade, Mr Simon Coveney TD, has expressed deep concern that North Korea tested a nuclear explosive device on 3 September 2017. Speaking from Brussels, Minister Coveney said: ‘This further test of another nuclear explosive device by North Korea represents a real threat to peace and security in the region and beyond. It is a flagrant and provocative violation of the DPRK’s international obligations not to produce or test nuclear weapons. I unreservedly condemn such actions. This latest development highlights the need for immediate entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT). I urge all states who have not already done so to ratify the Treaty without delay so that the global disarmament and non-proliferation architecture can be strengthened and the global norm against testing reinforced. I call on North Korea to abandon its programmes to develop ballistic missiles, nuclear capabilities and weapons of mass destruction in a manner that is complete, verifiable and irreversible. Urgent engagement on nuclear disarmament by all stakeholders is now needed. I also call on the North Korean authorities to cease all nuclear testing and re-engage with the Six Party Talks on the denuclearisation of the Korean Peninsula, ­immediately and without pre-conditions.’ ENDS

Statement by HE Ambassador Kevin Kelly, Permanent Representative of Ireland to the OPCW at the Fifty-Fourth Meeting of the Executive Council 13 April 2017 Mrs Chairperson, Director-General, Distinguished Delegates, Ladies and Gentlemen, Ireland fully aligns itself with the statement delivered by Malta on behalf of the European Union. I welcome the decision to convene this meeting of the Executive Council and would like to express my sincere appreciation to the Director-General and the staff of the OPCW for their continued professionalism and tireless commitment, which have

2017 Documents 293 been demonstrated once more following recent events in the Syrian Arab Republic. Ireland is deeply concerned about the allegations concerning the use of chemical weapons in an air strike in the Idlib province of Syria on April 4th and we look ­forward to the Director-General’s report on this matter. Ireland condemns in the strongest terms the reported use of chemical weapons in Syria and echoes what many delegations have stated here today: the use of chemical weapons by anyone, anywhere and under any circumstances must be rigorously condemned by the international community. We believe that those who are responsible for these reprehensible acts must be held accountable, for violations of international law cannot go unaddressed and unpunished. Ireland reiterates our call to refer possible war crimes and crimes against humanity perpetrated in Syria to the International Criminal Court. Ireland calls on Syria, a state party to the Chemical Weapons Convention since 2013, to meet its obligations under the Convention without any further delay. We will continue to support the efforts and work of the OPCW, including the OPCW-UN Joint Investigative Mechanism (JIM), to investigate the allegations of a chemical weapons attack. We greatly appreciate that the OPCW’s Fact-Finding Mission (FFM) has already started the necessary work of gathering and analysing information from all available sources regarding these most recent allegations. Ireland welcomed the adoption by the Security Council of a resolution late last year to renew the mandate of the JIM. This year-long extension allows for a continuation of vital investigative work in a place where civilians have experienced first-hand the devastating effects of chemical weapons attacks by the Syrian regime, as identified in the third and fourth JIM Reports. At the OPCW Conference of the States ­Parties in November last year, we requested that all stakeholders engage fully with the efforts of the FFM and the JIM, and that there are no attempts to hinder or delay the work of the Declaration Assessment Team—we underline the importance of this once more. Ireland has been pleased to support the international community’s efforts to remove and destroy the Syrian Government’s declared stockpiles of chemical weapons. ­However, we continue to be disturbed by the evidence of the regime’s use of such weapons and reiterate the EU call that those responsible should be sanctioned within the framework of the United Nations. The international community has clearly shown its commitment to assisting Syria in destroying its chemical weapon stockpiles. It now falls to the Syrian authorities to meet their obligations and to fully respect the decisions taken by the Executive Council and its obligations under the Chemical Weapons Convention. It is utterly unacceptable that over a century after their first use, it seems these ­weapons are still being used to inflict such cruel harm on combatants, civilians, and most devastatingly, on children. The images and footage of innocent children suffering in the aftermath of these attacks cannot fail to leave a lasting imprint on those who view them. Ireland will continue to support the efforts of the OPCW in Syria

294  The Irish Yearbook of International Law 2016–17 and appreciates that the Director-General will keep the Executive Council updated as the investigation progresses. Thank You.

Trafficking in Persons in Conflict Situations: Forced Labour, Slavery and other Similar Practices UN Security Council Chamber, New York Statement by Ireland Minister for International Development Joe McHugh, TD 15 March 2017 Mr President, Thank you for convening today’s important debate. Ireland was proud to co-sponsor Resolution 2331 on Trafficking in Persons in Conflict, adopted last ­December. We see today’s debate as a crucial opportunity to continue this momentum. This is an issue that affects an estimated 21 million people worldwide, of whom over five million are children. It is therefore incumbent on us to do everything ­possible to address it. I align myself fully with the statement delivered by the European Union. The EU has also taken a leading role in various policy and programme initiatives to prevent and combat human trafficking, and Ireland will continue its support to these endeavours. Mr President, I will make three main points in my national capacity. One, human trafficking is a current reality and we need to respond. Sensitisation training and capacity building will lie at the core of our response to cases of human trafficking, forced labour and modern slavery. —— Security officials must know the signs to look for and the support to request. —— First responders must be sensitised to ensure victims—especially women and girls—receive the medical and psycho-social care they urgently need. —— Law enforcement and legal officials must be aware of the rights and responsibilities involved in such cases. —— Civil society organisations must be empowered to act as watchdogs throughout. An effective response to human trafficking also requires partnerships to be formed both within, and across, international and regional bodies. We are pleased to see

2017 Documents 295 increasing partnership between INTERPOL and the UN as one example of progress in this area. The work of UN regional offices in building partnerships with subregional organisations will also play a key role going forward. Two, human trafficking will continue unless we prioritise prevention. Ireland believes impunity acts as a driver of human trafficking. We need to tackle this headon and see accountability as key to prevention. National systems must be equipped to uphold international and customary standards of justice in cases related to human trafficking and modern slavery. Moreover, we strongly believe that more focus is needed on the conditions that make people vulnerable to human traffickers, leading to them becoming trapped in cycles of forced labour or modern slavery. Poverty and economic hardship are major factors in this respect. It is for this reason that implementation of the 2030 Agenda is crucial. Human trafficking is explicitly addressed in four different Sustainable Development Goals, though implementation of all 17 goals is necessary to tackle the root causes of this phenomenon. A stronger focus on Sustaining Peace, particularly in the context of support to conflict prevention initiatives at the national, regional and international level, will also directly contribute to stemming the tide of human trafficking. Three, we must take a gendered response to human trafficking. Human trafficking, forced labour and modern slavery force people into circumstances no human being should have to endure. The effects on women and girls can be particularly harrowing. The New York Declaration on Refugees and Migrants commits all States to ensuring that our responses to large movements of refugees and migrants mainstream a gender perspective. This doesn’t just entail extra security and response measures; it also means women’s participation in policies and programmes to combat and prevent human trafficking. Mr President, This issue is a priority for Ireland. Ireland’s commitments are set out in our National Action Plan to prevent and combat human trafficking, now in its second phase. It was developed in consultation with national and international partners, including civil society, and sets out a clear collaborative programme to advance the fight against trafficking and enhance the protection of victims. Raising public awareness is key to preventing and combating human trafficking. ­Ireland also provides funding to various international and multilateral funds involved in combating human trafficking. Preventing human trafficking is an enormous challenge, which requires the concerted efforts of all involved, and only through collaboration at international, regional, bilateral and national levels will combatting human trafficking be advanced.

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Minister for Foreign Affairs and Trade, Mr Charles Flanagan, TD, Statement on behalf of the Government: US Executive Order (27 January, 2017) by Minister for Foreign Affairs and Trade (Extracts only) Ceann Comhairle, Executive Order of 27 January 2017 I wish to address the House with regard to the matter of the Executive Order signed by President Donald J Trump on 27 January 2017. In particular, I wish to make clear the Government’s position on the following three issues: this Executive Order; the operation of pre-clearance facilities at both Dublin and Shannon Airports; and Ireland’s relationship with the United States. The Government’s position on this matter is clear and was set out in my Press Statement on 29 January 2017, immediately prior to my visit to Washington, DC, from 31 January to 2 February. As I noted in that statement, while US immigration policy is a matter for the US authorities, it is clear that the Executive Order signed by President Trump on 27 January last could have far-reaching implications, both on humanitarian grounds and for relations between the United States and the global Muslim community. I would further note that the Government fully shares the ­concerns expressed by other EU partners regarding this development. Alongside these concerns, a question arose about the possible effects on dual nationals. On 31 January 2017, the US authorities issued a clarification which was also publicised by the US Embassy in Dublin. This noted that the Executive Order in question does not restrict the travel of dual nationals to the United States, so long as they hold the passport of an unrestricted country and possess a valid US visa, if required. That means that Irish citizens travelling to the United States on Irish passports should encounter no difficulties in this regard, as long as they have followed the ­relevant procedures governing the US Visa Waiver Programme and, if necessary, have obtained a US visa prior to travel. I wish to underline that Irish citizens, who are dual nationals of one of the seven states listed in the Executive Order signed on 27 January last, have the same rights to avail of the US Visa Waiver Programme as all other Irish citizens. A total of 5,003 certificates of naturalisation were issued in the period 1 January 2010 to 31 ­December 2016 to citizens of the seven states concerned. Around 8,000 current Irish passport holders were born in one of these seven countries.

2017 Documents 297 As the House will be aware, I travelled to the United States from 31 January to 2  February 2017, as part of a pre-planned visit to Washington, DC. I had a number of meetings with several Congressional leaders from both sides of the aisle—that is, both Republican and Democrat—including the Speaker of the House of Representatives, Mr Paul Ryan; House Majority Leader, Mr Kevin McCarthy; and House Minority Leader, Ms Nancy Pelosi. I also travelled to the White House where I met with representatives of the US Administration, including the Former US National Security Advisor—Gen Michael Flynn. During my meeting with Gen Flynn I expressed the Government’s deep concerns with regard to the nature and impact of the Executive Order of 27 January. In response, Gen Flynn outlined the rationale, in US immigration terms, for these temporary measures. I also pointed out to Gen Flynn the damaging consequences of these measures in humanitarian terms, as well as the impact on the international reputation of the United States. I reiterated those views and concerns at my various meetings on Capitol Hill. As the House will no doubt be aware, in recent days the US courts have intervened and imposed a temporary suspension on the implementation of the Executive Order of 27 January. It would not be appropriate for me to comment further on a matter which is still the subject of legal proceedings. Pre-Clearance at Dublin and Shannon Airports In the context of discussions about the Executive Order in Ireland, the issue of ­pre-clearance facilities at both Dublin and Shannon Airports arose. The matter was discussed at Cabinet and the Taoiseach has already requested that a review of ­pre-clearance be carried out. This review—which is being chaired by the Department of Transport, Tourism and Sport—involves officials from the Department of the Taoiseach, the Department of Justice and Equality and the Department of Foreign Affairs and Trade. I understand that this review is very close to completion. However, I would like to clarify the facts regarding a number of questions that arose about pre-clearance facilities. The US-Ireland Pre-Clearance Agreement was signed by the Minister for Transport and the Secretary of the US Department of Homeland Security on 17 November 2008 and given effect in Irish law on 8 July 2009 by the Aviation (Preclearance) Act 2009 (No 16 of 2009). The US-Ireland Pre-Clearance Agreement states that nothing therein diminishes the rights enjoyed by individuals under the Constitution and laws of Ireland or, where applicable, the United States of America. It expressly states that the pre-clearance facility is within Irish jurisdiction and that the laws of Ireland apply at all times. US pre-clearance officers are not considered law enforcement officers. The only law enforcement officers at Irish airports are members of An Garda Siochána and ­Customs Officers. From an operational perspective, facilities are provided to the US Border and Customs staff to operate the facility and normal Garda assistance is available to passengers and US staff in these areas.

298  The Irish Yearbook of International Law 2016–17 Passengers who wish to avail of pre-clearance do so on condition that they recognise and consent to the right of the US to grant or refuse pre-clearance in accordance with its laws. Passengers present voluntarily for pre-clearance and avail of the facility on a consensual basis. Until their flights depart, passengers remain in Irish legal j­ urisdiction and have the right to withdraw from the pre-clearance process at any time. If an individual is refused leave to board, they revert to the Garda immigration officer and are considered in the same manner as if they had presented at the frontier of the State seeking permission to enter. Each case is examined on its individual ­merits, in accordance with Irish law. The existence of pre-clearance facilities t­herefore has no effect on the capacity of persons to claim asylum in Ireland nor on the way that such individuals are treated. I would like to remind the House that pre-clearance of flights from Dublin or ­Shannon bound for destinations in the United States is not compulsory. Air carriers choose to apply to have their services pre-cleared in either Dublin or Shannon. It is important to have clear factual information about pre-clearance in the public domain given its considerable benefits for Ireland. Shannon Airport was the first airport in the world outside the Americas to offer a US pre-clearance facility. Over 204,000 passengers used the pre-clearance facility at Shannon in 2016. Pre-clearance is a major selling point with the airport’s business and tourism customers, supporting trans-Atlantic connectivity for its catchment area along the entire Western-seaboard: from Donegal to Kerry and also serving the Midland counties. During 2016, almost 1.2 million passengers used the pre-clearance facility at Dublin Airport. Dublin Airport has seen continuous growth in trans-Atlantic flights since the commencement of pre-clearance in 2011. Pre-clearance has been a key driver of transfer growth at Dublin Airport. Dublin Airport is the fifth busiest airport for connectivity to North America in Europe, behind Heathrow, Charles de Gaulle, ­Frankfurt and Schiphol. The availability of pre-clearance facilities at both Dublin and Shannon Airports is a key component of Ireland’s continued competitiveness in attracting US foreign direct investment, and Ireland’s position as a gateway to the wider EU single market. It is worth noting in this context that the US is currently expanding the pre-clearance programme, with 10 airports short-listed as potential sites. Relations between Ireland and the United States Ceann Comhairle, I might make a few remarks regarding the relationship between Ireland and the United States. The Government’s priority is to ensure that the long standing and warm relationship between Ireland and the US is protected in the interests of Irish citizens on both sides of the Atlantic. Our relationship is complex and multi-layered, is based on shared values, as well as our deep political, historic and economic ties. In economic terms alone over 150,000 people are directly employed in over 700 US firms in Ireland and that these account for over 74 per cent of all IDA

2017 Documents 299 supported employment. In addition, Irish companies directly employ over 120,000 people in 227 companies at over 2,600 locations, in all 50 States across the USA. US firms in Ireland form a critical part of Ireland’s cutting edge, internationally traded goods and services economy in industries such as information and communications ­technology, biotechnology, pharmaceuticals, medical technologies and financial services. […] As Minister for Foreign Affairs and Trade, I am acutely conscious of the challenges facing the undocumented Irish in the United States. Achieving relief for undocumented Irish migrants in the US and agreement on a facility for future migration between Ireland and the US are longstanding Government objectives. The undocumented Irish in the United States are believed to number around 50,000 individuals, spread across the US. The Department of Foreign Affairs and Trade has and will continue to seek practical, beneficial solutions to the plight of the undocumented Irish. The Government will also continue to support organisations that deliver frontline advisory services and community care to Irish emigrants through the Emigrant Support Programme, which is overseen by Minister of State McHugh, Minister of State for the Diaspora. Many emigrants to the United States achieve great success but many others can find themselves in vulnerable circumstances. More than 70 per cent of the funds allocated through this programme are directed towards welfare services, including in support of the undocumented Irish in the US. In the last funding round for the Emigrant Support Programme, my Department was able to allocate more than €2.3 million in funding to organisations in the United States. I have visited Immigration Centres and I know that that funding makes a valuable contribution to vulnerable Irish citizens far from home and far from family networks. […] The bottom line is that it is only by continuing to engage with policy-makers in the US—both in the Administration and in Congress, as well as at State and local level—that we can articulate our concerns and seek to advance the interests of Irish citizens. Whether it be with regard to the recent Executive Order or concerning the need for immigration reform. As a Government we are determined to use every opportunity to set out our priorities on a broad range of issues, in the interests of our people, and of the values which both Ireland and the US share.

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Document 3 Statement by Ms. Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 71st Session Agenda Item 78: The Report of the International Law Commission on the Work of its 68th Session PART 2—Ch VII (Crimes against humanity), Ch VIII (Protection of the atmosphere), and Ch IX (Jus Cogens) New York, 1 November 2016 Check against delivery Mr Chair, 1. I will speak today on the topics of “Crimes against humanity” and “Jus Cogens”. A slightly longer written version of my remarks will be made available. Crimes against humanity 2. With regard to the topic of “Crimes against humanity”, Ireland thanks the ­Special Rapporteur, Mr Sean Murphy, for his comprehensive second report on this topic, and the Drafting Committee for its careful consideration of draft ­articles 5, 6, 7, 8, 9 and 10. 3. My delegation also expresses its gratitude to the Secretariat for its memorandum entitled “Information on existing treaty-based monitoring mechanisms which may be of relevance to the future work of the International Law Commission” which is a valuable contribution to the work of the Commission. We believe this will form a useful basis upon which to assess proposed monitoring mechanisms for a future convention on crimes against humanity.

302  The Irish Yearbook of International Law 2016–17 4. My delegation welcomes the consideration given by the Special Rapporteur and the Drafting Committee to the relationship between their work and the Rome Statute, which provides for the international prosecution of crimes against humanity. In particular, we welcome the use of Article 28 of the Rome Statute as a basis for draft article 5 paragraph 2 which deals with command or other superior responsibility. Ireland is of the view that where the draft articles deal with the liability of natural persons for crimes against humanity, they should not deviate from the provisions of the Rome Statute. 5. In relation to the decision of the Commission to address the liability of legal persons for crimes against humanity in draft article 5 paragraph 7, we note that the Commission’s recommendation moves away from the approach taken by the drafters of the Rome Statute, who noted the deep divergence of views on inclusion of criminal responsibility of legal persons in the Statute and ultimately did not include such a provision in the Statute. 6. We agree with the statement of the Special Rapporteur at paragraph 41 of his second report that criminal responsibility for corporations is not uniformly recognised worldwide and the approach adopted in jurisdictions where it is recognised can diverge significantly. The Commission itself notes in its commentary on draft article 5(7) that the criminal liability of legal persons has not featured significantly to date in international criminal courts or tribunals. We would therefore suggest that further consideration be given as to whether to include draft article 5 paragraph 7. 7. As my delegation previously stated on the introduction of this topic, we do not wish to see the work of the Commission on this topic divert attention away from the international initiative towards the development of a Multilateral Treaty for Mutual Legal Assistance and Extradition in Domestic Prosecution of Atrocity Crimes and we therefore welcome the Special Rapporteur’s engagement with officials from the countries which initiated this project. We note that it is proposed that the Special Rapporteur’s third report will address a number of issues, including the rights and obligations applicable to the extradition of alleged offenders and the rights and obligations applicable to mutual legal assistance in connection with criminal proceedings. Given that these issues will overlap significantly with the subject matter of the proposed Multilateral Treaty, we encourage the Special Rapporteur to continue liaising with these officials. Jus Cogens 8. Turning to the topic of “Jus Cogens”, Ireland thanks the Special Rapporteur, Mr Dire Tladi, for his first report on this interesting topic and would like to offer the following observations in response to the methodological questions raised therein. 9. First, we agree with the concern expressed by the Special Rapporteur that attempting to provide an illustrative list of jus cogens norms could change the nature of the topic, blurring its fundamentally process-orientated nature by

2016 Documents 303 shifting the focus towards the status of particular primary rules. Ireland favours an approach that focuses on the way in which jus cogens rules are to be identified and the legal consequences flowing from them. Nevertheless, we tend to agree that the work on this topic will, by necessity, be required to provide some examples of jus cogens norms in order to provide guidance as to their nature, the requirements for their elevated status and their consequences or effects. As regards the specific question posed as to whether examples of jus cogens norms treated in the Commission’s work should be listed in an annex, while we remain open to considering alternative approaches, as an initial view my delegation would tend to see little added benefit to providing such an annex, particularly given that it might risk giving rise to the very disadvantages associated with a list of norms, even if it is stated to be illustrative and non-exhaustive. 10. Secondly, regarding the materials on which the Commission should base its work, notwithstanding that the topic is of a more theoretical nature than might typically be the case, we endorse the approach succinctly outlined by the Special Rapporteur in paragraph 45 of his report, namely that “What is important for the purposes of the Commission’s work is whether jus cogens finds support in the practice of states and jurisprudence of international and national courts—the currency of the Commission’s work. While the views expressed in the literature help to make sense of the practice, and may provide a framework for its systematization, it is state and judicial practice that should guide us”. 11. Thirdly, we concur with the view that Articles 53 and 64 of the Vienna Convention on the Law of Treaties ought to be central to our work on this topic, and that it is important to remain faithful to these provisions. Accordingly, we would encourage an in-depth study of the travaux-préparatoires of the relevant provisions of the Convention. In particular, we consider that it is important that additional requirements for the recognition of jus cogens not be inadvertently created. 12. Regarding future work, we look forward to the next report of the Special Rapporteur considering the sources of jus cogens norms and the relationship between jus cogens and non-derogation clauses in human rights treaties, with the consequences of jus cogens norms forming the basis of the third report. The criteria for elevation, and the manner of determining whether a jus cogens norm is “accepted and recognised” as such “by the international community of states as a whole” are, in our view, critical aspects of this topic. Regarding the universal nature of jus cogens norms, while we are somewhat sceptical as to jus cogens being applied on a regional basis, albeit that there might be regional norms of a non-derogable nature, we look forward to this being examined in future reports, together with the applicability of the doctrine of persistent objector.

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Document 4 Statement by Ms Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 71st Session Agenda Item 78: The Report of the International Law Commission on the Work of its 68th Session PART 3—Ch X (Protection of the Environment), Ch XI (Immunity of State Officials from foreign criminal jurisdiction) and Ch XII (Provisional Application of Treaties) New York, 2 November 2016 Check against delivery Mr Chair, 1. Thank you for the opportunity to comment on the third cluster of issues contained in the ILC’s report. I will speak today on the topic of “Immunity of State officials from foreign criminal jurisdiction” and the topic of “Provisional application of Treaties”. A slightly longer version of my remarks will be made available in writing. Immunity of State Officials 2. Regarding the topic “Immunity of State officials from foreign criminal jurisdiction” Ireland wishes to express its appreciation to the Special Rapporteur, Ms Concepción Escobar Hernández for her fifth report, which analyses the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. We understand that the debate of this aspect of the topic at the present session was preliminary in nature and will be continued at the Sixty-ninth session of the Commission. Therefore, my delegation’s comments on this element of the topic must be understood to be preliminary

306  The Irish Yearbook of International Law 2016–17 in nature. My delegation also thanks the Drafting Committee for its work on draft articles 2, subparagraph (f) and 6 which were provisionally adopted by the Commission at the present session. 3. In Ireland’s statement to the Sixth Committee on this topic in 2015, we noted that the proposed definition of an “act performed in an official capacity” in draft Article 2(f) was general in nature. Therefore, we welcome the acknowledgement in paragraph 10 of the commentary on this draft article that such acts must be identified on a case-by-case basis and we agree with the Commission’s decision to set down the criteria to be examined, namely, that the act in question has been performed by a State official, is generally attributable to the State and has been performed in “the exercise of State authority”. 4. In relation to draft article 7, which was briefly considered by the Commission and will be discussed again at the Commission’s next session, Ireland makes the preliminary comment that further consideration should be given by the Commission to the international crimes to which immunity does not apply. 5. Ireland looks forward to the Commission’s full discussion of this topic at its next session. We also note that the sixth report of the Special Rapporteur in 2017 will address the procedural aspects of immunity of State officials from foreign criminal jurisdiction and we believe that consideration of these procedural aspects should take into account the exceptions set out in draft Article 7. Mr Chair, Provisional application of Treaties 6. Turning to the topic “Provisional application of treaties”, my delegation thanks the Special Rapporteur, Mr Juan Manuel Goméz-Robledo, for his fourth report, and the Drafting Committee for its careful consideration of draft guidelines 1–3 and 4–9, which have been provisionally adopted by the Committee. Ireland aligns itself with the statement delivered by the European Union, and would like to offer the following additional observations. 7. At our last session in 2015, Ireland was amongst a number of delegations which urged that further analysis be undertaken as to the precise nature of the legal effects created by provisional application, and the extent to which they differ, if at all, from the effects created by the entry into force of the treaty. While taking note of draft guideline 7 and the statement of the Chair of the Drafting Committee in relation thereto, we continue to be of the view that further elaboration of this question, based upon a detailed review of state practice, would be beneficial to the Sixth Committee’s consideration of the topic as a whole. 8. In this connection, it is with considerable interest that Ireland notes the contribution of the Treaty Section of the UN Office of Legal Affairs regarding the approach of the Secretariat to the provisional application of treaties in the context of its registration functions and the depositary functions of the SecretaryGeneral. The statistics alone provide a valuable insight—1,349 provisional

2016 Documents 307 a­ pplication actions registered between 1946 and 2015, with 1,733 treaties registered subject to provisional application. The treatment of provisional application in the 1946 ­Regulations on Registration and Publication of Treaties, the Repertory of Practice of the United Nations, the Treaty Handbook, the Handbook on Final Clauses of Multilateral Treaties and the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties all appear, to my delegation, to be pertinent to an examination of this topic, and so worthy of further consideration. Such consideration might include an examination of issues such as the breakdown of treaties registered subject to provisional application when divided as between bilateral and multilateral agreements; whether the practice of the Treaty Section with regard to displaying information on provisional application varies depending on whether provisional application is provided for in the agreement itself or has been agreed by some other means and if agreed by some other means, what information is required? Another issue that might be considered is the effect of Article 102, paragraph (2), of the UN Charter with regard to a provisionally applied treaty that has not been registered with the UN. 9. We very much welcome, therefore, the decision to request the Secretariat to prepare a memorandum analysing state practice in respect of treaties which provide for provisional application deposited or registered with the Secretary-General in the last 20 years, and look forward to reflecting on the further insights that this will surely provide. Thank you Mr Chair

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Document 5 Statement by Ms Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 72nd Session Agenda Item 81: The Report of the International Law Commission on the Work of its 69th Session PART 1—Ch I (Introduction), Ch II (Summary of the work of the Commission at its sixty-eighth session), Ch III (Specific issues on which comments would be of particular interest to the Commission), Ch IV (Crimes Against Humanity), Ch V (Provisional Application of Treaties) and Chap XI (Other decisions and conclusions of the Commission) New York, 25 October 2017 Check against delivery Mr. Chair, 1. At the outset, as this is our first time taking the floor, Ireland wishes to congratulate the Chair and Bureau on your election, and to assure you of our support for your work. The Irish delegation thanks the Commission for the report of its Sixty-Ninth Session and commends the considerable progress made this year. We also thank the Chair of the Commission, the Special Rapporteurs and other member of the Commission for their presence here in New York, as well as the Office of the Legal Adviser for its support of the Commission’s work. 2. Today, I will comment on the topics of “Crimes against Humanity” and the “Provisional application of Treaties”. Finally, I will make some brief comments on “Other decisions and conclusions of the Commission”.

310  The Irish Yearbook of International Law 2016–17 Crimes against Humanity 3. Ireland wishes to congratulate the Commission and the Special Rapporteur, Mr Sean D. Murphy, on the successful conclusion of its first reading of the draft articles on crimes against humanity and the commentaries thereto. We would like to commend the significant contribution of Mr Murphy to this topic which has seen the provisional adoption of a full set of draft Articles in three years. 4. Ireland notes that a preparatory conference took place in the Netherlands last week on a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the most serious international crimes. As my delegation said in its statement delivered at the Seventy-First Session last year, it is important that the Commission continues to communicate with the Convening States of this initiative as they progress work on this proposed new instrument, to guard against any potential fragmentation in this area of law. 5. Ireland looks forward to considering these draft Articles in depth and providing comments and observations to the Secretary General by 1 December 2018 at the request of the Commission. Mr Chair, Provisional application of Treaties 6. Ireland aligns itself with the statement delivered by the European Union on the topic “Provisional Application of Treaties” and would also like to express our gratitude to the Commission and the Special Rapporteur, Mr Juan Manuel Gomez Robledo for his work on this topic. 7. In addition, Ireland notes with appreciation the Secretariat’s Memorandum analysing state practice in respect of treaties which provide for provisional application deposited or registered with the Secretary General in the last 20 years. Mr Chair, Other decisions and conclusions of the Commission 8. Turning to other decisions of the Commission during its 69th Session, Ireland takes note of the decision to recommend the inclusion of the topics “General principles of law” and “Evidence before international courts and tribunals” in its long-term programme of work. We wish to thank Mr Marcelo VazquezBermudez and Mr Aniruddha Rajput for their useful papers addressing these proposed topics. Both of these topics are of interest to my delegation, but we note the need to ensure that the Commission has sufficient time to fully consider each topic it works on and in turn to provide adequate time for deliberation by the Sixth Committee.

2017 Documents 311 9. Finally, we welcome the Commission’s recommendation to hold a number of commemorative events in New York and Geneva during its seventieth session, including two half-day events in New York on 21 May 2018 and a one and a half-day conference on 5 and 6 July 2018. Ireland supports the proposed theme for these events “70 years of the International Law Commission—Drawing a balance for the future” and is of the view that the seventieth anniversary of the Commission provides a unique opportunity to contemplate its role in the future development of international law through an exchange between States and members of the Commission on possible future topics.

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Document 6 Statement by Ms. Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 71st Session Agenda Item 78: The Report of the International Law Commission on the Work of its 68th Session PART 1—Ch I–III (Introduction, Summary of Work, Specific Issues), Ch IV (Protection of persons in the event of disasters), Ch V (Identification of customary international law), Ch VI (Subsequent agreements and subsequent practice in relation to the interpretation of treaties) and Chap XIII (Other decisions and conclusions of the Commission) New York, 26 October 2016 Check against delivery Mr. Chair, 1. As this is our first time taking the floor, Ireland wishes to congratulate the Chair and Bureau on your election, and to assure you of our support for your work. 2. My delegation thanks the Commission for the report of its Sixty-eighth Session. We also wish to thank the Chair of the Commission and the Special Rapporteurs for their presence here in New York. 3. Today, I will comment on the topics of “Protection of persons in the event of disasters”, “Identification of customary international law” and “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”. Finally, I will make some brief comments on “Other decisions and conclusions of the Commission”. A slightly longer version of my written remarks will be made available.

314  The Irish Yearbook of International Law 2016–17 Protection of persons in the event of disasters 4. Ireland aligns itself with the statement delivered by the European Union on the topic of “Protection of persons in the event of disasters” and would also like to congratulate the Commission and the Special Rapporteur, Mr Eduardo Valencia Ospina, on the completion of the Special Rapporteur’s Eighth Report and the successful adoption of the entire set of draft articles on the protection of persons in the event of disasters and the commentaries thereto. 5. Ireland has been supportive of the International Law Commission’s consideration of this topic and we welcome the adoption of the set of draft articles and the commentaries thereto. These draft articles in themselves will significantly contribute to the codification and harmonisation of this field of law as well as providing useful guidance to States. We are open to discussing further the final form of the draft articles. Identification of Customary international Law 6. Ireland aligns itself with the statement delivered by the European Union on the topic of “Identification of Customary International Law” and offers the following remarks. 7. My delegation once again thanks the Special Rapporteur, Sir Michael Wood, as well as the working group chaired by Mr Marcelo Vázquez-Bermúdez, for the impressive work undertaken over the past year which has resulted in a set of 16 draft conclusions and detailed commentaries, together with an extensive bibliography that will no doubt serve as a highly useful resource. In addition to this, the Special Rapporteur has begun consideration of the ways in which evidence of customary international law might be made more readily available. In this regard, we support the suggestion that the Secretariat be requested to update the survey of compilation and digests contained in its 1949 memorandum, and we look forward to considering this in due course. 8. We must also express our gratitude to the Secretariat for its excellent Memorandum on the role of decisions of national courts in the case law of international courts and tribunals for the purpose of the determination of customary international law. The 25 Observations contained in the Memorandum provide an invaluable insight into the manner in which such decisions are considered in practice. In particular, we would note the discussion in paragraphs 53 and 55 which highlights that reliance on national court decisions tends to increase in relation to subject areas where domestic judicial practice is especially relevant, such as immunity from jurisdiction, criminal law and diplomatic protection. We are uncertain as to the manner in which the Memorandum will form part of the final outcome on the topic, and would encourage that consideration be given to this.

2016 Documents 315 Mr Chair, 9. We welcome the commentary to draft conclusion 3 and the clear explanation of the three aspects of “overall context”, “nature of the rule” and “particular circumstances in which the evidence … is to be found”, as well as the need to assess each element separately as part of two distinct inquiries. 10. Let me turn now to the draft conclusions themselves. Regarding the suggested changes to draft conclusion 4, whilst we are generally supportive of adherence to language used in judgments of the International Court of Justice, the revised draft as set out in paragraph 32 of the Special Rapporteur’s report seems, to us, to lose some of the meaning of the earlier draft, which we would wish to see retained. In particular, we consider that it is worthwhile maintaining the reference to the primary role of state practice in contributing to the creation of customary international law. 11. In our comments on the topic last year, my delegation urged a cautious approach to the question of inaction, and called for the inclusion within the draft conclusions of specific criteria to be taken into account to qualify inaction as evidence of acceptance as law. We are pleased, therefore, that the commentary to draft conclusion 6 cautions that only deliberate abstention from acting may serve to count as practice. We are further satisfied by the fact that the commentary to draft conclusion 10 builds upon paragraph (3) so as to make clear that, in order for inaction to have probative value as evidencing acceptance as law, it is necessary that, first, a reaction was called for, such as where the practice in question directly or indirectly affects the interests or rights of the inactive state and, ­secondly, that the state must have had knowledge of the practice as well as sufficient time and ability to act. 12. Finally, Mr Chair, Ireland welcomes the stringent approach taken in draft ­conclusion 15 to the persistent objector rule, including the requirement that an objection should be reiterated whenever the circumstances are such that a restatement is called for. Subsequent agreements and subsequent practice in relation to the interpretation of treaties 13. Very briefly, Mr Chair, Ireland aligns itself with the statement delivered by the European Union on the topic of “Subsequent agreements and subsequent practice in relation to the interpretation of treaties”, but would like to add an expression of our gratitude for the meticulous and efficient work of the Special Rapporteur, Mr Georg Nolte, which has resulted in the adoption by the Commission this year of a set of 13 draft conclusions with commentaries. 14. The detailed treatment of the pronouncement of expert treaty bodies within his fourth report provides an excellent basis on which to consider draft ­conclusion 13. At this point we might note that we welcome the reference within

316  The Irish Yearbook of International Law 2016–17 paragraph (3) of the draft conclusion to the fact that silence by a party shall not be presumed to constitute subsequent practice accepting an interpretation of a treaty as expressed in a pronouncement of an expert treaty body. Within this paragraph, we also support the wording that a pronouncement of an expert treaty body may “refer to” a subsequent agreement or subsequent practice, rather than stating that such an agreement or practice may be “reflected in” a pronouncement. We agree with the view of the Drafting Committee that the former serves to clarify that any subsequent agreement of the parties is not comprised in the pronouncement itself. We look forward to further considering the draft conclusions and their detailed commentaries. Other decisions and conclusions of the Commission 15. Turning to other decisions of the Commission during its Sixty-eighth Session, Ireland takes note of, and supports, the decision to recommend the inclusion of the topic “The settlement of international disputes to which international organisations are parties” in its long-term programme of work. We wish to thank Sir Michael Wood for his useful paper addressing this proposed topic and the attached bibliography. We also support the inclusion of disputes of a private nature to which international organisations are party within the scope of this proposed topic. 16. As a final remark, we welcome the Commission’s recommendation to hold a seventieth anniversary event in two parts during the first part of the seventieth sessions in New York and Geneva in 2018 and we support the Commission’s proposed agenda for this event.

Document 7 Statement by Mr James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 72nd Session Agenda Item 81: The Report of the International Law Commission on the Work of its 69th Session PART 2—Ch VI (Protection of the atmosphere), and Ch VII (Immunity of State officials from foreign criminal jurisdiction) New York, 27 October 2017 Check against delivery Mr Chair, Protection of the atmosphere 1. Ireland wishes to begin by aligning itself with the statement delivered by the European Union on the topic “Protection of the atmosphere” and would like to acknowledge the work of the Special Rapporteur, Mr Shinya Murase, in producing his fourth report on this topic considering the interrelationship between international law on the protection of the atmosphere and other fields of international law. Immunity of State Officials from Foreign Criminal Jurisdiction 2. With regard to the topic “Immunity of State officials from foreign criminal ­jurisdiction” Ireland again welcomes the fifth report of the Special Rapporteur, Ms Concepción Escobar Hernández. We would like to thank Ms Hernández for the considerable work that has gone into this report, analysing the question of limitations and exceptions to the immunity of State officials from foreign criminal jurisdiction. 3. We further note the provisional adoption by the Drafting Committee of draft Article 7 and its commentaries. Ireland acknowledges that this is a complex and difficult topic and accordingly believes that the work of the Commission on this

318  The Irish Yearbook of International Law 2016–17 subject is important. Therefore, Ireland wishes to voice our concern that the Commission was divided internally on the adoption of draft Article 7 and its commentaries, which led to a vote being held on its adoption. 4. Ireland is of the view that while the Special Rapporteur’s report contained an extensive discussion of practice, the groundwork for detailed consideration of the question of non- application of immunity was not fully in place prior to this year’s session. Accordingly, the resultant draft Article 7 may not be fully grounded in widely accepted State practice. In light of this, further information on practice relating specifically to the non-application of immunity would be helpful. 5. For these reasons, Ireland would like to express the wish that the Commission continue to consider the basis for and content of draft Article 7 in conjunction with the provisions on procedures and safeguards at its next session with a focus on State practice. 6. Ireland also notes the Special Rapporteur’s comments (at paragraph 134 of the ILC Report) that the draft articles contain elements of both codification and progressive development. Ireland, however, believes it is unclear from the Special Rapporteur’s Report, the report of the Drafting Committee and the commentaries whether and in what respect draft Article 7 seeks to determine the scope of existing international law (lex lata) or the extent to which the Commission is following an emerging trend towards desirable norms {lex ferenda). Indeed, while the Special Rapporteur stated that the Commission was not engaged in crafting “new law”, Ireland takes note of the comments made by some members of the Commission that the text does not reflect existing international law or identifiable trends. 7. Ireland recalls the mandate of the Commission to codify and progressively develop international law. Whilst both aspects of its work are equally valid, ­Ireland believes that the focus of the Commission on any given item should initially be on establishing the current state of the law and only then should it move on to assess proposals for progressive development. This is particularly so with a topic such as the current one, which may give rise to practical issues that fall to be considered not only by Foreign Ministries and international lawyers, but also by domestic courts grappling with highly sensitive cases that may come before them. 8. Therefore, irrespective of the form of the outcome of the Commission’s work on this topic, the Commission should—in our view—articulate in a granular way and in respect of each draft Article or part thereof identify whether it seeks to codify customary international law or progressively develop it. I should emphasise that this desire for clarity does not imply that my delegation is opposed to progressive development, but rather that elements of such development, based on emerging trends, should be clearly signposted. 9. My delegation looks forward to continuing to engage on this important topic and to receiving the Special Rapporteur’s Sixth report on the procedural aspects of immunity.

Document 8 Common Travel Area Information Note from Ireland to the Article 50 Working Group Introduction 1.1 The Common Travel Area (CTA) is a long-standing arrangement between ­Ireland and the United Kingdom which enables Irish and UK citizens to travel and reside in either jurisdiction without restriction and provides for associated rights and entitlements in both jurisdictions. The Common Travel Area predates membership of the EU by both Ireland and the UK and is not dependent on it. 1.2 In part reflecting Ireland’s and the UK’s common law system, many of the arrangements and rights relating to the CTA are implicit, deriving from the status of Irish citizens in the UK and UK citizens in Ireland, and therefore have not been the subject of specific legislation or of an international agreement. 1.3 The CTA is recognised in EU law by Protocol No. 20 to the Treaty on European Union and Treaty on the Functioning of the EU. This Protocol 20 to the TEU and TFEU provides that “The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (‘the Common Travel Area’) …” 1.4 These arrangements exist alongside and complement the position of ­Northern Ireland. The Good Friday Agreement1 recognises “the birthright of all the ­people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”. CTA arrangements have therefore been essential in enabling people of Irish identity not to have to assert British citizenship rights in Northern Ireland in order, for instance, to establish the right to permanent residency in the place they were born or, following Brexit, the right to live and work there at all. Origins of the Common Travel Area 2.1 Between 1801 and 1922, Ireland was part of the United Kingdom of Great Britain and Ireland. Notwithstanding the establishment of the Irish State ­ in 1922, from a UK perspective, Irish citizens continued to be regarded as 1  Please see also Information Note on the Good Friday Agreement and the Peace Process from Ireland to the Article 50 Working Group.

320  The Irish Yearbook of International Law 2016–17 British ­subjects. As such, they had the same rights in the UK as UK citizens. ­Historically, t­ herefore, following Irish independence Irish citizens continued to have a ­particular status in the UK, and it is this which has led to many of the CTA arrangements/rights being implicit, deriving from this status rather than from specific legislation or agreement. 2.2 At the time of independence, the Irish legal perspective on citizenship was ­different to that of the UK, with Irish born citizens no longer regarded as being British subjects. As a result, while Ireland shared the wish to maintain the ­Common Travel Area arrangements, the treatment of UK citizens in Ireland did not automatically mirror the UK arrangements for Irish citizens in the UK. 2.3 Although the 1922 definition of an Irish citizen did not encompass most UK ­citizens, UK citizens in Ireland were not treated as ‘aliens’ under Irish law. In practice they had a special status and for most matters were treated the same as Irish citizens with effect from the establishment of the Irish State. It was only with the introduction of the Irish Nationality and Citizenship Act 1935 that provision was made to allow for the granting of statutory reciprocity. This was eventually provided for by the Citizens of the United Kingdom and Colonies (Irish Citizenship Rights) Order 1949, which provided that UK citizens would enjoy in Ireland similar rights and privileges to those enjoyed by Irish citizens in the UK. 2.4 This general approach of reciprocity was facilitated by both states having the same common law legal tradition. All UK legislation in force in Ireland in 1922 continued in force post-independence and remains in force (to the extent that it is not inconsistent with the Constitution) unless it has been specifically repealed at some stage by the Irish parliament. 2.5 In 1948 Ireland declared itself a republic and revoked any role for the B ­ ritish monarch. Ireland was then regarded under British law as having left the Commonwealth. However, wishing to maintain the Common Travel Area ­ arrangements, the British Parliament enacted the Ireland Act 1949. Section 2(1) of that Act provides

“It is hereby declared that, notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom …”



The status of Irish nationals was maintained under the Immigration Act 1971 and the British Nationality Act 1981.

Common Travel Area Arrangements 3.1 The basic principle guiding the operation of the CTA is that the Irish and UK Governments treat each other’s citizens in a similar manner to enable them to freely move between the two jurisdictions, and thereby reside and work in either jurisdiction, without the need for special permission. Associated rights, as well as ongoing cooperation between Irish and UK authorities, facilitate and

Selected Documents 321 support these arrangements. These arrangements have been in place since Irish independence, with the only period of interruption arising during and immediately after the Second World War. 3.2 The CTA includes arrangements for Irish and UK nationals to travel ‘passport free’ between the two jurisdictions. As part of this, the CTA operates, to some degree, similar to the Schengen zone, where immigration authorities in both jurisdictions cooperate to protect the borders of the CTA and prevent its abuse. Information is also shared on visa applicants, asylum seekers, citizenship applications and police watch lists. There is also a joint British Irish Visa scheme for certain countries and joint operations to target abuses of the CTA. 3.3 The arrangement, in line with the status of Irish and UK nationals in each other’s jurisdictions, also provides, broadly reciprocal rights on the freedom to reside, work and access services, including social security, health and education. Both countries generally provide for recognition of the other’s professional and academic qualifications. 3.4 Various reciprocal bilateral arrangements governing access to social welfare benefits have been in place between Ireland and the UK. These arrangements are based on the premise of equal treatment of nationals of both States. The rules in place have been designed to protect people moving between both States and to minimise any disadvantage. 3.5 The right to access the health systems in both the UK and Ireland depends on residence. There are no restrictions on residence of UK and Irish nationals in the other jurisdiction. A UK citizen resident in Ireland has access to public health services on a similar basis to an Irish citizen resident in Ireland. Reciprocal arrangements in respect of Irish citizens apply in the UK. There is extensive co-operation on a number of all-island and cross-border health care services due to the mobility of people on the island, the size of populations and the unique geography. This encompasses both emergency and non-emergency care, including planned treatment and emergency transfers on the island of Ireland and between Ireland and Great Britain. This may involve health professionals working in the other jurisdiction. There are also other arrangements for health co-operation. 3.6 Neither Ireland nor the UK is in the Schengen area. After the UK’s withdrawal from the EU, Ireland intends to remain outside of the Schengen area and will continue to fully uphold its obligations as an EU Member State. Protocols 19, 20 and 21 of the EU Treaties will continue to apply. 3.7 Analysis by the Irish authorities has not identified any legal barrier to the arrangements as outlined above being maintained in a manner fully consistent with Ireland’s EU obligations.

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Document 9 Good Friday Agreement and Peace Process Information Note from Ireland to the Article 50 Working Group Introduction 1. The Good Friday Agreement (GFA) is the overarching framework for deepening peace, political stability and reconciliation in Northern Ireland and on the island of Ireland. It is the foundation of the Peace Process and was resoundingly endorsed by referendum on both parts of the island of Ireland in 1998. 2. The GFA is an agreement concluded between the political parties in Northern Ireland and the Governments of Ireland and the UK in which it was agreed to establish: a power- sharing Executive and a legislative Assembly in Northern Ireland; the North/South Ministerial Council and six North/South Implementation Bodies with cross-border executive functions; the British-Irish Council and the British-Irish Intergovernmental Conference, and to uphold high standards of civil, economic and social rights in Northern Ireland. The GFA is in turn annexed to a treaty between the two Governments (‘the British-Irish Agreement’)1 under the terms of which they undertake to support and implement the GFA. 3. An outline of the GFA including the remit and functions of the GFA institutions is at Annex I. 4. The Peace Process has been successful over the last two decades in moving definitively beyond the violence of the Troubles. However, it is necessarily an ongoing process, requiring the continued active oversight and involvement of the two Governments as co- guarantors and benefitting from the support and facilitation of the European Union. Since the conclusion of the Good Friday Agreement in 1998, it has been necessary to pursue a series of successive further political and legal agreements to consolidate the peace settlement provided for in the GFA and to address crises of political confidence in Northern Ireland.2 5. Addressing the difficult legacy of the past, achieving reconciliation and overcoming deep-rooted sectarianism in Northern Ireland remain as ongoing challenges at the core of the Peace Process.

1 

Registered with the United Nations—UN Treaty Series No. I-36776. the time of publication, continuing political disagreements in Northern Ireland have meant that the devolved power-sharing Executive has not yet been formed following Assembly elections in March 2017. The two Governments as co-guarantors of the Good Friday Agreement are engaged to support the political parties in agreeing a basis for the formation of a new Executive. 2  At

324  The Irish Yearbook of International Law 2016–17 Role of the EU 6. The negotiation and implementation of the GFA has been considerably facilitated by both Ireland and the UK being Member States of the EU and the Peace Process has benefitted from consistent strong support by EU partners and EU Institutions. 7. EU membership by Ireland and the UK has supported the realisation of the objectives and commitments set out in the GFA and the wider gains of the peace. 8. The gains of the peace include the considerable normalisation of relationships between communities in Northern Ireland and between North and South on the island of Ireland. People’s daily lives in Northern Ireland have been transformed and they now live without the constant threat of violence and the discriminatory practices of the past have been eliminated. There is an invisible border on the island of Ireland and all-island cooperation under the GFA extends across a broad range of sectors, supporting the further development of the all-island economy and civic space, including in border regions. 9. The Union has provided significant financial support to the Peace Process under the PEACE and INTERREG programmes. Ireland and the UK are currently partners in three EU-funded cross-border Cooperation Programmes with a total value of €650 million over the period 2014-2020. The programmes are important drivers of regional development in a cross-border context and allow for practical support of the Peace Process and the advancement of the Good Friday Agreement. 10. EU involvement has allowed for the realisation of projects that may otherwise have become mired in political disagreement. Removal of this constructive influence and of the funding itself would have a significant impact on the ongoing reconciliation work in Northern Ireland and the border region. 11. The common EU legal framework, including non-discrimination and other rights set down in EU law, economic development within the European Union, and the wider European political, civic, economic and social perspective that EU citizens enjoy, have also facilitated societal normalisation in Northern Ireland through the Peace Process. 12. The GFA does not expressly require either Ireland or the UK to retain membership of the EU, but the Agreement clearly assumes continuing membership of the Union by both countries. For example, the preamble of the British-Irish Agreement recalls the wish of the two Governments to “develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union.” The GFA also provides that one of the tasks of the North/South Ministerial Council is to “consider the European Union dimension of relevant matters” and to make arrangements “to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings.” There are also EU-related functions for a number of the North/South implementation bodies under the GFA.

Selected Documents 325 North/South cooperation 13. North/South cooperation between Ireland and Northern Ireland is a central part of the GFA. 14. Under the Agreement, the North/South Ministerial Council (NSMC) was established to develop consultation, cooperation and action on matters of mutual interest within the competence of the administrations, North and South, on an all-island and cross-border basis. The NSMC brings together the Irish Government and the Northern Ireland Executive, and meets in a number of Sectoral formats at Ministerial level and in Plenary format, which represents a full meeting of the two administrations on the island. 15. The Agreement expressly recognises “that the North/South Ministerial ­Council and Northern Ireland Assembly are mutually inter-dependent and that one ­cannot successfully function without the other.” 16. The UK’s withdrawal from the EU presents a major challenge to North/South Cooperation because much of this cooperation is embedded in the common framework of EU law and EU policies that applies across the island of Ireland at present. 17. Further information on the operation of North/South Cooperation and examples of the reliance of this cooperation on EU law and EU policies are at Annex II. Rights 18. The human rights and equality provisions of the GFA provide confidence for both communities in Northern Ireland in the political institutions of the Agreement and other public authorities. The GFA human rights and equality provisions are outlined in Annex II. 19. EU law provides a supporting framework of rights that underpin the equality provisions of the GFA. A range of significant rights and equality protections are in fact established through EU regulations and directives such as in the area of employment law and non-discrimination, as well as being enshrined in the EU Charter of Fundamental Rights. 20. In this context, a key concern is a future divergence of rights North and South as a consequence of Brexit, which could effectively create barriers on the island and impede the requirement under the GFA for equivalent standards of protection of rights in Ireland and Northern Ireland. Citizenship 21. The Agreement recognises “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may so choose and accordingly confirm[s] that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.”

326  The Irish Yearbook of International Law 2016–17 22. This citizenship provision of the Good Friday Agreement is central in addressing the identity conflict that is at the root of the Troubles and the continuing divisions in Northern Ireland. 23. The GFA citizenship provision applies to approximately 1.8 million people born in Northern Ireland. Those born in Northern Ireland who currently hold, or in the future choose to exercise their entitlement to, Irish citizenship under the GFA are therefore also EU citizens. 24. The UK’s withdrawal from the Union will alter the geographical scope within which Irish citizens in Northern Ireland can exercise and enjoy their EU citizenship and associated rights. The exercise by Irish citizens in Northern Ireland of these EU rights are an important component of the citizenship provision of the GFA. Border 25. As the most obvious symbol of the Peace Process, the invisible border on the island of Ireland is essential to the continuing normalisation of relationships. 26. Prior to the Good Friday Agreement, security checkpoints on the border, and accompanying military installations, which had been built and reinforced from the 1970s onwards, were potent symbols of division and conflict in Northern Ireland and were frequent targets for attack. The disappearance of physical border crossings and checkpoints is both a symbol of and a dividend from the success of the Peace Process. People’s daily lives in Northern Ireland and in the border region have been transformed. Any reversal of this transformation would have considerable adverse economic, social, political, security and psychological impacts on people both in border communities and on the island as a whole. Annex I: Outline of the Good Friday Agreement Declaration of Support The Good Friday Agreement (GFA) commences with a Declaration of Support by the signatories. The declaration includes a commitment “to partnership, equality and mutual respect” and to “strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed institutions.” The Declaration also “accepted that all of the institutions and constitutional arrangements … are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on that of the other.” Constitutional issues The GFA recognises the “legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status”.

Selected Documents 327 The GFA acknowledges the legitimacy of the two constitutional aspirations in Northern Ireland and the “present wish of a majority of people of Northern Ireland” to remain part of the UK. The GFA provides for the possibility of a change in the constitutional status of Northern Ireland, should a majority in the future, North and South, decide through a referendum to opt for a united Ireland.3 In the context of the comprehensive political agreement under the GFA, the Irish Government committed to proposing and supporting an amendment to the Constitution of Ireland, and the British Government committed to proposing and supporting incorporations in British legislation, to provide the necessary legal frameworks for the constitutional status provisions in the GFA. These Constitutional and legislative changes were made, following the approval by referendum of the GFA, North and South. Citizenship The GFA recognises “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may so choose and accordingly confirm[s] that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.” This provision applies to approximately 1.8 million people born in Northern ­Ireland. Following the UK’s departure from the EU those born in Northern Ireland who exercise their entitlement to Irish citizenship under the GFA will continue to enjoy rights as EU citizens. Strand One: Northern Ireland Legislative Assembly: The GFA provides for a “democratically elected Assembly in Northern Ireland which is inclusive in its membership… and subject to safeguards to protect the rights and interests of all sides of the community.” The Assembly has “authority to pass primary legislation for Northern Ireland in devolved areas”, subject to certain requirements, including adherence to the European Convention on Human Rights. The GFA provides that terms be agreed “between appropriate Assembly representatives and the Government of the United Kingdom to ensure effective co-ordination and input by Ministers to national policy-making, including on EU issues.”

3  In such circumstances, in accordance with international law, the EU treaties would apply to all of Ireland as then unified. This existing legal and political position was recognised in the Statement by the European Council of 29 April 2017.

328  The Irish Yearbook of International Law 2016–17 Power-sharing Executive: The GFA provides for Executive authority to be discharged on behalf of the Assembly by a First and deputy First Minister and up to ten Ministers with Departmental responsibilities. The First and deputy First Minister are “jointly elected into office by the Assembly voting on a cross-community basis”. Other Ministerial posts in the Executive are “allocated to parties on the basis of the d’Hondt system by reference to the number of seats each party has in the Assembly.”4 The duties of the office of First and deputy First Minister include “coordinating the work of the Executive” and “the response of the Northern Ireland administration to external relationships.” Strand Two: North/South North/South Ministerial Council: The GFA provides for a North/South Ministerial Council (NSMC) to bring together the Northern Ireland Executive and the Irish Government “to develop consultation, co-operation and action within the island of Ireland—including through implementation on an all-island and cross-border basis—on matters of mutual interest within the competence of the Administrations, North and South.” Under the GFA, “It is understood that the North/South Ministerial Council and Northern Ireland Assembly are mutually inter-dependent and that one cannot successfully function without the other.” It is also provided that the NSMC “consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings.” The GFA provided that at least 12 areas would be identified for Co-operation/ Implementation for mutual benefit under the aegis of the NSMC. There are six Areas of Cooperation currently under the NSMC: Education; Agriculture; Environment; Health; Transport and Tourism.5 In each of the six areas of co-operation common policies and approaches are agreed in the NSMC and implemented separately in each jurisdiction. There are also six North/South Implementation Bodies: Waterways Ireland; Food Safety Promotion Board, Special EU Programmes Body; North/South Language Body; InterTradeIreland; and, the Foyle Carlingford and Irish Lights Commission.

4  These provisions establish a power-sharing executive which is jointly led by and comprised of representatives from both communities in Northern Ireland. 5  Although not an Implementation Body, Tourism Ireland operates under the auspices of the North/ South Ministerial Council and promotes the island of Ireland overseas as a tourist destination.

Selected Documents 329 Each of the six North/South Implementation Bodies operates on an all-island basis. While having a clear operational remit, the Bodies all carry out their activities under the overall policy direction of the North/South Ministerial Council. Strand Three: East/West British-Irish Council: The GFA provides for a British-Irish Council “to promote the harmonious and mutually beneficial development of the totality of relationships among the peoples of these islands.” Membership comprises representatives of the British and Irish Governments, devolved institutions in Northern Ireland, Scotland and Wales, together with representatives of the Isle of Man and the Channel Islands. British-Irish Intergovernmental Conference: The GFA also provides for a British-Irish Intergovernmental Conference to “­promote bilateral cooperation at all levels on all matters of mutual interest within the competence of both Governments.” The GFA includes “recognition of the Irish Government’s special interest in Northern Ireland and of the extent to which issues of mutual concern arise in relation to Northern Ireland” and provides that there will be “meetings of the Conference concerned with non-devolved Northern Ireland matters, on which the Irish Government may put forward views and proposals.” Rights, Safeguards and Equality of Opportunity The human rights provisions of the GFA provide confidence for both communities in Northern Ireland on the basis on which the political institutions of the GFA and other public authorities can act. Under the GFA, the British Government committed and is under a continuing obligation to provide for the “incorporation into Northern Ireland law of the European Convention on Human Rights, with direct access to the courts and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.” A new Northern Ireland Human Rights Commission and a new Equality Commission for Northern Ireland were also provided for and established pursuant to the GFA. A Joint Committee of the two Human Rights Commissions, North and South, is provided for in the GFA, “as a forum for consideration of human rights issues on the island of Ireland.” The Joint Committee continues to meet periodically for this purpose. The Irish Government also has a number of continuing rights obligations under the GFA, including to “ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland”. There is provision in the GFA for consideration of a Bill of Rights for Northern ­Ireland “to reflect the particular circumstances of Northern Ireland, drawing as

330  The Irish Yearbook of International Law 2016–17 appropriate on international instruments and expertise.” There has not yet been sufficient political agreement between the parties to take forward a Bill of Rights for Northern Ireland. The GFA recognises that “it is essential to acknowledge and address the suffering of the victims of violence as a necessary element of reconciliation”. Full implementation and realisation of the GFA provisions on Reconciliation and Victims of Violence is still sought, including through establishment of a comprehensive framework of institutions to address legacy issues, which were provided for in the Stormont House Agreement of 2014. The GFA also includes provisions on Economic, Social and Cultural Issues, including on respect, understanding and tolerance for linguistic diversity in Northern I­reland and specific supports for the Irish language,6 including on broadcasting through the Irish language in Northern Ireland. Decommissioning The GFA reaffirmed a commitment of all parties to the “total disarmament of all paramilitary organisations” which was progressively achieved through the Peace Process by the Independent International Commission on Decommissioning. Security The GFA provided for “as early a return as possible to normal security arrangements in Northern Ireland”, including the removal of security installations, which were largely at the border. These provisions have been implemented and contribute to the achievement of the open border on the island of Ireland today. Membership by Ireland and the UK of the Single Market and the Customs Union has greatly facilitated the implementation of this provision of the Agreement, for instance by removing any question of security support to customs or other inspection posts at the border on the island of Ireland. Policing and Justice The GFA acknowledged the need and opportunity for major reforms of Policing and Justice in Northern Ireland. These provisions were progressively achieved, including through subsequent agreements in the Peace Process. Prisoners Both Governments agreed to an accelerated programme for the release of qualifying prisoners. The provisions on Prisoners were implemented and important in the early stages of the post-1998 Peace Process.

6 An Irish Language Act for Northern Ireland was provided for under the St. Andrews Agreement 2006, but has not yet been implemented.

Selected Documents 331 Validation, Implementation and Review The GFA provided that validation of the Agreement would be by referenda in Northern Ireland and Ireland. The Irish Government committed to supporting a related amendment to Articles 2 and 3 of the Constitution, to be approved by the Oireachtas (Parliament) and by referendum. With approval in the referenda, the GFA provided that legislation as necessary to give effect to the Agreement be introduced by the two Governments. The GFA provides for reviews by the GFA institutions themselves or, “If difficulties arise … the process of review will fall to the two Governments in consultation with the parties in the Assembly”. British-Irish Agreement 1998 The text of the Good Friday Agreement was included as part of a Treaty between the British and Irish Governments lodged with the United Nations as a binding Agreement under International Law. Annex II: North/South Cooperation Under the Agreement, the North/South Ministerial Council (NSMC) was established to develop consultation, cooperation and action on matters of mutual interest within the competence of the administrations, North and South, on an all-island and crossborder basis. The GFA provided that at least 12 Areas would be identified for Co-operation/ Implementation for mutual benefit under the aegis of the NSMC. There are currently six Areas of Cooperation under the NSMC: Education; Agriculture; Environment; Health; Transport and Tourism. In each of the six Areas of Co-operation, common policies and approaches are agreed in the NSMC and put into effect by relevant Departments and agencies separately in each jurisdiction. There are also six North/South Implementation Bodies: Waterways Ireland; Food Safety Promotion Board, Special EU Programmes Body; North/South Language Body; InterTradeIreland; and the Foyle Carlingford and Irish Lights Commission. Each of the six North/South Implementation Bodies operates on an all-island basis. While having a clear operational remit, they all carry out their activities under the overall policy direction of the North/South Ministerial Council. Tourism Ireland is a further and important all-island agency, which promotes Ireland as a destination internationally on an all-island basis. Although not formally an Implementation Body, Tourism Ireland represents a major element of North/South cooperation and the body is overseen by the North/South Ministerial Council.

332  The Irish Yearbook of International Law 2016–17 Examples of North/South Cooperation: Health The North/South Ministerial Council on Health makes decisions on common policies and approaches in areas such as accident and emergency planning, ­co-operation on high technology equipment, cancer research and health promotion. One tangible outcome of health sector cooperation under this rubric is the new Radiotherapy Unit at Altnagelvin Area Hospital in Derry in Northern Ireland which opened on 28 November 2016. When fully operational it will have the capacity to treat just over 1500 new patients, including patients from the north west of ­Ireland who would otherwise have to travel to Galway for radiotherapy. This is a £66 ­million sterling capital development project that has been funded on a North/South basis, with €19 million capital funding provided by the Irish Government. Health c­ o-operation has also given access to cross-border and all-island health services, such as GP out-of-hours and paediatric cardiology services, with all children with congenital heart disease from across the island having their emergency surgery carried out in Our Lady’s Children’s Hospital Crumlin in Dublin. North/South cooperation on Health is facilitated by the EU harmonised regulatory system which ensures that both jurisdictions are meeting the same standards and provides assurance in terms of patient safety. Examples include a shared data protection regime and the standards for blood products, organs for transplantation, medicines and medical devices. There is also a Memorandum of Understanding in place between Ireland’s HSE National Ambulance Services and the Northern Ireland Ambulance Service to allow the interoperability in the event of an emergency. Environment The North/South Ministerial Council on Environment makes decisions on common policies and approaches in areas such as environmental protection, pollution, water quality management and waste management in a cross-border context. An example of the relevance of EU law and EU programmes for North/South Cooperation on Environment is the management of the three International River Basin District (IRBDs) on the island of Ireland, which all cross the border: the North ­Western, Neagh Bann and Shannon districts. Significant steps have been taken to harmonise the approaches adopted to implementing the EU Water Framework Directive through a high level of coordination between the relevant authorities. Together they form the North South Shared Aquatic Resource (NS Share) Project. This project is supported by the EU INTERREG IIIA Programme for Ireland/Northern Ireland. It was set up to implement the objectives of the EU Water Framework Directive in the region to ensure the protection and improvement of the water and its sustainable use. Other areas of North/South cooperation: While not established under the GFA, Justice and Security cooperation on a North/ South basis is critical, for the Peace Process and for both jurisdictions on the island more broadly. There is highly effective North/South police and judicial cooperation

Selected Documents 333 to address residual paramilitary threats and activities stemming from the legacy of the Troubles. EU membership provides a comprehensive enabling framework for this cooperation, including the European Arrest Warrant system. The UK departure from the EU raises a range of difficult questions for maintaining essential North/ South cooperation on Justice and Security matters. The administrations North and South have also cooperated actively and intensively on energy policy for a number of years, with sustained political commitment to ensuring competition in the energy sectors. The all-island wholesale electricity market or Single Electricity Market (SEM) developed from the all-island energy project of the North/South Ministerial Council. The joint policy decision between the relevant Ministers, North and South, set out the all-island energy project as a project for competitive, sustainable and reliable markets on the island of Ireland to “operate in the context of the EU internal energy market”. The SEM was established in 2007 and has been operational since then. This very practical expression of North/South cooperation in an EU context is essential for Ireland and core to the effective functioning of North South cooperation. Annex III: ‘Related implementing agreements’ referred to in Negotiating Directives: Political Agreements: Good Friday Agreement Weston Park Agreement St. Andrew’s Agreement Hillsborough Agreement Stormont House Agreement Fresh Start Agreement

1998 2001 2006 2010 2014 2015

International Agreements: Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing the Independent International Commission on Decommissioning, 26 August 1997 (no longer in force) Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, 10 April 1998 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing a British-Irish Council, 8 March 1999 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing a British-Irish Intergovernmental Conference, 8 March 1999 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing Implementation ­Bodies, 8 March 1999

334  The Irish Yearbook of International Law 2016–17 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing a North/South Ministerial Council, 8 March 1999 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing the Independent Commission for the Location of Victims’ Remains, 27 April 1999 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing the Independent Monitoring Commission, 25 November 2003 (no longer in force) Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland (annexing the St. Andrews ­Agreement), 22 March 2007 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing the Independent ­Commission on Information Retrieval, 15 October 2015 (not yet in force) Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing the Independent Reporting Commission, 13 September 2016