Bliainiris Éireannach an Dlí IdirnáisiúntaThe Irish Yearbook of International Law Volume 14, 2019 9781509950874, 9781509950904, 9781509950898

Table of contents :
Table of Contents
Editorial
Articles
A Human Rights-Based Approach to Trafficking in Persons in Conflict Situations
The Concept of Trafficking in Persons
The Factual Features of the Nexus Trafficking/Conflict
Acknowledging the Trafficking/Conflict Nexus in UN Security Council Resolutions and in CEDAW Recommendations
Trafficking in Persons in the Context of the International Criminal Court Statute
Trafficking in Persons and Conflict-Related Sexual Violence
Reparations as a Transformative Agenda
Conclusion
Embedding Business and Human Rights in Ireland: Legislating for Human Rights Due Diligence
Introduction
Ireland's Engagement with Business and Human Rights at the United Nations
Human Rights Due Diligence
Legislating for Human Rights Due Diligence in Ireland
Conclusion
Was Rockall Conquered? An Application of the Law of Territory to a Rock in the North Atlantic Ocean
Introduction
Occupation of a Territory Res Nullius; Terra Nullius; Territorium Nullius
Title by Prescription
Title by Conquest
Conclusion
Correspondent Reports
Human Rights in Ireland 2019
Legislative Developments
Human Rights in the Superior Courts
Ireland at the European Court of Human Rights
Ireland at the United Nations
Further Domestic Developments
Human Rights in Northern Ireland 2019
Brexit and Human Rights in Northern Ireland
Dealing with the Past
Right to Life
Freedom from Torture, Inhuman and Degrading Treatment
Freedom from Slavery
Right to Liberty and Security of Person
Right to a Fair Trial
Right to Private Life
Freedom of Religion and Belief, Expression, Association and the Right to Participate in Public and Political Life
Equality and Non-Discrimination
Right to Health
Social Rights
Conclusion
Ireland and International Law 2019
Brexit
International Agreements
Diplomatic Matters
Foreign Policy, Bilateral Relations, Consular Services and the Diaspora
Foreign Conflicts and International Terrorism
Peace Support Operations
Overseas Development Aid and Humanitarian Assistance
Ireland in the European Union 2019
Overview
Preliminary References
Conclusion
Documents
Statement on Behalf of Ireland, Ambassador Geraldine Byrne Nason, 23 April 2019 United Nations Security Council Open Debate on Women, Peace and Security: Sexual Violence in Conflict
Statement by Ambassador Geraldine Byrne Nason, Permanent Representative of Ireland to the United Nations, New York, 9 July 2019 Threats to International Peace and Security: Linkage between International Terrorism and Organised Crime
Statement Delivered on Behalf of Ireland by H.E. Amb. Brian Flynn, Chargé d’Affaires, at the United Nations Security Council Open Debate on Children and Armed Conflict, 02 August 2019
President Addresses High Level Review of SAMOA Pathway United Nations Headquarters, New York, Friday 27th September 2019
Statement at UNGA 74, 28 October 2019 on Part 1 of the ILC Report Relating to Crimes against Humanity, Jus Cogens and Provisional Application of Treaties
Statement at UNGA 74, 1 November 2019 on Part 2 of the ILC Report Relating to Immunity of State Officials from Foreign Criminal Jurisdiction and Sea-Level Rise in Relation to International Law
Statement at UNGA 74, 5 November 2019 on Part 3 of the ILC Report Relating to General Principles of Law
Ireland National Statement, Minister Richard Bruton – COP25, 11 December 2019

Citation preview

BLIAINIRIS ÉIREANNACH AN DLÍ IDIRNÁISIÚNTA IMLEABHAR 14, 2019 THE IRISH YEARBOOK OF INTERNATIONAL LAW VOLUME 14, 2019 The Irish Yearbook of International Law 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, 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 discussion of human rights based responses to human trafficking; the intersection between business and human rights in Ireland; and statements on women, peace and security.

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Bliainiris Éireannach an Dlí Idirnáisiúnta Imleabhar 14, 2019 Curtha in Eagar ag

Fiona de Londras agus Siobhán Ní Mhaolealaidh

The Irish Yearbook of International Law Volume 14, 2019 Edited by

Fiona de Londras and Siobhán Mullally

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2021 Copyright © The editors 2021 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/, 1998–2021. A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50995-087-4 ePDF: 978-1-50995-089-8 ePub: 978-1-50995-088-1 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 Mr James Kingston, Legal Adviser, Department of Foreign Affairs 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 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 Professor 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 Queen’s University Belfast 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 Editorial1 Fiona de Londras and Siobhán Mullally Articles A Human Rights-Based Approach to Trafficking in Persons in Conflict Situations7 Maria Grazia Giammarinaro Embedding Business and Human Rights in Ireland: Legislating for Human Rights Due Diligence Shane Darcy

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Was Rockall Conquered? An Application of the Law of Territory to a Rock in the North Atlantic Ocean Ríán Derrig

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Correspondent Reports Human Rights in Ireland 2019 Sandra Duffy

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Human Rights in Northern Ireland 2019 Esther McGuiness

85

Ireland and International Law 2019 Dug Cubie

109

Ireland in the European Union 2019 Rónán R Condon

137

Documents Statement on Behalf of Ireland, Ambassador Geraldine Byrne Nason, 23 April 2019 United Nations Security Council Open Debate on Women, Peace and Security: Sexual Violence in Conflict

159

Statement by Ambassador Geraldine Byrne Nason, Permanent Representative of Ireland to the United Nations, New York, 9 July 2019 Threats to International Peace and Security: Linkage between International Terrorism and Organised Crime 163 Statement Delivered on Behalf of Ireland by H.E. Amb. Brian Flynn, Chargé d’Affaires, at the United Nations Security Council Open Debate on Children and Armed Conflict, 02 August 2019

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viii  Table of Contents President Addresses High Level Review of SAMOA Pathway United Nations Headquarters, New York, Friday 27th September 2019

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Statement at UNGA 74, 28 October 2019 on Part 1 of the ILC Report Relating to Crimes against Humanity, Jus Cogens and Provisional Application of Treaties

171

Statement at UNGA 74, 1 November 2019 on Part 2 of the ILC Report Relating to Immunity of State Officials from Foreign Criminal Jurisdiction and Sea-Level Rise in Relation to International Law

175

Statement at UNGA 74, 5 November 2019 on Part 3 of the ILC Report Relating to General Principles of Law

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Ireland National Statement, Minister Richard Bruton – COP25, 11 December 2019

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Editorial

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HIS VOLUME OF the Irish Yearbook of International Law is the final ­volume edited by us as the current joint Editors-in-Chief. We would like to take this opportunity to reflect on the editorship of the Yearbook, its contribution to scholarship and teaching on international law, and to welcome the new Editorial team. We are handing over to an excellent team of international law scholars who will take on the stewardship of the Yearbook and continue its tradition of contributing to the development of international law. The new editors are Dr Richard Collins (University College Dublin), Dr James Gallen (Dublin City University) and Dr Bríd Ní Ghráinne (Maynooth University). It is an exciting time to take on the role of Editors, as Ireland takes up its seat at the UN Security Council, and identifies accountability as a thematic priority of its membership. International law can and should be at the heart of accountability processes, and we look forward to analysis, reflection and debate on Ireland’s Security Council membership and on all aspects of Irish state practice on the pages of the Irish Yearbook. The Yearbook was launched in Iveagh House in 2006, by the former President of Ireland and former UN High Commissioner for Human Rights, Mary Robinson. As a keen advocate of using international law to check arbitrary exercises of power by states and to expand the scope and application of international law, Mary Robinson recognised the importance of critical, rigorous scholarship on international law – not only to hold ‘other’ states to account, but also to turn the gaze back and to reflect on Ireland’s own state practice. Research, teaching and scholarship on international law has often sought to analyse how and whether state practice has succeeded in moving beyond the limits of the formalistic legal texts of UN resolutions, reports and decisions. Irish state practice on international law has included a history of supporting decolonisation and self-determination struggles. However, as the pages of this Yearbook have shown over the last 15 years, the limits of international law, as well as the limits of Irish state practice on international law, remain contested. A key objective of the Yearbook has been to contribute to scholarship on Irish practice in international law, and to promote teaching and research in international law in Irish Universities. Yearbooks on international law have been a key vehicle for documentation and analysis of the state practice of smaller states, as well as promoting scholarship on international law from those smaller states. The Irish Yearbook was a long overdue but very welcome addition to this tradition of publishing on international law. Given Ireland, and Irish lawyers’ significant contributions to the development of international law, and to its practice, an Irish Yearbook of International Law could have been launched many decades earlier. Its launch in 2006, marked a greater awareness of how international law shapes diplomacy, international relations, and priority areas of Irish foreign policy, including Peacekeeping, Women Peace and Security, Disarmament and more recently, Climate Justice.

2  The Irish Yearbook of International Law 2019 It has been particularly heartening to see the growing interest in Irish state p ­ ractice in international law, and to see the community of scholars of international law growing in Ireland, and globally. Ireland has a strong tradition of contributing to international law-making processes. International lawyers in Ireland and globally have courageously worked to expand the scope of application of international law, to push its boundaries and to hold the practice of international law accountable to its own stated aims and promise of universalism (often broken). This academic work is reflected today in the growth of TWAIL (Third World Approaches to International Law) and feminist legal scholarship on international law, both of which require greater attention in the teaching of international law. Irish legal scholars are making important contributions to these fields and to the breadth of international law scholarship and practice. The Yearbook will continue to provide an important opportunity for critical reflection and engagement on international law, while also seeking to shape the practices and processes of international law making. We wish the new Editors every success as they continue the work of documenting Irish state practice through the medium of the Irish Yearbook of International Law, and most importantly, continue to support teaching and research on international law in Irish legal education. This volume includes a selection of articles on international law. The outgoing UN Special Rapporteur on Trafficking in Persons, Maria Grazia Giammarinaro, analyses the requirements of a human rights-based approach to trafficking in persons in conflict situations. Her work, and indeed her practice on this issue as UN Special Rapporteur, seeks to move beyond the limits of fragmentation and ­specialisation in international law, to recognise the links between international human rights law standards, the predominantly criminal justice-based response to trafficking in ­persons, and the women, peace and security agenda at the UN. As she notes, although trafficking in persons is recognised in legal texts as a serious human rights violation, responses by states have often focused primarily on prosecutorial responses and immigration control, with limited attention to the human rights claims of victims/survivors. International humanitarian law, international criminal law and international law on peace operations, likewise have paid limited attention to trafficking in persons. Giammarinaro’s article highlights the potential to expand the scope of international law on human trafficking, but reflects also on the need for constant vigilance, to continually highlight gaps and limits in the work of the Security Council, including in the Women, Peace and Security agenda. Shane Darcy’s article on business and human rights, examines the role of due diligence legislation in embedding business and human rights in Ireland. He highlights, what is described as a ‘light touch’ approach to business and human rights regulation at domestic level in Ireland, and the need for more urgent regulation. Again, as with Giammarinaro’s article, Darcy’s writing draws on a range of legal sources, domestic, international, the more traditional sources of law rooted in treaties and statutes, as well as to the expanding range of soft law sources, including the UN Guiding Principles on Business and Human Rights. This integrated approach reveals also the inconsistencies and conflicts that arise between sub-fields of international law, and in particular the tensions between competing objectives of regulatory processes.

Editorial 3 The third article, from Ríán Derrig, brings us to the highly contested territorial disputes that have persisted in relation to the island of Rockall and its territorial sea. The article’s title opens with the evocative question, ‘Was Rockall Conquered?’ ­echoing Anthony Carty’s critical legal text, Was Ireland Conquered? International Law and the Irish Question. Derrig analyses the UK Government’s territorial claim to Rockall as arising from occupation of a territory res nullius. Contesting this claim, Derrig takes us back to historical records that reflect recognition of state practice as closer to that of the nineteenth century practice of forceful colonial acquisition. Should further disputes arise or escalate again in relation to the contested territorial claims, Derrig’s analysis could make an important contribution to a dispute resolution process. Concerning Rockall, it is a dispute primarily about the territorial sea. Irish lawyers have made significant contributions to the scholarship and practice of the Law of the Sea. Derrig’s research continues that contribution. As ever, the correspondent reports provide an overview of Irish practice in international law over the reporting year. As well as outlining key human rights jurisprudence from the superior courts and relating to Ireland in the European Court of Human Rights, Sandra Duffy’s report on human rights in Ireland documents the ratification of the Istanbul Convention on combatting violence against women and domestic violence, alongside the continuing concern about racial discrimination (including against Travellers) from the UN Committee on the Elimination of Racial Discrimination. Esther McGuinness’ report on human rights in Northern Ireland took place against the backdrop of Brexit, with all of its complications for rights protections, and three years without a Northern Ireland Executive or functional Northern Ireland Assembly. As McGuinness’ report makes clear, this had significant implications for efforts to address persistent human rights concerns in the jurisdiction. Significantly, the Northern Ireland (Executive Formation etc) Act 2019, section 9, provided that if the Northern Ireland Executive was not restored by 21 October 2019, a number of legal duties would arise for the Secretary of State for Northern Ireland including to give effect to recommendations of the CEDAW Committee to, ensure that all women and girls in the State party, including in Northern Ireland, have ­effective access to termination of pregnancy in situations in which its continuation is likely to result in severe pain and suffering, such as when the pregnancy is the result of rape or incest or in cases of fatal foetal impairment, in addition to cases in which the life or health of the pregnant person is at risk.

Consequently, sections 58 and 50 of the Offences against the Person Act 1861 were repealed and all ongoing prosecutions for accessing unlawful abortion stayed. Dug Cubie’s report, on Ireland and international law, is his last for the Yearbook following a number of years as correspondent and book reviews editor. As Cubie notes, 2019 was the centenary of the Irish foreign service and the official development of bilateral diplomatic relationships, which were expanded in reach and diversity during the year. In addition to responding to the foreign policy and diplomatic challenges posed by Brexit, 2019 saw the launch of Ireland’s (successful) campaign for election to the Security Council for 2021–22, substantial policy activity in the

4  The Irish Yearbook of International Law 2019 field of oceans and Small Island States, and continuation of Ireland’s practice of contributing to international peace support operations. Finally, in his first report for the Yearbook, Rónán Conlon outlines key events in the Ireland-EU relationship in 2019. As well as being dominated by Brexit, the year saw Irish courts sending a number of preliminary references on the European Arrest Warrant, the Dublin III Regulation, free movement of persons, social security, and equality and non-discrimination. As Conlon notes, ‘CJEU decisions based on Irish preliminary references in 2019 expose certain fault-lines in EU law and politics’ and thus constitute a fruitful source of EU jurisprudence. Fiona de Londras and Siobhán Mullally

Articles

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A Human Rights-Based Approach to Trafficking in Persons in Conflict Situations MARIA GRAZIA GIAMMARINARO*

THE CONCEPT OF TRAFFICKING IN PERSONS

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RAFFICKING IS CONSIDERED a modern form of slavery or a practice similar to slavery. Although trafficking and slavery have different sources and are different legal notions, in practice they present many similarities, and a common element, which is severe exploitation. The real dimension of trafficking is unknown, being a crime and therefore mostly a hidden phenomenon. According to the Global Estimates of Modern Slavery, issued by the International Labour Organization (ILO) and the Walk Free Foundation, on any given day in 2016 there were 40 million people in modern slavery, out of which 15 million people in forced marriage, and 25 million people in forced labour. Globally, 71 per cent were women and girls, who were 99 per cent of the victims of sexual exploitation. One in four victims of modern slavery were children.1 Even if the methodology used to produce these estimates is doubtful, trafficking/slavery is for sure a massive-scale phenomenon of severe exploitation. The definition of trafficking in persons is contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 2000 (Palermo Protocol).2 According to Article 3 of the Protocol: a)

‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

*  United Nations Special Rapporteur on Trafficking in Persons, especially Women and Children (2014–20); Judge, Civil Court of Rome. 1 International Labour Organization (ILO) and the Walk Free Foundation, ‘Global Estimates of Modern Slavery’ (ILO, 2017). 2  Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and ­ Children, supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000) Art 3.

8  The Irish Yearbook of International Law 2019 b) c) d)

The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article; ‘Child’ shall mean any person under eighteen years of age.

Criticism has been expressed by scholars and practitioners regarding the definition of trafficking, especially with respect to its complexity, and high threshold of required evidence. A few elements of the definition are particularly problematic, and thus United Nations Office on Drugs and Crime (UNODC), the UN agency guardian of the Palermo Protocol, devoted particular attention to the notions of consent, abuse of a position of vulnerability and exploitation.3 Although in the last phase of the negotiations the protection of victims was added as a main purpose of the instrument, the Protocol presents serious gaps from a human rights point of view. Most of the provisions concerning assistance and support to victims are generic and non-binding. Only access to compensation is defined as a right. Similarly, the provision concerning residence status is not binding, and the language is particularly weak. In the vast majority of national legislations, residence status and victim support and assistance, has been made conditional to the initiation of a criminal proceedings for the crime of trafficking, sometimes even to the conviction of the perpetrator, and very often to the cooperation of the victim with the police and judicial authorities. In addition, no possibility of appeal is provided for in case of a negative decision of competent authorities – very often immigration authorities – on residence status and/or assistance measures. The Council of Europe Convention on trafficking in human beings4 accepted the same definition of trafficking but adopted a different approach, focussed on prevention and on victims’ rights. The Convention identified more accurately assistance measures, made the relevant provisions binding, and provided for a recovery and reflection period.5 However, concerning residence permit, in the Council of Europe Convention this can be granted based on the personal situation of the person concerned, and/or for the purpose of their cooperation with the competent authorities.6 This means that States parties, while they have an obligation to provide assistance unconditionally, regarding residence status they have the option to make residence permits conditional. In fact, in the vast majority of national legislations of the Council of Europe countries, receipt of a residence permit is made conditional to cooperation, which means that also assistance, beyond the reflection period of 30 days, is in 3  UNODC, ‘Issue Paper. Abuse of a Position of Vulnerability and Other “Means” within the Definition of Trafficking in Persons’ (United Nations, 2013); UNODC, ‘Issue Paper. The Role of “Consent” in the Trafficking in Persons Protocol’ (United Nations, 2014); UNODC, ‘Issue Paper. The Concept of “Exploitation” in the Trafficking in Persons Protocol’ (United Nations, 2015); UNODC, ‘Issue Paper. The International Legal Definition of Trafficking in Persons: Consolidation of Research Findings and Reflection on Issues Raised’ (United Nations, 2018). 4  ‘Council of Europe’s Convention on Action against Trafficking in Human Beings’ (2008) vol CETS No 197. 5  Ibid, Arts 12 and 13. 6  Ibid, Art 14 para 1.

Articles—Giammarinaro 9 fact conditional for foreign victims. According to GRETA, the Group of Experts in charge of monitoring the implementation of the Council of Europe Convention, in some countries access to assistance depends on the victim’s nationality, in violation of the non-discrimination principle.7 Finally, EU Directive 2011/36/EU on preventing and combating trafficking in human beings,8 while adopting the same definition with some additions, more accurately provided for victims’ rights during and after criminal proceedings; however, the Directive did not touch upon the conditionality of residence permits, that, according to the previous Directive 2004/38/EC, are conditional for third country nationals. The legal context on trafficking is therefore characterised on one hand by a strong and almost universally accepted legal basis concerning the definition of trafficking, and the adoption – almost globally – of national legislation although not always fully complying with the Protocol. On the other hand, the legal context as a whole presents serious gaps in terms of human rights. As a consequence, in some countries anti-trafficking measures resulted in further human rights violations. The Recommended Principles and Guidelines, issued by the Office of the High Commissioner for Human Rights (OHCHR)9 before the adoption of the Council of Europe Convention, aimed to fill human rights gaps in the legal context on trafficking. However, due to its nature as a soft-law instrument, its impact on national legislation is limited. In addition to the OHCHR Recommended Principles, the CEDAW Committee, the body in charge of monitoring the Convention on Discrimination against Women, exercised guidance on a number of issues related to trafficking, by adopting a genuinely human rights-based approach.10 The case-law of the European Court of Human Rights, and especially the Rantsev judgment,11 established a wide range of State obligations in the field of prevention, prosecution and victim protection. THE FACTUAL FEATURES OF THE NEXUS TRAFFICKING/CONFLICT

According to the UN Secretary-General Report on Conflict Related Sexual Violence (CRSV) of 2019,12 13 countries are affected by conflict: Afghanistan, Central African Republic, Colombia, Democratic Republic of Congo, Iraq, Libya, Mali, Myanmar, Somalia, South Sudan, Sudan, Syrian Arab Republic and Yemen. In the vast majority of such countries, conflict is going on between a State and an armed group, or 7  Group of Experts on Action against Trafficking in Human Beings (GRETA), ‘8th General Report on GRETA’s Activities’ (Council of Europe, 2018) para 95. 8  Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [2011] OJ L101/1. 9 Office of the High Commissioner for Human Rights (OHCHR), Recommended Principles and Guidelines on Human Rights and Human Trafficking (OHCHR, 2002). 10  The concept of a human rights-based approach is explored further below. 11  Rantsev v Cyprus and Russia App no 25965/04 (ECHR, 7 January 2010). 12 United Nations Security Council, Conflict-Related Sexual Violence, Report of the Secretary General (S/2019/280) (29 March 2019).

10  The Irish Yearbook of International Law 2019 between different armed groups. In both cases, atrocities against civilians are perpetrated on a regular basis. In conflict contexts, trafficking in persons is used to directly increase the offensive power of an armed group, typically through the recruitment of child soldiers – that must be considered a form of trafficking – or to provide services to the armed group through forced labour or services, as in the case of recruitment of children or forced recruitment of adults to serve as cooks or servants, or to reward combatants through the providing of ‘temporary wives’ – or prostitutes – in reality sexual slaves, or to provide funding to the armed group through the selling of women, girls, boys and men in the market of sexual exploitation or labour exploitation. Many incidents of trafficking have been reported among forcibly displaced populations, amounting today to 68 million people.13 Displacement implies limited access to education and resources, sometimes for many years. Women and girls are particularly affected by discriminatory practices, ie in the distribution of food. Sexual violence by armed groups occurs in a systematic way in camps. In addition, negative coping mechanisms such as early and/or forced marriages often result in sexual or other forms of exploitation such as servile marriages, or trafficking for forced prostitution or any other illicit purpose.14 Outside camps, people fall prey to severe labour exploitation to survive; very often children become the only breadwinners, working in the informal economy: the consequence is child labour, sexual or other forms of exploitation and loss of schooling. People fleeing conflict are particularly vulnerable to trafficking, being obliged to leave in unsafe conditions, and subject to the same forms of abuse as any other migrant. In particular, traffickers ask for more money during their journey, and refugees are compelled to accept exploitative situations to resume their journey. In a study carried out by the International Organisations for Migration (IOM) in the Central Mediterranean Route, almost 80 per cent of people reported that incidents occurred to themselves or their friends, falling within at least one of the suggested indicators of trafficking.15 In one my recent reports I advocated for early identification and support to trafficking victims and people at high risk of trafficking in mixed migration flows.16 Research shows that cycles of violence affect many people, and especially women and girls. Sexual and domestic violence is often a root cause of trafficking; on the other hand, a woman who has been trafficked is more exposed to sexual violence even after they have severed their ties with their traffickers. Although the difference between conflict and post-conflict situations is questionable, it is important to underline that trafficking also takes place in the aftermath of

13  United Nations High Commissioner for Refugees (UNHCR), ‘Global Trends. Forced Displacement in 2017’ (UNHCR, 2018). 14  Human Rights Council, Report of the Special Rapporteur trafficking in persons, especially women and children, on her mission to Jordan (A/HRC/32/41/Add.1) (8 June 2016). 15  International Organization for Migration (IOM), ‘Human Trafficking along the Central Mediterranean Route: Data, Stories and Information Collected by IOM’ (IOM, 2017) available at https://eea. iom.int/publications/human-trafficking-along-central-mediterranean-route-data-stories-and-information. 16 Human Rights Council, Report of the Special Rapporteur on trafficking in persons, especially women and children on Early Identification, Referral and Protection of Victims or Potential Victims of Trafficking in Persons in Mixed Migration Movements (A/HRC/38/45) (14 May 2018).

Articles—Giammarinaro 11 the conflict. The breakdown of the rule of law, the difficult economic situation, the persistent discrimination against women in the peace-building phase, increases vulnerabilities, especially of women and girls, who can be induced to leave the country even in unsafe conditions. Last but not least, the ‘normalisation’ of violence makes it possible that trafficking is systematically perpetrated in post-conflict situations, which is what happened in Bosnia and Herzegovina after the former Yugoslavia conflict. Finally, trafficking unfortunately occurred during peace-keeping operations, including operations led by the UN. Although strong measures have been adopted by the UN system, the problem is far from being resolved. ACKNOWLEDGING THE TRAFFICKING/CONFLICT NEXUS IN UN SECURITY COUNCIL RESOLUTIONS AND IN CEDAW RECOMMENDATIONS

The nexus between trafficking and conflict has been mostly overlooked in the international fora. In recent years, such a nexus has been acknowledged in the UN Secretary General Guidance Note on Reparations for Conflict-Related Sexual Violence (CRSV) of 2014,17 in the Security Council Presidential Declaration of 2015,18 and in two subsequent Resolutions of the Security Council in 2016 and 2017.19 My reports to the Human Rights Council and the General Assembly on trafficking in persons in conflict and post-conflict situations (2016), and on the gender dimension of trafficking in persons in conflict and post-conflict settings (2018) also shed light on this connection.20 Research carried out by academics, non-governmental organisations and international organisations, especially the United Nations High Commissioner for Refugees (UNHCR) and IOM, shows that incidents of trafficking are not occasionally linked with conflict, but are a systematic consequence of conflicts.21 The first consequence of this acknowledgement is that anti-trafficking work should be considered a lifesaving activity, prevention measures should be in place from the onset of the conflict, and actions aimed at protecting potential victims should be in place in the aftermath of the conflict, even for years after the conflict is officially over. While acknowledging the importance of the recognition of trafficking as an integral part of the peace and security agenda by the Security Council, criticism has

17  UN Secretary-General, Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence (United Nations, June 2014). 18  UN Security Council (UNSC), ‘Statement by the President of the Security Council (S/PRST/2015/25)’ (UNSC, 16 December 2015). 19 ‘UNSC Res 2331 (20 December 2016) UN Doc S/RES/2331 (2016)’ (2016); ‘UNSC Res 2338 (21 November 2017) UN Doc S/RES/2338 (2017)’ (2017). 20  UN General Assembly (UNGA), ‘Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, on Trafficking in Persons in Conflict and Post-Conflict Situations: Protecting Victims of Trafficking and People at Risk of Trafficking, Especially Women and Children (A/71/303)’ (5 August 2016); UNGA, ‘Report of the Special Rapporteur on Trafficking, Especially Women and Children, on the Gender Dimension of Trafficking in Persons in Conflict and Post-Conflict Settings and the Importance of Integrating a Human Rights-Based Approach to Trafficking in Persons into the Women and Peace and Security Agenda of the Security Council (A/73/171)’ (17 July 2018). 21  See, eg, IOM, ‘Addressing Human Trafficking and Exploitation in Times of Crisis’ (Geneva, 2015).

12  The Irish Yearbook of International Law 2019 been expressed by scholars regarding the approach adopted by the Security Council, focusing almost exclusively on trafficking perpetrated in the context of terrorism, and only addressing the issue of victims’ protection and support from this limited point of view. This makes the integration of a human rights-based approach to trafficking as a gender-based form of violence even more problematic, in conflict with the peace and security agenda of the whole UN system. For this purpose, it is advisable to make full use of the relevant recommendations of the CEDAW Committee. The CEDAW Convention, which is the binding global instrument in the field of women’s rights and gender equality, does not mention armed conflict or violence. However, the CEDAW Committee – in charge of monitoring the implementation of the Convention – has played a major role, especially through its General Recommendations, to interpret the Convention in a broad way. In its General Recommendation No 19/1992, the Committed clarified that the Convention prohibits gender-based violence as a form of discrimination.22 In its General Recommendation No 28/2010 on the core obligations of States parties under Article 2 of the Convention, the Committee stated that States’ obligations to prevent and combat discrimination against women ‘do not cease on periods of armed conflict or in states of emergency resulting from political events or natural disasters’.23 General Recommendation No 30/2013 specifically addressing the context of women’s human rights in conflict, affirms that States must exercise due diligence to prevent, investigate, punish and ensure redress for the acts of private individuals or entities that impair the rights enshrined in the Convention. Also, non-state actors are required to respect human rights, especially when such actors have an identifiable political structure and exercise territorial control,24 which is often the case for armed groups. TRAFFICKING IN PERSONS IN THE CONTEXT OF THE INTERNATIONAL CRIMINAL COURT STATUTE

The Rome Statute of the International Criminal Court (‘ICC Statute’) includes ‘enslavement’25 and ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity’ among crimes against humanity.26 The following sub paragraph (c) explains that ‘Enslavement means the exercise of any or all the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’.27 ‘Rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other forms of sexual violence

22 

UN Doc A/47/38 (1992). UN Doc CEDAW/C/GC/28 (2010) para 11. 24  UN Doc CEDAW/C/GC/30 (2013). 25  ICC Statute, Art 7, para 1 (c). 26  Ibid, Art 7, para 1 (g). 27  Ibid, Art 7, para 2 (c). 23 

Articles—Giammarinaro 13 also constituting a grave breach of the Geneva Conventions’ are also listed as war crimes.28 Crimes against humanity stipulated in the ICC Statute can be considered as such when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.29 A case is admissible by the Court only when the State which has jurisdiction over it is unwilling or genuinely unable to carry out the investigation or prosecution.30 The pre-existing ad hoc courts – the Court for the former Yugoslavia (ICTY) for Rwanda (ICTR) and for Sierra Leone (SCSL) – have prosecuted cases of rape and/or enslavement. ICTY held that rape could be a form of torture, and rape and sexual enslavement could be considered as crimes against humanity.31 So far, the ICC has not prosecuted any case of trafficking in persons in the context of enslavement. Case-law from the ad hoc courts show similarities in the gathering of evidence between trafficking and enslavement, especially concerning the ways in which a person can be put under control by another person – which is essential to prove the exercise of ownership under the enslavement or slavery crimes, and abuse of a position of vulnerability under the trafficking crime. For instance, regarding abuse of a position of vulnerability as one of the alternative illicit means used by traffickers, emotional abuse and humiliation of victims are psychological forms of control that the courts recognise as constitutive elements of trafficking cases, as traffickers are increasingly manipulating victims to create dependencies, expectations and even attachments.32 Similarly, in the first case of enslavement, Kunarac at the ICTY, the Court of Appeal upheld a broad concept of ownership, and found that the abuse of power, the victim’s position of vulnerability, psychological oppression or socio-economic conditions to be relevant indicia of control and ownership. In Katanga, the Trial Chambers listed a number of factors which could be considered relevant to assessing ownership including vulnerability, mental coercion and socio-economic conditions.33 Therefore, although trafficking/enslavement (crime against humanity), and ­sexual slavery (crime against humanity and war crime) have different legal sources and definitions, the evolution of jurisprudence shows an increasing understanding of subtle means through which victims fall under the control of their abusers/ traffickers/exploiters. TRAFFICKING IN PERSONS AND CONFLICT-RELATED SEXUAL VIOLENCE

According to the UN Secretary-General’s 2014 Guidance mentioned earlier, CRSV encompasses ‘rape, forced pregnancy, forced sterilization, forced abortion, forced 28 

Ibid, Art 8, para 2 (b) (xxii). Ibid, Art 7, para 1. Ibid, Art 17, para 1 (a). 31 ICTY, Mucić et al (IT-96-21) (1998) and Kunarac et al (IT-96-23) (2002). 32 A Comrie, ‘At the Crossroads: Evidential Challenges in the Investigation and Prosecution of Trafficking in Persons for Sexual Exploitation and Sexual Violence in Situations of Conflict’ (2019) 3 Journal of Trafficking and Human Exploitation 1, 127. 33  Ibid, 131. 29  30 

14  The Irish Yearbook of International Law 2019 prostitution, sexual exploitation, trafficking, sexual enslavement, forced circumcision, castration, forced nudity, or any other serious form of sexual violence’.34 CRSV refers to incidents or patterns of sexual violence against women, men girls or boys occurring in a conflict or post-conflict setting, that has direct or indirect links with the conflict itself or that occur in other situations of such as in the context of political repression.35

An important implication of the definition contained in the Secretary-General’s Guidance of 2014, is that CRSV should be considered as such not only when it is directly committed by armed groups, not only when it is committed during conflict or post-conflict, not only against people fleeing conflict, and not only in the interest of armed groups. This broad notion of CRSV has multiple repercussions regarding trafficking in persons. First, regarding CRSV perpetrated during conflict by armed groups, trafficking can be considered as a form of CRSV when it is perpetrated by an armed group to provide sexual slaves to their combatants as a form of reward, or to provide any kind of forced sexual services for the armed group as a whole. An example of the first type of CRSV/trafficking is the kidnapping of Yazidi women by ISIL/DAESH who were reduced to sexual slavery as a part of the ‘salary’ of combatants. An example of the second type of trafficking directly committed by an armed group is the forced recruitment of women for prostitution, as in the case of the ‘comfort women’ who were systematically raped and forced into prostitution by the Japanese army during World War Two. Second, human trafficking is a form of CRSV when it involves the kidnapping of women belonging to a different ethnic community, who are subsequently systematically raped with the purpose to disrupt that community, and eventually forced to become pregnant and deliver children as an integral part of an ethnic cleansing plan. This is what happened on a massive scale to Bosnian women during the war in the former Yugoslavia. Third, trafficking as a form of CRSV occurs when an armed group ‘sells’ someone to a criminal group or a private individual, as a form of financing of the armed group, knowing that this will result in sexual slavery or exploitation or other forms of sexual violence. This is unfortunately the possible destiny of girls kidnapped by Boko Haram in Nigeria, and of many women and girls kidnapped by ISIL/DAESH during the Syrian war. Fourth, trafficking should be considered as encompassed within the notion of CRSV not only when it is committed directly by an armed group, or in the interest of an armed group, but also when it is committed by a criminal gang benefitting from the breakdown of institutions and the rule of law during conflict and post-conflict, including taking advantage of vulnerabilities deriving from the attempt of vulnerable people to leave the country in unsafe conditions. This is the situation of many people coming from conflict zones in Sudan, the Democratic Republic of the Congo (DRC), North-East Nigeria and other African countries, desperately trying to reach Europe. 34  35 

Guidance Note of the Secretary-General (n 17) 2–3. Ibid, 2.

Articles—Giammarinaro 15 Many women travelling from the Horn of Africa have disappeared, most probably dying in the desert. In other cases, they have been tortured, trafficked and exploited on a regular basis during their journey, especially in Libya, and have possibly died in the Mediterranean. Finally, a criminal group can commit human trafficking by taking advantage of the situation of vulnerability and destitution of displaced persons, or of people left behind in the process of reconstruction, even many years after the conflict. The nexus between CRSV and trafficking does not end when the concerned person fleeing conflict has reached a transit or even a preferred destination country. Trafficking as a form of CRSV still exists even when traffickers do not have any direct connection with the conflict, but take advantage of the vulnerable situation of the person, provided that such vulnerability derives from conflict.36 However, whatever has been said in relation to women, also applies to girls, boys and men. Although women and girls remain the most targeted for CRSV, there are incidents of trafficking involving adult men, especially in a detention context. It is well known that not only girls but also boys are targeted by traffickers for the purpose of sexual exploitation. The Secretary-General Guidance Note also warns that CRSV refers to ‘incidents or patterns’ of sexual violence. This implies that, differently from the definition under the ICC Statute, trafficking/CRSV can be committed by an individual, in a family or community context, not necessarily by an organised group, and not necessarily as part of a systematic pattern. For example, the case of a girl in a camp of displaced persons, asked for marriage and eventually forced to marry a stranger, or even consenting to marry a stranger, and ending up in a situation of forced prostitution, is a case of human trafficking that complies with the definition of CRSV. Such a situation has been observed and described in my report on Jordan. Such men, looking for young women in refugee camps and subsequently exploiting them in forced prostitution or selling them for the same purpose, should be held accountable for both human trafficking and CRSV. I am fully aware that some of the cases mentioned as examples of trafficking in persons as a form of CRSV are not usually labelled as trafficking in persons. However, this is the result of a narrow interpretation of the definition of trafficking. When the definition is correctly interpreted, in all the above-mentioned examples the three elements of the definition of trafficking are present. For example, in the case of sexual enslavement of Yazidi women, the act is kidnapping, the means is violence, and the purpose is sexual exploitation. In the case of forced and/or early marriage of girls with strangers in refugee camps resulting in forced prostitution, the act is the receipt of the person as a ‘wife’, the means is deception about the nature of the relationship that will be the result of the ‘marriage’, and the purpose is sexual exploitation. Of course, in this case the man receiving the girls in (false) marriage is accountable for trafficking, not the family that eventually consented to the marriage

36 For a different approach, see R Ghafoerkhan, W Scholte, E de Volder and AM de Brouwer, ‘The Nexus between Conflict-Related Sexual Violence and Trafficking for Sexual Exploitation in Times of Conflict’ (2019) 3 Journal of Trafficking and Human Exploitation, Special Issue, 1.

16  The Irish Yearbook of International Law 2019 as a negative coping mechanism, believing that the marriage would ensure a better future for their daughter. However, they can be prosecuted for complicity in the trafficking crime if they gave in marriage the girl in exchange of money, knowing that it was a deceptive scheme to subsequently force her into prostitution. There are major implications of the recognition of trafficking as a form of CRSV. In general terms, while the anti-trafficking action has been dominated worldwide by a criminal law approach, the nexus with CRSV highlights that anti-trafficking action is an integral part of the human rights agenda. This does not only mean that anti-trafficking action must always adopt a victim-centred approach. Moreover, especially to prevent trafficking by adopting a human rights-based approach, States and the peace-building systems should give effect to the entire range of human rights entitlements as a ‘transformative roadmap’,37 aimed at drastically reducing vulnerabilities leading to victimisation including in the context of trafficking. Gender discrimination, persecution, torture, sexual and domestic violence, and other gross human rights violations, in addition to lack of education and job opportunities, climate change and extreme poverty have been identified as root causes of trafficking. The full restoration, protection or promotion of such rights is a powerful preventive means. Furthermore, trafficking is clearly recognised as a gender-based issue, and therefore must be integrated into the whole gender equality international agenda. In particular, human trafficking should be fully integrated into the Women, Peace and Security (WPS) agenda. I have devoted one of my recent reports to this nexus.38 Here I would like to underline the following: a full integration of the anti-trafficking and WPS agenda – which are both included in the Security Council (SC) agenda – is a powerful means to challenge the narrative of women as exclusively victims of both CRSV and human trafficking, and shows the centrality of their agency and participation in the peace-building and peace-keeping processes. In particular, one of the four pillars of the SC Resolution 1325/2000 on Women and Peace and Security39 focuses on women’s participation, and in my report, I offered a number of examples of possible and desirable integration with the anti-trafficking agenda. In particular, concerning the participation pillar, according to the Global Study on the Implementation of the SC Resolution 1325, peace processes including women as witnesses, signatories, mediators and/or negotiators result in a 20 per cent increase in the probability of a peace agreement lasting at least two years.40 The participation of women in peace-building processes can raise awareness about the vulnerabilities of women and girls in the aftermath of a conflict and establish pro-active networks, in particular for those who have lost their families during conflicts.41

37  M Rees and C Chinkin, ‘Exposing the Gendered Myth of Post Conflict Transition: The ­Transformative Power of Economic and Social Rights’ (2016) 48 New York University Journal of International Law and Politics 1211. 38 See Gender Dimension of Trafficking in Persons in Conflict and Post-Conflict Settings (n 18). 39  UNSC Res 1325 (31 October 2000) UN Doc S/RES/1325. 40  UN Women, ‘A Global Study on the Implementation of United Nations Security Council Resolution 1325’ (UN Women, 2015) 49. Available at: https://wps.unwomen.org/pdf/CH03.pdf; full report available at: https://wps.unwomen.org/index.html. 41  Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation.

Articles—Giammarinaro 17 In addition, the WPS agenda can reinforce existing obligations under the Palermo Protocol and other instruments, and simultaneously substantiate the binding nature of WPS obligations, whilst SC Council Resolutions are generally considered soft-law instruments. For example, the WPS agenda foresees the prevention of CRSV and trafficking, and this implies combating among other factors, gender discrimination in peace time and not only from the onset of conflict, and in conflict time.42 SC Resolution 1820/2008, adopted following the Resolution 1325/2000,43 took a further step to address sexual violence by recognising and condemning rape as a ‘tactic of war’. Today, the same must also be said for trafficking, especially after the atrocities perpetrated against women by ISIL/DAESH and its affiliates including Boko Haram and others, that trafficked women and girls by forcing them into sexual slavery, and/or selling them in the market of sexual exploitation to finance the armed group. This implies that trafficking should be included in the whole spectrum of repressive actions aimed at ending impunity for crimes perpetrated in a conflict context. Prevalence of impunity has often been reported, including in the most recent and serious case of ISIL/DAESH due to the lack of jurisdiction of the ICC, as neither Syria nor Iraq are party to the ICC Statute, and given that both a referral to the ICC by the SC and the establishment of an ad hoc court by the same SC seem unlikely.44 REPARATIONS AS A TRANSFORMATIVE AGENDA

Major implications of the connection between trafficking and CRSV are related to reparations, as a transformative way to provide remedies to victims of both human trafficking and CRSV. Reparations include restitution, restoration, compensation, rehabilitation and recovery, satisfaction and guarantees of non-repetition.45 For instance, the Croatian Parliament in 2015 voted to enact a compensation scheme for rape victims during the conflict in the former Yugoslavia. It is doubtful however whether such a measure, adopted so late, can have a real remedial meaning for victims of CRSV. According to press news, the UN Committee against Torture recently recognised the right to compensation to a Bosnian woman raped during the conflict of 1992–1995, which could pave the way to further developments. There are different views and different anecdotal evidence regarding the importance attached by victims to reparations on one hand, and punishment of perpetrators on the other hand. While in case of mass atrocities impunity seems to be for victims the most appalling failure of the judicial system, in other situations the remedial component is considered essential in order for victims to move on and rebuild their lives, and, importantly, to make it possible that violence, trafficking and 42 M Adamczewska, ‘Strengthening Prevention of Conflict-Related Sexual Violence and Trafficking in Human Beings: Saving the Potential of the Women, Peace and Security Agenda with the Human Rights-Based Approach’ (2019) 3 Journal of Trafficking and Human Exploitation 1. 43 UNSC Res 1820 (19 June 2008) UN Doc S/RES/1820; UNSC Res 1325 (31 October 2000) UN Doc S/RES/1325. 44  C Gibbons, CEDAW, the Islamic State, and Conflict-Related Sexual Violence (2018) 51 Vanderbilt Journal of Transnational Law 1421. 45 OHCHR, Rule-of-Law Tools for Post-Conflict States. Reparations Programmes (OHCHR, 2008).

18  The Irish Yearbook of International Law 2019 exploitation do not occur to others. In any case the above-mentioned remedies are mostly ineffective. Regarding compensation, research shows that, although providing access to compensation is a binding obligation according to numerous international instruments including the Palermo Protocol, victims are rarely awarded it, and even when compensation is adjudicated, very rarely is it effective, due to the lack of confiscation of the patrimony of the defendant. From this point of view, it is necessary to improve the quality of investigation and prosecution, especially concerning financial investigation. Moreover, victims should be allowed to play a more active role in criminal proceedings and be adequately informed from the very beginning of investigation of their right to obtain compensation and the procedure to be followed. Free legal counselling and representation is also crucial to make the rights to compensation effective in criminal proceedings. According to the UN SecretaryGeneral Guidance Note on Reparations, when CRSV takes place on a large scale, administrative reparations programmes have the potential of being more inclusive and accessible than courts. Individual and collective reparations should complement and reinforce each other. Collective reparations could for example be appropriate when a group of people who suffered harms are connected by ancestral bond, as in the case of an indigenous community. Moreover, collective reparations that honour survivors of CRSV may reduce stigmatisation within a community. Reparations should have a transformative nature, and address the root causes of CRSV, including discrimination against women, for example through gender-sensitive school programmes, collective apologies, measures to encourage women’s participation, and political reform to remove discriminatory law and practices against women. The inclusion of trafficking within the notion of CRSV implies that measures adopted to provide remedies to CRSV victims also apply to trafficking victims, as far as trafficking is committed for the purpose of sexual exploitation in a conflict context. On the other hand, regarding remedies aimed at recovery and rehabilitation, the anti-trafficking experience shows an important spectrum of measures that can be replicated in cases of CRSV involving long term consequences. In relation to trafficking, every chapter of the reparations scheme has specific implications, in addition to those highlighted by the UN Secretary-General Guidance Note on Reparations of 2014.46 For example, restoration includes restoration of liberty – if the victim has been detained for violations committed as a consequence of their situation as a trafficked person – and family reunification, if in the interest of the victims. Reparations should be part of a policy aimed at the social inclusion of victims and survivors, including their full participation in the designing and implementation of all the measures aimed at their social integration. These measures should be in place for a long time after the conflict is over. When women, children, young adults, minorities and vulnerable persons are victims of CRSV and trafficking in a conflict context, their ordeal does not end with the cease fire, or the official end of the conflict. They can bear the consequences of the cycle of violence for many years, and trafficking is one of the patterns in which they can be trapped.

46 

Guidance Note of the Secretary-General (n 17).

Articles—Giammarinaro 19 Effective remedies including compensation are, in my view, also a high priority in conflict contexts, to make a different life after CRSV and trafficking possible. CONCLUSION

It is now time to think how we can fill the gaps in the current international legislation on trafficking and to adopt a genuinely human rights-based approach to antitrafficking. A human rights-based approach does not coincide with what is currently meant as a victim-centred approach. In other words, it does not only mean that the legitimate interests of victims must be at the centre of any action against trafficking, but, importantly, that the people concerned must be considered first and foremost as rights holders. Some implications of this approach are not obvious, and for the time being completely off the scene, and even out of the debate on trafficking. For instance, it is currently not possible to appeal a decision and go to a civil court in case of refusal by the competent authorities to recognise a person as a victim of trafficking. Moreover, given that exploitation is a continuum, although some cases of exploitation are so extreme they easily fall on one end of the continuum, many others are not so clear-cut.47 Due to the narrow interpretation given by criminal courts of the legal notions of trafficking slavery and forced labour, many situations in which exploitation is severe but not so extreme, do not fall within the legal qualification of such crimes in the police practice and/or in courts. In the current anti-migrant political climate, exploitation of migrants is vastly ‘normalised’ and therefore it is even more difficult to see a case of severe exploitation to be qualified as trafficking, slavery or forced labour. Therefore, the concept of exploitation – which is common to all the three above-mentioned crimes – should be the basis for a new creative phase for the designing of international legislation and/or soft-law instruments. However, according to the existing legal context, in particular regarding the nexus between trafficking and conflict, persistent human rights gaps in international instruments can be filled by a systematic and joint interpretation of the Palermo Protocol, the ICC Statute, SC Resolutions 2331/2016 and 2338/2017, SC Resolution 1325/2000 and the following Resolutions on WPS, the relevant CEDAW General Recommendations, the GRETA Recommendations as far as the countries ratifying the Council of Europe Convention are concerned, and the CRSV agenda. This complex interpretative task is needed in order to make full use of the legal and case-law evolution in the various areas, and in order to make it possible that the most effective and human rights-based approaches enhance each other. In fact, anti-trafficking action, despite the numerous issues related to the human rights gaps mentioned above, represents a precious hub of concrete practices, especially those carried out by civil society organisations, that should be taken into consideration

47 D Brennan and S Plambech, ‘Editorial: Moving Forward – Life after Trafficking’ (2018) Anti-Trafficking Review 10, 1–12, www.antitraffickingreview.org.

20  The Irish Yearbook of International Law 2019 and from which it is possible to learn when designing and implementing the CRSV and WPS agenda. However, also in this field, it is time to envisage the possibility of a dedicated official document summarising and taking a step forward regarding the nexus ­trafficking/conflict. In fact, there is a wide area of trafficking situations, especially those regarding labour exploitation, or exploitation in criminal activities, which are not included in the concept of CRSV, and do not only involve women, that should equally be addressed from a human rights and gender-sensitive point of view.

Embedding Business and Human Rights in Ireland: Legislating for Human Rights Due Diligence SHANE DARCY*

INTRODUCTION

T

HE RELATIONSHIP BETWEEN business and human rights, and the role of international human rights law in regulating that interaction, has become an increasingly significant thematic issue for United Nations human rights bodies, and a field of concerted scholarship and civil society activity over the past two decades.1 The Human Rights Council has played a central role in this development, principally by endorsing the UN Guiding Principles on Business and Human Rights in 2011,2 and by establishing an Intergovernmental Working Group to elaborate ‘an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’ in 2014.3 States have engaged in the advancement of the UN business and human rights agenda to varying degrees, including by implementing the Guiding Principles at the domestic level through the adoption of national action plans and participating in negotiations on a potential business and human rights treaty.4 *  Professor and Deputy Director, Irish Centre for Human Rights, National University of Ireland ­Galway ([email protected]). The author wishes to thank Gerry Liston and the Yearbook’s reviewers for their helpful comments on an earlier version. 1  See generally Nadia Bernaz, Business and Human Rights: History, Law and Policy – Bridging the Accountability Gap (Taylor & Francis, 2016); Alex Newton, The Business of Human Rights: Best Practice and the UN Guiding Principles (Routledge, 2019); Dorothée Baumann-Pauly and Justine Nolan, Business and Human Rights: From Principles to Practice (Routledge, 2016); Surya Deva and David Bilchitz, Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge University Press, 2013); César Rodriguez-Garavito, Business and Human Rights (Cambridge University Press, 2017). 2 United Nations Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, A/HRC/17/31 (21 March 2011) (hereinafter referred to as the United Nations Guiding Principles’). 3  United Nations Human Rights Council, Resolution 26/9 on elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, A/HRC/26/L.22/Rev.1 (25 June 2014). 4  See Damiano de Felice and Andreas Graf, ‘The Potential of National Action Plans to Implement Human Rights Norms: An Early Assessment with Respect to the UN Guiding Principles on Business and Human Rights’ (2015) 7 Journal of Human Rights Practice 40; Claire Methven O’Brien and ­others, ‘National Action Plans: Current Status and Future Prospects for a New Business and Human Rights Governance Tool’ (2016) 1 Business and Human Rights Journal 117; Surya Deva and David Bilchitz, Building a Treaty on Business and Human Rights: Context and Contours (Cambridge University Press, 2017).

22  The Irish Yearbook of International Law 2019 While States may have particular preferences, these processes can be viewed as complementarity.5 The concept of human rights due diligence for business enterprises has become central in business and human rights and occupies a prominent place in both of its principal international initiatives. The UN Guiding Principles defines the corporate responsibility to respect human rights as meaning that ‘business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved’.6 A 2019 draft of the proposed business and human rights treaty envisages an obligation on States parties to ‘adopt measures necessary to ensure that all persons conducting business activities, including those of transnational character … undertake human rights due diligence’.7 A number of national jurisdictions have adopted legislation creating various narrowly focused due diligence obligations for companies.8 Human rights due diligence is a core vehicle for ensuring that business enterprises respect human rights by taking preventive measures, although questions remain regarding the concept’s meaning, scope and likely effectiveness.9 Ireland’s National Plan on Business and Human Rights 2017–2020 contains a number of commitments relating to human rights due diligence for business ­enterprises.10 The Irish Government has adopted a soft recommendatory approach, as exemplified by the stated commitment to ‘[e]ncourage and support awareness and effective human rights due diligence by State owned or controlled companies’.11 This may not comport with evolving understandings of international human rights law or the direction of European policy. The Committee on Economic, Social and Cultural Rights, for example, has interpreted the State’s obligation to protect human rights as entailing ‘a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence’.12 The Irish Human Rights and Equality Commission and civil society organisations have called on Ireland to adopt mandatory human rights obligations for companies, in particular those which the State

5  See Sara Blackwell and Nicole Vander Meulen, ‘Two Roads Converged: The Mutual Complementarity of a Binding Business and Human Rights Treaty and National Action Plans on Business and Human Rights’ (2016) 6 Notre Dame Journal of International and Comparative Law 51. 6  United Nations Guiding Principles (n 2) 4. 7 Article 5(2), Open-ended Intergovernmental Working Group Chairmanship Revised Draft on a Legally Binding Instrument to Regulate, in International Human rights Law, the Activities of Transnational Corporations and other Business Enterprises (16 July 2019), available at: www.ohchr.org/ Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf. 8 See Marco Fasciglione, ‘The Enforcement of Corporate Human Rights Due Diligence: From the UN Guiding Principles on Business and Human Rights to the Legal Systems of EU Countries’ (2016) 10 Human Right and International Legal Discourse 94. 9  See, eg, Jonathan Bonnitcha and Robert McCorquodale, ‘The Concept of “Due Diligence” in the UN Guiding Principles on Business and Human Rights’ (2017) 28 European Journal of International Law 899; Björn Fasterling and Geert Demuijnck, ‘Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights’ (2013) 116 Journal of Business Ethics 799. 10 Government of Ireland, ‘Ireland’s National Plan on Business and Human Rights 2017–2020’ (November 2017). 11  Ibid. 12  Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities (10 August 2017) UN Doc E/C.12GC/24 16.

Articles—Darcy 23 finances or has a controlling interest.13 Business representative organisations have not supported obligatory human rights due diligence to date given the potential burden on Irish businesses.14 This article seeks to explore the policy context, legal basis and prospects for embedding business and human rights in Ireland through legislating for human rights due diligence for business enterprises. The second section begins by setting out the international and national contexts, through an analysis of Ireland’s engagement with the UN business and human rights agenda. It considers the Irish Government’s undertakings on business and human rights to date, against the backdrop of ministerial claims that Ireland could be a ‘leader’ in the area of business and human rights.15 The third section examines the concept of human rights due diligence as articulated in relevant international initiatives and in a number of national laws on the matter. It elaborates on the concept’s substance and scope, taking into account existing international human rights law. The fourth section then turns to human rights due diligence in the Irish context. This section discusses existing commitments in Ireland’s National Plan on human rights due diligence, before turning to consider potential legislative activity in this area. Human rights due diligence for companies is acknowledged but not required by the 2017 Regulations implementing the EU Directive on Non-Financial Reporting, while it can be argued that the public sector duty as set out in the Irish Human Rights and Equality Commission Act 2014 contains the seed for mandatory due diligence for State-owned or controlled companies.16 The section considers key elements of human rights due diligence and prospects for domestic legislation in this area, taking into consideration recent developments within the European Union. The final part concludes. IRELAND’S ENGAGEMENT WITH BUSINESS AND HUMAN RIGHTS AT THE UNITED NATIONS

Ireland has a lengthy record of engaging with European and UN human rights mechanisms as a State party to a majority of the core human rights treaties.17 Ireland’s approach to human rights not only focuses inward on domestic issues but also has an outward-looking dimension, with human rights described variously as a 13  Irish Human Rights and Equality Commission, ‘Submission on Ireland’s National Action Plan on Business and Human Rights’ (March 2015) 19. See also Trócaire Policy Paper, ‘Making a Killing: Holding Corporations to Account for Land and Human Rights Violations’ (March 2019) 47; Irish Congress of Trade Unions, ‘Congress Submission on Ireland’s Proposed National Action Plan on UN Guiding Principles on Business and Human Rights’ (February 2015); Amnesty International, ‘Submission to the Department of Foreign Affairs and Trade on its preparation of a National Action Plan on Business and Human Rights’ (March 2015) 4. 14  See Chambers Ireland, ‘Submission on the Working Outline of Ireland’s National Action Plan on Business and Human Rights’ (January 2016). 15  Charlie Flanagan, ‘It is Time to Discuss the Role of Human Rights in Business’ Irish Independent (7 November 2014). 16  European Union (Disclosure of Non-Financial and Diversity Information by certain large undertakings and groups) Regulations 2017, SI 2017/360; Irish Human Rights and Equality Act 2014, s 42. 17 See generally Suzanne Egan (ed), International Human Rights: Perspectives from Ireland (Bloomsbury, 2015).

24  The Irish Yearbook of International Law 2019 ‘central concern’ and ‘essential part’ of Irish foreign policy.18 With Ireland’s foreign policy also including the promotion of Irish business abroad through trade missions and other types of support, it is likely that these two recurring policy strands will become increasingly intertwined as the business and human rights agenda progresses. The relationship between business and human rights was briefly alluded to in the White Paper on Foreign Policy in 1996 which noted the potential negative impact of private actors on human rights, referring to the dumping of toxic waste, labour standards in the context of globalisation and the marketing of certain products by multinational companies.19 The document noted, somewhat presciently, that ‘[t]he development of a coherent approach to these issues, consistent with universal human rights standards, is likely to represent a major challenge for the international community in the years ahead’.20 The UN Guiding Principles on business and human rights constitute the most prominent and broadly accepted international initiative aimed at addressing the relationship between companies and human rights.21 The Guiding Principles can be distinguished from other related initiatives, such as the UN Global Compact, in that they draw explicitly on international human rights law and reiterate the central role of states in preventing harm to human rights by business enterprises and providing for remedy. The Guiding Principles were the outcome of the six-year mandate of the Secretary General’s Special Representative, John Ruggie, on the issue of human rights and transnational corporations and other business enterprises, and were unanimously endorsed by the Human Rights Council in 2011.22 The three pillars of the Guiding Principles are the state duty to protect human rights, based on existing international human rights law, the corporate responsibility to respect human rights, ‘a global standard of expected conduct for all business enterprises wherever they operate’, and the requirement of remedy, without which the state duty to protect human rights can become ‘weak or even meaningless’.23 The Human Rights Council and the European Commission have called on states to implement the Guiding Principles through the adoption of national action plans.24 It is not evident that Ireland participated in or contributed to the wide-ranging consultation undertaken by John Ruggie during the course of his mandate as Special Representative from 2005 to 2011. Ireland was not a member of the Human Rights

18 Ireland Department of Foreign Affairs, Challenges and Opportunities Abroad: White Paper on Foreign Policy (Stationery Office, 1996). 19  Ibid. 20  Ibid. 21  United Nations Human Rights Council, Human Rights and Transnational Corporations and other Business Enterprises’, Resolution A/HRC/RES/17/4 (6 July 2011). 22 See John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton & Company, 2013); Surya Deva, ‘Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles’ in Deva and Bilchitz (n 1) 78. 23  See United Nations Guiding Principles (n 2) 6–7, 13, 22–23. 24  United Nations Human Rights Council, Human Rights and Transnational Corporations and other Business Enterprises, Resolution A/HRC/RES/26/22 (15 July 2014) para 2; European Commission, ‘A Renewed EU Strategy 2011–14 for Corporate Social Responsibility’ Brussels, COM(2011) 681 final, 25 October 2011, 14.

Articles—Darcy 25 Council when the Guiding Principles were endorsed by this body in 2011, although its assumption of membership in 2013 may have prompted the beginning of Ireland’s engagement with the expanding business and human rights agenda. During the first year of Ireland’s membership of the Human Rights Council, the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore, explained that consideration was being given to ‘how best to go about formulating our national action plan’ for implementing the UN Guiding Principles.25 In 2014 the Irish Government stated that it was ‘strongly committed’ to implementing the Guiding Principles and was developing its approach to a national action plan on business and human rights.26 The Minister for Foreign Affairs and Trade, Charlie Flanagan TD, emphasised that in doing so it would be ‘important for Ireland’s standing internationally and the reputation of Irish companies that we signal our commitment to placing human rights firmly on the business agenda’.27 The UN Guiding Principles on business and human rights began to be referred to in policy documents related to foreign policy and development. ‘One World, One Future; Ireland’s Policy for International Development’, for example, stated without elaboration that Ireland’s actions related to economic development, including where Irish business may be involved, would be ‘guided by’ the UN Guiding Principles on business and human rights.28 The relationship between business activities and human rights was touched on in ‘The Global Island: Ireland’s Foreign Policy for a Changing World’ published in 2015.29 Business enterprises, the document noted, exert ‘an ever greater power and influence over the implementation of human rights’, and accordingly, the Irish Government remained committed to developing a national plan on business and human rights.30 Ireland’s ‘National Plan on Corporate Social Responsibility 2014–2016’ noted the necessity of a separate national plan on business and human rights given that the Guiding Principles were ‘broader’ in their scope than the issues covered by corporate social responsibility.31 Following consultation with relevant stakeholders, including civil society and business representative organisations, and the publication of a Working Outline

25  Answer to Oireachtas Question by Mr Eamon Gilmore TD, Minister for Foreign Affairs and Trade, 16 October 2013. 26  Ireland Statement, Human Rights Council, 26th session, 16 June 2014, available at: www.dfa.ie/ media/dfa/alldfawebsitemedia/ourrolesandpolicies/int-priorities/humanrights/national-statementgeneral-debate-items-2-3.pdf. 27  Answer to Oireachtas Question by Mr Charlie Flanagan TD, Minister for Foreign Affairs and Trade, 26 November 2014. 28  Government of Ireland, ‘One World, One Future; Ireland’s Policy for International Development’ (2013) 21. 29  Government of Ireland, ‘The Global Island: Ireland’s Foreign Policy for a Changing World’ (2015). 30  Ibid, 36. 31 Ireland, ‘Good for Business, Good for Community; Ireland’s National Plan on Corporate Social Responsibility 2014–2016’ (2014) 7. On the differences between business and human rights and corporate social responsibility, see Anita Ramasastry, ‘Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability’ (2015) 14 Journal of Human Rights 237.

26  The Irish Yearbook of International Law 2019 in 2015, the Irish Government published its ‘National Plan on Business and Human Rights 2017–2020’ in November 2017.32 The National Plan aims to promote responsible business practices at home and overseas by all Irish business enterprises in line with Ireland’s commitment to the promotion and protection of human rights globally and to being one of the best countries in the world to do business.33

The majority of the 26-page document sets out the international context, the domestic consultation process and the applicable legislative and regulatory framework in Ireland.34 The actions committed to in the National Plan include the commissioning of a baseline assessment of Ireland’s legislative and regulatory framework as it relates to business and human rights, the establishment of a Business and Human Rights Implementation Group and ensuring coherence with other relevant policies and processes.35 The Implementation Group comprises representatives of government departments, business representative groups, civil society organisations and academic experts, and is tasked, somewhat incongruously, with both reviewing implementation of the National Plan and delivering certain commitments on promoting awareness and encouraging compliance with business and human rights.36 The publication of Ireland’s National Plan occurred six years after the Human Rights Council’s endorsement of the UN Guiding Principles, compared with two years for the United Kingdom’s action plan.37 A degree of lethargy is also observable in the implementation of Ireland’s plan, given the failure to meet key commitments within established time frames. The independent Baseline Assessment which was due within six months of the publication of the National Plan was not delivered until March 2019,38 while it was over a year before the Implementation Group held its first meeting.39 From a substantive perspective, the National Plan favours a light-touch approach to business and human rights that is almost exclusively one of encouraging voluntary engagement by companies, akin to a corporate social responsibility approach, rather than mandating business respect for human rights. There are repeated references to ‘encouraging’, ‘promoting’ and ‘raising awareness’

32 National Plan on Business and Human Rights 2017–2020 (n 10). The Working Outline and v­arious stakeholder submissions are available at: www.dfa.ie/our-role-policies/international-priorities/ human-rights/business-and-human-rights/nationalplanonbusinessandhumanrights2017-2020/. 33  National Plan on Business and Human Rights 2017–2020, ibid, 6. 34  Ibid 8–15. 35  Ibid 16–17. 36  Ibid 18–19. 37  United Kingdom, ‘Good Business; Implementing the UN Guiding Principles on Business and Human Rights’ (September 2013). 38 ReganStein / Leading Edge Group / Department of Foreign Affairs and Trade, ‘National Plan on Business and Human Rights; Baseline Assessment of Legislative and Regulatory Framework’ (March 2019) (hereinafter referred to as ‘Baseline Assessment’). 39  Press Release, Department of Foreign Affairs and Trade, ‘Tánaiste Addresses Inaugural Meeting of Business and Human Rights Implementation Group’ (16 January 2019), available at: https://www.dfa.ie/ news-and-media/press-releases/press-release-archive/2019/january/tanaiste-addresses-inaugural-meetingof-business-and-human-rights-implementation-group.php. The minutes of the meetings of the Business and Human Rights Implementation Group are available at: www.dfa.ie/our-role-policies/internationalpriorities/human-rights/business-and-human-rights/. The author represents the National University of Ireland Galway on the Business and Human Rights Implementation Group.

Articles—Darcy 27 of business and human rights, including for State-owned companies throughout the National Plan.40 The Baseline Assessment states that while ‘such an approach may derive results in some cases’ in the context of human rights due diligence, ‘it may not result in compliance across the board, and indeed may take longer to achieve compliance’.41 It is telling that since the adoption of the National Plan in 2017, there has been little to no engagement by large Irish companies with the Guiding Principles on business and human rights.42 Furthermore, the Irish Government’s most recent policy document on international development emphasises a partnership approach with Irish business, yet makes no reference to the UN Guiding Principles, the human rights responsibilities of Irish business operating overseas or the National Plan.43 Ireland has not taken a position in support of the proposed binding instrument on business and human rights that is being prepared at the UN. In 2014, the Irish Government supported a Human Rights Council resolution to further the implementation of the Guiding Principles, but voted against the resolution establishing the Open-Ended Intergovernmental Working Group to elaborate ‘an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business ­enterprises’.44 Ireland’s position has been one of dissatisfaction with the proposed scope of the instrument: We share the common EU position that the approach of this Working Group, which has a narrow focus on the elaboration of a legal instrument applicable to transnational corporations only, is flawed in that it fails to take into account that many human rights abuses are committed by domestic enterprises. This undermines a fundamental tenet of the UN Guiding Principles, which cover all businesses, regardless of whether they operate in one or more countries. A further omission is the absence from the Working Group’s work plan of any reference to small and medium enterprises. In many countries these make up the vast number of business enterprises.45

Minister for Foreign Affairs and Trade, Charlie Flanagan, explained that the Irish Government was ‘following closely’ the Intergovernmental Working Group’s deliberations,46 although there was no acknowledgement of the treaty process or any statement setting out Ireland’s position in the National Plan. As the proposed binding instrument process has advanced and the draft has gone through various refinements, Ireland’s position has ostensibly softened. The Tánaiste

40 

National Plan on Business and Human Rights 2017–2020 (n 10) 18. Baseline Assessment (n 38) 20. 42  See Centre for Social Innovation, Trinity College Dublin, ‘Business and Human Rights in Ireland: Benchmarking Compliance with the UN Guiding Principles’ (2019). This reflects a global trend of weak implementation of the Guiding Principles by business enterprises, see Report of the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises, A/73/163 (16 July 2018) 8–9. 43  Irish Aid, ‘A Better World: Ireland’s Policy for International Development’ (2019). 44  See United Nations Human Rights Council, Resolution 26/22 (27 June 2014) A/HRC/26/L.1; United Nations Human Rights Council, Resolution 26/9 (25 June 2014) A/HRC/26/L.22/Rev.1. 45  Answer to Oireachtas Question by Mr Charlie Flanagan TD, Minister for Foreign Affairs and Trade, 27 September 2016. See further Deva and Bilchitz (n 4). 46  Ibid. 41 

28  The Irish Yearbook of International Law 2019 and Minister for Foreign Affairs and Trade, Simon Coveney, explained in October 2018 that Ireland is open to looking at options for progress on a legally binding Treaty, which we believe should treat all economic operators in a non-discriminatory manner and should therefore cover companies engaged in purely domestic operations as well as transnational corporations.47

The Irish Government nevertheless continues to share the views of the ­European Union regarding not only the scope of the proposed instrument (which has ­broadened48) but also the process of its elaboration: Ultimately, if it is to achieve its objectives, any legally binding instrument should enjoy broad support among UN Member States to ensure its effectiveness as well as international coherence in the framework of business and human rights. We would like to see any new initiative build on, rather than duplicate, existing measures such as the OECD Guidelines for Multinational Enterprises and the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy. Above all we believe that it should be rooted in the UN Guiding Principles. In this regard, we are of the view that the appropriate place for the discussion of any new initiatives is the annual UN Forum on Business and Human Rights.49

Ireland attended but did not make any public interventions at the fifth session of the Open-Ended Intergovernmental Working Group on Business and Human Rights in 2019.50 Minister Coveney has taken the view that it is for the European Commission to negotiate on behalf of Member States in this context ‘[a]s the proposed treaty covers matters for which the European Union is competent’.51 Even though it is one of the few countries to have developed a national plan on business and human rights, Ireland has adopted a minimalist approach to the UN business and human rights agenda.52 The implementation of the UN Guiding Principles has lacked urgency and has largely entailed declarations of support, accompanied by soft commitments in the National Plan to encourage and promote business respect for human rights. The Irish Government has positioned Ireland on the side-lines of the elaboration of a potential binding instrument on business and human rights. Yet the increasing evidence and awareness of demonstrable links between Irish business activities and harm to human rights, whether in the supply chain of manufactured goods, the sourcing of raw materials and fossil fuels, the

47  Answer to Oireachtas Question by Mr Simon Coveney TD, Minister for Foreign Affairs and Trade, 9 October 2018. 48  See Article 3, Revised Draft on a Legally Binding Instrument to regulate, 2019. 49  Answer to Oireachtas Question by Mr Simon Coveney TD, Minister for Foreign Affairs and Trade, 9 October 2018. 50 See Draft report on the fifth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (2019) 20. See also Siobhan Curran, ‘Trócaire Activists Call for Ireland and the European Union to Support the GroundBreaking UN Treaty to Stop Corporate Human Rights Abuses’ Business and Human Rights in Ireland (4 November 2019). 51  Mr Simon Coveney TD, Minister for Foreign Affairs and Trade, Dáil Eireann Debates, 12 October 2019. 52  See www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx.

Articles—Darcy 29 selling of products to repressive regimes, or corporate tax avoidance,53 have contributed to growing engagement by Irish civil society organisations and researchers with business and human rights.54 A particular emphasis has been placed on the concept of human rights due diligence for business enterprises in this context. HUMAN RIGHTS DUE DILIGENCE

Due diligence has a long-established role in international law in the context of state responsibility for omissions, including in relation to environmental harms.55 While states are not generally responsible for the acts of third parties, the International Law Commission has explained that a State ‘may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects’.56 Under international human rights law, obligations to protect human rights can entail a duty to act with due diligence in relation to potential harm by private actors. In Velásquez-Rodríguez v Honduras, the Inter-American Court of Human Rights held that: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.57

The obligation to exercise due diligence on the part of states has become wellestablished in the context of women’s rights, particularly in relation to preventing violence against women.58 Due diligence has become a core concept in the field of business and human rights. In this context, it is the exercise of human rights due diligence on the part 53  See, eg, ‘Syria Regime ‘using Irish Technology’ Irish Times (15 February 2012); ‘Concerns Raised about some Irish Business Involved with Qatar World Cup’ The Journal.ie (3 June 2014); Dominic Dudley, ‘Irish Oil Exploration Firm Targeted in Complaint over Western Sahara Srilling’ Forbes (24 October 2018); Sorcha Pollak, ‘Coal “Stained with Colombia Blood” is Bought and Sold in Dublin’ Irish Times (11 May 2019); Amnesty International, Destination: Occupation (30 January 2019); Shane Darcy, ‘“The Elephant in the Room”: Corporate Tax Avoidance & Business and Human Rights’ (2017) 2 Business and Human Rights Journal 1. 54  See, eg, Irish Centre for Human Rights, ‘Business and Human Rights in Ireland’ (2012); Trócaire (n 13); Centre for Social Innovation (n 42). 55  See generally Joanna Kulesza, Due Diligence in International Law (Brill, 2016); Neil McDonald, ‘The Role of Due Diligence in International Law’ (2019) 68 International & Comparative Law Quarterly 1041; Pulp Mills on the River (Argentina v Uruguay) Judgment, ICJ Reports 2010, 20 April 2010, para101. 56 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries (2001) Vol II, Part Two, ‘Yearbook of the International Law Commission’ 39. 57 Inter-American Court of Human Rights, Case of Velásquez-Rodríguez v Honduras, Judgment (Merits), 29 July 1988, para 172. 58  Christine Chinkin, ‘Violence against Women: The International Legal Response’ (1995) 3 Gender & Development 23; Carin Benninger-Budel, Due Diligence and Its Application to Protect Women from Violence (Brill, 2008); Opuz v Turkey App no 33401/02 (ECHR, 9 June 2009); Volodina v Russia App no 41261/17 (ECHR, 9 July 2019.

30  The Irish Yearbook of International Law 2019 of ­companies and not only states that is envisaged.59 Due diligence is said to lie ‘at the heart’ of the UN Guiding Principles.60 The concept is similarly prominent in the proposed treaty on business and human rights and in the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises.61 National legislation has incorporated varying human rights due diligence requirements for companies.62 This section sets out how relevant international instruments and domestic laws address human rights due diligence for business enterprises and the obligations of states in this context. International Instruments Due diligence is a central component of the corporate responsibility to respect human rights as set out in the UN Guiding Principles. The responsibility of business enterprises under the second pillar is to ‘act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved’.63 This means that companies should have a process in place ‘to identify, prevent, mitigate and account for how they address their impacts on human rights’.64 Such a process should assess both actual and potential impacts on human rights, involve business enterprises taking action based on findings, tracking responses, and communicating how such impacts on human rights are addressed.65 According to Guiding Principle 17, human rights due diligence: a)

Should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships; b) Will vary in complexity with the size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations; c) Should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.66

Guiding Principles 18–21 elaborate on the various components of human rights due diligence for business enterprises.67 The commentary to the Guiding Principles explains that the risk assessment involved must be addressed to risks to human rights, rather than those to a company itself, as would be the focus of regular corporate due diligence.68 That being said,

59 Robert McCorquodale and others, ‘Human Rights Due Diligence in Law and Practice: Good Practices and Challenges for Business Enterprises’ (2017) 2 Business and Human Rights Journal 195. 60  Bonnitcha and McCorquodale (n 9). 61 See OECD, ‘Guidelines for Multinational Enterprises’ (2011) 20, 23–24. See also OECD, ‘Due Diligence Guidance for Responsible Business Conduct’ (2018). 62  For an overview, see Report of the United Nations Working Group (n 42). 63  United Nations Guiding Principles (n 2) 4. 64  Ibid15. 65  Ibid 16. 66  Ibid. 67  Ibid 17–19. 68  Ibid 16.

Articles—Darcy 31 harm to human rights can pose legal risks for companies, including where they are considered complicit in human rights violations.69 As the Guiding Principles’ commentary notes: Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse. However, business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.70

The ultimate aim of human rights due diligence is to prevent adverse human rights impacts by business activity, according to the UN Working Group on business and human rights.71 It is the ‘primary expectation of behaviour’ for business enterprises and goes ‘well beyond the idea of doing no harm’.72 States have an essential role to play with respect to corporate human rights due diligence. The UN Guiding Principles touch on due diligence under the state duty to protect, specifically that states are expected to provide guidance to companies on human rights due diligence.73 Where a state-business nexus exists, as in the case of state-owned or controlled enterprises, or where state agencies provide support to companies, it may be appropriate to require human rights due diligence.74 While not insisting on human rights due diligence for all such business enterprises, the commentary to the Guiding Principles states that a human rights due diligence requirement ‘is most likely to be appropriate where the nature of business operations or operating contexts pose significant risk to human rights’.75 Notwithstanding that such risks may not become apparent without a human rights due diligence process, this approach is at odds with recent interpretations of state obligations under international human rights law.76 The Committee on the Rights of the Child, for example, has taken the view that states should require due diligence concerning children’s rights by all business enterprises.77 In this context: States should lead by example, requiring all State-owned enterprises to undertake childrights due diligence and to publicly communicate their reports on their impact on children’s

69  See, eg, Andrew Clapham and Scott Jerbi, ‘Categories of Corporate Complicity in Human Rights Abuses’ (2000–01) 24 Hastings International and Comparative Law Review 339; Anita Ramasastry, ‘Corporate Complicity: From Nuremberg to Rangoon – An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations’ (2002) 20 Berkeley Journal of International Law 91; Jonathan Clough, ‘Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses’ (2007–08) 33 Brook Journal of International Law 899. 70  United Nations Guiding Principles (n 2) 16. 71  Report of the United Nations Working Group (n 42) 6. 72  Ibid. 73  United Nations Guiding Principles (n 2) 8. 74  Ibid 9. 75  Ibid 10. See also Council of Europe, Human Rights and Business – Recommendation CM/ Rec(2016)3 of the Committee of Ministers to Member States (2016) 13–14. 76  For a broader analysis of the narrow incorporation of international human rights law in the United Nations Guiding Principles, see Surya Deva, ‘Business and Human Rights: Time to Move Beyond the “Present”?’ in Rodriguez-Garavito (n 1). 77  Committee on the Rights of the Child, General Comment No 16 on State Obligations Regarding the Impact of the Business Sector on Children’s Rights, C/CRC/C/GC/16 (17 April 2013) 17–18.

32  The Irish Yearbook of International Law 2019 rights, including regular reporting. States should make public support and services, such as those provided by an export credit agency, development finance and investment insurance conditional on businesses carrying out child-rights due diligence.78

The Committee considers that states should require ‘stringent’ human rights due diligence for business enterprises operating in conflicts and emergency contexts.79 The Human Rights Committee has recognised the role of due diligence in considering the responsibility of a state for the extraterritorial activities of corporations under its jurisdiction.80 The Committee on Economic, Social and Cultural Rights has set out a detailed assessment of human rights due diligence requirements in light of the state duty to protect human rights. The Committee has interpreted the State’s obligation as entailing ‘a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence’.81 In General Comment 24, the Committee also considered that States parties should adopt measures ‘imposing due diligence requirements to prevent abuses of Covenant rights in a business entity’s supply chain and by subcontractors, suppliers, franchisees, or other business partners’.82 Moreover, criminal or administrative sanctions or penalties should be imposed where companies fail to act with due diligence allowing infringements of Covenant rights to take place.83 The Committee also emphasised the role of free, prior and informed consent of indigenous peoples in the context of human rights due diligence.84 Given the transnational nature of business activities, the Committee on Economic, Social and Cultural Rights underlined the extraterritorial dimension of the state obligation to protect, particularly for state-controlled companies.85 For other companies, the Committee suggested that: States parties may also utilize incentives short of the direct imposition of obligations, such as provisions in public contracts favouring business entities that have put in place robust and effective human rights due diligence mechanisms, in order to contribute to the protection of economic, social and cultural rights at home and abroad.86

For the Committee, States parties might not be directly responsible under international law for harms caused to private companies, but they would breach their Covenant obligations ‘where the violation reveals a failure by the State to take

78 

Ibid 18. Ibid 14. 80 See Basem Ahmad Issa Yassin et al v Canada, Human Rights Committee, 7 December 2017, paras 6.7. See also Human Rights Committee, General Comment No 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36 (30 October 2018) para 22. See also ETO Consortium, ‘Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights’ (2013); Claire Methven O’Brien, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal’ (2018) 3 Business and Human Rights Journal 47. 81  Committee on Economic, Social and Cultural Rights (n 12). 82  Ibid. 83  Ibid para 15. 84  Ibid paras 12, 17. 85  Ibid para 30–31. 86  Ibid para 31. 79 

Articles—Darcy 33 reasonable measures that could have prevented the occurrence of the event’.87 The extractive industry is singled out by the Committee given the well-documented risks to human rights associated with its activities.88 The Committee considers that due diligence obligations should extend to business relationships: ‘[c]orporations domiciled in the territory and/or jurisdiction of States parties should be required to act with due diligence to identify, prevent and address abuses to Covenant rights by such subsidiaries and business partners, wherever they may be located’.89 The Committee has adopted an expansive approach to state obligations in General Comment 24, and although the language employed suggests that some of its recommendations concerning due diligence have the character of lex ferenda, such understandings will become embedded in the future work of the Committee, including in its concluding observations on States parties’ periodic reports. The Guiding Principles largely focus on how business enterprises should conduct human rights due diligence, but as the Working Group on business and human rights has noted, ‘the expectation that all business enterprises carry out human rights due diligence does not shift responsibilities from Governments to enterprises’.90 States play a preeminent role in ensuring that business respect human rights, including by engaging in human rights due diligence. The Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights have provided authoritative interpretations on due diligence for business in light of existing international human rights law, which will inform their future engagement with States parties. In the context of the potential binding treaty on business and human rights, the focus is also equally on the obligations of states to ensure that companies undertake human rights due diligence. Human rights due diligence has featured prominently in the elaboration of a binding instrument on business and human rights. While the treaty remains a work in progress, and faces undoubted challenges, the proposed content is indicative of the views of the negotiations’ participants, including states, on the potential contours and direction of international law concerning human rights due diligence for business. Successive drafts have proposed embedding the concept in domestic legislation, enforcement obligations for states, liability for companies, and a differentiated regime depending on a company’s size.91 At the third session of the intergovernmental working group on a potential treaty, ‘[m]any delegations welcomed the provision whereby States required companies to adopt and implement due diligence policies and processes’.92

87 

Ibid para 32. Ibid. 89  Ibid para 33. 90  Report of the United Nations Working Group (n 42) 15. 91  Article 9, Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, Zero Draft, 16 July 2018, available at: www. ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf. 92 United Nations Human Rights Council, Report on the Third Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and other Business Enterprises with Respect to Human Rights, A/HRC/37/67 (24 January 2018) para 78. 88 

34  The Irish Yearbook of International Law 2019 The latest version of the proposed treaty would require that State parties ‘adopt measures necessary to ensure that all persons conducting business activities, including those of transnational character undertake human rights due diligence’.93 Article 5 draws closely on the language of the UN Guiding Principles in setting out the elements of human rights due diligence to be required of companies: a) b) c) d)

Identify and assess any actual or potential human rights violations or abuses that may arise from their own business activities, or from their contractual relationships; Take appropriate actions to prevent human rights violations or abuses in the context of its business activities, including those under their contractual relationships; Monitor the human rights impact of their business activities, including those under their contractual relationships; Communicate to stakeholders and account for the policies and measures adopted to identify, assess, prevent and monitor any actual or potential human rights violations or abuses that may arise from their activities, or from those under their contractual relationships.94

The revised draft refers to both environmental and human rights due diligence, and emphasises the necessity of meaningful consultation, public reporting and the integration of human rights due diligence in contractual relationships.95 Article 5 also contemplates ‘enhanced human rights due diligence’ in occupied territories or conflict-affected areas, while national procedures shall be put in place to ensure compliance with due diligence obligations.96 As with the previous ‘zero-draft’, small and medium sized enterprises might be treated differently by way of incentives or other measures to ‘facilitate compliance’ in order to avoid undue burdens, rather than exemptions.97 The resonance of the concept of due diligence in both business and human rights likely explains its employment by Special Representative Ruggie, notwithstanding different understandings in each sphere.98 Due diligence in a business sense involves a self-interested investigation of potential risks to a company from a particular course of action, such as a merger or acquisition, whereas human rights due diligence involves assessing and addressing risks to human rights, rather than to a state or a business enterprise. While human rights due diligence is replicated in other international instruments, such as the 2011 revision of the OECD Guidelines for Multinational Enterprises, such developments have often followed the essentially recommendatory approach of the UN Guiding Principles. The OECD Guidelines themselves remain ‘voluntary and not legally enforceable’.99 As is evident from the above, human rights treaty monitoring bodies and the proponents of a binding business and human rights treaty build on the approach of the UN Guiding Principles, and equally envisage a central role for human rights

93 

Article 5(2), Open-ended Intergovernmental Working Group Chairmanship Revised Draft (n 7). Ibid. 95  Ibid Art 5(3). 96  Ibid Art 5(3)–5(4). 97  Ibid Art 5(6). 98  Bonnitcha and McCorquodale (n 9). 99  OECD Guidelines for Multinational Enterprises (n 61) 17. 94 

Articles—Darcy 35 due diligence in ensuring business respect for human rights, albeit with a legislative underpinning. A similar view as been expressed within the Council of Europe where a state-business nexus exists. The Council recommended to Member States that they ‘should apply additional measures to require business enterprises to respect human rights, including, where appropriate, by carrying out human rights due diligence’.100 In Resolution 2311 (2019), the Parliamentary Assembly of the Council of Europe welcomed that a number of Member States ‘have adopted comprehensive measures to implement this recommendation, including legislative measures imposing a duty to implement human rights due diligence procedures in business enterprises’.101 This part now turns to consider how such national laws have addressed human rights due diligence for business. National Legislation A growing number of national laws address the concept of human rights due diligence for business enterprises. The content of such domestic legislation as it is addressed to due diligence varies, from requiring that companies merely report on their human rights due diligence processes to instances where there is a legal obligation underpinned with potential liability for business enterprises to undertake such. Existing legislation, mostly European, frequently applies only to companies over a certain size, measured in terms of employee numbers or turnover, and is at times limited to human rights of particular concern, such as slavery, human trafficking or child labour.102 This section briefly outlines key aspects of national legislation incorporating human rights due diligence. Human rights due diligence has become a regular feature of domestic corporate transparency laws. The Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 in the United States was one of the first such laws, with a focus solely on conflict minerals from the Democratic Republic of the Congo.103 Section 1502 of the Act requires that an annual report be submitted to the Securities Exchange Commission by the affected companies which includes a description of the measures taken ‘to exercise due diligence on the source and chain of custody of such ­minerals’.104 The Trump administration threatened to repeal this section of the Act.105 In Europe, the United Kingdom’s Modern Slavery Act has taken a comparable

100 

Council of Europe (n 75) 14. Council of Europe Parliamentary Assembly, Resolution 2311 (2019), Human Rights and Business – what Follow-up to Committee of Ministers Recommendation CM/Rec(2016)3? (29 November 2019) para 7. 102  See, eg, the Netherlands Child Labour Due Diligence Law 2019. On slavery, see Justine Nolan and Martijn Boersma, Addressing Modern Slavery (UNSW Press, 2019). 103  See, eg, Celia R Taylor, ‘Conflict Minerals and SEC Disclosure Regulation’ (2011–12) 2 Harvard Business Law Review Online 105; Toby Whitney, ‘Conflict Minerals, Black Markets, and Transparency: The Legislative Background of Dodd-Frank Section 1502 and Its Historical Lessons’ (2015) 14 Journal of Human Rights 183. 104  Dodd-Frank Wall Street Reform and Consumer Protection Act 2010, s 1502(b). 105  Ed Pilkington, ‘Proposed Trump Executive Order would Allow US Firms to Sell ‘Conflict Minerals’ The Guardian (8 February 2017). 101 

36  The Irish Yearbook of International Law 2019 approach, requiring as it does that certain large companies publicly issue an annual ‘slavery and human trafficking statement’.106 Such a statement must elaborate ‘the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place – (i) in any of its supply chains, and (ii) in any part of its own business’.107 Such a statement, the Act explains, can include information regarding due diligence processes for slavery and human trafficking in the company’s business and supply chain.108 The potential of the legislation is considerably weakened by the concession that an organisation can comply with the Act by simply issuing a statement that it has not taken any steps in relation to slavery and human trafficking.109 European Union laws on non-financial reporting as transposed into domestic law by Member States require companies over a certain size to address human rights in their annual reports, including any due diligence as may have been undertaken, as discussed further in the next part.110 The limits of transparency laws in terms of altering corporate behaviour are increasingly apparent,111 particularly in the absence of robust sanctions for the underlying wrongful human rights harms.112 According to the Business and Human Rights Resource Centre, the United Kingdom’s Modern Slavery Act 2015 has ‘failed to deliver the transformational change many hoped for’.113 An Independent Review of the Act also found that the relevant section had limited impact and several reforms were recommended, including that certain reporting aspects be made mandatory and that an enforcement body be given the authority to impose sanctions on non-compliant companies.114 Australia’s Modern Slavery Act 2018 follows the approach of the United Kingdom legislation in various ways, but requires that a modern slavery statement must set out the actions taken to assess and address the risks of modern slavery in applicable company’s operations and supply chains, including mechanisms for due diligence and remediation.115 Such statements are required from companies with a consolidated revenue of over $100 million, but can be submitted voluntarily by others, and will be publicly accessible on a governmentrun register.116 The enforcement of the obligation is based on the relatively weak sanction that the relevant government minister might note on the public register 106 

United Kingdom Modern Slavery Act 2015, s 54(1). Ibid s 54(5)(c). 108  Ibid s 54(4). 109  Ibid s 54(4)(a). 110 See Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups [2014] OJ L330/1. 111  See, eg, Radu Mares, ‘Corporate Transparency Laws: A Hollow Victory?’ (2018) 36 Netherlands Quarterly of Human Rights 189; Karin Buhmann, ‘Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action’ (2018) 3 Business and Human Rights Journal 23. 112 Genevieve Lebaron and Andreas Rühmkorf, ‘Steering CSR Through Home State Regulation: A Comparison of the Impact of the UK Bribery Act and Modern Slavery Act on Global Supply Chain Governance’ (2017) 8 Global Policy 15. 113  Business and Human Rights Resource Centre, ‘FTSE 100 and the UK Modern Slavery Act: From Disclosure to Action’ (2018) 3. 114  Independent Review of the Modern Slavery Act 2015: Final Report (May 2019) 39–47. 115  Modern Slavery Act 2018, s 16(1). 116  Ibid ss 3, 5, 6, 18. 107 

Articles—Darcy 37 that a relevant company has failed to comply.117 Rather than seek to impose penalties, the Australian Government has relied on potential negative publicity for noncompliant companies.118 France’s ‘duty of vigilance’ law seeks to bring about more effective human rights due diligence by certain large companies through combining a requirement of preventive action and civil liability for such entities. Following a proposal from the Commission Nationale Consultative des Droits de l’Hommes and several years of discussion and negotiation, France passed the duty of vigilance law, ‘a historic step forward for the corporate accountability movement, and a testament of the importance of civil society participation in the law-making process’.119 The law is more expansive than others in that it requires companies over a certain size to undertake human rights due diligence in relation not only to their own activities, but also those of subsidiaries, contractors and suppliers. Relevant companies must prepare a plan de vigilance which sets out ‘reasonable vigilance measures to adequately identify risks and prevent serious violations of human rights and fundamental freedoms, risks and serious harms to health and safety and the environment’.120 Critically, the French law creates civil liability for affected business enterprises and victims can seek damages for companies failing to abide by their vigilance plans.121 It is the closest that existing domestic legislation comes to meeting the interpretation of an international human rights law obligation as articulated by the Committee on Economic, Social and Cultural Rights in General Comment 24. The duty of vigilance law adopted in France is considered a potential model for human rights due diligence legislation at the European Union level.122 LEGISLATING FOR HUMAN RIGHTS DUE DILIGENCE IN IRELAND

Irish law does not presently require business enterprises to undertake due diligence in relation to their own operations, supply chains or business relationships in order to prevent, mitigate and account for human rights impacts. While the role of human rights due diligence in advancing business respect for human rights has been recognised by the Irish Government, civil society, political representatives and business representative organisations, no legislation has been adopted or formally proposed to date for the purpose of requiring or incentivising human rights due diligence

117 

Ibid s 16A. Amy Sinclair and Justine Nolan, ‘Modern Slavery Laws in Australia: Steps in the Right Direction?’ (2019) Business and Human Rights Journal 166. 119  Sandra Cossart and others, ‘The French Law on Duty of Care: A Historic Step towards Making Globalization Work for All’ (2017) 2 Business Human Rights Journal 317, 317. See Commission Nationale Consultative des Droits de l’Hommes, ‘Business and Human Rights: Opinion on the Issues Associated with the Application by France of the United Nations’ Guiding Principles’ (2013) 11–13. 120  Ibid 320. 121  Ibid 321. See also ‘Green Groups Ask French Court to Order Total to Disclose Environmental Steps in Uganda’ Reuters (23 October 2019). 122  See, eg, Claire Bright, ‘Creating a Legislative Level-Playing Field in Business and Human Rights at the European Level: Is the French Law on the Duty of Vigilance the Way Forward?’ (8 August 2018). Available at SSRN: https://ssrn.com/abstract=3262787. 118 

38  The Irish Yearbook of International Law 2019 by Irish business enterprises. As evidenced by Ireland’s National Plan discussed ­earlier, the Irish Government has favoured a voluntary and promotional approach to human rights due diligence by both state-owned and private business enterprises. The interpretation of international human rights law by certain treaty monitoring bodies creates an expectation to move beyond such approaches and to ground due diligence in domestic legislation. Creating such obligations for Irish companies would constitute a new departure, with limited direct application of constitutional or statutory human rights protections to private sector activities in Ireland.123 The European Commission has indicated that it may develop mandatory human rights due diligence legislation, based on a detailed study revealing the limited impact of voluntarism in a number of European jurisdictions.124 Such prospective European laws could serve to complement and harmonise national legislative efforts. In terms of existing Irish legislation, regulations giving effect to the nonfinancial reporting requirements for large Irish companies under EU Directive 2014/95 acknowledge but do not mandate human rights due diligence.125 A limited human rights due diligence obligation arguably exists for certain state-owned or financed companies under the ‘public sector duty’ under section 42 to the Irish Human Rights and Equality Commission Act 2014, which requires that such entities identify, take measures and report on human rights and equality issues of relevance to their functions.126 These laws are rudimentary in terms of human rights due diligence, but alongside the examples from other jurisdictions highlighted in the previous section, they merit examination given the potential for further legislative activity from the European Union and evolving interpretation of Ireland’s international human rights law obligations. This section provides an overview of the legal and policy context in Ireland relating to human rights due diligence for business enterprises. It elaborates on the due diligence commitments in Ireland’s National Plan and analyses existing legislation on non-financial reporting and the public sector duty under the Irish Human Rights and Equality Commission Act 2014 as they relate to human rights due diligence. A series of observations are then made regarding potential legislation on human rights due diligence in Ireland. The prospects and possibilities for developing domestic human rights due diligence laws in Ireland are explored, taking into account the prevailing approach of the Irish Government to business and human rights,

123 See, eg, Aoife Nolan, ‘Holding Non-State Actors to Account for Constitutional Economic and Social Rights Violations: Experiences and Lessons from South Africa and Ireland’ (2014) 12 International Journal of Constitutional Law 61; Colm O’Cinneide, ‘Taking Horizontal Effect Seriously: Private Law, Constitutional Rights and the European Convention on Human Rights’ (2003) 4 Hibernian Law Journal 77; Sibo Banda, ‘Taking Indirect Horizontality Seriously in Ireland: A Time to Magnify the Nuance’ (2009) 31 Dublin University Law Journal 263. 124 European Commission, ‘Introductory Remarks by Commissioner Phil Hogan at OECD Global Forum on Responsible Business’ (19 May 2020); European Commission, ‘Study on Due Diligence Requirements through the Supply Chain’ (Brussels, January 2020). 125  European Union (Disclosure of Non-Financial and Diversity Information by certain large undertakings and groups) Regulations 2017, SI 2017/360. 126  See Irish Human Rights and Equality Commission, ‘Implementing the Public Sector Equality and Human Rights Duty’ (March 2019) 5.

Articles—Darcy 39 proposals from civil society, the resistance of business representative organisations to mandatory human rights due diligence, and developments at the European level. The concept of due diligence is present in existing Irish law relating to data protection, money laundering, terrorist financing, banking and the sale or transfer of certain products.127 It features in a number of statutory instruments giving domestic legal effect to European Union directives.128 A defence of due diligence is also recognised in Ireland.129 The Criminal Justice (Corrupt Offences) Act 2018 provides that ‘it shall be a defence for a body corporate against which such proceedings are brought to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence’.130 This legislation provides for extraterritorial jurisdiction for offences of corruption committed outside the State by Irish citizens or companies,131 with the defence of due diligence applicable to both.132 Existing Irish legislation referring to due diligence is generally not addressed to human rights due diligence, aside from the two examples discussed below. Given the transnational nature of business activities, a number of Irish companies operating in the United Kingdom have provided brief reports on their due diligence processes under the Modern Slavery Act 2015.133 From a policy perspective, Ireland’s National Plan on Business and Human Rights includes a number of commitments addressed to human rights due diligence. It notes the Irish Government’s support for the implementation of the European Union regulation on conflict minerals providing for supply chain due diligence.134 The Business and Human Rights Implementation Group established under the National Plan is responsible for the following commitments: —— develop a practical toolkit on business and human rights for public and private entities within 12 months to assist them in their human rights due diligence; —— encourage and support awareness of effective human rights due diligence by state-owned or controlled companies;

127  See, eg, Data Protection Act 1988, s 7; Cluster Munitions and Anti-Personnel Mines Act 2008, s 14(1); Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Act 2018, s 10. 128 See, eg, European Communities (Control of Animal Remedies and their Residues) Regulations 2009, SI 2009/183, s 27(1); European Communities (Intra-Community Transfers of Defence Related Products) Regulations 2011, SI 2011/346, s 15(3)(d); Solicitors (Money Laundering and Terrorist Financing Regulations) 2016, SI 2016/33, ss 13, 14, 18; European Communities (Directive 2009/111/EC) Regulations 2010, SI 2010/627, reg 61. 129  See, eg, Waxy O’Connors Ltd v Judge Riordan & others [2016] IESC 30 (08 June 2016); Reilly v Judge Patwell [2008] IEHC 446 (17 October 2008); CC v Ireland & ors [2006] IESC 33 (23 May 2006). 130  Criminal Justice (Corrupt Offences) Act 2018, s 18(2). 131  Ibid s 12. 132  See, eg, Criminal Justice (Offences Relating to Information Systems) Act 2017, s 9(2); European Union (Birds and Natural Habitats) (Sea-fisheries) Regulations 2013, SI 2013/290, s 23; Consumer Protection Act 2007, s 78; National Minimum Wage Act 2000, s 38; European Union (Timber and Timber Products) (Placing on the Market) Regulations 2014, SI 2014/316 s 4(3). See also Employment (Miscellaneous Provisions) Act 2018, s 10. 133 See, eg, Allied Irish Bank (https://group.aib.ie/content/dam/aib/group/Docs/modern-slaverystatement.pdf); Keelings (https://keelings.ie/corporate/wp-content/uploads/2016/07/modern-slavery.pdf); Dornan (www.dornan.ie/anti-slavery-policy/). 134  National Plan on Business and Human Rights 2017–2020 (n 10) 20.

40  The Irish Yearbook of International Law 2019 —— encourage and support effective human rights due diligence in the context of state support to business and non-governmental organisations (NGOs); —— encourage companies and NGOs funded by the state to carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risk of adverse human rights impacts; and —— encourage and facilitate the sharing of best practice on human rights due diligence, including effective supply chain audits.135 While the Working Outline of Ireland’s National Plan had described due diligence as ‘a central component of a business enterprise’s ability to assess and act upon potential and actual risks to their operations’,136 the National Plan itself is confined to encouraging or supporting human rights due diligence by state-owned or private companies. No commitment is made to developing a regulatory framework to address human rights due diligence for business enterprises. The Minister for Foreign Affairs and Trade, Simon Coveney, has referred to building awareness ‘of the need to exercise effective due diligence on human rights issues, particularly where there is a risk of adverse human rights impacts’.137 The commitments in the National Plan related to human rights due diligence had not been met at the time of writing. The Irish Government’s approach to human rights due diligence was criticised in the independent study commissioned by the Department of Foreign Affairs and Trade to provide a baseline assessment of Ireland’s legislative and regulatory framework for business and human rights. The voluntary approach, whereby the role of the State is to encourage and support rather than to ensure compliance by way of a mandatory regime … may derive results in some cases [but], it may not result in compliance across the board, and indeed may take longer to achieve compliance.138

It was suggested that consideration be given to mandatory human rights due diligence, to incentives or benefits for business enterprises undertaking human rights due diligence, and to making due diligence a requirement for eligibility for state investment, participation in trade missions or listing on the Irish Stock Exchange.139 Companies doing business with or receiving support from the State, including in their overseas activities, should be required to undertake human rights due diligence according to the Baseline Assessment: [H]uman rights due diligence ought to be considered as a minimum requirement for State companies, businesses that obtain government contracts through the public procurement process, businesses that Ireland engages with through its embassies and State agencies and bodies that derive State support and that act outside the jurisdiction. Human rights due diligence should include reporting on human rights practices outside the jurisdiction so that companies that provide human rights reporting in Ireland, whether due to being domiciled 135 

Ibid 18–19. Department of Foreign Affairs and Trade, Working Outline of Ireland’s National Plan on Business and Human Rights 2016–2019, 6, available at: www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesand​ policies/int-priorities/humanrights/Working-Outline-of-Irelands-National-Plan-on-Business-and-HumanRights-2016---2019.pdf. 137  Dáil Eireann Debates, Thursday, 4 October 2018. 138  Baseline Assessment (n 38). 139  Ibid 21. 136 

Articles—Darcy 41 in Ireland, or otherwise, must also report on the human rights of their out of territory operations.140

Due diligence of this nature is especially relevant for high-risk industries or companies operating in conflict jurisdictions, with the Baseline Assessment emphasising the need for ‘clear guidance’ for such companies on human rights due diligence.141 The recommendations in the Baseline Assessment concerning human rights due diligence echo the calls from civil society organisations and the Irish Human Rights and Equality Commission, discussed further below, which also advocated moving beyond a voluntary approach. The Minister for Foreign Affairs and Trade has stated that the findings in the Baseline Assessment should guide the work of the Business and Human Rights Implementation Group in meeting the commitments in the National Plan.142 Specifically in relation to the recommendation of mandatory human rights due diligence, Minister Coveney stated that he would ‘await the outcome of the implementation group’s deliberations on this issue before moving forward with specific policy proposals’.143 Before considering the experience of other jurisdictions and potential European-level legislative activity, this section first turns to existing Irish legislation and regulations of relevance. As will become apparent, this mapping reveals the limitations of existing laws as regards human rights due diligence for business enterprises. Regulations on Non-Financial Reporting 2017 Irish company law does not generally establish human rights obligations for companies or company directors, although recent reporting requirements incorporated into this body of law make direct reference to human rights due diligence. The European Union (Disclosure of Non-Financial and Diversity Information by certain large undertakings and groups) Regulations 2017 implementing EU Directive 2014/95 require the directors of companies of a certain size to report annually on human rights, the environment and other issues, and refer specifically to ‘due diligence processes implemented’.144 This obligation is a new departure for Irish company law, under which the duties of directors are generally owed to the company itself. In the performance of their functions, directors are required under the Companies Act 2014 to only ‘have regard’ for ‘the interests of the company’s employees in general, as well as the interests of its members’.145 Efforts to follow the model of directors’ duties in the United Kingdom Companies Act 2006, which requires directors to have regard to the interests of the company, its members, and its employees, as well 140 

Ibid 22. Ibid 45. See also OECD, Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, 3rd edn (OECD, 2016); International Alert, ‘Human Rights Due Diligence in Conflict-Affected Settings; Guidance for Extractive Industries’ (2018). 142  Minister for Foreign Affairs and Trade, Simon Coveney, Dáil Eireann Debates, Thursday, 4 October 2018. 143 Minister for Foreign Affairs and Trade, Simon Coveney, Dáil Eireann Debates, Thursday, 12 November 2019. 144  SI 2017/360, s 5(2)(d). 145  Companies Act 2014, s 224(1). 141 

42  The Irish Yearbook of International Law 2019 as ‘the impact of the company’s operations on communities and the environment’ were rejected in the Irish context.146 The 2017 Regulations require reporting on human rights for certain companies, and highlight the relevance of human rights due diligence, but do not create a legal obligation per se to respect human rights or undertake due diligence. Reporting on the non-financial aspects of a company’s activities has become a common legal requirement in recent years. Under Ireland’s Companies Act 2014, for example, annual directors’ reports must describe the principal risks and uncertainties facing a company and where appropriate ‘an analysis using non-financial key performance indicators, including information relating to environmental and employee matters’.147 That being so, such indicators are understood as ‘factors by reference to which the development, performance and financial position of the business of the company can be measured effectively’.148 The 2017 Regulations on nonfinancial reporting aim to give effect to EU Directive 2014/95, which itself seeks to have companies consider and disclose their impacts on human rights, the environment and other matters, rather than solely account for how such issues may affect the company itself. The primary aim is to introduce a greater degree of transparency, rather than creating new substantive obligations for business enterprises. For the Minister for Business, Enterprise and Innovation, Francis Fitzgerald: I believe that public disclosure of this type will help to encourage sustainable growth in Irish enterprise. I expect that it will also be of interest to investors, consumers, non-governmental organisations and wider society. A flexible approach has been taken in framing these new transparency requirements, which bears in mind the needs of both companies and those who will rely on the new disclosures.149

Although focusing only on non-financial reporting requirements, the carefully circumscribed scope of the statutory instrument to certain large companies identifies a limited, yet important class of business enterprises that could be the focus of future mandatory human rights due diligence. It also provides for enforcement and sanctions for failure to comply with these requirements. The 2017 Regulations on non-financial reporting apply to the directors of companies, including holding companies, which qualify as a large company under section 280H of the Companies Act 2014, have an average number of employees exceeding 500, and are ‘an ineligible entity’, meaning, for example, that they have transferable securities listed on a regulated market.150 The directors’ annual report must contain a non-financial statement containing information ‘to the extent

146 Brian Conroy, The Companies Act 2014: An Annotation (Round Hall, 2015) 330–31. See also Companies Act 2014, s 224(2); O’Sullivan v Conroy Gold and Natural Resources Plc [2017] IEHC 543, 98. 147  Companies Act 2014, s 327(1)–(3). 148  Ibid s 327(7). 149  Department of Business, Enterprise and Innovation, Press Release, ‘New Rules Will See Some of Ireland’s Biggest Companies Publishing Information on a Range of Policies from Gender Diversity on Boards of Directors to Greenhouse Gas Emissions (21 August 2017), available at: https://dbei.gov.ie/en/ News-And-Events/Department-News/2017/August/21082017.html. 150  SI 2017/360, s 4(1). On ‘ineligible entities’ see Companies (Accounting) Act 2017, s 12.

Articles—Darcy 43 necessary for an understanding of the development, performance, position and impact of its activity’ relating to: (i) environmental matters; (ii) social and employee matters; (iii) respect for human rights; (iv) bribery and corruption.151 The statement shall include a description of policies pursued in relation to such matters and ‘due diligence processes implemented and a description of the outcome of those policies’.152 The Regulations do not mandate the undertaking of due diligence, but rather require the business enterprises in question to report on such processes as have been undertaken. Directors must also report on the environmental, human rights and other risks linked to the company’s operations and ‘where relevant and proportionate … its business relationships, products or services which are likely to cause adverse impacts in those areas, and … how the applicable company manages those risks’.153 If companies do not pursue policies in these areas, then directors are required under the legislation to ‘include a clear and reasoned explanation for not so doing’.154 The 2017 Regulations thus adopt a ‘comply or explain’ approach.155 Applicable companies are directed to rely upon national, European or international frameworks in preparing their non-financial statements.156 In addition to the reporting requirements on the environment, human rights, and other issues, large companies must also include a ‘diversity report’ in their corporate governance statement relating to the composition of the company’s board with regard to aspects of age, gender or educational and professional backgrounds.157 Failure to comply with the reporting duty under the 2017 Regulation constitutes an offence, for which an individual director ‘shall be liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 6 months, or to both’.158 A class A fine can range from €4,001 to €5,000.159 The Office of the Director of Corporate Enforcement, a statutory body which enforces and encourages compliance with the requirements of the Companies Acts, has a recognised role in enforcing the Regulations.160 As is evident, the 2017 Regulations on non-financial reporting do not require human rights due diligence by the business enterprises to which they apply, but they have been described as a ‘useful foundation upon which mandatory human rights due diligence could be developed’.161 For state-owned or financed companies, a soft obligation loosely approximating human rights due diligence already exists under the public sector duty enshrined in the Irish Human Rights and Equality Commission Act 2014.

151 

Ibid s 5(2)(b). Ibid s 5(2)(d). Ibid s 5(2). 154  Ibid s 5(3). 155 See further, John Quinn and Barry Connolly, ‘The Non-Financial Information Directive: An Assessment of Its Impact on Corporate Social Responsibility’ (2017) 14 European Company Law 15. 156  SI 2017/360, s 5(7). 157  Ibid s 6 (1)–(2). 158  Ibid, s 8. 159  Fines Act 2019, s 4. 160  SI 2017/360, s 9. 161  Baseline Assessment (n 38) 21. 152  153 

44  The Irish Yearbook of International Law 2019 Irish Human Rights and Equality Commission Act 2014 The Irish Human Rights and Equality Commission is Ireland’s national human rights institution. As a strategic priority, the Commission seeks to hold ‘government, public bodies, agencies and businesses to account’.162 Including a focus on business enterprises is in keeping with the recognition of the part played by national human rights institutes in implementing the UN Guiding Principles on business and human rights. Such institutions ‘have an important role to play in helping States identify whether relevant laws are aligned with their human rights obligations and are being effectively enforced, and in providing guidance on human rights also to business enterprises and other non-State actors’.163 The Irish Human Rights and Equality Commission made significant contributions during the consultation on developing Ireland’s National Plan, has raised business and human rights issues with the UN human rights bodies, and is represented on the Business and Human Rights Implementation Group.164 Notwithstanding, the Commission could play an enhanced role in ensuring business respect for human rights Ireland through a more concerted application of the public sector duty of state-owned or financed companies under section 42 of the Irish Human Rights and Equality Commission Act 2014. Furthermore, this legislation could be elaborated for the purpose of mandating human rights due diligence by business enterprises with considerable state involvement and expanding the role of the Commission as a possible oversight body. The 2014 Act requires public entities to identify, take measures and report on human rights and equality issues of relevance to their functions. Under section 42, a public body shall ‘have regard’ to the need to eliminate discrimination, promote equality of opportunity and treatment, and ‘protect the human rights of its members, staff and the persons to whom it provides services’.165 A very limited form of human rights due diligence is provided for under the Act: a public body shall, having regard to the functions and purpose of the body and to its size and the resources available to it— (a) set out in a manner that is accessible to the public in its strategic plan … an assessment of the human rights and equality issues it believes to be relevant to the functions and purpose of the body and the policies, plans and actions in place or proposed to be put in place to address those issues, and (b) report in a manner that is accessible to the public on developments and achievements in that regard in its annual report.166

162 

Irish Human Rights and Equality Commission, ‘Strategy Statement 2019–2021’ (2019) 6. United Nations Guiding Principles (n 2) 8–9. eg, Irish Human Rights and Equality Commission (n 13); Irish Human Rights and Equality Commission, ‘Submission to the UN Committee on the Elimination of Racial Discrimination on the List of Themes for the Examination of Ireland on its Combined 5th to 9th Report’ (July 2019) 24–25. 165  Irish Human Rights and Equality Commission Act 2014, s 42(1). 166  Ibid s 42(2). 163 

164  See,

Articles—Darcy 45 According to the Irish Human Rights and Equality Commission, the public sector equality and human rights duty applies not only to government departments, local authorities, and other public authorities, but also to: a company wholly or partly financed by or on behalf of a Government Minister, in pursuance of powers conferred by or under another enactment a company where the majority of shares are held by or on behalf of a Government Minister.167

Furthermore, any other person, body, organisation or group financed wholly or partly out of moneys provided by the Oireachtas, may, in the public interest, be prescribed as a public body by the Minister for Justice and Equality, following consultation with the Irish Human Rights and Equality Commission.168

A number of government departments, local authorities and An Garda Síochána have undertaken measures relating to the public sector duty on human rights and equality, although as of yet, it is not apparent that any state-owned or financed companies have acknowledged the application of the public sector duty to them or taken the required measures in this respect.169 The requirements under the public sector duty are far less prescriptive than human rights due diligence as understood in the UN Guiding Principles, but nevertheless their extension to state-owned or financed companies constitutes a valuable recognition of the scope of the State’s human rights obligations. The Commission’s role in relation to the public sector duty is largely advisory: to assist public bodies by offering guidance and encouragement in the development of policies and the exercise of good practice in relation to human rights and equality.170 It can also prepare guidelines or codes of practice regarding ‘the development by public bodies of performance measures, operational standards and written preventative strategies’ on human rights and equality.171 Where the Irish Human Rights and Equality Commission considers that a public body has failed to perform its functions consistent with the public sector duty, it may invite the body in question to carry out a review of its performance or prepare and implement an action plan in respect of its duty.172 The implementation of the public sector duty remains nascent, none more so than in the case of state-owned or financed companies.

167 

Irish Human Rights and Equality Commission (n 126) 5. Ibid. For a list of Irish semi-state agencies, including those constituted as companies, see: www. audit.gov.ie/en/About-Us/WHO-WE-AUDIT/State-Bodies/. 169  See generally Niall Crowley, ‘A duty to Value: Implementing the Public Sector Equality and Human Rights Duty’ (2017) 65(3) Administration 141, 156–58; Irish Human Rights and Equality Commission, ‘Implementing the Public Sector Equality and Human Rights Duty – Conference Report’ (November 2017); Irish Human Rights and Equality Commission (n 126). 170  Irish Human Rights and Equality Commission Act 2014, s 42(3). 171  Ibid s 42(4). See Irish Human Rights and Equality Commission (n 126). 172  Irish Human Rights and Equality Commission Act 2014, s 42(5). 168 

46  The Irish Yearbook of International Law 2019 Possibilities and Prospects Notwithstanding the Irish Government’s commitment to implementing the UN Guiding Principles and its support for the OECD Guidelines for Multinational Enterprises, both of which emphasise human rights due diligence by business enterprises, the concept has yet to be embedded in either Irish law or business practice.173 This is a reflection both of the non-binding nature of those instruments (and hence the attempt to incorporate human rights due diligence in the proposed treaty) and the soft promotional approach taken in Ireland’s National Plan. The commitments to encourage Irish business enterprises, whether state-owned or private, to undertake human rights due diligence remain unfulfilled at the time of writing. The limitations of this voluntary approach are becoming increasingly evident and have led to calls from companies, investors, and civil society organisations for mandatory human rights due diligence within the European Union.174 Finland, under its Presidency of the European Union, pointed to ‘the need for further EU-wide initiatives, including regulation on mandatory human rights due diligence’.175 The European Union’s mooted legislative initiative may be the most likely stimulus for the enactment of human rights due diligence laws in Ireland, although Member States would not be precluded from adopting complementary national legislation in the interim or subsequently. Depending on the scope of the EU initiative, this may indeed be necessary to align with certain treaty body expectations under international human rights law. There have been several calls for the development of mandatory human rights due diligence laws in Ireland. The Irish Human Rights and Equality Commission recommended that the Government ‘should make due diligence a mandatory requirement with a legislative underpinning, especially where the State-business nexus exists or where Irish companies operate in conflict-affected areas or countries with poor human rights records’.176 Trócaire, one of Ireland’s largest civil society organisations, has similarly called for ‘mandatory human rights due diligence and environmental impact assessments in order to avoid further violations of fundamental rights’.177 The Irish Congress of Trade Unions recommended that the Irish Government introduce human rights due diligence in all its interactions with business ‘such as through 173 

On Irish business practice in this context, see Centre for Social Innovation (n 42) 20–22. eg, Barry Callebut et al, ‘Cocoa ompanies call for human rights and environmental due diligence requirements, 2 December 2019 available at: www.voicenetwork.eu/2019/12/cocoa-companiescall-for-human-rights-and-environmental-due-diligence-requirements/; Investor Alliance for Human Rights, ‘The Investor Case for Mandatory Human Rights Due Diligence’ (2019), available at: https:// investorsforhumanrights.org/sites/default/files/attachments/2019-12/The%20Investor%20Case%20 for%20mHRDD%20-%20FINAL%20for%2011.25%20launch.pdf; European Coalition for Corporate Justice et al, ‘A Call for EU Human Rights and Environmental Due Diligence Legislation (2 December 2019), available at: http://corporatejustice.org/news/final_cso_eu_due_diligence_statement_2.12.19. pdf; Business and Human Rights Resource Centre, ‘Our Responsibility in a Globalised World; A Call for Mandatory Human Rights and Environmental Due Diligence Legislation’ (December 2019), available at: www.business-humanrights.org/sites/default/files/BusinessStatement_09-12-2019.pdf; European Parliament Working Group on Responsible Business Conduct, ‘Shadow EU Action Plan on the Implementation of the UN Guiding Principles on Business and Human Rights within the EU’ (19 March 2019) 6. 175  Finnish Government, ‘Agenda for Action on Business and Human Rights’ (2 December 2019) 3. 176  Irish Human Rights and Equality Commission (n 13) 19. 177  Trócaire (n 13) 47. 174  See,

Articles—Darcy 47 contracts, investment policies, procurement processes, legislation, or regulation’.178 The Baseline Assessment suggested that legislative developments in other European jurisdictions could be followed in the Irish context.179 For the Centre for Social Innovation at Trinity College Dublin, ‘[a]s other States move towards mandatory human rights due diligence, Ireland should not be left behind’.180 Business representative organisations in Ireland have expressed understandable concern at the potential burden of requiring human rights due diligence by certain companies, particularly small and medium size enterprises. The Irish Business and Employers Confederation previously expressed its dissatisfaction with EU legislation on non-financial reporting, given that reporting on due diligence would be challenging for companies with ‘extensive supply chains’.181 It supported the development of Ireland’s National Plan but preferably ‘without unfair costs or unnecessary additional administrative or regulatory burdens’.182 Chambers Ireland considered that human rights due diligence could be useful ‘as a strategic tool’ for companies, but stated that it ‘must not be made mandatory’: The additional administrative burden that would be imposed on Irish businesses would impede competitiveness and drain scarce resources and capacity. Again, there is the issue of relative burden, as larger companies would be in a better position to dedicate resources to reporting on their policies. Therefore we welcome the position of the Department […] that companies should be encouraged to carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risk of adverse human rights impacts.183

An element of proportionality in relation to human rights due diligence for business enterprises is key in this context, as recognised in the UN Guiding Principles, the OECD Guidelines, and in successive drafts of the proposed business and human rights treaty. As the Baseline Assessment states, [h]uman rights due diligence of a mandatory rather than discretionary character can therefore be developed in a manner that takes account of the size of businesses and also serves to give effect to the imperative to develop business in a human rights compliant manner.184

It also needs to be borne in mind, as the Working Group on business and human rights has observed, that ‘business actors are not opposed to legislation when it helps to level the playing field and provides predictability’.185 To complement or pave the way for any future EU law, mandating human rights due diligence by companies in Ireland could be embedded in Irish law by the amendment of existing legislation which touches directly or implicitly on human rights due diligence, specifically the 2017 Regulations on non-financial reporting and the

178 

Irish Congress of Trade Unions (n 13). See also Amnesty International (n 13) 4. Irish Congress of Trade Unions (n 13). 180  See Centre for Social Innovation (n 42) 29. 181  Ibec, ‘Move to Agree New EU Reporting Requirements’ Agenda (March 2014), available at: http:// agenda.ibec.ie/vbqjm2nsmby. 182  Ibec, ‘Submission on Ireland’s National Plan on Business and Human Rights’ (1 March 2015) 5. 183  Chambers Ireland (n 14). 184  Baseline Assessment (n 38) 21. 185  Report of the United Nations Working Group (n 42) 20. 179 

48  The Irish Yearbook of International Law 2019 Irish Human Rights and Equality Commission Act 2014, or the development of new legislation which draws on such laws and related legislation from other jurisdictions. The 2017 Regulations and section 42 of the Irish Human Rights and Equality Commission Act 2014 provide bases upon which a legal requirement for human rights due diligence by companies based in Ireland could be built. Such laws already place certain human rights related responsibilities on discrete but significant categories of companies, subject to either penalties or some oversight by specialist statutory bodies. It is evident, however, that the current laws do not require human rights due diligence and fall short in various ways. Amending or new legislation would need to remedy such shortcomings by addressing the precise obligations being imposed, the companies that are subject to the legislation, the scope of human rights covered, geographical scope, applicable penalties and means of enforcement, and the role of specialist oversight. Legislation would need to stipulate explicitly that human rights due diligence must be undertaken by relevant companies, and not only that they report on due diligence as may have been undertaken. Further specification would also be necessary regarding what is required of business enterprises, by elaborating on the meaning and modalities of due diligence to be required under the legislation. The schema set out in the UN Guiding Principles on business and human rights and the draft business and human rights treaty, as discussed in earlier, could be drawn upon in this respect, although further elaboration would be required, particularly in relation to a company’s supply chain. In the development of human rights due diligence legislation, the UN Working Group on business and human rights has emphasised the need for ‘[r]obust human rights due diligence as opposed to “tick box” approaches, as prevention and implementation must be the end goal’.186 It has also pointed to the importance of meaningful disclosure, transparency and follow-up, and the inclusion of public procurement within due diligence processes.187 In terms of companies falling within the scope of human rights due diligence legislation, drawing on existing Irish laws might assuage the stated concerns of business representative organisations regarding the potential scope of mandatory human rights due diligence, given the present focus on state-owned or financed companies per section 42 of the Irish Human Rights and Equality Commission Act, and on large companies meeting the set under the 2017 Regulations on non-financial reporting. Both laws cover mostly large and potentially influential business enterprises, although it bears noting that small and medium sized enterprises can also harm human rights and are included within the corporate responsibility to respect human rights under the UN Guiding Principles: ‘It applies to all business enterprises, regardless of size, sector, operational context, ownership and structure’.188 The companies to which a human rights due diligence obligation applies would need to be clearly stated in the legislation, which would also need to address the issue of subsidiary companies, as well as due diligence addressing business relationships

186 

Ibid 19. Ibid 18–19. 188  Ibid 3–4, 19. 187 

Articles—Darcy 49 and a company’s supply chain, including actual or potential human rights risks outside of Ireland.189 The scope and complexity of global supply chains may complicate but should not deter human rights due diligence efforts.190 Legislation in this sphere could begin by adopting a tiered approach by creating a binding obligation for those companies addressed by the 2017 Regulations, as well as state-controlled or financed companies, and then encouraging voluntary compliance by other smaller business enterprises through the use of incentives as an initial measure. Human rights due diligence legislation will need to clarify which human rights are to be addressed by the companies required to undertake due diligence. The Guiding Principles have adopted an overly narrow focus on the so-called international bill of rights, which includes the Universal Declaration of Human Rights and the two international covenants, as well as fundamental rights recognised by the International Labour Organisation.191 UN treaty monitoring bodies have eschewed this narrower approach. The non-financial reporting regulations do not define what is meant by human rights, whereas in relation to the public sector duty, the Irish Human Rights and Equality Commission Act refers to human rights provided for in the Constitution, in ‘any agreement, treaty or convention to which the State is a party’, as well as those ‘inherent in persons as human beings’ and ‘necessary to enable each person to live with dignity and participate in the economic, social or cultural life in the State’.192 This expansive understanding, which is more in line with international human rights law than the UN Guiding Principles, is then curtailed by the public sector duty being limited to the protection of the human rights of a public body’s ‘members, staff, and persons to whom it provides services’.193 Businesses enterprises can harm the human rights of many other individuals or groups, whether workers in the supply chain or communities affected by corporate activities. In this respect, there is merit also to incorporating environmental due diligence alongside human rights in future mandatory legislation, an issue that is already referenced in the 2017 Regulations and is proposed in the potential treaty on business and human rights. The European Commission study of due diligence, which examined both human rights and environmental due diligence, reported on a detailed survey in which respondents asserted that the existing legal landscape ‘does not provide companies with legal certainty about their human rights and environmental due diligence obligations, and is not perceived as efficient, coherent and effective’.194 Due diligence legislation must also take into account the gendered nature of corporate human rights harms.195 The UN Working Group on business and human rights has recommended that ‘States should integrate a gender perspective in 189 

See SI 2017/360, s 5(11). Abigail McGregor and Jacob Smit, ‘Risk Management: Human Rights Due Diligence in Corporate Global Supply Chains’ (2017) 69(1) Governance Directions 16; Sarah Carpenter, ‘Developing Effective Programmes to Protect Modern Corporate Supply Chains against Human Trafficking and Slavery’ (2020) 2(3) Journal of Supply Chain Management, Logistics and Procurement 233. 191  United Nations Guiding Principles (n 2) 13. 192  Irish Human Rights and Equality Act 2014, s 2(1). 193  Ibid s 42(1). 194  European Commission, ‘Study on Due Diligence Requirements’ (n 124) 16. 195  See, eg, Joanne Bourke Martignoni and Elizabeth Umlas, Gender Responsive Due Diligence for Business Actors: Human Rights-based Approaches (Geneva Academy Briefing No. 12, December 2018). 190 

50  The Irish Yearbook of International Law 2019 mandatory human rights due diligence laws, including those concerning modern slavery and transparency in supply chains’.196 In legislating for human rights due diligence, a narrow approach focusing only on a particular form of human rights abuse, such as child labour or modern ­slavery, may prove appealing as a means of generating sufficient political or business support at the outset. Business representative organisations may be less likely to publicly oppose legislation that seeks to prevent such harms. Nonetheless, a broader approach which encompasses the full range of human rights which can potentially be harmed by business activities would ensure comprehensiveness and alignment with the State’s duty to protect under international human rights law. Such breadth might be tempered by applying the human rights due diligence obligation, at least initially, to state-owned or financed companies and other large business enterprises, such as those covered by the non-financial reporting Regulations 2017. With regard to enforcement and oversight, a hybrid law drawing on the current Irish legislation examined would seem appropriate. While the existing non-financial regulations in Ireland provide for penalties for non-compliance and an enforcement role for the Director of Corporate Enforcement, no body is tasked with responsibility for assessing the human rights policies and practices of relevant business enterprises. The Irish Human Rights and Equality Commission could potentially fulfil such a role. On the other hand, the absence of robust enforcement for failure to comply with the public sector duty under the Irish Human Rights and Equality Commission Act may explain the seeming failure by any state-controlled or financed company to undertake the required measures under section 42. Revised legislation ought to provide for effective enforcement and for an appropriate oversight mechanism to assess human rights due diligence policies and practices of the affected companies, alongside the existing advisory role of the Irish Human Rights and Equality Commission. The Commission itself would seem suitable for such a role given its considerable experience and assigned mandate concerning human rights, although the harder aspects of enforcement would be a matter for a body such as the Director of Corporate Enforcement. Meaningful oversight and enforcement would contribute to avoiding ‘cosmetic compliance’ by companies with human rights due diligence laws.197 The issue of remedies for victims of corporate human rights harms must be borne in mind in the context of developing human rights due diligence. According to the Working Group on business and human rights, such processes should be complemented by ‘active engagement in the remediation of adverse human rights impacts caused or contributed to by the enterprise’.198 Neither section 42 of the Irish Human Rights and Equality Commission Act nor the 2017 Regulations on non-financial reporting provide an avenue for remedies for victims of human rights violations

196  United Nations Human Rights Council, Gender Dimensions of the Guiding Principles on Business and Human Rights; Report of the United Nations Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, A/HRC/41/43 (23 May 2019) 14. 197  Ingrid Landau, ‘Human Rights Due Diligence and the Risk of Cosmetic Compliance’ (2019) 20 Melbourne Journal of International Law 221. 198  Report of the United Nations Working Group (n 42) 5.

Articles—Darcy 51 caused or contributed to by business enterprises. While the 2017 Regulation provides for criminal sanctions against company directors, the prescribed offences relate to failing to disclose the relevant non-financial information in their annual reports, as opposed to causing harm to human rights or the environment. The Irish Human Rights and Equality Act 2014 seeks to preclude any liability on the part of relevant public bodies for failing to fulfil the public sector duty. Section 42 specifically states that ‘[n]othing in this section shall of itself operate to confer a cause of action on any person against a public body in respect of the performance by it of its functions under subsection (1)’.199 The Irish Human Rights and Equality Commission Act should be read in line with the European Convention on Human Rights Act 2003, which provides that ‘every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions’, and sets out that any person ‘who has suffered injury, loss or damage as a result of a contravention … may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court’.200 If state-owned or financed companies are considered as ‘organs of the State’ under this legislation, then a possible cause of action before the High Court arises for breach of rights under the European Convention.201 In terms of non-judicial remedies, the UN Guiding Principles anticipate a potential role for national human rights institutions so that ‘[g]aps in the provision of remedy for business-related human rights abuses could be filled’.202 Although access to remedy is a separate pillar of the UN Guiding Principles and human rights due diligence is largely a preventive process, the provision of remedy remains a core obligation of the State under international human rights law. France’s duty of vigilance law, as noted above, includes remedial elements addressed to victims alongside the due diligence requirements imposed on large French business enterprises. Existing legislation would require amendment in the Dáil, although the 2017 Regulations on non-financial regulations were amended by the Minister for Jobs, Enterprise and Innovation in relation to other matters.203 If the Government decides against putting forward legislation, a Private Members Bill could serve as a vehicle for placing mandatory human rights due diligence on the legislative agenda and articulating the content of such a potential law, notwithstanding the recent and possibly unconstitutional reliance on the ‘money message’ mechanism by the current Government to block opposition legislation.204 The Control of Economic Activity

199 

Irish Human Rights and Equality Commission Act 2014, s 42(11). European Convention on Human Rights Act 2003, s 3. 201  On the definition of organs of the State, see Padraic Kenna, ‘Local Authorities and the European Convention on Human Rights Act 2003’ (2010) Irish Human Rights Law Review 1, 8–10; Colin Scott, ‘Variety in Public Agencies’ (UCD Geary Institute Discussion Paper Series, 4 February 2008), available at: www.ucd.ie/geary/static/publications/workingpapers/gearywp200804.pdf. See also Reid v Industrial Development Agency (Ireland) & ors [2013] IEHC 433; Byrne & another v National Asset Management Agency [2018] IEHC 526. 202  United Nations Guiding Principles (n 2) 24. 203  European Union (Disclosure of Non-Financial and Diversity Information by certain large undertakings and groups)(Amendment) Regulations 2018, SI 2018/410. 204  See Eoin Daly and David Kenny, ‘Government Blocking of Legislation is Constitutionally Dubious’ Irish Times (14 June 2019). 200 

52  The Irish Yearbook of International Law 2019 (Occupied Territories) Bill 2018 has been obstructed in this way, despite considerable support from various political parties, underpinned by international and national civil society endorsement.205 To prompt the development of legislation for human rights due diligence, it would be open to other bodies, including civil society organisations, the Irish Human Rights and Equality Commission and the Business and Human Rights Implementation Group to put forward draft legislation addressed to mandatory human rights due diligence for business enterprises. Domestic legislative efforts may serve to complement or give effect to proposed European Union laws in this area. CONCLUSION

Business and human rights has become one of the central areas of concern of the UN human rights bodies and is increasingly addressed by other international and regional intergovernmental organisations. Civil society organisations have been prioritising efforts to ensure that business enterprises meet their human rights responsibilities and that states fulfil their international law obligations in this context. Ireland hesitantly embraced the business and human rights agenda at first, before engaging in a broad consultation with business representative organisations and civil society, and publishing a National Plan aimed at implementing the UN Guiding Principles on business and human rights in 2017. In the National Plan, the Irish Government has taken a light-touch approach to business and human rights which favours voluntarism and promotional efforts aimed at encouraging state-owned or private companies to respect human rights. The development of legislation to address the human rights responsibilities of Irish companies has not been considered necessary by the Government thus far to meet the goal of putting ‘human rights at the heart of all our business practices’.206 Human rights due diligence occupies a central place in business and human rights and is viewed as a key vehicle for embedding human rights in business activity. The concept is present in both the UN Guiding Principles and in the proposed treaty on business and human rights, although they differ in their approaches and standing. The Guiding Principles elaborate on human rights due diligence in some detail and effectively recommend it to companies and states, whereas successive drafts of the treaty set out an obligation which would require States parties to mandate human rights due diligence by business enterprises under their jurisdiction, albeit one which is not yet in force. Human rights treaty monitoring bodies, such as the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child, have taken the view that human rights due diligence for companies is necessary to meet the State’s duty to protect under international human rights law. As discussed earlier, a number of countries have developed legislation addressed to human rights 205  See, eg, Al-Haq, ‘Two Voting Stages Left: An Explainer on the Passage of the Occupied Territories Bill through the lower House of the Irish Parliament’ (5 February 2019), available at: www.alhaq.org/ advocacy/6109.html. 206  National Plan on Business and Human Rights 2017–2020 (n 10) Foreword, 5.

Articles—Darcy 53 due diligence in recent years, with some requiring that large companies undertake due diligence in relation to actual and potential risks to human rights, either broadly defined or more narrowly focused on abusive practices such as modern slavery or child labour. Calls for mandatory human rights due diligence are no longer the preserve of civil society organisations, as companies and investors push for states to adopt legislation in this context. Ireland does not require that companies undertake human rights due diligence as understood in the UN Guiding Principles. Existing legislation, as discussed earlier, only touches on due diligence: the Irish Human Rights and Equality Commission Act 2014 addresses human rights responsibilities of certain state-owned or financed companies, but does so almost inadvertently, and provides for a limited form of due diligence that is not underpinned by penalties or enforcement. The 2017 Regulations on non-financial reporting require the directors of certain large companies to report on human rights and other issues, including due diligence as may have been undertaken, but without requiring it. Nevertheless, such laws provide a valuable starting point for the potential elaboration of mandatory human rights due diligence for business enterprises in Ireland. Developing legislation in this context would allow Ireland to avoid becoming a laggard as the embedding of business and human rights in international, regional and national law and policy progresses. Legislation would need to clarify the scope of human rights due diligence obligations in terms of which companies are covered and which human rights are to be addressed, as well as the prescribed form of due diligence processes. Amongst other elements, it would also need to ensure robust monitoring and effective enforcement, bearing in mind the necessity of access to remedies for affected individuals and communities. Such legislative developments may seem unlikely in the Irish context in the absence of European Union laws requiring Member States to have in place regulatory regimes addressing human rights due diligence. The prospects of such legislation at the European level underscores the parallel expectation of human rights bodies that states embed human rights due diligence for business enterprises in their national legal systems in order to give meaningful effect to the UN Guiding Principles on business and human rights.

54

Was Rockall Conquered? An Application of the Law of Territory to a Rock in the North Atlantic Ocean RÍÁN DERRIG*

T

HIS ARTICLE APPLIES customary international law on the acquisition of territory to the UK’s claim to territorial sovereignty over Rockall. Most commentators addressing Rockall in legal scholarship have focused their analysis on issues raised by the rock under the legal regimes of the law of the sea, and EU law governing the Common Fisheries Policy, while accepting the UK claim to Rockall as a piece of territory. The core of this article analyses acts the UK Government has undertaken since 1955 concerning Rockall from the perspective of the law of territory. I conclude that were another state to advance a competing territorial claim, it is most likely that in a tribunal setting these acts would be considered insufficient to establish UK title through principles of customary international law governing the acquisition of territory. I indicate the types of sources and research that would be required to appraise the merits of possible competing territorial claims on the part of Ireland, Iceland or Denmark. INTRODUCTION

Rockall is a rock in the North-East Atlantic Ocean. It stands above sea level at high tide, about 20 metres high, and 24 metres by 30 metres at its base. It is isolated, the nearest points of land being the Icelandic mainland 647 kilometres northward; the Faroe Islands 518 kilometres north-east; Ardnamurchan Point on the Scottish mainland 465 kilometres east (with the Scottish island of St Kilda, itself isolated and uninhabited, closer at 266 km to the east); and Gweedore on the Irish mainland 364 kilometres south-east.1 In 1955 the Royal Navy, acting on ‘Queen’s Instructions’, pursuant to a decision of the UK Prime Minister Anthony Eden, claimed Rockall as a piece of territory due to it being positioned in the flight path of tactical nuclear

*  Postdoctoral Research Fellow, Center for Global Constitutionalism, WZB Berlin Social Science Center. Email: [email protected]. I am grateful to Nehal Bhuta, Xiaohang Chen, Hanna Eklund, Francesca Iurlaro, Rebecca Mignot-Mahdavi, Emma Nyhan, Dimitri van den Meerssche, Stavros ­Pantazopoulos, Marie-Catherine Petersmann, Nico Weber, Julie Wetterslev, Tleuzhan Zhunossova and the anonymous reviewers for comments and criticism. 1 ED Brown, ‘Rockall and the Limits of National Jurisdiction of the UK: Part II’ (October 1978) Marine Policy 275, 289.

56  The Irish Yearbook of International Law 2019 weapons being tested in the Scottish Outer Hebrides.2 In the 1970s and 1980s this assertion of territorial sovereignty over Rockall became most contentious when Ireland, Denmark and Iceland protested the UK Government’s attempt to use the rock as a basis for its designation of large areas of Atlantic seabed (and potential oil and gas resources) as part of the UK’s continental shelf, and to provide basepoints for delimitation of a 200-mile fishing zone. At different times all three protesting parties responded by making their own counter-claims and designations, disregarding Rockall’s ability to support such claims for the UK, and successive Irish governments have in addition persistently noted their rejection of the UK claim to title over Rockall itself – as a parcel of territory.3 Neither Iceland nor Denmark (on behalf of the Faroe Islands) have made territorial claims of their own to the rock itself, but have avoided acknowledging UK territorial sovereignty over Rockall.4 The Irish position has been to refrain from advancing a competing territorial claim (it would seem without foreclosing the possibility of doing so in the future), while successfully relying on non-territorial legal regimes to pursue state interests in this area of the North-East Atlantic.5 The first example of this approach was within the legal regime of the law of the sea, when Ireland used 1970s debates at the Third United Nations Conference on the Law of the Sea (UNCLOS III) to successfully argue that rocks like Rockall should not independently generate Exclusive Economic Zones (EEZ), within which states have exclusive use of marine and mineral resources.6 This had the consequence that dispute over resources in this area of the Atlantic turned on the legal framework established by Law of the Sea Convention (LOSC).7 After becoming a party to that Convention under the Blair Government in 1997, the UK did not attempt to use Rockall to claim an expanded EEZ. Under LOSC Art 121(3), rocks like Rockall ‘… which cannot which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’.8 However, an outstanding issue has been that under LOSC Art 121(1) and (2), read with Arts 2 and 3, such rocks can generate a 12-nautical mile territorial sea.9 2 F MacDonald, ‘The Last Outpost of Empire: Rockall and the Cold War’ (2006) 32 Journal of Historical Geography 627, 633–41. 3  On the history of the dispute, see: ED Brown, ‘Rockall and the Limits of National Jurisdiction of the UK: Part I’ (July 1978) Marine Policy 181; Brown (n 1); CR Symmons, ‘Legal Aspects of the Anglo-Irish Dispute over Rockall’ (1975) 26 Northern Ireland Legal Quarterly 65. 4 An overview: CR Symmons, ‘The Rockall Dispute Deepens: An Analysis of Recent Danish and Icelandic Actions’ (1986) 35 International & Comparative Law Quarterly 344. 5  Symmons characterises the Irish Government as having shifted from reserving its position on the territorial claim in the 1970s, to the more ‘hawkish’ position of rejecting UK sovereignty outright in the 1980s: CR Symmons, ‘Ireland and the Rockall Dispute: An Analysis of Recent Developments’ (1998) IBRU Boundary and Security Bulletin 78, at 78. In July 2019 the former Minister for Agriculture, Food and the Marine, Michael Creed articulated the Irish Government’s well-versed position on Rockall: ­‘Ireland has never made any claims to Rockall nor have we recognised British claims to sovereignty over it’ Dáil Debates, 3 July 2019. 6  M Hayes, The Law of the Sea: The Role of the Irish Delegation at the Third UN Conference (Dublin, Royal Irish Academy, 2011) 20–21; 61–63. 7  R Long, ‘North-East Atlantic and the North Sea’ in D Rothwell, AO Elferink, K Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (Oxford, Oxford University Press, 2015). 8  1982 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397 (LOSC), Art 121(3). 9  Ibid, Art 121(1); 121(2); 2; 3.

Articles—Derrig 57 In approaching this issue the second example of Irish reliance on a non-territorial regime can be observed, with the legal regime established under EEC and subsequently EU law that grants access for Union fishing vessels to waters under the sovereignty or jurisdiction of the Member States through the Common Fisheries Policy (CFP) serving to reduce possible tensions arising from competing claims to fish around the rock. In July 2019 the former Irish Minister for Agriculture, Food and the Marine Michael Creed articulated this approach: Ireland does not recognise the United Kingdom’s claim to sovereignty over Rockall. The waters around Rockall, including within 12 nautical miles, are part of sea area 6b, within which Irish vessels, like those of other EU Member States, have a right of access under the Common Fisheries Policy.10

However, with some exceptions Member States are not required to pool territorial waters under the CFP, with the result that if UK sovereignty over Rockall is recognised its surrounding 12-mile circular territorial sea is excludable from the CFP’s pooled Union waters.11 In May 2019 the Scottish Government notified the Irish Government that it intended to exercise this prerogative by enforcing what it maintained was the exclusive right of Scottish boats to fish within this 12-mile belt of territorial sea around Rockall.12 Irish fishing trawlers have claimed a historic practice of fishing in the area. This generated an exchange between the Scottish and Irish governments, reported in Irish and UK press.13 The CFP has been a contentious topic in Brexit negotiations, with the UK Government seeking to renegotiate the extent to which EU Member State flagged boats can access and take fish from the UK EEZ.14 The Scottish Government has also indicated that in hypothetical post-independence EU accession negotiations it would seek to reform its CFP commitments.15 Most commentators addressing Rockall in legal scholarship have focused their analysis on the law of the sea, and on EU law governing the CFP, while accepting the 10  Dáil Debates, 3 July 2019. ‘Sea area 6b’ (properly VIb) refers to geographical areas fixed by the International Council for the Exploration of the Sea and incorporated into the framework for statistical reporting under the CFP, defined in: Council Regulation (EC) 218/2009 of 11 March 2009 on the submission of nominal catch statistics by Member States fishing in the north-east Atlantic (recast) [2009] OJ L87/70. 11  Council Regulation (EU) 1380/2013 of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/22 (Common Fisheries Policy Regulation), Art 5(2). See also: R Collins, ‘Sovereignty Has “Rock-All” to Do with It … or Has It? What’s at Stake in the Recent Diplomatic Spat between Scotland and Ireland?’ (EJIL: Talk!, 8 July 2019), available at: www.ejiltalk.org/sovereignty-has-rock-all-to-do-with-it-or-has-it-whats-atstake-in-the-recent-diplomatic-spat-between-scotland-and-ireland/. 12  Irish Government News Service Press Release, ‘Coveney and Creed Reject Scottish Government’s Unilateral Threat of “Enforcement Action” against Irish Fishing Vessels Fishing within 12 Miles of Rockall’ (7 June 2019). 13 S Burns, ‘Irish Fishermen to Defy Scotland’s “Bombshell” Warning on Rockall’ The Irish Times (Dublin, 8 June 2019); S Murphy, ‘Ireland’s Deputy Leader Has Called for Calm over Fisheries Dispute with Scotland’ The Scotsman (Edinburgh, 10 June 2019); M Wade, ‘Irish Fishermen Ignore Scottish Rockall Warning’ The Times (London, 10 June 2019). 14 European Union Committee, Brexit: Fisheries (eighth report) (HL 2016-17, 78) paras 107–23; Department for Exiting the European Union, The Future Relationship Between the United Kingdom and the European Union (Cm 9593, 2018) paras 53–62. 15  A Massie, ‘Scotland Stupefied at Irish Reaction to Rockall Row’ The Irish Times (Dublin, 12 June 2019).

58  The Irish Yearbook of International Law 2019 UK’s ‘annexation’ of the Rockall territory itself with little examination.16 However, current developments (principally Brexit, as well as the possibility of Scottish independence) have increased the likelihood of the Rockall dispute being contested in territorial terms. As the communication from the Scottish Government in May 2019 made clear, the success of Ireland’s reliance on non-territorial regimes has relied on forms of UK participation that are now ending. While the LOSC would be applicable to a delimitation of Rockall’s possible 12-mile belt of territorial sea, the relevant law in relation to the generation of such a territory is primarily customary international law on the acquisition of territorial sovereignty.17 In this article, my aim is to examine the Rockall dispute in light of applicable concepts of the law of territory. I examine the possibility that acts the UK Government has undertaken since 1955 with respect to Rockall may have legal significance, and if so on the basis of what legal principles and to what extent. I conclude that were another state to advance a competing territorial claim, it is most likely that a tribunal would consider these acts of the UK insufficient to establish title through principles of customary international law governing the acquisition of territory.18 However, the historical research necessary to accurately apply the relevant law to each potential claimant’s relationship with Rockall so as to draw a conclusion on the merits of one claim as superior is beyond the scope of this article. Instead, I outline concepts from the law of territory that could or should be taken as applicable to the dispute, resulting in the presentation of three different modes of acquisition on which the UK claim could be based. I consider the respective strengths and weaknesses of these three ways of articulating the UK’s claim to title, and conclude by considering the viability of hypothetical counter-claims. I also indicate the types of sources and research that would be required to comprehensively analyse title to Rockall, analysis which could support the possibility of further future claims on the part of Ireland, Iceland or Denmark. The article is structured as follows. The next section analyses UK practice in light of the first mode of acquisition – occupation of a territory res nullius (or variously, terra nullius or territorium nullius). The third section does the same with reference 16  See, eg, Collins (n 11), noting the UK’s ‘… sovereignty over Rockall seems fairly clear though the significance of this sovereignty might be more open to disagreement’.; C Lysaght, ‘Ireland’s Stance in the Rockall Dispute Is Largely Nonsense’ The Irish Times (Dublin, 17 June 2019), ‘It is nonsense denying the British title to the rock itself. In international law ownership of territory is achieved by taking possession with the intention of exercising sovereignty.’; J Harrison, ‘Guest Blog – Unpacking the Legal Disputes over Rockall’ (Scottish Parliament Information Centre, 18 June 2019); Symmons (n 3) 68-70; Brown (n 3) 181. On the legal status of ‘annexation’, Crawford clarifies: ‘The term ‘annexation’ is neither a term of art nor a root of title, but describes an official state act signifying an extension of sovereignty.’ I Brownlie and J Crawford, Brownlie’s Principles of Public International Law (Oxford, Oxford University Press, 2012) 221, fn 40. 17 D Anderson, ‘Some Aspects of the Regime of Islands in the Law of the Sea’ (2017) 32 The International Journal of Marine and Coastal Law 316, 317–18: ‘In several recent boundary cases, international courts and tribunals … have first determined an outstanding issue of sovereignty over a small island (applying the law on sovereignty) before proceeding on the basis of that determination to delimit maritime boundaries (applying the law of the sea).’ 18  For brief but sceptical treatment of the UK’s ‘purported annexation of Rockall’, see: M Aksensova and C Burke, ‘The Chagos Islands Award: Exploring the Renewed Role of the Law of the Sea in the ­Post-Colonial Context’ (2017) 35 Wisconsin International Law Journal 1, 23–25.

Articles—Derrig 59 to the second mode of acquisition – obtaining title by prescription. The fourth section examines the possibility of understanding the UK’s claim as one to title by conquest and addresses the titular question, was Rockall conquered? The last section concludes. OCCUPATION OF A TERRITORY RES NULLIUS; TERRA NULLIUS; TERRITORIUM NULLIUS

The mode of acquisition perhaps closest to the UK Government’s face-value representation of its own acts is occupation of a territory res nullius.19 The potential legal implications of accepting this articulation of the claim as accurately reflecting the facts are significant. Some writers maintain that occupation of a territory res nullius demands very little to no demonstration of effective occupation on the part of the occupying state, being a title in all cases lawful in origin by virtue of the absence of any prior sovereign.20 Accepted and applied to Rockall, this would have the consequence of making analysis of UK practice with respect to Rockall since 1955, the passage of time, as well as recognition and acquiescence on the part of other possible claimants and third states, superfluous, the act of annexation being sufficient to establish title to territory previously without title. To the extent legal principles governing territorial acquisition have been applied to Rockall, this is the reasoning some academic commentary seems to have followed in accepting the UK’s claim.21 The root of this claim comprises a factual assertion – that in 1955 Rockall was a territory res nullius. We can understand what it means to make this assertion by considering a genealogy of the concept of territory res nullius, alongside the related concepts terra nullius and territorium nullius. These three concepts are widely treated as interchangeable in twentieth century international legal sources. However, since the 1990s a body of historical research motivated by the relationship between these legal concepts and the means by which Australian aboriginal peoples were dispossessed of their land has brought clarity to their history.22 In his 2007 genealogy of terra nullius, Andrew Fitzmaurice distinguishes two oppositional traditions of legal argument that have employed these concepts. The first is a natural law tradition initiating in the sixteenth century with the theologians of Salamanca, most prominently Francesco de Vitoria, and their application of the Roman law of first taker (the law ferae bestiae – of wild beasts) to the Spanish conquest of the Americas. This law stated that a thing not taken, not used by anybody, becomes the property of the first taker. Vitoria used this principle to challenge the legal status of Spanish colonised

19 MacDonald (n 2), citing minutes indicating government officials understood Rockall to be ‘unclaimed’ territory at 634-37. See also Symmons (n 3) 65, citing UK parliamentary debate characterising Rockall as ‘res nullius’. At 68 Symmons himself concludes, ‘Rockall, therefore, in 1955 was genuinely a “res nullius” open to occupation by the first-comer.’ 20  RY Jennings, The Acquisition of Territory in International Law (Manchester, Manchester University Press, 1963) 23; 39. 21  Symmons (n 3) 68; Brown (n 3) 181. 22  A Fitzmaurice, ‘The Genealogy of Terra Nullius’ (2007) 38 Australian Historical Studies 1, 1, fn 2.

60  The Irish Yearbook of International Law 2019 lands on the basis that these lands already had takers – the indigenous American peoples – and so were not susceptible to appropriation by Spaniards.23 The second tradition Fitzmaurice traces to English publicists interested in justifying their colonisation of America in the seventeenth century, famously John Locke. In this tradition Vitoria’s argument was accepted but inverted, so the basis of the law of the first taker in the idea that property is established by exploitation was employed to argue that North American Indians had not in fact sufficiently exploited the territories in question, making them available for appropriation by the English as first taker.24 In the eighteenth and nineteenth century these two traditions took shape as opposing positions in debates about the law of nations as applied to the legal status of colonial territories. In that period the term res nullius came into use, most frequently to support the first tradition, opposing the idea that colonised territories were res nullius (without anybody, ie first takers), and so opposing the dispossession of indigenous peoples.25 It is at the end of the nineteenth century that Fitzmaurice identifies the introduction of the term territorium nullius in the context of efforts in the Institut de Droit International to codify legal principles governing the ‘carve-up’ of Africa by European imperial powers. There, territorium nullius was adopted by lawyers seeking to permit colonisation of African territories that were already inhabited and patently subject to extensive exploitation.26 While res nullius had rested on the idea of private use, so that any inhabited territory could easily be considered taken, territorium nullius was based on a conception of a minimum requirement of public, collective use. This standard was more difficult to satisfy. Terra nullius then, emerges as a protagonist in the final, twentieth century instantiation of these two oppositional traditions of argument over colonising territory, which constitutes the immediate context for the UK’s claim to Rockall. Fitzmaurice identifies its coming to significance in legal debates on sovereignty over the Polar regions, in particular a 1909 discussion of sovereignty over the island of Spitzbergen, which had been claimed both by Russia and Norway.27 In that context terra nullius was used to refer to territory, like Spitzbergen, that was inhabited or exploited to some extent, but where habitation and exploitation was of a level thought insufficient to establish sovereignty. By analogy with the Polar regions, in the 1950s and 1960s terra nullius was applied to a new field, the international law of space.28 While territorium nullius had been conceived with the appropriation of African territories in mind, connoting a necessity inhabitants exhibit collective order of some kind to be considered sovereign, terra nullius was developed with a lower bar in mind that could be applied to the Poles and space – as a description of ‘land’ effectively unused, ie not subject to property rights.

23 

Ibid 6–8. Ibid 8. 25  Ibid 9. 26  Ibid 10–13. 27  Ibid 3–5. See also: C Collis, ‘The Proclamation Island Moment: Making Antarctica Australian’ (2004) 8 Law Text Culture 39. 28  PC Jessup and HJ Taubenfeld, Controls for Outer Space and the Antarctic Analogy (New York, Columbia University Press, 1959); MS McDougal, HD Lasswell and I Vlasic, Law and Public Order in Space (New Haven, Yale University Press, 1963). 24 

Articles—Derrig 61 In international law, many later twentieth century treatise writers treat the topic of acquiring title to territory by occupation of a terra nullius (or territorium nullius/territory res nullius) with ambivalence. A common conclusion is that while the principle of intertemporal law (‘… the situation in question must be appraised … in the light of the rules of international law as they existed at the time, and not as they exist today’) indicates title acquired in this way in past eras of international law can be good title, the discussion became redundant at an unspecified moment when the last terra nullius was acquired, possibly excepting outer space and the Polar regions.29 What then of Rockall, asserted to be a territory res nullius by the UK Government as late as 1955? Fitzmaurice’s genealogical inquiry makes clear that the history of legal meaning attached to these three concepts has not in fact been the stable development of a unified doctrine, but has rather been a product of competing traditions of ideas about how territory can be taken and possessed. Based on this understanding, we can engage with the Roman law and sixteenth century principles on to which these three concepts were later retroactively projected, and apply those principles to the claim at hand. Doing so can allow us to formulate an appraisal of the factual assertion on which a UK claim based on this mode of acquisition rests – was Rockall a territory res nullius in 1955? Departing from the Salamancan interpretation of the Roman law of first taker, more recent authority for which can be found in the International Court of Justice’s (ICJ) Western Sahara Advisory Opinion, it is clear that even based only on the most readily accessible geographical and historical records concerning Rockall, this assertion is difficult to sustain.30 It is obvious that Rockall as a parcel of territory – which given its nature must necessarily include its territorial waters – was known to, and subjected to extensive exploitation by Scottish, Irish, Norwegian, Dutch and Baltic fishing and trading communities from at least the sixteenth century, and was possibly visited and recorded by the Irish monk-adventurer St Brendan as early as the sixth century. The rock has a place in both Irish and Scottish mythologies. In the Irish telling it exists due to the exploits of Fionn MacCumhaill, in the Scottish as a harbinger of the end the world.31 The possibility of such examples of historical exploitation supporting competing claims was even flagged when the UK House of Lords debated the 1971 Island of Rockall Act, intended to solidify the UK claim by incorporating Rockall into a parish of Scotland. In principle the lords had no

29  Quoting Fitzmaurice’s definition of the intertemporal principle: Brownlie and Crawford (n 16) 218, emphasis original; on terra nullius at 220. See also: MG Kohen and M Hébié, ‘Territory, Acquisition’ (2011) Max Planck Encyclopedia of Public International Law. 30  Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. See especially the Separate Opinion of Vice-President Ammoun, noting Vitoria’s employment of the Roman law of first-taker to challenge Native Americans’ dispossession of their lands and emphasising the extent to which the Advisory Opinion of the Court coheres with this position, at 86–87. Ammoun concludes: ‘In short, the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned.’ Fitzmaurice also notes the same argument forming the basis of the decision in the landmark case on Australian indigenous territorial title: Mabo v Queensland (No 2) (‘Mabo case’) [1992] High Court of Australia 23. Fitzmaurice (n 22), 14. 31 Ondřej Daněk, ‘Rockall’ (Survey Report, 2009) 16–17.

62  The Irish Yearbook of International Law 2019 ­ bjection to a UK claim to the rock, but they evinced scepticism of the Government’s o res nullius argument. Ronald King Murray responded to the Bill: It would appear to be correct that a Bill should be passed to formalise the claim of Scotland to the Island of Rockall. I would not altogether agree with the history of the matter put forward by the Minister. If he goes to the Western Isles and perhaps to the pubs there, he will find there has been a continuing claim that the Island of Rockall and the banks adjacent to it are Scottish and always have been – ever since the Battle of Largs when the Western Isles as a whole were taken from the Norsemen.32

Some minutes later William Ross added: We had better find out whether anyone else wants Rockall, if it proves to be as valuable as has been suggested [due to marine resources]. We might discover that the French have a claim. They knew about it; they were probably the first people to put it reasonably close to its real position on the map. It was not, I think, till about 1745 that a Captain Coats, travelling between Hudson’s Bay and Britain, reasonably accurately fixed it.33

Murray responded: My right hon. friend is being less than fair to the Norsemen. In their earliest maps of the North Atlantic, the Norsemen marked a large area called Friesland, which meant a low area of shoals. There is not much doubt that that was the Rockall shoal.34

Ross ended this discussion as to competing claims on a note of confusion: I think that there is considerable doubt. Going further back, it may be that the Irish have a claim through St. Brendan, who was said in legend at least to have landed there. We are in trouble when we go back as far as that. The first landing without doubt was in 1811 – unless the Spanish and French sailors who arrived in St. Kilda back in the 1680s had themselves landed there. … I hope that we do not run into trouble. It may be that the Faroes think that they have traditional fishing rights there, and many other people, too. … What about the Irish? Have they a claim to it? It is not all that far from Ireland. I reckon it is nearer Londonderry and the Bloody Foreland [Gweedore on the Irish mainland] than it is part of the mainland of Scotland. We may well have trouble in controlling the area.35

None of these comments are authoritative statements of the UK Government. However, they demonstrate the scepticism with which the Government’s res nullius argument was met even within the upper house of the UK Parliament when it was asked to legislate on Rockall, and it indicated the expansive historical and ethnographic research that would be required to adequately identify and appraise the various claims that might be made based on historical exploitation of the Rockall territory. It should be noted that one of the states that could likely advance a strong claim on such a basis is Scotland, in line with Murray’s view. However, this would be a fundamentally different legal argument to the one that seems to have been advanced with most consistency by the UK Government, and the Government’s

32 

Island of Rockall Bill: Hansard, HL Deb 13 December 1971, vol 828, col 189. Ibid col 197. Ibid col 198. 35  Ibid col 198–99. 33  34 

Articles—Derrig 63 ability to revise its position in order to make such a claim in a future tribunal ­setting is unclear. If the Government is interpreted to have maintained with sufficient clarity that its understanding was that Rockall was a territory res nullius in 1955, it is difficult to see how it could subsequently claim sovereignty over Rockall based on its own historic exploitation prior to that date. In his dissenting Opinion in the Eastern Greenland Case, Anzilotti noted a somewhat analogous situation in relation to a 1919 agreement between Norway and Denmark concerning sovereignty over the territory at issue.36 TITLE BY PRESCRIPTION

If we conclude the argument that Rockall was a territory res nullius in 1955 is unfounded as a matter of fact, the second mode of acquisition that might be employed to support the UK claim is prescription. Prescription denotes a process whereby one state displaces the good title previously held by another state over the same territory. It is analogous to the common law concept of adverse possession.37 It is often noted that the distinction between occupation of a territory res nullius and prescription can be unclear, some authors differ over whether seminal cases were really situations of occupation or prescription, and in practice tribunals do not always make such distinctions. For present purposes however, it is clarifying to note that if Rockall was not res nullius, the second alternative UK claim may be that through the act of annexation and its subsequent practice in relation to the rock, any prior title that may have existed was usurped – a mode of acquisition that can be described as prescription. Successful prescription turns on whether the prescribing state’s conduct sufficiently demonstrates its intention to act as sovereign over a particular territory, and on the reaction of other states to that conduct. The French term effectivité is frequently used to identify instances of such conduct, and the reaction of other states is significant to the extent that it displays recognition of, and most importantly, acquiescence to the prescribing state’s title. Jennings emphasises that in cases of dispute over territorial acquisition the question a tribunal will in practice try to answer is one of relative, as opposed to absolute title.38 Good title is established by reference to less good title. This is particularly illustrative of the structure of an inquiry into a claim to prescription, which will comparatively examine the practice of each claimant in relation to the territory at issue. Some academic analyses of the Rockall dispute seem to implicitly regard the UK claim as one of prescription, determining the UK Government to have successfully acquired title by its accomplishment of various acts 36  Legal Status of Eastern Greenland (Denmark v Norway) (‘Eastern Greenland Case’) PCIJ Series A/B No 53, 94. Anzilotti notes that having communicated to Norway its position that certain parts of Greenland were terra nullius in 1919, Denmark could not subsequently adduce a sovereignty over the whole of Greenland without demonstrating extension of that sovereignty by acts in accordance with international law after 1919. 37  Jennings (n 20) 21. DHN Johnson, ‘Acquisitive Prescription in International Law’ (1950) British Yearbook of International Law 322, 333–34. 38  Jennings (n 20) 5–6.

64  The Irish Yearbook of International Law 2019 through the Royal Navy and in Parliament since 1955.39 I will briefly examine two issues that arguably complicate this picture. First, were another claimant to challenge the UK’s claim in a tribunal setting, it is possible a critical date would be considered relevant. Fitzmaurice defines the critical date as, ‘… the date after which the actions of the parties can no longer affect the issue’.40 Examining its derivation from the seminal Island of Palmas Arbitration, he cites his own pleadings in the Minquiers and Ecrehos Case as offering a particularly clear exposition of the concept: … the theory of the critical date involves … that, whatever was the position at the date determined to be the critical date, such is still the position now. Whatever were the rights of the Parties then, those are still the rights of the Parties now. If one of them then had sovereignty, it has it now, or is deemed to have it. If neither had it, then neither has it now. And if both did – that is to say, if there was some sort of joint regime, or condominium, then that regime is still deemed to exist and to govern the rights of the Parties today. The whole point, the whole raison d’être, of the critical date rule is, in effect, that time is deemed to stop at that date. Nothing that happens afterwards can operate to change the situation that then existed. Whatever that situation was, it is deemed in law still to exist; and the rights of the Parties are governed by it.41

Choosing such a date will likely have significant consequences for parties to a dispute. In cases of prescription a recent date will usually favour the prescribing claimant, permitting as much as possible of that state’s practice in relation to the territory to be taken into consideration as effectivités, while for the same reason an earlier date tends to favour a claimant relying on prior title, excluding more recent practice of the prescribing state. Fitzmaurice and other authors note that while a critical date need not always be chosen, or need not always be apposite in a particular case, in some cases a critical date is ‘self-evident’ as a moment in time at which some event occurred that focuses the issues in such a way as to necessarily govern the legal position.42 Based on the relevant case law, were one or more counter-claims to prior title advanced against the UK claim to Rockall it would appear a strong argument could be made that in a tribunal setting the self-evident critical date would be 18 September 1955 – the date on which the UK purported to annex the rock. In this respect the Eastern Greenland Case is a particularly illustrative example. A landmark case on the law in this area, the critical date was considered to be 10 July 1931, when Norway issued a proclamation announcing its occupation of Eastern Greenland as terra nullius. The situation was considered to be such that either the territory had been terra nullius on that date, in which case Norway could

39 

Collins (n 11); Lysaght (n 16); Harrison (n 16). Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–4: Points of Substantive Law, Part II’ (1955) British Yearbook of International Law 20, 20. 41  Ibid 20–21, citing: Minquiers and Ecrehos (France/United Kingdom) [1953] ICJ Rep 47 and Island of Palmas (Netherlands/United States of America) (1928) 2 RIAA 829. However, Crawford notes that in Minquiers the Tribunal did not ultimately deem it necessary to identify such a date: Brownlie and Crawford (n 16) 219. 42  Fitzmaurice (n 40) 22. 40  G

Articles—Derrig 65 establish good title by occupation, or the territory had been under Danish sovereignty, in which case the Norwegian proclamation and occupation could not confer title. The Permanent Court of International Justice (PCIJ) found in favour of Denmark.43 In the Clipperton Island Case44 the apparent critical date was also the moment a state purported to claim territory through a symbolic act. In that case the significant question was whether on 17 November 1858, by an act of its navy, France had successfully claimed sovereignty over Clipperton Island as territorium nullius. King Victor Emmanuel III of Italy as arbitrator found the island had been territorium nullius on that date, with the consequence that in 1897 a flag-raising performed by a Mexican expedition could not make good title Mexico claimed it held to the island through prior Spanish title.45 In these cases, a moment of proclamation, declaration, flag-raising or other ceremonial act was identified as critical to determination of the legal issues. What mattered was what state (if any) had title to the territory at that moment. Where a claim to title relied on the assertion that the territory had been a terra nullius/territorium nullius/territory res nullius, the ‘claiming’ moment itself took on particular ­significance.46 It seems likely that in a tribunal setting where one or more counter-claims to prior title were advanced against the UK claim, a strong argument could be made that the critical moment in relation to Rockall was the moment the Royal Navy claimed title to the rock by raising a flag and cementing to it a ceremonial plaque – 18 September 1955. This would have the consequence that practice undertaken by the UK in respect of Rockall since that date would have no significance to the determination of the dispute. Highlighting one of the substantive aims of choosing a critical date, Jennings notes: … looking at the whole course of a dispute, it may be said to have ‘crystallized’ at a certain moment … and that justice may require that some actions by a party subsequent to this moment should not be permitted to improve his legal position in the forthcoming litigation of the dispute.47

Since 1955, acts performed by the Royal Navy on behalf of the UK Government and in the UK Parliament concerning Rockall – attempting to maintain the ceremonial plaque and install light, periodic naval patrols, legislating with reference to Rockall – have arguably been actions of this sort, symbolic acts undertaken subsequent to the dispute’s crystallisation with the sole aim of improving the state’s legal position. Setting aside a critical date and assuming these later acts might have relevance as effectivités, a second complicating issue can be noted. The case law indicates 43  Ibid 22. In his analysis of the judgment, Fitzmaurice uses the term ‘res nullius’. The PCIJ actually used ‘terra nullius’: Eastern Greenland Case (n 36). 44  Clipperton Island Arbitration (France/Mexico) (‘Clipperton Island Case’) (1931) 2 RIAA 1110. 45 V Emmanuel, ‘Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island’ (1932) 26 American Journal of International Law 390. Fitzmaurice prioritises the 1897 flag-raising as the critical date, while acknowledging that the French action in 1858 makes it most accurate to say the case involved two critical dates. Two dates are certainly taken into consideration, but the structure of the decision appears to emphasise 1858 as the more important date. Fitzmaurice (n 40) 22, fn 2. 46  Fitzmaurice (n 40) 30. 47  Jennings (n 20) 34.

66  The Irish Yearbook of International Law 2019 that naval patrols, passing domestic legislation claiming jurisdiction over a territory, and the maintenance of lights or lighthouses can all demonstrate (subject to various contextual qualifications) a state’s intention to act as sovereign over a territory.48 The UK Government has publicised its undertaking of such actions since 1955. However, a tribunal’s examination of state practice in relation to Rockall would have to include effectivités attributable to other claimants. For example, concerning state practice of Ireland such an examination would consider links between assertions of historic fishing rights like those made by Irish fishers in 2019, and acts of the state.49 In relation to all potential claimants this examination would also have to extend far earlier than 1955, into the kind of historical inquiry indicated earlier in the previous section. Excepting cases where a terra nullius claim is accepted, effectivités alone usually have probative value rather than being considered determinative of title.50 For effectivités to determine a prior title has been usurped by a prescribing state, they must be accompanied by acquiescence of the state holding prior title. Jennings summarises this requirement by noting that, … where the possession is adverse, it is not sufficient that the claimant State display acts of sovereignty; there must also be an acquiescence on the part of the original sovereign. If the latter keeps its claim alive by protest or the bringing of an action, there will not be that undisturbed or ‘peaceable’ possession which alone enables a State to prescribe a title.51

In a recent authoritative overview of the relevant case law, Kohen and Hébié emphasise that, ‘… acquiescence should not be presumed lightly. In each case the clear consent to opposing claims needs to be established’.52 Of the most obvious possible claimants to Rockall, it would appear that in all official statements on the topic, the Irish Government has consistently reiterated its objection specifically to the UK’s territorial claim. Denmark and Iceland have consistently challenged the UK’s claim to marine jurisdictions based on its territorial claim to Rockall, while apparently remaining silent on the territorial claim specifically. As the ICJ stated in the 2008 Sovereignty over Pedra Branca/Pulau Batu Puteh Case: … silence may also speak, but only if the conduct of the other State calls for a response … any passing of sovereignty over territory on the basis of the conduct of the Parties, as set out above, must be manifested clearly and without any doubt by that conduct and the relevant facts. That is especially so if what may be involved, in the case of one of the Parties, is in effect the abandonment of sovereignty over part of its territory.53

It would require close examination of the record of Icelandic and Danish state practice to ascertain whether by their silence, one or both of these states had acted in 48 

Kohen and Hébié (n 29) 8–9. The extent to which Jersey and French authorities effectively regulated fishing activities and registration of boats on and around the Minquiers and Ecrehos islets was examined in determining sovereignty over the territory at issue: Minquiers and Ecrehos Case (n 41) 65–69. 50  Ibid 14; Frontier Dispute (Burkina Faso/Republic of Mali) [1986] ICJ Rep 554, 586–87. 51  Jennings (n 20) 22–23. 52  Kohen and Hébié (n 29) at 5. 53  Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) [2008] ICJ Rep 12, 51. Also cited in Kohen and Hébié (n 29). 49 

Articles—Derrig 67 such a way as to clearly and without doubt demonstrate their abandonment of the Rockall territory. Satisfying this high-standard is made more challenging by the above-noted nature of that parcel of territory, which necessitates special attention be given to acts within and in relation to its territorial waters. Crawford implicitly draws attention to the problem of grounding a claim to title to Rockall on ­effectivités demonstrated by the UK after 1955. Referring to a historical work on Rockall to imply, without explicitly arguing, that Rockall was in fact a terra nullius at the time of the UK’s ‘symbolic annexation’, he continues: To require too much in respect of the maintenance of rights may encourage threats to the peace. In the case of remote islands, it is unhelpful to require a determinate minimum of ‘effectiveness’ once title is actually established.54

TITLE BY CONQUEST

Contemporary international law sources note that due to the development of international law, in particular the prohibition of the use of force in Article 2(4) of the UN Charter and the Friendly Relations Declaration, the formerly valid mode of territorial acquisition of conquest no longer exists in international law.55 Some authors maintain the application of the principle of intertemporal law might permit title acquired in this way to be considered to have been good when it was acquired, but as a matter of positive law it is clear that it would not be possible to argue before a tribunal that in 1955 good title was acquired to territory by conquest, and it has been demonstrated that consensus around the status of the concept has long been doubtful.56 Nonetheless, I include a short analysis of this third mode of acquisition for two reasons. First, the history of international legal argument around the concept of conquest overlaps significantly with that of territory res nullius. We can complement our analysis of colonial titles to territory set out earlier by noting that cases that might most accurately be considered representative of the violent process of acquiring title by conquest, are in practice sometimes avoided by appraising the title as originating in the more ambiguous concept of ‘discovery’, which can also be translated into occupation of territory res nullius.57 Second and relatedly, while conquest would not be a strategic concept for the UK Government to employ to articulate its actions and claim, like occupation of a

54 

Brownlie and Crawford (n 16) 224. Kohen and Hébié (n 29) 12. 56  The seminal study on legal concepts relating to the acquisition of territory under international law and their application to the colonisation of Ireland is: A Carty, Was Ireland Conquered? International Law and the Irish Question (London, Pluto Press, 1996). At 2-3 Carty notes the contested status of conquest as a source of title to territory under international law, with 19th century English and American writers approving Vattel’s earlier acceptance of conquest under international law, and in turn being challenged by a modern ‘just war’ doctrine drawing on the French Revolution. 57  Ibid 7, noting 19th century Anglo-American writers’ treatment of indigenous peoples in North and South America as having been legitimately dispossessed of their lands either by conquest, or simply by occupation due to their being thought of as ‘not worthy of conquest’. Emphasis original. 55 

68  The Irish Yearbook of International Law 2019 territory res nullius and prescription, it would arguably comprise a cogent and substantively accurate description of its actions and claim. Jennings maintains: … there may presumably be a title by subjugation or conquest, even where there has been no war or even hostilities in the technical sense, where the territory has nevertheless been seized by a display of armed force … Firstly – and this is most important – there is a long-established and firm rule that the military occupant cannot acquire sovereignty at all durante bello. Secondly, as with all the other modes, there must be present both the elements of corpus and animus; in other words, there must be not only the physical apprehension of territory, but also the intention to annex it.58

The UK’s attempt to annex Rockall would seem to satisfy Jennings’ first and s­ econd requirements of occurring outside war and demonstrating corpus and animus. Whether or not the 1955 annexation and subsequent acts undertaken by the Royal Navy constituted a ‘display of armed force’ is perhaps open to more interpretation. A 2007 historical and geographical study by Fraser MacDonald draws on previously unexplored archival sources to examine the rationales for, and means employed to effect the UK’s claim to Rockall. Of particular relevance for our purposes are the minutes of meetings held by officials of the then Colonial and Foreign Offices to decide what procedures would best ‘… give the act of taking possession of the island as formal and impressive a character as possible’.59 The legal advice the Colonial Office supplied drew on examples offering what it considered to be legal precedents drawn from its own past practice of colonial ­acquisition: ‘… Gilbert and Ellice Islands, Tristan da Cunha, Christmas Island, Nightingale and Inaccessible Islands’.60 The annexation was undertaken with no prior publicity by an armed naval survey vessel crewed by military personnel excepting one scientific observer, who nonetheless also had a military background. It was undertaken for entirely military reasons – to exclude adversary states (primarily the USSR) from a vast swathe of the North-East Atlantic over which tactical nuclear missiles were to be test-fired. As MacDonald notes, the Rockall annexation was part of a long history of states pursuing military objectives while seeking ‘… legitimacy from the practice of science and the history of exploration’. He quotes a UK government official who observed that, ‘The Admiralty felt that it “would be severely criticised if it did not make use of the attempt to gather all possible scientific i­nformation … such as might be of use to various scientific bodies in this country”.’61 Of the three modes of acquisition considered here, it is least likely a tribunal would appraise the Rockall dispute as a claim to title by conquest. I nonetheless take ‘Was Rockall Conquered?’ as this article’s titular question because while we noted earlier that the UK Government has appeared to consistently present its territorial claim to Rockall as occupation of a territory res nullius, the records MacDonald 58 

Jennings (n 20) 52-53. MacDonald (n 2) 637. 60  Ibid 636. 61  Ibid 637. On first learning of the Government’s plan to annex Rockall, the single scientific observer, James Fisher, said: ‘At last, I thought … and by the Navy too; it’s all going to be done proper … like being married in church.’ Quoted at 638. 59 

Articles—Derrig 69 uncovers make clear officials understood their own acts in the context of a nineteenth century practice of forceful colonial acquisition, employing the armed forces to pursue military objectives. CONCLUSION

In legal scholarship to date, the Rockall dispute has mainly been examined from the perspective of the legal regime established by the LOSC, and by EU law governing the CFP. In this literature the UK’s claim of having established title through its 1955 annexation is generally accepted as sound, with little analysis of applicable principles of customary international law on the acquisition of territorial sovereignty.62 In light of these principles, I have examined three modes of acquisition of territory through which the UK claim could be articulated. Based on this examination, I have argued that were another state to advance a competing territorial claim, it is likely a tribunal would consider the 1955 annexation and subsequent practice of the UK in relation to Rockall alone to be insufficient to establish good title to this territory. A comprehensive evaluation of the merits of the territorial claims that could be advanced by other states is beyond the scope of this article. In the second section, I indicated the long history of exploitation of Rockall and the waters around it that would need to be reconstructed through historical and ethnographic research to support any such evaluation. However, based on the foregoing analysis some observations can be made concerning the hypothetical territorial claims that might be made by Ireland, Iceland or Denmark, and how such competing claims might be resolved. Based on the sources examined here, and on the apparent persistence of nonofficial claims made specifically to Rockall by their respective coastal communities, it seems likely that Scotland and Ireland could advance strongest claims. However, it is important to emphasise that my research has not included Icelandic, Faroese or Danish language sources. As noted in the second section, the Scottish position is arguably complicated by prior statements of the UK Government identifying Rockall as a territory res nullius before 1955. UK practice has been to treat Rockall as part of Scotland, indicating from the perspective of the Scottish Government that an independent Scotland would likely carry the claim to Rockall through prior UK title. Scotland’s May 2019 notification of its intention to enforce exclusive jurisdiction could be interpreted as a display of state practice intended to strengthen the Scottish position in possible future post-independence negotiations with London. Unification of Northern Ireland with the Republic of Ireland should not alter the nature of an Irish claim. The relationship between the emergence of the 1922 Irish Free State and historical exploitation of the Rockall territory has not been considered here, but an Irish claim to Rockall relying on title pre-dating the UK’s annexation could draw on case law concerning titles asserted based on their derivation from prior colonial title.63 Analogous situations might also be found in cases relating to

62 

See references above (n 16). Clipperton Island (n 44).

63 eg

70  The Irish Yearbook of International Law 2019 the emergence of decolonised states, prior boundaries and titles accruing to which were not respected when the post-colonial state formed. However, much of the international law on self-determination would post-date Irish independence. Were Ireland, Iceland or Denmark to advance a territorial claim to Rockall, a tribunal could offer one possible means of resolution. However, the terms of the UK’s Optional Clause Declaration accepting the compulsory jurisdiction of the ICJ would exclude such a dispute. In its revised declaration of 2017, the UK excluded disputes arising before 1987; disputes with current or former members of the Commonwealth (which would apply if the claim was made by Ireland); and disputes arising from, connected with or related to nuclear weapons.64 Moreover, Ireland has never acted in a contentious case before the ICJ, indicating it would be unlikely to contest a claim to Rockall there. Consequently, the most likely tribunal setting would be an arbitration. The question of territoriality could also be addressed in the context of a Brexit settlement. While Ireland and the UK were both members of the EU and subject to the CFP, the issue of the circular 12-mile enclave of waters around Rockall could remain unaddressed. Despite claiming these waters as its territorial sea, the UK did not use the legal mechanism established under the CFP to list this as an exception to the general exclusion of territorial seas from pooling.65 However, in the context of Brexit negotiations the question of territorial sovereignty over Rockall will need to be addressed. Will these 12-miles Brexit, and if so will they do so as part of UK territory? The answer will determine how access to these waters will be regulated in any post-Brexit UK/EU agreements.

64  Declarations recognizing the jurisdiction of the Court as compulsory: United Kingdom of Great Britain and Northern Ireland (22 February 2017), available at: www.icj-cij.org/en/declarations. 65  Common Fisheries Policy Regulation (n 11), Art 5(2), Annex I. Symmons characterises Rockall’s international law significance after the UK’s 1997 retraction of its claim to a 200-mile fishing zone based on the rock: ‘… Rockall is effectively now merely an unimportant rock with vestigial insular status in international law. Its sole legal importance now for the UK – which, as seen, has reiterated its title to it – is that it remains in a technical sense an ‘island’ and therefore continues to generate a territorial sea. … Although, as seen, Ireland still disputes British ownership of the rock – and the status of its immediately surrounding 12-mile enclave – it seems unlikely that the UK would ever make any concession to Ireland on this, the sole legal effect now of Rockall, even though, of course, Irish fishing vessels may continue to be excluded by the UK from fishing in this limited zone.’ Symmons (n 5) 86.

Correspondent Reports

72

Human Rights in Ireland 2019 SANDRA DUFFY*

2

019 SAW IRELAND continuing to react to the ongoing developments in the United Kingdom’s exit from the European Union. At home, Ireland further advanced its commitments to human rights by ratifying the Istanbul Convention on combatting violence against women and domestic violence. It also received Concluding Observations from the United Nations Committee on the Elimination of Racial Discrimination which focused on the experiences of migrants, persons of ethnic minorities, and Travellers, in the jurisdiction. The Committee also criticised the Direct Provision system of asylum-seeker reception, and urged the Government to phase it out in favour of a more human rights-compliant system. LEGISLATIVE DEVELOPMENTS

Ratification of the Istanbul Convention The Government of Ireland ratified the Council of Europe Convention on preventing and combatting violence against women and domestic violence (the Istanbul Convention) on the 8th March 2019 (International Women’s Day). Ireland had signed the Convention in November 2015. Ratification followed the passage of the Criminal Law (Extraterritorial Jurisdiction) Act 2019 following the earlier promulgation of the Domestic Violence Act 2018, the Criminal Justice (Sexual Offences) Act 2017 and the Victims of Crime Act 2017. Article 1 of the Istanbul Convention describes its purpose as to: a) protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence; b) contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women; c) design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence; d) promote international co-operation with a view to eliminating violence against women and domestic violence; e) provide support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence.

Compliance with the Istanbul Convention is overseen by GREVIO (the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence). * 

School of Law, University of Bristol.

74  The Irish Yearbook of International Law 2019 Ireland reserved the right not to apply the provisions of the Convention that relate to compensation for victims of domestic violence (Article 30(2)) and jurisdiction for the prosecution of offences (Article 44(3)). HUMAN RIGHTS IN THE SUPERIOR COURTS

Nano Nagle School v Marie Daly In July 2019, the Supreme Court handed down its decision in the case of Nano Nagle School v Marie Daly.1 This case concerned employment law: specifically, reasonable accommodations for disabled employees. The case was an appeal from a decision of the Labour Court concerning the Employment Equality Act 1998–2011. The appellant, Ms Daly, was a Special Needs Assistant (SNA) at the respondent school, which catered for children with autism and mild to profound disabilities. She became paralysed from the waist down following a car accident in 2010 and, due to her disability disqualifying her from the ‘significant’ physical elements of her job, was refused permission to return to work the following year.2 The appellant took a claim to the Equality Tribunal under the Employment Equality Act 1998–2011, sections 6, 8 and 16, alleging unlawful discrimination by her employer, and that ‘the employer had failed to comply with its statutory duty under s.16(3) and (4) of the legislation, to provide ‘reasonable accommodation’ or ‘appropriate measures’, to accommodate her disability, which would have allowed her to return to work’.3 The Equality Officer held that the school had not performed any unlawful discrimination as the applicant was no longer fully competent to undertake the duties involved in the position, and that she was not entitled to any remedy.4 The appellant appealed to the Labour Court, which overturned the Equality Officer’s decision and held that the school had not complied with section 16(3) of the Act.5 The school appealed to the High Court on points of law, and the High Court upheld the Labour Court’s decision; the school then further appealed to the Court of Appeal, which overturned the High Court’s decision. Leave was then sought by the appellant to appeal to the Supreme Court, which was granted.6 In granting the leave, the Supreme Court identified as a point of law the difference between the ‘tasks’ and ‘duties’ involved in a post.7 The Employment Equality Act 1998–2011 ‘promotes equality between employed persons and … outlaws discrimination in connection with work related activities on nine distinct grounds, including disability’. The Act provides for ‘reasonable accommodation’ for disabled employees through ‘appropriate measures’. However, there is a question over the nature of the essential duties, versus non-essential tasks, involved 1 

Nano Nagle School v Daly [2019] IESC 63. Ibid, para 1. 3  Ibid, para 2. 4  Ibid. 5  Ibid, para 3. 6  Ibid, para 4. 7  Ibid, para 5. 2 

Correspondent Reports—Duffy 75 in any particular position. The appellant felt that the Court of Appeal interpreted section 16 of the Act ‘so as to render it necessary for a disabled person, on reasonable accommodation, to be able to perform all of what were seen as the core duties of a position of employment’. This, in their estimation, would defeat the Act’s purpose. The respondent disagreed.8 Section 16 of the Act is the most relevant to the questions in play in this case. It provides that an employer does not have to retain an employee in a position if they are not ‘fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position’ (s 16(1)); however, an employer should make reasonable accommodations for the employee if doing so does not impose a disproportionate burden on them (s 16(3)).9 The respondent school submitted that the Court of Appeal was correct in interpreting these sections sequentially: s 16(3) as subject to s 16(1). Therefore, if it is shown that an employer has formed a bona fide belief that an employee with disabilities was not fully capable of performing the duties for which he or she was employed, there is a complete defence to a claim of discrimination.10

The Court of Appeal also held that there is a difference between core, essential duties of a position, and non-essential tasks. The redistribution of tasks was held to be a reasonable accommodation which an employer should make.11 The Supreme Court surveyed some international law on the issue,12 including European Union Council Directive 2000/78/EC (the ‘Framework Directive’),13 the United Nations Convention on the Rights of Persons with Disabilities, and the jurisprudence of the Court of Justice of the European Union in HK Danmark (Jette Ring) v Dansk almennyttigt Boligselskab.14 It then went on to review the facts of the case in hand. The applicant undertook various non-teaching duties in the school as an SNA.15 Following her car accident, she completed a successful rehabilitation and was cleared by a senior occupational therapist in the National Rehabilitation Centre to return to her work. She was also cleared by the school’s own occupational physician to return to work, subject to an assessment of which activities it would be safe for her to perform.16 Two assessments were performed, the latter of which was considered in depth by the Court.17 The assessment reports were returned to the school, at which point the school’s occupational physician, Dr Madden, concluded that Ms Daly was not

8 

Ibid, para 7. Ibid, para 11–12. Ibid, para 13. 11  Ibid, para 14. 12  Ibid, paras 16–34. 13  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 14  Case C-335/11 and Case C-337/11 HK Danmark (Jette Ring) v Dansk almennyttigt Boligselskab [2013] IRLR 571. 15  Nano Nagle School (n 1) para 38. 16  Ibid, paras 39–40. 17  Ibid, paras 41–55. 9 

10 

76  The Irish Yearbook of International Law 2019 medically fit for the role of an SNA due to the significant number of activities which she could not perform or for which she would require accommodation.18 The Supreme Court then considered the issues which had arisen during the Labour Court determination, including evidential issues around the report of the second assessor,19 before returning to the central issues of the case. It stated that ‘the term “distribution of tasks” must be read in a manner which is consistent with the entirety of s.16, and the purpose of the Act’ and that, furthermore, ‘it could not have been the intention of the legislature to create a situation where, by deploying the term “tasks” to divide up the term “duties”, an employer could effectively render an employee’s duty incapable of performance’.20 The judgments of the Court of Appeal make reference to ‘core duties’ and ‘essential functions’, which do not appear in the Act and therefore cannot be inferred to be the intention of the legislature.21 It is still necessary to ensure the accommodations which must be made are reasonable and do not impose a disproportionate burden on the employer, but McMenamin J stated that ‘it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are nonessential’.22 Having come to this conclusion, McMenamin J then reviewed some further evidential issues which arose in the Court of Appeal,23 before holding that the case should be remitted to the Labour Court for further determination.24 IRELAND AT THE EUROPEAN COURT OF HUMAN RIGHTS

Doyle v Ireland In 2019, the European Court of Human Rights (ECtHR) issued its judgment in the case of Doyle v Ireland.25 The applicant alleged a violation of his rights under Article 6(3) of the European Convention on Human Rights (ECHR). He alleged that his right to a fair trial had been breached as he was not entitled to have a solicitor present during his interrogation by Gardaí following his arrest. Mr Doyle is currently serving a life sentence for murder in Mountjoy Prison.26 On the 9th November 2008, Mr Doyle fatally shot another man in Limerick City.27 He was arrested on suspicion of this offence on the 24th February 2009. On his arrest, he was taken to a police station and informed of his rights, including his right to access to a solicitor. He availed of this right, instructing Gardaí that he wished to

18 

Ibid, para 57. Ibid, paras 58–83. 20  Ibid, para 85. 21  Ibid, para 87. 22  Ibid, para 89. 23  Ibid, para 93–105. 24  Ibid, para 111–13. 25  Doyle v Ireland App no 51979/17 [2019] ECHR 377 (23 May 2019). 26  Ibid, para 5. 27  Ibid, para 6. 19 

Correspondent Reports—Duffy 77 contact a particular solicitor. His first consultation with the solicitor was brief, lasting only two minutes.28 Mr Doyle was interviewed by the Gardaí without his solicitor present. All interviews were video recorded. There were 22 interviews in total, and the solicitor was not present at any of them. At various points during the interviews, which took place over a number of days, the applicant requested consultations with his solicitor, in person and over the phone. These requests were granted as they occurred, apart from one during the fourteenth interview which was slightly delayed. A dialogue also occurred concerning the applicant’s girlfriend, who had also been detained for questioning about the crime. The applicant made incriminating statements over the course of these interviews and eventually confessed to the crime. He was charged with the victim’s murder and brought before the District Court,29 where he pleaded not guilty.30 The applicant underwent two criminal trials. The first returned an inconclusive result.31 In the second trial, the applicant sought to have the admissions which he had made to the Gardaí excluded. Following a voir dire in which the Court ruled that there had been no breach of the applicant’s constitutional right to access to a lawyer,32 the trial continued with the confessional evidence included. Other evidence was also presented.33 Mr Doyle was unanimously found guilty and sentenced to life imprisonment.34 Mr Doyle appealed to the Court of Criminal Appeal, which upheld the trial judge’s findings. It found that there was no inducement or threat involved in the applicant’s confession. It also considered the applicant’s argument that he ‘had not been granted sufficient access to legal advice’ and had therefore suffered ‘irretrievable prejudice during questioning’. The Court of Criminal Appeal dismissed these arguments.35 The applicant further appealed to the Supreme Court, which also dismissed the appeal. The Supreme Court stated that, as per the recent cases of People (DPP) v Gormley and People (DPP) v White,36 fairness is guaranteed to suspects from the moment of arrest, including the right of reasonable access to a solicitor. This right is guaranteed by both the Irish Constitution and the ECHR. However, it found that a suspect does not have the right to have the solicitor present during the interview.37 The ECtHR reviewed the Irish law in the area, including Article 38.1 of the Constitution38 and the jurisprudence of the Supreme Court in People (DPP) v Healy,39 People (DPP) v Pringle,40 Lavery v Member in Charge, Carrickmacross Garda Station,41 and the aforementioned People (DPP) v Gormley and People 28 

Ibid, para 7. Ibid, para 10–18. 30  Ibid, para 19. 31  Ibid, para 20. 32  Ibid, para 21–22. 33  Ibid, para 23. 34  Ibid, para 25. 35  Ibid, paras 26–30. 36  People (DPP) v Gormley and People (DPP) v White [2014] IESC 17. 37  Doyle v Ireland (n 25) paras 31–48. 38  Ibid, para 49. 39  People (DPP) v Healy [1990] 2 IR 73. 40  People (DPP) v Pringle [1981] 2 Frewen 57. 41  Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390. 29 

78  The Irish Yearbook of International Law 2019 (DPP) v White. It found that Irish law affirms that while there is a constitutional right to access to a solicitor for a person in detention, it cannot be inferred that it is a detained person’s right to have a solicitor present during questioning.42 However, following the Gormley case, in 2015 the Gardaí code of practice was changed to allow for the presence of a solicitor during questioning.43 The ECtHR then reviewed the relevant European Union law on the subject: Article 3(1)–(3) of Directive 2013/4844 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. Article 3(3) of this Directive states that the right of access to a lawyer should include the right of ‘suspects or accused persons [to have] their lawyer … present and [to] participate effectively when questioned. Such participation shall be in accordance with procedures under national law …’. The Court also noted, however, that this Directive does not apply to Denmark, the United Kingdom, or Ireland.45 The applicant’s complaint was examined under Articles 6(1) and (3) of the European Convention on Human Rights.46 It was ruled admissible under Article 35(1) of the Convention.47 The applicant argued that at the time of his interrogation, ‘police practice was not to admit solicitors to attend with an accused person during police interviews’. He argued that the lack of a solicitor in his interview left him ‘vulnerable’ to police pressure during the interview, which led to him giving the confession that was eventually relied upon at trial. He argued that this prejudiced his right to a fair trial.48 The Government contested this submission, arguing that the applicant’s rights had not been affected as he had been given access to his solicitor from his first interrogation by police, as set out in Salduz v Turkey.49 Furthermore, the applicant’s interviews had been video-recorded and those recordings were viewed by the trial court, which did not find any irregularity or evidence of police coercion. Even assuming that the applicant’s right to a lawyer had been restricted, there was no evidence that the trial had been irretrievably prejudiced.50 The ECtHR began its deliberations by reviewing its own jurisprudence, in particular the recent case of Beuze v Belgium,51 which had afforded it an opportunity to restate the reasons why this right constitutes one of the fundamental aspects of the right to a fair trial, to provide explanations as to the type 42 

Doyle v Ireland (n 25) paras 50–56. Ibid, para 57. 44  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty [2013] OJ L294/1. 45  Ibid, paras 59–61. 46  Ibid, para 62–63. 47  Ibid, para 64. 48  Ibid, para 65. 49  Salduz v Turkey App no 36391/02 [2008] ECHR 1542 (27 November 2008). 50  Doyle v Ireland (n 25) para 66. 51  Beuze v Belgium App no 71409/10 [2018] ECHR 925 (09 November 2018). 43 

Correspondent Reports—Duffy 79 of legal assistance required before the first police interview or the first examination by a judge, and to clarify whether the lawyer’s physical presence is required in the course of any questioning.52

It stated that the Court’s primary concern is to adjudicate the overall fairness of a trial proceedings, not to isolate any one particular factor. The minimum rights laid out in Article 6(3) ECHR can be seen as ‘specific aspects of the concept of a fair trial in criminal proceedings’.53 Although Article 6(3) ECHR does not specify the manner in which access to a lawyer should be guaranteed, it envisions that states should give effect to that right in a manner in line with the aim of the Convention.54 The Court articulated three specific aspects of the right which should be upheld: 1) that suspects should be allowed to enter into contact with their lawyer from the time they are taken into custody; 2) that suspects have the right for their lawyer to be physically present during questioning in order to provide effective legal assistance; and 3) that ‘one of the lawyer’s main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself and for his right to remain silent’.55 The Court went on to state that the applicable test under Articles 6(1) and (3) is applied in two stages: ‘first looking at whether or not there were compelling reasons to justify the restriction on the right of access to a lawyer and then examining the overall fairness of proceedings’.56 The existence of legislation precluding the absence of a lawyer cannot be seen by itself as compelling reasons; however, the overall fairness of the trial must be judged and strict scrutiny will be applied.57 The Court reviewed the extent of the restrictions Mr Doyle had experienced on his right of access to a lawyer and concluded that the restriction was proportionate.58 It also concluded that the applicant had not been particularly vulnerable during interviewing and that the police had not treated him wrongly. No threat or inducement affected his admissions.59 The applicant had been allowed to challenge the admission of the evidence before the domestic courts and it was found by each not to be problematic.60 The admissions made by the applicant during his fifteenth interview were incriminating and ‘formed a central part of the evidence against him’. However, for the sake of strict scrutiny, the Court also considered two other factors with regard to the evidence: first, that the confession was not the only evidence against the applicant; and second, that the applicant had had recourse to legal advice repeatedly before making those statements.61

52 

Doyle v Ireland (n 25) para 69. Ibid, para 71. 54  Ibid, para 73. 55  Ibid, para 74. 56  Ibid, para 75. 57  Ibid, paras 76–77. 58  Ibid, paras 81–83. 59  Ibid, paras 84–88. 60  Ibid, paras 89–91. 61  Ibid, paras 92–93. 53 

80  The Irish Yearbook of International Law 2019 Finally, the Court reviewed the other procedural safeguards which had been available to the applicant. He had been notified of his rights on arrest and had been able to consult with his solicitor on his rights; the solicitor had been allowed to interrupt the interviews to consult with the applicant; the interviews had been video-recorded and those recordings were available to the domestic courts in their deliberations on the admissibility of the evidence.62 The Court concluded that notwithstanding the very strict scrutiny that must be applied where, as here, there are no compelling reasons to justify a restriction of the accused’s right of access to a lawyer, when considered as a whole the overall fairness of the trial was not irretrievably prejudiced.63

It therefore followed that there had been no breach of Articles 6(1) and (3) of the Convention.64 IRELAND AT THE UNITED NATIONS

Committee on the Elimination of Racial Discrimination: Concluding Observations on the Combined Fifth to Ninth Reports of Ireland In December 2019, the Committee on the Elimination of Racial Discrimination (CERD) considered Ireland’s combined fifth to ninth reports and adopted its Concluding Observations. The Committee firstly welcomed some positive developments which had taken place during the reporting period, including Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities in 2018; the transposition of the recast Reception Conditions Directive (2013/33/EU)65 into national law in 2018; the official recognition of Travellers as an ethnic minority in 2017; the National Traveller and Roma Integration Strategy 2017–2021; the Migrant Integration Strategy 2017–2020; the International Protection Act 2015; and the Irish Human Rights and Equality Commission Act 2014.66 The Committee went on to note areas of concern regarding racial discrimination in Ireland. It noted that Ireland had not made any developments in incorporating the Convention on the Elimination of Racial Discrimination into its domestic law,67 and that it retained a reservation to Article 4 of the Convention.68 The Committee recommended that these issues be rectified. It also highlighted shortcomings in the Equal Status Acts 2000 to 2018 and the Employment Equality Acts 1998 to 2015, recommending that Ireland make amendments, including bringing the definition of racial discrimination provided for in these Acts in line with Article 1 of the Convention69 and ensuring that an effective remedy, with a legislative basis, is provided for 62 

Ibid, paras 97–99. Ibid, para 102. 64  Ibid, para 103. 65  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 (recast) [2013] OJ L180/96. 66 CERD, ‘Concluding Observations on the Combined Fifth to Ninth Reports of Ireland’ (12 December 2019), UN Doc CERD/C/IRL/CO/5-9, para 4. 67  Ibid, para 7. 68  Ibid, para 9. 69  Ibid, para 12a. 63 

Correspondent Reports—Duffy 81 discrimination.70 The Committee also recommended that Ireland improve its policy and institutional framework for the prevention of racial discrimination, including adopting a new National Action Plan Against Racism.71 The Committee expressed concern over the high levels of racial profiling by Gardaí that were reported to it toward Travellers, Roma persons and persons of African descent.72 It also cited concerns about abuse suffered by persons identifying as mixed-race Irish who were born in, and/or adopted from, so-called ‘Mother and Baby Homes’ and welcomed the establishment of the statutory Commission of Investigation into Mother and Baby Homes and Certain Related Matters.73 With regard to racist hate speech and hate crime, the Committee cited in particular ‘the frequent incidents of racist hate speech made by politicians, especially during election campaigns’74 and expressed concern that Ireland does not have criminal legislative provisions on substantive hate crime offences or aggravating circumstances for crimes of this nature. It also drew attention to the lack of criminalisation of racist organisations.75 The Committee called attention, in particular, to the situation of persons of African descent living in Ireland and the number of racist hate crimes that are perpetrated against them.76 It went on to recommend that Ireland take steps to ensure the effective participation of persons from ethnic minorities in public and political life,77 and to mitigate the disproportionate risk they face from the housing crisis.78 The Committee also welcomed the enactment of the Education (Admissions to Schools) Act 2018, which precludes primary schools using religion as a criterion for enrolment.79 With regard to Traveller and Roma communities, the Committee cited several areas of concern and for potential improvement. It noted that local authorities persistently underspend their Traveller accommodation budgets and recommended that this be changed.80 While welcoming the recognition of Travellers as an ethnic minority in 2017, the Committee recommended that Ireland ‘take legislative measures to formalise the recognition of Travellers as an official minority group, clarify the rights accorded to them and ensure that such rights are protected and promoted’.81 It also noted the challenges faced by Traveller and Roma people in enjoying their economic, social, and cultural rights, including employment, education, health and the recognition of Traveller culture.82 The Committee also had a number of recommendations with regard to refugees and asylum seekers. It cited several failures in the international protection system and noted the difficulties for asylum seekers in 70 

Ibid, para 12d. Ibid, para 13–14. 72  Ibid, para 15. 73  Ibid, para 17–18. 74  Ibid, para 19. 75  Ibid, para 21. 76  Ibid, para 23. 77  Ibid, para 26. 78  Ibid, para 28. 79  Ibid, para 29. 80  Ibid, para 28. 81  Ibid, para 32. 82  Ibid, para 33. 71 

82  The Irish Yearbook of International Law 2019 finding work.83 It also made serious criticisms of the Direct Provision system of asylum seeker accommodation,84 and urged the Irish Government to phase out Direct Provision in favour of an alternative reception model.85 The Committee cited concerns about the high levels of domestic, sexual and gender-based violence experienced by migrant women and in particular, those in Direct Provision centres. It expressed fear that ‘many migrant women victims of domestic violence whose residency status depends on their abusive spouses, particularly migrant women with irregular status, remain in abusive relationships due to the fear of being deported’. It also expressed concern over the continuing incidence of female genital mutilation in the jurisdiction.86 With regard to human trafficking, the Committee was concerned that the State ‘continues to fail to identify and protect victims of trafficking at the early stage due to the inadequate victim identification process and referral mechanism’.87 Lastly, the Committee issued recommendations on extending the scope of the Legal Aid Board to issues such as evictions and social welfare which are particularly relevant to Traveller and other ethnic minority groups;88 discriminatory refusals of entry to public houses and other licenced premises to Traveller and Roma persons;89 and the Irish State’s link to the Cerrejón mine complex in Colombia, which has been accused of serious human rights violations.90 The Committee also recommended that Ireland ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.91 FURTHER DOMESTIC DEVELOPMENTS

Developments on the Ex-Gratia Redress Scheme Following O’Keefe v Ireland Judge Iarflaith O’Neill, formerly of the High Court, was appointed as Independent Assessor to the ex-gratia redress scheme for victims of childhood sexual abuse in national schools, which was established following the ECtHR decision in O’Keefe v Ireland.92 The ex-gratia scheme had been put in place to provide redress for complainants who had experienced such abuse, but a condition had been placed on applications which required that applicants demonstrate that their experience of abuse had happened in the aftermath of a prior complaint of abuse which was not responded to.93 83 

Ibid, para 35. Ibid, para 37. Ibid, para 38. 86  Ibid, para 39. 87  Ibid, para 41. 88  Ibid, para 44. 89  Ibid, para 46. 90  Ibid, para 48. 91  Ibid, para 51. 92  O’Keefe v Ireland App no 35810/09 [2014] ECHR 96 (28 January 2014). 93  ‘Redress of Survivors of Sexual Abuse in National School’ (Child Law Clinic, University College Cork), available at: www.ucc.ie/en/childlawclinic/redressofsurvivorsofsexualabuseinnationalschool/. 84  85 

Correspondent Reports—Duffy 83 O’Neill J was appointed to assess the scheme in 2017 and published his report in July 2019. His role was to review the decision made by the State Claims Agency where a person has taken a case of school child sexual abuse against the State and where their cases come within the terms of the ECtHR judgement [sic] in the Louise O’Keefe case and are not statute barred.94

While the Independent Assessor was making his determination, the Dáil had debated the issue and voted that the scheme should be expanded to include applicants whose abusers had not had a prior complaint.95 O’Neill J’s report in 2019 found that the ‘prior complaint’ condition was incompatible with the O’Keefe judgment96 and that to continue to impose it would be to risk a continued breach of the Article 13 ECHR rights of the complainants affected.97 The State Claims Agency agreed to make payments to 13 such complainants following the Independent Assessor’s report. Activities of the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission on Brexit The imminent exit of the United Kingdom from the European Union formed a large focus of the work of the Irish Human Rights and Equality Commission (IHREC) in 2019. The Chief Commissioners of IHREC and the Northern Irish Human Rights Commission (NIHRC) gave evidence to the Oireachtas Joint Committee on Justice and Equality in January 2019.98 They spoke on areas where gaps in human rights protection have been identified under the proposed Withdrawal Agreement, including [t]he extent of protections provided by the UK Government’s ‘no diminution of rights’ commitment; [t]he UK’s decision to no longer be bound by the EU Charter of Fundamental Rights; [t]he legal basis for the Common Travel Area (CTA); EU Citizenship rights; [f]uture co-operative justice arrangements; [p]ossible future divergence on rights protections; [t]he strength of the proposed dedicated mechanism.99

The Joint Committee also published a report in August 2019 entitled ‘Evolving Justice Arrangements Post-Brexit’.100 The report made 13 recommendations for the justice and security situation between the United Kingdom and the European Union following Brexit.101

94 Judge Iarflaith O’Neill, Decision of the Independent Assessor, Re: Independent Assessment of claims for ex gratia payment arising from the judgment of the ECtHR in the Louise O’Keefe v Ireland case, July 5th 2019, para 3. 95  Pathway to Redress for Victims of Convicted Child Sexual Abusers: Motion [Private Members], Dáil Éireann Debates, 4th July 2018, Vol 971 No, 2. 96  Decision of the Independent Assessor (n 94) para 74. 97  Ibid, para 75. 98  Rights and Equality in the Context of Brexit: Discussion, Joint Oireachtas Committee on Justice and Equality, 23 January 2019. 99  Irish Human Rights and Equality Commission, ‘Annual Report 2019’, 46. 100  A Kramer, R Dickson and A Pues, ‘Evolving Justice Arrangements Post-Brexit’ (August 2019). 101  Ibid, 7–8.

84

Human Rights in Northern Ireland 2019 ESTHER McGUINESS*

2

019 MARKED THREE years without a Northern Ireland Executive or functioning Northern Ireland Assembly with practical consequences that extend beyond democratic deficit and a lack of political accountability.1 Figures released on homelessness in October 2019 revealed that 205 people who were homeless in Northern Ireland had died in the preceding 18 months:2 this equated to more than a quarter of all homeless deaths in the UK during the same period. Additionally, as social security reforms showed an eight per cent rise in child poverty in Northern Ireland,3 a report by Professor Philip Alston, the UN Special Rapporteur on Extreme Poverty and Human Rights,4 concluded that: ‘in NI, the suspension of the devolved coalition government forecloses the possibility of any major efforts to tackle poverty and results in an accountability vacuum’.5 Meanwhile, dealing with the past in a human rights compliant way, and to complete outstanding legacy investigations, remained stalled, and specific recommendations set out by the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW)6 and the UN Committee against Torture (CAT),7 on a number of women’s rights in Northern Ireland, appeared to rest on the resurrection of the Northern Ireland Assembly until the passage of the Northern Ireland (Executive Formation etc) Act 2019. This Act paved the way for human rights compliant abortion law to be in place by March 2019, and discussions on equal marriage, equal civil partnership arrangements and legislation for a Troubles-Related Victims Payment Scheme were in progress by the end of the year. Although 2019 was a year of disruption and disillusion ranging from the ­continuing Brexit process to an end-of-year UK General Election that was bound to decide the

*  Ulster University School of Law. 1 Northern Ireland Human Rights Commission (NIHRC), ‘The 2019 Annual Statement: Human Rights in Northern Ireland’ (December 2019). Available at: www.nihrc.org/uploads/publications/2019_ NIHRC_Annual_Statement.pdf. 2  The Bureau of Investigative Journalism. Available at: www.thebureauinvestigates.com/ stories/2019-03-11/homelessness-kills. 3  The Committee on the Administration of Justice (CAJ) and Brian Gormally’s Application [2015] NIQB 59. 4 UN Human Rights Council, Report of the Special Rapporteur on Extreme Poverty and Human Rights: Visit to the UK of Great Britain and NI, A/HRC/41/39/Add.1 (23 April 2019). 5  Ibid, para 87. 6  UN CEDAW Committee Inquiry Concerning the UK of Great Britain and NI under Article 8 of the Optional Protocol to the UN CEDAW, CEDAW/C/OP.8/GBR/1 (6 March 2018). 7  UN CAT Committee Concluding Observations on the Sixth Periodic report of the UK of Great Britain and NI, CAT/C/GBR/CO/6 (7 June 2019).

86  The Irish Yearbook of International Law 2019 immediate future for people in Northern Ireland,8 the events of 2019 also showed that new opportunities for rights-protection can arise out of crisis even as, as this report for the Yearbook illustrates, the struggle for a society based on human rights and equality in Northern Ireland continued. BREXIT AND HUMAN RIGHTS IN NORTHERN IRELAND

Further to the UK Referendum result in 2016 in favour of leaving the EU, and the UK Parliament’s failure to ratify the draft UK-EU Withdrawal Agreement of November 2018,9 a number of steps were taken to mitigate risks associated with a ‘no deal’ exit. On 9 April 2019, the European Council announced that it had approved a regulation providing for visa-free travel for UK citizens after Brexit, in respect of visits of up to 90 days within the Schengen area.10 Continuing implementation of the regulation would be contingent on UK reciprocity. In July 2019, Prime Minister Boris Johnson told the UK Parliament that he wanted to repeat the commitment made to the 3.2 million EU nationals in the UK that ‘under this Government they will have the absolute certainty of the right to live and remain’.11 The Immigration (European Economic Area Nationals) (EU Exit) Order 2019 enables European Economic Area nationals or Swiss nationals to enter the UK after Brexit for a period of three months. The Order imposes no restriction on the activities they may undertake, thus allowing them to work or study. This provides an interim arrangement in a ‘no deal’ situation where new immigration law is not in place. It will come into effect when the free movement regulations are revoked – either on exit day if there is no deal, or at the end of the transition period. The Withdrawal of the UK from the EU (Consequential Provisions) Act 2019 was enacted in Ireland in March 2019. The Act seeks to mitigate the impact of a no deal exit and provide continuity, where possible, in North-South cooperation. On 17 October 2019, a revised Withdrawal Agreement between the UK Government and the EU was published, which included an amended Ireland/NI Protocol. Article 2 on individual rights, including the ‘no diminution of rights’ commitment and the establishment of a dedicated mechanism for oversight, was retained as drafted in the Withdrawal Agreement 2018. Omitted from the revised Protocol were the non-regression commitments on labour and social standards and environmental protection.12 8  See comments by Brian Gormally, Director of the Committee on the Administration of Justice (CAJ); https://caj.org.uk/2019/12/11/caj-annual-report-2019/. 9  Available at: https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf. 10  PE-CONS 71-19, ‘Regulation (EU) 2019 of the European Parliament and the Council of Amending Regulation (EU) 2018/1806 Listing the Third Countries Whose Nationals Must Be in Possession of Visas when Crossing the External Borders and Those Whose Nationals are Exempt from that Requirement, as Regards the Withdrawal of the UK from the Union’, 4 April 2019. See also, NIHRC Annual Human Rights Statement 2019 (n 1) at 22. 11  ‘Boris Johnson: First Speech as PM in Full’ (BBC News 24 July 2019). Available at www.bbc.co.uk/ news/uk-politics-49102495. 12  HM Government, ‘Agreement on the Withdrawal of the UK of Great Britain and NI from the EU and the European Atomic Energy Community’ (HM Government, 2019). Available at: www.gov.uk/ government/publications/new-withdrawal-agreement-and-political-declaration.

Correspondent Reports—McGuiness 87 On 21 October 2019, the EU (Withdrawal Agreement) Bill was introduced in the UK Parliament. The Bill passed its second reading but fell when the UK Parliament was dissolved on 5 November 2019, ahead of elections. The Bill provided for all rights, powers, liabilities, obligations and remedies under the Withdrawal Agreement to be enforceable in UK law. The Bill also provided for citizens’ rights, a transition period running until December 2020 and financial liabilities under the Withdrawal Agreement.13 On 19 October 2019, as required by the EU (Withdrawal) (No 2) Act 2019 (referred to as the Benn Act), Prime Minister Boris Johnson wrote to the European Council seeking an extension to the terms of the UK’s Article 50 notice of withdrawal from the EU. The extension was granted, as requested, until 31 January 2020.14 DEALING WITH THE PAST

The Stormont House Agreement On 23 December 2014, the Stormont House Agreement was reached.15 The Agreement sets out a structure for the effective investigation of conflict related deaths. This structure includes an Oral History Archive,16 Victims and Survivors’ Services (including a Mental Trauma Service, pension for severely physically injured victims, and advocate-counsellor assistance),17 the Historical Inquiries Unit,18 the Independent Commission on Information Retrieval,19 and the Implementation and Reconciliation Group.20 The UK Government has committed within the financial annex of the Stormont House Agreement to provide up to £150 million over five years to help fund the bodies to deal with the past.21 In July 2019, the Northern Ireland Office published a summary of the 17,000 responses to the legacy consultation. This document will be used to inform the UK Government’s next steps, which it is said will be set out ‘in due course’.22 The ­overarching message from the majority of respondents was ‘the current system needs

13 

‘EU (Withdrawal Agreement) Bill 2019–20’. Stone, ‘EU Grants Brexit Extension until February Next Year’, The Independent (28 October 2019). Available at: www.independent.co.uk/news/uk/politics/brexit-deal-extension-borisjohnson-news-eu-2020-flextension-latest-a9173941.html. 15  Northern Ireland (NI) Office, ‘The Stormont House Agreement’ (23 December 2014). Available at: www.gov.uk/government/publications/the-stormont-house-agreement. 16  Ibid, para 22. 17  Ibid, paras 26–29. 18  Ibid, para 30. 19  Ibid, para 41. 20  Ibid, para 51. 21 NI Office, ‘Stormont House Agreement: Financial Annex’ (NIO, 2014) 1. The Stormont House Agreement includes a further broad financial commitment to all sections covered within the Agreement. It is stated within the Financial Annex that: ‘the total value of the Government’s package is additional spending power of almost £2 billion’. 22  NI Office, ‘Press Release: Government Publishes Summary of Responses to Legacy Consultation’ (5 July 2019). 14  Jon

88  The Irish Yearbook of International Law 2019 to be reformed’.23 The Northern Ireland Office accepted it has ‘an obligation to seek to address the legacy of the past in a way that builds for the future … [and confirmed that the UK] Government remains fully committed to the implementation of the Stormont House Agreement’.24 Legacy Inquests and Conflict Related Deaths On the 28th February 2019, the Department of Justice (DoJ), finally announced an initiative to speed up legacy inquest arrangements and deal with outstanding cases25 following a High Court decision in Belfast in which Sir Paul Girvan stated that ‘the delay in dealing with this inquest and other legacy inquests arises from the lack of resources to fund a timely and efficient system to manage and run the statutory inquests having regard to their nature, likely length and complexity’.26 The DoJ’s decision will allow the implementation of proposals developed by the Lord Chief Justice in 2016.27 Building on a number of assumptions, the Department estimates the cost of delivering the new inquest model at £55m over six years. A new Legacy Inquest Unit will be set up within the Coroner’s Service to process legacy inquests, under the remit of the Lord Chief Justice as President of Coroner’s Courts. The Unit will be supported by increased capacity in the Police Service for Northern Ireland (PSNI), the Public Prosecution Service and other justice agencies. The DoJ announcement noted that the six-year timescale for the initiative reflects the need to build up capacity and the complexity of the outstanding legacy inquest cases. In June 2019, there was a legacy caseload of 54 cases relating to 95 deaths, including three cases relating to three deaths referred to the coroner by the Attorney General for NI since December 2018. A schedule has been set to hear preliminary hearings into all the outstanding cases starting September 2019, with the exception of the nine Stalker Sampson cases into an alleged Royal Ulster Constabulary shootto-kill policy in the 1980s, a date for which is to be set in due course. The first full hearings are to start in April 2020 and a thematic approach to the hearing schedule is being considered to avoid the potential of missing a bigger picture.28 In September 2019, the Lord Chief Justice, Declan Morgan, confirmed that ‘representatives for the families and the relevant agencies have been asked to provide an update on each case in advance of these hearings’.29 The Lord Chief Justice also emphasised that ‘it is important that all those involved work together to ensure that

23 NI Office, ‘Addressing the Legacy of NI’s Past: Analysis of the Consultation Responses’ (NIO, 2019) 4. 24  Ibid. See also NIHRC Annual Human Rights Statement 2019 (n 1) 27. 25  Department of Justice, ‘DoJ Announces Legacy Inquest Reform’ (DoJ, 28 February 2019). Available at: www.justice-ni.gov.uk/news/doj-announces-legacy-inquest-reform. 26  In the Matter of an Application by Brigid Hughes for Judicial Review [2018] NIQB 30, at para 12. 27  See www.justice-ni.gov.uk/news/doj-announces-legacy-inquest-reform. 28  ‘Families Assured over Timeframe for Legacy Inquests’, Belfast Telegraph (7 June 2019). 29  ‘The Lord Chief Justice, Declan Morgan’s, Opening of Term Address 2019’ (Royal Courts of Justice, 5 September 2019).

Correspondent Reports—McGuiness 89 legacy inquest cases are prepared for hearing expeditiously and that disclosure issues are identified early and, through collaboration and dialogue, that reasonable and proportionate solutions are found’.30 The Case of Pearse Jordan Pearse Jordan was shot and killed on the 25th November 1992 by a member of the Royal Ulster Constabulary. He was 22 years old. The investigation into his death has been the subject of a number of inquests. In October 2018 the Jordan family sought to challenge the verdict of a coroner through judicial review by arguing that the coroner had failed to discharge his responsibilities by concluding that ‘it is now impossible with the passage of time to say with any certainty what happened on that fateful afternoon’.31 The Court of Appeal also dismissed the appeal on all grounds, with Lord Justice Stephens saying: ‘We are satisfied the coroner demonstrated that he had striven hard to make a finding about the various issues and that he had explained the basis for his conclusion that it was not possible for him to do so.’32 The Court held that the statutory obligation on the coroner is to consider whether something has or has not been proved on the balance of probabilities. This must also involve consideration as to whether the coroner is undecided as to whether something did or did not occur.33 Mrs Theresa Jordan, the mother of Pearse Jordan, was seeking a declaration that the inquest was unfair, unlawful and in breach of the European Convention on Human Rights (ECHR). Subsequently, an appeal to the Supreme Court was brought to challenge the general guidance aspect of the Court of Appeal’s ruling and its individual application to Mr Jordan’s case.34 The central issue in this appeal was whether the Court of Appeal in Northern Ireland was entitled to order that a claim for damages under section 8 of the Human Rights Act 1998, for breach of the requirement under Article 2 of the ECHR that an investigation into a death should begin promptly and proceed with reasonable expedition, should not be brought until an inquest has been concluded, or if already brought should be stayed until after that date.35 However, by the time the Supreme Court handed down judgment, In re McCord’s application for Judicial Review had already clarified that the ruling in Jordan was not intended to be of general application.36 Recognising that in effect the guidance given in McCord had narrowed the scope of the Court of Appeal’s ruling in Jordan, the Supreme Court however went on to consider the matters of principle. It was clear that the Court of Appeal could not

30 

Ibid. In the Matter of an Application by Theresa Jordan for Judicial Review [2018] NICA 34. 32  Ibid. 33  See www.pilsni.org/case-blog/matter-application-theresa-jordan-judicial-review-2018-nica-34. 34  In the Matter of an Application by Hugh Jordan for Judicial Review (Northern Ireland) [2019] UKSC 9. 35 See Supreme Court Judgment at https://madden-finucane.com/2019/03/06/pearse-jordan-case-uksupreme-court-judgment-in-the-matter-of-an-application-by-hugh-jordan-for-judicial-review/. 36  In re McCord’s Application for Judicial Review, unreported, 18 January 2019 at para 22. 31 

90  The Irish Yearbook of International Law 2019 issue guidance that sought to restrict when a claimant could issue a damages claim. First: In considering the guidance given by the Court of Appeal in the present case, as clarified in the case of McCord, it must be borne in mind at the outset that, in cases of the present kind, it is the delay itself which constitutes a breach of the claimant’s Convention rights and gives rise to a right to bring proceedings under the Human Rights Act. The breach does not crystallise only after the inquest has been concluded: the claimant is entitled to bring proceedings as soon as the delay reaches the requisite threshold under article 2.37

Second: No court can take away the right conferred by section 7(1)(a), whether in the exercise of case management powers or otherwise. Leaving aside the court’s power to control vexatious litigants and abuses of process, which are not here in issue, there can be no question of anyone being prevented from bringing proceedings at a time of their choosing (subject to the limitation provision in section 7(5)) in respect of a claimed violation of their Convention rights.38

Mr Jordan’s case illustrated the importance of expedition where proceedings are brought by claimants who are elderly or infirm. In striking an appropriate balance between the different interests at stake, the length of any stay will be of considerable importance. Unfortunately, the issues of delay that occurred in Mr Jordan’s case are all too common, and it is unlikely that it will improve in the future. As Lord Reed, somewhat pointedly noted: The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what have come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment In re Hughes’ application for Judicial Review [2018] NIQB 30, Sir Paul Girvan found that there was systemic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved. There were at that point 54 inquests pending in relation to 94 deaths. Only one inquest was heard during 2018. In an effort to address this problem, reforms have been proposed by the Lord Chief Justice of Northern Ireland which, it is hoped, will enable all the outstanding cases to be heard within five years.39

The Case of Pat Finucane In 2015, the UN Human Rights Committee recommended that the UK Government consider launching an official inquiry into the murder of Pat Finucane.40 In June 2018, the UK Supreme Court heard a challenge to the decision of the Court of Appeal in which it was argued that the failure to establish a public inquiry into the murder

37 

In the Matter of an Application by Hugh Jordan for Judicial Review (n 34) at para 25. Ibid at para 31. 39  Ibid at para 32. 40  UN Human Rights Committee Concluding Observations on the Seventh Periodic Report of the UK of Great Britain and NI, CCPR/C/GBR/CO/7 (17 August 2015) para 8. 38 

Correspondent Reports—McGuiness 91 of Mr Finucane was incompatible with Article 2 of the ECHR.41 The Court, which delivered its decision on the 27th February 2019, ruled that the UK authorities had not yet conducted an effective investigation into the 1989 murder of Pat Finucane42 and thus had not discharged the UK’s obligation to conduct an effective investigation under Article 2 of the ECHR. The Court’s five judges did not explicitly order a public inquiry, but rather held that it is for the State to decide, in light of the incapacity of Sir Desmond de Silva’s review and the inquiries which preceded it to meet the procedural requirement of Article 2, what form of investigation, if indeed any is now feasible, is required in order to meet that requirement.43

The Case of Patsy Duffy On the 22nd March 2019, the Attorney General for Northern Ireland, John Larkin, directed a fresh inquest into the death of Mr Patsy Duffy under section 14 of the Coroner’s Act (Northern Ireland) 1959. Mr Duffy, an unarmed civilian, was gunned down by British soldiers in 1978. Pathology evidence at the original inquest, held on the 9th and 10th December 1980 in Derry, confirmed that Patrick Duffy was shot at least 11 times but possibly up to 14 times. The same evidence confirmed that bullets were fired from his left-hand side or behind him into his back with at least two of these shots being at close range to the left side of his chest. Mr Duffy was alone and unarmed at the time of the shooting.44 At the time of writing, a date is yet to be confirmed for the commencement of an inquest. The McKerr Group of Cases In March 2019, the Committee of Ministers of the Council of Europe published its latest decisions on ‘cases concerning the actions of the security forces in Northern Ireland’, otherwise known as the McKerr group of cases.45 Among other decisions, the Committee of Ministers: —— reiterated their serious concerns about the delay in the establishment of the Historical Investigations Unit and other legacy institutions and underlined that, notwithstanding the complexity of the broader political picture, it is imperative that a way forward be found to enable effective investigations to be conducted, particularly in light of the length of time that has already passed since these

41  In the Matter of an Application by Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7. 42  Ibid. 43  Ibid, at para 153. 44 See Press Release from Harte Coyle Collins Solicitors available at: https://hcclawyers.com/ fresh-inquest-into-military-shooting-of-patrick-duffy-in-1978/. 45 H46-30 McKerr Group v United Kingdom App No 28883/95 (ECHR, 12–14 March 2019). C