The Irish Yearbook of International Law: Volume 8, 2013 9781782257837, 9781849467605

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E D IT O R I A L B O A R D

Members of the Advisory Board Lord Lester of Herne Hill QC Professor Conor Gearty, London School of Economics and Political Science Professor Gráinne de Búrca, New York University Judge Teresa Doherty, Special Court for Sierra Leone Ms Patricia O’Brien, Permanent Representative of Ireland to the United Nations and other International Organisations in Geneva Editors-in-Chief Professor Fiona de Londras, Chair of Global Legal Studies, University of Birmingham Professor Siobhán Mullally, University College Cork Members of the Editorial Board Professor Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics and Political Science Dr Dug Cubie, Queen’s University Belfast Dr Shane Darcy, Irish Centre for Human Rights, NUI Galway Professor Jeffrey L Dunoff, Temple University Professor Imelda Maher, University College Dublin Professor Joseph McMahon, University College Dublin Professor Fionnuala ní Aoláin, University of Minnesota and Transitional Justice Institute, Ulster University Dr Aoife O’Donoghue, Durham University Professor Michael O’Flaherty, NUI Galway Professor Gerard Quinn, National University of Ireland, Galway Professor Jaya Ramji-Nogales, Temple University Professor Phillipe Sands, University College London Professor William Schabas, Middlesex University Correspondents Dr Fiona O’Regan, Human Rights in Ireland in 2013 Dr Dug Cubie, Ireland and International Law in 2013 Dr Roderic O’Gorman, Ireland and the European Union in 2013 Professor Brice Dickson, Human Rights in Northern Ireland in 2013 Professor Ronán Long, Irish State Practice on the Law of the Sea in 2013 Book Reviews Editor Dr Michael Kearney, University of Sussex

Irish Yearbook of International Law 2013 Articles—Koumjian and Kenny

Specific Direction: The ICTY’s ‘Novel’ Attempt to Regulate State Action NICHOLAS KOUMJIAN AND CÓMAN KENNY*

IN T R ODU C T I ON

D

O RECENT DEVELOPMENTS in international criminal law threaten to criminalise the normal exercise of a state’s foreign policy by holding leaders responsible for assistance to any group that ends up committing war crimes or crimes against humanity? Or should all those providing such assistance be immunised for the crimes committed by those they aid so long as the assistance was not sent for the purpose of furthering the crimes, even if it was obvious that the aid would be used in crimes? The aiding and abetting convictions of former Liberian President Charles Taylor at the Special Court for Sierra Leone (SCSL)1 and General Momčilo Perišić, formerly Chief of Staff of the Yugoslav Army before the International Criminal Tribunal for the former Yugoslavia (ICTY)2 were widely seen as having far-reaching consequences in international criminal law and the legal risks involved in military support provided across borders. Critics predicted that such an aggressive judicial approach would bind the hands of states to conduct normal foreign policies due to the fear that their military leadership and even heads of state could be prosecuted for any support to parties to a conflict in another state which ended up being used in the commission of crimes. The Perišić and Taylor trials were landmark cases not only because of the positions held by the respective accused, but because of the circumstances in which their alleged criminal conduct took place. They each were convicted of crimes outside the borders of their own state, perpetrated by armed groups who were not from their own country and whom they did not command. At the appellate level, the Perišić and Taylor cases came to very different final resolutions—Perišić was acquitted on all charges while Taylor’s conviction was upheld. The contrasting results were due to the very divergent interpretations of the applicable parameters of aiding and abetting liability applied in these judgments. * Nicholas Koumjian is the International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia and was previously Senior Appeals Counsel for the Prosecution in the case against Charles Taylor at the Special Court for Sierra Leone. Cóman Kenny is an Assistant Trial Lawyer for the Prosecution at the International Criminal Court and was formerly Assistant Legal Officer for the Prosecution in the case against Charles Taylor at the Special Court for Sierra Leone. The views expressed herein are those of the authors alone. 1 Prosecutor v Taylor (Judgment) SCSL-03-01-T, T Ch II (18 May 2012). 2 Prosecutor v Perišić (Judgment) IT-04-81-T, T Ch I (6 September 2011).

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First, the ICTY Appeals Chamber acquitted General Perišić based on the so-called ‘specific direction’ standard.3 The Appeals Chamber found that certain factual circumstances, namely, where assistance provided was ‘remote’ from the crime, necessitated the proving of an additional requirement in order to impose aiding and abetting liability—that an accused’s assistance be ‘specifically directed’ to the commission of the crime. Subsequently, the Appeals Chamber of the SCSL, statutorily mandated to be guided by the jurisprudence of the ICTY,4 reviewed the Perišić Appeal Judgment (AJ), as well as international and domestic jurisprudence, before holding that specific direction is not an element of aiding and abetting liability, as it fails to represent customary international law. Consequently, the SCSL Appeals Chamber upheld the conviction and 50 year sentence imposed upon Charles Taylor for aiding and abetting the atrocities committed in Sierra Leone while he was President of Liberia.5 Four months after the Taylor Judgment, the Appeals Chamber of the ICTY—with a different panel of judges from that in Perišić—addressed this schism in the international jurisprudence. The Šainović-AJ echoed the position of the SCSL Appeals Chamber by repudiating the approach adopted in the Perišić-AJ.6 Whether this marks an end to the question of specific direction, however, is debatable, given the possibility that a differently constituted Appeals Chamber could yet revisit the Perišić-AJ and uphold the rationale set out therein. The ultimate resolution of the issue as to whether specific direction is a requirement for aiding and abetting liability is likely to have a huge impact on the determination of individual criminal liability. It will not only impact whether there are convictions or acquittals in individual cases, but will almost certainly influence the behaviour of states as well. If general military assistance to a military force that is not specifically directed to crimes is permissible, individual arms sellers, businesses and governments need not worry about how such assistance is being used. They would be free to continue to provide weapons to groups knowing it is substantially assisting the commission of crimes without worrying about incurring any criminal liability. Additionally, any incentives to monitor the use of the weaponry they provide to see if it is in fact facilitating the commission of crimes or taking steps to ensure that such crimes are less likely to occur with the assistance provided would be lost. This article argues that, while the Perišić-AJ was an attempt to deal with the very serious and legitimate issue as to when assistance to groups implicated in human rights abuses should be criminalised, the law as set down in the Taylor and Šainović Appeal Judgments is sufficient to meet these concerns. Properly interpreted, the elements of the mode of responsibility of aiding and abetting protects those giving non-culpable assistance and does not impose strict liability for all crimes committed by a group who has received assistance. The long established elements of aiding and abetting, as reiterated in Taylor and Šainović, ensure that the only individuals who 3 Prosecutor v Perišić (Appeal Judgment) IT-04-81-A (28 February 2013) (Perišić-AJ). The Perišić-AJ referenced herein refers to the Majority Judgment on the question of specific direction (Judges Meron, Agius and Vaz). Though Judge Ramaroson signed the Majority Judgment, she also issued a separate opinion disagreeing with the majority on the issue of specific direction. Judge Liu appended a Dissenting Opinion. 4 Statute of the Special Court for Sierra Leone, Art 20(3). 5 Prosecutor v Taylor (Appeal Judgment) SCSL-03-01-A (26 September 2013) (Taylor-AJ). 6 Prosecutor v Šainović et al (Appeal Judgment) IT-05-87-A (23 January 2014) (Šainović-AJ).

Articles—Koumjian and Kenny 5 can be convicted of international crimes under this mode of liability are those who act in a manner which they know will assist the commission of crimes and whose actions do, in fact, have a substantial effect on the commission of those crimes. By contrast, under the conception set down in the Perišić-AJ, prosecutions under aiding and abetting would solely be the domain of ‘small fish’ perpetrators, and those who are most culpable would be granted de facto immunity from international criminal prosecution unless they could be held accountable under an alternative mode of liability.

TH E P E RIŠI Ć T R I A L JU DGMENT

General Momčilo Perišić was Chief of the General Staff and thus the most senior officer in the Yugoslav Army (VJ).7 Unlike most ICTY indictments which included joint criminal enterprise, ordering and planning modes of liability, Perišić was charged only for aiding and abetting and command responsibility (failure to prevent and punish the crimes of subordinates). His case was noteworthy for another reason: the actions which were central to the charges against Perišić crossed state boundaries and encompassed assistance to an army of which Perišić was not a member. At trial, Perišić was found guilty of having ‘repeatedly exercised his authority to assist the VRS [Army of the Republika Srpska] in waging a war that encompassed systematic criminal actions against Bosnian Muslim civilians as a military strategy and objective’.8 It was held by a majority of the Trial Chamber that ‘Perišić sustained the very life line of the VRS and created the conditions for it to implement a war strategy that encompassed the commission of crimes against civilians’,9 which included the siege of Sarajevo and the conquest of Srebrenica.10 The majority further held that ‘the overwhelming majority of Perišić’s actions’ facilitated the commission of crimes.11 Such damning and unambiguous findings makes Perišić’s subsequent acquittal on appeal all the more significant. The majority in the Appeals Chamber took no issue with these facts, yet reversed Perišić’s conviction on all 12 counts, revoked his sentence of 27 years, entered a judgment of acquittal and ordered him released. The legal error which the Appeals Chamber relied on to vacate the conviction came down to the failure of the Trial Chamber to properly apply a single term in analysing Perišić’s aiding and abetting liability, a term which had, at least up until that point, never been clearly defined by the Appeals Chamber of the ad hoc tribunals—‘specific direction’. Specific direction was not entirely unknown in the jurisprudence of the ad hoc tribunals, in the sense that it frequently, but not consistently, appeared in the definition of aiding and abetting liability in the applicable law sections of judgments. Previous judgments which included the term referred to it as part of the actus reus of aiding and abetting, and no case discussed in any detail what the term meant or how fact-finders could determine whether or not assistance was ‘specifically directed’

7

Perišić Judgment, above n 2, para 3. Ibid, para 1621. 9 Ibid, para 1623. 10 Ibid, para 1621. 11 Ibid, para 1625. 8

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to the commission of crimes.12 Specific direction did, however, play a critical part in the Dissenting Opinion of Judge Moloto in the Perišić Judgment. In his dissent from the convicting majority, Judge Moloto sought to elucidate the meaning of specific direction and why the evidence in Perišić should have resulted in an acquittal as this ‘element’ of aiding and abetting liability had not been met.

A Signal of Things to Come—Judge Moloto’s Dissent on Specific Direction Relying on the Mrkšić & Šljivančanin and Blagojević & Jokić Appeal Judgments, the majority of the Trial Chamber in Perišić held that an aider and abettor need not have specifically directed their assistance to the commission of the crimes.13 Judge Moloto disagreed, and ‘stress[ed] that the notion of “specific direction” has been consistently cited by this Tribunal in the definition of aiding and abetting’.14 He considered that if, in fact, the concept of specific direction is implicit in a finding that an accused has provided practical assistance which had a substantial effect on the commission of the crime—as noted in prior jurisprudence—then a ‘direct link needs to be established between the conduct of the aider and abettor and the commission of the crimes’.15 On this basis, Judge Moloto sought to distinguish between aiding and abetting in the cases which had previously been decided by the Appeals Chamber—where the aider and abettor was proximate to the crime scene—and the case of Perišić, contending that ‘in cases of remoteness, the notion of specific direction must form an integral and explicit component of the objective element of aiding and abetting’.16 Judge Moloto’s dissent suggested that the notion of specific direction could not be ignored where the aider and abettor’s assistance could be said to have been ‘directed at supporting the war effort and not to the commission of the crimes’.17 He noted that while Perišić directly issued orders providing assistance to the VRS and repeatedly urged that assistance be provided to the VRS—units of which were involved in the commission of crimes—there was no evidence that Perišić’s actions were specifically directed to providing practical assistance to the commission of crimes. Judge Moloto pointed to the absence of any discussion linking logistical assistance to the crimes in the minutes of meetings in which Perišić participated.18 Further, his dissent underlined that it had not been conclusively established ‘that the specific weapons used in committing the crimes’ had been provided by Perišić,19 yet accepted that the VJ was ‘the 12 See, eg G Boas, JL Bischoff and NL Reid, International Criminal Law Practitioner Library. Vol I. Forms of Responsibility in International Criminal Law (Cambridge, Cambridge University Press, 2007) 303–04: ‘Since the early Tadić and Furundžija Trial Judgments, the elements of aiding and abetting have been applied fairly consistently in the jurisprudence of the ad hoc Tribunals. Most subsequent case law differed only by clarifying the wording first used in those two judgments. The formulation of the elements set down in Furundžija are the most often quoted and applied for this form of responsibility’ (footnotes omitted). 13 Ibid, para 1624. 14 Perišić Judgment, above n 2, Dissenting Opinion of Judge Moloto on counts 1–4 and 9–12, para 9 (Judge Moloto Dissent). 15 Ibid, para 10. 16 Ibid, para 10 (original emphasis). 17 Ibid, paras 13–14. 18 Ibid, paras 15, 17. 19 Ibid, para 18.

Articles—Koumjian and Kenny 7 primary source of weaponry’.20 While Perišić had provided logistical assistance to the VRS, it was the commanders in the VRS that subsequently gave arms and ammunition to the soldiers who subsequently committed crimes. This represented a novus actus interviniens in Judge Moloto’s view, though he acknowledged that the jurisprudence of the ICTY does not require a causal relationship for the imposition of aiding and abetting liability, but a substantial effect on the commission of the crime.21 Judge Moloto’s dissent thus seems to view specific direction as requiring a clear causal link between the assistance and the crime. Despite accepting that it is not necessary to establish that logistical assistance served as a conditio sine qua non of the commission of crimes, he considered that, in Perišić’s case, the ‘intervening factors breaking the chain of events raises a reasonable doubt as to whether the logistical assistance  … had a substantial effect on the crimes’.22 It appears, therefore, that in cases of remoteness between the accused aider and abettor and the physical commission of crimes, Judge Moloto’s characterisation of specific direction is a requirement that there be a clear chain of causation between the provision of assistance and the perpetration of the crimes. Within this context, the particular circumstances of the Perišić case were emphasised in the judge’s dissent, underscoring, as he did, ‘the novelty of this case’.23 Judge Moloto proceeded to view the facts of the Perišić case through the lens of the ‘many conflict zones around the world, [in which] the provision of military aid is aimed at supporting mutual interests such as the deterrence of war, the promotion of regional and global peace, stability and prosperity and other objectives’.24 In so doing, he raised the spectre that by not requiring logistical assistance be specifically directed to crimes, ‘all military and political leaders, who on the basis of circumstantial evidence are found to provide logistical assistance to a foreign army dependent on such assistance, can meet the objective element of aiding and abetting’.25 It was clear even during the closing arguments at trial that Judge Moloto was concerned with the precedential implications the Perišić case would set for commanders in other conflicts from the questions he asked a prosecution lawyer during the closing oral hearing: [M]y question is what is the authority for the proposition that, if an army assists another army in war and crimes are committed of the nature that are charged in this indictment, that the assisting army or the commander of the assisting army is guilty of aiding and abetting those crimes.26 … Okay. Let me paint you an analogous scenario and get your comment on it. A war began in Afghanistan in 2001 and it is generally known that there are allegations of crime having been committed at least since 2002 to date. Does that make the commanders of the various NATO armies that are jointly participating in that war guilty of the crimes that are alleged

20

Ibid, para 26. Ibid, para 28. 22 Ibid, para 29. 23 Ibid, para 31. 24 Ibid, para 32. 25 Ibid, para 33. 26 Prosecutor v Perišić (Oral Hearing) IT-04-81-T (28 March 2011) 14656, available at http://icty.org/x/ cases/perisic/ trans/en/110328ED.htm (accessed on 26 October 2014). 21

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Irish Yearbook of International Law 2013 to have been committed and are still being committed, like detentions in Guantanamo, in Bagram, in Kabul and all these places.27 … What is the authority for that proposition and I’m saying can you comment on the—on the analogy that I’ve drawn because all the other commanders of the NATO nations that are involved in Afghanistan are aware of the kind of crimes that have been committed there and are still continuing with that war. It’s not a political question, it’s an analogous situation to this one.28 … You see, unfortunately, we don’t seem to be on the same wavelength. The detentions that I’m referring to … the … Afghanistani war, I know that General Perisic is not charged with such, but they are the type of crime, like the murders that he is charged with, that are committed away from the theatre of war not in combat but still they are crimes, they are war crimes, so they are crimes against humanity and—but the point I’m asking simply is because the armies, the commanders of the remaining NATO countries that are participating in Afghanistan are aware of the fact that crimes have been committed, crimes against humanity have been committed, and yet those commanders are still continuing to participate in that war, are they then guilty of those crimes that are being committed? That’s just—you either say they are not guilty or they are guilty. If anybody is guilty of those crimes, then they are equally guilty with those people of those crimes, because they are aware of those crimes being committed and yet they are continuing to participate in that war.29

Judge Moloto’s palpable concerns regarding the potential repercussions of a conviction in the Perišić case serving as a template which could be used to implicate western military and political leaders are the thread running through his argument for Perišić’s acquittal. It is a floodgates argument which, in a field wherein law and politics uneasily coexist, appears to edge policy concerns over the need for accountability.

TH E P E R I Š I Ć A PPEA LS JU DGEMENT

Despite the similarity of the views expressed by Judge Moloto, the Perišić-AJ, which arrived at the same conclusion by means of broadly similar reasoning, did not make reference to his dissent. Rather, the Perišić-AJ, having characterised the previous case law of the tribunal as representing ‘well-settled precedent that specific direction is a necessary element of aiding and abetting liability’,30 concluded that specific direction is an indispensable element of aiding and abetting liability, holding that ‘no conviction  … may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly’.31

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Ibid, 14657. Ibid, 14658. 29 Ibid, 14660. 30 Perišić-AJ, above n 3, para 41. 31 Ibid, para 36. 28

Articles—Koumjian and Kenny 9 The Requirement for Specific Direction as enunciated by the Appeals Chamber Like Judge Moloto’s dissent, the Perišić-AJ relies on specific direction to distinguish the facts of the Perišić case from previous instances of accused being convicted for aiding and abetting.32 It is this distinction between the facts of the Perišić case and previous cases before the International Tribunal to which the Perišić-AJ attributes the lack of ‘extensive analyses of specific direction’, given that ‘prior convictions for aiding and abetting entered or affirmed by the Appeals Chamber involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators’.33 It held that where proximity is present, specific direction may be implicitly demonstrated through the other elements of aiding and abetting liability, utilising the example of the physical presence of the accused during the commission of the crime.34 In situations in which the assistance provided by an accused is ‘remote’, however, the Perišić-AJ held that the fulfilling of the other elements of aiding and abetting may not be sufficient to establish specific direction, which consequently must be expressly considered.35 The judgment lists geographic and temporal removal from the commission of crimes as factors indicating that the acts of an accused are ‘remote from the crimes’,36 thereby requiring express findings that assistance was specifically directed to crimes. The central tenet of specific direction as set out in the Perišić-AJ is that it establishes a ‘culpable link between assistance provided by an accused individual and the crimes of principal perpetrators’.37 The unstated assertion is consequently that providing assistance one knows will assist crimes and which in fact has a substantial effect on the commission of those crimes is not ‘culpable’ without a further element. Such an approach, however, is not satisfactory when dealing with the question of individual criminal responsibility. First, it is not clear, in the absence of a definition of ‘culpable link’, what the Perišić-AJ had in mind when it suggested that specific direction will be ‘self-evident’ in a scenario where an accused aider and abettor was present at the scene of a crime.38 Mere presence at the scene of a crime does not necessarily establish a higher contribution to the commission of that crime or an elevated mental state. Secondly, specific direction, as enunciated in the Perišić-AJ, establishes an element of responsibility that is only required to be expressly considered in certain contexts, thereby creating two different standards within one mode of liability and concomitantly, violating the principle of equal application of the law. Under such a legal regime, two accused could share the same knowledge and make the same substantial contribution to the commission of crimes, with the one who is ‘proximate’ being held to account upon the establishment of the ‘traditional’ elements of aiding and abetting liability while the accused that is remote would not be found responsible unless an additional, undefined, element of culpability was found to be proven. In a situation in 32

Ibid, Ibid, 34 Ibid, 35 Ibid, 36 Ibid, 37 Ibid, 38 Ibid, 33

paras 37–38. para 38. paras 38. paras 39. para 40. para 37. para 38.

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which an accused knowingly supplies weapons for an attack directed against civilians, what is the rationale for applying different tests if the supplier was one kilometre away or thousands of kilometres away, or depending on whether the arms did or did not cross an international border? The higher the accused ranks in the military or political chain of command and the greater the scale of assistance provided, the more likely said accused will be physically/temporally remote from the crime and the less likely their assistance is specifically directed to individual locations or units. Third, the Perišić-AJ’s attempts to distinguish the facts of that case from prior jurisprudence based on the remoteness of the assistance provided disregards numerous Appeals Chambers judgments stating that an aider and abettor’s assistance may be removed in time and place from the relevant crimes, provided all elements are met.39 Finally, drawing an arbitrary distinction between geographic and temporal proximity—factors which the Perišić-AJ considered as ‘separating the acts of an individual  … from the crimes’40—ignores the realities of modern conflict, in which the proliferation of technology reduces such considerations to a point of triviality. As held by the Taylor-AJ, physical proximity cannot be ‘a decisive consideration distinguishing between culpable and innocent conduct’, considering that while an accused may be physically removed from the physical perpetrator, ‘he may in fact be in proximity to and interact with those ordering and directing the commission of crimes’.41

Proving Assistance is Specifically Directed to Crimes According to the Perišić-AJ, specific direction can be proven in two sets of circumstances: first, where it is proven the assistance was given to ‘an organisation whose sole and exclusive purpose was the commission of crimes’; and secondly, where it is proven that the accused specifically directed their assistance to an organisation’s unlawful activities.42 The implausibility of ever proving that an organisation’s ‘sole and exclusive’ purpose was the commission of crimes is patently obvious. The ad hoc tribunals have refrained from labelling any group as innately criminal for good reason. All organisations engaged in conflicts or widespread attacks, even those generally viewed as terrorists, sometimes direct attacks against legitimate military targets, engage in some philanthropic work or have ostensibly political goals—like a change of government or independence of a territory—such that it would be futile to even try to prove that their ‘sole and exclusive purpose was the commission of crimes’. ISIS is not an organisation

39 Prosecutor v Delalić et al (Appeal Judgment) IT-96-21-A (20 February 2001) para 352; Prosecutor v Blaškić (Appeal Judgment) IT-95-14-A (29 July 2004) (Blaškić-AJ) para 48; The Prosecutor v Ntagerura et al (Appeal Judgment) ICTR-99-46-A (7 July 2006) para 372; Prosecutor v Simić (Appeal Judgment) IT-95-9-A (28 November 2006) para 85; Prosecutor v Fofana & Kondewa (Appeal Judgment) SCSL-04-14-A (28 May 2008) (Fofana & Kondewa-AJ) para 72; Prosecutor v Mrkšić & Šljivančanin (Appeal Judgment) IT-95-13/1A (5 May 2009) para 81; Kalimanzira v The Prosecutor (Appeal Judgment) ICTR-05-88-A (20 October 2010) para 87, fn 238; Taylor-AJ, above n 5, para 480. See also A Coco and T Gal, ‘Losing Direction, The ICTY Appeals Chamber’s Controversial Approach to Aiding and Abetting in Perišić’ (2014) 2 Journal of International Criminal Justice 345, 360. 40 Perišić-AJ, above n 3, para 40. 41 Taylor-AJ, above n 5, para 480. 42 Perišić-AJ, above n 3, para 52.

Articles—Koumjian and Kenny 11 whose ‘sole and exclusive’ purpose is the commission of crimes as it has a political and religious agenda, the creation of a caliphate,43 and is engaged in combat with armed forces from the governments of Iraq44 and Syria,45 which is not per se unlawful under international law. Indeed, the Perišić-AJ itself noted that the waging of war is not criminal,46 thereby accepting that, regardless of a group’s motivations to take up arms and irrespective of the types or levels of atrocities that could be committed, the very fact that such a group is fighting against other military forces prevents finding that its sole and exclusive purpose was to commit crimes. Not only is this test divorced from the practical examples that exist in conflict, it also arguably creates further legal obfuscation for a potential prosecution, namely, how one proves that an organisation is a 100 per cent criminal organisation. The second way in which specific direction can be proven, according to the Perišić-AJ, is where an accused specifically directs their assistance to the unlawful activities of the assisted organisation.47 Absent direct evidence, presumably something like a prior statement of the accused stating ‘these arms are to be used to kill civilians in Sarajevo and Srebrenica’, the Perišić-AJ referred to potential factors that could be considered as circumstantial evidence of specific direction under the categories of the nature of the assistance and, the manner in which aid is distributed.48 Again, such a requirement would likely immunise leaders at the highest levels who are assisting an armed force they know is engaged in serious crimes. Those leaders assisting neighbouring or proxy forces they know are engaged in widespread atrocities are unlikely to limit the use of the assistance to any one particular area or purpose, and are unlikely to give detailed instructions on locations or uses. Similarly, arms dealers, for example, would not specifically direct their sales to illegal activities—they simply would not care how the arms were used as long as they were paid. In its very limited reference to the facts of the case, the Perišić-AJ noted that Perišić was found to have provided assistance to the VRS in two broad categories: (i) personnel; and (ii) military equipment, support and training.49 With regard to military personnel, the appeal judgment held that the fact that seconded soldiers may have been involved in crimes once transferred to the VRS is not sufficient to prove that the provision of those soldiers was in order to specifically assist crimes.50 In relation to the second type of aid provided, the appeal judgment, while noting that it amounted to ‘large-scale military assistance’, encompassing semi-automatic rifles, machine guns, cannons, bullets, grenades, rocket launchers, mortars, mines, rockets, anti-aircraft ammunition and shells, as well as military training and communications,51 held that 43 See, eg DD Kirkpatrick, ‘ISIS’ Harsh Brand of Islam is Rooted in Austere Saudi Creed’, New York Times, 24 September 2014, available at www.nytimes.com/2014/09/25/world/middleeast/isis-abu-bakr-baghdadi-caliph-wahhabi.html?_r=0 (accessed on 26 October 2014). 44 See, eg ‘Kurdish and Iraqi Government Forces Make Gains against Isis Insurgents’, The Guardian, 25 October 2014, available at www.theguardian.com/world/2014/oct/25/isis-kurds-iraqi-army-recapture-zumarbaghdad (accessed on 26 October 2014). 45 See, eg France 24, ‘Syrian Army and ISIS both Claim Advances’ (27 July 2014), available at www. france24.com/en/ 20140726-syria-army-isis-advances-kill-aleppo-homs/ (accessed on 26 October 2014). 46 Perišić-AJ, above n 3, para 53. 47 Ibid, paras 54, 55, 57, 58. 48 Ibid, para 59. 49 Ibid, para 62. 50 Ibid, para 63. 51 Ibid, para 64.

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assistance amounting to a substantial contribution to the commission of crimes52 does not necessarily satisfy its specific direction requirement. The appeal judgment noted that such aid was not incompatible with lawful military operations and held that the nature of the assistance alone did not meet the threshold of specific direction.53 The Perišić-AJ also found that the manner in which the aid had been distributed by Perišić did not prove specific direction, despite the Trial Chamber’s finding that aid was sent to units committing crimes. This fact was considered by the appeal judgment as insufficient to prove that the aid was ‘directed’ to supporting criminal activities, since it was provided to multiple areas as part of support for the general war effort.54 The appeal judgment further relied on its finding that Perišić took no steps outside official VJ channels to support criminal activities.55 The position of the Appeals Chamber appears to be that where assistance provided by an accused could be used for lawful and unlawful activities, no individual criminal responsibility will accrue, even if it is proven that the assistance substantially contributed to the commission of crimes.56 Previous ICTY appellate jurisprudence rejected such a position in the Jokić case, holding that where assistance constituted a substantial contribution to the commission of the crime, the question of whether it was used solely for lawful or unlawful purposes was an issue of motive, and was irrelevant to the assessment of aiding and abetting liability.57 Clearly, even the truncated nature of the factual analysis engaged in by the Appeals Chamber in Perišić shows that the type of evidence it was looking for was such as to demonstrate that assistance was expressly provided by Perišić in order to facilitate crimes; that is, what the judgment referred to as ‘culpable’ in fact means proof that the accused had the intent that the crimes be committed.

The Unspoken Rationale Behind Specific Direction The motivation of those advocating expanding the elements of aiding and abetting liability to include a distinct element of specific direction is not hard to fathom. The majority in the Perišić case stressed the novel nature of the facts, namely, that Perišić was providing assistance to a general war effort from a distance and it seems clear that the appeal justices, like Judge Moloto at trial, were greatly concerned with how aiding and abetting liability would apply in potentially analogous situations in which the militaries of many major states recently and almost certainly in the future will continue to be engaged. Some quarters feared that a conviction in the Perišić 52

Ibid, para 65. Ibid, para 65. 54 Ibid, para 66. 55 Ibid, para 67. 56 Coco and Gal, above n 39, 362. 57 Prosecutor v Blagojević & Jokić (Appeal Judgment) IT-02-60-A (9 May 2007) para 202: ‘The Trial Chamber found, and the Appeals Chamber confirmed, that Jokić substantially contributed to the mass executions when he sent engineering equipment to the execution sites and that he did this knowing that the equipment would be used to dig mass graves for the victims. Even if Jokić were concerned about public safety and health, this would not change the fact that his actions substantially contributed to the crimes or the conclusion that he did so with knowledge that his actions would assist the organizers of the “murder campaign”. Rather his arguments go to the issue of motive. The Appeals Chamber recalls that personal motives are immaterial for the purposes of assessing an accused’s intent and criminal responsibility.’ 53

Articles—Koumjian and Kenny 13 case would represent a precedent for the conviction of military and political leaders outside the theatre of conflict, who provide any assistance to a party to the conflict committing crimes. Indeed, as the Perišić case was being adjudicated, the world saw what proponents’ characterised as a model successful humanitarian intervention in Libya,58 with supporters of the intervention declaring that aerial bombing and material support of Qaddafi opponents had averted a possible repeat of Srebrenica in Benghazi, despite troubling reports of rebel atrocities against regime supporters.59 Even while the Appeals Chamber heard oral arguments on the case, media around the world regularly reported on aid and assistance being provided to both the government and opposition groups in Syria amidst emerging reports of human rights violations being committed by both sides of the conflict.60 It was against this background that, during the oral appellate hearings in the Perišić case, Presiding Judge Theodor Meron asked a prosecution lawyer: Now, assume that the military aid supplied by country A is 100 per cent, is full. So we don’t have to worry about the origin of the munition. Assume that it is the entire—it comprises the entire supply. The country supplies therefore the entire military aid to a warring party in the neighbouring country B. In the neighbouring country B there is a war going on and the recipient engages both in lawful military activities but also in large-scale shelling of civilian towns. Would, without more, the Chief of Staff of country A be criminally liable?61

The Perišić proceedings were effectively presented as a test case for what might occur as a result of states providing assistance to regions of the world experiencing conflict, raising the possibility that criminal liability might suddenly attach to transactions which were, until that point, accepted as normal state practice. The true extent of the 58 British Prime Minister David Cameron stated after the NATO intervention that ‘This has not been our revolution, but we can be proud that we have played our part’. See ‘Prime Minister’s Statement after Chairing a Meeting of the National Security Council on events in Libya’ (22 August 2011), available at www. theguardian.com/ politics/2011/aug/22/libya-david-cameron-full-statement (accessed on 26 October 2014). 59 ‘Opposition fighters and supporters have abducted, arbitrarily detained, tortured and killed former members of the security forces, suspected al-Gaddafi loyalists, captured soldiers and foreign nationals wrongly suspected of being mercenaries fighting on behalf of al-Gaddafi forces.’ See Amnesty International, ‘The Battle for Libya: Killings Disappearances and Torture’ (May 2011) 70, available at www.amnesty.org/ en/library/asset/MDE19/ 025/2011/en/8f2e1c49-8f43-46d3-917d-383c17d36377/mde190252011en.pdf (accessed on 26 October 2014). 60 See, eg UNOHCHR, ‘3rd Report of the Commission of Inquiry on the Syrian Arab Republic’ (22 February 2012) UN Doc A/HRC/19/69. 61 Prosecutor v Perišić (Oral Appeal Hearing) IT-04-81-A (30 October 2012) 62, available at http:// icty.org/x/cases/ perisic/trans/en/121030ED.htm (accessed on 26 October 2014). From the wording of the question, it seems clear that in Judge Meron’s view the arms suppliers in this hypothetical situation should not be held criminally responsible. This is a clear example of where the suppliers of military aid that is indiscriminately killing innocents by ‘large-scale shelling of civilian towns’ should be held accountable, as the question seems to assume that they are aware that their assistance is aiding the crimes. Presumably, by ‘civilian towns’ the hypothesis means that there was no legitimate military target to the shelling, so one would expect no military advantage to be gained by committing these crimes, ie militarily they were unnecessary. Under the hypothesis, Country B is completely dependent on Country A’s assistance, so it is clear that Country A would have tremendous leverage in demanding an end to the civilian shelling. If such a demand were made and practical steps taken to verify Country B’s compliance, it would be reasonable for Country A to assume that its assistance would no longer be aiding crimes and should not be held responsible if, despite these reasonable efforts to stop the crimes, isolated violations did occur. However, if it became apparent that the criminal shelling was continuing on a regular basis, Country A must end the assistance and, if it failed to do so, the individuals responsible for the provision of the assistance should be held liable for the deaths and destruction that resulted from providing the assistance they knew would result in these crimes.

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potency of that argument and its impact on the adjudication of the Perišić appeal will never be known. However, it is clear that adding a specific direction requirement is one way to effectively shield high-level officials from responsibility for crimes committed by foreign forces they arm and support across borders. Regardless of the notoriety of the group for committing crimes and the extent to which the group’s criminal activities are dependent on the assistance, as long as the aid is to the ‘general war effort’ and not specifically directed to particular criminal activities, the officials would remain immune from aiding and abetting liability. Perhaps aware of the likely reaction from human rights advocates, the Perišić-AJ suggested, in a cursory line delivered at the end of the assessment of Perišić’s individual responsibility, that the requirement of specific direction ‘should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts’.62 Despite foreshadowing the criticism that was to come,63 the legal rationale underpinning the Perišić-AJ deeply divided opinion.64

IN TE RN AL P RE C EDENT OR NO PR EC EDENT A T A LL

The appeal judgment for Charles Taylor at the SCSL was handed down just seven months after the Perišić-AJ. There was much speculation on the potential implications the Perišić-AJ would have on the pending appeal judgment in Taylor.65 Both appeals involved high-ranking leaders convicted for the provision of military and non-military assistance across state borders. Taylor had supplied the Revolutionary United Front (RUF) rebels for years, but had never placed a foot inside Sierra Leone during the indictment period. Ultimately, the SCSL Appeals Chamber rejected the Perišić-AJ’s specific direction precedent, holding unambiguously that when assessing the actus reus of aiding and abetting liability, ‘the essential question is whether the acts and conduct of an accused can be said to have had a substantial effect on the commission of the crime charged’.66 The judgment held that criminal liability is adjudged by the effect that the provision of assistance, encouragement or moral support has on crimes and ‘not the particular manner in which such assistance is

62

Perišić-AJ, above n 3, para 72. See, eg K Roth, ‘A Tribunal’s Legal Stumble’, New York Times, 9 July 2013, available at www.nytimes. com/2013/07/10/opinion/global/a-tribunals-legal-stumble.html?_r=0 (accessed on 26 October 2014). 64 See, eg KJ Heller, ‘Why the ICTY’s “Specifically Directed” Requirement is Justified’, Opinio Juris, 2 June 2013, available at http://opiniojuris.org/2013/06/02/why-the-ictys-specifically-directed-requirement-isjustified/. For the contrary position see, eg JG Stewart, ‘“Specific Direction” is Indefensible: A Response to Heller on Complicity’, Opinio Juris, 12 June 2013, available at http://opiniojuris.org/2013/06/12/specificdirection-is-indefensible-a-response-to-heller-on-complicity/ (accessed on 26 October 2014). See also JG Stewart, ‘The ICTY Loses its Way on Complicity—Part 1’, Opinio Juris, 3 April 2013, available at http:// opiniojuris.org/2013/04/03/guest-post-the-icty-loses-its-way-on-complicity-part-1/ (accessed on 26 October 2014). 65 See Prosecutor v Taylor (Prosecution Motion for Leave to File Additional Written Submissions Regarding the ICTY Appeals Judgment in Perišić) SCSL-03-01-A (14 March 2013); Prosecutor v Taylor (Request for Leave to Amend Notice of Appeal) SCSL-03-01-A (3 April 2013); Prosecutor v Taylor (Decision on Prosecution Motion for Leave to File Additional Written Submissions Regarding the ICTY Appeals Judgment in Perišić) SCSL-03-01-A (20 March 2013); Prosecutor v Taylor (Order Denying Defence Request for Leave to Amend Notice of Appeal) SCSL-03-01-A (11 April 2013). 66 Taylor-AJ, above n 5, para 368. See also paras 390, 491. 63

Articles—Koumjian and Kenny 15 provided’.67 It further found that international tribunals have ‘never required’ that an aider and abettor must provide assistance to the crime in a particular manner, ‘such as providing assistance to the physical actor that is then used in the commission of the crime’.68 The Appeals Chamber in Taylor traced the ambit of accessorial liability in international criminal law back to post-WWII jurisprudence.69 Having undertaken this review, as well as looking to domestic and international instruments and state practice, the Taylor-AJ was satisfied that there exists no required actus reus element of specific direction in aiding and abetting liability.70 Squarely addressing the Perišić-AJ, the Taylor-AJ noted that that it ‘did not assert that “specific direction” is an element under customary international law’.71 Rather, the Taylor-AJ pointed out that the analysis conducted by the Perišić-AJ ‘was limited to its prior holdings and the holdings of the [International Criminal Tribunal for Rwanda] Appeals Chamber, which is the same body’.72 According to the Taylor Appeal Judgment, in the absence of any assessment as to whether specific direction is part of customary international law, ‘it is presumed that the ICTY Appeals Chamber in Perišić was only identifying and applying internally binding precedent’.73 Subsequent to the Taylor Appeal Judgment, an ICTY Appeals Chamber again faced the issue of defining aiding and abetting liability in the appeal against conviction in the Šainović case. However, the composition of the Appeals Chamber in Šainović was different from that in Perišić. Only Judge Liu, who dissented in Perišić, and Judge Ramarason, whose concurring opinion used a different rationale than specific direction to overturn the aiding and abetting convictions, sat on both cases. The Appeals Chamber found in Šainović that there was a divergence in the case law of the tribunal as a result of the Perišić-AJ and set out to ascertain the state of the law in relation to aiding and abetting.74 Ultimately, the Šainović Appeals Chamber ‘unequivocally reject[ed]’ the Perišić-AJ’s approach as being ‘in direct and material conflict’ both with the ad hoc’s jurisprudence and with customary international law.75 It did so after conducting its own examination of customary international law, focusing primarily on post-WWII jurisprudence as ‘instructive for the purpose of identifying the elements of aiding and abetting liability’.76 The Appeals Chamber noted that specific direction was not required of a defendant in any of these cases. Rather, criminal responsibility depended on (i) the degree of each defendant’s contribution to a crime, demonstrated through the role he played in, and the impact he exerted on, the commission of the crime; and (ii) whether the defendant knew that his acts contributed to the commission of the crime.77

67

Ibid, para 368. Ibid, para 371. 69 Ibid, para 380. See also paras 377–79. 70 Ibid, paras 481. 71 Ibid, para 476. 72 Ibid. 73 Ibid. 74 Šainović-AJ, above n 6, para 1622. 75 Ibid, para 1650. 76 Ibid, paras 1627, 1628–42. 77 Ibid, para 1627. 68

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The Šainović-AJ’s review of national law did not reveal any commonality between nations in relation to specific direction, given the varied approaches among domestic jurisdictions in regard to elements of aiding and abetting liability, thereby concluding that there was no ‘clear common principle’ to be gleaned from the major legal systems of the world.78 In light of this, and its assessment that the jurisprudence of the tribunal did not reveal, prior to the Perišić-AJ, that any Appeals Chamber had applied specific direction as an ‘independent’ requirement to the facts of any case,79 the Šainović-AJ came to the ‘compelling conclusion’ that specific direction is not an element of aiding and abetting liability.80 While the Šainović-AJ was the first opportunity to address the schism in international jurisprudence arising from the Perišić and Taylor cases,81 the facts of the Šainović case, as they relate to the aiding and abetting of crimes, do not share the same context from which specific direction arose in the Perišić-AJ. It was on this basis that Judge Tuzmukhamedov, in his dissent on the issue of specific direction, considered that the Šainović-AJ was not ‘the appropriate forum to address the issue’ because ‘it has no pertinence’ to the case.82 Judge Tuzmukhamedov set out that, in his view, the Perišić-AJ had no bearing on the case because the appellant Lazarević’s actions did not fall into the category of ‘remote assistance’ as elucidated in the Perišić-AJ.83 He suggested that if the Perišić-AJ were pertinent to the facts of the case at hand, a determination would first have been necessary as to whether the assistance provided by the appellant Lazarević was remote, and in the absence of such a finding by the majority, raises the question of whether the Šainović majority’s rejection of specific direction as an element of aiding and abetting was dispositive of its affirmation of the appellant Lazarević’s convictions or was obiter dicta.84 Judge Tuzmukhamedov’s opposition to the treatment of the issue of specific direction appears to be driven as much by concern for the ICTY as an institution as it is motivated by legal rationale. Indeed, despite accepting that it is within the discretion of the Appeals Chamber to consider legal matters of general importance to the case law of the tribunal, he suggests that restraint would be prudent: [I]n addressing such rifts in the jurisprudence of a respectable and authoritative judicial institution so as to preserve as much as possible, judicial harmony in the case law … as well as legal certainty, stability and predictability, in particular, for the benefit of the parties to proceedings before the Tribunal.85

78

Ibid, para 1644. Ibid, para 1625. Ibid, para 1649. 81 Most recently, the second judgment handed down by the Extraordinary Chambers in the Courts of Cambodia analysed the state of the law of aiding and abetting liability at the time relevant to the genocide in Cambodia and held that, ‘Based on the comprehensive surveys of jurisprudence and instruments contained in the Šainović and Taylor appeal judgments, this Chamber finds this position to be persuasive and an accurate reflection of the law as at 1975. The Chamber therefore finds no cogent reason to depart from its previous definition of aiding and abetting, and accordingly rejects the Defence’s submissions with respect to specific direction.’ See Case 002/01 (Judgment) No 002/19-09-2007/ECCC/TC (7 August 2014) paras 707–10. 82 Šainović-AJ, above n 6, Dissenting Opinion of Judge Tuzmukhamedov, para 40. 83 Ibid, para 43. 84 Ibid, para 44. 85 Ibid, para 45. 79 80

Articles—Koumjian and Kenny 17 These comments regarding legal certainty foreshadowed a request by the prosecution at the ICTY for reconsideration of the Perišić-AJ in light of the denunciation of specific direction in the Šainović-AJ,86 which was subsequently denied on procedural grounds.87 Fundamentally, the divergent holdings in Perišić and Šainović exposed an obvious and critical weakness in the ICTY institutional structure. The composition of the Appeals Chamber changes case to case, and there is no provision to settle conflicting holdings such as by having the Appeals Chamber sit en banc in such cases. However, given that the concurring opinions of Judges Meron and Agius in the Perišić-AJ left much doubt as to what Perišić could stand for in regard to specific direction and the much more detailed analysis of international jurisprudence relative to specific direction in Taylor and Šainović, we hold the view that the term ‘specific direction’ is unlikely to reappear in the analysis of aiding and abetting responsibility in international criminal law, although the required mens rea and actus reus necessary to hold those providing assistance to armed groups responsible for their crimes is likely to remain a subject of much debate and further refinement in the jurisprudence. In particular, and in light of the winding down of the ad hoc tribunals, the equivalent aiding and abetting provision in the Rome Statute governing the International Criminal Court (ICC) is likely to be the source of much litigation.

For the Purposes of … Specific Direction at the ICC? Given the body of jurisprudence from the ad hoc tribunals and the dearth of jurisprudential interpretation of the Rome Statute, the question may well be raised as to whether the case law of the ad hocs will be adopted by the ICC when determining responsibility under its Statute. The provision of the Rome Statute dealing with aiding and abetting, Article 25(3)(c),88 has yet to be substantively considered by the ICC and therefore remains open to interpretation. Interestingly, the Furundžija Trial Chamber at the ICTY considered that the aiding and abetting provision in the Rome Statute was ‘less restrictive’ than the International Law Commision’s Draft Code on Crimes, in that it does not limit liability to situations in which assistance ‘facilitate[s] in some significant way’ or ‘directly and substantially’ assists the perpetrator.89 However, it is apparent from this statement that the Furundžija Judgment did not examine the potential import of the phrase ‘For the purposes of facilitating  …’ contained in the article. The formulation in Article 25(3)(c) has been described as a ‘subjective threshold which goes beyond the ordinary mens rea requirement within the meaning of article 30’ of the Rome Statute,90 which enumerates the requisite mental elements for the modes of liability at the ICC. Certainly, accused persons will argue that the phrase ‘For the purposes of’, which was taken from the Model Penal Code

86

Prosecutor v Perišić (Motion for Reconsideration) IT-04-81-A (3 February 2014). Prosecutor v Perišić (Decision on Motion for Reconsideration) IT-04-81-A (20 March 2014). 88 Rome Statute of the International Criminal Court, Art 25(3)(c): ‘For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in the commission or its attempted commission, including providing the means for its commission’. 89 Prosecutor v Furundžija (Judgment) IT-95-17/1-T (10 December 1998) para 231. 90 K Ambos, ‘Article 25’ in O Triffterrer (ed), Commentary on the Rome Statute of the International Criminal Court (Oxford, Hart Publishing, 2008) 760. 87

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of the United States, suggests a subjective threshold higher than knowledge, thereby elevating the requirements for aiding and abetting liability at the ICC above those of the ad hoc tribunals.91 The article seemingly, therefore, until such time as it may be otherwise interpreted by a Trial Chamber of the ICC, provides for a relatively low objective yet relatively high subjective threshold in order to impose criminal liability.92 Consequently, the possibility remains that specific direction, in the sense of a heightened mental element for aiding and abetting, might form the basis for the interpretation of the aiding and abetting provision in the Rome Statute. Even in the wake of both the SCSL and ICTY Appeals Chambers finding that specific direction is without a basis in customary international law, the sui generis nature of the ICC’s principal document should be borne in mind. As has previously been noted by the ICTY Appeal Chamber, the Rome Statute in general, and particularly the modes of liability contained therein, were never meant to codify customary international law.93 Indeed, the ICC has held that the question of whether its Statute conforms to customary international law is irrelevant for the purposes of its interpretation. When discussing the finding of the ICTY Appeals Chamber in Stakić that co-perpetration is not a mode of liability under customary international law, the Pre-Trial Chamber of the ICC stated that ‘since the Rome Statute expressly provides for this specific mode of liability, the question as to whether customary law admits or discards the “joint commission through another person” is not relevant for this Court’.94 Whatever course the ICC may take when it comes to attributing individual criminal responsibility for aiders and abettors, it is to be hoped that specific direction does not find an alternative home in international criminal law. For the reasons noted above, the legal and evidentiary threshold required to prove specific direction, as set down by the Perišić Appeal Judgment, makes the prosecution of aiding and abetting in international crimes prohibitively difficult for all but those at the lowest level of culpability. In this regard, it may be constructive to consider the potential implications and deleterious effects which specific direction, as enunciated in the Perišić-AJ, could result in if applied in specific factual circumstances that have arisen in previous cases.

91

Ibid. Ibid. 93 Prosecutor v Orić (Appeal Judgment) IT-03-68-A (3 July 2008), Separate and Partially Dissenting Opinion of Judge Schomburg, para 20: the Rome Statute is specific to the jurisdiction of the ICC and ‘was not intended to codify existing customary rules’, quoting A Cassese, International Criminal Law, 2nd edn (Oxford, Oxford University Press, 2008) 172. See also Doe VIII v Exxon Mobil, 653 F.3d 11 (2011) 42: ‘The Rome Statute which created the International Criminal Court (“ICC”) is properly viewed in the nature of a treaty and not as customary international law’. See further KJ Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford, Oxford University Press, 2011) 5, wherein, following an analysis of post-World War II cases, the author noted that the accused, Karl Rasche, who was acquitted in the Ministries case, ‘was the only defendant in any of the trials held to a purposive standard: not only did every other tribunal apply a knowledge standard for aiding and abetting, the Ministries tribunal itself applied a knowledge standard to other defendants’ (original emphasis), thus providing support that customary international law does not recognise a ‘purpose’ standard for aiding and abetting liability. 94 Prosecutor v Katanga & Chui (Decision on the Confirmation of Charges) ICC-01/04-01/07, PT Ch I (30 September 2008) para 508. 92

Articles—Koumjian and Kenny 19 T H E P O S S IB L E E F F E CT O F S PEC I FI C DI R EC T I ON ON I NDI V I DU A L CRIM IN A L R ES PONS I BI LI T Y

The significance of the Perišić-AJ pronouncement on specific direction is clear when the holding is compared to two previous notorious cases where those providing the means for crimes from a distance were held responsible for the crimes committed by the physical perpetrators. In Zyklon B, a post-WWII case, the defendants were industrialists accused of supplying poison gas used in the extermination of millions of persons in the Nazi death camps. Had that court adopted the specific direction standard promulgated by the Perišić-AJ, the accused would have been acquitted.95 The case involved Bruno Tesch, the owner of a firm which distributed certain types of gas and gassing equipment for disinfecting public buildings; Karl Weinbacher, who was second in command in the firm; and Joachim Drosihn, the firm’s gassing technician. Though the following claim put forward for the three accused pertains to the question of their respective knowledge, the sentiment closely echoes the distinction made by the Perišić-AJ between types of assistance provided by accused, and could have found a receptive audience had it been adjudicated based on the Perišić precedent. In its closing address, the defence in Zyklon B contended that: since the charge was not one of destroying human life but only of supplying the means of doing so, such action would only be contrary to the laws and usages of war if the means supplied were necessarily intended to kill human beings. To supply a material which also had quite legitimate purpose was no war crime.96

Instead of following the urgings of the accused, however, the judge advocate instructed the court that in order to convict the accused, the court had to be satisfied of three things: (i) that Allied nationals had been gassed with Zyklon B; (ii) that the gas had been supplied by the defendants; and (iii) that the accused knew that the gas was to be used for the purpose of killing human beings.97 Tesch and Weinbacher were convicted of knowingly supplying the gas, while Drosihn was acquitted. In arriving at its conclusion, the court referred to direct evidence demonstrating that Tesch had knowledge that the gas was to be used to kill human beings, and imputed such knowl95 Critics have suggested otherwise: see, eg KJ Heller, ‘The Specific Direction Requirement Would Not Have Acquitted the Zyklon-B Defendants’, Opinio Juris, 19 August 2013, available at http://opiniojuris. org/2013/08/ 19/no-specific-direction-would-not-have-acquitted-the-zyklon-b-defendants/ (accessed on 26 October 2014). Heller’s suggestion that, because the SS was deemed a criminal organisation at the Nuremberg trials, the ‘specific direction’ would not have been at issue is misleading. The finding that the SS was a criminal organisation is one of the most controversial aspects of the Nuremberg trials, given the implications on the concept of individual criminal responsibility. Nonetheless, there is no indication from the report on the Zyklon B case that the criminal nature of the SS was central to the finding of guilt. Contrary to Heller’s claim that the accused were found guilty of knowingly aiding and abetting a criminal organisation, the instructions of the judge advocate to the court, referred to above, make clear that the individual criminal responsibility of the accused rested solely on whether they knew that the gas they had supplied was to be used in the killing of Allied nationals. In addition, the case record states that ‘The case for the Prosecution was that knowingly to supply a commodity to a branch of the state which was using that commodity for the mass extermination of Allied civilian nationals was a war crime, and that the people who did it were war criminals for putting the means to commit the crime into the hands of those who actually carried it out’. See Trial of Bruno Tesch et al (Zyklon B case) Case No 9, British Military Court at Hamburg (8 March 1946) (1947) I Law Reports of Trials of War Criminals—United Nations War Crimes Commission 93, 94. 96 Zyklon B case, ibid, 98. 97 Ibid, 101.

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edge to Weinbacher on the basis of his position in the firm and his access to relevant documentation. By the criteria enunciated in the Perišić precedent, the accused in the Zyklon B case were ‘remote’ from the physical commission of the crimes, as the industrialists were geographically removed from the crime scene. The accused were also providing a substance which could be used for legitimate purposes. Zyklon B was a chemical widely used in the extermination of rodents. Following the reasoning set out in Perišić, the dispassionate supply by geographically removed industrialists of a substance which could be used for a lawful purpose and which was provided solely in order to make financial gain would not reach the threshold of assistance specifically directed to the commission of crimes. Tesch and Weinbacher would have been exonerated for their role in voluntarily providing the poisonous gas which they knew was to be used in the murder of civilians. To be convicted under the Perišić-AJ standard of accessorial liability, Tesch and Weinbacher would have had to have made clear that the gas they were supplying was being provided in order to facilitate the intentional killing of civilians, the kind of direct evidence that few assailants are unlikely to be careless enough to create. Therefore, the accused, who knowingly facilitated the murder of an estimated six million people, would not have been held accountable had they been tried according to the standard set down in Perišić. Interestingly, the only jurisprudential source outside the case law of the ICTY and ICTR cited in the Perišić-AJ in support of specific direction was the Zyklon B Judgment. The Perišić-AJ states, in a footnote, that Tesch and Weinbacher were found guilty of assisting the killing of concentration camp detainees by providing poison gas after the court had reviewed evidence that the defendants had arranged for SS units to be trained in using the gas to kill human beings.98 This claim is incorrect, however. A review of the report of that case shows that the evidence mentioned came only from one witness, who claimed to have seen a travel report written by Tesch in which the latter proposed to train the SS in this method. There was no evidence that Weinbacher was involved or had ever seen this report, and no evidence such training ever took place.99 Despite this fact, Weinbacher was also convicted and sentenced to death. The report of the case makes it abundantly clear that the accused were convicted on the theory that they knew that the gas they provided, which was normally used for the lawful purpose of killing rodents, was being used to kill human beings, but there was no finding that they intended the gas to be used for this purpose or specifically directed that the gas provided was to be used for such purpose.100 The more recent case of Prosecutor v Frans van Anraat, heard by the Dutch Court of Appeal in 2007, also serves to demonstrate the intractable difficulties which could be faced by prosecutions of international crimes under the Perišić precedent. Van Anraat, a Dutch businessman, was convicted of war crimes on the basis that he had sold chemicals to Saddam Hussein’s regime that were then used to produce mustard gas, which was thereafter employed against the Kurdish population in Iraq. Despite 98

Perišić-AJ, above n 3, fn 115. Zyklon B case, above n 95, 95, 97, 99–102. The case report makes clear (102) that ‘In Weinbacher’s case, there was no direct evidence either by way of conversation or of anything that he had written among the documents of the firm produced during the trial, which formed any kind of evidence specifically imputing knowledge to Weinbacher as to how Zyklon B was being used at Auschwitz’. 100 Ibid, 93–102. 99

Articles—Koumjian and Kenny 21 his geographic remoteness from the physical perpetrators,101 Van Anraat’s culpability stems from the fact that the chemicals he provided were used to kill Kurdish civilians. The culpable link is patently clear: the provision of the chemicals had a substantial effect on the commission of the crimes. However, if one were to apply the requirement that the assistance be specifically directed to the commission of the crimes, per the Perišić-AJ, the outcome of this case would have been very different. The chemicals— that in and of themselves represent ‘neutral’ assistance, or assistance which prima facie is harmless—were provided by van Anraat to the Iraqi government, which, in spite of whatever horrific crimes that may have been committed under the Saddam Hussein regime, could not be classified as being a 100 per cent criminal organisation. Therefore, under the Perišić standard, it would have to have been necessary to prove that the chemicals had been specifically directed by van Anraat to the killings of Iraqi Kurds. However, there was nothing in the evidence to suggest that the provision of the chemicals was, to van Anraat, anything other than a business deal motivated by the desire for profit. Whether the chemicals were used to make textile dye, printing ink or to kill humans was irrelevant to the accused.102 Applying the rationale and reasoning of the Perišić-AJ, van Anraat would not fulfil the objective elements of aiding and abetting the commission of the crimes charged and would have been acquitted. Though involving individuals engaged in commercial, rather than political or military, activity, these two cases provide a ready template of the type of scenario which is most likely to occur in conflict situations—the provision of assistance, military or otherwise, by figure(s) not located at or near the conflict area, which represents a substantial contribution to the commission of crimes. More pertinently, the cases lay bare the unlikelihood that such figure(s) would be held accountable for their knowing contribution to the crimes by dint of the difficulty of proving that the assistance was provided for, and calculated to, aid crimes exclusively. Indeed, it is arguably not necessary to look further afield of the ICTY itself when assessing what the application of specific direction, as set down in Perišić, could mean in practice. After the Perišić-AJ, but before the Šainović-AJ, the trial judgment was delivered in the Prosecutor v Stanišić & Simatović. The accused in that case were found to have organised and commanded a special unit of the Serbian Security Service, known as the Red Berets, which committed atrocities in a number of operations in Croatia and Bosnia-Herzegovina. In addition to commanding the unit, the accused were held, inter alia, to have provided financing, logistical support and other forms of assistance during the indictment period.103 However, the Trial Chamber found that the assistance provided by the accused was not specifically directed to the commission of the crimes; rather, it could reasonably be inferred that it was provided in order to establish and maintain Serb control over territory.104 The Trial Chamber came to the same conclusion as regards other groups accused of committing crimes which,

101 Though Van Anraat lived in Iraq for a spell of about two years before the Iran–Iraq war in 1980, this was eight years before the commission of the crimes for which he was prosecuted, and he was therefore remote from the crime scene at the time of the crimes. See Public Prosecutor v Frans Cornelis Adrianus van Anraat (Appeal Judgment) 2200050906-2 (9 May 2007) s 11.14. The Appeal Judgment was upheld by the Supreme Court in its Judgment of 30 June 2009 (ECLI-NL-HR-2009-BG4822). 102 Ibid, s 12. 103 Prosecutor v Stanišić & Simatović (Judgment) IT-03-69-T (30 May 2013) paras 1489–90, 1492–93. 104 Ibid, paras 2357–61.

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although not directly subordinated to the accused, had been financed, supplied, organised, supported and trained by them.105 The accused were therefore acquitted of aiding and abetting the crimes of which the victims were, with few exceptions, non-Serb civilians. The judgment is currently under appeal.106

TH E CO RRE CT L E G AL S T A NDA R D OF A I DI NG A ND A BET T I NG LI A BI LI T Y

The challenge for international criminal law is to find a standard to properly hold to account those providing culpable assistance to groups engaged in crimes without unduly and unrealistically attempting to restrict states’ freedom to provide assistance to entities engaged in armed conflicts when it is within their legitimate national interest or done for humanitarian reasons. Contrary to the fears of critics,107 the current state of the law, as restated by Šainović, is the best standard available to balance these interests. In order for aiding and abetting liability to apply, the Šainović-AJ requires proof beyond a reasonable doubt of an actus reus that ‘“consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime”’.108 The mens rea required means it must be proven that the accused was aware at the time he gave his assistance that it was likely to facilitate crimes.109 The requirement that an accused’s acts and conduct must have a substantial effect on the commission of the crimes ‘is sufficient to ensure distinctions between those who may have had an effect on non-criminal activity and those who had a substantial effect on crimes, when applied to the facts of a given case’.110 These legal parameters are such as to ensure that the provision of non-culpable assistance is not the subject of individual criminal responsibility. This has been the accepted definition of accessorial liability in international criminal law dating back to its inception in post-WWII cases and, as is clear from the jurisprudence, this standard has not resulted in a strict liability situation whereby any assistance which is used in the commission of crimes is criminalised.111 As was set down by the Taylor-AJ: Merely providing the means to commit a crime is not sufficient to establish that an accused’s conduct was criminal. Where the crime is an isolated act, the very fungibility of the means may establish that the accused is not sufficiently connected to the commission of the crime. Similarly, on the facts of a case, an accused’s contribution to the causal stream leading to the commission of the crime may be insignificant or insubstantial, precluding a finding that his acts and conduct had a substantial effect on the crimes. In terms of an accused’s

105

Ibid, para 2361. See Prosecutor v Stanišić & Simatović (Prosecution Appeal Brief) IT-03-69-A (25 September 2013) 52-73. 107 See, eg KJ Heller, ‘Why the ICTY’s “Specifically Directed” Requirement is Justified’, Opinio Juris, available at http://opiniojuris.org/2013/06/02/why-the-ictys-specifically-directed-requirement-is-justified/ (accessed on 26 October 2014). 108 Šainović-AJ, above n 6, para 1649, referring to Blaškić-AJ, above n 39, para 46; Furundžija Judgment, above n 89, para 249; Taylor-AJ, above n 5, paras 471–81. 109 Šainović-AJ, ibid; Furundžija Judgment,ibid; Taylor-AJ, ibid, para 436. 110 Taylor-AJ, ibid, para 392. 111 For a list of examples see ibid, fn 1231. 106

Articles—Koumjian and Kenny 23 acts and conduct on the commission of the crime through his assistance to a group or organisation, there is a readily apparent difference between an isolated crime and a crime committed in furtherance of a widespread and systematic attack on the civilian population. The jurisprudence provides further guidance, but it is the differences between the facts of given cases that are decisive.112

By focusing on the effect of assistance on the commission of crimes, the current law on aiding and abetting safeguards against concerns that any or all types of assistance the use of which may subsequently be implicated in human rights violations committed by the recipient will result in criminal liability. The mens rea requirement gives further protections against convictions for those providing assistance. Unless the supplier has foreknowledge that crimes are planned or has knowledge that the group to whom the weapons are supplied is engaged in a pattern of criminal acts,113 there would be no basis to find that the supplier was aware of the likelihood that the assistance would facilitate crimes. With regard to the distinction between material used to wage war and that which is neutral in its nature relative to crimes, the Appeals Chamber in Taylor specifically held that: How any assistance could be used is a speculative question: perfectly innocuous items, such as satellite phones, could be used to assist the commission of crimes, while instruments of violence could be used lawfully. The distinction between criminal and non-criminal acts of assistance is not drawn on the basis of the act in the abstract, but on its effect in fact.114

The unfortunate reality is that in circumstances of conflict or upheaval, respect for human rights will often be superseded by perceived gains in battle or opportunistic criminality. In such situations, what is considered a ‘substantial effect’ on the commission of crimes will depend on the facts of a given situation. Aiding and abetting liability does not criminalise situations in which some material provided to an armed group is subsequently used and therefore has a corresponding effect on the commission of crimes—unless and until such assistance has a substantial effect on the crimes alleged. In other words, not every weapon which ends up being used in the commission of a crime will give rise to criminal responsibility for the provider, as such a standard would amount to the imposition of strict liability.115 Moreover, because international criminal law is not centred on isolated instances but necessarily focuses on the perpetration of crimes of a certain duration or magnitude, the commission of isolated or sporadic crimes—as unfortunate as they may be—is unlikely to reach the gravity by which their prosecution at the international level would occur. For these reasons, fears of the kind expressed by Judges Moloto and Meron, noted above, regarding military missions in which powerful states are participating and the potential for the imposition of criminal responsibility if aiding 112

Ibid, para 391. See, eg G Werle, Principles of International Criminal Law, 2nd edn (The Hague, TMC Asser, 2009) 183–84, para 492. 114 Ibid, para 395 (original emphasis). 115 See Prosecutor v Taylor (Appeal Judgment) SCSL-03-010A (26 September 2013), Judge Fisher’s Concurring Opinion, para 711: ‘the law of individual criminal responsibility does not criminalise just any act of assistance to a party to an armed conflict, nor does it criminalise all acts or conduct that may result in assistance to the commission of a crime. stated simply, the law does not impose strict liability’ (original emphasis). 113

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and abetting liability were to be applied without the specific direction requirement are misplaced. There is no disputing that the law must avoid criminalising all types of assistance provided by states to other states/armed groups. However, it is equally in the interests of international peace and security that we hold responsible those who, by means of their outside influence and assistance, fuel atrocity crimes while maintaining their own safe distance from the conflict. Holding responsible those who provide assistance which they know will facilitate crimes and which in fact has a substantial effect on those crimes ensures that those who provide the means and machinations do not escape liability solely on the basis that they are physically removed from the area in which the crimes occur.

How States Can Ensure that Assistance Does Not Violate the Accepted Limits of Aiding and Abetting Liability Not all military assistance will be likely to facilitate the commission of crimes, let alone have a substantial effect on the commission of crimes. Providing training, communications and other types of logistical equipment that professionalises a foreign army and increases command and control capability may be more likely to reduce the commission of crimes. Providing weapons with a more precise guidance system can be expected to lead to reduced civilian casualties and discourage indiscriminate attacks. If a government makes it explicit that the assistance it is providing to an outside group will be terminated if war crimes or human rights abuses continue, such conditional assistance may be expected to reduce rather than facilitate crimes. As prior jurisprudence consistently points out, what constitutes assistance that contributes to and has a substantial effect on crimes is a fact-driven enquiry.116 In Taylor, the Appeals Chamber stated that ‘whether an accused’s acts and conduct have a substantial effect on the commission of the crime “is to be assessed on a case-by-case basis in light of the evidence as a whole”’.117 In practice, there are various measures which can be taken—in situations which give rise to the potential that military or non-military assistance provided by a state is implicated in human rights violations—in order to forestall the likelihood of criminal responsibility arising. The first, basic step is the strict observance of any arms embargoes or sanctions pertaining to a particular group or state, the breach of which could leave a state and its decision makers open to accusations of having knowingly provided assistance to a state/group whose actions violate international law. Where appropriate, there should be a vetting process—using governmental, non-governmental and media resources on human rights abuses—for any assistance or training programmes for foreign security forces or groups, to ensure that recipients are not engaged in recurring violations of international human rights law. Conditions should be attached to the provision of

116 Blagojević & Jokić Appeal Judgment, above n 57, paras 132–34, citing Prosecutor v Kristić (Appeal Judgment) IT-98-33-A (19 April 2004) paras 135–38. 117 Taylor-AJ, above n 1, para 379, citing Prosecutor v Sesay et al (Appeal Judgment) SCSL-04-15-A (26 October 2009) para 769; Fofana & Kondewa-AJ, above n 39, para 75.

Articles—Koumjian and Kenny 25 aid, which could include seeking guarantees from the recipient as to the use of the assistance, providing mandatory human rights training in tandem with the aid, and the threat of withdrawal of the aid if conditions are not met. Assistance packages should include mutually agreed programmes including human rights training and guarantees from the recipient as to the use of the assistance. In addition, there should be a continuous monitoring of the methods of warfare employed by those provided with assistance and repeated assessment of whether the recipients are acting in accordance with international law. Further, transparency is also key, such that accurate and detailed records of the assistance provided should be retained. Perhaps most importantly, assistance to any forces credibly implicated in serious human rights violations should be immediately suspended. Relevant domestic, regional and international agreements should also be steadfastly adhered to. Along similar lines, steps have already been taken in various guises to prevent the provision of material to situations in which human rights violations are likely to occur. For instance, in 2008, the Council of the European Union adopted a common position governing the export of military technology and equipment, in which Member States agreed, inter alia, that, having assessed the adherence of a potential recipient country to international human rights instruments, they would ‘deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used for internal repression’.118 Similarly, though more broadly, the dissemination of any assistance, be it financial, military, developmental or otherwise, is governed in the US by the Leahy Law, which reads, in part, No assistance shall be furnished under [the Foreign Assistance Act] or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.119

At the international level—and governing the provision of material to non-state as well as state actors—the 2013 Arms Trade Treaty,120 to which there are currently 118 state signatories,121 prohibits the transfer122 of conventional arms,123 munitions or parts and components where such transfer would violate the UN Charter or international agreements, or where the state has knowledge at the time of the authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes.124 118 Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment [2008] OJ L335/99, Art 2(2)(a). 119 The Foreign Assistance Action of 1961, as amended, s 620M(a), ‘Limitation on Assistance to Security Forces’. 120 UNGA Resolution 67/234 (11 June 2013) UN Doc A/RES/67/234 B; UNGA A/67 Final UN Conference on the Arms Trade Treaty (2 April 2013) UN Doc A/67/L.58/Add.1. 121 UN Office for Disarmament Affairs, The Arms Trade Treaty, available at www.un.org /disarmament/ ATT/ (accessed on 24 October 2014). 122 Covers the activities of international trade such as export, import, transit, trans-shipment and brokering. See Arms Trade Treaty, ibid, Art 2(2). 123 This includes battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons. See ibid, Art 2(1). 124 Ibid, Art 6.

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The Arms Trade Treaty also provides for an ancillary protective measure whereby, in situations not covered by this prohibition, states are still obliged to take account of relevant factors before sanctioning any transfer, such as the potential that the arms or items could be used to ‘commit or facilitate’ a serious violation of international humanitarian law or international human rights law.125 In such circumstances, states are to consider whether there are measures that could be taken to mitigate the potential risks and, where no such mitigating measures are available, the state ‘shall not authorize the export’.126 While these instruments are obviously designed to regulate the actions of states, such actions are ultimately taken at the behest of individuals.127 Therefore, if a situation were to arise in which assistance sanctioned by a governmental/military official(s) was subsequently used in the commission of human rights violations, the abidance by such regulations would certainly have a bearing on the question of the personal culpability of that individual. Foreign assistance that improves the capabilities and effectiveness of a military force is no more likely or necessarily going to have a substantial effect facilitating the commission of crimes than a state’s decision to increase procurement or training for its own forces. Most military strategists have recognised that targeting civilians will have a negative rather than positive effect on the achievement of military objectives.128 Most often, criminal attacks on civilian targets simply motivate the enemy and ensure greater sympathy among the civilian population for the enemy’s cause. Mistreating prisoners of war or killing soldiers hors de combat only makes the enemy less likely to surrender and instead motivates more entrenched fighting. Thus, providing assistance to a military body that recognises that war crimes and crimes against humanity are counter-productive is not likely to have a substantial effect facilitating the commission of crimes. Unfortunately, there are also examples of military forces that base their strategy on terrorising the civilian population.129 Sometimes this is intended to create demographic facts on the ground by forcing populations to flee or simply destroying a group of people. It is axiomatic that, in such situations, the officials of a state should not, or should discontinue, the provision of supplies to groups/forces involved or implicated in such crimes. If they fail to do so, and when the evidence shows that the recipients of aid are engaged in such a criminal campaign, that the assistance is having a substantial effect on crimes and that the state official(s) were aware that they were aiding such crimes, there clearly is a ‘culpable link’ between the provision of general 125

Ibid, Art 7(1). Ibid, Art 7(2)–(3). 127 ‘Of course, the idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.’ See The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm Göring et al Opening statement of Justice Robert H Jackson before the International Military Tribunal (21 November 1945). 128 See, eg Department of the United States Army, Field Manual 3-60, The Targeting Process (2010) s 2-87, available at http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm3_60.pdf (accessed on 26 October 2014). 129 See Taylor Judgment, above n 1, para 6790, describing the actions of the RUF in Sierra Leone after 1996 as the adoption of ‘terror against the Sierra Leonean population as a primary modus operandi of their political and military strategy’. 126

Articles—Koumjian and Kenny 27 assistance to such a group and the crimes that result. It is not necessary to require further proof that the assistance was specifically directed to the commission of crimes in order to impose individual criminal liability, and any such requirement is only likely to allow those at the highest levels most responsible for fuelling the crimes to escape responsibility.

C ONC LU S I ON

International criminal tribunals have used aiding and abetting as a form of responsibility to hold individuals responsible in a wide range of factual contexts, targeting accused that ranged from high-ranking political and military figures to low-level detention-facility officers. These cases have covered a variety of ways in which the accused assisted the crimes, from those financing a group, supplying weapons or other equipment, to what are described as willing or enthusiastic onlookers to crimes. Aiding and abetting has played and will continue to play a critical role in international criminal justice, and will likely often be the more appropriate mode of responsibility for the highest level accused responsible for fuelling atrocity campaigns from a distance, as seen in the recent disparate judgments in the cases against Momčilo Perišić and Charles Taylor. There is good reason why the parameters of aiding and abetting liability were drawn in the manner in which they were at Nuremberg, and why they stood unperturbed in substance since the world first came to properly respond to the concepts of war crimes and crimes against humanity. The ICTY Appeals Chamber in Perišić changed course to provide different rules for those in high leadership positions fuelling crimes from a distance. In the modern world, powerful actors can and often do use their access to funds and arms to create proxy armies with a modicum of independence that allows them to disclaim responsibility for crimes. At the time of writing, officials in Ukraine claim that rebels in the country’s east are armed and financed by Russia, and there are reports that soldiers from the Russian Federation army have fought in the ranks of the rebels.130 Creating a new system of responsibility which appears to completely immunise from criminal sanction those who provide the means and machinations of war and carnage from a distance disregards current realities. International criminal law should, by definition, seek to prosecute those who bear the greatest responsibility, including those who sponsor the perpetrators of atrocity crimes. The safeguards within the traditional elements of aiding and abetting liability, as reiterated by the Appeals Chambers of the SCSL in Taylor and ICTY in Šainović, provide sufficient safeguards to ensure that only those who have committed culpable acts will be held responsible. As held in the Taylor-AJ, the substantial effect requirement is ‘sufficient to ensure that the innocent are not unjustly held liable for the acts of others’.131 Those political and military leaders who provide assistance to a conflict situation will not automatically be indicted if crimes are committed by virtue of the aid provided. If, and only if, they act with the knowledge that their assistance will 130 ‘Russian Forces Fighting Alongside Separatists in Ukraine, NATO Says’, TIME, 28 August 2014, available at http://time.com/3209084/ukraine-russia-nato-obama/ (accessed on 26 October 2014). 131 Taylor-AJ, above n 5, para 480.

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facilitate crimes and, in fact, their actions substantially assist the commission of the crimes can they be held to account. The Perišić-AJ’s characterisation of specific direction amounted to the introduction of ‘novel elements’ in the realm of the imposition of individual criminal responsibility.132 Why it arose is open to interpretation, but the policy concerns which appear to be at the forefront of the reasoning in the Perišić-AJ seem to suggest that the law was being bent to the will of the adjudicator. With the ad hoc tribunals winding down, it is to be welcomed that the Appeals Chamber in Šainović took the opportunity to remedy the ICTY’s judicial legacy on a core aspect of international criminal law and return to the previously accepted parameters of aiding and abetting liability in order to ensure that the accountability framework devised since Nuremberg shall remain viable. In the aftermath of the Taylor and Šainović Judgments, a section of the international community may again have reason to be concerned that its conduct will fall foul of permissible international norms or regulations. However, if the pursuit of a universal rule of law is ever to be achieved, it is the conduct that should be altered, not the law.

132

Ibid.

Irish Yearbook of International Law 2013 Articles—Murphy

Problems Confronting any International Peacekeeping Force in the Israel–Palestine Conflict RAY MURPHY*

IN T R ODU C T I ON Israel needs to retain control over the high ground overlooking Ben-Gurion Airport, the Tel Aviv Jerusalem highway and the narrow coastal plain in which most of Israel’s population and industrial capacity is located. It would also have to retain full control of Palestinian air space—it is only four flight minutes from the Jordan River to Jerusalem— and the electro-magnetic spectrum to prevent jamming. It is even more doubtful that the Palestinians would ever agree to these limitations on their sovereignty . . . But Israel cannot live without them.1

T

HE ABOVE QUOTATION provides an insight into the range of obstacles confronting any Israeli–Palestinian peace agreement. This article is limited to discussing one aspect of any such potential agreement: the problems associated with deploying an international peacekeeping force.2 The article begins with a discussion on the evolution and nature of UN peacekeeping and peace enforcement. It then examines the prerequisites for the success of peacekeeping and the likely composition and mandate of such a force, followed by a conclusion. There have been a number of proposals in the past for some form of international peacekeeping force in the context of the Israeli–Palestinian conflict.3 Amongst these was a call in 2002 by the former UN Secretary-General, Kofi Annan, for a robust multinational presence under Chapter VII of the UN Charter.4 More recently, President

* Dr Ray Murphy is a professor at the Irish Centre for Human Rights, School of Law, NUI Galway. Research for this article was conducted while he was a Visiting Scholar at Al-Haq, the Palestinian Human Rights organisation in the Palestinian Territory, during 2014. He has written extensively on peacekeeping and he also served with the Irish contingent part of UNIFIL in 1981/82 and 1989. 1 J Rosenblum, ‘Think Again: The Demand for Recognition as a Jewish State: Is it Just? Is it Wise?’, Jerusalem Post, 9 January 2014. 2 The issue of some form of international intervention to protect the Palestinian population was examined in ‘Discussion Paper on International Protection in Palestine’ (Ramallah, Al Haq, 2002). 3 See M Indyk, ‘A Trusteeship for Palestine’ (2003) 82 Foreign Affairs 51, which referred to a trusteeship force. As early as 1988, the Palestinian National Authority called for the deployment of international monitors, while the Non-Aligned Movement submitted a draft resolution before the Security Council on 18 December 2000 calling for the deployment of an international force to protect Palestinians in the Occupied Territories (Security Council S/PV of 18 December 2000). 4 ‘The Crisis Continues: International Force Must Be Deployed, Says Annan’, The Independent, 13 April 2002.

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Abbas is reported to have asked the UN to put the ‘state’ of Palestine under ‘international protection’ due to the worsening crisis in Gaza.5 Israel’s position has evolved from outright opposition to hesitancy and more recently acceptance that a proposed peacekeeping force has merit in the context of a broader agreement.6 In 2004, Stephan identified the need for an ‘institutionalized supervisory mechanism consisting of international peacekeepers whose job it is to promote transparency and accountability, apply sustained pressure on the two sides and prevent spoilers from hijacking the peace process’.7 This meant that a strong international presence was required to help restore trust and facilitate a phased implementation of an overall peace settlement. Such a presence could be provided by the creation of a UN peacekeeping mission approved under Chapter VII of the Charter.8 Under Chapter VII, the UN Security Council possesses a broad range of powers to deal effectively with threats to the peace. Such powers include enforcement action, sanctions and resort to military measures. The most significant challenge to contemporary peacekeeping operations is the need to protect vulnerable groups, and it is often expressed in terms of the responsibility to protect civilians.9 The past decade has witnessed the prioritising of the protection of civilians in statements and resolutions emanating from the Security Council. The mandates of peacekeeping operations have included express provisions to ‘protect civilians under imminent threat of physical danger’.10 Finding agreement on policy, the requirements for robust peacekeeping and the protection of civilians are central to the success of all peacekeeping operations.11 Despite resolutions and documents expressing resolve by the Security Council, the situation of peacekeeping forces is compounded by the failure to commit resources, manpower and equipment to enable peace forces to respond and confront challenges in the field.

5 ‘Abbas to UN: Put Palestine under International Protection’, Ma’an News Agency, 5 August 2014; C Lynch, ‘Palestinians Turn to Security Council for Help’, Foreign Policy, 18 July 2014. 6 During the Security Council debate on the NAM draft resolution, the Israeli ambassador to the UN, Yehuda Lancy, stated that Israel was not opposed in principle to the deployment of peacekeepers to cement an agreement but not as an alternative, see Security Council S/PV of 18 December 2000. 7 MJ Stephan, ‘The Case for Peacekeeping in the Occupied Palestine Territories’, (2004) 11 International Peacekeeping 248, 249. 8 B Simma, DE Khan, G Nolte and A Paulus (eds), The Charter of the United Nations: A Commentary, 3rd edn (Oxford, Oxford University Press, 2012), 1237. DL Bosco, Five to Rule Them All: The UN Security Council and the Making of the Modern World (Oxford, Oxford University Press, 2009); DM Malone (ed), The UN Security Council, From the Cold War to the 21st Century (Boulder, CO, Lynne Rienner, 2004). 9 See S Wills, Protecting Civilian—The Obligations of Peacekeepers (Oxford, Oxford University Press, 2009); V Holt and G Taylor with M Kelly, ‘Protecting Civilians in the Context of UN Peacekeeping Operations Successes, Setbacks and Remaining Challenges’ independent study jointly commissioned by the Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs (New York, United Nations, 2009). See also Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579 (UN Security Council, 11 November 2010). 10 UN missions where this terminology was adopted include UNAMSIL (where it was expressed for the first time), MONUC, MONUSCO, UNMIL, ONUB, MINUSTAH, UNOCI, UNMIS, UNIFIL, UNAMID and MINURCAT. The UN Security Council also used similar language when approving missions approved under lead nations. 11 UN, ‘A New Partnership Agenda, Charting a New Horizon for UN Peacekeeping’ (New York, Department of Peacekeeping Operations and Department of Field Support, 2009), v and 19.

Articles—Murphy 31 UN PEA C EK EEPI NG

Peacekeeping is a long-established central element in the UN’s response to international crises and situations of conflict.12 The concept of peacekeeping is neither defined nor specifically provided for in the UN Charter.13 It is a term used to describe military action that is consent based and attempts to preserve peace while abiding by the principle of non-use of force except in self-defence.14 It was designed as an alternative to enforcement measures involving the use of force and military coercion. In this way, it is a tool in the UN system of collective security, and it proved especially useful when cold war politics prevented the UN Security Council from being able to approve enforcement measures under Chapter VII of the Charter.15 The cold war era (1945–89) between the US and the Soviet Union was marked at the UN by continual wrangling over the correct interpretation of the Charter provisions.16 When the required consensus among the major powers did not materialise, it seemed the UN would be unable to fulfil a significant role in the maintenance of peace, and the growth of regional self-defence systems was just one indication of the lack of confidence in the UN as the international guarantor of peace. In these circumstances, the UN sought to circumvent the obstacles caused by cold war rivalries. A breakthrough came with the creation of the United Nations Emergency Force (UNEF) as a buffer between Israel and Egypt after the Suez crisis in 1956.17 Historically, however, peacekeeping missions were also established outside the framework of the UN.18 According to the official UN website, peacekeeping has proven to be one of the most effective tools available ‘to assist host countries navigate the difficult path from conflict to peace’.19 Its unique strengths include legitimacy, burden sharing, and an ability to deploy and sustain international military and police personnel. These can be integrated with civilian peacekeepers to advance what are increasingly ever more complex and multidimensional mandates. 12 www.un.org/en/peacekeeping/documents/backgroundnote.pdf and United Nations Peacekeeping Operations: Principles and Guidelines (New York, United Nations, 2008). See generally WJ Durch and ML England, ‘The Purposes of Peace Operations’, Annual Review of Global Peace Operations 2009 (Boulder, CO, Lynne Rienner, 2009) 9–19; I Johnstone, ‘Peacekeeping’s Transitional Moment’, Annual Review of Global Peace Operations 2011 (Boulder, CO, Lynne Rienner, 2011) 9–17. 13 Simma et al, above n  8, 1171–99; n  White, Keeping the Peace, 2nd edn (Manchester, Manchester University Press, 1997) 207–84; United Nations, The Blue Helmets—A Review of United Nations Peacekeeping, 3rd edn (New York, United Nations, 1996) 3–9. 14 Simma et al, ibid, 1171–72. 15 Ibid, vol 2, 1237–71; Bosco, above n 8; Malone, above n 8. 16 See generally Simma et al, above n  8, 30–147; L Goodrich, E Hambro and A Simons, Charter of the United Nations, (New York, Columbia University Press, 1969) 1–17; I Claude, Swords into Ploughshares (New York, Random House, 1956) ch 12. 17 The UN Emergency Force (UNEF), which was established and deployed after the British and French military intervention in Suez in 1956, is generally regarded as the first true UN peacekeeping operation; Summary Study of the Experience Derived from the Establishment and Operation of the Force: Report of the Secretary-General, 9 October 1958, General Assembly Official Records, 13 Session, Annex 1: Document A/3943. See also documents A/3289 and A/3302. The latter was approved by General Assembly Resolution 1001 (ES-I) of 7 November 1956. DW Bowett, United Nations Forces (London, Stevens, 1964) 90–152. UNEF created a precedent for future operations based on the four principles of traditional peacekeeping: consent, impartiality, neutrality and use of force only in self-defence. 18 H McCoubrey and N  White, International Organizations and Civil Wars, (Aldershot, Dartmouth, 1995) 183. For a brief history of the various peacekeeping missions associated with the Arab–Israeli conflict and deployed to the region since 1947 see Stephan, above n 7. 19 www.un.org/en/peacekeeping/operations/peacekeeping.shtml.

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The most important contribution that UN peacekeepers can make in the early transition from conflict to peace is the creation of a secure environment.20 The provision of security facilitates the political and peace-building support needed to help countries meet the challenges associated with this transitional process.21 It is in this context that a UN force could play a worthwhile role in an Israeli–Palestinian peace process. Since 1985 there has been a significant increase in the number of peacekeeping missions established, with a corresponding increase in the complexity of the mandates. These are often referred to as ‘second generation’ peacekeeping operations.22 The traditionally passive role of peacekeepers has been replaced by a more active role of peace making, involving, among other things, national reconstruction, facilitating transition to democracy and providing humanitarian assistance.23 There is a broad range of terms used to describe these and related activities. The term ‘second generation’ or multi-dimensional peacekeeping often gives way to the more generic title of peace operations, adopted to cover the range of activities involved.24 The UN Department of Peacekeeping Operations continues to use the term ‘peacekeeping’ to cover all such activities, and describes these operations as follows: UN peacekeeping is based on the principle that an impartial presence on the ground can ease tensions between hostile parties and create space for political negotiations. Peacekeeping can help bridge the gap between the cessation of hostilities and a durable peace, but only if the parties to a conflict have the political will needed to reach the goal.25

As the dynamic of conflict in the world changed, so too did the response of the UN, and other international organisations and states. Classical peacekeeping operations originally conducted during the cold war usually involved the deployment of military personnel as inter-positionary forces between two states, similar to the early UNEF mission mentioned above. The process leading to the deployment of a UN force was relatively straightforward: armed conflict, ceasefire, an invitation from the conflict parties to monitor the ceasefire, followed by deployment of military personnel, while negotiations for a political settlement continued. In contrast, the majority of contemporary peace operations are increasingly multidimensional. Operations can differ significantly from one to another, and achieve varying degrees of success. These should be distinguished from UN-approved operations involving ‘coalitions of the willing’ that may involve a greater degree of force by the states concerned and operations by regional bodies, especially on the African continent.26 20

J Dobbins, ‘Peacekeeping in Palestine’, US/ME Policy Briefs, 1 May 2010. See generally R Paris, At War’s End Building Peace after Civil Conflict (Cambridge, Cambridge University Press, 2004). 22 United Nations, The Blue Helmets, above n 13, 5. 23 J Roper, M Nishihara, O Otunnu and E Schoettle, Keeping the Peace in the Post-Cold War Era: Strengthening Multilateral Peacekeeping (New York, Trilateral Commission, 1993) 4. 24 S Ratner, The New UN Peacekeeping (London, Macmillan, 1995) 117–36; WJ Durch, ‘Keeping the Peace: Politics and Lessons of the 1990s’ in W Durch (ed), UN Peacekeeping, American Policy, and the Uncivil Wars of the 1990s (London, Macmillan, 1997) 3–7. 25 Peacekeeping Best Practices Unit Department of Peacekeeping Operations, Handbook on United Nations Multidimensional Peacekeeping Operations (New York, United Nations, 2003) 1. 26 PD Williams, ‘The African Union’s Peace Operations: A Comparative Analysis’ (2009) 2(2) African Security 97; PD Williams, ‘Lessons Learned from Peace Operations in Africa’ (2010) 1 African Security Brief; WJ Flavin, ‘New Challenges for International Peacekeeping Operations’, Congressional Hearing 21

Articles—Murphy 33 P E ACE KE E P IN G AN D ENFOR C EMENT OPER A T I ONS 2 7

There is a great deal of conceptual confusion surrounding peacekeeping and peace enforcement operations.28 In general terms, so-called traditional peacekeeping involves non-coercive intervention based on the consent of the parties to a conflict and does not permit the use of force except in self-defence.29 Many discussions are characterised by a failure to understand and distinguish between traditional peacekeeping and enforcement, and the grey area in between.30 Peacekeeping remains quite distinct from the enforcement measures envisaged under the collective security provisions contained in Chapter VII of the UN Charter. Nonetheless, both concepts are based on similar conditions, in particular, the availability of military forces and the effective cooperation of members of the Security Council. Not surprisingly, there is considerable confusion regarding these very distinct and separate concepts. Peace enforcement must also be distinguished from enforcement action as envisioned under Chapter VII of the UN Charter. Peace enforcement does not involve the range of tools available under Chapter VII, but it may authorise the threat and actual use of force to ‘compel or coerce’ the implementation of international norms or mandates.31 In this way, the two most important characteristics that distinguish traditional peacekeeping from the more robust peace enforcement operations are the use of force and the issue of consent. Closely linked to these issues, and also of crucial importance, is the principle of impartiality. This does not preclude taking appropriate action against any party in violation of an agreement. Impartiality is easily maintained in traditional peacekeeping but is difficult in enforcement operations, owing to the need to use force against certain parties to carry out the mandate. Likewise, insistence that intervention in intra-state conflict adheres to the principles of consent and impartiality is not always practical and may prove counter-productive.32 It is generally accepted that the peacekeeping force in Lebanon (UNIFIL) is based on the traditional peacekeeping model, but even that is somewhat complex since the 2006 Israeli–Hezbollah conflict. The United Nations Organization Stabilization Mission in the Democratic Republic of before the House Committee on Foreign Affairs, 29 July 2009; AJ Bellamy and PD Williams, ‘Peace Operations’ in S Cheldelin, D Druckman and L Fast (eds), Conflict: From Analysis to Intervention, 2nd edn (New York, Continuum, 2008) 392; AJ Bellamy and PD Williams, ‘Contemporary Peace Operations: Four Challenges for the Brahimi Paradigm’ in H Langholtz et al (eds), International Peacekeeping: The Yearbook of International Peace Operations (Leiden, Martinus Nijhoff, 2007) 1–28; AJ Bellamy and PD Williams, Peace Operations and the Global Order (Cambridge, Polity Press, 2007). 27 See generally EA Schmidl, Peace Operations between War and Peace (London, Frank Cass, 2000); I Rikhye, The Politics and Practice of United Nations Peacekeeping: Past, Present and Future (Clementsport, NS, Canadian Peacekeeping Press, 2000). 28 See, eg JG Ruggie, ‘Wandering in the Void: Charting the UN’s New Strategic Role’ (1993) 75 Foreign Affairs 26; A Roberts, ‘From San Francisco to Sarajevo: The UN and the Use of Force’ (Winter 1995–96) 37(4) Survival 26. 29 See A James, Peacekeeping in International Politics (Basingstoke, Palgrave Macmillan, 1991) 1–13; White, above n 30, 232–47; Bowett, above n 17, 196. 30 See T Weiss, ‘Rekindling Hope in UN Humanitarian Intervention’ in W Clarke and J Herbst (eds), Learning From Somalia (Boulder, CO, Westview Press, 1997) 211. 31 See D Daniel, ‘Wandering Out of the Void? Conceptualizing Practicable Peace Enforcement’ in A  Morrison, DA Fraser and JD Kiras (eds), Peacekeeping with Muscle: The Use of Force in International Conflict Resolution (Cornwallis, Canadian Peacekeeping Press, 1997) 4. 32 See S Duke, ‘The United Nations and Intra-state Conflict’ (1994) 1 International Peacekeeping 375.

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the Congo (MONUSCO), discussed below, may be categorised as a peace enforcement operation.33 The semantic confusion is not helped by the application of the term ‘peace enforcement’ to a large-scale international military operation, such as the first Gulf war.34 Among the few situations to which the description peace enforcement can accurately be applied is that of the NATO-led Implementation Force (IFOR) in the former Yugoslavia following the Dayton Accords, and the more recently deployed Kosovo Force in Kosovo.35 In June 1992, the UN Secretary-General Boutros Boutros-Ghali, published ‘An Agenda for Peace’.36 The report expressed the optimism and confidence of the time, but these were to be short lived. Subsequent events have highlighted the deficiencies in the UN system, in particular the controversy over UN action and policy in Somalia and Rwanda, and the failure to secure peace and protect Bosnia in the former Yugoslavia. In the report, the Secretary-General outlined four related roles that the UN could play in the fast-evolving post-cold-war international political arena, namely, peace enforcement, peacemaking, peacekeeping and post-conflict peacebuilding. Most relevant to the Israeli–Palestinian situation are peacemaking, designed ‘to bring hostile parties to agreement’ through peaceful means, such as those found in Chapter VI of the UN Charter; and peacekeeping, established to deploy a UN ‘presence in the field, hitherto with the consent of all the parties concerned’, as a confidence-building measure to monitor a truce between the parties while diplomats strive to negotiate a comprehensive peace or officials to implement an agreed peace. To ensure long-term sustainability, this should be followed or accompanied by post-conflict peacebuilding, intended to foster economic and social cooperation, with the purpose of building confidence among previously hostile parties, developing the social, political and economic infrastructure to prevent future violence, and laying the foundations for a durable peace. Another important development was the redefinition of sovereignty to incorporate a global responsibility for the protection of human rights.37 Doyle and Sambanis have discussed how the UN was accepted as the legitimate body to determine when sovereignty may be violated. The formerly accepted boundaries between sovereign consent and intervention by third parties became blurred. Peace operations seemed willing to use force when deemed necessary in consent-based peacekeeping or imposed peace operations. In this way, peacekeeping and peace enforcement almost merged into ‘robust peacekeeping’. This is especially evident in the case of the Democratic Republic of the Congo (DRC), where the conflict has been amongst the most intractable confronting UN peacekeepers in recent times and provides lessons for any future deployment of

33 UN Security Council Resolution, SC/RES/2098, 28 March 2013; Special Report of the Secretary-General on the Democratic Republic of the Congo and the Great Lakes Region, S/2013/119, 27 February 2013. 34 The term is often used by UN officials; see, eg the comments by D Shagra and R Zacklin, ‘The Applicability of International Humanitarian Law to United Nations Peace-keeping Operations: Conceptual, Legal and Practical Issues’ in Symposium on Humanitarian Acton and Peacekeeping Operations Report (Geneva, ICRC, 1994) 40. 35 R Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Legal and Operational Issues in Context (Cambridge, Cambridge University Press, 2007) 69 and 156. 36 B Boutros-Ghali, ‘An Agenda for Peace: Report of the Secretary-General’, UN Doc A/47/277-S/24111 (June 1992). 37 MW Doyle and N  Sambanis, Making War and Building Peace (Princeton, NJ, Princeton University Press 2006) 7.

Articles—Murphy 35 peacekeepers. The violence in the DRC, as exemplified by the crisis in North Kivu, is characterised by serious human rights and humanitarian law violations.38 An underlying cause of the violence is the inability of the government to exert its authority, and the impunity for human rights violations is symptomatic of the weak state authority in eastern Congo that fuels the conflict. In order to stem a crisis in the east, the UN Security Council authorised a new ‘intervention brigade’ with what has been described as an unprecedented mandate to carry out targeted offensive operations.39 This is the first time such a brigade has been created within a peacekeeping force.40 However, it is not the first time the UN has adopted an offensive strategy.41 The track record for such military action does not inspire optimism. In 1961, UN peacekeepers in the Congo were authorised to use force as a last resort to deal with the civil war and general disturbances throughout the country. Subsequently, peacekeepers were authorised to take vigorous action during the campaign to suppress foreign supported secessionists in the mineral-rich Katanga province. Although the campaign was ultimately successful, it proved controversial. The infamous Blackhawk Down incident in Somalia in 1993 is also a stark reminder of how offensive operations can go wrong.42 The failed operation against the warlord General Aidid ultimately led to the premature withdrawal of all UN forces from Somalia.43 The UN resolution authorising the intervention brigade in the DRC states that it will be established for one year on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping.44 Previous UN reports were critical of the ‘glacial speed’ of the response to attacks on civilians, and past UN failures to halt advances by armed groups in the DRC led to violent demonstrations against the UN. The human rights violations that occurred prompted a demand for a tougher response from the UN.45 The use of force by or on behalf of the UN, whatever the circumstances, must be resorted to only in the context of an overall 38 Special Report of the Secretary-General, S/2013/119, 27 February 2013; Report of the UN Joint Human Rights Office on Human Rights Violations from 15 November to 2 December 2012 (Office of the UN High Commission for Human Rights, May 2013); Report of the  UN Joint Human Rights Office on Human Rights Violations between April  and September 2012 (Office of the UN High Commission for Human Rights, November 2012). 39 UN Security Council Resolution, SC/RES/2098, 28 March 2013, paras 9 and 1; Special Report of the Secretary-General on the Democratic Republic of the Congo and the Great Lakes Region, S/2013/119, 27 February 2013, paras 60–64. 40 UN Security Council Resolution, SC/RES/2098, 28 March 2013, para 8. 41 ‘Rebels in DR Congo Say UN Peace Brigade Move is “War”’, Agence France-Presse, April 1 2013; BBC News, 1 April 2013. 42 United Nations, The United Nations and Somalia 1992–1996, UN Blue Book Series, vol VIII (New York, United Nations, 1996); Murphy, above n 35; and Clarke and Herbst, above n 30, 211. 43 Ibid; M Sahnoun, Somalia—The Missed Opportunities (Washington, DC, US Institute of Peace, 1994); J Mayall (ed), The New Interventionism 1991–1994: United Nations Experience in Cambodia, Former Yugoslavia, and Somalia (Cambridge, Cambridge University Press, 1996); R Thakur, ‘From Peacekeeping to Peace Enforcement: the UN Operation in Somalia’ (1994) 39(3) The Journal of Modern African Studies 387, 388; J Hirsch and R Oakley, Somalia and Operation Restore Hope (Washington, DC, US Institute of Peace, 1995); AS Natsios, ‘Humanitarian Relief Interventions in Somalia: the Economics of Chaos’ (1996) 3(1) International Peacekeeping 68; MD Abdullahi, Fiasco in Somalia: US–UN Intervention, Occasional Paper No 61 (Pretoria, Africa Institute of South Africa, 1995). 44 UN Security Council Resolution, SC/RES/2098, 28 March 2013, para 9. 45 To make matters worse, UN and national forces have also been blamed for abuses. The Report of the UN Joint Human Rights Office on Human Rights Violations from 15 November to 2 December 2012 (Office of the UN High Commission for Human Rights, May 2013) blamed national and rebel forces for widespread rape and other serious violations of international humanitarian law and human rights law.

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political strategy with clearly defined goals. To be fair to the UN, at the beginning of 2013 the Secretary-General outlined a multifaceted approach to the problems confronting the DRC.46 The Israeli–Palestinian conflict requires a similar comprehensive approach if it is to have any real prospect of success. Security arrangements for Israel are among the contentious issues to be resolved in any peace agreement with the Palestinians. The Palestinians have rejected Israeli Prime Minister Netanyahu’s demand that Israel be allowed exclusive security control along the Jordan Valley.47 He also wanted to be allowed to retain Israeli Defense Forces in the Jordan Valley until the Palestinians met the test of implementation of the security arrangement. Apart from the difficulty associated with retaining the armed forces of a foreign power on the sovereign soil of an independent state, a major problem with this proposal is who decides when the implementation of the security arrangements has been achieved. Palestinian President Abbas has indicated that he is willing to accept the presence of the Israeli Defense Forces in the West Bank for a transitional period.48 This is likely to be unacceptable to Israel. Mr Netanyahu is also reported to have demanded the ‘right’ to pursue ‘terrorists’ throughout the future Palestine state. In this way, the presence of an international peacekeeping force could facilitate a resolution of the problematic issue of security arrangements. This would be premised on a range of related factors, including consent of the parties, UN approval, and agreement by states to provide the military, police and other personnel required for such a mission. Such a force would be more than just an inter-positional force between warring factions such as the early United Nations Emergency Forces (UNEF I and UNEF II) deployed in the region.49 Any peace agreement or security arrangements are likely to be complex, taking into account the nature of the relationship between Israel and Palestine and the variable of Israeli settlements in the Occupied Territory, especially around east Jerusalem. The particular problems associated with Jerusalem are beyond the scope of this article, but dividing the city does not appear workable at this stage. Demilitarisation and the proposal made in 2000 at Taba calling for the creation of two sovereignties in Jerusalem, joint administration of the city and free access to the holy sites is at least a starting point for discussion. The UN force would need the capacity to prevent incursions by either side into the territory of the other, something that could give rise to significant military and political challenges. It would also need to have a civilian component to engage in peacebuilding and provide support for the institutions of a nascent Palestinian state. For these reasons, and given the geopolitical strategic importance of the region to the US and EU, the situation is unique and a special candidate for such an operation.

46

Special Report of the Secretary-General, S/2013/119, 27 February 2013. B Ravid, Haaretz, 26 January 2014, 1 and 3. 48 Haaretz, 29 January 2014, 1; J Rudoren, ‘Palestinian Leader Seeks NATO Force in Future State’, The New York Times, 3 February 2014, A4. 49 Summary Study of the Experience Derived from the Establishment and Operation of the Force: Report of the Secretary-General, 9 October 1958, General Assembly Official Records, 13 Session, Annex 1: Document A/3943; Bowett, above n 17, 90–152. 47

Articles—Murphy 37 P RE RE Q UIS ITE S F O R PEA C EK EEPI NG I N PA LES T I NE

In the event of an agreement providing for a peacekeeping force, it is imperative that it be under the authority of the UN. This is to give the force the legitimacy that comes with any operation approved under the authority of the UN. Furthermore, the US has taken a central role in the negotiations and excluded the UN from process so far, thus delegitimising any outcome in the eyes of many Palestinians. It is also critical that the peacekeeping mission succeed, and evidence indicates that consent could be a critical factor in determining the outcome of a peacekeeping operation.50 Fortna utilised a systematic argument to demonstrate four ways that peacekeepers could enhance the prospects for a stable peace in a post-war period.51 These are: raising the costs of returning to the battlefield and increasing the benefits of peace; reducing uncertainty among the parties by monitoring compliance; preventing an ‘accidental’ return to armed conflict; and preventing political abuse. The post-agreement phase will be fragile, and an international presence is intended to provide the Palestinian Authority with an opportunity to exercise control over all its territories and to give Israel the confidence to withdraw its forces and dismantle the military occupation. Having given the peacekeeping force the mantle of UN approval, practical issues must be addressed to ensure success. In this context, the experience of UNIFIL in Lebanon is illustrative of some of the problems likely to be encountered. A major advance was made in the effectiveness of UNIFIL when the UN agreed and delineated definite lines of demarcation in south Lebanon and the creation of the so-called Blue Line along the internationally recognised border of Lebanon. This allowed for the withdrawal of Israeli forces and the deployment of Lebanese and UN forces along the agreed line. In 1978, the Secretary-General outlined three essential conditions that needed to be met for UNIFIL to be effective. First, it needed the full confidence and backing of the Security Council. Secondly, it must operate with the full cooperation of all the parties concerned. Thirdly, it must be able to function as an integrated and efficient military unit.52 In 1983, the now retired Under-Secretary-General of the UN with special responsibility for peacekeeping operations, Brian Urquhart, elaborated upon this when writing about the multinational force in Beirut and stated that successful peacekeeping depends, among other things, on a sound political base, a well-defined mandate and objectives, and the cooperation of the parties concerned.53 These criteria are equally relevant today, and provide a benchmark by which to measure the likely success of a peacekeeping operation along agreed Israeli–Palestinian borders and in other sensitive locations. Israel is currently in occupation of the West Bank and the Gaza Strip.54 A prerequisite for the deployment of any international peacekeeping force is an agreement between the parties, but especially Israel, for the withdrawal of military forces and an 50 The experience of operations in Namibia, El Salvador, Cambodia, Mozambique, Eastern Slavonia (Croatia) and East Timor demonstrates how the UN can be successful, see Doyle and Sambanis, above n 37; LM Howard, UN Peacekeeping in Civil Wars (Cambridge, Cambridge University Press, 2007).£24.99 51 VP Fortna, Does Peacekeeping Work? (Princeton, NJ, Princeton University Press, 2008); DC Jett, Why Peacekeeping Fails (London, Palgrave MacMillan, 2001). 52 UN Security Council Document S/12611, 19 March 1978, para 3. 53 The New York Times, 19 December 1983. 54 Y Dinstein, The International Law of Belligerent Occupation (Cambridge, Cambridge University Press, 2009) 13–16 and 276–80.

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end to the occupation. This requires a simultaneous agreement on deployment and the area of operations. A failure to get this right from the start could be fatal to the success of any such initiative. The deployment of UNIFIL in Lebanon in 1978 demonstrates the hazards of failing to agree such issues at the outset. A challenge is to deploy an international force with a mandate based on Chapter VII of the UN Charter with the military capacity to enforce this in a way that would not be seen by the Palestinians as another occupying force merely replacing the Israeli Defense Forces.

S TATUS AN D C OMPOS I T I ON OF T HE FOR C E

While UN approval is essential, it does not follow that the international force for Palestine/Israel would be led by the UN. There are a number of alternativee precedents from previous missions that provide a potential template that could be followed. As the objectives and particular challenges of each mission are unique, there is no exact model that fits all situations. Since no formal agreement under the Charter for the provision of troops to the UN has yet been concluded, Member States are under no legal obligation to supply the Security Council with armed forces except on a voluntary basis. In recent years, standby arrangements and other ‘offers’ have been made by states, and it is on this basis, in contrast to what was intended for enforcement measures, that states usually provide the necessary troops to make up a peacekeeping force.55 Cooperation with regional bodies and so-called coalitions of the willing are characteristic of contemporary UN-approved operations, a situation that has been brought about by a number of factors, not least the lack of finance.56 Substantial cooperation between NATO and the UN was forced by the necessity to respond to the Yugoslav crisis.57 The complex nature of many contemporary conflicts requires significantly larger and better equipped forces than a traditional peacekeeping mission, and this in turn has led to greater participation by the permanent members of the Security Council. The most likely candidates to play the lead role are the US or NATO, with the US already being mentioned as a preferred option. As professional, well-trained and well-equipped military forces are required, this would exclude some current large troop-contributing states and favour NATO forces. However, Jordanian forces could be considered acceptable from both a military and a political perspective. A major issue for both Israelis and Palestinians is trust, and there is likely to be significant opposition to the deployment of any force by both populations. In addition, Israel just does not trust Europe.58 Israel perceives the policing of the Rafah crossing into Gaza in the aftermath of the Israeli pull-back in 2005 and the deployment of UN forces in south 55 See generally M Bothe, ‘Peacekeeping Forces’ and R Murphy, ‘United Nations Standby Arrangement System (UNSAS)’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford, Oxford University Press, 2013). 56 Though costs are minuscule compared to the national defense budgets: see E Schoettle, ‘Financing Peacekeeping’ in Roper et al, above n  23, 20; ‘UN Peacekeeping: Deployments and Budgets, 1946–2013’, Security Council Report, Monthly Forecast, February 2014. 57 See generally M Nordquist, What Color Helmet?: Reforming Security Council Peacekeeping Mandates (Newport, RI, Naval War College, Center for Naval Warfare Studies, 1997) 46–50. 58 C Wergin, ‘Why Israel no Longer Trusts Europe’ International New York Times, 1–2 March 2014, 8. This view was confirmed in an interview with an Israeli Defense Forces officer, Jerusalem, April 2014.

Articles—Murphy 39 Lebanon as part of the 2006 ceasefire as unsatisfactory. In any event, the Palestinian Authority and Israel would have a de facto veto on the composition of the force. It is likely that European and North American governments would be more willing to support any peacekeeping initiative owing to the political and strategic importance of the region and the Israeli–Palestinian conflict, and the hesitancy that existed with deploying a UN force in other countries such as the Central African Republic would not exist. Nevertheless, both parties would need to be realistic, as it could still prove difficult to generate the necessary personnel from potential troop-contributing countries. Martin Indyk, the former US Special Envoy for Israeli Palestinian negotiations, in advocating a trusteeship in 2003, also stressed the importance of US leadership, supported by British, Australian and Canadian forces.59 He proposed a force of under ten thousand, large enough to make its presence felt but still reasonable, given the relatively small area covered by the Occupied Palestinian Territories. So-called ‘over the horizon’ forces or reinforcements could be stationed in neighbouring countries like Jordan or Egypt. The status of a UN or similar force depends on the underlying authority upon which the force is present in the receiving state, and on the nature and mission of the force.60 The consent of the host state confers the legitimacy required for a lawful presence in its territory, and it is normally specified in an agreement concerning the rights and duties of the force.61 In fact, the legality of a peacekeeping force on any country’s territory should be guaranteed in a legal instrument known as the Status of Force Agreement.62 In August 2000, the Secretary-General published an externally commissioned report on enhancing the effectiveness of UN peace operations.63 The Brahimi Report contained a range of recommendations to be kept in mind when considering deployment. Although it contained a number of flawed assumptions, especially with regard to the conclusion that a strategy could be devised for peacekeeping and enforcement by the same forces, many recommendations are relevant to any proposed deployment in and around the Occupied Palestinian Territories. First, peacekeeping must be an appropriate option, given the nature of the conflict. Secondly, there must be a peace to keep based on agreement between the parties, including agreement on UN involvement in resolving the conflict. The peacekeeping operation must be part of a more comprehensive strategy that may include political, economic, developmental, institution-building, and humanitarian and human rights elements. This must involve other parts of the UN system—both UN bodies and Member States—and other international organisations. The comprehensive strategy needs to take into account the regional dimension to 59 Indyk, above n 3, 57–58. Though Indyk proposed that these were special forces ready to play a counterterrorism role. D Gold, ‘Why International Peacekeepers Cannot Replace the IDF in the Defense of Israel, Friends of Israel Initiative’, Paper No 13, 25 July 2013. 60 WG Sharp, ‘Protecting the Avatars of International Peace and Security’ (1996) 7 Duke Journal of Comparative and International Law 92, 112–43. 61 The Peacekeepers Handbook (New York, International Peace Academy, 1984), 362. 62 D Fleck, ‘Present and Future Challenges for the Status of Forces (ius in praesentia). A Commentary to Applicable Status Law Provisions’ in D Fleck (ed), The Handbook of The Law of Visiting Forces (Oxford, Oxford University Press, 2001) 47. 63 UN General Assembly Security Council, A/55/305 S/2000/809, Report of the Panel on UN Peacekeeping Operations (Brahimi Report), 21 August 2000.

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ensure that gains made in addressing the problems that contributed to a conflict are not undermined by problems in neighbouring countries. The Security Council, particularly its five permanent members, must agree on the objective of an operation and provide it with ‘clear, credible and achievable mandates.’64 This includes authorising the deployment of an appropriate number of adequately trained and equipped troops. Best case scenarios must not be assumed and the mandate should clearly outline the authority to use force. The credibility and ability of a mission to implement its mandate is often determined at the outset, so the rapid deployment of personnel and equipment is essential. Deploying an international force in Palestine will need to be coordinated with Palestinian and Israeli authorities to determine which checkpoints will be taken over and which will be removed. Other sensitive issues include the division of areas of operation or zones of responsibility, the timetable for Israeli withdrawal and the need freedom of movement throughout Palestine for the international force.

MA NDA T E

In the case of Israel/Palestine, the nature of the peacekeeping mission would require a mix of traditional peacekeeping under Chapter VI and the more robust peace-enforcement missions envisioned under Chapter VII. The model of Bosnia-Herzegovina and the IFOR led by NATO would not be appropriate in any post-Palestine–Israel peace agreement. The IFOR was deployed following the Dayton Accords, which compelled the parties, especially the Serbs, to accept an agreement. The peace enforcement mission was mandated to deal with any ‘spoilers’ or use force against any party that refused to comply with the terms of the agreement. In this way, the peace agreement concluded under the auspices of the US was enforced by a heavily armed and welltrained international force. The idea of enforcing a peace agreement on the parties in Palestine is not an option. However, any international force deployed would need to be well armed, with the capacity to use force. This would be necessary for force protection purposes and to defend the mandate. The maintenance of security would be the primary responsibility of the international force in conjunction with the parties to the agreement. The mission could also be responsible for preventing weapon smuggling and attacks on Israel. Israel would be responsible for the orderly withdrawal of forces and the evacuation of settlements within an agreed time-frame. Palestinian security forces would have the primary responsibility to maintain law and order while the prevention of attacks on Israel and weapons smuggling would be the primary responsibility of the international force.65 Other important roles for the international peacekeeping force would be as guarantor of the agreement, and to observe and monitor the conduct of the parties. Whether this would be described as supervision or monitoring, the mandate would need to empower the force to take whatever measures were deemed necessary to defend the mandate. In theory, defending the mandate and enforcing it are two distinct roles. In practice, the situation is much more blurred. 64

Ibid, 10. See reported comments by Palestinian President Abbas, J Rudoren, ‘Palestinian Leader Seeks NATO Force in Future State’, The New York Times, 3 February 2014, A4. 65

Articles—Murphy 41 The mandate of any international force should include a role in the monitoring of international human rights and humanitarian law. This would require the right to intervene to prevent violations as part of a broader strategy to protect Palestinians and reassure Israel. In this regard, a human rights component to the mission would have an important role working with other agencies, such as the Office of the High Commissioner for Human Rights, the United Nations Relief and Works Agency and the International Committee of the Red Cross. The Temporary International Presence in Hebron provides a model of how ineffectual the mandate of a monitoring mission can be when there is no real follow-up or enforcement of reported violations.66 Here, political considerations took precedence in order to accommodate Israeli demands. The United Nations Truce Supervision Organization is another example of a monitoring mission.67 Its original mandate is now redundant. It has remained in the region to play a useful role in observation and reporting, but it is a little more than a witness to events and does not shape the outcome. It could play a useful role in conjunction with a large, well-armed peacekeeping mission, but its current role and configuration would rule out its playing any significant part in a post-agreement peacekeeping mission. In fact, it would be preferable to deploy no international peacekeeping force rather than establish a force without an effective mandate or means to defend it. Although all peace agreements require some degree of constructive ambiguity, some issues cannot be evaded from the outset. Lessons from the past demonstrate that the Oslo Accords contained a number of practical weaknesses in that they lacked a clearly defined end goal and did not spell out where the parties would be at the end of the process. Unsurprisingly, the deeply divisive issues of final status were left undefined, and, as feared by both parties, became hostages to the creation of facts on the ground.68 Significantly, there was no monitoring mechanism created for settlement expansion or for violence. In any new agreement, there would be a need for independent monitoring of its implementation, especially to avoid the adoption of a sequential rather than a parallel approach by either party. In fact, it is difficult to envisage any consolidation of peace without serious and systematic independent monitoring on the ground. Although the situation in the Sinai was significantly different from that of the Occupied Palestinian Territory, the Multinational Force and Observers (MFO) deployed there following the Camp David Accords and the Egyptian Israeli Peace Agreement of 1979 provides an interesting example of what can be undertaken when the required consensus within the Security Council for the establishment of a peacekeeping force cannot be achieved.69 Under the Treaty, Israel undertook to withdraw from the Sinai Peninsula over a period of three years. The withdrawal involved the razing of Israeli settlements and military facilities in Sinai.70 Differences emerged over the precise demarcation of certain portions of the international frontiers. These were resolved 66

www.tiph.org/en/About_TIPH/Mandate_and_Agreements/. www.un.org/en/peacekeeping/missions/untso/. S/801, UN Security Council Resolution 50, 29 May 1948. 68 UN Security Council S/2006/956, Report of the Secretary-General on the Middle East, 11 December 2006, paras 5–7. 69 Israel–Egypt Treaty of Peace, 1979 (1979) 18 International Legal Materials 362, 363; http://mfo.org/ info/11 (accessed on 29 January 2014). 70 Dinstein, above n 54, 14. 67

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by an Arbitral Award in 1988, following which Israel withdrew behind the recognised international boundary in 1989. The Treaty establishes four security zones, three in the Sinai in Egypt and another in Israel along the international border. It all provides limitations on military forces and equipment within each zone. The mission is to supervise the implementation of the security provisions of the Egyptian–Israeli Treaty of Peace and prevent any violations. It operates checkpoints and observation posts, and conducts reconnaissance patrols and verification tasks. The division of the area of operations into zones provides an example of how areas of responsibility and likely flashpoints can be identified. Another issue that was resolved at the time was the participation of European forces. Israel had threatened to veto European participation over implied support for the Palestinian Liberation Organisation at the time, and it seemed that European states were also reluctant participants.71 The US wanted to ensure the international character of the forces. The security environment for the MFO has changed and it is an example of how events can unfold in a way that was not originally envisaged. Force protection has become a major concern for the MFO with political unrest in Egypt and rising tensions from the siege of Gaza.72

C ONC LU S I ON

The period following the Oslo Accords saw two developments that illustrated the weakness in the political will of both parties and the lack of trust between them.73 On the Israeli side, settlements continued to be expanded and Israeli control over land, borders and Palestinian movement was consolidated, with frequent and widespread closures, resort to heavy force and increased extrajudicial killings. On the Palestinian side, the Authority failed to institute reform and a transparent and accountable system of governance, and was weakened within by widespread allegations of corruption.74 There has also been criticism of the inability to tackle armed resistance, which increasingly took the form of ‘acts of terrorism’.75 Given the ongoing occupation and expansion of settlements, and taking into account the security measures invoked by the Palestinian Authority against civilians and armed groups since 1996, this seems an unfair criticism. Furthermore, having implemented what were often repressive and indiscriminate measures at the behest of the US and Israel, there were few if any reciprocal positive developments recognising a Palestinian right to self-determination and autonomy in exchange. In any event, similar issues will confront any international presence, and this will make such a mission challenging. There has been no shortage of UN resolutions and political rhetoric in relation to the Israeli–Palestinian conflict. None of these have been matched by a commensurate political commitment to enforce such resolutions, and this has been an overriding weakness with UN and other engagements to date. Nonetheless, the UN can bring unique skills and resources to bear on conflicts that are ready for resolution, thus 71

‘Fighting Over the Peacekeepers’, TIME, 12 July 1981, vol 118, issue 23, 44. Interview, MFO officer, Jerusalem, April 2014. 73 UN Security Council S/2006/956, para 6. 74 Ibid, paras 5–7. 75 Ibid, paras 5–7. 72

Articles—Murphy 43 helping to alleviate the suffering of people affected by war and assisting them in the reconstruction of their post-conflict societies.76 While the UN is not equipped for war making, including imposing a settlement by force, it can be very good at ‘peace’, mediating and implementing a comprehensively negotiated peace.77 Multidimensional peacekeeping cannot be rolled out at will, however, and there is no ‘one-size-fits-all’ model. Ultimately, the whole Arab–Israeli conflict must be addressed, not that between Israel and the Palestinians alone. To succeed, the peacekeeping operation must have a clear mandate and adequate resources, and it must be tailored to fit the political, regional and other realities of the Arab–Israeli conflict. It should also reflect the needs and aspirations of the majority of the local population. Although the military component may be led by NATO, the UN should retain the lead role in the civilian operation, and the Office for the Co-ordinations of Humanitarian Affairs is well placed to take this lead. The prospect of an intra-state conflict would present a serious dilemma for the international peacekeeping forces should fighting break out between Palestinian factions. It is much easier to deploy peacekeeping forces between two warring parties when they have agreed to settle their differences. Israel will have its own internal difficulties with any deal involving the removal, forced or otherwise, of settlers from the Palestinian territories. However, the Palestinian Authority is likely to face even greater challenges to any peace agreement, which almost by definition will involve compromise by both parties. Fatah and Hamas will need to reach some agreement, as any deal that excludes either would most likely fail. From a peacekeeping perspective, the fear is that the international forces would be targeted. Random attacks by hard-line elements such as Salafi Jihad in Gaza opposed to the agreement could be expected; what is not acceptable is the targeting of an international presence by any significant militant group, as this would render the mission untenable. The resolution of internal conflict has been a significant feature of recent peacekeeping operations and has involved the establishment of democratic governments, culminating in the nation building attempted for a time in Somalia and currently underway in Kosovo. International administration of this kind, like peacekeeping itself, is not specifically provided for in the UN Charter. It is not subject to a clear UN doctrine. Operations in Eastern Slavonia, Bosnia-Herzegovina, Kosovo and East Timor have been characterised by the UN and other international organisations assuming responsibilities that evoke the historically sensitive concepts of trusteeship and protectorate.78 Such a role is neither suitable nor appropriate for a peacekeeping operation in Palestine. Maintaining impartiality can present peacekeepers with a dilemma, especially when they confront situations in which civilians are victimised, or when the international forces are themselves the subject of attack.79 The question of the consent of the parties to a conflict to an international presence is particularly problematic in these situations, and the international forces involved must be prepared to resort to force rather than be bystanders to large-scale violations of international humanitarian law or human 76

Peacekeeping Best Practices Unit, above n 25, 7. Doyle and Sambanis, above n 37, 5. 78 Indyk, above n 3, 51–66; M Berdal and R Caplan, ‘The Politics of International Administration’ (2004) 10(1) Global Governance 1, 2. 79 United Nations, The Blue Helmets, above n 13, 5. 77

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rights. However, a clear lesson from past experience is that peace operations alone cannot end a conflict and nor will the robust interpretation of a mandate provide the solution. Finding agreement for the deployment of international forces is just one step in the process. The requirement for a clear, credible and achievable mandate cannot be overstated. Key issues, such as rules of engagement, area of operations and freedom of movement, are among the more specific details that cannot be fudged but must be agreed before any proposed deployment. There is also the issue of who will defend Palestine from external aggression in the absence of a Palestinian army. Will an international force have the mandate and means to protect civilians, whether Palestinian or Israeli, and how will this be achieved? What guarantees can the US, Europe or the UN offer Israel in return for agreeing to the creation of a Palestinian state if the peace agreement fails and radical groups assume power? Would NATO membership or support be available?80 The Israeli occupation has choked economic and political developments throughout the Palestinian territories and, despite the presence of UN agencies, the EU and other international organisations, this assistance is hindered by the occupation. An extensive and focused peacebuilding programme will be required. The situation might require the establishment of a civilian post similar to that of the Office of the High Representative in Bosnia and Herzegovina. The primary role of such an office holder would be coordination, and the provision of advice and assistance. He or she would not have any governance responsibility. Funding of the entire operation would be a critical issue. Recently, the UN redeployed forces from one peacekeeping operation to another to reduce costs. The major funder of UN peace operations is the US, so this is another reason for US involvement in every aspect of the process. In this regard, despite its potential political strength and economic influence, the Quartet (UN, US, EU and Russia) has lost its relevance. The breakdown in relations over the Ukraine between the US and EU on the one hand and Russia on the other means that this situation is unlikely to change in the near future.

80

C Wergin, ‘Why Israel No Longer Trusts Europe’, International New York Times, 1–2 March 2014, 8.

Irish Yearbook of International Law 2013 Articles—O’Donovan

‘The Way of the World’, International Economic Law and National Constitutions: Irish Constitutional Sovereignty and the Eurozone Crisis DARREN O’DONOVAN*

IN T R ODU C T I ON

T

HE HEIGHT OF the Eurozone crisis was accompanied by the emergence of the aphorism: ‘when solvency goes, sovereignty goes’.1 Within the Irish legal system, both commentators and judges have been forced to engage with the question of what a constitution can deliver, and to what extent understandings of constitutional sovereignty must evolve, when a nation is confronted with the realities of sovereign insolvency. While issues of sovereignty are often analysed through the prism of politics or economics, or through the design or evolution of the constitutional order of the European Union, this article focuses upon the place of the legal concept of sovereignty within the national constitutional order. The Republic of Ireland, a state whose birth and early years was shaped by the terms of an international treaty, has long possessed distinct anxieties regarding the ability to make and approve international agreements.2 In Thomas Pringle v The Government of Ireland,3 the Irish Supreme Court sought to harmonise traditional projections of sovereignty with the evolving nature of international governance. The challenge was to identify the borderline between an international agreement which represents an act of sovereignty and one which involves a transfer of sovereignty to bodies lying outside the Constitution. At first glance, it is clear that the promises of the domestic constitution grow ever more partial and brittle in the face of globalisation. Irish entry, in 2010, into a ‘Troika’ (consisting of a partnership of the International Monetary Fund, the European Commission and the European Central Bank) bailout programme sharply underlined *

Assistant Professor, Faculty of Law, Bond University, Australia. Tomasso Padoa-Schioppa Group, ‘Completing the Euro: A Road Map towards Fiscal Union in Europe’ (Notre Europe—Jacques Delors Institute, 2012) 23. 2 The Anglo-Irish Treaty 1921 regulated the initial creation of the Irish Free State as a self-governing dominion within the British Commonwealth of Nations. Treaty between Great Britain and Ireland, signed at London, 6 December 1921, League of Nations Treaty Series 26 (626) and 10 (1921). Over the next 30 years, Ireland gradually secured its status, with the creation of the current Constitution, Bunreacht na hEireann, in 1937 and the formal declaration of a republic in the Republic of Ireland Act 1948. 3 Thomas Pringle v The Government of Ireland, Ireland and the Attorney General [2012] IESC 47 (Decision of 19 October 2012). 1

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the factual constraints operating upon constitutional actors. This article illustrates that the process of loan conditionality—created through ‘soft law’ memoranda of understanding—can imbalance the domestic separation of powers and weaken democratic oversight. For Ireland, the use of soft law international forms outpaced traditional understandings and highlighted key blindspots in the Irish Constitution’s treaty-centric dualism. The restrictive vision of international cooperation implicit in traditional understandings of Irish constitutional sovereignty was also highlighted during the ratification of key Eurozone measure to tackle the crisis: the Treaty on Stability, Coordination and Governance within the Monetary Union (TSCG)].4 The culmination of the constitutional debates which marked Ireland’s economic collapse was Pringle, which involved a challenge to Ireland’s ratification of the European Stability Mechanism (ESM).5 It represents an imperfect effort by a national constitutional court to find a place for a republican vision of sovereignty, even as the international community seeks to create free-standing policy mandates for supranational, technocratic institutions. In the final part of the article, I illustrate the deep discomfiture evident in the Supreme Court’s attempt to harmonise traditional constitutional understandings with the emerging dynamics of Eurozone governance. This tension, I argue, led to a number of contradictory and oversimplified assumptions being made by the members of the Supreme Court (the Court). Nevertheless, by developing a number of positive threads within the Pringle judgments, this article ultimately argues that the Irish Constitution can still retain a significant and legitimate interrogative voice, defending the right of the people to have their say through referendum and offering a critique of the quality of international law making processes.

TH E IMP O S S IB L E P RO M IS ES OF DU A LI S M? I R ELA ND’S C ONS T I T U T I ON, TRE ATY-M AK I NG POWER A ND S OV ER EI GNT Y

Prior to recent events, Ireland’s dualist constitution had represented a bastion speaking in favour of a ‘domaine reserve’,6 which states cannot cede to international legal institutions absent constitutional referenda. Article 1 of the Constitution affirms the state’s ‘inalienable, indefeasible and sovereign right to  … determine its relations with other nations’, directly stating that ‘Ireland is a sovereign, independent, democratic State’. The Constitution, written in 1937, endorses core republican values, forbidding the alienation of governmental power and acknowledging the right of the people, ‘in final appeal, to decide all question[s] of national policy’.7 These provisions have lain at the root of a distinctive constitutional approach, requiring referenda to approve the 4 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union [2012], available at http://european-council.europa.eu/media/639235/st00tscg26_en12.pdf. 5 Treaty Establishing the European Stability Mechanism [2011] OJ L91, available at www.europeancouncil.europa.eu/media/582311/05-tesm2.en12.pdf. 6 This concept was invoked by the German Constitutional Court in its judgment on the Lisbon Treaty. See Ziterung BVerfG, 2BvE 2/08 vom 30 June 2009, Absatz-Nr, available at www.bverfg.de/entscheidungen/ es20090630_2bv-e000208en.html. 7 Bunreacht na hEireann, Art 6 states: ‘All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the Rulers of the State, and, in final appeal, to decide all questions of national policy, according to the requirements of the common good’.

Articles—O’Donovan 47 various steps of European integration, with the results having at times both stalled and endorsed the evolution of the European Union’s legal order.8 The test for the referendum requirement was laid down in the 1987 case of Crotty v An Taoiseach,9 where the plaintiff challenged the government’s ratification of the Single European Act (SEA) on the basis that it infringed the provisions of the Constitution. The SEA represented, inter alia, an expansion of the scope of the European Treaties, whereby the Member States would progressively coordinate their foreign policy positions and to ‘refrain from impeding’ consensus and joint action.10 Specific obligations within Title III included the undertaking to inform or consult the other Member States on foreign policy matters;11 to take full account of the position of other Member States in such matters;12 and to ensure that ‘common principles and objectives’ were generally developed and defined.13 A majority (3:2) of the Supreme Court held that a constitutional referendum was required to approve the SEA as the agreement entailed an impermissible transfer of Irish sovereign powers. This is despite the fact that the tone of the SEA’s provisions was collaborative and aspirational. Arguably, the sole unqualified substantive obligation was to ‘maintain the technological and industrial conditions necessary for security of the Member States’.14 The grounds for ruling Title III’s provisions impermissible absent referendum were also clouded by the fact that the entire court joined in allowing the passage of Title II—which reformed European Council procedures to permit qualified majority voting on a limited set of specified issues.15 The majority judgements in Crotty are unsatisfactory because of their vagueness and the lack of detailed consideration of their systemic consequences.16 The majority judgments featured a number of broad statements defining the content of sovereign powers, implying that an extensive version of the domaine reserve led to the outcome. For Walsh J: this freedom [to carry out external relations] does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in

8 European Union laws are granted additional protection by the Irish Constitution, Art 29.4.10: ‘No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State’. This immunity does not apply to treaties which expand the existing competences and purposes of the European Union. See G Barrett, ‘Building a Swiss Chalet in an Irish Legal Landscape? Referendums on European Union Treaties in Ireland and the Impact of Supreme Court Jurisprudence’ (2009) 5 European Union Constitutional Law Review 32. 9 [1987] 1 IR 713; Single European Act, 17 February 1986 [1987] OJ L169 1, 25 ILM 506. 10 Ibid, Title III, Art 30(3)(c). 11 Ibid, Title III, Art 30(2)(a). 12 Ibid, Title III, Art 30(2)(c). 13 Ibid. 14 Ibid, Title III, Art 30 (6)(b). 15 Ibid, Title II. 16 This led Hogan and Whyte to opine that ‘it may be appropriate to take a less than sanguine view of its prospects for survival’. G Hogan and G Whyte (eds), JM Kelly: The Irish Constitution, 4th edn (Dublin, Tottel, 2009).

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Justice Hederman stressed that governments cannot ‘in any way fetter powers bestowed unfettered by the Constitution’ or ‘contract to exercise in particular procedure their policy making roles’.18 Elements of the minority’s reasoning also seemed to endorse similar visions of a domaine reserve. Ironically, what was to emerge as the signature statement of the Crotty decision actually came from the minority judgment of Finlay CJ, who provided a pithy definition of sovereignty as ‘the unfettered right to decide: to say yes or no’.19 His ruling turned on the application of this principle to the particular obligations contained in Part III. For him, the notion of cooperation contained therein did not ‘impose any obligations to cede any national interest in the sphere of foreign policy’ nor give ‘any right to override or veto the ultimate decision of the State on any issue of foreign policy’.20 In finding that a referendum was not required, he focused on the removal of sovereign power, rather than simply conditioning it or inhibiting it procedurally.21 The potential practical implications of the indefeasible sovereignty underlying the majority statements were immediately apparent to commentators. Among the possible consequences of the judgment was that its breadth raised issues regarding Ireland’s membership of the United Nations.22 In my view, the doubts surrounding Crotty are clearly deepened by the existence, within Article 29 of the Constitution, of provisions which seem to envision Ireland’s broad participation in international cooperation and agreements. The inalienable sovereignty of Crotty was hard to square with the fact that the state was a full participant in the League of Nations in 1937 when the Constitution was passed. Participation in binding agreements without referenda was contemplated at the time of the Constitution. Ireland’s valuing of the League of Nations in the inter-war years led to an express provision recognising that the government may employ any ‘organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation’.23 Article 29.1 endorses the idea of ‘peace and friendly co-operation amongst states’ and Article 29.2 commits the state to ‘the pacific settlement of international disputes by international arbitration and judicial determination’. In terms of the role of referenda, Article 28.3.1 renders the power to declare war—seemingly the most far-reaching foreign policy decision—subject to parliamentary approval only. In failing to reflect adequately upon the vision of international relations immanent in these specific provisions, one may accuse the Crotty majority of using the poetry of the Constitution to overrule, rather than complement, its prose. Despite predictions that the ambiguities

17 Ibid, 783. The third member of the majority, Henchy J, cast his position in similar terms, ruling that, due to Title III, ‘a purely national approach to foreign policy is incompatible with accession to this treaty’ (786). 18 Ibid, 794. 19 Ibid, 769. 20 Ibid, 772. 21 Ibid, 774, Justice Griffin concurring. 22 This danger was highlighted by A Whelan and L Heffernan, ‘Ireland, the United Nations and the Gulf Conflict: Legal Aspects’ [1991] Irish Studies in International Affairs 115, 140–45. 23 Bunreacht na hEireann, Art 29.4.2.

Articles—O’Donovan 49 of Crotty would be clarified by later decisions, however, this ultimately only occurred with the Pringle case in 2012. In order to illustrate the resultant lack of clarity, a useful exercise is to provide a snapshot of the selective ratification landscape which emerged. One sees the difficulty of identifying, from practice, any unifying principle as to when a referendum was required:  Ireland is a party to the International Covenant on Economic Social and Cultural Rights. Under this, a UN Committee can identify Ireland as in breach of the Covenant, and has recently acquired the power to uphold individuals’ complaints, and grant symbolic damages. No referendum was ever held.  Ireland is a party to the European Convention of Human Rights. Damages can be granted by the Strasbourg Court, but fall below the level of damages available in domestic cases. No referendum was ever held.  Ireland is a member of the United Nations and legislatively ratified the United Nations Charter. The UN Security Council has the ability to impose stringent economic sanctions for, inter alia, breach of collective security provisions. No referendum was ever held.24  Ireland is a party to the Rome Statute of the International Criminal Court. This was felt by government to involve an alienation of judicial power. A referendum was held and passed in 2001.25  The TSCG requires, inter alia, Eurozone states to transpose a ‘debt brake’ rule into their domestic law. This obligation is backstopped by the potential to bring parties before the European Court of Justice for insufficient transposition of the rule. A referendum was held in 2012. The silence around this state of affairs was facilitated by the dualist nature of the Irish legal system more generally. Despite its express recognition of the ‘generally recognised principles of international law’, provisions such as Article 29.6 have received only spasmodic judicial treatment. Irish judges have adhered to normative dualism, allowing international customary law and treaty obligations entry into domestic law only at the ‘common law’ level, subordinate to any relevant statutory provisions. Such a strict separation of spheres hardly stimulated reflection upon national sovereignty in the age of globalisation. This cultivated separation of systems was also accompanied by a tendency towards minimalist, pragmatic reasoning, where the international relations power was raised. This was best seen in the 1990 case of McGimpsey v Ireland.26 In that case, the Supreme Court did not engage extensively with the Crotty statements, and found that the Anglo-Irish Agreement 1985 was properly ratified by Parliament.27 Despite its obligations to participate in cross-border bodies, Finlay CJ found that the 24 This vulnerability was recognised by the Constitution Review Group, made up of academics, parliamentarians and prominent civil society organisations, which recommended an amendment expressly recognising the United Nations. The All-Party Oireachtas Committee on the Constitution, the Constitutional Review Group, ‘Report of the Constitution Review’ (1996) 96. 25 The Referendum on the Twenty-Third Amendment of the Constitution Bill 2001 (acceptance of the jurisdiction of the International Criminal Court) was passed on 7 June 2001 by a margin of 64% to 36%. 26 McGimpsey v Ireland [1990] IR 110. 27 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ireland, November 1985, available at http://peacemaker.un.org/sites/ peacemaker.un.org/files/IE-GB_851115_Anglo-Irish%20Agreement.pdf.

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agreement facilitated only ‘constant mutual discussion’, noting that the Irish government, while committed by the agreement to certain aims, remained ‘entirely free to do so in the manner which it, and it alone, thinks most conducive’ to its achievement.28 Any additional insight on the Crotty criteria was then ruled out by the Court, which stressed that the agreement was bilateral and that ‘we are not dealing with a multilateral treaty conferring powers on supranational authorities’.29 The prevalence of normative dualism should not, however, obscure the deep anxiety which persisted regarding evolving international norms and structures. It is tempting to characterise the statements of the Crotty majority as products of nationalistic dualism. Yet Crotty should also be understood as a decision which views international legal obligations as carrying an inherent gravity. The majority opinions did not contemplate the possibility of withdrawal from agreements or that the legal sanctions attaching to breaches may be of such quality as to permit the Irish state to practically continue to disobey international legal obligations. In installing the referendum as a protection of sovereignty, the Court was recognising the significance of ratifying international rules. The account of Crotty has so far focused upon its definition of the concept of sovereignty. However, one must not neglect the specific treatment given to the state’s participation in the European Union by Article 29. Article 29.6 states that no provision of the Constitution ‘invalidates laws enacted, acts done or measures adopted by the State  … that are necessitated by the obligations of membership of the European Union’. This bestowal of immunity obviously functions to permit many international agreements to be legislatively ratified. It was not, however, available for the two treaties at the centre of this article, as both the ESM and the TSCG were drafted as public international law treaties separate from the Union order. Yet the debate around Article 29.6 underlines the arguments made above regarding the rigidity of the Crotty ruling. In Crotty, the Court held that any treaty which altered the ‘essential scope or objectives’ of the Union would have to be ratified through referendum.30 This further underlined the harsh view taken by the Court of the SEA—as the majority held that it not only represented an alienation of sovereignty, but the consultation envisaged expanding ‘the essential scope or objectives’ of the Union. It is arguable that the character and tone of the Crotty judgment have led to an overcautious culture in calling referendums regarding European Union treaties, as a result of the message sent regarding the phrase ‘essential scope or objectives’ by the majority’s perception of the SEA. This was most clearly seen in the debates concerning whether a referendum to approve the Lisbon Treaty was required. While the Lisbon Treaty was extremely complex in its rearranging of existing arrangements, those parts of it which may have altered the ‘essential scope’ of the Union were, as Barrett has argued, few in number.31 The changes most likely to require a referendum was the provision giving legal effect to the Charter of Fundamental Rights, which extinguished the European Community as a separate entity and permitted the use of qualified majority voting in the area of criminal justice and the appointment of a High 28

McGimpsey, above n 26, 121–22. See CR Symmons, ‘International Treaty Obligations and the Irish Constitution: The McGimpsey Case’ (1992) 41(2) International Comparative Law Quarterly 311, 316. 30 Crotty, above n 9 (Finlay CJ). 31 G Barrett, ‘A Road Less Travelled—Reflections on the Supreme Court Rulings in Crotty, Coughlan and McKenna (No 2)’ (Dublin, Institute of International and European Affairs, 2011) 9. 29

Articles—O’Donovan 51 Representative on Foreign Affairs and Security Policy. Were these sufficient to alter the ‘essential scope or objectives’ of the Union? The government of the day did not seek to explore this, but adopted the now standard posture of immediately moving to hold a referendum. This has occurred on each of the four EU treaty amendments that have been made since the Crotty judgment, with the political orders clearly not wishing to take real ownership over the referendum trigger but preferring caution. The lack of any opportunity to dispel the silences and fill out the key spaces within the Crotty ruling has thus had powerful effects on the conduct of Ireland’s foreign policy and the political climate around international legal cooperation. As will now be analysed, the understandings of the international legal system and of domestic ratification which underlay Crotty sovereignty have, in more recent years, been filled with unanticipated complications. The first blindspot which has emerged is the growing impracticability of the Ireland’s traditional model of dualist insulation. Under such a model, the central legitimating link between the national and international legal systems was to be the ratification of international treaties by Parliament or the people. Yet this rule-centric vision of international law has been denuded by the increasing political and economic sanction power of supranational bodies, whereby compliance with international law is secured not through binding rules, but extant political realities. The increasing use of soft law forms is emblematic of this and, as will now be shown, the negotiation of Ireland’s memorandum of understanding with the Troika underlined that the protections installed by Crotty could be outflanked.

CO N S TITUTIO N AL TE N SI ONS I N T HE R U N U P T O PR I NGLE

The arrival of the Troika in Ireland sharply underlined for the Irish public the incomplete nature of Finlay CJ’s formative statement: sovereignty is the right to say yes or no to an ever impoverished array of national choices. This reflects the reality that globalisation has fundamentally defeated the national constitution’s claim to totality. In Pringle, Clarke J captured the univocal nature of the Irish constitution towards geopolitical realities: There are many circumstances in which the Government and Oireachtas [the Irish Houses of Parliament] may come under significant practical political pressure, either domestically or internationally, to adopt certain measures. That is the way of the world. However, the architecture of the Irish Constitution is concerned with where the final decision lies. The fact that institutions of government may, as a matter of practical politics, from time to time have to make decisions or bend their policies in the direction of the wishes of other countries does not, of itself, breach that model.32

What I wish to defend, however, is that, while the concept of sovereignty as it appears in the Irish Constitution appears laden with greater real world qualifications, it can retain a vitality and function even in the era of increasingly supranational governance. Constitutional sovereignty must be centred upon mediating democratic legitimation and ensuring that core rule of law protections are built into international governance. Events from 2008 onwards represented a struggle to identify the capacity of the Irish 32

Pringle, above n 3 (Clarke J), para 5.15.

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Constitution to, if not practically restrain, at least normatively influence the design and future operation of new international economic institutions. The first constitutional debate concerned the agreeing of the memorandum of understanding between the government and the Troika. For the IMF and its new European Union partners, the memorandum specifying the conditions that Ireland should satisfy in return for funding did not represent a binding international agreement or a contractual arrangement, but rather constituted political assurances without which funds would be denied.33 The applicable decision of the IMF Executive Board expressly forbids any contractual function or binding language in the creation of standby arrangements.34 Former Legal Counsel to the Fund, Sir Joseph Gold, has written that: ‘One consequence that flows from the avoidance of a contractual approach is that a member may request a stand-by arrangement without having to satisfy its domestic legal requirements for the conclusion of an international agreement’.35 Thus, while the IMF has publicly championed the idea of ‘country ownership’ in the design of its programmes, its legal and functional approach to conditionality remains centred on the executive branch.36 The Irish Constitution failed to interrupt this evasion of ratification requirements, with no formal parliamentary ratification of the Troika’s memorandum of understanding ever occurring. This came as a surprise to a public who had grown accustomed, in the years following the Crotty case, to approval by referendum of even the most incremental and technical of European Union treaty amendments. The reason for this was tied to Article 29.5.2, which regulates the ratification international agreements by the Irish States: ‘The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dail Eireann [the lower house of parliament]’. Parliamentary oversight therefore hinged upon the question of whether the memorandum of understanding and letters of intent which Ireland would lodge with the IMF to create the final deal could be characterised as an ‘international agreement involving a charge upon public funds’. The prevailing understanding of an ‘international agreement’ was, however, legalistic and appeared unable to stretch to soft law forms of arrangement. The direct domestic precedent on the meaning of an ‘international legal agreement’ is Boland v An Taoiseach.37 There, the Irish Supreme Court heard a challenge to the executive ratification of the Sunningdale Agreement concerning political cooperation with the United Kingdom regarding Northern Ireland.38 It found that the agreement was not a binding international treaty, as its terms provided that a formal agreement

33

These arrangements are not lodged with the United Nations under Art 102 of the UN Charter. International Monetary Fund, The Use of the Fund’s General Resources—Conditionality Guidelines, Decision No 12864-(02/102) 25 September 2002, as amended by Decision No 13814-(06/98) 15 November 2006, [9]. This states that ‘Fund arrangements are not international agreements and therefore language having a contractual connotation will be avoided in arrangements and in program documents’. 35 J Gold, ‘The Legal Character of the Funds Stand-By Arrangements and Why it Matters’, IMF Pamphlet Series No 35 (1980) 45. 36 The soft law approach does benefit the state receiving assistance, in that were it to fail to comply with a condition, it would not commit an internationally wrongful act. 37 [1974] IR 338. 38 See the full text of the agreement, available at http://cain.ulst.ac.uk/events/sunningdale/agreement.htm. 34

Articles—O’Donovan 53 would be signed at a later date and lodged with the United Nations.39 It was therefore merely a ‘communique containing declarations and assertions of policy’.40 Parliamentary ratification applied to treaties only, seemingly due to their putatively uniquely binding quality. As a result, the Irish Constitution has a restricted vision of the creation of norms in international law.41 This focus upon legal ‘bindingness’ favours form over function, and in the context of Troika conditionality meant that entry into the memorandum of understanding did not, in the eyes of the government, require the approval of Parliament. As a political gesture, a parliamentary motion was passed expressing political approval for the government’s actions, but it did not purport to ratify the deal.42 This evasion of ratification requirements underlines the accountability deficits which may result from sanctions and political commitments in international relations. The Irish experience supports the thesis of Hollis and Newcomer, who in the United States context have warned of the failure to ensure congressional oversight of political commitments.43 The legalism of the Irish constitutional provisions comes into sharp relief when viewed in a comparative context. The Latvian Constitutional Court struck a different tone in commenting upon the nature of such memoranda during its 2009 decision striking down proposed pension reforms.44 While finding no evidence to suggest that this particular reform had been required by the Troika, it nevertheless stressed that even if it were a prescribed implementation step: the conceptual decision with respect to the receipt of the international loan and terms and conditions thereof is to be deemed as an important and significant matter of State and public life, and that in compliance with the procedure established by the Constitution, it had to be decided by the legislator itself.45

This approach was enabled by the more functional protection of legislative powers offered by Article 68 of the Latvian Constitution: ‘All international agreements, which settle matters that may be decided by the legislative process, shall require ratification by the Parliament’.46 The practical orientation of the phrase highlighted above arguably secures the right of ratification, though the IMF would likely argue that conditionality memoranda do not ‘settle matters’. Yet the Constitutional Court clearly anchored its reasoning in function rather than formalism, and underlined that the relevant domestic institutions must retain ‘the duty to decide on all substantial matters relating to the aforementioned 39

Ibid, cl 6. Crotty, above n 9 (Walsh J), 779. 41 This point is extensively illustrated by Symmons, above n  29. In analysing the later case of McGimpsey, above n 26, he warned that the treaty-centric focus may fail to recognise that even statements of policy can ground both acquiescence and estoppel in future disputes.The concern in McGimpsey was that Ireland, by ratifying the agreement, was acting in contradiction of then existing Irish constitutional provisions laying claim to the entire island of Ireland (the since amended Arts 2 and 3). See Symmons, above n 29. 42 Motion on the EU–IMF Programme of Financial Support, Dáil Deb, 15 December 2010, vol 725, 311. 43 D Hollis and J Newcomer, ‘Political Commitments and the Constitution’ (2009) 49(3) Virginia Journal of International Law 507. 44 The Constitutional Court of the Republic of Latvia, Judgment on behalf of the Republic of Latvia in Riga, 21 December 2009, Case No 2009-43-01. The official English translation and a note on this judgment are available from the International Network for Economic and Social Rights at www.escr-net. org/docs/i/1285934. 45 Ibid, [30.1]. 46 Ibid (emphasis added). 40

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loans, including the matters concerning the possible authorisation for the Cabinet of Ministers’.47 The creation, in 2012, of the TSCG brought the next iteration of post-crisis ratification debates. With the refusal of the United Kingdom and the Czech Republic to participate, the TSCG became an intergovernmental treaty under public international law. This meant the evasion of deliberative requirements for EU treaty amendments which include the European Parliament and national parliaments at the negotiation stage.48 It also resulted in complex legal debates regarding, inter alia, the participation of EU institutions in intergovernmental processes and the applicability of the Charter of Fundamental Rights. Ireland’s Attorney General, in holding a referendum required under the Crotty test, stressed that ‘this treaty is a unique instrument outside the European Union treaty architecture’.49 The specific obligation which arguably involved the alienation of constitutional sovereignty was the Article 3(2) TSCG requirement that each state create a debt brake rule of ‘binding force and permanent character, preferably constitutional or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes’. The qualifying phrase ‘preferably constitutional’ had been added to the final draft, which reportedly was an effort to avoid a referendum in Ireland.50 Nevertheless, ‘otherwise guaranteed’ seemed to require states to effectively foreclose on the possibility that parliament could revoke the debt brake rule. The obligation is backed by an enforcement mechanism whereby a country, or the European Commission, may commence an action against party before the Court of Justice of the European Union (CJEU) for failing to adequately comply with Article 3(1).51 The CJEU is empowered to issue a fine of up to point one of a per cent of that country’s gross domestic product.52 The debt brake obligation has triggered wide-ranging domestic constitutional complications throughout Europe.53 In Ireland, the Crotty judgment was already in place and a referendum seemed to be necessary. There was, however, evidence of lingering confusion in the text put to the people. The constitutional amendment approved by the Irish people on 31 May 2012 inserted a new sub-article 29.4.10: The State may ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this

47

Ibid. Treaty on the Functioning of the European Union (TFEU) Art 48(2)–(3). 49 Taoiseach Enda Kenny, ‘Taoiseach and Tánaiste—Statements on European Stability Treaty Referendum’ (Dublin, 28 February 2012), available at www.merrionstreet.ie/index.php/2012/02/ taoiseachs-statement-to-dail-eireann-referendum-on-european-stability-treat/?cat=3. 50 Michael Link, German State Secretary for European Affairs, claimed that: ‘We are trying to design everything that is on the table in a way which would be okay in the eyes of the attorney general and the Irish Constitution so that no referendum is needed’, quoted in C Volkery, ‘Fiscal Pact Referendum a Decisive Moment for Ireland in Europe’, Spiegel Online International, 29 February 2012, available at www.spiegel.de/ international/europe/fiscal-pact-referendum-a-decisive-moment-for-ireland-in-europe-a-818313.html (accessed on 18 September 2013). Adding further confusion, Art 3(2) also states that the debt brake rule will ‘respect the prerogatives of national parliaments’. 51 TSCG, Art 8(1). 52 Its role is limited to the adequate transposition of the rule and does not extend to non-compliance with the Commission’s interpretations of it. 53 F Fabbrini, ‘The Fiscal Compact, the “Golden Rule,” and the Paradox of European Federalism’ (3013) 36 Boston College International and Comparative Law Review 11. 48

Articles—O’Donovan 55 Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

The wording chosen does not secure a ‘permanent, preferably constitutional’ rule— instead, the debt brake is implemented through constitutionally immunised legislation rather than a directly self-executing constitutional provision. Whether such legislative implementation is actually compliant with the terms of the TSCG is open to question, as it is conceptually difficult to represent it as ‘permanent’. The Irish electorate was thus exercising their franchise in a deeply unsettled legal context. Rather than automatically institutionalising austerity, the TSCG also made heavy provision for ‘exceptional circumstances’, which allowed for Keynesian stimulus where there was ‘an unusual event outside the control of the government concerned which has a major impact on the financial position of the general government’.54 Such circumstances include ‘periods of severe economic downturn’, causing a ‘temporary deviation’ in the budget that ‘does not endanger fiscal sustainability in the medium term’.55 These terms would, in reality, remain undefined until interpretive power was applied post-ratification. At the time of the Irish referendum, the question was who would fix their content. Would it be a legally imposed definition by the Commission? An economically driven definition shaped by market forces? Or a political definition stabilised only by power relations amongst institutions and Member States? With the Treaty granting such a limited role to the European Parliament, the emerging framework of economic governance severely weakened the connection between strongly legitimated constitutional bodies and more weakly legitimated functional bodies.56 In the eventual vote on the Treaty, 61 per cent of the Irish electorate stated that they possessed adequate knowledge of the Treaty, with turnout being 51 per cent.57 We now reach the third and final phase of this article, the Supreme Court judgment in Pringle. In this decision, we see the Court return to the Crotty decision, seeking to chart with greater detail the boundaries of Irish constitutional sovereignty. As foreshadowed by my earlier discussion, the Court struggled with the majority’s statements in the case, and how they might be used to identify which treaties, when ratified, represent an impermissible transfer of such sovereignty. I will argue that the Court failed, ultimately, to provide a coherently reasoned test, with their reasoning based upon a 54

TSCG, Art 3(3). TSCG, Art 3(3)(b). 56 It is difficult to see how the TSCG framework, with its complex economic concepts, can meet Lon Fuller’s fundamental principle of congruence, whereby the ‘law must be administered and enforced as it is written’. (On this principle see D Luban, ‘The Rule of Law and Human Dignity: Re-Examining Fuller’s Canons’ (2010) 2 Hague Journal on the Rule of Law 29, 30.) The reliance upon enabling, and not congruent, legal instruments has contributed to the failure of European institutions to build a consistent practice of communicative legality in their actions, particularly through the recent crisis. The most controversial instance of this was the Treaty’s obligation to maintain a structural deficit of 3%—a calculation dependent upon literally multiplying uncertainties such as the output gap and potential GDP. Neither term appears in the text of the Treaty, and the IMF, European Commission and individual states have persistently held differing interpretations. The Treaty ultimately passed the power over the normative process of fixing ‘common principles’ for defining structural deficit to the Commission. 57 Irish Referendum Commission, ‘Report on the Referendum on the Fiscal Stability Treaty 2012’ (2012), available at www.refcom.ie/en/Past-Referendums/Fiscal-Stability-Treaty/Report/Report-on-the-Referendumon-the-Fiscal-Stability-Treaty.pdf. 55

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confusingly opaque differentiation between policy-making and policy-implementing treaties. While I have difficulty with the test generated, I nevertheless believe that the Court’s reasoning features elements which could spark what is ultimately required— a mutually interrogative dialogue across legal orders. The reasoning of the Supreme Court in Pringle may, if properly refined, help mediate a greater attentiveness to democratic participations and to rule-of-law principles into the interaction of national and international actors.

WH ITH E R CRO TTY? E VA LU A T I NG T HE PR I NGLE C A S E’S T R EA T MENT OF S OV ER EI GNT Y

Following on from the expanded fiscal supervision under the TSCG, the next step in the regional response to the Eurozone crisis was the creation of a permanent bailout mechanism, the ESM. Pringle was a challenge before the Supreme Court to the resulting ESM Treaty, taken by a member of the European Parliament, Deputy Thomas Pringle, prior to parliamentary ratification. He argued that the treaty involved a transfer of sovereignty to the extent that its ratification was incompatible with the Constitution. He alleged that sovereignty was fettered due to the nature and extent of Ireland’s financial obligations under the ESM Treaty,58 the open-ended and imprecise powers and functions conferred on the ESM institution, and the absence of any mechanism for withdrawal. A legal realist analysis would stress that the linked TSCG59 had been accepted by referendum—were a referendum ordered, there would have been some duplication of issues, as the ESM had already featured in the TSCG campaign. The concern to avoid placing Ireland’s membership of the United Nations or the IMF in doubt was also an inchoate submission which exerted a gravitational pull beyond the specific arguments concerning the ESM.60 Ultimately, the Court found in favour of the Irish government by a majority of six to one. It also referred the issues raised by Deputy Pringle concerning the compatibility of the Treaty with European Union law to the CJEU. This latter action found that the ESM Treaty did not contravene the EU Treaties. This will be briefly discussed when I consider the broader international significance of the Supreme Court’s decision on the national constitutional issues.61 While it is somewhat unusual to commence with a dissenting judgment, that of the sole dissentient, Hardiman J represented a distillation of the strongest statements of the Crotty majority. He defended the vision of sovereignty as ‘the right to yes or no’, which he described as ‘a precise and memorable statement of an essential quality of constitutional sovereignty’.62 His judgment therefore embodies what such an unqualified conception would require of the government in treaty negotiation. It 58

At the time of the judgment, the Treaty imposed a liability upon the Irish State of €11,145,400,000. Compliance with the obligations of the TSCG are required before bailout funding from the ESM can be obtained. 60 The dissent of Justice Hardiman displayed some frustration with this. While acknowledging that Ireland’s membership of international organisations or other Treaties could lay open to challenge as a result of his ruling, he argued that it was ‘not prudent, proper or even logical to assume that those arguments would replicate those deployed in the present case’. 61 Case C-370/12 Pringle v Ireland [2013] 2 CMLR 2. 62 Note Justice Hardiman’s judgment did not supply numbered paragraphs. 59

Articles—O’Donovan 57 rejected any attempt by the majority to recentre the referendum test upon a ‘transfer’ or ‘abdication’ of sovereignty only, stressing that Crotty extended to procedural obligations. Ultimately, Justice Hardiman’s defence of Crotty was based upon a textual analysis of terms such as ‘inalienable’ and ‘indefeasible’.63 Yet the ruling is open to criticism due to its failure to balance these expansive adjectives against the Constitution’s immanent vision of international relations in Article 29.64 As will be seen, it was these provisions which allowed his judicial colleagues to sketch a more permissive version of the international relations power. While his judgment is a faithful transposition of the Crotty majority’s express statements, it is marred by the same distortions or omissions. The concern that the Crotty prohibitions failed to recognise the state’s long-standing engagement in international legal processes is borne at a crucial point of Hardiman J’s reasoning. He attempted to embody the intended extent of constitutional sovereignty through a concrete example—namely, what he viewed as the unfettered right of the Irish state to recognise a newly emerging state. He found that as recognition was ‘obviously within the prerogative of the Irish government’: it would not be consistent with the Constitution for Ireland to agree not to recognise any new State save with permission or agreement of some other country, countries or organisations … Nor would it be possible for the government to agree not to recognise a new State except after consultation with other States and after ‘taking full account’ of their views.65

This example reveals the extraordinary demands the narrower reading of Crotty would place upon Ireland’s international relations. State recognition is not wholly unfettered, as Hardiman J claims, but is regulated by provisions of the UN Charter and relevant treaty law. For instance, the Irish state is legally bound to take into account the principle of self-determination under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.66 Furthermore, in a scenario such as that which pertained after the Iraqi invasion of Kuwait, would a United Nations Security Council resolution calling for the non-recognition of acts flowing from an illegal use of force not also be a binding restraint upon Ireland?67 Ireland’s obligations to cooperate multilaterally to prevent human rights abuses seem also, in certain contexts, to affect any potential recognition.68 Such oversights underline the difficulty in reverse engineering examples of a Crotty-compliant foreign policy, lending support to the idea that they were constructed without adequate reflection on 63 A sizeable portion of Hrdiman’s J judgment is spent invoking dictionary definitions and Irish language sources. The principal definition of sovereignty he identified is that of the Oxford English Dictionary, namely, ‘the supreme controlling power in communities not under monarchical government’. 64 Ibid. His judgment largely excludes these provisions, citing only Art 29.6 directly. 65 Ibid. 66 Art 1(1) of the ICCPR states that ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. Art 1(3) states that state parties ‘shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations’. Art 1 of the ICESCR reiterates the formulations. 67 UNSC Resolution 662 (August 1990) UN Doc S/RES/662. This called upon all states and international organisations not to recognise the Iraqi annexation of Kuwait and to refrain from any action that may constitute an indirect recognition of the annexation. 68 The Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations provides that states ‘shall co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all’.

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the actual functioning of international legal processes. The collapse of Hardiman J’s hand-picked example of an area of untainted sovereignty underlines the need to draw out and confront the unmapped consequences of the 1987 judgment. The remaining six judges of the Supreme Court, likely influenced by fidelity to the doctrine of precedent, refused to state that Crotty had been decided wrongly or to directly criticise the reasoning of the prior court.69 Instead, they deployed three justifications for finding the strongest statements of Crotty to be obiter comments, not central to the resolution of the case. They:  stressed the importance and historical context of Article 29;  tied the prescriptions of Crotty to the putatively extraordinary nature of the Single European Act; and  contrasted a transfer of sovereignty versus an act of sovereignty by introducing a distinction between a policy-implementing treaty and a treaty which cedes policymaking power. The result was a tempering of Crotty to permit more international agreements to be ratified by Parliament or executive, with only certain treaties now targeted for the referendum mechanism. Unfortunately, however, the legitimacy of this is open to critique on grounds that it neither represents full adherence to Crotty nor is an adequate accounting for the oversights of that judgment. The first factor which supported the shift was a thoughtful consideration of the birth of the Irish state and the history of its interaction with international bodies. This was most apparent in the judgments of O’Donnell and Clarke JJ. The former stressed that the unfettered sovereignty approach could not ‘provide any workable test that is consistent with history, common sense, or the structure of the Constitution’.70 Justice Clarke noted that, rather than embodying any particular philosophical school of sovereignty, ‘the Constitution is, in many respects, quite specific about the model of sovereignty adopted’.71 Constitutional provisions such as Articles 1 and 6 were to be viewed in the historical context of a nation seeking to break the link with previous constitutions and its former status within the British Empire. The Article 15.2.1 affirmation of the Irish Parliament as the ‘sole and exclusive’ law maker, could be seen, inter alia, ‘as an uncompromising reassertion of the freedom from legislative control by the Imperial Parliament at Westminster’.72 Justice O’Donnell rejected outright the idea that Ireland retained ‘a freedom not to abide by sanctions imposed by a UN resolution’.73 The Constitution contemplated matters such as UN membership ‘as an exercise in sovereignty of a small country which at the time of the adoption of the Constitution was anxious to secure international recognition of its status as a nation’.74 It was inconsistent with historical conduct, and with the words and structure

69 Justice McKechnie stressed that ‘no one has suggested that Crotty was wrongly decided.’ Pringle, above n 3 (McKechnie J), [2]. 70 Ibid (O’Donnell J), [12]. 71 Ibid (Clarke J), [8.1]. 72 Ibid (O’Donnell J), [18]. The provision was reacting to s 4 of the Irish Free State Constitution Act 1922, which reserved the right of the United Kingdom Parliament to legislate for Ireland. 73 Ibid (O’Donnell J), [14]. 74 Ibid.

Articles—O’Donovan 59 of the Constitution, to argue that the preservation of a veto or ‘the right to resile from decisions already made and matters already agreed’ was required.75 While this analysis of Article 29 was welcome, the decisions lacked sufficient justification for why this more subtle understanding could be attributed to the Crotty majority. Further confusion was also sown by O’Donnell J, who invoked the definition of John Austin that sovereignty is to be understood as the requirement ‘that certain individual or certain body of individuals is not in a habit of obedience to a determinative human superior’.76 For him, the prohibition of habitual obedience is flexible enough to allow the formation of binding alliances, but will not permit a government act which ‘abdicates, alienates, subordinates or indeed transfers its decision making power’.77 This distinction, however, entirely evades the question of inhibiting decisionmaking powers through procedure which featured prominently in Crotty. The selective invocation of Austin represented an unusual philosophical gloss to the process of Irish constitutional interpretation, particularly when Hardiman J had enumerated other, alternative understandings within his judgment. Perhaps aware of the need for additional grounds to justify their position, the majority reasoning bore a second feature, which, in my view, was less persuasive. It sought to represent Crotty as a narrow judgment, provoked by the putatively extraordinary nature of the SEA. This article has already outlined reasons to be sceptical of the claim that the SEA was as far-reaching as was represented by the Supreme Court. Nevertheless, Chief Justice Denham argued that Part III effected a ‘fundamental transformation’ which ‘took it outside the norm’.78 Various members of the court described the difference between the SEA and the ESM as ‘seismic’ and ‘instantly demonstrable’ by the manner in which the SEA was ‘littered’ with demanding obligations.79 For O’Donnell J, the issue was one of scale of the subject matter, and he stressed that ‘the ESM does not concern Ireland’s foreign policy as a whole’.80 This emphasis, in my view, is quite superficial in its focus upon the breadth of the ‘fetter’ rather than its depth.81 Furthermore, one could also argue, for instance, that international human rights law treaties similarly require implementation across all foreign policy actions. The commitment to representing Part III of the SEA as uniquely invasive was an inauspicious starting point for generating a test to ensure a proportionate reconciliation of sovereignty and the conduct of international relations. Yet this was where the majority began to construct its metrics for when a government may be engaged in the impermissible transfer of constitutional sovereignty. The restated test is that a government may not agree to a treaty which is so impermissibly vague or permissive that, in its implementation, supranational institutions would, in effect, be engaged in policy making rather than implementation. Unfortunately, this crucial distinction between policy and implementation was defined only in its negation. This was seen in

75

Ibid. J Austin, The Province of Jurisprudence Determined (London, Weidenfeld & Nicholson, 1954). 77 Pringle, above n 3 (O’Donnell J), [15]. 78 Ibid (Denham CJ), [15.5]. 79 Ibid (McKechnie J), [11]. 80 Ibid (O’Donnell J), [20]. 81 As Clarke J noted, one should not allow a treaty through merely because it seeks to establish in one step what could be done in four small steps. Pringle, above n 3 (Clarke J), [4.15]. 76

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the judgment of McKechnie J, who condemned the ‘abstract framework’ of the SEA, finding that it: lacked specificity and failed to set out or provide parameters either by reference to the formulation or implementation of policy. It set broad and distant targets which if achieved, would bring about significant changes in constitutional structure. The method of progress in this regard was largely unspecified save to note the significance of the power vested in organs or bodies, external to the State: the outside boundaries were ill-defined as was the timescale and structures envisaged … It would have increased the essential scope and objectives of the Community. In all, it was very much a journey into the unknown.82

This key statement combines two elements, one principled and one based on somewhat unstructured suspicion. The former stresses the need for predictability in the interpretation of the instrument, such that the government could reasonably identify the policy it had committed to. Clarke J similarly held that the limit of government discretion was reached where the state committed ‘to undefined policies not specified in the treaty and in circumstances where those policies  … are to be determined not by the Government but by institutions and bodies specified in the treaty’.83 Side by side with this rule of law turn is a more emotive suspicion of unchecked gradualism within the European Union legal order. Though the majority of the SEA’s legal obligations seemed procedural, and arguably preserved an ultimate freedom to renounce consensus if one chose to, the Court nevertheless saw in the distance a fundamental change in the constitutional structure. The question this conclusion begs, however, is whether the legal armoury created by the SEA could be validly used to implement such changes and not merely advance their possibility forward? Having supplied us with a key statement of constitutional principle, the Court immediately delivers an unpersuasive application of it to the SEA. Regardless of these tangled beginnings, however, it is very important to appreciate the significance of the restated test. The renewed focus upon policy versus implementation creates a new yardstick for evaluating Ireland’s participation in international bodies. The distinction between the two rests upon the existence of stable principles of interpretation and the clear allocation of competences. The Supreme Court has therefore generated a test which effectively directs government negotiators to attend to the rule of law and clarity in the final text of international agreements. This represents a highly innovative approach, which permits domestic constitutional actors to interrogate the content of international agreements, while not adopting the more strident approach of the German Constitutional Court’s doctrine of Kompetenz-Kompetenz.84 It tasks future governments (and supervising courts) with the project of ensuring that international agreements reflect rule of law values and, if they do not, it mandates direct democratic legitimation as a backstop.

82

Pringle, above n 3 (McKechnie J), [17]. Pringle, above n 3 (Clarke J), [4.24]. 84 Under which it insists that CJEU does not have the competence to determine its own powers. 83

Articles—O’Donovan 61 TH E E URO P E AN S TAB IL I T Y MEC HA NI S M T R EA T Y : POLI C Y IM P L E ME N TING OR POLI C Y MA K I NG?

Despite the applicant’s arguments regarding the opacity of underlying obligations and institutional mandates, the Supreme Court held that the ESM was a policy-implementing treaty and a referendum was not required. This underlines that the application of the new yardstick is dependent upon the court engaging in treaty interpretation, and it is submitted that there were a number of contestable findings at the core of the Supreme Court’s ruling. Crucially, these highlight outstanding issues regarding the level of scrutiny to which the treaty provisions should be subjected, and whether the evaluation should be holistic or focused upon specific core provisions. For Denham CJ, ‘the policy of the ESM was clearly defined in the treaty’, with the state having agreed ‘to a specific policy and mechanism of implementation’ which was grounded by ‘a specified maximum financial contribution’.85 The ESM Treaty was thus an exercise in sovereignty rather than the alienation of it. The subset of decisions that could be made according to a qualified or simple majority, or in circumstances where Ireland’s voting rights were suspended, concerned the implementation of policy only.86 Justice McKechnie equally stressed the ‘level of detail’, finding that ‘the entire substance of the ESM Treaty structure is set out’, from institutional governance to the management and disbursement of funds.87 Though he recognised that there were a number of unclear provisions ‘in reality and as a matter of practice, none of these involve an open-ended commitment by the State’.88 In the process of analysing the ESM Treaty, the majority’s distinction between policy and implementation collapsed into an instrument for impressionistic analysis. The unsteady boundaries of the term ‘policy’ were most evident in the manner in which the majority treated the legal obligations under the treaty as severable from other binding provisions of international law. This blind spot was most prominent in the claim of Clarke J that ‘Ireland has really only one obligation under this Treaty’, namely to make available a capital sum of €11.145 billion.89 It is submitted that this reflects an outmoded perception of international law as consisting of isolated fields of inter-state obligation grounded in self-contained treaties, rather than as a holistic legal system. This assumption delinks actions taken by Ireland within the framework of the ESM from the principles of state responsibility or specific human rights law regimes. Minimising the deep implication of conditionality regimes with societies, the ESM Treaty was described by the court as affecting only ‘one area of agreed cooperation’. Yet the actions taken within the ESM can engage Ireland’s legal responsibility under other legal instruments and result in its co-responsibility for internationally wrongful acts or human rights law violations. While the CJEU reference issued by the Court dealt with the European Union Treaties, there was no mechanism to harmonise the ESM Treaty with the competing policies underlying Ireland’s other international treaty 85

Pringle, above n 3 (Denham CJ), [17(viii)]. Ibid (Denham CJ), [17(ix)]. 87 Ibid (McKechnie J), [19]. 88 Ibid (McKechnie J), [21]. He nevertheless undermined this finding by ruling that the interpretation of the Treaty was a matter for the CJEU, and he could not offer ‘any definitive interpretation of the Treaty’s provisions’. 89 Ibid (Clarke J) [8.10]. 86

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obligations, especially international human rights law. There is no mention in the ESM Treaty of the existence or applicability of such standards or legal orders. Justice Clarke further underlined his sectoral approach to the treaty by concluding that, with Ireland having a representative, the ‘Board of Governors will not make policy but rather will implement it’.90 The difficulty here can be put in stark terms: how can a treaty be implementing policy if in doing so it affects the policy decisions embodied elsewhere by other international treaties? The failure to define conceptually the line between ‘policy’ and ‘implementation’ haunts the majority’s reasoning. The majority judgments also contained a number of impressionistic analogies, which could have been more productively unpacked. Drawing from private law, O’Donnell J stressed that Ireland had no more lost its sovereignty ‘than a person who decides to invest a large portion of his or her wealth in a limited company with a defined investment objective could be said to lose his or her status as a citizen’.91 Such private law discourse recurred in the judgment of Clarke J, who stressed that freedom to act involved a freedom to make commitments limiting one’s action in the future: Persons are free to enter into lawful contracts. However, by so doing the person concerned may restrict their ability to enter into other contracts in the future. It is inherent in certain types of decisions that the decision in question will have a reach into the future to a greater or lesser extent.92

He recognised the limits upon such ‘freedom to contract’, ruling that some decisions ‘may not be so far reaching and so diminishing’ of future freedom that they could ‘amount to a denial of the very freedom exercised’ in entering the initial treaty.93 Completing his analogy, he stressed that ‘a contract which amounted to little more than indentured servitude or slavery’ could ‘legitimately be characterised’ as one which would ‘negate the very freedom to contract’.94 The selection of such an extreme example silences some practical utility of this comparison. To draw out the critical space this reasoning creates, we must ask: what unfair contract terms, or terms worthy of ‘red ink’ and greater clarity, could one identify in international legal bargaining? While the majority judgments, at an abstract level, opened up this interrogative space, it was the dissent of Hardiman’s J which arguably embodied more fully the practical utility of the majority’s declared conceptual framework. His perception of the ESM obligations sharply diverged from that of the majority, offering a consolidated critique of the treaty’s instability and its failure to make adequate provision for the administrative control of legality. One of the strongest defects of the majority’s rulings was the failure to attach any importance to the apparent irrevocability of Ireland’s obligations under the ESM. Of the majority, only Clarke J directly addressed the withdrawal question, but found that as the ESM treaty would ‘have its own means of interpretation’, he would not pronounce on the issue unless it was essential to determining the matter before him.95 Justice Hardiman rejected as ‘without legal merit’ the submission that as a right to withdrawal was contemplated by the European Union 90

Ibid (Clarke J)[8.14]. Ibid (O’Donnell J), [20]. Ibid (Clarke J), [8.3]. 93 Ibid (Clarke J), [8.4]. 94 Ibid. 95 Ibid (Clarke J), [7.5]. 91 92

Articles—O’Donovan 63 legal order, one was available from the ESM Treaty.96 The absence of express provision and the commitment in Article 8(4) to ‘irrevocably’ and ‘unconditionally’ make capital contributions were inconsistent with a right to withdraw. The long title of Ireland’s draft ratifying legislation (The European Stability Mechanism Act 2012) referred to making ‘permanent provision’ for the participation of the state in the ESM. I support Hardiman’s J conclusion that there was a conscious policy to exclude withdrawal on the part of the drafters, which is underlined by the existence of a right to withdrawal within the IMF structure.97 Justice Hardiman also stressed that decision-making under the Treaty had as its legal point of reference the financial stability of the euro area as a whole, rather than the common good of the Irish people. Domestic judges could not assume that the competing national and Eurozone interests would operate harmoniously, as ‘such an assessment would depend on matters which are simply unknown at the present time’.98 He instanced as an outstanding policy issue the question of whether the fund would retroactively assist in legacy banking difficulties. He also stressed the failure to adequately define an ‘emergency’ and what constituted ‘special circumstances’ in Article 4(4).99 In contrast to the majority, Hardiman J adopted an assertive standard of review, and was more comfortable with directly identifying what he saw as the probable scope of the Treaty’s provisions. A key question was whether the Treaty allowed decisions on financial contributions to be made without Ireland having a vote. Article 4(8) provided for the automatic loss of voting rights where there was a failure to pay subscriptions or to repay assistance received. Where decisions required unanimity, Hardiman J found that Article 4(3), which referred to ‘unanimity of the members participating in the vote’ (original emphasis), permitted the exclusion of those countries which had lost their voting rights.100 Article 4(4) also overrode unanimity, stating that: an emergency voting procedure shall be used where the Commission and the ECB both conclude that a failure to urgently adopt a decision to grant or implement financial assistance … would threaten the economic and financial sustainability of the Euro area. The adoption of a decision by mutual agreement by the Board of Governors  … and the Board of Directors under that emergency procedure requires a qualified majority of 85% of the votes cast.101

Furthermore, he argued that the Board of Governors could attempt to increase the existing authorised capital stock beyond the amounts initially set in the Treaty. Under Article 10, this only enters ‘into force after the ESM Members have notified the Depository of the completion of their applicable national procedures’. Justice Hardiman refused to accept that the phrase ‘applicable national procedures’ meant that the approval of each Member State was required for an increase in contributions to occur, 96

Ibid (Hardiman J). International Monetary Fund, Articles of Agreement, Art XXVI. 98 Pringle, above n 3 (Hardiman J). 99 Ibid. 100 ESM Treaty, above n 5, Art 4(3): ‘The adoption of a decision by mutual agreement requires the unanimity of the members participating in the vote. Abstentions do not prevent the adoption of a decision by mutual agreement.’ Justice Hardiman’s interpretation may be contested—the second sentence may qualify the general principle, showing the purpose of the decision to be avoidance of abstentions. 101 Ibid. 97

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describing such an interpretation as ‘as a matter of probability, wrong’.102 If a veto was intended, it would have been expressly stated. Consequently, the provision could be viewed as merely connoting the process of implementing the Board decision. On the majority side, Clarke J contested this, finding that ‘applicable national procedures’ would be interpreted as requiring that the increase in the authorised capital could not proceed absent ratification by each Member State.103 What is clear from such disputes is that the Treaty contained a number of penumbral concepts, and in their treatment by the members of the Court, we see widely diverging, but unfortunately unexpressed, visions of how much clarity should be demanded from a treaty text. Further evidence of the underdeveloped nature of the majority’s test can be seen in the failure to consider whether the nature of the enforcement powers accompanying the instrument should be weighed alongside assessing the ‘vagueness’ of its terms. Clarke J was also the only judge to mention the possibility of non-compliance with international legal obligations as a legitimate defence of dualist constitutional sovereignty, which the German Constitutional Court had defended in its Lisbon Treaty judgment.104 He found that ‘sovereign nations retain the ability to breach treaty obligations provided they are prepared to face whatever consequences, as a matter of law or politics, flow from such a decision’.105 Such dualism appears in extremis to allow for a constructive violation of international law. A more sustained assessment of the practicality of doing so, together with an examination of evolving nature of sanction power backing treaties, would have aided the Court in defining a transfer of sovereignty in a manner cognisant of geopolitical realities. While the purposive interpretation of open textured concepts is a standard technique in international legal norms, it is the severe practical impact of non-compliance that distinguishes international economic law obligations as being in need of more searching constitutional scrutiny. Without weighing in balance the extent of the intrusion on the substantive content of sovereign powers, there is a danger that the focus upon the ‘vagueness’ of obligations could result in allegations that UN human rights treaties violate the Crotty principle, despite the fact that these framework lack the legal and political machinery for enforcement which the ESM Treaty possesses. Despite the failures of both the dissenting and majority judgments, the Pringle decision possesses a number of positive threads. The distinction between a policymaking treaty and a policy implementing one demands that the Court interrogate the quality of the treaty before it, foregrounding the need for core rule of law values, such as predictability and congruence, in its construction. The majority judgments, however, failed to concretely embody the boundary between the two types of treaty. This was, in my opinion, largely due to a dualist reluctance to interpret the treaty 102 These debates regarding the substantive provisions of the Treaty reflected Justice Hardiman’s overarching concern at the lack of the parliamentary and judicial scrutiny of the ESM as an institution. The democratic oversight of the actions of the Irish Minister of Finance when acting as a member of the Board of Governors of the ESM was endangered under Art 34, whereby all members or former members of the board ‘shall not disclose information that is subject to professional secrecy’. He expressed concern that Art 35, which provides immunity from legal proceedings equivalent to that of a diplomat, could contravene the constitutional principle of collective cabinet responsibility and governmental accountability to Parliament as laid down in Art 28.4.2 of the Constitution. 103 Pringle, above n 3 (Clarke J), [5.7]. 104 Ibid. 105 Ibid (Clarke J), [8.6]. Lisbon Treaty judgment, above n 6, [340].

Articles—O’Donovan 65 provisions before them and a tendency to de-link the ESM from the broader context and content of public international law. It is submitted that combining the test of the majority with the more invasive standard of review adopted by Hardiman J represents the best approach. In this way, the Pringle test can be consolidated into a standard that engages with the realities of ‘pooled sovereignty’, and ensures normative dialogue across the national/international divide. Ultimately, Pringle preserves a role for direct democracy, while stressing the importance of defining all policy decisions within the primary international legal instrument. It may be that this latter aspect incentivises improved practices by both international and national actors at the negotiation stage. It thus represents a significant experiment in whether a dialogic approach by a national constitutional court can practically influence international legal processes.

P RIN G L E AN D TH E BR OA DER DY NA MI C S OF E URO P E AN E CONOMI C GOV ER NA NC E

In concluding this article, I will briefly look at the ‘bigger picture’ which now surrounds Ireland’s national constitution position and consider how the Supreme Court’s judgment in Pringle sits within the broader European context. I have argued that national courts can play a role in stabilising international legal interpretation and in mediating rule of law values into Europe’s economic governance. One must now ask what international fora are available to follow up on the critical spirit that marked Hardiman J’s judgment? Can the twin national concerns of democratic legitimation and administrative control of legality not be defended through supranational interventions? While national concerns can often be defended through international legal protections and fresh innovations in European Union constitutionalism, the current European situation is confused and complex, particularly following the CJEU’s decision in Pringle v Ireland. Pringle v Ireland had begun with a reference by the Irish Supreme Court which queried the legality of the ESM Treaty under European Union law. The CJEU provided its preliminary ruling in the case in a record time of four months, underlining the urgency of the matter, given that ‘the stability of the euro area would be seriously damaged by delayed ratification’ of the ESM.106 On 27 November 2012, the CJEU rejected all challenges and confirmed the Treaty’s legality. The Court held, inter alia, that the ESM represented a mechanism to secure certain economic policy objectives, which complemented but did not encroach upon the European Union’s own competences in that area or in the monetary policy sphere. Furthermore, the court held that the ‘no bailout’ clause in TFEU was not violated by the ESM Treaty’s terms, as the relevant Article 125(1)107 covered only certain forms of financial assistance. This

106

Pringle, above n 61, [73]. This provides that: ‘The Union shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project. A Member State shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of another Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project.’ 107

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teleological approach to the ‘no bailout’ clause has attracted much academic debate,108 with the Court holding that the article did not extend to prohibit ESM packages which were directed at preserving the Eurozone and which would be subject to conditions. It may thus be said that it was the existence of conditionality which meant that the ESM did not alter the integrity of the Union’s legal order. Thirdly, the Court held that the involvement of the Commission, the European Central Bank and itself in the implementation and oversight of the ESM Treaty’s terms was not impermissible, provided that any actions taken did not alter the powers of the institutions under the EU Treaties. In this article, I have already argued that there is an opacity surrounding much of the normative frameworks, and an accompanying lack of accountability within the ESM Treaty and its sister instrument the TSCG. The ruling in Pringle has made the securing of accountability at the European level somewhat more difficult due to the ruling of the Court that, when creating the ESM, the members were not implementing EU law and were thus acting outside the scope of the Charter. This finding, together with the other principles above, mean that the ESM is, in the words of Tuori, an: intergovernmental stability mechanism outside the scope of application of both Treaty provisions on the principle of transparency and complementary secondary legislation. Such an institutional development makes any control by the European parliament or national parliaments, not to mention civil society and the citizenry, extremely difficult.109

Gunnar Beck has criticised the finding that the Charter did not apply, arguing, first, that Recital 4 of the Preamble to the ESM Treaty makes it clear that the ESM will observe Union law, especially ‘the economic governance rules of the European Union’ set out in the TFEU.110 This requirement upsets the attempt of the Court to simply describe the ESM as a separate legal scheme independent of any relationship to European Union norms. Secondly, he notes that the duty of ‘loyal co-operation’ under Article 4(3) of the TFEU had previously been interpreted by the Court as including an obligation to abstain from any action or enacting any rule that would conflict with Union law when concluding separate multilateral agreements. This principle would have supported the application of the Charter to the ESM, and Beck is extremely strong in what he controversially terms ‘the fundamentally political motivation’ behind the Court’s failure to cite it.111

108 See the exchange regarding the proper methods of interpretation between Professors Craig and Beck: PP Craig, ‘Pringle and the Nature of Legal Reasoning’ (2014) 21 Maastricht Journal of European and Comparative Law 205; G Beck, ‘The Legal Reasoning of the Court of Justice and the Euro Crisis—the Flexibility of the Cumulative Approach and the Pringle Case’ (2013) 20(4) Maastricht Journal of European and Comparative Law 635. 109 K Tuori, ‘The European Financial Crisis—Constitutional Aspects and Implications’, EUI Working Papers, LAW 2012/28, 47. 110 G Beck, ‘The Court of Justice, Legal Reasoning, and the Pringle Case—Law as the Continuation of Politics by Other Means’ (2014) 39(2) European Law Review 234, 246–47. 111 Ibid, 247. He argues: ‘No doubt, the political pressure was enormous, and the result of any other judicial decision would have seen a severe reaction by the financial markets, but the fact remains that, according to the normative foundations of the rule of law in Western legal systems including that of the European Union which subject the executive to the restraint of both constitutions and international treaties, it is not the function of courts to please governments, nor to placate the financial markets’.

Articles—O’Donovan 67 I would argue that, even after Pringle, the Charter can apply to European institutions which owe their existence to the EU Treaties. This presents some potential to secure accountability when the Commission and the European Central Bank participate in the conditionality arrangements. At a procedural level, Article 41 of the ECFR guarantees that ‘every person has the right to have his or her affairs handled impartially [and] fairly  … by the institutions and bodies of the Union’. This creates, even in emergency circumstances, an obligation to consider and assess the impact upon individuals’ rights. A possible violation of this obligation by the Commission and the ECB was visible within a recent decision of the European Committee of Social Rights of the Council of Europe on the compatibility of Greek pension reforms with the European Social Charter: The [Greek] Government indicated  … that it did not have the opportunity, in meetings with the Troika, to discuss the impact of the social security reforms on the spread of poverty, particularly for persons of small means and the social security. It also did not have the opportunity to discuss the impact that policies in the areas of taxation, wages and employment would have on the sustainability of the social security system.112

The fragmentation of international human rights law obligations could also be combated through renewed reflection upon, and practical invocation of, the principles of state responsibility. The acts of the ESM, for instance, may be attributable to Member States acting jointly and be reviewable by the European Court on Human Rights in line with its Bosphorus v Ireland criteria.113 Jean Marc Sorel also proposes greater attentiveness to the evolution of so-called ‘soft responsibility’, whereby processes such as loan conditionality can be tempered through reliance upon underused international law principles such as estoppel or good faith.114 Until this greater attentiveness to global administrative law norms materialises, however, national legal orders will continue to struggle with often murky conditionality regimes. In adopting the soft law method, the Troika relies upon its market influence, and the economic reality of dependency, to enforce its promises. As a result, both public law and international human rights law are often left chasing the state itself, which under conditionality ‘makes promises only to itself and is thus responsible for its own damage’.115 The fact that ‘international responsibility is not flexible and adjustable according to varying behaviours’116 means that the role ofinternational economic institutions in authoring conditions within memoranda is often difficult to legally supervise. The use of soft law centres the interpretation of memoranda upon power relations, with few legal equilibrium or rule of law indicia present. In such a context, the rules of treaty interpretation do not apply, with no recourse to dispute settlement procedures such as the International Court of Justice should actors disagree on the meaning of macro-economic provisions or the relative centrality of 112 This allegation was first made in an International Labour Organisation report quoted by the Committee, European Committee of Social Rights, in Panhellenic Federation of pensioners of the Public Electricity Corporation (POS-DEI) v Greece, Complaint No 79/2012 (7 December 2012) para 32, available at www.coe. int/T/DGHL/Monitoring/SocialCharter/Complaints/CC79Merits_en.pdf. 113 Bosphorus v Ireland App No 45036/98 (ECtHR, 30 June 2005). 114 Above n 56, 168–69. 115 JM Sorel, ‘The Concept of Soft Responsibility?’ in J Crawford, A Pellet and S Olleson (eds), The Law of International Responsibility (Oxford, Oxford University Press, 2010). 116 Ibid.

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compliance with other enumerated conditions. The lack of an ombudsman mechanism to enforce any operational guidelines which may apply further reinforces claims of arbitrariness.117 With the passage of the ESM Treaty, the involvement of the European Central Bank and the European Commission presents additional ruptures, producing inter-institutional dissension and complicating the ability of citizens to reconstruct the decision-making process. The CJEU decision in Pringle may yet trigger interventions in response to this, as academic commentary has highlighted the radical implications of allowing the Member States to pursue common projects using public international law and of employing EU institutions in such activities. As Borger has argued, the emergence from the most serious stages of the financial crisis may permit a shift in institutional focus from regulations to ensure ‘negative solidarity’ towards those anchored in ‘positive solidarity’.118 Nevertheless, Everson and Joerges have referred to Pringle as ‘Europe’s Schmittian Moment’, in which the Court defended primacy of the political over the legal, and as a ruling which underlines how the autonomy of law may be threatened by functional necessities.119 They specifically criticise the way in which ‘the deeply undemocratic nature of conditionality goes unnoticed or uncommented’ in the Court’s reasoning. The CJEU positioned conditionality as the defining quality of what made the ESM compatible with the EU legal order, yet its practical dayto-day administrative oversight and operation remains largely opaque. Nevertheless, the issues raised by Hardiman J in interpreting the ESM Treaty underline the importance of supranational and national engagement with the design and oversight of conditionality.

C ONC LU S I ON

This article has shown how national constitutional courts are struggling to engage the new normative techniques and governance institutions which accompany globalisation. Perhaps the overriding sense is of a growing opacity and non-publicity of regulation and adjudication at all levels of governance. The legal instruments creating Europe’s new regime of economic governance are oriented towards technocratic enabling and are less than protective of the rule of law. Their application is furthermore heavily conditioned by the ‘translegal’ power of market actors, which bypasses democratic institutions.120 For public law, the goal must be to mediate both democratic legitimation and the administrative control of legality into these transnational processes. While the German Constitutional Court has used the ‘yes, but  …’ formulation to heavily influence the course of European integration,121 it remains to be seen whether 117 D Bradlow, ‘Operational Policies and an Ombudsman’ in B Carin and A Wood (eds), Accountability of the International Monetary Fund (Burlington, Ashgate, 2005) 88. 118 V Borger, ‘How the Debt Crisis Exposes the Crisis of Solidarity in the Euro Area’ (2013) 9(1) European Constitutional Law Review 6. 119 M Everson and C Joerges, ‘Who is the Guardian for Constitutionalism in Europe after the Crisis?’, LSE ‘Europe in Question’ Discussion Paper Series, available at www.lse.ac.uk/europeanInstitute/LEQS/ LEQSPaper63.pdf (accessed on 31 July 2014). 120 On this idea of translegal power see U Beck, Power in a Global Age (Cambridge, Polity Press, 2005). 121 This phrase is taken from K Schneider, ‘Yes, But … One More Thing: Karlsruhe’s Ruling on the European Stability Mechanism’ (2013) 14 German Law Journal 53.

Articles—O’Donovan 69 the Irish courts’ alternative formulation of ‘no referendum if  …’ will have positive impacts upon the negotiation of future treaties. This formulation, and the now slightly amended right of the people to have their say through referendum, represent the twin foundations of Irish constitutional sovereignty, even when it is embattled by factual constraints. In the face of sovereign insolvency, an assertive national constitutionalism can play a role, even if incomplete, in preventing the emergence of ‘a kind of postdemocratic bureaucracy’.122

122 J Habermas, ‘Europe’s Post-democratic Era’, The Guardian, 11 November 2011, available at www. theguardian.com/commentisfree/2011/nov/10/jurgen-habermas-europe-post-democratic.

Irish Yearbook of International Law 2013 Correspondent Reports—O’Regan

Human Rights in Ireland 2013 FIONA O’REGAN*

IN T R ODU C T I ON

I

N 2013, LONG-AWAITED action took place in relation to two key human rights issues in Ireland: abortion rights and the abuses that occurred in the Magdalen Laundries. The passing of the Protection of Life During Pregnancy Act 2013 sought to end over two decades of legal uncertainty in respect of the right of women to an abortion within the state. The Act was a welcome development, but was far from radical; although the Oireachtas was limited in legislating for abortion by the constitutional protection given to the unborn in the Constitution, it nevertheless adopted a particularly conservative approach in the Act. The state’s response to the human rights abuses committed in the Magdalen Laundries was also marked by conservatism. Although the McAleese Report established important facts in relation to state involvement in the Laundries, the report was incomplete, given the limitations of the process, in particular the lack of full independence and of powers to compel and retain evidence. Nevertheless, both the Protection of Life During Pregnancy Act and the developments related to the Magdalen Laundries illustrate the profound influence of international human rights law on Irish law and policy, as it was a decision of the European Court of Human Rights (ECtHR) which set in train the process leading to the Act and the recommendations of the UN Committee against Torture which led to the government’s action on the Magdalen issue.

L E G IS L ATI V E DEV ELOPMENT S

Protection of Life During Pregnancy Act 2013 In 2013, the Protection of Life During Pregnancy Act was passed. With this Act, the Irish government finally legislated for the Supreme Court’s decision in Attorney General v X1 (the X Case). The impetus for the introduction of this legislation was largely the ECtHR decision in A, B and C v Ireland,2 in which it was held that the failure to legislate for the X Case represented a breach of Ireland’s obligations under the European Convention on Human Rights (ECHR). The government’s response to the A, B and C judgment was to establish an Expert Group to make recommendations * Legal Researcher, Law Reform Commission of Ireland. The views expressed in this report are those of the author and not of the Law Reform Commission. 1 Attorney General v X [1992] 1 IR 1. 2 A, B and C v Ireland, Application No 25579/05, 16 December 2010.

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on how best to implement the decision.3 The Expert Group issued their report in November 2012 and recommended the introduction of legislation and regulations. However, arguably, this recommendation would not have been implemented as promptly as it was were it not for the tragic case of Savita Halappanavar, who died as a result of medical complications after a request for a termination of her pregnancy was refused, and whose death brought global media attention to the lack of clarity surrounding Ireland’s abortion laws.4 Thus, in January 2013, the Joint Committee on Health and Children held three days of public hearings on the Expert Group’s recommendation with the goal of gathering information which would guide the development of the new legislation.5 In May 2013, the Heads of Bill for the Protection of Life During Pregnancy Bill were published and additional public hearings were held by the Joint Committee.6 Over the course of both sets of hearings, the Joint Committee heard from a range of legal and medical experts, and these views, in addition to the many written submissions the Committee received, informed the final Act, which was passed in July 2013. The 2013 Act legislates for the Supreme Court’s finding in the X Case that a woman has a right to an abortion under Article 40.3.3 of the Constitution where there is a ‘real and substantial risk’ to her life which can only be averted by termination of her pregnancy.7 The Act provides for three different procedures under which an abortion can be permitted where there is risk to the life of the pregnant woman. The first procedure, set out in section 7, applies where there is a risk to the life of the pregnant woman emanating from physical illness. In order for a termination to be carried out in these circumstances, two medical practitioners8 must certify that there is a real and substantial risk of loss of the woman’s life, and that ‘in their reasonable opinion (being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable)’ that risk can only be averted by terminating the pregnancy.9 A separate procedure is described in section 8 for situations involving an immediate risk of loss of the woman’s life from physical illness. In such situations, a termination may be carried out where a single medical practitioner believes in good faith that there is an immediate risk of loss of the woman’s life due

3

Report of the Expert Group on the Judgment in A, B and C v Ireland (November 2012). See, eg D Dalby, ‘Hospital Death in Ireland Renews Fight over Abortion’, New York Times, 14 November 2012, available at www.nytimes.com/2012/11/15/world/europe/hospital-death-in-ireland-renewsfight-over-abortion.html?_r=0 (accessed on 13 November 2014); K Holland, ‘Savita Halappanavar’s Death may Stir Ireland to Change over Abortion’, The Guardian, 17 November 2012, available at www.theguard ian.com/commentisfree/2012/nov/18/savita-halappanavar-death-abortion-ireland-change (accessed on 13 November 2014). 5 Houses of the Oireachtas Joint Committee on Health and Children Report on Public Hearings on the Implementation of the Government Decision following the publication of the Expert Group Report on A, B &C vs Ireland, Volume 1 (January 2013), available at www.oireachtas.ie/parliament/oireachtasbusiness/ committees_list/health-and-children/reports (accessed on 13 November 2014). 6 Houses of the Oireachtas Joint Committee on Health and Children Report on Protection of Life During Pregnancy Bill 2013 (Heads of) Volume 1 (May 2013), available at www.oireachtas.ie/parliament/ oireachtasbusiness/committees_list/health-and-children/reports (accessed on 13 November 2014). 7 Attorney General v X, above n 1. 8 One to be an obstetrician, the other a medical practitioner of a relevant medical speciality. Protection of Life During Pregnancy Act 2013, s 7(2). 9 Ibid, s 7(1). 4

Correspondent Reports—O’Regan 75 to physical illness and the termination of the pregnancy ‘is immediately necessary in order to save the life of the woman’.10 More controversially, the Act also permits termination of pregnancy where the risk to the life of the mother is from suicide. This issue had been the subject of considerable debate during the Committee hearings, with some contributors arguing that the state was not obligated to permit abortion in such circumstances. However, considering that the X Case itself involved a woman whose life was at risk because of suicide and that the Supreme Court considered that she was entitled to a lawful abortion within the state, such a conclusion is difficult to justify. Furthermore, referenda were held in 1992 and 2002 in which the Irish people rejected proposals to remove suicide as a ground for abortion from the Constitution, thereby confirming that the constitutional right to abortion extends to circumstances where there is a real and substantial risk to the life of the mother from suicide. Nonetheless, the contentious nature of this issue is reflected in the more onerous procedure provided for in the Act for risk of loss of life from suicide. Under section 9, three medical practitioners (one obstetrician and two psychiatrists) are required to carry out the certification that there is a real and substantial risk to the woman’s life by suicide and that such a risk can only be averted by termination of her pregnancy.11 The Act does not make provision for termination of pregnancy in cases involving rape, incest or fatal foetal abnormality. Although making provision for abortion in rape or incest cases would most likely require a constitutional referendum, there is a strong argument that Article 40.3.3 could permit abortion in cases of fatal foetal abnormality if the protection offered to the right to life of the unborn is understood as applying only to a foetus with the capacity to survive outside the womb.12 Indeed, this was the argument of the Irish government that was accepted by the ECtHR in D v Ireland13 and which resulted in the application being declared inadmissible for failure to exhaust domestic remedies. The failure to legislate for abortion in cases of fatal foetal abnormality may therefore be seen as a significant omission and further evidence of the highly conservative approach taken by the 2013 Act. The Act includes a review procedure under which a pregnant woman can have the decision to deny her an abortion reviewed under sections 7 or 9 by making an application to the Health Service Executive (HSE).14 Within three days of receiving the application, the HSE shall establish a committee to review the decision consisting of medical practitioners drawn from a panel established for this purpose.15 The committee that shall review the relevant decision shall be composed in same manner as provided for in sections 7 and 9. Thus, two medical practitioners shall review decisions taken pursuant to section 7(1) and three medical practitioners shall review decisions taken under section 9(1).16 A pregnant woman at risk of suicide therefore potentially faces the prospect of examination by up to six medical practitioners, including four

10

Ibid, s 8(1)(b). Ibid, s 9(1). 12 See generally J Schweppe and E Spain, ‘When is a Foetus not an Unborn? Fatal Foetal Abnormalities and Article 40.3.3’ (2013) 3(3) Irish Journal of Legal Studies 92. 13 D v Ireland, Application No 26499/02, 28 June 2006. 14 Protection of Life During Pregnancy Act 2013, s 10. 15 Ibid, s 12(1). 16 Ibid, ss 12(2), (3). 11

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psychiatrists. The burdensome nature of this process seriously calls into question the accessibility of the right to abortion for women in this position and perhaps leaves the Act open to future challenge. The review committee is required to give its decision as soon as possible and no later than seven days from the date on which the review committee was established and convened, and must give the woman (or the person who made the application on her behalf) notice of its decision.17 The Act also provides that the HSE is to prepare and submit an annual report to the Minister for Health, who will then put it before the Oireachtas, on the operation of the review procedure.18 This report will include the number of applications for review, the number of reviews carried out, the reasons for each review and the outcome of the reviews. The report shall not identify the women or medical practitioners involved in the review process. The Act makes provision for conscientious objection by not obliging a medical practitioner, nurse or midwife who has a conscientious objection to carry out or assist with carrying out a termination under sections 7 and 9.19 However, this does not apply in cases involving an immediate risk to the life of a woman from physical illness under section 8.20 A person who makes a conscientious objection is also required to arrange for the transfer of care of the pregnant woman.21 The 2013 Act repeals the old offences relating to abortion contained in sections 58 and 59 of the Offences Against the Person Act 1861. However, the Act includes a new offence of ‘destruction of unborn human life’ under section 22, which states: (1) It shall be an offence to intentionally destroy unborn human life. (2) A person who is guilty of an offence under this section shall be liable on indictment to a fine or imprisonment for a term not exceeding 14 years, or both. (3) A prosecution for an offence under this section may be brought only by or with the consent of the Director of Public Prosecutions. Section 23 extends this offence to a body corporate. The continued criminalisation of abortion is a disproportionate response to the constitutional requirement that the right to life of the unborn be defended and vindicated as far as practicable, and the maximum sentence of 14 years appears particularly out of step with human rights norms.22 The severity of this offence underlines that this Act, despite the element of clarity it offers, still provides for a very restrictive abortion regime which is unlikely to entirely stem the criticism that this most divisive of issues has generated for Ireland from human rights bodies.

17

Ibid, s 13. Ibid, s 15. 19 Ibid, s 17(1). 20 Ibid, s 17(2). 21 Ibid, s 17(3). 22 See ‘Ruth Fletcher’s submission to the Oireachtas hearings’, Human Rights in Ireland, 22 May 2013, available at http://humanrights.ie/criminal-justice/guestpost-ruth-fletchers-submission-to-the-oireachtas-abortion-hearings/ (accessed on 13 November 2014). 18

Correspondent Reports—O’Regan 77 Criminal Law (Human Trafficking) (Amendment) Act 2003 The Criminal Law (Human Trafficking) Amendment Act 2013 provides for a number of significant amendments to the criminal law applicable to human trafficking, giving effect to certain provisions of Directive 2011/36/EU.23 The Act amends the definition of exploitation in the Criminal Law (Human Trafficking) Act 2008 to include exploitation where a person is forced to engage in: (i) an activity that constitutes an offence and that is engaged in for financial gain or that by implication is engaged in for financial gain, or (ii) an activity in a place other than the state that— (I) constitutes an offence under the law of that place and would, if done in the state, constitute an offence, and (II) is engaged in for financial gain or that by implication is engaged in for financial gain.

In addition, the Act amends the definition of labour exploitation by explicitly stating that forced labour includes forcing a person to beg.24 The Act also inserts new sections into the 2008 Act25 and the Child Trafficking and Pornography Act 1998,26 providing for an aggravating factor where the trafficking offences under these Acts are committed by a public official during the performance of his or her duties.

H UMAN RIG H TS I N T HE S U PER I OR C OU R T S

Fleming v Ireland High Court Case The high profile case of Fleming v Ireland27 involved a challenge to the absolute ban on assisted suicide. The plaintiff had multiple sclerosis, which was at a progressed stage. She was confined to a wheelchair and required assistance with all aspects of her dayto-day life. She frequently suffered from severe physical pain and was taking 22 tablets of medication every day, which caused significant side effects. While her cognitive functions were unaffected, the myriad of problems the plaintiff struggled with daily as well as the constant care she required had left her feeling ‘totally undignified’.28 As her condition was terminal, she wished to die with dignity and sought assistance with ending her own life. The plaintiff’s partner was willing to help her with this, but she did not want him to be at risk of prosecution for assisting her suicide under section 2(2) 23 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. 24 The Act also inserts definitions for ‘forced labour’ and ‘beg’ into s 1 of the Criminal Law (Human Trafficking) Act 2008. 25 Criminal Law (Human Trafficking) (Amendment) Act 2013, s 2 inserts s 4A into the Criminal Law (Human Trafficking) Act 2008. 26 Criminal Law (Human Trafficking) (Amendment) Act 2013, s 3 inserts s 3A into the Child Trafficking and Pornography Act 1998. 27 Fleming v Ireland [2013] IEHC 2. 28 Ibid, para 22.

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of the Criminal Law (Suicide) Act 1993. Thus, the plaintiff sought orders in the High Court declaring the section invalid with regard to the provisions of the Constitution and the ECHR. In the alternative, the plaintiff sought an order directing the Director of Public Prosecutions (DPP) to promulgate guidelines stating the factors that would be taken into account (pursuant to section 2(4) of the 1993 Act) in deciding whether to initiate a prosecution under section 2(2). The High Court (the Court) first considered the constitutional issue, as the Court would only have jurisdiction to issue a declaration of incompatibility with the ECHR29 should this challenge fail. The core of the plaintiff’s case concerned Article 40.3.2, under which the state guarantees to protect, amongst other rights, the ‘person’ of every citizen, which includes decisions concerning personal welfare, including medical treatment. The Court emphasised that personal autonomy in such matters is a core constitutional value.30 The Court also noted the relevance of the commitment to dignity and freedom of the individual contained in the Preamble to the Constitution, the recognition given to freedom of individual conscience (Article 44.1), and the unenumerated rights of bodily integrity and personal privacy which have been recognised under Article 40.3.1. According to the Court, these rights mean that ‘the state cannot prescribe an orthodoxy in respect of life choices of this fundamental nature and, moreover, that individual choices of this kind taken by competent adults must normally be respected absent compelling reasons to the contrary’.31 Thus, the Court stressed that the point at issue in the case was not the particular moral or ethical arguments surrounding assisted suicide, but rather whether the absolute ban on assisted suicide unjustifiably interfered with the plaintiff’s constitutional rights, and in particular her right to personal autonomy contained in Article 40.3.2.32 The Court held that the plaintiff’s right to personal autonomy under Article 40.3.2 was ‘in principle’ engaged by the absolute ban on assisted suicide. However, ‘powerful countervailing considerations’ justified the ban.33 In particular, the Court highlighted the fundamental difference between the right to refuse medical treatment even where the inevitable consequence of such refusal is death34 and the taking of active steps by a third party to bring about death even if this is the sincere desire of the party concerned.35 The Court emphasised that were it possible to provide the plaintiff alone with a tailor-made solution without any possible implications for third parties or society at large, then ‘there might be a good deal in favour of her case’;36 however, this was not possible. The Court stated that it would be possible for the Oireachtas to introduce legislation to deal with cases such as Ms Fleming’s.37 However, it held that even if essential legal safeguards were included in such legislation (such as requirements that the patient be 29

Under s 5(1) of the European Convention on Human Rights Act 2003. Fleming, above n 27, para 49. 31 Ibid, para 50. 32 Ibid, para 51. 33 Ibid, para 53. 34 Ibid, para 54. In this respect, the Court noted the Supreme Court decision in In re a Ward of Court (No 2) [1996] 1 IR 79, where it was held that the Constitution’s protection of the person in Art 40.3.2 includes an entitlement to refuse medical treatment. 35 Ibid, para 55 (emphasis added). 36 Ibid. 37 Ibid, para 56. 30

Correspondent Reports—O’Regan 79 terminally ill, facing intolerable pain, examined and counselled by medical professionals over a period of time, mentally competent and reported their course of action to the appropriate authorities), serious objections and concerns would remain. The Court noted the risks presented by wrongful diagnosis of terminal illness or the duration and course of terminal illness, as well as the difficulty in assessing what would amount to ‘intolerable’ pain.38 However, the Court was particularly concerned about the risk to vulnerable groups, such as the poor, elderly and the disabled, that liberalisation of the ban on assisted suicide could present.39 In this respect, the evidence from other jurisdictions which permit physician-assisted suicide, such as the Netherlands, Belgium and the US State of Oregon, presented by expert witnesses for the state, significantly influenced the Court’s conclusion that, even with apparent safeguards, vulnerable groups would be at risk were assisted suicide laws to be liberalised.40 The Court was also especially concerned about the fear that seriously ill individuals requiring significant care might feel obligated to pursue physician-assisted suicide to ease the emotional, practical and financial burdens expressed by the subtle or unconscious signals from family members, rather than because they genuinely desired this course. In short, the Court feared the paradigm shift that would take place were the laws on assisted suicide to be relaxed, in particular, the risk that assisted suicide would become ‘normalised’.41 This could lead to individuals with terminal or degenerative illnesses, especially those belonging to vulnerable groups, viewing physician-assisted suicide as a normal option to be seriously considered and medical professionals becoming accustomed to the practice to the point where safeguards are not rigorously imposed. The High Court also employed the proportionality doctrine to consider whether the absolute ban on assisted suicide disproportionally interfered with the plaintiff’s rights under Article 40.3.2. The Court held that the ban on assisted suicide was rationally connected to the objective of ‘safeguarding the sanctity of human life’ and that even if the Court ‘were to unravel a thread of this law by even the most limited constitutional adjudication in her favour, it would—or at least, might—open a Pandora’s Box which thereafter would be impossible to close’.42 Thus, the Court felt that even a limited liberalisation of the law could put vulnerable groups at risk and so the absolute ban was not a disproportionate interference with her rights. Thus, the plaintiff’s argument under Article 40.3.2 failed.43 The High Court considered relevant cases from other jurisdictions in support of its conclusion that the absolute prohibition on assisted suicide is both constitutionally valid and compatible with the ECHR. The Court examined cases from the US,44 Canada45 and the UK,46 as well as the decisions of the ECtHR in Pretty v United

38

Ibid, paras 58–60. Ibid, para 61. Ibid, para 71. 41 Ibid, para 69. 42 Ibid, para 76. 43 Ibid, para 77. 44 Washington v Glucksberg 521 US 207 (1997); Vacco v Quill 521 US 793 (1997). 45 Rodriguez v Canada [1993] 3 SCR 519; Carter v Canada [2012] BCSC 886. 46 R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800; Regina (Purdy) v DPP [2010] 1 AC 345. 39 40

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Kingdom47 and Haas v Switzerland.48 Of these, the Pretty case was of the most relevance as it also involved an individual with a terminal illness seeking the assistance of her partner to end her life. Here, the ECtHR held that while the applicant’s rights under Article 8 were engaged, there was no violation as the ban on assisted suicide pursued the legitimate aim of safeguarding the weak and the vulnerable, as well as satisfying the proportionality test because of the flexibility that applied to prosecutions for the offence which required the consent of the DPP and imposed a maximum sentence which allowed lesser penalties to be imposed as appropriate. Haas also confirmed that while Article 8 is engaged by restrictions on assisted suicide, contracting states are justified in imposing such restrictions to prevent abuse and protect the vulnerable. Thus, the Court concluded that the jurisprudence of the ECtHR supported its conclusion that whilst the plaintiff’s right to autonomy were in principle engaged by the ban on assisted suicide, the interference was justified.49 The High Court also briefly considered the plaintiff’s claim that her right to equality under Article 40.1 was violated because the 1993 Act discriminates against individuals with physical disabilities as it makes no provision that would enable them to take the steps to end their own lives as the able bodied are entitled to do. Again, the Court considered that the plaintiff’s rights under Article 40.1 might be engaged, but held that such differential treatment was justified based on the factors discussed previously, in particular, the need to protect the vulnerable and the profound difference between permitting an adult to take their own life and allowing a person to assist with ending the life of another.50 Having disposed of the constitutional arguments, the Court then considered the claim that section 2(2) of the 1993 Act was incompatible with the ECHR. As the Court had already examined the jurisprudence of the Strasbourg Court in this area, it simply reiterated the core finding that while the right to private life under Article 8(1) was engaged, Ireland was entitled to maintain a complete ban on assisted suicide for the reasons discussed before. Therefore, the plaintiff’s rights under Article 8 as well as Article 14 (prohibition of discrimination) were not breached and the incompatibility claim was rejected.51 The final issue in the case concerned whether the DPP was entitled to issue guidelines on prosecutions for assisted suicide. The plaintiff sought to rely on R (Purdy) v Director of Public Prosecutions, where the House of Lords held that the failure of the UK DPP to issue guidelines on assisted suicide violated Purdy’s right to make an informed decision about the time and manner of her death which is an aspect of her right to private life under Article 8 ECHR.52 The Crown Prosecution Service issued guidelines on assisted suicide after this case.53 However, the High Court held that Purdy could be distinguished from the present case in a number of ways. In particular, the Court highlighted the significance of Ireland’s written constitution and the 47

Pretty v United Kingdom (2002) 35 EHRR 1. Haas v Switzerland (2011) 53 EHRR 33. 49 Fleming, above n 27, paras 119–20. 50 Ibid, para 122. 51 Ibid, para 125. 52 Purdy, above n 46; Fleming, above n 27, para 141. 53 Crown Prosecution Service, ‘Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’ (February 2010), available at www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html last updated October 2014 (accessed on 13 November 2014). 48

Correspondent Reports—O’Regan 81 different way in which the ECHR was incorporated into law in Ireland compared to the UK. The Court emphasised that ‘the Convention does not have direct effect in this jurisdiction’ and that the form of incorporation in Ireland does no more than require, at a sub-constitutional level, that a court shall ‘insofar as possible, subject to the rules of law relating to such interpretation and application’ interpret a statutory provision or rule of law in a manner compatible with the Convention.54

Thus, under the UK Human Rights Act 1998, there is a far broader duty on the public bodies to act in accordance with Convention rights compared to the requirement in section 3(1) of the Irish Human Rights Act 2003 that state organs perform their functions in a manner compatible with the state’s obligations under the ECHR.55 The Court also noted that Article 15.2.1, which vests the sole and exclusive law-making power in the Oireachtas, would be violated if the DPP was ordered to issue guidelines, as no express power had been conferred on the DPP in this respect and the constitutional provision could not be overridden by a principle of the ECHR.56 Again, this is in contrast with the UK position, where a statutory duty to issue guidelines exists and the manner of incorporation of the ECHR entitled the UK DPP to issue guidelines under Article 8. However, while the Court stated that it could not order the DPP to issue guidelines on assisted suicide, it nonetheless endorsed the use of the UK guidelines on this matter, suggesting they would be of ‘considerable assistance’ to the DPP as the UK’s Suicide Act 1961 and the 1993 Act are very similar.57 The Court concluded by noting that were the DPP presented, following an assisted suicide, with evidence that factors such as those specified in the UK guidelines were complied with, then the DPP would be ‘free to exercise her discretion and make a fully informed decision as to whether or not to initiate a prosecution’, and suggested that, whilst the DPP of course fully retains her discretion, in the present case ‘of all cases’ this discretion would be exercised in a ‘human and sensitive fashion’.58 Thus, this aspect of the plaintiff’s case also failed. Supreme Court Appeal The plaintiff appealed the decisions on the invalidity of section 2(2) of the 1993 Act with the constitution and the incompatibility of the section with the ECHR to the Supreme Court. The DPP guidelines issue was not appealed. On the constitutionality issue, the Supreme Court stated that, as no explicit right to commit suicide exists in the Constitution, the plaintiff had to identify such a right as well as a ‘right to determine the time and method of death and to have assistance with the exercise of that right within the Constitution’.59 The Supreme Court then proceeded to discuss the right to life under Article 40.3.2. The Court referred to In Re a Ward of Court,60 where it was stated obiter that the presence of the right to life

54

Fleming, above n 27, para 161. Ibid, para 153. 56 Ibid, para 164. 57 Ibid, para 168. 58 Ibid, para 175. 59 Fleming v Ireland [2013] IESC 19, para 102. 60 In re a Ward of Court (No 2), above n 34. 55

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in the Constitution does not establish a corollary right to die.61 The Court also stated that while Article 40.3.2 imposes a positive obligation on the state to protect life, the precise extent of this obligation may vary depending on the circumstances, and requires a careful balancing of other constitutional considerations. Thus, the Court held that while this positive obligation to vindicate the right to life may require the state to adopt measures designed to discourage suicide generally, it does not mean that the state is required to use all means at its disposal to prevent a person in a position like the plaintiff’s from ending her life. However, the Supreme Court noted, as the High Court had previously, that the difficulty with this case related to addressing the position of the plaintiff without risking the position of others.62 The Supreme Court also confirmed that nothing in its judgment would prevent the state from legislating to deal with cases such as that of the plaintiff.63 The Court confirmed that the right to life and autonomy under the Constitution do not extend to a right to terminate life and to have assistance in so doing. Such a right would ‘sweep very far indeed’64 by imposing duties on the state and others to vindicate such a right. The Court held that while other rights in the Constitution logically extend to their corollaries (such as the right to associate implying a right to disassociate), this did not apply to the right to life. Considering the social order contemplated by the Constitution, a right to terminate life or have it terminated would be an ‘antithesis to the right to life rather than [a] logical consequence of it’.65 Thus, the Court held that there is no constitutional right to commit suicide or to arrange for the termination of life at a time of one’s choosing.66 The Court also rejected the notion that such a right could exist for a limited class of persons in a position such as that of the plaintiff, stating that ‘it has not generally been the jurisprudence of the Irish constitution that rights can be identified for a limited group of persons in particular circumstances no matter how tragic and heartrending they may be’.67 The Supreme Court considered the argument based on the equality guarantee in Article 40.1 far more extensively than the High Court did. However, the Supreme Court concluded that section 2(2) did not discriminate against persons with disabilities, unlike the High Court, which held that the section did discriminate but that such discrimination was proportionate. The plaintiff’s argument was that in order to ensure equality between disabled and non-disabled persons, an exception should be included in section 2(2) which would enable a disabled person to end their own life in the same way as a non-disabled person can. The Court held that the constitutional principle of equal treatment before the law does not extend ‘to categorise as unequal the differential indirect effects on a person of an objectively neutral law addressed to persons other than that person’.68 However, the Court confirmed that while such a distinction is not required under Article 40.1, it was open to the Oireachtas to make a distinction through legislation. Thus, as the Court held that there was no constitutional right to

61

Fleming, above n 59, para 104. Ibid, para 107. 63 Ibid, para108. 64 Ibid, para 113. 65 Ibid. 66 Ibid, para 114. 67 Ibid, para 115. 68 Ibid, para 136. 62

Correspondent Reports—O’Regan 83 commit suicide or to arrange for the determination of one’s life at a time of one’s choosing, no right existed which could have been interfered with by any disability.69 The Supreme Court then examined whether section 2(2) was compatible with the ECHR. The Court confirmed the High Court’s conclusion that the Convention does not have direct effect in this jurisdiction and that the 2003 Act simply required that statutory provisions be interpreted ‘insofar as is possible, subject to the rule of law relating to such interpretation and application’, in a manner compatible with the Convention.70 The Court then noted the ECtHR’s conclusion in Pretty v United Kingdom,71 where it was confirmed that the positive obligation on Member States to protect the right to life does not give rise to a corresponding negative aspect, namely, a right to die, as well as the conclusions on Article 8 noted above.72 The Court also discussed Haas v Switzerland,73 in particular the ECtHR’s finding that Member States enjoy a considerable margin of appreciation in this area and that they usually attach more weight to the protection of life than to the individual’s right to terminate it.74 The Supreme Court concluded its consideration of the ECHR issue by applying the central finding in Pretty, where it was held that it was primarily for Member States to regulate activities which are detrimental to the life and safety of persons, including any liberalisation of laws on assisted suicide.75 Thus, the plaintiff’s Supreme Court appeal was dismissed. Fleming is a very important case that not only allowed the Irish superior courts to examine the sensitive and highly divisive issue of assisted suicide but also sparked a national debate on the issue. In particular, the case highlighted how harshly the absolute ban on assisted suicide affects individuals in the position of the plaintiff and her family. Although powerful policy considerations underline the absolute ban (particularly protection of vulnerable groups such as the elderly), it nevertheless places a significant limitation on the right to autonomy and to a death with dignity, which requires careful consideration. At the very least, it has been argued that provision should be made for DPP guidelines to be developed, as reliance on UK guidelines, as suggested by the High Court, appears to be an unacceptable avoidance of responsibility by the state and prolongs an undesirable situation of legal uncertainty.76

I R E L AN D B E F O RE TH E E U R OPEA N C OU R T OF HU MA N R I GHT S

The ECtHR delivered two judgments in relation to Ireland in 2014. Rooney v Ireland77 concerned a complaint about the length of civil proceedings under Articles 6(1) and 13 of the ECHR. Thus, the case raised issues concerning delay in court proceedings which had already been dealt with in a series of other judgments 69

Ibid, para 138. Ibid, para 143. Pretty, above n 47. 72 Fleming, above n 59, paras 144–53. 73 Haas, above n 48. 74 Fleming, above n 59, para 160. 75 Ibid, para 163. 76 See P Daly, ‘Guidelines and Assisted Suicide’, Human Rights in Ireland, 29 April 2013, available at http://humanrights.ie/civil-liberties/17945/ (accessed on 13 November 2014). 77 Rooney v Ireland, Application No 32614/10, 31 October 2013. 70 71

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against Ireland, originating with the case of McFarlane v Ireland.78 In Rooney, the applicant was a farmer whose cattle had been put down under a government scheme to eradicate bovine tuberculosis. The applicant commenced High Court proceedings in 1987 challenging the constitutionality of the scheme. Several hearings and appeals took place, and the proceedings were still active by the time the applicant’s case came before the ECtHR. The applicant’s complaint further concerned another set of civil proceedings, which commenced in 1995 and also related to the legality of a government scheme to restrict the applicant’s cattle. These proceedings ended in 2010. The applicant complained that the two sets of civil proceedings, one of which had already lasted for 26 years and remained ongoing and the other of which had lasted for 15 years, violated his right under Article 6(1) to a hearing within a reasonable time, as well as his right to an effective remedy under Article 13.79 The Court stated that the case raised similar issues to the McFarlane line of cases and that the government had failed to put forward any arguments that would persuade it to reach a different conclusion in the present case. In particular, the Court noted that while the applicant did make numerous court applications, the significant delay in the proceedings was caused by structural issues and errors made by the Supreme Court.80 Thus, the Court held that there was a violation of Article 6(1) both alone and in conjunction with Article 13, as the length of the proceedings had been excessive and the applicant had been denied a remedy in that respect.81 In relation to the applicant’s claim for just satisfaction under Article 41 ECHR, the Court rejected the claim for pecuniary damage but awarded €26,000 in respect of non-pecuniary loss, legal costs and expenses, plus any tax that may be chargeable to the applicant.82 Donoghue v Ireland83 was an unsuccessful application under Article 6. The applicant had been convicted in the Special Criminal Court (SCC) of membership of an unlawful organisation (the IRA) under section 21(1) of the Offences Against the State Act 1939. This conviction was upheld by the Court of Criminal Appeal. A significant basis for the applicant’s conviction was the evidence of a police chief superintendent, who testified that he believed the applicant was a member of the IRA based on confidential information he had obtained from police and civilian sources. The applicant had made an application for an inquiry into the chief superintendent’s sources, arguing that his trial would be unfair if such sources and the evidence were not made known to him. The prosecution had resisted this request, based on the principle of informer privilege. The SCC then attempted to reconcile the order for privilege with the rights of the defence by ordering that the relevant files be produced to the trial court but not disclosed to the prosecution or the defence. Thus, the applicant’s complaint was that the non-disclosure of the chief superintendent’s source material seriously restricted his defence rights and that it was not counterbalanced by commensurate safeguards. He complained that his trial was unfair because the trial court had knowledge of material said to be persuasive of his guilt but his defence had been denied access to it. He

78

McFarlane v Ireland, Application No 31333/06, 10 September 2010. Rooney, above n 77, para 20. Ibid, para 28. 81 Ibid, para 30. 82 Ibid, para 36. 83 Donoghue v Ireland, Application No 19165/08, 12 December 2013. 79 80

Correspondent Reports—O’Regan 85 further complained that the trial court’s review of the materials was inadequate and that no safeguards were made available to him.84 The ECtHR began by stating that its primary concern when assessing fairness under Article 6 is to ‘evaluate the overall fairness of the criminal proceedings’,85 which includes examining whether the way in which evidence was taken was fair. Thus, the Court considered the principles applicable to the duty to disclose evidence to the defence in criminal proceedings, which were set out by the Grand Chamber in Rowe and Davis v the United Kingdom.86 In Rowe and Davis, the Court stressed that equality of arms requires that both the prosecution and defence be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party, which means that the prosecution must disclose to the defence all material evidence in their possession for or against the accused. This is not an absolute right and must be balanced against competing interests such as national security or the need to protect witnesses. However, such non-disclosure must be strictly necessary and any limitations on the rights of the defence must be sufficiently counterbalanced by the procedures followed by judicial authorities.87 The Court also applied Al-Khawaja and Taheny v the United Kingdom,88 which involved statements from absent witnesses. In this case, the Court held that three key points had to be carefully scrutinised: (i) whether it was necessary to admit the evidence in question; (ii) whether the evidence was the sole and decisive basis for the conviction; and (iii) if it was, whether there were ‘sufficient counterbalancing factors including strong procedural safeguards’ in place to ensure that the proceedings as a whole were fair.89 Thus, the Court stated that the present case involved assessing three questions: (i) whether it was necessary to uphold the claim of privilege asserted by the chief superintendent; (ii) if so, whether the chief superintendent’s evidence was the sole or decisive basis for the applicant’s conviction; and (iii) if it was, whether there were strong counterbalancing factors including the existence of procedural safeguards to ensure that the proceedings as whole were fair within the meaning of Article 6.90 On the issue of privilege, the Court noted the strong public interest in ensuring that organised and subversive crime is prosecuted.91 The Court further noted that the ‘admission of belief evidence combined with the inevitable grant of privilege for sources of that belief’ is a crucial tool in effectively prosecuting this type of crime, particularly charges relating to membership of an unlawful organisation, as proving

84

Ibid, para 56. Ibid, para 73; the Court applied Taxquet v Belgium, Application No 926/05, § 84, ECHR 2010. 86 Ibid, para 74; Rowe and Davis v the United Kingdom, Application No 28901/95, ECHR 2000-II. 87 Ibid. 88 Al-Khawaja and Taheny v the United Kingdom, Application Nos 26766/05 and 22228/06, ECHR 2011. 89 Donoghue, above n 83, para 76. 90 Ibid, para 79. 91 Ibid, para 80. 85

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such charges requires evidence from a range of sources over some time.92 Thus, the Court concluded that effective protection of persons and state security, as well as effective prosecution of serious and complex crime, justified the grant of privilege.93 In relation to the second question, whether the chief superintendent’s evidence was the sole and decisive basis for the applicant’s conviction, the Court began by noting that the SCC had expressly stated that it would not convict the applicant on the basis of this evidence alone.94 The Court further noted that the SCC heard over 50 other prosecution witnesses and examined three other significant strands of material evidence, including evidence which connected the applicant to the main factual event which had led to his arrest.95 In addition, the SCC had relied on the negative inference it was entitled to draw from the applicant’s refusal to answer police questions.96 The Court noted that the SCC had been careful to point out that each of the four strands of evidence was insufficient to ground the applicant’s conviction if taken in isolation, but together they were supportive of the charge of membership of the IRA.97 This conclusion was upheld by the Court of Criminal Appeal, which found that the SCC had applied the evidence correctly and that it had not convicted solely on the basis of the chief superintendent’s evidence. The ECtHR thus concluded that the chief superintendent’s evidence could not be considered the sole or decisive evidence grounding the applicant’s conviction.98 Nevertheless, the ECtHR considered that the chief superintendent’s evidence carried some weight in the establishment of the applicant’s guilt, so it was necessary to examine whether adequate counterbalancing factors and safeguards had been present to ensure that the trial was fair in accordance with Article 6. The Court observed that the SCC had been aware of the need to counterbalance the restriction imposed on the defence as a result of the grant of privilege and had adopted a number of measures in this respect.99 First, the SCC had reviewed the documentary evidence upon which the chief superintendent’s belief evidence had been based. The Court acknowledged that while this review in itself was insufficient to safeguard the rights of the defence, it nonetheless acted as an important safeguard as it enabled the trial judges to monitor throughout the trial the fairness of upholding the privilege claim.100 Secondly, 92

Ibid, para 81. Ibid. 94 Ibid, para 82. 95 Ibid, para 83. 96 Ibid, para 84. This negative inference can be drawn under s 2(1) of the Offences Against the State Act 1998, which provides: 2. (1) Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the [police] in relation to the offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court  … in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure. (2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be. 97 Ibid, para 85. 98 Ibid, para 87. 99 Ibid, para 88. 100 Ibid. 93

Correspondent Reports—O’Regan 87 the Court noted that the SCC had been alert to the importance of the ‘innocence at stake’ exception to any grant of privilege and had confirmed expressly that there had been nothing present in the relevant evidence which could or might have assisted the defence.101 The Court noted that the applicant had not requested the Court of Criminal Appeal to examine the SCC’s conclusions in this regard, which he could have done had he doubted the SCC’s conclusion.102 Thirdly, the Court noted that in coming to its judgment, the SCC had expressly excluded the information that it had reviewed and which had grounded the chief superintendent’s belief evidence, and confirmed that it would not convict the applicant on the basis of this evidence alone.103 The applicant had also been given the opportunity to make detailed submissions, which he did, before the SCC had taken the relevant procedural steps. The Court also noted that there were strong counterbalancing factors in the statutory provisions governing belief evidence, including that such evidence can only be provided by high-ranking police officers who generally have significant experience with illegal organisations and that such evidence is treated as opinion or expert evidence, not as the assertion of fact.104 Cross-examination of the witness, while restricted in some respects, was also not entirely eliminated, but the applicant had not exercised this option. Thus, the Court considered that adequate counterbalancing factors and safeguards were present at the trial.105 The Court held that the applicant’s trial, when examined as a whole, was fair and that, therefore, there was no violation of Article 6.106 Judge Lemmens gave a concurring opinion in this case, accepting that there was no violation of Article 6, but based on different reasoning. His contention was that the complaint was not about the admissibility of belief evidence or the non-disclosure of underlying material, but about the role of the trial court with respect to privileged material.107 In his view, the applicant’s core complaint was that his trial was unfair because the same trial court reviewed the undisclosed material and decided on his guilt or innocence.108 Judge Lemmens also considered that Al-Khawaja and Taheny was not relevant to the present case and should not have been relied on as it related to absent witnesses. Instead, the relevant principles to be applied were those relating to the admissibility of undisclosed material in criminal proceedings.109 On the basis of these principles, which were set out in Rowe and Davis and reaffirmed in Edward and Lewis v the United Kingdom,110 Judge Lemmens stated that two questions would need to be considered: (i) did the trial court, when reviewing the undisclosed material, see material which was or could have been of ‘determinative importance’ for the applicant’s trial? And (ii) if so, were adequate safeguards were applied to protect the interests of the applicant?111 The judge concluded that the material was of determinative importance (emphasising that determinative does not mean decisive, only relevant) as it related to 101

Ibid. Ibid. 103 Ibid. 104 Ibid, paras 89–91. 105 Ibid, para 92. 106 Ibid, paras 93–94. 107 Donoghue, above n 83, Judge Lemmens Concurring Opinion, para 2. 108 Ibid. 109 Ibid, paras 4–5. 110 Edwards and Lewis v the United Kingdom, Application Nos 39647/98 and 40461/98, ECHR 2004-X. 111 Donoghue, above n 83, Judge Lemmens Concurring Opinion, para 6. 102

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the superintendent’s belief evidence, which was the first strand of the prosecution’s case. However, he felt that adequate safeguards had been present, noting many of the points raised in the Court’s judgment, including that the SCC expressly stated that it would not convict the applicant solely on the belief evidence, that the defence had been given the opportunity to cross-examine the chief superintendent and that the SCC had been alert to the innocence at stake exception. Finally, he noted that the applicant had failed to request that the Court of Criminal Appeal examine whether the SCC had misdirected itself in relation to the undisclosed material and that this failure to seek an independent review considerably weakened his case.112 Thus, Judge Lemmens concluded that although the SCC had examined some undisclosed potentially damaging material, this did not deprive the applicant of a fair trial.113

O T HER DEV ELOPMENT S

Report of the Special Rapporteur on the Situation of Human Rights Defenders In November 2012, Margaret Sekaggya, the Special Rapporteur on the situation of human rights defenders, visited Ireland to assess the situation of human rights defenders in light of the Declaration on Human Rights Defenders.114 During her visit, the Special Rapporteur met with the President and representatives of government departments, as well as with a wide range of human rights defenders and activists. On 26 February 2013, she issued her report, in which she noted that the environment in which human rights defenders operate in Ireland ‘generally facilitates the defence and promotion of human rights and fundamental freedoms’.115 However, she also had a number of concerns and made recommendations to that effect. The Special Rapporteur expressed concern over the planned merger of the Irish Human Rights Commission with the Equality Authority, particularly raising questions as to whether the new combined institution would be as effective as the then Irish Human Rights Commission in monitoring Ireland’s human rights activities in a credible and impartial manner.116 More positively, the Special Rapporteur noted Ireland’s promotion of the European Union Guidelines on Human Rights Defenders and stated that Ireland had a number of good practices with regard to human rights defenders in foreign policy and development aid which could serve as an inspiration for other countries.117 In particular, she welcomed the mainstreaming of human rights through Ireland’s development cooperation and aid programmes, including by fostering civil society action and supporting the protection of human rights defenders.118 112

Ibid, para 11. Ibid, para 12. 114 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (also known as the Declaration on Human Rights Defenders), adopted by the General Assembly in its Resolution 53/144. 115 UN Human Rights Council, ‘Report of the Special Rapporteur on the situation of human rights defenders, Addendum: Mission to Ireland (19–23 November 2012)’ (26 February 2013) UN Doc HRC/22/47/ Add.3. 116 Ibid, para 108. 117 Ibid, para 109. 118 Ibid, para 62. 113

Correspondent Reports—O’Regan 89 In general, the Special Rapporteur felt that human rights defenders in Ireland do not face risks in doing their work but that certain categories of defenders do face specific challenges. Thus, she made a number of recommendations to the government and other bodies in this respect. The Special Rapporteur first recommended that the government expedite ratification of UN treaties to which Ireland is not a party and consider establishing an accountability mechanism for compliance with its human rights obligations under international and UN treaties.119 She also made a number of recommendations in relation to the constitution and legislation, including the removal of the blasphemy offence due to its possible implications on the right to freedom of expression, which could lead to self-censorship among human rights defenders.120 Additionally, she recommended an amendment to the Charities Act 2009 to allow organisations that work on the protection and promotion of human rights to register as charities and an amendment to the Garda Siochana Act 2005 to increase the independence of the Garda Siochana Ombudsman Commission, which investigates complaints about the police, by enabling it to open investigations without the permission of the Minister for Justice and Equality.121 In addition, she recommended that the government expedite the introduction of legislation on the new Irish Human Rights and Equality Commission.122 The Special Rapporteur also suggested that the government consider adopting a national plan of action on human rights which should include a section on human rights defenders and make a greater effort to increase awareness of the Declaration on Human Rights Defenders.123 The Special Rapporteur made a number of recommendations relating to specific groups of human rights defenders. In relation to environmental rights activists, she particularly focused on activists peacefully protesting against the Corrib Gas project,124 recommending that the government investigate all allegations and reports of intimidation, harassment and surveillance, which many of the protesters have frequently been subjected to, in a prompt and impartial manner.125 She recommended that the Garda Siochana Ombudsman Commission consider requesting an examination into the practices of the police in relation to the Corrib Gas dispute.126 The Special Rapporteur also examined the situation of defenders working in the area of sexual and reproductive rights, noting the challenges that Ireland’s restrictive abortion laws impose on such groups.127 She advocated the introduction of legislation to implement the decisions in the X case128 and A, B and C v Ireland,129 as well as for the government to consider amending certain provision of the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995 to remove obstacles faced by reproductive health providers.130 She encouraged the government to

119

Ibid, para 111(a). Ibid, paras 21 and 111(b). 121 Ibid, paras 40 and 111(h). 122 Ibid, para 111(i). 123 Ibid, paras 111(e) and (f). 124 Ibid, para 68. 125 Ibid, para 111(j). 126 Ibid, paras 111(k) and 112(b). 127 Ibid, para 79. 128 Attorney General v X, above n 1. 129 A, B and C v Ireland, above n 2. 130 Report of the Special Rapporteur, above n 115, paras 111(l) and (m). 120

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‘recognise publically the work of defenders and practitioners who work for the enjoyment of the right to health of women, including sexual and reproductive rights’, and to protect them against intimidation and harassment of all kinds, including smear campaigns.131 The Special Rapporteur expressed concern over the ‘hostile and distant attitude’ towards Travellers in Irish society which impacted on the efficacy of the work of those advocating for their rights. She noted that this was particularly pronounced in the case of women Travellers who are also human rights defenders.132 Thus, she encouraged public acknowledgement for the role and work of defenders working for the rights of Travellers and for the government to engage with Travellers, particularly women Travellers, in order to integrate their views into public policy planning meaningfully.133 The Special Rapporteur further noted the position of whistleblowers,134 and recommended the introduction of legislation for their protection in accordance with the UN Convention against Corruption.135 Finally, she recommended that an independent and effective mechanism such as an ombudsman be established to receive complaints from those in prison, noting that prison overcrowding and cell conditions of prisoners have long been highlighted as particular issues in Ireland by various national and international organisations.136 The Special Rapporteur also made recommendations to the Garda Síochána Ombudsman Commission, the Irish Human Rights Commission and human rights defenders, and general recommendations to all stakeholders, mainly relating to increasing awareness and respect for the work of human rights defenders.137

Arms Trade Treaty In June 2013, Ireland, along with 66 other countries, signed the Arms Trade Treaty (the Treaty).138 The Treaty is the first legally binding instrument to regulate the global trade in conventional arms, and states that sign up to it are prohibited from exporting arms to countries if they know those weapons will be used to commit gross violations of human rights. The Treaty was the result of over six years of negotiations, with Ireland being a strong supporter of the process from the beginning. In particular, Ireland advocated for a strong humanitarian character for the Treaty, with the Minister for Trade and Development, Joe Costello, stating at the signature ceremony that ‘[s] trong provisions on human rights and International Humanitarian Law were essential

131

Ibid, para 111(n). Ibid, para 91. 133 Ibid, paras 111(o) and (p). 134 Ibid, para 92. 135 Ibid, para 111(q). 136 Ibid, paras 99–101 and 111(r). 137 Ibid, paras 112–15. 138 UN, The Arms Trade Treaty, available at https://unoda-web.s3.amazonaws.com/wp-content/ uploads/2013/06/English7.pdf (accessed on 13 November 2014). See Irish Department of Foreign Affairs and Trade, ‘Ireland among the First States to Sign Landmark UN Arms Treaty’ (3 June 2013), available at www. dfa.ie/news-and-media/press-releases/press-release-archive/2013/june/landmark-un-arms-treaty/ (accessed on 13 November 2014). 132

Correspondent Reports—O’Regan 91 for us’.139 This includes interpreting the relevant provisions of the Treaty to apply to both international and non-international armed conflicts, as well as a definition of war crimes which includes violations of common Article 3 of the 1949 Geneva Conventions and war crimes as defined in the 1977 Additional Protocols to the Geneva Convention and the Rome Statute of the International Criminal Court. The minister also voiced Ireland’s commitment to encouraging other states to sign and ratify the Treaty.

Magdalen Laundries Reports The state’s refusal to acknowledge in full its role in the Magdalen Laundries (the Laundries) and to provide justice for the women and girls incarcerated there has been a significant motif in human rights discourse in the state over recent years. Noting the implications of this stance for human rights, the UN Committee Against Torture’s (UNCAT) Concluding Observations on Ireland’s Report in 2011 recommended: that the state party institute prompt, independent and thorough investigations into all complaints of torture and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries and, in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed, and ensure that all victims obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible.140

In 2013, Ireland attempted to implement this recommendation by establishing a committee to investigate state involvement in the Laundries and a separate commission to make recommendations in relation to a redress scheme. On 19 February 2013, the Taoiseach, Enda Kenny, also made an official apology on behalf of the state to all the women who spent time in the Laundries.141 Thus, the significant progress that took place in 2013 in the struggle for survivors of the Magdalen Laundries to obtain justice was a welcome development. However, the procedures put in place to inquire into the state’s involvement with the Laundries and later to make recommendations in relation to a redress scheme for the survivors fell short of human rights best practices and UNCAT’s recommendations in particular. In February 2013, the report of the Inter-Departmental Committee to establish the facts of state involvement with the Magdalen Laundries, known as the McAleese Report (the Report), was published.142 The Report sought to establish the facts 139 See Irish Department of Foreign Affairs and Trade, ‘Statement by Minister Costello at the Signature Ceremony of the Arms Trade Treaty’ (3 June 2013), available at www.dfa.ie/news-and-media/speeches/ speeches-archive/2013/june/arms-trade-treaty/ (accessed on 13 November 2014). 140 UN Committee Against Torture, ‘Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Concluding Observations: Ireland’ (17 June 2011) UN Doc CAT/C/IRL/Co/1, para 21. 141 The apology was made as part of the debate on the McAleese Report (Department of Justice and Equality, ‘Report of the Inter-Departmental Committee to Establish the Facts of State Involvement with the Magdalen Laundries’ (6 February 2013), available at www.justice.ie/en/JELR/Pages/MagdalenRpt2013 (accessed on 13 November 2014). The Committee was chaired by Senator Martin McAleese). The full text of the apology is Department of an Taoiseach, ‘Magdalene Report—Taoiseach’s Statement’ (19 February 2013) available at www.taoiseach.gov.ie/eng/News/Taoiseach’s_Speeches/_TAOISEACH%E2%80%99S_ STATEMENT_ON.html (accessed on 13 November 2014). 142 McAleese Report, ibid.

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surrounding state involvement with regard to the Magdalen Laundries. It examined state involvement in the Laundries, from the foundation of the state in 1922 to the closure of the last laundry in 1996, in five principal areas: entry of women and girls into the Laundries; regulation and state inspection; funding and financial assistance; routes of exit from the Laundries; and death registration, burials and exhumation. Direct state involvement was found in all of these areas.143 The Report sets out some significant statistics, including that 26.5 per cent (over 2,000 women) of all known referrals to the Laundries were from the state, the median age of entrants was 20 (with the age of the youngest known entrant being nine and the oldest 89) and the median duration of stay was approximately seven months.144 On the issue of referrals by the state, the Report addressed referrals by the criminal justice system, reformatory schools, the health and social services sector, and mother and baby homes. Most of the criminal justice system referrals were found to involve cases of minor and petty crimes, with women often being referred to the institutions because of the lack of prison facilities for women available in the state at the time.145 The state was further linked to the Laundries through oversight procedures, in particular the inspections it carried out under the Factories Acts.146 The Report also describes the financial involvement of the state in the Laundries, which included direct financial assistance, as well as state contracts for laundry services.147 In addition, the Report examines consequential issues of public interest, including the financial viability of the Laundries, controversially concluding that they were not profitable but rather ‘operated on a break even or subsistence basis’.148 Finally, the Report records the experiences of living and working in the Laundries shared with the Committee by some of the survivors. However, as the sample was too small, the Committee did not make any findings on this issue.149 There are a number of notable shortcomings to the investigation and the resulting report of the Interdepartmental Committee. Most significantly, the Committee does not fit the criteria that UNCAT set of instituting an independent and thorough investigation, given its status as an inter-departmental committee with no powers to compel or retain evidence, rather than an independent statutory commission like the Commission to Inquire into Child Abuse.150 The Committee also conducted very limited interviews with survivors. This is reflected in the treatment of survivor testimony in the Report, which is not featured extensively, with the accounts provided appearing short and somewhat incomplete.151 Furthermore, the Committee only investigated state involvement rather than conducting a comprehensive investigation into all of the abuses suffered in the Laundries.

143

McAleese Report, above n 141, Executive Summary, para. 2. Ibid, para 4. 145 Ibid, paras 9, 12. 146 Ibid, para 25. 147 Ibid, para 32. 148 See McAleese Report, above n 141, Chapter 20: Financial Viability of the Magdalen Laundries, 993. 149 McAleese Report, above n 141, Executive Summary, para 50. 150 This Commission produced the Ryan Report (Commission to Inquire into Child Abuse Final Report (May 2009)), available at www.childabusecommission.ie/ (accessed on 13 November 2014). 151 See M Enright, ‘Critiquing the McAleese Report’, Human Rights in Ireland, 8 February 2013, available at http://humanrights.ie/criminal-justice/critiquing-the-mcaleese-report/ (accessed on 13 November 2014). 144

Correspondent Reports—O’Regan 93 It is unsurprising, then, that UNCAT, as part of a follow-up on its 2011 Concluding Observations on Ireland, criticised the McAleese Report as ‘incomplete’ and lacking ‘many elements of a prompt, independent and thorough investigation’.152 In particular, the Committee noted that it had information from many sources that a ‘fully independent investigation into allegations of arbitrary detention, forced labour or ill treatment’ had not taken place.153 The Committee asked Ireland to indicate whether an inquiry would take place that meets the requirements of the recommendation it made in 2011, that is, an inquiry that is fully independent, has definite terms of reference, possesses statutory powers to compel and retain evidence obtained from relevant religious bodies, has the capacity to hold public hearings and, crucially, will conduct a full-scale investigation into the abuses.154 Mr Justice Quirke, Chair of the Magdalen Commission, published his report in May 2013.155 The purpose of the Quirke Report was to advise on the establishment of an ex gratia scheme and related matters for the benefit of the women who worked in the Magdalen Laundries.156 The report recommended that the ex gratia scheme would have four characteristics: (i) it will exclude mutually antagonistic roles and positions, and will avoid invasive and painful inquiry and interrogation; (ii) it will not require the individual assessment of any of the Magdalen women; (iii) it will be a speedy procedure as part of a final process of healing, reconciliation and closure; and, in consequence, (iv) it should reflect the expressed wishes of an overwhelming majority of the 337 Magdalen women who actively participated in a consultation process with the Commission.157 The Commission felt that individual assessments of the 520 women who had expressed an interest in the scheme would take ‘years to complete’, so opted for a ‘flexible and consensus orientated approach’ which would apply restorative justice principles that emphasise ‘underlying interests rather than divisions’.158 The consultation process undertaken by the Commission was intended to give the participants significant control over the process, which also fits with restorative justice-based goals. The Commission met with 337 women and with senior members of religious orders who now care for 117 of those women. A number of other interested groups also made submissions. However, the restorative intent of the scheme is arguably frustrated by emphasising speed and not allowing for individual assessment rather than seeking

152 Letter to Mr Gerard Corr, Permanent Representative of Ireland to UN from Ms Felice D Gaer, Rapporteur for Follow-up on Concluding Observations UN Committee Against Torture, 22 May 2013, available at http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/IRL/INT_CAT_FUL_IRL_12936_E. pdf (accessed on 13 November 2014). 153 Ibid, 3. 154 Ibid. 155 The Magdalen Commission, ‘Report of Mr Justice John Quirke on the establishment of an ex gratia Scheme and related matters for the benefit of those women who were admitted to and worked in the Magdalen Laundries’ (May 2013) (the Quirke Report). 156 Ibid, para 1.01. 157 Ibid, para 2.01. 158 Ibid, paras 2.02–2.03.

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to offer a scheme which is tailored to the differing needs of the various women who worked in the Laundries. The Quirke Report makes 12 recommendations on different types of supports, benefits and payments for the affected women. Among the key recommendations of the report are that the Magdalen women should be entitled to the state pension for their work within the Laundries and that those women not yet of state retirement age should receive a minimum weekly payment of €100 a week.159 The Quirke Report also sets out a scale of payments to be made to the women based on the ‘traumatic effect of admission and incarceration’, which had such an adverse effect upon the education, perceived reputation and physical and mental health and well-being of the Magdalen women.160 This scheme would require that €10,000 be paid to every woman who had spent less than three months in a laundry, increasing by €500 for every additional month spent in a laundry up to a maximum payment of €40,000. The women would also be entitled to payment for work undertaken, which would start at €1,500 for women who had spent less than three months in a laundry and would increase by €500 for every additional month up to a maximum payment of €60,000, which would be paid to all women who had worked for 10 years or more in a laundry. Thus, a woman who worked for three months would be entitled to a total sum of €11,500, while a woman who worked in the Laundries for 10 years or more would be entitled to a total sum of €100,000. However, not all of these payments would be available as a lump sum. The report also recommends that in order to balance the needs and interests of the elderly Magdalen women and the ‘younger, healthier, more energetic and more independent’ women, any ex gratia payments over €50,000 would be payable as a tax-free weekly income for the remainder of the women’s lives, at which point they would cease.161 Thus, as many of the Magdalen women are elderly,162 this means that numerous women may not receive their full entitlement of payments. Furthermore, if a woman were to die before all the payments she was entitled to were made, then her family would not inherit the remainder of her entitlement.163 From a human rights perspective, the paternalistic character to the scheme whereby protection of the affected women is emphasised rather than their empowerment and independence is particularly unfortunate. A significant element of the recommended scheme is that any women who agree to participate in it must also agree to waive in writing any further right of action against the state in respect of their time spent in the Laundries.164 Considering the limitations of the scheme, this is a significant waiver, and one which may not be justifiable. Significantly, the Irish Human Rights Commission has noted that the Magdalen women

159

Ibid, 8 (2nd recommendation). This is described further in ch 5 of the Quirke Report. Ibid, 9 (3rd recommendation). 161 Ibid, 10 (4th recommendation). 162 Ibid, para 2.06: only 3% of the participating women are under 50, compared to 22% between the ages of 66 and 70, 15% between 70 and 75, 9% between 75 and 80 and 14% over the age of 80. 163 See M Enright, ‘What’s Wrong with the Magdalene’s Redress Scheme’, Human Rights in Ireland, 28 June 2013, available at http://humanrights.ie/law-culture-and-religion/whats-wrong-with-the-magdalenesredress-scheme/ (accessed on 13 November 2014). 164 Quirke Report, above n 155, 13 (8th recommendation). 160

Correspondent Reports—O’Regan 95 have a claim for breach of constitutional rights,165 and one which possibly should not be capable of being removed by an administrative scheme.166 One of the more positive recommendations of the Quirke Report is that a ‘dedicated unit’ be established to provide services for the Magdalen women, including health-, housing- and education-based assistance, as well as assistance with meeting other Magdalen women and meeting with members of religious orders.167 This unit would also acquire and maintain a memorial in the form of a garden or museum which would honour and commemorate the Magdalen women. Memorials are an important means of encouraging reconciliation and should help to ensure that the legacy of the human rights abuses incurred at the Magdalen Laundries will not be forgotten.

165 See Irish Human Rights Commission, ‘Assessment of the Human Rights Issues Arising in relation to the “Magdalen Laundries”’ (November 2010). 166 Enright, above n 163. 167 Quirke Report, above n 155, 11 (6th recommendation).

Irish Yearbook of International Law 2013 Correspondent Reports—Cubie

Ireland and International Law 2013 DUG CUBIE*

IN T R ODU C T I ON

O

N 1 JANUARY 2013, Ireland assumed two new international appointments which provided a new focus on and challenges for the promotion of international law in Irish foreign policy and practice. First of all, following a vote by the UN General Assembly in November 2012, Ireland was elected onto the UN Human Rights Council (HRC) for a three-year term.1 Responding to Ireland’s election onto the HRC, the Tánaiste (Deputy Prime Minister), Eamon Gilmore, TD, who was also the Minister for Foreign Affairs and Trade, noted that: Membership of the Council is a signal honour and privilege for Ireland. It testifies to the strong reputation we have built up in the area of international human rights advocacy. More widely, it reflects the esteem in which Ireland is held as a UN member and as a fearless champion of the values which underpin the UN. Serving on the Council over the next three years will allow us to play a much more active role in the promotion and protection of human rights worldwide and to make a distinctively Irish contribution to that effort.2

In highlighting the priorities for Ireland as a member of the HRC, the Tánaiste noted that these include the human rights situation in individual countries; freedom of expression, including freedom of religion and freedom of the media, in particular the internet; as well as human rights and climate change. LGBTI rights will also be an important aspect of Ireland’s work on the Council.3

Simultaneously, Ireland assumed the six-monthly rotating EU Presidency. In announcing the priorities for the Irish presidency, the Tánaiste highlighted the importance of economic stability for both Ireland and the EU as a whole, and in particular the need for a comprehensive EU–US trade agreement. He furthermore stressed that: This is a moment when we can influence the direction that Europe is taking, but we will also remain true to our traditional values of promoting human rights internationally, and encouraging Europe’s role in the fight against climate change, global poverty and hunger.4

*

Queen’s University Belfast. UN General Assembly, ‘In Single Secret Ballot, General Assembly Elects 18 Member States to Serve Three-Year Terms on Human Rights Council’, press release, 12 November 2012. 2 Department of Foreign Affairs and Trade, ‘Tánaiste Hails Ireland’s Historic Election to the UN Human Rights Council’, press release, 12 November 2012. 3 Ibid. 4 Department of Foreign Affairs and Trade, ‘Presidency Represents New Chance for Ireland’, press release, 30 December 2012. 1

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In addition to these two substantial responsibilities which Ireland assumed in 2013, a range of bilateral and multilateral agreements were signed or came into effect during the year, including the UN Arms Trade Treaty and an agreement with the United Kingdom delineating the Exclusive Economic Zone and continental shelf between Ireland and the UK. Conflicts in Syria, Gaza, Mali and the Central African Republic, as well as the emerging conflict in Ukraine, dominated the international agenda, while the death of Nelson Mandela marked the passing of an era. Nuclear testing by North Korea challenged the concept of nuclear disarmament, and in the Syrian conflict the largest chemical weapons attack in 25 years prompted widespread and sustained international condemnation. Ireland responded by committing Irish Defence Forces to the UNDOF peacekeeping mission in the Golan Heights. Meanwhile, although Ireland hosted two major international conferences, on global poverty and on hunger and climate change, and announced the publication of a new policy for international development,5 notwithstanding a slight increase in the overseas development aid budget during 2013, this still represented a decrease in percentage terms of GNP over 2012. The year ended with the announcement of a public consultation and review of Irish foreign policy and external relations, the first since the mid-1990s. The Tánaiste stated: Our foreign policy is a statement of who we are as a people. It is the means by which we promote our values and pursue our interests abroad. Through it, we pursue Ireland’s economic prosperity and promote peace and security both at home and in the wider world.6

Submissions from interested stakeholders and the public were invited by February 2014 on 10 broad topics, including: promoting our values and interests; the EU; the global context and the UN; Northern Ireland; diaspora engagement; international development; and economic diplomacy and building bilateral relationships.7

IN TE R NA T I ONA L A GR EEMENT S

In February 2013, during the early stages of Ireland’s role as the EU Presidency, the Tánaiste welcomed US President Barack Obama’s announcement during his annual State of the Union address that the US would commence talks on a comprehensive free trade agreement with the EU. The Tánaiste highlighted Ireland’s close relationship with the US as a means of advancing the negotiations through ‘constructive dialogue’.8 The proposed Transatlantic Trade and Investment Partnership is a continuation of the long-running discussions between the EU and the US for a free trade agreement that could help to minimise the ongoing allegations of protectionism by both sides, and would reflect the large-scale two-way trade and investment between the EU and the US. While negotiations were still ongoing at the end of 2013, the European Commission noted that:

5

Irish Aid, ‘One World, One Future: Ireland’s Policy on International Development’, May 2013. Department of Foreign Affairs and Trade, ‘Tánaiste Launches Public Consultation on Ireland’s Foreign Policy’, press release, 4 December 2013. 7 Department of Foreign Affairs and Trade, ‘Review of Ireland’s Foreign Policy and External Relations: Public Consultation Document’, December 2013. 8 Department of Foreign Affairs and Trade, ‘Tánaiste Hails Historic Move towards EU–US Free Trade Agreement’, press release, 13 February 2013. 6

Correspondent Reports—Cubie 99 The Irish presidency of the EU Council played a significant role in getting both sides to agree a starting point for these crucial talks that provide a real opportunity to bring about economic stability, boost growth and create jobs in Ireland, across Europe and throughout the world.9

Meanwhile, following over a decade of discussions and negotiations, Ireland was one of the first countries to sign the UN Arms Trade Treaty (ATT, the Treaty), which it did in June. The ATT is the first legally binding instrument to regulate the global trade in conventional arms, and prohibits states from authorising arms exports where they have knowledge that the weapons will be used in the commission of genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions or other war crimes. The Treaty also obliges states to minimise the risk that weapons would be diverted into the wrong hands or onto the illicit market, and to adhere to robust, comprehensive and legally binding standards. Following his signature, the Minister for State, Joe Costello, TD, stated: Ireland worked hard with others to achieve a Treaty which encompasses as many conventional weapons categories as possible; which addresses the hugely damaging phenomenon of arms diversion, responsible for the blighting of so many lives—particularly in the developing world; which recognises the risk of gender-based violence in situations of conflict; and which promotes the highest standards of transparency in national reporting. These elements are all present in the Treaty we have signed today. Furthermore, as a living document, the Treaty can be adapted and improved in the years ahead. Allow me to highlight just one of the many welcome provisions. For Ireland, ensuring the humanitarian character and purpose of the ATT was fundamental. Strong provisions on human rights and International Humanitarian Law were essential for us. Like other Member States, we interpret Article 6.3 as having the widest scope and application, including war crimes committed both in international and non-international armed conflicts. We take the reference to “other war crimes” as referring, inter alia, to serious violations of Common Article 3 of the 1949 Geneva Conventions as well as to the war crimes defined by the 1977 Additional Protocols and the Rome Statute of the International Criminal Court for States Parties to those instruments. We believe that the rules of customary international law remain applicable to all States, regardless of this Treaty.10

The minister also highlighted the important work of non-governmental organisations and civil society in supporting and nurturing the treaty development and negotiation process, noting that: ‘If today is a triumph for the UN and multilateralism, it is also one for NGO activists and the indispensable role which they play’.11 While the government made a commitment to ratify the ATT as soon as possible, the long-standing issue of non-ratification or incorporation into Irish law of international agreements was raised in March by Deputy Catherine Murphy, TD in a parliamentary question to the Tánaiste regarding the list of international agreements

9 European Commission, ‘Key EU Policy Areas: The EU–US Transatlantic Trade and Investment Partnership’, available at http://ec.europa.eu/ireland/key-eu-policy-areas/transatlantic-trade-investment-partnership/ index_en.htm (accessed on 10 November 2014). 10 Department of Foreign Affairs and Trade, ‘Statement by Minister Costello at the Signature Ceremony of the Arms Trade Treaty’, 3 June 2013. 11 Ibid.

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Ireland has signed but not ratified.12 The response identified 90 international agreements, broken down into five categories: multilateral treaties deposited with the UN Secretary-General; Council of Europe treaties; EU agreements; other multilateral agreements; and bilateral agreements. While some of these international agreements have been superseded by subsequent agreements, key texts which have been signed but not ratified include: the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (signed by Ireland on 23 March 2012); the 2006 Convention on the Rights of Persons with Disabilities (signed by Ireland on 30 March 2007); and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (signed by Ireland on 19 September 2005). Responding to a followup question by Deputy Séan Crowe, TD, the Tánaiste explained the procedure for ratification of international agreements in Ireland: In some countries, once they sign the agreement, it automatically comes into force in domestic law. Our Constitution is different. It states that the signing of an international agreement can only have effect once a decision is made in the Oireachtas to ratify it and give it effect. Often legislation is required for the ratification process. Sometimes a Minister will await the next available opportunity. If there is legislation that embraces the subject matter of the international agreement, the opportunity will be taken to ratify it at that stage. In some cases it requires the putting in place of administrative or legislative arrangements to give effect to it, and that can take time. In terms of pursuing individual agreements, it is better to do that with the line Departments and Ministers.13

Likewise, during a debate on the Criminal Law (Human Trafficking) (Amendment) Bill 2013 in Seanad Éireann (Upper House of Parliament), in response to a question concerning the delay in ratification of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, Minister for State, Kathleen Lynch, TD, stated: Ireland, in the distant past and probably in the future, has been and will be slow to ratify agreements without having everything in place first. That has always been the case. For example, I am responsible for the disabilities area and it is not until all the ducks are in the row that such action is taken. We have found in ratifying international conventions that many countries rush to ratify but when they are called to account afterwards, there are failures in the systems that must be in place to support the ratification. Whether Fianna Fáil or anybody else has been in government, I have always agreed with that approach, as all the mechanisms should be put in place before ratification instead of being found wanting when it comes to supports.14

Nevertheless, over the course of 2013, a series of parliamentary questions were raised in Dáil Éireann (Lower House of Parliament) regarding the signature and ratification of specific international agreements, in particular:

12

Tánaiste, Dáil Éireann Debates, 20 February 2013, Vol 793, No 2, 27. Ibid, 28. 14 Deputy Kathleen Lynch, Minister of State, Department of Health and Department of Justice, ‘Equality and Defence with responsibility for Disability, Older People, Equality and Mental Health’, Seanad Éireann Debates, 23 May 2013, 22. 13

Correspondent Reports—Cubie 101  The Optional Protocol to the International Covenant of Economic, Social and Cultural Rights.15  The Second Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.16  The Third Optional Protocol to the UN Convention on the Rights of the Child on a Communications Procedure.17  The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention).18  The ILO Domestic Workers Convention (No 189).19

List of Multilateral Agreements that Entered into Force during 2013 The following is a list of the multilateral agreements that entered into force for Ireland during 2013. ITS number

Title of agreement

No 6 of 2014

Treaty Between the Member States of the European Union and the Republic of Croatia Concerning the Accession of the Republic of Croatia to the European Union (Brussels, 9 December 2011) Notification of completion of requirements for entry into force deposited on 8 October 2012, entered into force on 1 July 2013

No 8 of 2014

Stabilisation and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Serbia, of the other part (Luxembourg, 29 April 2008) Notification of completion of requirements for entry into force deposited on 29 November 2011, entered into force on 1 September 2013

15 Deputy Séan Crowe, Dáil Éireann Debates, 28 February 2013, unrevised, Vol 794, No 3, 48; Deputy Andrew Doyle, Dáil Éireann Debates, 14 May 2013, unrevised, 60; Deputy Thomas Broughan, Dáil Éireann Debates, 25 June 2013, unrevised, 74. 16 Deputy Sandra McLellan, Dáil Éireann Debates, 16 April 2013, unrevised, 52; Deputy Maureen O’Sullivan, Dáil Éireann Debates, 11 June 2013, unrevised, 118; Deputy Aodhán Ó Ríordáin, Dáil Éireann Debates, 16 July 2013, unrevised, 122. 17 Deputy Sandra McLellan, Dáil Éireann Debates, 16 April 2013, unrevised, 52; Deputy Aodhán Ó Ríordáin, Dáil Éireann Debates, 16 July 2013, unrevised, 122. 18 Deputy Mary Mitchell O’Connor, Dáil Éireann Debates, 30 April 2013, unrevised, 74; Deputy Clare Daly, Dáil Éireann Debates, 4 June 2013, 66; Deputies Robert Dowds, Thomas Broughan, Clare Daly, Paschal Donohoe, Aengus Ó Snodaigh, Terence Flanagan, Patrick Nulty, Colm Keaveney, Robert Troy, Michael Healy-Rae, Maureen O’Sullivan, Michael Creed, Róisín Shortall, Mary Lou McDonald, Finian McGrath, Michael McGrath, John Halligan, Billy Timmins and Tom Fleming, Dáil Éireann Debates, 11 June 2013, unrevised, 106; Deputy Billy Kelleher, Dáil Éireann Debates, 12 June 2013, unrevised, 85; Deputies Brian Stanley, Jerry Buttimer and Mick Wallace, Dáil Éireann Debates, 13 June 2013, unrevised, 30; Deputy Dominic Hannigan, Dáil Éireann Debates, 13 June 2013, unrevised, 55; Deputies Joan Collins and Sean Fleming, Dáil Éireann Debates, 26 June 2013, unrevised, 92; Deputies Mary Lou McDonald and Finian McGrath, Dáil Éireann Debates, 16 July 2013, unrevised, 114; Deputy Joanna Duffy, Dáil Éireann Debates, 5 November 2013, unrevised, 88. 19 Deputy Mary Lou McDonald, Dáil Éireann Debates, 10 July 2013, unrevised, 106.

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No 9 of 2014

Convention on Mutual Administrative Assistance in Tax Matters. Text amended by the provisions of the Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters. Signed by Ireland on 30 June 2011. Instrument of Ratification, with Declarations and Reservations pursuant to Articles 2, 3, 29 and 30 of the Convention, deposited on 29 May 2013, entered into force with respect to Ireland on 1 September 2013

No 12 of 2014

Cooperation Agreement on a Civil Global Navigation Satellite System (GNSS) between the European Community and its Member States and Ukraine (Kiev, 1 December 2005) Notification of completion of requirements for entry into force deposited on 13 February 2012, entered into force on 1 December 2013

No 14 of 2014

European Council Decision amending Article 136 of the Treaty on the Functioning of the European Union with regards to a stability mechanism for Member States whose currency is the euro (Brussels, 25 March 2011) Notification of completion of requirements for entry into force deposited on 1 August 2012, entered into force on 1 May 2013

DI PLOMA T I C MA T T ER S

As the world mourned the death of Nelson Mandela in December, the Tánaiste expressed his deep sadness and regret at the passing of a man who ‘holds an extraordinary place in the hearts of the Irish people.’ He continued: Nelson Mandela greatly appreciated Ireland’s love for him and our country’s friendship and support to the people of South Africa, particularly, in their struggle to end the evil of apartheid. On this day, I want to pledge our commitment to continuing his work for human rights, peace, equality and development for all of the people of Africa and of the world. Our world is a poorer place for Nelson Mandela’s passing, but a far richer and better place thanks to his life. May he rest in peace, and may his values, his hopes, his wisdom and his inspiration live on.20

During 2013, the President of Ireland received credentials from ambassadors representing Slovakia, Australia, Slovenia,21 Turkey, the Philippines, Jamaica,22 Angola, Burkina Faso, Belarus,23 Kosovo, Malawi, Uzbekistan,24 the Republic of Korea, Thailand,25

20 Department of Foreign Mandela’, 5 December 2013. 21 Department of Foreign 16 January 2013. 22 Department of Foreign 27 February 2013. 23 Department of Foreign 26 March 2013. 24 Department of Foreign 21 May 2013. 25 Department of Foreign 28 June 2013.

Affairs and Trade, ‘Statement by the Tánaiste on the Death of Nelson Affairs and Trade, ‘New Ambassadors present Credentials’, press release, Affairs and Trade, ‘New Ambassadors present Credentials’, press release, Affairs and Trade, ‘New Ambassadors present Credentials’, press release, Affairs and Trade, ‘New Ambassadors present Credentials’, press release, Affairs and Trade, ‘New Ambassadors present Credentials’, press release,

Correspondent Reports—Cubie 103 ‘New Ambassadors present Credentials’, Bulgaria, Belgium, India,26 Latvia, Argentina, Finland27 and Sudan, and the Ambassador-Head of Mission of the Palestinian Mission.28 In March, the UN Secretary-General, Ban Ki-moon, appointed former President Mary Robinson as UN Special Envoy to the Great Lakes Region. In welcoming her appointment, the Tánaiste praised her exceptional skills and experience, as well as Dr Robinson’s global profile and reputation. The Tánaiste noted that In overseeing the implementation of the new regional Agreement, former President Mary Robinson will play a central role in facilitating and encouraging leaders of the region to address through dialogue and cooperation the challenges faced by the Democratic Republic of the Congo and countries of the region.29

The government provided additional support for the work of Dr Robinson as UN Special Envoy in June, when Minister of State Joe Costello, TD highlighted Ireland’s close involvement in challenging human rights abuses in the Congo since the time of Roger Casement. At the UN High-Level Panel Discussion on Women and Peacebuilding, the minister noted in particular that: The factors that have caused and perpetuated the conflict [in eastern DRC] are complex and manifold, but at its core has been the abject failure to respect fundamental human rights. Therefore, respect for and realisation of human rights—and specifically the rights of women—must be at the heart of any renewed peace efforts.30

The Tánaiste reiterated the importance of involving women in all stages of economic recovery and peacebuilding processes at the UN High-Level Ministerial Discussion on Women’s Empowerment for Peacebuilding in September. The Tánaiste argued that: Empowerment is about much more than acknowledging the important work which women already do. It’s also about how power and resources, such as land, are distributed and who makes the decisions. We need to identify and support interventions which strengthen women’s voices in decision-making during peace-building and to ensure that women have a voice in decision-making from the initial peace-making process to the establishment and development of local and national governmental institutions.31

Meanwhile, during an official visit to Dublin in November by the UN High Commissioner for Human Rights, Navanethem Pillay, the Tánaiste took the opportunity to commend the UN High Commissioner on her outspoken stance on the conflict in Syria and support for LGBTI rights.32 26 Department of Foreign Affairs and Trade, ‘New Ambassadors present Credentials’, press release, 12 September 2013. 27 Department of Foreign Affairs and Trade, ‘New Ambassadors present Credentials’, press release, 3 October 2013. 28 Department of Foreign Affairs and Trade, ‘New Ambassadors present Credentials’, press release, 14 November 2013. 29 Department of Foreign Affairs and Trade, ‘Tánaiste Welcomes Appointment of Mary Robinson as UN Special Envoy for the Great Lakes Region’, press release, 18 March 2013. 30 Department of Foreign Affairs and Trade, ‘Minister Costello’s Remarks at UN High-Level Panel Discussion on Women and Peacebuilding’, 4 June 2013. 31 Department of Foreign Affairs and Trade, ‘Speech by the Tánaiste at Women’s Economic Empowerment for Peacebuilding, High-Level Ministerial Discussion’, 26 September 2013. 32 Department of Foreign Affairs and Trade, ‘Tánaiste Commends Work of UN High Commissioner for Human Rights’, press release, 7 November 2013.

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B IL ATE RAL RE L ATIO N S , C ONS U LA R S ER V I C ES A ND T HE DI A S POR A

In March, the Tánaiste signed an agreement establishing a single maritime boundary between the Exclusive Economic Zones (EEZ) and continental shelves of Ireland and the UK.33 In the explanatory memorandum to the agreement drafted by the UK government, the rationale for the agreement was set out: Under the UN Convention on the Law of the Sea there are essentially two kinds of maritime zones which can be declared beyond the territorial sea, namely the Continental Shelf and the Exclusive Economic Zone (EEZ). The former is concerned with the sea bed and the subsoil and the latter, the water column. The UK has not so far declared an EEZ although we have made use of the EEZ powers available to a coastal state under the UN Convention to regulate a number of the relevant issues. However, this has led to a plethora of different named zones dealing, for example, with fisheries, marine pollution and wind farms. It was concluded that it would be better to declare an EEZ which would encompass all of the existing zones. Power to declare one was taken in the Marine and Coastal Access Act 2009, but before this can happen we need to conclude bilateral arrangements with all our maritime neighbours on an EEZ boundary.34

In welcoming the agreement, the Tánaiste said: This Agreement resolves legal uncertainty on boundary issues with the UK and establishes a clear framework for the government’s efforts to encourage and facilitate the sustainable development of our marine resources in the seafood, oil and gas, renewable energy and biotechnology sectors.35

In addition to the bilateral double taxation agreements that entered into force between Ireland and Egypt, Qatar, San Marino, Switzerland and Uzbekistan during 2013, Ireland and Thailand signed a double taxation agreement in November.36 The aim of double taxation agreements is to regulate the taxation of income or capital gains that may be taxed in two jurisdictions, as well as enhancing measures to prevent fiscal evasion. Following the signing of the agreement with Thailand, the Tánaiste, stated: This agreement will facilitate greater trade between Ireland and Thailand, where the economy grew by an impressive 6.5% in 2012. Our bilateral trade is currently worth around €435 million, and I am confident that we will see increased opportunities for Irish businesses to boost their exports as a result of the agreement. The Government will continue to focus on expanding Ireland’s trade and investment ties globally to create jobs and continue to drive economic recovery in Ireland. Double Taxation Agreements are key to assisting Irish companies expand into new markets.

33 Department of Foreign Affairs and Trade, ‘Tánaiste Signs Agreement on a Boundary between the Irish and British “Exclusive Economic Zones”’, press release, 31 March 2013. 34 Foreign and Commonwealth Office, ‘Explanatory Memorandum on the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland Establishing a Single Maritime Boundary between the Exclusive Economic Zones of the Two Countries and Parts of their Continental Shelves’, 2 August 2013. 35 ‘Tánaiste Signs Agreement on a Boundary’, above n 33. 36 Department of Foreign Affairs and Trade, ‘Ireland signs Double Taxation Agreement with Thailand to Increase Trade’, press release, 5 November 2013.

Correspondent Reports—Cubie 105 Under SI 416/2013 Extradition Act 1965 (Application Part II) Order 2013, finalised in November, agreement was reached for Brazil to be considered a reciprocal country as per Article 8(1), Part II of the Extradition Act 1965, which states: 8.—(1) Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the government are satisfied that reciprocal facilities to that effect will be afforded by another country, the government may by order apply this Part in relation to that country.

Of note, at the end of August, former solicitor Michael Lynn was arrested in Brazil on foot of an extradition warrant issued by the Irish authorities. Michael Lynn was struck off the list of registered solicitors in 2008 by the President of the High Court, and was fined €1 million following allegations that he had defrauded numerous property investors, although he had already fled to Brazil in 2007.37 Extradition proceedings were ongoing at the end of 2013. An Irish citizen was amongst a group of over 800 oil-workers kidnapped on 16 January 2013 as part of a major terrorist attack by an al-Qaeda-linked group at the Tigantourine gas facility in Algeria. While the Irish citizen was released safely, around 48 foreign hostages were killed, as well as an Algerian security guard and 32 of the hostage-takers.38 Following the military intervention by the Egyptian Armed Forces in July 2013 to oust President Mohamed Mursi, four Irish citizens were detained in Cairo in late August. Four members of the Halawa family were arrested for allegedly taking part in pro-Mursi demonstrations in Cairo. Following diplomatic efforts by the Irish authorities, the three sisters were released in December 2013, although their 17-year-old brother remained in custody.39 In welcoming the imminent release of the three Halalwa siblings, the Tánaiste stated: I am very pleased to hear that Somaia, Fatima and Omaima Halawa are to be released from detention in Egypt. I telephoned Egyptian Foreign Minister Nabil Fahmy on Monday last to express my concern that the Halawa siblings had been kept in prison for almost three months without being charged with an offence … I have been informed that Ibrahim Halawa will attend a further hearing in Egypt on Saturday. My Department will continue to provide consular assistance to him and liaise with the Egyptian authorities on his ongoing detention without charge.40

A range of changes were made to consular services during 2013. First of all, new charges for various consular activities, from translation of documents to arranging the repatriation of individuals and families, alongside increases in the cost of new and replacement passports, were introduced in the Diplomatic and Consular Fees Regula37 ‘Fugitive Michael Lynn Arrested in Brazil’, RTÉ News Online, 30 August 2013, available at www.rte.ie/ news/2013/0830/471190-michael-lynn-brazil (accessed on 10 November 2014). 38 ‘Algeria Crisis: Hostage Death Toll “Rises to 48”’, BBC News Online, 21 January 2013, available at www.bbc.com/news/world-africa-21114512 (accessed on 10 November 2014); Statement by the Tánaiste on the Hostage Situation in Algeria, Department of Foreign Affairs and Trade, 17 January 2013. 39 ‘Halawa Sisters Home in Ireland after Egypt Ordeal’, RTÉ News Online, 1 December 2013, available at www.rte.ie/news/2013/1130/490098-halawa-sisters-home/ (accessed on 10 November 2014). 40 Department of Foreign Affairs and Trade, ‘Statement by the Tánaiste on the Release of Halawa Sisters in Egypt’, press release, 14 November 2013.

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tions 2013.41 Alongside this, changes to the application procedure for passports were introduced in May, with a web-based appointments procedure established via www. passportappointments.ie. Then, in September, a new design for Irish passports was unveiled by the Tánaiste. The new version of the Irish passport includes images of iconic Irish landmarks, including Croagh Patrick, Kylemore Abbey and Croke Park, in addition to drawings depicting Irish music and dance and Gaelic games. At the launch, the Tánaiste stated: ‘We have combined the latest security technology with selected imagery in order to produce a passport which represents Ireland—our culture, our history, and our people’.42 A total of 1,500 Irish citizens were assisted by the Department of Foreign Affairs and Trade during 2013, which represented a 6.5% increase on 2012. These figures include 255 cases of Irish citizens arrested abroad, 227 cases concerning Irish people who died abroad and 253 medical cases. Meanwhile, the department registered more than 5,000 people for Irish citizenship through foreign births registration and provided more than 3,000 letters of freedom to Irish citizens getting married or entering civil partnerships abroad. Additionally, Department of Foreign Affairs and Trade staff authenticated over 55,000 Irish documents, such as educational certificates, legal documents and company documents, for example in order to secure employment abroad or for property and commercial transactions.43 2013 marked the fiftieth anniversary of President John F Kennedy’s visit to Ireland in 1963, a commemoration noted by the Tánaiste in his opening address to the Global Diaspora Forum held in May. In welcoming the delegates from across the world, the Tánaiste noted the fact that 1 in 33 people in the world is a migrant, and over 70 million people around the world claim Irish heritage. However, despite the government’s pledge to implement policies which will ‘in the future ensure that no Irish citizen has to endure emigration by economic necessity’,44 the Tánaiste noted that today the Irish diaspora is varied both in geographic diversity and duration of the emigrant experience. Furthermore, the Tánaiste argued that: A key element of discussions at this Forum will be how we can engage with our diasporas in support of economic development. In 2009, we added a new element to our diaspora engagement by hosting the first Global Irish Economic Forum. We brought together 180 senior Irish business people based overseas and sought to leverage the advice and expertise of these key influencers in support of our economic renewal. We followed this up with a second forum in 2011 and I will convene the third forum in Dublin Castle later this year. One of the key outcomes of this engagement was the establishment of the Global Irish Network. Based in almost 40 countries, the Global Irish Network consists of some 350 of

41 SI 46/2013, Diplomatic and Consular Fees Regulations 2013. See also, SI 119/2013, Diplomatic and Consular Fees (Amendment) Regulations 2013. 42 Department of Foreign Affairs and Trade, ‘Tánaiste Eamon Gilmore Launches Newly-Designed Irish Passport’, press release, 30 September 2013. 43 All figures from Department of Foreign Affairs and Trade, ‘Department of Foreign Affairs and Trade Consular Figures for 2013’, press release, 31 December 2013. 44 Department of Foreign Affairs and Trade, ‘Remarks by the Tánaiste at Global Diaspora Forum’, press release, 14 May 2013.

Correspondent Reports—Cubie 107 the most influential Irish and Irish-connected individuals abroad and provides Ireland with an invaluable resource of international expertise.45

The theme of economic growth, job creation and Ireland’s economic recovery was continued in the Tánaiste’s Opening Address to the Global Irish Economic Forum in October.46 The forum provided the opportunity for 260 entrepreneurs and business people from Ireland and abroad to discuss topics aligned to the government’s Action Plan for Jobs, notably in sectors such as financial services, food and agri-tech, higher education, social innovation and the digitisation of the global economy. Particular emphasis was placed on the role of small and medium enterprises, as well as employment opportunities for young people, in creating the conditions for returning emigrants to avail themselves of jobs and business opportunities in Ireland. The Tánaiste also announced the launch of a comprehensive review of diaspora policy to be undertaken by the Department of Foreign Affairs and Trade during 2014 in conjunction with the broader review of Irish foreign policy and external relations.

List of Bilateral Agreements that Entered into Force during 2013 The following is a list of the bilateral agreements that entered into force for Ireland during 2013. ITS Number

Title of agreement

No 1 of 2014

Agreement between the government of Ireland and the government of the United Kingdom of Great Britain and Northern Ireland establishing a Single Maritime Boundary between the Exclusive Economic Zones of the two countries and parts of their Continental Shelves, entered into force on 31 March 2014.

No 2 of 2014

Convention between the government of Ireland and the government of the Republic of Uzbekistan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Property (Dublin, 11 July 2012) Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 18 January 2013 and 17 April 2013, entered into force on 17 April 2013.

No 3 of 2014

Agreement between the government of Ireland and the government of the Arab Republic of Egypt for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains (Cairo, 9 April 2012) Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 22 November 2012 and 24 April 2013, entered into force on 24 April 2013.

45 46

Ibid. Tánaiste Eamon Gilmore, ‘Opening Address to the Global Irish Economic Forum’, 4 October 2013.

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No 4 of 2014

Agreement between the government of Ireland and the government of the Republic of San Marino for the Exchange of Information relating to Taxes (San Marino, 4 July 2012) Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 28 March 2013 and 12 April 2013, entered into force on 12 May 2013.

No 5 of 2014

Agreement between the government of Ireland and the government of the Grand Duchy of Luxembourg on Audio-Visual Relations (Galway, 9 July 2011) Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 17 September 2012 and 25 June 2013, entered into force on 25 June 2013.

No 7 of 2014

Exchange of Notes terminating the Agreement between the government of Ireland and the government of the United Kingdom of Great Britain and Northern Ireland on the Reciprocal Holding of Stocks of Crude Oil and/or Petroleum Products Notes terminating the Agreement exchanged on 30 August 2013, entered into force on 30 August 2013.

No 10 of 2014

Exchange of Notes terminating the Agreement between the government of Ireland and the government of Denmark on the Reciprocal Holding of Stocks of Crude Oil and/or Petroleum Products Notes terminating the Agreement exchanged on 7 June 2013 and 9 September 2013, entered into force on 16 September 2013.

No 11 of 2014

Protocol Amending the Convention between Ireland and the Swiss Confederation for the Avoidance of Double Taxation with respect to taxes on Income and on Capital, signed at Dublin on 8 November 1966, as amended by the Protocol signed at Dublin on 24 October 1980 (Dublin, 26 July 2012) Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 14 November 2013, entered into force on 14 November 2013.

No 13 of 2014

Agreement between the government of Ireland and the government of the State of Qatar for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains (Doha, 21 June 2012) Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 20 September 2012 and 16 October 2013, entered into force on 13 December 2013.

FOR EI GN C ONFLI C T S

Running throughout 2013 was a focus on the ongoing conflict in Syria, which continued unabated at the end of the year. In January, in conjunction with the governments of Austria, Denmark and Slovenia, the Tánaiste called upon the international community to refer the situation in Syria to the International Criminal Court (ICC). Writing for CNN World, the four foreign ministers argued that such a referral would have a number of advantages due to the independent and impartial nature of the ICC, and the clear message that it would send to fighters on all sides of the conflict that grave

Correspondent Reports—Cubie 109 crimes would ultimately be punished. The foreign ministers stated their concern that the crisis in Syria may soon reach a new level of violence, so: [W]e publicly appeal to all parties to the conflict to abide by international law, especially international humanitarian law and human rights law, and to recall that all those that commit or order war crimes and crimes against humanity will be held accountable. This principle cannot and will not be negotiated. As we know from the work of the UN Commission of Inquiry on Syria, horrendous crimes have already been committed during the conflict in Syria, but there have been no consequences for the perpetrators … Since Syria is not a party to the ICC Statute, jurisdiction of the Court requires a decision of the UN Security Council. In view of the grave concerns mentioned above, and the lack of prosecution in Syria, we call on the UN Security Council to urgently refer the situation in Syria to the ICC.47

Following the chemical weapons attack in the Ghouta district of Damascus in August, the Tánaiste renewed his call for the situation in Syria to be referred to the ICC during his speech to the UN General Assembly.48 Of note, the Chief Prosecutor of the International Criminal Court, Fatou Bensouda, made her first official visit to Ireland in December at the invitation of the Department of Foreign Affairs and Trade and the Centre for Criminal Justice and Human Rights at University College Cork. During her speech at the Royal Irish Academy, Ms Bensouda stressed the importance of ensuring the protection of witnesses who are called before the ICC, and noted that her office was in discussions with the Irish government regarding the ICC witness protection scheme.49 Following the political unrest and violence in Mali during 2012, the Irish EU Presidency supported an EU mission to Mali to provide training and reorganisation of the Malian army and to help them protect Malian citizens, including the deployment of eight Irish Defence Forces personnel. EU Ministers also expressed their support for France in its UN-endorsed intervention in Mali to support the Malian government.50 In advance of a meeting of the Support and Follow-up Group on Mali, comprising representatives from the African Union, the EU and the UN in February, Minister of State Joe Costello, TD stated: A key focus of today’s discussion will be measures to improve the coordination of all of our efforts to address the long-term economic, environmental and security challenges facing the Sahel region. Crucially, we will assess the humanitarian situation in Mali and the Sahel region. Ireland will continue to work to ensure that aid agencies and humanitarian workers are granted unhindered access to communities in need; that aid workers are protected while carrying out

47 M Spindelegger, K Erjavec, E Gilmore and V Søvndal, ‘Time to Refer Syria Crisis to ICC’, CNN World, 10 January 2013, available at http://globalpublicsquare.blogs.cnn.com/2013/01/10/time-to-refer-syriacrisis-to-icc (accessed on 10 November 2014). 48 Department of Foreign Affairs and Trade, ‘Address to the 68th Session of the United Nations General Assembly’, 28 September 2013. 49 R Mac Cormaic, ‘Ireland in Talks with International Court on Witness Relocation Scheme’, Irish Times, 17 December 2013, available at www.irishtimes.com/news/crime-and-law/ireland-in-talks-with-inter national-court-on-witness-relocation-scheme-1.1629961 (accessed on 10 November 2014). 50 Department of Foreign Affairs and Trade, ‘Minister Creighton Urges Transition to Democracy in Mali, at Special EU Ministers Meeting’, press release, 17 January 2013.

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this critical work and that all parties guarantee the protection of civilian populations and comply with international humanitarian law and human rights.51

Another recurring conflict which the Irish government focused on during 2013 was the escalating tension within Gaza and the Occupied Palestinian Territories. Minister of State Joe Costello, TD undertook a fact-finding visit to Gaza in October, where he met with political representatives as well as the UN Relief Works Agency for Palestine and the Palestine Centre for Human Rights.52 In November, while welcoming the release of 26 Palestinian prisons, the Tánaiste made a strong statement criticising the expansion of settlements into East Jerusalem and the West Bank. In particular, the Tánaiste stressed that: ‘Settlements are illegal under international law and constitute a clear obstacle to the achievement of a two-State solution. Such action will not advance the prospects for a successful outcome to the current crucial talks process.’53 The Tánaiste additionally called for urgent action to ‘end the unacceptable blockade of the Gaza Strip and for all crossings to be reopened to normal commercial, human and humanitarian traffic’.54 The year ended with a focus on two emerging conflicts: in the Central African Republic and in Ukraine. In March, the predominantly Muslim Séléka rebels in the Central African Republic seized the capital, Bangui, forcing the President, Françoise Bozizé, to flee the country. Ireland has provided humanitarian assistance and development aid to the Central African Republic since 2008, and during 2013 there were reports of increasing large-scale displacement of persons and deaths resulting from clashes between the Séléka forces of the newly established President Michel Djotodia and the predominantly Christian anti-Balaka forces. Following the death of two French peacekeeping soldiers in December, the Tánaiste warned that the country risked slipping into civil war and expressly referenced the threat of genocide.55 Arguing that a UN-led response was the best mechanism to address the crisis, the Tánaiste stated his hope that the UN Security Council would ‘revisit the question of a UN peacekeeping operation if the situation continues to deteriorate’.56 Meanwhile, announcing an additional €2 million for humanitarian assistance, Minister of State Joe Costello, TD stated: The ongoing conflict in the Central Africa Republic is having an appalling impact on the civilian population, who were already extremely vulnerable. Reports of widespread human rights violations including killings, rapes, kidnappings, and recruitment of child soldiers are very disturbing, as are increasing reports of sectarian violence.

51 Irish Aid, ‘Minister Costello Presses for Closer International Cooperation in Response to Crisis in Mali’, press release, 5 February 2013. 52 Irish Aid, ‘Minister Costello to Make Fact-Finding Visit to Gaza’, press release, 8 October 2013. 53 Department of Foreign Affairs and Trade, ‘Tánaiste Deeply Concerned at Escalating Tensions in Gaza’, press release, 1 November 2013. 54 Ibid. 55 Department of Foreign Affairs and Trade, ‘Tánaiste Expresses Concern at Conflict in the Central African Republic’, press release, 11 December 2013. 56 Department of Foreign Affairs and Trade, ‘Tánaiste to Discuss the Situation in Ukraine with Russian Foreign Minister’, press release, 16 December 2013.

Correspondent Reports—Cubie 111 It is vital that all parties respect international humanitarian law, that civilians are protected, and that humanitarian access is provided for UN agencies and NGOs working in Central African Republic.57

The end of 2013 also saw the beginnings of the conflict in Ukraine. The unravelling of the planned EU–Ukraine Association Agreement in late November led to the first street protests in early December. Calling for restraint by the government and police forces in their response to peaceful protests, on 11 December the Tánaiste highlighted the importance of international human rights law: The rights to freedom of expression and freedom of assembly are enshrined in the European Convention on Human Rights and are fundamental in any society. I strongly believe that these rights should be fully respected by the Ukrainian authorities and would expect nothing less from the current holder of the Chairmanship-in-Office of the OSCE.58

The Tánaiste also welcomed the opportunity for EU foreign ministers to discuss the situation in Ukraine with the Russian Foreign Minister, Sergei Lavrov, who attended the EU Foreign Affairs Council on 16 December in preparation for a planned EURussia summit at the end of January 2014.59 Meanwhile, in addition to the publication of Volume VIII in the series of Documents on Irish Foreign Policy, covering the period August 1945 until February 1948,60 an important historical footnote occurred during 2013. Following a campaign by former soldiers and their surviving family members, the Defence Forces (Second World War Amnesty and Immunity) Act 2013 was passed in May to recognise the courage and bravery of around 5,000 soldiers court-martialled or dismissed from the Defence Forces for absenting themselves without leave or permission. The legislation provides for an amnesty and immunity from prosecution for those Irish soldiers who left to join the Allied forces, namely the British armed services, during the Second World War. While few such former soldiers are still alive, crucially the legislation also includes an apology for their treatment on their return to Ireland after the end of the war, when many were labelled as traitors and barred from entering into any state employment. In presenting the bill to the Dáil, Paul Kehoe, TD, Minister of State at the Department of Defence, stated: I also believe that if this Bill is enacted it will send an important message to those people surviving, and the relatives of those that have since passed on. That message is that they can be proud of their contribution, or their relatives’ contribution, in the fight for freedom. Indeed, it is more than that. As we look to the commemoration of the 100th anniversary of the commencement of the Great War, the 75th anniversary of the start of the Second World War in 2014 and the remembrance of all those who served and died in those conflicts, the survivors and the relatives of those who have since passed on can proudly commemorate the

57 Irish Aid, ‘Minister Costello Announces Funding for Those Affected by Conflict in Central African Republic’, press release, 27 December 2013. 58 Department of Foreign Affairs and Trade, ‘Statement by Eamon Gilmore on the Protests in Kiev’, press release, 11 December 2013. 59 Department of Foreign Affairs and Trade, ‘Tánaiste to Discuss the Situation in Ukraine with Russian Foreign Minister’, press release, 16 December 2013. 60 M Kennedy et al (eds), Documents on Irish Foreign Policy, Vol VIII: 1945–1948 (Dublin, Royal Irish Academy, 2013).

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sacrifices they made during a very difficult time, not only in Irish history but in the history of Europe and the wider world.61

IN TER NA T I ONA L T ER R OR I S M

The terrorist bomb attack on the Boston Marathon on 16 April killed three people and injured scores more. Considering the historic and current ties between Ireland and the city of Boston, noting that no Irish citizen was killed in the attack, the Tánaiste expressed his deepest sympathies and added ‘My thoughts are with the people and the authorities in Boston as they continue to deal with this tragic situation’.62 Likewise, the attack on the Westgate Shopping Centre in Nairobi, Kenya in September drew a strong condemnation by the Tánaiste.63 In his speech before the UN General Assembly, he stated: I join other speakers in condemning the recent attack in the Kenyan capital Nairobi, which left dozens of innocent people dead and almost two hundred injured. It is a chilling reminder that well-organised and ruthless international terrorist groups and networks are constantly searching for new locations and targets for atrocities. My profound sympathy and that of the people of Ireland goes out to the victims of this attack and their families. We must both be vigilant against terror and resolute in refusing to compromise our values in the face of such threats.64

The conflict in Syria extended over into the territory of Lebanon in November, when the Iranian embassy was attacked by suicide bombers killing 23 people. The Tánaiste reiterated Ireland’s strong commitment to safeguarding Lebanon’s peace and security through the deployment of the Irish military as part of the United Nations Interim Force in Lebanon (UNIFIL) peacekeeping mission. In addition to unreservedly expressing his condemnation of the attack and extending his sympathies, the Tánaiste stated that he hoped that ‘those responsible for this atrocity are quickly apprehended and brought to justice’.65

DI S A R MA MENT

Two key events occurred during 2013 which refocused Ireland’s commitment to disarmament of nuclear and chemical weapons. In February, North Korea tested a nuclear explosive device, prompting widespread condemnation and calls for cessation. The Tánaiste stated:

61

Minister of State at the Department of Defence, Dáil Éireann Debates, 6 March 2013, Vol 795, No 2,

46. 62

Department of Foreign Affairs, ‘Statement by the Tánaiste on Boston Marathon’, 16 April 2013. Department of Foreign Affairs, ‘Statement by the Tánaiste on the Attack in Nairobi’, 22 September 2013. 64 ‘Address to the 68th Session, above n 48. 65 Department of Foreign Affairs, ‘Statement by the Tánaiste on the Beiruit Bombing’, 19 November 2013. 63

Correspondent Reports—Cubie 113 Nuclear weapons are never a means to guarantee peace and security; far from it, they pose the greatest threat of all. The regime in Pyongyang must realise that today’s act is reckless and provocative and will only isolate it further from the international community … Today’s events highlight the urgency for the immediate entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT). I call on the eight remaining states whose ratification of the Treaty is required to do so without delay. While the CTBT has not yet entered into force, it represents an overwhelming international consensus against nuclear weapons testing that Ireland and others have a duty to protect. I expect all nations—including North Korea—to respect this international consensus.66

The government had an opportunity to reinforce this position a couple of weeks later at the Conference on Disarmament, held in Geneva on 27 February. While recognising previous achievements, such as the Biological and Toxin Weapons Convention67 and the Chemical Weapons Convention,68 the Tánaiste delivered a strong statement about the failures of the Convention on Disarmament (CD): … it has regrettably been clear for some time that the Conference on Disarmament is no longer functioning. Since its last major achievement—the conclusion of negotiations on the Comprehensive Nuclear Test Ban Treaty in 1996—the CD has become a byword for stalemate and failure. We must reverse this trend, and soon. A growing impatience is evident that this conference, which was designed to be the sole multilateral disarmament negotiating body, has been unable to perform its role for over fifteen years, despite the many pressing arms control challenges facing us today. Last November, the UN General Assembly expressed very clearly its dissatisfaction with this state of affairs. By overwhelming majority votes, it established two new mechanisms here in Geneva to facilitate discussions on topics which the CD has been unable to take forward. I believe the General Assembly’s message is clear: if this Conference continues to ignore its responsibility to address the disarmament agenda before it, ways will be found to address this agenda by other means, if necessary.69

An example of these moves towards the use of UN structures, rather than the intergovernmental Conference on Disarmament, was seen in September when the UN General Assembly convened a High-Level Meeting on Disarmament. In the wide-ranging discussions which took place, the Irish government took the opportunity to align itself to the growing focus on the humanitarian consequences of the use of nuclear weapons: The so-called ‘humanitarian consequences’ narrative steps beyond traditional disarmament Treaty discussions to consider, first and foremost, the practical effects on mankind of any 66 Department of Foreign Affairs and Trade, ‘Statement by the Tánaiste Condemning North Korean Nuclear Test’, 12 February 2013. See also Department of Foreign Affairs, ‘Tánaiste Calls on Nuclear States to Engage in Talks on Disarmament’, press release, 27 February 2013, in which the Tánaiste argued: ‘Nuclear weapons can never and will never guarantee the security of any nation. Possession of these weapons entails unacceptable risks and there is no place for them in any defensive arsenal or security posture. Their very existence threatens international security.’ 67 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (adopted 10 April 1972, entered into force 26 March 1975) 1015 UNTS 163. 68 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997) 1974 UNTS 45. 69 Department of Foreign Affairs and Trade, ‘Tánaiste’s Statement at Conference on Disarmament, Geneva’, 27 February 2013.

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nuclear weapons detonation. These consequences would involve death and suffering on an unprecedented scale among our civilian populations. They would wreak incalculable damage upon our environment, our ecological and agricultural systems, our economies and our way of life as we know it. Ireland is very pleased to associate itself by name with the humanitarian consequences narrative which has re-emerged again within the current NPT review cycle.70

However, despite the Tánaiste highlighting that the Chemical Weapons Convention represented one of the successes of the Conference on Disarmament,71 the worst chemical weapons attack in 25 years occurred in Syria on 21 August. Estimates as to the number of people killed vary from the low hundreds to close to 1,500.72 The subsequent report of the UN Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic concluded that chemical weapons had been used in the Ghouta district of Damascus, and that surface-to-surface rockets containing sarin nerve gas had been used.73 While the UN Mission was not charged with determining responsibility for the attacks, Human Rights Watch analysed the rocket trajectories as reported by the UN Mission and highlighted that they potentially corresponded with key Syrian Army bases.74 In response to the attacks, the Tánaiste stated: I repeat my condemnation of the recent gas attacks in Syria. The horrific consequences of the illegal use of these armaments against a civilian population are appalling and an affront to the values of the United Nations. The use of these weapons has rightly been outlawed for almost a century. The deliberate use of chemical weapons against a civilian population is a very serious war crime … There are growing international concerns that the attacks were probably carried out by the Syrian Government  … The UN Security Council is the appropriate forum for determining the response of the international community. I call on all members of the Security Council to fulfil their responsibilities under the UN Charter to reach agreement on the necessary measures to uphold international law and protect the fundamental rights of the Syrian population. I also reiterate my call for the Security Council to refer the situation in Syria to

70 Department of Foreign Affairs and Trade, ‘Address to High Level Meeting on Nuclear Disarmament’, 26 September 2013. The Government of Norway held a major conference on the humanitarian impact of nuclear weapons in March 2013, which included representatives from Ireland. See Final Remarks at Conference on the Humanitarian Impact of Nuclear Weapons, former Norwegian Minister for Foreign Affairs, Espen Barth Eide, Oslo, 5 March 2013, available at www.regjeringen.no/en/aktuelt/weapons_final/id716983 (accessed on 10 November 2014). 71 ‘Tánaiste’s Statement at Conference on Disarmament’, above n  69: ‘In the fifteen short years since it entered into force, the Chemical Weapons Convention  … has come close to eliminating an entire weapons category from global arsenals. In a few weeks’ time, States Party to that Convention will meet in The Hague for the Third Review Conference. They will find a functioning and, for the most part, successful Treaty which has contributed to international security. It is already considering the transition from a largely disarmament-focussed organisation to one which can focus on ensuring that these weapons never re-enter global arsenals.’ 72 ‘Syria Chemical Attack: What We Know’, BBC News Online, 24 September 2013, available at www. bbc.com/news/world-middle-east-23927399 (accessed on 10 November 2014). 73 UN Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, ‘Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013’, 3. 74 J Lyons, ‘Dispatches: Mapping the Sarin Flight Path’ (Human Rights Watch, 17 September 2013), available at www.hrw.org/news/2013/09/17/dispatches-mapping-sarin-flight-path (accessed on 10 November 2014).

Correspondent Reports—Cubie 115 the International Criminal Court to ensure that those who commit or order war crimes and crimes against humanity are held accountable.75

The Irish government subsequently pledged €200,000 to support the work of the Organisation for the Prohibition of Chemical Weapons (OPCW), which was tasked with supervising the destruction of the Syrian government’s chemical weapons stockpiles.76

P E ACE S UPPOR T OPER A T I ONS

At the end of 2013, the Permanent Irish Defence Forces amounted to 9,236 personnel, comprising 7,434 Army, 779 Air Corps and 1,023 Navy personnel. The number of serving females amounted to 546 (comprising 450 Army, 31 Air Corps and 65 Naval Service personnel), representing 5.9% of the overall strength of the Permanent Defence Forces. An additional 4,069 personnel were members of the Reserve Defence Forces (comprising 3,869 Army Reserve and 200 Naval Service Reserve).77 At the end of 2013, 418 personnel were stationed abroad, representing 4.5% of the total Permanent Defence Forces. The key change in the positioning of Irish Defence Force personnel abroad during 2013 was the reduction in the number of soldiers in the UNIFIL Infantry Battalion in Lebanon and a corresponding deployment of personnel to the Golan Heights as part of the United Nations Disengagement Observer Force (UNDOF) Infantry Group. Three peace support operation mission readiness exercises were conducted for the contingents that were deployed to Lebanon (UNIFIL) and Syria/Golan Heights (UNDOF), while three newly introduced overseas qualification courses were conducted to prepare 97 officers and NCOs deployed to observer missions and overseas staff HQs.78 Although a neutral country, Ireland is increasingly engaged in a variety of international networks and defence partnerships. In particular, Ireland is part of the European Defence Agency and the NATO Partnership for Peace (PfP), as well as an active contributor to UN peace support operations. The overall total commitment to peace support operations during 2013 was as follows:79 Missions

1 January 2013

31 January 2013

UN-led operations UNTSO (Middle East)

12

13

MINURSO (Western Sahara)

3

3

MONUSCO (Democratic Republic of Congo)

3

4

75

Department of Foreign Affairs, ‘Statement by the Tánaiste on Syria’, 28 August 2013. Irish Aid, ‘Tánaiste Announces €200,000 for Destruction of Syrian Chemical Weapons’, press release, 25 September 2013. See also Department of Foreign Affairs, ‘Tánaiste Congratulates the OPCW on Winning Nobel Peace Prize’, press release, 11 October 2013. 77 All figures from Department of Defence and Defence Forces Annual Report 2013, 23. 78 Ibid, 26. 79 Ibid, 43–44. 76

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UNOCI (Côte d’Ivoire)

2

2

UNIFIL HQ (Lebanon)

16

16

UNIFIL Infantry Battalion (Lebanon)

337

185

UNIFIL Sector West HQ (Lebanon)

8

8

UNDOF Infantry Group (Golan Heights)

–

114

UNDOF HQ (Golan Heights)

–

4

UNMAS (Mine Action)

–

4

381

353

7

8

Sub-total (UN) EU-led operations EUFOR (Bosnia & Herzegovina) Austro-German Battlegroup

1

–

EUTM Somalia

10

7

EUTM Mali

–

8

18

23

Sub-total (EU)

NATO PfP-led operations KFOR HQ

12

ISAF (Afghanistan) Sub-total (NATO/PfP)

12

7

7

19

19

OSCE-led operations OSCE

4

4

Sub-total (OSCE)

4

4

Military reps/advisors/staff postings UNNY (New York)

1

1

EUMS (Brussels)

4

5

NATO/PfP (Belgium)

5

5

Irish delegation to OSCE (Vienna)

2

1

CSDP/PSC (Brussels)

9

7

Sub-total (military reps, advisers/staff postings) Total personnel overseas

21

19

443

418

In proposing the motion before Dáil Éireann for the deployment of Irish Defence Forces to serve with UNDOF in the Golan Heights in July, Minister of State at the Department of Defence Paul Kehoe, TD noted that: The mandate for the UNDOF mission was developed in a very different security situation to that which pertains today. The mandate provides for the policing of a voluntary ceasefire and separation agreement between two sovereign states which had full control and were secure within their territorial boundaries. The separation agreement, on which the mandate is based, did not contemplate the current volatile environment and internal conflict in Syria and the threat this poses to UNDOF personnel or to the local population. As such, it is vital that the mission be reinforced with additional and more robust capabilities so as it

Correspondent Reports—Cubie 117 can continue to discharge its important mandate in this troubled region and in the current difficult circumstances.80

Likewise, supporting the motion, the Tánaiste stated: As Members are aware, the resolution before the House is part of the triple lock system, under which overseas deployment of the Defence Forces depends on a UN mandate, a Government decision and a resolution of the House … The UN’s objectives in making this request to Ireland are to increase the resources of the mission and to strengthen confidence in UNDOF. When I discussed the request with the UN Secretary General, Ban Ki-moon, he emphasised the importance of having a highly regarded peacekeeping country at UNDOF to ensure the UN has a credible presence in this area. This is why the UN looked to Ireland. Mr Ban’s confidence in our peacekeepers is shared by a number of countries that have expressed their support for this deployment. They have indicated they will increase their support for the UN missions in the area if Ireland provides the mobile force reserve for UNDOF. Their confidence in Ireland is a result of our long and distinguished history of peacekeeping and our willingness to take on challenging peacekeeping missions. Peacekeeping is an integral part of our foreign policy. It underpins Ireland’s strong commitment to multilateralism and the UN.81

O VE RS E AS DEV ELOPMENT A I D

Since 2008, Ireland’s total Overseas Development Aid budget (ODA, comprising Irish Aid’s annual budget plus expenditure by other government departments, including contributions to the EU international development and cooperation budget) has fallen by over €280 million per year. While the total amount of Irish ODA increased slightly during 2013 to €637.1 million, Ireland’s commitment to providing 0.7% of GNP in ODA received another setback as this represented a contraction to 0.46% of GNP. In October, in response to further cuts planned for the ODA budget in 2014, Dóchas, the Irish Association of Non-Governmental Development Organisations, questioned the government’s ability to stabilise the aid budget as promised, and highlighted the fact that ongoing cuts to the budget jeopardise the goal of eradicating extreme poverty by 2015.82 The impact of the economic recession on Ireland’s ODA budget can be seen in the figures below:83 Year

2008

2009

2010

2011

2012

2013

Total ODA budget (€ millions)

920.7

722.2

675.8

657.0

628.9

637.1

% of GNP

0.59

0.55

0.53

0.50

0.47

0.46

80 Minister of State at the Department of Defence, Dáil Éireann Debates, 18 July 2013, Vol 812, No 2, unrevised, 12. 81 Tánaiste, Dáil Éireann Debates, 18 July 2013, Vol 812, No 2, unrevised, 13. 82 The Irish Association of Non-Governmental Development Organisations, Dóchas, ‘Reaction to Budget 2014: Six Years of Cuts in a Row—Overseas Aid Targeted for Further Cuts’, press release, 15 October 2013. 83 Figures from Irish Aid Annual Report 2013, 58.

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Nevertheless, reflecting Ireland’s long-standing focus on ‘forgotten crises’, in January the Minister of State, Joe Costello, TD, addressed the European Parliament and highlighted Ireland’s commitment to effective and timely delivery of humanitarian assistance. Minister Costello also told the parliamentarians that Ireland would work to build stronger links between emergency assistance and longer-term development programmes in order to support vulnerable populations to better prepare for and cope with crises. He noted: The complexity of crises such as those in the Democratic Republic of Congo requires both immediate strategies to provide life-saving humanitarian assistance and longer-term strategies to increase the ability of communities to withstand future shocks. An important element of our response is to anticipate, prevent and prepare for disasters.84

Meanwhile, speaking at the Africa–Ireland Economic Forum in University College Dublin’s Smurfit Business School in October, the Tánaiste highlighted the growth potential for Irish companies doing business in Africa and insisted it was time to move away from the donor–recipient relationship with Africa towards one of partnership and collaboration.85 During 2013, over 34 countries received overseas development assistance, including Irish Aid partner countries (Ethiopia, Lesotho, Malawi, Mozambique, Tanzania, Timor Leste, Uganda, Vietnam and Zambia), as well as to a range of other countries, in particular Liberia, Sierra Leone, South Africa and Zimbabwe. Humanitarian assistance was provided following natural disasters, in particular Typhoon Haiyan in the Philippines in November, and armed conflicts, including those in Mali, Syria, Gaza and the Central African Republic.86 In January, the Government of Uganda refunded €4 million of Irish Aid funding which had been misappropriated by staff within the Office of the Prime Minister. Welcoming the return of the funding, the Tánaiste stated: I am satisfied that this and other steps taken by the government of Uganda send a clear signal of their commitment to bring those involved to account and to improve their financial control systems. I believe that these measures will contribute to the government’s efforts to tackle corruption.87

Two major international conferences took place in Ireland during 2013, reflecting key priority areas for Irish international development policy, namely: global poverty, and hunger, nutrition and climate change. In February, the Forum of the World Alliance of Cities against Poverty took place in Dublin, with over 1,000 delegates representing 400 cities around the world. In opening the forum, Minister of State Joe Costello, TD highlighted the importance of good governance, which is essential to effectively tackle challenges that all cities face, such as better urban planning,

84 Irish Aid, ‘Minister Highlights Ireland’s Commitment to Humanitarian Assistance’, press release, 22 January 2013. 85 Department of Foreign Affairs and Trade, ‘Tánaiste Backs New Trade-Based Partnership with Africa’, press release, 3 October 2013. See also Department of Foreign Affairs and Trade, ‘Minister Costello in Kenya to Promote East Africa Trade Links’, press release, 8 December 2013. 86 Irish Aid Annual Report 2013, 63. 87 Irish Aid, ‘Tánaiste and Minister of State Welcome Refund of €4m Misappropriated in Uganda’, press release, 7 January 2013.

Correspondent Reports—Cubie 119 infrastructure, housing, public safety, unemployment and disaster risk reduction.88 The second major international conference of Ireland’s EU presidency took place in April, in collaboration with the Mary Robinson Foundation—Climate Justice. With over 350 delegates from 60 countries, the Hunger—Nutrition—Climate Justice conference provided a platform for grassroots producers, activists and civil society to share knowledge, ideas and experiences with politicians and policy-makers, including former US Vice-President Al Gore and Executive Director of the UN World Food Programme Ertharin Cousin, with the aim of strengthening approaches towards ending hunger and under-nutrition in the context of a changing climate.89 Following the conference, the Minister for Agriculture, Food and the Marine, Simon Coveney, TD, and the Minister of State, Joe Costello, TD, signed a three-year strategic partnership with the UN World Food Programme (WFP), setting out shared objectives in the area of humanitarian assistance, as well as committing Ireland to providing a minimum of €7 million a year to WFP for the next three years.90 Finally, following the public consultation launched in 2011 and conducted during 2012, in May 2013 the Tánaiste announced a new policy for international development, entitled One World One Future.91 The policy is based on seven core values: sustainability, effectiveness and results, equality, human rights, accountability, partnership, and coherence. It was intended to update the government’s position on international development to reflect global and national changes since the first Irish Aid policy was concluded in 2006. Six priority areas for action were identified, namely: global hunger, fragile states, climate change, trade and economic growth, essential services, and human rights and accountability.92 While the policy only contains one explicit reference to international law (a mention of international humanitarian law in regard to disarmament and mine action),93 the policy contains multiple references to human rights, concerning Ireland’s role in both promoting human rights and focusing resources on countries where human rights are most at risk. Moreover, the policy explicitly reaffirms the government’s commitment to the humanitarian principles of humanity, impartiality, neutrality and operational independence.94 Speaking at the launch, Minister of State Joe Costello, TD said: The new policy, One World, One Future presents a clear direction for Ireland’s development programme in the years ahead. In it, we set out our three new goals: reduced hunger and stronger resilience; sustainable development and inclusive economic growth; and finally better governance, human rights and accountability.

88 Irish Aid, ‘Minister Costello Opens Major Global Poverty Forum in Dublin’, press release, 20 February 2013. 89 Department of Foreign Affairs and Trade, ‘Hunger Nutrition Climate Justice Conference’, 18 April 2013. 90 Irish Aid, ‘Ireland Signs Three-Year €21m Partnership Agreement with UN World Food Programme’, press release, 15 April 2013. 91 Irish Aid, ‘Tánaiste Launches New Policy for International Development’, press release, 2 May 2013. 92 ‘One World, One Future’, above n 5, 13. 93 Ibid, 17. 94 Ibid, 16.

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In striving to achieve these goals across Government, we will not only tackle the effects of poverty, hunger and insecurity, but work to address its root causes, so that people can lift themselves out of poverty. We will put the values of sustainability, effectiveness, equality— including gender equality—human rights, accountability and partnership at the heart of our aid programme.95

95

‘Tánaiste Launches New Policy for International Development’, above n 91.

Irish Yearbook of International Law 2013 Correspondent Reports—O’Gorman

Ireland and the European Union 2013 RODERIC O’GORMAN*

IN T R ODU C T I ON

W

HILE THE FRENETIC pace of generating new treaties and legislation, and the resulting body of litigation, slowed down in 2013 from the pace of 2012, nevertheless the Eurocrisis continued to be the major preoccupation of the Union institutions and the Member States. The year saw legislative action to consolidate many of the reforms that had earlier been introduced. Entering into the final year of the bail-out programme, Ireland was engaged in a process of consolidation. However, cases taken before the domestic courts did result in the consideration of measures taken by the Irish government which, while not directly required by Union legislation, were nevertheless part of the national response to the wider economic collapse in the country. In light of these factors, this report is divided into two separate sections, with the first dealing specifically with the crisis. Section 2 discusses the broad range of Union policy issues that were litigated in the Irish courts or had an interest for Ireland, including environmental law, asylum, equal treatment of men and women, and taxation policy.

TH E E URO C R I S I S A ND I R ELA ND

Domestic Emergency Financial Legislation in the Courts After a number of years in which elements of the EU response to the Eurozone crisis featured extensively in the Irish courts, the focus of litigation in 2013 was on domestic measures, rather than on those directly mandated by the Union.1 In Hall v Minister for Finance, a businessman challenged the measures that the government had taken a number of years earlier to provide promissory notes valued in the tens of billions as part of the guarantees to shore up the Anglo-Irish Bank and other financial institutions.2 The promissory notes were undertaken on the basis of the Credit Institutions (Financial Support) Act 2008.3 The applicant argued that section 6 of the Act, which gave the Minister for Finance the power to provide financial support for certain financial institutions, was unconstitutional as the repayment of money to certain bodies *

Dublin City University. See S Coutts, ‘Ireland and the European Union 2012’ (2012) 7 Irish Yearbook of International Law 194. 2 Hall v Minister for Finance [2013] IEHC 39. 3 Credit Institutions (Financial Support) Act 2008, No 18 of 2008. 1

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under the promissory note was an appropriation of public money within the meaning of Article 17 of the Constitution, which required a vote of the Dail. Kearns P determined in the High Court that the applicant did not have locus standi to mount the challenge. He accepted the respondents’ arguments that TDs, as members of Dail Eireann, were best placed to assert that the minister had failed to seek their approval for the promissory notes, observing that the applicant had been in correspondence with at least two TDs who had given some consideration to mounting a challenge. As such, Kearns P was not prepared to find that the applicant fell within the exception to the strict rule of locus standii proposed by Henchy J in Cahill v Sutton, where the ‘rule of personal standing may be waived or relaxed if, in the particular circumstances of the case, the court finds that there are weighty countervailing considerations justifying a departure from the rule’.4 The Anglo-Irish Bank and the Irish Nationwide Building Society had been merged in 2011, with the assets and liabilities of both, including promissory notes, moving to the newly named entity: the Irish Bank Resolution Corporation.5 The status of the promissory notes was changed drastically on the night of 6–7 February, 2013 when the Dail debated and passed the Irish Bank Resolution Corporation Act, 2013.6 This legislation liquidated the IRBC and changed the promissory note into a 40 year bond.7 The legislation, which was rushed through in an all-night sitting of the Dail, was heavily criticised by a number of opposition TDs.8 Despite the demise of the promissory notes, there was a second challenge to their legality in 2013, this time undertaken by a Dail deputy (member of Parliament), Joan Collins, TD.9 While her argument were similar to those deployed by the applicant in Hall regarding the legality of section 6 of the Credit Institutions (Financial Support) Act 2008, she raised an interesting constitutional point in arguing that Article 11 implied an upper limit on the amount of money that could be apportioned by the government. A divisional court of the High Court rejected the range of arguments put forward. In contrast to the Hall decision, the state did not question the applicant’s locus standi in the case, as she was a TD. The court also determined that the liquidation of IBRC and the conversion of the promissory notes into bonds did not render the issue moot as ‘the Minister’s entitlement to issue bonds pursuant to s.17(1) of the 2013 Act was dependant,  inter alia, on whether the Anglo note was lawfully issued in the first place’.10 On the substantive issues, the court held that section 6 was not an unconstitutional delegation of power to the Minister in breach of Article 15.2 as ‘the discretion vested in him to give financial support to credit institutions is hemmed in by rigorous standards’, thus ensuring that the Cityview ‘principles and policies’ test was met.11

4

Cahill v Sutton [1980] IR 269, at 285. Credit Institutions (Stabilization) Act 2010, No 36 of 2010. 6 Irish Bank Resolution Corporation Act 2013, No 2 of 2013. 7 Irish Bank Resolution Corporation Act, 2013, s 17(1). 8 http://stephendonnelly.ie/promnight-speeking-on-the-irish-bank-resolution-corporation-bill-2013/. 9 Collins v Minister for Finance & others [2013] IEHC 530. 10 Ibid, para 133. 11 Ibid, para 109; Cityview Press Ltd v An Chomhairle Oiliuna [1980] IR 381. 5

Correspondent Reports—O’Gorman 123 The court noted that Article 17(2) of the Constitution did not include a requirement that the government state a particular figure when seeking Dail approval for an appropriation, but only that the purpose of the money be specified.12 More significantly, the court determined that if the argument put forward by Deputy Collins was accepted, ‘it would be constitutionally impossible for the Oireachtas to legislate for many social programmes without equally stipulating an advance upper limit on such spending in the law governing the programme in question’.13 Bearing in mind the range of emergency financial measures that Irish governments had to make in the course of the economic crisis, the Court held that the welfare of the entire citizenry is hugely dependent on the capacity of the State to be able to raise money without hindrance on international markets. This is yet a further practical reason why the term ‘appropriation’ in both Article 11 and Article 17 cannot be understood or read in the manner suggested by the plaintiff.14

Exiting the Bail-Out In December 2013, Ireland became the first of the EU Member States to successfully exit a bail-out programme. At this point, Ireland entered a ‘post-programme surveillance’, which will apply until three quarters of the money loaned from the various sources is paid back. The country is also subject to the Macroeconomic Imbalance Procedure.15 While broadly positive on the progress made by the Irish economy, the final Troika (comprising the European Central Bank, the European Commission (the Commission) and the International Monetary Fund (IMF)) mission review made a number of points regarding the slow pace of achieving certain mandated reforms.16 It was particularly critical of the failure to make any genuine progress towards the enactment of the Legal Services Regulation Bill, 2011, which had been lingering in an Oireachtas Committee for a substantial period of time.17 It also noted the slow pace of implementing water charges, and was critical of the fact that the newly established Irish Water would provide water services to local authorities via a service level agreement for up to 12 years and that the level of Exchequer support still had not been determined.18 Perhaps more importantly, the Troika indicated dissatisfaction with the manner in which some of the fiscal reform required under the Stability Treaty had been implemented.19 This treaty, which had been given constitutional recognition via an amendment to Article 29 in 2012, was seen as a means of limiting the risk of exces-

12

Collins, ibid, para 117. Ibid, para 119. Ibid, para 124. 15 European Parliament & Council Regulation 1176/2011 on the prevention and correction of macroeconomic imbalances [2011] OJ L306/25. 16 ‘The Economic Adjustment Programme for Ireland Winter Autumn 2013’, European Economy Occasional Papers 167 (European Commission, December 2013). 17 Ibid, 6. 18 Ibid, 34. 19 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. 13 14

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sive national deficits through implementing medium-term budgetary objectives and a balanced-budget rule.20 The Ministers and Secretaries (Amendment) Act, 2012 was introduced to grant a legislative basis to the requirement for medium-term expenditure ceilings. It meant that the government had to set spending limits for each of the three years following the specific financial year it was preparing a budget for. In its final report, the Troika noted that these ceilings [fall] short of the letter and spirit of the EU requirements and recommendations (formulated under the Fiscal Frameworks Directive and the EPC policy advice). In particular, the expenditure ceilings are not immune from discretionary changes and cover a different aggregate than the EU expenditure benchmark.21

In particular, concern was expressed about the appropriateness of using ministerial circulars to ensure that the yearly ceilings set would actually be binding.22 The Troika confirmed its concerns by pointing to the fact that the Irish government had decreased its existing committed expenditure reduction from its Budget 2014, by €0.4 billion.

Economic Governance The Eurozone crisis has made clear the need to introduce major reforms of the financial governance of the European Union, with the inbuilt failures of the Stability and Growth Pact coming in for particular criticism.23 The Stability Treaty was part of these reforms, but had to be designed in the form of a public international treaty due to the refusal of the United Kingdom and the Czech Republic to permit an amendment of the Union Treaties. At the same time, and complimentary to the provisions of the Stability Treaty, reforms were being proposed to the secondary legislation that underpinned the Stability and Growth Pact. The first programme of these, the socalled ‘Six-Pack’ of regulations and a directive, was implemented in 2011.24 This was followed in 2013 by the ‘Two-Pack’ pair of regulations. These were designed to enhance the ability of Eurozone Member States to supervise budgetary 20 Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill 2012. For a discussion of whether Ireland properly implemented the provisions of the Stability Treaty, see R O’Gorman, ‘An Analysis of the Method and Efficacy of Ireland’s Incorporation of the Fiscal Compact’ in M Adams, F Fabbrini and P Larouche (eds), The Constitutionalization of European Budgetary Constraints (Oxford, Hart Publishing, 2014). 21 The Economic Adjustment Programme for Ireland, above n 16, 48. 22 Ibid, 25. 23 I Maher, ‘Economic Policy Coordination and the European Court: Excessive Deficits and ECOFIN Discretion’ (2004) 29(6) European Law Review 831; R Goebel, ‘Economic Governance in the European Union: Should Fiscal Stability Outweigh Economic Growth in the Stability and Growth Pact’ (2007–08) 31 Fordham Law Journal 1266. 24 Parliament & Council Regulation 1175/2011 amending Regulation (EC) No 1466/97 on the Strengthening of Budgetary Surveillance and Coordination of Economic Policies [2011] OJ L306/12; Council Regulation 1177/2011 amending Regulation (EC) No 1467/97 Regarding Speeding Up and Clarifying the Implementation of the Excessive Deficit Procedure [2011] OJ L306/33; Regulation (EU) No 1173/2011 of the European Parliament and Council on the Effective Enforcement of Budgetary Surveillance in the Euro Area [2011] OJ L306/1; Parliament & Council Regulation 1176/2011 on the Prevention and Correction of Macroeconomic Imbalances [2011] OJ L306/25; Parliament & Council Regulation 1174/2011 on Enforcement Measures to Correct Excessive Macroeconomic Imbalances in the Euro Area [2011] OJ L306/8; Council Directive 2011/85 on the Requirements for the Fiscal Framework of the Member States [2011] OJ L306/41.

Correspondent Reports—O’Gorman 125 policy being pursued by their colleagues, over and above that provided for under the Stability and Growth Pact. The regulations are colloquially referred to as ‘Regulation 1’ and ‘Regulation 2’, with the former setting out a broad requirement that Eurozone states submit their draft national budgets to the European Commission for an opinion prior to 15 October each year, and await the result of this opinion before the budget is debated further.25 Regulation 2 has specific application to Eurozone states that are experiencing or threatened with economic difficulties undermining their financial stability.26 The Commission may decide to subject such a state to ‘enhanced surveillance’.27 It must extend enhanced surveillance to any state getting financial assistance on a precautionary basis from one or several other Member States or third countries, the European Financial Stabilisation Mechanism, the European Stability Mechanism, the European Financial Stability Facility or the IMF.28 The regulation sets out a range of extra reporting and implementing obligations that the Member State owes to the Commission and to the European Central Bank.29 As a country exiting the bail-out programme, Ireland falls under this enhanced surveillance until 75% of the money borrowed has been repaid.30

P OLI C Y A R EA S

Policies pursued in Ireland within a wide range of Union competences came before national courts and the Court of Justice of the European Union (CJEU) during 2013. The widespread engagement of bodies other than the superior courts with the Article 267 TFEU preliminary ruling mechanism is demonstrated in references coming from the Equality Tribunal and the District Court. A number of the cases raise the possibility of Ireland incurring a financial cost for its failure to properly implement Union law, whether through a Commission-mandated fine or through the state liability in damages doctrine. While most of the focus is placed on decisions of the Court of Justice, Advocate General opinions in two very significant cases are also reviewed, with the final judgments to be addressed in the 2014 report.

Consumer Rights The obligations on airliners to provide for their passengers in the event that flights are delayed for extraordinary reasons was clarified in McDonagh v Ryanair Ltd.31 This case sprang from the major disruption that was suffered throughout Europe due to 25 Regulation (EU) No 473/2013 of the European Parliament and of the Council on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area [2013] OJ L140/11. 26 Regulation (EU) No 472/2013 of the European Parliament and of the Council on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability [2013] OJ L140/1. 27 Art 2(1). 28 Art 2(3). 29 Art 3(3)–(4). 30 Art 14(1). 31 Case C-12/11 McDonagh v Ryanair Ltd.

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the explosion of the Icelandic Eyjafjallajökull volcano. The applicant was stranded in Portugal for eight days as a result of flight cancellations by her carrier, Ryanair. She claimed the sum of €1,130 from the airline as compensation for her accommodation, food and transport during this period. The case was referred from the district court under Article 267 TFEU, regarding the interpretation of the Regulation No  261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.32 Ryanair argued that the event of the eruption was not ‘extraordinary circumstances’ as per Recitals 15 and 16 of the regulation, whereby passengers were entitled to receive care from the airline under Articles 5 and 9. Rather, Ryanair argued that the volcanic eruption constituted ‘super extraordinary circumstances’, which released it from its obligations under the legislation.33 Noting the lack of an explicit definition of ‘extraordinary circumstances’ in the regulation, the court determined that in the context of airline travel, it referred to ‘an event which is not inherent in the normal exercise of the activity of the carrier concerned and is beyond the actual control of that carrier on account of its nature or origin’.34 It further noted that the regulation gave no indication that it ‘recognises a separate category of “particularly extraordinary” events, beyond “extraordinary circumstances” referred to in Article 5(3) of that regulation, which would lead to the air carrier being exempted from all its obligations’.35 To accept the argument of Ryanair would have been to accept that  air carriers had to provide care pursuant under the regulation to passengers who find themselves in a situation of limited inconvenience due to cancellation of a flight, but that passengers such as the plaintiff, who find themselves in a particularly vulnerable state due to a major issue, would be denied that care.36 As such, the respondent’s argument was rejected and the delays attributed to the eruption were found to constitute extraordinary circumstances. The CJEU also rejected the attempt by Ryanair to have limitations placed on the time and value of the care it was required to supply. While the regulation did release an airline from its obligation to provide compensation for the cost of the flight in the event of extraordinary circumstances, this did not apply to the duty to provide care under Article 9 of the regulation.37 This obligation applied for the whole period during which the passengers were awaiting re-routing, and no temporal or monetary limit was provided for.38

Social Rights of Workers The decision of Hogan v Minister for Social and Family Affairs dealt with a number of employees of Waterford Crystal Ltd, whose pension entitlements were put at risk 32 Regulation (EC) No  261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 [2004] OJ L46/1. 33 McDonagh, above n 31, para 16. 34 Ibid, para 29. 35 Ibid, para 30. 36 Ibid, para 33. 37 Ibid, para 38. 38 Ibid, paras 40–41.

Correspondent Reports—O’Gorman 127 due to a significant financial deficit in the occupational pension scheme that they had joined as a condition of their employment in the company.39 Under Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer, the Member States have an obligation to protect the interests of workers and former workers to draw pensions or other benefits in the event that their employer becomes insolvent.40 In its decision in Robins and Others, the CJEU had determined that a Member State would not have met this obligation if an employee did not receive at least 49% of the expected value of their pension in the event of insolvency.41 While the actuaries employed by both sides differed on their estimation of what the Waterford Crystal employees would obtain from the pension scheme, the maximum estimate was 41%.42 Ireland had not changed its domestic legislation since the Robins case; in fact, the only domestic law relevant to the transposition of the directive was from 1980 and had a very narrow application.43 The court rejected the argument advanced by the Irish government that the national state pension should be taken into account in determining the proportion of their original pension entitlement that workers would receive. The provision of the directive applied to occupational pension schemes and specifically stated that it applied outside of the national social security schemes.44 The fact that the formula for calculating the final benefit under the occupational pension scheme in question involved subtracting the sum of the state pension scheme from the final salary of the employee made no difference to the situation.45 The court stated that the reasons for the insolvency of the pension scheme were not relevant to the provisions of Article 8 of the directive, which places a general obligation on the Member States to protect the entitlements of employees.46 The Irish authorities attempted to make an argument that the economic situation in Ireland should be taken into account in determining whether they had fulfilled their obligations under the directive and could justify a lower level of protection for employees. The court noted the discretion that Member States had in fulfilling their obligations, particularly as, under Recital 3 of the Preamble to the directive, it can take account of the ‘need for balanced economic and social development in the Community’. However, the court stated that while there was flexibility provided by Recital 3, it had been determined in the Robins case that a failure to provide less than half of the expected pension would fail to meet the obligation under Article 8.47 The court also determined that Ireland’s failure to take action following the Robins decision constituted a ‘sufficiently serious breach’ of Union law, giving rise to state liability in damages.48

39 Case C-398/11 Hogan and others v Minister for Social and Family Affairs, Ireland and the Attorney General. 40 Directive 2008/94/EC of the European Parliament and of the Council on the protection of employees in the event of the insolvency of their employer [2008] OJ L283/36. 41 Case C-278/05 Robins and Others [2007] ECR I-1053. 42 Hogan and others, above n 39, para 18. 43 Ibid, para 13. 44 Ibid, para 29. 45 Ibid, para 31. 46 Ibid, para 38. 47 Ibid, paras 42–43. 48 Ibid, para 52.

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Equal Treatment of Men and Women In its decision in  Kenny & others v Minister for Justice, the CJEU had to address a claim concerning alleged pay discrimination on gender grounds between members of An Garda Siochana and civil servants assisting them.49 Successive governments have followed a policy of ‘civilianisation’, through which Gardaí engaged in clerical and administrative duties are replaced by civil servants, permitting the former to take on more frontline duties. The result of this was to create a situation whereby certain Gardaí who had continued to undertake administrative work (classified as ‘designated posts’) ended up doing the same work as the civilian servants beside them, but on higher rates of pay. Under existing jurisprudence dealing with equal pay, the CJEU undertakes a two-step process to determine a breach by the employer. Initially, the worker has to demonstrate that he/she receives less pay than a comparator. Then it has to be proved that the comparator is doing the same work, or work of equal value, as the worker.50 In this case, the applicant civil servants, all female, contended that the primarily male Gardaí were doing the same work as they were but were being paid more, and that this amounted to a prima facie case of indirect pay discrimination. The High Court referred a number of questions to the CJEU regarding the correct interpretation of  the Equal Pay Directive and, in particular, the use of an objective justification for the difference in pay.51 Before addressing these, however, the court devoted an extensive portion of its judgment to the issue of whether the two groups of workers were actually engaged in the same work or work of equal value. It set out a range of relevant factors to be considered, such as the nature of the work, the training required and the working conditions.52 In applying these, the court placed significant emphasis on the difference in professional qualifications between the Gardaí and the civil servants.53 It also noted the submission of the Irish government that those Gardaí in ‘designated posts’ could also be called upon to work in frontline duties.54 In answering the questions referred, the CJEU gave some clarifications in relation to defending a prima facia discriminatory pay policy via an objective justification. It determined that an employer has to give the objective justification for the overall difference in pay itself, which cannot be related to reasons of gender. As such, reasons related to the different rates paid internally within the two comparator groups would be insufficient.55 In relation to the composition of the comparator groups being used to measure difference in pay, the court held that these could not have been brought together in an arbitrary fashion, engineered specifically to prove the allegation of difference in pay. Rather, these groups must be statistically significant and be recognisable on more than just a short-term basis.56 49

Case C-427/11 Kenny & others v Minister for Justice. See Case C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535. 51 Directive 75/117/EEC on the application of the principle of equal pay for men and women [1975] OJ L45/19. 52 Kenny & others, above n 49, para 27. 53 Ibid, para 30. 54 Ibid, para 33. 55 Ibid, para 41. 56 Ibid, paras 43–44. 50

Correspondent Reports—O’Gorman 129 On the final issue of whether the Minister for Justice was entitled to use the ‘interests of good industrial relations’ as an objective justification, in a similar vein to the Enderby case, the court held that this could form an element of the reason for the pay differential, but could not be the only justification for this.57 This author has argued elsewhere that the fact that the CJEU spent a very significant portion of its ruling addressing the comparator issue, even when this was not referred as a question, suggests that it was signalling to the national court that the civil servants and the Gardaí were not undertaking the same work or work of equal value.58 The judgment is a good example of the court’s efforts to use the Article 267 TFEU process to shape the result in the national court, going beyond the questions actually referred. In his opinion in the Z case, Advocate General Wahl had to address whether Union equal treatment legislation gave a woman whose genetic child had been born via surrogacy an entitlement to take the equivalent of maternity or adoption leave from her employer.59 The applicant, who was a teacher in a public school in Ireland, was unable to sustain a pregnancy and had her genetic child through a surrogacy agreement. At the time of the case, there was no specific regulation of surrogacy agreements in Ireland. After the birth of her child, the applicant was refused maternity leave from her employer. Her case was referred to the CJEU from the Equality Tribunal. The Advocate General determined that the applicant did not fall within the category of women protected by the provisions of the Pregnancy Directive, which provides for maternity leave under Union law. He noted the emphasis within the directive on its provisions applying to women who had given birth to a child and that its purpose was to ‘protect a woman’s biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth’.60 However, the creation of this special bond could not be given an independent significance as otherwise the directive could not be ‘meaningfully limited only to women who have given birth, but would necessarily also cover adoptive mothers or indeed, any other parent who takes full care of his or her new-born child’.61 The Advocate General also determined that the applicant’s situation did not fall to be covered by Directive 2006/54 on equal treatment between men and women. He distinguished the Mayr case, where a woman had successfully argued a violation of Directive 2006/54 on the basis of being fired while undergoing IVF treatment, as this treatment only affects women and therefore the dismissal constituted discrimination on the grounds of sex.62 However, Z’s treatment was not based on her gender, but rather on the fact that the Irish authorities would not treat a woman entering into a surrogacy agreement the same way that they treated a woman who had given birth or adopted. The Advocate General noted that a father of a child born through such an agreement would equally be unable to rely on Directive 2006/54.

57

Ibid, para 48–50. Case C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535. http://humanrights.ie/international-lawinternational-human-rights/civilianisation-of-the- gardai-andequal-pay-kenny-v-minister-for-justice/. 59 Case C-363/12 Z v A Government Department and the Board of Management of a Community School. 60 Ibid, para 45 of the opinion. 61 Ibid, para 47 of the opinion. 62 Case C-506/06 Mayr [2008] ECR I-1017. 58

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Finally, the Advocate General rejected the argument that the treatment of the applicant amounted to discrimination on the basis of disability in contravention of Directive 2000/78.

Union Citizenship In Ogieriakhi v Minister for Justice & Ors, Hogan J referred a number of questions to the CJEU about Ireland’s transposition of the Citizenship Directive into domestic law and whether the alleged inadequacy of the transposition gave rise to state liability in damages.63 The applicant was a Nigerian national who had sought asylum in Ireland in mid-1998. In mid-1999 the applicant married a French citizen, Ms Georges, who was at that time living in Ireland. This relationship broke up in 2001 and the couple were divorced in 2009. In 2001, the applicant started to live with an Irish woman, Ms Madden. They married in 2009, shortly after his divorce came through. Mr Ogieriakhi had been dismissed from his job as an An Post sorter in 2007. This was solely due to a determination from the Minister for Justice that, as he was not an EEA national, he did not have a legal right to work in Ireland without a work permit. The applicant argued that, due to his original marriage to Ms Georges and the fact that they lived together from 1999 to 2001, he had acquired the right of permanent residence as the spouse of a Union citizen who had lived in the state for five years, under Article 16(2) of the Citizenship Directive. Key to determining the applicant’s situation was the decision of the CJEU in Lassal.64 Here, the court determined that, in order to meet the requirements of five years’ continuous residence by a Member State national to meet the requirements of Article 16(1) of the Citizenship Directive, periods of residence prior to the entry into force of that directive had to be taken into account. Mr Ogierikhi argued that this meant Ms Georges fell within Article 16(1) and that when he married her he gained the rights of Article 16(2) as her spouse. Counsel for the State argued that, in light of the decisions of the CJEU in the Dias and Ziolkowski cases, in order for the Union national to be able to claim five years’ continuous residency that included time prior to the entry into force of the Citizenship Directive, the Union citizen’s residency had to be legally valid under the pre-existing legislation, namely Regulation 1612/68.65 In examining Ms Georges’ legal status under Regulation 1612/68, Hogan J was clearly satisfied that she met the requirement of being a worker within the meaning of the regulation.66 He then looked at the other requirement under Article 10(2) of the regulation, that the worker must have normal family housing available. While taking account of the fact that the applicant and Ms Georges had separated suddenly and commenced living separately, Hogan J referred to

63 Ogieriakhi v Minister for Justice & Others [2013] IEHC 133. Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L229/35. 64 C-162/01 Secretary of State for Work and Pensions v Lassal [2010] ECR I-000. 65 Case C-325/09 Secretary of State for Work and Pensions v Dias [2011] ECR I-000; Case C-424/10 Ziolkowski v Land Berlin [2011] ECR I-000; Regulation (EEC) No 1612/68 of the Council on freedom of movement for workers within the Community [1968] OJ L257/ 2. 66 Ogieriakhi, above n 63, para 52.

Correspondent Reports—O’Gorman 131 CJEU decisions in Ditta and Commission v Federal Republic of Germany, concluding that compliance with Article 10(2) would appear to be assessed at the time when the spouse initially takes up residence with the Union worker, but not necessarily at all times after this.67 However, as the wider issue of compliance with the pre-Citizenship Directive legislation had in his view never been fully considered by the CJEU, Hogan J decided to refer a question on the matter under Article 267 TFEU. The response of the Court of Justice to this question would answer the issue of whether the applicant’s residency in Ireland was legal or not in 2006, and consequently resolve whether he should have been dismissed from work or not. However, the state argued that even if his residency should have been recognised in 2006, the failure of the state to do this would could not give rise to state liability in damages, as the breach was not obvious. Hogan J argued that this was a factor relevant to determining if the breach was sufficiently serious, as per the Francovich and Brasserie du Pecheur criteria.68 In light of this, Hogan J referred questions to the CJEU regarding the need for continuous five year residence under the Citizenship Directive and the requirement to have a family home under Article 10(3) of Regulation 1612/68. He also referred a third question about whether the very fact that he needed to make an Article 267 TFEU reference on the question of right of residence should be considered in the determination of whether the breach of Union law was obvious for the purpose of determining state liability in damages.69

Environmental Law Following on from a significant number of negative rulings on environmental law issues from the Court of Justice in 2012, Ireland was a respondent in fewer cases in 2013. In the Galway By-Pass case, the CJEU examined the application of provisions of the Habitats Directive to a plan to build an outer-bypass road around Galway city.70 This project entailed disturbance to the Lough Corrib Site of Community Interest (SCI) as defined under the directive, and would have involved the destruction of some limestone pavements (a priority habitat type in Annex I of the Habitats Directive). An Bord Pleanala affirmed planning permission for the development. The applicant appealed this decision to the High Court, arguing that An Bord Pleanala had misinterpreted Article 6(3) of the Habitats Directive regarding its assertion that the development would not impact on the overall integrity of the site concerned.71 67 Ibid, para 60; Case 267/83 Diatta v Land Berlin [1985] ECR 567; Case C-249/86 European Commission v Federal Republic of Germany [1989] ECR 1263. 68 Ogieriakhi, above n 63, paras 64–65. 69 A decision on the Art 267 TFEU reference was given by the Court of Justice in July 2014 and will be discussed in the Report for 2014. 70 Case C 258/11 Peter Sweetman, Ireland, Attorney General and the Minister for the Environment, Heritage and Local Government v An Bord Pleanála [2013] 3 CMLR 16; Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 71 Art 6(3): ‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or

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The applicant, an environmental activist, argued that the project should have proceeded under Article 6(4) of the Habitats Directive, which, due to the presence of a priority habitat on the site, would have required an opinion from the European Commission. Interestingly, the Minister for Environment John Gormley joined the case against An Bord Pleanala.72 The arguments were rejected in the High Court, but on appeal to the Supreme Court a number of questions were referred to the CJEU regarding the interpretation of the relevant provisions of the directive. The Court of Justice noted that, in order to ensure the integrity of the site was not impacted, it needed to be maintained at a favourable conservation status and that those elements of the site that were relevant to the protection of the particular habitat were given lasting protection.73 As such, it determined that permission for a development could only proceed under Article 6(3) if the Bord was ‘certain that the plan or project will not have lasting adverse effects on the integrity of that site. That is so where no reasonable scientific doubt remains as to the absence of such effects.’74 This strong approach was based on an inclusion of the precautionary principle within the analysis.75 The court continued that, where an analysis was carried out under Article 6(3) and it was determined by the national authority, the development will lead to the lasting and irreparable loss of the whole or part of a priority natural habitat type whose conservation was the objective that justified the designation of the site concerned as an SCI, the view should be taken that such a plan or project will adversely affect the integrity of that site.76

Any development to which such a view applied could not proceed under Article 6(3), but would instead have to follow the procedure outlined in Article 6(4). The decision represents an important clarification of the ability of a public authority to choose between proceeding on the basis of Article 6(3) or 6(4) of the Habitats Directive. By giving the phrase ‘adversely affect the integrity of the site’ a strongly proprotection interpretation, the court ensures that more projects will have to undertake the more rigorous approval through Article 6(4). Where a priority habitat is present and will be impacted negatively by the project, that project can only go ahead for reasons of human health, public safety or beneficial environmental consequences. An exception can be made for reasons of overriding public interest, but this requires an opinion from the Commission. As such, the decision in this case will potentially move more projects from Article 6(3) to 6(4) and will require that they be examined under the more rigorous regime required.77

project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’ 72 www.antaisce.org/articles/taisce-welcomes-landmark-decision-european-court-justice-regarding-galwaybypass. 73 Sweetman, above n 69, para 39. 74 Ibid, para 40. 75 Ibid, para 41. 76 Ibid, para 46. 77 Some doubts have been expressed about exactly how rigorous the final Commission examination pursuant to Art 6(4) actually is. See L Kranmer, ‘The European Commission’s Opinions under Art 6(4) of the Habitats Directive’ (2009) 21 Journal of Environmental Law 59.

Correspondent Reports—O’Gorman 133 In Commission v Ireland, the failure to properly implement the provisions of the Integrated Pollution Prevention and Control (IPPC) Directive in the context of intensive pig and poultry farms led to Ireland being brought before the Court of Justice.78 Article 5(1) of this legislation placed an obligation on Member States to ensure that all relevant farms that existed prior to 30 October 1999 were to have an IPPC licence. This process needed to be completed by 30 October 2007.79 At this point, the Commission wrote to all Member States highlighting the need for existing installations to have IPPC licenses. When Ireland informed the Commission that there were a significant number of farms operating without the relevant licences, it began the early stages of Article 258 TFEU enforcement proceedings. The issue was narrowed down to the continued operation of 13 farms without a licence, against which the Irish government had taken no action. By the time the case came for hearing, the Irish government argued that the situation at only three of these farms still needed to be addressed. Ireland’s defence was limited to an argument that the Environmental Protection Agency had informed those operating the various farms that they had an obligation to get an IPPC licence. The court found that Ireland had breached Article 5(1) of the IPPC Directive, stating that it is only if the Member States carry out the obligations imposed on them by that directive fully and in accordance with that directive that the objective of protection may be achieved.80 Rejecting the Irish position that only three farms continued to be in breach by the stage the case came for hearing, the court emphasised that the time at which compliance was to be assessed was at the end of the period stated in the reasoned opinion given by the Commission to the Member State.81

Taxation in the Internal Market In Commission v Ireland, the European Commission challenged the regime whereby Irish persons who were registered as disabled drivers were entitled to claim a rebate on excise duty levied on fuel for motor vehicles which they use as a driver or passenger.82 An individual could claim this rebate on up to 600 gallons of fuel while a disability organisation could claim it on up to 900 gallons for any vehicle they operated.83 The Commission argued that this exemption was in breach of the Directive on the taxation of energy products and electricity.84 The directive contained provisions requiring minimum levels of taxation on energy products, which were designed to remove

78

Case C-158/12 Commission v Ireland. Directive 2008/1/EC of the European Parliament and of the Council concerning integrated pollution prevention and control [2008] OJ L24/8. 80 Commission v Ireland, above n 78, para 22. 81 Ibid, para 23. 82 Case C-55/12 Commission v Ireland. 83 Disabled Passengers (Tax Concessions) Regulations, 1994. 84 Council Directive 2003/96/EC of 23 October 2003 restructuring the Community framework of taxation of energy products and electricity [2003] OJ L283/51, as amended by Council Directive 2004/74/EC [2004] OJ L195/26. 79

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appreciable differences in the energy taxation levels between Member States which might affect the operation of the internal market.85 The Commission had initiated the pre-litigation phase of Article 258 TFEU in September 2008, with a letter of formal notice indicating that Ireland had not provided evidence of its compliance with the directive. Ireland deferred undertaking the required measures to remove the exemption over a number of years, which led the Commission to bring the action to the Court of Justice. The court determined that Ireland had originally enjoyed an exemption from the minimum taxation provisions of the directive with respect to excise duty on fuel used by disabled drivers, but this had expired in December 2006.86 The court rejected the argument put forward by the Irish government that the total amount of excise duty imposed on fuel exceeded the minimum tax requirements of the directive.87 It noted that while the directive gave permission to grant a refund like that provided for in Ireland under Article 6(c), this could only be done on the basis of a derogation, which Ireland had lost after 2006.88 The court also rejected Ireland’s argument regarding the Commission’s own failure to extend the derogation at Ireland’s request. It unsurprisingly stated that a Member State could not unilaterally decide to ignore the terms of the directive because the Commission had rejected a request for a derogation through the process set out in the legislation.89

Fundamental Rights Although the decision of the Court of Justice would only be issued in 2014, the opinion of Advocate General Cruz Villalón in Digital Rights Ireland was an important consideration of fundamental rights protection post the incorporation of the Charter of Fundamental Rights (the Charter).90 This was a joined case in which provisions of the Data Retention Directive were being challenged in litigation before the Irish High Court and the Austrian Constitutional Court.91 The applicants claimed that the directive infringed a range of rights protected within the Charter, including the right to privacy (Article 7) and the right to the protection of personal date (Article 8). The purpose behind the directive itself was to impose on economic operators an obligation to collect and retain significant quantities of data generated or processed in connection with electronic communications done by citizens throughout the territory of the Union. This date would subsequently be available for the investigation and prosecution of serious criminal activities, and also to ensure the proper functioning of the internal market. 85

Recitals 3 and 4. Commission v Ireland, above n 82, para 31. Ibid, para 35. 88 Ibid, para 37. 89 Ibid, para 43. 90 C-293/12 Digital Rights Ireland. 91 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54. 86 87

Correspondent Reports—O’Gorman 135 The Advocate General found that: the collection and, above all, the retention, in huge databases, of the large quantities of data generated or processed in connection with most of the everyday electronic communications of citizens of the Union constitute a serious interference with the privacy of those individuals, even if they only establish the conditions allowing retrospective scrutiny of their personal and professional activities.92

As such, the proportionality of the directive’s impact on the right to privacy had to be examined. The key aspects of the Advocate General’s decision focused on the proportionality of the directive under Article 5(4) TFEU and under Article 52(1) of the Charter. With regard to the former, the Advocate General determined that the directive constituted a proper way of ensuring the objective of the proper functioning of the internal market and was necessary to harmonise technical differences between the Member States.93 However, the intensity of the intervention in the area of regulation of fundamental rights, particularly privacy, which the directive requires of the Member States was ‘manifestly disproportionate to the objective relating to the need to ensure the functioning of the internal market which the directive predominantly pursues’.94 In relation to the impact of Article 52(1) of the Charter, the Advocate General undertook a detailed examination of the requirement that the limitation on rights be provided for by law. While accepting that the directive formally constituted a provision in law, he stated that he was mandated under Article 52(3) to adopt an approach close to that of the European Court of Human Rights and that this required him to engage in more than just a formal analysis of the requirement. This revealed that while the directive did impose an obligation on Member States to collect and store data, it did not ‘lay down the safeguards which must govern access to the retained data and their use’.95 The Advocate General stated that the Union legislature could not, when creating legislation that would interfere with the fundamental rights of citizens, leave it to the Member States in implementing that legislation to define guarantees that would be used to justify the interference. A failure to, at minimum, set out the principles that would govern the definition, establishment, application and review of observance of the guarantees would undermine the provisions of Article 52(1) of the Charter.96 The Advocate General also examined the principle of proportionality as it applied specifically under Article 52(1). Significantly, he found that the principle acquires, in the context of the Charter, a particular force which it does not have under Article 5(4) TEU.97 In examining Article 6 of the directive, which provided a time period of between six months and two years for the retention of data, the Advocate General determined that the two year period constituted a disproportionate breach of the right to privacy in violation of Articles 7 and 52(1) of the Charter. While accepting that some retention of data would be permissible, he stated that he had not been convinced 92

Digital Rights Ireland, above n 90, para 72 of the opinion. Ibid, paras 98–99 of the opinion. Ibid, para 100 of the opinion. 95 Ibid, para 113 of the opinion. 96 Ibid, paras 123–24 of the opinion. 97 Ibid, para 133 of the opinion. 93 94

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by the arguments submitted that there was a justification for holding this data for more than a year.98

C ONC LU S I ON

Ireland’s exit from the bail-out programme and its improved economic performance in 2013 suggest the normalisation of its relationship with the European Union after four years in which this relationship was both the cause of and a solution to major economic and political turmoil. Challenges to domestic measures introduced during this period have failed to find that the government acted unlawfully, although undoubtedly the political legitimacy of these actions will continue to be called into question. The requirements of post-programme surveillance ensure that the Union will have significant engagement in the country’s budgetary and fiscal decisions into the medium term. However, the passing of the Two-Pack legislation, following on from measures adopted previously, indicates that for all those states within the Eurozone, the economic crisis has irrevocably changed their budgetary processes and strengthened the Union’s influence within each state. Case law emanating from Ireland continues to raise important legal issues for the entire Union. As the Pringle judgment in 2012 determined the fate of the European Stability Mechanism,99 similarly the Digital Rights Ireland decision raises key questions about the fundamental rights regime created by the Charter and the proportionality analysis that will be applied to Union legislation that is seen to restrict individual rights.

98 99

Ibid, para 149 of the opinion. Case C-370/12 Pringle v Government of Ireland and others.

Irish Yearbook of International Law 2013 Correspondent Reports—Dickson

Human Rights in Northern Ireland in 2013 BRICE DICKSON*

IN T R ODU C T I ON

T

O FACILITATE COMPARISON, this report has been structured in a similar way to that used for the 2012 report. It also draws upon the same sources, but gives even greater prominence to case law since it is not as well covered in the review of human rights for 2013, which is already to be found in the ‘Annual Statement’ of the Northern Ireland Human Rights Commission.1

PRO TE CTIN G H UMAN RIGHT S A MI DS T NOR T HER N I R ELA ND’S P O L IT I C A L PR OBLEMS

Many outside observers assume that, because the level of politically motivated violence has dramatically decreased in Northern Ireland in recent years, the environment within which further progress can be made on human rights issues there is very favourable. In fact, partly on account of the mandatory power-sharing arrangements put in place under the Belfast (Good Friday) Agreement of 1998 and the St Andrews Agreement of 2006, and particularly ever since the two political parties which were previously seen as representing the more extreme elements of unionism and nationalism gained the electoral upper hand within each of their respective communities in 2007,2 the chances of securing cross-community consensus on the way forward on human rights issues are not high. The end of 2013 saw the failure of all-party talks on three issues which continued to divide the politicians most deeply: the display of flags, the regulation of parades and the mechanisms for dealing with the past.3 The relative disengagement of the British and Irish governments from ‘the peace process’ meant that pressure from those quarters was no longer being exerted on rights and equality issues in the way that it used to be. Northern Ireland’s equality laws now trail behind those in the rest of the UK, there is no longer any talk about introducing a Bill of Rights for Northern * 1

Queen’s University Belfast. www.nihrc.org/uploads/publications/105282_NIHRC_Annual_Statement_BOOK_4_LOW_FOR_WEB.

pdf. 2 The Democratic Unionist Party won 36 seats as opposed to the Ulster Unionist Party’s 18; Sinn Féin won 28 seats as opposed to the Social Democratic and Labour Party’s 16. 3 For the draft agreement that could not achieve cross-party consensus see www.northernireland.gov.uk/ haass.pdf.

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Ireland, and the innate conservatism of local political representatives in Northern Ireland (from both sides of the divide) means that it is difficult to achieve reform on issues such as discrimination against LGBT people, women’s reproductive rights and the right of parents to choose to send their children to religiously integrated schools. The first three of the 10 key points highlighted in the Community Relations Council’s invaluable ‘Northern Ireland Peace Monitoring Report 2013–14’ are that ‘the moral basis of the 1998 peace accord has evaporated’, ‘the absence of trust has resulted in an absence of progress’ and ‘there has been some increase in polarisation’.4 At the start of 2014, the differences of opinion over flags and parades seemed particularly intractable, and the most likely to result in unrest on the streets. In 2013, the Northern Ireland Human Rights Commission (NIHRC) submitted four papers to the Haass talks5 and there is some evidence that they influenced the draft agreement, which, unfortunately, did not achieve consensus but to which the political parties were committed to return during 2014. In particular, the Commission’s overview of transitional justice mechanisms already in place in Northern Ireland is very useful and its plan of action looks promising.6 It aims to build on recommendations of relevant UN bodies and engage with political society. The Commission is focused on ensuring that the rights of victims are given high prominence, but it also wants to consider the rights of former members of paramilitary groups. In September 2013, Westminster’s Northern Ireland Grand Committee met in the Senate Room at Stormont to debate progress in the peace process. It was a largely self-congratulatory affair, with few new ideas being promulgated.7 In November, the Criminal Justice Inspectorate (CJI) published a report on the cost of dealing with the past,8 concluding that In 2013–14, the cost would exceed £30 million and in the following five years would exceed £187 million. For the Police Service of Northern Ireland (PSNI), the cost In 2013–14, was estimated at just over £25 million. The CJI found that the current work of criminal justice organisations was being hampered by the ‘historic’ work and recommended that a Legacy Executive Group be established to ensure better liaison between the various bodies. Perhaps the most surprising intervention on dealing with the past in 2013 was the suggestion made by the Attorney General for Northern Ireland, John Larkin QC, that there should be no further police investigations, inquests or inquiries into any relevant killings that took place before the Belfast (Good Friday) Agreement in 1998.9 The Attorney General admitted that he would be guided by the views of victims on what he said and almost immediately he was left in no doubt, both from that sector and from a wide range of politicians, that his suggestion was offensive. There is a widespread feeling in Northern Ireland that an amnesty provision already exists. It resides in the fact that anyone convicted of a troubles-related pre-1998 killing has to serve no more than two years in custody. 4

At p 11. The report was written by Paul Nolan. ‘Dealing with Northern Ireland’s Past—Towards a Transitional Justice Approach’; ‘The Display of Flags, Symbols and Emblems in Northern Ireland’; ‘Parades and Protests’; and ‘Human Rights to Culture in Post Conflict Societies’. 6 These are dealt with in the first of the four papers listed in the preceding note. 7 www.publications.parliament.uk/pa/cm201314/cmgeneral/nigc/130909/nigc130909s01.pdf, cols 13–49. 8 Review of the Cost and Impact of Dealing with the Past on criminal Justice Organisations in Northern Ireland, available at www.cjini.org/CJNI/files/8b/8b89d447-fb32-41d7-ae26-57b18509c8a2.pdf. 9 ‘NI Attorney General John Larkin Calls for End to Troubles Prosecutions’, available at www.bbc.co.uk/ news/uk-northern-ireland-24999051. 5

Correspondent Reports—Dickson 139 TH E R I GHT T O LI FE

While it remains the case that achieving convictions for ‘historic’ killings is extremely difficult, just a week after the Attorney General’s intervention referred to above Seamus Kearney was convicted of the murder of a police reservist in 1981 on the basis of DNA evidence obtained from a cigarette butt found at the scene of the crime.10 The conviction was the fourth to result from a review of about 1,800 original investigations by the PSNI’s Historical Enquiries Team (HET).11 Unfortunately, the work of the HET was suspended in July because of a damning report by Her Majesty’s Inspectorate of Constabulary (HMIC) into the way it had been reviewing killings at the hands of British soldiers. It transpired that the soldiers involved were treated differently from suspects in ‘non-state’ cases. Some were interviewed without being cautioned (meaning that they could speak more freely knowing that what they said could not be used against them as evidence) and were provided in advance with information about what other people involved at the incident had already said. While the HET might have been operating out of the best of motives—to provide families of victims with information which might otherwise never become available—the process used meant that the HMIC could plausibly conclude that ‘state’ killings were not being reviewed as independently as ‘non-state’ killings, in breach of Article 2 of the European Convention on Human Rights (ECHR). The HMIC report went so far as to say that the HET reviewers were acting unlawfully. It also drew attention to serious organisational defects within the HET.12 The Northern Ireland Policing Board, which had prompted the HMIC inspection in the first place, was given the task of overseeing the PSNI’s implementation of the report’s recommendations, and by the end of 2013 good progress had been made with that process. However, the Board itself was unable to reach consensus on whether the HET could be rescued, with pressure mounting from various NGOs, such as Amnesty International, the Committee on the Administration of Justice, Relatives for Justice and WAVE,13 to close down the HET altogether and replace it with a review and investigation body entirely outside of the PSNI. The report of the Board’s Working Group on the HET has since been published on the Board’s website. Little progress was made during 2013 on the resolution of some high-profile historic killings. Police investigations into the murders on Bloody Sunday in 1972 continued, but are liable to take years to come to fruition. No further inquiry into the murder of the solicitor Pat Finucane in 1989 was established, despite continuing lobbying by his family and other supporters,14 although the family did persuade a High Court judge to require the Northern Ireland Office to release for his inspection the representations that had been made to the Secretary of State concerning whether an inquiry should

10

R v Kearney [2013] NICC 33 (Judge McFarland). In May one of those convicted lost his appeal: R v McGeough [2013] NICA 22. 12 Inspection of the Police Service of Northern Ireland Historical Enquiries Team (HMIC, 2013), available at www.justiceinspectorates.gov.uk/hmic/media/inspection-of-the-police-service-of-northern-irelandhistorical-enquiries-team-20130703.pdf. 13 WAVE is a grassroots-based cross-community organisation which supports people bereaved as a result of violence in Northern Ireland and anyone injured or traumatised through the troubles. 14 The da Silva review in December 2012 concluded that no government Minister had known of the murder in advance. 11

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be held.15 Likewise no inquiry was put in place to examine the so-called ‘Ballymurphy massacre’, which refers to the killing by members of the parachute regiment of the British army of 11 people in a number of incidents in West Belfast over a two-day period in August 1971. In May 2013, Brian Shivers was acquitted of the murders of two British soldiers at Masserene Barracks in 2009;16 he had previously been convicted, but was retried after a successful appeal, where the court upbraided Hart J at the first trial for assuming that a person who provides assistance after a murder with full knowledge of what has happened becomes guilty of murder.17 The evidence against Shivers was circumstantial, and at the retrial Deeny J found that it ‘clearly’ did not amount to proof beyond reasonable doubt.18 In the long-running saga concerning the killing of Pearse Jordan by the police in 1992, his family succeeded in getting leave from the High Court to challenge aspects of the inquest which had been held towards the end of 2012 and resulted in a split jury decision.19 The family also succeeded in getting leave to challenge the police’s refusal to release to the family the documents they had disclosed to the coroner prior to the inquest.20 On a more positive note, 12 plaintiffs succeeded in their case against Colm Murphy and Seamus Daly for the injuries and deaths they caused through their part in the planting of the bomb in Omagh in 1998 which killed 29 people and two unborn babies,21 although it remains to be seen whether any compensation will materialise from the two defendants. And in Re Rodgers’ Application, Treacy J rejected an argument raised by a man convicted in 2013 of a murder committed in 1973 that he should have been granted the royal prerogative of mercy because he had already spent 16 years in prison for a related murder.22 The judge even suggested that granting the prerogative of mercy might have been a breach of the state’s positive obligation under Article 2 of the ECHR to put in place effective criminal law provisions to deter the commission of offences.23 Back on the streets, there was only one ‘Troubles’-related death in 2013–14, one fewer than in 2012–13. There were also fewer shooting incidents (54 compared with 64), but more bombing incidents (69 compared with 44).24 In Re Carlin’s Application, the Divisional Court rejected an application for an anonymity order from a man who had been charged with offences relating to the making of indecent images of children.25 He argued that he needed to be kept anonymous because otherwise his right to life under Article 2 of the ECHR would be in danger. This was based on the fact that two days after being arraigned for the offences the applicant had been the victim of a shooting by a group calling itself Republican Action against Drugs. The court held that the applicant had not demonstrated that there was a real risk of his being further attacked in relation to these particular charges.

15

Re Finucane’s Application [2013] NIQB 45 (Stephens J). R v Shivers [2013] NICC 10. 17 R v Shivers [2013] NICA 4. 18 R v Shivers [2013] NIQB [May]. 19 Re Jordan’s Application (Leave Stage) [2013] NIQB 74 (Stephens J). 20 Re Jordan’s Application (Leave Stage) [2013] NIQB 75 (Stephens J). 21 Breslin and others v Murphy and Daly [2013] NIQB 35 (Gillen J). 22 [2013] NIQB 69. 23 Ibid, para 8.  24 www.psni.police.uk/annual_security_situation_statistics_report_2013-14.pdf. 25 Re Carlin’s Application [2013] NIQB 144. 16

Correspondent Reports—Dickson 141 In relation to the right to life in the context of reproduction, the High Court required the Department of Health, Social Services and Public Safety (DHSSPS) to pay the legal costs of the Family Planning Association (FPA) when, on the eve of the hearing of the FPA’s application for judicial review of the DHSSPS’s refusal to issue revised guidance on termination of pregnancy, the DHSSPS produced such guidance for consultation.26 This was a welcome vindication of the utility of judicial review proceedings in prompting action on the part of a public authority. In July, the NIHRC responded to the draft guidance,27 advising that the proposed framework would likely be incompatible with the ECHR because, for example, it did not explain how differences of opinion between a woman and her doctor or between doctors were to be addressed. In May 2013, the Attorney General applied to the High Court for an order that an inquest be held into the death of a baby boy who was stillborn in 2001; the Senior Coroner had refused to do so because he believed that he had no power to conduct such an inquest. Treacy J agreed with the Senior Coroner’s view,28 but later in the year the Court of Appeal supported the Attorney General’s interpretation of the relevant legislation.29 On the other hand, in Re McMahon’s Application, Treacy J rejected a challenge to the coroner’s decision not to hold an inquest into the death of a man whose killing had already been the object of successful criminal proceedings against his killers.30 The case illustrates well the principle that there is no right to an inquest; whether one is required in order to satisfy Article 2 of the ECHR is always a factsensitive question. In 2013–14, the new Prisoner Ombudsman (Mr Tom McGonigle) opened investigations into four deaths in custody and three further deaths of persons who had left prison within the two weeks preceding their deaths. In the previous year there had been eight deaths in custody. As regards deaths from road traffic accidents (including those occurring as late effects), the number reached a record low of 59 in 2013, compared with 78 in 2012; the most vulnerable category of victim remained males aged between 15 and 34.31 The Health and Safety Executive reported that In 2013–14, there were 10 work-related fatalities, down from 19 in 2012–13.32 In 2013, the number of suicides in Northern Ireland was 303, just seven short of the record set in 2010;33 of these individuals, 229 (76 per cent) were men. In ZY v Higgins, the claimant, who had been sentenced to 21 months’ imprisonment for a series of offences of blackmail, engaging in sexual activity with a minor and possessing indecent images of children, succeeded in prolonging an injunction preventing a journalist and the Courts Service

26

Re Family Planning Association’s Application [2013] NIQB 108 (Treacy J). Available at www.nihrc.org//uploads/documents/advice-to-government/2013/NIHRC%20Response%20 to%20Consultation%20on%20Draft%20Guidance%20on%20Termination%20of%20Pregnancy.pdf. 28 Re Attorney General’s Application [2013] NIQB 52. 29 Re Attorney General’s Application [2013] NICA 68; the legislation is the Coroners Act (NI) 1959, s 18(1)(a). The court also recommended that the DHSSPS should urgently reformulate its Guidance on Stillbirths. 30 [2013] NIQB 22. The criminal proceedings are reported at R v Notarantonio [2008] NICC 39 (Stephens J). 31 Annual Report of the Registrar General 2013, Table 6.9. 32 Annual Report and Statement of Accounts of the Health and Safety Executive for Northern Ireland 2013–14, 3. 33 www.nisra.gov.uk/demography/default.asp31.htm. 27

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from publicising his identity because there was medical evidence that he could be at risk of suicide.34

TH E RIG HT NOT T O BE I LL- T R EA T ED

In June 2013, the UN Committee against Torture (CAT) issued its fifth periodic Concluding Observations on the UK report under the UN Convention against Torture.35 CAT regretted that Northern Ireland retained non-jury trials for some serious cases, ‘despite the apparent consensus among a broad range of actors that the problem of juror intimidation in Northern Ireland still needs to be demonstrated’.36 That is not, however, the view of the PSNI or the Public Prosecution Service. It also expressed concerns about the UK government’s decision not to hold a public inquiry into the death of Patrick Finucane and urged the government to ensure more generally that prompt, thorough and independent investigations be conducted to establish the truth and identify, prosecute and punish perpetrators.37 It added that all victims of torture and ill-treatment should be able to obtain adequate redress and reparation.38 CAT welcomed the raising of the age of criminal responsibility in Scotland from 8 to 12 years,39 but regretted the reluctance to raise the age from 10 years in Northern Ireland40 (and in England and Wales) in defiance of repeated recommendations to that effect made by the UN Committee on the Rights of the Child.41 It was also worried that some forms of corporal punishment are still legally permissible in the home if carried out by parents or those in loco parentis.42 It welcomed the plan by the Justice Minister in Northern Ireland to construct a separate custodial facility for women prisoners and recommended that construction should be begun without further delay.43 According to PSNI statistics,44 in 2013–14, there were 27,628 recorded incidents with a domestic abuse motivation, an increase of 1.6 per cent on the figure for 2012–13. Unfortunately, in 2013–14, the annual outcome (or clear-up) rate for these crimes dropped by 5 per cent, to 31.7 per cent, which means that less than one-third of all the recorded crimes with a domestic abuse motivation were ‘solved’. The police had even less success in bringing perpetrators of hate crime to book. During 2013–14, racist incidents increased by 30.9 per cent to 982, homophobic incidents by 13.8 per cent to 280, and disability hate incidents by 44.6 per cent to 107. There were also 24 faith/religion hate incidents and 23 transphobic incidents. Remarkably, there was a 6.4 per cent fall in the number of recorded sectarian incidents, down to 1,284. As is to be expected, given these figures, the number of crimes with a hate motivation also 34

[2013] NIQB 8 (McCloskey J). Both the Report and the Concluding Observations are available at http://tbinternet.ohchr.org/_layouts/ treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fGBR%2fCO%2f5&Lang=en. 36 Ibid, para 13. 37 Ibid, para 23. 38 Ibid. 39 Achieved by the Criminal Justice and Licensing (Scotland) Act 2010. 40 By the Criminal Justice (NI) Order 1998, Art 3. 41 Above n 35, para 27. 42 Ibid, para 29. 43 Ibid, para 32. 44 The source for all the figures in this paragraph is www.psni.police.uk/2013_14_press_release_for_web. pdf. 35

Correspondent Reports—Dickson 143 increased within five of the six hate crime types in 2013–14. In particular, racist crimes were up by 47 per cent and disability hate crimes by 100 per cent. The outcome rate was 17.3 per cent for racist crimes, 17.3 per cent for homophobic crimes and 15.4 per cent for sectarian crimes. These rates were also lower than in 2102–13 so, as with domestic abuse, incidents and crimes of hate are increasing but detection rates are dropping. Whether the latter is a result of poorer policing is another question. The NIHRC issued a report on racist hate crime in September 2013.45 With its 66 findings and 29 recommendations, the report is a valuable analysis of the hate crime phenomenon and a call for better responses from several criminal justice agencies. The Historical Institutional Abuse Inquiry, led by retired High Court judge Sir Anthony Hart, got under way in 2013.46 It is examining alleged abuse in residential institutions (except schools, and also not the abuse of children in foster care47) over a 74-year period, from 1922 to 1995. Its ‘Acknowledgement Forum’ began listening to the experiences of people who were children in the institutions at the time and by the deadline of the end of April 2014 as many as 514 individuals had applied to tell their story. The inquiry itself began investigating in 2014 whether children suffered abuse in the same institutions. It is sitting in Banbridge Courthouse in County Down. Paramilitary punishment shootings and beatings, which have been the scourge of Northern Ireland for decades, continued In 2013–14, and indeed were more common than in 2012–13. PSNI statistics show that there were 28 shootings and 42 assaults, compared to 27 and 36, respectively, the year before.48 The patterns suggest that Republican paramilitaries tend to shoot their victims (often in the knees) while loyalist paramilitaries tend to beat them (often with baseball bats). Just under one-half of the shootings took place in West Belfast. The Prisoner Ombudsman began investigating 450 new complaints during 2013–14. He upheld 46 per cent of those dealt with and made a total of 323 recommendations as to how the Northern Ireland Prison Service could improve its performance, 90 per cent of which were accepted. At the end of 2013–14, the Ombudsman had 11.5 full-time equivalent staff and a budget of £695,000, but the office itself still lacked statutory backing. In October 2013, the CJI published reports on the women’s prison at Ash House49 and on Hydebank Wood Young Offenders Centre (YOC).50 As regards the former, the CJI noted that, while most of the women prisoners felt safe, security arrangements were not always proportionate and, for many, the Progressive Regimes and Earned Privileges Scheme did not motivate positive behaviour. The co-location of women and men led to fundamentally disrespectful outcomes and severely restricted access to outside areas. Health services had improved since the previous inspection in 2007, but outcomes were still not good enough. Likewise, the management of learning and skills was poor, and there were not enough activity places. The management of resettlement had improved, but still lacked a current needs analysis. As regards the 45

‘Racist Hate Crime: Human Rights and the Criminal Justice System in Northern Ireland.’ For details see the Inquiry’s website: www.hiainquiry.org. It is operating under the Inquiry into Historical Institutional Abuse Act (NI) 2013. 47 Re CM’s Application [2013] NIQB 145 (Treacy J). 48 See above n 24. 49 ‘Report on an Announced Inspection of Ash House, Hydebank Wood Women’s Prison 18–22 February 2013’, available at www.cjini.org/CJNI/files/e9/e919ac2b-4e79-4a80-b1f6-fb753bea3444.pdf. 50 ‘Report on an Announced Inspection of Hydebank Wood Young Offenders Centre, 18–22 February 2013’, available at www.cjini.org/CJNI/files/e3/e3d615ca-29e7-40ec-9907-cf119a9dd7b0.pdf. 46

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YOC, the CJI’s main recommendations were that procedures for supporting prisoners at risk should be improved (with an emphasis on individualised care plans and less use of observation cells), security procedures should be improved, the reasons why Catholics’ perceptions of the prison were worse than Protestants’ should be explored, the advertised core day should be delivered consistently and not routinely curtailed, and prisoners should be offered a better range of purposeful activity, including a strong focus on the development of their literacy and numeracy skills. At Roe House in Maghaberry, where Republican prisoners are housed, there continued to be tensions concerning the use of ‘full searches’. In February 2013, representatives of the Prison Service gave evidence to the Assembly’s Justice Committee on the use of body scanners in the prison.51 The results of a three-month pilot of millimetre wave scanners were disappointing because the machines performed less reliably than the current full searching system. The Prison Service was planning to run a pilot of transmission X-ray scanners as soon as the authorisation for using such technology in UK prisons had been obtained. In December, the Justice Minister told the Assembly that the licensing of transmission X-ray scanners was still awaited and the matter was out of his hands.52 In the same month, Treacy J held that the policy on the use of full body searches at Maghaberry Prison was not so inflexible as to be unlawful53 or incompatible with the right to a private life protected by Article 8 of the ECHR, thereby adding to the Court of Appeal’s decision the previous year that the full body policy was not disproportionate.54 Northern Ireland had its fair share of new allegations of child sexual exploitation (CSE) in 2013. In September, the PSNI announced that it was investigating allegations that 22 young people aged between 13 and 18 might have been sexually abused; they were supposedly plied with drink or drugs and, on occasions, trafficked around Northern Ireland in taxis.55 The investigations followed a report by Barnardo’s in 2011.56 In September 2013, the Ministers of Health and Justice agreed to set up an independent expert-led inquiry, supported and facilitated by both the Regulation, Quality and Improvement Authority and the CJI; it was to be chaired by Professor Kathleen Marshall, a former Commissioner for Children and Young People in Scotland. The inquiry is expected to identify the nature and extent of CSE in Northern Ireland, determine how CSE can be prevented, and consider the effectiveness of measures to secure the safety and well-being of children in care. In December, the Safeguarding Board for Northern Ireland gave evidence to the Assembly’s Committee on Health, Social Services and Public Safety, explaining57 how it intended to conduct its own thematic review of CSE cases. 51 See www.niassembly.gov.uk/globalassets/Documents/Official-Reports/Justice/2012-2013/130214_Full bodySearchesProgressontheIntroductionofTechnologicalAlternatives.pdf. 52 Answers to oral questions, 9 December 2013, available at www.niassembly.gov.uk/assembly-business/ official-report/reports-13-14/09-december-2013/#AQO%205206/11-15. 53 Re Conway’s Application [2013] NIQB 125. 54 Re Conway’s Application [2012] NICA 11. 55 See www.psni.police.uk/pr_general__police_investigation_into_child_sexual_exploitation_160913. 56 This was authored by Dr Helen Beckett and entitled ‘Not a World Away—The Sexual Exploitation of Children and Young People in Northern Ireland’, available at www.barnardos.org.uk/13932_not_a_world_ away_full_report.pdf. 57 A record of the evidence is available at www.niassembly.gov.uk/assembly-business/official-report/com mittee-minutes-of-evidence/session-2013-2014/december-2013/thematic-review-of-child-sexual-exploitationcases-safeguarding-board-for-northern-ireland.

Correspondent Reports—Dickson 145 In January 2013, McCloskey J gave judgment in an important case supported by the Law Centre (NI) concerning the procedure for assessing whether a mentally vulnerable person is suitable for resettlement in the community.58 The judge paid tribute to a written intervention made by the Mental Disability Advocacy Centre, ‘an international human rights organisation which advances the rights of children and adults who have intellectual and/or psycho-social disabilities’.59  The submission focused on the UN Convention on the Rights of Persons with Disabilities, which has been ratified by the UK (but not yet by Ireland), and the judge described it as ‘a model of its kind’. He concluded in the case that, under Article 15 of the Health and Personal Social Services (NI) Order 1972, the DHSSPS, or its agent, was under a duty to subject to appropriate assessment any person within the scope of its knowledge or attention who it appeared might reasonably qualify for the enjoyment of any benefit available thereunder.60 He added that the DHSSPS’s ‘guidance on care management’ had generated a substantive legitimate expectation that assessments of social care needs and any resulting care plan would normally accord with the frameworks specified in the guidance and that, in cases where an assessment had been carried out, the DHSSPS or its agent was under a duty to provide the assessed social care benefit within a reasonable time. In June 2013, the Equality Commission for Northern Ireland published a review of the progress that had been made since the publication in 2008 of a report on how to improve the ways in which people with a learning disability can access health information.61  The review concluded  that improvements in the provision of written information had been gradual and that work remained to be done to provide accessible appointment letters and information about medicines. It also found that oral information was still not being provided in the way that it should and that there was not yet any mandatory training on this issue for healthcare professionals. People with a learning disability  were also still not being allocated longer appointment times, which they required. In August, the DHSSPS issued a summary of the responses it had received to its consultation document on a new adult social care policy in Northern Ireland,62 but by the year’s end no final strategy on the matter had been issued. Nor had there been an announcement concerning the final outcome of the consultation conducted on more general proposals for reform of health and social care contained in ‘Transforming Your Care: Vision to Action’,63 although on 19 March 2013 the Health Minister told the Northern Ireland Assembly that one of the key elements in the ‘Transforming Your Care’ proposals was integrated care partnerships (ICPs), which ‘enable local health and social care professionals and the voluntary and community sector organisations to 58

Re JR47’s Application [2013] NIQB 7. Ibid, para 21. 60 Ibid, para 87. 61 ‘Review of the Formal Investigation into the Accessibility of Health Information for People with a Learning Disability in Northern Ireland’, available at www.equalityni.org/ECNI/media/ECNI/Publications/ Delivering%20Equality/Disability_Investigation_paper_full_ross_harknesssep13_1.pdf. 62 ‘Who Cares? The Future of Adult Care and Support in Northern Ireland: Consultation Analysis Report’, available at www.dhsspsni.gov.uk/who_cares_consultation_analysis_report.pdf. For the views of the NIHRC see www.nihrc.org/uploads/documents/advice-to-government/2013/NIHRC%20-%20Response%20 Adult%20Care%20and%20Support.pdf. 63 The consultation document is available at www.transformingyourcare.hscni.net/wp-content/uploads/ 2012/10/TYC-Vision-to-Action-Consultation-Document.pdf. The consultation ran from October 2012 to January 2013. 59

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work more closely together on a collaborative basis to improve efficient and effective service delivery’. He added that 17 ICPs would be in place within 12 months covering the whole of Northern Ireland.64 As a result of a provision in the Crime and Courts Act 2013,65 the use of disproportionate force can now be regarded as reasonable in Northern Ireland whenever householders are acting to protect themselves or others from trespassers in their homes, although the use of grossly disproportionate force in such circumstances is still prohibited. The right not to be subjected to inhuman or degrading treatment was considered in Re ALJ’s and A, B and C’s Applications, which were challenges to the decision of the UK Border Agency to remove a Sudanese mother and her three children to the Republic of Ireland, their first country of entry into the EU, under the Dublin II Regulation.66 The judge refused to hold that returning the applicants to Ireland would put them at real risk of inhuman or degrading treatment, but he quashed the removal decision on the basis that the Border Agency had not made the welfare of the children a primary consideration in the decision-making process, contrary to its statutory obligation to do so.67 This meant that the decision was not ‘in accordance with the law’ for the purposes of Article 8(2) of the ECHR, which limits interferences with the right to a family life.68  Likewise, in Lithuania v Campbell, the Divisional Court rejected an appeal by Lithuania against the decision of Judge Burgess that the extradition of Liam Campbell to that country would be a breach of his Article 3 rights because of the real risk of his suffering inhuman or degrading treatment in a Lithuanian prison.69 Evidence from Professor Rod Morgan, a member of the European Committee for the Prevention of Torture, seems to have contributed greatly to the court’s conclusion.

TH E RIG H T N O T TO BE S U BJEC T ED T O FOR C ED LA BOU R

Forced labour is often a consequence of human trafficking, and in 2013 the PSNI reported 37 individuals as being victims of trafficking, 17 of whom were also sexually exploited.70 The commonest country of origin was Romania. In May, the Justice Minister published the first Human Trafficking Action Plan for Northern Ireland, and this led to a new policy on the prosecuting of trafficking offences issued by the Public Prosecution Service. During the year, there was one successful conviction in Northern Ireland for the offence of trafficking a person into the UK. The man convicted was given a two-year prison sentence and ordered to be deported on release. In September, the Law Centre (NI) established an Anti-Trafficking and Young People Project, with funding from Comic Relief. This provides specialist legal advice and representation to victims of trafficking who are under the age of 25 and refers them to other agencies 64 See www.northernireland.gov.uk/index/media-centre/news-departments/news-dhssps/news-dhsspsmarch-2013-archive/news-dhssps-190313-poots-updates-assembly.htm. 65 Section 43, amending the Criminal Justice and Immigration Act 2008, s 76 (which also applies in Northern Ireland). 66 [2013] NIQB 88 (Stephens J). 67 Borders, Immigration and Citizenship Act 2009, s 55. 68 Above n 66, para 91. 69 [2013] NIQB 19 (Morgan LCJ, Girvan and Coghlin LJJ). 70 ‘The Nature and Scale of Human Trafficking in 2013’ (National Crime Agency, September 2014) 41.

Correspondent Reports—Dickson 147 for access to appropriate support services. Moreover, under the Criminal Justice Act (NI) 2013, the law of Northern Ireland was brought into line with the EU Directive on preventing and combating trafficking in human beings71 by creating new offences and addressing the international dimension of trafficking.72 The Act also provided that human trafficking offences have to be tried as offences on indictment, not as summary offences;73 this means that sentences which appear unduly lenient can now be referred to the Court of Appeal by the Director of Public Prosecutions. A Private Members’ Bill was also introduced to the Assembly aimed at further regulating the trafficking and exploitation of people; its most controversial provision made it a criminal offence to pay for sex.74

TH E RIGHT T O LI BER T Y

Throughout 2013, the threat from Northern Ireland-related terrorism was declared by the UK government to be severe in Northern Ireland but moderate in Great Britain. In his annual review of how some of the counter-terrorism powers were used in Northern Ireland, the Independent Reviewer, David Anderson, reported that the number of arrests and detentions under the Terrorism Act 2000 were roughly in line with those in recent previous years, but that the charging rate fell.75 In 2013–14, 168 persons were arrested on reasonable suspicion of involvement in terrorism, a rise of 11 on the figure for 2012–13.76 However, of the 168 arrested, only 32 (19 per cent) were later charged, compared with 50 (32 per cent) the previous year. David Anderson commented that the percentage charged was the lowest for 10 years, a fact he found disappointing because prima facie it suggests that many people are being arrested unreasonably.77 All but nine of the individuals arrested were held for 48 hours or less; in relation to the other nine (eight of whom were eventually charged), there were 12 applications for extensions of detention, all of which were granted. Every person arrested requested access to a solicitor, and all such requests were granted immediately, without the police taking advantage of their power to delay it. There were only 59 requests to have someone informed of the detention, 52 of which were granted immediately; in the other seven cases, the delay was less than 12 hours in six cases and between 24 and 36 hours in the seventh. The maximum permissible pre-charge detention period for suspected terrorists remained at 14 days throughout the year, the same as in the rest of the UK. No ‘terrorist prevention and investigation measure’ was issued in relation to any person in Northern Ireland. The charges brought against the 32 detained persons

71

2011/36/EU. Sections 6–7. 73 Section 8. 74 Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill, clause 6. The Bill had not completed its Assembly stages by the end of 2013. 75 The Terrorism Acts in 2013 (2014), available at https://terrorismlegislationreviewer.independent.gov.uk/ wp-content/uploads/2014/07/Independent-Review-of-Terrorism-Report-2014-print2.pdf. 76 The 2013–14 figures in this paragraph are all taken from the Northern Ireland Terrorism Legislation: Annual Statistics 2013–14 (Northern Ireland Office, 2014), especially Tables, 6, 8 and 9, available at www. gov.uk/government/uploads/system/uploads/attachment_data/file/365691/NI_Terrorism_Legislation_Annual_ Statistics_2013–14_-_Final.PDF. 77 Above n 75, para 8.12. 72

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who were charged related to a total of 88 offences, including six of murder, seven of attempted murder, 11 firearms offences and 14 explosives offences. Two persons were charged with the offence of preparing terrorist acts under the Terrorism Act 2006.78 In 2012–13, no use was made of the post-charge questioning power conferred by the Counter-Terrorism Act 2008,79 and as far as this writer is aware it was not used in 2013–14. In May 2013, the government took the opportunity to include within the Antisocial Behaviour, Crime and Policing Bill some amendments to the powers conferred on ports officers by Schedule 7 to the Terrorism Act 2000. These amendments (and others) were suggested by David Anderson in his report on the Terrorism Acts in 2012. Chief amongst them were that, in place of the power to detain a person at a port for up to nine hours before having to accord him or her the rights enjoyed by detained persons under Schedule 8 to the Terrorism Act 2000, such as the right to consult a solicitor and to have someone informed of the detention, a person who is to be examined at a port for more than one hour would need to be taken into detention and all such detained persons would have to be released after no more than six hours. The bill also proposed to remove the intimate search and sample-taking powers, and to impose new limits on strip searches and new requirements for regular reviews of the detention.80 In August 2013, the Divisional Court of England and Wales decided in Beghal v Crown Prosecution Service81 that a woman who had pleaded guilty to a charge of wilfully failing to answer questions while being examined at a port under Schedule 7 to the Terrorism Act 2000 had not suffered a violation of her rights under Article 5, 6 or 8 of the ECHR. The judges did, however, suggest, as David Anderson and the Parliamentary Joint Committee on Human Rights had previously done,82 that legislation should be enacted to bar the use of Schedule 7 admissions at subsequent criminal trials. The decision of the Supreme Court on Ms Beghal’s appeal against the Divisional Court’s decision is still awaited. In another case, Sabure Malik v UK,83 the European Court of Human Rights is considering a number of other issues concerning port powers, such as the non-availability of police bail, the covert surveillance of detained persons and the procedures for extending detention. Throughout 2013, there were discussions over whether the new National Crime Agency (NCA), which began its operations in Great Britain in October, should also have a remit in Northern Ireland. Nationalist MLAs staunchly resisted this, since to them it would mean an additional British agency operating in Northern Ireland without satisfactory local accountability arrangements. By the end of the year, a solution had still not been found to this issue, meaning that in several respects—such as the investigation of child sexual exploitation and the civil recovery of unlawfully obtained assets—serious crime was quite possibly not being dealt with as effectively 78

Section 5. Above n 75, para 9.12. 80 These changes were eventually enacted in the Anti-social Behaviour, Crime and Policing Act 2014, most of them coming into effect in July 2014. 81 [2013] EWHC 2573 (Admin). 82 D Anderson, ‘The Terrorism Acts in 2012’ (July 2013) ch 10; Joint Committee on Human Rights, ‘Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill’, 2013–14, 4th Report (HL 56/HC 713) paras 90–138. 83 App No 32968/11, declared admissible on 28 May 2013. 79

Correspondent Reports—Dickson 149 in Northern Ireland as in other parts of the UK. NCA officers can operate in relation to reserved matters, such as immigration and tax evasion, but they cannot themselves deprive anyone of their liberty in Northern Ireland: for that, they have to request the services of the PSNI. In July 2013, the Department of Justice issued a consultation paper seeking the public’s views on the report and draft bill issued by the Northern Ireland Law Commission in 2012 relating to reform of the law on bail in criminal proceedings. The Department also held a half-day conference on the topic in October. By the end of the year, it had still not announced how it intends to proceed in this area. In Re JMcA’s Application, Treacy J upheld restrictions placed on a person who was the subject of a guardianship order under the Mental Health (NI) Order 1986.84 The judge noted that Article 22 of the 1996 Order confers a specific power on a guardian (here the Belfast Health and Social Care Trust) to require a person subject to guardianship to reside in a specified place, while Article 29(2) allows for a person who absents him- or herself without leave from that place to be retaken and returned to the place of residence. Treacy J read these provisions as providing implied backing for restricting the applicant’s right to leave his home address at any time of his choosing and unaccompanied. There was therefore no breach of Article 5 (or Article 8) of the ECHR.

TH E RIG HT T O A FA I R T R I A L

In Northern Ireland, as in the rest of the UK, attention on fair trial rights in 2013 focused on ‘closed material procedures’ (CMPs), the process by which secret information can be presented by one party in a court case but disclosed only to a ‘special advocate’ working on behalf of the other party, not to that party directly or to his or her own legal representative. They have been used in hearings before the Special Immigration Appeals Commission, the Investigatory Powers Tribunal and employment tribunals, but the Supreme Court ruled in Al Rawi v The Security Services85 that they could not otherwise be used in civil cases without express legislative backing. The UK government wanted to enact such legislation so that it could better defend itself against claims that it had breached the rights of detained persons. Despite spirited objections to the government’s plans from distinguished sources,86 Parliament went ahead and approved the new legislative provisions, which are set out in the Justice and Security Act 2013.87 CMPs can now be applied for so long as the court is satisfied that the Secretary of State has already considered making or advising another person to make an application for public interest immunity for the material in question (if a PII certificate is issued, the information cannot be used by either side in the case). The applicant must then persuade the court that disclosure of the material would damage national security and explain why a CMP would be in the interests of the fair and 84

[2013] NIQB 77. [2011] UKSC 34, [2012] 1 AC 531. See eg the Parliamentary Joint Committee on Human Rights, 2012–13, 4th Report (HL 59/HC 370) and 8th Report (HL 128/HC 101); Equality and Human Rights Commission, ‘Briefing for the Report Stage and Third Reading in the House of Lords’ (2012). 87 Pt II (ss 6–18); s 20(3) makes it clear that these provisions apply in Northern Ireland. 85 86

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effective administration of justice. Before allowing a CMP, the court must consider whether a non-damaging summary of the material could be provided in open court,88 and the Home Secretary must present an annual report to Parliament on the operation of the  CMP  provisions.89 Given the breadth usually attributed to the undefined term ‘national security’, the scope for use of CMPs in Northern Ireland in future cases is significant. No doubt the compatibility of the new law will sooner or later be challenged before the European Court of Human Rights because it could be portrayed as violating the equality of arms principle which lies at the heart of Article 6 of the ECHR. The Justice and Security Act 2013 also formalised arrangements for the oversight of intelligence and security activities by the Intelligence and Security Committee of Parliament, and prohibited the use of so-called Norwich Pharmacal orders to obtain disclosure of sensitive information. Such orders have been available ever since a House of Lords’ decision in 1974 permitted a court to compel a third party who had been mixed up in another’s wrongdoing and had information relating to that wrongdoing to disclose information which might assist a person suffering damage from the wrongdoing to take legal steps against the party responsible.90 In Re Nelson’s Application, Treacy J quashed a decision of the police to reject an applicant for a security job because he failed the vetting process; the judge held that Mr Nelson, a member of the former Police Reserve until just before applying for the new position, had not been treated procedurally fairly because he had not been told enough about why he had failed the vetting process.91 In R v Livingstone,92 the Court of Appeal of Northern Ireland, on a reference from the Criminal Cases Review Commission, quashed the conviction of a man who had been found guilty by a Diplock court in 1977 of a murder committed in 1975. The Court of Appeal thought the conviction was unsafe because evidence had not been disclosed to the appellant’s defence lawyers which might have affected the trial judge’s assessment of the credibility of three police officers who had alleged that Livingstone had confessed to the murder while being questioned by them in Dundalk. The evidence at issue derived from two other cases, one of which was decided after Livingstone’s conviction, in which the same police officers had been unable to show that persons had not received identifiable injuries through being beaten while in the custody of the officers. Although the Court of Appeal acknowledged that in 1977 the common law practice concerning pre-trial disclosure was materially different from that which was later demanded by the courts,93 it applied the principle which it had set out in another case in 2012,94 namely that, in looking at the safety of a conviction, it is relevant to consider whether the appellant may have been denied rights which he or she should have enjoyed under the rules in force at the time and whether he or she may have lacked protections which it was later thought right that he or she should enjoy.

88

Ibid, s 8(1)(d). Ibid, s 12(1). 90 Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133. 91 [2013] NIQB 131. 92 [2013] NICA 33. 93 As in eg R v Keane [1994] 1 WLR 746. 94 R v Brown [2012] NICA 14, itself drawing upon the English case of R v King [2000] 2 Cr App R 391. 89

Correspondent Reports—Dickson 151 In Re Magee’s Application,95 the High Court quashed a decision by the Department of Justice that it had no discretionary power to reconsider a decision taken by the Secretary of State in 2002 refusing the applicant any compensation under the Criminal Justice Act 198896 for the time he had spent in custody following a wrongful conviction. An order of mandamus was issued requiring the Department to reconsider the matter. However, the judge made it clear that the Department did not necessarily have to reach a different decision from that reached in 2002 just because there had meanwhile been a decision of the Supreme Court clarifying what is meant by a miscarriage of justice for the purposes of the 1988 Act.97 Despite an objection from, amongst others, the Joint Parliamentary Committee on Human Rights to the effect that it required an applicant to prove his or her innocence beyond reasonable doubt, in 2013 Parliament enacted an amendment to the 1988 Act which states that ‘there has been a miscarriage of justice . . . if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence’.98 The Justice Minister continued to pursue his aim of reducing the legal aid budget in Northern Ireland. Having consulted on reforms to financial eligibility rules for legal aid,99 which have not been raised since 2009, he planned to introduce changes in 2014 through, amongst other channels, the Legal Aid and Coroners’ Courts Bill. The Northern Ireland Legal Services Commission published a very useful detailed guide to legal aid in Northern Ireland in January 2014.100 During 2013, a dispute arose over amendments made in 2011 to the Legal Aid for Crown Court Proceedings (Costs) Rules (NI) 2005, which removed any provision for exceptional fees to be paid to lawyers in Crown Court cases. During his trial for serious offences, Raymond Brownlee had dismissed his legal team, but the trial continued and he was convicted. He instructed new solicitors prior to his sentencing hearing, but they were unable to find counsel who would act for him, as there would be no remuneration for any work done in preparing for the hearing. In a judicial review, Treacy J made an order of mandamus requiring the Department of Justice to take all necessary steps to make Mr Brownlee’s right to legal aid effective, as otherwise there would be a breach of his right to a fair trial

95 [2013] NIQB 59 (Stephens J). Mr Magee had previously won a ruling from the European Court of Human Rights that his detention in Belfast had violated Art 6(1) of the ECHR, in conjunction with Art 6(3)(c), because he was denied access to a solicitor (Magee v UK (2001) 31 EHRR 35). In 2001, after a reference from the Criminal Cases Review Commission, the Court of Appeal of Northern Ireland quashed his conviction. 96 Section 133. This provision was enacted to give effect to the UK’s obligation under Art 14(6) of the International Covenant on Civil and Political Rights 1966 to provide compensation for those who are found to have been wrongly convicted on the ground that a newly discovered fact shows conclusively that there has been a miscarriage of justice. 97 R (Adams) v Secretary of State for Justice [2011] UKSC 18; two of the appellants in these conjoined appeals were from Northern Ireland. In 2014 the applicant was again refused compensation. Two other former prisoners also lost their claim for compensation for a miscarriage of justice: Re Fitzpatrick’s and Shiels’ Application [2013] NICA 66. 98 Anti-social Behaviour, Crime and Policing Act 2013, s 175, inserting a new s 133(1ZA) into the 1988 Act. 99 ‘Proposals for the Reform of Financial Eligibility for Civil and Criminal Legal Aid’ (Department of Justice, March 2013), available at www.dojni.gov.uk/index/public-consultations/archive-consultations/proposals-for-the-reform-of-financial-eligibility-for-civil-and-criminal-legal-aid.pdf. 100 ‘A Guide to Legal Aid’ (NILSC, 2014).

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under Article 6 of the ECHR.101 However, this decision was then successfully appealed to the Court of Appeal.102 In two other important decisions, the Divisional Court held that the systems for enforcing through imprisonment fines issued by a magistrates’ court103 or confiscation orders issued by the Crown Court104 were in breach of Article 6 because, amongst other defects, they did not provide for a hearing and the individual who was the subject of the fine or order was given no opportunity to make representations either in person or through a lawyer. Although these decisions did not attract much publicity at the time, they clearly have great practical significance for enforcement procedures in future criminal cases. The Department of Justice issued a consultation paper entitled ‘Making a Difference: Improving Access to Justice for Victims and Witnesses of Crime—A Five-Year Strategy’, the aim being to develop a strategy that would build on the Action Plan 2013–15 for the current victim and witness strategy.105

TH E RIG H T TO A PR I V A T E A ND FA MI LY LI FE A ND HOME

In Re Canning’s Application,106 to many people’s surprise, the Court of Appeal of Northern Ireland struck down stop and question and stop and search powers that are peculiar to Northern Ireland (conferred by the Justice and Security (NI) Act 2007107) on the basis that they were not supported by relevant codes of practice. On the day of the decision, to plug the gap in police powers at a time when the G8 Summit was about to be held in Northern Ireland, an assistant chief constable issued an authorisation for stop and search powers to be used under section 47A of the Terrorism Act 2000, and the authorisation was confirmed by the Secretary of State the next day. It remained in place until a code of practice was brought into effect a few days later. In Northern Ireland, 70 people were stopped and searched under section 43 of the Terrorism Act 2000 in 2013–14,108 a drop of 31 on the figure for 2012–13. A further 10 were stopped under section 43A,109 as against only 1 in 2012–13.110 During 2013, the Northern Ireland Policing Board carried out a review of the way in which the police were using their stop and search powers under both the Terrorism Act 2000 and the Justice and Security (NI) Act 2007.111 The Board was worried that the police might be abusing their powers by repeatedly stopping some people, 101

[2013] NIQB 47. [2013] NICA 57. In January 2014 the UK Supreme Court reversed the Court of Appeal ([2014] UKSC 4); the Department had already agreed to amend the Rules. 103 Re McLarnon’s Application [2013] NIQB 40 (Morgan LCJ, Girvan LJ and Treacy J). 104 Re Maye’s Application [2013] NIQB 39 (Morgan LCJ, Girvan LJ and Treacy J). 105 The Action Plan is available at www.dojni.gov.uk/index/publications/publication-categories/pubscriminal-justice/victim-and-witness-strategy-action-plan-2013-15.pdf. 106 [2013] NICA 19. 107 See ss 21, 24 and Sch 3, para 4(1). 108 Section 43 allows stops and searches of persons reasonably suspected to be a terrorist. 109 Section 43A allows the stop and search of a vehicle if a police officer reasonably suspects that it is being used for the purposes of terrorism. 110 PSNI Statistics, ‘Stop and Search Statistics, Financial Year 2013/14’ (2014) Table 1. 111 Human rights thematic review on the use of police powers to stop and search and stop and question under TA 2000 and JS(NI)A 2007 (2013). 102

Correspondent Reports—Dickson 153 especially amongst the Catholic community, to a degree which amounted to harassment. The review made 11 recommendations, one of which was that the ‘community background’ of all persons stopped (ie whether they were perceived to be Protestants or Catholics) should be recorded. By the year’s end, no such recording had occurred, and David Anderson, the Independent Reviewer, later voiced two warnings on the matter: that the data gleaned might be misused to inflame community tensions and that the police might be tempted to redress an imbalance in the use of stop and search powers by using them more frequently in relation to members of a community from which no threat was expected.112 In 2013–14, 14 persons were made subject to notification requirements under the Counter-Terrorism Act 2008,113 meaning that they must provide the police with prescribed information about any change of address etc on an ongoing basis.114 The Northern Ireland Assembly voted in 2013 not to extend to Northern Ireland the Marriage (Same Sex Couples) Act 2013, which permits same-sex marriages in England and Wales. Any such marriages will be recognised in Northern Ireland only as civil partnerships. Most unionist MLAs are implacably opposed to the concept of same-sex marriage. In October 2013, Treacy J held that the Health Minister had acted irrationally when he decided not to alter the lifetime ban on males who have had sex with other males donating blood (contrary to the policy in place in the rest of the UK, where such donations are restricted only during a one year ‘deferral period’).115 The judge pointed out that the minister had also breached the Ministerial Code116 because the ban is both a controversial and cross-cutting matter and therefore should have been brought to the attention of the whole Executive Committee at Stormont. Moreover, he held that it is the UK Secretary of State for Health who is responsible for the determination of appropriate ‘deferral periods’ in Northern Ireland and also for the technical requirements in relation to products such as blood. An important victory was won by the Northern Ireland Human Rights Commission when the Court of Appeal upheld its challenge to the Health Minister’s refusal to allow people other than married couples to apply to adopt children. Northern Ireland’s law had already been found to be in breach of Article 8 of the ECHR by the House of Lords,117 but the minister had refused to make the necessary changes to give effect to that decision. An attempt by the Health Minister to seek leave from the Supreme Court to appeal against the Court of Appeal’s decision was also unsuccessful. In Belfast Health and Social Care Trust v JK, GC and JC, Maguire J emphasised how important it is for a trust, when deciding to remove a child from the care of his or her mother, to ensure that the Human Rights Act 1998 is fully taken into account.118 In Re JR57’s Application, Horner J ruled that the Northern Health and Care Trust, by retaining and sharing information that the applicant had allegedly sexually abused his sister many years earlier, had violated the applicant’s Article 8 rights because there

112

See his report for 2013, above n 75, paras 6.16–6.19. Pt IV (ss 40–61). 114 See n 76 above, Table 15. 115 Re JR65’s Application [2013] NIQB 101. 116 Under the Northern Ireland Act 1998, s 28A(10). 117 In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173. 118 [2013] NIFam 10. 113

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was no pressing need to disclose such information.119 However, in Re JR60’s Application, the same judge upheld the policy of Health and Social Care Trusts to keep and use for up to 75 years various records generated when the applicant was a resident of children’s homes and a training school between 1978 and 1991.120 The Criminal Justice Act (NI) 2013 also allows the indefinite retention of DNA profiles collected from people who have been sentenced to an imprisonable offence.121 The decision in Re JR60’s Application and the legislative provision both push to the limits the state’s margin of appreciation under Article 8 of the ECHR.

TH E RIG H TS TO F R EEDOM OF EXPR ES S I ON, A S S EMBLY A ND A S S OC I A T I ON

The law on defamation in Northern Ireland was not affected by the Defamation Act 2013, most of which applies only in England and Wales. The consequence of this is that it remains easier for people to sue for defamation in Northern Ireland than anywhere else in the UK: the 2013 Act provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant or serious financial loss. In Ewing v Times Newspapers Ltd, the Court of Appeal of Northern Ireland rejected the appellant’s libel claim because, under the principle set out by the Court of Appeal of England and Wales in Jameel v Dow Jones & Co,122 it is not a breach of Article 6 of the ECHR to reject such a claim ‘where the reputation which the claimant seeks to uphold is minimal and the use of the court process is disproportionate having regard to the complexity of the proceedings’.123 Northern Ireland followed England’s path124 in abolishing the ancient common law offence of ‘scandalising the court’.125 In December 2012, Belfast City Council voted to amend its policy on the flying of the Union flag on Belfast City Hall. Previously it had been flown every day; the unionist councillors wanted this practice to continue, while the nationalist councillors wanted the flag to be removed completely. The balance of power was held by Alliance Party councillors, who voted for the compromise solution of allowing the flag to be flown on no more than 18 designated days, as at the Northern Ireland Assembly building, and it was this proposal which won through. Some unionists were so opposed to this outcome that they took part in widespread street protests, blocking roads and disrupting commercial activities. The protests continued throughout 2013126 and there was no sign of a solution by the end of the year. The display of flags was one of the issues considered during the Haass talks, but no agreement could be reached. In September, the NIHRC published a helpful report on the subject, highlighting the relevant human rights standards that needed to be brought to bear on the matter.127 The PSNI adopted 119

[2013] NIQB 33. [2013] NIQB 93. 121 Section 9 and Schs 2 and 3. 122 [2005] EWCA 75. 123 [2013] NICA 74, para 37. 124 See Crime and Courts Act 2013, s 33. 125 Criminal Justice Act 2013, s 12. 126 For details of incidents see http://en.wikipedia.org/wiki/Belfast_City_Hall_flag_protests. 127 The Display of Flags, Symbols and Emblems in Northern Ireland (NIHRC, 2013). 120

Correspondent Reports—Dickson 155 a fairly hands-off approach to the protests, preferring not to arrest many people at the time of the protests (for fear of provoking even greater disturbances) but instead to take photographs and video footage of the events so that they could later identify individuals who may have committed offences and proceed against them accordingly. On 18 November 2013, the police reported that 560 people had been charged or reported in connection with the flag protests to date and that 260 had already been convicted of offences.128 It remained unclear to what extent the protests were being orchestrated by elements connected to unlawful loyalist paramilitary organisations.

TH E RIG H T TO F RE EDOM FR OM DI S C R I MI NA T I ON

At the high constitutional level, discrimination against women was eliminated by the Succession to the Crown Act 2013, which provides that, in determining the succession to the Crown, the gender of a person born after 28 October 2011 does not give that person, or that person’s descendants, any precedence over any other person, whenever born.129 While the sovereign must him- or herself still be a Protestant, the Act provides that a person is not disqualified from holding the Crown as a result of marrying a person of the Roman Catholic faith.130 Strangely, the Act continues to require that, if any of the six persons next in the line to the throne wishes to marry, they must first obtain the consent of the sovereign. The UN’s Committee on the Elimination of Discrimination against Women issued its Concluding Observations on the UK in July 2013 and made a number of specific recommendations relating to discrimination against women in Northern Ireland.131 First, it suggested that provisions in the Equality Act 2010, which applies only in Great Britain, should be extended to Northern Ireland, in particular so that women can be protected against multiple discrimination and pay secrecy clauses. Secondly, it proposed that the mandate of the Historical Institutional Abuse Inquiry should be extended to embrace women who entered residential institutions when they were already over the age of 18, a point also made by the UN Committee against Torture in its fifth periodic Concluding Observations on the UK report.132 Thirdly, it regretted that there was no UK-wide strategy for the implementation of the Convention on the Elimination of Discrimination against Women. Fourthly, it repeated its concern at the low representation of women in the post-conflict process in Northern Ireland, and the failure to fully implement Security Council Resolution 1325 (2000). Fifthly, it called on the UK government to decriminalise abortion in Northern Ireland and to ensure that legal abortion is possible not only in cases of threats to the life of a pregnant woman but also in cases of threats to her health, rape, incest and serious malformation of the foetus. Under the Mental Health (Discrimination) Act 2013, which applies throughout the UK, a person cannot now be disqualified from membership of the House of Commons 128

See www.bbc.co.uk/news/uk-northern-ireland-24986841. Section 1. Section 2(1). 131 Available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDA W%2fC%2fGBR%2fCO%2f7&Lang=en. 132 See above n 35, para 24. 129 130

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or other devolved legislatures just because he or she has a mental illness.133 The Act also reduces the disqualifications based on mental illness concerning jury service or service as a company director.134 In May 2013, the Office of the First and Deputy First Minister published a Disability Strategy for Northern Ireland, developing it on a rights-based approach and on monitoring indicators modelled around the UN Convention on the Rights of Persons with Disabilities. Discrimination on the basis of caste was prohibited in England, Scotland and Wales in 2013,135 but no such provision has been enacted for Northern Ireland. This adds to the growing number of discrepancies between the law on equality in Great Britain and that in Northern Ireland. The Assembly did nothing during 2013 to extend the prohibition on age discrimination to include discrimination in access to goods, facilities or services. The Equality Commission and the Northern Ireland Commissioner for Children and Young People jointly commissioned an expert paper from Robin Allen QC and Dee Masters on this subject.136 In the wake of the controversial appointment of Mary McArdle, a convicted murderer, to the post of Special Adviser to a Minister in the Northern Ireland Executive, Jim Allister MLA successfully piloted through the Assembly a law disqualifying some persons from holding such a post. The Civil Service (Special Advisers) Act (NI) 2013 was carefully drafted so as to be compatible with the ECHR. It prohibits people from serving as special advisers to government ministers if they have ‘a serious criminal conviction’, defined as a prison sentence of five years of more.137 Incidents of racially motivated crime continued to rise during 2013, yet the Northern Ireland Executive had still not published a Racial Equality Strategy by the end of the year. The NIHRC published a report on the topic in September,138 concluding that, while Northern Ireland’s laws and policies on racist hate crimes were in general compliance with international standards, there was considerable room for improvement in terms of practice. The NIHRC called in general for better partnership between the various criminal justice agencies and made 29 specific recommendations to a variety of these agencies, including that the PSNI and the Public Prosecution Service should ensure that staff are fully aware that an offence can be one which is ‘aggravated by hostility’139 if it has ‘demonstrated’ racial hostility, even if it has not perhaps been ‘motivated’ thereby. In February, the NIHRC notified the UN’s Committee on the Elimination of Racial Discrimination that sectarianism was on the rise in Northern Ireland and highlighted the Northern Ireland Executive’s delay in producing a new anti-sectarian strategy.140 Three months later, the Office of the First and Deputy First Minister issued a document entitled ‘Together: Building A United Community’.141

133

Section 1. Sections 2–3. 135 See the Enterprise and Regulatory Reform Act 2013, s 97. 136 ‘Strengthening Protection for All Age’s (April 2013), available at www.equalityni.org/ECNI/media/ ECNI/Publications/Delivering%20Equality/ExpertPaper_FULLAge-GFS_ProtectingAllAges-IncCYP_ v1_18413.pdf. 137 Sections 2 and 5(1)(a). 138 Racist Hate Crime: Human Rights and the Criminal Justice System in Northern Ireland (NIHRC, 2013). 139 As required by the Criminal Justice (No 2) (NI) Order 2004, Art 2(3). 140 See the NIHRC’s Annual Statement for 2013, above n 1, 12. 141 Available at www.ofmdfmni.gov.uk/together-building-a-united-community-strategy.pdf. 134

Correspondent Reports—Dickson 157 This set out a strategy aimed at improving community relations and creating a new Equality and Good Relations Commission; judging by past experience, both developments could be some time in the making. In Re Tadas Lapas’s Application, Treacy J found that the Northern Ireland Prison Service had unlawfully discriminated against a Lithuanian prisoner (and also violated its public law duty) by not providing him with access to offending behaviour programmes because of his lack of fluency in English.142 In Re Brewster’s Application, the Court of Appeal, allowing an appeal against Treacy J’s decision, held (by two to one) that it was not discriminatory to deny a pension to the co-habiting partner of a local government worker but to grant it to a spouse of such a worker solely because, prior to the death of the applicant’s partner and contrary to regulations, a form had not been submitted naming the applicant as a ‘nominated cohabiting partner’.143  The difference in treatment between married persons and co-habiting persons was found to be proportionate because it had not been shown to be ‘manifestly without reasonable foundation’, the test applied in respect of state benefits by the European Court of Human Rights in Stec v UK144 and approved by Baroness Hale in Humphreys v HMRC.145

T HE RIG H T TO E D UCATIO N A ND OT HER S OC I A L A ND EC ONOMI C R I GHT S

There were no significant developments concerning the right to education during 2013, although the NIHRC did submit advice to the Minister for Education on whether a particular secondary school should be closed146 and on the draft Traveller Child in Education Action Framework.147 Also, a challenge brought against a decision of the Special Educational Needs and Disability Tribunal to allocate a child with Down’s syndrome to a particular school was unsuccessful because the Tribunal was found to have acted rationally and in accordance with the child’s human rights.148 Welfare reform was hotly debated, but by the year’s end the measures enacted for Great Britain had not been fully replicated in Northern Ireland, mainly due to the opposition of nationalist MLAs. In January 2013, the Assembly’s Ad Hoc Committee on Human Rights and Equality issued a report on the implications of the Welfare Reform Bill, which the NIHRC welcomed because it mirrored some of the proposals made by the NIHRC itself.149 These included the suggestions that lone parents should not be penalised for failing to take up work due to a lack of affordable childcare, that changes to housing benefit entitlement should make allowances for disabled persons who may 142

[2013] NIQB 118. [2013] NICA 54. 144 (2006) 43 EHRR 47. 145 [2012] UKSC 18, [2012] 1 WLR 1545 (UKSC), a decision about discrimination against men in the allocation of child tax credit. 146 This related to Dundonald High School, which was eventually reprieved from closure in January 2014. 147 Available at www.nihrc.org//uploads/documents/advice-to-government/2013/Traveller%20education%20 action%20framework%20%20NIHRC%20Response.pdf. 148 Re TCM’s Application [2013] NIQB 3 (Gillen J). 149 Press release, available at www.nihrc.org/news/detail/welfare-reform-report-a-positive-step-for-humanrights-protection. 143

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require an additional room to accommodate an overnight carer and that private contractors who are engaged to assess eligibility for benefit payments should be bound by the Human Rights Act 1998. Not all of the changes to employment law in Great Britain were replicated in Northern Ireland. For instance, the simplified rules on whistleblowing at work were not adopted.150 Northern Ireland’s employment law continues to be out of step with Great Britain in various respects; most notably, the qualification period for bringing an unfair dismissal claim is still one year in Northern Ireland, while elsewhere in the UK it is two years.151 In 2013, the Department for Employment and Learning issued regulations increasing a qualifying employee’s entitlement to parental leave regarding an individual child from 13 weeks to 18 weeks.152 Later, the Department consulted on proposals to provide parents with greater flexibility over their shared childcare arrangements, but no change had been made by December. The NIHRC reminded the Department that the European Committee of Social Rights had previously concluded that the UK was not in conformity with Article 8(1) of the European Social Charter of 1961 because the standard rates of statutory maternity pay, after the initial six weeks of maternity leave, are inadequate.153 Re JT’s Application is a good example of the High Court quashing a housing association’s allocation of social housing because it failed to comply with its own scheme, it contravened the applicant’s legitimate expectations, it acted in a way that was apparently biased, it adopted a procedure that was unfair and it violated the applicant’s rights under Article 8 of the ECHR to a private and family life.154

O TH E R IN TE RNA T I ONA L HU MA N R I GHT S T R EA T I ES

The UK’s seventh periodic report to the UN’s Human Rights Committee was published in April 2013,155 but the Committee’s Concluding Observations had not been released even by the end of 2014. Likewise, the UK’s first periodic report on the Convention on the Rights of Persons with Disabilities was published in July 2013156 and awaits consideration by the relevant committee. Towards the end of 2013, the UK government submitted its 33rd Report to the European Committee of Social Rights, which oversees adherence to the European Social Charter;157 this report covers ‘labour rights’, such as the rights to just conditions of work, to fair remuneration, to organise and to bargain collectively.158 At the end of the year, the Committee issued its views on 150

See the Enterprise and Regulatory Reform Act 2013, ss 17–20. Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (SI 989), amending the Employment Rights Act 1996, s 108(3); Employment Rights (NI) Order 1996, Art 140(1). 152 Parental Leave (EU Directive) (Maternity and Parental Leave) Regs (NI) 2013. 153 The 2013 Annual Statement (NIHRC, 2013) 38; see above n 1. 154 [2013] NIQB 89 (Horner J). 155 For the NIHRC’s submission see http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.asp x?symbolno=INT%2fCCPR%2fIFL%2fGBR%2f17845&Lang=en. 156 Available at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode= GBR&Lang=EN. 157 The UK has ratified the 1961 version of this Charter, but not the Additional Protocol on Collective Complaints on the revised Social Charter of 1996 158 Available at www.coe.int/t/dghl/monitoring/socialcharter/Reporting/StateReports/UK33_en.pdf. 151

Correspondent Reports—Dickson 159 the UK’s adherence between 2008 and 2011 to Articles 3 and 11–14 of the European Social Charter,159 the provisions dealing with health, social security and social protection.160 The only provision which the Committee concluded the UK was breaching was Article 12(1), which guarantees the right to social security. The Committee found that the minimum levels of short- and long-term incapacity benefit, state pension and jobseeker’s allowance were all ‘manifestly inadequate’ because they fell below 40 per cent of the Eurostat ‘median equivalised income’. This verdict takes no account of the welfare and state pension reforms announced in 2012, but those reforms are very unlikely to remove the inadequacy. The UK was not due to submit its next report to the Advisory Committee monitoring compliance with the European Framework Convention on the Protection of National Minorities until May 2014. However, in March 2013, it submitted its ‘fourth cycle’ report to the Committee of Experts monitoring the European Charter for Regional or Minority Languages.161 The NIHRC hosted a visit by that Committee and made its own submission to it.162 The Committee’s Evaluation Report was adopted in June 2013 and the Committee of Ministers issued its recommendations in January 2014.163 Amongst these were the proposals that, as a matter of priority, the UK authorities should (i) adopt and implement a comprehensive Irish language policy, preferably through the adoption of legislation providing statutory rights for the Irish speakers, (ii) strengthen support for the work done by the Ulster Scots Agency and take measures to establish the teaching of Ulster Scots, and (iii) ensure that the present cuts in public spending do not have a disproportionate effect on the protection and promotion of minority languages.

159

The UK, unlike Ireland, has not ratified the Revised European Social Charter dating from 1996. Article 3 guarantees the right to safe and healthy working conditions; Art 11 the right to protection of health; Art 12 the right to social security; Art 13 the right to social and medical assistance; and Art 14 the right to benefit from social welfare services. 161 Available at www.coe.int/t/dg4/education/minlang/Report/PeriodicalReports/UKPR4_en.pdf. 162 NIHRC press release, ‘Committee of Experts Visit Belfast’, 31 October 2013. 163 Both are available at www.coe.int/t/dg4/education/minlang/Report/EvaluationReports/UKECRML4_ en.pdf. 160

Irish Yearbook of International Law 2013 Correspondent Reports—Long

Irish State Practice on the Law of the Sea 2013 RONÁN LONG*

IN T R ODU C T I ON

T

HE LAW OF the Sea remains one of the most dynamic areas of contemporary international law and Ireland continues to give full effect to an everexpanding array of international and European Union (EU) obligations concerning the management and utilisation of ocean space and the resources it supports. In this regard, there is a close nexus between the law of the sea and the progressive development of other areas of international law, including those pertaining to climate change, environmental protection, human rights, trade, global security and economic prosperity.1 That said, the implementation of the 1982 United Nations Convention on the Law of the Sea (the LOS Convention) and related international agreements continues to be of crucial importance for Ireland as a small island state bordering the northeast Atlantic with an open economy that is very much dependent upon international trade and foreign direct investment for its future growth and prosperity.2 During the report period, some highlights of state practice concerning the law of the sea included: the further streamlining and restructuring of the public bodies concerned with the public administration of maritime matters; the publication of the General Scheme of the Maritime Area and Foreshore (Amendment) Bill; the publication of the first report on the implementation of Ireland’s Integrated Marine Plan; substantial work by the national search and rescue services; the making of the Sea Pollution (Prevention of Air Pollution from Ships) (Amendment) Regulations 2013; a ground-breaking Supreme Court decision concerning the discretion of the trial judge in sentencing in fisheries cases; the continued success of the Naval Service in undertaking fisheries monitoring, control and surveillance activities; case law on the payment of security for the release of fishing vessels pending the determination of legal proceedings under the Sea-Fisheries and Maritime Jurisdiction Act 2006; and the crucial role played by the Irish Presidency of the Council of the EU (from January to July 2013) in European maritime affairs, including bringing the reform of the common fisheries policy to a successful conclusion.

*

National University of Ireland Galway. D Rothwell and T Stephens, The International Law of the Sea (Oxford, Hart Publishing, 2010) 25–27. On the importance of foreign direct investment, see, Richard Bruton, TD, ‘Minister for Jobs, Enterprise and Innovation, Policy Statement on Foreign Direct Investment in Ireland, July 2014’, available at www.enterprise.gov.ie/en/Publications/Policy_Statement_on_Foreign_Direct_Investment_in_Ireland_ PDF_689KB_.pdf. 1 2

161

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As is well known, the approach to ocean governance advanced by the LOS Convention and related international agreements is very much founded on the premise that the ‘the problems of ocean space are closely related and need to be considered as a whole’.3 Although the LOS Convention makes no reference to how the administration of maritime matters ought to be organised by states parties to ensure that they contribute to ocean governance in an integrated manner, there is a solid trend in state practice worldwide towards the establishment of national maritime offices or the centralising of key functions within unified structures at a national level with a view to improving the coordination and implementation of maritime policies.4 In line with international best practice and in tandem with the rolling out of the EU’s Integrated Maritime Policy,5 a number of initiatives have been taken in recent years to streamline the policy framework and to provide strategic direction to the work of the various government departments, agencies and other public bodies involved in the administration of maritime matters in Ireland. Most notably, the establishment of the Inter-Departmental Marine Co-ordination Group (MCG) chaired by the Minister for Agriculture, Food and the Marine, Mr Simon Coveney, TD, was a major milestone and it is now the primary forum with responsibility for the coordination of government policy on key maritime matters such as marine environmental protection, maritime security and the development of the marine economy. The MCG comprises representatives from the Departments of the Taoiseach, Agriculture, Food and the Marine, the Environment, Community and Local Government, Transport, Tourism and Sport, Communications, Energy and Natural Resources, Jobs, Enterprise and Innovation, and Public Expenditure and Reform. Significantly, the MCG held nine meetings in 2013 and engaged with key stakeholders from both the public and private sectors, such as Fáilte Ireland, the Irish Chamber of Shipping and the Socio-Economic Marine Research Unit at the National University of Ireland (NUI) Galway.6 The work of the MCG has an international focus and it held regular meetings during the report period with the European Commission to discuss matters of common concern, including the reform of EU policies and the development of the EU’s maritime security strategy.7 The reorganisation of the structures for delivery of government policy continued apace in 2013, with the establishment of three cross-cutting departmental bodies charged with different aspects of the maritime brief. Three aspects of the new structures merit further consideration here. First, the establishment of an Enablers Task Force under the auspices of the aforementioned MCG is aimed at undertaking some of the strategic and planning functions associated with rolling out the roadmap on

3

Preamble, United Nations Convention on the Law of the Sea. Above n 1, 461–85. 5 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Guidelines for an Integrated Approach to Maritime Policy: Towards Best Practice in Integrated Maritime Governance and Stakeholder Consultation’, COM(2008) 395 (Brussels, 26 June 2008). 6 ‘Harnessing Our Ocean Wealth: Review of Progress 2012/13’, 10, available at www.ouroceanwealth.ie/ SiteCollectionDocuments/HOOW%20Progress%20Report%202012_2013_%20English%20web.pdf. 7 Ibid. 4

Correspondent Reports—Long 163 marine spatial planning.8 This body also has a diverse constituency, being made up of representatives from the Department of Arts, Heritage and the Gaeltacht, the Department of Transport, Tourism and Sport, the Department of Communications, Energy and Natural Resources, the Department of Agriculture, Food and the Marine, the Department of Environment, Community and Local Government, and the Office of the Attorney General. Secondly, the establishment of a Development Task Force (DTF) to work on three thematic areas that are fundamental to the future growth of the Irish maritime economy, namely: (i) governance; (ii) business development, marketing and promotion; and (iii) research, knowledge, technology and innovation.9 In relation to the latter, the DTF is reviewing opportunities to maximise the capacity and potential of existing marine training facilities/programmes, including those on offer by the National Maritime College and by other Irish third-level institutions. Thirdly, further progress was made during the report period with the establishment of the Irish Maritime Administration (IMA), which brings together within a single national office several divisions and agencies of the Department of Transport, Tourism and Sport that are concerned with maritime safety and transport, including the Maritime Safety Policy Division, the Marine Survey Office, the Irish Coast Guard, the Maritime Transport Division and a new Maritime Services Division.10 Significantly, one of the key functions of the IMA is to ensure the attainment of international safety standards pertaining to the shipping, fishing and leisure sectors. The IMA has specific responsibility concerning the implementation of the obligations set down in international safety conventions, safety standards and codes of practice, and to undertake ship surveys and inspections in conformity with Ireland’s international and EU obligations.11 From a regulatory perspective, the principal areas for cross-departmental coordination during the report period related to the implementation of the Marine Strategy Framework Directive,12 research and innovation, the implementation of the Habitats and Birds Directives,13 maritime safety, security and surveillance, and offshore energy. In general, the new structures will facilitate the implementation of new normative approaches to marine resource management that are codified by the EU,14 as well as Ireland’s capacity to implement various aspects of the treaty and customary law

8

See further below. Ibid, 11. 10 Dáil Debates 5655/14, 4 February 2014. 11 Answers to Question Nos 668 and 631, Dáil Éireann, 1 October 2013; Dáil Debates 41141/13. 12 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [208] OJ L164/19. See R Long, ‘The Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services’ (2011) 29(1) Journal of Energy and Natural Resources Law 1. 13 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L2067; Council Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20/7. 14 See R Long ‘Principles and Normative Trends in European Union Ocean Governance’ in C Schofield, S Lee and M Kwon (eds), The Limits Of Maritime Jurisdiction (Boston/Leiden, Brill/Nijhoff Publishers, 2014) 629–726. 9

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pertaining to the ocean, including the extensive provisions in the LOS Convention and regional agreements on the protection and preservation of the marine environment.15

H ARN E S S IN G O UR O CE AN WEA LT H: A N I NT EGR A T ED MA R I NE PLA N FOR I R ELA ND

The first progress review of the implementation of ‘Harnessing our Ocean Wealth: An Integrated Marine Plan’ (IMP) for Ireland was published in 2013.16 As noted in previous reports, the IMP is aimed at establishing a thriving maritime economy, healthy ecosystems and greater engagement with the sea.17 The economic objectives of the IMP are ambitious insofar as Ireland aims to double the turnover from the marine economy by 2020 to €6.4bn annually. Ultimately, the intention is to foster sufficient growth to bring the maritime sector in Ireland into line with the contributions made by the maritime economies of similar sized Member States in the EU. At the same time, the IMP aims to foster healthy ecosystems that provide monetary and nonmonetary goods and services, as well as the enhancement of greater public awareness and engagement with the state’s maritime heritage and culture. As part of the IMP, several new policy initiatives were launched, including the adoption of a National Ports Policy, a new strategy for the seafood sector, and the Offshore Renewable Energy Development Plan. In addition, a Development Task Force was established to foster greater inter-departmental and agency collaboration with respect to the development of new and emerging areas of marine-related enterprise, including those that pertain to offshore renewables, marine services, ICT and biotechnology. Apart from a number of actions that are aimed at improving the coordination and streamlining of decision-making by government departments and agencies, the principal legislative mechanisms for the delivery of the IMP are through the adoption of a national marine spatial plan underpinned by effective planning and licensing frameworks for offshore activities, including those that impinge upon the foreshore. The national marine spatial plan when adopted will have to conform with the requirements of the EU’s Directive on Integrated Maritime Planning,18 and reflect international best practice both within and beyond the EU.19

15

Arts 192–237, LOS Convention. Available at www.ouroceanwealth.ie/SiteCollectionDocuments/HOOW%20Progress%20Report%20 2012_2013_%20English%20web.pdf. 17 F de Londras and S Mullally (eds), Irish Yearbook of International Law, vol 7 (Oxford, Hart Publishing, 2014) 284–85. 18 Directive 2014/89/EU [2014] OJ L257/135. 19 Several EU Member States have applied marine spatial planning, including Belgium, Germany, Portugal, Sweden, the Netherlands and the UK. See F Douvere and CN Ehler, ‘New Perspectives on Sea Use Management: Initial Findings from European Experience with Marine Spatial Planning’ (2009) 90 Journal of Environmental Management 77. See also D Rothwell and T Stephens, The International Law of the Sea (Oxford, Hart Publishing, 2010) 465–67; F Douvere and C Ehler, ‘Marine Spatial Planning: Identifying the Critical Elements for Success’ in E Ciccotelli and C Benigno (eds), Spatial Planning: Strategies, Developments and Management (Hauppauge, Nova Sciences Publishers, 2012) 233–50; F Douvere, Marine Spatial Planning: Concepts, Current Practice and Linkages to other Management Approaches (Ghent, Ghent University, 2010). 16

Correspondent Reports—Long 165 FOR ES HOR E

A major milestone was passed in relation to the management of maritime space and the land/ sea interface with the publication of the General Scheme of the Maritime Area and Foreshore (Amendment) Bill in October 2013.20 Essentially, the Bill has two purposes: firstly, to align the foreshore consent system with the terrestrial planning system as set out in the various Planning and Development Acts and related instruments; secondly, to provide for the regulation and management of activities associated with the provision of vital infrastructure to facilitate the future development of ports, along with the renewable energy and hydrocarbon sectors.21 The Heads of the Bill are divided into eight parts, addressing: (1) Preliminary and General; (2) Planning and Development; (3) Foreshore; (4) Other Miscellaneous Amendments; (5) Amendments to the Dumping at Sea Acts 1996–2012; (6) Offshore Natural Gas Storage; (7) Amendment of the Gas Act, 1976 and Petroleum and Other Minerals Development Act, 1960; (8) Amendment of the Energy (Miscellaneous Provisions) Act, 1995. A cursory examination of the Heads of the Bill reveals that the draft provisions are rudimentary in both substance and form, and are intended to evolve over time in line with parliamentary scrutiny and further debate. That said, they have potential to make the Bill one of the most significant legal instruments pertaining to the management and conservation of Ireland’s offshore resources to come before the Oireachtas since the foundation of the state. They also touch upon many policy areas and will bring about much needed reform to the statutory functions exercised by a number of government ministers, including the Minister for Communications, Energy and Natural Resources, the Minister for Environment, Community and Local Government, and several other government agencies and statutory bodies. At this point, it may be pertinent to comment very briefly on some aspects of the General Scheme of the Maritime Area and Foreshore (Amendment) Bill from an international law perspective. Clearly, further clarity is required in relation to the precise meaning and functioning of the so-called ‘maritime area’, which entails the amalgamation of the foreshore area, the exclusive economic zone and the seabed areas designated under the Continental Shelf Act 1968.22 Likewise, it is crucial from the point of view of legal preciseness that terms in the Bill such as ‘nearshore’ and ‘foreshore’ are defined by reference to Ireland’s well-established baseline legislation and in light of the well-established norms in international law pertaining to the designation and use of maritime space.23 Similarly, many of the substantive provisions and the general scheme of the Bill need to be reconciled with the frameworks established by EU secondary legislation, such as the Water Framework Directive,24 the Marine Strategy Framework Directive,25 and the Directive on Maritime Spatial Planning.26 Most importantly, the publication of the Bill in due course will present a remarkable 20

Available at www.environ.ie/en/Foreshore/PublicationsDocuments/FileDownLoad,34315,en.pdf. See ‘Oireachtais Report of the Joint Committee Environment, Culture and the Gaeltacht, February 2014’, available at www.oireachtas.ie/parliament/media/committees/environmenttransportcultureandthegael tacht/Maritime-Area-Foreshore-Report-Final.pdf. 22 Head 2, General Scheme of the Maritime Area and Foreshore (Amendment) Bill. 23 See R Long, Marine Resource Law (London, Thomson Round Hall, 2007) 110–79, esp 121–35. 24 Directive 2000/60/EC [2000] OJ L327/1. 25 Directive 2008/56/EC [2008] OJ L164/19. 26 Directive 2014/89/EU [2014] OJ L257/135. 21

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opportunity to shift the management paradigm away from sovereign-rights and sectorspecific approaches towards more integrated governance that incorporates norms and principles that are well established in both treaty and customary law, including the precautionary principle, ecosystems-based management, transparent and participatory decision-making processes, the polluter-pays principle and the concept of sustainable development.27 The Joint Committee on Environment, Culture and the Gaeltacht published a report on four key aspects of the Bill in 2014.28 The report fails in some respects to highlight contemporary state practice worldwide on maritime spatial planning or international trends towards the establishing of specialist bodies to undertake areabased management and decision-making in relation to maritime space.29 At this early stage in the legislative process, it is also difficult to foresee how An Bord Pleanála and local authorities can undertake the sophisticated integrated planning and management functions that impinge upon maritime shipping, fishing and aquaculture activities, the conservation of marine biodiversity and ecosystems, the extraction of raw materials, including offshore hydrocarbons, tourism, cultural heritage and the multiple pressures on coastal resources. Indeed, many aspects of the proposed approach as set out in the Heads of the Bill appear to be at odds with EU legislative trends on maritime spatial planning and the development of the offshore energy sector,30 as well as some central tenets of international law concerning marine resource management and utilisation. Nevertheless, the publication of the Bill in due course will be welcome as the first major revision of Ireland’s foreshore law since 1933, though it will require substantial refinement before it brings about the type of reform that is needed to protect and ensure the efficient utilisation of a vital public amenity in the interest of the common good.

MARITIM E S AF ET Y , S EC U R I T Y A ND S U R V EI LLA NC E

The Integrated Marine Plan notes that ‘the creation of the conditions needed for economic growth, investment and job creation depend on the State ensuring a safe, secure and protected environment consistent with best international standards of governance and the protection of the maritime environment’. In 2013, preparations commenced on developing a new maritime safety strategy for Ireland to reduce the numbers of lives lost at sea.31 The Minister for Transport, in conjunction with the Minister for Agriculture, Food and the Marine, launched a new safety initiative for fishing vessels which requires each crew member to wear a personal locator beacon. The strategy also entails the amendment of the Code of Practice on Fishing Vessels Safety to reflect the lessons learnt from recent tragedies on the Irish coast, including

27

See Long, above n 14, 629–726. Above n 20. 29 See inter alia M Slater, ‘What is Marine Spatial Planning?’ (2012) 14(1) Environmental Law Review 1; see also European Commission Communication, COM(2013) 133 final, Brussels, 12 March 2013. 30 See R Long, ‘Offshore Renewable Energy Development: Legal Challenges and Policy Conundrums in EU’ (2014) 34(4) International Journal of Marine and Coastal Law 690, esp 707–10. 31 Debate Marine Safety, Dáil Éireann, 26 November 2013. 28

Correspondent Reports—Long 167 the loss of the Irish fishing vessel Tit Bonhomme on the approach to Union Hall in 2012.32 The numbers of vessels requiring assistance from the Irish Coast Guard in 2013 were reported to be: 61 merchant vessels, 215 fishing vessels and 498 recreational craft.33 Significantly, the Irish Coast Guard provided considerable assistance to the marine rescue coordination authorities in several coastal states in the North-East Atlantic on a regular basis, including: 72 assists to the UK, 6 to France, 7 to Spain and 28 to other states.34 The provision of search rescue facilities by Ireland in line with the requirements of the International Convention for the Safety of Life at Sea and the 1979 International Convention on Maritime Search continues to be a major burden on the Irish Exchequer. For instance, during the course of the report year, the government made the highest ever allocation—€67.9 million—for the Irish Coast Guard to cover the cost of the provision of helicopter search and rescue services.35 Ireland continues to be active in promoting further synergies between coastal states in the North-East Atlantic to establish an effective search and rescue service, along with the advancement of mutual regional arrangements for this purpose in accordance with the LOS Convention.36 To this end, and as part of the Irish Presidency of the Council of the EU, Ireland hosted an international seminar on ‘Challenges and Opportunities in Maritime Security and Surveillance for Effective Governance and Innovation in the EU’s Maritime Domain’ in 2013.37 In his opening address, the Minister for Justice, Equality and Defence, Mr Alan Shatter, TD, called for EU Member States to ‘improve cooperation between all the various actors, whether that be naval forces, coastguards, customs, police or other Member State security actors engaged in delivering maritime security, safety and surveillance within the Union’.38 One of the objectives of the seminar was to give further impetus to the articulation of the Joint Communication of the European Commission and the High Representative of the European Union for Foreign Affairs and Security establishing a secure global maritime domain.39

VE S S E L S O URCE POLLU T I ON R EGU LA T I ONS

Vessel source pollution continues to pose a threat to the quality of the marine environment in sea areas adjacent to Ireland. In 2013, there were 47 instances of marine pollution or threatened pollution, though the vast majority of the reported spills were of 32 See Department of Transport Press Release, 8 July 2013, available at www.agriculture.gov.ie/press/press releases/2013/july/title,70921,en.html. 33 IRCG Statistics—End of Year Totals to 31st December 2013 (copy with the author). 34 Ibid. 35 Minister for Transport, Tourism and Sport, Deputy Leo Varadkar, Dáil Éireann Debate Marine Safety, 26 November 2013. 36 Art 98, United Nations Convention on the Law of the Sea. 37 See Opening Address by the Minister for Justice, Equality and Defence, Mr Alan Shatter TD, Challenges and Opportunities in Maritime Security and Surveillance for Effective Governance and Innovation in the EU’s Maritime Domain Dublin Castle, 8–9 April 2013, available at http://eu2013.ie/media/eupresidency/ content/documents/maritimeseminarpresentations/Minister-speech-Maritime-Seminar-080413-final.pdf. 38 Ibid. 39 European Union Maritime Security Strategy, 24 June 2014. See Joint Communication to the European Parliament and the Council, ‘For an Open and Secure Global Maritime Domain: Elements for a European Union Maritime Security Strategy’, JOIN(2014) 9 final, Brussels, 6 March 2014.

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a minor nature, at less than one ton.40 The primary source of international regulatory standards for controlling pollution from shipping (vessel source pollution) is the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL), as modified by the 1978 Protocol and the 1997 Protocol on Annex VI. The transposition of International Maritime Organization (IMO) obligations into national law continued apace during the report period with the making of the Sea Pollution (Prevention of Air Pollution from Ships) (Amendment) Regulations 2013.41 The said regulations amend the Sea Pollution (Prevention of Air Pollution from Ships) Regulations 2010 in order to give effect in Irish law to further regulatory requirements arising out of decisions of the IMO’s Environmental Protection Committee concerning MARPOL Annex VI, which concerns the prevention of air pollution from ships.42 With a view to reducing the impact of shipping on the contributory causes to climate change, it may be recalled that MARPOL Annex VI sets limits on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibits deliberate emissions of ozone-depleting substances. The Sea Pollution Act 1991 and regulations made thereunder incorporate Annex VI into the existing legislative framework in Ireland addressing vessel source pollution.43 The 2013 Regulations are highly technical in ambit and provide for amendments to MARPOL Annex VI, including: the addition of a new chapter 4 to MARPOL Annex VI to make mandatory the Energy Efficiency Design Index for new applicable ships, and the Ship Energy Efficiency Management Plan for all applicable ships; the provision of a format for the International Energy Efficiency Certificate which is provided in the new Appendix VIII to MARPOL Annex VI; and the designation of certain waters adjacent to the coasts of Puerto Rico (United States) and the Virgin Islands (United States) as Emission Control Areas under MARPOL Annex VI Regulation 13 concerning nitrogen oxides and under MARPOL Annex VI Regulation 14 concerning sulphur oxides and particulate matter.44

I R I S H T R EA T Y S ER I ES

Several multilateral and regional treaties with a maritime dimension were published in the Irish Treaty Series in 2013,45 including: the International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001;46 the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims 1976;47 and the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and

40

Irish Coast Guard Search and Rescue Report, available at www.dttas.ie/maritime. SI No 35/2013. 42 SI No313 of 2010. Resolutions MEPC.202(62) and MEPC.203(62) adopted on 15 July 2011. 43 No 27 of 1991. 44 Explanatory Memorandum Sea Pollution (Prevention of Air Pollution from Ships) Regulations 2010, available at www.irishstatutebook.ie/pdf/2013/en.si.2013.0035.pdf. 45 www.dfa.ie/our-role-policies/international-priorities/international-law/find-a-treaty/. 46 No 2 of 2013. Ireland’s instrument of accession deposited on 20 October 2011 and entered into force with respect to Ireland on 20 January 2012. 47 No 7 of 2013. Ireland’s instrument of accession deposited on 25 January 2012 and entered into force with respect to Ireland on 24 April 2012. 41

Correspondent Reports—Long 169 other Harmful Substances 1983, as amended by the Decision of 21 September 2001 by the contracting parties to enable the Accession of Ireland to the Agreement.48

P E N AL TIE S AP P L ICABLE T O FI S HER I ES OFFENC ES

As a coastal state, Ireland is vested with significant powers pursuant to international law to adopt and implement laws and regulations pertaining to the enforcement of fisheries conservation and management measures that apply in sea areas under national sovereignty and jurisdiction.49 As a matter of practice, responsibility for taking enforcement action and ensuring compliance with EU and national fishing law rests firmly with the fishery law enforcement bodies in Ireland, namely the Sea Fisheries Protection Authority and the Naval Service. Moreover, further to the requirements of the Common Fishery Policy (CFP), Ireland is obliged to adopt appropriate measures for ensuring control, inspection and enforcement of all fishing-related activities, including the establishment of effective, proportionate and dissuasive penalties.50 As noted in previous reports, a long-standing issue in this regard is the punitive and mandatory nature of the penalties that have traditionally been invoked by the courts in Ireland for breaches of fisheries law in criminal proceedings.51 This is sometimes compounded by the exceptional complexity and obscurity of Irish and European fisheries law, as noted in obiter dicta by both Clarke and Hardiman JJ of the Supreme Court in Montemuino v Minister for Communications & Ors.52 The High Court judicial review proceedings, which ultimately led to an appeal to the Supreme Court, arose out of the failure of the applicant, Mr Montemuino (a Spanish national and master of an Irish fishing vessel), to record in the fishing logbook the true quantity of a non-quota species of forkbeard, valued at €600, caught and retained on board the Ocean Enterprise.53 This failure contravened both national and EU fisheries law.54 The applicant challenged the constitutionality of the provisions in the Fisheries (Consolidation) Act 1959 in that they provided for the mandatory forfeiture of all or any of the fish and fishing gear on the vessel involved in an offence where a conviction on indictment arose, on the grounds that there was no requirement for a mandatory penalty under EU Law and that the said forfeiture was ‘wholly and exceptionally disproportionate’, as the value of the fish on board amounted to €30,000.55

48

No 22 of 2013. Entered into force with respect to Ireland on 1 April 2010. Arts 62(4)(k), 66(3)(d) and 73, United Nations Convention on the Law of the Sea. 50 Art 36(3), Regulation (EU) No 1380/2013 of the European Parliament and of the Council 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. 51 See, eg Attorney General v Sheehy [1990] 1 IR 70. 52 [2013] IESC 40. 53 Montemuino v Minister for Communications & Others [2009] 1 ILRM 218. 54 In contravention of the following: Council Regulation No 2847/93 establishing a control system applicable to the Common Fisheries Policy Commission; Regulation No 2807/83 laying down detailed rules for recording information on Member States’ catches of fish as amended; Regulation 4 of the Sea Fisheries (Control of Catches) Regulations 2003 (SI 345 of 2003), contrary to s 224B of the Fisheries (Consolidation) Act 1959, as inserted by s 5 of the Fisheries (Amendment) Act 1983 and s 232 of the Fisheries (Consolidation) Act 1959. 55 [2013] IESC 40. 49

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The applicant failed in the High Court to identify any rights stemming from the Irish Constitution or European Human Rights Convention that were violated by the imposition of a consequential order forfeiting all fish found on board his vessel in the event of his conviction.56 Furthermore, the High Court declined to make a reference to the European Court of Justice pursuant to Article 234 of the then European Community Treaty. On appeal, the Supreme Court (Denham CJ, Hardiman, Fennelly, Clarke, Macmenamin J) relied upon the ordinary canons of interpretation and presumption that penal statutes are to be construed strictly, to uphold the discretion of the sentencing judge to decide, ‘what fish (if any) and what gear (if any) are to be forfeited’.57 While noting the importance of ensuring that penalties are effective, proportionate and dissuasive in conformity with EU law,58 Clarke J pointed out that the sentencing judge would retain the ability, in an appropriate case and in circumstances where it was considered necessary to impose it as a deterrent, to direct the forfeiture of all fish and all fishing gear, even though a relevant offence might be said to specifically relate only to a portion thereof. In addition, he pointed out that the legislation provides for a substantial fine as being capable of being imposed in any event. Indeed, in the case at hand, the learned judge further noted that the maximum fine of £100,000 (€126,973) exceeded the total value of any possible forfeiture of fish by a multiple of four. The Supreme Court thus dismissed the appeal from the High Court. The importance of this case is reflected in the fact that a further 60 fishery cases were held over pending the outcome. Moreover, the decision of the Supreme Court to uphold the sentencing discretion of a judge in the Circuit Court in bringing the criminal process to a conclusion will ensure that the penalties invoked for fisheries offences will depend upon the facts of a particular case, the nature of the offence at trial and the outcome of the proceedings. Significantly, since the judgment, Ireland has adopted a penalty points system for serious infringements of the CFP in conformity with the requirements of Article 92 of the Council Regulation 1224/2009 and Title VII of the Implementing Rules Regulation 404/2011.59 Under the new scheme, the accumulation of points for persistent serious infringements may result in the suspension of a sea fishing boat licence for a period of from two months to one year, or the permanent withdrawal of a licence in instances where there are persistent serious infringements of fisheries law, such as the failure to record or report catch data in a fishing vessel’s logbook.

56

Above n 53. [2013] IESC 40. 58 Case C-167/01 Inspire Art [2003] ECR I-10155; Case 68/88 Commission v Greece [1989] ECR 2965, paras 23 and 24; Case C-230/01 The Intervention Board for Agricultural Produce v Penycoed Farming Partnership [2004] ECR I-937; Joined Cases C-387/02, C-391/02 and C-403/02 Silvio Berlusconi and Others [2005] ECR I-3565. 59 European Union (Common Fisheries Policy) (Point System) Regulations 2014 (SI No 3 of 2014), came into effect on 20 January 2014. 57

Correspondent Reports—Long 171 Table 1: Fisheries Vessels Boarded, Inspected and Detained by the Naval Service in 2013 2012

Boarding/inspection

Detentions

Ireland

403

7

Spain

273

1

UK

104

4

France

193

3

Denmark

4

–

Faroe Islands

1

Netherlands

7

1

Germany

1

–

Norway

1

–

Belgium

7

–

994

16

Total

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

F IS H E RI ES ENFOR C EMENT

In the exercise of its sovereign rights to explore, exploit, conserve and manage the fisheries resources in sea areas under the sovereignty and jurisdiction of the state, Ireland may take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the rules underpinning the common fisheries policy, as well as national laws and regulations.60 The Naval Service and the Sea Fisheries Protection Authority are responsible for the onerous tasks associated with fisheries law enforcement and compliance activities in Ireland. As can be seen from the information presented in Table 1, 994 fishing vessels operating in sea areas under Ireland’s sovereignty and jurisdiction were subject to boarding and inspection in 2013. Similar to previous years, these included vessels flying the flags of other EU Member States, including Spain, the UK, France, Denmark, the Netherlands, Germany and Belgium. The Naval Service also boarded and inspected vessels from Norway and the Faroe Islands.61 In line with trends over the past decade, the number of vessels detained and escorted to port for alleged breaches of national and EU fisheries law remains relatively evenly spread across the number of vessels inspected.

60

Art 73(1), LOS Convention. The EU Treaties do not apply to the Faeroe Islands, Art 355(5)(a) Treaty on the Functioning of the European Union. There are, however, specific provisions under the common fisheries policies governing relations between the EU and the Faroes Islands in relation to access to fishery resources. In 2013, these were given effect in Ireland by European Union (Common Fisheries Policy) (Faroe Islands) Regulations, SI No 432 of 2013. 61

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RE AS O N AB L E N E S S O F S EC U R I T Y FOR R ELEA S E OF FI S HI NG V ES S EL

Fisheries offences in Ireland are dealt with under the criminal law and are prosecuted in the name of the Director of Public Prosecutions. Under the Sea Fisheries and Maritime Jurisdiction Act 2006,62 a district court is empowered to make an order detaining the vessel and any such persons (including the master) at a specified port in the state to facilitate the determination of legal proceedings.63 The court may also order that the boat be released if security is paid at a sum that is sufficient to provide for: (i) the maximum fine; (ii) the costs of judicial or other proceedings, and (iii) the estimated value of any forfeitures that may be ordered pertaining to the offence.64 The difficulties encountered in setting security for the release of a fishing vessel came to public attention in a high-profile case concerning the arrest of one of the world’s largest fishing vessels, the Annelies Ilena, which is registered in the Netherlands, for alleged breaches of EU fishing regulations within the exclusive fishery limits of the Irish state in 2013.65 In this particular instance, pending the determination of proceedings, the state sought as surety a bond of €5.8 million prior to the release of the vessel,66 a sum that was deemed disproportionate by Judge Kilrane at the Donegal District Court. From an international law viewpoint, the decision to set the bond at the lower threshold of €250,000 appears to be four-square with both the letter of the LOS Convention and recent jurisprudence of the International Tribunal for the Law of the Sea (ITLOS), which requires arrested vessels and their crews to be promptly released upon the posting of a reasonable bond or other security.67 The ITLOS has elaborated extensively, in its prompt release case law, the factors that ought to be taken into consideration by national courts and tribunals in making a determination as to the reasonableness of the bond.68 These factors, which must be assessed in an objective manner, include: the gravity of the alleged offences; the penalties imposed or imposable under the laws of the detaining state; the value of the detained vessel; the value of the cargo seized; and the amount and form of the bond imposed by the competent court or tribunal in the detaining state.69 The information required in order to determine the amount of a reasonable bond or other financial security in ITLOS proceedings is also addressed in Article 111(2)(b) and (c) of the ITLOS Rules.70

62

No 8 of 2006. Sea Fisheries and Maritime Jurisdiction Act 2006, s 20. 64 Ibid, s 22(a). 65 ‘State Seeks €5.8m Bail to Free Super-trawler Annelies Ilena’, Irish Examiner, 26 November 2013, available at www.irishexaminer.com/ireland/state-seeks-58m-bail-to-free-super-trawler-annelies-ilena-250704.html. 66 Ibid. 67 Art 73, LOS Convention. 68 See inter alia Camouco Case, Panama v France, Prompt Release, ITLOS Case No 5, ICGJ 338 (ITLOS 2000), 7 February 2000; Monte Confurco Case, Seychelles v France, Prompt Release, ITLOS Case No 6, ICGJ 339 (ITLOS 2000), 18 December 2000; Grand Prince Case, Belize v France, Prompt Release, ITLOS Case No 8; ICGJ 341 Prompt Release, ITLOS Case No 6; ICGJ 339 (ITLOS 2000), 18 December 2000; Hoshinmaru Case, Japan v Russian Federation, Prompt Release, ITLOS Case No 6, ICGJ 339 (ITLOS 2000), 18 December 2000. 69 For a discussion of these factors see Y Tanaka, The International Law of the Sea (Cambridge, Cambridge University Press, 2012) 420. 70 Rules of the Tribunal, ITLOS, ITLOS/8, 17 March 2009, available at www.itlos.org/fileadmin/itlos/ documents/basic_texts/Itlos_8_E_17_03_09.pdf. 63

Correspondent Reports—Long 173 RE F O RM O F TH E C OMMON FI S HER I ES POLI C Y

One of the highlights of 2013 from a European fisheries law perspective was the conclusion under the Irish Presidency of the EU of the protracted negotiations within the EU institutions on the reform of the CFP. The negotiations were influenced to a large degree by the requirements and framework set down in Council Regulation (EC) No 2371/2002,71 the Court of Auditor’s report on control and enforcement of European fisheries law,72 and the coming into force of the Lisbon Treaty. The initial thinking of the European Commission on the reform measures was set out in a Green Paper that was published in 2009.73 This was followed by a number of legislative proposals, including a new management regulation;74 a new regulation on the common organisation of the market in fishery and aquaculture products;75 and a regulation on the European Maritime and Fisheries Fund.76 In parallel, the Commission published communications on: the external dimension of the policy;77 the reform of the policy;78 and the reporting obligations applicable to the conservation and sustainable exploitation of fisheries resources.79 At the commencement of the Irish Presidency, the Minister for Agriculture, Food and the Marine, Mr Simon Coveney, TD, secured a new mandate from EU Fisheries Ministers to enter the final negotiations with the European Parliament on the reform of the CFP. The principal aim of the Irish Presidency was to ensure that the draft legislative measures under discussion brought about much needed reform of the entire sector to ensure that fishing activity is more sustainable from environmental, economic and social perspectives. These objectives were largely achieved with the adoption of Regulation (EU) No 1380/2013 (commonly referred to as the ‘Basic Regulation’), which provides a framework for improving the management and governance of fisheries.80 Essentially, the Basic Regulation sets down the basic principles and standards, as well 71 Art 35, Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and exploitation of fisheries resources under the Common Fisheries Policy [2002] OJ L358/59. 72 European Court of Auditors’ Special Report No 7/2007, on the control, inspection and sanction systems relating to the rules on conservation of Community fisheries resources together with the Commission’s replies [2007] OJ C317/1. 73 Green Paper, ‘Reform of the Common Fisheries Policy’, COM(2009)163 final, 22 April 2009. 74 ‘Proposal for a Regulation of the European Parliament and the Council on the Common Fisheries Policy’, COM(2011) 425 final, Brussels, 13 July 2011. 75 ‘Proposal for a Regulation of the European Parliament and the Council on the Common Organisation of the Markets in Fishery and Aquaculture Products’, COM(2011) 416 final, Brussels, 13 July 2011. 76 Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003 (EC) No 861/2006 (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council [2014] OJ L149/1. 77 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Region, ‘External Dimension of the Common Fisheries Policy’, COM(2011) 424 final, Brussels, 13 July 2011. 78 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Reform of the Common Fisheries Policy’, COM(2011) 417 final, Brussels, 13July 2011. 79 ‘Report on Reporting Obligations on the Conservation and Sustainable Exploitation of Fisheries Resources under the Common Fisheries Policy’, COM(2011) 418. 80 Regulation (EU) No 1380/2013 of the European Parliament and of the Council 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.

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as the time-frame for the adoption of management and implementation measures. In addition, it addresses the role of industry, the Member States, the European Commission, and the various bodies and competent authorities that operate at the national and EU levels. The new instrument has a number of key features that are fundamental for the sustainable management of fisheries in sea areas under Ireland’s sovereignty and jurisdiction over the coming decade. Some of its key features thus warrant further mention here. In particular, the Basic Regulation retains the rules that restrict access to resources in waters within 12 nautical miles from the baselines.81 As noted in the Preamble, these rules preserve the traditional fishing activities on which the social and economic development of certain coastal communities is highly dependent.82 Pointedly, the European Parliament sought, during the course of the reform debate in 2011–13, to strengthen these rules to give preferential access for small scale, artisanal or coastal fishermen. The measures as adopted retain the status quo in relation to Irish costal waters and allow access for fishing vessels flying the flags of France, the United Kingdom, the Netherlands, Germany and Belgium in the 6–12 mile zone in various parts of the coast as set out in Annex 1 of the Basic Regulation. A major achievement of the Irish Presidency was the successful conclusion on the highly controversial prohibition on the practice of discards (the wasteful practice of dumping unwanted fish at sea) and the setting down of a regulatory requirement in this regard.83 On ending discarding, Minister Coveney pointed out that the issue was one of the most ‘contentious and difficult to agree given the many different perspectives on how such a ban would work in practice’.84 Under the new arrangements, the landing obligation will be introduced incrementally on a fishery-by-fishery basis.85 Moreover, fishers will be allowed to continue discarding species provided that there is appropriate scientific evidence of such species having a high survival rate when released into the sea.86 Another important aspect for Ireland is that the Basic Regulation retains the principle of relative stability as a core principle underpinning the CFP concerning the allocation of fisheries resources among the Member States.87 The principle received the imprimatur of the European institutions in the 1980s and aims to ensure the relative stability of fishing activities by allocating fishing opportunities among Member States based upon a predictable share of the stocks for each Member State.88 As such, it curtails to a degree the scope for the development of a system of private property rights in relation to fisheries at a pan-European level.89 Furthermore, the Basic Regulation also provides that the interests of each Member State shall be taken into account when new fishing opportunities are allocated, which is an important consideration for 81

Art 5, Regulation (EU) No 1380/2013. Recital 19, Regulation (EU) No 1380/2013. 83 Arts 14 and 15, Regulation (EU) No 1380/2013. 84 See Press Statement, ‘Fisheries Reform Achieved—A Brighter Future for Fisheries Secured’, 30 May 2013, available at www.eu2013.ie/news/news-items/20130530cfpreformagreementpr/. 85 Art 3(5)(a), Regulation (EU) No 1380/2013. 86 Art 15(4)(b), Regulation (EU) No 1380/2013. 87 Art 16, Regulation (EU) No 1380/2013. 88 R Churchill and D Owen, The EC Common Fisheries Policy (Oxford, Oxford University Press, 2010) 9–10 and 149–50. 89 Ibid, 296–97. 82

Correspondent Reports—Long 175 the pelagic fleet based in Donegal.90 Importantly for Member States on the periphery of the Union, such as Ireland, the Council has codified the Hague Resolution in the Basic Regulation. This Resolution, which was first adopted in 1976, is aimed at safeguarding and taking ‘full account’ of the particular needs of regions where local communities are especially dependent on fisheries and related activities.91 One of the key issues for the Irish Presidency was to enhance the future role of stakeholders in the EU policy- and law-making processes. The principal means advanced by the European institutions to enhance governance structures and to expand the scope for stakeholder involvement in the management of fisheries appears in the form of a three strand approach codified in the Basic Regulation, which entails: (i) the voluntary establishment of a system of transferable fishing concessions;92 (ii) the enhancement of the role of the Advisory Councils in the policy and decision-making processes;93 and (iii) the adoption of regional management solution to specific issues such as by means of the adoption of multiannual plans for agreed fisheries. From the outset of the reform process, there was considerable disparity in the views articulated by the European institutions (the Commission, Council and Parliament) and by a number of Member States, including Ireland, regarding the precise mechanisms that ought to be used to improve stakeholder engagement and responsibility in the practical aspects of fishery management, including the scope for the introduction of a system of private property rights similar to the individual transferable quotas (ITQs) that operates successfully in a number of jurisdictions both within and beyond the EU.94 In a relatively oblique manner, the Basic Regulation introduces the concept of ‘transferable fishing concessions’ (TFCs), defined as follows: a revocable user entitlement to a specific part of fishing opportunities allocated to a Member State or established in a management plan adopted by a Member State in accordance with Article 19 of Council Regulation (EC) No 1967/2006 (1), which the holder may transfer.95

In accordance with this definition, TFCs appears to have three fundamental features, namely: (i) the establishment and vesting of clearly identifiable economic entitlements or rights to fishers; (ii) transferability; and (ii) a market-based approach to the allocation, utilisation and transferability of such rights subject to a number of conditions.96 This approach to fishery resource management is informed by the experience in Denmark and elsewhere in the EU, including Estonia, Finland, Germany, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Sweden and the UK. There are

90

Art 16, Regulation (EU) No 1380/2013. Annex VII, Council Resolution of 3 November 1976 on certain external aspects of the creation of a 200-mile fishing zone in the Community with effect from 1 January 1977 [1981] OJ C105/1. 92 Art 21, Regulation (EU) No 1380/2013. 93 For background on the legal options, see R Long, ‘The Role of Regional Advisory Councils in the European Common Fisheries Policy: Legal Constrains and Future Options’ (2010) 25(3) The International Journal of Marine and Coastal Law 289. 94 R Long, ‘Stakeholder Participation in the European Common Fisheries Policy: Shifting the Legal Paradigm towards Rights and Responsibilities’ in H Scheiber, SK Moon and C Espósito, Ocean Law and Policy: Twenty Years of Development Under UNCLOS (Berkeley, CA, University of California, 2015). 95 Art 4(23), Regulation (EU) No 1380/2013. 96 See R Long, ‘European Union Law and Policy Applicable to Stakeholder Involvement in the Management of the Common Fisheries Policy’, Project Report: Socio-economic effects of the main management principles of the future Common Fishery Policy: impact of new policy framework and opportunities for the fishing sector to develop self- and co-management, 49, available at www.socioec.eu. 91

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also many examples of the success of this approach in fishery management outside of the EU, such as in Iceland and Norway. Although the privatisation of property rights in relation to fisheries has been opposed by the fishing industry and government bodies in Ireland, the rationale for the introduction of TFCs is based upon international best practice and the experience in some of the Member States since the introduction of individual transferable quotas in specific fisheries. The Commission cites, for instance, studies undertaken by the World Bank, the FAO and the scientific community which indicate that the use of TFCs ‘halts, and even reverses widespread [fishery] collapse’, as well as being a useful means of driving economic growth within the sector. At the EU level, central to the application of TFCs is the notion of stakeholder empowerment and engagement. Again, in the words of the Commission: If designed correctly TFCs can be an effective tool for vessel owners to plan their fishing activity along market developments, land all catches and plan their investments. They also offer the possibility to fishermen to leave the industry in exchange for financial compensation. Experience shows that TFC like systems also increase operators responsibility and facilitate discard reduction.97

In a similar vein, the Commission’s proposal for a Basic Regulation points out that such a system would ‘contribute to industry-induced fleet reductions and improved economic performance while at the same time creating legally secure and exclusive TFCs of a Member State’s annual fishing opportunities’.98 Crucially, the measures adopted are permissive in nature insofar as they vest Member States with the power to adopt a system of TFCs, but this appears to fall well short of a mandatory system of private property rights in relation to fisheries, such as those that are in operation in Iceland, Australia, Iceland, New Zealand and Namibia.99 On the conclusion of an agreement between the Council of Ministers and the European Parliament on the substance of the new measures, Commissioner Damanaki formally acknowledged the commitment and ‘relentless efforts’ of Minister Coveney throughout the negotiation process and in bringing the lengthy law-making efforts to a successful termination through the adoption of a new Basic Regulation.100 Significantly from an Irish perspective, the revised policy will be guided by the principles of good governance, which include: (i) the clear definition of responsibilities at the Union, regional, national and local levels; (ii) the taking into account of regional specificities, through a regionalised approach; (iii) the establishment of measures in accordance with the best available scientific advice; (iv) a long-term perspective; (v) administrative cost efficiency; (vi) appropriate involvement of stakeholders, in particular Advisory Councils, at all stages from conception to implementation of the measures; (vii) the 97

http://ec.europa.eu/fisheries/reform/docs/tfc_en.pdf. See the text of the draft Basic Regulation appended to the Council of Ministers’ Interinstitutional File: 2011/0195 (COD), Brussels, 11 June 2013. 99 On the legal aspects of private property rights see, inter alia, R Barnes, Property Rights And Natural Resources (Oxford, Hart Publishing, 2009); M Dross and H Acker, ‘Legal Aspects of ITQs’ in K Hiis Hauge and D Wilson (eds), Comparative Evaluations of Innovative Fisheries Management (Amsterdam, Springer, 2009) 211–23; D Symes, Property Rights and Regulatory Systems in Fisheries (Oxford, Fishing News Books, 1996) 1–16. See also SOCIOEC Deliverable D 6.13, ‘Report on Current Fisheries Management Measures Implemented in Iceland, Australia and New Zealand’, available at www.socioec.eu. 100 European Commission, Press Release, Brussels, 30 May 2013. 98

Correspondent Reports—Long 177 primary responsibility of the flag state; (viii) consistency with other Union policies; (ix) the use of impact assessments, as appropriate; (x) coherence between the internal and external dimension of the CFP; and (xi) transparency of data handling in accordance with existing legal requirements.101

WHA LI NG

At the 2012 Annual Meeting of the International Whaling Commission, it was agreed that the Commission would meet biennially, with the next meeting scheduled for 2014. In the interim, Ireland continues to adopt a strong conservation approach to the implementation of the International Convention on the Regulation of Whaling and has supported a number of EU diplomatic efforts to give greater effect to international conservation measures. In particular, Ireland has expressed concern about the continued practice of commercial whaling worldwide and, in concert with the EU, has called for the revocation of the reservation lodged by Iceland concerning trade in whale products under the Convention on International Trade in Endangered Species of Wild Fauna and Flora.102

O UTE R CO NT I NENT A L S HELF

During the period 2012–13, there were some significant developments at a global level in relation to the implementation of Article 76 of the Law of the Sea Convention. More specifically, the Commission on the Limits of the Continental Shelf (CLCS), which has adopted 18 sets of recommendations since its establishment, continues to deal with an ever-increasing workload, receiving five new submissions and one partial revised submission in 2013.103 Australia became the fourth submitting state, after Ireland, Mexico and the Philippines, to have deposited information and data on the outer limits of its continental shelf beyond 200 nautical miles.104 There is a considerable backlog in the work of the Commission, and Ireland has set important international precedents by making both a partial submission and a joint submission with neighboring states, an approach which has been followed successfully by many states in other ocean regions.105 The CLCS is unable to consider the submissions made by Ireland, the UK and Denmark in relation to the disputed continental shelf in the Hatton–Rockall area/Faroe–Rockall Plateau region without the consent of Iceland, which also makes

101

Art 3, Regulation (EU) No 1380/2013. See Irish Government News Service, ‘Ireland Supports the Demarche to the Icelandic Government on Whaling’, 15 September 2014, available at www.merrionstreet.ie/en/News-Room/Releases/ireland-supportsthe-demarche-to-the-icelandic-government-on-whaling.html. 103 Submissions, Through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, Pursuant to Article 76, Paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982 (2014), available at www.un.org/depts/los/clcs_new/commission_submis sions.htm. 104 Ibid. 105 R Long, ‘Law of the Sea; The North East Atlantic’ in D Rothwell, A Oude Elfink and T Stephens (eds), Oxford Handbook on the Law of the Sea (Oxford, Oxford University Press, 2015) 656–57. 102

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a claim in this area, and the matter is currently in abeyance. The four states are thus committed to further quadrilateral negotiations to resolve these boundaries. As is evident from the Report of the Secretary-General to the General Assembly of the United Nations, Ireland remains a significant contributor to the trust funds administered by the UN’s Division for Ocean Affairs and the Law of the Sea for the purpose of facilitating the preparation of submissions to the CLCS.106 This fund is used to support the least developed countries and small island developing states in undertaking many of the complex scientific and technical tasks associated with making a submission to the CLCS under Article 76 of the LOS Convention. Similarly, Ireland is a regular contributor to the voluntary trust fund for the purpose of defraying the cost of participation of the members of the CLCS from developing states at the meetings of the Commission. During the report period, scientific experts from Cameroon, Ghana, Kenya, Mexico, Mozambique, Nigeria, Pakistan, Trinidad and Tobago benefited from this particular fund.

IRIS H P RE S ID E N CY AN D T HE EU ’S WOR K I NG PA R T Y ON T HE LA W OF T HE S EA

The EU’s approach to many contemporary and contentious matters pertaining to the law of the sea are coordinated at a technical level within the European institutions by the Common Foreign and Security Policy Working Party on the Law of the Sea, which is one of the preparatory bodies of the Foreign Affairs Council.107 This body is commonly referred to by its French acronym COMAR, and is made up of law of the sea experts from the Member States, as well as representatives from the European Commission and the Council Secretariat. The remit of COMAR is extensive, and was originally set out in the 1998 Council Decision on the EC’s approval of the UNCLOS and the Agreement on Part XI. It includes the provision of advice, the coordination of Member State activities and the development of common positions in relation to law of the sea matters at the UN and its subsidiary bodies.108 As part of its functions under the Irish Presidency of the Council, Ireland chaired COMAR in the first half of 2013 and represented the EU at law of the sea meetings in New York.109 During this period, COMAR prepared EU policy positions on a diverse and complex range of UN law of the sea meetings and related matters, including: the fourth meeting of the Ad Hoc Working Group of the Whole on the Regular 106 Annex, Report of the Secretary-General to the United Nations General Assembly, ‘Oceans and the Law of the Sea’, A/68/71/Add.1, 9 September 2013. 107 See inter alia R Long, ‘The Inexorable Rise of the Law of the Sea Convention within the European Legal Order’ in M Lodge and MH Nordquist (eds), Peaceful Order In The World’s Oceans: Essays In Honor Of Satya n Nandan (Leiden, Nijhoff, 2014) 157–85, esp 167–70; see also R Long, ‘The EU and the Law of the Sea Convention at the Age of 30’ (2012) 27(4) The International Journal of Marine and Coastal Law 711, reprinted in D Freestone, The 1982 Law Of The Sea Convention At 30: Successes, Challenges And New Agendas (Leiden, Nijhoff, 2013) 37–47. 108 Annex III of Council Decision 98/392 [1998] OJ L179/1; Annex II of Council Decision 2009/908/EU, OJ L322/28, 9 December 2009. There is specific legal basis for declarations by international organizations under Art 5(1) and (4) of Annex IX, and pursuant to Arts 287 and 310 of UNCLOS. 109 See Communication from General Secretariat Council of the European Union (CM 2728/13), 6 May 2013, available at www.parlament.gv.at/PAKT/EU/XXIV/EU/11/34/EU_113458/imfname_10401743.pdf (accessed on 12 January 2015).

Correspondent Reports—Long 179 Process for Global Reporting and Assessment of the State of the Marine Environment, 22–26 April 2013; the fourteenth meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, 17–20 June 2013; the Intersessional Workshops on Marine Biodiversity in areas beyond national jurisdiction at the UN, 2–3 and 6–7 May 2013; the twenty-third meeting of States Parties to the Convention on the Law of the Sea, 10–14 June 2013. COMAR also considered a number of other issues, including the Oceans Compact (which relates to an initiative intended to strengthen the United Nations’ system-wide coherence to deliver on its oceans-related mandates); the Declaration made by Ecuador upon accession to the UNCLOS; the Sargasso Sea Alliance; the request for an International Tribunal for the Law of the Sea Advisory Opinion from the Sub-Regional Fisheries Commission; and the conclusion the Murmansk Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (signed by Norway and Russia).

L AW O F TH E SEA C A PA C I T Y BU I LDI NG

Academic institutions in Ireland continue to undertake many law of the sea capacitybuilding initiatives with a view to fostering greater international understanding on the application of the rule of law to ocean affairs and to improve global implementation of the LOS Convention. In 2013, the NUI Galway, in conjunction with the Center for Oceans Law and Policy at the University of Virginia, the Centre for International Law at the National University of Singapore, the South China Sea Institute at Xiamen University and the Korean Maritime Institute, convened an international academic conference on the topic of ‘Global Challenges and Freedom of Navigation’.110 Also in 2013, the School of Law at the NUI Galway hosted a legal expert, Mariamalia Rodriguez Chaves, from Costa Rica as a research fellow under the United Nations–Nippon Foundation Fellowship Programme. Her thesis ‘Protecting the Central American Dome: Law and Policy Considerations’ was subsequently published by the Division for Ocean Affairs and the Law of the Sea at the United Nations.

S IN G L E M AR I T I ME BOU NDA R Y

Ireland and the UK concluded the Agreement establishing a Single Maritime Boundary between the Exclusive Economic Zones of the two countries and parts of their Continental Shelves, which was signed in Dublin by the Tánaiste and the British Ambassador on 28 March 2013.111

110 M Nordquist, J Norton Moore, R Beckman and R Long, Freedom of Navigation and Globalisation (Leiden, Martinus Nijhoff, 2014). 111 Irish Treaty Series, No 1 of 2014.

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Ireland submitted a written statement to the International Tribunal for the Law of the Sea in Case No. 21, Request by the Sub-Regional Fisheries Commission for an Advisory Opinion.112

112 Available at www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/written_statements_round1/C21_ 10_Ireland_orig_Eng.pdf.

Irish Yearbook of International Law 2013 Book Reviews

Human Rights and Public Finance: Budgets & the Promotion of Economic and Social Rights, by Aoife Nolan, Rory O’Connell and Colin Harvey (eds), Oxford, Hart Publishing, 2013, xvi + 257 pp, hbk €72, ISBN: 978-1-84113-011-8. ‘Macroeconomics’, ‘fiscal policy’ and ‘budget analysis’ are not terms that have traditionally exercised those with an interest in human rights. Far less have the (even more) technical terms ‘incidence analysis’, ‘resource mobilisation’ and ‘tax sovereignty’ inspired great debates in human rights seminars or the offices of rights-focused nongovernmental organisations. This collection, edited by Professors Aoife Nolan (Nottingham University), Rory O’Connell (University of Ulster) and Colin Harvey (Queen’s University, Belfast), however, marks the arrival of human rights thought to the subject of public finance, and signals progress towards a much broader understanding of these terms. On the one hand, it brings together scholarship that clarifies and solidifies the relevance to human rights of such broad concepts as fiscal policy and neoclassical economics. On the other hand, the volume adds a good deal of specificity to the analysis through the writings of authors from a range of disciplinary, occupational and geographic backgrounds. The book is premised on the idea that the worlds of economic and social rights and public finance have something to say to each other (p1). The contents of the collection are focussed on economic and social rights, although it is likely that those interested in resource-dependent civil and political rights will also find the arguments and expertise illuminating. The text is likely to be of use, in particular, to those with an interest in matters traditionally associated with civil and political rights that have been affected in the aftermath of the economic crisis, such as the conditions of detention or availability of legal aid. From the beginning, it is apparent that the editors are motivated by a scholarly desire to shift the institutional focus of economic and social rights advocacy. They set out to move concentration away from the courts, and towards the elected branches of the State with the ‘primary responsibility, and the greatest capacity’ for effecting change (page 1). In doing this, many of the 15 authors use as a point of reference the International Covenant on Economic, Social and Cultural Rights. This, balanced with numerous national examples from Australia, Austria, Belgium, Brazil, Greece, Guatemala, India, Ireland, South Africa, the UK and others, endows the collection with broad applicability and credibility. The 10 chapters of the book sit comfortably alongside each other, providing a diversity of perspectives that result in a balanced overall picture. Some of the authors survey the ‘macro’ issues in human rights and public finance, critiquing prevailing economic theories (P O’Connell, chapter 3; R O’Connell, chapter 5) or indicating the risks of mainstreaming economic and social rights into state institutions (Rooney and Harvey, chapter 6). Others engage with specific policy tools (Saiz on tax policy, chapter 4; Quinn on gender budgeting, chapter 8; Harrison and Stephenson on impact assessments, chapter 10), concepts (Elson, Balakrishnan and Heintz on fiscal and monetary space, chapter 1) or doctrines (Nolan on retrogressive measures, chapter 2) of concern. The various authors have been ambitious in their selection of topics and approaches. Many of the contributors tackle the questions raised by the 2007–08 financial and economic crisis head on. In doing so, convincing alternatives to the status quo are developed and key fault lines are exposed. For example, Dianne Elson, 183

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Radhika Balakrishnan and James Heintz assess opposing economic theories in their chapter to demonstrate the human rights impacts of each. They offer several crucial recommendations, including greater use of ‘rainy day’ funds (page 29), ascribing a broader definition to ‘resources’ (page 14) and avoiding overly precise targets for public expenditure (page 22). The collection skilfully avoids two pitfalls that might have arisen from such an ambitious approach. First, it avoids presenting itself as an oracle, instead modestly acknowledging sticking points and areas in need of further attention. Such modesty is evident in the chapter by Eoin Rooney and Colin Harvey, which prompts, provokes and stimulates the reader to question the value ‘in perspective’ (page 126) of mainstreaming economic and social rights budgeting. Elsewhere, Enakshi Ganguly Thukral analyses and applauds developments that have achieved a ‘Budget for Children’ in India but remains cautious as to the ‘real-world’ impact that it will have (page 162). Secondly, and perhaps more importantly, the collection avoids the pitfall of post-crisis myopia. The writings of the contributors address theories (eg macroeconomics, mainstreaming), concepts (eg retrogression, privatisation, maximum available resources, group-specific budgeting, impact assessments) and ideologies (eg neoliberalism) that have relevance well beyond the recent crises. Indeed, Rory O’Connell takes this historical awareness a step further and examines the history of human rights and public finance scholarship (chapter 5). As noted above, Human Rights and Public Finance benefits from the contributors’ contrasting evaluations of the subject matter. Further exploration of two of the collection’s chapters below helps to demonstrate this diversity. Contained in the well-framed ‘Analysis in Action’ section of the book is a chapter by James Harrison and Mary-Ann Stephenson (chapter 10). This contribution shows what it means, in practical terms, to promote economic and social rights through state budgets. Drawing on their experience of carrying out an equality and human rights impact assessment in the UK city of Coventry, the authors analyse the practical value and difficulties of such exercises. They argue for more ‘robust’ methodologies for such impact assessments (page 219), and draw attention to how misunderstandings that surround human rights can result in flawed official assessments (page 230). The authors demonstrate that, done carefully (‘balancing rigour with usability’ (page 239)), impact assessments have value in uncovering policies that overlap to cause individual hardship. They cite the example of women affected by violence or abuse who are impacted by a myriad of cuts to local and national government, police, health and prosecution services, and funding for voluntary organisations (page 237). The two authors also analyse the institutional and systematic barriers that affect impact assessments. For example, they pinpoint that various national human rights institutions in the UK could be key bodies in ensuring compliance, but note that a shift in ‘strategic priorities’ and greater resources are needed to facilitate such a role (pages 236–37). In addition, Harrison and Stephenson show up institutional compartmentalisation, with each actor addressing the impacts of their own policies but never seeing the cumulative effects of the policy landscape (page 237). As a whole, the chapter demonstrates that although human rights and public finance are deeply implicated in one another, policy-makers do not always adequately reflect this in their work. In a contrasting style, Paul O’Connell addresses (sometimes scathingly) the dominant values that have underpinned recent economic policy and, in particular, programmes of austerity. In his chapter (chapter 3), he urges us to ‘think big’ in order to develop

Book Reviews 185 a societal context capable of embedding meaningful socio-economic rights (page 62). He convincingly argues that a ‘veil of technocracy’ (page 70) has enveloped economic decision-making, making it difficult to see the ‘irreducible tensions’ (page 60) between current economic systems and socio-economic right protection. He argues that, in a socio-political context dominated by neoliberalism and socio-economic rights formalism, austerity should be understood as the ‘natural order’; not as the exception, but the rule (page 60). This emphasises for O’Connell that ‘ultimately, budgetary choices are political choices’ (page 74), and leads him to endorse greater participation in budgetary decision-making. Such participation, it is argued, can (re-)infuse economic decision-making with a political flavour, and using the language of human rights can reframe the debate in more ‘imperative’ terms (page 73). Such an approach—although not a ‘panacea’—can begin to break the ‘stranglehold of neoliberal orthodoxy’ (pages 74–75). The chapter, doubtless intentionally, is a challenging read, but confirms the importance of human rights advocates engaging in a sustained and critical manner with economic policy. The divergences between these two chapters should be clear from the very brief elaborations above, yet there are also commonalities between these and other pieces that contribute to the volume’s overall feeling of cohesiveness. In their work, both Harrison and Stephenson, and P O’Connell imply a shared desire for ‘transformative’ (page 234) and/or ‘radical’ (page 74) alterations to the current relationship between human rights and public finance. Further, both chapters identify those who are most vulnerable as the primary victims of the crises. O’Connell does so in the context of a critique of ‘sharing the pain’ narratives (pages 62–63), while Harrison and Stephenson highlight the disproportionate effect that cuts to public services have on the most disadvantaged (pages 220–21). Perhaps most potently, both contributions note an official attitude of tokenism (superficiality (page 220), bureaucratisation (page 220), formalism (page 60), grudging (page 60)) towards economic and social rights in the sphere of public finance. Addressing such attitudes, and providing convincing alternatives to them, creates a strong bond between these and other chapters. Nolan, O’Connell and Harvey have succeeded in solidifying and deepening the advance of economic and social rights into the ‘world’ of public finance. Their collection is a necessarily demanding one, in reality asking readers to consider a further sphere of governance, to understand another policy context and even at times to work with(in) another discipline. Yet, despite stretching the reader, the collection convinces rather than isolates. Its key strength in this regard is the openness with which the authors individually and collectively approach the task. The authors and editors use their expertise to ‘crack open’ the subject matter, making explicit the issues that arise at the intersections between human rights and public finance. The contributors lead us to the value judgements, normative inferences and occasional dysfunction that sit at these intersections. As a result, the book shines a spotlight not only on human rights and public finance as they combine, but also on how we consider budgets, democracy, economics, politics and human rights individually. Ben TC Warwick Durham Law School

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International Humanitarian Law and the Changing Technology of War, by Dan Saxon (ed), Martinus Nijhoff Publishers, 2013, pp 358, hbk €358, ISBN: 9789004229488. Dan Saxon brings together a collection of authors to discuss some pressing contemporary issues of international humanitarian law. His book is particularly timely, with, for example, ongoing discussions on autonomous weapons between states parties and groups of experts under the aegis of the Certain Conventional Weapons (CCW) Convention1 and the reactions to (possible) cyber attacks on commercial targets in the US. While Michael Schmitt, in the book’s foreword, reminds readers that it has been the improvised explosive device that has caused the most casualties in recent conflicts,2 it is clear that the new technology of war will change conflict as we know it. Saxon sets out ‘to assist soldiers, scholars, lawyers and political leaders to understand how changing technologies for war may impact on [international humanitarian law] and vice-versa’,3 and, in the view of this reviewer, he achieves that aim admirably. Robert Heinsch, reviewing the development of customary international humanitarian law in general, discusses the acceptance of verbal pronouncements and military manuals as evidence of state practice and opinio juris in the development of this law. He questions the use of the Martens Clause as a factor in the creation of this customary law. He says that this is ‘one step too far’,4 in that ‘the moral persuasions of the observer (or judge)’5 should not be factors in this process. Bill Boothby’s chapter reviews the legal aspects (as opposed to ethical considerations) of the use of autonomous weapons and claims that while the technology of remotely controlled aircraft is ‘largely non-controversial, at least from a targeting perspective’, an ‘[a]utonomous attack is, however, a different matter’.6 Boothby’s opinion that the technology available at present would permit a fully autonomous system to identify a lawful target by making the necessary decisions in relation to discrimination and precautions in attack is possibly not widely held. However, he accepts that the proportionality test—whether the collateral damage would outweigh the military advantage gained—on the basis that only the ‘human brain can properly undertake’, and considers that the technology is not yet available to allow a machine to make such a ‘qualitative decision’.7 David Akerson’s chapter addresses offensive autonomous weapons, with the thesis that such systems are illegal under international humanitarian law and should be prohibited.8 He focuses on the provisions of Additional Protocol I9 in relation to the principles of distinction, proportionality and the requirements for effective advance warning in attack, constant care and reasonable precautions. He contends that these 1 Convention on Prohibitions or Restrictions on the Use of CCWs Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva, 10 October 1980, EIF 10 December 1983. 2 MN Schmitt, ‘Foreword’ in D Saxon (ed), International Humanitarian Law and the Changing Technology of War (Martinus Nijhoff Publishers, 2013) xi. 3 Saxon, ‘Introduction’ in ibid, 16. 4 R Heinsch, ‘Methodology of Law-Making: Customary International Law and New Military Technologies’ in ibid, 37. 5 Ibid, 35. 6 B Boothby, ‘How Far Will the Law Allow Unmanned Targeting to Go?’ in Saxon, above n 2, 51. 7 Ibid, 57. 8 D Akerson, ‘The Illegality of Offensive Lethal Autonomy’ in Saxon, above n 2, 69–71. 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977.

Book Reviews 187 provisions are part of customary international law and discusses each requirement in sufficient depth to support his contention that, as ‘primarily subjective rules’,10 they require ‘“common sense” and “good faith”’11 to apply them appropriately—something which is absent from autonomous weapon technology. In the second part of his chapter, Akerson posits that an autonomous weapon system cannot properly be considered as a weapon since it will both carry a weapon and ‘decide’ when and how to deploy. Accordingly, he proposes that autonomous systems be regarded as combatants. In the third section, Akerson reverts to consideration of offensive autonomous systems as weapons (as opposed to combatants) and proposes that the use of these weapons be banned. He compares this technology to blinding laser weapons and points out that, although there had been no agreement among experts that laser weapons ‘caused unnecessary suffering, superfluous injury, or were indiscriminate’,12 these weapons had been banned before they came into use.13 This reviewer has difficulty in Akerson’s view that autonomous weapons should be viewed as combatants (and not weapons), and considers that the author’s position that such weapons should be banned—because they are indiscriminate and are excessively injurious14—is not well supported. Markus Wagner describes autonomous weapons as being ‘designed to operate wholly independently from human input’,15 thereby ‘dehumanising’ international humanitarian law. His chapter focuses on the principles of distinction and proportionality, the ‘two cornerstones’16 of the law of armed conflict. His conclusion, that it is necessary to question whether autonomous weapons should be allowed to attack humans, is clearly appropriate. However, his digression into what this reviewer considers ethical considerations is off-theme for both book and chapter. Alexander Bolt suggests that his chapter will ‘contribute to thought within the military legal advisor community’,17 and it should certainly achieve that aim. Most interestingly, Bolt considers the various phases in the life-cycle of autonomous weapons, from preparation for launch to impact. He clearly anticipates that the military commander (whom the legal advisor is advising) will have the capability of amending the ‘algorithms’ of the autonomous weapons to deal with the anticipated conditions. In relation to this, he points out that the longer the period where the weapon system can remain on stand-by, after launch but before engagement of a target, the greater the possibility that factors pre-programmed into the computer will have changed. This chapter suggests a very interesting framework for consideration of the cycle of operation of semi- and fully autonomous weapons. It is not just for Bolt’s ‘military legal advisor community’.

10

Akerson, above n 8, 87. Ibid, 88. 12 Ibid, 95. 13 Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Protocol IV on Blinding Laser Weapons), 13 October 1995, EIF 30 July 98, 1380 UNTS 370. 14 Akerson, above n 8, 90–98. 15 M Wagner, ‘Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict’ in Saxon, above n 2, 99. 16 Ibid, 100. 17 A Bolt, ‘The Use of Autonomous Weapons and the Role of the Legal Adviser’ in Saxon, above n 2, 150. 11

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Kimberly Trapp analyses the implications of ‘information age’ technology for states in relation to the obligations of Additional Protocol I in advance of and during targeting and attack operations.18 She proposes that the obligation to ‘do everything feasible’19 implies an obligation on states to provide the resources to allow sophisticated measures to be taken in order to comply with the obligations of Additional Protocol I in terms of targeting. However, acknowledging that ‘States are faced with competing priorities’, Trapp accepts that ‘international law has very little to say about how States should prioritize resource allocation’.20 Her position that a state may be responsible for breaches of Additional Protocol I if it fails to provide its armed forces with the technology to permit sophisticated, modern precautions in attack is most interesting.21 Darren Stewart is a serving military legal officer, and his chapter provides an excellent summary of the benefits that the information age can bring to military operations. Improvements in technology have allowed greater precision in the weapons used and can permit real-time communication of legal advice to commanders on the application of international humanitarian law in the case of individual potential targets. The availability of surveillance information on targets may provide an ‘almost “evidential” standard of proof’22 as to whether or not a target may be engaged, and will provide the possibility for analysis regarding responsibility and opportunities for improvement. In considering whether the improvements in the technology available to the military have actually led to improvements in the application of international humanitarian law, Stewart posits that it is ‘self-evident’23 that improved precision has facilitated an improvement. He points out that increased public awareness and media attention have demanded more information on individual incidents, and that this has led to greater accountability. Charles Garraway’s chapter on superior responsibility in the information age provides a wonderfully succinct history of the doctrine and analysis of its constituent parts. He uses the provisions of the Rome Statute24 to examine the principal elements of the law—the superior/subordinate relationship; the mental element; and a failure to prevent or punish. Garraway concludes that the principles of the law on superior responsibility are ‘perfectly capable of coping with the era of unlimited information’.25 David Turns’s analysis of the concept of cyber ‘attack’ does not consider the concept of ‘armed attack’ under the United Nations Charter in relation to the right of self-defence,26 but focuses on the concept of an ‘attack’ in terms of jus in bello. In terms of the Additional Protocols’ requirement that attacks consist of ‘acts of violence’,27 Turns does a most interesting analysis of the linguistic implications of that 18

Additional Protocol I, Arts 51 and 57. Ibid, Art 57(2)(a)(i). 20 K Trapp, ‘Great Resources Mean Great Responsibility: A Framework of Analysis for Assessing Compliance with Additional Protocol 1 Obligations in the Information Age’ in Saxon, above n 2, 163. 21 Ibid, 169. 22 D Stewart, ‘Maximising Compliance with IHL and the Utility of Data in an Age of Unlimited Information: Operational Issues’ in ibid, 181. 23 Ibid, 184. 24 Rome Statute of the International Criminal Court, UNTS 2187. 25 C Garraway, ‘The Application of Superior Responsibility in an Era of Unlimited Information’ in Saxon, above n 2, 205. 26 United Nations, ‘Charter of the United Nations’ (UN, 1945) Art 51. 27 Additional Protocol I, Art 49. 19

Book Reviews 189 phrase and suggests that there are four options for the application of the phrase to cyber attacks, ie: ‘the intention behind the act, the intrinsic nature of the act itself, the context within which the act occurs and the consequences that flow from the act’.28 Turns concludes that a combination of the consequence and intention criteria provides the most satisfactory requirement that a cyber attack could meet the requirement of an attack under Additional Protocol I. Michael Newton’s excellent chapter examines the principle of proportionality in terms of how it relates to cyber attacks. His piece follows logically from Turns’ chapter and uses the definition for cyber attack that Turns has suggested as the most appropriate—intent plus consequences. Newton argues that the Rome Statute’s 29 understanding of the principle of proportionality raised the threshold for proof for this war crime from that set out in Additional Protocol I.30 He considers the Rome Statute’s requirement that damage caused would be ‘clearly’ excessive, and further considers the addition of the term ‘overall’ in terms of the military advantage anticipated to have brought this rule into line with the reservations lodged by the United Kingdom and other states when acceding to the Additional Protocol.31 Newton’s chapter is a ‘must-read’, not just for readers with an interest in cyber operations, but for its discussion on the principle of proportionality. In the concluding remarks of her chapter, Heather Harrison Dinniss acknowledges that the areas she addresses are complex, even without the added complication of cyber operations.32 Indeed, Dinniss analyses the concept of combatant status and direct participation in hostilities in a most thorough and logical manner, and includes particular perspectives from the point of view of cyber attacks. In considering combatant status and the requirements for same, Dinniss looks at how persons carrying out cyber attacks could meet these conditions. The analysis of how the concept of mercenaries could be applied to civilian contractors used for cyber operations and the consideration of child soldiers’ regulations in relation to use of young people are particularly interesting. Dinniss’s chapter poses most interesting questions for the reader—answers will be a long time coming, one imagines. Neil Davison considers that it is inappropriate to describe a weapon as ‘lethal’ or ‘non-lethal’, as the lethality will depend on the conditions under which it is used. There is no guarantee that a weapon that is not intended to kill will not do so, an example being the firing of a plastic bullet at an inappropriate range.33 Davison prefers the International Committee of the Red Cross’s terminology for these weapons, that is, ‘so called non-lethal weapons’ or ‘“non-lethal” weapons’, a phrase that he uses in his chapter. The situation in relation to the applicable law where a military force, while a party to an armed conflict, may be involved in law enforcement operations is discussed in some detail. For example, the use of chemical agents, normally referred to as riot 28 D Turns, ‘Cyber Wars and the Concept of “Attack” in International Humanitarian Law’ in Saxon, above n 2, 221 (emphasis in original). 29 Rome Statute of the ICC, Art 8.2(b)(iv). 30 Additional Protocol I, Art 57.2(a)(iii). 31 MA Newton, ‘Proportionality and Precautions in Cyber Attacks’ in Saxon, above n 2, 245–46. 32 HH Dinniss, ‘Participants in Conflict—Cyber Warriors, Patriotic Hackers and the Laws of War’ in ibid, 278. 33 N Davison, ‘New Weapons: Legal and Policy Issues Associated with Weapons Described as “Nonlethal”’ in ibid, 281–82.

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control agents, is prohibited in armed conflict.34 Davison posits that the military force is considered to be operating in these circumstances under international humanitarian law and that ‘the use of riot control agents would be prohibited entirely’35 in such a case. Davison presents a well-considered and detailed analysis on the use of ‘non-lethal’ weapons by military forces in an armed conflict. While much of the technology is not ‘new’, in that it has been in use by law enforcement forces, his discussion of ‘“dazzling” laser weapons’36 used in Iraq and Afghanistan is very interesting. A brief discussion on the possible application of international human rights law in such situations would, perhaps, have been a useful addition to a very good article. David Fidler considers the military counter-terrorism and counter-insurgency operations of the US after 9/11, and asks if these have led to a ‘less lethal and destructive’ future for future military operations. The adoption of the ‘hearts and minds’ strategies, the refinements of international humanitarian law (with the Additional Protocols, for example) and the improved targeting capabilities of armament have coalesced, Fidler suggests, to result in ‘less lethal and destructive war’.37 Fidler concludes that what he describes as the ‘convergence of technology and doctrine for less lethal war’38 has resulted in a reversal of ‘the historical pattern of ever more destructive weapons, strategies, and tactics that brought [international humanitarian law] into crisis and, sometimes, disrepute’.39 In his review at the conclusion of the book, Dan Saxon takes a brave look into the future, positing that in ten, twenty or forty years, advances in technology will result in autonomous weapons systems which can make ‘judgements’, even ‘moral judgements’, relevant to the protections accorded by [international humanitarian law] and these machines will make  … decisions more quickly and more accurately than humans.40

It is regrettable that the book’s contributors concentrated on international humanitarian law as things stand at the present time and did not take the opportunity to give the readers their views on how this body of law may change, for better or for worse, with advances in technology in the future. Professor Saxon has brought together a wonderful group of contributors to his excellent book. It is suggested that the reader will not agree with every proposition from every writer. That is what makes this book such a rewarding read—challenging the reader to match the careful consideration that each of the writers has clearly put into their work. Peter Gallagher Centre for Human Rights National University of Ireland, Galway 34 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, EIF 29 April 97, Art II(7). 35 Davison, above n 33, 299. 36 Ibid, 308–11. 37 DP Fidler, ‘The Path to Less Lethal and Destructive War? Technological and doctrinal Developments and International humanitarian Law after Iraq and Afghanistan’ in Saxon, above n 2, 323. 38 Ibid, 322. 39 Ibid, 336. 40 D Saxon, ‘Conclusions’ in Saxon, above n 2, 349 (emphasis added).

Book Reviews 191 Incitement in International Law, by Wiebke K Timmermann, Routledge Research in International Law, 2014, pp 287, hbk €115, ISBN: 978-1-138-02080-1. With this book, Wiebke Timmermann seeks to provide a comprehensive and engaging overview of how the issue of incitement has been addressed in public international law. Incitement to hatred and the dissemination of hate propaganda remain common and recurring matters of concern in many societies around the world; in fact, there are unfortunately many more cases that come to the reader’s mind than Myanmar, Iran and Uganda, the three examples examined in the introduction. This makes it all the more surprising that this book is the first attempt to provide an assessment of incitement in such a thorough and exhaustive manner. Starting from the realisation that incitement to hatred often paves the way to the commission of mass crimes (page 3), the author undertakes to carefully review international human rights and international criminal jurisprudence on the topic. Through this judicious examination, Timmermann identifies a number of gaps in the way domestic and international bodies have addressed the issue of incitement, and offers to remedy these inconsistencies by establishing a clear and definitive definition of the notion. By focusing exclusively on the concept of incitement in all its different facets, this book constitutes a thoughtful and unique undertaking. The structure of the book makes for a clear, reasoned and convincing argument. Timmermann starts by considering the meaning of, and harm caused by, incitement to hatred, and establishes that incitement intrinsically violates human dignity, both of the members of the target victim group and of the individuals it addresses. In the first chapter, the author also posits her definition of the types of inciting acts that ought to be regulated, arguably the most beneficial endeavour of this work. It is this distinction between acts that should and should not be proscribed that lays the foundation from which the rest of her thesis is derived. The author contends that the definition of ‘incitement to hatred’ should include five elements: (1) negative stereotyping of the target group (usually amounting to dehumanization or demonization); (2) characterization of the target group as an extreme threat; (3) advocacy for an ‘eliminationist’ or discriminatory solution to the perceived threat in the sense of excluding the target group members from society or the human community; (4) the incitement is carried out in public; and (5) the incitement is part of a particular context which dramatically increases the effectiveness of the inciting words, usually through the involvement of the State or another powerful organisation (page 12).

After laying this basis, the following two chapters examine how international human rights law has dealt with the issue of incitement. In the delicate balance between freedom of opinion and expression and the prohibition of incitement, the author conceives that the former can only be curtailed with regard to the most extreme cases of incitement. While it is not a novel argument, it would be misinformed to regard these chapters as a mere useful reminder on the topic. In fact, the author approaches this balance in a pragmatic and thoughtful manner, and provides the reader with a practical understanding of how and when incitement can justify limitations of freedom of speech: Timmermann argues that any limitation must be prescribed by law and that it must pursue a legitimate purpose, such as ‘the protection of the rights of others (which can include the right not to be discrimi-

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nated against, equality and the right to respect for one’s dignity) or to safeguard the public order’ (page 106). Furthermore, and this is where her understanding of incitement—in particular, the emphasis placed on the context in which the incitement is made—appears specifically relevant, in reaching a decision to limit freedom of expression, authorities should ensure they apply a proportionality test. This section further reviews the jurisprudence of human rights bodies which have attempted to make this balance. The study notably focuses on the drafting histories of Article 20(2) of the International Covenant on Civil and Political Rights and Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. It then proceeds to examine the jurisprudence of their corresponding treaty bodies: the Human Rights Committee and the Committee on the Elimination of All Forms of Racial Discrimination. Through this extensive study, the author succeeds in identifying a number of gaps and discrepancies in their approaches, which, she convincingly argues, could be addressed if one were to apply the definition of incitement proposed in chapter one. Chapters four and five see Timmermann turn her focus to international criminal law, and the possibility of treating incitement to hatred as an international crime. On this point, the book essentially elaborates three main arguments. First, it is contended that the most suitable way to criminalise incitement to hatred internationally, providing that it fulfils the definition submitted in chapter one, is by considering it as the crime against humanity of persecution. Notably, there is an interesting connection between the chapeau element requirement of crimes against humanity—namely, that the act be committed in the context of a widespread or systematic attack against a civilian population—and the author’s focus on context and the involvement of the state or another powerful organisation. As Timmermann claims, ‘incitement to hatred is then really dangerous … and a proper subject of international criminal law where it is part of systematic, planned persecution sponsored and directed by the State or a similarly influential organization’ (page 197). Secondly, looking at the intrinsic characteristics of the offence of incitement, it is argued that the inchoate crime of public and direct incitement should apply in relation to all international crimes, not only incitement to genocide, as has been the case so far. In this regard, the author joins a number of notable academic voices claiming that international crimes, such as genocide, crimes against humanity and war crimes, should be considered ‘of equal gravity’ (page 220). However, the book is truly innovative when Timmermann argues that incitement should be treated as a continuing crime, given that the regular utterance of inciting words can have dangerous effects and can, in fact, pave the way for the commission of serious crimes. This is a clear departure from the existing jurisprudence, insofar as only one case, the Nahimana case at the International Criminal Tribunal for Rwanda, has actually discussed the issue. Regardless, the author’s argument provides a solid platform for debating the idea that treating a criminal act as ‘complete’ does not necessarily mean that the crime itself is ‘over’, belongs to the past and will no longer have consequences. The examination of international criminal law concludes with a reflection on how incitement relates to a number of modes of criminal liability, such as aiding and abetting and committing a crime through another person. Again, in an effort to remedy some of the persistent inconsistencies in contemporary approaches by international tribunals, the author succeeds in offering clear delimitations and definitions of these notions.

Book Reviews 193 The richness of sources informing Timmermann’s thesis is commendable. While the author focuses on public international law and how different strands of this field have considered the issue of incitement, this work is grounded in a truly interdisciplinary approach, ranging from psychology, philosophy and sociology to a diverse range of legal doctrines. Lawyers, who are the primary target of this book, may not necessarily be familiar with the works of the sociologist Harald Welzer or the psychologist Ervin Staub, or how various philosophical theories have interpreted the concept of human dignity. Yet these sources are included amongst a wider legal analysis to make for a scrupulous and elaborate analysis of the impact of incitement to hatred on individuals and societies. Moreover, the breadth of jurisprudence examined in just fewer than 300 pages is remarkable. The study includes detailed analysis of a number of judgments from the Nuremberg tribunals, various domestic courts, the UN international criminal tribunals, the International Criminal Court and others, along with incisive explorations of the travaux préparatoires of a number of human rights and international criminal law provisions. Despite the complexity of the topic and the novel approach of the author, the book’s structure and language make it an accessible work for anyone with a degree of knowledge in international human rights law, its core instruments and current debates, as well as international criminal law theories. However, even for the more advanced readers, the thesis could, perhaps, have benefited from the elaboration of certain concepts. In particular, more attention could have been dedicated to explaining the characteristics of other ‘powerful organisations’, which, much like states, might be involved in the building up of a persecutory climate, and thus fulfil the requirements of the proposed definition. Incitement in International Law is, without doubt, a unique study that will prove essential for students, academics and practitioners alike in the fields of international human rights and international criminal law who are trying to comprehend the complex and contemporary issues posed by the issue of incitement. Claire Constant Cambridge University

What is a Fair International Society? International Law between Development and Recognition, by Emmanuelle Tourme-Jouannet, Oxford, Hart Publishing, 2013, pp 252, pbk €40, ISBN: 9781849464307. Emmanuelle Tourme-Jouannet has clearly thought very seriously about what has been and what can be done to make the world a better place. This text, an English translation of the original French edition published in 2011, approaches the question in the title from two perspectives: what is an equitable international society and what is a decent international society. It is also ultimately concerned with how to do better. Tourme-Jouannet covers two main topics of international law. The first is the law of development, as distinct from international economic law, and the second is the law of recognition. The thesis is this: the history of these two bodies of law indicates the possibility of a fairer international society, through law. It is immediately striking that

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these topics could not, and would not, be approached in this way by an anglophone scholar. Tourme-Jouannet identifies that the idea of an international law of development is a creation of the French-speaking world. The subject matter of the book demonstrates the worth of the series French Studies in International Law, of which this is the fifth monograph. The international law of development was developed by a group of French academics, led by André Philip and Michel Virally in the 1960s. This understanding of a law of development must be distinguished from the common English understanding of law and development, a subsection of international economic law. Tourme-Jouannet is dealing with a body of law which French scholars have always regarded as separate and possessed of its own internal, liberal-social rationale. Such legal bodies and instruments include the New International Economic Order (NIEO), the United Nations’ development decades and goals, and the more recent Millennium Development Goals and the fight against poverty. The demand for recognition is a demand for respect of specific identities and cultures. Recognition is demanded by various social groups, such as minorities, indigenous peoples, women, homosexuals, and even nations and states. The international law of recognition covers the United Nations Organization for Education, Science and Culture (UNESCO), human rights, minority and indigenous rights, and women’s rights. This is the body of law which has tried to address claims about cultural and identity-related injustice. Again, drawing these different topics together as a unified body of law called the law of recognition is innovative and productive. The goal of the law of recognition is an international society which is decent, based on respect for others. The book’s ‘Frenchness’ is one context, but it is also helpful to approach it with Tourme-Jouannet’s other major work in mind, The Liberal–Welfarist Law of Nations: A History of International Law. In that book, she told an alternative history of international law from the eighteenth century to the present day which described how the discipline was structured by its dual purposes of being liberal and being welfarist. This book looks at obviously related topics in a similar way, and some aspects of the argument are familiar. The first half of the book, chapters 1–4, covers development law. Its history starts with the end of the Second World War, and a new concern with Third World development. The UN Charter included development among its aims, in Articles 1(3) and 55(a). The United States, under President Truman, took the lead in declaring the need to provide aid to ‘underdeveloped’ nations, which was further seen in what TourmeJouannet calls the ‘human ends’ of the Bretton Woods organisations and the General Agreement on Tariffs and Trade (GATT). Obviously, the approach to economic inequality which focuses on the underdeveloped quickly reveals itself to be paternalistic and imperialist, and some way short of real progress from the attitudes of the colonisers. Decolonisation was the vital next step in producing a law of development. The growth of the Non-Aligned Movement, and the formerly colonised world’s growing ability to speak with its own voice, allowed for a challenge to the attitudes embedded in these institutions. This led to the organisation of the United Nations Conference on Trade and Development, which positioned itself in institutional opposition to the GATT and led to the formulation of the NIEO. These two stages represent moves within TourmeJouannet’s previous depiction of international law’s oscillating between its liberal and

Book Reviews 195 its welfarist intent. The NIEO produced a reaction and development in the liberal economic order stopped being concerned with human ends; insteadm the ideology of neoliberalism took over and growth became the only value. The attempt to push for a more welfarist, equitable international economic order produced this violent response and a rush to a more purely liberal approach to international economic law. Chapter 1’s history of a failed project of opposition to the liberal economic order is presented in order to demonstrate the change that was made in the law and to identify the fragments which remain. It is a cautionary tale about the failure of that era to produce a fair international society. The second chapter builds on this failure to tell of the contemporary development law which has emerged in the wake of a series of economic crises. The major factors in this new international development law are human rights, sustainable development and the fight against poverty. Chapter 3 offers an appraisal of the successes and failures of international development law, while chapter 4 attempts to realistically outline the different options for progress, between the extreme poles of a total embrace of neo-liberalism and free markets, on the one hand, and a total rejection of development and a return to traditional communitarian societies, on the other. The second half of the book, chapters 5–8, turns to recognition and the attempts to make international society decent. The structure of the second half is fairly similar to the first. Tourme-Jouannet first outlines the history of this area of law in chapter 5. Interestingly, this starts with nineteenth-century classical international law, ‘a stigmatising body of law that merely reflected the distortion in power among states, the feeling of superiority of a whole political class and the latent racism of an entire age’ (page 104). This period of refusal to recognise ‘uncivilised’ nations was followed by decolonisation, which was the demand to be equal, in status and in treatment. This form of recognition remained blind to difference and the recognition of difference, and was more concerned with formal equality. In the post-cold war years recognition has come to be about not just the recognition of difference, but the right to be different, the acceptance of difference. It is the achievement of this which would allow international society to begin to call itself decent. Chapter 6 deals with how the law has responded to the fact of cultural diversity, and what the law can do in this area. It is principally the history of UNESCO, and its development from an organisation concerned initially with the role of education, science and culture in preserving peace, through being an organisation which almost fell apart due to conflict over control and regulation of information and communications, to a body which in 2005 produced the Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Chapter 7 is concerned with the development of a law of recognition through rights. It charts four related movements: minority and indigenous rights; cultural rights; human rights; and women’s rights. Each of these movements is discussed historically and the contemporary situation is set out. Chapter 8 is another comprehensive discussion of solutions to the problems of marginalised social groups, and examines the question of reparations and the legacy of the 2001 UN Conference against Racism, Racial Discrimination, Xenophobia and Intolerance in Durban. Both halves of the book come together in chapter 9. Although it would be incorrect to say that economics is absent from Tourme-Jouannet’s discussion of culture, the intersections of these two areas are made absolutely clear in this chapter. One aspect

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of the intersection is that culture has replaced economics as a programme of the international community. The UN has stopped announcing development goals and has moved to concern itself with catastrophic poverty only. At the same time, recognition has become far more institutionally developed and sophisticated. International law, it seems, has surrendered the question of economic redistribution to liberal market forces and instead busied itself with questions of identity. One response to this would be simply to see it as the victory of a neo-liberal ideology which does not need racism to justify exploitation. Tourme-Jouannet’s argument is more sophisticated than that. She argues that the groups amongst whom the need for recognition is greatest are also those who need economic redistribution. Extreme poverty goes hand in hand with cultural marginalisation, and probably always has done. The question of recognition has not displaced development; rather, it was absent and ignored for too long in the development discourse. The demand for a fairer society is a demand for both greater material wellbeing and respect for equal dignity and identity. One of the real strengths of this book is that it never hides from the dark side of the advances being discussed. This is true in both halves of the book. The dark side of development law, for example, includes a tendency to ignore history, particularly colonialism. The principle of formal equality, adopted as part of decolonisation, is another, since it often hides structural inequalities. Tourme-Jouannet addresses head on the instrumentalisation of development law and economic law in being used to maintain dependency, inequality and hegemony in the post-colonial world, but also finds hope in the aspiration for a more equitable society through initiatives such as the NIEO. The dark side of recognition involves the difficulties of respecting cultural difference, and the problems which movements such as human rights have had in engaging with culture and identity. There are also problems of a retreat into identity politics and away from the material reality of discrimination. These critiques are familiar, and here they provide a context and a guide to the complexity of these problems. There remains much to be done. The book is not just a history, then, and it is much more than a description of two bodies of law. There is a clear objective: to make the world a better place through law. The question is old—what is to be done?—and Tourme-Jouannet’s answers are reasonable, practical and realistic. And that is my only real complaint against what is here: the arguments are too modest. Today’s world is more unequal than ever, and it is getting worse. One single recent example should suffice to support this. Oxfam’s 2014 report into extreme inequality, ‘Even It Up’, give a series of headline-grabbing facts, such as that the number of billionaires in the world has doubled since 2009, that the richest 85 people in the world have more money than the poorer half, and that the share of income taken by labour continues to decline rapidly.1 Remaining within the liberal–welfarist paradigm of international law will not do. Hoping for a return to a more welfarist world is to ignore the lessons Tourme-Jouannet’s own history gives us. Hoping for a new NIEO, after detailing so well the undermining and planned failure of the old one, requires a huge amount of hope for not very much return. I am not 1 Seery and Caistor-Arendar, ‘Even It Up: Time to End Extreme Inequality’, Oxfam campaign report (October 2014), available at http://policy-practice.oxfam.org.uk/publications/even-it-up-time-to-end-extremeinequality-333012.

Book Reviews 197 sure that this book is quite the place to call for a revolution, but something more radical is surely required. There also feels to be something missing from the book. References to the environment are limited almost entirely to the discussion of sustainable development. Tourme-Jouannet does, however, deal admirably with the problems of resource consumption, that most of the world’s resources are consumed by a tiny percentage of its population, in the economic part of the book. This material reality may undermine any proposal for reform of international development law that does not simultaneously reform the economy in general. However, the problem of climate change, it seems to me, also needs to be taken into consideration in any fairer society. If development and recognition are both challenges to the unfair, ultra-liberal order, so, potentially, is environmental law. Climate change has an economic basis as well, and attempts at economic solutions, such as carbon trading, have been attempted, yet any actual change will probably require another challenge to the dominant logic of capitalism— the need of and possibility for unlimited growth. To conclude, it is not entirely fair to criticise a work for what is left out, and these comments are meant more as suggestions as to where similar enquiries could be productively engaged. Overall, this book has a huge amount to recommend it. The histories are fascinating and Tourme-Jouannet’s thesis is very persuasive. Whilst the argument could be seen as lacking in revolutionary zeal, the author’s pragmatism and ultimately her faith in the power of international law to make the world a better place are hugely inspiring. And, it must be emphasised, Tourme-Jouannet’s study starts and ends with actually existing international law: she does not engage in abstract theorising, but finds the possibility of a better world in the law that we have today. For every international lawyer who shares this desire for a better world, this book gives us an awful lot to think about—and, more importantly, gives us an awful lot to do. Henry Jones Durham Law School

Irish Yearbook of International Law 2013 2013 Documents

Document 1 Statement by the Tánaiste Condemning North Korean Nuclear Test 12 February 2013 I condemn, in the strongest possible terms, the test by North Korea of a nuclear explosive device. This action threatens peace and stability on the Korean peninsula. It is also a major challenge to our efforts to advance global nuclear disarmament and non-proliferation, a longstanding priority of Irish foreign policy. Nuclear weapons are never a means to guarantee peace and security; far from it, they pose the greatest threat of all. The regime in Pyongyang must realise that today’s act is reckless and provocative and will only isolate it further from the international community. North Korea must cease all nuclear testing and re-engage with the Six Party Talks on the denuclearisation of the Korean peninsula, immediately and without pre-conditions. The North Korean government must comply fully with all of its obligations under the Nuclear Non-Proliferation Treaty and its agreement with the International Atomic Energy Agency. Today’s events highlight the urgency for the immediate entry into force of the Comprehensive Nuclear Test Ban Treaty (CTBT). I call on the eight remaining states whose ratification of the Treaty is required to do so without delay.  While the CTBT has not yet entered into force, it represents an overwhelming international consensus against nuclear weapons testing that Ireland and others have a duty to protect. I expect all nations—including North Korea—to respect this international consensus.

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Document 2 Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya: Addendum: Mission to Ireland (19–23 November 2012) 26 February 2013 Human Rights Council Twenty-second session Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Summary The Special Rapporteur on the situation of human rights defenders conducted an official visit to Ireland from 19 to 23 November 2012, during which she met with senior officials and human rights defenders. In the present report, the Special Rapporteur considers the legal and institutional framework in Ireland for the promotion and protection of human rights, paying particular attention to the situation of the national human rights institution and the initiatives taken by Ireland for the protection of human rights defenders through foreign policy and development aid. Acknowledging that the environment in Ireland is conducive to the defence and promotion of human rights, the Special Rapporteur analyses the specific challenges faced by certain groups of human rights defenders in Ireland, including environmental rights activists, defenders working on sexual and reproductive rights, those working for the right of Travellers, whistle-blowers and others reporting wrongdoing, and asylum seekers and refugees working for the rights of their communities. She also briefly highlights other challenges affecting defenders in the country. The report concludes with recommendations for all relevant stakeholders.

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AN N E X : RE P O RT O F TH E S PEC I A L R A PPOR T EU R ON T HE S I T U A T I ON O F H UMAN RIG H TS D EFENDER S ON HER MI S S I ON T O I R ELA ND (19 –2 3 NOV EMBER 2 0 1 2 )

Contents Paragraphs I. Introduction 1–4 II. Background 5–6 III. Legal Framework for the Promotion and Protection of Human Rights 7–30 A. International Level 7–13 B. National Level 14–30 IV. Institutional Framework for the Promotion and Protection of Human Rights 31–65 A. Legislative Branch 31–33 B. Executive Branch 34 C. Judiciary Branch 35–37 D. Police 38–40 E. Irish Human Rights and Equality Commission 41–50 F. Support for Human Rights Defenders through External Policy 51–65 V. Situation of Human Rights Defenders 66–106 A. Environmental Rights Activists 68–78 B. Defenders and activists working on Sexual and Reproductive Rights 79–87 C. Defenders Working for the Rights of Travellers 88–91 D. Whistle-blowers and Others Reporting Wrongdoing 92–95 E. Asylum Seekers and Refugees Working for their Rights of their Community 96–98 F. Other Challenges for Human Rights Defenders 99–106 VI. Conclusions and Recommendations 107–115 A. Conclusions 107–110 B. Recommendations 111–115

I . I NT R ODU C T I ON

1. Pursuant to Human Rights Council resolutions 7/8 and 16/5, the Special Rapporteur on the situation of human rights defenders conducted an official visit to Ireland from 19 to 23 November 2012, at the invitation of the Government. The purpose of her visit was to assess the situation of human rights defenders in Ireland in the light of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (also known as the Declaration on Human Rights Defenders), adopted by the General Assembly in its resolution 53/144. An examination of the legal framework in the country, institutional policies and mechanisms for the promotion and protection of human rights were of particular importance to this assessment. 2. During her visit, the Special Rapporteur met with the President of Ireland, Michael D Higgins; the Joint Parliament (Oireachtas) Committee on Foreign Affairs and Trade

2013 Documents 205 and other members of Parliament; the Chief Justice; and the Director of Public Prosecutions. She also met with the Minister for Justice and Equality, representatives of the Human Rights Unit, the Department of Foreign Affairs and Trade, including with its NGO Standing Committee, and Irish Aid. Moreover, the Special Rapporteur met with the Acting Chief Executive of the Irish Human Rights Commission and a former Commissioner, as well as with the Ombudsman Commission of the Police (Garda Síochána). She also met with the Head of the Office of the United Nations High Commissioner for Refugees (UNHCR). In addition, the Special Rapporteur received a written submission from Shell E&P Ireland. 3. During her visit, the Special Rapporteur also held meetings with a wide range of defenders and activists representing civil society in Ireland. She is particularly grateful to the valuable support provided by the non-governmental organizations Front Line Defenders and the Free Legal Aid Centre during the visit. 4. The Special Rapporteur thanks the Government of Ireland for its invitation and its outstanding cooperation throughout her visit. She also thanks everyone who took the time to meet with her and shared their valuable and important experiences.

II. BA C K GR OU ND

5. The visit was the first ever conducted by a mandate holder on the situation of human rights defenders to a member State of the European Union. Ireland has endured a difficult period since the economic crisis hit the country in 2008 and its subsequent severe recession. This has led to drastic cuts in public expenditure affecting all sectors of society, including civil society and defenders. 6. The environment in which defenders operate in Ireland generally facilitates the defence and promotion of human rights and fundamental freedoms. The Special Rapporteur notes, however, that Ireland has not been very active in disseminating information about the Declaration on Human Rights Defenders at the domestic level or in raising awareness about the specific profile and role of defenders in society, particularly of those working for the rights of marginalized communities, such as Travellers and asylum seekers. During the visit, the Special Rapporteur also noted that the very term ‘defender’ was not always well understood, even among public officials. She further noted that there was no national plan of action on human rights in Ireland.

I I I . L E G AL F RAME WO RK F O R T HE PR OMOT I ON A ND PR OT EC T I ON OF H U MA N R I GHT S

A. International Level 1. Incorporation of International Law 7. Article 29.5.1 of the Constitution states that every international agreement to which the Irish State becomes a party, other than technical or administrative agreements, must come before the House of Representatives (Dáil Éireann). The automatic

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incorporation of international treaties and conventions into domestic law is prevented under article 29.6 of the Constitution. The Special Rapporteur notes with concern that this absence of direct applicability may hinder the State’s compliance with obligations contained in international agreements to which it is a State party. She also notes the lack of an accountability mechanism to oversee the implementation of such international agreements. 2. United Nations Treaties 8. As at February 2013, Ireland was a State party to the International Covenant on Civil and Political Rights and the First and Second Optional Protocols thereto, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Optional Protocol thereto on the involvement of children in armed conflict, the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol thereto, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Ireland ratified the Rome Statute in 2002. 9. The Special Rapporteur welcomes the withdrawal by Ireland in December 2011 of its reservation to article 19.2 of the International Covenant on Civil and Political Rights, which allowed the State to maintain a monopoly on broadcasting and to operate a licensing system for broadcasting enterprises. The Special Rapporteur is also pleased to note that, in November 2011, Ireland ratified the United Nations Convention against Corruption. 10. Ireland has signed but not yet ratified the International Convention for the Protection of all Persons from Enforced Disappearance, the Convention on the Rights of Persons with Disabilities, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 11. Ireland is not yet a State party to the European Convention on the Legal Status of Migrant Workers, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Optional Protocol to the Convention on the Rights of Persons with Disabilities and the Convention on the Participation of Foreigners in Public Life at Local Level. 12. The Special Rapporteur encourages the Government to ratify the United Nations treaties that it has signed but not yet ratified, and to sign and ratify the others to which is not a party. She believes that the ratification process is particularly important in light of the State’s recent election to the Human Rights Council. 3. Council of Europe and European Union 13. Ireland ratified the European Convention for the Protection of Human Rights and Fundamental freedoms in 1953. As a member State of the European Union since 1973,

2013 Documents 207 Ireland is bound by the Charter of Fundamental Rights of the European Union. In December 2003, the European Convention on Human Rights Act entered into force, thereby making the European Convention part of Irish law, as stipulated by the Constitution. Ireland has ratified most of the human rights treaties of the Council of Europe, including the Revised Social Charter and its collective complaints procedure. In 2007, Ireland signed the Council of Europe Convention on Action against Trafficking in Human Beings and the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

B. National Level 1. Constitution 14. The Constitution of Ireland (Bunreacht na h Éireann) was adopted by referendum on 1 July 1937 and is the basic law of the State. It sets out the form of Government and defines the powers of the President (Uachtarán), the Parliament (Oireachtas), the Government and the Courts. The Constitution may be amended only by a referendum, and all laws passed by the Parliament must abide by it. Under article 34, the High Court and the Supreme Court have the power to assess and determine the constitutionality of any law. In the event that a court concludes that a particular law is unconstitutional, that law ceases to have any legal effect. 15. The Constitution recognizes a broad range of human rights. Articles 40 to 44 outline fundamental rights, including equality before the law (art. 40.1), the right to life (arts. 40.3.2 and 3), personal liberty (art. 40.4), freedom of expression (art. 40.6.1 (i)), freedom of assembly (art. 40.6.1 (ii)), freedom of association (art. 40.6.1 (iii)), the right to education (art. 42), freedom of conscience and the free profession and practice of religion (art. 44). 16. In interpreting the provisions of the Constitution, the courts have identified a number of rights that, although not expressly referred to in the text of the Constitution, are nonetheless provided for by it. These include the right to bodily integrity, freedom from torture and from inhuman or degrading treatment or punishment, the right to legal counsel, the right to legal representation in certain criminal cases, and the right to fair procedure. 17. A constitutional convention tasked with revising the Constitution over a period of 12 months was established in June 2012. The inaugural meeting was held on 1 December 2012 and the working sessions were expected to commence in January 2013. Among the issues the convention will consider include the insertion of a provision for same-sex marriage; an amendment to articles 41.1 and 41.2 on the role of women in the home, and the insertion of a clause recognizing the participation of women in public life; and the removal of the offence of blasphemy from article 40.6.1 (i). While the recommendations made by the convention will not be binding, the Government may enact proposed reforms, which, if passed by Parliament, would be put to a public referendum. The Special Rapporteur welcomes this Government initiative and encourages the inclusion and participation of civil society actors, including human rights defenders, in the process of constitutional reform.

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2. Laws Relating to Freedom of Opinion and Expression (a) Constitution 18. Article 40.6 (i) guarantees the right of citizens ‘to express freely their convictions and opinions’. It also refers to the press, defined as ‘organs of public opinion, such as the radio, the press, the cinema’, and recognizes ‘their rightful liberty of expression, including criticism of Government policy’. However, it forbids their use ‘to undermine public order or morality or the authority of the State’. Article 40.6 (i) also establishes the offence of blasphemy, which is defined as ‘the publication or utterance of blasphemous, seditious, or indecent matter’. The offence of blasphemy is also present in criminal legislation by way of the Defamation Act (2009). (b) Defamation Act (2009) 19. The Defamation Act was passed in 2009 and came into force in 2010, repealing the Defamation Act of 1961. Under section 36 of the Act, the ‘publication or utterance of blasphemous matter’ is a criminal offence, which may result in a maximum fine of €25,000. On conviction, the court may issue a warrant for the material to be seized. 20. Article 36, paragraph 2 of the Defamation Act defines blasphemy material as ‘grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion’. According to section 4 of the same provision, ‘religion’ excludes profit-making organizations or those organizations that engage in ‘oppressive psychological manipulation’. Under section 3 of article 36, defence from criminal liability is permitted in cases of work of ‘genuine literary, artistic, political, scientific or academic value’. 21. While noting that no prosecution has been brought to date under section 36 of the Defamation Act, the Special Rapporteur expresses concern at the vagueness of the definition of blasphemy and its possible implications on the fundamental right to freedom of opinion and expression, which could lead to self-censorship among defenders. 22. The Special Rapporteur emphasizes that any restrictions on the right to freedom of expression must be limited only to those permissible under article 19 of the International Covenant on Civil and Political Rights.1 In this connection, she is pleased to note that the constitutional convention was tasked with considering the need for the removal of the offence of blasphemy from article 40.6.1 (i) of the Constitution, which would also facilitate its removal from the Defamation Act. 23. During her visit, the Special Rapporteur received information about the reported use of litigation and the threat of legal action to intimidate journalists. In this connection, she underlines the importance of the role of the Press Ombudsman and the Press Council, established to safeguard and promote professional and ethical standards in Irish printed media, and which can resolve complaints about the accuracy and fairness of coverage.

1

E/CN.4/2000/63/Add.2, paras 83–85.

2013 Documents 209 3. Laws Relating to the Freedom of Assembly (a) Constitution 24. Article 40.6.1 (ii) guarantees the right to peaceful assembly subject to the protection of ‘public order and morality’. Assemblies that are considered ‘to cause a breach of the peace’ or are ‘a danger or nuisance to the general public’ may be controlled and prevented. Assemblies held in the vicinity of either House of the Oireachtas may also be controlled and prevented. (b) Criminal Justice (Public Order) Act (1994) 25. The Criminal Justice (Public Order) Act of 1994, commonly referred to as the Public Order Act, sets out offences relating to public order and provides for sanctions, including prison sentences ranging from three months to three years and fines of up to €1,200. Part II of the Act criminalizes ‘disorderly conduct’, ‘threatening, abusive or insulting behaviour in a public place’, the ‘distribution or display […] of material which is threatening, abusive, insulting or obscene’, ‘failure to comply with the direction of a member of Garda Síochána (police)’, ‘wilful obstruction’ of persons or vehicles, ‘entering a building […] with intent to commit an offence’, and ‘affray’. 26. While permission or authorization from the police is not required to hold an assembly, part III of the Public Order Act allows the Garda Síochána to monitor and restrict access to large assemblies ‘in the interests of safety or for the purpose of preserving order’. These powers must, however, comply with privacy and data protection laws.2 4. Laws Relating to Freedom of Association (a) Constitution 27. Article 40.6.1 (iii) of the Constitution guarantees the right to form associations and unions, subject to the possible enactment of laws for the regulation and control of associations and unions ‘in the public interest’. Article 40.6 also specifies that such laws may not contain any political, religious or class discrimination. (b) Charities Act (2009) 28. The Charities Act, providing for the regulation and supervision of the charitable sector, was passed in 2009. The Act makes it mandatory for every charity to be registered and for updated information about charities, including missions, activities, governance and finances, to be made publically available. Key provisions of the Act include a definition of charitable purposes; the creation of a new Charities Regulatory Authority; the creation of a Register of Charities, in which all operating charities must register within six months and that will be publically accessible; the submission of annual activity reports by charities to the new Authority; updating the law relating to fundraising; the creation of a Charity Appeals Tribunal; and the provision of consultative panels to assist the Authority in its work and to ensure effective consultation with stakeholders.

2

The Freedom of Information Act (1997) and the Data Protection Act (1988).

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29. The Special Rapporteur notes with concern that section 3, paragraph 11 of the Act fails to recognize the promotion of human rights as ‘a purpose that is beneficial to the community’, therefore, effectively excluding organizations that work on the protection and promotion of human rights from being able to register as charities. 30. Moreover, to date, the Charities Act has not been fully implemented; it was reported that this would happen in stages. The Special Rapporteur is concerned that, as a result of the progressive implementation of the Act and the consequent absence of a comprehensive regulatory authority of the charitable sector, many organizations operating on a not-for-profit basis are forced to register as companies limited by guarantee in order to satisfy funding requirements. This has reportedly resulted in the organizations being unable to benefit from charitable status, including being eligible for tax exemption and being considered a legitimate charity for fundraising purposes.

IV. IN S TITUTIO N AL FR A MEWOR K FOR T HE PR OMOT I ON A ND P RO TE C T I ON OF HU MA N R I GHT S

A. Legislative Branch 31. Ireland is a parliamentary democracy. The President (Uachtarán) is Head of State and does not have executive functions. The Parliament (Oireachtas) comprises the President and two Houses: the directly elected House of Representatives (Dáil Éireann) and the Senate (Seanad Éireann), made up of representatives of several groups or institutions. 32. On the nomination of the House of Representatives, the President appoints the Prime Minister (Taoiseach) and, on the advice of the Prime Minister and with the prior approval of the House of Representatives, the President appoints members of the Government. There may be up to 15 members of Government. Government policy and administration may be examined in both houses, but under the Constitution, the Government is responsible to the President alone. Ireland also has a system of local government, based on 34 directly elected city- and county-level councils with functions relating to such matters as planning, housing and the provision of certain local services. 33. All draft legislation passed by the Parliament is examined by the Office of the Attorney General to ensure that it is compliant with the Constitution.

B. Executive Branch 34. At the institutional level, the Special Rapporteur was pleased to meet the Human Rights Unit of the Department of Foreign Affairs and Trade, and to learn about its work. Moreover, she was particularly pleased to find out about the existence of the NGO Standing Committee, which provides a formal framework for a regular exchange of views between the Unit and Department and representatives from the community of non-governmental organizations, including defenders and activists. She believes that this is an excellent initiative that should be replicated.

2013 Documents 211 C. Judicial Branch 35. Judges are appointed by the President on the nomination of the Government. The courts are structured on four levels: the District Court, the Circuit Court, the High Court and the Supreme Court. The latter two are referred to as the Superior Courts and may rule on constitutional matters. The Court of Criminal Appeal and the Special Criminal Court are also part of the judiciary in Ireland. 36. The Special Criminal Court was established in 1972 under the Offences against the State Act (1939) to deal with offences relating to terrorism and other offences listed as scheduled offences. Non-scheduled offences may also be forwarded to the Court’s jurisdiction if the Director of Public Prosecution certifies that the ordinary courts are inadequate. The Court sits with three judges, without a jury, and the judges reach a verdict by majority vote. The Special Rapporteur reiterates the recommendation made by the Human Rights Committee that the State should monitor the need for the Special Criminal Court carefully with a view to its abolition.3 37. During her visit, the Special Rapporteur learned about the recent establishment of the Interim Judicial Council, seen as a preliminary step towards the creation of a statutory body that would be tasked with providing a complaints mechanism against judges and with deciding on disciplinary actions. The Special Rapporteur also welcomes the establishment of the Judicial (professional) Association in November 2011.

D. Police 38. The national police service of Ireland is the Garda Síochána. The most recent act governing the body is the Garda Síochána Act (2005), and its internal management is subject to regulations of the Ministry of Justice and Equality. 39. The Garda Síochána Ombudsman Commission is an independent statutory body that investigates complaints concerning the conduct of members of the police, and is answerable to the Parliament. An independent person within the Commission deals with matters of concern reported by individual officer (whistle-blowers). 40. While the Special Rapporteur welcomes the existence of the Ombudsman Commission to ensure the accountability and independent oversight of the police, she expresses concern at the serious constraints faced by the body, including financial and resource limitations, and the reported limited public awareness of its activities and responsibilities. While she takes note of the powers of the Commission to conduct public interest investigations into the behaviour of the police in accordance with section 102(4) of the Garda Síochána Act (2005), she remains concerned at the Commission’s excessive dependence on the Ministry of Justice and Equality when it comes to opening investigations relating to the practices, policies and procedures of the police, which requires permission from the Minister, as laid out in section 106 of the mentioned Act. The Special Rapporteur recommends that this provision be removed from the

3

CCPR/C/IRL/CO/3, para 20.

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Garda Síochána Act (2005) in order to grant the Commission independent investigative powers.

E. Irish Human Rights and Equality Commission 41. The Irish Human Rights Commission was established under statute in 2000 in accordance with the Good Friday Agreement (1998) as an independent national human rights institution with key public functions in accordance with the Paris Principles. Regarded internationally as a model national human rights institution, the Commission gained ‘A’ status in 2004 and 2008 with the International Coordinating Committee. The Commission is currently administered by the Department of Justice and Equality. 42. In September 2011, the Government announced its intention to merge the Irish Human Rights Commission with the Equality Authority, an independent body to be set up under the Employment Equality Act (1998), to form the new Irish Human Rights and Equality Commission. In June 2012, the Minister for Justice and Equality published the Scheme of the Irish Human Rights and Equality Commission Bill 2012, which was examined by the Joint Committee on Justice, Defence and Equality.4 43. With regard to the scheme of the Irish Human Rights and Equality Commission Bill 2012, the Special Rapporteur is pleased to note that it was reviewed by Parliament, which received written submissions and held two public hearings. She also welcomes the consultation by the Government on the draft legislation with the Office of the United Nations High Commissioner for Human Rights and was pleased to learn that provisions in the Bill provide for enhanced powers and functions of the new Commission, including the power of inquiry. 44. Since July 2012, an Acting Chief Executive and an Advisory Committee of the future Human Rights and Equality Commission have been put in place. During the Special Rapporteur’s visit, she was assured that an interim body would be appointed early in 2013 to ensure the full operation of the Commission. The Special Rapporteur stressed the need that the Commission’s mandate be broad and that adequate resources be allocated to it to ensure its independence and effective functioning. She also encouraged the swift introduction of draft legislation. 45. With regard to the scope of the mandate of the new Commission, while the Special Rapporteur is pleased to note the broad definition of human rights contained in head 3, she is concerned at the somewhat narrow definition enshrined in head 30, which requires that such rights be ‘conferred on or guaranteed by the Constitution’ or have ‘the force of law in the State or by a provision of any such agreement, treaty or convention which has been given such a force’. 46. In connection with the above, and taking into account the fact that the automatic incorporation of international treaties into domestic law is hampered under article 29.6 of the Constitution together with the fact that Ireland is neither a signatory of nor

4 See the report on hearings in relation to the Scheme of the Irish Human Rights and Equality Commission Bill, July 2012, available at www.oireachtas.ie/parliament/.

2013 Documents 213 party to all international human rights treaties, the Special Rapporteur is concerned that the narrower definition of human rights contained in head 30 could potentially reduce the scope of the Commission’s mandates. She recommends that the heads of bill have only one definition of human rights, and that the one contained in head 3 be the one applicable to the new Commission. 47. With regard to the autonomy and independence of the Commission, the Special Rapporteur notes that, in 2008, during the process of re-accreditation, the Sub-Committee on Accreditation of the International Coordinating Committee highlighted a concern regarding the selection and appointment of the Commissioner and the need to provide for direct accountability to Parliament. Certain treaty bodies have also expressed their concern in this regard, referring to an administrative link to a Government department5 and to disproportionate budget cuts6 affecting the institution, and have called on the body to have direct accountability to Parliament.7 She took note of the establishment of a selection panel for the members of the Commission, which will be independent of the Government and will report to the Joint Committee on Justice, Defence and Equality. 48. While the Special Rapporteur acknowledges the increased links of the Human Rights and Equality Commission with Parliament established by the heads of bill (heads 12, 14, 20 and 27), she notes that heads 17, 19, 21, 26 and 27 seem to strengthen the connection of the institution to the Ministry of Justice and Equality by, inter alia, limiting what information the Director may convey to the Public Accounts Committee (head 19) and requiring ministerial consent for the appointments of the Director of the Commission and its staff (head 26). The Special Rapporteur underlines the importance for a national institution to be able to recruit its own staff, and she also recommends that no secondment from civil service be allowed. 49. The Special Rapporteur also brings to the attention of relevant authorities a concern expressed by various stakeholders during her visit relating to the cumulative budget cuts suffered by the Commission since 2008. She was informed that the Commission has been subject to a reduction by 40 per cent in funding since 2007. Together with an embargo on recruitment, this has resulted in significant constraints for the institution. 50. While the Special Rapporteur notes that the heads of bill provide for the appointment of Advisory Committees (head 16), she regrets that there is no specific provision regarding the engagement of the new institution with civil society actors. She strongly recommends that the Government consider including a specific reference to the importance of the interaction between the Commission and civil society actors, including human rights defenders.

5

CCPR/C/IRL/CO/3, para 7. CERD/C/IRL/CO/3-4, para 11. 7 CAT/C/ IRL/CO/1, para 8. 6

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F. Support for Human Rights Defenders through External Policy 51. Through its external policy, Ireland has assumed a leading role in initiatives under the European Union Guidelines on Human Rights Defenders to contribute to the protection of defenders and activists at risk in other countries, including through the provision of temporary visas at the national level. The Special Rapporteur commends the Government of Ireland for its efforts to assist defenders at risk in third countries. 52. On the initiative of Ireland, the above-mentioned Guidelines were adopted in 2004 and updated in 2008 in order to streamline the actions of member States of the European Union in favour of human rights defenders. They provide concrete proposals, especially to European Union diplomatic missions, on monitoring the situation of defenders. Support for United Nations human rights mechanisms and coordination with other regional instruments is another important aspect of the Guidelines, as is the need to use development policy and aid programmes to protect defenders. 53. While the Guidelines are an important tool and represent a significant commitment by the European Union, both internal evaluations8 and external assessments have shown gaps, particularly at the implementation and coordination levels. For a number of years, efforts have been made to develop local strategies for the implementation of the Guidelines and to set up local human rights groups in order to assure greater coordination. The Special Rapporteur stresses the importance of integrating the implementation of the Guidelines into the broader framework of European Union human rights policy, which includes other important human rights guidelines and policy instruments. 54. Ireland has been particularly proactive in promoting the Guidelines on Human Rights Defenders and has taken a number of initiatives worth underlining, including, those described below. 1. Humanitarian Visa Scheme 55. Since 2006, Ireland has managed a dedicated humanitarian visa scheme for human rights defenders. The aim of the scheme is to provide a fast-track approach to processing visa applications, thereby allowing defenders facing temporary security issues to travel to Ireland for short periods of time for respite. Given the specific profile of such cases, a high degree of confidentiality is maintained around the scheme and individual cases. 56. An application must be submitted through the Embassy or consular representation of Ireland in the applicant’s country of usual residence. If there is no representation in the country concerned, the application is made to the appropriate representation in a neighbouring country. The programme is administered in conjunction with the non-governmental organization Front Line Defenders, and has provided relief to various defenders in recent years. The Special Rapporteur commends the Government

8 Draft report on EU policies in favour of human rights defenders (2009/2199(INI)), Committee on Foreign Affairs, European Parliament. Available from www.europarl.europa.eu/RegData/commissions/afet/ projet_rapport/2010/439063/AFET_PR(2010)439063_EN.pdf.

2013 Documents 215 of Ireland for the effort put into the scheme, and encourages its replication by those member States of the European Union that have not yet already done so. 57. Moreover, the Special Rapporteur is pleased to note that, in 2010, Ireland developed complementary guidelines for its embassies and diplomatic missions on human rights defenders. The guidelines describe practical steps that diplomatic missions can take to support human rights defenders and to seek to ensure that embassies properly monitor the situation of defenders abroad. 2. Implementation of the European Union Guidelines on Human Rights Defenders 58. The Special Rapporteur commends the efforts made by the Government of Ireland to continue to contribute to the protection of defenders abroad, and encourages the Irish authorities to bring these issues forward, in particular in the first six months of 2013, when Ireland will hold the Presidency of the European Union. She sees this as an excellent opportunity to make additional efforts to enhance the implementation of the European Union Guidelines on Human Rights Defenders. 59. In the above connection, the Special Rapporteur suggests that a system of benchmarks and simple indicators be developed, jointly with human rights defenders, to assess the implementation of the Guidelines. The assessment system should be gender-sensitive and allow for the sharing of good practices among European Union delegations. 60. Structural indicators could include, inter alia, the number of local strategies developed, the number of diplomatic missions that have volunteered for a post as European Union liaison officer for human rights defenders, or the number of diplomatic missions who make the Guidelines easily available on their websites. 61. Outcome indicators could include the number of individual cases raised bilaterally. The number of fast-track visas provided under a humanitarian visa scheme could also be included. With regard to public support and visibility for the work of defenders, indicators could include the number of public statements on defenders at risk, the number of initiatives taken in individual cases in regional and international forums (such as the Human Rights Council and the General Assembly), the number of visits to the place of work of defenders, and the number of events (such as conferences and seminars) to which defenders are invited. The number of visits to defenders in detention and the number of trials observed by diplomats could also be included. 3. Development Policy and the Protection of Human Rights Defenders 62. The Special Rapporteur was pleased to note that Irish development policy has a long-standing history of mainstreaming human rights through its development cooperation and aid programmes, including by fostering civil society action and supporting the protection of human rights defenders. 63. During her visit, the Special Rapporteur became acquainted with the ongoing review of the White Paper on Irish Aid. Irish Aid is the Government programme of development assistance that delivered €639 million for poverty reduction in 2012, and has traditionally provided important support for human rights defenders. The overall

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reductions in public expenditure resulting from the difficult economic situation in Ireland, however, led to a cut of 30 per cent in the State’s aid budget between 2008 and 2011. 64. The review of the White Paper on Irish Aid was announced in June 2011 and is being led by the Minister of State for Trade and Development. The Special Rapporteur commends the broad consultations held in connection with the review of the White Paper with key stakeholders, including the general public, civil society, partner countries, the private sector and the Parliament. The Special Rapporteur hopes that the review of the White Paper will continue to maintain a clear focus on human rights and on the protection of defenders. 65. The role of donors in protecting and fostering civil society in recipient countries has become essential, while development aid has shown proved to be an effective tool in fostering an enabling environment for defenders. In this regard, the Special Rapporteur would like to add her voice to those who underline the importance of ensuring coherence between international human rights principles and frameworks for development aid.9 In particular, she highlights the need to consider the recommendations made by United Nations human rights mechanisms, including the universal periodic review, the special procedures and the treaty bodies, when assessing aid performance at the country level. She also underlines the importance of the coherence and sustainability of donors’ reactions to human rights violations, as well as of that of funding being made available to support the capacity and safety of human rights defenders as part of development aid.

V. S ITUATIO N OF HU MA N R I GHT S DEFENDER S

66. During her visit, the Special Rapporteur observed that, because of their legitimate work upholding human rights, certain categories of human rights defenders face specific challenges in Ireland. These categories include environmental rights defenders, defenders and activists working on sexual and reproductive rights, defenders working on the rights of Travellers, asylum seekers and refugees claiming the rights of their community, and whistle-blowers and others reporting acts of wrongdoing. 67. The Special Rapporteur also became aware of other challenges affecting human rights defenders that relate, inter alia, to the lack of an independent complaints mechanism in prisons, the high costs associated with public interest litigation, the drastic reduction in public funding available for advocacy work, and accessibility to public policy-related information.

A. Environmental Rights Activists 68. During her visit, the Special Rapporteur expressed her concern at the situation of and challenges faced by defenders and activists defending the right to the enjoyment 9 Trocaire, Democracy in Action: Protecting Civil Society Space, Trocaire Policy Report, 2012. Available from www.trocaire.org/sites/trocaire/files/pdfs/policy/Democracy_in_Action.pdf.

2013 Documents 217 of a safe, clean, healthy and sustainable environment, particularly those peacefully protesting against the Corrib Gas project in County Mayo. 69. Natural gas was found in North Mayo in 1996, and Shell E&P Ireland, in partnership with Statoil Exploration (Ireland) Limited and Vermilion Energy, took over the development of the Corrib Gas project in 2002. The project has been controversial for various reasons, including safety concerns relating to the type of pipeline (an onshore, high-pressure pipeline) and the route chosen, as well as environmental concerns for the ecological impact of the project on a sensitive area that includes special areas of conservation. Since 2002, a number of risk assessments and reviews of the impact of the Corrib Gas project have been undertaken by Shell, the public authorities, local residents and non-governmental organizations.10 70. Since its inception, the Corrib Gas project has faced opposition from various groups of local community residents, who claim that their rights to life and the enjoyment of a safe, clean, healthy and sustainable environment are being seriously compromised by the project. During her visit, the Special Rapporteur met with various groups of local residents and was able to confirm the frustration that exists among those who are standing up for their rights, who feel powerless, isolated and have lost their confidence in public institutions. These community residents are loosely organized, without a clear leadership structure, and have adopted different non-violent ways to express their opposition to the project. 71. While opposition to the project has been mostly peaceful, the Special Rapporteur noted with concern that there have also been reports of violent criminal acts committed in the context of the protests, including damage against Shell property. The Special Rapporteur would like to emphasize that those responsible for committing such acts cannot be considered human rights defenders, and that perpetrators should be held accountable for their actions and brought to justice. 72. During her visit, the Special Rapporteur received credible reports and evidence, including video footage, indicating the existence of a pattern of intimidation, harassment, surveillance and criminalization of those peacefully opposing the Corrib Gas project. Protests have ranged from lawful demonstrations to non-violent non-compliance and passive resistance on both public and private grounds. The information received seemed to indicate that the policing of the protests had been, in some instances, disproportionate. Moreover, there have also been serious concerns about the lawfulness of certain actions by the private security firm employed by Shell. 73. In 2006 and 2007, incidents reported include protesters being thrown off roads and into ditches by police officers when they were trying to block roads. In 2008 and 2009, various incidents reportedly included the unlawful detention by the police of a boat belonging to a local fisherman, who was allegedly trying to protect his crab pots from the pipe laying vessels, and the physical assault by the police and private security staff of a protestor staging a sit-in under a truck. While the Special Rapporteur takes note that the explicit no-arrest policy by the police has been used as a way to reduce

10 Brian Barrington, ‘Breakdown in trust: a report on the Corrib gas dispute’, Front Line, 2010. Available from www.frontlinedefenders.org/files/Corrib%20Gas%20Dispute%20Breakdown%20of%20Trust%20 Web%20version.pdf.

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tension, she received information indicating that this may have led to the excessive and disproportionate use of force against protestors. 74. More recent reports include serious allegations of police misconduct and verbal abuse against protesters, such as an incident on 31 March 2011, when several police officers were inadvertently recorded (by a video camera confiscated from two female protestors) while threatening to rape one of the women protestors in their custody. The Garda Síochána Ombudsman Commission conducted an investigation into the allegations and, in July 2011, issued a report thereon. As a result of the investigation, disciplinary action was taken and one of the police officers was found to be in breach of discipline and was admonished for his behaviour and on future conduct. 75. In the above connection, the Special Rapporteur expresses her concern at allegations received pointing to shortcomings in official investigations, particularly those relating to the use of excessive force and abusive behaviour by the police. The Corrib Gas dispute has been the single largest source of complaints to the Garda Síochána Ombudsman Commission. In 2007, in accordance with section 106, part 4 of the Garda Siochána Act (2005), the Commission sought to conduct a ‘practice, policy and procedure’ investigation into public order aspects of the dispute, and requested the consent of the Minister for Justice. Regrettably, consent was denied on the grounds that the Commission did not have enough experience at the time with complaints in terms of volume and seriousness to allow for patterns to be identified. As stated above, the Special Rapporteur considers that this section of the Garda Siochána Act should be repealed and the Commission should seek again to conduct a ‘practice, policy and procedure’ investigation into the public order aspects of the dispute in the light of its proven experience with complaints in recent years. 76. The Special Rapporteur acknowledges that the Corrib Gas dispute has created a challenging environment for the police and local authorities, given the length of the dispute and the fact that those involved come from the same community. She is also mindful of the fact that the rights to freedom of expression and to peaceful assembly may be subject to certain legal and necessary restrictions. She takes note of the establishment of the Strategic Human Rights Advisory Committee by the police in 2005 and of the information received regarding the specific training of the police on handling protests and on the use of force. The Special Rapporteur trusts that the efforts will continue, thus providing adequate training and guidance to the police and other relevant personnel, especially with regard to the policing of protests and crowd control. 77. The Special Rapporteur also took note of the reported consistent use of charges against protestors under articles 8 (failure to comply with directions of the police) and 9 (wilful obstruction) of the Public Order Act. This, together with the reported practice of withdrawal or dismissal of cases and the regular sanction of suspended sentences after court appearances, could, in her opinion, undermine the right to protest and deprive defendants of the opportunity to respond to the legal charges made against them. 78. In addition, the Special Rapporteur received reports of acts of surveillance of public roads, private houses and private movements of local residents by private security agents employed by Shell. The Special Rapporteur is concerned at the possible

2013 Documents 219 impact of such practices on the right to privacy of local residents, and recommends that surveillance methods be employed only in a lawful and proportionate manner, and that their purpose be communicated to local residents.

B. Defenders and Activists Working on Sexual and Reproductive Rights 79. During her visit, the Special Rapporteur received information about the situation of and challenges faced by defenders working on sexual and reproductive rights, particularly those providing women with information on legal abortion. Ireland has one of the most restrictive laws in Europe regarding the termination of pregnancy whereby abortion is a criminal offence, except when the pregnant woman’s life is at risk, including because of the risk of suicide, and where women may be punished with life-term prison sentences. 80. In 1983, article 40.3.3 of the Constitution was amended to acknowledge ‘the right to life of the unborn’, regarding it as equal to the right to life of the pregnant woman. The term ‘unborn’ was not defined. Procuring or assisting in an abortion is a criminal offence under the Offences against the State Act (1861), and is punishable by up to life imprisonment. There have been no prosecutions under the Act in recent times, at least since 1975 and the establishment of the Office of the Director of Public Prosecutions. 81. In 1995, the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act11 was enacted. The Information Act allows for the provision of information on abortion services abroad, subject to strict restrictions that pose a number of important challenges to the work of defenders, practitioners and advocates working on sexual and reproductive health rights, which are described below. 82. In 1992, with the judgement in Attorney General v X, the Supreme Court provided guidance on the interpretation of the existing right to abortion under article 40.3.3 of the Constitution, and determined that abortion in Ireland was legal when a real and substantial risk to life—as opposed to the health—of the pregnant women, including the risk of suicide, had been established. 83. In 2010, the European Court of Human Rights, in the case of A, B and C v Ireland, found that Ireland had failed to respect the applicant’s private life, contrary to article 8 of the European Convention on Human Rights, given that no accessible or effective procedure had been available to enable her to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law, and requested a more effective procedure regarding requirements to be met to qualify for the legal termination of a pregnancy. 84. The decisions described in paragraphs 82 and 83 above are still to be implemented, which explains why currently no legislation or regulatory framework exists to define whether a woman is entitled to have access to legal abortion. In June 2011, the Government submitted a plan of action to the Committee of Ministers of the Council of Europe with measures on how to implement the judgement, including the establishment of an Expert Group to recommend the options available. In November 2012, 11

See www.irishstatutebook.ie/1995/en/act/pub/0005/print.html.

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the report of the Expert Group on the Judgement in A, B and C v Ireland was made public. 85. According to the Information Act, information on abortion services should only be given in the context of one-to-one counselling (sect. 3.1 (a)). The Act also stipulates that any information on abortion provided by advisory agencies, doctors and counsellors must be ‘truthful and objective’, must ‘not advocate or promote’ abortion and should be provided together with information on all courses of action open to a women in relation to her particular circumstances (sect. 5(b, iii)). Agencies, doctors and counsellors are also prohibited from making arrangements on behalf of their clients for an abortion abroad (sect. 8, 1). 86. The Special Rapporteur is concerned about the important challenges that certain provisions contained in the Information Act pose for reproductive health providers and defenders working on these issues. When a woman seeks information on abortion, it may only be provided in the context of a face-to-face counselling session; information cannot be given online or over the telephone. This provision can pose significant barriers for counsellors and potentially restrict women’s access to information on sexual and reproductive rights, particularly on access to the health services available abroad. Moreover, the provision can restrict the ability of defenders to make contact with some women who may not be able to attend a face-to-face counselling session, including women who live in isolated or rural areas, young women, women in State care and/or migrant women. The inability of counsellors to make appointments on behalf of their clients further restricts the support they can offer to women seeking this type of service abroad. 87. Moreover, the Special Rapporteur is concerned at reports and evidence received during her visit indicating the existence of a smear campaign and stigmatization of defenders and activists working on abortion issues. More specifically, she received information about a smear campaign in printed media, reportedly in October and November 2012, when a well-known reproductive health provider in the country was targeted in various newspaper articles and accused of putting the lives of women at risk and contravening the law. The Health Service Executive has reportedly launched an investigation into the accusations made against a number of reproductive health providers. As the Special Rapporteur stressed in a previous report,12 the stigmatization of defenders may lead to the selective enforcement of existing laws and regulations, reinforce existing stigma and culminate in the criminalization of their legitimate activities.

C. Defenders Working for the Rights of Travellers 88. The challenges faced by those defenders working on the rights of the Traveller community, including Roma Travellers, were brought to the attention of the Special Rapporteur during her visit. These defenders are generally members of the Traveller community who advocate for the basic rights of the community, including the right to adequate housing that is culturally acceptable; the right to education and health, 12

See A/HRC/16/44.

2013 Documents 221 particularly of their children; and the right to effective participation in public and political life. 89. While Travellers are explicitly named as a group protected from discrimination under the Equal Status Acts 2000 to 2012, and the Employment Equality Acts 1998 to 2011, they are not recognized as a distinct ethnic minority. This, combined with the overall situation of social exclusion and disadvantage of the community, makes the work of the defenders extremely challenging. The Special Rapporteur recalls the recommendations of the Human Rights Committee,13 the Committee on the Elimination of Racial Discrimination14 and the Council of Europe regarding the recognition of Travellers as an ethnic minority. 90. During her visit, the Special Rapporteur received information that organizations representing Travellers had been excluded from relevant integration policies and institutions. According to the information received, the community was not involved in the preparation of the National Traveller Roma Integration Strategy. The Special Rapporteur also learned that the implementation of programmes and strategies concerning the community had been excessively slow. She also received information about a context of overall budget cuts and uncertainty around funding affecting both organizations working for the rights of Travellers as well as relevant public institutions, such as the Equality Authority. 91. The Special Rapporteur also noted with concern the reported hostile and distant attitude towards Travellers in Irish society, including sometimes among civil servants, which can lead to the stigmatization of those advocating for their rights and limits their ability to conduct their work effectively. The situation is particularly severe for women Travellers who are also human rights defenders.

D. Whistle-blowers and Others Reporting Wrongdoing 92. Those who disclose information of public interest about wrongdoing or illegal activities (whistle-blowers), particularly concerning issues of corruption of public officials, face a high risk of retaliation. During her visit, the Special Rapporteur received information about the challenges faced by this type of defenders in Ireland in both the public and the private sectors. Articles 32 and 33 of the United Nations Convention against Corruption underscore the need to protect the rights of whistle-blowers and witnesses of corruption. 93. Since 1999, there have been various attempts by the State to enact comprehensive legislation to protect whistle-blowers. To date, such initiatives have been unsuccessful, resulting in a largely inadequate patchwork of safeguards to protect persons reporting abuses in certain professional sectors. According to the information received, no legislative or policy provisions currently protect disclosure to the media, elected representatives and civil society organizations. Moreover, the existing confidentiality provisions seem insufficient.

13 14

CCPR/C/IRL/CO/3, para 23. CERD/C/IRL/CO/3-4, para 12.

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94. The Special Rapporteur is pleased to note that the Prevention of Corruption (Amendment) Act (2010) makes acts of retaliation against anyone reporting an offence in good faith a criminal offence, and contains legal safeguards in the form of civil law remedies for employees who report corruption offences. The Act does not, however, cover workers in the banking or business sectors. 95. The Special Rapporteur is encouraged by the General Scheme of Protected Disclosure in the Public Interest Bill of 2012, which was introduced by the Government precisely to address the lack of an overarching legal protection framework. Nevertheless, the Special Rapporteur notes with concern that the bill does not cover self-employed professionals or volunteer workers and that the definitions provided for in the text do not include the term ‘good faith’. In addition, several provisions seem problematic, particularly regarding the fact that protection is not afforded to those who wish to make an anonymous disclosure (head 11) and that the confidentiality of those who choose to make a disclosure does not seem fully ensured (head 16).

E. Asylum Seekers and Refugees Working for the Rights of their Community 96. Ireland has traditionally been an open and welcoming country for those at risk in other parts of the world, and began receiving refugees in the mid-1990s. Asylum seekers in Ireland face significant challenges, some of which affect a number of them who might be regarded as human rights defenders. 97. The absence of a single determination procedure causes excessive delays in granting effective protection for those who need it most. In addition, the rate of recognition is one of the lowest in Europe, and there is room for improving the quality of decisionmaking in the status determination process. In this connection, the Special Rapporteur was pleased to learn that the Government is working closely with UNCHR through the Quality Initiative to enhance various aspects of the determination process. 98. The Special Rapporteur was, however, concerned to receive reliable information indicating that asylum seekers using direct public provision services, which include reception and accommodation, sometimes fear retaliation, for instance in the form of unannounced transfers, if they attempt to claim their rights, or those of their fellow asylum seekers, to privacy, an adequate standard of living and adequate standards of physical and mental health. She encourages the authorities to take all the measures necessary to ensure that refugees working for the rights of their community in Ireland are able to claim their rights without facing obstacles of any sort.

F. Other Challenges for Human Rights Defenders 99. Overcrowding in prisons is a serious problem that has been highlighted by various national and international organizations, as well as by intergovernmental bodies, including the Human Rights Committee, the Committee against Torture, the Human Rights Council and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

2013 Documents 223 100. Cell conditions, sanitation and the practice of ‘slopping out’15 have received international condemnation and been qualified as amounting to cruel, inhuman and degrading treatment or punishment. In this connection, the Special Rapporteur takes note of the efforts made by the Government to improve considerably the situation in certain detention centres in the past two years, and welcomes the Government’s commitment to end ‘slopping out’ by 2014. 101. The Special Rapporteur nonetheless noted with concern during her visit the lack of an independent and effective complaints mechanism for those in detention centres. She received information about instances of intimidation of prisoners who wish to make a complaint, particularly at the St. Patrick’s Institution for Young Offenders. While she takes note that, as of 1 November 2012, serious complaints by prisoners are subject to independent investigation beyond the internal complaints procedure under the Inspector of Prisons, the Special Rapporteur is of the view that a fully independent complaints mechanism would be more effective and help to ensure that complainants are protected against acts of retaliation. 102. The Special Rapporteur was also informed about challenges faced by those defenders who work assisting children held at St. Patrick’s, in particular in their access to children owing to special detention regimes. 103. During her visit, the Special Rapporteur also received information about the challenges faced by defenders and legal advocates working in class or public interest litigation, often relating to human rights issues, which cannot easily be undertaken owing to the high costs associated. In the current framework, plaintiffs pursuing such cases risk having to pay the costs of the case if they lose at trial (which could easily amount to a sum of six figures). This could have a chilling effect on those who might wish to challenge the Government. 104. The Legal Services Bill of 2011, introduced to increase competition in the legal sector, includes a provision stating that whoever wins the suit will have their costs covered by the opposing side. This provision could be amended to include a protective cost order in cases of public interest so that either side could apply to the court at the beginning of a case to have the costs either capped or waived. 105. The Special Rapporteur also received information about the difficulties of those defenders doing human rights advocacy work in order to procure public funding, which seems more focused on service delivery activities than advocacy. 106. The attention of the Special Rapporteur was also drawn to the fact that policyrelated information is not readily available, given that the websites of public institutions are not easy to navigate and there are important gaps in access to public documents.

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The use of buckets as toilets, which are emptied (‘slopped out’) when cells are unlocked in the morning.

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A. Conclusions 107. The Special Rapporteur considers that human rights defenders in Ireland work in a conducive and enabling environment that, in general, meets international standards. Although a greater effort could be made to raise awareness about the Declaration on Human Rights Defenders at the national level, the Government and other authorities have shown an open and supportive attitude towards the defence and promotion of human rights. The Special Rapporteur nevertheless notes that the term ‘defender’ is not always well understood among public officials. 108. The Special Rapporteur notes with concern the situation of the national human rights institution as a result of the planned merger with the Equality Authority. She hopes that the draft legislation will be enacted shortly in order to establish a strong, independent and adequately resourced institution capable of a credible and impartial scrutiny of the State’s human rights activities. 109. The Special Rapporteur is particularly pleased to have learned more about the proactive role played by Ireland in the promotion of the European Union Guidelines on Human Rights Defenders and the important initiatives taken to protect human rights defenders in foreign policy and development aid. Ireland has a number of good practices in this regard that could serve as an inspiration for other countries. 110. In general, the Special Rapporteur considers that, in Ireland, human rights defenders do not face risks in doing their work. Nevertheless, she believes that special attention should be paid to the specific challenges faced by certain categories of human rights defenders and activists. In this connection, she makes the recommendations below in a spirit of constructive dialogue with the authorities and the other stakeholders involved.

B. Recommendations 111. The Special Rapporteur recommends that the Government of Ireland: (a) Expedite the ratification of United Nations treaties to which Ireland is not a State party and consider establishing an accountability mechanism for compliance with obligation under international and United Nations treaties, such as a parliamentary committee, or extend the competencies of the Irish Human Rights and Equality Commission to this area; (b) Remove the offence of blasphemy from the constitutional and legal framework, and promote the use of the Press Council and the Press Ombudsman to mediate and resolve complaints involving printed media; (c) Expedite the enactment of legislation to allow for the statutory establishment of the Judicial Council, providing it with adequate financial and human resources; (d) Amend section 3, paragraph 11 of the Charities Act (2009) to include the promotion of human rights as ‘a purpose that is beneficial to the community’, and enable the full implementation of the Act;

2013 Documents 225 (e) Make a greater effort to disseminate the United Nations Declaration on Human Rights Defenders at the national level, including by raising awareness among public officials about the meaning of the term and the role of ‘defenders’; (f) Consider adopting a national plan of action on human rights, which should include a section on human rights defenders; (g) Develop simple structural and outcome indicators to foster the implementation and evaluation of the European Union Guidelines on Human Rights Defenders, and consider appointing a dedicated focal point for human rights in Irish Aid; (h) Repeal section 106, part 4, of the Garda Síochána Act (2005) to ensure full independence of the Garda Síochána Ombudsman Commission when conducting examinations on practice, policy and procedure of the police; (i) Expedite the introduction of legislation on the establishment of the Irish Human Rights and Equality Commission to provide for an autonomous and independent institution; and, in the meantime, appoint, as soon as possible, an interim body to oversee the functioning of the Irish Human Rights Commission and the Equality Authority; (j) Investigate all allegations and reports of intimidation, harassment and surveillance in the context of the Corrib Gas dispute in a prompt and impartial manner, conduct investigations regarding the actions of the police and adopt the measures necessary to instruct and equip the police in the area to discharge their functions adequately, particularly with regard to the policing of protests and crowd control; (k) Until section 106, part 4 of the Garda Síochána Act (2005) is repealed, give consent for the Garda Síochána Ombudsman Commission to conduct an examination of the practices, policies and procedures of the police in the context of the Corrib Gas dispute; (l) Implement the judgements passed by the Supreme Court in 1992 and the European Court of Human Rights in 2010 by introducing the necessary legislation regarding access to legal abortion, clarify the criteria to be met for the legal termination of pregnancies, and provide the necessary guidelines for medical professionals and other practitioners; (m) Consider reviewing certain provisions of the Access to Information Act (1995) to remove obstacles faced by reproductive health providers; (n) Recognize publically the work of defenders and practitioners who work for the enjoyment of the right to health of women, including sexual and reproductive rights, and protect them effectively from harassment or intimidation of all kinds, including smear campaigns; (o) Acknowledge publicly the importance of the role and work of defenders working for the rights of Travellers, and consider implementing the recommendations made thereon by the United Nations treaty bodies regarding the recognition of Travellers as an ethnic minority; (p) Engage with Travellers, particularly women Travellers, through their representatives in order to integrate their views into public policy planning meaningfully; (q) Enact adequate overarching legislation to protect whistle-blowers in all sectors of activity, ensuring that it complies fully with the United Nations Convention against Corruption; (r) Establish promptly an independent and effective mechanism to receive complaints from those in prison, such as an ombudsperson, and, in the meantime, address

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allegations of intimidation of those attempting to submit complaints of human rights violations in the current system. 112. The Special Rapporteur recommends that the Garda Síochána Ombudsman Commission: (a) Strengthen its efforts to raise awareness about its mandate, including the complaints procedure; (b)Consider requesting an examination of the practices, policies and procedures of the police in the context of the Corrib Gas dispute. 113. The Special Rapporteur recommends that the Irish Human Rights Commission: (a) Continue its efforts to ensure that the ‘A’ status of the institution is maintained until the new institution has been established; (b)Establish a focal point for human rights defenders within its structure; (c) Establish contact with defenders outside urban areas and raise awareness about its role and services. 114. The Special Rapporteur recommends that human rights defenders increase their efforts: (a) To disseminate information about the United Nations Declaration on Human Rights Defenders at the domestic level, particularly among civil servants; (b)To lobby the Government to implement recommendations made by regional and international human rights mechanisms; (c) To diversify sources of funding given in the current context of austerity. 115. The Special Rapporteur recommends that all stakeholders, including private companies: (a) Respect the work of human rights defenders, familiarize themselves with the provisions of the Declaration on Human Rights Defenders and acknowledge the important role played by human rights defenders; (b)Ensure that all protests and assemblies are peaceful; the expression of dissent is legitimate but it should not be violent and should be exercised according to international standards.

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Document 3 Tánaiste’s Address at the UN Human Rights Council Geneva, 27 February 2013 United Nations Human Rights Council 22nd session (25 February to 22 March 2013) EU Statement: High-level Segment Mr President, distinguished colleagues, It is my pleasure to address you today on behalf of the European Union High Representative for Foreign Affairs and Security Policy/Vice-President of the European Commission. Catherine Ashton regrets that she cannot attend this Ministerial week of the Human Rights Council, particularly as we in the EU consider the Council a forum of crucial importance for the promotion and protection of human rights worldwide. Mr President, Yet again, and very sadly so, this Human Rights Council session is dominated by the shocking developments in  Syria,  where grave human rights violations, war crimes and crimes against humanity continue unabated. It is imperative that all those responsible for crimes against humanity and war crimes be held accountable. The EU recalls that the United Nations Security Council can refer the situation in the Syrian Arab Republic to the ICC at any time and calls on the Security Council members to uphold their responsibilities on the situation in Syria in all its aspects, including this issue. We strongly urge the Human Rights Council at this session to come to a unified condemnation of the human rights violations and abuses in Syria and to support a strong call for accountability, preventing impunity. Against the backdrop of a rapidly deteriorating situation, the independent Commission of Inquiry has our fullest support. We will advocate for a further mandate extension of one year so as to give the Commission a solid basis for the continuation of its utmost important work. Mr President, The situation in  Mali  which is brought to the Council by a broad coalition of countries is another situation very high on the EU’s agenda.

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It is a country that the Human Rights Council has addressed for some time, thus proving that the systematic monitoring of a country’s human rights situation is a good crisis indicator. Last week, EU Foreign Ministers expressed alarm at the allegations of breaches of international humanitarian and human right law in that country and reminded the Malian authorities that they have an overriding responsibility for the protection of the civilian populations. The EU will support the deployment of civilian human rights observers. All perpetrators of human rights violations must be held responsible for their actions. Mr President, One strong feature of the United Nation’s premier body for human rights issues is the regular consideration of country situations or themes which are not making daily headlines, but which are by no means less important. A human rights situation that requires the continued attention of the international community is that of the Democratic People’s Republic of Korea (DPRK). For too long the population of the country has been subjected to widespread and systematic human rights violations and abuses. For too long, the Government of the DPRK has persistently refused to cooperate with the Human Rights Council and its Special Rapporteur. The EU is alarmed by the recurring reports of torture, summary executions, rape and other patterns of human rights violations in the country and especially in the prison camps where reportedly 200,000 people are being held. This is why the EU, together with Japan, will, when presenting a resolution this year, urge this Council to opt for increased international scrutiny of the human rights situation in the DPRK. There must be an investigation into these alleged crimes. Mr President, The EU also remains seriously concerned by the worrying human rights situation in Iran where grave violations continue to be perpetrated. We cannot remain silent in the face of violent oppression of dissent, as well as detention and execution without fair trial, severe discrimination against women and members of ethnic and religious minorities, restrictions on freedom of expression, assembly and religion or belief, and harassment and arrest of human rights defenders, including lawyers defending political prisoners and their families. The Human Rights Council, therefore, must act and extend the mandate of the UN Special Rapporteur on Iran. Moreover, the EU believes that the current human rights situation in Sri Lanka, and accountability and reconciliation, should remain on the agenda of this Council. The impartial application of the rule of law is crucial to progress in these areas, and it is essential to safeguard the independence of the judiciary. Mr President, It is heartening that one country regularly on the agenda of the Council is a source of good news: Burma/Myanmar has made important progress regarding human rights, democracy and reconciliation, which we acknowledge and welcome, while also recognizing ongoing human rights concerns, for instance regarding the remaining political

2013 Documents 229 prisoners, the situation of the Rohingya in Rakhine State and the reconciliation with ethnic groups. Based on the experience with many transitions, we strongly believe that addressing and improving the human rights record of a country is an essential part of the transition to democracy and prosperity. It is our sincere wish to assist Myanmar on this path, and we cooperate intensively to that end. We believe that the country would benefit greatly from the work of an OHCHR country office with a full mandate, and that, in the meantime, the continued work of a Human Rights Council mandate holder will be helpful. Mr President, The EU also pursues many  important thematic priorities,  which feature very prominently on the Council’s agenda. The great majority of the HRC special procedures have a thematic mandate and the EU highly values work undertaken by the Special Rapporteurs and Independent Experts. Freedom of religion or belief  is an inalienable human right and an essential pillar of safe and prosperous societies. The EU is concerned by the increasing number of acts of discrimination based on religion or belief occurring across the world and has condemned the violence against persons belonging to religious minorities. Against this background, the EU will again present a resolution on Freedom of Religion or Belief, aiming this year also at the extension of a strong, independent mandate of the Special Rapporteur. The EU will continue to engage with all partners in the fight against religious intolerance, including in the context of the implementation of consensual resolutions adopted on this theme. Mr President, The  advancement of women’s rights and gender equality  is a key component of the human rights policy of the European Union. Yesterday, we co-organized a high-level event on the Power of Empowered Women. It also described the role that women played in the Arab spring and other transition situations. These powerful testimonies confirmed once more the important contributions to society that women can make if they are fully empowered. The EU strongly advocates for the increased participation of women, both in public and political life. We remain committed to combating discrimination against women and girls. We will also continue to support efforts to eliminate  all  forms of violence against women and girls—be it at home, in communities or in situations of armed conflict. Mr President, The European Union remains committed to advancing the  rights of the child,  both inside the EU and in its external human rights policy. Guided by the principles of equality and non-discrimination, we reaffirm our determination to promote and protect the rights of all  children. As in previous years, together with Latin American and Caribbean countries, the EU will devote particular attention to the rights of the child, this year focusing on the right to the enjoyment by children of the highest attainable standard of health. The EU also remains gravely concerned by incidents of discrimination and violence against individuals based on their  sexual orientation and gender identity.  This issue

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needs to remain on the agenda of the United Nations. The Human Rights Council should follow-up its landmark resolution of the June 2011 session and the successful awareness-raising activities in New York. Mr President, We all recognize that the work of  human rights defenders and civil society organizations  is essential for democratic societies. This makes restrictions placed on NGO activities in many countries, including through restrictive legislation, an even greater concern. These organizations need space, and human rights activists must be able to exercise their rights, including freedom of expression offline and online, freedom of assembly and freedom of association. The Human Rights Council is the ideal forum to discuss what needs to be done so that states fulfil their obligations to create an enabling environment allowing NGOs to make their contribution to the creation or consolidation of ‘rights-respecting democracies’, including in transition countries. Civil society representatives and human rights activists also play a very important role in the UN context, and we all stand to benefit from their participation in our meetings. We are also deeply concerned by reports of threats and reprisals affecting those who cooperate with UN human rights mechanisms, including the Human Rights Council and its Special Procedures. We will continue to strongly condemn and speak out against such incidents. Mr President, We celebrate the 20th  anniversary of the Vienna Conference on Human Rights this year. Its landmark outcome document—the Vienna Declaration and Programme of Action—places a special emphasis on the  universality, indivisibility and interdependence of all human rights and fundamental freedoms. Its clear statement that human rights are universal is as valid today as it was then. The EU will continue vigorously to defend universality of human rights. The EU wishes to underline how crucial a body the Human Rights Council is for the promotion of universal human rights standards. As the UN’s premier human rights forum it enables worldwide scrutiny of the human rights performance of all countries, including through the Universal Periodic Review. The EU calls upon  all UN Member States to effectively cooperate with this mechanism. Mr President, Expressions of commitment are important, but what really counts is a concrete improvement in the human rights impact of our activities. In this respect, 2012 was a significant year of change for the EU’s human rights policy. By adopting the EU Strategic Framework and Action Plan on Human Rights and Democracy on 25 June, Foreign Ministers committed the EU to promoting human rights in all areas of its action, without exception, and created an agreed basis for a collective effort, involving EU Member States and EU institutions alike, in a genuine partnership with civil society. An important element of this new strategy is the appointment of an EU Special Representative for Human Rights, Mr Stavros Lambrinidis, who participated in the high-level segment last Monday. He has a key role to play in contributing to the implementation of the EU human rights policy and to enhance its effectiveness and visibility.

2013 Documents 231 An important feature of our new policy is  working  in partnership. With this in mind, we look forward to productive cooperation with many partners here and through cross-regional initiatives, all aimed at addressing human rights issues of real concern while mobilizing global support for the strengthening of the multilateral human rights system as a whole. Mr President, In closing, I would like to pay tribute to the leadership of the UN High Commissioner for Human Rights Navanethem Pillay in an office which also celebrates its 20th  anniversary this year. The EU strongly supports her work and that of her staff, underlining the full independence and integrity of the mandate of the High Commissioner for Human Rights. Thank you very much.

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Document 4 Statement by the Tánaiste and Minister of Foreign Affairs and Trade of Ireland, Mr Eamon Gilmore T.D., to the Conference on Disarmament Geneva, 27 February 2013 Madame President, It is a pleasure to address the Conference on Disarmament today. Over several decades, this Conference has played a central role in promoting the rule of law in disarmament. Among its notable achievements we can count the Biological and Toxin Weapons Convention; the Chemical Weapons Convention and the Comprehensive Nuclear-Test-Ban Treaty. These instruments represent significant contributions to international disarmament and non-proliferation. They demonstrate what this Conference is capable of achieving when there is a collective will among its membership to work together for the common good. Madame President, Despite these achievements, it has regrettably been clear for some time that the Conference on Disarmament is no longer functioning. Since its last major achievement—the conclusion of negotiations on the Comprehensive Nuclear Test Ban Treaty in 1996— the CD has become a byword for stalemate and failure. We must reverse this trend, and soon. A growing impatience is evident that this conference, which was designed to be the sole multilateral disarmament negotiating body, has been unable to perform its role for over 15 years, despite the many pressing arms control challenges facing us today. Last November, the UN General Assembly expressed very clearly its dissatisfaction with this state of affairs. By overwhelming majority votes, it established two new mechanisms here in Geneva to facilitate discussions on topics which the CD has been unable to take forward. Madame President, The 67th General Assembly also decided that a High Level Meeting on nuclear disarmament should be convened in New York later this year. This meeting will offer the

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entire UN membership the chance to reflect on what has been achieved and what has not. Ireland supported all three Resolutions. I believe they will contribute to global disarmament efforts at a time when these are falling behind and clearly in need of support. We look forward to engaging fully on all three initiatives. I believe the General Assembly’s message is clear: if this Conference continues to ignore its responsibility to address the disarmament agenda before it, ways will be found to address this agenda by other means, if necessary. It is my hope, as one of the six CD Presidencies this year, that when we gather in New York later this year, we will be able to show that work has been able to begin here in the Conference. We know that progress is possible on difficult issues when we summon the will to do so. The Anti-Personnel Landmine Convention and the Cluster Munitions Convention are examples of how complex issues can be tackled with good will and support from civil society. Next month, I hope we can add a robust and comprehensive Arms Trade Treaty to the list of arms control success stories. The negotiation of these instruments in other fora demonstrates that this Conference does not have a monopoly on negotiations in this area. Madame President, Ireland views the initiatives by the 67th  General Assembly as an opportunity to inject new life into this Conference. The Conference on Disarmament  must  be placed back at the heart of global disarmament negotiations. Some have expressed reservations, including in this chamber, about the creation of the Open Ended Working Group. I hope these reservations can be set aside and I urge all to engage constructively with these new initiatives. Let us approach them as opportunities and not threats. Let us look closely at how we do business. Let us look at the composition of this Conference—which reflects only a third of the UN membership—as well as at its engagement with civil society. Above all, let us renew our efforts to get this Conference back to work. Madame President, It is now 55 years since the first of the Irish resolutions at the General Assembly; and 45 years since the conclusion of the Nuclear Non-Proliferation Treaty these resolutions gave rise to. Under the NPT bargain, the nuclear weapons states agreed to disarm and the nonnuclear weapons states agreed to forgo the acquisition of these weapons. While those who framed the Treaty did not establish a timeline by which complete disarmament must be achieved, I think we must assume that they expected, at the very least, significant progress towards this key objective of the Treaty within its intended 25 year lifespan. This did not happen. The NPT was extended indefinitely shortly before it was to expire in 1995. And yet, 18 years on from its extension, there are an estimated 19,000 nuclear weapons in the world. This is simply unacceptable. The NPT has undoubtedly been successful in preventing horizontal nuclear weapons proliferation, but it has not stopped vertical weapons proliferation. The UN Secretary General noted in his Monterey address last month: ‘deferring nuclear disarmament indefinitely pending the satisfaction of an endlessly growing list of preconditions can lead only to a world full of nuclear weapons’.

2013 Documents 235 If progress is not achieved on disarmament, unsustainable pressure will be brought to bear on the NPT’s non-proliferation imperatives and the Treaty’s bargain will unravel. Secretary-General Ban Ki-moon was undoubtedly right when he warned ‘Delay comes at a high price’. The NPT offers us a blueprint for a world free of nuclear weapons. It is vital that the entire NPT membership continues to work on delivering the Treaty’s non-proliferation agenda. It is equally important that the nuclear weapons states acknowledge that only they can deliver on its disarmament agenda. We look to them to show us they are serious about doing so. A few weeks from now, we will gather here in Geneva for the second Preparatory Committee of the 2015 NPT Review Cycle. I hope we will be able to continue the work that was achieved at last year’s meeting in Vienna. There is much for us to do to ensure we have a successful Review Conference in two year’s time. The time to start working towards that goal is now. Madame President, Ireland remains strongly supportive of efforts to achieve a zone free of nuclear weapons, as well as of other weapons of mass destruction, in the Middle East. I regret it was not possible to convene a conference in Helsinki last year, as intended, to work towards achieving this important goal. It is my hope that the Helsinki Conference will be able to begin its work as soon as possible this year, and I call on all concerned to create the conditions necessary for this to happen. This was never going to be easy, but that does not mean we should not try. I am always reluctant to draw parallels between complicated negotiating processes, but if one lesson can be taken from the recent history of my own country, it is that with courage, political will and a commitment to succeed, accommodations can, and will, be found on even the most difficult of issues. I welcome the ongoing work by the conference facilitator, Ambassador Laajava of Finland, and I urge all states of the region to engage in good faith. I also encourage the UK, US and Russian Federation, together with the UN Secretary General, to continue their support and engagement with a view to convening this Conference as soon as possible this year. I welcome Norway’s initiative to host a conference in Oslo next week on the humanitarian impact of nuclear weapons. This meeting offers a chance to remind ourselves of the calamitous, unmanageable and immoral implications of any use, whether accidental or deliberate, of nuclear weapons. In my mind, it is clear that we would be powerless to respond in any meaningful way to the uniquely destructive power which a nuclear detonation would unleash. We would simply be overwhelmed. The longer term effects—to health, the environment, agriculture, commerce—to human life as we know it—are unimaginable. I believe the message that will come out of the Oslo meeting will be simple: attempts to respond would be futile; we must instead prevent. That is why we must redouble our efforts here, in this Conference, to achieve the disarmament that is the only way of ensuring this can never happen. Madame President, It has been the consistent position of successive Irish Governments that nuclear weapons can never and will never guarantee the security of any nation. Possession of

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these weapons entails unacceptable risks and there is no place for them in any defensive arsenal or security posture. Their very existence threatens international security. The decision of the Democratic People’s Republic of Korea to test a nuclear explosive device earlier this month rightly drew condemnation from the international community. This decision is a challenge to us all. The Government of the DPRK must realise that, in defying UN Security Council Resolutions; by ignoring commitments it made under the Nuclear Non-Proliferation Treaty; and in refusing to cooperate with the International Atomic Energy Agency it only isolates itself further from the international community. I call upon the DPRK to cease, immediately and without pre-conditions, nuclear testing and ballistic missile activities and to re-engage with the Six Party Talks on the denuclearisation of the Korean peninsula. The DPRK must—as we all must—comply fully with Treaty and other international obligations. Madame President, In the area of conventional weapons, significant progress has been made in recent decades. Ireland is proud to have played its part in the Ottawa Process that led to the Anti Personnel Landmine Convention and the Oslo Process that led to the Convention on Cluster Munitions. In each case, the contribution by civil society has been indispensable and inspirational. Ireland is a strong supporter of a robust Arms Trade Treaty, with universal application and the widest possible scope, to regulate the global trade in conventional arms. We need a Treaty that will set the highest possible international standards while taking full account of human rights obligations and international humanitarian law. It is my strong hope that next month’s negotiations culminate in the adoption of this critically important new Treaty. Madame President, We are faced by many disarmament and non-proliferation challenges today. We need a treaty on fissile materials for nuclear and other explosive devices, which could serve both non-proliferation and disarmament goals. We need the Comprehensive Nuclear Test Ban Treaty to enter into force. We need more progress in implementing disarmament obligations under the NPT. We are confronted by a number of regional proliferation challenges. Further work is required to achieve universal adherence to the main Treaty arrangements—the NPT, the CWC and the BTWC. If the list is daunting, let us remember that success is possible. In the 15 short years since it entered into force, the Chemical Weapons Convention— which was negotiated in this room—has come close to eliminating an entire weapons category from global arsenals. In a few weeks time, States Party to that Convention will meet in The Hague for the Third Review Conference. They will find a functioning and, for the most part, successful Treaty which has contributed to international security. It is already considering the transition from a largely disarmament-focussed organisation to one which can focus on ensuring that these weapons never re-enter global arsenals. This is a success story of the Conference on Disarmament. It is time for us to show again that progress can be achieved in this room.

2013 Documents 237 Madame President, The Conference on Disarmament must get back to doing what it was set up to do. It must resume its role at the centre of global disarmament negotiations. The problems which beset the Conference are not linked to any one issue. We are all the Conference on Disarmament and it is for us all to work together and get this Conference back to work. Let us start that work today. Thank you.

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Document 5 Conclusions of the Inter-Parliamentary Conference for the Common Foreign and Security Policy and the Common Security and Defence Policy Dublin 24 & 25 March 2013 IN T R ODU C T I ON

1. The second meeting of the Inter-Parliamentary Conference for the Common Foreign and Security Policy and the Common Security and Defence Policy, hereinafter referred to as ‘the Inter-Parliamentary Conference’, was held in Dublin on 24 and 25 March 2013, at the invitation of the Ceann Comhairle and the Cathaoirleach, the Presidents respectively of Dáil Éireann and Seanad Éireann, the two Houses of the Parliament of Ireland, in the framework of the Parliamentary Dimension of Ireland’s Presidency of the Council of the European Union, in accordance with the Decisions of the Conference of Speakers of the EU Parliaments made at its meetings in Brussels on 4 and 5  April 2011 and in Warsaw on 20 and 21 April 2012, and in accordance with the Rules of Procedure of the Inter-Parliamentary Conference adopted in Paphos, Cyprus, on 9 September 2012. 2. The Inter-Parliamentary Conference was attended by delegations of the national Parliaments of Member States of the EU and the European Parliament. Delegations of national Parliaments of EU candidate countries and European member countries of NATO which are not EU Member States also attended as observers.

P RO CE DU R A L BU S I NES S

3. The Inter-Parliamentary Conference adopted a proposal by the Presidency Parliament, made pursuant to the Conclusions of the Inter-Parliamentary Conference in Cyprus, to appoint an Ad Hoc Review Committee (AHRC) to conduct a review of arrangements for the Inter-Parliamentary Conference in accordance with the decisions of the Conference of Speakers and the Inter-Parliamentary Conference. Adoption was subject to the inclusion of Italy as a member of the Working Group of countries that will co-operate closely with the Presidencies in presiding over the AHRC. The

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incoming Presidency of Lithuania is asked to preside over the commencement of the work of the Ad Hoc Review Committee. The proposal as adopted is appended (Appendix 1) to these Conclusions. 4. The Inter-Parliamentary Conference considered a proposal by the House of Representatives of the Republic of Cyprus, made pursuant to the Conclusions of the  Inter-Parliamentary Conference in Cyprus, on a fact-finding mission regarding the Southern and Eastern Mediterranean Neighbourhood. It was agreed to report the comments made on the proposal to the Cyprus Parliament and to ask it to refer it or a revised proposal to the Inter-Parliamentary Conference in Lithuania in September.

P RO CE E D IN G S O F THE I NT ER - PA R LI A MENT A R Y C ONFER ENC E

High Representative of the EU for Foreign Affairs and Security Policy 5. The High Representative of the EU for Foreign Affairs and Security Policy, Catherine Ashton, addressed the meeting and set out the priorities and strategies of the EU in the area of the CFSP and CSDP. 6. Catherine Ashton, speaking to the topic ‘The CFSP and CSDP—Working for Peace, Security and Development in Africa’, discussed the benefits of an integrated approach to ensure that various policies and instruments at the EU’s disposal are used coherently and effectively in support of common objectives. The concrete success of this approach in Horn of Africa is demonstrated by the curbing, since May 2012, of hijacking of vessels at sea. Also discussed was the use of a similar Comprehensive Approach in Sahel/ Mali; importance in each situation of creating circumstances and long term vision to aid transition to democratic rule; the importance of role of women; continued support by the EU and its Member States in supporting the transition process initiated in several Arab States including importance of supporting specificities of each country. 7. The High Representative’s address was followed by a wide-ranging debate. The themes of the discussion included the importance of respect for local populations and adapting Comprehensive Approach to specificities of each country/region; need for ‘strategic patience’ with long term vision in assisting countries; importance of supporting development of concrete essential services; deep democracy, linking political reform with economic reform; other areas of concern including Eastern Partnership countries, Central Africa and Congo; continued importance of EU’s Strategic Partners; concern with aspects of Human Rights in Russia; continued support for Middle East Peace Process; enhancing the development of defence capabilities by strengthening European defence cooperation through Pooling and Sharing and ensuring Research and Development is used to best effect.

Tánaiste and Minister for Foreign Affairs and Trade, Ireland 8. Ireland’s Tánaiste (Deputy Prime Minister) and Minister for Foreign Affairs and Trade, Mr Eamon Gilmore TD, addressed the meeting on the topic of ‘Conflict Pre-

2013 Documents 241 vention—the EU as Peacemaker’ and set out the perspectives of the Irish Presidency in the area of the Common Foreign and Security Policy generally. 9. In the course of his address, the Tánaiste noted that the EU itself was a prime example of conflict resolution having emerged from centuries of enmity and division. In Ireland, the Good Friday Agreement was a recent example of a framework which acknowledged separate political identities and traditions while at the same time respecting and helping to bridge them. There was growing appreciation for the role of the Union as a force for good in the world. He urged greater use of mediation as a useful and cost effective tool. He noted that the Union was involved currently in building state capacity in Libya, implementing the Comprehensive Approach in Somalia and strengthening the capacity of the authorities in Mali. 10. The address by the Tánaiste was followed by a wide-ranging debate. The themes of the discussion included the need for even greater foreign policy vision; the supply of arms to the rebels in Syria; the promotion of good governance; the increase in settlements in the E1 area as a serious threat to the two state solution in Israel; the need for countries to implement the development aid target of 0.7% of GNI (as the UK had recently) and the need to look beyond current conflicts to future areas of conflict such as Pakistan and Morocco. The Tánaiste acknowledged that Europe could do more in relation to tax justice and Europe not providing tax havens for multi-national companies to evade and avoid paying taxes in African countries where they are operating.

Minister for Justice, Equality and Defence, Ireland 11. Ireland’s Minister for Justice, Equality and Defence, Mr Alan Shatter TD, addressed the meeting on the topic of ‘The European Council on Defence 2013’ and set out the perspectives of the Irish Government in the area of the Common Security and Defence Policy generally. 12. In the course of his address, the Minister highlighted active engagement and common themes emerging since December 2012, including the need for: Pooling and Sharing, clearly articulated political commitment to deployment of Battlegroups; development of functional toolbox of military capabilities and improved EU level decision making cycles; emphasised Common Security and Defence Policy must ensure maintenance of peace and security, so as to guarantee security of EU’s citizens and the promotion of its interests; EU has to be able to rely on itself to facilitate actions and reactions to world events, therefore may need to consider Member States specialising in niche capabilities; internal delays must not delay launching of CSDP operations and political will needed to make capabilities available when and where needed. Finally need to strengthen Europe’s Defence industry to ensure it is more integrated, sustainable and competitive with well-functioning defence market. 13. The address by the Minister was followed by a wide-ranging debate. The themes of the discussion included the economic situation and impact on defence capabilities, responses to existing and emerging threats; existing European shortfalls in key enablers; capability requirements into the future and developing a common understanding of priorities; enhancing operational effectiveness; improving capacity of EU

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to rely on itself to facilitate actions and reactions to world events; cooperation with other relevant international actors. 14. Remarks were also made by Mr Maciej Popowski, Deputy Secretary General, European External Action Service.

WOR K S HOPS

15. The plenary meeting of the Inter-Parliamentary Conference was suspended to permit delegates to participate in two workshops.

The Comprehensive Approach to instability in Africa—the experience of the Horn of Africa 16. Delegates met in Workshop format to debate ‘The Comprehensive Approach to Instability in Africa—the Experience of the Horn of Africa’. The workshop was moderated by Mr Ronan Murphy, former Director of Irish Aid. Ms Joelle Jenny, Director for Conflict Prevention and Security Policy, EEAS, made opening contextual remarks. The rapporteur was Mr Arnaud Danjean, Chairman of the Security and Defence subCommittee, European Parliament. 17. A number of key themes and challenges emerged in the course of debate among delegates. These included the efforts to resolve the conflict in Somalia and the state-building and stabilisation effort in that country, serious food instability and vulnerability problems in the region, cross-border tensions between Ethiopia and Eritrea, threats of terrorism and the continuing threat to international shipping from pirates. 18. Delegates discussed the combination of humanitarian and development efforts, together with the political engagement of the EU Special Representative and the work of the three CSDP missions. Particularly highlighted was the importance of partnerships, especially with the African Union, which ensures legitimacy and local ownership, and of good coordination between Member States’ actions with those of the EU institutions. 19. The workshop noted that development of a genuine ‘Comprehensive Approach’ to the external relations of the EU should ensure that the various policies and instruments at the EU’s disposal are used coherently and effectively in support of common objectives. The comprehensive approach should apply to all aspects of the ‘conflict cycle’ from prevention to mediation to crisis management to post-conflict reconstruction and peace-building. Delegates also recognised the importance of ensuring that humanitarian assistance should continue to be available to all who need it.

The Middle East Peace Process—the Role of the European Union 20. A second Workshop was held at which delegates debated ‘The Middle East Peace Process—the Role of the European Union’. The workshop was moderated by Mr

2013 Documents 243 Andreas Reinicke, EU Special Representative for the Middle East Peace Process. The rapporteur was Mr Petras Auštrevičius, Deputy Speaker of the Seimas of the Republic of Lithuania. 21. A number of key themes emerged in the course of debate among delegates. These included the urgent need for genuine, substantive and continuous negotiations on the MEPP; the need for a comprehensive, regional solution to ensure long-lasting peace; the importance of a negotiated peace based on the two-state solution; and the on-going determination of the EU to work constructively with all who wish to ensure peace, stability and prosperity in the region, including the US and the Quartet and regional actors including Turkey and Egypt. Delegates emphasised that ending the conflict is a fundamental interest of the EU and noted the importance of a ceasefire agreement in Gaza. In addition to its diplomatic role, the provision of humanitarian and development assistance to different countries in the Middle East was discussed. Recent developments, including the formation of a new Israeli government and the visit of President Obama and his strong political commitment to the peace process, were noted in the hope such landmarks will add fresh impetus to the peace process in due course. Delegates also discussed current developments regarding Syria and the Arab Spring. The complexity of the situation in Syria and the risk for further instability in the region were acknowledged. Delegates expressed a desire to see the EU fulfil its political leadership potential in the region including by means of financial assistance.

CONC LU S I ONS

The Inter-Parliamentary Conference adopted the following conclusions: The Inter-Parliamentary Conference— 22. Being committed to fulfil the role envisaged for it by Title II of Protocol I of the Treaty of Lisbon and mandated to it by the Conference of Speakers of EU Parliaments, 23. Aware of the dynamic and expectations for a more effective and coherent Common EU Foreign and Security Policy and Security and Defence Policy, resulting from the adoption of the Treaty of Lisbon, 24. Cognisant of the fact that the CFSP and CSDP involve the contribution of a variety of actors and policies at both national and EU levels, 25. Conscious that the multi-layered nature of the CFSP and CSDP necessitates close cooperation between national Parliaments and the European Parliament, with full regard to their respective rights, duties and representative mandates, 26. Is committed to contributing to the development of the Inter-Parliamentary Conference towards an optimum configuration, 27. Resolves to enhance the democratic engagement in the CFSP and CSDP by promoting a more systematic, regular and timely exchange of information on the different aspects and implications of the CFSP and CSDP at both national and EU levels, 28. Recalls the achievement of the EU in being awarded the prestigious Nobel Peace Prize as an example of regional reconciliation and peace following the devastation and destruction of the first half of the twentieth century; Recognises that promoting

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peaceful resolution of conflict has been a core part of the Unions CFSP since the 2001 European Council made a commitment to strengthening capacities for conflict prevention and peace-building including preventive diplomacy, mediation, dialogue and reconciliation; 29. Considers the further strengthening of these capacities to be essential to achieving a Comprehensive Approach; Believes that the Union’s unique experiences and resources in this field, including those of its national parliaments, should be utilized and shared; 30. Emphasises that the strength of the EU lies in developing a Comprehensive Approach drawing upon its unique ability to mobilise the full range of political, economic, development, humanitarian and—as a last resort and in accordance with the UN Charter—military means to address global challenges and threats; Is convinced that the effectiveness of this approach is only possible by solid coordination between the European External Action Service and the Commission and crucially via the support and complementarity offered by the actions of the Member States; 31. Welcomes the HRVP’s initiative to map out in a report how to achieve such a Comprehensive Approach and thereby make full use of the potential of the Lisbon Treaty; Is convinced that inter-parliamentary engagement through dialogue, cooperation and promotion of democracy constitutes a significant long term component of this Comprehensive Approach; 32. Is determined, by means of this enhanced dialogue and exchange of information, to address the decision-making, capacity-building and operational weaknesses of the CFSP and CSDP, in order to make it more effective and efficient in addressing our common challenges and pursuing our common goals, 33. Expects the High Representative to bring forward an ambitious report in a timely manner on the review of the organisation and functioning of the EEAS as decided by Council on 26 July 2010 and to allow adequate time for debate and comment on this report by parliaments, 34. Acknowledges that the complex crisis situation in Mali and the Sahel represents a serious and immediate challenge for European foreign and security policy and fully supports the actions initiated by France and reinforced by the EU in Mali involving the deployment of the Comprehensive Approach, especially the establishment of the EUTM Mali, 35. Welcomes the efforts to establish the rule of law and address the loss of life in the Horn of Africa and supports all efforts to fully implement the EU strategy for the Horn of Africa, which implements the Comprehensive Approach and, in particular, the achievements of the three current operations EUNAVFOR Atalanta, EUTM Somalia and EUCAP Nestor to reinforce the prospects of sustainable regional stability, 36. Encourages the African Union including regional organisations to play a greater role in addressing the conflicts in Africa and specifically in the Horn of Africa, 37. Calls on the various EU institutions to develop further the tools at their disposal for conflict prevention and, in particular, mediation which is an effective and costefficient instrument for conflict prevention and to deploy all of these tools in a much more coordinated way,

2013 Documents 245 38. Notes the commitment made by the HRVP to ensuring the EU plays a prominent role in the difficult but important process of peace in the Middle East; supports wholeheartedly the Council conclusions of December 2012 on the Middle East Peace Process and welcomes any moves aimed at the restarting of genuine negotiations on the MEPP and at the achievement of the two-state solution with the State of Israel and an independent, democratic, contiguous and viable State of Palestine living side by side in peace and security; recalls that solving the conflict in the Middle East is a fundamental interest of the EU as well as of the parties themselves and the wider region, 39. Stresses that the need for progress in the peace process is even more urgent due to the ongoing changes in the Arab world; Highlights the need for dialogue with the Arab League and the Organisation of the Islamic Conference as well as other relevant regional actors on how to help restart negotiations; welcomes the positive commitment to the peace process by the re-elected US administration and believes that the EU should make dialogue and coordination with the US on this issue a high priority; Stresses the importance of continuing support to the Palestinian Authority in order to maintain their statehood management capacity, 40. Notes that the report of the High Representative aimed at developing further proposals and actions to strengthen CSDP and improve the availability of the required civilian and military capabilities is due by September 2013, with a view to a full discussion at the December 2013 European Council and urges the fullest consultation possible with all parliaments in this regard, 41. Encourages the Council to give a much-needed political boost to address the serious decline in European defence investment, capabilities and industrial capacity and to reconsider the financing mechanism of CSDP operations as well as the EU battle groups; Welcomes also the important contribution being made by the European Commission’s Task Force, 42. Trusts that the European Council will reaffirm the importance of the defence pillar in the EU’s comprehensive approach and commit to addressing defence capability shortfalls as well as bridging the gap between the Union’s civilian and military capacities; Encourages therefore the European Council to set out a roadmap with specific timelines for achieving progress on defence issues including the Pooling and Sharing initiatives through the European Defence Agency as well as other solutions to make sure that the Union’s security is assured despite the significant defence cuts in all Member States, 43. Asks the Presidency Parliament, in accordance with the Rules of Procedure of the Inter-Parliamentary Conference, to forward these Conclusions to all delegations, to the Presidents of National Parliaments and of the European Parliament, to the Presidents of the European Council and the Commission and the High Representative for Foreign Affairs and Security Policy, 44. Between now and the next meeting of the Conference, its members will focus on identifying the obstacles to the implementation of all the provisions to the Lisbon Treaty concerning the CSDP. During the next meeting of the Conference, a session should be devoted to a discussion of these questions. The conclusions of these questions could be sent to the European Council in view of the December meeting devoted to the defence questions.

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History The Conference of Speakers of the European Union Parliaments agreed, in the Conclusions which it adopted in Warsaw on 21 April 2012, as follows concerning the review of arrangements for the Inter-Parliamentary Conference: The Conference of Speakers recommends conducting a review of these arrangements for the Inter-Parliamentary Conference after two years from its first meeting, and submitting conclusions from such review by the relevant Presidency of the Conference of Speakers of the European Union Parliaments.

The first Inter-Parliamentary Conference in Cyprus on 9–10 September 2012: Endorsing the recommendations of the Conference of Speakers meeting in Warsaw in April 2012 that the Conference of Speakers should conduct a review of arrangements for the InterParliamentary Conference two years after its first meeting,

adopted Rules of Procedure which provided, in Article 9, that: The Inter-Parliamentary Conference may appoint an ad hoc review committee which would, eighteen (18) months from the first meeting of the Inter-Parliamentary Conference, evaluate the workings of the Inter-Parliamentary Conference and make recommendations thereon to be deliberated upon by the Conference of EU Speakers.

The Inter-Parliamentary Conference in Cyprus on 9–10 September 2012 agreed the following paragraph in the Introductory Remarks to its Conclusions: The Inter-Parliamentary Conference adopted its Rules of Procedure. All amendments submitted by national Parliaments and not taken on board will be reviewed by an ad hoc committee to be established by the Inter-Parliamentary Conference in order to evaluate these proposals and present recommendations to the Speakers’ Conference of the EU, within eighteen (18) months from the first meeting of the Inter-Parliamentary Conference. The incoming Irish Presidency is asked to submit to the Inter-Parliamentary Conference a proposal on the composition of the review committee.

Proposal of the Irish Presidency An Ad Hoc Review Committee (AHRC) is appointed to conduct a review of arrangements for the Inter-Parliamentary Conference in accordance with the decisions of the Conference of Speakers and the Inter-Parliamentary Conference. The AHRC is composed of one representative of each of the delegations of the national Parliaments of the EU Member States and the European Parliament. The AHRC shall be presided over by the Presidency Parliament, in close co-operation with the Trio national Parliaments (Ireland, Lithuania and Greece), the European Parliament, Cyprus and Italy.

2013 Documents 247 A Working Group of the AHRC is established to conduct a preliminary review of arrangements for the Inter-Parliamentary Conference. The Working Group is composed of one representative of each of the delegations of the Trio national Parliaments, the European Parliament, Cyprus and Italy. The Working Group shall be presided over by the Presidency Parliament. The Working Group may request the observations of the national Parliaments of the EU Member States on any matter within its remit. National Parliaments of the EU Member States may, at their own initiative, submit observations to the Working Group. The Working Group shall report its observations and recommendations to the AHRC. The Working Group shall meet at the Inter-Parliamentary Conference in Lithuania but may meet by agreement at any time before it reports its recommendations to the AHRC. The AHRC may meet by agreement at any time but shall meet in advance of and make observations and recommendations to the Inter-Parliamentary Conference presided over by the Greek Presidency. The AHRC ceases to exist on the conclusion of the Inter-Parliamentary Conference presided over by the Greek Presidency.

Indicative Roadmap September 2012

Cyprus

The Irish Presidency is asked to submit to the IPC a proposal on the composition of the AHRC.

March 2013

Ireland

A proposal is submitted by the Irish Presidency to the IPC in Dublin.

September 2013

Lithuania

The Working Group meets at the IPC. Before the Greek IPC, the Working Group submits recommendations to the AHRC. Before the Greek IPC, the AHRC prepares its final recommendations.

March 2014

Athens

The AHRC submits its final recommendations for agreement by the IPC.

February 2015

Rome

The Conference of Secretaries General considers the recommendations of the IPC.

April 2015

Rome

The Conference of Speakers considers the recommendations of the IPC.

Irish Yearbook of International Law 2013 2013 Documents

Document 6 Address by the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, to the Hunger, Nutrition and Climate Justice Conference Dublin, 15 April 2013 Welcome Excellencies, Ladies and Gentlemen. Welcome to Dublin Castle. You are here for a ground-breaking dialogue on the linked challenges of Hunger, Nutrition and Climate Justice. We have gathered here, from many different backgrounds, for one simple reason: we depend on each other, and we need to act together. We know that more effective action is needed to end the enduring scandal of global hunger. Under-nourished children will never reach their full potential. Climate change is already having a devastating impact on those who are suffering most. What is involved here is a matter of rights, of justice and equity, but also of practicality. Even at a time of economic difficulty, we do have available to us the resources and the tools to put an end to hunger and empower poor communities. But to do so we have to mobilise our political will and moral courage.

The Human Dimension of the Challenge This debate has to be truly transformative. And it can only be so if it is rooted in the reality of people’s lives today. Think, for instance, of the life of a smallholder farmer in sub-Saharan Africa. The farmer is a woman—as are 80 per cent of smallholder farmers in the region. She has young children. She wakes up early each morning with only one thought: to ensure her family’s survival. She needs food, water and fuel. But they are in scarce supply in her village. The surrounding farms had been scorched by drought when the rains failed—again. The science of climate change and the media debate about climate change seem a million miles from her homestead. She just knows that the impact of a changing climate is real in her life, and in the life of her village. It can be counted in the maize that has withered on the stalks in her plot. 249

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It is visible on the face of her baby daughter who is struggling to thrive, foreshadowing a future of wasted potential. With only a limited supply of food and dependence on a single staple crop, how can she nourish and care for her children? How can she give them the chance to live, to grow and develop? How will she access health services or education for her children when she has no surplus produce to sell at the market? How can she generate the energy, the spirit to dream of a better future? This is a simple stark story, familiar to many of you who have travelled to join us here today. And it is a story with which I personally identify. I grew up on a small farm run by a woman  .  .  . my mother. Our lives were governed by the weather—how prolonged rain could rot a field of hay, how bad autumn wind could lodge and destroy a field of corn, how a bad night of frost could kill a newborn lamb—and we were living in one of the most moderate climates in the world. So I can just imagine the challenge of climate for small holders in less forgiving climates. Many of you could tell other stories—of pastoralists, herders, or fishing communities who are trying to cope, and of poor slum dwellers in huge cities expanding through economic growth but marked by growing inequalities.

The Challenge of Hunger-Nutrition-Climate Justice We live in a world of plenty, but one which is reaching its environmental limits. And we are struggling to feed a rapidly growing population under a changing climate. The effects of climate change on agriculture and the production of food represents only part of the picture. We can easily overlook how climate change affects not just the quantity of food grown, but its quality and diversity. It directly contributes to undernutrition. It also affects water, sanitation and health. And, of course, climate change affects food prices and the affordability of food. High food prices hit the poor hardest. And they are often forced to cope by reducing the number of meals they provide to their families, or by buying cheaper but less nutritious foods. So we are not just talking of the need to increase food production for a growing global population. It is essential to bring the hunger and climate agendas together and examine them through a broader lens—that of nutrition. The challenge we face is immense. Together, we have made great progress over the past decade in fighting poverty and disease. But the lives of a billion people, one seventh of the population of the planet, are still dominated by poverty and hunger. As we sit here today, 870 million people in the world are hungry. That is almost twice the population of the entire European Union.  Seven thousand children under the age of five die every single day and the underlying cause is under-nutrition. We face the problem of hunger anyway. But climate change accentuates it. And, although climate change threatens all countries, it is the world’s poorest and most vulnerable that suffer most and can cope least. And they are the people who have contributed least to its cause.

2013 Documents 251 This is an injustice, pure and simple. It is morally wrong that the poorest in the world pay in some cases with their lives for the centrally -heated and air-conditioned comfort of the better off. It is not sustainable in a world more interconnected than at any other time in history. It must be addressed—for reasons of morality and of selfinterest. Because in our world today, the common interest is our self-interest.

Ireland’s Role That is why Ireland will continue to play its part, as we have always done, in good times and in bad. We are a small country whose history knows of hunger. And that was never more clear than when famine devastated our island. It is no exaggeration to state that a defining element of our national experience remains the collective memory of what became known as the Great Hunger of the 1840s. Then, Ireland had a fast-growing population of eight million people. Small subsistence farmers were dependent on one crop, the potato. When weather contributed to blight and the failure of that crop, the poor had no personal or political capacity to cope. More than one million people died of starvation and over one million more were forced to emigrate. This was a catastrophe that blighted whole generations; at times, unspeakable—its bones, the empty, crumbling homes and villages to which no one would ever return. It was a scourge which shaped many of the issues we face as a nation to this day. And, to a great extent, it shapes our understanding of the need to prioritise hunger and nutrition in the fight to end global poverty, and to empower poor societies to lead their own development. We are a small country and our resources are limited. But we are maintaining our development programme. We are devoting over 20 per cent of our funding to the fight to end hunger. We will be one of the first countries in the European Union to enshrine our climate change targets in domestic law. And, through our foreign policy, we want to give voice to those who to date have had no voice in encouraging and influencing the international community to end extreme hunger and poverty in a generation.

Leadership on Nutrition We have seen the importance of leadership in recent years, for instance through the international Scaling Up Nutrition Movement. I am proud that Ireland has been an active leader, especially in focusing on nutrition in the vital first 1,000 Days, when progress missed in a baby’s life can never be retrieved. But we know that our efforts to target chronic under-nutrition in babies and mothers during the first 1,000 days of life will be undermined if we do not build in complementary action on the effects of climate change. What is the point of spending millions on micronutrient supplements for pregnant women, mothers and babies in vulnerable communities if we don’t also address their suffering from constant diarrhoea, from drinking dirty water contaminated by flooding?

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We know that climate change makes poor people vulnerable, and that we have to address hunger, nutrition and climate more coherently. Through Irish Aid we have begun to do so, and I am delighted to have our partners from communities in Malawi, Ethiopia and Lesotho here to share these experiences with us. Here in Ireland, we are taking a lead by developing climate change legislation, to plan for a reduction in our own carbon footprint. And we are prioritising this coherence challenge in our current six-month EU Presidency.

A New Global Framework for International Development Our Presidency has come at a pivotal moment in international development, as we approach the target date for the Millennium Development Goals, and policy discussions begin on the global agenda post-2015. We know that we need a new set of goals and a more coherent framework for sustainable development and the eradication of poverty and hunger. This is a huge challenge for governments and policy makers worldwide. But it is essential that the voices of the people most impoverished and marginalised are amplified and heard in the policy making process. Their experiences and views are critical to the elaboration of any new policy framework for the elimination of poverty at a time of environmental uncertainty. Our gathering in Dublin is designed to give impetus to this process. We are honoured that just over a third of the participants here today are representatives of local communities and organisations from 32 developing countries across Africa, Asia, Central America, the Caribbean, and South America. You must be the heart of our dialogue. We need to listen to you and learn from your communities’ experiences of what works and what doesn’t. We want the policy makers here to understand what you need and how you see your children’s—all our children’s—futures. Your messages need to go directly from this hall into the United Nations negotiations on the new framework for global development.

Conclusion Any credible new framework for global development must be based on those needs and rights and on an understanding of what is achievable. In the fight to eliminate poverty and hunger, I want to keep before me the needs and rights of the smallholder farmer in Africa. She must be empowered. She must have access to advice and assistance from her local farmer support group. She can see rapid change through simple interventions, which research and practice have shown to work. For instance, the planting of legumes and nitrogen-fixing trees along with maize in her field will improve soil fertility and, in turn, increase her maize yields. If she can grow enough maize and protein-rich legumes to feed her family, she can contemplate selling the surplus at the market, giving her additional income, opening up access to more nutritious food, vegetables and fruit. And time to care for and breastfeed her young infant. That child will have a realistic prospect of healthcare and education. And at that point, transformation at the household and community level

2013 Documents 253 becomes a transformation of the imagination, opening up the opportunity for societal and global change. When political empowerment and the realisation of rights become, first, possible and, then, an imperative. Or in the words of one of the founders of my political party, that our children shall have bread, but they shall have roses too. Our challenge today is to place the voices and experiences of those directly affected, right at the centre of global development. Because we recognise that we live in one world, and that we need to make the choice to forge together one future. I look forward to participating with you in this work.

Irish Yearbook of International Law 2013 2013 Documents

Document 7 Statement by Minister Costello at the signature ceremony of the Arms Trade Treaty Inited Nations, 3 June 2013  Mr President, Secretary General, Your Excellencies, Ladies and Gentlemen, It was a great honour to sign the Arms Trade Treaty on behalf of Ireland earlier today, and deeply heartening to see so many countries in attendance, all with a shared commitment to the new Treaty. This is the culmination of a long process that began some seven years ago. As a long-standing advocate of global disarmament and arms control, Ireland strongly supported the goal of an Arms Trade Treaty from the outset. We have come a long way and we have reached our goal. This is a moment for hope and optimism. The Treaty to which we have committed ourselves today is a strong, robust and comprehensive instrument, with the potential to make a real and lasting difference once it has entered into force. We earnestly hope that this can happen without delay. Mr President, The ATT is an important achievement for the UN system and a vindication of our collective way of doing business. Those who doubt the UN’s capacity to deliver on its core mandate of contributing to global peace and security have been given an answer. The UN label confers a unique and unrivalled legitimacy. Ireland has always been an advocate and defender of the United Nations and of multilateralism in general. It is, therefore, gratifying that ours is a UN Treaty—negotiated, adopted and now signed here at UN headquarters. Ireland worked hard with others to achieve a Treaty which encompasses as many conventional weapons categories as possible; which addresses the hugely damaging phenomenon of arms diversion, responsible for the blighting of so many lives—particularly in the developing world; which recognises the risk of gender-based violence in situations of conflict; and which promotes the highest standards of transparency in national reporting. These elements are all present in the Treaty we have signed today. Furthermore, as a living document, the Treaty can be adapted and improved in the years ahead.

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Mr President, Allow me to highlight just one of the many welcome provisions. For Ireland, ensuring the humanitarian character and purpose of the ATT was fundamental. Strong provisions on human rights and International Humanitarian Law were essential for us. Like other Member States, we interpret Article 6.3 as having the widest scope and application, including war crimes committed both in international and non-international armed conflicts. We take the reference to ‘other war crimes’ as referring,  inter alia, to serious violations of Common Article 3 of the 1949 Geneva Conventions as well as to the war crimes defined by the 1977 Additional Protocols and the Rome Statute of the International Criminal Court for States Parties to those instruments. We believe that the rules of customary international law remain applicable to all States, regardless of this Treaty. Mr President, I wish to pay tribute to the role played by civil society in supporting and nurturing the ATT process. Through tireless advocacy work, civil society sensitised our citizens, parliamentarians and ultimately our governments to the need for rigorous, comprehensive, Treaty-based controls for the arms trade. If today is a triumph for the UN and multilateralism, it is also one for NGO activists and the indispensable role which they play. I would also like to commend Ambassador Peter Woolcott of Australia and his predecessor, Ambassador Roberto Moritan of Argentina, for their skilful stewardship of the ATT negotiating conferences. They laboured long and hard to bring about this Treaty and they deserve our thanks. Mr President If it is to make a difference, the ATT must become operational as soon as possible. For our part, the Government of Ireland will move swiftly to ratify the Treaty. We urge other States to do likewise. If just 50 of us manage to ratify within the next 12 months, this Treaty could enter into force and start saving lives during 2014. Of course, our goal is a universal Treaty and we will work to encourage as many States as possible to sign and ratify. We hope those who may not be able to commit to the ATT today or tomorrow will be able to do so in the period ahead. In conclusion, may I say that I consider today’s signing ceremony to be a truly historic occasion and a milestone in global arms control. The international community finally has a legally binding instrument that will regulate the trade in conventional arms and make a major contribution to international peace and stability. Simply put, if effectively implemented, the ATT will reduce human suffering and save lives. No Treaty could serve a higher purpose. Thank you

Irish Yearbook of International Law 2013 2013 Documents

Document 8 IHRC Follow-up Report on State Involvement with Magdalen Laundries Address by Professor Siobhan Mullally, Irish Human Rights Commission 18 June 2013 Good morning, Having just heard about the conclusions in the Report, I would now like to turn to the recommendations that the IHRC is today making to the Government to address the experience of the women in the Laundries. That experience, and the hurt caused to the women and girls placed in Magdalen Laundries, cannot now be extinguished, but it can be remedied by the State. We know the Government is considering advice recieved from Mr Justice Quirke as to a scheme that should be established for the women who resided in the Laundries. We trust that Mr Justice Quirke’s advice will be thorough, considered and compassionate towards the women involved. The Commission hopes that the Report we are publishing today will also be accepted by Government as providing clear guidance as to how to the issue of remedies. The Commission wants to make clear that the Magdalen Laundries is a human rights issue, and it is only possible to provide proper acknowledgment and redress to the women involved if informed by the human rights standards that apply. This is why Chapter 7 of the Report deals with remedies for breaches of human rights, reviewing the approach taken to the matter by domestic courts, the European Court of Human Rights and various expert committees. What is clear is that the issue of remedies is not a one size fits all solution. All the women had shared experiences, but it should not be ignored that the circumstances of each woman will also be different. Some will have experienced a loss of liberty, others may have been exposed to forced or compulsory labour. Those that entered as children may have lost an educational opportunity that has impacted on them for the rest of their lives. This is why the IHRC has recommended a broad range of measures to be put in place for the women concerned. Therefore the first recommendation of the report is: That the State now put in place a system of redress for those women who resided in Magdalen Laundries. The scheme introduced should provide for individual financial compensation for the impact of the human rights violations concerned. In addition, measures should be put in place to ensure to the greatest extent possible the restitution and rehabilitation of the

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women. By way of restitution, lost wages and any pension or social protection benefits arising from engaging in compulsory work on an unpaid and unacknowledged basis should be identified and provided to the women concerned.

We also suggest a number of rehabilitative measures, such as interventions in relation to: housing; pensions; health and welfare; education and assistance to deal with the psychological effects of time spent in the Laundries. As the IHRC compiled its Report we were forcefully struck by the contemporary human rights repercussions of the Magdalen Laundries. While the Laundries have all closed, this is not a purely historical issue. Some of the weaknesses in the protection of human rights in the State that left the girls and women in the Laundries unprotected survive to the present day. The major themes that emerge from the history of the Magdalen Laundries, such as discrimination, protection from forced or compulsory labour, institutional care, the right to identity, the regulation of private actors carrying out public functions or providing public services, even the regulation of exhumations, are all areas which the IHRC wishes to shine a light on today. This is in no way to detract from the experience of the women in the Laundries. Rather, we ask how we can learn lessons from what happened to them. By knowing that the same wrongs cannot be perpetrated against others—whether by the State or private bodies or individuals—the women can know that some good may come from their experience. None of us want to find ourselves investigating further wrongs in the future that could have been addressed today. I just want to touch now on those other recommendations in the Report, and which the IHRC has formulated to address the legacy issues arising from the Laundries. Recalling that one of the principal findings of the IDC Report was that the Magdalen Laundries were private institutions but carried out functions on behalf of the State, the IHRC recommends that: The State and its agencies review its interactions with non-State actors, where such private entities exercise any State function or provide any service on behalf of the State, to ensure that the State is fully complying with its obligation to ‘respect, protect and fulfil’ the human rights of all those within its jurisdiction, by exercising appropriate legislative, contractual or other oversight and accountability measures.

Noting that the initial calls for inclusion of the Magdalen Laundries in the Residential Institutions Redress Act were met by rejection and denial by the State, and a further ten years passed before the IDC was established to finally establish the facts of State involvement (which we now know was extensive), we recommend that: The State ensure, in accordance with its international human rights obligations, that all credible allegations of abuse, which would, if proved, entail a breach of the State’s human rights obligations, are promptly, thoroughly and independently investigated.

Repeatedly throughout the Report we refer to the gender aspect of the Magdalen Laundries. The treatment of the women was characterised by a denial of equality. A report published just last week from the European Institute of Gender Equality confirms that we still have a way to go in achieving equality for women in Ireland. The IHRC recognises that inequality is not just a gender issue, but reaches across different groups in society that are disadvantaged in one way or another. For this reason we recommend that:

2013 Documents 259 consideration be given to addressing the gender specific language of Article 41.2 of the Constitution, to address the persistence of stereotypical attitudes towards women and girls, in line with the recommendations of the UN Committee on the Elimination of all Forms of Discrimination Against Women and the recent conclusions of the Convention on the Constitution, 2013.

In addition, we call for: domestic equality legislation to be amended, so that it more closely reflects the State’s international human rights obligations.

The Laundries were commercial enterprises that operated on a low cost basis to provide services to the public and indeed the State. I’m sure it is a shock for all of us to learn that the State benefited from services that were based on forced or compulsory labour in the past. It may also come as a surprise to know that although Ireland ratified the ILO Forced Labour Convention in 1931, there is still no stand alone offence of subjecting a person to forced labour. In fact it appears that no-one has ever been prosecuted in the State for an offence based on forced labour. Yet we know it happens. At present forced labour is dealt with as a constituent of human trafficking, however this approach does not comprehensively deal with the issue and has been found wanting in other jurisdictions. Therefore the IHRC recommends that the State: Introduce stand-alone legislation that defines forced or compulsory labour and servitude as a criminal offence in its own right, and address the need for inspections and redress.

Many of the girls and women in the Magdalen Laundries, had disabilities, including intellectual disabilities or a mental illness. The response of the State was to allow such girls and women be placed in Laundries, where, as documented by the IDC, they were less of a burden on the State, and could be cared for more cheaply. The cost analysis was very much to the fore. We now have ample evidence from various inquiries and reports that institutional care does not provide the best outcomes for vulnerable groups. This includes children and persons with disabilities. Nor does such a model of care provide protection from abuse. Despite recommendations by the IHRC and other organisations, residential care facilities for persons with disabilities are still not independently inspected today. Mindful of the history of the Laundries, the Commission makes a number of recommendations in the Report focused on the rights of persons with disabilities, calling for an end to institutional care and a move to independent supported living in the community. In addition, we recommend a number of changes to the Mental Health Act, 2001 to bring it in line with the State’s human rights obligations. Those recommendations are numbered 7, 8, 9 and 10 in the conclusions to the Report. One of the issues documented in the IDC Report, and which has a particular poignancy, relates to those women who lived out their lives and died while still living in a Laundry. The exhumation of remains of such women in a private burial plot attached to the High Park Laundry in Dublin became the subject of media scrutiny, and attracted public sympathy in 2003. It was revealed that in 1993 the remains in the plot were exhumed, cremated and re-interred in a communal plot, in circumstances where not all the remains were identified or documented. While the circumstances surrounding the exhumation and the subsequent identification of the remains have now been fully set out in the IDC Report, what still has the ability to cause outrage is the

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permissive approach of the relevant Government Department to the exhumation and cremation of undocumented remains. This could have resulted in the effective annihilation of the existence of those women. There are two aspects of this event that the Commission considered appropriate to address in its recommendations. The first is the fact that the primary legislation concerning exhumations dates back to 1948, and is bereft of safeguards in terms of ensuring that exhumations are handled in a sensitive manner that takes due account of the interests of surviving family members. Noting that High Park was not the only private plot attached to a Laundry, we recommend that this legislation be reformed. The other aspect of this sad episode is the plight of persons who are adopted and wish to gain information regarding their origins. This is not an unusual desire. A number of women had children adopted before they entered the Laundries, but what opportunity exists for their children to trace them if this is their wish? Adoption records are dealt with under a veil of secrecy, denying such children any legal right to seek information regarding their origins. This is clearly out of line with our obligations under the European Convention on Human Rights. We therefore recommend to the State that it: Introduce a system for the provision of information and tracing services to adopted persons (including those who were informally adopted in the past) which fully respects each individual’s right to know of their origins in accordance with the Convention on the Rights of the Child.

I want to conclude by coming back to the experience of the women in the Magdalen Laundries: No Report can fully record the experiences of the girls and women who entered the Magdalen Laundries. There are still stories that have not been told. There are wrongs to be put right. It is our modest wish to assist the process of healing that the Taoiseach’s apology started. We hope we have done so with this Report.

Irish Yearbook of International Law 2013 2013 Documents

Document 9 Tánaiste’s address to Joint Committee on Foreign Affairs and Trade, on Syria 18 September 2013 Chairman, Members of the Committee, I want to thank you for inviting me to discuss the issue of Syria with you at this time. The conflict in Syria is a tragedy and a humanitarian disaster, but it is also a complex challenge, touching on international law and issues surrounding the spread of chemical and other weapons. The scale of each of these challenges is huge and their resolution will not be simple in such a difficult and unstable environment. We have all been witness to Syria’s agony for far too long. I know some Committee members travelled to the Middle East this summer to witness the dire situation of Syrian refugees in Jordan. I myself visited refugee camps in Turkey earlier this year. You will have seen the terrible effects of that conflict, and you know full well the appalling suffering which those who have escaped the war are still enduring. The circumstances of those who have not fled, and are still in Syria in the middle of appalling violence, are unbearable. Over 4 million Syrians—out of a population of 20 million—have been driven from their homes and are now internally displaced within Syria. A further 2 million refugees have fled to Jordan, Turkey, Iraq and Lebanon. More than 100,000 Syrians have been killed since this conflict began, and almost 7 million Syrians are in dire humanitarian need. These figures are so large they are difficult for us to fully comprehend, masking to some extent the horrific scale of this crisis. Almost 40 per cent of registered schoolchildren have dropped out of school—this in a country which had close to full enrolment in education before the conflict. The UN reported that half of the children aged 6–12 years old from displaced families in Aleppo were forced to work because their fathers were dead, disabled or missing. These are the equally shocking and under-reported consequences of war—the destruction of future generations. We have received reports of a health system in crisis, with the UN reporting that a third of health workers in some areas have left the country. The Syrian-Arab Red Crescent has lost 22 volunteers since the conflict began—medical volunteers killed while performing humanitarian tasks. The UN has lost 11 of its own staff. This is a merciless conflict, and the misery it is inflicting is unacceptable. This is a conflict in which there has proved to be precious little respect for the duties and responsibilities of all parties to protect civilians, to support the work of humanitarian agencies and groups, to protect those providing medical or other essential needs for the civilian population. Irrespective of whether they fight for the Syrian

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state or opposition groups, all parties to this conflict are bound under international law, to say nothing of basic humanity, to uphold those duties. These failures, and the growing reports of groups of foreign radicals affiliated with Al-Qaeda or other extremists becoming involved in Syria, are profoundly worrying for the future of Syria. Syrian society needs not just an end to combat, but the promise of a stable and free society in the future. Respect for international law means a society which protects its people and upholds humane values. Syria’s future stability and prosperity are dependent on the survival of those values. The attack on Ghouta and other areas around Damascus on the morning of 21 August represents a new low in this endless litany of horrors. We all saw the images of children lined up on the floor of hospitals, wrapped for burial. This cowardly and cynical attack was aimed at opposition controlled suburbs of Damascus. This is not a battlefield, but a residential area. The video and photographic evidence of toddlers gassed to death in the middle of the night is proof enough for us to know that this was aimed at a defenceless civilian population, sleeping in their beds. We don’t know exactly how many people died, but some estimates speak of over fourteen hundred killed and several thousand injured that night. The UN inspectors’ report issued earlier this week shows clearly that they died from exposure to the Sarin nerve agent, delivered by surface to surface missiles. The information available points very clearly towards Syrian state forces as the responsible party for this horrific crime. As I have stated previous, this is a very serious war crime. It is true that many more people have died already in the course of this conflict. It is also true that for those victims, it is no consolation to have been killed or wounded by conventional weapons, rather than chemical weapons. But the world has long agreed that the use of chemical weapons is a crime. It has been illegal since 1925, when the nations of the world decided, following the terrible human cost of the First World War, that these weapons were too terrible to use, in any circumstances. There is no use of chemical weapons which is legal. Syria is a signatory to that 1925 agreement, and is in breach of the commitments it owes to the international community. I have stated that this new violation of international law, just the latest in a long list of abuses perpetrated upon the Syrian people, must be addressed by the international community. There cannot be any impunity for leaders or anyone under them who carries out these crimes. The use of these weapons has been viewed with horror by the international community and we cannot allow those who would seek to introduce their use anywhere to succeed. I, and many other Foreign Ministers, have previously called for the Security Council to refer the Syrian conflict to the International Criminal Court. The long list of violations of international law in the course of this war is all too clear, and the legal means for Syria’s people to seek accountability and justice is non-existent. There can be no long-term peace for Syria without justice for the victims of this war. I believe that it would be far better for Syrians to have recourse to an accountable and fair justice system in Syria, and maybe this can be achieved in the future. However, until such time as Syria can provide legal redress for the suffering of the victims, the International Criminal Court remains the only path to justice for the Syrian people. On Saturday last, I welcomed the news of the agreement by the US and Russia of a framework for the elimination of Syria’s chemical weapons. The implementation

2013 Documents 263 of this agreement will improve the security of the Middle East region as a whole, for whom the existence of Syria’s chemical weapons was a threat, and above all of the Syrian people, who have suffered at the hands of their own Government’s use of chemical weapons. The implementation of this agreement is what matters most at this point, and the key factor for its success is the compliance of the Syrian regime. I am not labouring under any illusion as to the nature of that regime: it has repressed and murdered its own people and lied to the international community, denying until recently that it even possessed these weapons. The process must be quick, credible and comprehensive. Syria has used these weapons with deadly effect and they must be eliminated before their repeated use can ever again be contemplated. I am not under any illusion either as to the scale and magnitude of the task which this will present—achieving the complete elimination of Syria’s chemical weapons programme by mid-2014 is an unprecedented challenge for the Organisation for the Prohibition of Chemical Weapons, the body charged with the implementation of the Chemical Weapons Convention. Ireland, as it happens, is currently a member of the Executive Council of the OPCW and our Ambassador to the Organisation will express our full support for the adoption of this agreement at a meeting of the Executive Council later this week. The elimination of Syria’s chemical weapons will represent a major challenge for the OPCW and will entail significant additional resources on its part. In principle, I believe Ireland should be willing to make a national contribution in support of implementation of this historic agreement and this issue is now being actively considered within my Department. Ireland has long opposed the existence and use of weapons of mass destruction, and the elimination of Syria’s chemical weapons will bring us a step closer to that aim. We must continue to do all we can to encourage a political solution to this conflict, which remains absolutely essential. Hopefully, much needed impetus towards finally convening the Geneva II conference will be provided by last week’s agreement and the prospect of some concerted action on the part of the Security Council in the coming weeks in endorsing the agreement and providing for its implementation. Such action on the part of SECCO is long overdue. It is also crucial to remember the scale of the humanitarian crisis that we are facing in Syria and neighbouring countries and the urgent need for the international community to redouble its efforts to alleviate the suffering caused by this tragic crisis. In particular, it is imperative that the international community is united in demanding greater protection for Syria’s civilian population. Ireland has been consistent in its call for all parties to the conflict to fully respect, and be held accountable for violations of, International Humanitarian Law. We have also consistently supported Baroness Amos, the UN’s Emergency Relief Coordinator, in her efforts to remove major impediments to the humanitarian relief effort. In this regard, there remain four key issues: First, is the need to facilitate increased protection and unimpeded access to peoplein-need throughout Syria. This may involve the provision of cross-border assistance where necessary but should also involve humanitarian pauses in fighting and advance notice of military offensives. Second, specific measures to ensure the protection of humanitarian staff, vehicles and assets must be agreed. All parties to the conflict should allow for the free passage

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of medical supplies to all areas, and to safeguard all health facilities and ambulances which have most shamefully come under attack throughout this crisis Third, there is an absolute imperative to prevent the politicisation of aid, most fundamentally by insisting upon respect by all parties for the humanitarian principles of neutrality, independence, impartiality and humanity. Lastly, the international community must commit to ongoing emergency relief and, at the same time, stand ready to step up long-term assistance measures for all countries affected by this crisis  In the face of significant operational challenges, including constraints imposed by the Assad regime, it is important to recognise the exceptional efforts being made by humanitarian organisations to meet the staggering level of need in extremely difficult circumstances and at great personal risk. We will continue to support the work of the UN in attempting to address the most pressing humanitarian challenges. We must also acknowledge the huge pressure on neighbouring countries, which have made extraordinary efforts to accommodate the large-scale influxes of traumatised refugees. In addition to the burgeoning camps that are struggling to provide essential services for new arrivals, many host towns and cities, especially in Jordan and Lebanon, are stretched to their limits. This is exposing the refugee populations to significant protection risks, especially women and children. It is similarly increasing the risk of further internal tension in already fragile contexts, particularly in Lebanon, Iraq and Egypt. A comprehensive regional response—and increased support to host countries— is crucial to defusing the growing tension between host and refugee communities that could further exacerbate and extend this already entrenched and complicated conflict. Ireland has been unwavering in its support to the international humanitarian response. To date, we have provided almost €11 million to the relief effort and are one of the world’s most significant donors—on a per capita basis—to the response to this crisis. Through trusted NGO partners here in Ireland, as well as the UN and the Red Cross/Red Crescent movement, we are playing a considerable part in the international effort to meet the massive needs both inside Syria and in the wider region. We stand ready to provide further assistance, within our means, to the humanitarian response. I want to finish my comments by referring to peace. I have spoken at length about war, international law and humanitarian disaster today. But the overall aim remains a Syria at peace. This will be one of my main messages when I deliver Ireland’s national statement to the UN General Assembly next week. The understandings between the US and Russia on the elimination of chemical weapons in Syria are not the only point which the world wants to see from these negotiations. The humanitarian crisis, the violations of human rights, the displacement of millions of Syrians cannot be addressed without peace and a sustainable political solution. I hope that the US and Russia will continue their engagement with a view to bringing peace to Syria. I call on all parties to that conflict to create the space needed for a political solution. This is not a conflict that will be resolved by force. The continuation of the war will simply kill, maim and displace more Syrians and destroy more of their country. We need to redouble our efforts to bring the parties back to the negotiating table and achieve a stable and durable peace for Syria.

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Document 10 Address by the Tánaiste and Minister for Foreign Affairs, Eamon Gilmore TD, to the 68th Session of the United Nations General Assembly New York, 28 September 2013 Mr President, Syria Every day, the peoples of the world—whom we are privileged to represent here at the General Assembly of the United Nations—look on in helpless horror at the slaughter in Syria. They can see gassed children lined out, dead, on their television screens. They can access online the facts about the 100,000 Syrians who have been killed; the four million who have been displaced; and the two million or more who have been driven into refugee camps in Turkey, Lebanon and Jordan. The peoples who have sent us, government leaders and diplomats, to speak for them in this great hall, are asking, ‘Why can we not stop this slaughter and this suffering?’ They see this conflict in real time. It is not taking place in a remote part of the planet. Its brutality is made more visible by modern technology. The utterly callous attack in Ghouta on 21 August marked a new low in the endless litany of horrors. From the very outset, Ireland has consistently argued that the United Nations and the Security Council must be central to any efforts to resolve this crisis and ensure that international law and basic human rights are upheld. And while it has taken much longer than we would all have wished, I welcome the decisive action the Security Council has now taken on Syria. The Resolution marks a watershed in the international community’s engagement on the crisis. It offers renewed hope and confidence that the UN is capable of discharging its responsibilities and meeting the aspirations and expectations of the peoples of the world. The Security Council Resolution builds on the vital breakthrough achieved by the United States and Russia in agreeing a framework for the complete elimination of

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Syria’s chemical weapons. Full compliance by the Syrian regime with its obligations is imperative. Ireland has already pledged €200,000 in funding to support the vital role of the Organisation for the Prohibition of Chemical Weapons, assisted by the UN, in implementing these arrangements. Crucially, the Security Council has called for the early convening of an international conference to address all aspects of the conflict. The inescapable reality is that the crisis can only be resolved politically, not militarily. I am greatly encouraged by the indications that the Geneva II Conference could be held within a matter of weeks. Peace can only come through all Syrians engaging in a genuinely inclusive process aimed at agreeing a new political dispensation in their country. The Security Council has expressed its conviction that there must also be accountability for what has occurred in Syria. The International Criminal Court exists precisely for this purpose. We owe it to the Syrian people to ensure that those responsible for the war crimes committed against them are brought to justice. There is an urgent need also to remove impediments to the delivery of humanitarian assistance. Violence against civilians must cease. All parties must facilitate unimpeded access to people in need throughout Syria and guarantee the safety and security of humanitarian personnel, who perform their duties at enormous personal risk. The humanitarian efforts being made by Syria’s neighbours, including Turkey, Jordan and Lebanon, are remarkable and deserve far more support from the international community. We should not underestimate the strain being imposed on these countries and the risks being posed to refugee populations. Ireland has contributed $15 million to the humanitarian operation and we stand ready to do more within our means.

Middle East Elsewhere in the Middle East, we also see the prospect of progress. In Ireland, we know what it takes to make peace after a protracted conflict. I want to acknowledge the work being done in the current direct talks between Israeli and Palestinian negotiators, which all who wish for peace must welcome. I want to commend in particular the determination and engagement of US Secretary of State John Kerry, who has done so much to bring this about, and the leadership of President Abbas and Prime Minister Netanyahu, who have had to accept difficult choices to begin the process of negotiation. We all know, and they know, that many more difficult choices lie before them if they are to succeed and to secure a comprehensive peace settlement. They deserve all our support.

Iran We are also encouraged by the stated determination of the new Iranian government to address the concerns of the international community and build confidence in the exclusively peaceful nature of its nuclear programme. We look forward to Iran’s

2013 Documents 267 serious engagement in meaningful negotiations leading to full compliance with all of its international obligations and hope that this will also contribute to the creation of a positive dynamic in the Middle East region.

Peacekeeping Ireland currently participates in seven UN peacekeeping missions, including each of the three missions in the Middle East. In response to a request from the Secretary General, we are deploying Irish personnel to reinforce UNDOF, the UN Disengagement Observer Force on the Golan Heights. We are doing so to help ensure that UNDOF can continue to implement its mandate, at a difficult time. Ireland’s deployment to this challenging mission is a signal of our deep commitment to the UN’s peacekeeping role. The Irish people are rightly proud of these soldiers and the record of our Defence Forces, members of our police service and Irish civilians deployed in the cause of peace.

Terrorism I join other speakers in condemning the recent attack in the Kenyan capital Nairobi, which left dozens of innocent people dead and almost two hundred injured. It is a chilling reminder that well-organised and ruthless international terrorist groups and networks are constantly searching for new locations and targets for atrocities. My profound sympathy and that of the people of Ireland goes out to the victims of this attack and their families. We must be both vigilant against terror and resolute in refusing to compromise our values in the face of such threats. Mr. President

MDGs Many factors contribute to human suffering. Violent conflict such as that in Syria is one—and the toll of casualties there is escalating daily. But there are many parts of the world where underdevelopment, malnutrition and disease exact an even greater toll. Around the globe, 870 million people—almost 200 times the entire population of Ireland—are living in extreme poverty and hunger. Every single day, 18,000 children die needlessly from preventable causes in the poorest and least-developed regions of the world. 7,000 of these are children under the age of five who die because they are undernourished. One in every four children is stunted, most of them in the poorest countries. And every day, 800 women die because of complications during pregnancy and childbirth, for basic reasons that could have been prevented. Reversing these trends and creating a better future for the countless millions of impoverished people on our planet is, perhaps, the greatest moral and practical challenge we face today.

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We can, of course, draw inspiration and hope from our successes. And there have been successes. Thirteen years ago, at the United Nations, world leaders committed to taking tangible, measurable action to tackle global poverty. Huge progress has been made since then under the Millennium Development Goals. Significant numbers of people have been lifted out of poverty. Millions of children are receiving primary education. Two billion people have access to improved water supply. And HIV/AIDS and other diseases and pandemics are being tackled. Nevertheless, fresh global challenges, such as climate change, are beginning to undermine the progress made. Communities in developing countries which have contributed least to the causes of climate change are suffering most from its effects. This is an injustice, clear and simple. It is a matter of fundamental human rights and equity. And it is critical for the future of all of our children, in a world which is reaching the limits of environmental sustainability, that this injustice be reversed. I had the privilege of taking part in this week’s Special Event on the Millenium Development Goals and co-chairing one of the Round Table sessions. Ireland is proud to have co-facilitated the Special Event with South Africa and to have achieved an outcome document which will guide negotiations over the next two years on completing the MDGs and crafting the post-2015 development agenda. I believe that, when world leaders gather at the United Nations in 2015, we can and should be ready to adopt a new set of global goals aimed at achieving a sustainable, just and secure future for our world. I want to see a clear commitment to ending extreme poverty and hunger in a generation. I want to see specific commitments in relation to the empowerment of women and girls. And I want to see an integrated approach on climate change and a strong focus on climate-sensitive agriculture. In our own aid programme, my Government has prioritised hunger and malnutrition, a theme that resonates with Ireland’s own history. We have a very simple message about the vital importance of investment in nutrition for mothers and babies. We are leading supporters of the Scaling Up Nutrition movement. And we are committed to doubling our aid spending on nutrition by 2016. Ireland today is emerging from several years of an economic crisis that, soon, will be behind us. After many tough decisions and a lot of hard work, we are about to safely exit an international bail-out and our economy is back on track. And I am proud to say that, despite the extremely difficult circumstances many Irish people find themselves in, we have sustained our commitment to the provision of development aid. I know that we are ready to play our part in a new global partnership, and that it is only through this body, the United Nations, that this can be achieved.

Human Rights It is a matter of great pride to my country that Ireland was, last year, elected for the first time to the Human Rights Council. I warmly thank the Member States for their support in the election and the confidence they have placed in us. Ireland played a lead role in the adoption of two important resolutions by the Human Rights Council this week—one on preventable mortality of children under five; the other recognizing the important role played by civil society at the local, national, regional and international levels.

2013 Documents 269 The Universal Declaration of Human Rights, adopted by this Assembly, states that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. It also states that those human rights should be protected in law. Today, instead of offering protection, we increasingly see legal measures being adopted to discriminate against people on the basis of their sexual orientation or gender identity. I welcome the courageous leadership shown by the Secretary General when he promised last April to lead a global campaign for Lesbian, Gay, Bisexual and Transgender rights. Ireland pledges our full support to the efforts of the Secretary General, both here at the General Assembly and at the Human Rights Council.

Conclusion Mr. President, Ireland is a small state which is deeply committed to the United Nations and to the principles enshrined in its Charter. We are proud to contribute to the important efforts of the United Nations in peacekeeping, in conflict resolution, in development aid and in humanitarian action. There can be no doubt that the United Nations is the unique and indispensable forum where the peoples of the world share their collective concerns and determine to take action to make the world a better and a safer place. The membership of this Organisation has conferred primary responsibility for the maintenance of international peace and security on the Security Council. Accordingly, we look to the Council to show leadership in the response to international crisis. Membership of the Council is a privilege for any state, and Ireland has been honoured to serve on it on a number of occasions. But the permanent members of the Security Council have a special responsibility to work together in a way which enables the United Nations to live up to the commitments made in its Charter. When the United Nations fails, or delays action, we are all the poorer for such setbacks. But when the UN works, we can achieve great things together. And these successes, such as the definition of a post-2015 development agenda, should serve as an inspiration and a springboard for the international community’s responses to the other great challenges of our time. Thank you.