Bliainiris Éireannach an Dlí Idirnáisiúnta The Irish Yearbook of International Law Volume 10, 2015 9781509918140, 9781509918133, 9781509918157

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BLIAINIRIS ÉIREANNACH AN DLÍ IDIRNÁISIÚNTA IMLEABHAR 10 THE IRISH YEARBOOK OF INTERNATIONAL LAW VOLUME 10 The Irish Yearbook of International Law (IYIL) supports research into Ireland’s practice in international affairs and foreign policy, filling a gap in existing legal ­scholarship and assisting in the dissemination of Irish thinking and practice on ­matters of international law. On an annual basis, the Yearbook presents ­peer-reviewed academic articles and book reviews on general issues of international law. Designated correspondents provide reports on international law developments in Ireland, Irish practice in international bodies, Ireland and the Law of the Sea and the law of the European Union as relevant to developments in Ireland. In addition, the Yearbook reproduces key documents that reflect Irish practice on contemporary issues of international law. Publication of The Irish Yearbook of International Law makes Irish practice and opinio juris more readily available to governments, academics and international bodies when determining the content of international law. In providing a forum for the documentation and analysis of North-South relations the Yearbook also makes an important contribution to post-conflict and transitional justice studies internationally. As a matter of editorial policy, the Yearbook seeks to promote a multilateral approach to international affairs, reflecting and reinforcing Ireland’s longstanding commitment to multilateralism as a core element of foreign policy. The tenth volume of The Irish Yearbook of International Law engages with ­contemporary issues in international law, raising questions both as to the ­conceptual underpinnings of international law in relation to the Responsibility to Protect ­doctrine, and state practice in fields such as Law of the Sea and belligerent occupation, prosecution of war crimes in domestic courts, and the evolving field of international disability law.

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Bliainiris Éireannach an Dlí Idirnáisiúnta Imleabhar 10, 2015 Curtha in Eagar ag

Fiona de Londras agus Siobhán Ní Mhaolealaidh

The Irish Yearbook of International Law Volume 10, 2015 Edited by

Fiona de Londras and Siobhán Mullally

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The Editors 2017 The Editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50991-814-0 ePDF: 978-1-50991-815-7 ePub: 978-1-50991-820-1 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

EDITORIAL BOARD Members of the Advisory Board 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, Professor of Global Legal Studies, University of Birmingham Professor Siobhán Mullally, University College Cork Editorial Board Professor Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Dr Dug Cubie, University College Cork Dr Shane Darcy, Irish Centre for Human Rights, NUI Galway Professor Jeffrey L Dunoff, Temple University Professor Imelda Maher, University College Dublin Professor Joseph McMahon, University College Dublin Professor Fionnuala ní Aoláin, University of Minnesota and Transitional Justice Institute, Ulster University Dr Aoife O’Donoghue, Durham University Professor Michael O’Flaherty, National University of Ireland, Galway Professor Gerard Quinn, National University of Ireland, Galway Professor Jaya Ramji-Nogales, Temple University Professor Philippe Sands, University College London Professor William Schabas, Middlesex University Correspondents Brice Dickson, ‘Human Rights in Northern Ireland 2015’ Fiona O’Regan, ‘Human Rights in Ireland 2015’ Dug Cubie, ‘Ireland and International Law 2015’ Roderic O’Gorman, ‘Ireland and the European Union 2015’

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Table of Contents Editorial1 Fiona de Londras and Siobhán Mullally Symposium: Guest Editor ‘Collective Responsibility for Migrants at Sea’ Editorial, Richard Collins, ‘Europe’s Shared Burden: Collective Responsibility for Migrants at Sea’

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Patrick Burke, ‘Troubled Waters: The Legal Issues Inherent in the Irish Defence Forces’ Role in the Mediterranean Migrant Crisis’

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Kristof Gombeer, ‘Human Rights Adrift?: Enabling the Disembarkation of Migrants to a Place of Safety in the Mediterranean’

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Ainhoa Campàs Velasco, ‘The International Convention on Maritime Search and Rescue: Legal Mechanisms of Responsibility Sharing and Cooperation in the Context of Sea Migration?’

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Francesca Mussi and Nikolas Feith Tan, ‘Comparing Cooperation on Migration Control: Italy–Libya and Australia–Indonesia’

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Bríd Ní Ghráinne, ‘Left to Die at Sea: State Responsibility for the May 2015 Thai, Indonesian and Malaysian Pushback Operations’

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Daria Davitti and Annamaria La Chimia, ‘A Lesser Evil? The European Agenda on Migration and the Use of Funding for Migration Control’

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Correspondent Reports Brice Dickson, ‘Human Rights in Northern Ireland 2015’

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Fiona O’Regan, ‘Human Rights in Ireland 2015’

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Dug Cubie, ‘Ireland and International Law 2015’

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Roderic O’Gorman, ‘Ireland and the European Union 2015’

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Documents Statement by Mr Tim Mawe, Deputy Permanent Representative at the Open Debate of the Security Council ‘Sexual Violence in Conflict’ New York, 15 April 2015

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Iveagh Lecture at Dublin Castle, Ban Ki-moon, UN Secretary-General, 25 May 2015

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The Irish Yearbook of International Law 2015

Statement by the Taoiseach in Advance of the October Meeting of the European Council Dáil Éireann, 7 October 2015

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Statement by Minister Flanagan re Foreign Affairs Council, 16 November 2015

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Statement by Mr James Kingston, Legal Adviser, Department of Foreign Affairs and Trade, at the Sixth Committee, General Assembly 70th Session, ‘The Report of the International Law Commission at its 67th Session: Ch VI (Identification of customary international law), Ch VII (Crimes against humanity) and Ch VIII (Subsequent agreements and subsequent practice in relation to the interpretation of treaties), New York, 6 November 2015

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Statement by Mr Trevor Redmond, Assistant Legal Adviser, Department of Foreign Affairs and Trade, at the Sixth Committee, General Assembly 70th Session, ‘The Report of the International Law Commission at its 67th Session: Ch IX (Protection of the Environment in relation to Armed Conflicts), Ch X (Immunity of State officials from foreign criminal jurisdiction) and Ch XI (Provisional Application of Treaties), New York, 10 November 2015

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National Statement delivered by An Taoiseach Enda Kenny TD, 21st Conference of the Parties to the UN Framework Convention on Climate Change, 30 November 2015

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Minister Charles Flanagan, European Union, Human Rights Council—24th Special Session, Statement by Ireland, 17 December 2015

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Book Reviews Conor McCormick, Public Sentinels: A Comparative Study of Australian Solicitors-General, by Gabrielle Appleby, Patrick Keyzer and John M Williams (eds), Surrey, Ashgate Publishing Ltd, 2014, 304 pp, hbk £100, ISBN: 978-1-4094-5425-0

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Editorial

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HE FIRST VOLUME of the Irish Yearbook of International Law was published in 2008. At that time, 10 years ago, the then-editors (Mullally and Allain) noted that, while there was plentiful work on Irish foreign policy: ‘Research and scholarship on Irish practice in international law remains … underdeveloped.’ The Yearbook was founded partly to address this lacuna in Irish research and scholarship: to highlight Irish state practice through correspondent reports, to collate key documents in Irish international law practice on an annual basis and to publish leading work on international law both about Ireland and beyond that. In the intervening years, the Yearbook has indeed acted as a location for the publication of a corpus of knowledge of state practice, as well as scholarly work on international law more broadly. This, the tenth volume of the Yearbook, continues that tradition. The articles for this year’s Yearbook are brought together in a symposium on ‘Europe’s Shared Burden? Collective Responsibility for Migrants at Sea’, edited by Richard Collins. As Collins’ editorial shows, Ireland has played an important role in the EU’s response to the so-called ‘migration crisis’, deploying vessels in search and rescue missions across the Mediterranean and, indeed, executing programmes to settle children, in particular, from refugee camps in Calais and Greece in Ireland. This year’s correspondent reports illustrate the continued importance of internationalism for Ireland, through its close engagement within and through the EU (outlined in Roderic O’Gorman’s report), through peacekeeping and the provision of humanitarian aid, and by the incorporation of international legal standards into domestic law. However, these reports also illustrate the persistent challenges of internationalism: the continued failure to ratify the UN Convention on the Rights of Persons with Disabilities is a matter of particular concern, although as Fiona O’Regan notes in her report on ‘Human Rights in Ireland 2015’, the passage of the Assisted Decision-Making Capacity Act 2015 is an important step towards ratification. At the time of writing, the UK has lodged its official Article 50 notification to begin negotiations for its exit from the EU. This has many potentially complex implications for the island of Ireland, including for the legal system in Northern Ireland, and some of those are foreshadowed well in the reports of Brice Dickson (on Northern Ireland) and Dug Cubie (on Ireland and international law). The year 2015 saw the publication of the review of Ireland’s foreign policy and external engagement: The Global Island: Ireland’s Foreign Policy for a Changing World. It was almost 20 years since the last review of Irish foreign policy priorities and practice, the 1996 White Paper Challenges and Opportunities Abroad. While a relatively broad-brush approach is taken to the foreign policy priorities identified, a clear theme throughout the review is the commitment to principled engagement, and to a values-based perspective on international relations and Ireland’s role in both bilateral and multilateral arrangements. The review highlights the importance of accountability in Irish foreign policy practice through the work of the Oireachtas

2  The Irish Yearbook of International Law 2015 Committees, in particular the Joint Committee on Foreign Affairs and Trade, the Joint Committee on the European Union and the Joint Committee on the Implementation of the Good Friday Agreement. While the review repeatedly emphasises the link between foreign policy and international trade—reflected in the addition of trade to the Ministerial and Departmental portfolio of foreign affairs—the five signature foreign policies restate the traditional focus and values that have underpinned Ireland’s official statements on engagement in international relations: combating poverty and hunger; advancing human rights; promoting disarmament; committed to UN peacekeeping; and sharing our experience of peace and reconciliation on the island of Ireland. As we mark the first ten volumes of the Irish Yearbook of International Law, fundamental shifts in international affairs loom on the horizon: not only the UK’s exit from the EU, but also the developing power of the Eurasian Economic Union and the planned drastic reduction in contributions to the United Nations by the US. In these forthcoming, challenging years, Ireland’s leadership has the potential to continue to make a fundamental contribution to international law, particularly in areas such as climate change, armaments and nuclear arms. The Irish Yearbook of International Law will continue to chart, publish commentary on and encourage critical engagement with that leadership role and challenge the state to meet its commitments to ‘principled engagement’ in international affairs. Fiona de Londras and Siobhán Mullally

Symposium: Guest Editor ‘Collective Responsibility for Migrants at Sea’

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Editorial Europe’s Shared Burden? Collective Responsibility for Migrants at Sea RICHARD COLLINS*

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VER THE LAST two years, Europe has been shaken by a crisis at least partly of its own making. Well over a million migrants have made the journey across land and sea to settle in the European Union (EU) since the start of 2015,1 but it is clear that the burden of reception and resettlement has hit some states much harder than others. Whilst the overall scale of migration flows as well as the number of refugees seeking asylum in particular are comparable to those witnessed in other parts of the world,2 the crisis in Europe is perhaps unparalleled in terms of its social, political and legal complexity. Furthermore, it has taken on a particularly stark humanitarian dimension due to the thousands of lives lost each year during perilous crossings of the Mediterranean Sea in often unseaworthy and unsafe vessels. It is in this context in particular that Ireland has come to play a most pivotal role, having taken the decision to deploy a number of vessels in successive search and rescue missions in the Mediterranean since the start of the crisis in 2015.3 Nevertheless, at the start of 2017, this crisis shows little sign of abating anytime soon. With 2016 now proving to be the deadliest year on record in the Mediterranean Sea,4 a rising tide of anti-immigrant sentiment across the continent (perhaps reaching its starkest heights with the UK’s vote to leave the EU in June), the decision to close and effectively dismantle the ‘Jungle’ camp in Calais, as well as March 2016’s controversial ‘Joint Action Plan’ agreed between the EU and Turkey5 (preceding by only a few months the failed Turkish coup attempt and the unfinished

*  Lecturer in International Law, Sutherland School of Law, University College Dublin. All websites accessed 11 July 2017. Statistics correct as at 1 March 2017. 1  The International Organization for Migration (IOM) records comprehensive statistics in this respect. See http://migration.iom.int/europe. 2  See, eg, UNHCR, ‘Global Trends: Forced Displacement in 2015’, available at: www.unhcr.org/uk/ statistics/unhcrstats/576408cd7/unhcr-global-trends-2015.html. 3  See, most recently, www.military.ie/en/naval-service/news-and-events/single-view/article/15thnovember-2016-le-samuel-beckett-rescues-40-migrants/?cHash=16d19e93db73a6b938d236027 47b4100. 4 See UNHCR, ‘Mediterranean Death Toll Soars, 2016 is Deadliest Year Yet’, 25 October 2016, ­available at: www.unhcr.org/news/latest/2016/10/580f3e684/mediterranean-death-toll-soars-2016-deadliest-year.html. 5  See European Commission Fact Sheet: EU–Turkey Joint Action Plan, available at: http://europa.eu/ rapid/press-release_MEMO-15-5860_en.htm.

6  The Irish Yearbook of International Law 2015 political fallout that has followed), if anything, the crisis has only deepened in its political complexity and seeming intractability. In response, European leaders seem perennially caught between a felt humanitarian imperative to save lives and ensure a safe haven for those in genuine need, and a desire to restrict levels of immigration in order to appease an increasingly hostile and often resentful populace concerned—rightly or wrongly—about the potential impact of mass immigration on local resources, public safety and, in some cases, the perceived threat of Islamic extremism. Such concerns have undoubtedly impacted on the coherence, effectiveness and, at times, legality of the policies, initiatives and political deals made by European states in their efforts to respond to mass migration flows. From the willingness of states to engage in controversial ‘pushback’ operations to prevent migrant vessels from entering European waters6 to the closure of land borders to restrict or prevent migrants’ entry into certain states,7 as well as the EU’s attempt to essentially ‘outsource’ aspects of its response to Turkey,8 concerns increasingly arise over both the morality and legality of many of these initiatives. From an explicitly legal perspective, the problem of responsibility in this context— who is responsible, what they are responsible for and what such responsibility actually requires in terms of specific actions or obligations—is undoubtedly complicated by the somewhat piecemeal international legal framework that comes into play. Whether a particular state or EU institution might be legally responsible for particular policy choices, actions or omissions is a question that not only engages obligations under various applicable international conventions and customary rules of, inter alia, the law of the sea, refugee and asylum law, and international human rights, but also casts a probing light on the adequacy of the international legal system’s framework of state responsibility for such wrongful acts. It is with this background in mind that this symposium issue of the Irish Yearbook of International Law seeks to examine and critically engage with questions of legal obligation and legal responsibility in the context of the ongoing migration crisis. The contributions assembled here under the title of ‘Europe’s Shared Burden: Collective Responsibility for Migrants at Sea’ have their origins in the Irish European Law Forum (IELF) held at University College Dublin in October 2015.9 The workshop

6  This came to the fore most clearly in the European Court of Human Rights’ landmark judgment in Hirsi Jamaa and Others v Italy, App No 27765/09, judgment, 23 February 2012. 7 See, for instance,’ Balkan Countries Shut Borders as Attention Turns to New Refugee Routes’ The Guardian (9 March 2016), available at: https://www.theguardian.com/world/2016/mar/09/balkansrefugee-route-closed-say-european-leaders. 8 See Joint Action Plan (n 5). See also ‘EU “Outsourcing its Obligations” on Refugees, Says Goal’ Irish Times (21 March 2016), available at: www.irishtimes.com/news/world/europe/eu-outsourcingits-obligations-on-refugees-says-goal-1.2581624. 9  The workshop was also generously funded by the Society of Legal Scholars and the FP7 FRAME Project (www.fp7-frame.eu/). I would like to thank all of the participants who contributed to this workshop. As well as the articles assembled here, other contributions—in no particular order—were made by: Peter Sutherland (UN Special Representative for International Migration), Sophie Magennis (UNHCR), Verena Risse (Frankfurt/Munich), Jonathan Zaragoza Cristiani (EUI), Lisa-Marie Komp (Bucerius), Iseult Honohan (UCD), Elena Katselli (Newcastle), Vassillis Tzevelekos (Hull), Elin Palm, (Linköping), Clara Sandelind (Huddersfield), Giorgia Cigalla (Parma), Hilkka Becker (Refugee Appeals Tribunal), Leonard Doyle (IOM), David Costello (Office of the Refugee Applications Commissioner and EASO), Violeta

Symposium—Collins 7 aimed to address questions of shared and collective responsibility for responding to the migrant crisis from an interdisciplinary perspective. It brought together a range of scholars from the fields of law, political science and philosophy, as well as relevant local, regional and international policy professionals and legal practitioners, in order to address issues from the question of search and rescue in the context of irregular migration in the Mediterranean Sea to the broader question of responsibility for managing reception and resettlement across European states. The contributions selected for inclusion in the Irish Yearbook all explicitly address questions of international law in this context. They cover a range of pertinent topics in this regard, though they are united in their focus on the legal responsibility of states in their responses to the crisis. This includes: those engaging explicitly with the international legal framework for search and rescue, whether in general terms (Campàs Velasco), or more specifically by focusing on the particular operational context of the Irish Navy’s deployment in the Mediterranean (Burke), those focusing on questions of responsibility for disembarkation in the European context (Gombeer), as well as those taking a broader comparative perspective on potential state responsibility for ‘pushback’ operations in the Bay of Bengal and the Andaman Sea (Ní Ghráinne), and it addresses questions of responsibility in the context of specific cooperation arrangements, including a comparative study of Italy and Australia’s relations with Libya and Indonesia respectively (Mussi and Tan), as well as a consideration of lessons learned from Italy and Libya’s cooperation in addressing the use of financial assistance in the context of the EU–Turkey cooperation arrangements (Davitti and La Chimia). As such, the contributions assembled here draw out certain overlapping and related concerns, but they all also make important individual contributions in comprehensively addressing the question of collective responsibility for the current crisis at the legal, policy and operational levels. The first contribution is by Commander Burke of the Irish Naval Service, which gives an overview of the legal and operational framework at play in planning for and conducting search and rescue operations in the Mediterranean Sea. Commander Burke considers how the felt moral and humanitarian imperatives of saving lives at sea have been codified in extant legal frameworks, whilst recognising the continuing humanitarian challenges faced by Irish Naval Service personnel in their encounters with a sophisticated migrant smuggling network. He also reflects on the ongoing difficulties in securing effective burden sharing in the broader context of migrant reception and resettlement across Europe. The contribution by Campàs Velasco gives a comprehensive analysis of the legal workings of the Search and Rescue (SAR) framework under the international law of the sea. In particular, she addresses the challenge of burden sharing given the somewhat segmented approach taken to SAR operations, as well as the broader

Moreno-Lax (QMUL), Mario Pedro (Frontex Legal Affairs), Efthymios Papastavridis (Academy of Athens), Mariagiulia Giuffrè (Edge Hill University), Brendan Flynn (NUI, Galway), Seline Trevisanut (Utrecht), Madeline Garlick (IHI, UNHCR), Muireann Meehan Speed (Oxford), Maria Hennessy (Irish Refugee Council), Roberta Mungianu (Copenhagen), Harriet Gray (Liverpool), Eleni Karageorgiou (Lund), Scarlett McArdle (Birmingham City), Liam Thornton (UCD), Bernard Ryan (Leicester), Cathryn Costello (Oxford), Siobhán Mullally (UCC), Colin Harvey (QUB), and Tom Arnold (IIEA).

8  The Irish Yearbook of International Law 2015 limitations of this framework applied outside of the context of regular maritime navigation and instead applied to irregular maritime migration. Ultimately, Campàs Velasco argues for the development of a more holistic SAR system capable of better integrating the demands of international human rights and refugee law with existing law of the sea obligations. Focusing more specifically on the human rights and refugee law obligations in the context of migration by sea are the articles by Gombeer and Ní Ghráinne. Gombeer considers the legal obligations of EU Member States to disembark migrants to a place of safety, considering how the SAR system (discussed at length in Campàs Velasco’s contribution) is supplemented at the regional level by the more exacting standards of refugee and asylum law and international human rights norms. However, holding up the current EU border control and asylum acquis against this legal framework reveals a number of concerns, and Gombeer argues for further reform to ensure better access, procedural guarantees and more effective burden sharing at the regional level. Ní Ghráinne poses the question of international legal responsibility in the context of the May 2015 crisis in the Bay of Bengal and the Andaman Sea, considering the obligations of the various states involved—Thailand, Malaysia and Indonesia— by reference to the law of the sea, refugee law and international human rights law. Although there is seemingly a more limited set of legal protections at play compared to the European crisis, she hopes to contest the view that refugees and migrants in Asia have little in the way of legal protections. In doing so, she­ considers and clarifies the meaning of important contested international legal issues such as the principle of non-refoulement, the application of human rights treaties at sea and the definition of effective control under the law of state responsibility. Her argument in this context is that there is a hierarchy of international legal rights and obligations at play in states’ responses to irregular maritime migration, with human rights obligations at its apex. She concludes by considering a number of practical ways in which some measure of legal accountability may be achieved in this context. Focusing more broadly on the level of cooperation arrangements between states at the local and regional levels are the articles by Mussi and Tan and by Davitti and La Chimia respectively. The contribution by Mussi and Tan explores, compares and contrasts the approaches taken by Australia and Italy in terms of bilateral cooperation in migration control with neighbouring states: Australia with Indonesia and Italy with Libya. In drawing out common and distinct elements of each cooperation arrangement, the article questions whether the bilateral arrangements in place actually comply with extant refugee law. In considering potential areas of infringement in this respect, Mussi and Tan investigate the potential for shared international legal responsibility in respect of situations where one state essentially delegates migration control to another. Drawing lessons from the experience of Italy and Libya’s cooperation in their contribution, Davitti and La Chimia raise a number of concerns with regard to the recent deal struck between the EU and Turkey in an effort to restrict migration flows into the EU. In this context, they reflect critically on the so-called ‘European Agenda’, which aims to link development aid to the externalisation of migration

Symposium—Collins 9 control. Specifically, they question whether this policy might be in breach of international law and whether, therefore, the EU itself or its Member States could be held liable for aiding or assisting such breaches. They also consider the longer-term implications of classifying these kind of financial incentives as aid funding, arguing in particular that this (mis)use of funding to essentially outsource migration controls cannot but do irreparable reputational damage.

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Troubled Waters The Legal Issues Inherent in the Irish Defence Forces’ Role in the Mediterranean Migrant Crisis PATRICK BURKE*

Ireland has a lengthy history of humanitarian engagement and that record constitutes a tradition that has become strongly linked to the positive aspects of Irish national identity. The experiences of famine and of emigration are to be expected as influences on Ireland’s foreign policy in general … Irish people have shown time and again an eagerness to offer their help to the suffering and most vulnerable.1 Michael D Higgins, President of Ireland INTRODUCTION

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FTER AN EMERGENCY European Council meeting to deal with the migrant crisis in the Mediterranean following the loss of over 800 people from a boat off the coast of Sicily in April 2015, An Taoiseach, Enda Kenny TD announced that Ireland would send a naval ship to assist with the humanitarian rescue mission then led by the Italian authorities. Amongst the planning factors to be considered by Defence Forces Headquarters staff were the legal complexities inherent in sending a naval ship to engage in search and rescue humanitarian operations in waters outside those of the state. This included the necessity for a potential Memorandum of Understanding (MOU) with Italy and also perhaps Malta, which control adjacent maritime search and rescue regions, as well as command and control of the ship and any asylum obligations that Ireland would have towards persons rescued by its navy in international waters. Ireland was clear in declaring its intent from the outset that it would not be participating in any form of border control; the focus was on search and rescue and humanitarian tasks. The wording of section 3 of the Defence (Amendment) Act 2006 precluded any members of the Defence Forces being despatched to form part of any other force operating within the Mediterranean.

* Commander (NS) BL Defence Forces Legal Service. All websites accessed 6 May 2017, unless otherwise stated. 1  President Michael D Higgins, ‘Preparing for the Global Humanitarian Summit—The Irish Response’, Keynote Address at the Irish Humanitarian Summit, O’Reilly Hall, University College Dublin, 2 July 2015.

12  The Irish Yearbook of International Law 2015 While this mitigated some of the legally complex issues surrounding the status of forces agreements and the kind of command and control issues raised by the Defence Forces’ participation in United Nations (UN) or European Union (EU)-led missions, the lack of a standardised legal framework also created its own operational difficulties. This article will seek to explore the complex legal imperatives that underpin what on the surface appears to be a straightforward humanitarian operation and to outline the role that law continues to play in planning for and conducting contemporary military operations. It will consider how the moral imperative of saving lives in peril at sea has been overtaken and codified by law, in particular the international law of the sea, and latterly by international human rights law. It will also explore how both moral and legal imperatives have coalesced to place an onus on both rescuers and states to ensure that those rescued are taken to a place of safety. While reflecting on the competing legal and moral issues involved in operations of this nature, this article will outline how relevant strands of international law were utilised in the military decision-making and planning process for the deployment of the Defence Forces in support of an international humanitarian rescue mission in the central Mediterranean. Finally, it will also reflect on some of the critical challenges encountered in this deployment, in particular the threat posed by a sophisticated migrant smuggling network and the need for more effective burden sharing in the reception and resettlement of migrants who have made the perilous journey across the Mediterranean. I.  THE ENVIRONMENTAL CONTEXT: FATAL JOURNEYS

Migration has become one of the defining global issues of the nascent twenty-first century. It is a constant and dynamic phenomenon that demands diversified policy intervention to maximise its potential benefits and minimise the related costs for migrants themselves and countries of destination and origin. In this context, the challenges inherent in protecting those travelling irregularly by sea,2 including refugees, asylum seekers, migrants and stateless persons are complex and increasingly ever more urgent. The Mediterranean migrant crisis has seen ever more desperate people risk death at sea by undertaking perilous journeys in unseaworthy and overcrowded vessels. They face this and other risks such as abuse, exploitation and violence due to the recurring causes of such maritime flight. Ongoing conflict, statelessness, poverty, protracted refugee situations and the failure or absence of protection systems continue to act as drivers for what has now become a global phenomenon. The Mediterranean Basin has always represented a traditional crossroads of cultures, societies and religions. However, the geopolitical landscape within the region has undergone considerable change within the last decade and population movements play an important role in such changes. The current security and political instability 2 Irregular movement by sea is commonly understood to refer to travel that includes unauthorised departure or arrival by sea. See United Nations High Commissioner for Refugees, Global Initiative on Protection at Sea, 1 May 2014, at 3, available at: www.unhcr.org/protection/migration/5375db0d9/ global-initiative-protection-sea.html.

Symposium—Burke 13 in Libya creates the conditions for smuggling networks to enjoy freedom of movement in parts of the country and makes it the main transit country for migrants seeking to get to Italy via perilous sea journeys. Politi succinctly describes Libya in mid-2016 as ‘consumed by political chaos as a government of national unity tries to establish itself amid the rise of Islamic State and a lingering civil war’.3 Part of Europe’s comprehensive response to the Mediterranean migrant crisis was to launch EUNAVFOR Med Operation SOPHIA on 22 June 2015.4 This is a military operation aimed at disrupting the business model of human smuggling and trafficking networks within the South Central Mediterranean. Through countering the smuggling of migrants, it is intended as part of the EU’s comprehensive approach to end the human tragedy that has been witnessed in the Mediterranean. Ireland is currently not a participant member of EUNAVFOR Med, focusing instead on the purely humanitarian aspects of migrant rescue at sea, while acting unilaterally but cooperating with regional search and rescue missions. Regional cooperation is essential to search and rescue and, in this respect, the UN High Commissioner for Refugees in the ‘Djibouti Summary Conclusions’ recognises the role that the region’s non-coastal states can play in reducing loss of life at sea and in establishing protection-sensitive responses to irregular mixed migration by sea.5 II.  THE LEGAL CONTEXT FOR DEFENCE FORCES INTERVENTION

In determining a legal basis for the deployment of Irish forces, it is important to note that the normally extant UN Security Council Resolution or EU Council Decision under Articles 42–44 of the Treaty on European Union (TEU) were not present at the time the decision to send a ship was made. This precluded reliance on section 2 of the Defence (Amendment) (No 2) Act 1960, which ordinarily forms the legal basis for the despatch of members of the Defence Forces for service outside the state. Instead, the focus was on section 3(1)(f) of the Defence (Amendment) Act 2006, which, ‘with the prior approval of and on the authority of the Government’, permits the despatch of members of the Defence Forces for service outside the state for humanitarian tasks ‘in response to an actual or potential disaster or emergency’. The scale of the humanitarian crisis created by the mass movement of migrants in the Mediterranean clearly fell well within the meaning of this provision. It is important to note that section 3 of the Defence (Amendment) Act 2006 limits engagement to purely humanitarian tasks such as search and rescue; there is no legal basis to engage in other tasks, for example, border control. This distinction was important because of the presence of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, which was later to be reconstituted as the European Border and Coast Guard

3 

J Politi, ‘Over 700 Migrants Feared Dead in One Week’ Irish Times (30 May 2016) 10. Council Decision 2015/778, 18 May 2015. 5 United Nations High Commissioner for Refugees, Refugees and Asylum Seekers in Distress at Sea—How Best to Respond? Summary Conclusions, 5 December 2011, available at: www.refworld.org/ docid/4ede0d392.html. 4 

14  The Irish Yearbook of International Law 2015 Agency (Frontex) mission in the Mediterranean.6 Ireland is not a party to Frontex and any participation by the Irish Defence Forces in the control of the borders of another jurisdiction would infringe upon Irish sovereignty and would accordingly be considered unconstitutional. The focus of section 3 of the Defence (Amendment) Act 2006 on members of the Defence Forces being despatched for the purpose of carrying out humanitarian tasks precludes any legal basis for command and control of the naval ship to be ceded to any other force or authority. Another issue for consideration was the status of Defence Forces naval ships engaged in humanitarian tasks such as search and rescue. It is accepted, but not widely known, that under international law, Defence Forces naval ships are legally classified as ‘warships’.7 This classification is important because warships have a unique status in international law. The international conventions that deal with search and rescue at sea permit merchant ships to disembark any persons rescued at sea at the nearest port which is considered a place of safety. However, warships differ from merchant ships in terms of access arrangements to ports, in that the standard diplomatic practice is that warships require consent to be allowed to enter ports other than those of their flag state. At the planning stage, it was accepted that it would be unfortunate and certainly awkward if, having completed search and rescue operations and embarked rescued persons, the Maltese or Italian authorities refused access to their ports to a Defence Forces warship to allow their disembarkation. This necessitated a MOU or note verbale with Italy to, inter alia, facilitate prior authorisation for the Irish warship to enter port should it rescue persons in international waters. The agreement had to decide upon the places of safety to which rescued persons could be brought and safely disembarked, clarify the necessary operational arrangements and authorise the entry to their ports by an Irish warship. Both Italy and Malta are parties to Frontex. The Schengen Member States and Frontex have an arrangement whereby Frontex coordinates centralised issues in relation to matters such as search and rescue, while the operations themselves are conducted by Member States in accordance with the relevant international law obligations. This would include, for instance, the 1974 Convention on the Safety of Life at Sea (SOLAS),8 the 1979 Convention on Maritime Search and Rescue (SAR)9 and the UN Convention on the Law of the Sea (UNCLOS).10 It would be lawful for Ireland to cooperate with

6  See Council Regulation (EC) No 2007/2004 of 20 October 2004, I 349/1 OJ (25 November 2004)— 2004 Frontex Regulation; subsequently amended by Regulation (EU) No 1168/2011—2011 Frontex Regulation. On 14 September 2016, this Agency was replaced by the European Border and Coast Guard Agency, though it has the same legal personality and the same abbreviated name of Frontex. See Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC [2016] OJ L 251, 16 September, 1. 7 1982 United Nations Convention on Law of the Sea, art 29 (1833 UNTS No 3) (hereinafter ‘UNCLOS’). 8  1184 UNTS No 278. 9  1405 UNTS No 23489. 10  1833 UNTS No 3.

Symposium—Burke 15 Italy in the operational aspects of search and rescue on a bilateral basis and to share information with Frontex via the Italian authorities in the humanitarian context of search and rescue, but not for it to engage in border control. III.  MORAL OBLIGATIONS AND THE LAW OF THE SEA

The moral obligation to engage in the search and rescue of those in peril at sea has been codified from ancient custom amongst mariners to ‘black letter law’. This duty to render assistance to any person found at sea in danger of being lost is now undoubtedly customary international law and is enshrined in Article 98 of UNCLOS.11 This provision obliges every state to require the master of a ship flying its flag to proceed with all possible speed to the rescue of persons in distress and to render assistance to any person found at sea in danger of being lost. While engaging in search and rescue appears straightforward, there are important yet subtle legal complexities involved with the disembarkation of those rescued. The disembarkation of rescued migrants was a key mission planning issue that encompassed not only obligations under the law of the sea, but also international human rights law and international refugee law. The principle of non-refoulement under the 1951 Geneva Convention dealing with the status of refugees became a key military planning concern.12 Decisions were required as to how to deal with a scenario whereby rescued persons could state to Irish Defence Forces personnel that they are seeking asylum and also the requirement for agreement by the Italian authorities that a Defence Forces warship with persons rescued would be permitted to enter their ports. The position on asylum applications on board a ship is unambiguous; it is not possible to process applications for asylum on board a ship. The United Nations High Commissioner for Refugees (UNHCR) has previously stated this position and it is also apparent in the decision of the European Court of Human Rights in the case of Hirsi Jamaa and Others v Italy.13 The Grand Chamber held that Italy was in violation of Article 3 of the European Convention on Human Rights concerning the prohibition of non-refoulement and also Article 4 of Protocol No 4 concerning the collective expulsion of aliens. The applications were submitted on behalf of Somalian and Eritrean migrants who had been intercepted on the high seas by the Italian authorities and then returned to Libya. From a military planning perspective, the judgment of the Grand Chamber did not hold that a warship was ‘territory’ for the purpose of an asylum application or that rescued persons should be dealt with by the rescuing flag state. This raises important jurisdictional issues. Undoubtedly

11  For a fuller overview of this duty, see A Campàs Velasco, ‘The International Convention on Maritime Search and Rescue: Legal Mechanisms of Responsibility Sharing and Cooperation in the Context of Sea Migration’, in this volume at 57–86. 12  The scope of the principle of non-refoulement is discussed at length in B Ni Ghráinne, ‘Left to Die at Sea: State Responsibility for the May 2015 Thai, Indonesian, and Malaysian Pushback Operations’, in this volume at 109–131. 13  Hirsi Jamaa and Others v Italy (App No 27765/09), Grand Chamber Judgment of 23 February 2012.

16  The Irish Yearbook of International Law 2015 Ireland has jurisdiction for all actions that occur on its warships, irrespective of their location in the world. Such jurisdiction is claimed by the state and therefore the state may decide the areas of activity that are brought within such claimed jurisdiction. This jurisdiction is required to regulate relations between states, so that any actions conducted by an Irish Defence Forces warship are effectively acts conducted by Ireland. However, it does not follow by extension that a Defence Forces warship is effectively part of Irish territory. The jurisdiction on an Irish warship is the jurisdiction that is specified by Ireland’s domestic law or by international law. Neither Irish domestic law nor international law requires a warship on the high seas to accept and assume responsibility for applications for international protection or asylum from persons that it has rescued. While asylum seekers are entitled under international law to apply for asylum under the 1951 Convention Relating to the Status of Refugees, there is no corresponding responsibility placed on states to grant such asylum. EU and European Convention on Human Rights (ECHR) law places a legal requirement on the Irish state to consider any received applications for asylum, as does Irish domestic legislation, which gives effect to the 1951 Convention.14 The pertinent issue—discussed further in the next section—was not therefore whether an application for asylum should be processed on board the warship; rather, it was the issue of where responsibility would lie where an application for asylum was made to Irish Defence Forces personnel on board an Irish warship. IV.  WHO GOES WHERE? APPLYING THE ‘DUBLIN REGULATION’

If rescue were to be conducted within Maltese or Italian territorial waters, then any application for asylum made by rescued persons would be the responsibility of either Malta or Italy. This is based on the legal interpretation of the revised ‘Dublin Regulation’, which holds that where entry to a state is not conducted lawfully, for example, without the requisite visa, then the first Member State at which such person seeking international protection arrives is obliged to deal with the application.15 Following incidents in the 1980s when merchant ships were denied access to ports with rescued Vietnamese ‘boat people’ seeking asylum, and brought to a head by the incident off the Australian coast involving the Norwegian flagged MV Tampa,16 the SOLAS and SAR Conventions were amended in May 2004. The effect of these amendments is that the Maritime Safety Committee of the International Maritime Organisation (IMO) now requires the state responsible for the search and rescue region in which the rescue occurred to take primary responsibility for ensuring that

14  See Refugee Act 1996 (No 17 of 1996) repealed by the International Protection Act 2015 (No 66 of 2015); the EU Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and European Communities (Eligibility for Protection) Regulations 2006, SI 518/2006. 15  Council Regulation (EU) No. 604/2013 of the European Parliament and of the European Council of 26 June 2013. 16 CM Bostock ‘The International Legal Obligation Owed to Asylum Seekers on the MV Tampa’ (2002) 14 International Journal of Refugee Law 279.

Symposium—Burke 17 coordination and cooperation occurs so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety and that such disembarkation should be effected as soon as possible.17 Assistance shall be provided regardless of the nationality or status of such a person or the circumstances in which that person is found.18 It would be a matter for the Italian authorities to determine places of safety within their search and rescue zone. A place of safety is defined as a location where rescue operations are considered to terminate, ‘where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter, medical needs) can be met’ and ‘from which arrangements can be made for the survivors’ next or final destination’.19 Once the place of safety issue was determined, advice was needed for Commanding Officers on how to deal with any asylum applications made by rescued persons on board the ship. Taking UNHCR advice, the Hirsi ruling and the Dublin Regulations together—as discussed above—Irish Naval Service Commanding Officers were briefed that they could not accept and assume responsibility for applications for international protection or asylum from rescued persons. Instead, any persons making such an application were to be informed that it would not be possible to process their application on board the ship en route to the designated place of safety, but that such an application could be made once disembarked in Italy. V.  ‘ENGINEERED SEARCH AND RESCUE’: THE LAW OF THE SEA UTILISED BY SMUGGLERS

The social and economic disparity faced by developing nations provides a strong incentive for irregular migrants to seek entry, whether legally or otherwise, into industrialised nations. Ongoing conflicts and destabilisation adds to these already immense pressures, and the huge profits generated from smuggling operations provides a strong incentive for smugglers to continue to provide their service. Migrants will continue to make perilous journeys, either as a way of safety for persons in fear of their lives or as a gateway for others in search of a better life.20 Those encountered in search and rescue operations may constitute irregular migrants, victims of human trafficking or refugees—and in their midst there may also be smugglers and other criminals. While those migrants traversing the Mediterranean over the last few years come from many different nationalities and could be qualified under many legal categories, the universal theme has been the overcrowded and unseaworthy nature of the vessels in which they are transported.

17  Regulation 33 of SOLAS and IMO Guidelines on the Treatment of Persons Rescued at Sea. See further the discussion in the contribution by Velasco (n 11). 18  IMO, UNHCR and International Chamber of Shipping, Rescue at Sea, A Guide to Principles and Practice as Applied to Refugees and Migrants (2015), at 7, available at: www.imo.org/en/MediaCentre/ HotTopics/seamigration/Documents/UNHCR-Rescue_at_Sea-Guide-ENG-screen.pdf. 19 International Maritime Organization, ‘Guidelines on the Treatment of Persons Rescued at Sea’, Annex to Resolution MSC.167(78) (adopted on 20 May 2004), para 6.12. 20  United Nations Office on Drugs and Crime, ‘Combating Transnational Organized Crime at Sea’, Issue Paper, Vienna, 2013, 17.

18  The Irish Yearbook of International Law 2015 It quickly became evident that those involved in smuggling these migrants were aware of the duty placed on states and mariners to assist persons in distress at sea. This duty to assist persons in distress at sea is, as discussed above, a long-established rule of customary international law, but it is important to stress that it extends to other vessels and coastal states in the vicinity of the distress. UNCLOS prescribes the relevant duties for both flag and coastal states, requiring the master of a ship to proceed with all possible speed to the rescue of persons in distress and for the relevant adjacent coastal states to coordinate the rescue.21 As also described at length in the contribution by Velasco, a distress phase is described in the SAR Convention as a situation where there is reasonable certainty that a person or vessel is threatened by grave and imminent danger requiring immediate assistance.22 Relying on this moral and legal obligation placed on mariners and states, the migrant smugglers proceeded to create a model whereby they deliberately engineered a search and rescue situation at sea. Deliberately placing migrants in overcrowded and unseaworthy vessels without a professional crew, the smugglers transported their charges to the limits of the landward side of the Libyan Territorial Sea, that is, inside 12 nautical miles, before cutting them adrift into international waters. This permitted the smugglers to avoid interception by warships operating on the high seas through deliberately remaining inside the territorial waters of Libya. Entry into Libyan territorial waters was expressly forbidden without the consent of the Libyan government or the authorisation of a resolution of the UN Security Council. While Article 110 of UNCLOS codifies the customary right of a warship to approach and visit on the high seas, it is evident from the Convention that neither migrant smuggling nor human trafficking is contemplated as specific grounds for the right to visit a foreign vessel. Where the vessel used to transport migrants is unregistered or without a flag or name, ie, a stateless vessel, then it can be assimilated to be a vessel without nationality and intercepted. This was the reality faced by warships tasked with intercepting migrants on the high seas. They were not dealing with search and rescue in the classical sense, where a vessel unexpectedly gets into distress and lives become in peril of being lost. Rather, they were focused on the interception of migrants who were deliberately put to sea by unscrupulous smugglers in overcrowded and unseaworthy vessels, creating, in effect, an ‘engineered search and rescue’. The smugglers use pre-programmed mobile phones to have the migrants unwittingly contact the Italian Marine Rescue Coordination Centre (MRCC) in Rome and use a set of pre-listed phrases to claim that they are in distress in order to then initiate a search and rescue mission. The normal procedure is for this call to originate while the migrant boats were in the allocated Libyan search and rescue zone. The Italian MRCC contacts its Libyan counterparts and invariably receives no response, which then triggers the Italian authorities to assume responsibility. Footage of migrant rescue operations at sea have erroneously portrayed the operations as occurring close to the Italian coastline, when the reality is that they are far closer to the Libyan coast. This creates a misperception in the

21  22 

UNCLOS art 98. SAR Convention (n 9) Annex, para 1.3.13. See also Velasco (n 11).

Symposium—Burke 19 public’s mind that such search and rescue can be easily conducted, when the reality is dramatically different. Search and rescue operations are clearly distinct from border control or countersmuggling operations, although operations with different mandates may be present in the same operational area. The commonality between these differing missions remains that of assisting those in distress at sea, in addition to the obligations created by international human rights and refugee law. VI.  TRANSNATIONAL ORGANISED CRIME: MIGRANT SMUGGLING

Migrant smuggling and people trafficking have become an expanding global problem that affects a complex matrix of countries of origin, transit and destination. There does not have to be an element of coercion or exploitation present for smuggling to exist, and the smuggling of migrants by organised criminal groups presents one of the most critical challenges faced by the international community.23 It is evident that migrant smuggling is taking place in the South Central Mediterranean. The illegal movement of persons by sea may broadly occur under three different headings; the slave trade, trafficking in humans and migrant smuggling.24 Migrant smuggling involves procuring a person’s entry into a state of which they are not a national or permanent resident through crossing borders, without complying with national migration law and doing so for financial benefit, and also establishes as aggravating circumstances either endangering the lives or safety of migrants or their inhuman or degrading treatment, including exploitation.25 The act of carrying migrants on the high seas is not per se an international crime and it is important to remember that illegal migration as such is also not a crime under international law. However, there are specific international criminal law conventions dealing with the phenomenon of trafficking of human beings and the smuggling of migrants. For jurisdictional purposes, the Protocols to the United Nations Convention against Transnational Organized Crime (UNTOC) deal with migrant smuggling and human trafficking. The Protocol against the Smuggling of Migrants by Land, Sea and Air permits maritime interdiction.26 The conduct of migrant smuggling is criminalised by the Protocol, but this only extends to the states that are party to this instrument. Nonetheless, this is arguably the most important multilateral treaty providing for the right to visit on the high seas for counter-migration purposes and is based on forming a reasonable suspicion that the vessel of interest is engaged in the smuggling of migrants by sea. However, there is no universal jurisdiction, so

23 

J Kraska and R Pedrozo, International Maritime Security Law (Leiden, Nijhoff, 2013) 689. D Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge, Cambridge University Press, 2009) 184. 25  Articles 3 and 6 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the Convention against Transnational Organised Crime (2000) (hereinafter ‘Migrant Smuggling Protocol’), available at: www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/ TOCebook-e.pdf. 26  ibid art 8. 24 

20  The Irish Yearbook of International Law 2015 in order for states to exercise jurisdiction—essentially to board and search vessels suspected of smuggling migrants—the consent of the registered flag state is required. This closely mirrors the provisions of Article 17 of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.27 Boarding of a vessel that is suspected of being stateless may take place with the interdicting state party being permitted to take appropriate measures in accordance with relevant domestic and international law. Maritime smuggling is undoubtedly profitable; smugglers can move large numbers of people at lower cost without requiring forged documents or bribes for border officials. While the EU grapples with how to lawfully disrupt the ‘smugglers’ business model’, there is a recurring tension between coastal states’ rights and obligations. The humanitarian obligations to conduct search and rescue at sea and the Refugee Convention obligations impact on the European coastal states’ rights to engage in actions to prevent irregular migration. Maritime interdiction of irregular migrants at sea without providing some form of refugee screening process is not in compliance with the state’s obligations under the 1951 Refugee Convention. Disrupting the business model of smugglers involves an undoubtedly complex legal balancing act; nonetheless, complexity should not be the reason to avoid engaging with the task at hand. VII.  LAW OF THE SEA ‘CATCH 22’

When considering the mass movement of persons in relation to obligations under the law of the sea and international human rights law, the need for protection emerges as a key common duty. States that are party to the 1951 Refugee Convention accept that those who leave their country of origin for fear of persecution are entitled to special protection. The ECtHR accepts that asylum seekers are a particularly underprivileged and vulnerable population group in need of special protection. A state that is minded to take action against smugglers and trafficking has duties towards the victims. A state that intercepts a boat that it reasonably believes to be carrying irregular migrants has protection obligations in relation to those over whom it exercises authority and control, irrespective of the legality or otherwise of the interception. However, the question as to which EU Member State should be responsible for saving migrants at sea and the place of safety at which they should be disembarked has sparked intense debate focusing on the context of Europe’s sea borders. The crux of the debate is centered on reconciling Europe’s humanitarian aspirations with the largely unexpressed fear of having to carry the migrant burden. The Mediterranean migrant crisis has brought two key principles of international law into stark relief: the duty of mariners and coastal states to render assistance to those in peril at sea and the right of sovereign nations to control entry of non-nationals into their territory. Writing about the dilemma faced in the 1970s by shipmasters rescuing

27  UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1989) 28 ILM 497; incorporated into Irish domestic legislation by the 1994 Criminal Justice Act.

Symposium—Burke 21 Vietnamese ‘boat people’, Pugash described their plight as the ‘Catch 22 of the Law of the Sea’: ‘The shipmaster of a freighter in international waters off Indochina is obligated to rescue Vietnamese sea refuges but no nation is bound to take the refugees once they have been rescued.’28 The subsequent interventions of the UNHCR, the IMO and the EU have largely mitigated this unenviable situation, but there have been numerous recent incidents of vessels with rescued migrants being denied entry to European coastal state’s ports.29 CONCLUSION: EMBRACING RESPONSIBILITY AS GLOBAL CITIZENS

The scale of the humanitarian crisis created by the mass movement of migrants in the South Central Mediterranean in the summer of 2015 prompted an unprecedented emergency response from EU Member States. Ireland was one of the first states to respond with the despatch of a Defence Forces naval ship to assist in the humanitarian mission. The subsequent involvement in the search of rescue of migrants in the Mediterranean captured the Irish public’s imagination and once again demonstrated the multifaceted capabilities that the Defence Forces offer as an instrument of Ireland’s foreign policy. The deployment to the Mediterranean displayed Ireland’s capability and willingness to engage with the international community in undertaking humanitarian tasks in response to an actual or potential disaster or emergency. President Higgins succinctly acknowledged Ireland’s role and involvement by stating that ‘Irish people in making such a response are embracing their responsibilities as global citizens’.30 This article has demonstrated that engaging in international humanitarian rescue missions is complex, with the overlapping legal tapestry of international law of the sea, international criminal law, international human rights law and national law, as well as the changing legal context of migration governance in the Mediterranean, all influencing operational planning decisions. Added to this complexity was the presence of other EU-mandated and non-governmental organisation (NGO)-led missions operating separately in the same region where search and rescue operations were to be conducted. A comprehensive EU-led approach coordinating those agents currently acting separately, including Ireland, would lead to a more efficient response. For mariners, the fact that the mission was not search and rescue in the classical sense, being instead focused more on interception of migrants in unseaworthy vessels, meant facing up to a new complexity in what I have termed ‘engineered search and rescue’. The conduct of search and rescue on the high seas brought its own complexities with the myriad international law norms to be considered both by Defence Forces’ planning staff prior to despatching an Irish warship and also by

28  JZ Pugash ‘The Dilemma of the Sea Refugee: Rescue without Refuge’ (1977) 18 Harvard International Law Journal 577, 578. 29 See, eg, T Spijkerboer ‘The Human Costs of Border Control’ (2007) 9 European Journal of Migration and Law 127. 30  Higgins (n 1).

22  The Irish Yearbook of International Law 2015 those subsequently deployed. The impact of international human rights law has now reached into the legal framework that is the law of the sea and it is evident that the law of the sea does not fully constitute the appropriate framework on its own to deal with the migrant crisis. Nonetheless, the practicalities that the law of the sea offers in search and rescue at sea, as well as the framework nature of UNCLOS itself, leaves open the complimentary role that international human rights law offers to protect those in distress. It is clear that the crisis cannot be tackled solely from the sea, but until a comprehensive plan is formulated, the emergency response capability must remain in place. The obligation to render assistance to those in peril or lost at sea is one of the oldest and most deeply rooted maritime traditions, and for centuries seafarers have considered it their duty to assist fellow mariners in distress on the high seas. The deployment of the Defence Forces to humanitarian operations in the Mediterranean has to date directly resulted in over 15,000 people being saved from drowning at sea and represents another chapter in the annals of an organisation that continues to proudly serve Ireland’s interests at home and overseas.

Human Rights Adrift? Enabling the Disembarkation of Migrants to a Place of Safety in the Mediterranean KRISTOF GOMBEER*

E

UROPE IS IN the throes of a refugee emergency. To many it will conjure up the image of Alan Kurdî, the Syrian three-year-old whose little body washed to shore in Turkey on 2 September 2015. It is only one of the many human tragedies that take place amidst large flows of migrants1 trying to reach Europe by sea. An important challenge in this context concerns the safe and swift disembarkation of rescued and intercepted migrants to a place of safety. Failures to do so are a manifestation of coastal states being unable or unwilling to receive migrants on to their territory. Even though the 1974 Convention on the Safety of Life as Sea (hereinafter the SOLAS Convention)2 and the 1979 International Convention on Maritime Search and Rescue (hereinafter the SAR Convention)3 were amended in 2004 with a view to remedying this failure, disembarkation remains an unresolved issue. Moreover, commercial vessels are increasingly unwilling to pick up migrants precisely because there is no clear guidance on where to disembark, which for them leads to financial loss, security risks and the danger of being prosecuted for smuggling activities. This article scrutinises the legal obligations of EU Member States regarding the disembarkation to a place of safety of migrants at sea—directly or indirectly through assisting vessels. It makes the normative claim that specific regional obligations in terms of disembarkation arise based on European asylum and human rights law beyond the ambit of the international Law of the Sea (LoS). It also questions the compatibility of the current EU border control and asylum acquis with the parameters set out in this normative claim. It concludes that EU law needs reform in which

*  Fellow, Research Foundation Flanders (FWO); PhD candidate at the Vrije Universiteit Brussel and Leiden University. The author would like to thank Dr Richard Collins and the anonymous reviewers for their feedback and guidance. Any shortcomings remain the author’s own. All websites accessed on 1 December 2016 unless otherwise stated. 1  The author uses the term ‘migrants’ throughout this article to cover both irregular/undocumented migrants, asylum seekers and refugees. The different terms may be used explicitly in specific contexts. 2  International Convention for the Safety of Life at Sea of 1 November 1974 (entry into force 25 May 1980), Vol 1184 UNTS, 278. 3  International Convention on Maritime Search and Rescue of 27 April 1979 (entry into force 22 June 1985), Vol 1405 UNTS, 119.

24  The Irish Yearbook of International Law 2015 access, procedural guarantees and burden sharing are key, a task that needs to be taken up in light of the current reform of the Common European Asylum System (CEAS).4 Section I sketches the empirical background to the disembarkation problem. Section II briefly discusses the disembarkation obligations of states under the SOLAS and SAR Conventions to illustrate that there exists no residual rule under the LoS that determines a state to be ultimately responsible for allowing the disembarkation of migrants.5 Section III analyses how European human rights law supplements the LoS duty to disembark onto safe territory. Section IV discusses the effect on disembarkation of the right to asylum under the EU Charter of Fundamental Rights. It depicts the role of the EU border control and asylum acquis within this regime complexity, which is found to be ambiguous and arguably detrimental to the human rights of migrants at sea as it stands. Section V concludes by arguing for the need to factor in human rights and asylum law for disembarkation, and suggests a few elements of burden sharing to incentivise EU Member States to accept disembarkations on to their territory. I.  MIGRANTS AT SEA AND THE PROBLEM OF DISEMBARKATION

A significant amount of irregular migration towards EU territory takes place over sea.6 Encounters with migrants at sea often occur through extraterritorial border control and search and rescue activities of EU Member States or with the assistance of merchant vessels. It is often unclear where these migrants should be disembarked, leading to delays and diplomatic standoffs. This not only has a detrimental effect of the humanitarian conditions of those retrieved at sea—it also negatively impacts the willingness of private vessels to rescue migrants at sea, especially when unauthorised disembarkations are criminalised on account of smuggling.7 Three main actors engage with migrants at sea: EU Member States individually, states operating jointly (eg, with the assistance of Frontex,8 under the EU Common 4  European Commission, Communication from the Commission to the European Parliament and the Council: Towards a Reform of the Common European Asylum System and Enhancing Legal Avenues to Europe, Brussels, 6 April 2016, COM (2016) 197 final, available at: http://europa.eu/rapid/press-release_ IP-16-1246_en.htm; European Commission, ‘Completing the Reform of the Common European Asylum System: Towards an Efficient, Fair and Humane Asylum Policy’, press release, 13 July 2016, available at: http://europa.eu/rapid/press-release_IP-16-2433_en.htm. 5  For a more detailed discussion of the role of the SAR Convention in the context of sea migration, see A Campàs Velasco, ‘The International Convention on Maritime Search and Rescue: Legal Mechanisms of Responsibility Sharing and Cooperation in the Context of Sea Migration’, in this volume at 57–86. 6  Between 2008 and 2013, an average of 46,194 persons arrived in Europe by sea per year. The year 2014 saw a steep increase of maritime arrivals, with 216,054 persons who made it to European shore that year. This number soared in 2015 to 1,015,078 sea arrivals. About 352,375 arrived in 2016. For data on sea arrivals and casualties in the Mediterranean, see http://data.unhcr.org/mediterranean/regional.php. 7  T Basaran, ‘The Saved and the Drowned: Governing Indifference in the Name of Security’ (2015) 46 Security Dialogue 6. 8  The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. It is transformed into the ‘European Border and Coast Guard Agency’ in a new Regulation that was formally approved by the Council on 13 September 2016. See: www.consilium.europa.eu/en/press/press-releases/2016/09/14-european-border-coast-guard.

Symposium—Gombeer 25 Security and Defence Policy (CSDP), or in the framework of the North Atlantic Treaty Organization (NATO)) and merchant vessels. Concerted efforts—mainly to disrupt smuggling routes, but also ‘to save lives at sea’—have been in practice for a decade now, with the first missions focusing on assisting Spain (Operation Hera)9 and Malta (Operation Nautilius).10 More recent important operations assisted by Frontex are Operation Triton in Italy and Operation Poseidon Sea in Greece, with respective budgets of €38 million and €18 million for 2015 and an additional €45 for 2016.11 The EU also established the military mission EUNAVFOR MED (‘Sophia’) to combat human smuggling and trafficking in the Mediterranean. It has been fully operational since July 201512 and by September 2015, it had participated in nine rescue activities, saving over 1,400 lives at sea.13 Since February 2016, NATO’s Standing NATO Maritime Group 2 started intelligence, surveillance and reconnaissance activities in the Aegean Sea to inform Greece, Turkey and Frontex on maritime migratory movements.14 However, neither search and rescue practices nor maritime border control are devoid of problems.15 Two related types of incidents occur: the lack of rescue16 and the lack or delay of disembarkation of those rescued (or intercepted) to a place of safety. While the first type of issue is not the focus here as such, rescue incidents are often the result of a negative incentive structure created by the absence of clear rules and practical options for swift disembarkation. Enabling disembarkation is therefore pivotal for the protection of migrants at sea. Although the precise frequency of disembarkation incidents is not well known, some have been documented. A first range of examples involves incidents with state vessels. The deployment of Frontex’s Operation Nautilius was suspended at some point due to disagreements 9  This joint operation was requested by Spain and started in July 2006. Migrants intercepted mainly came from Liberia, Mauretania, Senegal and Guinea via the coasts of Senegal and Mauretania. See A Baldaccini, ‘Extraterritorial Border Controls in the EU: The Role of Frontex in Operations at Sea’ in B Ryan and V Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges (Leiden, Nijhoff, 2010) 239–40. 10  This joint operation was requested by Malta and started in October 2006. Migrants intercepted mainly came from Nigeria, Eritrea, Somalia, Tunisia, Bangladesh and Ghana. See ibid 240. 11  During the summer of 2015, Operation Triton deployed three airplanes, six Offshore Patrol Vessels, 12 patrol boats, two helicopters, nine debriefing and six screening teams. See Frontex, ‘Frontex Expands its Joint Operation Triton’, Frontex News Feed, 26 May 2015, available at: http://frontex.europa.eu/ news/frontex-expands-its-joint-operation-triton-udpbHP. 12  Using four naval units (the Italian flagship Cavour, two German ships and one from the UK) and five air assets (two planes belonging to France and Luxembourg respectively, and three helicopters, one British and two Italian). European External Action Service (2015), ‘EUNAVFOR MED FORCE fully operational’, press release, 28 July 2015, available at: www.eeas.europa.eu/csdp/missions-and-operations/ eunavfor-med/press-releases/20150728_en.htm. 13  European External Action Service (2015), ‘International Organization for Migration (IOM) Visits the EU Operation Headquarters’, press release, 1 September 2015, available at: www.eeas.europa.eu/ csdp/missions-and-operations/eunavfor-med/news/20150901_en.htm. 14  NATO, ‘Assistance for the Refugee and Migrant Crisis in Europe’, 24 March 2016, available at: www.nato.int/cps/en/natohq/topics_128746.htm#. 15  For an overview of incidents, see FRA, Fundamental Rights at Europe’s Southern Sea Borders, 2013, European Union Agency for Fundamental Rights, 29–31. 16  Basaran (n 7) 1–2 (and references included therein); and Baldaccini (n 9) 244. For more testimonies, see Human Rights Watch (2009), Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers, Report, 21 September 2009, 41–46.

26  The Irish Yearbook of International Law 2015 amongst the participating states over the responsibility for the migrants saved at sea.17 Under the previous rules of engagement, it was agreed among the participating states that those rescued in the Search and Rescue Region (SRR) of Malta would be taken to the closest port, while those rescued in the SRRs of third countries would be taken to the ports of the other participating EU Member States. According to the Times of Malta, France and Germany wanted to rethink these rules of engagement by disembarking all migrants in Malta or in Lampedusa and no longer onto their own territory.18 Another case in point is the incident involving the Marine I in 2007. After Spanish coast guards had rescued 300 migrants in the SRR of Senegal, it took two weeks of negotiations from the time of the distress call to disembark the migrants in Mauritania, which had the closest port of call.19 In 2011, more than 100 migrants rescued at sea were stuck on a Spanish NATO vessel for several days as Malta, Italy and Spain disagreed as to where to disembark them. Eventually, the migrants were disembarked in Tunisia and taken to the Dehiba refugee camp.20 Standoffs and delays also occur when merchant vessels—both larger vessels and small fishing boats—are involved in rescue situations.21 For example, incidents occurred involving the MV Clementine Maersk in 2005, the MV MS Noordam in 2006 and the Francisco y Catalina in 2007.22 Another disembarkation incident occurred in 2009, when the MV Pinar E, a Turkish cargo ship, rescued 154 persons at sea. Italy (whose port of Lampedusa was the closest) and Malta (in whose SRR the migrants were picked up) disagreed on where to allow disembarkation. Spending more than four days in substandard conditions, the migrants concerned were eventually allowed to transfer to an Italian patrol boat to disembark subsequently in Italy. The standoff only came to an end after the President of the European

17 Baldaccini (n 9) 240 and 250. See more recent reports on targeted violence by the Greek coast guard: Médecins Sans Frontières, Obstacle Course to Europe: A Policy-Made Humanitarian Crisis at EU Borders, Brussels, December 2015, 22–23. 18  I Camilleri, ‘EU Patrols on Hold as States Grapple over Destination of Rescued Illegal Immigrants’, Times of Malta (27 April 2008), available at: www.timesofmalta.com/articles/view/20080427/local/ eu-patrols-on-hold-as-states-grapple-over-destination-of-rescued.205788. 19 J Coppens and E Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 International Journal of Marine and Coastal Law 379. 20  FRA (n 15) 51. 21 UNHCR, Background Paper to the High Commissioner’s Dialogue on Protection Challenges: Protection at Sea, District General, 11 November 2014, 3, §13. The contribution of private vessels to search and rescue is significant. However, issues arise in terms of finding points of disembarkation after rescue. See, eg, Frontex, Annual Risk Analysis 2015, Warsaw, April 2015, 19; European Parliament, Draft Opinion of the Committee on Transport and Tourism on the Situation in the Mediterranean and the Need for a Holistic EU Approach to Migration, 2015/2095 (INI), 20 July 2015, 3; L Maloney and C Paris, ‘Europe’s Cargo Ships Diverted to Sea Rescues’, Wall Street Journal (26 March 2015), available at: www.wsj.com/ articles/boat-people-trying-to-reach-europe-disrupt-mediterranean-mercantile-shipping-1427399702; International Chamber of Shipping, ‘Rescue at Sea—The Mediterranean Crisis’, Key Issues (2015), available at: www.ics-shipping.org/key-issues/all-key-issues-(full-list)/rescue-at-sea---the-mediterranean-crisis. 22  A Klug, ‘Strengthening the Protection of Migrants and Refugees in Distress at Sea through International Cooperation and Burden-Sharing’ (2014) 26 International Journal of Refugee Law 51, fn 17. Also well known and spurring a lot of debate is the incident involving the M/V Tampa off the coast of the Australian Christmas Island in 2001, where permission to disembark was denied by Australia. The migrants were eventually disembarked in Nauru.

Symposium—Gombeer 27 Commission intervened diplomatically.23 Perhaps better known are incidents with smaller fishing vessels rescuing migrants at sea and subsequently being denied access to local ports in Italy and Malta. In 2008, for instance, two Tunisian fishing vessels (the Fakhreddine Morthada and the Mohammed el-Hedi) had rescued migrants at sea and disembarked them to Lampedusa, despite the refusal of the Italian authorities to grant permission to do so. Seven crew members were put on trial for smuggling as a result, but were acquitted on appeal.24 In 2007, a Maltese fishing boat, the Budafel, had migrants clinging on to its tuna pens for three days until they were picked up by the Italian coast guard. The captain of the Budafel was unwilling to divert his vessel to disembark the migrants because of the potential loss of the tuna catch.25 Sometimes, private vessels have as their main purpose to rescue migrants at sea. After having carried out a rescue of migrants, the Cap Anamur was refused permission to disembark at the Sicilian Porto Empedocle. It did so nonetheless after waiting 12 days. The crew of the Cap Anamur were put on trial in Italy.26 II.  THE DUTY OF DISEMBARKATION UNDER THE LoS

Disembarkation forms an integral part of search and rescue at sea, which is regulated under three important treaties: the 1982 United Nations Convention on the Law of the Sea (hereinafter UNCLOS),27 the 1974 SOLAS Convention and the 1979 SAR Convention.28 As noted in the introduction, the SOLAS and SAR Conventions were amended in 2004 to ensure that those rescued would be delivered to a place of safety. A.  A Place of Safety (‘What?’) The 2004 amendments create a legal obligation to disembark those rescued at sea to a place of safety, but do not define this notion. The 2004 Guidelines on the Treatment of Persons Rescued at Sea adopted by the International Maritime Organization (IMO)’s Maritime Safety Committee29 describe a place of safety as: A location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as

23  R Barnes, ‘The International Law of the Sea and Migration Control’ in Ryan and Mitsilegas (n 9) 142. 24  Basaran (n 7) 7. 25  Coppens and Somers (n 19) 380. 26 Basaran (n 7) 7. The crew was eventually acquitted on human trafficking charges by an Italian court in August 2009. D Lindsey, ‘Italy’s Refugee Policies Should Be Put on Trial’, Der Spiegel (10 August 2009), available at: www.spiegel.de/international/germany/the-world-from-berlin-italy-srefugee-policies-should-be-put-on-trial-a-653989.html. 27 United Nations Convention on the Law of the Sea of 10 December 1982 (entry into force 16 November 1994), Vol 1833 UNTS, 397. 28  For a detailed discussion on the search and rescue steps preceding disembarkation in the context of maritime migration, see sections II and III of Campàs Velasco (n 5). 29  The Maritime Safety Committee is a subsidiary body of the IMO Council. All Member States are represented on it and it is the IMO’s highest technical body.

28  The Irish Yearbook of International Law 2015 food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination.30

The IMO Guidelines further suggest that disembarkation needs to be avoided in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened in case those retrieved at sea are asylum seekers and refugees.31 The Parliamentary Assembly of the Council of Europe has argued that a place of safety should not only refer to the physical protection of people, but should also entail the respect for their fundamental rights.32 The better view is not to read this fundamental rights precision of the place of safety notion into the LoS, but rather to conceive them as two distinct but complementary obligations.33 Indeed, the duty to disembark to a place of safety holds for both states and private vessels, while obligations of refugee law and international human rights law (IHRL) only bind states.34 The IMO Guidelines themselves corroborate the idea that human rights protection forms a distinct subject matter, indicating that if other non-SAR matters such as dealing with migrants or asylum seekers need to be resolved, this can be done once the survivors have been delivered to a place of safety.35 Similarly, the 2009 IMO Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea stress that operations and procedures such as screening and status assessment that go beyond assistance are to be carried out after disembarkation to a place of safety.36 B.  Venue of Disembarkation (‘Where?’) It does not transpire from the LoS that a place of safety requires the disembarkation on land. The IMO Guidelines allow the place of safety to be on a ship. As long as a vessel has the appropriate facilities and equipment to sustain additional persons on board without endangering its own safety or to care properly for survivors, a vessel can be considered a place of safety until the survivors are disembarked to their next destination.37 Nonetheless, paragraph 6.13 of the IMO Guidelines suggests that those ships should be relieved of that responsibility as soon as alternative arrangements can be made. Eventually, the migrants rescued will have to be disembarked somewhere on land. Some argue that there exists a right of access for vessels to

30 IMO, Guidelines on the Treatment of Persons Rescued at Sea, Resolution MSC.167 (78), 20 May 2004 (IMO Guidelines), para 6.12. See also Campàs Velasco (n 5) 74–76. 31  IMO Guidelines (n 30) para 6.17. See also UNHCR (n 21) 4, §17. 32 COE Parliamentary Assembly, The Interception and Rescue at Sea of Asylum Seekers, Refugees and Irregular Migrants, Resolution 1821/2011, 22nd Sitting, 21 June 2011, §5.2. The EU has actually adopted a definition of a place of safety in this sense in art 2, §12 of Regulation 656/2014 on Frontexassisted external border surveillance at sea. See further below, section IV.E. 33  See also E Papastavridis, ‘Rescuing Migrants at Sea: The Responsibility of States under International Law’ (2011) 4–5, available at: https://ssrn.com/abstract=1934352. 34  M den Heijer, Europe and Extraterritorial Asylum (Oxford, Hart Publishing, 2012) 236. 35  IMO Guidelines (n 30) paragraph 6.19. 36  IMO Facilitation Committee, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, FAL.3/Circ.194, 22 January 2009 (IMO Principles), para 2. 37  IMO Guidelines (n 30) para 6.14.

Symposium—Gombeer 29 ports to seek refuge because of force majeure, but this customary rule is not clearly established, and nor are its parameters in cases involving migrants.38 Even after the 2004 amendments, there still does not exist a residual rule under the LoS pointing out a responsible state for allowing the eventual disembarkation on land. Instead, an open-ended rule was adopted: The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon a reasonably practicable.39

The 2004 amendment to the SAR Convention also adds a new paragraph 4.8.5, obliging the responsible rescue coordination (sub)centre to ‘initiate the process of identifying the most appropriate place(s) for disembarking persons found in distress at sea’ and to ‘inform the ship or ships and other relevant parties concerned thereof’.40 Most states have accepted the 2004 amendments, such as Italy, while others like Malta have objected to it. Italy interprets it as requiring the SRR state in which the rescue takes place to allow disembarkation on its territory.41 Malta ‘advocates a “next port of call rule”, mandating disembarkation at the nearest safe port to the site of the rescue, which in the Maltese SAR area [sic] is often a port in Italy’.42 Other coastal states have also taken a reticent stance on the duty to accept disembarkation. For instance, Australia has ‘made clear [its] rejection of any legal entitlement to disembark rescued persons at a particular port of a State without the consent of that State’.43 This was also affirmed in Ruddock v Vadarlis by the Federal Court of Australia in 2001, which held that ‘international law imposes no obligation upon the coastal state to resettle those rescued in the coastal state’s territory’.44

38  AT Gallagher and F David, The International Law of Migrant Smuggling (Cambridge, Cambridge University Press, 2012) 460; R Barnes, ‘Refugee Law at Sea’ (2004) 53 ICLQ 51–52; M Crock, ‘In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ (2003) 12 Pacific Rim Law & Policy Journal 55; Contra: B Ni Ghráinne, ‘Left to Die at Sea: State Responsibility for the May 2015 Thai, Indonesian, and Malaysian Pushback Operations’, in this volume at p 109, referring inter alia to the doctrinal work of Van Dyke, Tanaka and Noyes, which affirm such a customary norm. 39  IMO, Resolution MSC.153(78), adopted on 20 May 2004, Annex: Amendments to the International Convention for the Safety of Life at Sea, 1974, §4; IMO, Resolution MSC.155(78), adopted on 20 May 2004, Annex: Amendments to the International Convention on Maritime Search and Rescue, 1979 (hereinafter SAR amendment), §3. 40  ibid §4. Moreover, at §2: ‘[Each Party should authorise its rescue coordination centres] to make the necessary arrangements in co-operation with other RCCs to identify the most appropriate place(s) for disembarking persons found in distress at sea.’ 41  P Mallia, ‘The MV Salamis and the State of Disembarkation at International Law: The Undefinable Goal’ (2014) 18(11) ASIL Insights, available at: https://www.asil.org/insights/volume/18/issue/11/ mv-salamis-and-state-disembarkation-international-law-undefinable-goal. 42 ibid. 43  Gallagher and David (n 38) 461. 44  Federal Court of Australia, Ruddock v Vadarlis, Judgment, 18 September 2001 [2001, FCA 1329], §126.

30  The Irish Yearbook of International Law 2015 To find a solution for the lasting disembarkation conundrum, the IMO has been in the process of adopting non-binding principles.45 In 2009, the IMO Facilitation Committee46 adopted a Circular, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea.47 These principles state that: [I]f disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area [sic] should accept the disembarkation of the persons rescued in accordance with immigration laws and regulations of each Member State into a place of safety under its control in which the persons rescued can have timely access to post rescue support. (Emphasis added)48

The advantage of this formulation is that in the event that no venue for disembarkation can be arranged, the SRR state will have to allow disembarkation. This provides legal certainty for merchant vessels and enhances the conditions for those rescued.49 These IMO Principles, however, do not constitute binding law, and so the problem remains. Coppens and Somers have studied new discussions on amendments proposed by Spain and Italy before the IMO Sub-Committee on Flag State Implementation (now called the ‘Sub-Committee on Implementation of IMO Instruments’), identifying four major changes.50 They resemble the IMO Principles adopted by the Facilitation Committee in 2009, but differ in one important respect: there is no more reference to the ultimate responsibility of the SRR state to allow disembarkation in the event that no venue is found. In this respect, the proposed Spain/Italy amendment is essentially the same as the existing 2004 amendment. Interestingly, Malta also submitted an amendment proposal. Instead of affirming the 2009 IMO Principles in putting the eventual obligation to allow disembarkation on the SRR state, they formulate that: All Contracting Governments involved shall co-operate to ensure that disembarkation occurs in the nearest safe haven, that is, that port closest to the location of rescue which may be deemed a place of safety.51

Every Contracting State should then have such a safe haven in place: The implementation of such a concept requires that all Contracting Governments undertake to provide such a safe haven when so requested by an RCC coordinating a rescue operation, either on the basis of geographical proximity or on the basis of its role as first RCC. Such an obligation would permit the rapid identification of a place of disembarkation

45  The disembarkation issue came prominently on the LoS agenda after the M/V Tampa incident in 2001. For a detailed discussion of this agenda, see Coppens and Somers (n 19). 46 The Facilitation Committee is a subsidiary body of the IMO Council and was set up to eliminate unnecessary formalities in international shipping. It tries to ensure ‘that the right balance is struck between maritime security and the facilitation of maritime trade’ (see www.imo.org/en/About/Pages/ Structure.aspx). 47  IMO Principles (n 36). 48 ibid para 2.3. Japan and Malta made reservations with regard to this residual obligation. See Coppens and Somers (n 19) 389. 49  Coppens and Somers (n 19) 392. 50  ibid 393–95. 51  Sub-Committee on Flag State Implementation, Measures to Protect the Safety of Persons Rescued at Sea, Comments on Document FSI 17/15/1 (Submitted by Malta), 27 February 2009, FSI 17/15/2, 4, §16 (hereinafter the Malta amendment).

Symposium—Gombeer 31 without ambiguity, ensure the rapid delivery of rescued persons to a place of safety and ensure minimum disruption to commercial shipping activities while respecting the value of human life.52

This proposal foresees a more clear-cut obligation to disembark, although in a subtle way: the next safe port is in principle where those rescued should be disembarked. The clear advantage of this proposal is that one can easily and quickly identify a port for disembarkation given the geographical realities of each case.53 It would also speed up the disembarkation process and benefit both merchant vessels as well as the rescued individuals. In sum, it transpires from the LoS as it currently stands54 that there is no residual obligation for coastal states to accept disembarkation. It only determines the SRR state’s primary responsibility to ensure that coordination and cooperation for disembarkation occurs, but it does not ultimately oblige it to accept disembarkation onto its territory.55 Under this formulation, disembarkation onto territory remains contingent upon the goodwill of states, with potential delays and standoffs remaining likely.56 Moreover, migrants do not derive subjective rights in terms of where to be disembarked from this body of international law. III.  THE EFFECT OF HUMAN RIGHTS LAW ON DISEMBARKATION

European human rights law obligations accruing at sea affect disembarkation to an important degree. Distinct from the duties under the law of the sea, the prohibition of refoulement and collective expulsion require disembarkation onto land in order to be complied with.57 This does not necessarily have to occur on to the territory of the state exercising jurisdiction at sea. A.  Extraterritorial Human Rights Jurisdiction at Sea Human rights obligations apply extraterritorially when individuals, including migrants, are under the jurisdiction of a state. Although this idea is still contested 52 

ibid §15. Coppens and Somers (n 19) 397. regard to the protection of the safety of persons rescued at sea in the Mediterranean, there have been new initiatives in the framework of the IMO. A Draft text for a Regional Memorandum of Understanding on procedures relating to the disembarkation of persons rescued at sea had its target completion year set to 2016, but has at the time of writing not been adopted yet. See also N Klein, ‘A Maritime Security Framework for the Legal Dimensions of Irregular Migration by Sea’ in E Papastavridis and V Moreno Lax (eds), Boat Refugees and Migrants at Sea: A Comprehensive Approach—Integrating Maritime Security with Human Rights (Boston, Brill/Nijhoff, 2016) 49. 55  A state can still be held responsible for not adequately establishing administrative mechanisms for the coordination of search and rescue operations or for not cooperating with other states in this regard. See Papastavridis (n 33) 19. 56  Barnes (n 23) 139. 57  The extraterritorial effect of the right to asylum upon the disembarkation question will be dealt with separately below in section IV. It concerns a right that only creates positive legal obligations towards EU Member States and EU agencies under the Charter of Fundamental Rights of the European Union. 53 

54  With

32  The Irish Yearbook of International Law 2015 in some areas of the world—most notably in Australia58 and the US after the Sale judgment of the US Supreme Court,59 which received considerable critique both at home60 and internationally61 —this doctrine has been affirmed by the European Court of Human Rights (ECtHR) in several landmark decisions. The ECtHR mainly applies three tests to establish extraterritorial jurisdiction under Article 1 of the European Convention on Human Rights (ECHR).62 Under the spatial model, ‘a State possesses jurisdiction whenever it has effective overall control of an area’, while under the personal model, ‘a State has jurisdiction whenever it exercises authority or control over an individual’.63 A third model consists of combining both, ‘with an emphasis on the background exercise of governmental authority’.64 A few ECtHR decisions have refined the personal65 model test in the maritime context. In Hirsi Jamaa et al v Italy, the Court applied the personal model by referring to the exercise of control and authority over an individual.66 Moreover, the exercise of effective control is not limited to situations in which the state actually takes the migrants on board its own state vessel. Indeed, other situations can also amount to effective control. There can be de facto control in the case of state action on board the other vessel, as was the case in Medvedyev and Others v France, where ‘[the] events in issue took place on board the Winner, a vessel flying the flag of a third State but whose crew had been placed under the control of French military personnel’.67 It is even possible to speak of jurisdiction in circumstances in which

58  See, eg, High Court of Australia, CPCF v Minister for Immigration and Border Protection (2014). For a critical assessment of the Australian jurisprudence, see N Klein, ‘Assessing Australia’s Push Back the Boats Policy under International Law: Legality and Accountability for Maritime Interceptions of Irregular Migrants’ (2014) 15 Melbourne Journal of International Law 17–18, who writes that ‘the weight of legal authority cuts against Australia’s position that it is not bound by an obligation of non-refoulement on the high seas’. 59  US Supreme Court, Sale v Haitian Centers Council (1993). 60  Dissenting Opinion of Justice Blackmun, Supreme Court of the United States, 509 US 155 (1993); A Pizor, ‘Sale v Haitian Centers Council: The Return of Haitian Refugees’ (1993) 17 Fordham International Law Journal 1065; HH Koh and M Wishnie, ‘The Story of Sale v Haitian Centers Council: Guantánamo and Refoulement’ in D Hurwitz et al. (eds), Human Rights Advocacy Stories (New York, Thomson Foundation Press, 1993) 424, who call the Haitian Centers Council decision of the Supreme Court ‘bad law making’. See also UNHCR, ‘The Haitian Interdiction Case 1993: Brief Amicus Curiae’ (1994) 6 International Journal of Refugee Law 85. 61  Inter-American Commission on Human Rights, The Haitian Center for Human Rights et al. v United States (1997). The Bush and Obama administrations continued to deny the extraterritorial application of the 1951 Refugee Convention, the ICCPR and—a few exceptions aside—the Convention against Torture. See A Dastyari, United States Migrant Interdiction and the Detention of Refugees in Guantánamo Bay (Cambridge, Cambridge University Press, 2015) 97, 106 and 118–19. 62  Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (entry into force 3 September 1953), Vol 213 UNTS, 22. 63  M Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford, Oxford University Press, 2011) 122. 64 C Costello, The Human Rights of Migrants and Refugees in European Law (Oxford, Oxford University Press, 2015) 241. 65  The ECtHR does not seem to apply a spatial model to determine jurisdiction at sea, unless taken to the extreme in which it starts considering man-made objects, such as a vessel, as a ‘space’. See Milanovic (n 63) 124. 66  This test has been applied earlier in ECtHR, Issa and Others v Turkey, App No 31821/96, Admissibility decision, 16 November 2004, §71; and in ECtHR, Pad and Others v Turkey, App No 60167/00, Admissibility decision, 28 June 2007. See also Committee against Torture, Sonko v Spain, Communication No 368/2998, A/67/44 (2008), 380, §103. 67 ECtHR, Hirsi Jamaa and Others v Italy, App No 27765/09, Judgment, 23 February 2012, 26, §80.

Symposium—Gombeer 33 a state neither takes individuals on board its vessels nor goes on board the vessel concerned; one does not need to have a case of actual detention of the vessel and/ or the people on board. In Xhavara et al v Italy, the ECtHR found that Italy, as the flag state of a patrol boat, could be held responsible for the human rights violations caused by its vessel to persons not on board its own vessel.68 While some scenarios thus seem to trigger jurisdiction under the ECHR, other scenarios remain unclear, such as using subtler methods like escorting a vessel or using megaphones or somehow similarly dissuading vessels from taking a certain course.69 Nonetheless, it seems that most human rights bodies would be quite inclusive in that regard.70 A particularly difficult case to determine from a human rights perspective is whether a state can exercise jurisdiction over another (merchant) vessel which has reacted to a distress call and took migrants on board. This scenario is less clear-cut, given that merchant vessels as private actors do not have human rights obligations as such. The question then becomes whether and how human rights jurisdiction can be established. Is it the flag state of the rescuing private vessel which bears the sole responsibility to ensure that human rights are respected? Or is it the state in whose SRR the rescuing vessel is situated which bears the responsibility?71 Can the responsibility for an SRR amount to an ‘overall control of an area’ or a ‘background exercise of governmental authority’ where the instructions of the SRR’s rescue coordination centre constitute control? Does a coastal state exercise human rights jurisdiction over a fishing vessel if it refuses that vessel access to its port to disembark rescued migrants? These questions have not yet been fully addressed by the ECtHR. However, in Women on Waves v Portugal, the ECtHR found a rights violation on the basis of Portugal refusing entry into its territorial waters of the Borndiep, a vessel of Women on Waves72 that, once anchored, would have been used for meetings and seminars on reproductive health rights.73 In casu, the Portuguese Secretary for Maritime Affairs issued a decision that prohibited anchoring the vessel in its territorial waters.

68 ECtHR, Xhavara and Others v Italy and Albania, App No 39473/98, Decision on the admissibility, 11 January 2001, 6. The ECtHR did not decide on the merits. See also A Klug and T Howe, ‘The Concept of State Jurisdiction and the Applicability of the Non-refoulement Principle to Extraterritorial Interception Measures’ in Ryan and Mitsilegas (n 9) 85. 69  M den Heijer, ‘Europe beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control’ in Ryan and Mitsilegas (n 9) 189. 70  A Fischer-Lescano, T Löhr and T Tohidipur, ‘Border Controls at Sea: Requirements under International Human Rights and Refugee Law’ (2009) 21 International Journal of Refugee Law 275–76; Klug and Howe (n 68) 95; V Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12 Human Rights Law Review 596–97. 71 One possible argument to make is that: ‘Even if the rescued people are on a private vessel, the shipmaster of such vessel is bound to follow the RCC’s instructions. The RCC therefore exercises control over the rescued people and can decide their fate.’ FRA, Scope of the Principle of Non-refoulement in Contemporary Border Management: Evolving Areas of Law, European Union Agency for Fundamental Rights (2016), 6. 72  Women on Waves is a Dutch non-governmental organisation focusing its activities on the prevention of unsafe abortions and empowering women to exercise their human rights. See: www.womenonwaves. org/en/page/650/who-are-we. 73 ECtHR, Women on Waves and Others v Portugal, App No 31276/05, Judgment, 3 February 2009, 12, §44.

34  The Irish Yearbook of International Law 2015 He backed up his decision with a threat to prosecute on the grounds of promoting illegal pharmaceutical products and creating a danger to public health.74 Moreover, a warship was placed in the vicinity of the Borndiep to prevent it from entering Portuguese waters.75 At no point in the proceedings before the ECtHR was the issue of human rights jurisdiction contested by Portugal. Thus, if preventing passage into territorial waters by threatening prosecution and sending warships to prevent entry triggers human rights jurisdiction,76 one can argue that the same state techniques vis-a-vis merchant vessels aiming to disembark migrants does so as well. Legal-empirical research could enquire as to whether certain maritime areas in the Mediterranean Sea are to such an extent under surveillance and characterised by state (vessel) presence that their zonal governance could be qualified as an ‘overall control of an area’ or ‘a background exercise of governmental authority’ under the different ECHR models for jurisdiction. Cases in point would be maritime areas specifically delineated in operational plans of missions aimed at combatting smuggling of migrants and curbing irregular sea crossings in the Central and Eastern Mediterranean, and operations in which the exchange of large amounts of (real-time) data occurs among several actors (EU Member State capacities, the EU Border and Coast Guard Agency, NATO capacities and capacities of third countries) based on maritime presence, overflight and satellite images. Looking into these precise contours of jurisdiction goes beyond the scope of this article.77 For now, it suffices that human rights jurisdiction can be established over migrants at sea under a whole range of circumstances and that this may imply disembarkation to a particular territory as set out below. It should be stressed that from a human rights law perspective, it is immaterial that the LoS only prescribes a duty to disembark the persons aboard to a place of safety in cases of search and rescue, but remains silent on this point in cases of interception. It is the presence of human rights jurisdiction which triggers the content and scope of human rights obligations, which in turn—as argued below—necessitate disembarkation onto land.78 B. The Content and Scope of the Prohibition of Refoulement and Collective Expulsion under the ECHR System79 On 23 February 2012, the ECtHR rendered an important decision in the abovementioned Hirsi Jamaa case by settling that the prohibitions of refoulement and 74 

ibid 2–3, §8. ibid 3, §9. Not to be conflated with jurisdiction from a perspective of the LoS, more precisely the jurisdictional competence to prevent innocent passage in accordance with art 19 of the 1982 UNCLOS. 77  For an exploration under the law of state responsibility, see Papastavridis (n 33) 36–37 and 39–40. 78 Similarly, the ECtHR held that from a human rights perspective, it is immaterial whether the migrants concerned are rescued instead of intercepted in order to fall under the jurisdiction of the ECHR. See Hirsi (n 67) 26, §79. 79 This section particularly focuses on ECHR instruments, but occasionally refers to other human rights instruments, such as the 1984 Convention against Torture and the 1966 ICCPR and the output of their respective surveillance bodies for comparative insight. For an analysis under the ICCPR, see: Ni Ghráinne (n 38), at 124–129. 75  76 

Symposium—Gombeer 35 collective expulsion apply on the high seas ‘whenever a State through its agents exercise control and authority over an individual, and thus jurisdiction’.80 The discussion below limits itself to exploring the content and scope of these prohibitions so as to assess their impact on the issue of disembarkation. It is argued that the obligations inherent to these prohibitions require disembarkation onto a safe territory. Although in theory disembarkation does not have to occur on EU territory, the current constellation in the Mediterranean suggests that it should if it is to comply with human rights obligations. The complexity in applying the non-refoulement principle and prohibition of collective expulsion at sea lies in determining the precise scope of the state obligations and how these obligations can be observed in the maritime context. The distinction between negative and positive state obligations renders some useful insights in this regard. Put as a caricature, negative human rights obligations entail that the state refrains from certain actions (‘respect’), while positive human rights obligations demand certain state action and resources to ‘ensure’ the enjoyment of the right concerned.81 Within the category of positive state obligations, one can argue that there exists a continuum in terms of efforts and resources that a state should use in order to ensure a certain right is protected. Judicial review of required state action on this continuum is a delicate exercise.82 The ECtHR has specified certain aspects of the state obligations inherent to the non-refoulement principle, as well as the prohibition of collective expulsion. The prohibition of refoulement is encapsulated in both refugee law and human rights law. Article 33, §1 of the Refugee Convention states that ‘no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.83 Several international treaties84 create the obligation not to refoule individuals as a principle of international human rights law. The definition of who falls under the principle is thus not limited to refugees strictly speaking.85 However, the 80  Hirsi (n 67) 25, §74. See also UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, Geneva, 26 January 2007, 12, §24. 81  D Shelton and A Gould, ‘Chapter 24: Positive and Negative Obligations’, in D Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford, Oxford University Press, 2013) 564. 82  In this sense, the ECtHR has stated that there must be regard to ‘the fair balance that has to be struck between the general interests of the individual, the diversity of situations obtaining in Contracting States, and the choices which must be made in terms of priorities and resources. Nor must these obligations be interpreted in such a way as to impose an impossible or disproportionate burden’. See ECtHR, Ilascu and Others v Moldova and Russia, App No 48787/99, Judgment, 8 July 2004, 77, § 332. Within this exercise, the Strasbourg Court assesses that it is its task not to determine the precise measures for a state to be adopted, but to nonetheless verify that the measures actually taken are appropriate and sufficient in the case before it; to determine to what extent a minimum effort is possible (at § 334). 83  Convention Relating to the Status of Refugees of 28 July 1951 (entry into force 22 April 1954), Vol 189 UNTS, 150; Protocol Relating to the Status of Refugees of 31 January 1967, Vol 606 UNTS, 8781. 84  However, it is debatable whether the non-refoulement principle is also a customary human rights law norm. See J Hathaway, ‘Leveraging Asylum’ (2010) 41 Texas International Law Journal 507. 85  Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. This provision

36  The Irish Yearbook of International Law 2015 scope of the protection afforded and whether exceptions are allowed differ from one human rights instrument to another.86 The analysis below focuses on the prohibition of refoulement under Article 3 ECHR. Article 3 ECHR implies a clear negative obligation not to send migrants back to a place where they might be tortured or subjected to inhuman or degrading treatment or punishment. Although this obligation could be formulated as a negative one— the state has to refrain from a certain action—it also contains positive state obligations. First, disembarkation in a third country may violate Article 3 ECHR ‘where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country’.87 Therefore, state authorities exercising jurisdiction over migrants at sea have the obligation to assess this risk with reference to those facts which are known or should be known to the state at the time of removal.88 This examination should pertain to the foreseeable consequences upon removal ‘in the light of the general situation there as well as his or her personal circumstances’.89 It is up to the authorities to investigate proprio motu the treatment to which those rescued would be exposed if disembarked to a certain territory. The fact that the individual concerned does not expressly request asylum does not exempt a state from this obligation.90 Second, disembarkation to a third country may violate Article 3 ECHR when the state authorities can reasonably expect that this third country does not offer sufficient guarantees against arbitrary expatriation to a country where the individuals concerned may be at risk in the sense of Article 3 ECHR.91 Again, this requires the state authorities on the vessel to make an inquiry before disembarking persons rescued or intercepted. Collective expulsion is prohibited under Article 4 of Protocol No 4 to the ECHR92 and can—like Article 3 ECHR—apply extraterritorially, including on the

has been interpreted as a non-refoulement obligation by the Human Rights Committee. See International Covenant on Civil and Political Rights of 16 December 1966 (entry into force 23 March 1976), Vol 999 UNTS, 172; Article 3 of the 1984 Convention against Torture also states that ‘no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (entry into force 26 June 1987), Vol 1465 UNTS, 113. The African Commission on Human and People’s Rights has also interpreted art 5 of the African Charter of Human and People’s Rights in that sense. African Commission, JK Modise v Botswana, 28th Ordinary Session, Communication No 97/93, 6 November 2000. See also Klein (n 58) 20. 86 R Mungianu, Frontex and Non-Refoulement: The International Responsibility of the EU (Cambridge, Cambridge University Press, 2016) 95–98. 87  Hirsi (n 67) 33, §114. 88  ibid 34, §121. cf art 3, §2 of the 1984 Convention against Torture, which spells out that states have to take into account all relevant considerations, including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights. 89  Hirsi (n 67) 33, §117 (emphasis added). 90  ibid 36, §133; Moreno-Lax (n 70) 583–84. 91  Hirsi (n 67) 39, §§147–48. 92  Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto, Strasbourg, 16 September 1963 (entry into force 2 May 1968), art 4. See also

Symposium—Gombeer 37 high seas.93 The difference between refoulement and collective expulsion mainly lies in the fact that in the case of refoulement, there exists a real risk for an individual to be persecuted94 or to be submitted to torture or to inhuman or degrading treatment95 if he or she is returned, while the prohibition of collective expulsion exists notwithstanding the existence or not of any risk.96 The prohibition of collective expulsion requires a detailed examination of the personal circumstances of aliens before their removal and an opportunity for every individual to put forward arguments against their expulsion.97 The ECtHR implied in Hirsi that personnel trained to conduct individual interviews as well as the assistance of interpreters and legal advisers should be part of the applicable procedural guarantees.98 In Sharifi and Others v Italy and Greece, the Court also mentioned the importance of having information provided in a language that the individuals concerned can understand, with the aim of informing them about the existence and aspects of (asylum) procedures.99 The latter passage on the ECtHR’s observations in Sharifi might be interpreted as implying that the only way to satisfy Article 4 of Protocol No. 4 is to provide access to asylum procedures.100 Similarly, it has been argued that the non-refoulement principle also needs ‘some form of refugee screening’.101 The Office of the United Nations High Commissioner for Human Rights (OHCHR), the Office of the United Nations High Commissioner for Refugees (UNHCR) and several authors have argued that these obligations can only be complied with by checking every individual person for their potential status as a refugee or person otherwise in need of international protection, as all migrants should be treated under the presumption of being in need of protection until it is proven otherwise.102 Although the ECtHR in Sharifi clearly EU Charter of Fundamental Rights, art 19, §1; American Convention on Human Rights, art 22, §9; African Charter on Human and Peoples’ Rights, art 12, §5; and the Arab Charter on Human Rights, art 26, §1. 93 

Hirsi (n 67) 47, §180. Under art 33 (1) of the 1951 Refugee Convention. Under, for example, art 3 ECHR. 96 IOM, International Standards on Interception and Rescue at Sea, Geneva, International Migration Law Unit, 11 June 2011, 11, §36. 97 ECtHR, Čonka v Belgium, App No 51564/99, Judgment, 5 February 2002, 20, § 63; Hirsi (n 67) 46, § 177 and 48, §185 in fine; ECtHR, Sharifi and Others v Italy and Greece, App No 16643/09, Judgment, 21 October 2014, 56, §210; cf OHCHR, ‘Expulsions of Aliens in International Human Rights Law’, Discussion Paper, Geneva, April 2006, 15. The Strasbourg Court repeated in Hirsi that ‘the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis’: Hirsi (n 67) 48, §184. The ECtHR recently affirmed in Khlaifia v Italy with regard to art 4 that a mere individual identification procedure does not suffice; that there must be guarantees that an individual’s particular circumstances are assessed and that the person has an opportunity to present elements individually against his or her expulsion in order to comply with the prohibition of collective expulsion. ECtHR, Khlaifia and Others v Italy, App No 16483/12, Judgment, 44–45, §§ 154–57. The case was referred to the Grand Chamber, which heard it on 22 June 2016. 98  Hirsi (n 67) 48, §185. 99  Sharifi (n 97) 57, §§ 214–17. 100  cf Hirsi (n 67) 53, §204. 101  Den Heijer (n 34) 244. 102 OHCHR (n 97) 2; the UNHCR states that ‘the prohibition of refoulement applies to all refugees, including those who have not been formally recognised as such, and thus to asylum-seekers whose 94  95 

38  The Irish Yearbook of International Law 2015 drew a link between state practices of absence of information and access to asylum procedures in ports on the one hand, and collective expulsions and refoulement on the other, it never stated that a subjective right to access asylum procedures flows from these prohibitions (see further below). Indeed, it also stated that it could be ‘any other procedure’ as long as it fulfils the exigencies of Article 13 ECHR.103 Positive state obligations indeed become somewhat clearer when Article 3 ECHR and Article 4 of Protocol No 4 are read in conjunction with the right to an effective remedy pursuant to Article 13 ECHR.104 The latter stipulates that ‘everyone whose rights … are violated shall have an effective remedy before a national authority’.105 The notion of ‘authority’ does not necessarily refer to a judicial authority.106 Submission to a national authority for scrutiny of an expulsion decision must have suspensive effect.107 The right to an effective remedy arguably also triggers a right to information and the right to legal and other assistance necessary to claim remedy.108 In practice, this obligation involves providing access to legal assistance and adequate interpretation to those under the jurisdiction of the engaging state, as well as an obligation for state agents to inform the individuals concerned of the availability of a remedy.

status has not yet been determined’. UNHCR, UNHCR comments on the Commission proposal for a Regulation of the European Parliament and of the Council establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) COM 2013(197) final, April 2013, 3. See also Barnes (n 23) 116; E Guild, C Costello, M Garlick, V Moreno-Lax, M Mouzourakis, New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection—Study for the LIBE Committee (2014), 63, available at: www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_ STU(2014)509989; Moreno-Lax (n 70) 590; V Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 211–12. For an overview of case law that could be interpreted as implying a subjective right to access asylum procedures, see Mungianu (n 86) 259–60. 103  Sharifi (n 97) 63, § 243 using the wording: ‘[être] concrètement empêchés de demander l’asile ou d’avoir accès à une quelconque autre procédure nationale satisfaisant aux exigences de l’article 13’. 104  It is also important to mention that a right to an effective remedy within the maritime context is not only crucial for asylum seekers and refugees, but also for others deriving specific rights from international law, such as victims of trafficking in persons. See AT Gallagher, ‘The Right to an Effective Remedy for Victims of Trafficking in Persons: A Survey of International Law and Policy’, paper submitted for the expert consultation convened by the UN Special Rapporteur on Trafficking in Persons, especially women and children, Ms Joy Ngozi Ezeilo on ‘The Right to an Effective Remedy for Trafficked Persons’, Bratislava, 22–23 November 2010. 105  Article 13 ECHR. 106  Hirsi (n 67) 51, § 197. However, it is argued in legal doctrine that aspirant refugees should also be able to benefit from free access to the courts pursuant to art 16 of the 1951 Refugee Convention. See Moreno-Lax (n 102) 212. Goodwin-Gill argues that where disembarkation is contemplated to a non-EU state, ‘a form of judicial control is required as a necessary safeguard against ill-treatment and the abuse of power—exactly what form of judicial control calls for an exercise of jur­istic imagination. In the nature of things, such oversight should be prompt, automatic, impartial and independent, extending ideally to the monitoring of interception operations overall’. GS Goodwin-Gill, ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’ (2011) 23 International Journal of Refugee Law 456–57. 107  Hirsi (n 67) 52, §§ 198–200; Khlaifia (n 97) 47, §167. 108  IOM (n 96) 10, §33.

Symposium—Gombeer 39 C.  The Effect on Disembarkation As the ECtHR was able to ‘solve’ the Hirsi case by (merely) touching upon positive state obligations inherent to the prohibitions of refoulement and collective expulsion, the Strasbourg judges unfortunately did not clarify the issue of more extensive positive obligations in general, and the aspect of access to asylum as a subjective right in particular. In his separate Concurring Opinion, Judge Pinto de Albuquerque made a list of procedural safeguards inherent within the non-refoulement principle109 and stated that the Italian government ‘also [had] a positive obligation to provide the applicants with practical and effective access to an asylum procedure in Italy’.110 This line of thought, which reads a right of access to asylum procedures into the prohibition of refoulement, is contestable.111 While some authors (already mentioned above) argue that access to asylum procedures—and hence de facto disembarkation onto the territory of asylum—is a necessary corollary of the non-refoulement principle,112 the Court, in my view, did not confirm this line of reasoning.113 Despite this—what some will qualify as a restrictive—reading of the ECtHR case law, there are important implications regarding disembarkation. First, the nature of the positive obligations inherent to the prohibitions of refoulement and collective expulsion as well as the right to an effective remedy arguably necessitate disembarkation onto land.114 Although the absence of compulsory access to courts may suggest that disembarkation onto territory is not necessary, the other exigencies of Article 13 suggest otherwise. While modern technologies may support some procedural aspects, overall living up to them on board a vessel at sea seems a daunting task: these requirements lie on the outer end of a continuum in terms of state resources as they require the state to have specially trained staff in place for registration and identification procedures, access to legal assistance and representation, a national instance for remedy, etc.115 This is especially a concern as the suspensive

109  A reasonable time limit in which to submit the asylum application; a personal interview; an opportunity to submit evidence and dispute the evidence; a written decision by an independent first-instance body; a reasonable time limit to appeal the latter’s decision and automatic suspensive effect of this appeal; full and speedy judicial review of the first instance decision; and free legal advice and representation and, if necessary, free linguistic assistance and access to the UNHCR or other organisations working on behalf of the UNHCR. Judge Pinto de Albuquerque in Hirsi (n 67) 71. cf the recommendations of the UNHCR ExCom (1977), ‘Conclusion No. 8 (XXVIII): Determination of Refugee Status’, in UNHCR, Thematic Compilation of Executive Committee Conclusions (3rd ed), 2008, 383–84. 110  Judge Pinto de Albuquerque in Hirsi (n 67) 78. 111  Hathaway has clearly formulated how the duty not to refoule is distinct from a right to (access) asylum. J Hathaway, The Rights of Refugees in International Law (Cambridge, Cambridge University Press, 2005) 300–02. How the right to asylum, which has its footing as a binding legal obligation in EU law, affects disembarkation is discussed further below in section IV. 112  M Giuffré, ‘Access to Asylum at Sea? Non-refoulement and a Comprehensive Approach to Extraterritorial Human Rights Obligations’, in V Moreno-Lax, E Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach—Integrating Maritime Security with Human Rights (Leiden, Brill, 2016) 255–61. 113  cf Mungianu (n 86) 168. 114  A recent study for the European Parliament affirms that screenings at sea are highly undesirable. See Guild et al (n 102) 45–46. See also Dastyari (n 61) 168–69. 115 The Hirsi case is illustrative in this regard as it was apparent that the Italian maritime authorities were not trained or equipped to conduct interviews for every individual, nor was there legal assistance or

40  The Irish Yearbook of International Law 2015 effect of a remedy would create a situation in which migrants could be stuck at sea for days or longer. Second, the disembarkation may—in theory—occur somewhere else than on the territory of the state exercising jurisdiction at sea, as long as it ensures that the state of disembarkation constitutes a territory where the migrants concerned are not at risk and where the necessary procedures mentioned above are in place.116 The current situation in the Mediterranean suggests that EU Member States—as parties to the ECHR—should accept disembarkation on to their territory in order to comply with the rules of the ECHR. Given that many offshore territories arguably cannot be designated as ‘safe’ in the sense of Article 3 ECHR, such as Tunisia, Libya, Egypt and—even—Turkey,117 disembarkation onto the territory of a High Contracting Party to the ECHR which exercises jurisdiction at sea seems almost inevitable. Third, the rescued or intercepted migrants under the jurisdiction of a state bound by the above-mentioned human rights instruments have a subjective right to these procedural guarantees. The disembarkation onto a safe territory where the abovementioned procedural rights can be guaranteed does not depend on the courtesy or goodwill of a coastal state, as is often the case under the LoS regime. A large influx of migrants does not justify non-compliance with these obligations and living up to these subjective rights.118 IV.  THE RIGHT TO ASYLUM UNDER THE CFR NECESSITATES DISEMBARKATION ONTO EU TERRITORY

The Charter of Fundamental Rights of the European Union (CFR) also provides for the protection against refoulement (Article 19(2)) and collective expulsion (Article 19(1)). Both provisions correspond to the prohibitions discussed above under the Council of Europe instruments, their meaning and scope being the same.119 However, the CFR is a rare human rights instrument, in that it specifically stipulates a subjective right to asylum under Article 18. This right is given practical effect through a whole body of regulations and directives that are currently under reform. The contention here is that the EU acquis on border control can apply extraterritorially when EU Member States and agencies encounter migrants at sea, and

interpretation available; see Moreno-Lax (n 70), 589. The UNHCR noted in this regard that ship captains of commercial vessels ‘cannot be expected to make fine judgements as to the “safety” in this ‘human rights’ sense of a proposed place of disembarkation. See UNHCR (n 21) 4, §17. See also IMO Guidelines (n 30) para 6.1,0, which indicates that what can only be expected of the crew of the vessel is to collect information of those rescued with regard to name, age, gender, apparent health, medical condition, etc. 116 

For a description of the UNHCR’s position on this, see den Heijer (n 34) 245, fn 179. Amnesty International, ‘Turkey: Illegal Mass Returns of Syrian Refugees Expose Fatal Flaws in EUTurkey Deal’, press release, 1 April 2016, available at: https://www.amnesty.org/en/press-releases/2016/04/ turkey-illegal-mass-returns-of-syrian-refugees-expose-fatal-flaws-in-eu-turkey-deal. 118  Hirsi (n 67) 46–47, §179; Sharifi (n 97) 59, §224. 119  V Moreno-Lax, ‘(Extraterritorial) Entry Controls and (Extraterritorial) Non-Refoulement in EU Law’, in M Maes, M-C Foblets and P de Bruycker (eds), The External Dimensions of EU Asylum and Immigration Policy (Brussels, Bruylant, 2011) 472, referring to art 52(3) CFR. 117 

Symposium—Gombeer 41 that therefore Article 18 CFR—aside from Article 19 (§§1–2)—also applies when that acquis is implemented. The logical consequence is disembarkation onto EU territory in order to comply with the normative exigency to facilitate access to asylum procedures. A. Article 18 CFR Creates a Subjective Right to Access Asylum Procedures Set up by the EU Member States Article 18 of the CFR states that ‘the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union’.120 Although not creating an automatic right to be granted asylum, it requires EU Member States to guarantee a right to have an individual’s asylum application assessed and to grant asylum if the conditions are met.121 The Court of Justice of the European Union (CJEU) has confirmed the right to asylum pursuant to Article 18 to be a general principle of EU law.122 Secondary law has to comply with it and individuals can draw subjective rights from it, which may ‘give rise to direct claims for positive action by the Union’s institutions or Member States authorities’.123 Article 18 is given practical effect through the secondary legislation of the EU, more precisely via the asylum acquis. This body of law regulates, among other things, common standards for (access to) asylum procedures,124 common standards on who can qualify for international protection125 and rules on how asylum seekers should be received.126 Another important instrument here is the Dublin Regulation,127 which is used to determine the EU Member State responsible for the 120 

Charter of Fundamental Rights of the European Union, 2012/C 326/02, 399. den Heijer, ‘Article 18’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 535, §18.39; MT Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to Be Granted Asylum in the Union’s Law’ (2008) 27 Refugee Survey Quarterly 34. See also Ni Ghráinne (n 38) at 124 and references included therein for a brief sketch of the right to asylum in international law, which is said not to have crystallised as custom yet. 122  See the reference to NS and ME, Judgment, 21 December 2011 in Mungianu (n 86) 115. 123 See the reference in Moreno-Lax (n 119) 471 to the Explanations Relating to the Charter of Fundamental Rights, OJ C 303/17 of 14 December 2007, 35. 124  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), 29 June 2013 [2013] OJ L180/60 (recast APD). 125  Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011 [2011] OJ L337/9 (recast QD). 126 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), 29 June 2013 [2013] OJ L180/96 (recast RCD). 127  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), 20 June 2013 [2013] OJ L180/31 (Dublin III Regulation). 121  M

42  The Irish Yearbook of International Law 2015 processing of an asylum claim. In short, the acquis guarantees that asylum seekers within its scope can access procedures to scrutinise their claims for international protection and—once recognised—can benefit from the rights that accompany them. B. The CFR, Including Article 18, Applies When EU Law is Being Implemented Extraterritorially The CFR—and hence also the right to asylum—can apply extraterritorially, yet only in cases when the EU institutions, bodies, offices and agencies or EU Member States ‘are implementing Union law’.128 CFR obligations apply as a matter of EU constitutional obligation ‘without any additional IHRL jurisdictional criteria having to be met’.129 Indeed, there is no test of spatial or personal jurisdictional control like under international human rights law.130 What matters for the CFR is the law that governs a particular situation, namely EU law.131 This test thus potentially allows for a broader range of situations to fall under fundamental rights protection than under the ECHR, as no effective control test is required. Applied to the context of rescue and interception at sea, the question therefore boils down to whether EU law is ‘being implemented’ in those particular circumstances. This is less obvious than one might think. There is no clear basis for extraterritorial border control in EU law,132 nor does the EU have competence to regulate on maritime search and rescue obligations. Is an EU Member State implementing EU law when pursuing a classic search and rescue action at sea? Is an EU Member State implementing EU law when patrolling beyond its territorial waters to prevent illegal entries and combat the smuggling of migrants? There are no clear answers to these questions, though both issues will be taken into consideration below. C. The EU Acquis on Border Control and Asylum Can Apply Extraterritorially at Sea, Thus Necessitating Disembarkation onto EU Territory to Comply with Article 18 CFR The legal basis for legislative action in the field of border control and asylum can be found in Title V of the Treaty on the Functioning of the European Union (TFEU).133 Aside from being in accordance with the 1951 Convention on the Status of Refugees 128 

CFR (n 120) art 51 (1). C Costello and V Moreno-Lax, ‘The Extraterritorial Application of the EU Charter of Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model’ in Peers et al (n 121) 1678, §59.53. 130  Guild et al (n 102) 63. 131  Costello and Moreno-Lax (n 129) 1680. 132  The Schengen Borders Code (see below) only talks about ‘border checks’ at so-called Border Crossing Points (BCPs) and about ‘border surveillance’ between those BCPs. 133  ‘The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.’ TFEU, art 78(1). 129 

Symposium—Gombeer 43 and its 1967 Protocol, these secondary norms must also protect the right to asylum under the CFR. Procedural guarantees to access and lodge asylum claims in the context of border control are regulated through the Schengen Borders Code (SBC)134 and subsequently the secondary legislation constituting the CEAS. At first sight, a textual overview of the EU acquis on border control and asylum seems to indicate that its rules do not apply extraterritorially. However, it is argued below that: (i) the SBC can apply extraterritorially; and that (ii) therefore the rights guaranteed therein (and the acquis that gives effect to those rights) should too. i.  The Border Acquis Can Apply Extraterritorially, Including its Safety Clauses There are several indications that the SBC can apply extraterritorially. The SBC establishes rules on persons crossing the external borders of the EU Member States.135 From that very general provision, one may infer that the SBC does not apply to migrants who do not even come near the external border,136 for example, on the high seas. However, the SBC allows for special regimes of border control beyond the EU territory (for instance, in train stations and commercial marine routes and ports in third countries) under Article 19 SBC.137 A 2013 amendment of the SBC introduced an explicit obligation for border guards from EU Member States present at shared Border Crossing Points (BCPs) in third countries that ‘a third-country national asking for international protection on Member State territory shall be given access to relevant Member State procedures in accordance with the Union asylum acquis’.138 By way of analogy, when a state is operating at sea beyond its territorial waters checking for vessels with migrants on board, it is engaged in EU external border control. Overall, den Heijer’s observation is a case in point in that ‘the emerging logic is that, even though some definitional provisions of the Borders Code appear to locate the Schengen Border crossings regime “at” the external border, the Code and related EU instruments are equipped with flexibility in terms of the geographical areas where border controls may be conducted’.139 The border acquis contains several safety clauses. Article 3(b) SBC stipulates that it applies ‘without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement’. Article 4 SBC

134  Regulation (EU) No 399/2016 of the European Parliament and the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (codification), 23 March 2016 [2016] OJ L77/1. 135  SBC (codification) (n 134), art 1. 136  Article 2(2) of the SBC (codification) (n 133) defines ‘external borders’ as ‘the Member States’ land borders, including rivers and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders’. 137  Den Heijer (n 34) 197. 138  Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), 26 June 2013 [2013] OJ L182/1. See also G Beck, N Mole and M Reneman, The Application of the EU Charter of Fundamental Rights to Asylum Procedural Law, European Council on Refugees and Exiles & Dutch Council for Refugees (2014) 36. 139  Den Heijer (n 34) 199. See also Moreno-Lax (n 119) 474–75.

44  The Irish Yearbook of International Law 2015 states that EU Member States must fully comply with relevant EU law, including the CFR, and relevant international law, including the 1951 Refugee Convention.140 Arguably, those SBC provisions must be interpreted in light of the EU asylum acquis,141 particularly Article 6(5)(c) SBC, which stipulates that Member States may authorise entry on humanitarian grounds or because of international obligations. In short, in the words of Moreno-Lax, ‘where activities covered by the Code take place, the guarantees enshrined therein are applicable as well’.142 From the moment that the SBC applies extraterritorially, effect must be given to the safeguard provisions mentioned above in general and Article 18 CFR in particular. Consequently, it should therefore be ensured that access to asylum and procedural safeguards are explicitly provided for these types of scenarios at sea. The analysis below focuses on the EU legislation that exists to give effect to the guarantees mentioned in Articles 3 and 4 SBC: the asylum acquis. ii. The Asylum Acquis Should Be Aligned with its Potential Extraterritorial Application Articles 13 and 18 of the Qualification Directive (hereinafter the ‘recast QD’)143 oblige Member States to respectively grant refugee status and subsidiary protection for those who qualify. Access to lodge an application for international protection and procedural safeguards is provided by the Asylum Procedures Directive (hereinafter the ‘recast APD’).144 It lays down that rules to ensure access to asylum procedures and sets out important (procedural) safeguards.145 The recast APD also sets out minimum conditions for accelerated procedures,146 as well as scrutiny tests for admissibility procedures.147 The Dublin III Regulation148 contains several procedural safeguards as well.149 The EU acquis thus provides a whole range of guarantees and safeguards for those migrants wanting to lodge an asylum claim on EU territory. However, it seems to fall short in terms of providing protection beyond the external border of that territory. The approach of the EU legislator in terms of the extraterritorial application of the asylum acquis at sea can be characterised as reticent. Under the Dublin III

140 

SBC (codification) (n 134) arts 3(b) and 4. S Peers, E Guild and J Tomkin, EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition—Volume 1: Visas and Border Controls (Leiden, Martinus Nijhoff, 2012) 43; den Heijer (n 34) 194. 142  Moreno-Lax (n 119) 476. 143  Recast QD (n 125). 144  Recast APD (n 124). 145  Access to asylum procedures (art 6), the right to remain in the Member State pending examination (art 9), a range of guarantees related to access to, eg, an interpreter, a legal adviser and the UNHCR (art 12), a personal interview (arts 14–17), the right to information (art 19), the right to free legal assistance and representation in appeal (art 20), guarantees for persons with specific needs (art 24) and unaccompanied minors (art 25); see recast APD (n 124). 146  ‘In accordance with the basic principles and guarantees of Chapter II’: recast APD (n 124) art 43. 147  Recast APD (n 124) arts 33–39. 148  Dublin III Regulation (n 127). 149  A right to information (art 4), the right to a personal interview, with interpreter where necessary (art 5(1) and (4)), written notification of transfer decisions (art 26) and the right to an effective remedy before a court or tribunal (art 27(1)): Dublin III Regulation (n 127). 141 

Symposium—Gombeer 45 Regulation, interception or rescue of migrants in the territorial waters of an EU Member State does not constitute a problem as this maritime zone is generally seen as part of a state’s territory. However, it is argued that the Dublin III Regulation does not apply when persons are retrieved within maritime zones beyond the territorial sea and an application was initially made outside the territory.150 Similarly, the APD limits its geographical scope to ‘all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States’.151 Unlike the Dublin III Regulation, this Directive does explicitly recognise its application to the territorial waters of a Member State. However, beyond the territorial sea, the APD suffers from the same blind spot ratione loci by not covering claims made on the high seas. The field of application of the recast RCD is similarly territorially limited.152 Interestingly, the recast QD contains no territorial delimitation. It has been argued that the territorial scope of the Qualification Directive is guided by the APD.153 Others have argued that this reading is open to question, ‘leaving the matter ultimately for the CJEU to resolve’.154 Despite the territorial limitations present in the texts of the EU asylum legislation, this acquis must apply and be accessible once it is established that the SBC applies in a situation at sea, as already argued above. Both the textual provisions and practice of the asylum acquis instruments should be aligned with this interpretation. One cannot enforce EU law while at the same time excising certain safeguards encapsulated therein, namely fundamental rights in general and the right to asylum pursuant to Article 18 CFR in particular. The necessary result is that when Article 18 CFR applies at sea by virtue of the SBC that is ‘being implemented’, those persons under the jurisdiction of the EU Member State or agency should be disembarked onto EU territory for the purpose of being processed in accordance with the asylum acquis. It has indeed been widely argued that one cannot process asylum claims at sea ‘by the book’.155 D. Article 18 CFR Does Not Imply a Right to Access Territory as Such, But Does So When EU Law is Being Implemented and a Sufficiently Close Link Exists However, it is contested within the literature whether Article 18 implies a right to access the territory of the asylum state: [It] is evident that several EU Member States have recognized asylum as an individual right in their constitutions. Therefore, it can be argued that if Article 18 of the EU Charter results

150 S Peers, V Moreno-Lax, M Garlick and E Guild, EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition—Volume 3: EU Asylum Law (Brill, Nijhoff, 2015) 351–52. 151  Recast APD (n 124) art 3 (1). 152  Recast RCD (n 126) art 3(1). 153  H Battjes, European Asylum Law and International Law (Leiden, Brill, 2006) 209–10. 154  Costello (n 64) 251 in fine; den Heijer (n 34) 204. 155  UNHCR (n 21) 4, §18 and 6, §29; UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, Geneva, 2011, 37–38. See also R Bruin, ‘Border Control: Not a Transparent Reality’ in FANJ Goudappel and HS Raulus (eds), The Future of Asylum in the European Union (The Hague, TMC Asser Press, 2009) 29; IOM (n 96) 3.

46  The Irish Yearbook of International Law 2015 from the constitutional traditions common to the Member States, it must be interpreted ‘in harmony’ with those traditions thus granting a right of entry which goes beyond protection against expulsion. Against this latter argument, it can be asserted that the Charter was not adopted with the intention of creating new rights but for the purposes of reaffirming rights resulting from national constitutional traditions and … international obligations common to the EU Member States … Accordingly, Article 18 of the Charter should not be interpreted as an individual right of entry since such an interpretation does not reflect EU Member States’ international obligations.156

First of all, it should be pointed out that the right to asylum received a separate stipulation in the CFR, different from the prohibition of refoulement and collective expulsion. If the positive state obligations involved in Article 18 were to be explained similar to, for instance, Article 19(2) CFR, why create a separate provision? The prohibitions under Article 19(1) and (2) imply obligations similar to those discussed under the ECHR system, but not a subjective right to asylum as indicated in the case law of the ECtHR. Moreover, the fact that Article 18 mentions the 1951 Convention does not necessarily mean that its scope of obligations is limited to the non-refoulement obligations of that instrument, as a sort of exclusive renvoi;157 rather, it should ‘at a minimum’ observe the 1951 Convention.158 Article 18 CFR encapsulates more than protection against refoulement, as it refers to the Treaty on European Union (TEU) and the TFEU, which provide the legal basis for EU asylum acquis in order to ensure access to asylum procedures and the qualification and granting of asylum status in the EU Member States. Second, whether Article 18 implies a right to territorial access cannot be pursued in a legal and contextual vacuum. Standing on its own, one needs indeed to inquire whether states could have wanted the right to asylum in Article 18 to imply a right to access the asylum state from anywhere or whether such an implied right would be necessary to render Article 18 ‘practical and effective, not theoretical and illusory’. This would imply, for instance, that individuals could access embassies or consulates of the asylum state in third countries in order to claim a right to enter the EU territory with a view to accessing asylum procedures. It is not clear whether such a situation would constitute a ‘sufficient connection’, in line with the CJEU jurisprudence, to establish jurisdiction in the sense of Article 51(1) CFR. Hence, it is unclear whether granting access to EU territory would be a Member State obligation under Article 18 of the Charter as such. The situation is, however, different when EU Member States and/or EU agencies actively engage migrants extraterritorially in a context in which EU law and policy are pursued and implemented, in particular border control and combatting the smuggling of migrants and trafficking of people. In those circumstances, there is arguably a clear link between the persons concerned and a body of EU law ‘being implemented’. Costello and Moreno-Lax have pointed out that the notion of implementation has been given a wide interpretation through the doctrine of effectiveness of EU law. One could argue that individual state operations at sea

156 

For a brief overview, see Mungianu (n 86) 123–25. cf Mungianu (n 86) 128, who states that: ‘Article 18 of the EU Charter explicitly refers to the 1951 Refugee Convention and therefore effects a renvoi to Article 33 of the Convention.’ 158  cf Moreno-Lax (n 119) 471 in fine. 157 

Symposium—Gombeer 47 touch upon the migration and asylum policy, and therefore are ‘connected in part to EU law’ and ‘affect the interests of the European Union’, criteria used in, inter alia, the Fransson case by the CJEU to delineate the scope of the CFR.159 Moreover, the right to asylum would be rendered theoretical and illusory when the whole gist of pre-border control and surveillance permits the prevention of asylum seekers and refugees from physically accessing and exercising their rights. E.  Disembarkation and Access to Asylum under Regulation 656/2014 An exception in the myriad of EU acquis is the Frontex Maritime Surveillance Regulation,160 which applies only to the operational context in which Frontex (soon the European Border and Coast Guard Agency (EBCGA)) assists Member States. Its provisions echo almost the same language as that of the ECtHR judges in Hirsi. This was the combined result of an annulment of Council Decision 2010/252/EU and academia, civil society and players such as the UNHCR161 inserting themselves into the legislative process and trying to ensure that this new Regulation would be ‘Hirsi-proof’. As a result, interceptions and rescue at sea scenarios in which Frontex is involved are guided by explicit rules concerning non-refoulement and disembarkation. Recital 19 of the Regulation states that the regulation ‘respects’ and ‘observes’ the right to asylum, while recital 17 states that ‘[the] operational plan should include procedures ensuring that persons with international protection needs … are identified and provided with appropriate assistance, including access to international protection’. Nonetheless, there is no further explicit reference to the right to asylum pursuant to Article 18 CFR in the provisions of this Regulation, nor any operational article with a view to guaranteeing access to asylum in the EU once under CFR jurisdiction. The principle of non-refoulement receives a prominent place in Article 4 of the Frontex Maritime Surveillance Regulation. It stipulates that no person shall be disembarked in contravention of the non-refoulement principle. In order to do so, states need to ensure that an assessment of the general situation in third countries in that regard is part of the operational plan.162 This does not mean that migrants retrieved at sea will automatically be disembarked onto safe EU territory grounds. Implicit in the language of paragraph 3 of Article 4 is the idea that participating units can still disembark migrants onto non-EU territory. This is in line with our analysis that the prohibitions of refoulement and collective expulsion do not necessarily imply disembarkation onto the territory of the state which is exercising jurisdiction under

159 

Costello and Moreno-Lax (n 129) 1681, §59.60. No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 27 June 2014 [2014] OJ L189/93 (Frontex Maritime Surveillance Regulation). 161  See, eg, UNHCR (n 102). 162  Frontex Maritime Surveillance Regulation (n 160) art 4(1)–(2). 160  Regulation

48  The Irish Yearbook of International Law 2015 the ECHR (see section III above). The only constraint stems from positive human rights obligations—as in Hirsi—in that before disembarking migrants onto thirdcountry soil, the participating units have to identify the intercepted or rescued persons, assess their personal circumstances, inform them of their destination and give them an opportunity to express that the planned disembarkation would violate the non-refoulement principle.163 The second paragraph of Article 4(3) requires that operational plans must include ‘when necessary, the availability of shore-based medical staff, interpreters, legal advisers and other relevant experts of the host and participating Member States’.164 This begs the question of how the shore-based capacities and services can be rendered practicable when it is decided to disembark on non-EU territory—ie, a place where those very required capacities will not be present. These capacities make it possible to satisfy the more demanding positive obligations that the non-refoulement principle arguably entails (see section III), but still only if disembarkation occurs in the EU territory where these capacities are present. In other words, when disembarkation occurs on the territory of a non-EU Member State, this may still not be in conformity with the non-refoulement principle and a fortiori the right to asylum, despite the efforts made in the Frontex Maritime Surveillance Regulation. A second pivotal provision in the Regulation is Article 10, which regulates disembarkation. Aside from carrying out the above-mentioned non-refoulement exercise (with its identified dysfunctions included), the Regulation contemplates four disembarkation scenarios: —— when interception takes place in the territorial sea or the contiguous zone, disembarkation shall take place in the coastal Member State (emphasis added); —— when interception takes place on the high seas, disembarkation may take place in the third country from which the vessel is assumed to have departed, but if that is not possible disembarkation shall take place in the host Member State (emphasis added); —— when a search and rescue takes place, the participating States shall then cooperate with the responsible SRR State to identify a place of safety165 for disembarkation. In case no solution is found for disembarkation in this scenario, disembarkation must take place in the host Member State. —— additionally, non-participating EU Member States can allow disembarkation on to their territory with their explicit (ad hoc) consent, but they cannot be forced to do so.

This disembarkation scheme remedies an important gap that exists in the classic LoS framework for disembarkation: In the event that no proper disembarkation venue can be found, there is always a compulsory back-up onto EU soil to avoid standoffs and delays. However, these provisions remain problematic given that scenarios two and three risk impeding migrants to exercise their subjective right to seek asylum

163 

ibid art 4(3), §1, ibid art 4(3), §2. 165  A place of safety is defined as ‘a location where rescue operations are considered to terminate and where the survivors’ safety of life is not threatened, where their basic human needs can be met and from which transportation arrangements can be made for the survivors’ next destination, taking into account the protection of their fundamental rights in compliance with the principle of non-refoulement’. Frontex Maritime Surveillance Regulation (n 160) art 2(12). 164 

Symposium—Gombeer 49 on EU territory, a right that must be guaranteed in the context of Frontex-assisted missions, as the law that applies in those situations is EU law and hence triggers the application of Article 18 CFR. V.  CONCLUDING ANALYSIS

A.  The Mosaic of Norms Affecting Disembarkation Within the European context, a complexity of norms is at play regarding the disembarkation of migrants. Under the LoS, there is currently no obligation for states to accept the disembarkation of migrants onto their territory, nor does there exist a residual rule which allocates such responsibility when no venue for disembarkation can be found. However, it would be erroneous to conclude that the LoS is unfit in terms of regulating disembarkations. The SAR and SOLAS Conventions describe clear responsibilities for coastal states and flag states to coordinate and cooperate to find a place for disembarkation and to have the appropriate mechanisms in place to that end.166 Rather, the problem lies with the European coastal states that are unable or unwilling to accept migrants within their territory. Therefore, this article aimed at looking for normative guidance beyond the LoS to establish how disembarkation may be regulated. As the underlying problem is not one of maritime policy but of border controls and asylum, the problem should be guided by the relevant human rights law and the EU acquis. Complying with the full scope of human rights obligations under the ECHR instruments necessitates the disembarkation onto land when migrants are under the ECHR jurisdiction of a Contracting Party. However, this land should not necessarily be EU territory when migrants are intercepted or rescued on the high seas: under the ECHR, access to asylum is not an absolute requisite to fulfil the procedural guarantees of Article 13 ECHR. A third country is arguably suitable for disembarkation as long as procedures similar to the standards of Article 13 juncto Article 3 ECHR and Article 4 of Protocol No 4 can be complied with. With the exception of one judge, the Grand Chamber in Hirsi did not—arguably rightly so—touch upon the issue of the precise positive state obligations arising from the prohibition on refoulement and collective expulsion in an extraterritorial context, in particular an implied right to asylum and access to territory. The situation is different when migrants find themselves beyond the territorial waters of an EU Member State, but in a situation in which EU law is being implemented: once a migrant is engaged at sea by EU Member States authorities (in their individual capacity167 or in the framework of a Frontex-assisted mission) or an

166 

cf Campàs Velasco (n 5), at 66–68. negotiating the Frontex Maritime Surveillance Regulation, several coastal Member States opposed the application of its principles to their own operations at sea in their individual capacities. They also did not accept precise disembarkation rules for their individual missions: the general tone was that ‘regulation of search and rescue and disembarkation in an EU legislative instrument is unacceptable’ and ‘constitutes a red line’. See S Carrera and L den Hertog, ‘Whose Mare? Rule of Law Challenges in 167  When

50  The Irish Yearbook of International Law 2015 EU agency in the framework of border control operations, he or she should be given access to international protection procedures pursuant to Article 18 CFR. This necessitates disembarkation onto EU territory and not merely onto a safe territory of a third country, as—in theory—could be the case under the prohibitions of refoulement and collective expulsion under the ECHR system and Article 19(1)–(2) CFR. A brief scrutiny of the EU acquis reveals a reluctance to regulate access for migrants to European soil and international protection mechanisms. Although secondary legislation creates extensive procedural safeguards for asylum seekers and refugees, these mechanisms are reserved for those who are able to make it to EU territory or to a place at its external borders. Absent a clear rule which obliges EU Member States to allow the migrants it engages on the high seas to lodge an asylum claim within its territory, there is arguably a situation of non-alignment between the EU acquis and the CFR. The translation of fundamental rights into a protection-friendly external border practice is a challenge for the EU,168 despite policy commitments made at the highest political level on ‘facilitating access and improving security’169 and ‘enhancing legal avenues to Europe’.170 Absent clear binding European norms, it will be up to the ECtHR or the CJEU to embark upon this sensitive topic and settle the issue of access to protection in the extraterritorial context, and hence also the issue of disembarkation.171 As the problem of disembarkation is also one of policy, this concluding analysis considers a few elements that may incentivise states to create legal and practical solutions for disembarkation, taking some of the pressure and expectations away from the court system. B.  Can Disembarkation Be Made Acceptable through Burden Sharing? It is not the first time that large influxes of migrants and refugees have created challenges. Burden sharing was successfully applied in some historical cases,172 while in others it remained stuck at the policy level.173 Elements of burden sharing may increase the willingness of EU coastal states to accept disembarkations of migrants,

the Field of European Border Surveillance in the Mediterranean’, CEPS Paper in Liberty and Security in Europe, No 79, January 2015, 11–12. 168 

Den Heijer (n 34) 205; Peers, Guild and Tomkin (n 141) 39. The Stockholm Programme: An open and secure Europe serving and protecting citizens [2010] OJ C115/01, §5.1. 170  CEAS reform communication (n 4). 171  ‘Bringing legal challenges with regard to distant and opaque State practices’ is, however, fraught with practical obstacles: Costello (n 64) 249. 172  Klug (n 22) 57–58; A Suhrke, ‘Burden-Sharing during Refugee Emergencies: The Logic of Collective versus National Action’ (1998) 11 Journal of Refugee Studies 405. 173  By 1993, some 600,000 individuals from the former Yugoslavia had entered the EU. The proposal of the German Presidency in the Council of 1994 to relocate migrants according to each state’s population, size of territory and GDP did not receive the necessary support. C Boswell, ‘Burden-Sharing in the European Union: Lessons from the German and UK Experience’ (2003) 16 Journal of Refugee Studies 329; E Thielemann, ‘Burden-Sharing’ in E Jones, A Menon and S Weatherill (eds), The Oxford Handbook of the European Union (Oxford, Oxford University Press, 2012) 817; Suhrke (n 172) 407. 169 

Symposium—Gombeer 51 although recent developments have provided us with a reality check as we move on to contemplate possible solutions. Incentives may be provided with regard to three problem areas for coastal states: overburdened disembarkation venues, overburdened processing capacity and an overburdened share of asylum seekers. A first component of burden sharing could lie in spreading disembarkations over different safe ports along the EU external border. This would alleviate overburdened smaller ports and islands close to popular routes for overseas crossings, which are mainly situated in Greece and the southern coasts of Italy. This could be operationalised through pre-established lists of safe ports which are provided by the EU coastal states. A similar system of a list of ‘places of refuge for vessels’ already exists in the sphere of marine environment protection. Article 20 of Directive 2002/59/EC requires coastal states to identify safe ports for receiving vessels in distress in order to protect human life and the marine environment.174 Its system practically runs on specialised authorities and is incentivised by financial compensations for allowing disembarkation.175 In terms of decision making, the appointed authorities have an obligation to allow disembarkation to a place of refuge ‘if they consider such an accommodation the best course of action for the purposes of human life or the environment’.176 Aside from the political hurdles, the concern that a journey to a port further down the European coastline would be impracticable can be refuted. French, Spanish or Portuguese ports or ports further down the Italian, Croatian or Slovenian coast could be reached between 10 and 24 hours, depending on the vessel. There has even been one instance in which a Danish container ship picked up migrants off the coast of Sicily and disembarked them in Felixstowe, England.177 Although merchant vessels might be less flexible than state vessels, a larger pre-established list may actually accommodate more flexibility in terms of venues for disembarkation. Major European coastal cities could play a role in this. Coastal states other than Italy and Greece will, however, be reluctant to participate in a port-sharing scheme. To increase the incentives for acceptance, a second important element of burden sharing may lie in delinking disembarkation duties from the identification and registration of migrants on the one hand, and the full responsibility to process asylum applications on the other hand. This idea has already been proposed by the UNHCR178 and explored by, inter alia, Di Filippo, who argues that it could be implemented in accordance with the Dublin III Regulation.179 This delinking has also been used in the Gulf of Aden, where, with the involvement of

174  Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system as amended by Directive 2009/17/EC of 23 April 2009, 28 May 2009 [2009] OJ L131/101. 175  ibid art 20c. 176  ibid art 20b. 177  Den Heijer (n 34) 231. 178 UNHCR, Central Mediterranean Sea Initiative (CMSI)—Action Plan (2014) 2, §3. 179  M Di Filippo, ‘Delinking Disembarkation and Assumption of Responsibility for Asylum Seekers— Proposal for an EU Pilot Project Not Requiring an Amendment of the Dublin Regulation’, High Commissioner’s Dialogue on Protection Challenges, 2014—Protection at Sea, 4.

52  The Irish Yearbook of International Law 2015 the UNHCR, migrants were disembarked in Djibouti and processed in Ethiopia.180 Applied to the European context, UNHCR and EASO-assisted processing could— to varying degrees181—be expanded to other safe ports along the EU coast, reducing pressure on the currently overcrowded so-called hotspots, while schemes of relocation—again with the support of the UNHCR and the EASO—could be used to share the burden of taking in qualified asylum seekers. Return schemes for those not qualifying for international protection could also be organised from these venues with the assistance of the the EBCGA, the EASO and the IOM. C.  Current Practice and Reforms: The EU-Turkey Statement and Beyond i.  State Practice in the Mediterranean: The EU-Turkey Statement The recent EU-Turkey Statement182 and its implementation are an example of how burden-sharing techniques can negatively affect the rights of migrants. First, the disembarkation and subsequent reception of migrants is mostly limited to the hotspots, leading to high concentrations of people on a limited amount of islands. The Greek Law 4375/2016183 now foresees that all third-country nationals and stateless persons irregularly entering Greek territory are led to Reception and Identification Centres (RICs) where they are automatically detained.184 These overcrowded de facto detention centres risk resulting in substandard conditions for migrants and delays in registering and processing asylum claims.185 Second, regarding ‘sharing migrants’ as a burden-sharing element, the EU has turned away from using intra-EU relocation for all maritime arrivals since 20 March 2016.186 Instead, all new maritime irregular arrivals from Turkey to Greece are to

180 

Klug (n 22) 60–61. H Urth, M Heegaard Bausager, HM Kuhn and J van Selm, Study on the Feasibility and Legal and Practical Implications of Establishing a Mechanism for the Joint Processing of Asylum Applications on the Territory of the EU, Final Report for the European Commission, HOME/2011/ERFC/FW/04 (2013). 182  Statement of the EU Head of State or Government, European Council, Brussels, 8 March 2016, available at: www.consilium.europa.eu/en/press/press-releases/2016/03/07-eu-turkey-meeting-statement; and EU-Turkey Statement, European Council, Brussels, 18 March 2016, available at: www.consilium. europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement. 183  Greek Law No 4375/2016 of 2 April 2016 on the establishment of an Asylum Service, an Appeals’ Authority, a Reception and Identification Service, the establishment of the General Secretariat on Reception, the transposition into Greek legislation of the provisions of Directive 2013/32/EC ‘on common procedures granting and withdrawing the status of international protection’ (L180/29.6.2013), provisions on the employment of beneficiaries of international protection and other provisions, Journal of the Government, The Greek Republic, first issue, Sheet no 51, 3 April 2016 (Greek Law No 4375/2016), available at: www.asylumineurope.org/sites/default/files/resources/nomos_4375-2016.pdf. 184  Greek Law No 4375/2016 (n 183), art 14(1) and (2). 185  According to the UNHCR, the RICs in Greece are currently characterised by overcrowding, internal tensions, delays in registrations, a lack of information on asylum claims and inadequate standards of living. See, eg, UNHCR, ‘Weekly Report—October 28, 2016’, available at: http://data.unhcr.org/mediterranean/regional.php. 186  Moreover, for those who arrived before 20 March 2016, relocation numbers are very low: as of December 2016, only a total of 6,149 (9.2%) of the targeted 66,400 asylum seekers have been relocated 181  See

Symposium—Gombeer 53 be returned to Turkey according to the EU-Turkey Statement. Irregular migrants not applying for asylum will be returned. Those migrants who do apply for asylum are being subjected to an ‘exceptional border procedure’187 in which the safe third country (STC) and first country of asylum (FCA) concepts pursuant to Article 33 APD are used to render asylum claims on EU territory inadmissible.188 According to Greek law, these expulsions are based on individual assessments and with respect to the necessary rights and procedural safeguards.189 Nonetheless, there is a high risk that both Syrians and non-Syrians disembarked on the Greek islands are being returned to Turkey in violation of the criteria and safeguards laid down in EU and human rights law, as the plight of migrants and refugees in Turkey remains precarious.190 By trying to remove asylum seekers and refugees under the STC and FCA concepts instead of assessing asylum claims on their substance, the EU has found a way to return migrants en masse under the pretext of legality under the EU asylum acquis. As a form of compensation, for every Syrian re-admitted to Turkey, one Syrian is supposed to be resettled to the EU under the ‘one for one’ scheme. The amount of resettlements under this scheme remains low, both compared to the number of pledges so far (2,217 out of a total of 11,228 pledges)191 and compared to the hypothetical amount of asylum seekers that arguably could have reached Greek (EU) territory were it not for the enforcement of the EU-Turkey Statement at sea.192 ii.  The CEAS Reform On 6 April 2016, the European Commission announced a reform of the Common European Asylum System (CEAS), inter alia with a view to ‘improve safe and legal avenues to the EU’.193 These reforms form an opportunity to remedy the existing flaws with regard to the protection and safe disembarkation of migrants at sea pointed out in this article. On 4 May 2016, the European Commission proposed reforming the Dublin Regulation, which would contain a corrective allocation mechanism to share the burden of asylum applications among the Member States ‘in situations

since the programme’s inception in November 2015. The relocation numbers from Italy to other EU Member States are even lower both in absolute and relative terms: a mere 1,950 individuals (5%) out of the targeted 39,600 have been relocated. UNHCR, ‘Weekly Report—December 9, 2016’, 4. See also for more details European Commission, Communication from the Commission to the European Parliament, the European Council and the Council: Seventh Report on Relocation and Resettlement, Brussels, 9 November 2016 COM(2016) 720 final. 187 

Greek Law No 4375/2016 (n 183) art 60(4). ibid arts 54, 55 and 56. 189  ibid art 60(1). 190  The UNHCR has indicated its concerns in several of its reports, inter alia with regard to a lack of information on what happens to those returned to Turkey and regarding the lack of access of the UNHCR itself to those returned. See, eg, UNHCR, ‘Weekly Report—October 28, 2016’, 3, §3. 191  European Commission (n 186) 13, §6. 192  In 2015, Greece had 856,723 arrivals by sea; there have been 171,496 so far in 2016, of which about 150,000 (roughly 88%) arrived before the implementation of the EU-Turkey Statement. Data available at: http://data.unhcr.org/mediterranean/country.php?id=83. 193  CEAS reform communication (n 4). 188 

54  The Irish Yearbook of International Law 2015 when a Member State is confronted with a disproportionate number of applications for international protection for which it is the Member State responsible under the Regulation’.194 This mechanism may be especially significant in relation to reducing the burden of the coastal states of Italy and Greece in terms of ‘sharing migrants’, yet has proven to be a contested issue. Additionally, the European Commission also released a set of further reform proposals on 13 July 2016, including of the recast APD, which will be transformed into an Asylum Procedures Regulation (APR).195 Certain elements should be taken into consideration with regard to the latter. First, two remarks should be made regarding the physical access to asylum after interception or rescue at sea following the triggering of Article 18 CFR and the asylum acquis. On the one hand, the APR proposal now explicitly stipulates that state officials at their own initiative have to ask the persons concerned whether they wish to receive international protection,196 thereby aligning itself with the ECtHR jurisprudence in Hirsi as set out above. On the other hand, the new APR should moreover provide an express provision which facilitates access to asylum procedures when under the jurisdiction of an EU Member State at sea. Currently, Article 3 of the recast APD foresees that it only applies to applications made ‘in the territory, including at the border, in the territorial waters or in the transit zones of Member States’.197 The proposed new Article 2(1) APR does not change anything in this regard. Second, the lowering of certain standards in the APR proposal may affect access to protection in the EU territory and thus the disembarkation question in the longer run. The new APR consolidates the paradigm established under the EU-Turkey Statement regarding the application of the FCA and STC concepts. While under the recast APD the application of these concepts is optional (‘may’), the APR proposal makes them a compulsory step. Not only are these concepts controversial from an international refugee law perspective,198 their automatic application in the maritime context may lead to a practice in which only a very limited procedure199 is followed compared to access to a substantive asylum procedure for those rescued or

194  European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), Brussels, 4 May 2016, COM(2016) 270 final, 17–18. 195  European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, Brussels, 13 July 2016, COM(2016) 467 final (APR proposal). 196  APR proposal (n 195) art 25(1), §2. 197  Recast APD (n 124) art 3(1). 198 ECRE, ECRE Comments on the Commission Proposal for an Asylum Procedures Regulation COM (2016) 467, November 2016, 51. 199  On the minimal safeguards to be offered in admissibility procedures under the current recast APD, see inter alia UNHCR, ‘Legal Considerations on the Return of Asylum-Seekers and Refugees from Greece to Turkey as Part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the Safe Third Country and First Country of Asylum Concept’, 23 March 2016, 4 and 7, available at: www.refworld. org/docid/56f3ee3f4.html.

Symposium—Gombeer 55 intercepted. While the latter clearly requires disembarkation onto land (ie, EU territory), it may be a future development in EU policy to have admissibility procedures take place within territories of third states200 or even at sea.201 Awaiting new jurisprudence on the extraterritoriality of the right to asylum and the enactment of EU norms on physical access to international protection, durable disembarkation solutions in the Mediterranean with due respect for the subjective rights of migrants are very limited. As such, the proper realisation of human rights of migrants seeking to reach Europe by sea remains adrift.

200  cf the so-called ‘Pacific solution’. See, eg, K Pennington-Hill, ‘Australia Makes a U-turn with the Revival of the Pacific Solution: Should Asylum Seekers Find a New Destination?’ (2014) 13 Washington University Global Studies Law Review 592–93. 201  N Nielsen, ‘Italy’s “Floating Hotspot” Idea to Sink in Legal Waters’, EUobserver, 2 June 2016, available at: https://euobserver.com/migration/133659.

56 

The International Convention on Maritime Search and Rescue Legal Mechanisms of Responsibility Sharing and Cooperation in the Context of Sea Migration? AINHOA CAMPÀS VELASCO*

INTRODUCTION

T

HE YEAR 2016 is marked as the deadliest on record for ‘sea migrants’1 crossing the Mediterranean Sea trying to reach Europe. According to International Organization for Migration (IOM) figures, the number of reported fatalities and persons missing at sea amounts to 5,083, and the number of recorded sea arrivals reached 363,348.2 These figures compare starkly to the previous year, where the IOM reported 3,771 dead and missing sea migrants in the same region, despite the number of recorded sea arrivals reaching 1,011,712. Overall, the Mediterranean

* PhD candidate at the University of Southampton. The author would like to thank the Maritime Knowledge Centre at the International Maritime Organization (IMO) for allowing access to the working documents of the International Convention on Maritime Search and Rescue 1979. The author is also deeply grateful to Mr Irfan Rahim, Senior Official at the IMO, for his availability from the early stages of the research, and also to Professor Andrew Serdy and Dr Richard Collins, as well as the anonymous reviewers, for their invaluable comments. Any shortcomings remain the author’s own. All websites accessed 6 February 2017 unless otherwise stated. 1  This term is used in the present article to refer to refugees, asylum seekers and economic migrants, including persons with specific needs, such as trafficked persons, stateless persons and unaccompanied children or separated children, travelling irregularly by sea, in what has been called ‘mixed migration movements’. See UNHCR Background Paper on ‘Refugees and Asylum-Seekers in Distress at Sea— How Best to Respond?’, Expert Meeting in Djibouti, 8–10 November 2011, available at: www.unhcr. org/4ec1436c9.html. 2 This information was last updated on 6 February 2017. See the IOM information available at: http://missingmigrants.iom.int/mediterranean-migrant-arrivals-reach-354804-deaths-sea-4742; and at: https://www.iom.int/news/mediterranean-migrant-arrivals-top-363348-2016-deaths-sea-5079. The unprecedented number of children crossing the Mediterranean is to be highlighted, as reported at: http://data.unhcr.org/mediterranean/country.php?id=83 and at: www.iom.int/sites/default/files/press_release/ file/IOM-UNICEF-Data-Brief-Refugee-and-Migrant-Crisis-in-Europe-30.11.15.pdf. The IOM defines the term ‘migrant’ as a person moving or having moved either internationally or within the territory of a state, regardless the person’s legal status and the motivations behind. Consequently, this term includes refugees, in accordance with the definition contained in art 1 of the Convention relating to the Status of Refugees, Geneva, 28 July 1951 and its Protocol, New York, 31 January 1967. See the IOM migration terms at: https://www.iom.int/key-migration-terms.

58  The Irish Yearbook of International Law 2015 is at present the deadliest region in terms of irregular sea crossings, followed by Southeast Asia, particularly the Bay of Bengal and the Andaman Sea.3 The sheer scale of losses of lives at sea in what has been described as the worst refugee crisis since the Second World War poignantly illustrates the existence of a dysfunctional international legal framework. It highlights, in particular, the limitations of the International Convention on Maritime Search and Rescue 1979, as amended4 (hereinafter the SAR Convention), a convention that frames an international system of cooperation and coordination between States Parties with the purpose of ensuring common and efficient procedures to guarantee that assistance is rendered to any person in distress at sea.5 It remains a convention that was nevertheless neither designed nor intended to respond to mass mixed migration by sea.6 According to the United Nations High Commissioner for Refugees (UNHCR), the majority of migrants crossing the Mediterranean Sea are refugees fleeing conflict and persecution at home, and also fleeing from ‘deteriorating conditions in many refugee-hosting countries’.7 The scarcity or even lack of legal and safe avenues to seek protection, despite numerous calls for humanitarian visas,8 has undeniably contributed to the staggering numbers of irregular sea crossings, where the desperation of sea migrants has exacerbated their vulnerability in the hands of smugglers. The majority of sea migrants embark on life-threatening journeys on board unseaworthy boats or other ill-fitted craft, in inhuman and degrading conditions, setting course to a safe haven in search of international protection or better life conditions. Although this complex and multifaceted problem reaches beyond the scope of the SAR Convention, it remains necessary to scrutinise this key instrument in the area of maritime search and rescue. Furthermore, the present crisis prompts the need to question whether the concerns surrounding this unprecedented scale of unsafe

3  This information is taken from the figures reported by the IOM, available at: http://missingmigrants. iom.int/mediterranean, http://doe.iom.int/docs/Flows%20Compilation%202015%20Overview.pdf and generally https://www.iom.int. On the situation in the Bay of Bengal and the Andaman Sea, see B Ní Ghráinne, ‘Left to Die at Sea: State Responsibility for the May 2015 Thai, Indonesian, and Malaysian Pushback Operations’, in this volume at 109–131. 4  Hamburg, 27 April 1979, 1405 UNTS 19. The SAR Convention entered into force on 22 June 1985. The number of Contracting States to this Convention comes to 108 as at 5 February 2017. This information is available at: www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx. 5 SAR Convention, fourth preambular paragraph. See also the IMO publication ‘Focus on IMO’, March 1999, for background information, available at: www.imo.org/en/OurWork/Safety/Regulations/ Documents/GMDSSandSAR1999.pdf, and www.imo.org/en/OurWork/Safety/RadioCommunicationsAndSearchAndRescue/SearchAndRescue/Pages/SARConvention.aspx. 6  Mr Koji Sekimizu, the IMO Secretary-General at the time, stated: ‘There is clear recognition among IMO Member States that using the SAR system to respond to mass mixed migration was neither foreseen nor intended, and that although Governments and the merchant shipping industry will continue rescue operations, safe, legal, alternative pathways to migration must be developed, including safe, organized migration by sea, if necessary.’ IMO press briefings, ‘IMO Secretary-General Welcomes UN Security Council Resolution on Migrant Smuggling’ Briefing 45, 14 October 2015, available at: www.imo.org/en/ MediaCentre/PressBriefings/Pages/45-UNSC-resolution-.aspx. 7 UNHCR, ‘The Sea Route to Europe: The Mediterranean Passage in the Age of Refugees’, 1 July 2015, available at: www.unhcr.org/5592bd059.html. 8  Humanitarian visas are one of the so-called Protected Entry Procedures that can be processed through diplomatic representations outside the territory of EU Member States. See U Jensen, ‘Humanitarian Visas: Option or Obligation?’ Study for the Committee on Civil Liberties, Justice and Home Affairs, European Parliament, Brussels, 2014, available at: www.europarl.europa.eu/studies.

Symposium—Campàs Velasco 59 crossings need further consideration in the context of operational search and rescue procedures and the responsibility-sharing system overarching them. This article aims at providing an analysis of the SAR Convention to better understand the basic operational mechanisms in the search and rescue plan, as well as the responsibility-sharing system therein designed to deliver search and rescue services. It further attempts to highlight its segmented approach to a global and standardised response to the needs of those in distress at sea, and consequently its functional limitations outside of the context of regular maritime navigation. It also endeavours to assess the efforts made towards integrating broader concerns in the search and rescue system. To this end, this article first looks at the obligation to render assistance at sea under international law. Against this legal backdrop, it examines the motivations behind, and the drafting process that shaped the technical aspects of, the Annex to the SAR Convention. Second, it focuses on the narrow approach taken in the development of the operational framework. This approach, as it is analysed in section III below, is reflected in the responsibility-sharing system and the cooperation mechanisms in the SAR Convention, which raises the question of whether this legal instrument, designed to meet the needs of maritime traffic, is responsive to the needs of sea migrants. This question is examined in sections IV and V, in the light of the latest amendments to the SAR Convention and related instruments, focusing on the requirement of disembarkation at a place of safety and the concept of distress at sea in the context of sea migration. In both instances, a consideration arises regarding the suitability of a responsibility-sharing system exclusively based on the delineation of geographical areas of states’ responsibilities over the coordination of search and rescue operations. Although it is not possible to give a specific solution to the problem of responsibility-sharing, some positive steps forward in this respect are suggested at the end of the article, including considerations leading to a search and rescue system capable of better integrating standards of human rights and refugee law. I.  EXPLORING THE MOTIVATIONS: A RETROSPECTIVE LOOK AT THE SAR CONVENTION

The SAR Convention is an instrument informed by the duty to render assistance at sea, which is considered a moral and fundamental obligation enshrined in tradition among seafarers.9 The duty to render assistance at sea has been recognised as a norm of customary international law, binding on all states.10 It is present in a number of 9  C 54/17(d) IMO Council, 1985 and Addendum to the Report of the UNHCR, 40 GAOR, Supplement No 12A (A/40/12/Add.1), para 115(3), at 32, cited by M Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes’ (2002) 14 International Journal of Refugee Law 329, 335. 10  International Law Commission, Commentary on Draft Article 12 of the United Nations Convention on the High Seas,(1956) UN Doc A/3179, cited by J Coppens and E Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’ (2010) 25 International Journal of Marine and Coastal Law 377. See also S Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’ (2010) 25 International Journal of Marine and Coastal Law 523, 527; and Pallis (n 9) 334.

60  The Irish Yearbook of International Law 2015 court judgments in the context of salvage and in the context of charterparty disputes on grounds of deviation. For instance, in the English case of Scaramanga & Co v Stamp and Another,11 a charterparty dispute regarding whether the master had proceeded to a justifiable deviation, ie, to save human life, both the first instance and the Court of Appeal decisions devoted some passages to this duty enshrined in tradition and ingrained in humanity, highlighting its uniform and universal practice.12 The SAR Convention is hence underpinned by the customary obligation of shipmasters to render assistance at sea, which crystallised in the 1910 International Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea,13 and the Convention for the Unification of Certain Rules of Law with Respect to Collisions between Vessels.14 It was further codified in the 1958 Convention on the High Seas,15 where a land-based obligation was placed upon coastal states to promote the establishment and maintenance of adequate and effective search and rescue services, and further echoed in its successor, the 1982 United Nations Convention on the Law of the Sea (UNCLOS).16 This duty is also contained in the 1974 International Convention for the Safety of Life at Sea, as amended (hereinafter the SOLAS Convention).17 The SAR Convention is mindful of ‘the great importance attached in several conventions to the rendering of assistance to persons in distress at sea and to the establishment by every coastal State of adequate and effective arrangements for coast watching and for search and rescue services’,18

11 

Scaramanga & Co v Stamp and Another (1879) IV CPD 316, (1880) V CPD (CA) 295. (1879) IV CPD 316, 318 and 319. See also the Court of Appeal decision (1880) V CPD (CA) 295, 304 and 305: ‘Moreover, the uniform practice of the mariners of every nation … of succouring others who are in danger, is so universal and well known, that there is neither injustice nor hardship in treating both the merchant and the insurer as making their contracts with the shipowner as subject to this exception to the general rule of not deviating from the appointed course. Goods owners and insurers must be taken … as acquiescing in the universal practice of the maritime world, prompted as it is by the inherent instinct of human nature, and founded on the common interest of all who are exposed to the perils of the seas.’ 13 Brussels, 23 September 1910, 212 CTS 187. Article XI reads: ‘Every master is bound, so far as he can do so without serious danger to his vessel, her crew and her passengers, to render assistance to everybody, even though an enemy, found at sea in danger of being lost. The owner of a vessel incurs no liability by reason of contraventions of the above provision.’ Article 10 (‘Duty to render assistance’) of its successor, the International Convention on Salvage, 1989, provides: ‘1. Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea. 2. The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1. 3. The owner of the vessel shall incur no liability for a breach of the duty of the master under paragraph 1.’ 14  Brussels, 23 September 1910, 212 CTS 178. Article 8 provides: ‘After a collision, the master of each vessel in collision is bound, so far as he can do so without serious danger to his vessel, her crew and her passengers, to render assistance to the other vessel, her crew and her passengers. He is likewise bound so far as possible to make known to the other vessel the name of his vessel and the port to which she belongs, and also the names of the ports from which she comes and to which she is bound. A breach of the above provisions does not of itself impose any liability on the owner of a vessel.’ 15  Geneva, 29 April 1958, 450 UNTS 11, art 12. 16  Montego Bay, 10 December 1982, 1833 UNTS 3, arts 98.1(a) and (b) and 98.2. This Convention was described by the President of the Third United Nations Conference of the Law of the Sea, Tommy B Koh, as a ‘comprehensive constitution for the Oceans’. His remarks are available at: http://un.org/depts/ los/convention_agreements/texts/koh_english.pdf. 17  1 November 1974, entered into force 25 May 1980, 1184 UNTS 278. See c V, regs 7 and 33. 18  SAR Convention, first preambular paragraph. 12  See

Symposium—Campàs Velasco 61 and it is intended to develop and promote these services by providing a framework for an international maritime search and rescue plan. However, the widely conceived duties contained in Article 98 UNCLOS need to be contrasted with the operational system contained in the SAR Convention, which was designed to respond to situations of distress following accidents at sea19 and to the needs of maritime traffic.20 Altogether, this creates a compartmentalised approach to maritime search and rescue, which limits its effectiveness in the search and rescue of sea migrants. To this end, a retrospective look at the SAR Convention is relevant. The international North Atlantic Air and Surface Search and Rescue Seminar in 197021 (hereinafter the 1970 Seminar) was convened to provide the initial step for an exploratory study on the viability of an ‘International Organizational Plan for Search and Rescue Operations’.22 At the request of the Intergovernmental Maritime Consultative Organization, since renamed the International Maritime Organization (IMO),23 the Seminar considered the need for, and the feasibility of, providing for worldwide organisational plans. The initial goals were to define areas of responsibility for maritime search and rescue operations, to assist with communications between rescue services and to provide guidelines for the development and organisation of search and rescue.24 The principal motivation for this initiative was determined by the lack of a formal international agreement delineating the geographical areas to ascertain states’ obligations over the coordination of maritime search and rescue operations. The absence of an international legal framework resulted in the application of the existing International Aviation Search and Rescue Plan under the 1944 Convention on International Civil Aviation,25 known as the International Civil Aviation Organization (ICAO) SAR Plan, both to aeronautical and maritime incidents.26 However, as

19  See IMO, SAR Convention: International Convention on Maritime Search and Rescue, 1979, as Amended by Resolutions MSC.70(69) and MSC.155(78), 3rd edn, 2006, at p iii, first paragraph. 20  SAR Convention, third preambular paragraph. 21 This seminar was held on 26–28 October 1970 in New York. It was organised around plenary sessions dealing with general subjects, and through four workshops focusing on search and rescue operations, search and rescue communications, search and rescue incidents and search and rescue safety programmes. Note by the Secretariat on the International North Atlantic Air and Surface Search and Rescue Seminar 1970, IMCO Maritime Safety Committee, 23rd session, Agenda 11, 27 January 1971, MSC XXIII, vol 2, IMO Archives. 22  This overlapped with a more immediate subject for discussion at the Seminar on the feasibility study of a Multilateral North Atlantic Search and Rescue Plan. Note by the Secretariat on the International North Atlantic Air and Surface Search and Rescue Seminar 1970, IMCO Maritime Safety Committee, 23rd session, Agenda 11, 27 January 1971, MSC XXIII, vol 2, IMO Archives, para 4. 23  The title ‘Intergovernmental Maritime Consultative Organization’ (IMCO) was changed to ‘International Maritime Organization’ by virtue of amendments to the Convention on the Inter-Governmental Maritime Organization, United Nations, Treaty Series, vol 1276, p 468; and vol 1285, p 318. These amendments entered into force on 22 May 1982. For the sake of consistency, reference will be made here to IMO. 24  Note by the Secretariat on the International North Atlantic Air and Surface Search and Rescue Seminar 1970, IMCO Maritime Safety Committee, 23rd session, Agenda 11, 27 January 1971, MSC XXIII, vol 2, IMO Archives, para 1. 25  Chicago, 7 December 1944, 15 UNTS 295. Annex 12 to this Convention. 26  Although this observation made during the Seminar discussions focused on the SAR areas in the deep ocean areas of the North Atlantic, the same applied to other geographical regions.

62  The Irish Yearbook of International Law 2015 was highlighted during the 1970 Seminar, this de facto organisation was not well known among the wider maritime community,27 and it became vital to clarify international coordination responsibility among shore organisations around the world for surface, ie, maritime, SAR incidents. The 1970 Seminar framed the work as being aimed at the formalisation of a worldwide maritime SAR plan where the IMO was considered the ‘only organization responsible to deal with the problem’.28 In the light of the Terms of Reference defined by the IMO Secretariat, a Group of Experts was entrusted the task of preparing the draft Convention on Maritime Search and Rescue, and its technical Annex, together with the Maritime Search and Rescue Manual.29 The final draft of the Convention was submitted to the IMO Maritime Safety Committee for final approval and was then submitted to the Assembly, which convened an international conference to consider the adoption of a convention on maritime search and rescue,30 subsequently held in Hamburg in April 1979. The sessions of the working groups were attended by representatives of a number of countries, and by observers from various non-governmental organisations, in consultative status with the IMO. The observers belonged to the shipping or broader maritime community and the oil industry.31 The absence of consultative bodies linked to human rights or refugee

27  Predominantly, shipmasters and ship operators, either in need of assistance or engaged in a search and rescue operation. They were not fully aware of the geographical divisions for search and rescue coordination responsibilities and hence would encounter operational difficulties in coordinating with the responsible rescue authorities ashore, or seeking technical advice or assistance, in accordance with the guidelines provided to seafarers during emergencies at sea. These guidelines were at the time the Merchant Shipping Search and Rescue Manual (MERSAR Manual). Another SAR Manual also prepared by the IMO was the International Maritime Organization SAR Manual (IMOSAR), which contained guidelines for governments wishing to establish or develop their search and rescue organisations, and for personnel involved in the provision of search and rescue services. Both MERSAR and IMOSAR were superseded in 1998 by the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual. This Manual is jointly published by the IMO and the ICAO. It provides guidelines for a common aviation and maritime approach to search and rescue services. See IAMSAR Manual vol I, Organization and Management, 2013 edition, para 1.1.3. See also: www.imo.org/en/OurWork/Safety/RadioCommunicationsAndSearchAndRescue/SearchAndRescue/Pages/IAMSARManual.aspx. 28  Annex II to the International North Atlantic Air and Surface Search and Rescue Seminar, 1970, IMCO Maritime Safety Committee, 23rd session, Agenda 11, 27 January 1971, MSC XXIII, vol 2, IMO Archives, Workshop ‘A’, SAR Operations, in ‘Conclusion 0-3’, p 2. 29  The latter, although considered a main supporting document, together with IMOSAR (n 27), was not discussed at the International Conference on Maritime Search and Rescue, 1979, SAR/CONF/2, IMO Archives. 30  Resolution A.406(X) of 17 November 1977 of the Assembly, SAR/CONF/9, IMO Archives. 31  Although not all present at every session, the observers were: the International Chamber of Shipping (ICS), the International Shipping Federation, the International Association of Lighthouse Authorities (IALA), the International Association of Ports and Harbors (IAPH), the International Radio-Maritime Committee (CIRM), the International Association of Classification Societies (IACS), the International Cargo Handling Coordination Association (ICHCA), the ICAO, the International Confederation of Free Trade Unions (ICFTU), the Oil Companies International Marine Forum (OCIMF), the Oil Industry International Exploration and Production Forum (OCIMF), the Oil Industry International Exploration and Production Forum (E&P Forum) and the World Meteorological Organization (WMO) (Report of the second session of the group of experts on search and rescue, SAR II/9, 31 December 1974, IMO Archives; Report of the third session of the group of experts on search and rescue, SAR III/9, 5 January 1976, IMO Archives; Report of the fourth session of the group of experts on search and rescue, SAR IV/6, 19 October 1976, IMO Archives and Report of the fifth session of the group of experts on search and rescue, SAR V/6, 15 June 1977, IMO Archives).

Symposium—Campàs Velasco 63 organisations during the working group sessions is notable, reflecting the expertise sought and the specific interests considered in the maritime search and rescue system. An additional focus was only brought to the last stage of the drafting process, at the international conference, with the participation of the United Nations High Commissioner for Refugees, and it is relevant to put this intervention in its historical context. The Indochina crisis in the mid-1970s caused very large numbers of predominantly Vietnamese people, as well as Cambodians and Laotians, to flee by sea.32 They were known as the ‘boat people’. If 1978 was marked by a dramatic increase of refugees fleeing Vietnam, Laos and Cambodia on board ill-fitted and overcrowded boats, 1979 saw the highest numbers of ‘boat people’, and pushback practices by coastal states became increasingly recurrent. This had a deterrent effect on merchant ships, with masters being reluctant to rescue ‘boat people’ at sea due to the fear of not being allowed to disembark them, and consequently a devastating effect on the rescue of lives at sea.33 In this particular context, the Office of the UNHCR proposed rewording what was then paragraph 2.1.7 of the Annex to the SAR Convention, which initially read: ‘In providing assistance to persons in distress at sea, Contracting States shall do so regardless of the nationality of such persons’, to instead read as follows: ‘In providing assistance to persons in distress at sea, Contracting States shall do so regardless of the nationality or status of such persons or the nationality of the ship on which such persons find themselves.’ With this proposal, the UNHCR sought to ensure that ‘the Convention would also be applicable to matters of concern to this Office’.34 The wording was finally reconsidered and approved by the Drafting Committee to read as it is at present, under paragraph 2.1.10 of the Annex to the SAR Convention, that is: ‘Parties shall ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found.’35

32 See UNHCR, ‘State of the World Refugees, 2000’, ch 4, ‘Flight from Indochina’, available at: www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=3ebf9bad0&query=flight%20 from%20Indochina. Three International Refugee Conferences were held in July 1979 in Geneva, Switzerland, to deal with this refugee crisis: the International Council of Voluntary Agency Consultation on the Indo-China Refugee Problem, the United Nations Meeting on Refugees and Displaced Persons in South-East Asia, and the World Council of Churches Consultation on Indochinese Refugees. See B Stein, ‘The Legislative and Judicial Developments: The Geneva Conferences and the Indochinese Refugee Crisis’ (1979) 13 International Migration Review 716. 33 This resulted in a joint appeal made by the Secretary-General of the IMO and the High Commissioner for Refugees, to the IMO Member States, for the rescue of people fleeing the Indo-Chinese peninsula in small boats and found in distress at sea. See report of the United Nations High Commissioner for Refugees, UNHCR Reports to the General Assembly, 11 October 1979. United Nations General Assembly Official Records, Thirty-Fourth Session, Supplement No 12 (A/34/12), para 269, available at: www.unhcr.org/3ae68c370.html. A similar joint appeal was issued on 3 October 1977, on that occasion to shipowners, to rescue ‘boat people’ in distress at sea. See United Nations Juridical Yearbook 1977, Part Two, Legal Activities of the United Nations and Related Intergovernmental Organizations, ch III, 59 and 60, available at: http://legal.un.org/UNJuridicalYearbook/pdfs/english/ByChapter/chpIII/1977/chpIII.pdf. 34  International Conference on Maritime Search and Rescue, 1979, Agenda item 6, SAR/CONF/6/2, IMO Archives. 35  International Conference on Maritime Search and Rescue, 1979, Drafting Committee, Agenda item 4, SAR/CONF/D/3/Corr.2, IMO Archives.

64  The Irish Yearbook of International Law 2015 The SAR Convention thus acknowledges the concept of a universal duty to render assistance at sea. However, this contrasts with its narrow approach in the development of its operational framework. II.  THE SAR CONVENTION: AN INSTRUMENT NOT DESIGNED FOR THE SEARCH AND RESCUE OF SEA MIGRANTS

It is uncontroversial that the search and rescue system was not intended to respond to unsafe mass migration flows at sea.36 The question therefore arises as to what was the area of concern that shaped the search and rescue operational plan. The answer necessarily requires examining the role and the mandate of the IMO as the organisation responsible for dealing with this matter. The SAR Convention was ‘designed to improve existing arrangements and provide a framework for carrying out search and rescue operations following accidents at sea’ (emphasis added).37 According to the first conclusion formulated by the participants at the 1970 Seminar,38 the IMO was to take action to formalise a SAR Plan ‘responsive to the needs of the maritime traffic’ (emphasis added).39 This proved to be central in the preparatory work and the fundamental raison d’être of the international maritime search and rescue plan. It was, in fact, to remain in the preamble of the draft Convention submitted to the Conference for consideration.40 The preamble defines the aim of the Convention as the rescue of persons in distress at sea.41 However, the mechanisms of cooperation and coordination for this purpose are described as ‘an international maritime search and rescue plan responsible to the needs of the maritime traffic’ (emphasis added).42 However, the term ‘maritime traffic’ is not defined in the SAR Convention. Nor is it outlined in the Convention on Facilitation of International Maritime Traffic 1965, as amended (hereinafter the FAL Convention).43 Nonetheless, in the latter, the term can be readily associated with the concept of ‘ships engaged in international voyages’ in the context of regular navigation within the shipping community.44 36 

See n 6 above. See IMO (n 19). 38  See n 21 above. MSC XXIII, vol 2, Annex II, International North Atlantic Air and Surface Search and Rescue Seminar, 1970, Workshop ‘A’, SAR Operations, IMO Archives, p 2. 39  MSC XXIII, vol 2, Annex II, the International North Atlantic Air and Surface Search and Rescue Seminar 1970, Workshop ‘A’, SAR Operations, Conclusion 0-1, at para 5, IMO Archives. Although this conclusion referred to the North Atlantic Ocean, which was considered a priority area due to the large amount of maritime traffic, it was to be extrapolated to worldwide organisational plans. 40  International Conference on Maritime Search and Rescue, 1979, SAR/V/6, Annex II, IMO Archives. The word ‘responsive’ in the preamble of the draft presented by the Drafting Committee was substituted with the term ‘responsible’ (SAR/CONF/D/2, 19 April 1979, IMO Archives). 41  SAR Convention, second and third preambular paragraphs. 42  ibid, third preambular paragraph. 43  London, 9 April 1965, 591 UNTS 265. The FAL Convention aims to prevent unnecessary delays in maritime traffic, ie, to ships and to persons (either crew members or passengers) and property (either cargo or baggage) on board ships engaged in international voyages, by way of facilitating and reducing all formalities on their arrival at port, stay and departure, as well as cooperation among states. 44  FAL Convention, first preambular paragraph. Outside the shipping community, recreational navigation seems to have been also contemplated ab initio in the planning of the search and rescue system. This 37 

Symposium—Campàs Velasco 65 The central position of the shipping community in the maritime search and rescue system, as it transpires from the preamble of the SAR Convention, is indisputable. A number of considerations can explain this predominant place in the SAR organisational plan and hence assist in understanding the limitations in the legal design of the SAR Convention. A closer look at the scope of the IMO mandate, its main purposes and functions as architect and depositary of the SAR Convention, is necessary in this context. The IMO is a technical UN agency primarily focused on the shipping industry. It is defined as ‘the global standard-setting authority for the safety, security and environmental performance of international shipping’.45 Its main role is further described as creating ‘a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented’, in order to provide a ‘safe, secure and efficient international shipping industry’. It hence covers all aspects of international shipping, including ship design, construction, equipment, manning, operating and disposal, to ensure the shipping sector ‘remains safe, environmentally sound, energy efficient and secure’.46 According to the Convention on the International Maritime Organization (hereinafter the IMO Convention),47 shipping engaged in international trade and shipping services in general is at the very core of the IMO’s work. For instance, one of the purposes of the IMO is to facilitate cooperation among governments with regard to national regulation and practice relevant to shipping engaged in international trade.48 The improvement of maritime safety and the safeguarding of life at sea have been, since its origin, among the IMO’s most important objectives. One of its main organs, the Maritime Safety Committee (MSC), is concerned with all aspects of safety of shipping, according to the IMO’s own description.49 The MSC considers any matter within the scope of the IMO directly affecting maritime safety, among which is rescue at sea.50 The focus on maritime traffic in the SAR Convention is a consistent response to the initial motivation of establishing a maritime search and rescue plan, allowing the shipping community to become aware of their shore responsibilities over coordination of maritime search and rescue operations. It is therefore coherent to highlight in its preamble the needs of the maritime traffic, as merchant ships have been and

emerges from the very early considerations on search and rescue communications, where recommendations were made that all aircraft and ships, including yachts, be required to carry emergency beacons appropriate for their area of operations. This is extracted from the International North Atlantic Air and Surface Search and Rescue Seminar 1970, Workshop ‘B’ and the Note by the Secretariat, Maritime Safety Committee, 23rd session, Agenda item 11, 27 January 1971, as well as the report on Workshop ‘B’ in Annex I thereto, IMCO MSC XXIII/11, vol 2, IMO Archives. 45 

See www.imo.org/en/About/Pages/Default.aspx.

46 ibid. 47 

Geneva, 6 March 1948, 289 UNTS 3. The IMO Convention entered into force on 17 March 1958. IMO Convention, art 1. See also art 2 on the functions of the IMO in order to achieve its purposes. 49 The MSC also deals with piracy issues, as well as maritime security issues and armed robbery against ships. See IMO, ‘IMO, what it is’, available at: www.imo.org/en/About/Documents/What%20 it%20is%20Oct%202013_Web.pdf. 50  IMO Convention, art 28(a). 48 

66  The Irish Yearbook of International Law 2015 continue to be very frequently the nearest source of rescue facility, and play a crucial role in search and rescue operations worldwide. Additionally, the central attention to the needs of the maritime traffic here referred to is a response to the foreseeable needs of the shipping community when requiring assistance in the event of a maritime incident in the course of navigation. A good illustration of this would be the priority given to the North Atlantic region by the calling of the North Atlantic Seminar held in 1970, due to the density of maritime traffic in the area.51 This approach to the search and rescue plan is consequently reflected in the design of the responsibility-sharing and cooperation system conceived as a response to cases of maritime accidents in regular navigation. III.  THE SAR CONVENTION: A SYSTEM OF RESPONSIBILITY SHARING BASED ON GEOGRAPHICAL AREAS AND RELIANT ON COOPERATION

The development of the search and rescue system worldwide is based on responsibility sharing among states for the coordination of search and rescue services.52 Following the adoption of the SAR Convention, the IMO Safety Committee divided the world’s oceans into 13 search and rescue areas.53 Within each search and rescue area, the states concerned were to delineate search and rescue regions, the purpose of which was to clearly identify primary responsibilities among states for coordinating responses to distress situations in every area of the world. The delineation of search and rescue regions would further enable the rapid distribution of distress alerts to the appropriate rescue coordination centre,54 based on the location of the person, vessel or craft in need of assistance. The search and rescue regions for maritime search and rescue coordination were made to coincide as far as possible with those agreed for aeronautical search and rescue services and published by ICAO, on the basis that the ICAO areas of responsibility appeared to be largely suitable for maritime purposes. Consequently, the Maritime Safety Committee invited IMO member governments to indicate whether they could accept the Flight Information Regions established by ICAO in its regional Air Navigation Plans becoming geographical areas of responsibility for search and rescue coordination for maritime incidents. Member governments were also invited

51 

See n 21 above. ‘Search and rescue service’ is defined in para 1.3.3 of the Annex to the SAR Convention as: ‘The performance of distress monitoring, communication, co-ordination and search and rescue functions, including provision of medical advice, initial assistance or medical evacuation, through the use of public and private resources including co-operating aircraft, vessels and other craft and installations.’ In order to understand the scope of the service, the definitions of both ‘search’ and ‘rescue’ are also cited: ‘Search. An operation, normally co-ordinated by a rescue co-ordination centre or rescue sub-centre, using available personnel and facilities to locate persons in distress’ (para 1.3.1) and ‘Rescue. An operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’ (para 1.3.2). 53 See www.imo.org/en/OurWork/Safety/RadioCommunicationsAndSearchAndRescue/SearchAnd Rescue/Pages/SARConvention.aspx. 54  IAMSAR Manual vol I, Organization and Management, 2013 edn, para 2.3.15. 52 

Symposium—Campàs Velasco 67 to indicate their acceptance as to whether any other areas not considered for aeronautical purposes should be covered for maritime purposes.55 Additionally, the SAR Convention requires that the exact dimensions of search and rescue regions be established by agreement between the parties concerned in order to ensure coordinated search and rescue regions. In the absence of such an agreement, a secondary dictate is addressed to neighbouring countries, requiring them to use their best endeavours in reaching an agreement to enable necessary arrangements that would guarantee an adequate coordination of search and rescue services in the area, ensuring contiguity and avoiding overlaps.56 Nevertheless, this has proved to be a controversial point where territorial and economical motivations have overshadowed the very aim of defining geographical regions of primary responsibility among States Parties and ensuring efficient search and rescue services.57 Among these responsibilities, States Parties are to establish the basic elements for search and rescue services. These basic elements are, for instance: the development of a legal framework, in compliance with the parties undertaking to ‘adopt all legislative or other measures necessary to give full effect to the SAR Convention and Annex thereto’;58 the assignment of a responsible authority for search and rescue services; the organisation of all available resources; the establishment of adequate communication facilities; the management of the operational system through staff and other supporting personnel, including their training; as well as the coordination and operational processes to improve search and rescue services.59 States Parties are to ensure that the main components of a search and rescue system, whether national or regional, are in place to enable its efficient management and operation.60 The basic components of a search and rescue system include: search and rescue communications,61 search and rescue facilities,62 medical 55  Report of the Maritime Safety Committee on its 28th Session (17–21 September 1973) on Search and Rescue, item XII, MSC XXVIII/12, IMO Archives. See also Annex to the SAR Convention, para 2.1.8. 56  Annex to the SAR Convention, paras 2.1.3–2.1.7. 57  For a detailed look at the search and rescue regions in the Mediterranean, see the charts obtained from the US Coast Guard website, 7 and 8: www.uscg.mil/hq/cg5/cg534/nsarc/IMO%20Maritime%20 SAR%20Regions.pdf. Note the overlap areas between Spain and Morocco, Spain and Algeria and, most notably, between Italy and Malta, Greece and Turkey, and Turkey and Cyprus. For an analysis on overlapping functional zones, see Trevisanut (n 10) 524 and 538. The vast extension of the Maltese search and rescue region is therein considered at 524. On this point, see also J Coppens, ‘The Essential Role of Malta in Drafting the New Regional Agreement on Migrants at Sea in the Mediterranean Basin’ (2013) 44 Journal of Maritime Law and Commerce 89, 97–99. 58  SAR Convention, art I. 59  Annex to the SAR Convention, para 2.1.2 and IAMSAR Manual, vol I, Organization and Management, 2013 edn, para 1.7.4. 60  It is important to note that the composition of the services, facilities, equipment and staffing required by each search and rescue region may vary, depending on its physical characteristics. See IAMSAR Manual, vol I, para 2.1.2. 61 These are essential to enable rescue coordination centres to receive alerting information, which would allow the dispatch of specialised rescue units and other resources without delay. They are also crucial to allow the exchange of information with the persons in distress, as well as with all the parties actively involved in the operation, such as the SAR on-scene coordinator. See IAMSAR Manual, vol I, paras 2.1.2, 2.2.1 and 2.2.2. 62  A search and rescue facility is defined as: ‘Any mobile resource, including designated search and rescue units, used to conduct search and rescue operations’ (Annex to the SAR Convention, para 1.3.7). See also IAMSAR Manual, vol I, paras 2.1.2 and 2.5.

68  The Irish Yearbook of International Law 2015 support,63 an on-scene coordinator,64 support facilities,65 the rescue coordination centre66 and, where appropriate, a rescue subcentre.67 Ultimately, States Parties, having accepted responsibility to provide search and rescue services within a defined geographical area,68 are to ensure that assistance is provided to any person in distress at sea, ‘regardless of the nationality or status of such a person or the circumstances in which that person is found’.69 The search and rescue services include the disembarkation of survivors, an aspect that was developed in the 2004 amendments to the SAR Convention, as will be seen in detail in the following section.70 For the purposes of the present analysis on responsibility sharing, it suffices to point out here that the primary responsibility to guarantee the coordination and cooperation between the States Parties falls again on the state responsible for the search and rescue region in which the assistance is rendered, ‘so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and the guidelines developed by the Organization’.71 To this end, a mandatory provision is addressed to the rescue coordination centres (RCCs) or subcentres concerned to start the process of identifying ‘the most appropriate place(s) for disembarking persons found in distress at sea’ at the termination of search and rescue operations and, consequently, to inform the ship or ships involved.72 A search and rescue plan, where the responsibility-sharing system for coordination over search and rescue operations is based exclusively on a geographical delineation and the assignment of search and rescue regions to States Parties, may be a sound plan when responding to accidents occurring in the context of regular maritime traffic. However, this system becomes inadequate when facing unsafe sea migration flows concentrated in specific geographical routes,73 as it creates a much heavier burden on the states with search and rescue regions adjacent to sea migration routes and

63 

For advice and assistance, as well as evacuation services. See IAMSAR Manual, vol I, para 2.5.6. An on-scene coordinator is defined as: ‘A person designated to co-ordinate search and rescue operations within a specified area’ (Annex to the SAR Convention, para 1.3.14). See also IAMSAR Manual, vol I, para 2.6.1. 65  By support facilities, the IAMSAR Manual refers to the resources needed for operation responses. These would include, inter alia: training facilities, communication facilities, navigation systems, medical facilities, voluntary services, refuelling services and critical incident stress counsellors (IAMSAR Manual, vol I, para 2.7.1). 66  IAMSAR Manual, vol I, paras 2.1.2 and 2.3. A rescue coordination centre (RCC) is defined as a unit ‘responsible for promoting efficient organization of search and rescue services and for co-ordinating the conduct of search and rescue operations within a search and rescue region’ (Annex to the SAR Convention, para 1.3.5). 67  IAMSAR Manual, vol I, para 2.4. 68  When referring to ‘geographic area’ or ‘area’, the term is used in its generic meaning and it should not be mistaken for the 13 search and rescue areas defined by the IMO. 69  Annex to the SAR Convention, para 2.1.10 in conjunction with para 2.1.9. 70  The 2004 amendments to the SAR Convention were adopted by means of Resolution MSC.155(78) in May 2004, MSC 78/26/Add.1, Annex 5. These amendments entered into force on 1 July 2006. Malta, however, formally objected to these amendments and they are not binding on it. Regarding Resolution MSC.155(78), see further n 92 below. 71  Annex to the SAR Convention, para 3.1.9. 72  ibid, para 4.8.5. 73  The Eastern and the Central Mediterranean routes are two examples. 64 

Symposium—Campàs Velasco 69 areas of conflict.74 In the present refugee crisis, the sheer magnitude of the number of unsafe sea crossings and arrivals to the shores of ‘front line’ states creates an enormous strain on these countries, both in terms of capacity at sea to retrieve persons in distress and in terms of reception capacity on land.75 In both instances, the effects on the persons in need of assistance and protection are devastating. This unbalanced responsibility-sharing is exacerbated by the existence of dysfunctional search and rescue regions, where states are not fulfilling their international obligations on maritime search and rescue.76 The system of responsibility-sharing designed in the search and rescue system relies heavily on the mechanisms of cooperation established in the SAR Convention, and this becomes even more relevant in the context of the search and rescue of sea migrants where capacities are stretched to breaking point. The need for cooperation between States Parties is repeatedly present in the operational provisions for search and rescue services, particularly between neighbouring states.77 It is considered in the operational organisation and development of search and rescue services, when they cannot be achieved individually, in order ‘to ensure that assistance is rendered to any person in distress at sea’.78 To this end, parties are on the one hand encouraged, by means of soft law provisions, to enter into agreements with other states in order to strengthen search and rescue cooperation and coordination. On the other hand, parties are required, under a mandatory provision, to allow their responsible authorities to make operational plans and arrangements

74 This was highlighted by the Parliamentary Assembly of the Council of Europe, ‘Lives Lost in the Mediterranean Sea: Who is Responsible?’, report of the Committee on Migration, Refugees and Displaced Persons, Doc 12895 of 5 April 2012, available at: http://assembly.coe.int/CommitteeDocs/2012/20120329_mig_RPT.EN.pdf, which was issued as a result of the ‘left-to-die’ case, which is considered in more detail later on. A recommendation was therein issued ‘to tackle the issue of responsibility-sharing, particularly in the context of rescue services, disembarkation, administration of asylum requests and resettlement with a view to developing a binding European Union protocol for the Mediterranean region. The heavy burden placed on front line States leads to a problem of saturation and a reluctance to take responsibility’. See para 13.6. 75  Italy, Greece and Malta are presently clear examples. In the case of Malta, this is further aggravated by the vast extension of its search and rescue region. See SRR charts, available at: www.uscg.mil/hq/cg5/ cg534/nsarc/IMO%20Maritime%20SAR%20Regions.pdf. See also Coppens (n 57) 98. Italy is presently playing a crucial role both in the search and rescue of migrants at sea beyond its search and rescue region, and their disembarkation at their shores, relieving Malta of substantial pressure. 76  This is, for instance, the case for the Libyan search and rescue region. An illustrative case for this proposition is the M/V Salamis. This Greek-owned ship flying the Liberian flag assisted 102 migrants in distress at sea on the night of 4 August 2013, 45 nautical miles off the Libyan coast. Despite Italian authority requests to disembark them at the Libyan port of Al Khums, the captain of the tanker decided to continue to the port of Valletta, Malta, the scheduled port of call. However, the Maltese authorities refused to allow the disembarkation of the migrants and the tanker was stopped by the Maltese Armed Forces, in spite of the urgent attention needed by some of the migrants on board. Eventually, on 7 August, the Italian authorities allowed the disembarkation of the rescued migrants at the port of Syracuse (see: http://watchmed.net/reports/view/18). See also the IMO Sub-Committee on Flag State Implementation, at its 17th session, Agenda item 15, ‘Measures to protect the safety of persons rescued at sea, Compulsory guidelines for the treatment of persons rescued at sea, submitted by Spain and Italy’, FSI 17/15/1, 13 February 2009, with regard to Spain and Italy undertaking search and rescue operations in search and rescue regions where responsible countries had neglected their duties, such as Libya (pp 1 and 2). 77  Coordination of search and rescue operations is recommended among States Parties, with express reference to coordination among neighbouring states having adjacent search and rescue regions. Annex to the SAR Convention, para 3.1.1; UNCLOS, art 98.2. 78  Annex to the SAR Convention, para 2.1.1.

70  The Irish Yearbook of International Law 2015 for search and rescue cooperation and coordination with the relevant authorities of other states.79 Cooperation among States Parties to the Convention is provided in the interests of safety of life at sea,80 for the purpose of coordinating search and rescue operations among neighbouring states,81 and of providing mutual assistance among rescue coordination centres in their respective search and rescue regions.82 Cooperation is further contemplated in order to authorise the entry into territorial waters of rescue units of other States Parties for rescue operations.83 Given the fundamental sovereignty implications of this means of cooperation and the fact that this entry is not covered under the right of innocent passage,84 the authorisation of entry in the territorial waters of another state of rescue units for search and rescue purposes will not be automatic. A soft law provision recommending States Parties to authorise the immediate entry in their territorial waters seeks to strike a balance between sovereignty concerns and saving lives at sea. The entry of the rescue units into the territorial waters of another state is contemplated solely for the purposes of searching for the position of maritime casualties and rescuing survivors of such casualties, and needs to be carried out in accordance with the applicable international and national laws or regulations.85 In such a case, the coordination of the search and rescue operation shall be carried out by the rescue coordination centre of the party authorising the entry, or any another authority designated by that party. This specific mechanism of cooperation is foreseen in the Annex to the Convention only in the event of a maritime casualty and the rescue of survivors of a casualty. The element of distress, although not expressly mentioned, would be implicitly present, as the search and rescue operation has been triggered. The situation of distress would therefore be subsumed in the maritime casualty. It is therefore the term ‘maritime casualty’ that requires closer attention at this point, to better understand the focal interest and concern of the search and rescue system. A marine casualty has been defined as an event or sequence of events, directly connected with the operations of a ship, resulting in any of the following: the death of, or serious injury to, a person; the loss of a person from a ship; the loss, presumed loss or abandonment of a ship; material damage to a ship; the stranding or disabling of a ship, or a ship being involved in a collision; material damage to marine infrastructure external to a ship, potentially endangering the safety of the ship, another ship or individual; or severe damage to the environment, or the potential for severe damage

79 

ibid para 3.1.8. ibid ch 3. ibid para 3.1.1. 82  ibid para 3.1.7 83  ibid paras 3.1.2–3.1.5. 84  UNCLOS, arts 17–19. Article 18.2 envisages the stopping and anchoring, as an exception to the obligation of continuous and expeditious passage while traversing the territorial sea, ‘for the purpose of rendering assistance to persons, ships or aircraft in danger or distress’. 85  Annex to the SAR Convention, para 3.1.2; and IAMSAR Manual, vol I, para 3.1.8. Authorisation procedures are contained in paras 3.1.3–3.1.6. The SAR Convention does not envisage cases where the territorial sea of a State Party is a non-functional search and rescue region. This, for instance, would be the case for Libya and the Syrian Arab Republic. 80  81 

Symposium—Campàs Velasco 71 to the environment, brought about by the damage of a ship or ships. A maritime casualty excludes any deliberate act or omission, ‘with the intention to cause harm to the safety of a ship, an individual or the environment’.86 Marine casualties have been classified by the Global Integrated Shipping Information System (GISIS)87 into three degrees of severity: ‘very serious casualties’, involving total loss of the ship, loss of life or severe pollution; ‘serious casualties’, involving, inter alia, fire, explosion, collision, grounding, contact, heavy weather damage, ice damage, hull cracking and suspected hull defect; and ‘less serious casualties’, which include marine incidents.88 The latter is defined as ‘an event, or sequence of events, other than a marine casualty, which has occurred directly in connection with the operations of a ship that endangered, or, if not corrected, would endanger the safety of the ship, another ship its occupants or any other person or the environment’.89 The term ‘marine casualty’ and its equivalent ‘maritime casualty’ do not envision the inherently unsafe sea crossings on board leaky boats, rubber dinghies, and other ill-fitted and unseaworthy vessels used for such crossings. However, according to the above definition, it remains an open phrase in the sense that it does not specify the events or set of events causing the casualty. The only restriction to the qualification of a marine casualty is the existence of a deliberate act or omission with the intention to cause harm to the safety of the ship, the persons on board or the environment. Questions would therefore arise as to whether smugglers or migrants’ acts on board these craft, such as wrecking the boat, in order to provoke situations of imminent danger and distress, would amount to a deliberate act with the intention to cause harm, and no longer be considered a maritime casualty. A further question stems therefrom, as to whether in these circumstances the mechanism of cooperation based on the entry into territorial waters of another State Party for search and rescue purposes, would still be available for the search and rescue of these sea migrants, as it would no longer qualify as a maritime casualty. An argument against this hypothetical restriction would be based on the lack of intention to harm the safety of the craft or the people on board. A deliberate act to wreck the craft in this context would amount to a desperate attempt to trigger a rescue operation, despite the risks involved. Furthermore, the criminal acts or omissions of smugglers should not exclude the events affecting the safety of sea migrants from being treated as a marine casualty. Accordingly, two distinct aspects can be highlighted, namely the legal effect of a situation of distress at sea and the mechanism of cooperation in place

86  This definition is extracted from the IMO, Maritime Safety Committee, Code of the International Standards and Recommended Practices for a Safety Investigation into a Maritime Casualty or Maritime Incident, Annex to Circular MSC-MEPC.3/Circ.2, 13 June 2008, at para 2.9, available at: http://emsa. europa.eu/retro/Docs/marine_casualties/msc-mepc_3-circ_2.pdf. 87  Developed by the IMO Secretariat for reporting data purposes. 88  See IMO, ‘GISIS: Marine Casualties and Incidents’, available at: https://gisis.imo.org/Public/MCI/ Default.aspx. 89  IMO, Maritime Safety Committee, Code of the International Standards and Recommended Practices for a Safety Investigation into a Maritime Casualty or Maritime Incident, Annex to Circular MSC-MEPC.3/Circ.2, 13 June 2008, para 2.10, available at: http://emsa.europa.eu/retro/Docs/marine_ casualties/msc-mepc_3-circ_2.pdf.

72  The Irish Yearbook of International Law 2015 where a maritime casualty occurs in the territorial sea of another state. On the one hand, a situation of distress always triggers a search and rescue operation, regardless of the circumstances in which the persons are found. On the other hand, the entry in the territorial waters of another state may be hindered if it is subjected to the existence of a maritime casualty, as it has been defined in the context of ships used in the maritime traffic. A narrow approach to the concept of maritime casualty would thus hinder an effective search and rescue service in the interests of safety of life at sea. It is therefore here argued that this mechanism of cooperation is to be interpreted broadly in order to effectively respond to the needs of sea migrants in distress in the territorial sea of another state. Lastly, a request for cooperation and coordination among the parties was introduced by the 2004 amendments to the SAR Convention, under a mandatory provision, with the purpose of ensuring swift disembarkations from the assisting ships, in order to release the masters ‘from their obligations with minimum further deviation from the ship’s intended voyage’.90 This is to be coupled with a recommendation addressed to the States Parties to further authorise their RCCs to coordinate and cooperate with other RCCs in order to identify the ‘most appropriate place(s) for disembarking persons rescued at sea’.91 The disembarkation at a place of safety of persons rescued at sea was the key feature and a main goal of the 2004 amendments to the SAR Convention.92 These amendments were part of the IMO Secretary-General’s broader initiative to review the legal framework on delivery of persons rescued at sea to a place of safety, expressly including asylum seekers, refugees and stowaways,93 with a coordinated approach among UN specialised agencies by means of an inter-agency group.94 This initiative spurred from the Tampa case,95 which highlighted critical deficiencies in

90  Annex to the SAR Convention, para 3.1.9. This provision mirrors the amended SOLAS Convention, ch V, reg 33.1.1. 91  Annex to the SAR Convention, para 3.1.6.4. 92  Resolution MSC.155(78) identifies the need of clarifying the existing procedures regarding disembarkation of persons rescued at sea and aims to: (a) guarantee a place of safety is provided, regardless of the nationality, or any other circumstances of the persons rescued at sea; and (b) ensure that the place of safety is provided ‘in every case … within a reasonable time’. It further intends to assign the responsibility to provide a place of safety, or to ensure that a place of safety is provided, to the State Party responsible for the search and rescue region where the survivors were retrieved. See the seventh and eighth preambular paragraphs of this Resolution, available at: www.imo.org/blast/blastDataHelper.asp?data_ id=15528&filename=155(78).pdf. 93  See the opening address of Mr WA O’Neil, Secretary-General of the IMO, to the twenty-second regular session of the IMO Assembly, London, 19 November 2001, available at: www.imo.org/blast/ mainframe.asp?topic_id=82&doc_id=1703. 94  The inter-agency group included the UNHCR, the IOM, the United Nations Division for Ocean Affairs and the Law of the Sea (UNDOALOS), the United Nations Office on Drugs and Crime (UNODC) and the United Nations Office of the High Commissioner for Human Rights (OHCR). See the opening address of O’Neil (n 93) 2. 95  Ruddock v Vardalis (The Tampa) (2001) 183 ALR 1. The captain of the Norwegian container the MV Tampa was requested by the Australian search and rescue to attend a distress call from an Indonesian wooden boat sinking in the Indian Ocean, about 75 nm off Christmas Island, within Indonesia’s search and rescue region. As a result, 433 Afghan asylum seekers were rescued. The captain intended to disembark those rescued in Indonesia, but in view of the pressure received from the asylum seekers, some of them threatening suicide, he decided to proceed to Christmas Island. Despite his request for permission

Symposium—Campàs Velasco 73 fundamental aspects such as the treatment given to rescued sea migrants and their disembarkation at a place of safety. Consequently, the IMO Assembly requested the Maritime Safety Committee, the Legal Committee and the Facilitation Committee to review the SAR Convention, the Salvage Convention and the FAL Convention, as well as any other IMO instruments under their scope in order to identify ‘any existing gaps, inconsistencies, ambiguities, vagueness or other inadequacies’, the objectives being: (a) that assistance is given to survivors of distress incidents, irrespective of their nationality, status or circumstances in which they are found; (b) that assisting ships can deliver the survivors to a place of safety; and (c) that survivors are treated, while on board, in accordance with IMO instruments as well as relevant international agreements and humanitarian traditions.96 This resulted in the adoption of the 2004 amendments to the SAR Convention97 and to the SOLAS Convention,98 as well as the Guidelines on the Treatment of Persons Rescued at Sea (hereinafter the Guidelines).99 The SAR Convention was therefore amended to take into consideration aspects particularly relevant to the rescue of sea migrants, which reach beyond the underlying principle of non-discrimination.100 However, do these amendments render the SAR Convention a tool responsive to the needs of sea migrants? This issue will be analysed in the following sections, focusing on the controversial aspect of disembarkation of sea migrants and their delivery to a place of safety, and on the devastating impact this has on their search and rescue at sea. Particular attention will be drawn to the latest efforts made by means of the 2004 amendments

to enter Australian territorial waters being denied, the captain disobeyed the authorities’ rejection due the increasing concern over the health condition of some of the rescuees. Approximately 4 nm off Christmas Island, Australian troops boarded the MV Tampa, taking control of the ship. In the following days, separate proceedings were filed against the Commonwealth, three of its ministers and a departmental officer. In the meantime, the Australian government had reached an agreement with New Zealand and Nauru to take the asylum seekers for initial processing to determine their entitlement to protection as refugees, with the support of the UNHCR. See R Barnes, ‘Refugee Law at Sea’ (2004) 53 ICLQ 47; FJ Kenney Jr and V Tasikas: ‘The Tampa Incident: IMO Perspectives and Responses on the Treatment of Persons Rescued at Sea’ (2003) 12 Pacific Rim Law & Policy Journal 143, 146; Coppens and Somers (n 10) 382–84. 96  IMO Assembly Resolution A.920(22) of 29 November 2001 on the Review of Safety Measures and Procedures for the Treatment of Persons Rescued at Sea, available at: www.imo.org/en/OurWork/ Facilitation/personsrescued/Documents/Resolution%20A.920(22).pdf#search=A%2E920%2822%29. See in particular the tenth preambular paragraph and operative para 1, where reference is also made to undocumented migrants among survivors in need of assistance. 97 Maritime Safety Committee Resolution MSC.155(78), of 20 May 2004, adopting the amendments to the SAR Convention, available at: www.imo.org/blast/blastDataHelper.asp?data_ id=15528&filename=155(78).pdf. See in particular the sixth preambular paragraph. 98 Maritime Safety Committee Resolution MSC.153(78), of 20 May 2004, adopting the amendments to the SOLAS Convention, available at: www.imo.org/blast/blastDataHelper.asp?data_ id=15526&filename=153(78).pdf. See in particular the sixth preambular paragraph. The amendments entered into force on 1 July 2006. As Malta objected to these amendments too, it is not bound by them. 99  Adopted by the Maritime Safety Committee Resolution MSC.167(78), of 20 May 2004, available at: www.imo.org/en/OurWork/Facilitation/personsrescued/Documents/MSC.167(78).pdf. ‘The purpose of these amendments and the current guidelines is to help ensure that persons in distress are assisted while minimizing the inconvenience to assisting ships and ensuring the integrity of the SAR services’ (Annex 34 to Resolution MSC.167(78), para 2.3). 100  Annex to the SAR Convention, para 2.1.10, shaped by the UNHCR at the International Conference on Maritime Search and Rescue, 1979, SAR/CONF.INF.2, IMO Archives.

74  The Irish Yearbook of International Law 2015 both to the SAR and the SOLAS Conventions, as well as the Guidelines and the IMO Facilitation Circular on Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea (hereinafter the FAL Circular),101 under the FAL Convention. IV.  DISEMBARKATION AT A PLACE OF SAFETY: AN ENDURING CHALLENGE IN THE RESCUE OF SEA MIGRANTS

Coastal states’ resistance to or even refusal to allow the disembarkation of rescued sea migrants is not a regional phenomenon affecting only Europe, but it is a reality on a global scale that reveals the lack of political will among states and explains the existence of gaps and deficiencies in the international legal framework regulating their disembarkation.102 An analysis of the legal specifications for disembarkation therefore becomes necessary to understand the scope and the limitations of the search and rescue system in the context of sea migrants. The purpose of the amendments to the SAR Convention103 is ‘to ensure that in every case a place of safety is provided within a reasonable time’ and to clarify that ‘the responsibility to provide a place of safety, or to ensure that a place of safety is provided, falls on the Government responsible for the search and rescue region in which survivors were recovered’.104 However, the identification of a ‘place of safety’ is left undetermined, in favour of flexibility for the responsible party to coordinate each rescue operation on a case-by-case basis. Without the identification of a specific locus for disembarkation, careful consideration to the term ‘place of safety’ becomes crucial in order to recognise the parameters within which the responsibility of providing a place of safety, or ensuring that a place of safety is provided, has been fulfilled. It is thus relevant to try to determine how this concept has been defined in the relevant legal instruments. Whilst a definition of a place of safety is not to be found in the Annex to the SAR Convention,105 it is contained in the Guidelines,106 as well as in the publication ‘Rescue at Sea: A Guide to Principles and Practice as Applied to Refugees and Migrants (hereinafter the Rescue at Sea Guide)’.107 Bearing in mind both the Guidelines and

101 

IMO Doc FAL.3/Circ.194 (22 January 2009). As an example, reference is made to the recent events in the Bay of Bengal, for which see K Newland, ‘Irregular Maritime Migration in the Bay of Bengal: The Challenges of Protection, Management and Cooperation’, Issue in Brief, IOM, Migration Policy Institute, July 2015, Issue No 13, at 2. See also UNHCR, ‘South-East Asia, Mixed Migration Movements, April–June 2015, Highlights., available at: www.unhcr.org/53f1c5fc9.pdf, and UNHCR Briefing Notes, ‘UNHCR Urges States to Help Avert Bay of Bengal Boat Crisis in Coming Weeks’, 28 August 2015, available at: www.unhcr.org/55e063359.html. 103 Annex 5 to Resolution MSC.155(78), adopted on 20 May 2004, MSC 78/26/Add.1. The same applies to the amendments to the SOLAS Convention, for which see Annex 3 to the Resolution MSC.153(78), also adopted on 20 May 2004, MSC 78/26/Add.1. 104  Annex to Resolution MSC.167(78), paras 2.5 and 6.7–6.9. 105  By definition of a place of safety, the author means the characteristics identifying a place of safety, not a specific reference to a geographical location. 106  Guidelines, Annex to Resolution MSC.167(78), para 6.12. 107 This manual is intended for masters, shipowners, government authorities, insurance companies and other interested parties involved in rescue-at-sea operations. It was jointly published by the IMO, the 102 

Symposium—Campàs Velasco 75 the amendments to the SAR Convention were adopted simultaneously, the question that naturally arises is why the definition, or at any rate the description of a key concept in the rescue operation, one that marks its completion, has not been integrated into the Annex to the SAR Convention. This query seems relevant bearing in mind that one main purpose of the 2004 amendments to the SAR Convention is to guarantee a place of safety for the persons rescued at sea within a reasonable period of time, and to determine further the responsibility of the party responsible for the search and rescue region in which the survivors were recovered, to provide a place of safety or to ensure a place of safety is provided. Instead, the meaning of this concept is relegated to a mere clarification in the Guidelines. The concept of ‘place of safety’ is defined in various stages and from different angles in the Guidelines.108 First, it is defined as the location where rescue operations are considered to terminate.109 This is based on the definition of the term ‘rescue’ in the Annex to the SAR Convention. This concept of ‘rescue’ needs to be read in conjunction with the definition of ‘search and rescue service’,110 by virtue of which the obligation to assist any person in distress at sea is ensured, in accordance with paragraph 2.1.1 of the Annex to the SAR Convention,111 in compliance with UNCLOS,112 and ultimately in fulfilment of the customary obligation to render assistance to any person in distress at sea. However, this first reference to a place of safety, based on the definition of ‘rescue’, does not bring any clarification to the concept of ‘place of safety’. From the perspective of the safety of the survivors, this term is further defined as a place where their ‘safety of life is no longer threatened and where basic human needs (such as food, shelter and medical needs) can be met’.113 The disappearance of immediate danger does not suffice for a location to be qualified as a ‘place of safety’.114 As to the physical characteristics of a ‘place of safety’, this could either be ‘on land, or aboard a rescue unit115 or other suitable vessel or facility at sea116 that can serve

UNHCR and the International Chamber of Shipping (ICS). ‘It provides guidance on relevant legal provisions, on practical procedures to ensure the prompt disembarkation of rescued persons, and on measures to meet their specific needs, particularly in the case of refugees and asylum-seekers’ (2006, reprinted in 2009, 3 and 13). The Rescue at Sea Guide is available at: www.imo.org/MediaCentre/HotTopics/seamigration/Documents/UNHCR-Rescue_at_Sea-Guide-ENG-screen.pdf. 108 

Guidelines, Annex to Resolution MSC.167(78), paras 6.12–6.17. ibid para 6.12. 110  Annex to SAR Convention, paras 1.3.2 and 1.3.3. These terms have been covered above (n 52). 111  For a differing view, see KS O’Brien, ‘Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem’ (2011) 3 Goettingen Journal of International Law 715, 724. 112  Article 98. 113  Guidelines, Annex to Resolution MSC.167(78), para 6.12. 114  ibid para 6.13, in reference to ships. 115  The term ‘rescue unit’ can be safely assumed to refer to the ‘search and rescue unit’, defined in para 1.3.8 of the Annex to the SAR Convention, as a ‘unit composed of trained personnel and provided with equipment suitable for the expeditious conduct of search and rescue operations’. 116  The term ‘facility at sea’ could equally be assumed to refer to the ‘search and rescue facility’ defined in para 1.3.7 of the Annex to the SAR Convention as a ‘mobile resource, including designated search and rescue units, used to conduct search and rescue operation’. 109 

76  The Irish Yearbook of International Law 2015 as a place of safety until the survivors are disembarked to their next destination’.117 The circularity in this sentence can be overcome by referring to the characteristics that need to be met to regard the location as safe for the survivors, ie, a place where there is no threat to human life, bearing in mind that the disappearance of immediate danger does not suffice, and where basic human needs, such as medical assistance, food and shelter, are met.118 Furthermore, it is a place from which transportation arrangements can be made for the survivors’ next or final destination.119 It is important to note the provisional nature of the transfer of survivors on board these units, facilities or other suitable vessels, considered places of safety, until they are disembarked to their next or final destination. Additionally, the lack of provision as to a timeframe within which disembarkation of survivors ashore should take place, in order to provide them with better and longer-term habitability conditions, appropriate medical care and the possibility to initiate asylum procedures where applicable, is coupled with the legal uncertainty as to the states’ obligations to receive the survivors on land.120 This therefore brings limited legal improvement to the disembarkation of sea migrants and little guarantee of a timely access to international protection. There is, however, a requirement of timely disembarkation from the assisting ship,121 and the reason for this is twofold. First, the swift disembarkation of persons rescued at sea from the assisting ship, highlighted both in Resolution MSC.167(78) and the Rescue at Sea Guide, is consistent with and reinforces one chief aspect of the 2004 amendments to the SAR and the SOLAS Conventions, namely, releasing the ship master from incurring costly delays and reducing the economic burden on ship operators in a system that over-relies on merchant ships to ultimately safeguard the integrity of the search and rescue services at sea.122 Cooperation and coordination regarding disembarkation is therefore mainly focused on releasing the master of the assisting ship from further obligations. Second, the assisting ship will most likely lack the necessary equipment and adequate facilities to accommodate survivors on board, especially when rescue operations involve large numbers of survivors. In these circumstances, health and safety issues would doubtless arise both for the crewmembers of the assisting ship and the survivors.123

117  Guidelines, Annex to Resolution MSC.167(78), para 6.14. See also the IAMSAR Manual, vol I, Glossary, where ‘place of safety’ is defined. 118  Guidelines, Annex to Resolution MSC.167(78), para 6.12. 119  ibid paras 6.12 in fine. 120  GS Goodwin-Gill and J McAdam, The Refugee in International Law, 3rd edn (Oxford, Oxford University Press, 2007) 278. See further below (at 81) on this point. 121  Annex to the SAR Convention, para 3.1.9, added by Resolution MSC.155(78) adopting the 2004 amendments to the SAR Convention. 122  Paragraph 3.1.9, Annex to the SAR Convention; and reg 33.1.1 of the SOLAS Convention: ‘In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable.’ See K Gombeer, ‘Human Rights Adrift: Enabling the Disembarkation of Migrants to a Place of Safety in the Mediterranean’, in this volume at 23–55. 123  This was heavily stressed in the High-Level Meeting to Address Unsafe Mixed Migration by Sea (IMO, 4 and 5 March 2015). See the International Chamber of Shipping (ICS), available at: www.imo.org/ About/Events/Documents/migrantspresentations/e%20ICS%20Presentation%20on%20Migrants%20 -%204%20March%202015.pdf.

Symposium—Campàs Velasco 77 In terms of the selection of a ‘place of safety’, it is necessary to first highlight the fact that the SAR Convention does not establish a default state for disembarkation. It would appear on a strict reading that there is a legal void in the search and rescue system, which affects the rescue of sea migrants.124 However, it is argued here that there is no such void. The operative scope of the rescue service as defined in the SAR Convention is to be considered completed when the survivors have been delivered to a ‘place of safety’, regardless of whether they are landed, or transferred to a rescue unit, to a facility at sea, or other suitable vessel, provided that the safety parameters described above are met. Consequently, the meaning of ‘disembarkation’ in the legal context here analysed does not entail necessarily taking the survivors ashore, but only their removal from the assisting ship or other ship later involved in the operation, to a place determined by the characteristics previously analysed. Consequently, the 2004 amendments to the SAR Convention and the Guidelines fail to consider the concept of a ‘place of safety’ as a location on land where the legal status of undocumented migrants rescued at sea is to be assessed with the necessary guarantees, and where refugees and asylum seekers can exercise their right to initiate the appropriate asylum request procedures.125 The identification of a ‘place of safety’ is therefore decided on a case-by-case basis, depending on the particular circumstances of each incident.126 Two aspects can be differentiated here: on the one hand, the procedures for identifying a ‘place of safety’ and, on the other hand, the factors considered in the choice of a ‘place of safety’. As previously seen, the 2004 amendments to the SAR Convention introduce the obligation among states to cooperate with other RCCs to identify the most appropriate place of disembarkation,127 and the obligation of the relevant RCC or rescue subcentre to initiate the process of identifying the most appropriate place(s) for disembarking persons found in distress at sea.128 The considerations relevant to the selection of a ‘place of safety’ include ‘the situation aboard the assisting ship,129 on scene conditions, medical needs, and availability of transportation or other rescue units’.130 However, this broad list of factors for the purpose of identifying a ‘place of safety’ encounters a limitation in the shape

124  P Mallia and JP Gauci, ‘Irregular Migration and the International Obligation of Non-refoulement: The Case of the MV Salamis from a Maltese Perspective’ (2014) 20 Journal of International Maritime Law 50, 61. See further the Commission (EC) Study on the International Instruments in Relation to Illegal Immigration by Sea (Staff Working Document) SEC(2007) 691 (15 May 2007) paras 2.3.2 and 2.3.4, therein referred to. 125  P Mallia, Migrant Smuggling at Sea: Combating a Current Threat to Maritime Security through the Creation of a Cooperative Framework (Leiden, Martinus Nijhoff Publishers, 2010), 91. See UNHCR, ‘Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea’, paras 23–24, available at: www.unhcr.org/3e5f35e94.pdf, therein referred to: ‘In UNHCR’s view, the identification and subsequent processing of asylum-seekers is an activity most appropriately carried out on dry land.’ 126  Annex to the SAR Convention, para 3.1.9; and Guidelines, Annex to the Resolution MSC.167(78), para 6.15, whereby ‘each case is unique, and selection of a place of safety may need to account for a variety of important factors’. 127  Annex to the SAR Convention, para 3.1.6.4. 128  ibid para 4.8.5. 129  Guidelines, Annex to the Resolution MSC.167(78), para 6.11. 130  ibid para 6.15.

78  The Irish Yearbook of International Law 2015 of a guideline, tacitly introducing into maritime law a principle ingrained in international refugee law and international human rights law, ie, the principle of nonrefoulement.131 A consideration is drawn to avoid disembarking asylum seekers or refugees retrieved at sea in territories where ‘the lives and freedoms of those alleging a well-founded fear of persecution would be threatened’.132 The scope of applicability of this principle was a central issue in the European Court of Human Rights decision in the Hirsi case,133 where the principle was discussed in the context of the European Convention on Human Rights.134 This fundamental principle of non-refoulement is further echoed in the FAL Circular, the contribution of which to the disembarkation of sea migrants is now considered. The Facilitation Committee identified five key principles for States Parties to develop in order to reach uniformity in the administrative procedures in matters regarding the disembarkation of the persons rescued at sea, for efficiency and predictability purposes.135 The first principle refers to the coordination of efforts among the coastal state search and rescue services or other relevant entities competent for the disembarkation

131  Article 33(1) of the 1951 Convention Relating to the Status of the Refugees, Geneva, 28 July 1951, 189 UNTS 137, and its 1967 Protocol, New York, 31 January 1967, 606 UNTS 267: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ See further the UNHCR Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligation under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, available at: www.refworld.org/docid/45f17a1a4. html; and Goodwin-Gill and McAdam (n 120) 201–84. See also art 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, 1465 UNTS 85: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ See finally arts 6 and 7 of the 1966 International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171. 132 Guidelines, Annex to the Resolution MSC.167(78), para 6.17. See also Rescue at Sea Guide (n 107) 13. 133  Hirsi Jamaa and Others v Italy, App No 27765/09 (ECtHR, 23 February 2012), available at: http:// hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109231#{“itemid”:[“001-109231”]}. This case concerns the interception in May 2009 of three vessels, with about 200 migrants on board, among them, Somali and Eritrean nationals, who had departed from Libya aiming to reach the Italian coast. The three vessels were intercepted by three ships from the Italian Revenue Police (Guardia di finanza) and the coast guard, 35 nautical miles south of Lampedusa, within the Maltese search and rescue region. The occupants were then transferred onto Italian military ships and returned to Tripoli, Libya, where they were forced to leave the Italian ships and were handed over to the Libyan authorities. See further on this case Mallia and Gauci (n 124) 52 and 53; Barnes (n 95) 62–64; S Trevisanut, ‘The Principle of Non-refoulement and the De-territorialisation of Border Control at Sea’ (2014) 27 Leiden Journal of International Law 661. 134  Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force on 3 September 1953, ETS 5, as amended, art 3: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’; and art 4 of Protocol 4 to the Convention: ‘Collective expulsion of aliens is prohibited.’ 135 35th session, January 2009. These principles are contained in the Circular, IMO Doc FAL.3/ Circ.194. The wording of para 2 of the Circular and the principles contained therein suggest they are presented as recommended practices, para 3 urging the States Parties to ensure that their administrative procedures for disembarking persons rescued at sea follow the principles set therein. Recommended practices are defined in art VI(b) of the FAL Convention as ‘those measures the application of which by Contracting Governments is desirable in order to facilitate international maritime traffic’. It should be noted that although the Circular refers to member governments, the term ‘States Parties’ is used by the author for the sake of consistency.

Symposium—Campàs Velasco 79 of persons rescued at sea.136 This principle does not seem to add anything new to the SAR Convention.137 Both instruments approach this point with soft law provisions, leaving the coordination of efforts among states concerned as a mere recommendation.138 The second principle concerns any procedures that reach beyond maritime assistance, such as screening and assessing the legal status of the persons rescued at sea. The recommendations contained therein present different aspects that affect both the masters of the assisting ships and the persons rescued. As regards the former, clear limitations are envisaged to the masters’ duties to obtain personal information from the persons rescued at sea for screening procedure purposes.139 With regard to the persons rescued at sea, on the one hand, a recommendation is made to carry out the above-mentioned procedures after their disembarkation at a place of safety has taken place. Although no further specification is given as to the characteristics of a place of safety, this recommendation could arguably strengthen the view that a place of safety should be a locus on land, where the above-mentioned procedures, along with asylum claim procedures, are carried out. On the other hand, security concerns arise regarding the sharing of personal information of asylum seekers with their countries of origin or any other country where the asylum seekers may face threats.140 The third principle concerns the cooperation of all the parties involved—including the state responsible for the search and rescue region, the relevant coastal states on the route planned by the rescuing ship, the rescuing ship flag state, along with the shipowners and their representatives, the states of nationality or residence of the persons rescued, and the state from which the persons rescued departed, as well as the UNHCR—in order to ensure the swift disembarkation of the persons rescued. Two criteria are taken into account for the disembarkation, ie, the master of the rescuing ship’s preferred arrangements for disembarkation and the immediate basic needs of the rescued persons. No hierarchy is given here, but it would doubtless be desirable that any basic and urgent medical need would take priority over a commercial consideration as to the most convenient arrangement. It would seem difficult a priori to imagine a multilateral communication and cooperative approach among such numerous and diverse actors that would make it possible to swiftly establish a place of disembarkation. This principle further mirrors both the SOLAS Convention141 and the Annex to the SAR Convention142 on the primary obligation of the state responsible for the SAR region to ensure that cooperation occurs in the

136 

FAL Circular, IMO Doc FAL.3/Circ.194, para 2.1. Annex to the SAR Convention, para 3.1.6.4. 138  Paragraph 3.1.6 of the Annex to the SAR Convention provides a recommendation by using the words ‘should authorize’ and the FAL Circular reads ‘should ensure’. 139  ‘The master should normally only be asked to aid such processes by obtaining information about the name, age, gender, apparent health and medical condition and any special medical needs of any person rescued’. FAL Circular, IMO Doc FAL.3/Circ.194, para 2.2. 140 ibid. 141  Regulation 33.1.1. 142  Annex to the SAR Convention, para 3.1.9. 137 

80  The Irish Yearbook of International Law 2015 disembarkation from the rescuing ship,143 although with the difference that both the SAR and the SOLAS Conventions present a mandatory provision, whereas the FAL Circular constitutes a soft law instrument. However, the scope of this principle reaches beyond the SAR and the SOLAS Conventions. It recommends that the state responsible for the search and rescue region where the assistance has been rendered allows the disembarkation of the persons rescued ‘into a place of safety under its control in which the persons rescued can have timely access to post-rescue support’, in accordance with its immigration laws and regulations. This recommendation is presented as a last resort, where disembarkation from the assisting vessel cannot be arranged swiftly elsewhere. An uncontested interpretation of ‘under its control’ would be crucial to determine whether this principle would point to a default state of disembarkation, ie, the state responsible for the search and rescue region, where post-rescue support can be provided, including access to asylum claim procedures.144 A comprehensive approach to disembarkation is therefore given and is taken further in the fourth and fifth principles of this Circular, as these principles reach beyond the maritime parameters of the final step of the rescue operation seen so far. A recommendation is made to the parties involved in the operation to cooperate with the government of the place of disembarkation with the return or repatriation of the persons rescued at sea. However, an exception is established for asylum seekers, who should be referred to the asylum authority in order to follow the appropriate procedures, in accordance with the international law principles. Among these, express reference is made to the principle of non-refoulement.145 The above analysis makes it possible to conclude that scarce legal progress has transpired from the amendments to the SAR Convention and the Guidelines in terms of meeting the needs of sea migrants in disembarking at a place of safety, bearing in mind that reception ashore is key for the access to effective international protection of refugees and asylum seekers.146 However, as observed earlier, this is only consistent with the scope of the term ‘rescue’ within the SAR Convention. However, despite these constraints, the principles set forth in the FAL Circular could be regarded as indicators pointing towards a more comprehensive approach to the disembarkation of sea migrants, where the access to post-rescue support, and hence international protection, becomes a feature that defines the concept of ‘place of safety’.147 143  Both Resolution MSC.153(78) on the adoption of amendments to the SOLAS Convention and Resolution MSC.155(78) for the Adoption of Amendments to SAR Convention in their eighth preambular paragraphs establish that ‘in every case a place of safety is provided within a reasonable time. It is further intended that the responsibility to provide a place of safety, or to ensure that a place of safety is provided, falls on the Party responsible for the SAR region in which the survivors were recovered’. 144  See Coppens and Somers (n 10) 391 and 394. 145  FAL Circular, IMO Doc FAL.3/Circ.194, para 2.5 and fn 1 thereto. Express reference is made to the principle of non-refoulement contained in art 33(1) of the 1951 Convention Relating to the Status of Refugees and to art 3(1) of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See Coppens and Somers (n 10) 389–90 for an overview on the reluctant position of several states regarding the FAL Circular. 146  On a critical view of the lack of legal development and the use of soft law regarding the procedure of disembarkation of sea migrants, see, for example, ITF Seafarers, ‘Damned if They Do …’ (2006), available at: www.itfseafarers.org/damned.cfm. 147  Reluctance has been expressed by some states, among them Malta, which objected to the Circular in a manner consistent with its position regarding the 2004 amendments to the SAR Convention. See

Symposium—Campàs Velasco 81 In terms of the disembarkation of sea migrants for reception and access to asylum claim procedures, the legal framework remains inadequate.148 Within these limitations, the responsibility-sharing system for disembarkation introduced with the 2004 amendments places further emphasis on a mechanism based on the geographical delineation of search and rescue regions among coastal States Parties to the SAR Convention. However, the wording is extremely careful not to introduce an obligation on the state responsible for the search and rescue region where the operation takes place to allow disembarkation on its territory. On the one hand, the duty is to ensure that there is cooperation and coordination among States Parties, so delivery to a place of safety occurs. The initiative lies on that state to proceed with the identification of the most suitable place(s) for disembarking the survivors.149 On the other hand, the obligation arises for the relevant state to arrange the swift disembarkation of survivors from the assisting ship.150 The limited scope of these duties, consistent with the states’ sovereign prerogative to control entry to its territory,151 leaves the final decision on disembarkation of survivors on land to political discretion. This undoubtedly hinders the prospect of developing additional mechanisms of responsibility sharing among States Parties to the SAR Convention, perpetuating the disproportionate pressure on front-line states, irrespective of their capacities. The system relies on ad hoc cooperation arrangements, based on political will, giving rise to issues of uncertainty and unpredictability.152 The IMO, concerned over the integrity of the search and rescue system, has chosen a regional approach to find a solution in the Mediterranean. The aim is to reach local agreement on concerted procedures relating to the disembarkation of persons rescued at sea—a pilot scheme that, if successful, could be extrapolated to other regions

Facilitation Committee, 35th session, Report of the Facilitation Committee on its Thirty-Fifth Session, IMO Doc FAL 35/17, 19 March 2009, Annex 6. See also P Mallia, ‘The Challenges of Irregular Maritime Migration’ (2013) Jean Monnet Occasional Paper No 4/2013, Institute for European Studies (Malta), 9–11. See further Coppens and Somers (n 10) 389–90 for an overview on the reluctant position of several states regarding the FAL Circular. See, however, the Parliamentary Assembly of the Council of Europe approach to the notion of a ‘place of safety’ in Resolution 1821/2011, at para 5.2, where this concept is to entail not only a place that affords physical protection of people, but also the respect of their fundamental rights. 148  See ss 3 and 4 of Gombeer (n 122) for an analysis on the effect of international and European refugee and human rights law in the duty of states to allow the disembarkation of rescued migrants. 149  Annex to the SAR Convention, paras 3.1.9, 4.8.5 and 3.1.6.4. 150  ibid paras 3.1.9 in fine. 151 See Hirsi (n 133) para 113. 152  An example that illustrates uncertainty when it comes to the disembarkation of sea migrants is the incident involving the Pinar E in 2009. In that case, a dispute arose between Malta and Italy as to where to disembark the persons rescued within the Maltese search and rescue region. Italy’s position was that disembarkation should take place in Malta and it refused the assisting ship permission to enter Italian waters. Malta argued that international law required the migrants to be disembarked at the nearest safe port, which, in that case, was Lampedusa, Italy. Four days later, Italy agreed to accept the disembarkation. See the Human Rights Watch Report, ‘Pushed Back, Pushed Around’, 21 September 2009, 43 et seq, available at: www.hrw.org/sites/default/files/reports/italy0909web_0.pdf. Malta having objected to the 2004 amendments to the SAR Convention and to the SOLAS Convention as well as the FAL Circular, the mechanisms of cooperation and coordination for the disembarkation of sea migrants in a vast and critical search and rescue region, are not applicable.

82  The Irish Yearbook of International Law 2015 in the global search and rescue system. However, the differing interests among the states concerned reveal the complexity of the debate and define the slow development of a work still in progress.153 V.  THE IMPACT ON THE SEARCH AND RESCUE OF SEA MIGRANTS

The unwillingness of states to become countries of disembarkation or countries of resettlement is known to have a deterrent effect on the search and rescue of sea migrants and can constitute a threat to the integrity of the search and rescue system.154 The obstacles to disembarkation of sea migrants jeopardise the search and rescue system of cooperation in and coordination of maritime search and rescue, and ultimately the lives of people in distress at sea, resulting in the failure to fulfil the very duty to assist them. The reluctance to authorise disembarkation becomes a deterrent not only to commercial ships, but also to fishing vessels and even military ships and aircraft. Too often sea migrants aboard precarious and even drifting boats are simply given food and water as well as indications of how to reach the shores of another country, or are towed outside the search and rescue region they are in, in order to avoid responsibilities.155 On many occasions, this ‘help on’ practice has led to their deaths.156 This was seen in the case tragically known as the ‘left-to-die boat’ in 2011, where 63 migrants lost their lives while their boat drifted for 14 days within Libyan waters, in a North Atlantic Treaty Organization (NATO) maritime surveillance area under the operation called ‘Unified Protector’. Despite a distress call logged by the Italian Maritime RCC, which pinpointed the boat’s position, and despite being closely seen by at least one military helicopter and approached by several fishing vessels as well as one military ship, nearly all the persons on board that craft perished at sea.157 A series of fundamental failures, among which the 153  For a detailed account of the Draft Regional Agreement and the position of Malta in this process, see Coppens (n 57) 101–12. See also J Coppens, ‘The Law of the Sea and Human Rights in the Hirsi Jamaa and Others v. Italy Judgment of the European Court of Human Rights’ in Y Haeck and E Brems (eds), Human Rights and Civil Liberties in the 21st Century, Human Rights and Civil Liberties in the 21st Century, vol 30, (Oxford, Springer, 2014) 193–95. See also the Maritime Safety Committee 89th Session on Radio communications and Search and Rescue, Measures to Protect the Safety of Persons Rescued at Sea, IMO Doc MSC 89/INF.23. 154  This is a long-standing concern and a number of pleadings have been made in this respect. See, for instance, the IMO Council Decision adopted in 1985, calling on ‘Governments, Organizations and shipowners concerned to intensify their efforts in ensuring that necessary assistance is provided to any person in distress at sea’, cited in SN Nandan and S Rosenne (vol eds), NR Grandy (assist ed), United Nations Convention on the Law of the Sea 1982: A Commentary, vol III (Leiden, Martinus Nijhoff Publishers, 1995) para 98.11(b). 155  Testimonies of survivors evidence this. See as an example Human Rights Watch Report (n 152) 41 ff. A further account of incidents is given by Gombeer (n 122) at 26–27. 156 Human Rights Watch Report (n 152). Reference therein is made to a specific case reported in The Independent, ‘Doomed to Drown: The Desperate Last Calls of the Migrants No One Wanted to Rescue’, 27 May 2007, available at: www.independent.co.uk/news/world/europe/doomed-to-drown-thedesperate-last-calls-of-the-migrants-no-one-wanted-to-rescue-450300.html. See also S Klepp, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’ (2011) 23 International Journal of Refugee Law 538, 553 and 554. 157  For a detailed account of the ‘left-to-die boat’ case, see Parliamentary Assembly of the Council of Europe (n 74), as well as Doc 13532 of 9 June 2014, ‘The “Left-to-Die Boat”: Actions and Reactions’

Symposium—Campàs Velasco 83 non-existence of cooperation and coordination among the actors involved, were highlighted in the Draft Resolution adopted by the Parliamentary Committee on Migration, Refugees and Displaced Persons of the Council of Europe.158 Among the list of recommendations to EU Member States arising therefrom, two are considered in turn, due to their relevance in the present analysis. First, a recommendation was made to ‘fulfil the vacuum of responsibility left by a State which cannot or does not exercise its responsibility for search and rescue’, suggesting the need to amend the SAR Convention to that effect. The SAR Convention does not contemplate a specific mechanism of cooperation and coordination in such a scenario, and reliance is consistently placed on the rescue coordination centre or rescue subcentre in whose area the incident occurs.159 However, the SAR Convention establishes an overall principle of cooperation and coordination for search and rescue services, which involves States Parties in general, and this could be construed to cover scenarios where vacuums of responsibility occur.160 In any event, search and rescue regions delineating areas of responsibilities over search and rescue coordination are not to be construed as boundaries beyond which a lack of assistance can be justified, particularly where, on different occasions, the proximity of a number of vessels allowed the rescue of the persons on board. It is the failure to comply with the obligation to render assistance to persons in distress at sea which is at stake in this case, rather than the lack of a specific mechanism of cooperation catering for a particular scenario. Having said that, further mechanisms of cooperation and responsibility sharing would need to be considered to enhance coordination and capacity building along sea migration routes, and special considerations would need to be taken into account where these areas are located in non-operative search and rescue regions. Second, a recommendation was made to avoid inconsistent interpretations of what constitutes a vessel in distress.161 The interpretation of the concept of ‘distress and the compendium of amendments in Doc 13532 of 9 June 2014 by the same Committee, available at: http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=20940. See further ‘The Leftto-Die Boat, the Deadly Drift of a Migrants’ Boat in the Central Mediterranean’, Forensic Architecture, available at: www.forensic-architecture.org/case/left-die-boat. 158 Parliamentary Assembly of the Council of Europe (n 74). In particular, see recommendation at para 13.1. 159  See, for instance, the initial action of the operative procedure in the Annex to the SAR Convention, para 4.3: ‘Any search and rescue unit receiving information of a distress incident shall initially take immediate action if in the position to assist and shall, in any case without delay, notify the rescue co-ordination centre or rescue sub-centre in whose area the incident has occurred.’ 160 See Annex to the SAR Convention, para 2.1.1, a mandatory provision drafted in broad terms requiring the responsible authorities of a party to ‘take urgent steps to ensure that the necessary assistance is provided’ upon receiving information that any person is, or appears to be, in distress at sea. Nowhere in this provision is the obligation limited to the party responsible for the search and rescue region in whose area the assistance is needed: ‘Parties shall, as they are able to do so individually or in co-operation with other States and, as appropriate, with the Organization, participate in the development of search and rescue services to ensure that assistance is rendered to any person in distress at sea. On receiving information that any person is, or appears to be, in distress at sea, the responsible authorities of a Party shall take urgent steps to ensure that the necessary assistance is provided’ (emphasis added). 161  Parliamentary Assembly of the Council of Europe (n 74). See the recommendation at para 13.3. This is complemented by a previous recommendation to establish guidelines on the identification of a distress signal, at para 13.2.

84  The Irish Yearbook of International Law 2015 phase’, defined in the SAR Convention as a ‘situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance’,162 and the assessment of a situation of distress, seem uncontroversial in search and rescue operations of vessels involved in maritime traffic. However, concerns have been raised in the context of the search and rescue of sea migrants due to the inconsistent responses given at sea,163 and there were calls for a review of the definition of distress and its interpretation at the 2015 IMO High-Level Meeting to Address Unsafe Migration by Sea.164 The distress phase is the last of the emergency phases identified in the SAR Convention and it triggers the commencement of a search and rescue operation.165 It hence becomes crucial to identify this situation by analysing the concept of a person, vessel or craft in distress at sea. The key elements defining the distress phase read as follows: ‘reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance’.166 This concept of distress was nonetheless defined in the context of regular maritime traffic where, unless a marine casualty or incident arises, the conditions or circumstances on board the ship do not present a risk or a threat to the crew or to the passengers. However, the vessels, boats, rubber dinghies, inflatable rafts or other craft provided to the sea migrants are ill-fitted to make such crossings. They are unseaworthy, lacking navigational tools and crew. They have in most cases insufficient fuel and they are overcrowded, with a high risk of capsizing. The substandard life vests often provided for the crossing further endanger their lives. Food and water are in most cases scarce. The inhuman conditions on board these boats too often cause deaths by hypothermia, dehydration or suffocation by fuel fumes, or when they are locked in holds below deck. Cases of serious injuries from burns due to the contact of the skin with seawater and fuel have also been reported.167 The safety of sea migrants is further threatened by smugglers’ criminal actions. It is not uncommon that at some point in the crossing, smugglers sink the boat or collide it. They are also known to beat, kill or throw people overboard. The latter has also occurred among fellow passengers. An increasing number of children are undertaking these perilous crossings, among which are unaccompanied minors. The conditions in which these sea crossings are made are in all cases dangerous, degrading and inhumane.

162 

Annex to the SAR Convention, para 1.3.13. Mallia and Gauci (n 124) 56. See also Klepp (n 156) 553–54; and further Coppens (n 57) 90–92. 164  See the Maritime Safety Committee, 95th session, Agenda item 21, Outcome of the inter-agency high-level meeting to address unsafe mixed migration by sea, MSC 95/21/4/Rev.1 of 17 April 2015, p 3, para 9.1. 165  Annex to the SAR Convention, paras 4.3, 4.4.3, 4.5.3 and 2.1.1. The distress phase is declared by the RCC or subcentre concerned and determines the appropriate operating procedure to follow. 166  Annex to the SAR Convention, para 1.3.13. However, the qualifying words ‘grave and imminent’ disappear in para 4.4.3.1, to describe a person, vessel or other craft ‘in danger and in need of immediate assistance’. 167  See IOM, ‘Mediterranean Migrant Arrivals, Deaths at Sea Soar’, 28 August 2015, available at: www.iom.int/news/mediterranean-migrant-arrivals-deaths-sea-soar. See also UNHCR (n 102). 163 See

Symposium—Campàs Velasco 85 The lack of safety and the inhuman conditions in which many migrants make the crossings have not been specifically considered in the SAR Convention. Nor have they been addressed by means of guidelines. The 2004 amendments broadened the concept of persons in distress at sea to include ‘persons in need of assistance who have found refuge on a coast in a remote location within an ocean area inaccessible to any rescue facility other than as provided for in the annex’.168 If persons stranded in a remote location on a coast are considered to be in distress at sea for the purposes of maritime search and rescue, no legal restriction should apply to persons in need of assistance at sea due to the risks involved and the inhuman conditions endured in these dangerous crossings. In the absence of consensus for a further amendment to the notion of persons in distress at sea, new guidelines could assist in reaching a consistent interpretation of the concept of persons in distress at sea and how it would apply to sea migrants. A broader, more preventative approach to this maritime concept would, it is argued here, enable a more coherent assessment of the response needed and thus allow a more efficient means of assistance at sea. CONCLUSION

The SAR Convention has proved to be an efficient instrument in the context of an increasingly safer maritime traffic. It formalises an international search and rescue plan based on the acceptance of defined geographical areas that defines a system of responsibility sharing and cooperation among states over the coordination of search and rescue operations. This system has been designed for, and responds effectively to, situations of regular navigation, where distress situations do not present interpretation difficulties, capacity in terms of available facilities is not generally a concern and the disembarkation of survivors is largely uncontroversial. However, irregular sea migration presents a much more complex scenario in terms of the incessant volume of unsafe crossings, raising capacity concerns, international human rights law and refugee law implications, as well as sovereignty and security repercussions, all of which exceed the technical provisions of the SAR Convention. To achieve a desperately needed reduction in unsafe irregular sea crossings, a fruitful debate on providing legal and safe migration pathways is critical. The search and rescue system therefore plays only one part in the search for solutions to the present refugee crisis. However, it remains central to reducing the number of lives lost at sea. The responsibility-sharing system based exclusively on the acceptance of search and rescue regions is here questioned and a suggestion is made to explore auxiliary mechanisms to enable a more tenable distribution of efforts, coupled with complementary methods of cooperation, not only among neighbouring states, but also at a regional and even at a global level. Long-standing cooperation strategies focusing on migration routes may enable a timely increase in search and rescue capacities in the maritime areas affected by the migration flows and a productive debate on a more

168 

Annex to the SAR Convention, paras 2.1.1 in fine.

86  The Irish Yearbook of International Law 2015 balanced distribution of disembarkations of sea migrants on land, in compliance with international human rights law and international refugee law principles. These principles are to constitute the core motivation, and underpin future developments of, the search and rescue system in order to overcome a segmented approach. Inter-agency cooperation is proving crucial to deal comprehensively with the current crisis and this, it is suggested, needs to be reflected within the search and rescue system. Some steps have already been made in this direction in soft law instruments, but further developments in the legal framework could lead the way towards a more comprehensive search and rescue system, where both the needs of the maritime traffic and the needs of any person in distress at sea, including sea migrants, are equally regarded.

Comparing Cooperation on Migration Control Italy–Libya and Australia–Indonesia FRANCESCA MUSSI AND NIKOLAS FEITH TAN*

INTRODUCTION

F

ROM ROME TO Canberra, parliaments and policy makers are seeking to fashion responses to irregular migration by sea.1 The dominant response to this form of irregular migration is one of control, through the implementation of measures to deter and prevent asylum seekers reaching the state’s territory.2 Since the 1980s, Western states have used deterrence or non-entrée measures to keep asylum seekers from accessing their territory and asylum procedures. Existing scholarly work details a range of migration control measures undertaken by these states, including visa controls,3 carrier sanctions,4 the establishment of so-called ‘international zones’,5

*  Francesca Mussi PhD, University of Milano-Bicocca. Nikolas Feith Tan is a PhD fellow at Aarhus University and the Danish Institute for Human Rights. The authors would like to thank Dr Richard Collins, Dr Roberta Mungianu, Professor Laura Pineschi, Professor Irini Papanicolopulu, Professor Jens Vedsted-Hansen and the anonymous reviewers for their helpful and constructive comments that greatly contributed to improving the final version of the article. All websites accessed 7 February 2017 unless otherwise stated. 1  The term ‘irregular migration’ is used in this article to encompass mixed migration whereby economic migrants, asylum seekers and refugees may all use the same routes to arrive in another country. The designation as ‘irregular’ is intended to indicate that the arrival may not be in accordance with the migration laws of the destination country. See SH Legomsky, ‘The Removal of Irregular Migrants in Europe and America’ in V Chetail and C Bauloz (eds), Research Handbook on International Law and Migration (Cheltenham, Edward Elgar, 2014) 148; A Di Pascale, ‘Migration Control at Sea: The Italian Case’ in B Ryan and V Mitsilegas (eds), Extraterritorial Immigration Control: Legal Challenges Extraterritorial Immigration Control (Leiden, Brill Nijhoff, 2010) 281. 2  See T Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge, Cambridge University Press, 2011) 18. 3  See J Vedsted-Hansen, ‘Europe’s Response to the Arrival of Asylum Seekers: Refugee Protection and Immigration Control’, UNHCR Working Paper No 6 (Geneva, UNHCR, 1999) 1 ff; J Hathaway, ‘The Emerging Politics of Non-entrée’ (1992) 91 Refugees 40, 40-41. 4 See E Taylor-Nicholson, ‘Cutting off the Flow: Extraterritorial Controls to Prevent Migration’, Berkeley Law Issues Brief (Berkeley, Berkeley Law University of California, 2011) 1 ff; A Cruz, Shifting Responsibility: Carriers’ Liability in the Member States of the European Union and North America (Stoke-on-Trent, Trentham Books and School of Oriental and African Studies, 1995). 5  L Haus, ‘Migration and International Economic Institutions’ in AR Zolberg and PM Benda (eds), Global Migrants, Global Refugees: Problems and Solutions (New York, Berghahn Books, 2001) 274–76.

88  The Irish Yearbook of International Law 2015 the excision of territory for the purposes of migration6 and interdiction on the high seas.7 As migration control has shifted from the territory of Western states to project beyond states’ borders, it has—at least in some cases—been carried out with the cooperation of nearby states.8 Since little attention has so far been given to a comparative analysis of such cooperation arrangements, this article aims to investigate two cases of bilateral cooperation on migration control—between Italy and Libya, and between Australia and Indonesia. Such a comparative approach acknowledges the commonalities— and divergences—between migration control policies across the developed world in a rapidly shifting policy area. Existing academic work focuses on extraterritorial control measures undertaken by Italy9 and Australia,10 but so far authors who have examined this cooperative dimension have tended to confine their analysis to the compatibility of these practices with the law of the sea,11 human rights law12 and refugee law.13 The two arrangements share common features. Both Italy and Australia are targets of irregular migration by sea, by virtue of their coastal geography.14 Both Indonesia and Libya are important transit states for irregular migrants seeking access to international protection. Neither Indonesia nor Libya is party to the Convention on the Status of Refugees (hereinafter the Refugee Convention).15 Non-governmental

6  T Magner, ‘The Less than “Pacific” Solution for Asylum Seekers in Australia’ (2004) 16 International Journal of Refugee Law 53. 7  SH Legomsky, ‘The USA and the Caribbean Interdiction Program’ (2006) 18 International Journal of Refugee Law 677. 8  A Missbach, ‘Doors and Fences: Controlling Indonesia’s Porous Borders and Policing Asylum Seekers’ (2014) 35 Singapore Journal of Tropical Geography 228; Maribel Casas, Sebastian Cobarrubias and John Pickles, ‘Stretching Borders beyond Sovereign Territories? Mapping EU and Spain’s Border Externalization Policies’ (2010) 2(1) Geopolítica (s) 71. 9  A Di Pascale, ‘Italy and Unauthorized Migration: Between State Sovereignty and Human Rights Obligations’ in R Rubio-Marin (ed), Human Rights and Immigration (Oxford, Oxford University Press, 2014); M Giuffré, ‘State Responsibility beyond Borders: What Legal Basis for Italy’s Push-Backs to Libya?’ (2012) 24 International Journal of Refugee Law 692; V Delicato, ‘Il contrasto al traffico di migranti negli accordi bilaterali conclusi dall’Italia’ in G Palmisano (ed), Il contrasto al traffico di migranti nel diritto internazionale, comunitario e interno (Milan, Giuffrè Editore, 2008) 167 ff. 10  NF Tan, ‘State Responsibility and Migration Control: Australia’s International Deterrence Model’ in T Gammeltoft-Hansen and J Vedsted-Hansen (eds), Human Rights and the Dark Side of Globalisation: Transnational Law Enforcement and Migration Control (Abingdon, Routledge, 2017). 11  S Trevisanut, ‘Immigrazione clandestina via mare e cooperazione fra Italia e Libia dal punto di vista del diritto del mare’ (2009) 3 Diritti umani e diritto internazionale 609. 12  F De Vittor, ‘Soccorso in mare e rimpatri in Libia: tra diritto del mare e tutela internazionale dei diritti dell’uomo’ (2009) Rivista di diritto internazionale 800. 13  N Klein, ‘Assessing Australia’s Push Back the Boats Policy under International Law: Legality and Accountability for Maritime Interceptions of Irregular Migrants’ (2014) 15 Melbourne Journal of International Law, 428-433; T Gammeltoft-Hansen, ‘The Externalisation of European Migration Control and the Reach of International Refugee Law’ in E Guild and P Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Leiden, Brill Nijhoff, 2011) 273 ff. For a recent account of the experiences of irregular migrants in Libya and Indonesia, see M Phillips and A Missbach, ‘Economies of Transit: Exploiting Migrants and Refugees in Indonesia and Libya’ (2017) 3 International Journal of Migration and Border Studies 139. 14  The Italian coastal island of Lampedusa sits just 100 km east of Tunisia, while Australia sits immediately south of archipelagic Indonesia, a transit state for irregular migrants. 15  Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

Symposium—Mussi and Tan 89 organisations (NGOs) have criticised the treatment of asylum seekers and refugees in Indonesia and Libya, respectively, in recent years. Indonesia has recently adopted a presidential decree on refugees, but there remains no legal avenue for the local integration of irregular migrants found to require international protection.16 Libya, despite being a party to the Convention Governing the Specific Aspects of Refugee Problems in Africa,17 has yet to adopt national asylum legislation or procedures.18 In this article we explore two aspects of Australia’s and Italy’s bilateral cooperation migration control arrangements. The first is empirical: what can we learn from the common and distinct elements of each cooperation arrangement? The second is legal: do the bilateral arrangements on migration control comply with refugee law? If not, how does international law hold states responsible for violations in the course of bilateral cooperation? Both forms of cooperation raise questions about the attribution of international legal responsibility between states, including the question of shared responsibility for internationally wrongful acts. This contribution is divided into three sections. First, we provide an overview of Italy’s and Australia’s bilateral cooperation with Libya and Indonesia, respectively, as the arrangements have developed over the past 15 years. This account includes a detailed analysis of the practical effects of the landmark Hirsi Jamaa case.19 Second, we analyse a range of similarities and differences between the two arrangements. Finally, we raise a number of legal questions emerging from the two bilateral cooperation arrangements with respect to international refugee law and a brief overview of relevant forms of shared responsibility under the law of state responsibility. The scope of the article is limited to bilateral migration control, given the relative lack of literature in this area. As the article analyses the policies of o ­ ne state inside the European Union (EU) and one outside the EU, in order to retain the integrity of the comparison, we do not analyse EU migration policy, though we acknowledge its significant role today.20 For similar reasons, we do not substantially address the role of the Bali Process in the Asia-Pacific region.21

16  Presidential Decree 125 of 2016 Concerning the Handling of Foreign Refugees, December 2016; A Missbach and NF Tan, ‘No Durable Solutions’ Inside Indonesia (13 March 2017), available at: http:// www.insideindonesia.org/no-durable-solutions (accessed 6 April 2017). 17  Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45. 18  Human Rights Watch, ‘World Report 2015: Libya’, 2015, available at: https://www.hrw.org/sites/ default/files/related_material/libya_6.pdf. See further Human Rights Watch, ‘Barely Surviving: Detention, Abuse, and Neglect of Migrant Children in Indonesia’, 2013, available at: https://www.hrw.org/sites/ default/files/reports/indonesia0613webwcover.pdf; Human Rights Watch, ‘Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers’, 2009, available at: http://www.hrw.org/en/node/85585. 19  ECtHR [GC], Hirsi Jamaa and Others v Italy, App No 27765/09 (23 February 2012). 20 S Sterkx, ‘The External Dimension of EU Asylum and Migration Policy: Expanding Fortress Europe?’ in J Orbie (ed), Europe’s Global Role: External Policies of the European Union (Aldershot, Ashgate, 2008) 117 ff. 21  The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime is an international forum, established in 2002, aiming at raising regional awareness of the consequences of people smuggling, trafficking in persons and related transnational crime. On the role of the Bali Process, see M Curley and K Vandyk, ‘The Securitisation of Migrant Smuggling in Australia and its Consequences for the Bali Process’ (2016) Australian Journal of International Affairs 1; S Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region’ (2014) 27 Journal of Refugees Studies 596.

90  The Irish Yearbook of International Law 2015 I.  MIGRATION CONTROL IN PRACTICE: ITALY–LIBYA AND AUSTRALIA–INDONESIA

A.  Cooperation between Italy and Libya In the course of the last 15 years, cooperation between Italy and Libya on migration control has been carried out within both formal and informal frameworks. In certain cases, it has taken the shape of formal cooperation through the conclusion of public, legally binding treaties. In other cases, informal agreements, adopted through a simplified procedure and removed from parliamentary scrutiny, have been used.22 Formal cooperation dates back to an agreement concluded on 13 December 2000 ‘for collaboration in the fight against terrorism, organised crime, illegal traffic of drugs and irregular migration’.23 The most significant example of formalised cooperation between Italy and Libya is the well-known Treaty of Friendship, Partnership and Cooperation,24 signed on 30 August 2008. The Treaty mandated a range of measures in relation to irregular migration,25 as well as the payment of €5 billion by Italy to Libya for colonial damages.26 The Treaty included explicit reference to the respect of fundamental human rights and liberties27 intended to appease those denouncing gross human rights violations occurring in Libya with regard to the treatment of Sub-Saharan immigrants.28 The reference to respect for fundamental human rights was, however, limited, as it only specified that ‘legislation’ of the two countries should observe human rights law.29 Instances of informal cooperation between Italy and Libya are much more conspicuous and, in many cases, regulate the practical aspects of cooperation. There are a number of informal agreements whose content is uncertain, as informality

22  On the constitutional implications of this procedure, see C Fioravanti, ‘Scatole cinesi. Quale controllo democratico sulla cooperazione “italo-libica-europea” in materia di immigrazione?’ in G Brunelli, A Pugiotto and V Veronesi (eds), Il diritto costituzionale come regola e limite al potere, Scritti in onore di Lorenza Carlassare (Napoli, Jovene, 2009) 539. 23  Accordo tra il governo della Repubblica italiana e la Grande Giamahiria Araba Libica Popolare Socialista per la collaborazione nella lotta al terrorismo, alla criminalità organizzata, al traffico illegale di stupefacenti e di sostanze psicotrope e all’immigrazione clandestina, Gazzetta Ufficiale Repubblica Italiana, Supplemento ordinario, Serie generale 111, 15 May 2003, 55 ff. 24  Trattato di amicizia, partenariato e cooperazione tra il governo della Repubblica italiana e la Grande Giamahiria Araba Libica Popolare socialista, 30 August 2008, ratified by Italy in law no 7/2009, on 6 February 2009, Gazzetta Ufficiale Repubblica Italiana, Serie generale no 40, 18 February 2009, 1 ff. On the Treaty in general, see N Ronzitti, ‘The Treaty on Friendship, Partnership and Cooperation between Italy and Libya: New Prospects for Cooperation in the Mediterranean?’ (2009) 1 Bulletin of Italian Politics 125. 25  Treaty of Friendship, Partnership and Cooperation, art 19. 26  ibid art 8. 27  ibid art 6. 28 See, among others, Amnesty International, ‘Libya: The Battle for Libya: Killings, Disappearances and Torture’, September 2011, available at: https://www.amnesty.org/en/documents/MDE19/ 025/2011/en. 29  On this topic, see also D Davitti and A La Chimia, ‘A Lesser Evil? The European Agenda on Migration and the Use of Aid Funding for Migration Control’ in this volume at 133.

Symposium—Mussi and Tan 91 and secrecy have always characterised the cooperation between Italy and Libya.30 In July 2003, a bilateral agreement was signed covering operational matters, including the exchange of information on migration flows and the provision of migration control equipment to Libya.31 The content of this agreement remains confidential since, according to the then Italian Minister of the Interior, making it public ‘would heavily damage its operability and effectiveness’.32 Bilateral cooperation continued with the apparent (but never officially confirmed) conclusion of a re-admission agreement in 2004.33 On 29 December 2007, another bilateral agreement on the fight against irregular migration was signed. The signing of the agreement was announced by the then Italian Ministry of the Interior,34 but the text was not officially published.35 The agreement was accompanied by an additional protocol setting out operational and technical arrangements, providing the basis for joint patrols of the Libyan coastline, in exchange for Italy donating migration control vessels and providing a range of other technical, material and political support to Libya.36 In 2009, following the entry into force of the Treaty of Friendship, Partnership and Cooperation, bilateral cooperation to control irregular migration by sea took on a different form as Italian naval units carried out several operations aimed at stemming irregular flows. The unanimous judgment of the European Court of Human Rights (ECtHR) in Hirsi Jamaa revealed that in early February 2009, an additional protocol was signed that was intended to further strengthen bilateral cooperation to counter irregular migration.37 The protocol partially amended the agreement of 29 December 2007, including a new article which provided for joint patrols ‘in Libyan and international waters’, as well as repatriation of ‘clandestine migrants’.38 Although none of these agreements was made public, according to the Hirsi Jamaa judgment, press releases, leaked documents and other sources, the arrangement between Italy and Libya included the following features: Italian funding of reception

30 P Cuttitta, ‘Readmission in the Relations between Italy and North African Mediterranean Countries’ in J-P Cassarino (ed), Unbalanced Reciprocities: Cooperation on Readmission in the EuroMediterranean Area (Washington DC, Middle East Institute, 2010) 35. 31 European Commission, ‘Technical Mission to Libya on Illegal Migration 27 Nov–6 Dec 2004 Report’, available at: http://www.statewatch.org/news/2005/may/eu-report-libya-ill-imm.pdf. 32  Cuttitta (n 30) 34. 33  The appearance seems to be confirmed by the increasing in the number of persons returned from that date: see Di Pascale (n 1) 297. 34 See ‘Immigrazione clandestina: il Ministro dell’Interno Amato firma a Tripoli un accordo per il pattugliamento congiunto della costa libica’, 29 December 2007, available at: http://www1.interno.gov. it/mininterno/export/sites/default/it/sezioni/sala_stampa/notizie/immigrazione/0871_2007_12_29_ministro_Amato_firma_a_Tripoli_accordo_per_il_pattugliamento_congiunto.html_1562036151.html. 35 Protocollo tra la Repubblica italiana e la Grande Giamahiria Araba Libica Popolare Socialista, 29 December 2007. The text was leaked by Italian news agencies and it can be found at: http://elabora. fondazionenigrizia.it/public/1/pdf_documenti/protocollo_base_italia_libia_2007.pdf. 36  Protocollo aggiuntivo tecnico-operativo al Protocollo di cooperazione tra la Repubblica italiana e la Grande Giamahiria Araba Libica Popolare Socialista, per fronteggiare il fenomeno dell’immigrazione clandestina, 29 December 2007. The text was not published, but can be found at: http://www.meltingpot. org/IMG/pdf/Protocollo_operativo_Italia_Libia_2007.pdf. 37  ibid para 19. 38 ibid.

92  The Irish Yearbook of International Law 2015 centres or camps for irregular migrants (aimed at detaining irregular migrants as well as providing humanitarian assistance) in Libya; return of irregular migrants to Libya; repatriation of irregular migrants from Libya to third countries; joint patrols in the Mediterranean; exchange of intelligence on migrant smuggling organisations, operations and routes; provision of equipment (including patrol boats and electronic monitoring devices) and other assistance to Libya aiming at enhancing its capacity to combat migrant smuggling; training of Libyan police officials; and pushbacks of migrants intercepted by Italian authorities in international waters to Libya.39 Based upon official figures provided by the Italian government, from 6 May to 6 November 2009, Italy carried out nine operations to return a total of 834 persons to Libyan ports from where they had departed. In 2011, due to the civil unrest in Libya and neighbouring Tunisia, Italy declared the Treaty of Friendship, Partnership and Cooperation ‘de facto suspended’.40 However, during the civil war in Libya, Italy sought to shore up previous arrangements to counter irregular migration by formally recognising and reaching an agreement with the National Transitional Council.41 Although confidential, the agreement was made public through unofficial channels; it included ‘shared management’ of migration flows and the ‘repatriation of migrants in an irregular situation’.42 The agreement quickly became effective: over 13,000 migrants were returned to Libya and Tunisia between January and July 2011.43 i. The Implementation of the Hirsi Jamaa Judgment and its Impact on Subsequent Cooperation The judgment delivered by the Grand Chamber in Hirsi Jamaa found violations by Italy of Article 3,44 Article 4 of Protocol No 4 and Article 13 of the European Convention on Human Rights (ECHR). According to Article 46(1) ECHR, when the Court finds a violation, states have a legal obligation to abide by its judgments. Pursuant to Article 41 ECHR, the ECtHR ordered the Italian government to pay each of the applicants the sum of €15,000 ‘plus any tax that may be chargeable,

39  See Di Pascale (n 9) 297–98; E Paoletti, ‘Relations among Unequals? Readmission between Italy and Libya’ in Cassarino (n 30) 59–60. 40  Those were the exact words of the then Italian Minister of Defence, Ignazio La Russa: see ‘Libia: La Russa, trattato con Italia di fatto sospeso’, Corriere della Sera (26 February 2011), available at: http:// www.corriere.it/politica/11_febbraio_26/libia-berlusconi-larussa-trattato-gheddafi_7acd0620-419b11e0-b406-2da238c0fa39.shtml. 41 Italian Ministry of Foreign Affairs, ‘Immigration: Frattini Signs Accord with Libyan NTC’, 17 June 2011, available at: http://www.esteri.it/MAE/EN/Sala_Stampa/ArchivioNotizie/Approfondimenti/2011/06/20110617_FrattiniCNTLibico.htm. 42  Y Maccanico, ‘The EU Self-Interested Response to Unrest in North Africa: The Meaning of Treaties and Readmission Agreements between Italy and North African States’ (2012) 1 Statewatch Analyses, available at: http://www.statewatch.org/analyses/no-165-eu-north-africa.pdf. 43  S Carrera, L den Hertog and J Parkin, ‘EU Migration Policy in the Wake of the Arab Spring: What Prospects for EU-Southern Mediterranean Relations?’ (2012) 15 MEDPRO Technical Report, available at: http://www.medpro-foresight.eu/system/files/MEDPRO%20TR%20No%2015%20WP9%20Carrera.pdf. 44  Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 (entered into force 3 September 1953).

Symposium—Mussi and Tan 93 in respect of non-pecuniary damage, which sums are to be held by the representatives in trust for the applicants’, as well as the sum of €1,575.74 in respect of costs and expenses sustained for the participation in the hearing of 22 June 2011 before the Grand Chamber.45 The Court allowed the Italian government a period of three months to execute the judgment. With particular reference to the violation of Article 3 ECHR derived from the unlawful pushback of the applicants to Libya, the Court imposed another, specific obligation, namely to take ‘all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated’.46 The Court stated that the individual measures were to be understood ‘without prejudice to the general measures required to prevent other similar violations in the future’.47 However, according to the applicants’ lawyers, Italy had not taken any steps to execute the judgment after the three-month period expired.48 As to the question of the just satisfaction awarded to the applicants, the Ministry of Economic Affairs and Finance contacted the applicants’ lawyers on 8 May 2012—just 15 days before the expiry of the payment deadline– requesting detailed documentation to be able to start the procedures for payment of the sums awarded. On 18 May 2012, the applicants’ lawyers presented to the Ministry for Economic Affairs and Finance the practical problems relating to the requested documentation. These problems were connected to the fact that almost all the applicants with whom it had been possible to maintain contact were outside Italy. The only applicant who was in Italy was Mr Ermias Berhane, who had obtained recognition of refugee status from the competent local board and was lawfully resident in Rome. Nevertheless, Mr Berhane did not receive payment of the sum awarded to him. The consolidated case law of the Court should be recalled on the subject of the execution of judgments and, in particular, the principle according to which the Convention ‘must be interpreted and applied in such a way as to guarantee rights that are practical and effective’.49 In light of this principle, the Italian government had an obligation to take any measures necessary to secure the timely execution of the judgment. Considering the fact that the majority of the applicants were not on Italian territory, it was incumbent on the Italian government to locate and trace the applicants, and to facilitate their return to the Italian territory in order to collect the just satisfaction awarded by the Court. Locating and facilitating the return of the applicants 45 

Hirsi judgment (n 19) paras 213–16. ibid para 211. ibid para 210. 48  See the communication from the applicants’ lawyers in the case of Hirsi Jamaa and others against Italy (Application No 27765/09) addressed to the Department for the execution of the judgments of the European Court of Human Rights on 16 July 2012, available at: http://www.marinacastellaneta.it/blog/ caso-hirsi-litalia-non-esegue-la-sentenza-della-cedu.html. 49 ECtHR, Muminov v Russia, App No 42502/06 [2006] ECHR 63 (4 November 2010), para 19. ‘In consideration of which, the Court states that the ‘respondent State shall secure, by appropriate means, the execution of the just satisfaction award, in particular, by facilitating contact between the applicant, on the one hand, and the Committee of Ministers of the Council of Europe acting under Article 46 of the Convention, the applicant’s representative in the Convention proceedings or … on the other.’ 46  47 

94  The Irish Yearbook of International Law 2015 does not seem difficult or excessively costly for the Italian government given the fact that, as regards a large number of the applicants, the applicants’ lawyers had information about their current place of residence and/or address, as well as their telephone numbers. Thus, the delay in execution of the judgment seems completely unjustified. As to individual measures, the ECtHR ordered the Italian government to take any measures necessary to obtain from the Libyan authorities assurances that the applicants would not be subject to treatment incompatible with Article 3 ECHR and would not be arbitrarily repatriated. According to the website of the Committee of Ministers, the Italian government received formal assurances from Colonel Samir Youssef, Deputy at the Libyan Ministry of the Interior, about the treatment that the applicants would receive if they were present on Libyan territory.50 However, at that time, none of the applicants was present in Libya. That circumstance was communicated to both the ECtHR and the Italian government well before the judgment was delivered and, in particular, in the additional briefing filed after the hearing of 22 June 2011 before the Grand Chamber. Therefore, the paragraph of the judgment relating to individual measures raises doubts as to the interpretation of the exact scope of the obligations incumbent on the State of Italy in pursuance of Article 46(3) ECHR.51 If the purpose of the Court’s judgment was to avoid the applicants being subjected to treatment contrary to Article 3 ECHR—whether in Libya, their respective countries of origin or other transit countries—it would be reasonable to place a positive obligation on the Italian government to secure for the applicants that standard of treatment wherever they were by adopting any protection measure necessary for this purpose. This seems all the more true if we consider that none of the applicants was present any longer on Libyan territory, precisely because they were unlawfully pushed back by the local authorities. For example, Mr Yohannes Robel Abzighi was in a refugee camp in Benin and there was no news of his treatment by the local government. Therefore, as one can see, it is precisely the situation which the Court’s judgment was intended to avoid which had occurred, ie, the arbitrary and indiscriminate expulsion of the applicants by the Libyan authorities, without assurances as to their treatment in their country of destination. In the light of the above, in the opinion of the applicants’ lawyers, it would have been appropriate to bring the Article 46(3) problem of interpretation to the attention of the Committee of Ministers in order to assess the possibility of referring the matter to the Court. Even though the Hirsi Jamaa judgment represented a strong condemnation of the arrangement between Italy and Libya, it did not stop cooperation between the two countries. On 3 April 2012, Italy and Libya concluded a Memorandum of

50  See Communication du gouvernement de l’Italie relative à l’affaire Hirsi Jamaa contre Italie (requête n° 27765/09), 1 June 2012, available at: http://www.marinacastellaneta.it/wp-content/uploads/2012/06/ hirsi.pdf. 51  On the basis of art 46(3) ECHR: ‘If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation.’

Symposium—Mussi and Tan 95 Understanding on security to combat the unauthorised departure of migrants from Libya, which was on the rise again.52 Once again, the agreement was negotiated in secret, and a brief press release which accompanied the announcement of its conclusion provided only very sketchy details of the main provisions.53 The arrangement focuses on fighting the smuggling of migrants, while facilitating their voluntary return to their country of origin in cooperation with the International Organization for Migration (IOM). It includes the training of the Libyan police to control borders, recommends information exchange between the two countries and also the creation of a system of data management for civil registries. The agreement does not appear to restore previous arrangements regarding operations at sea, although the terms of the Hirsi Jamaa judgment would appear to unambiguously require Italy to renegotiate those arrangements to ensure compliance with that country’s human rights obligations. Two additional bilateral ‘technical agreements’ were signed in Rome on 28 November 2013.54 In the first agreement, Italy offered drones to assist in the control of Libya’s southern border, in part in an effort to detect irregular migrants. Italian drones presumably ensure the earlier detection of trucks transporting migrants. The agreement contains no indication of any concrete measures to uphold international human rights and refugee law standards, and instead reiterates Libya’s commitment to strengthening its borders to prevent migrant departures from its territory. In the second agreement, Italy reiterated its commitment to provide training and equipment to enhance Libyan border surveillance. On that occasion, senior Italian immigration officials acknowledged the legal impact of the Hirsi Jamaa judgment, but stated that those agreements were inoperable in any case, because of ongoing political instability in the country.55 By Legislative Decree of 18 February 2015, No 7,56 the Italian government allocated more than €4 million: [T]o finance the participation of the Italian authorities to the mission in Libya, to maintain the migration control vessels donated to the Libyan authorities and to finance the training

52  The minutes of the meeting in Tripoli were published in the Italian daily newspaper La Stampa; according to the article, ‘an agreement with Libya run the risk of violating fundamental human rights …) Italy invites Libya to reinforce its sea and land frontiers with a view to impeding departures of migrants from its territory’. See also M Castellaneta, ‘Sull’immigrazione patto ‘segreto’ Italia-Libia, Notizie e commenti sul diritto internazionale e dell’Unione europea, 24 June 2012, available at: http://www.marinacastellaneta.it/blog/sullimmigrazione-patto-segreto-italia-libia.html. 53  Amnesty International, ‘SOS Europe: Human Rights and Migration Control’, 2012, available at: http://www.amnesty.eu/content/assets/S_O_S_Europe_Report_Web_02.pdf. 54  The text of the agreements was not published. However, the signing of the agreements was announced by the Ministry of the Defence: see ‘Italy—Libya: Cooperation Agreements’, available at: http://www. difesa.it/EN/Primo_Piano/Pagine/20131129_Italy%E2%80%93Libyacooperationagreements.aspx. 55  AT Gallagher and F David, The International Law of Migrant Smuggling (Cambridge, Cambridge University Press, 2014) 110. 56  ‘Misure urgenti per il contrasto del terrorismo, anche di matrice internazionale, nonché proroga delle missioni internazionali delle Forze armate e di polizia, iniziative di cooperazione allo sviluppo e sostegno ai processi di ricostruzione e partecipazione alle iniziative delle Organizzazioni internazionali per il consolidamento dei processi di pace e di stabilizzazione’, Legislative Decree 18 February 2015, no 7, Gazzetta Ufficiale Repubblica Italiana, Serie generale 41, 19 February 2015.

96  The Irish Yearbook of International Law 2015 of the Libyan police, according to the bilateral agreements concluded with Libya to counter irregular migration and trafficking in human beings.57

However, it is not clear to which mission the Legislative Decree refers, in light of the fact that relations between Italy and Libya have now been absorbed by a wider cooperation framework put in place by the EU. On 22 June 2015, the Council launched EUNAVFOR Med, a naval operation against human smugglers and traffickers in the Mediterranean to support Libyan authorities in improving and developing the security of the country’s border. On 3 February 2017, the Italian Prime Minister and his Libyan counterpart signed an additional Memorandum of Understanding on cooperation to combat irregular migration and human trafficking. According to the agreement, Italy will provide economic, training and equipment support in order to help Libya better police its own borders and thereby stem the flow of irregular migration.58 B.  Cooperation between Australia and Indonesia Over the past 15 years, Australia has implemented a range of measures to prevent irregular migration by sea, including the development of a set of bilateral arrangements with different states.59 It has sought to engage the cooperation of regional developing states by entering into deals with source and transit states, such as Sri Lanka, Malaysia and Indonesia. Since 2012, it has established a far-reaching version of the ‘Pacific Solution’, in place between 2001 and 2008, under which asylum seekers are transferred to Papua New Guinea and Nauru for processing. Originally, the policy included the permanent resettlement of asylum seekers found to be refugees in Papua New Guinea, Nauru or Cambodia.60 However, in November 2016, Australia announced a one-off agreement with the US to settle up to 1,250 refugees in offshore sites.61 Indonesia hosts almost 14,000 asylum seekers and refugees from Myanmar, Afghanistan, Iraq, Iran, Syria and Somalia.62 Indonesia is a ‘key transit country’ for

57 

ibid art 13. ‘Memorandum d’intesa sulla cooperazione nel campo dello sviluppo, del contrasto all’immigrazione illegale, al traffico di esseri umani, al contrabbando e sul rafforzamento della sicurezza delle frontiere tra lo Stato della Libia e la Repubblica Italiana Il Governo di Riconciliazione Nazionale dello Stato di Libia e il Governo della Repubblica Italiana’, 3 February 2017, available at: http://www.repubblica.it/esteri/2017/02/02/ news/migranti_accordo_italia-libia_ecco_cosa_contiene_in_memorandum-157464439. 59 Tan (n 10) 8 ff; J McAdam, ‘Australia and Asylum Seekers’ (2013) 25 International Journal of Refugee Law 435; Magner (n 6) 82; A Schloenhardt, ‘Deterrence, Detention and Denial: Asylum Seekers in Australia’ (2002) 22 University of Queensland Law Journal 54. 60  ‘Memorandum of Understanding between the Government of the Kingdom of Cambodia and the Government of Australia relating to the Settlement of Refugees in Cambodia’, 26 September, 2014, available at: http://dfat.gov.au/international-relations/themes/people-smuggling-trafficking/Documents/cambodia-australia-mou-and-operational-guidelines.pdf. 61  P Karp and P Farrell, ‘Refugees Held in Australian Offshore Detention to Be Resettled in US’, The Guardian (13 November 2016), available at: https://www.theguardian.com/australia-news/2016/nov/13/ refugees-held-in-australian-offshore-detention-to-be-resettled-in-us. 62  Missbach (n 8) 228–29. In January 2016, there were 7,616 asylum seekers and 6,063 refugees registered with the UNHCR in Indonesia. 58 

Symposium—Mussi and Tan 97 irregular migrants to Australia, due to a range of factors. It is made up of approximately 17,000 islands with a coastline of almost 55,000 km located on a path between refugee source countries in the Middle East and Asia to Australia.63 In addition to geography, corruption among immigration officials leaves Indonesia’s borders porous and difficult to police.64 Australia and Indonesia’s cooperation on irregular migration should be seen in the context of a complex bilateral relationship. This relationship has ebbed and flowed since Indonesian independence in 1945, with a series of sensitivities triggering a mix of cooperation and antagonism. Former Indonesian President Susilo Bambang Yudhoyono described the relationship as ‘love-hate’.65 First characterised as ‘strange neighbours’, the relationship has matured since the democratic reform period began in Indonesia in 1997. Bilateral cooperation in relation to irregular migration between Australia and Indonesia dates back to the late 1990s.66 From 1999, Australia experienced a spike in irregular migration by sea, including asylum seekers fleeing conflicts in Afghanistan and Iraq, travelling via Indonesia and Malaysia.67 While this movement of people remained relatively uncontroversial in Indonesia, the phenomenon became a domestic political issue in Australia.68 In 2000 Australia, Indonesia and the IOM concluded the Regional Cooperation Model (RCM) by exchange of letters.69 Under the RCM, Australia funds the IOM’s operations in Indonesia relating to irregular migrants, which include the running of detention facilities and residential housing.70 Australia has had a policy of mandatory detention for all irregular migrants arriving by sea since 1992 and has encouraged Indonesia to implement similar detention policies. Cooperation in relation to detention is carried out under the Management and Care of Irregular Immigrants Project (MCIIP), which was established in 2007.71 Like the RCM, the MCIIP is a trilateral agreement under which Australia funds the IOM to build and run immigration detention centres in Indonesia. Australia funds the entire Indonesian detention network, amounting to 13 centres across the country.72 In the detention context, Indonesian policy has been characterised as ‘incentivised policy transfer’: 63  For an account of Indonesia’s approach to refugee law, see NF Tan, ‘The Status of Asylum Seekers and Refugees in Indonesia’ (2016) 28 International Journal of Refugee Law 365. 64 C Barker, ‘The People Smugglers’ Business Model’ (2012–13) 2 Research Paper, available at: http://parlinfo.aph.gov.au/parlInfo/download/library/prspub/2262537/upload_binary/2262537. pdf;fileType=application/pdf; A Nethery, B Rafferty-Brown and S Taylor, ‘Exporting Detention: Australia-Funded Immigration Detention in Indonesia’ (2013) 26 Journal of Refugee Studies 94. 65  A Nethery and C Gordyn, ‘Australia–Indonesia Cooperation on Asylum-Seekers: A Case of “Incentivised Policy Transfer”’ (2014) 6 Australian Journal of International Affairs 177, 184. 66  ibid 177–78. 67  Around 12,000 people arrived by boat in the three-year period between 1999 and 2001. 68  Nethery and Gordyn (n 65) 185. 69  ME Crock and D Ghezelbash, ‘Do Loose Lips Bring Boats? The Role of Policy, Politics and Human Rights in Managing Unauthorised Boat Arrivals’ (2010) 19 Griffith Law Review 238. The RCM is also referred to as the Regional Cooperation Agreement: see Nethery, Rafferty-Brown and Taylor (n 64) 95. 70 Australian Government, ‘Department of Immigration and Border Protection’, Annual Report 2013–14, available at: http://www.border.gov.au/ReportsandPublications/Documents/annual-reports/ DIBP_AR_2013-14.pdf. See also Jesuit Refugee Service, ‘The Search: Protection Space in Malaysia, Thailand, Indonesia, Cambodia and the Philippines’, 2012, available at: http://www.refworld.org/ docid/506bfb622.html. 71  Nethery, Rafferty-Brown and Taylor (n 64) 95–96. 72  Nethery and Gordyn (n 65) 186.

98  The Irish Yearbook of International Law 2015 Australia has actively encouraged Indonesia to detain asylum-seekers in immigration detention. It has done this by providing financial support and other resources, including infrastructure, equipment, and various kinds of technical assistance and training. By these means, and also through diplomacy, it has actively influenced Indonesian policy.73

In 2006, Australia and Indonesia signed the Agreement on the Framework for Security Cooperation (hereinafter the ‘Lombok Treaty’), providing for cooperation in defence, law enforcement, counter-terrorism, maritime security and disaster response.74 Article 3(7) of the Lombok Treaty calls for stronger law enforcement cooperation ‘between relevant institutions and agencies, including prosecuting authorities, in preventing and combating transnational crimes, in particular crimes related to … people smuggling and trafficking in persons’. However, beyond the Lombok Treaty, Australia and Indonesia conduct a range of activities aimed at preventing irregular migration. Since 2004, Australia has funded the Jakarta Centre for Law Enforcement Cooperation where Australian Federal Police (AFP) officers train Indonesian police and immigration authorities on the investigation of people smuggling operations.75 Australia also places officials in Indonesia to cooperate in efforts ‘to prevent and disrupt maritime people smuggling’.76 In 2011, Australia gifted three new high-speed patrol boats to Indonesia for the purpose of preventing irregular migrants departing the country.77 In September 2013 alone, 17 boats were intercepted carrying 550 passengers. Australia has sought to influence Indonesian visa policy, requesting Jakarta to tighten visa conditions for Iranians entering Indonesia in August 2013.78 Iran is a significant source country of irregular migrants to Australia.79 Iranians had previously received a 30-day tourist visa on arrival in Indonesia. On its face, the imposition of such visa requirements for nationals of refugee-producing states is nothing new, for such measures have been initiated by developed states since the 1980s.80 What is new about the Indonesian example is that the change in visa policy came as a direct result of a request from then Australian Prime Minister Kevin Rudd. 73 ibid.

74  Agreement between the Republic of Indonesia and Australia on the Framework for Security Cooperation, 13 November 2006, available at: http://media.theaustralian.news.com.au/agreement.pdf. 75  Seven training programs on people smuggling investigations were carried out in 2013: see Jakarta Centre for Law Enforcement Cooperation, ‘Annual Report 2013’, available at: http://www.jclec.com/ index.php?option=com_docman&task=cat_view&gid=113&Itemid=42. A spike in irregular migration in the region in 2009 triggered a renewed push for cooperation on the part of Australia. In July of that year, the AFP received $AUD44 million to provide training to the police forces of regional states, including Indonesia, to counteract people smuggling operations and prevent boats leaving Indonesia bound for Australia: see H Spinks, C Barker and D Watt, ‘Australian Government Spending on Irregular Maritime Arrivals and Counter-People Smuggling Activity’ (2013) Background Note, Parliamentary Library (Australia), 25. 76  ibid 23. Officers are also stationed in Sri Lanka and Malaysia. 77  Missbach (n 8) 233. 78  Australian Broadcasting Corporation, ‘Indonesia to Change Visa Requirements for Iranians Entering the Country Following Request from PM Kevin Rudd’, 19 July 2013, available at: http://www.abc. net.au/news/2013-07-18/indonesia-to-change-visa-requirements-for-iranians/4829434. Australia has made similar requests to the Malaysian government. 79  Department of Immigration and Border Protection, ‘Annual Report 2013–14’, 112–13. 80  J Vedsted-Hansen (n 3) 20.

Symposium—Mussi and Tan 99 Australia has unilaterally pushed or towed back boats to Indonesia sporadically over the last 15 years. In 2001, it returned boats to Indonesian territorial waters with the acquiescence of the Indonesian government. In 2009, it intercepted and returned two vessels, Oceanic Viking and Jaya Lestari. Indonesia initially refused to accept the boats, but ultimately reluctantly agreed.81 Since September 2013, 28 boats have been turned around to Indonesia, Malaysia and Sri Lanka under Australia’s Operation Sovereign Borders policy.82 Boat turnbacks have strained bilateral cooperation. During five Operation Sovereign Borders turn-back operations, for example, Australian Navy vessels breached Indonesian territorial waters.83 In 2015, reports suggested that Australian officials paid Indonesian people smugglers on a boat with 65 asylum seekers to turn around and return to Indonesia.84 Both incidents created significant tension within the broader bilateral relationship. While cooperation in this area has, at various times, been quite extensive, it is important to note that Australian interests do not dominate the bilateral relationship. Indonesian policy is not merely an extension of Australian non-entrée efforts. Characterised as ‘benevolent neglect’,85 Indonesia’s tolerance of asylum seekers and refugees has often frustrated Australian efforts to influence Indonesian policy. Missbach has observed: ‘Despite a number of bilateral and multilateral initiatives to curb transnational crime, including people smuggling, Indonesia remains reluctant to prevent asylum seekers’ departures to Australia by boat.’86 This dynamic underscores the fact that Australian influence is limited vis-a-vis Indonesia’s asylum policy; rather, Indonesia strategically acquiesces to Australian wishes when it is in its interests to do so.87 II.  COMPARING COOPERATION

A. Similarities The cooperation arrangements between Italy and Libya on the one hand, and Australia and Indonesia on the other reveal certain common underlying elements. We identify three primary similarities: the power dynamics between the cooperating countries; how cooperation is implemented; and the secrecy surrounding both cooperation models. 81 A Missbach and F Sinanu, ‘The Scum of the Earth’? Foreign People Smugglers and Their Local Counterparts in Indonesia’ (2011) 30 Journal of Current Southeast Asian Affairs 64. 82  Kaldor Centre, ‘Turning Back Boats’, factsheet, 4 August 2015, available at: http://www.kaldorcentre.unsw.edu.au/publication/%E2%80%98turning-back-boats%E2%80%99. 83 A Missbach, Troubled Transit: Asylum Seekers Stuck in Indonesia (Iseas, Yusof Ishak Institute, 2015) 194–97. 84 Amnesty International, ‘By Hook or by Crook: Australia’s Abuse of Asylum-Seekers at Sea’, 29 October 2015, available at: http://www.refworld.org/docid/5631eaee8.html. 85 A Missbach, ‘Benevolent Neglect: How Indonesia Handles its Asylum Seeker Problem’, The Conversation (29 August 2012), available at: http://theconversation.com/benevolent-neglecthow-indonesia-handles-its-asylum-seeker-problem-8920. 86  Missbach (n 8) 240. 87  IRIN, ‘Australian Immigration Policy Piles Pressure on Indonesia’, 24 June 2014, available at: http:// www.irinnews.org/report/100255/australian-immigration-policy-piles-pressure-on-indonesia.

100  The Irish Yearbook of International Law 2015 First, the power dynamics of the two arrangements share certain characteristics. Both cooperation models form part of an array of extraterritorial migration controls employed by the Western state, which is in a position of relative predominance over the partner state. Both arrangements are initiated and funded by the Western state, where the curbing and prevention of irregular migration is a domestic political priority. In Australia, asylum-seeker boats represent the loss of control over the nation’s borders.88 In Italy, cooperation with Libya is an important part of the fight against clandestine migration. Second, the practical implementation of each agreement is largely, though not entirely, similar. Both cases feature funding of reception or detention centres; intelligence sharing; the provision of equipment; and police training to combat irregular migration.89 However, Italy–Libya cooperation includes greater incursions onto the sovereign territory of the developing state through joint patrols in Libyan territorial waters and—previously—agreed pushbacks to Libya. In contrast, Indonesia has vocally criticised Australia’s policy of turning boats around.90 In this sense, Italian cooperation with Libya is a more interventionist, as the developing state allows greater access to its territory for the purposes of migration control. Third, cooperation in both cases is characterised by a high level of secrecy. Ascertaining what is happening on the ground can be extremely difficult and this lack of transparency presents methodological difficulties for scholars. Much of the cooperation between Australia and Indonesia takes place under diplomatic secrecy and all ‘operational matters’ are confidential.91 Cooperation often takes place on an ad hoc, case-by-case basis. While Italy–Libya cooperation has been formalised through a series of bilateral instruments, informal agreements are also in force.92 Some agreements have neither been made public nor submitted to parliamentary scrutiny. As a consequence, texts are not published on the public record and have only been revealed by NGO reports or newspapers. B. Differences There are also a range of differences between the two instances of bilateral cooperation. Here, we focus on three distinctions: the stability of the developing state; the role of the United Nations High Commissioner for Refugees (UNHCR); and the level of human rights protection in the two regions. First, there are marked differences between the internal stability of Libya and Indonesia. Libya is a state of both origin and transit producing a far greater number of irregular migrants, while Indonesia is almost entirely a transit state from 88 

McAdam (n 59) 435. T Gammeltoft-Hansen and J C Hathaway, ‘Non-refoulement in a World of Cooperative Deterrence’ (2014) 53 Columbia Journal of Transnational Law 252. 90  Klein (n 13) 424–26. 91  E Griffiths, ‘Scott Morrison Says Government Won’t Reveal When Asylum Seekers Boats Turned Back’, Australian Broadcasting Corporation, 23 September 2013, available at: http://www.abc.net.au/ news/2013-09-23/government-won27t-reveal-when-boats-turned-back/4975742. 92  Giuffré (n 9) 697. 89 

Symposium—Mussi and Tan 101 which modest numbers seek passage to Australia. While Indonesia is an emerging democracy and rising economic powerhouse, since the overthrow of Colonel Gaddafi in October 2011, successive transitional governments in Libya have failed to produce a stable political and security environment throughout the country. Consequently, Libya can be considered a quasi-failed state. This diverging limit of stability has clear consequences for the effectiveness of bilateral cooperation. Second, the role of the UNCHR is distinct in Libya and Indonesia. In Libya, the agency’s role in ensuring refugee protection is severely limited. Despite several years of trying to negotiate a Memorandum of Understanding, The UNHCR’s Tripoli office is still not officially recognised. It receives only a small proportion of potential asylum claims due to prospective claimants’ unwillingness or inability to apply for asylum in Libya. The UNHCR is not given access to places of detention in Libya, which denies the agency contact with detained refugees and asylum seekers and increases the chances of refoulement. Since May 2014, the UNHCR has suspended all new registration activities of refugees and asylum seekers for security reasons.93 Indonesia, on the other hand, tolerates asylum seekers and refugees under the care of the UNHCR. The agency plays a very significant role in handling irregular migrants, including carrying out refugee status determination. Protection claims are assessed and asylum seekers are provided with a reasoned decision on whether refugee status is granted or not. With its partner organisations, the UNHCR also provides psychological and social care to persons of concern in Indonesia. Compared with the Libyan situation, the UNCHR in Indonesia has a stable presence and plays a significant role in supporting asylum seekers and refugees. Third, there is a clear difference between regional human rights protection in Europe and Australia. Cooperation between Italy and Libya, as shown before, has been firmly condemned in the Hirsi Jamaa judgment by the ECtHR, a regional human rights judicial body with a mandate to decide complaints submitted by individuals and states concerning violations of the ECHR. In contrast, due to the lack of a similar regional system in the Asia-Pacific, bilateral cooperation in this area has been scrutinised only by national courts. In 2015, the High Court of Australia concluded in CPCF v Minister for Immigration and Border Protection that the Australian government’s attempt to return up to 153 asylum seekers to Sri Lanka was not contrary to Australian law and, in particular, the scope of powers conferred on Australian officials under the Maritime Powers Act.94 The judgment did not engage in any detailed analysis of international refugee law or human rights law. Instead, the Court focused squarely on the construction of the Australian government’s powers pursuant to the Act. Bearing the above similarities and differences in mind, the analysis now turns to consider this kind of cooperation from a more explicitly legal perspective, clarifying 93  In 2015, the UNHCR conducted the emergency registration of six new asylum seekers. The agency will continue examining the feasibility of resuming registration. In June 2015, the Office began renewing attestations for refugees and asylum seekers who were previously registered with the UNHCR and whose documents have expired. See broadly ‘UNHCR Position on Returns to Libya—Update I’, November 2015, available at: http://www.refworld.org/docid/561cd8804.html. 94  High Court of Australia, CPCF v Minister for Immigration and Border Protection [2015] HCA 1, 28 January, available at: www.refworld.org/docid/54c8be3c4.html.

102  The Irish Yearbook of International Law 2015 whether it amounts to refoulement and to what extent the law of state responsibility may apply in situations involving two or more sovereign actors. III.  LEGAL ISSUES RAISED BY BILATERAL COOPERATION ON MIGRATION CONTROL

A.  Compatibility with International Refugee Law The cases of bilateral cooperation we describe above include potential violations of refugee rights. By intercepting and returning migrants on the basis of bilateral agreements, the Australian and Italian authorities may infringe several international legal norms, which comprise the multilevel system of asylum. This system is based on different legal sources. The principle of non-refoulement, as set out in Article 33(1) of the Refugee Convention,95 has played a key role in how states deal with refugees and asylum seekers. The expansion of international human rights law has broadened the scope of this obligation and now requires states to protect non-nationals from being returned to countries in which their life is threatened or where they risk being subjected to torture or inhuman and degrading treatment, regardless of their immigration status. Non-refoulement is included explicitly in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)96 and implicitly in Article 7 of the International Covenant on Civil and Political Rights (ICCPR).97 In addition, at the regional level, Italy is bound by Article 3 ECHR, which implicitly prohibits the return of anyone to a place where they would face a real risk of ill-treatment in breach of the prohibition on torture or inhuman or degrading treatment or punishment.98 Moreover, the principle of non-refoulement is widely, but not uniformly, accepted to be a norm of customary international law.99

95  Article 33(1) provides: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ 96  UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol 1465, p 85 (entered into force 26 June 1987). 97  Article 7 provides: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Engel, 1993) art 7, para 21. 98  The ECHR does not foresee a right of entry or asylum. However, the interpretation of art 3 can be seen as a limit to the power of states to expel aliens. For further information, see European Agency for Fundamental Rights, ‘Handbook on European Law Relating to Asylum, Borders and Immigration’, June 2013, at 63, available at: http://www.refworld.org/docid/51b6eb394.html; UNHCR, ‘The European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons, European Series 2, 1996, No 3. As regards jurisprudence, see ECtHR [GC], Ahmed v Austria, App No 25964/94 [1996] ECHR 63 (17 December 1996); and Chahal v UK, App No 22414/93 [1996] ECHR 54 (15 November 1996). 99 E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion for UNHCR’s Global Consultations’ in E Feller, V Turk and F Nicholson (eds), Refugee ­ ­Protection in International Law (Geneva, UNHCR, 2001) 147. Contra J Hathaway, The Rights of ­Refugees

Symposium—Mussi and Tan 103 From a comparative perspective, the level of risk of return to a place where refugees face a real risk of harm is different. In Libya, this risk amounts to near-certainty, while Indonesia, which is a party to the CAT and the ICCPR, rarely subjects irregular migrants to ill-treatment. While Indonesia tolerates the presence of irregular migrants, at least in some cases, living conditions for irregular migrants may themselves violate human rights law. Detention facilities are often overcrowded, with inadequate sleeping facilities and poor sanitation.100 Further, irregular migrants (including children) are subjected to physical assaults whilst held in Indonesian detention centres, and in 2012 an Afghan migrant was beaten to death in detention.101 While Indonesia does not engage in deliberate refoulement, several examples suggest that it may occasionally have returned people to persecution or torture. This raises the possibility of Australia having committed chain refoulement, where migrants are returned to Indonesia and later expelled. This principle applies in situations where removal of a refugee from one county to a third country which subsequently sends the refugee on to the place of feared persecution constitutes refoulement, for which both countries bear joint responsibility.102 Indonesia has from time to time deported irregular migrants caught attempting to leave the country by boat.103 Indonesia does not have any legal procedures in place to decide who is a refugee, instead delegating refugee status determination to the UNHCR.104 Quite often, however, asylum seekers experience difficulty in accessing the UNHCR, including delays all the way through the asylum process, and refugee status determination which falls short of minimum standards of procedural fairness. This gives rise to the risk of protection claims remaining unidentified or being wrongly rejected. The situation for irregular migrants in Libya is even more complicated by a legal framework and official rhetoric which do not recognise the existence of refugees on Libyan territory.105 In effect, refugees and asylum seekers are not distinguished from other migrants residing in the country, all of whom fall under the generalised category of ‘economic migrants’. Refugees are not accorded special treatment. No legislative amendments introducing the specific legal category ‘refugee’ into Libyan

under International Law (Cambridge, Cambridge University Press, 2005) 363–70 (see, in particular, at 365, where the author laments ‘the persistent overstatement of the reach of custom’). See also J Hathaway, ‘Leveraging Asylum’ (2010) 45 Texas International Law Journal 503. 100 

Nethery and Gordyn (n 65) 177–93. Amnesty International, ‘Indonesia: Asylum-Seeker Tortured to Death in Detention’, 3 March 2012, available at: https://www.amnesty.org/download/Documents/20000/asa210082012en.pdf. 102  J McAdam and F Chong, Refugees: Why Seeking Asylum is Legal and Australia’s Policies are Not (Sydney, UNSW Press, 2014) 128. 103  Amnesty International reported that a Yemeni national living in Indonesia was ‘tortured on arrival in Jordan after he had been expelled from Indonesia’ as part of a rendition arrangement in the US-led War on Terror: see Amnesty International, ‘Indonesia: Briefing to the UN Committee Against Torture’, 15 April 2008, available at: http://www.refworld.org/docid/4847a48412.html; A Muharam, ‘Respect the Principle of Non-refoulement’, Jakarta Globe (21 February 2012), available at: http://jakartaglobe.id/ archive/respect-the-principle-of-non-refoulement. 104  Agreement between the Government of the Republic of Indonesia and the United Nations High Commissioner for Refugees Regarding the Establishment of the Office of the UNHCR Representative for Indonesia, 15 June 1979, available at: http://treaty.kemlu.go.id/uploads-pub/574_OI-1979-0022.pdf. 105  S Hamood, ‘EU–Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?’ (2008) 21 Journal of Refugee Studies 25. 101 

104  The Irish Yearbook of International Law 2015 law have been adopted for the purpose of protection of third-country nationals. In August 2005, Libya signed an agreement to cooperate on migration management with the IOM. By April 2006, the IOM announced that it was about to open an office in Tripoli.106 The IOM put together a one-year plan of action for Libya under the Programme for the Enhancement of Transit and Irregular Migration Management (TRIM). Four main activities were envisaged: the enhancement of three reception centres, including the provision of improved health services to migrants; assisted voluntary programmes for irregular migrants, including social and economic reintegration assistance for returnees; information campaigns in countries of origin and transit, providing information on the dangers of irregular migration; and the initiation of dialogue between selected countries of origin, transit and destination.107 While these activities may go some way towards addressing irregular migration, the crucial element of refugee protection is missing. There remains a danger that returns may result in refoulement. Thus, while irregular migrants in Libya and Indonesia are in the same legal situation, refugees returned to Libya face a far greater risk of chain refoulement in practice. As the above discussion suggests that violations of international law have occurred, it is now necessary to consider whether the law of state responsibility can apply in situations where multiple states contribute to human rights violations. B.  Shared Responsibility The cooperation of two states in migration control policies raises questions of shared responsibility for violations of obligations under human rights and refugee law in the course of that cooperation. Notions of shared responsibility are not new to international refugee law. Other authors have pointed out that the principle of non-refoulement, discussed above, implicitly concerns holding one state responsible for the future wrongful conduct of another state.108 The law of state responsibility involves secondary rules for establishing the legal responsibility of states and may be invoked when a state (or states) violates a primary norm, such as, in this context, a breach of the prohibition against refoulement or the prohibition against torture of other ill-treatment under treaty or customary law.109 The authoritative expression of the customary law of state responsibility is

106 IOM, ‘Libya—IOM Opens Office in Tripoli’, 24 April 2006, available at: https://www.iom.int/ news/iom-opens-office-tripoli. 107 ibid. 108  H Aust, Complicity and the Law of State Responsibility (Cambridge, Cambridge University Press, 2011) 397; S Shepson, ‘Jurisdiction in Complicity Cases: Rendition and Refoulement in Domestic and International Courts’ (2014) 53 Columbia Journal of Transnational Law 701, 712; M den Heijer, ‘The Practice of Shared Responsibility in Relation to Refoulement’, Amsterdam Law School Research Paper No 2016-22, available at: https://ssrn.com/abstract=2767571. 109  As discussed above, relevant treaty provisions here include art 33(1) of the Refugee Convention, art 3 CAT and art 7 ICCPR. See J Combacau and D Alland, ‘“Primary” and “Secondary” Rules in the Law of State Responsibility Categorizing International Obligations’ (1985) 16 Netherlands Yearbook of International Law 81.

Symposium—Mussi and Tan 105 the 2001 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which largely reflect customary international law on state responsibility.110 We briefly canvass three avenues to establish shared responsibility in the context of bilateral cooperation on migration control. First, two states may be held independently responsible for separate acts resulting in the same harm under the ARSIWA, where each state is separately responsible for its wrongful act. In such cases, responsibility is shared only in the sense that each state is independently responsible for harm to the same person or group of persons.111 Article 1 ARSIWA provides: Every internationally wrongful act of a State entails the international responsibility of that State.

Where there is deemed to be an internationally wrongful act, there are two further elements in establishing independent responsibility under the rules laid down in the ARSIWA. The first element is attribution: the act must be attributable to the state. The second element is that the act must be internationally wrongful—that is, a ‘breach of an international obligation’ in force for the state at the time.112 In the United States Diplomatic and Consular Staff in Tehran case, the International Court of Justice found that Iran’s responsibility hinged on obligations ‘under treaties in force or under any other rules of international law that may be applicable’.113 In the present case, there is no doubt that refoulement amounts to an internationally wrongful act for the purposes of establishing state responsibility. In the current context, Libya and Indonesia may be held responsible for wrongful acts on their territories on the basis of territorial jurisdiction. Simultaneously, interventionist forms of cooperation carried out on Libyan or Indonesian territory may give rise to extraterritorial jurisdiction on the part of Italy or Australia. The Human Rights Committee, the Committee against Torture and the ECtHR have all developed jurisprudence on extraterritorial jurisdiction under their respective treaties.114

110  International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its 53rd Session, UN Doc A/56/10 (2001a). It is beyond the scope of this contribution to put forward a comprehensive account of shared responsibility in this context; instead, we provide a brief account of the relevant rules of state responsibility that future research could address. 111 A Nollkaemper, ‘Issues of Shared Responsibility before the International Court of Justice’ (2011) Amsterdam Law School Research Paper 5–6, available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=1805696. 112  ARSIWA, art 1. 113  United States Diplomatic and Consular Staff in Tehran, United States v Iran, Judgment, ICJ GL No 64, [1980] ICJ Rep 3, ICGJ 124 (ICJ 1980), 24 May 1980, para 56. The formulation ‘breach of an international obligation’ in art 2(b) ARSIWA is reflected in art 36(2)(c) of the ICJ Statute. 114  In relation to the ICCPR, see Human Rights Committee, General Comment No 31, para 10. In relation to the CAT, see JHA v Spain CAT/C/41/D/323/2007, UN Committee against Torture (CAT), 21 November 2008, para 2.10. On the ECHR, see Loizidou v Turkey App No 15318/89, 18 December 1996; Al Skeini and Others v UK, App No 55721/07, 7 July 2011, para 137; Issa and Others v Turkey, App No 31821/96, [2004]; and Hirsi (n 19) para 71. See further M Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8 Human Rights Law Review 411; K Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Leiden, Martinus Nijhoff, 2012).

106  The Irish Yearbook of International Law 2015 Such a finding would, of course, depend on the facts of the case and the instrument to be applied. Second, states may be held jointly responsible for the same course of conduct on the basis of Article 47 ARSIWA, which provides: Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.115

Article 47 contains two elements. The first is a single course of conduct carried out by two or more states that is attributable to each state. The Commentaries to the ARSIWA cite examples meeting this requirement, where ‘two or more states might combine in carrying out together an internationally wrongful act in circumstances where they may be regarded as acting jointly in respect of the entire operation’ or where ‘two states act through common organ which carries out the conduct in question’. Second, Article 47 requires that the conduct be internationally wrongful for each of the states involved. This raises the question of whether the conduct must be a breach of the same primary obligation on the part of each state to reach the threshold of Article 47. This open question relates to the issue of differing treaty obligations vis-a-vis asylum seekers and refugees between, for example, Italy and Libya. Finally, shared responsibility may be applicable where the threshold of extraterritorial jurisdiction is not reached on the basis of derivative responsibility or complicity. Article 16 ARSIWA provides: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.

Article 16 does not require the attribution of the internationally wrongful act, as the assisting state does not itself carry out that act.116 Article 16 contains two elements: knowledge of the act with a view to its commission; and that the act be internationally wrongful for the assisting state. In relation to the knowledge requirement, the Commentaries to the ARSIWA provide that the aid or assistance be given ‘with a view to’ the commission of the wrongful act.117 Aust interprets this requirement as a level of knowledge approaching wrongful intent.118 Other authors have argued for a broader reading only requiring ‘constructive’ knowledge on the part of the assisting state.119 The knowledge element is crucial in the present case: while it is clear that the significant financial and operational influence exercised by Australia and Italy over the cooperation arrangements demonstrates a general understanding of Indonesia and Libya’s actions, proving

115 

ILC Commentaries to ARSIWA, 124, para 2. Giuffré (n 9) 725. 117  ILC Commentaries to ARSIWA, 66, para 5. 118  Aust (n 108) 235. 119  Gammeltoft-Hansen and Hathaway (n 89) 280. 116 

Symposium—Mussi and Tan 107 actual intent is problematic. While one may argue that Australian and Italian cooperation efforts are specifically designed to outsource responsibility to Indonesia and Libya, less burdened as they are by norms of human rights and refugee law, establishing such wrongful intent would likely be very difficult in practice. Second, the Article 16 requires that the act be ‘wrongful had it been committed by the assisting State itself’.120 On the face of it, this element requires that the assisting and acting state has identical primary obligations. In the current case, Australia and Indonesia, for example, do not share obligations under the Refugee Convention. However, the two states do share human rights law obligations, as parties to the CAT and the ICCPR. The Commentaries to the ARSIWA further require that assistance be ‘clearly linked’ to the international wrongful act. This imports a level of causation that also requires further elaboration. In the current cases, joint patrols between Italy and Libya in the latter’s territorial waters expose irregular migrants to the risk of detection, interception and subsequent removal. In the Hirsi Jamaa case, the ECtHR held that the risk of ill-treatment in Libya is ‘well-known and easy to verify on the basis of multiple sources’121 in dismissing Italy’s claims that Libya was a ‘safe host country’. Similarly, Australian funding of Indonesian detention infrastructure has taken place, notwithstanding known risks of human rights violations in such settings.122 Recourse to the doctrine of state responsibility through international courts and tribunals is relatively uncommon.123 Indeed, it may be difficult to invoke state responsibility in practical terms: the questions of who has standing to bring an international claim and the appropriate forum of such a claim are complex.124 It is unlikely that one state would bring a claim against another in this field, as the injury is on the part of individuals rather than states. However, the practical value of state responsibility extends beyond its capacity to enable concrete legal determination between states. Most important in the present context, rules of state responsibility help to determine the existence of a breach of obligation. The rules can therefore be used in any setting in which such a determination is useful. This extends their utility beyond international courts to include other fora concerned with claims of violations of international law—for example, intergovernmental commissions and human rights treaty bodies. Responsibility claims can also be ‘domesticated’ and brought before national courts.125

120 

ILC Commentaries to ARSIWA, 66, para 3. Hirsi (n 19) para 131. 122  Nethery, Rafferty-Brown and Taylor (n 64) 88. 123  Gallagher and David (n 55) 276. 124  See, eg, JHA v Spain CAT/C/41/D/323/2007, UN Committee against Torture (CAT), 21 November 2008. 125  See the judgment delivered on 16 July 2014 by the District Court of The Hague, which held the state of the Netherlands responsible regarding the death of about 300 men, who were killed following their eviction from a compound near Srebrenica where Dutch UNPROFOR (Dutchbat) peacekeepers were posted in 1995. 121 

108  The Irish Yearbook of International Law 2015 CONCLUSION

International cooperation on migration control is a growing area of interest for both states and scholars. We have focused on bilateral cooperation in this area, through an account of the practices of two Western states, Italy and Australia, in their bilateral relationships with nearby partner countries, Libya and Indonesia. We have further analysed the issues connected with the implementation of the judgment in the Hirsi Jamaa case, which represents the only strong condemnation of bilateral cooperation to counter irregular migration thus far.126 This empirical account revealed important commonalities and differences between the two models. The Australian and Italian-led arrangements share common features with regard to the power dynamics between the cooperating countries; the way in which cooperation is implemented; and the secrecy surrounding both cooperation models. We have focused on three distinctions: the stability of the developing state; the role of the UNHCR in Indonesia and Libya; and the level of human rights protection in the two regions. Finally, we have evaluated whether the bilateral cooperation to counter irregular migration complies with international refugee law, in particular the principle of nonrefoulement. While irregular migrants in Libya and Indonesia are in a similar legal situation, as neither Libya nor Indonesia is party to the Refugee Convention, we suggest that return to each country does not entail the same level of risk. Those in Libya face a far greater risk of refoulement, both direct and indirect. We finally suggest that the law of state responsibility may serve to establish international responsibility for wrongful acts in this context. While this area requires further research, the rules on state responsibility as codified in the ARSIWA are a useful tool in establishing shared international responsibility in cases where breaches of primary norms occur in the course of bilateral cooperation on migration control.

126  See also ND and NT v Spain, a case currently before the ECtHR, which relates to the summary expulsion of the applicants by Spanish authorities to Morocco. ND and NT v Spain, App Nos 8675/15 and 8697/15 (admissibility decision).

Left to Die at Sea State Responsibility for the May 2015 Thai, Indonesian and Malaysian Pushback Operations BRÍD NÍ GHRÁINNE*

INTRODUCTION

I

N MAY 2015, 8,000 migrants were abandoned by their smugglers in the Andaman Sea and the Bay of Bengal, left adrift in conditions of malnourishment, suffocation, dehydration, starvation and violence.1 Many of those on board were members of Myanmar’s minority Rohingya population, who lack citizenship, endure systematic discrimination, have limited access to education and healthcare, and cannot move around freely. Their plight was worsened by the crudely termed game of ‘human ping pong’, involving the Thai, Malaysian and Indonesian authorities repairing the vessels, providing the migrants with food and water, and escorting them beyond their territorial seas.2 The death toll is unknown; however, Amnesty International estimates that these actions resulted in hundreds or even thousands of deaths.3 The scope of protection under international law to which these people were entitled is unclear. First and foremost, none of the states specially affected by this crisis is party to the 1951 Refugee Convention, which contains the refugee definition, sets out the rights associated with refugee status and prohibits states from engaging in refoulement.4 The relative lack of Asian states’ participation in the Refugee Convention is particularly regretful in this context, as the Rohingya are clearly victims of persecution based on race and would thus most likely qualify as refugees if the

*  BCL (NUI), LLM (Leiden), DPhil (Oxford); Lecturer in Law, University of Sheffield. The author would like to thank Dr Russell Buchan, Stefan Salomon, Professor Graham Gee, Dr Richard Collins and an anonymous reviewer for their feedback on earlier drafts of this article. 1  ‘Why are So Many Rohingya Migrants Stranded at Sea?’ BBC News (18 May 2015), available at: www.bbc.co.uk/news/world-asia-32740637. 2  ‘“Ten Deaths” on Stranded Myanmar Migrant Boat’ BBC News (14 May 2015), available at: www. bbc.co.uk/news/world-asia-32733963. 3 ‘Amnesty International Says Rohingya Death Toll Higher than US Estimates’ Al Jazeera (21 October 2015), available at: http://america.aljazeera.com/articles/2015/10/21/amnesty-report-onrohingya-migrant-deaths.html. The UNHCR estimates that at least 70 people died as a result of the conditions on the boats and drowning and an additional 1,000 people who were thought to be at sea in May remain unaccounted for. UN High Commissioner for Refugees (UNHCR), South-East Asia: Mixed Maritime Movements (June 2015), available at: www.refworld.org/docid/55e6c1994.html. 4  1951 Convention Relating to the Status of Refugees 189 UNTS 13, art 31.

110  The Irish Yearbook of International Law 2015 Refugee Convention were applicable. Thus, Asia is sometimes described as having ‘rejected’ refugee law.5 In comparison, Europe is seen as having the most developed regional system of protection for those who choose to migrate by sea, as all states are party to the 1951 Refugee Convention and the European Court of Human Rights (ECtHR) judgment of Hirsi explicitly states that pushback operations at sea engage the 1950 European Convention on Human Rights (ECHR).6 Consequently, there is significant literature on refugee protection in Europe,7 whereas very little has been written in relation to Asia. Likewise, although the term ‘migrant crisis’ makes regular headlines,8 much of the media and political attention and indeed many of the other articles in this volume, have focused predominately on refugees in Europe. This article is the first legal analysis of the international responsibility applicable to the May 2015 Andaman Sea/Bay of Bengal boat ‘crisis’9 and it commences by setting out the factual circumstances surrounding the incident. The subsequent sections analyse the applicable law of the sea, refugee law and human rights law framework, and in doing so reject the commonly held perception that there is little or no legal protection available for refugees or migrants in Asia. This analysis clarifies the scope of important contested international legal issues, such as the definition of effective control, the application of human rights treaties at sea and the meaning of refoulement. The core argument put forward by this article is that there is a hierarchy of rights and obligations applicable to the situation in the Bay of Bengal/Andaman Sea,

5  SE Davies, ‘The Asian Rejection?: International Refugee Law in Asia’ (2006) 52 Australian Journal of Politics and History 562. 6  Hirsi Jamaa and Others v Italy, App No 27765/09, 23 February 2012; 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221; see further discussion in F Mussi and NF Tan, ‘Comparing Cooperation on Migration Control: Italy–Libya and Australia– Indonesia’ in this volume at 87–108. 7  See, for example, G Butler and M Ratcovich, ‘Operation Sophia in Unchartered Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea’ (2016) 85 Nordic Journal of International Law 235; S Klepp, ‘A Contested Asylum System: The European Union between Refugee Protection and Border Control in the Mediterranean Sea’ (2010) 12 European Journal of Migration and Law 1; Efthymios Papastavridis, ‘“Fortress Europe” and FRONTEX: Within or without International Law? (2010) 79 Nordic Journal of International Law 75; S Klepp, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’ (2011) 23 International Journal of Refugee Law 538; R Byrne, G Noll and J Vested-Hansen, ‘Understanding Refugee Law in an Enlarged European Union’ (2004) 15 European Journal of International Law 355; V Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’ (2011) 23 International Journal of Refugee Law 174; T Gammeltoft-Hansen, ‘The Refugee, the Sovereign and the Sea: European Union Interdiction Policies’ in R Adler-Nissen and T Gammeltoft-Hansen (eds), Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (Basingstoke, Palgrave Macmillan, 2008) 171; E Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (2006) 18 International Journal of Refugee Law 630; S Hamood, ‘EU–Libya Cooperation on Migration: A Raw Deal for Refugees and Migrants?’ (2008) 21 Journal of Refugee Studies 19. 8 Terming the situations in Europe and the Bay of Bengal/Andaman Sea as crises can be problematic for numerous reasons. For example, it draws attention away from the problem in the countries from which the refugees have fled, it strips decision makers of responsibility, and it presents certain decisions and injustices as unavoidable. See H Cabot, ‘Crisis and Continuity: “A Critical Look at the European Refugee Crisis”’, 10 November 2015, available at: http://allegralaboratory.net/ crisis-and-continuity-a-critical-look-at-the-european-refugee-crisis. 9  See the forthcoming paper by Nikolas Feith Tan, ‘The Rohingya and Refoulement in South East Asia’ (on file with the author).

Symposium—Ní Ghráinne 111 with human rights obligations at its apex. Any right exercised pursuant to the law of the sea that is not in conformity with human rights law is a breach of both the substantive human rights provision(s) and the law of the sea provision(s). This article argues that Thailand, Malaysia and Indonesia breached Articles 6 (right to life) and 7 (prohibition of cruel, inhuman and degrading treatment) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and thus, ipso facto, have no justification for their actions under the law of the sea or any other international legal framework. This article concludes by illustrating how these findings can be utilised by the survivors themselves, the victims’ families, non-governmental organisations (NGOs), states and the United Nations High Commissioner for Refugees (UNHCR) to pursue legal action and to put political pressure on the states involved to change their practices. From an international law perspective, the location of a vessel is crucial in order to determine the applicable rights and obligations of the state(s) and individuals involved. In the context of the May 2015 Andaman Sea/Bay of Bengal ‘crisis’, most news reports did not make it clear where a particular vessel was when it was intercepted,10 whether any physical interaction between the coastal state’s authorities and the vessel occurred, and where the vessel ended up post-interception. This is understandable as the location of interception is not a newsworthy fact and can often be quite difficult to determine precisely. However, this article will take a broad approach by examining the legal consequences of interception both within and outside the territorial sea, and the legal framework applicable to both physical and non-physical interaction with the vessel. The latter examination is of particular importance as the literature has not yet dealt with legal responsibility for actions falling short of physical interception of a vessel, eg, where a naval ship orders a migrant ship to turn back, but does not physically push it back. Thus, the arguments in this article not only contribute to the discussion surrounding migration on the Andaman Sea/Bay of Bengal, but also to all operations where a state operates extraterritorially, but does not have physical control over individuals.11 I.  THE ‘CRISIS’ IN THE BAY OF BENGAL AND THE ANDAMAN SEA

Migration by sea in Asia not a new phenomenon. The term ‘boat people’ was coined in the 1970s to identify the tens of thousands of people who fled Indochina in fishing boats after the Vietnam War. On many occasions, states prevented boats from

10 See S Tisdall, ‘South-East Asia Faces its Own Migrant Crisis as Stats Play Human Ping-Pong’ (14 May 2015), available at: www.theguardian.com/world/2015/may/14/migrant-crisis-south-east-asiarohingya-malaysia-thailand; C Archambault, ‘Estimated 8,000 Migrants are at Sea in Southeast Asia; Over 120,000 Rohingya Have Fled Burma in Past 3 Years’, 15 May 2015, available at: www.i24news.tv/ en/news/international/asia-pacific/71232-150515-nowhere-to-go-as-asian-boatpeople-are-turned-awayamid-growing-crisis-at-sea. 11 See, for example, the pushback policy implemented by the Australian government; Andrew and Renata Kaldor Centre for International Refugee Law, ‘Factsheet: “Turning Back the Boats”’, 26 February 2015, available at: www.kaldorcentre.unsw.edu.au/sites/default/files/Factsheet_Turning_back_boats.pdf.

112  The Irish Yearbook of International Law 2015 landing and towed them back to the high seas.12 The modern-day usage of the term ‘boat people’ more commonly refers to those leaving Myanmar and Bangladesh via the Bay of Bengal and the Andaman Sea towards Thailand, Malaysia and Indonesia. Some of those on board the vessels are migrants from Bangladesh who are not fleeing persecution. However, many of them are Rohingya, who have been historically discriminated against on the basis of their ethnicity. The term ‘Rohingya’ commonly refers to Muslims from northern Rakhine State in Myanmar. They are an ethnic minority descended from a merging of Arakanese Buddhists, Chittagonian Bengalis and Arabian sea-traders. Their dialect is Bengali in origin, yet distinct, with influences from Persian.13 Repeated cycles of historical displacement, beginning with the Burmese invasion of Arakan and the deportation of Arakanese in 1784, followed by returns and armed struggle in the British colonial era and further displacements after independence, formed a justification for the Myanmar government’s labelling of Rohingya as ‘illegal migrants’ and forcing them out again on several occasions.14 In 1982, the Burmese government passed the Citizenship Act, which rendered the Rohingya stateless.15 The Rohingya are the worst-treated group in Myanmar today. An estimated 139,000 people—mostly Rohingya—were displaced in Rakhine State after violent clashes erupted between Rakhine Buddhists, Rohingya and other Muslims in 2012.16 In its most recent report on Myanmar, Human Rights Watch describes the ‘systematic repression’ of the Rohingya, estimating that one million people along the border with Bangladesh continue to face restrictions on movement, employment and religious freedom.17 In October 2014, the Myanmar government announced a new Rakhine State Action Plan, which, if implemented, would further entrench the discrimination and segregation of the Rohingya population.18 The announcement of the plan appeared to trigger an increase in the number of people attempting to cross the Andaman Sea and the Bay of Bengal by boat, hoping to reach Indonesia, Malaysia and Thailand. Migration by sea carries with it a particularly high risk of death through drowning, malnourishment, suffocation, dehydration, unsanitary conditions, starvation and violence.19 In the Bay of Bengal and the Andaman Sea, reports suggest that high numbers of women are raped, children are separated from their families and abused,

12  GS Goodwin-Gill and J McAdam, The Refugee in International Law, 3rd edn (Oxford, Oxford University Press, 2011) 270. 13  DS Mathieson, ‘Plight of the Damned: Burma’s Rohingya’ (2009) 4 Global Asia 86, 88. 14  S Cheung, ‘Migration Control and the Solutions Impasse in South and Southeast Asia: Implications from the Rohingya Experience’ (2011) 25 Journal of Refugee Studies 1, 51. 15  Mathieson (n 13) 88. 16  Amnesty International Report 2014/2015, ‘Republic of the Union of Myanmar’, 24 February 2015, available at: https://www.amnesty.org/en/documents/asa16/1065/2015/en. 17 Human Rights Watch, ‘World Report 2015: Burma’, available at: https://www.hrw.org/ world-report/2015/country-chapters/burma. 18  Amnesty International Report 2014/2015 (n 16). 19  See A Campàs Velasco, ‘The International Convention on Maritime Search and Rescue: Legal Mechanisms for Responsibility Sharing and Cooperation in the Context of Sea Migration?’ in this volume at 57–86; M Pugh, ‘Drowning Not Waving: Boat People and Humanitarianism at Sea’ (2004) 17 Journal of Refugee Studies 50, 56. Human Rights Watch (n 17).

Symposium—Ní Ghráinne 113 and men are beaten and thrown overboard.20 The situation of those on board was summarised by a New York Times article quoting Razli Puteh, a fisherman who had rescued 430 desperate migrants off the Indonesian coast: ‘I broke down in tears as I watched them screaming, waving their hands and clothes. I could not let them die, because they are also human beings. Just like me.’21 The crisis reached its peak shortly after 1 May 2015, following a Thai government crackdown on smuggling networks, which prevented smugglers from disembarking the refugees and migrants still at sea.22 On or around 9 May, the captains decided to cut their losses by moving passengers into fewer boats and fleeing in the empty boats they salvaged. Over 8,000 people were left stranded at sea on at least eight boats.23 The abandoned passengers travelled towards the coasts of Indonesia, Malaysia and Thailand, but their situation was worsened by the Thai, Malaysian and Indonesian authorities repairing the vessels, providing food and water, and escorting them beyond their territorial seas.24 One report described a fishing boat of about 350 people being refused entry into Thailand after the crew abandoned them and disabled the engine. They were stranded without food and water, resulting in 10 deaths.25 Indonesian authorities have admitted to pushing back one boat on 11 May and directing it to Malaysia after providing food and water to those on board.26 Malaysian Deputy Home Affairs Minister Wan Junaidi Tuanku Jaafar stated that the government would turn back boats and deport those who land ashore.27 The Thai government adopted a policy of pushing away boats from Thai shores after providing them with fuel, food and water.28 A series of regional meetings was convened to address states’ concerns over this issue, resulting in common outcomes that included prioritising saving lives, combating people smuggling and trafficking, and confronting the root causes of such movements.29 Most notably, Malaysia and Indonesia agreed to offer temporary shelter to 7,000 stranded migrants, but they asked for international assistance to resettle them after a year. Thailand also said it would no longer push back the stranded boats.30 Of the 8,000 stranded at sea in mid-May 2015, 4,500 were known to have returned

20 United Nations Human Rights, ‘Joint Statement by UNHCR, OHCHR, IOM and SRSG for Migration and Development’, 19 May 2015, available at: www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=15976&LangID=E#sthash.TG48h6n4.dpuf. 21  L Cook, ‘The Boat People Crises in Europe and Asia—A Comparison’, New York Times (20 May 2015), available at: www.nytimes.com/aponline/2015/05/20/world/europe/ap-eu-europe-asia-migrants. html?_r=0. 22  Human Rights Watch, ‘Southeast Asia: End Rohingya Pushbacks’, 14 May 2015, available at: www. hrw.org/news/2015/05/14/southeast-asia-end-rohingya-boat-pushbacks. 23  BBC News (n 1). 24  BBC News (n 2). 25 ibid. 26  Human Rights Watch (n 22). 27 ibid. 28 ibid. 29 UNHCR Regional Office for South-East Asia, ‘Mixed Maritime Movements in South-East Asia’ (2015), available at: https://unhcr.atavist.com/mmm2015. 30  ‘Missing Migrant Boat Found as Countries Offer Shelter’ BBC News (20 May 2015), available at: www.bbc.co.uk/news/world-asia-32806972.

114  The Irish Yearbook of International Law 2015 to shore.31 As mentioned above, Amnesty International believes that hundreds or thousands have died as a result of these actions. The number of Rohingya refugees migrating by sea seems to have fallen since May 2015. This decrease can be attributed to a number of factors, including the abandonment of thousands of refugees and migrants at sea in May 2015, the discovery of mass graves along the Thailand–Malaysia land border, with the remains of over 200 presumed earlier arrivals, government crackdowns on smuggling networks and scrutiny of traditional departure and arrival points.32 However, the mistreatment of the Rohingya in Myanmar has continued.33 It is thus likely that this decrease in migration will be merely temporary and that smugglers will soon find new ways to evade the authorities and transport those desperate to escape the persecution of their homelands. We have not seen the last of ‘boat people’ in the Bay of Bengal and the Andaman Sea. II.  LAW OF THE SEA

The Law of the Sea is the clearest example of binding international law applicable to the states under discussion and therefore shall be considered first.34 A.  Enforcement Jurisdiction All of the states engaged in the Asian boat ‘crisis’—that is, Thailand, Malaysia, Indonesia and Myanmar—are parties to the United Nations Convention on the Law of the Sea (UNCLOS). As mentioned above, the reports concerning the Bay of Bengal/Andaman Sea did not make it clear where the vessels were located at the time of interception. However, this information is of the utmost importance when identifying rights and obligations pursuant to UNCLOS, because the rights and obligations applicable are different in each zone or part of the seas (namely, the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone (EEZ) and the

31  ‘The majority of Bangladeshi migrants rescued from the boats opted to be returned home, but more than 370 Rohingya refugees who came off the boats in Malaysia have been held ever since in the Belantik detention centre in Kedah in the northwest of the country. UNHCR is trying to convince Malaysian authorities to release the refugees and allow them to live in one of the country’s sizeable Rohingya communities, but so far to no avail. In Indonesia, most of the Rohingya refugees who had been rescued last May off the coast of Aceh Province in the north have since disappeared from the temporary camps where they were being hosted. They are thought to have put their lives in the hands of smugglers once again in an effort to reach Malaysia and its better prospects for working in the informal economy. It is not known how many successfully made the journey, but some have approached UNHCR’s Kuala Lumpur office and applied for asylum.’ J Vit, ‘Where are the Rohingya Boat survivors Now?’,15 April 2016, available at: https://www.irinnews.org/news/2016/04/15/where-are-rohingya-boat-survivors-now. 32  A Needham, ‘UNHCR Calls for Safer Alternatives to Deadly Bay of Bengal Voyages’, 23 February 2016, available at: www.unhcr.org/56cc51c76.html. 33  ‘ECHO Factsheet: The Rohingya Crisis—May 2016’, 29 May 2016, available at: http://reliefweb. int/report/myanmar/echo-factsheet-rohingya-crisis-may-2016. 34  It is less clear if the threshold for effective control has been met to trigger the application of human rights law and, as mentioned above, most Asian states are not a party to the 1951 Refugee Convention.

Symposium—Ní Ghráinne 115 High Seas). Thus, the rights and obligations regarding interception in each respective zone will be examined in turn in the following paragraphs. It should be noted that where there is a breach pursuant to the provisions below, such a breach is ‘technical’ only—that is, the violation is towards the flag state, if there is one, rather than the persons on the boat.35 i.  The Territorial Sea The territorial sea is defined in Article 3 UNCLOS as the area measuring up to 12 nautical miles from a state’s baseline. The ability of a coastal state to prescribe and enforce laws and regulations in its territorial sea is limited only by the obligation to respect the right of other states’ ships to innocent passage. Article 19 UNCLOS prescribes that passage is ‘innocent’ ‘so long as it is not prejudicial to the peace, good order or security of the coastal State’. Pallis and Jacobsen argue that vessels carrying migrants can hardly be described as being ‘prejudicial to peace, good order or security’ of a coastal state.36 On the other hand, paragraph 2(g) of Article 19 provides that passage will not be innocent if it engages in the loading or unloading of any person contrary to the immigration laws and regulations of the coastal state and, it is argued here, that a vessel carrying refugees who intend to request the protection of the coastal state removes that vessel from the category of innocent passage. In another geographical context, the status of the passengers as refugees could entitle them to claim immunity from penalties under Article 31 of the 1951 Refugee Convention. However, as mentioned above, Thailand, Malaysia and Indonesia are not parties to the 1951 Refugee Convention. Thus, the persons on board the vessels in the Bay of Bengal/ Andaman Sea would probably be characterised as illegal immigrants and the ship’s passage would not be ‘innocent’ for the purposes of Article 19. The argument that the unloading of migrants would be a ‘disturbance’37 and would not preclude a ship’s passage as being characterised as ‘innocent’ is not applicable here. This article argues that the characterisation of a ship’s passage as innocent ‘so long as it is not prejudicial to the peace, good order or security of the coastal State’ applies to the inclusionary criteria, or the general rule, for determining whether passage is ‘innocent’. Even if the unloading of migrants does not deprive the vessel’s characterisation as being ‘innocent’, paragraph 2(g) is worded as an exception to this general rule and would thus disqualify a vessel from being engaged in ‘innocent passage’.38 It is generally agreed that international law allows states to take all reasonable measures in the territorial sea to prevent the entry into port of a vessel carrying illegal immigrants, including the right to escort such a vessel outside its territorial 35 JL Jacobson, ‘At-Sea Interception of Alien Migrants: International Law Issues’ (1991–92) 28 Willamette Law Review 811, 813 and 816. 36  M Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts between Legal Regimes’ (2002) 14 International Journal of Refugee Law 329; Jacobson (n 35) 813. 37  Jacobson (n 35) 813; Goodwin-Gill and McAdam (n 12) 273. 38 However, it should be noted that there is not sufficient state practice to ascertain conclusively whether the list in art 19(2) should be considered exhaustive. See AT Gallagher and F David, The International Law of Migrant Smuggling (Cambridge, Cambridge University Press, 2014) 236.

116  The Irish Yearbook of International Law 2015 sea, ie, to the EEZ/High Seas.39 Thus, under UNCLOS, Thailand, Malaysia and Indonesia were permitted to engage in pushback actions against the migrant ships in their territorial seas that were seeking to disembark on their territory. However, subsequent sections will illustrate that this right is not unlimited. ii.  The Contiguous Zone A state does not have to wait until a vessel carrying irregular migrants has reached its territorial sea. There is a strong interrelationship between policing the territorial sea and the contiguous zone (the area of seas between 12 and 24 miles from the baselines employed to delimit the boundaries of the territorial sea),40 as Article 33 UNCLOS provides a power to the coastal state to prevent an anticipated offence or to punish activities committed within its territory or territorial seas in violation of its customs, fiscal, immigration or sanitary laws and regulations. In the context of the Bay of Bengal/Andaman Sea boat migration, it is most likely that disembarkation in Malaysia, Indonesia and Thailand would entail a breach of domestic immigration law, and thus pushback operations in respect of these vessels could possibly be justified under Article 33 UNCLOS. A distinction is made between a vessel passing through the contiguous zone and a vessel in the contiguous zone that is seeking to enter the territorial sea of the coastal state. In respect of the former, no enforcement jurisdiction is permissible.41 Where a migrant smuggling vessel is in the contiguous zone and is seeking to enter the territorial sea of the coastal state, the coastal state ‘may exercise the control necessary’ to prevent an anticipated violation of its immigration laws. There is academic debate about what actions may be taken pursuant to this anticipatory power of prevention. Goodwin-Gill argues that if there were reasonable and probable grounds to believe that a vessel’s intended purpose is to enter the territorial sea in breach of immigration law, then the coastal state may have the right to stop and board the vessel and take actions such as inspection and redirection.42 Others argue that it may not be sufficient to justify anything other than a very limited interdiction in the contiguous zone, such as inspections and warnings, and that it would not justify boarding or assuming control over the vessel.43 However Article 33 allows states to ‘exercise the control necessary’ (emphasis added) to punish or prevent violations of their fiscal, immigration or sanitary laws and regulations, and thus this article argues that the protection of a minor interest does not justify any kind of intervention. 39 

Goodwin-Gill and McAdam (n 12) 275; Gallagher and David (n 38) 413. Geneva Convention on the Territorial Sea and the Contiguous Zone 516 UNTS 205, art 24, now extended by art 33 UNCLOS. 41  M/V Saiga Case (St Vincent and the Grenadines v Guinea), Provisional Measures (1998), Merits (1999), ITLOS, (1998) 37 ILM (1999) 38 ILM [15]. 42  However, he also notes that such actions might be objected to by the flag state. See GS GoodwinGill, The Refugee in International Law, 2nd edn (Oxford, Oxford University Press, 1996) 165–66. 43 I Shearer, ‘Problems of Jurisdiction and Law Enforcement against Delinquent Vessels’ (1986) 35 International and Comparative Law Quarterly 320, 330. See also Y Tanaka, The International Law of the Sea (Cambridge, Cambridge University Press, 2012) 123; J Chia, J McAdam and K Purcell, ‘Asylum in Australia: “Operation Sovereign Borders” and International Law’ (2014) 32 Australian Yearbook of International Law 33, 55. 40  1958

Symposium—Ní Ghráinne 117 Consequently, once the coastal state exercises jurisdictional powers, it must consider whether the actions put the persons at risk of persecution, torture or other inhuman treatment. The need for proportionality emerges in relation to the operations accomplished by state authorities on the high seas for combatting unlawful migration.44 As will be discussed below, the actions of the Thai, Malaysian and Indonesian authorities resulted in thousands of deaths at sea and consequently their actions were most likely disproportionate and thus in breach of Article 33 UNCLOS. iii.  The High Seas45 The High Seas are beyond the jurisdiction or control of any one state. Generally speaking, vessels on the High Seas may be boarded only in very limited circumstances, one of which is where the vessel has no nationality.46 This ground is highly relevant to this article, as the vast majority of migrant smuggling vessels are unregistered or improperly registered.47 Where a vessel is stateless, UNCLOS grants official vessels an express right of visit (a right to board and inspect), but it does not specify what further actions, if any, may be taken by an intervening state.48 There are various views on this point. The first is that stateless vessels do not enjoy the protection of any state and therefore may be subject to universal enforcement action.49 The second is that states would have the right to board the vessel and perform verification du pavillion, but there is no automatic right to tow a vessel to another part of the sea, and states are nonetheless bound by the customary prohibition of refoulement.50 The third view, which is widely endorsed in the literature, is that enforcement action such as interdiction is not permitted without some further jurisdictional link.51 Given that people smuggling is commonly perceived as a maritime security threat,52 Thailand, Malaysia and Indonesia could rely on the protective principle of jurisdiction. However, even if interception is illegal, there is a logical problem with the argument that states are prevented from interdicting stateless

44 The M/V Saiga (No 2) Case (Saint Vincent and the Grenadines v Guinea) (1999) ITLOS Case No 2, ICGJ 336 (ITLOS 1999) [155]. 45  For the sake of completeness, it is appropriate to mention the legal regime applicable in the EEZ. In the EEZ, with certain exceptions not applicable to ships carrying migrants, ships are entitled to High Seas freedoms, as set out in the next few paragraphs. 46  1958 High Seas Convention, art 22. 47  Vessels that are unregistered will not necessarily be stateless. Article 94 UNCLOS recognises that some vessels may be ‘excluded from generally accepted international regulations on account of their small size’. 48  UNCLOS, art 110(1)(d). Article 110(1)(d) gives this right to a ‘warship’, which is defined in art 29 as ‘a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline’. 49  E Papastravridis, ‘The Right of Visit on the High Seas in a Theoretical Perspective: Mare Liberum versus Mare Clausum Revisited’ (2011) 24 Leiden Journal of International Law 45, 65. 50  Pallis (n 36) 351. 51  R Churchill and V Lowe, The Law of the Sea, 3rd edn (Huntingdon, NY, Juris Publishing, 1999) 214. 52  Chia et al (n 43) 56.

118  The Irish Yearbook of International Law 2015 vessels on the high seas, as the lack of nationality means that no state is likely to protest an assertion of jurisdiction. The 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the UN Convention against Transnational Organised Crime (Migrant Smuggling Protocol) is relevant in this context.53 The central aim of the Protocol, to which Indonesia is bound, is for States Parties to cooperate in preventing and suppressing migrant smuggling ‘in accordance with the international law of the sea’.54 Pursuant to Article 8(2), the relevant state party may request authorisation from the flag state to take ‘appropriate measures’ with regard to a vessel that it reasonably suspects is engaging in migrant smuggling. No additional measures can be taken without the express authorisation of the flag state, except on the basis of relevant agreements or ‘to relieve imminent danger to the lives of persons’. Where a vessel is stateless, Article 8(7) allows the vessel to be boarded and searched where there are reasonable grounds to suspect that the vessel is engaged in the smuggling of migrants by sea. If evidence confirming that suspicion is found, the intercepting state ‘shall take appropriate measures in accordance with relevant domestic and international law’. The ‘appropriate measures’ referred to in Article 8(2) and 8(7) are not defined by the Migrant Smuggling Protocol. However, Article 9(a) provides that where a State Party takes measures against a vessel, it shall ‘ensure the safety and humane treatment of the persons on board’. This is reiterated in Article 16, which obliges states to protect ‘in particular the right to life and the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment’. Finally, pursuant to Article 19, nothing in the Protocol affects the rights and obligations of states and individuals under international law. To apply the above discussion (of the rights and obligations applicable in the three respective maritime zones) to the issue at hand, it could be argued by the coastal states that it is permissible to push back vessels carrying migrants present in the territorial seas as they are not engaged in ‘innocent passage’, whether or not the vessel in question is stateless.55 However, even if we accept this argument, the actions of the Thai, Malaysian and Indonesian authorities are still not in compliance with international law. This is because in all circumstances and regardless of location, any use of force must be: (i) a measure of last resort; (ii) proportional to the objective in sight; and (iii) using the minimum force reasonably necessary.56 As force was the first response to many of these incoming migrant vessels, it is highly unlikely that the use of force was ‘avoided as far as possible’, ie, that all other options were considered

53  Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000. 54  ibid art 7. 55  UNCLOS, art 19. 56 The MV Saiga case (n 41 [155]) held that force should be a last resort: ‘[International law] requires that the use of force must be avoided as far as possible and, where force is inevitable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea as they do in other areas.’

Symposium—Ní Ghráinne 119 and/or exhausted.57 The loss of life resulting from the pushback operation probably entails that the means used (ie, pushback operations involving life-threatening measures) were not proportionate to the objective (immigration control) and it is unclear from the facts whether the minimum force necessary was used. In addition, as will be discussed below, human rights law is applicable in all situations of interception at sea which require, inter alia, account to be taken of the rights to life, liberty and security of the person, and to freedom from torture, cruel, inhuman and degrading treatment or punishment. With respect to many such rights, no derogation is permitted, even in times of public emergency threatening the life of the nation.58 Thus, the degree of force which might be used would need to be determined in light of all the circumstances, taking into account the safety of passengers, the vulnerability of those on board and the likely consequences of interdiction.59 B.  The Rights of Ships in Distress It is generally recognised that any foreign vessel in distress has a right of entry to any foreign port under customary international law.60 The 1979 International Convention on Maritime Search and Rescue (SAR) considers that a vessel or the persons on board is in a phase of distress: (i)

when positive information is received that a vessel or a person is in grave and imminent danger and in need of immediate assistance; or (ii) when, following the alert phase, further unsuccessful attempts to establish contact with the vessel and more widespread unsuccessful inquiries point to the probability that the vessel is in distress; or (iii) when information is received which indicates that the operating efficiency of a vessel has been impaired to the extent that a distress situation is likely.61 This article argues that the determination of a situation of distress involves a balancing exercise between the threshold of potential harm and the element of choice involved. As outlined above, the vessels involved were unseaworthy, with unreliable

57  For example, in its concluding observations on Israel, the Human Rights Committee considered the targeted killing of suspected terrorists to be arbitrary since other measures to arrest the suspected person had not been exhausted (UN Human Rights Committee, ‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Israel’, UN Doc CCPR/CO/78/ISR, 21 August 2003) [15]. 58 ICCPR, art 4(2). These rights have crystallised as customary international law. See UN Human Rights Committee, ‘General Comment No. 24: General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’, CCPR/C/21/Rev.1/Add.6 (1994) [8]. 59  Goodwin-Gill and McAdam (n 12) 276. 60 JM Van Dyke, ‘Safe Harbour’, Max Planck Encyclopaedia of Public International Law (2010); Tanaka (n 43) 83; JE Noyes, ‘Ships in Distress’ Max Planck Encyclopaedia of Public International Law (2007). When, however, a ship in distress might affect the lives of those living in coastal communities, or their economic livelihood, coastal states will need to make a political decision as to whether to allow the ship to find shelter in its coastal waters. 61 1979 International Convention on Maritime Search and Rescue 1405 UNTS 97, art 5.2.1.3. Indonesia is a party to this Convention, but Malaysia and Thailand are not. Therefore, it will not be discussed in detail in this article.

120  The Irish Yearbook of International Law 2015 engines and steering, lacking navigation aids or safety equipment. On or around 9 May, the refugees were concentrated into fewer boats, following the captains’ decision to cut their losses and set the vessels adrift. These circumstances would give an arguable right of entry into the nearest coastal states’ ports to those vessels, provided no other options were available to them. This approach is consistent with the exceptional nature of the right of entry.62 However, as the news reports indicate, when the vessels attempted to approach other states’ territorial waters, they were subjected to pushback operations once again. Thus, there was no other option available to these vessels than to attempt to disembark at the nearest coastal state and they were entitled to invoke the customary right of a ship in distress to enter a foreign port. By denying their entry, Thailand, Malaysia and Indonesia breached this provision. C.  Obligations to Render Assistance to Persons Found in Distress As discussed at some length by Campàs Velasco elsewhere in this volume, the obligation to render assistance to any person or vessel found in distress at sea is based on both treaty and customary law, and applies at all times and in all maritime zones to all personal and vessels, regardless of nationality or legal status.63 Article 98 UNCLOS provides an obligation ‘to render assistance to any person found at sea in danger of being lost’ and ‘to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him’. To apply this legal framework to the Bay of Bengal/Andaman Sea, the states involved were under a duty to assist the refugees. It is problematic that international law does not stipulate the nature and scope of assistance to be provided; however, it seems clear that the duty is to render assistance, not necessarily to rescue, except in those situations where rescue is both necessary and feasible.64 It was reported that in some instances, refugees were given rice and water and pushed back out to sea.65 It is unlikely that this would satisfy the obligation to render assistance, given the object and purpose of the provision, which is to prevent the loss of life at sea. Thus, assistance that would only marginally prolong life would not be interpreting the obligation in good faith. In addition, it would fall foul of the principle of effectiveness, which provides that the obligation in a treaty is to produce an outcome which advances the aim of the treaty.66 D.  Obligations in Relation to the Disembarkation of Persons Rescued at Sea In the words of Gallagher and David, ‘the obligation to rescue persons in distress at sea is seriously undermined by the lack of an equally rigorous obligation with respect

62 

R Barnes, ‘Refugee Law at Sea’ (2004) 53 International and Comparative Law Quarterly 47, 60. Campàs Velasco (n 19) at 59–64; see also Goodwin-Gill and McAdam (n 12) 278. 64  Gallagher and David (n 38) 449. 65  Human Rights Watch (n 22). 66  RK Gardiner, Treaty Interpretation (Oxford, Oxford University Press, 2008) 190. 63 

Symposium—Ní Ghráinne 121 to the disembarkation of persons rescued at sea’.67 This was probably best illustrated by the MV Tampa incident, which involved a Norwegian ship participating in an Australian-coordinated SAR operation. The MV Tampa rescued 433 asylum seekers from a sinking Indonesian-flagged vessel 75 nautical miles off the Australian coast. When the MV Tampa began heading towards Christmas Island in Australian territory, the Australian authorities ordered the captain to change course towards Indonesia, warning that if the ship entered Australia’s territorial sea to disembark the rescuees, the captain would be subject to prosecution under the Migration Act 1958 for people smuggling. The refugees were eventually loaded onto an Australian Navy vessel and transported to Nauru for determination of their asylum claims.68 In the aftermath of the MV Tampa incident, the 1974 International Convention for the Safety of Life at Sea (hereinafter the ‘SOLAS Convention’) was amended in May 2004 to impose—for the first time—an obligation on states to ‘cooperate and coordinate’ to ensure that ships’ masters are allowed to disembark rescued persons to a place of safety, irrespective of the nationality or status of those rescued, and with minimal disruption to the ship’s planned itinerary (which implies that disembarkation should occur at the nearest coastal state).69 However, contracting states are certainly not expressly obliged to accept the disembarkation of rescued persons; their responsibility is limited to delivering such persons to a place of safety. Common practice, legal opinion and the UNHCR have interpreted ‘place of safety’ to mean the ‘next port of call’, which may not necessarily be the nearest or most convenient port of call.70 A ship’s master must exercise discretion because the nearest port of call may be unsuitable, the next scheduled port of call too far away to relieve distress, and there have to be allowances for particular circumstances, including the safety of the rescue ship, the severity and nature of the survivors’ distress, and the rescue ship’s ability to provide food, water and medical assistance.71 Although any policy that leaves rescued persons in unseaworthy boats or lifeboats on the high seas would be inconsistent with a state’s obligations to ensure that rescued persons are delivered to a place of safety,72 a refusal of disembarkation cannot be equated with a breach of the principle of non-refoulement, even though it may result in serious consequences for asylum seekers.73 It has been argued that human rights law could be engaged where, for example, persons are subjected to protracted confinement to a vessel under deteriorating conditions and that in certain circumstances, this could compel a state with primary responsibility to accept disembarkation.74 The position

67 

Gallagher and David (n 38) 452. For more information on Australia’s current pushback policies, see Mussi and Feith Tan (n 6). 69  ibid. Thailand, Malaysia, Indonesia and Myanmar are all party to the SOLAS Convention (1974 International Convention for the Safety of Life at Sea 1184 UNTS 278, ch V, reg 33). The SAR Convention was similarly amended at this time. For a detailed discussion of obligations under the SAR Convention, see Campàs Velasco (n 19) passim. 70  See EXCOM Conclusion No 14 (XXX) (1979) [C]; EXCOM Conclusion No 15 (XXX) (1979) [c]; EXCOM Conclusion No 23 (XXXII) 1981 [3]. 71 International Maritime Organization, Resolution MSC.167(78) Guidelines on the Treatment of Persons Rescued at Sea (hereinafter the ‘IMO Guidelines’), 20 May 2004. 72  Chia et al (n 43) 60. 73  Goodwin-Gill and McAdam (n 12) 278; Barnes (n 62) 64. 74  Gallagher and David (n 38) 456. 68 

122  The Irish Yearbook of International Law 2015 of this article is that such an argument could only be applicable in the territorial sea, as the vessel would be within the coastal state’s jurisdiction. As outlined in the section on human rights law below, where a vessel is outside of the territorial sea and not within the effective control of the coastal state (ie, the ship has not been intercepted), as a general rule, the coastal state cannot be held responsible for the human rights violations on board the vessel. III.  REFUGEE LAW

The lack of Asian states’ participation in the Refugee Convention is particularly regretful in this context, as the Rohingya are clearly victims of persecution based on race and would thus most likely qualify as refugees if the Refugee Convention were applicable. The reasons why Asia has been reluctant to embrace the Refugee Convention are many and include the Eurocentric character of the Convention,75 the ‘ASEAN way’, which encourages non-interference in domestic issues,76 the historical peculiarity of the region, the lack of control over borders, the adherence to bilateral solutions to regional problems, the ethnic ties that exist across borders and the lack of sufficient resources to implement a refugee protection framework.77 A further distinctive element of Asia’s relationship with international refugee law is that there have been no meaningful attempts to compensate for non-accession by introducing regional legally binding instruments.78 However, Article 33 of the Refugee Convention, the prohibition of nonrefoulement, is a customary norm79 and thus binds all states.80 The principle of non-refoulement prohibits the expulsion of a refugee ‘in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This provision also applies to asylum seekers81 and applies

75  SE Davies, ‘The Asian Rejection?: International Refugee Law in Asia’ (2006) 52 Australian Journal of Politics and History 562, 566–70. 76  C Abrar, ‘Legal Protection of Refugees in South Asia’ (2001) 10 Forced Migration Review 21. 77  See further BS Chimini, ‘The Law and Politics of Regional Solution of the Refugee Problem: The Case of South Asia’ (1998) RCSS Policy Studies 4. 78 Davies (n 75) 566–70. For a useful explanation of refugee protection in South-East Asia, see M Jones, ‘Moving beyond Protection Space: Developing a Law of Asylum in South-East Asia’ in S Kneebone, D Stevens and L Baldasser (eds), Refugee Protection and the Role of Law: Conflicting Identities (Abingdon, Routledge, 2014). 79 See, for example, A Duffy ‘Expulsion to Face Torture? Non-refoulement in International Law’ (2008) 20 International Journal of Refugee Law 373, 383; S Trevisanut, ‘The Principle of Non-refoulement at Sea and the Effectiveness of Asylum Protection’ (2008) 12 Max Planck United Nation Yearbook 206, 215; Chia et al (n 43) 41; E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’ in E Feller, V Türk and F Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge, Cambridge University Press, 2003) 87; Goodwin-Gill and McAdam (n 12) 345–54. For a different view, see JC Hathaway, ‘Leveraging Asylum’ (2010) 45 Texas International Law Journal 503. 80  There is some controversy as to whether the principle of non-refoulement is a customary norm in Asia. See, eg, Feith Tan (n 9). 81  UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1976 Protocol’, 26 January 2007 [6].

Symposium—Ní Ghráinne 123 extraterritorially.82 During the Indochina refugee crisis in the 1970s, Malaysia and Thailand did not deny that they were bound by non-refoulement, arguing instead that they could turn back the boats on the basis of the security exception in Article 33(2) of the 1951 Refugee Convention.83 It should be noted here that non-refoulement applies to refugees rather than migrants; thus, a vessel carrying migrants alone would not be protected by the provision. However, where a vessel has both migrants and putative refugees on board,84 non-refoulement would be applicable to the refugees on board the vessel and thus it would constrain the actions that can be taken vis-a-vis the vessel. Goodwin-Gill and McAdam correctly argue that the simple denial of entry to vessels to territorial waters cannot be equated with a breach of the principle of nonrefoulement, which requires that state actions have the effect or result of returning refugees to territories where their lives or freedoms would be in danger.85 The key terms here are ‘effect’ and ‘result’, meaning that it is the outcome of the ‘pushback’ activities that will determine whether refoulement has occurred. This is supported by the convention’s travaux preparatoires, which can be relied upon to confirm the meaning of a provision, pursuant to Article 32 of the Vienna Convention on the Law of Treaties (VCLT): [T]he obligation not to return a refugee to a country where he was persecuted did not imply an obligation to admit him to the country where he seeks refuge. The return of a refugeeship, for example, to the high seas could not be construed as a violation of this obligation.86

It is argued here that the actions of the authorities in the Bay of Bengal/Andaman Sea would not constitute refoulement. The places to which they were sent do not constitute the ‘frontiers of territories’, given the nexus that exists between state sovereignty and territory.87 The terms ‘territory’ or ‘territories’ are referred to in 22 articles in the Convention, and all of these references imply exclusive sovereignty over territory. For example, Articles 27 and 28 concern the state’s power to issue travel documents or identity papers, respectively, Article 31 concerns the state’s power to impose penalties and Article 14 refers to the state’s power to protect artistic rights and industrial property. Given that the EEZ and the High Seas are beyond the sovereignty of any one state,88 they cannot constitute the ‘frontiers of territories’ within the meaning of the 1951 Refugee Convention.89 This is distinguishable from the 82 

Pallis (n 36) 343. Trevisanut (n 79) 215, 216. 84 There were reports of vessels carrying Rohingya and Bangladeshi migrants that were not of Rohingya origin. See Tisdall (n 10). 85  Goodwin-Gill and McAdam (n 12) 277; P Hyndman, ‘Developing International Refugee Law in the Asian Pacific Region: Some Issues and Prognoses’ (1991) 1 Asian Yearbook of International Law 19, 31. 86  See UN Doc E/AC.32/L.32/Add.1 (10 February 1950). 87  Pallis (n 36) 343. Although the principle of non-refoulement binds states acting outside their territories, it is argued here that it does not apply where an individual is sent to a place outside of states’ territories. This is because: (i) the prohibition applies to states acting ‘in any manner whatsoever’; and (ii) the principle explicitly identifies where persons should not be sent (‘territories’), but does not place a territorial limitation on where the principle applies. 88  UNCLOS, art 89. 89  The EEZ cannot constitute ‘frontiers of territories’ for the purposes of the 1951 Refugee Convention. Pursuant to art 65 UNCLOS, the coastal state has limited rights in the EEZ mainly concerning the 83 

124  The Irish Yearbook of International Law 2015 actual physical return of passengers to their country of origin (ie, to the control of another state), which could constitute refoulement.90 However, this article argues that if a pushback operation would leave refugees with no option other than to return to their country of origin, or to a third state that would return them, this could constitute refoulement.91 In addition, if the refugees were returned not to the High Seas, but to another state’s territorial sea where their lives or freedoms were threatened on the grounds specified in Article 33, this could also constitute refoulement. This is because the sovereignty of a coastal state extends to its territorial sea.92 In this case, the individuals on board the vessels in the Bay of Bengal/Andaman Sea were pushed out to the EEZ/High Seas and thus refoulement did not occur. To conclude otherwise would be to apply the provision in an entirely different manner from that intended by its drafters. A brief discussion of the 1948 Universal Declaration of Human Rights (UDHR) is also relevant in this context.93 Article 14 UDHR provides for the right of an individual to seek asylum, which is essentially the right of an individual to leave his country of residence in pursuit of asylum. However, the individual has no ‘general’ right of asylum against the state. Scholars agree that this provision merely affords the individual a right to seek asylum without specifying whose duty it is to give effect to that right.94 This is supported by the drafting history of the UDHR, whereby the original draft provided that ‘everyone had a right to seek and be granted’ asylum.95 This would have vested individuals with the right of asylum vis-a-vis the state. By substituting the words ‘to enjoy’ for the words ‘to be granted’, the drafters indicated their desire not to oblige states to grant asylum for individuals. Thus, there cannot be a breach of the right to leave and seek asylum of these individuals, as the right is one which has not yet become customary in nature. IV.  HUMAN RIGHTS LAW

A. Jurisdiction Human rights can extend to persons outside the territory of the state, provided they are ‘within the jurisdiction’ of the state party.96 Where a vessel is in a state’s

exploitation of natural resources, but other states also have rights within the EEZ, such as the freedom of navigation and laying of submarine cables and pipelines, pursuant to art 58 UNCLOS. Thus, the EEZ is not subjected to the sovereignty of any one state and EEZ waters are treated as the High Seas for purposes outside of economic activities. 90 

Hirsi (n 6). Pallis (n 36) 349. 92  UNCLOS, art 2. 93  1948 Universal Declaration of Human Rights, UN Doc 217 A (III), 10 December 1948. 94  R Boed, ‘The State of the Right to Asylum in International Law’ (1994) 5 Duke Journal of International and Comparative Law 1, 9; Goodwin-Gill and McAdam (n 12) 358–65. 95  Boed (n 94) 9. 96 D McGoldrick, ‘The International Covenant on Civil and Political Rights’ in F Coomans and MT Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Cambridge, Intersentia, 2004) 55. 91 

Symposium—Ní Ghráinne 125 territorial sea, that vessel is within the state’s jurisdiction.97 Outside of the territorial sea, the intercepting state must have effective control of the vessel, and whether effective control is exercised is a question of fact.98 Previous jurisprudence has established that effective control is established from the moment the vessel is boarded.99 It is also clear that conduct such as towing the vessel, removing individuals on to new vessels,100 detaining persons on board or removing them to another state constitutes effective control and thus falls ‘within the jurisdiction’ of the acting state.101 Thus, coercive actions that threaten or result in loss of life or cruel, inhuman or degrading treatment, whether deliberate (such as the pushback of an unseaworthy vessel) or accidental, would appear to trigger a state’s international obligations, such as the ICCPR (discussed below). However, the news reports do not make clear the nature of the coastal states’ interaction with the vessels. Would there be a breach of international human rights law where persons are ‘left to die’ on vessels? Pallis argues that Article 7 ICCPR would be violated through the failure of a state that is in a position to do so to come to the aid of migrants who are at risk of physical harm, while Papstravidis makes a similar argument when a distress call is received by the coastal state.102 However, this argument is controversial because the respective authorities would have no physical control of the vessel. On this basis, Gallagher and David argue that such a failure to act would probably not satisfy the test for effective control.103 This author argues that where there is no interaction with the vessel whatsoever, there cannot be a breach of international human rights law (although there may be a breach of the Law of the Sea provisions described above, particularly with regard to rendering assistance to persons in distress at sea). However, non-physical interaction may nonetheless trigger a state’s obligations, which is best illustrated by the case of Medvedyev.104 This case involved the interception by the French authorities of a Cambodian-flagged ship called The Winner that was suspected to be transporting drugs. When the ship was spotted, the pursuing ship issued several warnings and fired warning shots, before firing directly at the merchant ship, under orders from France’s maritime prefect for the Atlantic. The merchant ship then answered by

97  ‘Provided States have supreme authority within their territory, the plenitude of internal jurisdiction, their immunity from other States’ own jurisdiction and their freedom from other States’ intervention on their territory (Art 2 (4) and (7) UN Charter), but also their equal rank to other sovereign States are consequences of their sovereignty.’ S Besson, ‘Sovereignty’ (2011) Max Planck Encyclopedia of Public International Law. 98  Hirsi (n 6) [73]; Al-Jedda v UK, App No 27021/08, 7 July 2011. 99  Hirsi (n 6) [81]. 100  The Haitian Centre for Human Rights et al v US, Case 10.675, Report No 51/96, InterAm.C.H.R.,OEA/Ser.L/V/II.95 Doc 7 rev at 550 (1997) 171. 101  Gallagher and David (n 38) 471; N Klein, ‘Assessing Australia’s Push Back the Boats Policy under International Law: Legality and Accountability for Maritime Interceptions of Irregular Migrants’ (2014) 15 Melbourne Journal of International Law 1, 21; Committee against Torture, JHA v Spain, Communication No 323/2007, 21 November 2008 [8.2]. 102 Pallis (n 36) 335; Efthymios Papastavridis, ‘The “Left-to-Die Boat” Incident of March 2011: Questions of International Responsibility Arising from the Failure to Save Refugees at Sea’ (2013) Refugee Law Initiative Working Paper 10, 13. 103  Gallagher and David (n 38) 471. 104  Medvedyev v France, App No 3394/03, 29 March 2010.

126  The Irish Yearbook of International Law 2015 radio and agreed to stop.105 When they boarded the Winner, the French commando team was obliged to use their weapons to defend themselves, and subsequently kept the crew members under their exclusive guard and confined them to their cabins during the journey to France.106 The ECtHR held that ‘this was a case of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within France’s jurisdiction’.107 However, it is unclear what the Court regarded as the time of the ship’s interception: was it when the warning was issued, when a shot was fired at the ship, when the ship was stopped or when the ship was boarded? One way to read the judgment is to suggest that the Court implicitly viewed the interception as separate to the boarding. It refers to the Cambodian authorities providing permission for ‘the interception and boarding of the Winner’108 and again refers to the diplomatic note in question ‘confirming the authorization to intercept, inspect, and take legal action against it’.109 Thus, prior to boarding, the ship was intercepted and was therefore under effective control. An analogy can be made to the Committee against Torture’s understanding of effective control, which includes where an individual is under the de facto control of the state.110 Therefore, although it is established that a vessel can be under effective control prior to boarding, the case law does not tell us what actions short of boarding would trigger effective control. However, this article argues that interception is a continuous act and that any actions that alter the course of the vessel—be it an order to stop, a warning shot or possibly even the physical presence of a naval ship—could amount to interception which would trigger the intercepting state’s human rights obligation. This is supported by the UNHCR’s interpretation of ‘interception’, which encompasses any measure employed to ‘prevent further onward international travel’, which could be taken to mean anything with the object of interfering with the path of navigation.111 The threshold for this is therefore quite low, considering that where a naval vessel intercepts a vessel of asylum seekers, there is more often than not a significant disparity of knowledge and perceived authority between the individuals in each vessel. Regardless of whether the authorities are acting within their rights under international law in ordering or indicating for a vessel to turn back, a migrant vessel will most likely feel obliged to adhere to its commands.112 This line of reasoning is supported by the Human Rights Committee, which found that a State Party may be responsible for extraterritorial violations of the ICCPR ‘if it is a link in the causal chain that would make possible violations in another

105 

ibid [13]. ibid [66]. 107  ibid [67]. 108  ibid [40]. 109  ibid [99]. 110 ‘Jurisdiction must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention’. JHA v Spain (n 101) [8.2]. 111  UNHCR, ‘Conclusion on Protection Safeguards in Interception Measures’ No 97 (LIV) (2003). 112  R Dias, ‘The Parameters of Refoulement on the High Seas’, University of Sheffield, 2016, 9 (on file with the author). 106 

Symposium—Ní Ghráinne 127 jurisdiction’.113 This argument is further supported by drawing analogies with the criminalisation of forced displacement, whereby ‘force’ is not limited to physical force. For example, the International Criminal Court (ICC) ‘Elements of Crimes’ document provides that: ‘The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.’114 We can also draw an analogy with the argument that Israel ‘occupies’ Gaza (in the sense that Israel owes legal obligations to Gazans under the law of belligerent occupation),115 despite Israel’s disengagement. Even though Israel is not physically present on Gazan territory, it is ‘occupying’ Gaza because Israel guards the land, sea and airspace around Gaza.116 Thus, in engaging in interception without actually boarding the vessel, states may still be in breach of human rights law. To conclude otherwise would be contrary to the principle of good faith and would conflict with the Convention’s object and purpose, which is to recognise ‘the inherent dignity and … the equal and inalienable rights of all members of the human family’.117 Moreover, there is an implicit obligation of non-removal under the ICCPR which has been emphasised repeatedly by the Human Rights Committee. In General Comment 20, the Committee rejected the possibility that States Parties could ‘expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement’.118 This was reaffirmed in General Comment 31, where the Committee stated that the ICCPR obliges states: [N]ot to extradite, deport, expel or otherwise remove a person from their territory … where there are substantial grounds for believing that there is a real risk of irreparable harm,

113  Munaf v Romania, Communication no 1539/2006, UN Doc CCPR/C/96/D/1539/2006, 30 July 2009 [14.2]. 114  International Criminal Court, Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3–10 September 2002 (United Nations publication, Sales No. E.03.V.2 and corrigendum), part II.B, art 6(e). 115  The International Committee of the Red Cross (ICRC) also considers that Israel remains an occupying power in the Gaza Strip, taking the view that ‘While the shape and degree of this military occupation have varied, Israel has continuously maintained effective control’ over the territory. Peter Maurer (as President of the ICRC), ‘Challenges to International Humanitarian Law: Israel’s Occupation Policy” (2012) 94 International Review of the Red Cross 1503, 1504–05, 1506. 116  See, eg,UNHRC, ‘Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict’, 15 September 2009, A/HRC/12/48 [278], [279]. Notably, in the Bassiouni case, the Israeli Supreme Court held that although there is no longer an occupation in Gaza, Israel has certain ongoing responsibilities towards Gaza (including in relation to the supply of fuel and electricity) due to ‘the degree of control exercised by the State of Israel over the border crossings between it and the Gaza Strip’, as well as the historical relationship of dependency by Gaza on Israel for electricity [12]. See ‘Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report’, 6 November 2014, OTP [26] [27]. For a different view, see M Milanovic, ‘European Court Decides that Israel is Not Occupying Gaza’, EJIL Talk!, 17 June 2015, available at: www.ejiltalk.org/european-court-decides-that-israel-is-not-occupying-gaza. 117  ICCPR, Preamble. 118 UN Human Rights Committee, ‘General Comment No. 20: Replaces General Comment No. 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment’ (1992) UN Doc HRI/GEN/1/ Rev.1 7.

128  The Irish Yearbook of International Law 2015 such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.119

The use of the phrase ‘such as’ implies that the non-removal obligation is not limited to violations of Articles 6 and 7. Indeed, the case of Kindler v Canada (1991) illustrates that the non-removal obligation may, in theory, be invoked in conjunction with any Covenant article: If a State Party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State Party itself may be in violation of the Covenant.120

This article argues that this non-removal obligation also applies to pushback operations conducted at sea. The underlying rationale of non-removal obligations as developed in numerous cases is that states cannot turn a blind eye to the consequences of their removal decisions where it exposes individuals to treatment in violation of international human rights norms. This is in line with the object and purpose of the ICCPR, which is, inter alia, to recognise ‘the inherent dignity and … the equal and inalienable rights of all members of the human family’.121 It is irrelevant that the quoted extract from General Comment 31 refers to removal from one territory to another (as opposed to removal from one area of the seas to another).122 The fact that the Human Rights Committee is primarily concerned with the potential harm at issue (rather than geographical location) is evident from the fact that the terms ‘territory’ and ‘jurisdiction’ are used interchangeably to elaborate on the same principle, whereas the phrase ‘real risk’ is used consistently. B.  Applicable Rights The most relevant rights in the 1966 ICCPR to the circumstances described above are Article 6, which protects the right to life, and Article 7, which prohibits cruel, inhuman or degrading treatment.123 Thailand and Indonesia are a party to the ICCPR, whereas Myanmar and Malaysia are not. However, the latter states are also bound by these articles as they represent customary international law.124 Once jurisdiction is established, pushback operations resulting in death and exposure to malnourishment, suffocation, dehydration, starvation and violence would most certainly breach Articles 6 and 7 ICCPR.

119 UN Human Rights Committee, ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004) CCPR/C/21/Rev.1/Add 13 [12]. 120  Kindler v Canada, Communication No 470/1991, UN Doc CCPR/C/48/D/470/1991 (1993) [13.1]. 121  ICCPR, Preamble. 122  Chia et al (n 43) 43. 123  1966 International Covenant on Civil and Political Rights 999 UNTS 171. 124  UN Human Rights Committee, ‘General Comment No. 24: General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant’, CCPR/C/21/Rev.1/Add.6 (1994) [8].

Symposium—Ní Ghráinne 129 These rights are reinforced by the broader customary notion of ‘temporary protection’. This is an ‘overarching principle of protection, sufficient to accommodate all those instances where states are obliged to act or refrain from action in order that individuals or groups are not exposed to the risk of certain harms’.125 It is less about their formal admission and more about their non-return to danger.126 Thus, the proposition that a state can remove an individual to the High Seas to face terrible conditions and possibly death is permitted by international law is unsustainable and, moreover, highly undesirable, as it would create a dangerous loophole for states wishing to prevent aliens from entering their territory. It is also important to determine whether there has been a breach of the prohibition of collective expulsion, which refers to any measures compelling non-nationals, as a group or groups, to leave a country or the territory of a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual member of the group.127 This principle has been described as a general principle of law and is also enshrined in the Migrant Workers’ Convention,128 to which Indonesia is a party and in the ICCPR, to which Thailand and Indonesia are parties.129 It is clear that where the coastal states intercepted the migrants in their territorial seas without complying with the provision’s obligation of ‘due process’, the prohibition of collective expulsion was breached. However, where the vessels were intercepted on the High Seas, it is argued that this principle was not breached. Although the ECtHR in Hirsi v Italy found that the prohibition of collective expulsion was breached, owing to pushback operations conducted on the High Seas, this was on the basis that the formulation in Article 4 of Protocol 4 of the prohibition ‘contains no reference to the notion of “territory”’.130 In contrast, all of the international (as opposed to regional)131 instruments’ provisions on collective expulsion use the term ‘territory’ in the formulation of the prohibition.132 This principle is limited to where individuals are present on the territory of the state or in a state’s territorial waters, given the nexus between state sovereignty and territory.

125 GS Goodwin-Gill ‘Non-refoulement, Temporary Refuge, and the “New” Asylum Seekers’ in DJ Cantor and J-F Durieux (eds), Refuge from Humanity? War Refugees and International Humanitarian Law (Leiden, Brill, 2014) 458. 126  ibid 435–36. 127  Gallagher and David (n 38) 477. 128 1990 International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families, A/RES/45/158. 129  Article 22 of the Migrant Workers’ Convention (to which Indonesia is a party, but Malaysia and Thailand are not) provides that: ‘Migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually.’ However, art 22(2) provides that: ‘Migrant workers and members of their families may be expelled from the territory of a State Party only in pursuance of a decision taken by the competent authority in accordance with law.’ 130  Hirsi (n 6) [173]. 131  Protocol No 4, ECHR; 1969 American Convention of Human Rights 1144 UNTS 123, art 22(9); 1992 African Charter on Human and Peoples’ Rights 21 ILM 58, art 12(5). 132  Migrant Workers Convention, art 22; ICCPR, art 13.

130  The Irish Yearbook of International Law 2015 CONCLUSION

The above discussion has assessed the actions of the Thai, Malaysian and Indonesian authorities against the complex legal framework applicable to pushback operations at sea. This article argued that notwithstanding its customary status, the principle of non-refoulement was not breached by the respective states as they did not send the migrants back to the ‘frontiers of territories’. In addition, this article accepted that the states could in theory rely on Article 19 UNCLOS, which establishes the right to push back vessels carrying migrants present in the territorial seas, as such vessels are not engaged in ‘innocent passage’.133 However, this article argued that the exercise of this right by Indonesia, Thailand and Malaysia was unlawful as it was not a measure of last resort, it was disproportionate to the objective and it did not use the minimum force reasonably necessary.134 They also violated the individual’s exceptional customary right to enter the ports of the coastal state in situations of distress, although it is not clear whether the coastal states also had an obligation to disembark them. Nonetheless, by providing them with food, water and pushing them back to sea, they did not satisfy the obligation under Article 98 UNCLOS to assist these individuals, as the provision of assistance that would only marginally prolong life would not be interpreting the obligation in good faith. In addition, it would fall foul of the principle of effectiveness, which provides that the obligation in a treaty is to produce an outcome which advances the aim of the treaty. This article also established that interception is a continuous act and thus any actions that alter the course of the vessel could amount to interception. As human rights law is applicable to all situations of interception at sea, any right exercised pursuant to UNCLOS or the SOLAS Convention that is not in conformity with human rights law is a breach of the substantive human rights provision as well as to the obligation to interpret UNCLOS and SOLAS in line with existing obligations.135 Therefore, in breaching Articles 6 and 7 of the ICCPR, ipso facto, the Thai, Malaysian and Indonesian authorities have no justification for their actions under international law. Where there is no interaction with the vessel whatsoever, there is no breach of international human rights law (although there may be a breach of the Law of the Sea provisions described above, particularly with regard to rendering assistance to persons in distress at sea). The practical impact of the findings of this research suffers from many of the shortcomings of the system of international law as a whole, namely, the lack of enforcement at an international level. However, the arguments put forward in this contribution nonetheless make a significant practical impact for the following reasons. First, even if international redress is difficult or impossible, the arguments put forward in this piece can be employed at a domestic level. Those who survived, or

133 

UNCLOS, art 19. M/V Saiga case (n 41 [155]) held that force should be a last resort: ‘[International law] requires that the use of force must be avoided as far as possible and, where force is inevitable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea as they do in other areas.’ 135  1969 Vienna Convention on the Law of Treaties 1155 UNTS 331, art 31(3)(c). 134 The

Symposium—Ní Ghráinne 131 the families of those who perished, for example, could take a case through local courts and tribunals. For states such as Indonesia and Thailand that operate a dualist legal system, the national legislature must ‘transform’ the international obligation into a rule of national law and the national judge will then apply it as a rule of domestic law.136 A domestic judge should nonetheless interpret that domestic rule in accordance with its original source as an international instrument. As was stated by Lord Hope of Craighead in the UK House of Lords with reference to the 1951 Refugee Convention:137 The point is commonly made in regard to the Convention that it is not right to construe its language with the same precision as one would if it had been an Act of Parliament. The Convention is an international instrument … its choice of wording must be taken to have been the product of the inevitable process of negotiation and compromise … And the general rule is that international treaties should, so far as possible, be construed uniformly by the national courts of all states. This point also suggests that the best guide to the meaning of the words used in the Convention is likely to be found by giving them a broad meaning in the light of the purposes which the Convention was designed to serve.138

Second, the issue could be raised by individual states, the UN, the UNHCR and/ or NGOs during Thailand’s, Indonesia’s or Malaysia’s review of their human rights records (the Universal Periodic Review) before the Human Rights Council.139 Third, the arguments put forward in this piece can be used to put diplomatic pressure on Indonesia, Malaysia and Thailand to change their policies toward migrants at sea. Since the inception in 2002 of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, the issue of people smuggling in particular is high on the agenda of the international community. Following the events of May 2015, Thailand, Malaysia and Indonesia’s reputation for respect for international law is damaged, and this may affect their relationship with other states and in the context of multilateral negotiations on related issues. By condemning their actions within the framework of international law, this article puts significant weight behind the argument that these actions were wrong and should never be repeated, and provides a disincentive for states to engage in similar practices in the future.

136  E Denza, ‘The Relationship between International and National Law’ in MD Evans (ed), International Law, 2nd edn (Oxford, Oxford University Press, 2006) 429. It is unclear whether Indonesia operates a monist or dualist system, as its Constitution is silent on the matter. See S Butt, ‘The Position of International Law within the Indonesian Legal System’ (2014) 28 Emory International Law Review 1. If it has a monist system, international law is directly applicable in the domestic legal system and thus the arguments canvassed in this article are similarly directly applicable in a domestic court. 137  Refugee Convention (n 4). 138  Horvath v Secretary of State for the Home Department [2000] UKHL 37. 139 The Universal Periodic Review (UPR) involves a review of the human rights records of all UN Member States. The UPR is a state-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each state to declare what actions it has taken to improve the human rights situations in its country and to fulfil its human rights obligations. Of particular relevance to this piece is the opportunity for UN bodies and NGOs to provide observations on the states’ human rights records.

132 

A Lesser Evil? The European Agenda on Migration and the Use of Aid Funding for Migration Control DARIA DAVITTI AND ANNAMARIA LA CHIMIA*

The verdict in the future will be a terrible one: No one will be able to again say that he did not know it all. Whoever knew about it and raised no objections has made himself complicit. Professor Dr Klaus Bade, 15 March 20161 INTRODUCTION

D

URING THE FIRST five months of 2015, approximately 1,850 people died across the Mediterranean whilst attempting to reach the European Union (EU).2 In response to this, in April 2015 the Commission presented a 10-point action plan,3 on the basis of which the Council agreed to strengthen the EU’s ‘presence at sea, to fight traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility’.4 As a result of this agreement, on 13 May 2015 the Commission presented a highly controversial European Agenda on Migration (hereinafter the ‘European Agenda’), which included both internal and external policy measures. One of the cardinal objectives of the European Agenda is to ‘address the root causes of migration’5 and in order to fulfil this objective, the EU aims at ‘mainstream[ing] migration issues into development cooperation’.6 However, since the

* Daria Davitti is Assistant Professor in Law, University of Nottingham; Annamaria La Chimia is Associate Professor in Law, University of Nottingham. 1  See interview with MiGAZIN, the German online portal specialising in migration, available at: www. migazin.de/2016/03/15/bades-meinung-merkels-mann-grobe. 2  According to the UNHCR, 3,771 deaths occurred across the Mediterranean by the end of 2015, with 1,015,078 people attempting the crossing. As of October 2016, whilst the number of crossings had fallen sharply to 327,800, the number of lives lost at sea already amounted to 3,740. See: www.unhcr.org/uk/ news/latest/2016/10/580f3e684/mediterranean-death-toll-soars-2016-deadliest-year.html. 3 European Commission, ‘Joint Foreign and Home Affairs Council: Ten Point Action Plan on Migration’, available at: http://europa.eu/rapid/press-release_IP-15-4813_en.htm. 4  See ‘Special Meeting of the European Council, 23 April 2015: Statement’, available at: www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement. 5 See the European Commission’s Press Release, ‘Managing Migration Better in All Aspects: A European Agenda on Migration’, available at: http://europa.eu/rapid/press-release_IP-15-4956_en.htm. 6  EU Commission, ‘A European Agenda on Migration’, COM(2015) 240, 13 May 2015, 8.

134  The Irish Yearbook of International Law 2015 adoption of the European Agenda, and arguably because of it, EU Member States have not lived up to their obligations to extend international protection to those who need it. Similarly, as detailed in this article, they have pushed for policies aimed at externalising the management of migration, including through dubious bilateral agreements which foresee the use of aid funding in return for cooperation on migration control. In so doing, they have failed to move towards a more coherent, humane and legally acceptable response to the arrival of people on European shores. Thus, against a background of pushbacks at sea and of closing borders with razor wire on land,7 the fact that the European Agenda also envisages the use of development aid as a tool for migration control has so far remained largely unchallenged. At best, it has been considered as a ‘lesser evil’: a less unpleasant option than seeing thousands of people trying to climb newly erected fences or, worse, crossing the Mediterranean and drowning at sea. However, the explicit use of development aid to control migration raises a number of points of contention: for instance, can such funds be classified as ‘development aid’ at all? How will this aid be allocated and what repercussions will it have on overall aid distribution and availability for ‘development’ projects? With an overall budget of €96.8 billion allocated to EU external cooperation assistance for the 2014–20 period, the EU flexes its donor muscles and unapologetically calls for stronger action to link aid to the stemming of migratory flows towards the EU. This call, operationalised inter alia by the specific creation of a new Emergency Trust Fund for Africa (€1.8 billion, to be matched by the contributions of recalcitrant Member States), raises serious concerns about the type of development cooperation that the EU intends to pursue within the context of the European Agenda.8 Crucially, in current EU measures, aid funds are explicitly made conditional on returns to partner countries (such as Turkey, Afghanistan, Sudan and soon Libya and other African countries),9 where, arguably, substantive protections enshrined in the 1951 Refugee Convention and in international law more generally are not fully ensured. The main aim of this article is to expose and analyse the way in which the European Agenda links development aid to the externalisation of migration control, to assess whether such policies breach international law, and whether the EU and its Member States can be held liable for aiding or assisting such breaches. More broadly, it also reflects on the longer-term implications that the incorrect classification and distorted use of aid within the European Agenda may have on aid practice. It argues that the absence of regulation over what aid is and how it should be allocated fuels the many problems surrounding aid, thus enabling its (mis)use within the European Agenda for migration control. From the outset, there are two main underlying questions

7  On the border closures which took place along the Western Balkans in March 2016 and on the related entrapment of refugees in Greece, see P Kingsley, ‘Balkan Countries Shut Borders as Attention Turns to New Refugee Routes’ The Guardian (9 March 2016), available at: www.theguardian.com/world/2016/ mar/09/balkans-refugee-route-closed-say-european-leaders. 8  See ‘Joint Way Forward’ agreement with Afghanistan signed in October 2016, EU Doc 12191/16 of 22 September 2016. 9 See EU Commission, ‘Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration’ (7 June 2016) COM(2016) 385 final. See ibid for the agreement with Afghanistan; see below (n 23) for the agreement with Sudan.

Symposium—Davitti and La Chimia 135 that this article seeks to answer. First, is it legal for the EU and its Member States to fund third countries in order for them to implement migration control measures in the service of the EU, mainly aimed at returning people and preventing them from seeking asylum in the Member States? Secondly, are the EU and its Member States in breach of their obligations under international law if they conclude agreements with countries that notoriously violate human rights, especially when these agreements foresee no mechanisms to ensure that international obligations will be respected by the recipient country? One key problem with the EU measures is that so far they seem to be relying on the assumption that refugees can be returned if they enter a country illegally. Article 31 of the 1951 Refugee Convention clearly establishes that States Parties should not penalise refugees for reaching a perspective country of asylum illegally,10 thus taking into consideration the fact that otherwise states might do anything within their powers to close all legal entry routes, that is, precisely what the EU has been doing over the last two decades.11 This principle of non-penalisation for mere illegal entry was confirmed in June 2016 by the Court of Justice of the EU (CJEU) in the Affum case.12 Similarly, Article 31 cannot be interpreted as requiring immediate and direct arrival from the place in which refugees are at risk of persecution.13 Such an interpretation would result in refugees only ever being able to seek asylum in neighbouring countries, given the existence of contemporary deterrent measures aimed at halting the arrival of refugees.14 This article argues that the agreements concluded under the European Agenda to externalise migration control are incompatible with international law and that, as a result, the diversion of development funds towards supporting such agreements is highly concerning. It also argues that by providing aid to third countries and making it conditional on effective cooperation on migration control, yet without ensuring that international protection obligations are adequately upheld, the EU and its Member States have knowledge of the wrongful acts committed by third countries15 in order to control migration towards the EU. They could therefore be 10 International refugee law fundamentally recognises all asylum seekers as presumptive refugees. Therefore, refugee status determination procedures are only declaratory in nature and international protection extends to asylum seekers, unless and until refugee status is rejected on the merits after an appropriate legal process. See, eg, G Goodwin-Gill, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention and Protection’ (2001), available at: www.unhcr. org/3bcfdf164.pdf. 11 See generally R Zaiotti (ed), Externalizing Migration Management: Europe, North America and the Spread of ‘Remote Control’ Practices (Abingdon, Routledge, 2016); and T Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge, Cambridge University Press, 2013) 15. 12  Case C-47/15 Sélina Affum v Préfet du Pas de Calais and Procureur général de la Cour d’appel de Douai (7 June 2016) Grand Chamber judgment. 13  See, eg, JC Hathaway, The Rights of Refugees under International Law (Cambridge, Cambridge University Press, 2005) 394. 14  See Y Holiday, ‘Penalising Refugees: When Should the CJEU Have Jurisdiction to Interpret Article 31 of the Refugee Convention?’, available at: http://eulawanalysis.blogspot.co.uk/2014/07/penalising-refugees-when-should-cjeu.html. See also C Costello and M Mouzorakis, ‘EU Law and Detainability of Asylum-Seekers’ (2016) 35 Refugee Survey Quarterly 47. 15  On the level of knowledge required for aiding and assisting, see H Moynihan, ‘Aiding and Assisting, Challenges in Armed Conflict and Counterterrorism’, available at: www.chathamhouse.org/sites/

136  The Irish Yearbook of International Law 2015 liable for aiding or assisting wrongful conduct occurring within the context of these cooperation agreements.16 The EU presents its policies as ‘rights-based’ cooperation or development actions aimed at addressing the situation of vulnerable migrants. However, as evidenced in this article, these policies are mainly aimed at externalising migration control.17 In order to do so, the EU promotes a ‘more for more’ approach (ie, more cooperation on controlling migration in exchange for more aid funds), whereby ‘development’ aid is made conditional on cooperation in halting migration. As evidenced in this article, most of the ‘development’ policies implementing the European Agenda are aimed at ensuring swift returns to countries of transit or origin, and have little or no provision about development strictu senso. Even when these policies are linked to a humanitarian or development objective, they often lack any appropriate monitoring mechanism to ensure that the said objective will be fulfilled. In this way, the funds provided risk remaining blank cheques to the host government. For instance, in relation to the EU-Turkey Joint Action Plan18 (hereinafter the ‘Joint Action Plan’), first introduced at the end of 2015, an official EU-Turkey statement of 18 March 2016 explicitly refers to ‘projects for refugees, notably in the field of health, education, infrastructure, food and other living costs’ and to the channelling of funds through the Facility for Refugees in Turkey.19 Although at first sight, it might seem acceptable to consider these funds as aid to refugees, it is contended in this article that without specific measures to ensure that the funds to the recipient state will be spent for the purposes for which they have been allocated,20 there remains a real risk that these funds will assist the implementation of migration control measures in breach of international law. The arguments introduced above will be developed in the four sections of this article: section I introduces the European Agenda and analyses its ‘development’ measures, looking at the way in which most of these measures are essentially aimed at outsourcing migration control to third countries so as to prevent asylum seekers from starting their journeys towards Europe or ever reaching European shores. Section II reviews the cooperation agreements signed between Italy and Libya since 2008, under which aid to Libya became conditional on helping Italy halt migration.

files/chathamhouse/publications/research/2016-11-14-aiding-assisting-conflict-counterterrorismmoynihan.pdf. 16 See J Hathaway and T Gammeltoft-Hansen, ‘Non-refoulement in a World of Cooperative Deterrence’ (2015) 53 Columbia Journal of Transnational Law 235. For an argument suggesting that in this type of case it would be admissible to expand the Soering criteria for jurisdiction, see M Jackson ‘Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction’ (2016) 27 European Journal of International Law 817; and M Jackson, Complicity in International Law (Oxford, Oxford University Press, 2015). 17  Zaiotti (n 11). 18  Although this agreement is often referred to as the EU-Turkey ‘deal’, most EU documents refer to the EU-Turkey Joint Action Plan of 15 October 2015. See European Commission Fact Sheet: EU-Turkey Joint Action Plan, available at: http://europa.eu/rapid/press-release_MEMO-15-5860_en.htm. 19 See EU-Turkey Statement, 18 March 2016, available at: www.consilium.europa.eu/en/press/ press-releases/2016/03/18-eu-turkey-statement/. 20 This does not apply, of course, to funds channelled through well-established agencies which are providing assistance to refugees in Turkey, including with EU funds.

Symposium—Davitti and La Chimia 137 Since Italy, together with Spain,21 has been one of the first EU Member States to link the disbursement of development funds to migration control, and since claims have been made that the EU approach to ‘development for migration’ has been drawn along the lines of the Italian experience,22 these agreements offer an interesting historical perspective and further insight into possible developments and the broader implications of the current EU policies. As evidenced by an agreement recently signed with Sudan,23 Italy also continues to lead the way in concluding bilateral agreements with countries with questionable human rights records24 and without mechanisms in place to ensure that aid funds are used for genuine development purposes. As such, an in-depth analysis of the Italian approach to this type of development funding can shed light on the wider approach adopted both bilaterally and at the EU level within the framework of the European Agenda. Section III considers the dangers of using development policies to control migration flows, especially in terms of distorting the fundamental meaning of development aid and the ways in which it is defined and allocated. This section explains why the funding of migration control envisaged as part of the European Agenda cannot be considered aid, as it is essentially a payment made to third countries to readily accept returnees and prevent departures—measures aptly described as ‘pull-backs by third countries in the service of EU member states’.25 The EU is using taxpayers’ money not to assist, not to help, not to create development and welfare, but to illegally ‘pull-back’ people, including women and children. Calling funds allocated for these purposes ‘aid’ would legitimise its use and its disbursement while further damaging aid reputation and perception. Section IV consolidates the main legal argument, advanced throughout this article, that the EU ‘development’ policies are fundamentally incompatible with international human rights law and international refugee law. This section argues that the EU and its Member States may be liable for aiding or assisting a third country in breaching its protection obligations as a result of the provision of development aid under the cooperation agreements of the European Agenda. More specifically, liability follows because aid is not merely given ‘in good faith’ and later misused by third countries implementing migration control measures in breach of international law. In its cooperation agreements, the EU and its Member States

21  See S Carrera et al, ‘EU-Morocco Cooperation on Readmission, Borders and Protection: A Model to Follow?’ (2016), available at: www.ceps.eu/publications/eu-morocco-cooperation-readmission-bordersand-protection-model-follow. 22  See the non-paper submitted by the Italian government in May 2016: ‘Migration Compact: Contribution to an EU Strategy for External Action on Migration’ (2016), available at: www.governo.it/sites/ governo.it/files/immigrazione_0.pdf. See also Ian Traynor, ‘EU Considering Plan to Outsource Mediterranean Migrant Patrols to Africa’ The Guardian (20 March 2015), available at: www.theguardian.com/ world/2015/mar/20/eu-italian-proposals-outsource-mediterranean-migrant-patrol-africa. 23  See Memorandum of Understanding on migration between Italy and Sudan, available at: www.asgi. it/wp-content/uploads/2016/10/accordo-polizia-Italia-Sudan_rev.pdf; and for allegations that aid funds might support the Janjaweed militia, see: www.statewatch.org/news/2016/oct/ep-meps-letter-collectiveexpulsions-to-Sudan.pdf. 24  Hathaway and Gammeltoft-Hansen (n 16) 256, who explain that it is not unusual for cooperation agreements on migration to be with third countries which are unable/unwilling to ensure international protection. 25  N Markard, ‘The Right to Leave by Sea: Legal Limits on EU Migration Control by Third Countries’ (2016) 27 European Journal of International Law 591, 592.

138  The Irish Yearbook of International Law 2015 make aid conditional on and instrumental to the implementation of measures that lead to breaches of international law. They therefore have knowledge that the funds provided will aid or assist such breaches by third countries.26 The article thus concludes that EU cooperation agreements with third countries should be reconsidered and that international legal obligations vested upon the EU, its Member States and third countries should be upheld. I.  THE EU AGENDA AND ITS DEVELOPMENT MEASURES: THE ‘MORE FOR MORE’ APPROACH

The European Agenda presented by the Commission on 13 May 2015 includes both internal and external policy measures, not least the deployment of a Common Security and Defence Policy (CSDP) operation which targets the vessels used by smugglers and traffickers. On 18 May 2015, the CSDP operation, backed by a Crisis Management Concept,27 was approved by the Council. EUNAVFOR MED (later renamed Operation Sophia),28 the EU military operation in the Southern Central Mediterranean, was thus established29 to contribute to the disruption of ‘the business model of smugglers and traffickers of people in the Mediterranean’.30 Despite the sharp criticism levelled against the launch of Operation Sophia and the decision to ‘systematically identify, capture and destroy’31 the vessels used by smugglers and traffickers, in February 2016, the North Atlantic Treaty Organization (NATO) also deployed its ships in the Aegean Sea as part of a mission to support EU authorities and Member States.32 The mandate of the NATO mission in the Aegean Sea is aimed at intelligence, surveillance and reconnaissance (ISR) in Greek and Turkish territorial waters. These activities are of crucial importance for the success of Operation Sophia, which was initially limited to international waters. The NATO mission is not authorised to stop vessels carrying refugees and is therefore presented as deterring

26  This was confirmed in Hirsi Jamaa and Others v Italy, ECHR Grand Chamber, App No 27765/09, judgment of 23 February 2012. The ECtHR held (at para 131) that Italian authorities knew or should have known that the irregular migrants returned to Libya ‘would be exposed in Libya to treatment in breach of the [Convention] and that they would not be given any kind of protection in that country’. 27  See Common Security and Defence Policy, ‘Crisis Management Concept’, available at: www.statewatch.org/news/2015/may/eu-med-military-op.pdf. 28 Ironically, the operation was renamed after the name of a baby born to a mother rescued off the coast of Libya in August 2015. See: www.euintheus.org/press-media/eunavfor-med-operationsophia-helping-migrants-in-the-mediterranean. 29  Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), available at: http://eur-lex.europa.eu/legal-content/ EN/TXT/?qid=1432022661565&uri=OJ:JOL_2015_122_R_0004. 30 See Council of the European Union, Press Release, 18 May 2015, available at: www.consilium. europa.eu/en/press/press-releases/2015/05/18-council-establishes-naval-operations-disrupt-human-smugglers-mediterannean/. 31  EU Commission (n 6) 3. 32 See NATO, ‘NATO Defence Ministers Agree on NATO Support to Assist with the Refugee Crisis and Migrant Crisis’, 11 February 2016, available at: www.nato.int/cps/en/natohq/news_127981. htm. See also NATO press conference of 11 February 2016, available at: www.nato.int/cps/en/natohq/ opinions_127972.htm, and Statement by NATO Secretary General, Jens Stoltenber, 25 February 2016, available at: https://www.youtube.com/watch?v=BYzw9uQ_4iM.

Symposium—Davitti and La Chimia 139 human trafficking networks. Crucially, however, NATO provides critical ISR information to Greek, Turkish and Frontex33 authorities, and although ISR operations per se may not trigger responsibility for refoulement measures, the provision of ISR information which is then used to operationalise returns may trigger NATO’s responsibility in aiding or assisting breaches of international law.34 As further discussed in section IV, such returns would be in breach of the prohibition against refoulement, according to which states are under a clear obligation, enshrined both in international refugee law and in international human rights law, not to return asylum seekers to a place where they would be at risk of torture and other cruel, inhuman or degrading treatment. Non-refoulement is also a principle part of customary international law,35 as a complementary element of the absolute prohibition against torture. If the EU migration response at sea is far from acceptable, not least in terms of its legality vis-a-vis international law,36 the response on land is equally disconcerting. Closures of the Balkan land route during the first few months of 2016, for instance, following a closed-door agreement between Austria, Croatia, the Former Yugoslav Republic of Macedonia, Serbia and Slovenia,37 have resulted in collective expulsions, serious human rights violations and a de facto sealing of Greek borders.38 At least on paper, the European Agenda rests on four main pillars: (1) reducing the incentives for irregular migration; (2) border management—saving lives and securing external borders; (3) Europe’s duty to protect: a strong common asylum policy; and (4) a new policy on legal migration.39 Whilst the European Agenda claims to have as its ‘immediate imperative’ the ‘duty to protect those in need’, a closer analysis of its four pillars and key actions reveals its real emphasis on pushing migration control beyond European borders,40 closer to the countries of origin and transit— essentially, an attempt to prevent migratory flows towards Europe.

33  Council Regulation 1168/2011 (EC), amending Council Regulation 2007/2004, (EC), arts 1, 3(b) establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1. Also note that, as part of the implementation measures of the European Agenda, Frontex’s mandate was expanded with the creation of the European Border and Coast Guard, officially approved on 15 September 2016, available at: www.consilium.europa.eu/en/press/press-releases/2016/09/14-european-border-coast-guard. 34 M Zwanenburg, ‘Shared Responsibility in North Atlantic Treaty Organization-Led Operations’ (2016), available at: www.sharesproject.nl/publication/shared-responsibility-in-north-atlantictreaty-organization-led-operations/. 35  G Goodwin-Gill and J McAdam, The Refugee in International Law (Oxford, Oxford University Press, 2007) 208. See, however, J Hathaway, ‘Leveraging Asylum’ (2010) 45 Texas International Law Journal 45. 36  Goodwin-Gill and McAdam (n 35). 37  See UN High Commissioner for Human Rights, ‘Europe/Migration: Five-Country Police Agreement Exacerbates Crisis and Puts Vulnerable Migrants at Risk’, available at: www.ohchr.org/en/NewsEvents/ Pages/DisplayNews.aspx?NewsID=17091&LangID=E. 38  See Spokesperson of the Office of the UN High Commissioner for Refugees (UNHCR), ‘UN Warns of Imminent Humanitarian Crisis in Greece Amid Disarray in Europe over Asylum’, available at: www. unhcr.org/uk/news/briefing/2016/3/56d564ed6/unhcr-warns-imminent-humanitarian-crisis-greece-amiddisarray-europe-asylum.html. 39  EU Commission (n 6) 6–17. 40  Gammeltoft-Hansen (n 11).

140  The Irish Yearbook of International Law 2015 It is apparent that, through the European Agenda and partly with the use of development funds, the EU is adopting a series of measures aimed at achieving this preventative objective, eg, identification and possible interception of vessels, the deployment of immigration officers in foreign countries,41 the widespread use of ‘safe countries of origin’ and ‘safe third countries’ arrangements,42 and the creation of special facilities43 for what may result in the creation of de facto centres for the extraterritorial processing of asylum claims and the offshore detention of asylum seekers and returnees. Whilst section IV analyses the international legal implications of some of the preventative measures contained in the European Agenda, this section focuses specifically on its ‘development’ policies, in particular those related to the creation of a European Trust Fund for Africa. Since the EU-Turkey Joint Action Plan is also included in the ‘external dimension’ policies of the European Agenda, the relevant aspects of this agreement are discussed in this article, within the context of ascertaining the legality of the cooperation agreements concluded under the European Agenda. A.  The European Trust Fund for Africa Throughout the first half of 2016, most of the media attention focused on migration flows through the Aegean route and the Western Balkan route, with EU strategies mainly aimed at stopping arrivals from and ensuring prompt returns to Turkey. These strategies have in fact resulted in the emergence of alternative routes to the EU. In March 2016, refugee agencies recorded a marked increase in incoming migratory flows through the central Mediterranean route (mainly from Libya to Italy) and via new routes across the Adriatic Sea from Albania.44 This is one of the reasons why EU agreements with African partners have never lost their strategic significance and remain at the core of the EU external ‘development’ policies of the European Agenda. Most importantly, a specific set of migration-related ‘development’ activities is dedicated to strategic countries of origin and transit in the regions of Sahel, the Horn of Africa, Lake Chad, the Gulf of Guinea and North Africa. As of March 2016, the plan was to fund these activities by diverting €1.8 billion from the EU development budget (see table below), mainly from the European Development Fund (EDF), towards the creation of a new Emergency Trust Fund for Africa. According to the Commission, this Trust Fund will enable a much swifter allocation of funds45 ‘to create stability in the regions [of Sahel, Lake Chad, the Horn of Africa and North of Africa] and to contribute to better migration

41  According to the European Agenda, the Commission and the European External Action Service will work together with partner countries ‘to tackle migration upstream’: see EU Commission (n 6) 5. 42 See EU Commission Fact Sheet, ‘Refugee Crisis: European Commission Takes Decisive Action, Questions and Answers’, 9 September 2015, available at: http://europa.eu/rapid/pressrelease_MEMO-15-5597_en.htm. 43 ibid. 44  See ‘Is Italy the Next Greece?’ Financial Sense (14 March 2016), available at: www.financialsense. com/contributors/stratfor/is-italy-next-greece. 45  See EU Commission Fact Sheet (n 42).

Symposium—Davitti and La Chimia 141 management’.46 The Trust Fund was approved at the Valletta Summit on Migration in November 201547 and provides for projects aimed at, inter alia: supporting the reintegration of returnees; improving ‘migration management, including containing and preventing irregular migration and fighting against the trafficking of human beings, smuggling of migrants and other related crimes’; and improving governance, also in terms of border management and other migration-related aspects.48 According to a Commission communication dated February 2016, a total amount of €350 million had been allocated to projects mainly aimed at, inter alia: helping local authorities managing migratory flows and promoting alternatives to irregular migration; improving the resilience of local populations and ‘creating conditions for the return and reintegration’ of refugees; strengthening migration management ‘through providing capacity building and basic equipment, developing policies and legislation on trafficking and smuggling, and raising awareness about the dangers of irregular migration’; and, finally, supporting the management of voluntary returns.49 Instruments Reserve of the 11th EDF Regional Indicative Programme for West Africa—11th EDF

Commitments (€) 1,000,000,000 200,000,000

Regional Indicative Programme for Central Africa—11th EDF

10,000,000

Regional Indicative Programme for Eastern Africa, Southern Africa and the Indian Ocean—11th EDF

25,000,000

National Indicative Programmes for Horn of Africa—11th EDF

80,000,000

Special Support Programme for South Sudan—9th and previous EDFs

80,000,000

European Neighbourhood Instrument

200,000,000

Instrument Contributing to Stability and Peace

10,000,000 (TBC)

Humanitarian Aid, Food Aid and Disaster Preparedness

50,000,000

Development Cooperation Instrument DG HOME Budget lines EU Member State contributions

125,000,000 20,000,000 (TBC) Amounts to be confirmed

Balance available

1,800,000,000

Total for the measure proposed

1,800,000,000

Source: EU Commission Fact Sheet (http://europa.eu/rapid/press-release_MEMO-15-5597_en.htm). 46 

ibid, question 7. Council of the European Union, ‘Valletta Summit on Migration Action Plan’ (17 November 2015) Document 14146/15, available at: www.consilium.europa.eu/en/press/press-releases/2015/11/12valletta-final-docs/. 48 ibid. 49  EU Commission, ‘Communication on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration’ (10 February 2016) COM(2016) 85, 7–8. 47  See

142  The Irish Yearbook of International Law 2015 Various measures in the European Agenda target the Sahel region and include the Saharan city of Agadez—for instance, measures aimed at ensuring the prompt readmission and return of people who do not qualify for international protection.50 Agadez is a crucial crossroad for migrants from Sub-Saharan Africa seeking to reach the EU through Libya and Algeria.51 Migrants expelled from Northern African countries are also often routed through Agadez, where the International Organization for Migration (IOM) has been operating transit centres since 2011, including with funding from the Italian Ministry of Interior.52 Although previous migrationrelated cooperation attempts with Niger failed because of widespread corruption, the European Agenda reflects the EU determination to increase its cooperation with African partners in the region so as to ensure prompt returns.53 One element of the ‘development’ measures for Africa is the creation of a pilot multipurpose centre in Agadez. The centre is presented, rather vaguely, as an assistance and information point for migrants, ‘to provide a realistic picture of the likely success of migrants’ journeys, and offer assisted voluntary return options for irregular migrants’.54 However, the centre does not exist in a vacuum and is part of a ‘firm commitment to supporting capacity building of third countries in the field of migration and border management, as well as to the stabilisation and development of these regions of Africa, from the Sahel to the Horn of Africa, and the North of Africa’.55 As discussed in the following section, in order to implement the external dimension of the European Agenda, the EU is increasingly entering into bilateral agreements of dubious legality with transit countries and implementing return measures which have already been found to be in breach of international law.56 II.  DEVELOPMENT COOPERATION AGREEMENTS BETWEEN ITALY AND LIBYA: A DANGEROUS PRECEDENT

Italy was notoriously one of the first countries in Europe to link the use of development funds to migration control. Prior to the launch of the European Agenda, claims were made that the EU approach to ‘development for migration’ was drawn along the lines of the Italian experience,57 whilst Italy continues to seek strategic partnerships with countries such as Sudan to externalise migration control.58 This section therefore provides an account of the salient features of the development cooperation

50  The capacity-building mission EUCAP Sahel Niger will also be strengthened to support the new migration-reducing measures in the European Agenda. Similarly, EUCAP Sahel Mali already provides training to Mali national security forces and an expansion of its mandate is under consideration. See EU Commission Fact Sheet (n 42) 11. 51  IOM, ‘IOM Opens Agadez Transit Centre in Niger Desert’, 14 November 2014, available at: https:// www.iom.int/news/iom-opens-agadez-transit-centre-niger-desert. 52 ibid. 53  Council of the European Union (n 47) 20–22. 54  EU Commission Fact Sheet (n 42) 8. 55  ibid 7. 56  Hirsi (n 26). 57  See n 22 above. 58  See n 23 above.

Symposium—Davitti and La Chimia 143 agreements signed between Italy and Libya in the early to mid-2000s,59 under which aid to Libya became conditional on halting migration to Italy. An overview of these agreements provides an historical perspective on the use of aid to halt migration flux and enables a clearer understanding of the possible consequences and broader implications of current EU policies. One of the core principles of Italian development cooperation is to be an ‘integral part of Italian foreign policy’ (Article 1 of Law 125/2014).60 Italy is not the only donor to combine development cooperation policies with foreign policy interests.61 However, such links, rather than being openly made in key development cooperation law, are usually made via policy statements, policy papers and ad hoc speeches by development cooperation ministers62 (or foreign policy ministers). Arguably, there are significant implications in having an official link between development cooperation and foreign policy. For instance, such links justify and reinforce a certain outdated idea of development and development cooperation. They also drive development cooperation close to donors’ vested interests and far from states’ national and international obligations to protect and respect human rights and broader UN objectives and goals (eg, as enshrined in Articles 55 and 56 of the UN Charter). Linking development cooperation to foreign policy interests also helps to justify public officials’ and politicians’ use of development cooperation as a means to enhance specific national interests and their choices of aid recipients rather than, or even at the expense of, ‘development’ objectives in the strict sense,63 leading to ineffective distortions of aid allocation (see section III below).

59  Cooperation between Italy and Libya on migration matters dates back to the early 2000s. See also F Mussi and NF Tan, ‘Comparing Cooperation on Migration Control: Italy–Libya and Australia– Indonesia’, in this volume at 87–126. However, the first agreement linking development projects to halting migration was signed in 2008; see n 65 below. 60  Italian development cooperation has its legal foundations in Law 49/87, as recently modified and modernised by Law 125/2014. The core objectives of Italian development cooperation policies are to promote and respect human rights and human dignity, equality and the Rule of Law (art 1.2(b)). Article 1 also affirms that Italian development cooperation ‘is inspired by the UN Charter and the Charter of Fundamental Rights of the European Union. Its action in conformity with Article 11 of the Italian Constitution contributes to build peace and justice and pursues the objective of solidarity amongst people in partnership with recipients’ (art 1.1). 61  M Carbone (ed), Italy in the Post-Cold War Order: Adaptation, Bipartisanship, Visibility (Lanham, MD, Lexington Books, 2011) especially ch 5, ‘Italy as a Development Actor: A Tale of Bipartisan Failure’. There has been much research on why donors grant aid. Economic, political and ethical reasons (and a mixture of all or some of these factors) are often associated with aid granting. See, eg, SW Hook, National Interest and Foreign Aid (Boulder, CO, Lynne Rienner, 1995); N Woods, ‘The Shifting Politics of Foreign Aid’ (1995) 81 International Affairs 393. Experts criticise the way in which aid is allocated, arguing that aid should be about development only and not about fostering donors’ political and economic interests. On this, see especially A Alesina and D Dollar, ‘Who Gives Foreign Aid to Whom and Why?’ (2000) 5 Journal of Economic Growth 33. Donors, on the contrary, maintain that the achievement of foreign policy objectives while granting development aid is simply a collateral outcome of sound development objectives. 62  These are often driven and conditioned by specific historical events. See recently the UK DFID, ‘UK Aid: Tackling Global Challenges in the National Interest’, available at: https://www.gov.uk/government/ uploads/system/uploads/attachment_data/file/478834/ODA_strategy_final_web_0905.pdf. 63  For example, politicians often unashamedly use and promote aid as an instrument to further economic opportunities for national industries and other political interests.

144  The Irish Yearbook of International Law 2015 Given the link between aid and foreign policy which is openly made in Italian development cooperation law, it is not surprising that Italian politicians have been open about aid being used to control (or find allies against) migration. Indeed, unlike other countries who have resorted to partially or completely closing their borders to immigration, or who have resorted to interceptions at sea and pushbacks, since the early 2000s Italy has looked for ‘alternative’ ways of dealing with migration. In a quest to prevent migrants from reaching Italian shores, successive Italian government(s) (ie, all those administrations from across the political spectrum that have followed one another since the 2000s) resorted to using development aid as a means of controlling migration flows. Recipient countries were carefully selected according to their proximity to Italian shores (for example, Libya and Tunisia) and their strategic position in relation to migration flows. Italy committed to strengthening cultural and economic relationships, building major infrastructures such as roads and hospitals (famously, the Libya–Egypt highway was part of the ItalianLibyan development cooperation plan) and contributing to other social programmes. This was done in exchange for ‘collaboration’ on immigration control, ie, the aid was openly made conditional on the recipient helping Italy to control migration flows by stopping migrants at the borders and preventing them from initiating the ‘dangerous’ travel by sea to reach Italian shores. The case of Italian aid to Libya (and to its former Colonel Gaddafi) is particularly controversial. Agreements between Italy and Libya date back to the early 2000s. However, while earlier agreements mainly focused on strengthening cultural and economic ties between the two countries,64 subsequent agreements (and the one signed in 2008 in particular) make strong and explicit links between aid and migration control. It is this latter agreement which provides the focus for the analysis of this section. On 30 August 2008, a Treaty of Friendship, Partnership and Cooperation was signed between Italy and Libya. The Treaty was ratified by Italy with Law 7/2009 on 6 February 2009.65 The Cooperation Treaty specifically foresaw cooperation in migration matters as one of its central objectives (Article 19). For its part, Italy committed to donate US$5 billion over 20 years (to a maximum of US$250 million per year) to implement infrastructure projects in Libya (Article 8, para 1). The infrastructure projects could be implemented by Italian contractors only (Article 8, para 2) and Italy remained responsible for the management of the financial funds (Article 8, para 4).66 Indeed, Italy had been successful in finding in Gaddafi a strategic ally against immigration. Despite the outcry from the international

64  For example, the Accordo di cooperazione culturale, scientifica e tecnologica fra la Repubblica italiana e la Grande Giamahiria araba libica popolare socialista, signed in Tripoli on 5 June 2003 and ratified by Italy with LEGGE 9 December 2005, n 258 (GU n 297 of 22 December 2005) is all about cultural cooperation and mutual collaboration in the education and arts sector. No specific funds are allocated, although it is clearly stated that each country will contribute according to their means. 65 LEGGE 6 February 2009, n 7 Ratifica ed esecuzione del Trattato di amicizia, partenariato e cooperazione tra la Repubblica Italiana e la Grande Giamahiria araba libica popolare socialista, fatto a Bengasi il 30 agosto 2008 (GU n 40 of 18 February 2009), available at: www.normattiva.it/atto/ caricaDettaglioAtto?atto.dataPubblicazioneGazzetta=2009-02-18&atto.codiceRedazionale=009G0015 ¤tPage=1. 66  For the Cooperation Treaty see ibid; a similar agreement has been signed with Tunisia (see www. storiemigranti.org/spip.php?article1004, and also www.interno.it, which refers to the agreement between Maroni and Essid).

Symposium—Davitti and La Chimia 145 community, the Libyan dictator implemented stringent migration control measures. Gaddafi also accepted the return to Libya of rafts and other vessels intercepted at sea (de facto pushback policies).67 The United Nations High Commissioner for Refugees (UNHCR) repeatedly denounced the deplorable conditions for asylum seekers in Libya; the inhumane treatment to which people were subjected in the Libyan camps and detention centres; and the recurring human rights abuses perpetrated against them, as well as the despicable conditions suffered by many of those affected by the pushbacks. However, despite being aware of this situation, the Italian government continued to call for the fulfilment of the migration commitments undertaken by Libya as a condition for the aid to be granted. The Italian Minister of the Interior at the time, Roberto Maroni (exponent of Lega Nord, a political party notorious for its xenophobic ideals), was proud to state that aid to Libya was conditional on Libya helping Italy to halt migration and he once even publicly proclaimed that if Libya was not more effective, aid funding would be withdrawn.68 The squander of ‘aid’ money to Libya continued uninterrupted until the surge of the civil war, amidst suspicions of corruption and lack of monitoring mechanisms to ascertain whether the aid money was being spent for development projects.69 Once the armed conflict started, Italy continued for a brief period to grant aid money to the insurgent government, but when it was clear that no action was being taken to halt refugees (and possibly when it was feared that the money could have been misappropriated by ISIS), aid to Libya ceased.70 Although it may be argued that the factual background to the agreements with Libya and Turkey appear to be different, a closer look at the EU-Turkey Joint Action Plan (discussed further in section IV) reveals that the latter agreement contains some of the same problematic characteristics as that concluded by Italy and Libya. Despite EU claims that the protection of the most vulnerable underpins the European Agenda, it is apparent that in general, its policies are motivated by a desire to prevent refugees from reaching the EU. In a manner similar to the Cooperation Treaty between Libya and Italy, the new forms of ‘more for more’ development promoted by the EU and its Member States have as their central objective cooperation in migration matters. On 18 March 2016, the EU committed to speeding up the disbursement to Turkey of €3 billion and promised funding for further (unidentified) projects.71 Crucially, the document stated that ‘provided the above [migration] commitments achieve their desired results’, the EU was also ready to allocate funding

67 

The ECtHR has condemned Italy’s repatriation of immigrants from Libya; see Hirsi (n 26). Esteri, ‘Immigrati, vacilla l’accordo con la Libia. Tripoli a Maroni: Non detti tu le regole’ Corriere della Sera (22 September 2008), available at: www.repubblica.it/2008/05/sezioni/esteri/libia-italia/ maroni-immigrati/maroni-immigrati.html. 69  Allegations in the Italian press denounced the lack of transparency in the way aid was being spent, including allegations that the money was being used to build a new villa for Gaddafi rather than to build new infrastructure for the country. Despite further, similarly grave allegations, no investigation was launched. See, for example, M Cedolin, ‘News internazionali : Regalo a Gheddafi o alla lobby del cemento?’, available at: www.luogocomune.net/site/modules/news/article.php?storyid=2797. See also: www.lultimaribattuta.it/27636_emergenza-sbarchi-le-frasi-di-maroni-e-i-contesti-totalmente-diversi. 70  Further agreements were signed in 2012, with a Memorandum of Understanding, and 2013 with a ‘technical cooperation agreement’. It appears that, as of 2016, Italy is taking part in a broader EU approach. See Mussi and Tan (n 59). 71  See EU-Turkey statement (n 19). 68  See

146  The Irish Yearbook of International Law 2015 up to a maximum of an additional €3 billion by the end of 2018. It was common knowledge at the time that in order to agree to the plan, the Turkish government had in fact requested €6 billion, as well as the fast-tracking of its EU accession procedure and visa liberalisation for Turkish citizens.72 Despite the widespread condemnation of the agreement,73 the EU relied on Article 38 of the Asylum Procedures Directive and on the fact that in practice Greek courts will have to establish whether the risk of direct and/or indirect refoulement in Turkey is such as to fail to meet the level of security necessary for  Turkey to qualify as a safe third country under Article 38. Correspondence by the Commission to the Greek authorities74 in May 2016 indicated that the former considered that Article 38 only required that returnees were afforded protection equivalent to the 1951 Refugee Convention, rather than its ratification without geographical limitations. Furthermore, the temporary protection status granted to Syrians in  Turkey, combined with Turkish written assurances and a Turkish regulation adopted in January 2016 granting Syrians permission to work under certain circumstances, was considered by the Commission protection equivalent to the 1951 Refugee Convention. However, these considerations were made before Turkey announced a state of emergency on 21 July 2016 following a failed coup attempt, and shortly thereafter declared derogation from the European Convention on Human Rights and from the International Covenant on Civil and Political Rights (ICCPR).75 In May and October 2016, numerous reports also exposed allegations of exploitation of Syrian refugees, including children, in the Turkish garment industry.76 Crucially, at the time of finalising this article, the Hellenic Council of State, ie, the Supreme Administrative Court of Greece, was reviewing for the first time the decision to return a Syrian asylum seeker to Turkey.77 As argued in this article, the EU-Turkey agreement is better understood as a continued EU trend to externalise migration control, including through the use of aid funds as part of cooperation agreements with third countries. This approach

72 Jennifer Rankin, ‘Turkey Outlines “One for One” Plan to Tackle Syrian Refugee Crisis’ The Guardian (7 March 2016), available at: www.theguardian.com/world/2016/mar/07/eu-offers-another3bn-to-turkey-at-emergency-migration-summit. 73  See, eg, the German migration expert, Professor Dr Klaus Bade, who called the EU agreement with Turkey ‘scandalous’ and said that it amounted to ‘trading in refugees as commodities’ (n 1). See also the statement by the Council of Europe Commissioner for Human Rights, Nils Muiznieks: ‘Stop Your Backsliding, Europe’ New York Times (14 March 2016), available at: www.nytimes.com/2016/03/15/opinion/ stop-your-backsliding-europe.html?_r=0; and European Council of Refugees and Exiles (ECRE) ‘Memorandum to the European Council Meeting 17–18 March 2016: Time to Save the Right to Asylum’. There are, however, also scholars who consider it ‘a building block for an international solution to a transnational problem’: D Thym, ‘Why the EU-Turkey Deal is Legal and a Step in the Right Direction’ (2016), available at: http://verfassungsblog.de/why-the-eu-turkey-deal-is-legal-and-a-step-in-the-right-direction. 74  Letter by the European Commission Director-General for Migration and Home Affairs to the Greek Secretary-General for Population and Social Cohesion, 5 May 2016, Ref Ares(2016)2149549— 05/05/2016. 75 For an analysis of these derogations, see M Scheinin, ‘Turkey’s Derogation from Human Rights Treaties—An Update’ (2016), available at: www.ejiltalk.org/turkeys-derogation-from-humanrights-treaties-an-update. 76 See Business and Human Rights Resource Centre, ‘Syrian Refugees: Abuse and Exploitation in Turkish Garment Factories’, available at: www.business-humanrights.org/en/modern-slavery/syrianrefugees-abuse-exploitation-in-turkish-garment-factories; and Darragh MacIntyre, ‘The Kids Who Have to Sew to Survive’ BBC Panorama (23 October 2016), available at: www.bbc.co.uk/news/ business-37693173. 77  Case AY 38839, Counsel submission on file with author.

Symposium—Davitti and La Chimia 147 represents a critical setback not only for international protection in Europe, but also in terms of EU practice of development aid. The following section analyses in detail the profound implications that such a (mis)use of aid has in terms of triggering a development paradox, whereby no development strictu senso is actually ever engendered. III.  THE DEVELOPMENT PARADOX OF THE EU AID PLANS

A. Sixty Years of Aid: What We Know, What We Have Learnt and What We Should Avoid As outlined in section I, the EU agenda foresees the use of development aid resources to strengthen migration management in transit countries. In relation to the Trust Fund for Africa, much of the funds that the EU plans to use have been diverted from (or are surpluses of) previous development funds such as EDF. While the redistribution and diversion of existing resources from one fund to another raise serious ­questions of legitimacy and justice of donors’ actions linked to recipients’ (legitimate) expectations (especially within the EDF context) and to the availability and predictability of aid resources, the use of aid funds to halt migration is problematic in many other respects. First, as analysed more fully in the next section, such use of aid could breach international refugee law because in effect it prevents refugees from reaching countries where asylum applications can be made. Second, the countries to which aid is diverted often have dubious human rights records, hence believing that they will respect migrants’ human rights without ensuring that appropriate protections are in place is, to say the least, disingenuous. As explained throughout this article, returns to a country where people would be at risk of torture and other cruel, inhuman or degrading treatment amount to a violation of the prohibition against refoulement. Consequently, strengthening authoritarian regimes via the provision of aid money may result in the liability of the EU and its Member States for aiding or assisting third countries in the commission of wrongful acts, especially in violations of protection provisions enshrined in international human rights law, international refugee law and EU Treaty principles linking aid and human rights protection. Finally, these new recipients of aid money usually suffer a serious governance gap and are critically affected by corruption, thus raising questions over the use and effectiveness of the aid funds provided. Before dealing with the legal question, this article highlights the contradictions that the EU migration policies raise from a development perspective and how such policies negate every principle of aid effectiveness that the EU has, up to the present, staunchly promoted. B. To Be or Not to Be? Of the European Agenda Not Entailing Development Aid—and Why it Matters Despite the fact that aid has been used as a financial instrument to help the poor for over 60 years, an official, legally binding definition of what development aid is

148  The Irish Yearbook of International Law 2015 and how it should be categorised does not exist.78 However, some guidance on what can be classified as development aid is given by the Organisation for Economic Co-operation and Development (OECD), one of the few organisations recording levels of aid granted both bilaterally and multilaterally by donors. Since the OECD statistics are regarded as official records of aid disbursements and since most donors are members of and report their aid disbursement to the OECD, the definition of development aid used there is certainly indicative as to what the term is usually understood to refer to. According to the OECD glossary of statistical terms, aid can be classified as ‘flows which qualify as Official Development Assistance (ODA) or Official Aid (OA)’.79 In turn, ODA is defined as: ‘Flows of official financing administered with the promotion of the economic development and welfare of developing countries as the main objective, and which are concessional in character with a grant element of at least 25 percent (using a fixed 10 percent rate of discount).’80 Since donors keep using this definition for reporting aid flows, and since this remains the only available categorisation of aid financing, it seems appropriate to use this definition as a baseline to ascertain whether the EU funds here under investigation could be classified as ‘aid’.81 In this respect, a first objection that can be raised against the EU plan is that its financing to strengthen migration control cannot be classified as ‘aid’ because the EU planned funds are neither about ‘economic development’ nor about ‘welfare’. Indeed, the proposed EU plans lack any real indication of what projects will be funded and as to how the EU money will be spent. Whilst the money is often allocated to training officials in neighbouring countries to pull back, retain and ‘receive’ refugees, there are no clear economic or welfare plans for the recipient. As a result, the proposed EU use of funds fails to meet the OECD parameters for ‘aid flows’. It could be claimed that aid spent to assist refugees in donor countries already counts as development aid and that the EU is therefore not departing from current practices.82 In fact, the situation is significantly different. The EU proposals depart 78 Donors often disagree on how certain financial instruments should be regarded and end up classifying their aid disbursements as they see fit. Many examples could be given, for all see the different definitions of ‘partial tied aid’ given by the EU and the OECD. 79  OECD, Glossary of Key Terms and Concepts, ‘Development Co-operation Report: Efforts and Policies of Members of the Development Assistance Committee’, available at: http://stats.oecd.org/glossary/ detail.asp?ID=3795. 80  See: https://stats.oecd.org/glossary/detail.asp?ID=6043. Official assistance to developing and transitional countries has two main components: grants, which do not need to be repaid; and concessional loans, which have to be repaid, but at lower interest rates and over longer periods than commercial bank loans. Financial flows are officially defined as aid if the grant element is at least 25 per cent (calculated at a rate of discount of 10 per cent), that is, provided the present value of the repayments for that aid flow are no more than 75 per cent of its face value. See O Morrissey and H White, How Concessional is Tied Aid (CREDIT Research Paper, No 93/13, 1993) 4. The fact that aid can be granted as loans and hence increased the recipients’ debt is a cause of great criticism. 81 This definition, however, remains limited in many respects, for a start because members of the OECD are mainly developed countries and therefore it offers a developed country-centred notion of development aid, and further because donors have interpreted the ‘development’ objectives that underpin this definition very loosely over time. 82  For example, Italy counts as ODA money that is spent on rescuing and assisting refugees arriving in Italy.

Symposium—Davitti and La Chimia 149 from previous practice where aid resources have been used to assist migrants in donor countries, providing basic and first instance necessities and hence improving the welfare of the beneficiaries. The EU plans instead foresee that the aid will be donated to the governments of countries hosting refugees with no indication—or reassurance—that the money will be spent to improve refugees’ conditions. In fact, one could argue that by returning people to countries that are already struggling with high numbers of refugees and increasing the number of people kept in camps or ‘reception’ centres, refugees’ conditions will deteriorate rather than improve. Further, as explained below, the lack of monitoring systems to ensure that the aid money will be spent on assisting refugees (and meeting any other development objectives) compromises the EU position in terms of possible liability for aiding or assisting aid recipients in violation of international law (see section IV). Given the lack of any real development strategy and vision, it therefore seems paramount to call for a redefinition of the terminology used to define the money that will be used by EU Member States to pay third countries to strengthen their border controls and to unconditionally accept returnees. It needs to be made clear that the EU is not disbursing aid, because the definition of aid flows accepted under current international practice is not met. Given the gravity of the violations which appear to occur whilst implementing these cooperation agreements, some may question the need to challenge the classification of the EU financial plans as development aid. Fundamentally, it is important to challenge this distorted use of funds because using the term ‘development aid’ would imply condoning the use of aid resources to control migration. Aid is an instrument of international cooperation between states, as enshrined in numerous UN treaties (see Articles 55 and 56 of the UN Charter). Its use is accepted and encouraged at the international level because it is associated with good endeavours. Furthermore, like in the bilateral Italy-Libya agreements, the EU and its Member States have put in place no guarantee to ensure that aid will not be misused by the recipient countries.83 Sixty years of granting aid have taught us that it will be a waste to grant aid to governments that are unable or unwilling to spend and use it well because they lack sound governance systems. Indeed, the criticism raised against aid in the past decade has prompted the international community to reconsider the way aid is used, invested and spent. Donors and recipients agree that the effectiveness of aid needs to be proven if aid is to continue to be granted. Enhancing aid effectiveness requires donors to focus on development, to support countries that have in place good development plans and strategies, and to grant aid according to developing countries’ needs rather than their strategic political or trade positions.84 With the policies related to the European Agenda, the EU is disbursing funds with little or no consideration of how the money will be spent and if

83 

See concerns related to the Italy-Sudan bilateral agreement (n 23). There have been numerous ‘aid effectiveness’ initiatives promoted over the past decade: from Rome to Busan, via Paris and Accra, donors and recipients have agreed on targets and have endorsed new commitments to foster aid success. For example, over 152 states have signed the Paris Declaration on Enhancing Aid Effectiveness, where clear targets and specific commitments were endorsed to foster aid success. See E Stern et al, ‘Thematic Study on the Paris Declaration’, available at: https://www.oecd.org/ dac/evaluation/dcdndep/41807824.pdf. 84 

150  The Irish Yearbook of International Law 2015 it will be well spent and managed, going against the aid effectiveness principle it has previously endorsed. This seriously compromises the effectiveness of the funding, ultimately further undermining public support for aid allocation and augmenting public distrust of aid policy. Similar concerns were also raised by the European Court of Auditors in March 2016, which on the eve of the announcement of the Joint Action Plan released a report on other EU ‘migration’ projects in which it criticised EU spending for being poorly monitored and inefficient.85 Crucially, the report highlighted that whilst human rights and refugee protection were often mentioned as stated commitments in many official EU documents, in practice no meaningful effort was made to support the authorities in the recipient countries to comply with international legal standards.86 Lead auditor Danièle Lamarque also observed that with the explicit prioritisation of migration management in the EU external policies, most of the funds were spent on managing migration flows, thus prioritising the security dimension of EU policies rather than real development.87 It is also important to note that aid resources are scarce, funds for ‘real’ development projects are shrinking, and counting as aid something that is not effective—or, worse, something that is bound to be ineffective—inflates the total of aid money disbursed, affecting the aid budget, without any real return for ‘development’ per se. Moreover, classifying such funds as development aid would also allow for an easy diversion and reallocation of funding from one country to another (as is happening in the case of EDF funding, as discussed above), imposing social and economic costs on the population of other countries formerly receiving the aid. Hence, we need to ask what effect the EU redistribution of aid will have on its former beneficiaries. Finally, diverting aid resources used to tackle social problems in order to address migration control will also create animosities amongst the population of the recipient country, who will see that financial resources that were once directed towards addressing their own basic needs are now being used as a tool of foreign policy. Not surprisingly, after the adoption of the European Agenda, UN Secretary-General Ban Ki-moon issued a warning against reductions in development aid by European countries in order to redirect funds to ‘projects’ for refugees and asylum seekers. ‘Redirecting critical funding away from development aid at this pivotal time’, he stated, ‘could perpetuate challenges that the global community has committed to address.’88

85 European Court of Auditors, ‘EU External Migration Spending in Southern Mediterranean Neighbourhood Countries until 2014’, 18 March 2016, Special Report No 9/2016, para 77. See also paras 27–31 and 66–89. 86  ibid paras 87–88. Specific reference was also made in the report to the SaharaMed project, which shares many similarities with the plans envisaged by the European Agenda. In fact, a total of €10 million was allocated to the SaharaMed project to improve local capacity in ‘tackling irregular immigration and preventing and intercepting irregular immigrants in the Mediterranean area’ (para 89). However, the project foresaw no precautionary measures to guarantee respect for migrants’ rights. 87  IRIN, ‘Auditors Give Thumbs Down to EU Migration Spending’ 18 March 2016, available at: www. irinnews.org. 88 UN News Centre, ‘UN Warns against Cuts in Development Aid Due to Refugee Crisis’, 11 November 2015, available at: www.un.org/apps/news/story.asp?NewsID=52525#.WHebfrF0eV4.

Symposium—Davitti and La Chimia 151 C.  A Dearth of Regulation for Aid Although the obligation of states to assist is now recognised (albeit not without controversy) as a principle of international human rights law, the precise scope of the obligation remains uncertain. For many, in particular, the binding nature of aid is to be inferred from a joint reading of the UN Covenant on Economic, Social and Cultural Rights and Articles 55 and 56 of the UN Charter.89 The opposite view, held especially by donor states (and in particular the US),90 maintains that development aid is not required as a result of an international obligation, but represents only a discretionary moral commitment.91 Furthermore, even if the obligation to grant aid was to be acknowledged by all donors, the exact scope of that obligation—and its application in practice—would remain uncertain until donors agree to binding rules on the quantum (how much) and quomodo (how and in what ways aid should be disbursed). Such fundamental issues are mostly still at the discretion of each state.92 This lack of binding rules,93 and of international agreements establishing to whom aid should be allocated and which countries should be prioritised, is one of the major problems affecting aid donations. Formal and substantial questions over what aid is and how it should be used have been fuelled by the lack of international regulation of development aid. While guidelines exist on country income classification and on aid categorisation,94 donor countries cannot generally be bound to give aid to one country rather than another.95 Some countries have agreed codes of conduct and cooperation on aid allocation, but these instruments remain as best practices; they are not incorporated into binding laws (one example is the EU Code of Conduct on Complementarity and the Division of Labour in Development Policy).96 Devising rules in this area is complex because binding rules—on either the quantum or the quomodo of aid—might deter donors

89  See O De Schutter et al, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2002) 34 Human Rights Quarterly 1084. See also M Salomon, ‘The Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights: An Overview of Positive Obligations to Fulfil’, 16 November 2012, available at: www.ejiltalk.org/author/msalomon/. 90 See generally R McCorquodale and MA Baderin (eds), Economic Social and Cultural Rights in Action (Oxford, Oxford University Press, 2007). 91 G Cataldi and G Serra, ‘Tied Development Aid: A Study on Some Major Legal Issues’ (2010) 10 Italian Yearbook of International Law 219, 222. 92  The only such agreement is the Food Assistance Convention agreed by a group of donors in 2012, which entered into force on January 2013. For an analysis of this convention, see A La Chimia, ‘Food Security and the Right to Food: Finding Balance in the 2012 Food Assistance Convention’ (2016) 65 International and Comparative Law Quarterly 99. 93  Guidelines on country income classification can be found at www.un.org/special-rep/ohrlls/ldc/list. htm, where the UN lists on Least Developed Countries (LDC), low-income countries etc are available. For the OECD definition of aid, see above (n 79). 94  The OECD list of aid recipients is very broad and donors can freely choose to whom to give aid. However, in order to be classified as ODA, the disbursement must have a development objective, a high concessionality level and be donated government to government. 95 It could be argued that when emergencies occur, the international community has an obligation to provide aid (especially under international law instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ICCPR). 96  COM (2007) 72 Final; see ch 6.

152  The Irish Yearbook of International Law 2015 from granting aid or might lead to lower aid disbursements. As a result of the lack of regulation in this area and of poor coordination between donor countries, aid tends to be over-allocated to certain countries, while others remain overlooked. It tends to be volatile and unpredictably allocated on the basis of donors’ priorities and interests rather than of recipient countries’ needs.97 However, the grant of aid does not occur in a complete vacuum. Even though donors cannot be bound to give aid to specific countries or to give aid in certain quantities or ways (untied, in cash, in kind etc), donors remain bound when granting aid by all of their other international and regional commitments, agreements and obligations. Fundamentally, aid cannot be used to jeopardise the attainment of the objectives endorsed within such agreements, obligations and commitments.98 Arguably, it is this unregulated system of aid donation that has made possible the emergence of the current ‘more for more’ approach (ie, more cooperation on controlling migration for more aid funds) delineated in the European Agenda and in its ancillary implementation policies. In fact, the EU is unashamedly making ‘development’ aid conditional on third countries’ cooperation in reducing migratory flows, either by preventing people from leaving in the first place or by promptly accepting them back when returned from Europe. And it is specifically to enhance the cooperation of third countries on readmission and return that the EU calls for using ‘a fine balance of incentives and pressure’,99 including through aid conditionalities. IV.  INTERNATIONAL LAW AND THE COOPERATION MEASURES OF THE EUROPEAN AGENDA

As discussed so far, the EU and its Member States make the use of aid conditional on the recipient country actively cooperating in controlling migration flows towards the donor countries. The aid is openly granted on condition that the recipient country prevents departures and readily accepts returnees. Can such a condition be attached to the aid provided? Is such a condition compatible with protection obligations under international law? In relation to Italy, one of the present authors has argued elsewhere that the imposition of such conditions (and the (mis)use of aid deriving from it) is incompatible with national and international law.100 At the national level, such conditions are incompatible with the objectives, laid down in Law 125/20014, to foster human

97  A La Chimia, Tied Aid and Development Aid Procurement in the Framework of EU and WTO Law: The Imperative for Change (Oxford, Hart Publishing, 2013). 98  This link is easily acknowledged in respect of international trade law and competition law—ie, aid donations that cause trade distortion or hamper competition are generally forbidden. See art 10 of the Agreement on Agriculture. 99  On 8 October 2015 the European Council, in its conclusions on the future of the EU return policy related to the European Agenda, regrettably welcomed ‘the introduction of the more-for-more principle as a way to increase the EU’s and Member States’ leverage. A fine balance of incentives and pressure should be used to enhance the cooperation of third-countries on readmission and return’. See: www. consilium.europa.eu/en/press/press-releases/2015/10/08-jha-conclusions-return-policy/. 100  La Chimia (n 97).

Symposium—Davitti and La Chimia 153 rights through development aid policies, with the Italian Constitution, which specifically provides for the respect and protection of human rights, and with the many international and regional human rights instruments signed by Italy. Aid that is used to perpetrate human rights abuses is clearly illegal and violates national law (both ordinary and constitutional law). Indeed, the Italian Constitution places the respect, protection and promotion of human rights at the very heart of the Italian legal system.101 Therefore, all public authorities (and hence Italian aid agencies) are bound to respect the Italian Constitution and its principles (an unconstitutional act can be annulled by the Italian Constitutional Court). When aid projects are implemented, they have to fulfil these higher constitutional principles.102 The existence of a formal link between the implementation of aid projects (in Libya or elsewhere) and migration policies which breach human rights would therefore arguably invalidate the aid projects by breaching the Constitution.103 As outlined in section I, the ‘development’ measures of the European Agenda mirror very closely the Italian ‘more for more’ approach in its use of development for the control and externalisation of migration. In fact, the European Agenda introduces a series of plans aimed at ‘addressing the main root causes of irregular and forced migration’: these include supporting third countries in ‘developing their own solutions to better manage their borders’ and in ensuring the prompt readmission and return of their nationals; and the development of ‘reception’ and asylum system capacities in transit countries and in third countries closer to the countries of origin. Most importantly, many of these measures are accompanied by the diversion of development funds to be used to ‘support’ relevant countries in their fight against trafficking and smuggling. In particular, the cooperation agreements concluded under the European Agenda unequivocally seal the nexus between migration, development and security policies.104 The above measures have been described by Hathaway and Gammeltoft-Hansen as examples of ‘cooperation-based non-entrée’, mainly ‘predicated on international cooperation, with deterrence occurring in the territory, or under the jurisdiction, of the home state or a transit country’.105 As this article has explained so far, from the perspective of development aid, the adoption and implementation of these measures is largely made possible by taking advantage of a lack of international aid

101  A combined application of art 2 (respect of human rights) and art 10 (compliance with international law, ie, Italy must respect all international agreements to which Italy is a member, including all the human rights instruments and those relating to refugee law) of the Italian Constitution would enable this conclusion. Indeed, arts 2 and 11 are said to provide the constitutional foundation for a strong human rights protection in the Italian legal system. 102  If conflicts exist between foreign policy interests and human rights, then those conflicts should be resolved in favour of human rights. 103  In the specific case of aid to Libya, given the decision in Hirsi (n 26), the Italy-Libya agreement (n 65) should be deemed unlawful to the extent that it subordinates and links the granting of aid money to cooperation in migration control measures resulting in international wrongful acts. 104  This is also explicitly confirmed in the Joint Communication to the European Parliament and the Council, ‘Addressing the Refugee Crisis in Europe: The Role of EU External Action’, JOIN(2015) 40, 12. 105  Hathaway and Gammeltoft-Hansen (n 16) 248. See the section ‘Jurisdiction in evolution’, 257 ff, for circumstances in which non-entrée measures may lead to the establishment of jurisdiction (through attribution, shared responsibility or through aiding or assisting) for violations of international law.

154  The Irish Yearbook of International Law 2015 regulation, and a wilful rejection of any existing framework for international assistance and cooperation. Bearing in mind the adverse implications that a return to explicit political conditionalities would have on various aspects of development aid (see sections II and III above), these ‘development’ policies are not only politically and ethically untenable but also, in many ways, incompatible with international law. This section argues in particular that, under certain circumstances, the EU and its Member States may be liable for aiding or assisting third countries in breaching international law during the implementation of their cooperation agreements. As contended by Hathaway and Gammeltoft-Hansen: [A] state which takes steps such as providing maritime patrol vessels or border control equipment, which seconds border officials, or which shares relevant intelligence or directly funds migration control efforts that assist another country to breach its non-refoulement or other protection obligations is taking action that can fairly be characterized within the ambit of aiding or assisting.106

For the purposes of this article, the key question that needs to be addressed is whether liability under international law ensues when the development aid provided by the EU and its Member States as part of the cooperation agreements of the European Agenda is used by third countries to implement migration control measures in breach of international law. In order to answer this question, the next section first examines the applicable legal framework, focusing primarily on the right to seek asylum and the principle of non-refoulement.107 The section then considers whether the EU and its Member States can be liable for aiding or assisting another state’s wrongful conduct through the provision of aid funds for migration control. A.  The Right to Seek Asylum and the Principle of Non-refoulement The right to seek asylum pertains to both international refugee law and international human rights law; fundamentally, it ensures that people fleeing persecution are provided with access to international protection, in particular access to mechanisms aimed at ascertaining if a person is entitled to such international protection. The starting point for the existence of this right is Article 14 of the Universal Declaration of Human Rights (UDHR), which establishes that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’. Current EU Member States, in their capacity as members of the United Nations General Assembly, would have voted in favour of the UDHR back in December 1948, thus endeavouring ‘to

106 

ibid 279. This discussion supports the argument that the wrongful act committed by the third country ‘would have been wrongful had it been committed by the assisting State itself’ See Commentary to Article 16 of the International Law Commission’s ‘Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries’ (2001) UN Doc A/56/10, GAOR, 56th Session, Supp No 10 (hereinafter the ‘ILC Commentaries’) 66, para 3, available at: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf. See also relevance of the right to leave in the context of ‘pull-back’ measures under the cooperation agreements discussed. See Markard (n 25). 107 

Symposium—Davitti and La Chimia 155 achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms’. The right to seek asylum, reiterated in the 1967 Declaration on Territorial Asylum and in the 1993 Vienna Declaration on Human Rights and Programme of Action, does not per se create a duty upon states to ‘grant asylum’. Crucially, however, it does create an obligation, vested upon states, to assess asylum applications. Therefore, states, as a minimum, ‘have a duty under international law not to obstruct the right to seek asylum’ (emphasis added).108 The right to seek asylum is considered an emerging norm of customary international law and, as such, it supports the existence of a right to apply for asylum when fleeing persecution109—including a right to seek and apply for asylum in the EU and a related duty of EU Member States not to systematically prevent this from happening. The duty to provide those fleeing persecution with a means for accessing international protection mechanisms is crystallised in the 1951 Refugee Convention, which requires signatories to implement refugee status determination procedures in order to confirm whether a person meets the criteria of the definition of a refugee and is therefore entitled to international protection. This transforms the person’s status from that of a de facto refugee into that of a de jure refugee.110 It is important to reiterate that, under the Refugee Convention, a person automatically becomes a refugee the moment in which she meets the definition criteria (Article 1A), not when her status is confirmed by a state through an asylum determination ­process.111 Therefore, international refugee law already establishes that states are under an obligation to respect the rights of asylum seekers, which applies ‘as soon as a refugee comes under a state’s jurisdiction, in the sense of being under its control or authority’.112 This partially explains, of course, the efforts recently taken by many countries, including EU Member States, to ensure that de facto refugees never reach their borders, so as to circumvent their obligation to extend international protection to them. However, states are under a clear obligation, established in international refugee law and in international human rights law, not to refoul asylum seekers— and non-refoulement is now widely confirmed as a principle of customary international law,113 specifically, as a complementary element of the absolute prohibition against torture. This has also been consistently reaffirmed at the European level by the European Court of Human Rights (ECtHR)—a point to which we return below. The principle of non-refoulement and the right to seek asylum are directly relevant to the plans put forward in the European Agenda, as they result in externalising migration controls outside of the EU and, de facto, in an attempt to circumvent existing legal obligations under the Refugee Convention and under international

108 

Goodwin-Gill and McAdam (n 35) 358. A Edwards, ‘Human Rights, Refugees, and the Right “to Enjoy” Asylum’ (2005) 17 International Journal of Refugee Law 293, 300. 110 JC Hathaway and M Foster, The Law of Refugee Status, 2nd edn (Cambridge, Cambridge University Press, 2014) 25. 111  ibid 26. 112  ibid. See also Hathaway and Gammeltoft-Hansen (n 16). 113  Goodwin-Gill and McAdam (n 35) 208. 109 

156  The Irish Yearbook of International Law 2015 human rights law outlined in this section. Interception at sea, rejection at the border and preventing borders being reached, as well as agreements to shift migration control duties to transit countries, directly contravene the right to seek asylum and are contrary to states’ obligations to implement the Refugee Convention by providing asylum processing mechanisms which respect due process guarantees.114 The externalisation of border control also breaches the prohibition against refoulement, enshrined in Article 33 of the Refugee Convention, in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and also in Article 7 ICCPR.115 A state’s primary non-refoulement obligation under Article 33 of the Refugee Convention is to ensure that a person is not returned to a place where she fears persecution on one of the Convention grounds (as per Article 1A definition, persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion). This obligation is further complemented by specific international human rights law guarantees under the CAT (Article 3) and the ICCPR (Article 7) and under customary international law. These guarantees expand the protection against non-refoulement to anybody who might be at risk of torture, not only those fearing persecution on the basis of one of the Convention grounds listed above. Thus, when states prevent people from reaching their borders and from accessing an effective refugee status determination system, they fail to adequately implement their Convention obligations and their obligations under international human rights law (including customary law obligations), since they substantially fail to ensure that these persons are not refouled. Similarly, when states return people to any country in which they may face torture or any other inhuman or degrading treatment, they are in breach of their non-refoulement obligations. This is also the case when people are returned to any territory where they risk being further returned to a country in which they will risk such treatment (eg, if returned to a country which is de facto incapable of processing asylum claims effectively or in which asylum seekers face inhuman or degrading treatment while their asylum claims are under consideration). Now, let us consider the above in light of the cooperation measures in the European Agenda. There is a real risk, for instance, that any of the ‘reception’ centres opened in third countries will turn into centres for the extraterritorial processing of asylum claims and/or centres for the indefinite detention of people returned under the cooperation agreements of the European Agenda. If we look at the conditions in which refugees have been kept in detention centres in North Africa,116 mostly with the support of EU Member States, it is apparent that the use of EU development funds envisioned in the European Agenda may result in violations of the right to seek

114 

UNHCR Executive Committee No 82, ‘Safeguarding Asylum’ (1997) para ii. Lauterpacht and D Bethlehem, ‘The Scope of the Principle of Non-refoulement: Opinion’ in E Feller et al (eds), Refugee Protection in International Law (Cambridge, Cambridge University Press, 2003) 163. 116 Global Detention Project, ‘The Detention of Asylum Seekers in the Mediterranean Region’ (April 2015), available at: www.globaldetentionproject.org/the-detention-of-asylum-seekers-in-themediterranean-region-2. 115 E

Symposium—Davitti and La Chimia 157 asylum and of the absolute prohibition against refoulement. Furthermore, let us look to the EU adoption of the EU-Turkey Joint Action Plan. As clarified by the UNHCR on the same day on which the agreement was sealed, the plan must respect international law, which means that: [P]eople seeking international protection will have an individual interview on whether their claim can be assessed in Greece, and the right to appeal before any readmission to Turkey. This would also entail that once returned, people in need of international protection will be given the chance to seek and effectively access protection in Turkey. We now need to see how this will be worked out in practice, in keeping with the safeguards set out in the agreement—many of which at present are not in place.117

The Joint Action Plan contains reassurances that international law and EU law will be respected. At the same time, however, it also states that ‘all new irregular migrants crossing from Turkey into Greece as from 20 March 2016 will be returned to Turkey’, a statement which clearly contradicts the prohibition of collective expulsion of aliens as part of the principle of non-refoulement, as well as in Article 4 of Protocol No 4 of the European Convention on Human Rights (ECHR) and in Article 19(1) of the Charter of Fundamental Rights of the European Union. At this point, it is important to note that the ECtHR has repeatedly affirmed the customary international law nature of non-refoulement in cases which are directly related to asylum seekers. In the landmark case of Hirsi,118 which concerned the interception at sea and return of people to Libya resulting from the Italy–Libya bilateral agreements discussed in section II, the ECtHR found Italy to be in breach of the ECHR prohibition of collective expulsion (Article 4 of Protocol No 4 ECHR) and of the guarantees against refoulement (Article 3). More specifically, in relation to bilateral agreements on migration, the Court found that: Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya. Even if it were to be assumed that those agreements made express provision for the return to Libya of migrants intercepted on the high seas, the Contracting States’ responsibility continues even after their having entered into treaty commitments subsequent to the entry into force of the Convention or its Protocols in respect of these States.119

The ECtHR also held that ‘the existence of domestic laws [in Libya] and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities’.120 Therefore, Italy could not reasonably rely on the existence of such laws, or on Libya’s commitment in its bilateral agreement with Italy, when it knew or ought to have known that the people returned to Libya were

117  See ‘UNHCR on EU-Turkey Deal: Asylum Safeguards Must Prevail in Implementation’, 18 March 2016, available at: www.unhcr.org/uk/news/press/2016/3/56ec533e9/unhcr-eu-turkey-deal-asylum-safeguards-must-prevail-implementation.html. 118  Hirsi (n 26). 119  ibid para 129. 120  Ibid para 128.

158  The Irish Yearbook of International Law 2015 at risk of ill-treatment.121 The findings in Hirsi are equally applicable to the cooperation agreements already concluded and planned under the European Agenda. Similarly, the fundamental principle of non-refoulement and the prohibition against collective expulsions were reaffirmed in the case of MSS v Belgium and Greece.122 In the Grand Chamber’s judgment in the recent case of Khlaifia and Others v Italy,123 the Court also found that the Italy-Tunisia bilateral agreement of April 2011 could not constitute ‘a clear and foreseeable legal basis for the applicants’ detention’. In this instance, the Court did not find a violation of Article 4 of Protocol No 4 ECHR (prohibition against collective expulsion), since the applicants had been given an opportunity to make arguments against their expulsion to the competent authorities, but had failed to do so. It would have been useful to hear the Court’s opinion on the scope and implications of these types of bilateral agreements, but unfortunately the Court considered it unnecessary ‘to address the question whether, as the Government argued, the April 2011 agreement between Italy and Tunisia, which has not been made public, can be regarded as a “readmission” agreement within the meaning of the Return Directive, and whether this could have implications under Article 4 of Protocol No. 4’.124 In relation to the Joint Action Plan, the EU premised the agreement on the fact that applications for asylum in Greece can be found to be inadmissible on the grounds that Turkey can be considered a ‘safe third country’. The EU refers in particular to Article 38 of the EU Asylum Procedures Directive,125 which defines as a ‘safe third country’ any state in which: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) there is no risk of serious harm as defined in Directive 2011/95/EU; (c) the principle of non-refoulement in accordance with the Geneva Convention is respected; (d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.126

121  122 

ibid para 131. MSS v Belgium and Greece, ECHR Grand Chamber, App No 30696/09, judgment of 21 January

2011. 123  Khlaifia and Others v Italy, ECHR Grand Chamber, App No 16483/12, judgment of 15 December 2016, paras 102–3. 124  ibid, para 255. See a critique of the decision by S Zirulia and S Peers, ‘A Template for Protecting Human Rights during the “Refugee Crisis”? Immigration Detention and the Expulsion of Migrants in a Recent ECtHR Grand Chamber Ruling’, 5 January 2017, available at: http://eulawanalysis.blogspot. co.uk/2017/01/a-template-for-protecting-human-rights.html. For further ECHR decisions on collective expulsion of aliens, see, eg, Sharifi and Others v Italy and Greece, ECHR Chamber, App No 16643/09, judgment of 21 October 2014; Georgia v Russia (I), ECHR Grand Chamber, App No 13255/07, judgment of 3 July 2014; and Čonka v Belgium, ECHR Chamber, App No 51564/99, judgment of 5 February 2001. 125  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast). 126  ibid art 38(1).

Symposium—Davitti and La Chimia 159 In March 2016, following damning reports on the risk of ill-treatment to which people returned to Turkey were exposed,127 the UNHCR recommended urgent action to ensure that the situation on the ground met international legal standards,128 as well as the provisions of the EU Asylum Procedures Directive. Amongst the concerns raised in the reports, there is the fact that Turkey still upholds the geographical limitation of the 1951 Refugee Convention, which in turn means that nonEuropean refugees are not entitled to international protection.129 Furthermore, the Joint Action Plan does not contain necessary provisions to systematically ensure that refugee status is individually determined in an appropriate manner before removal, as established in both international refugee law and international human rights law. As mentioned in section II, according to the Commission itself,130 and to scholars who support the Joint Action Plan as a legally acceptable solution,131 Article 38 only requires that returnees be afforded protection equivalent to the 1951 Refugee Convention (which would not necessarily require its ratification without geographical limitations). Whilst there are credible reports that circumstances for refugees in Turkey have deteriorated during the second half of 2016 (see section II), the Commission blames the slow pace of the Greek Asylum Service and the Greek Appeals Authority for hampering ‘the goal of ensuring returns’ to Turkey.132 Based on this article’s analysis, the Joint Action Plan is better understood as part of a continued trend (further entrenched in the European Agenda) of EU measures aimed at externalising migration control, whereby the EU and its Member States systematically rely on cooperation agreements with third countries. These agreements entail the disbursement of aid funds conditional on third countries’ cooperation in controlling migration towards the EU. Crucially, the provision of such funds may result in the liability of the EU and its Member States for aiding or assisting third countries in committing breaches of international law. As submitted by Hathaway and Gammeltoft-Hansen, many contemporary cooperation-based non-entrée measures can be challenged on the basis of recent developments in the law of jurisdiction and of shared responsibility. But there are still circumstances in which a state’s involvement may not be sufficient to establish jurisdiction, even if we understand jurisdiction within the broader, expanded conceptualisation that they propose.133 When examining the responsibility of the

127 

See, eg, the reports by Business and Human Rights Resource Centre and BBC Panorama (n 76). ‘UNHCR on EU-Turkey Deal’ (n 117). 129  The Joint Action Plan only envisages the ‘one-for-one’ resettlement of Syrian refugees (one refugee to be resettled in an EU Member State for one person returned to Turkey). 130  Letter of 5 May 2016 (n 74). 131 See Thym (n 73). See also K Hailbronner, ‘Legal Requirement for the EU-Turkey Refugee Agreement: A Reply to J Hathaway’ (2016) and Hathaway’s rejoinder ‘Taking Refugee Rights Seriously: A Reply to Professor Hailbronner’, available at: http://verfassungsblog.de/taking-refugee-rightsseriously-a-reply-to-professor-hailbronner. 132 European Commission, ‘Third Report on the Progress Made in the Implementation of the EU-Turkey Statement’ (28 September 2016) COM(2016) 634 final, 4. 133 For a discussion of the traditional and expanded notion of jurisdiction, see Hathaway and Gammeltoft-Hansen (n 16) 257 ff. See also A Nollkaemper and D Jacobs (eds) Distribution of Responsibilities in International Law (Cambridge, Cambridge University Press, 2015). However, see Jackson’s suggestion to expand the interpretation of the Soering criteria (n 16). 128 

160  The Irish Yearbook of International Law 2015 EU and its Member States for such breaches, for instance, it is apparent that the measures adopted by third countries whilst implementing their bilateral agreements with EU Member States cannot be easily challenged under the law of jurisdiction. EU involvement, eg, when providing training, equipment, liaison officers and advisers, would often not be sufficient to establish jurisdiction, since third countries rarely act under the direction and control of EU authorities.134 Lack of jurisdiction, however, does not necessarily mean that the EU and its Member States cannot be held responsible for the breaches of international law resulting from the implementation of their cooperation agreements with third countries, especially when aid is made conditional on the implementation of effective migration control measures. According to Hathaway and Gammeltoft-Hansen, ‘there is an emerging consensus that international law will hold states responsible for aiding or assisting another state’s wrongful conduct’.135 According to Article 16 of the International Law Commission’s Articles on State Responsibility, responsibility for aiding or assisting an internationally wrongful act by another state will be found if ‘(a) [The aiding or assisting] state does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State’.136 According to the commentary to Article 16, aid or assistance must be given ‘with a view to facilitating the wrongful act, and must actually do so’.137 Where our argument differs from that of Hathaway and Gammeltoft-Hansen is in considering the purposes for which aid or humanitarian assistance is given to third countries under the European Agenda. In fact, based on the commentary to Article 16, they argue that state liability ‘should not follow where aid or assistance given in good faith is subsequently misused by another country—for example, a state providing development aid is not responsible if, unbeknownst to it, that aid is used to implement border controls that lead to the refoulement of refugees’.138 Although the interpretation of the requirements of Article 16 remains controversial, for the purposes of this article, it is possible to argue that the EU and its Member States, when providing funds to third countries for the purposes of migration control, do not do so entirely in good faith. EU documents clearly state that ‘a fine balance of incentives and pressure’139 will be used to obtain third states’ cooperation on migration control. Civil society’s demonstrations against the corruption and coercion underlying these agreements140 call into question the proclaimed ‘good faith’ of the funds promised

134 Hathaway and Gammeltoft-Hansen (n 16) 276–77. However, see Milanovic’s argument on ‘effective overall control’: M Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford, Oxford University Press, 2011) 263. 135  Hathaway and Gammertoft-Hansen (n 16) 277. 136  Articles on State Responsibility, art 16. 137  ILC Commentaries (n 107) 66, para 5. 138  Hathaway and Gammertoft-Hansen (n 16) 280. 139  See statement by the European Council on 8 October 2015 (n 99). 140  See Sune Engel Rasmussen, ‘EU Signs Deal to Deport Unlimited Numbers of Afghan Asylum Seekers’ The Guardian (3 October 2016), available at: https://www.theguardian.com/global-development/ 2016/oct/03/eu-european-union-signs-deal-deport-unlimited-numbers-afghan-asylum-seekersafghanistan; and RFI Afrique, ‘Le collectif the migrants “Mains propres” occupe le consulat de Mali à Paris’, 31 December 2016, available at: www.rfi.fr/afrique/20161231-consulat-mali-paris-occupemigrants-mains-propres-ue-polemique.

Symposium—Davitti and La Chimia 161 to third countries. Most importantly, the conditionalities attached to the release of funds and the lack of mechanisms to ensure that money is genuinely used for development purposes suggest that the EU and its Member States have knowledge that the funds provided will aid or assist an internationally wrongful act by a third country.141 As examined in this section, most of the migration control measures adopted in light of the cooperation agreements of the European Agenda would breach the right to seek asylum and the prohibition against refoulement, and would thus represent a wrongful act if committed by the EU or any of its Member States. CONCLUSION

This article has analysed the ‘development’ policies enshrined in the European Agenda and has critically evaluated the way in which aid is increasingly being used for the purposes of migration control. It highlighted the need to acknowledge the serious implications of associating development aid with migration policies predominantly aimed at halting migration flows from countries of origin and transit. In doing so, it argued that this (mis)use of aid not only undermines the primary objectives of development, but may also trigger responsibility of the EU and its Member States for aiding or assisting internationally wrongful acts committed by the aid recipients. By reviewing the cooperation agreements signed between Italy and Libya since 2008, this article has outlined the similarities of these agreements with the current policies enshrined in the European Agenda, thus warning against the much-hailed approach of ‘more for more’. The risks of this approach are apparent, especially in terms of distorting the fundamental meaning of development aid and the ways in which it is defined and allocated. Most importantly, the measures related to the cooperation agreements of the European Agenda are incompatible with the international protection obligations vested upon the EU and its Member States. This incompatibility, in turn, further compromises the status of the aid measures envisaged in the European Agenda, since development policies which contribute to human rights violations are to be considered in direct breach of international law and, as such, should be invalidated. As argued in this article, donors’ refusal to acknowledge any legally binding obligation to grant aid, and/or on the modality of granting aid, has led to a system of aid governance based on donors’ priorities and interests, where aid commitments are not driven by recipients’ needs, but are exposed instead to the variability and mutability of donors’ national economic and political priorities. This has enabled the emergence of the ‘more for more’ approach delineated in the European Agenda, whereby the EU unashamedly makes ‘development’ aid conditional on the effective reduction of migration flows. The EU promotes a ‘fine balance of incentives and pressure’ to persuade third countries to cooperate on ‘pullbacks’, re-admission and return.142 It responds to the charges of illegality by relying on the concept of ‘safe 141  HP Aust, Complicity and the Law of State Responsibility (Cambridge, Cambridge University Press, 2013) 244–49. 142  See statement by the European Council on 8 October 2015 (n 99).

162  The Irish Yearbook of International Law 2015 third country’, even when factual circumstances on the ground appear to indicate a risk of direct or indirect refoulement for the people returned. Thus, under these cooperation agreements, third-country partners agree, for instance, to ‘take any necessary measures to prevent new sea or land routes for illegal migration opening’ to the EU.143 If it is true that there are no explicit legally binding rules that directly discipline aid, it is also true that over the past 60 years, states have acknowledged the existence of legal obligations that do have an impact on the way in which aid can and should be administered and distributed. The notion that aid is a charitable act and that donors are therefore free to behave as they like is no longer tenable. If aid is a new weapon to be deployed in the so-called war against illegal migration, this use should be openly recognised and problematised, and as such it should be scrutinised against the existing legal framework of international protection so as to ascertain responsibility for the internationally wrongful acts committed in the service of the EU.

143 

See EU-Turkey Statement (n 19).

Correspondent Reports

164 

Human Rights in Northern Ireland 2015 BRICE DICKSON*

INTRODUCTION

D

URING 2015, the basic structure of the legal framework for the protection of human rights in Northern Ireland remained unaltered. The Northern Ireland Assembly retained its power to enact legislation on a wide variety of matters, including human rights, equality, criminal justice and employment law, while the courts of Northern Ireland, as in previous years, had to deal with human rights issues on an almost daily basis. The following account of the year’s developments follows the format of that adopted for the 2014 report.1 It can be usefully supplemented by consulting the 87-page 2015 Annual Statement on Human Rights in Northern Ireland issued by the Northern Ireland Human Rights Commission (NIHRC) in December 2015.2 When launching Amnesty International’s Annual Report 2015–16,3 Patrick Corrigan summed up the situation by saying: ‘The last year has been marked by failure to deliver on key human rights issues facing Northern Ireland.’ These failures related to the absence of an agreement between politicians as to how to deliver new mechanisms for investigating conflict-related deaths, the lack of a marriage equality law for gays and lesbians and the continuing refusal to reform Northern Ireland’s strict laws on abortion.4 At the United Nations (UN) and the Council of Europe, the only UK-wide report issued by a treaty-monitoring body in 2015 was that by the UN’s Human Rights Committee on the UK’s compliance with the International Covenant on Civil and Political Rights.5 The Committee on the Rights of the Child, the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Racial Discrimination were all due to report on the UK in 2016 and with that in mind the NIHRC made submissions to each of them during 2015.6

* 

Professor, Queen’s University Belfast. See ‘Human Rights in Northern Ireland 2014’ (2014) Irish Yearbook of International Law 165. 2  Available at www.nihrc.org/uploads/publications/NIHRC_Annual_Statement_2015.pdf. 3  Available at www.amnesty.org/en/latest/research/2016/02/annual-report-201516. 4 See www.amnesty.org.uk/press-releases/northern-ireland-criticised-failures-dealing-past-and-abortion-law-amnesty-global. 5  CCPR/C/GBR/CO/7 (17 August 2015) available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGBR%2fCO%2f7&Lang=en. 6  For details, see www.nihrc.org/publication/category/Treaty-and-international-work. 1 

166  The Irish Yearbook of International Law 2015 I.  THE RIGHT TO LIFE

In the year ending 31 March 2016, there were just three security-related deaths in Northern Ireland, the same number as in 2014–15.7 On average, there have been only two or three such deaths per year during the last 10 years. While each death is a tragedy for the family concerned and a horrific crime, the level of fatalities is significantly lower than in previous times. Between 1996 and 2005, the average number of security-related deaths per calendar year was 17 and between 1986 and 1995, it was 72. One of the three victims in 2015 was Paul McCauley, who had been severely beaten by a crowd of loyalists in 2006 and remained in a vegetative state until his death in June 2015. The other two killings were particularly controversial because there were strong suspicions that they had been perpetrated by members of the Irish Republican Army (IRA), which was supposed to have ceased all military operations. Gerard ‘Jock’ Davison was shot as he walked to work in the Markets area of Belfast in May and three months later, Kevin McGuigan was shot outside his home in the nearby Short Strand area. Both victims had previously been members of the IRA and rumours were rife that old internal scores were being settled. The deaths precipitated a crisis at the Northern Ireland Assembly, where unionist politicians in particular were very unhappy that violent republicanism had apparently reared its head again. Four government ministers representing the Democratic Unionist Party (DUP) resigned their seats on 10 September, but in order to avoid causing a total collapse of the Executive and further elections, over the next five weeks the ministers were reappointed on several occasions, only to immediately resign again.8 The First Minister, Peter Robinson, stood aside for the duration of the period, with Arlene Foster standing in as acting First Minister as well as retaining her role as Minister of Finance. What brought all the ministers back to office on a permanent basis was the reassurance provided by the report of a specially appointed panel comprising police and security officers, which had been asked by the UK government to assess the structure, role and purpose of paramilitary groups in Northern Ireland.9 It concluded that the leadership of the IRA remained committed to the peace process and was not involved in targeting or conducting attacks against the state or its representatives.10 A further panel was established in December 2015 to come up with recommendations within six months for a strategy that would lead to the actual as opposed to self-declared disbandment of all paramilitary groups.11 7  Police Recorded Security Situation Statistics 2015/16, available at www.psni.police.uk/globalassets/ inside-the-psni/our-statistics/security-situation-statistics/2016/may/annual-security-situation-statisticsreport-2015-16.pdf. A fourth death, that of Brian McIlhagga in January, may also have been securityrelated; it is still unclear whether he was the victim of a loyalist punishment attack which was not intended to be fatal: see www.cain.ulst.ac.uk/issues/violence/deaths2015draft.htm. 8  For the details, see www.bbc.co.uk/news/uk-northern-ireland-34583021. 9 See www.gov.uk/government/uploads/system/uploads/attachment_data/file/469548/Paramilitary_Groups_in_Northern_Ireland_-_20_Oct_2015.pdf. 10 ibid para 14. For the range of political reaction to the report, see www.bbc.co.uk/news/ uk-northern-ireland-34582642. 11 See The Fresh Start Panel Report on the Disbandment of Paramilitary Groups in Northern Ireland (June 2016), available at www.northernireland.gov.uk/sites/default/files/publications/newnigov/The%20

Correspondent Reports—Dickson 167 More generally, the homicide rate in Northern Ireland rose in 2015–16. There were 21 murders, five more than in 2014–15.12 Oddly, there were no offences of manslaughter recorded.13 In 2015–16, there was just one homicide resulting from domestic abuse, down from seven in 2014–15 and from an average of six per year since 2010–11.14 This may be a statistical blip, but it is a welcome one and may be due to the more effective dispersal of the message that domestic abuse is totally unacceptable in any society. As regards fatalities on the roads, there were 74 in 2015, down from 79 the previous year.15 Almost the exact same number of people were seriously injured on the roads as in the previous year: 711, just one more than in 2014. In the prisons there were two deaths and a further four people died after having been recently released from prison.16 The deaths in prison were both at HMP Maghaberry, one of them being from natural causes and the other a suicide. Three reports were issued by the Prisoner Ombudsman into deaths occurring in previous years.17 They contained 42 recommendations, 17 for the Northern Ireland Prison Service and 25 for the South-Eastern Health and Social Care Trust, which has responsibility for the provision of healthcare in all of Northern Ireland’s prisons. The Prisoner Ombudsman complained of the Trust’s slowness in making material available during investigations of deaths and checking the factual accuracy of draft reports sent to it by the Ombudsman.18 The Ombudsman’s own role was not made statutory during 2015, as had been hoped, but a provision to that effect was included in the Justice Act (NI) 2016.19 In December 2015, the UK Supreme Court issued an important judgment on the extent of the duty to conduct an effective investigation into a death. In R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs,20 the key question was whether the UK government was obliged to hold a public inquiry into the killing

Fresh%20Start%20Panel%20report%20on%20the%20disbandment%20of%20paramilitary%20 groups.pdf. 12  Trends in Police Recorded Crime in Northern Ireland 1998/99 to 2014/15, available at www.psni. police.uk/globalassets/inside-the-psni/our-statistics/police-recorded-crime-statistics/documents/police_ recorded_crime_in_northern_ireland_1998-99_to_2014-15.pdf. 13  Police Recorded Crime in Northern Ireland 2015/16, available at www.psni.police.uk/globalassets/ inside-the-psni/our-statistics/police-recorded-crime-statistics/2016/march/monthly-crime-bulletin-aprmar-15_16.pdf. 14  Trends in Domestic Abuse Incidents and Crimes Recorded by the Police in Northern Ireland 2004/05 to 2015/16, Table 3.2, available at www.psni.police.uk/globalassets/inside-the-psni/our-statistics/domestic-abuse-statistics/domestic-abuse-incidents-and-crimes-in-northern-ireland-2004-05-to-2015-16.pdf. 15  Police Recorded Injury Road Traffic Collision Statistics: 2015 Key Statistics Report, available at https://www.psni.police.uk/globalassets/inside-the-psni/our-statistics/road-traffic-collisionstatistics/2015-calendar-year/psni-2015-rtc-key-statistics-published-24.3.16.pdf. 16  Annual Report of the Prisoner Ombudsman for Northern Ireland 2015–16, 22, available at www. niprisonerombudsman.gov.uk/publications/Prisoner_Ombudsman_Annual_Report_2015-16_(for_ print).pdf. 17  ibid 22. 18  ibid 23. 19  Part 2 (ss 33–47), not in force at the time of writing. The office will be renamed ‘Prison Ombudsman’. 20  R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2016] AC 1355.

168  The Irish Yearbook of International Law 2015 of 24 individuals by British soldiers while they were deployed in Malaya in 1948. Three possible justifications for such an obligation were: first, that it was imposed by Article 2 of the European Convention on Human Rights (ECHR); second, that it was imposed by customary international law; and, third, that it was imposed by the English law on judicial review. The first justification was rejected by each of the five Justices. Lords Neuberger, Mance and Hughes were content to adopt the rule laid down by the Grand Chamber of the European Court of Human Rights21 that the duty to conduct an effective investigation does not exist if the deaths occurred more than 10 years before the date on which the state otherwise became liable to conduct an investigation, and the Justices took that date to be January 1966, when individuals in the UK first acquired the right to lodge a petition against the UK government in Strasbourg. Lord Kerr refused to specify what the relevant date was, but was convinced that, whatever it was, too much time had elapsed since the deaths to require an Article 2-compliant investigation. Lady Hale thought the relevant date was September 1953, when the ECHR came into force for the UK internationally, thereby allowing other governments to lodge inter-state applications against the UK in Strasbourg, but she went on to hold that Article 2 did not oblige a state to go as far as holding a public inquiry into a death. The second suggested justification for imposing a duty on the state to investigate the deaths was also rejected, since none of the Justices was convinced (Lord Kerr dubitante) that there was yet a positive obligation under customary international law to hold an inquiry into killings perpetrated by state representatives or that any such obligation had been incorporated into the common law. As regards the third justification, Lords Neuberger, Mance and Hughes did not think that the English law on judicial review had yet embraced the doctrine of proportionality, which was the only guise under which judicial review could have been sought here, and they stressed that in any event, there was clearly no disproportionality on the facts of the case. Lord Kerr and Lady Hale agreed that a review based on proportionality would probably fail here, but they seemed more open to the doctrine being formally adopted by English law, and Lady Hale even thought that the appellants in this case had good grounds under the traditional Wednesbury principle for seeking judicial review of the government’s decision not to hold an inquiry.22 She might have mentioned (but did not) R (Litvenenko) v Secretary of State for the Home Department,23 where the Divisional Court quashed the Home Secretary’s decision not to hold a statutory inquiry into the poisoning of Alexander Litvenenko with polonium in London in 2006.24 When the inquiry which was then set up eventually reported in January 2016, it clearly established that the Russian state had been implicated in the murder. This decision holds potential for families who have not yet

21 See

Janowiec v Russia (2014) 58 EHRR 30 [146]. Using the principle laid down by the Court of Appeal of England and Wales in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 23  R (Litvenenko) v Secretary of State for the Home Department [2014] EWHC 194 (Admin). 24  See www.litvinenkoinquiry.org/files/Litvinenko-Inquiry-Report-web-version.pdf and, for commentary thereon, https://ukhumanrightsblog.com/2016/01/25/litvinenko-when-real-life-is-more-fantasticthan-fiction. 22 

Correspondent Reports—Dickson 169 had the benefit of any meaningful investigation into the death of their loved one in Northern Ireland, especially if there is prima facie evidence to suggest that the state may have somehow been implicated in the killing. Dealing with the Past Virtually no visible progress was made during 2015 on implementing the proposals for dealing with the past in Northern Ireland, which had been included in the Stormont House Agreement (SHA) reached on 23 December 2014.25 Various institutions were to have been established to take matters forward: an independent Historical Investigations Unit to investigate conflict-related deaths and complaints against the police dating from the conflict period, an Independent Commission on Information Retrieval to provide information about deaths to surviving loved ones, and an Oral History Archive, as well as an Implementation and Reconciliation Group, the latter responsible for appointing various academic experts to compile a report on the relevant themes.26 It was the failure to make progress with these plans that led Amnesty International to be so critical of the UK government in its Annual Report for 2015–16.27 The UK government did publish a position paper on a Bill to give effect to the SHA28 and followed this two months later with an implementation plan for the SHA,29 but further progress seemed to stall over whether documents relating to matters of ‘national security’ would be revealed by the government as part of the envisaged information retrieval process. In its Concluding Observations on the UK’s 7th Periodic Report, the UN’s Human Rights Committee urged the government, as a matter of particular urgency, to ensure that effective investigations are conducted to bring to justice perpetrators of human rights violations, especially violations of the right to life.30 With the abolition of the Historical Enquiries Team (HET) within the Police Service of Northern Ireland (PSNI) at the end of 2014 (brought about as a result of a damning inspection of the work of that unit in 2013),31 responsibility for dealing with all conflict-related killings passed to the Legacy Investigations Branch (LIB) of the PSNI, a group which was not anything like as well resourced as the HET and had no special team comprising no current or former officers of the PSNI or of its predecessor, the Royal Ulster Constabulary. Both the UK Parliament’s Joint Committee

25 Available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/390672/Stormont_House_Agreement.pdf. 26  For details, see last year’s report (n 1) 167–68. 27  See n 3 above. 28  See www.gov.uk/government/uploads/system/uploads/attachment_data/file/462888/Policy_Paper_-_ Summary_of_Measures_23_Sept_2015_Final.pdf (September 2015). 29 See www.gov.uk/government/uploads/system/uploads/attachment_data/file/479116/A_Fresh_ Start_-_The_Stormont_Agreement_and_Implementation_Plan_-_Final_Version_20_Nov_2015_for_PDF. pdf (November 2015). 30  CCPR/C/GBR/CO/7 (17 August 2015), para 8(a), available at http://tbinternet.ohchr.org/_layouts/ treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGBR%2fCO%2f7&Lang=en. 31 See www.justiceinspectorates.gov.uk/hmic/publications/hmic-inspection-of-the-historical-enquiriesteam.

170  The Irish Yearbook of International Law 2015 on Human Rights32 and the NIHRC33 issued reports suggesting that work done by the LIB could not satisfy Article 2 ECHR because it would not be seen as sufficiently independent. This remains a moot point, since in a case decided in 2007, the European Court of Human Rights suggested that the PSNI could be seen as a distinct body from the RUC.34 But in more recent jurisprudence resulting from the work of the Iraq Historic Investigations Team in England concerning alleged abuses by British soldiers while operating in Iraq, a more demanding standard of independence seems to have emerged35 and it is possible that in a subsequent case, the European Court will adjust what it previously said about the PSNI’s current status. The advice of the human rights advisor to the Northern Ireland Policing Board takes account of the recent English case law, but the position of the Chief Constable of the PSNI remains that the LIB is sufficiently independent for the purposes of the ECHR. During 2015 there was the usual spate of court cases in Northern Ireland raising the scope of the investigative duty under Article 2. In Brown’s (Patrick) Application, O’Hara J rejected the applicant’s claim that under Article 2 he was entitled to see the information collected by the police relating to the death of his brother in 1978, allegedly at the hands of the state security forces.36 The judge said that the documents were exempt from disclosure under the Freedom of Information Act 2000.37 A similar result was reached in Owens’ (Irene) Application,38 where the sister of a man allegedly murdered in 2010 by the Ulster Volunteer Force (an illegal loyalist paramilitary organisation) was unsuccessful in her attempt to gain access to material relating to the killing which had been considered by the International Monitoring Commission (IMC), a body established by statute39 to monitor the activities of paramilitary organisations and whose archive passed, when the IMC ceased operating in 2011, to the joint control of the UK and Irish governments. In Gribben’s (Sally) Application,40 Weatherup J rejected an application by the sister of Martin McCaughey, who was shot dead by British soldiers in 1990, arguing that the inquest into the death should not have been held with a jury, that evidence about the involvement of certain soldiers in other fatal incidents should have been admitted and that the inquest should have been adjourned to allow one particular soldier to attend. The judge found that overall there had been an effective investigation for the purposes of Article 2.

32  Human Rights Judgments, 7th Report of 2014–15, HL Paper 130, HC 1088 (11 March 2015), paras 3.1–3.8, available at www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13005.htm. 33  Technical Analysis of the Section Dealing with ‘the Past’ Section within the Stormont House Agreement 2014, para 68, available at www.nihrc.org/uploads/publications/Technical_Analysis_of_the_Section_Dealing_with_The_Past_within_the_Stormont_House_Agreement_2014.pdf. 34  Brecknell v UK (2008) 46 EHRR 42. 35  See, eg, Ali Zaki Mousa v Secretary of State for Defence [2011] EWCA Civ 133. 36  Brown’s (Patrick) Application [2015] NIQB 76. 37  See, eg, s 30(1)(a), which exempts from disclosure information held by a public authority if it has at any time been held for the purposes of any investigation which the public authority has a duty to conduct with a view to it being ascertained whether a person should be charged with an offence. 38  Owens’ (Irene) Application [2015] NIQB 29 (Treacy J). 39  Northern Ireland (Monitoring Commission etc) Act 2003 (UK) and the Independent Monitoring Commission Act 2003 (Ire). 40  Gribben’s (Sally) Application [2015] NIQB 51.

Correspondent Reports—Dickson 171 In McConnell’s (Elizabeth) Application, the Court of Appeal upheld Treacy J’s decision that a coroner had not erred in refusing to lift the anonymity order relating to prison officers who gave evidence at an inquest into a man’s death in prison.41 The jury at the inquest had concluded that excessive force by prison officers, their lack of training in aspects of control and restraint, and their failure to comply with their duty of care to prisoners had all contributed to Mr McConnell’s death, but because no particular individual officer or group of officers was identified as having engaged in an unlawful act and the risk to life of each of the officers was still real and immediate, it was not appropriate to lift the anonymity order. In B and Others v PSNI, the High Court in London ruled in December 2015 that seven former soldiers who had been present in Derry during the killings there on Bloody Sunday in 1972 could not be arrested and taken to Northern Ireland for questioning because their travelling and staying in Northern Ireland would ‘lead to some real attendant risk to their lives and personal security’.42 This at first seems an odd conclusion, given that various security measures could easily have been taken to protect the men while travelling to and staying in Northern Ireland, and that, so far as is known, no evidence was presented to the court as to whether any group was planning to attack the soldiers. But the main basis for the decision was the simple one that there was no necessity to arrest these individuals at all since they were each willing to give an undertaking that they would attend an interview under caution at a police station in England and Wales. This is a timely reminder that under the PACE legislation,43 the police may arrest a person only if it is necessary to do so for at least one of a number of reasons, the apposite one here being ‘to allow the prompt and effective investigation of the offence or of the conduct of the person in question’.44 In two further cases, applicants failed to prevent a Sunday newspaper, the Sunday World, from publishing information which, they alleged, would endanger their lives. In McAuley v Sunday Newspapers Ltd, Stephens J refused the applicant an interlocutory injunction to prevent the paper from publishing his name in connection with the murder of Daniel McKay in 2012.45 The judge accepted that there was a real and immediate risk to McAuley’s life, but held that further publication of his name was not likely to add to that risk or to increase his chances of being harmed in some way. And in Fulton v Sunday Newspapers Ltd, Deeny J rejected a claim for damages and an injunction not for defamation, but for breach of Article 2 and harassment under the Protection from Harassment (NI) Order 1997.46 In both of these cases, the judges expressly favoured freedom of the press over the rights of suspected paramilitaries. In the long-running saga which is the search for the truth about the murder of the solicitor Patrick Finucane in 1989, his widow Geraldine failed to persuade Stephens 41  McConnell’s (Elizabeth) Application [2015] NICA 72. See ‘Human Rights in Northern Ireland 2014’ (n 1) 165 and 171. 42  B and Others v PSNI [2015] EWHC 3691 (Admin) [52]; see also [59]–[60]. 43 Police and Criminal Evidence Act 1984 (for England and Wales) and the Police and Criminal Evidence (NI) Order 1989. 44  ibid s 24(5)(e) and art 26(5)(e), respectively. 45  McAuley v Sunday Newspapers Ltd [2015] NIQB 74. 46  Fulton v Sunday Newspapers Ltd [2015] NIQB 100.

172  The Irish Yearbook of International Law 2015 J that the UK government’s decision to hold a review into her husband’s death, rather than a full-scale public inquiry, was a breach of Article 2.47 The case had already been before the European Court of Human Rights, but that court had not called upon the UK government to conduct such an inquiry.48 However the judge did declare that there was a continuing obligation on the UK state to investigate the murder of Mr Finucane and that the information disclosed to the senior lawyer who had conducted the review into the killing49 should be taken into account by the investigators. The review concluded that ‘a series of positive actions by employees of the State actively furthered and facilitated [Patrick Finucane’s] murder and … in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice’.50 In January 2015, the UK government published its own report on the lessons it had learned from the review.51 Summing it up in the House of Commons, Prime Minister David Cameron stated that: [T]he approach of the police and intelligence agencies to handling of Covert Human Intelligence Sources (CHIS) has been completely transformed in the years since the appalling events under consideration in the de Silva Review. Compliance with human rights and other legal obligations has a fundamental place at the centre of activities by the police and intelligence services with the principles of necessity and proportionality now firmly embedded in the culture and systems they apply in their work.52

In August 2015, however, the UN Human Rights Committee reiterated its position that the UK government should ‘consider launching an official inquiry into the murder of Patrick Finucane’.53 Almost as long-running a saga is that relating to the killing of Pearse Jordan in 1992. The family of the deceased who, though a member of the IRA, was unarmed when he was shot dead by a police officer, have been through numerous court procedures in the search for truth as to the killing. As reported last year,54 the Court of Appeal ordered a new inquest to be held into the killing, but in September 2015 it issued its decision on two residual issues that were not dealt with in its earlier judgment.55 The first was whether the coroner had been responsible for any delay in the conclusion of the first inquest, and the Court of Appeal confirmed that he had not. The second was whether the PSNI should have to pay compensation of £7,500 for their part in the delay in the conclusion of the inquest. On this the Court of Appeal ruled that in so-called ‘legacy’ cases, the issue of damages against any public authority

47 

Finucane’s (Geraldine) Application [2015] NIQB 57. Finucane v UK (2003) 37 EHRR 29. Sir Desmond de Silva QC. For his review, published in 2012, see www.gov.uk/government/uploads/ system/uploads/attachment_data/file/246867/0802.pdf. 50  ibid para 115. 51 See www.gov.uk/government/uploads/system/uploads/attachment_data/file/396046/de_Silva_ report_of_patrick_finucane_review_-_report.pdf. 52  Available at www.gov.uk/government/speeches/sir-desmond-de-silvas-report-of-the-patrick-finucane-review-lessons-learnt. 53  See n 30, para 8(e). 54  See ‘Human Rights in Northern Ireland 2014’ (n 1) 169. 55  Jordan’s Application [2015] NICA 66. 48  49 

Correspondent Reports—Dickson 173 for breach of Article 2 ECHR should be dealt with only when the inquest has finally been completed, because only then can the full extent of the delay and the identity of those responsible for it be determined.56 II.  THE RIGHT NOT TO BE ILL-TREATED

In 2015–16, the number of bombing incidents in Northern Ireland increased compared to the previous year, from 36 to 52. However, the number of shooting incidents halved, from 73 to 36, the lowest number since records began in 1969. The overall number of casualties resulting from paramilitary-style attacks decreased from 94 to 72. The drop in paramilitary-style shootings fell from 36 to 14, the lowest level since 2007–08. The numbers of casualties from paramilitary-style assaults remained unchanged from 2014–15, at 58.57 For the second year running, complaints against the police were about 10 per cent lower in 2015–16 than in 2014–15: 3,018 as opposed to 3,369. Of these, 1,239 were complaints of oppressive behaviour, a 15 per cent reduction on 2014–15. They included 10 complaints of serious non-sexual assault, 24 of sexual assault and 591 of other unjustified force or violence. All of these figures were considerably lower than in any of the four previous years.58 On the other hand, more police officers were recommended for prosecution than in any of the four previous years (21 compared with an annual average of 10). The Police Ombudsman’s website does not indicate what kind of allegations these cases related to and no information is provided as to whether previous such recommendations were heeded by the Public Prosecution Service (PPS) and, if so, how many police officers were convicted of criminal offences as a result. In the course of 2015, the Police Ombudsman’s powers were extended, by agreement, to include the investigation of complaints against immigration and customs officials as well as officers of the National Crime Agency operating in Northern Ireland.59 The Police Ombudsman’s website reveals that the police behaved properly in each of eight occasions on which Tasers were used against individuals during 2015.60 This was also the case when police officers used CS spray against a 16-year-old who was acting aggressively and resisting arrest.61 There were no ‘historical reports’ issued by the Ombudsman in 2015, that is, reports into incidents that occurred during the Troubles between 1969 and 1998, but there were several other reports relating to 56  In 2016, a further inquest into the killing of Pearse Jordan took place before Horner J, but he concluded that he was unable to reach a definite view on whether in all the circumstances the use of lethal force by the police had been justified or not: [2016] NIQB 94 and 95. 57 For these statistics, see Police Recorded Security Situation Statistics 2015/16 (n 7) 2 and 6–7. ‘Paramilitary-style shootings and assaults’ is the euphemism employed for ‘punishment’ attacks on individuals, usually young men, who have somehow incurred the wrath of paramilitary organisations. 58  Annual Statistical Bulletin of the Police Ombudsman for Northern Ireland, 2015/16, available at www.policeombudsman.org/PONI/files/81/81bd1220-ce02-401f-b1ab-12502be290c9.pdf, 28, Table 15. 59  Annual Report and Accounts of the Police Ombudsman for Northern Ireland, 2015/16, available at https://policeombudsman.org/PONI/files/5a/5a675012-265f-47e3-adf5-f3c1e8e171b7.pdf, 10. 60  See www.policeombudsman.org/Investigation-Reports. 61 ibid.

174  The Irish Yearbook of International Law 2015 more recent incidents. The Ombudsman found insufficient evidence to support an allegation that if a piece of information given to police had been acted upon, it could have prevented the bomb attack on Constable Peadar Heffron in 2010, in which he lost a leg and suffered other serious injuries, but four police officers were disciplined for failing to adhere to investigation protocols.62 In a separate case, the Ombudsman ruled that it was fortunate no one was killed when police errors led to a failure to identify and warn the target of an imminent bomb attack; three officers were disciplined, although for the two supervisory officers involved, the discipline was of a lower level than that recommended by the Ombudsman.63 The Ombudsman found no evidence that police failed to intervene to stop a sectarian attack in 2009 during which a number of people were injured and one died.64 And he concluded that in 2014, a police officer had been justified in firing an ‘Attenuated Energy Projectile’ (a baton round) at a 17-year-old who was armed with a knife.65 Two officers were disciplined on the back of excessive use of force at a night-time incident in Omagh in 2012.66 An officer who shot a man in 2009 as he fled after abandoning a stolen car was prosecuted for causing grievous bodily harm with intent. He said that he had fired at the man when the latter turned to face him brandishing what appeared to be a gun, but forensic evidence suggested that he actually shot the man as he was climbing a fence with his back turned to the officer. The charges against the officer were later dropped because of the injured man’s conduct in court, but he was then disciplined.67 Also in 2015, the Ombudsman reported that the PSNI’s investigation of Sinn Féin President Gerry Adams for allegedly withholding information about sexual abuse within his family was conducted properly and was not influenced by political considerations.68 Two cases during 2015 reinforced how difficult it can be to challenge a decision by the PPS not to prosecute someone. One of these was Donnelly’s (Bridgin) Application,69 in which the Divisional Court did at least issue a declaration that the PPS had breached its own Code of Practice and its Victims and Witness Strategy when it withdrew charges against two persons whom the applicant alleged had assaulted her. The second case was X’s (A Minor) Application, where leave was denied to judicially review the PPS for refusing to prosecute a 16-year-old boy for the alleged rape of a 14-year-old child.70 62  Vincent Kearney, ‘PSNI Officers Disciplined over Peadar Heffron Bomb Attack Failings’, available at www.bbc.co.uk/news/uk-northern-ireland-35123352. 63 See www.policeombudsman.org/Media-Releases/2015/Fortunate-no-one-died-as-a-result-of-policefailur#sthash.mc0OdAh7.dpuf. 64 See www.policeombudsman.org/Media-Releases/2015/Death-of-Mr-Kevin-McDaid-No-evidenceofficers-fail#sthash.quxMIWXt.dpuf. 65  See www.policeombudsman.org/Media-Releases/2015/AEP-use-justified-against-juvenile-withknife#sthash.Z7onP5m9.dpuf. 66 See www.policeombudsman.org/Media-Releases/2015/Police-officer-disciplined-for-excessive-useof-for. 67  See www.policeombudsman.org/Media-Releases/2015/Officer-disciplined-after-shootingman#sthash.OJ5BHZis.dpuf. 68  See www.policeombudsman.org/Media-Releases/2015/Police-not-influenced-by-political-considerations. 69  Donnelly’s (Bridgin) Application [2015] NIQB 56. 70  X’s (A Minor) Application [2015] NIQB 52.

Correspondent Reports—Dickson 175 Potential victims of violent crimes benefited from the enactment of provisions in the Justice Act (NI) 2015 allowing for the making of Violent Offences Prevention Orders71 and Domestic Violence Prevention Notices and Orders.72 The former (VOPOs) can last for between two and five years and can be issued to a person who has been convicted of a violent offence. They set out such prohibitions or requirements as the court making the order considers necessary to protect the public from the risk of serious violent harm caused by the offender. They can be issued even in relation to people who have been convicted abroad and interim orders can be issued pending a hearing into the making of a main order. Those who breach the terms of a VOPO can be imprisoned and/or fined. Domestic Violence Prevention Notices and Orders are comparable to VOPOs, but are limited to situations where the aim is to grant immediate protection to victims or potential victims of domestic violence. At the time of writing (December 2016), the provisions on VOPOs had been brought into force,73 but the provision on Domestic Violence Prevention Notices and Orders had not. More generally, victims’ rights in Northern Ireland were enhanced during 2015 as a result of the provision for a statutory Victims Charter.74 This sets out the services and treatment which must be provided to victims and others by specified criminal justice agencies. The 2015 Act also grants victims the statutory right to make a written victim statement (to be known as a ‘Victim Personal Statement’), setting out the effects which an offence has had on the victim, and a member of the victim’s family can make the statement if the victim cannot act on his or her own behalf or has died. Provision was also made for a statutory Witness Charter,75 but this did not come into effect until late the following year.76 III.  THE RIGHT NOT TO BE SUBJECTED TO FORCED LABOUR

The outstanding development in the realm of human trafficking in 2015 was the enactment by the Northern Ireland Assembly of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act 2015. Largely the initiative of one Member of the Assembly, Lord Morrow, the Act boosts compliance with the Council of Europe’s Convention on Action against Trafficking in Human Beings 2005 and the EU’s Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims.77 It does so first and foremost by providing Northern Ireland with a more robust legal framework for prosecuting traffickers and those

71 

Sections 55–76. Section 97. 73  See the Justice (2015 Act) (Commencement No 8) Order (NI) 2016, SR 416; the commencement date was 1 December 2016. 74  Justice Act (NI) 2015, ss 28–29 and 31–35, in force from 1 September 2015. For more information about the Charter (including a copy of the Charter, a summary version and an information leaflet), see www.justice-ni.gov.uk/publications/victim-charter; see too www.nidirect.gov.uk/articles/victim-charter. 75  Section 30. 76  Justice (2015 Act) (Commencement No 9) Order (NI) 2016, SR 436. 77  Directive 2011/36/EU. 72 

176  The Irish Yearbook of International Law 2015 who subject people to conditions of slavery. Within this framework, there are newly worded offences of knowingly holding a person in slavery or servitude and requiring a person to perform forced or compulsory labour, all of which terms are to be construed in accordance with Article 4 ECHR.78 Human trafficking, defined as arranging or facilitating the travel of a person with a view to that person being exploited, is also an offence.79 The consent of any person to any such treatment is declared to be irrelevant, and investigations and prosecutions can proceed even though the victim does not wish to report the matter or to stand over any statement he or she has given in relation to it.80 The maximum punishment for the offences is life imprisonment and, unless there are exceptional circumstances, a person aged 18 or over who is found guilty of them must be sent to prison for at least two years.81 In addition, there is a new offence of committing an offence with intent to commit any of the aforementioned offences82 There is also a fuller definition of what constitutes exploitation for the purposes of human trafficking: it embraces sexual offences against children and dealing commercially in human organs.83 The Department of Justice is to produce a strategy on slavery and trafficking at least once a year,84 and the 2015 Act improves the support available for victims of slavery and trafficking by requiring the Department to make various services available for a period of at least 45 days. These can take the form, for example, of safe accommodation, material assistance, assistance in obtaining healthcare, appropriate information, translation and interpretation services, assistance in obtaining legal advice or representation and assistance with repatriation.85 The services must not be conditional on the victim acting as a witness in criminal proceedings, must be dependent on the victim’s agreement, must be provided in a way that takes due account of the victim’s needs regarding safety and must be offered from a person of the same gender as the victim.86 The most controversial provision in the Act is section 15, which criminalises the purchase of sexual services by introducing a new article 64A into the Sexual Offences (NI) Order 2008. It came into effect on 1 June 201587 and the Department of Justice must present a review of the operation of the provision to the Northern Ireland Assembly within three years.88 The intention behind this reform (following the so-called Nordic model) is to reduce the demand for sexual services, but some commentators,89 78 

Sections 1(1) and (2) and 25(1). Section 2. Sections 1(5), 2(5) and 14. 81  Sections 1(6), 2(9) and 7(2). 82  Section 4(1). 83  Section 3. 84  Section 12(1). The first of these strategies is available here: www.octf.gov.uk/OCTF/media/OCTF/ images/publications/Human%20Trafficking/Final-NI-Human-Trafficking-and-Exploitation-Strategy-2015-16.pdf?ext=.pdf. 85  Section 18(7). 86  Section 18(5) and (6). 87  Section 28(5). 88  Section 15(7) of the 2015 Act. 89  eg, P Maginn and G Ellison, ‘“Ulster Says No”: Regulating the Consumption of Commercial Sex Spaces and Services in Northern Ireland’ (2016), available at http://pure.qub.ac.uk/portal/files/94472242/ Ulster_Says_No_100716_Clean_version.pdf. 79  80 

Correspondent Reports—Dickson 177 including senior police officers,90 are sceptical as to whether this will indeed occur, since arrangements for paid sexual contact are now usually made over the internet and are very difficult to police. Some would also argue that the prohibition is an unjustifiable infringement of the right to a private life, whether of the sex workers or of the users of their services. Apart from section 15, the 2015 Act in Northern Ireland is comparable to the Modern Slavery Act 2015, which was passed by the Westminster Parliament mostly only for England and Wales. Part 4 of that Act, which provides for the appointment of an Independent Anti-Slavery Commissioner, extends to the whole of the UK.91 The person appointed to the post is Kevin Hyland and his task is to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences, and in the identification of the victims of those offences.92 He wasted little time in issuing a Strategic Plan for 2015–17.93 During 2015, there were 53 individuals in Northern Ireland who were referred to the UK’s National Referral Mechanism on trafficking, which helps to ensure that victims of trafficking receive the appropriate support.94 This is up from the figures of 45 in 2014 and 41 in 2013. The majority, as usual, were men and the commonest type of exploitation was labour exploitation. The commonest nationality amongst the victims was Bulgarian (17 out of the 53). IV.  THE RIGHT TO LIBERTY

An important judgment was issued on the definition of ‘liberty’ during 2015. This was in M’s (A Minor) Application,95 where Maguire J held that the terms of M’s residence at a care home did in fact deprive him of his right to liberty under Article 5 ECHR because even though there were no physical barriers preventing him from leaving the home, he was supervised 24/7. While such restrictions may have been in M’s own best interests, they should have been authorised by a court so as to comply with Article 5, the justification being, presumably, that the detention was for the purpose of ‘educational supervision’.96 The judge relied on the UK Supreme Court’s decision in Surrey County Council v P97 and also the decision of the Grand Chamber of the European Court of Human Rights in Stanev v Bulgaria.98

90  See, eg, Liam Clarke, ‘Criminalising People Who Pay for Sex Won’t Help Anti-trafficking Fight, Says Police Chief’ Belfast Telegraph (5 September 2013), available at www.belfasttelegraph.co.uk/ news/northern-ireland/criminalising-people-who-pay-for-sex-wont-help-antitrafficking-fight-says-policechief-29553457.html. 91  Modern Slavery Act 2015, s 60(3). 92  ibid s 41(1). 93 Available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/468729/IASC_ StrategicPlan_2015.pdf. 94 See www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/676national-referral-mechanism-statistics-end-of-year-summary-2015/file, 20–21. 95  M’s (A Minor) Application [2015] NIQB 8. 96  This is permitted by art 5(1)(d). 97  Surrey County Council v P [2014] UKSC 19, [2014] AC 896. 98  Stanev v Bulgaria (2012) 55 EHRR 22.

178  The Irish Yearbook of International Law 2015 Interestingly, Article 5 was also relied upon by Treacy J in SC’s Application,99 where the applicant successfully challenged the refusal of the Belfast Health and Social Care Trust to disclose the records of the applicant’s detention in a mental hospital to himself or his legal representatives. Without quoting any direct authority for the proposition and with no reference to either Article 8 ECHR (the right to a private life) or Article 10 (which embraces to right to information), the judge held: [P]atients and their legal advisors have a right, pursuant to Article 5 of the ECHR, to be provided with their detention forms, by means of secure transmission, as soon as reasonably practicable after a request has been made to the detaining authority by the detained patient or their legal advisor.100

This is a welcome clarification of an important practical right, for obviously it is very difficult for the detention to be challenged if the records are not made available to the very person whose liberty is at stake. The same judge repeated the ruling in a separate case just four days later, NR’s Application,101 where again the Belfast Trust had decided not to disclose the applicant’s medical notes to his or her legal advisor in advance of a hearing before the Mental Health Review Tribunal. This time the judge referred not just to Article 5, but also to Article 6 ECHR.102 A month later, the Court of Appeal confirmed the correctness of Treacy J’s judgment during the previous year in RS’s Application,103 where he had stressed that when doctors are completing forms authorising a person’s detention, they need to exercise great care.104 It is the Department of Justice’s policy that persons under the age of 18 should be detained in custody only if this is absolutely necessary, but recent data indicate that on any one day, the vast majority of young people held at the Woodlands Juvenile Justice Centre (JJC) near Bangor in County Down (where there is room for 36 detainees) are not there because they have been sentenced to a period of custody, but because they have been remanded there by a court or have been taken there by the police rather than being kept at a police station while suspected offences are being investigated.105 In the last-mentioned category (cases under the Police and Criminal Evidence (NI) Order 1989), most of the children held at the JJC are there for just a few hours and about half of them are released after their first appearance in court. As a 2015 inspection report says, this begs the question of whether those children needed to be in JJC custody at all.106 Some of the children held at the JJC on remand were choosing to stay there even though the court had granted them bail. In England and Wales, this is illegal, and children are instead remanded into the care of a local authority.107 Clearly more needs to be done to make such alternative accommodation 99 

SC’s Application [2015] NIQB 34. ibid [11]. 101  NR’s Application [2015] NIQB 35. 102  ibid [12]. 103  RS’s Application [2014] NIQB 88. See ‘Human Rights in Northern Ireland 2014’ (n 1) 176. 104  RS’s Application [2015] NICA 30. 105  See the report of an announced inspection of Woodlands Juvenile Justice Centre by the Criminal Justice Inspectorate Northern Ireland and others (May 2015), available at www.cjini.org/CJNI/files/fb/ fb2b3c05-0ec8-47cc-9d63-35443b8e1d97.pdf, 15–21. 106  ibid 17. 107  Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 91. 100 

Correspondent Reports—Dickson 179 available to children in Northern Ireland because the JJC, however well it is run, is far from the ideal location for such youngsters. In 2015–16, the number of people arrested in Northern Ireland on reasonable suspicion of involvement in terrorism (using the arrest power in section 41 of the Terrorism Act 2000) was 149, considerably down from the figure of 227 in 2014–15. It was still almost three times the number arrested under the same power in Great Britain (55).108 The number of arrested persons who were then charged was 18, compared with 35 in the previous year,109 a drop from 15 per cent to 12 per cent. The Independent Reviewer of Terrorism Legislation, David Anderson, has said that the very low charge rate in Northern Ireland is disappointing110 but he thinks it might be attributable to the particular difficulties encountered in converting intelligence into evidence in Northern Ireland, given that suspects can operate without needing to use traceable channels of communication, the identity of sources of intelligence needs to be protected and many witnesses are too afraid to disclose or confirm information.111 It seems clear that the arrest power under the Terrorism Act is being used in situations where an arrest could be made under the PACE legislation, but the PSNI appears to hold to the view that it is somehow more ethical to use the Terrorism Act if it is terrorism which is being investigated. In Magee v UK,112 the three applicants had all been arrested under section 41 of the Terrorism Act 2000. At the time, the maximum permissible detention period for such persons, before having to be released or charged, was 28 days.113 Initial detention could be for up to 48 hours, but thereafter the police had to apply to a judge for an extension to the detention for periods of up to seven days. In each of the cases comprising Magee, when the judge was considering whether to authorise the extension of detention, she ruled that she did not have the power to consider whether the detainee’s initial arrest was unlawful. The applicants successfully challenged that ruling through judicial review: the High Court found that the judge had been wrong to refuse to review the lawfulness of the arrests and so her decision to continue the detentions had to be quashed.114 In a subsequent judgment in the same case, the High Court also ruled that the whole scheme for granting extensions to detention periods for terrorist suspects (set out in Schedule 8 to the Terrorism Act 2000) was not incompatible with Article 5 ECHR.115 No permission was given to appeal to the Supreme Court, so the applicants took their cases directly to the European Court of

108 David Anderson, The Terrorism Acts in 2015 (2016), 58–59, available at https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2016/12/TERRORISM-ACTS-REPORT1-Dec-2016-1.pdf. 109  Police Recorded Security Situation Statistics 2015–16 (PSNI, May 2016) 9, Table 3, available at www.psni.police.uk/globalassets/inside-the-psni/our-statistics/security-situation-statistics/2016/may/ annual-security-situation-statistics-report-2015-16.pdf. 110  See n 108 at 61. 111  ibid 62. 112  Magee v UK (2016) 62 EHRR 10. 113  It was reduced to 14 days in 2010 when the Conservative/Liberal Democrat Coalition government came to power: see Protection of Freedoms Act 2012, s 57. 114  Duffy’s (Colin) Application [2009] NIQB 31 (Div Ct). 115  Duffy’s (Colin) Application [2011] NIQB 16 (Div Ct).

180  The Irish Yearbook of International Law 2015 Human Rights, which upheld the High Court’s stance. It confirmed that Article 5 does not require that the judge who has the power to take a decision on whether a person’s detention should be extended must be the same judge who has the power to order the person’s conditional release. The High Court had drawn attention to the lack of a power of any judge to release a terrorist suspect conditionally (ie, on bail), but the European Court said that Article 5 did not require such a power to be available: In the present case the applicants were detained for twelve days, which was a relatively short period of time. As such, the Court considers that they were at all times in ‘the early stages’ of the deprivation of liberty, when their detention could be justified by the existence of a reasonable suspicion that they had committed a criminal offence; it was not, therefore, necessary that any consideration be given to their conditional release during this period.116

V.  THE RIGHT TO A FAIR TRIAL

Article 6 ECHR—the right to a fair trial—did not feature as prominently in the jurisprudence of Northern Ireland’s courts in 2015 as it has done in some previous years, presumably because so many types of situation in which it is necessary to reinforce the importance of fairness have already been pronounced upon. But increasingly judges are referring not just to the fairness required by Article 6, but also to the fairness required by the common law. In JR65’s Application, Treacy J held, in a case concerning blood donations by gay men,117 that there was a real possibility that in banning such blood donations, the Minister of Health at the time, the DUP’s Edwin Poots, was biased because he had said that, as a Christian, he was not sure that he would get a fair hearing in a court of law.118 A year before, the same judge had ruled that Mr Poots’ ban was irrational. There had been a similar ban imposed in England, Wales and Scotland during the alarm over the spread of AIDS in the 1980s, but in 2011 it was replaced in those jurisdictions by a rule that allowed blood donations from men if their last sexual contact with another man was longer than a year ago. Mr Poots’ successor as Minister of Health appealed against Treacy J’s decisions and in March 2016, his position was vindicated when the Court of Appeal ruled that the ban was neither irrational nor infected by bias.119 The judges affirmed that the power to decide whether such blood donations could be made lay with the Minister of Health in Northern Ireland and not with the Secretary of State for Health in the UK government. Only a few

116 See

Police Recorded Security Situation Statistics 2015–16 (n 109) para 105. JR65’s Application [2015] NIQB 1. 118  See Alan Erwin, ‘Judge Says Edwin Poots was Biased in Gay Men Blood Ban’ Irish Times (8 January 2015), available at www.irishtimes.com/news/crime-and-law/courts/high-court/judge-says-edwin-pootswas-biased-in-gay-men-blood-ban-1.2059441. 119  In the Matter of an Application by JR 65 for Judicial Review [2016] NICA 20. See Alan Erwin, ‘Former Northern Ireland Health Minister Edwin Poots Wins Appeal over “Biased” Gay Blood Ban Ruling’ Irish Times (16 March 2016), available at www.belfasttelegraph.co.uk/news/northern-ireland/ former-northern-ireland-health-minister-edwin-poots-wins-appeal-over-biased-gay-blood-ban-ruling-34545230.html. 117 

Correspondent Reports—Dickson 181 months later, after a Sinn Féin Member of the Legislative Assembly (MLA) had become the Minister of Health, the ban was lifted with effect from 1 June 2016120 and the DUP did not object to this. Article 6 ECHR did not feature prominently in the ‘gay blood’ case and nor did it in challenges later in the year to refusals of legal representation or of legal aid. In BP’s Application, the chair of the Historical Institutional Abuse Inquiry had refused legal representation at public expense to an alleged victim of abuse at one institution. At first instance, Treacy J was convinced that at common law fairness required such representation to be provided,121 but less than three months later the Court of Appeal disagreed.122 In Burns’ (Michael) Application, Treacy J held that the Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (NI) 2011123 were unlawful because they did not have proper regard for the lawyers’ time and the skill required for the work involved in the applicant’s case.124 The Rules were ultra vires the Legal Aid, Advice and Assistance (NI) Order 1981, the parent legislation. As a result of this judgment, new Rules were introduced.125 But later in the year Maguire J was asked to declare these new Rules to be unlawful too. He was not convinced by the bulk of the arguments put to him but in two respects he did agree that the amendments were defective: they did not provide a fair fee for work done by solicitors between the arraignment of a person and his or her plea of guilty on the first day of the trial and they had not been preceded by a proper impact assessment as required by section 75 of the Northern Ireland Act 1998.126 A further amendment to the Rules was therefore introduced in April 2016.127 Just a month after Maguire J’s decision, a Divisional Court ruled in a separate case, Morgan’s (Barry) Application,128 that the Legal Aid for Crown Court Proceedings (Costs) Rules (NI) 2005129 were incompatible with Article 6 ECHR insofar as they failed to provide for legal aid to be granted in exceptional circumstances, such as when lawyers wanted to resist an application by the prosecution to present a voluntary bill of indictment. Yet again, an amendment had to be made.130 In R v Duffy,131 one of the first cases to be judged by Colton J after he was appointed to the High Court in September 2015, the issue was what degree of disclosure should be made to terrorist suspects who had been arrested as a result of surveillance activities. The prosecution applied for permission not to disclose such information because the disclosure would not be not in the public interest.132 The information related to how the prosecution had obtained audio recordings and

120 

See www.bbc.co.uk/news/uk-northern-ireland-37235281. BP’s Application [2015] NIQB 1. 122  BP’s Application [2016] NICA 20. 123  SR 152. 124  Burns’ (Michael) Application [2015] NIQB 24. 125  Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (NI) 2015, SR 215. 126  General Council of the Bar of Northern Ireland’s Application [2015] NIQB 99. 127  Legal Aid for Crown Court Proceedings (Costs) (Amendment) Rules (NI) 2016, SR 200. 128  Morgan’s (Barry) Application [2015] NIQB 105. 129  SR 112. 130  Legal Aid for Crown Court Proceedings (Costs) (Amendment No 2) Rules (NI) 2016, SR 201. 131  R v Duffy [2015] NICC 13. 132  Relying on the Criminal Procedure and Investigations Act 1996, s 8(5). 121 

182  The Irish Yearbook of International Law 2015 vehicle tracker data. The defendants’ lawyers argued that their clients could not receive a fair trial unless there was full disclosure of the information, but the judge decided that he would limit disclosure to details of the manufacturer and model number of devices used to record the location and activities of any vehicle or person involved in the case and details of the specification of the GPS components of the devices.133 In at least one ‘legacy’ case, the fairness of an old conviction was called into question. Myles O’Hagan had been arrested in Derry early one morning in 1973. He was at that time 15 years old. The police interviewed him later that morning for nearly four hours, in the absence of any solicitor or other appropriate adult. He was then interviewed on two more occasions later that day, again with no third party present, although he was visited between interviews by his mother (twice), his father (who was drunk) and his parish priest. He allegedly signed a confession stating that four months earlier he had left a bomb in an optician’s shop in Derry. In May 1974, he was convicted of causing this explosion. More than 30 years later, he persuaded the Criminal Cases Review Commission, which considers alleged miscarriages of justice occurring in England, Wales and Northern Ireland, to refer his conviction to the Court of Appeal of Northern Ireland for reconsideration. The task for the court was to determine whether, all things considered, the conviction was unsafe.134 Here, despite the prosecution not resisting the appeal, the judges concluded that it was not unsafe. They applied the approach they had adopted in R v Brown in 2012,135 which in turn followed their own judgment in R v Mulholland136 and that of the Court of Appeal of England and Wales in R v King.137 The mere fact that a confession may not have been properly obtained and recorded is not in itself a ground for holding a conviction to be unsafe. Fairness in criminal proceedings was also at issue in a case where a former loyalist paramilitary, Wilson (‘Winkie’) Rea, sought to overturn the decision of the Director of Public Prosecutions to seek assistance from authorities in the US in obtaining tapes of interviews with former paramilitaries stored at Boston College in Massachusetts. Treacy J rejected the challenge,138 following the earlier similar case of MacIntyre’s Application.139 Later in the year, the Court of Appeal endorsed Treacy J’s view.140 It considered whether its duty under section 3 of the Human Rights Act 1998 to interpret legislation in an ECHR-compliant manner made a difference to the interpretation it should put on the relevant provision in the Crime (International Co-operation) Act 2003, somehow importing a duty on the requesting authority to demonstrate the relevance of the requested matter, but it held that it did not.141 Moreover, even if the request breached the applicant’s rights to confidentiality

133 See

Morgan’s (Barry) Application (n 128) [39]. This is in line with what is known as the ‘Pollock’ principle, after R v Pollock [2004] NICA 34. 135  R v Brown [2012] NICA 14. 136  R v Mulholland [2006] NICA 32. 137  R v King [2000] 2 Cr App R 391. 138  Rea’s Application [2015] NIQB 7. 139  MacIntyre’s Application [2012] NIQB 65. 140  Rea’s Application [2015] NICA 8 141  Section 7(5). 134 

Correspondent Reports—Dickson 183 under Article 8(1) ECHR, here the interference with that right was justifiable under Article 8(2) because it was necessary in the interest of the prevention of crime.142 In a third ‘legacy’ case, McGeough’s Application, a man who was convicted in 2011 of attempting to murder a part-time soldier in 1981 while the latter was working as a postman argued that information which he himself had revealed during his asylum application in Sweden in 1983 should be excluded from his trial in Northern Ireland because to admit it would be unfair under article 76 of the Police and Criminal Evidence (NI) Order 1989. The Court of Appeal of Northern Ireland143 and the Supreme Court in London144 were having none of this: the information admitted could not have had such an adverse effect on the fairness of the proceedings that the court ought not to have admitted it. One can contrast this conclusion with that reached in the 2014 case of R v Downey,145 where the trial judge in London stayed the prosecution because the police had (mistakenly) told the defendant that he was not a wanted man in England and therefore could travel there without fear of being prosecuted. That was the decision that brought to prominence the so-called ‘On the Runs Scheme’, which the British government devised in order to facilitate the peace process in Northern Ireland.146 During 2015, the Northern Ireland Affairs Committee of the House of Commons published a report on the scheme; it concluded that it was questionable whether the scheme was lawful or not, but that its existence did distort the legal process. The Committee also felt that the judge’s decision to stay the prosecution of Mr Downey got the balance wrong between preserving the integrity of the criminal justice system and the public interest in continuing the trial of someone accused of multiple murders.147 That there is a need for decision makers at many levels to take account of the fairness requirements of Article 6 ECHR was made clear by Horner J in CS’s Application.148 This was a request by a young man who had been suspended from his course at Queen’s University Belfast because he was the subject of a Sexual Offences Prevention Order due to his being convicted of having indecent images of children in his possession. The judge decided that it was premature for a court to consider the request because the applicant should first seek a decision from the Board of Visitors of the University, which is its highest internal decision-making body in ­student affairs. He stressed that when considering the issue, the Board of Visitors would need to comply both with Article 6 and Article 2 of Protocol 1 to the ECHR, which protects the right to education.

142  In June 2016, on the back of information revealed by the Boston College tapes, Rea was charged with the murder of two Catholic workmen in Belfast in 1989 and 1991. 143  McGeough’s Application [2013] NICA 32. 144  McGeough’s Application [2015] UKSC 62, [2015] 1 WLR 4612. 145  Available at www.judiciary.gov.uk/judgments/r-v-downey. 146  It led, amongst other things, to a report by Lady Justice Hallett, available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/335211/41003_Hallett_Review_Print_Ready.pdf. 147  The Administrative Scheme for ‘On-the-Runs’, HC 177 (24 March 2015), available at www.publications.parliament.uk/pa/cm201415/cmselect/cmniaf/177/17702.htm. The UK government issued a largely positive response at HC 345, Appendix 2 (21 July 2015), available at www.publications.parliament.uk/pa/cm201516/cmselect/cmniaf/345/34505.htm. 148  CS’s Application [2015] NIQB 36.

184  The Irish Yearbook of International Law 2015 In O’Donnell v UK,149 the applicant argued that he had received an unfair trial because the judge had allowed the jury to draw adverse inferences from the applicant’s failure to testify at his trial (he refused to do so because of medical evidence that he was a highly suggestible individual) and because, before directing the jury that they could draw an adverse inference from the applicant’s failure to testify, the judge had not directed the jury to consider whether the prosecution case was strong enough for it to require a response. But the European Court of Human Rights was not convinced: taking everything into account, including the weight of the circumstantial evidence against the applicant calling for an explanation, the competing medical evidence and trial judge’s clear and detailed direction to the jury, there had been no violation of Article 6(1) in this case. VI.  THE RIGHT TO A PRIVATE AND FAMILY LIFE

As in 2014, there were several reported court cases on the applicability of Article 8 ECHR, which protects the right to a private and family life and to protection of correspondence. Article 8 seems to have replaced Article 6 as the ECHR provision most commonly cited in Northern Ireland’s courts. We will consider the cases dealing with deportation before looking at other cases relating to criminal law and then at cases dealing with more personal issues. A. Deportation A trope running through recent pronouncements by UK government ministers, not least Theresa May during her six years as Home Secretary, is that far too many foreigners who are convicted of criminal offences are allowed to stay in the UK rather than being deported. Under the Extradition Act 2003,150 an extradition order must be refused if it would be incompatible with the ECHR, but in 2012 the UK government altered the Immigration Rules to ensure that courts do not too readily permit foreign criminals to remain in the country because of the ECHR.151 This was supplemented by a provision in the Immigration Act 2014,152 which explicitly sets out a range of public interest considerations that must be taken into account when a court is deciding whether deportation would breach a person’s Article 8 rights;153 there is a supplementary list of considerations for cases involving a foreign criminal.154

149 

O’Donnell v UK (2015) 61 EHRR 37. Section 21. 151  Immigration Rules, rr 398–400, available at https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-13-deportation. For the government’s explanation of these amendments see www.gov. uk/government/uploads/system/uploads/attachment_data/file/286879/echr-fam-mig.pdf. For Migration Watch’s view, see www.migrationwatchuk.org/briefing-paper/270. 152  Section 19, which inserted a new Part 5A (ss 117A–177D) into the Nationality, Immigration and Asylum Act 2002. 153  ibid s 117B. 154  ibid s 117C. 150 

Correspondent Reports—Dickson 185 In Court in Sad Okregowy, Poland v Gorksi, Judge Smyth refused to surrender a man to Poland on the basis of a European Arrest Warrant (EAW) because she felt that this would disproportionately affect his right to a family life under Article 8.155 Mr Gorksi had broken the conditions attached to two suspended prison sentences he had received in Poland in 2006 for theft and assaults. He moved to Northern Ireland in 2008, joining his wife, who had moved there a couple of months earlier. The couple’s first child was born in Northern Ireland later in 2008 and their second child in 2012. The EAW was apparently sent to the UK authorities in 2012 and Mr Gorski was eventually arrested in 2014. He claimed that he would commit suicide if returned to Poland, and his wife suffered from depression. In refusing surrender, the judge applied the balancing test required by the Supreme Court in HH v Westminster City Magistrates’ Court,156 pointing out that there had been culpable delay in executing the EAW, that Mr Gorski had been issued with an identity card allowing him to leave Poland at a time when he was supposedly a fugitive, and that he and his wife had been living and working openly in Northern Ireland for six years. Mr Gorski was apparently in detention in Northern Ireland for the duration of the extradition proceedings (more than one year) and if returned to Poland would have had to serve a further two years and five months in prison. By way of contrast, in Republic of Poland v Tumkiewicz, the Court of Appeal reversed the lower court’s decision not to surrender a man to Poland.157 Mr Tumkiewicz was wanted by Poland because he had left the country with his girlfriend in 2007 before fully paying compensation to a company from which he had stolen goods. He had lived in Northern Ireland since 2007, married his girlfriend in 2009 and they had a child. He had worked in Northern Ireland for six years before being arrested in 2013 on the back of an EAW issued in Poland in 2009 and certified in the UK in 2012. He was then kept in custody in Northern Ireland for just over a year. The main reasons why the Court of Appeal thought that in this case the public interest in proceeding with the extradition was stronger than the Article 8 rights of the wanted man and of his wife and child were that there was no culpable delay in executing the EAW and no evidence that the wife and child would suffer much from their husband and father having to return to Poland to serve a prison sentence of perhaps one year. But clearly there is a fine line between this case and the Gorski case, above. Just to add to the difficulties, consider the judgment of Gillen LJ in A’s Application,158 where he quashed the Home Secretary’s decision to surrender Mr A to Lithuania pending the determination of his appeal against an order that he be deported on grounds of public policy following convictions he had received for driving while disqualified and without insurance. The judge specifically pointed out that in reconsidering Mr A’s position, the Home Secretary should take into account the impact of sending him to Lithuania on his and his family’s Article 8 rights,159

155 

Court in Sad Okregowy, Poland v Gorksi [2015] NICty 1. HH v Westminster City Magistrates’ Court [2012] UKSC 25. 157  Republic of Poland v Tumkiewicz [2015] NIQB 107. 158  A’s Application [2015] NIQB 58. 159  He specifically referred to reg 24AA of the Immigration (EEA) Regulations 2006, available at www. eearegulations.co.uk/Latest/ByPage/part5_24AA. 156 

186  The Irish Yearbook of International Law 2015 an issue which does not seem to have been previously addressed. The opposite ­conclusion was reached in two other cases decided by Treacy J in the course of the year: Bagvilas’s Application160 concerned another Lithuanian man, while Soares Rodrigues’s Application161 concerned a Portuguese man. In the latter case, the judge pointed out that the applicant would suffer no disadvantage if he had to fight his appeal against return to the country while based in Portugal: [H]e can still instruct lawyers from Portugal for the purposes of his appeal. It is also clear that consultations can and are frequently conducted via the internet for free through Skype and FaceTime and interfaces of that kind. All that is required is the internet, a smart phone or a computer. Such facilities mean that there is in fact little difference between having a client in one’s office and having him on the computer screen. Documents can be exchanged by fax, email, post or courier if required.162

To complete the picture concerning the applicability of Article 8 in the context of immigration reference needs to be made to Salad’s (Fowsiya) Application.163 Treacy J rejected a challenge to the Home Office’s policy concerning the waiving of fees payable for making an application that relations be allowed to enter the UK in order to reunify the family. Following a decision by an English judge,164 Treacy J felt that the sums involved in these fees did not operate so as to breach the Article 8 rights of the applicant. Likewise, in MO’s Application, Horner J found no breach of Article 8 in the current rules governing when an illegal immigrant from Darfur (who was not at the time an asylum seeker) had the right to work in Northern Ireland.165 B.  Other Criminal Law Cases In McAree’s Application, Deeny J rejected the application to quash a prison governor’s decision not to grant temporary release to a prisoner to visit his very ill sister.166 Article 8 had not been breached. But in Hart’s Application, Maguire J found that the Prison Service had contravened its own procedural rules and Article 8 by requiring a prisoner to have ‘closed’ visits (ie, visits where no physical contact is allowed) but, because closed visits would still have been imposed if the procedural rules had been adhered to, he did not think that the applicant had suffered any prejudice and therefore deserved no other remedy.167 Children’s rights were at issue in two significant decisions during 2015. In the first, JR38’s Application,168 the appellant, who was aged 14 at the time, had been

160  Bagvilas’s Application [2015] NIQB 16. The applicant had served a prison sentence for cultivating and supplying cannabis. 161  Soares Rodrigues’s Application [2015] NIQB 17. The nature of the applicant’s offending is not made clear in the judgment. 162  ibid [7]. 163  Salad’s (Fowsiya) Application [2015] NIQB 32. 164  R (SS) v Secretary of State for the Home Department [2011] EWHC 3390 (Admin) (Sales J). 165  MO’s Application [2015] NIQB 47. 166  McAree’s Application [2015] NIQB 5. 167  Hart’s Application [2015] NIQB 97. 168  JR38’s Application [2015] UKSC 42, [2016] AC 1131.

Correspondent Reports—Dickson 187 involved in rioting in 2010. Photographs of CCTV images taken of him rioting were published in two newspapers as part of the police’s attempt to identify the rioters. The boy complained that publication of the photographs breached his rights under Article 8, but neither the Divisional Court169 nor the Supreme Court agreed. In the Supreme Court, three of the five Justices thought that Article 8 was not even engaged because the boy could have had no expectation of privacy in this situation. Lords Kerr and Wilson thought Article 8 was engaged because of the boy’s age and the effect that publication of the images might have on him, but they agreed that the interference with the boy’s right was justified because of the public interest in preventing and detecting crime. This must surely be the appropriate conclusion. It would send a poor message to teenagers if they were free to commit serious crimes without fear of their actions being filmed and used in a search for the culprits. Children’s rights also featured in D’s Application, where a Divisional Court held that an 11-year-old boy had not consented in a sufficiently informed manner to being issued with an ‘informed warning’ by the police for his alleged physical attack on his father.170 The warning created a criminal record (for the offence of resisting the police) and the boy had not been told that he could seek legal advice before accepting it. The Court concluded that the boy’s Article 8 rights were engaged, but it relied first and foremost on the common law’s rule against procedural unfairness in order to quash the warning. A second Supreme Court decision in a case from Northern Ireland to raise Article 8 points was Gaughran v Chief Constable of the PSNI.171 The claimant had been convicted of driving with excess alcohol. When he was arrested, the police lawfully took his fingerprints, a photograph and a non-intimate DNA sample. The fingerprints and photograph were retained on two separate databases and a DNA profile (taken from the DNA sample) was retained on a third database. The Supreme Court, affirming the Divisional Court in Belfast,172 held that the indefinite retention of these data was proportionate. It was not caught by the criticisms expressed by the European Court of Human Rights in S and Marper v UK,173 after which the PSNI changed its practice and retained indefinitely only the biometric data of persons convicted of crimes and not full DNA samples. However, the Supreme Court Justice from Northern Ireland, Lord Kerr, dissented, as he is wont to do on human rights issues. He thought that there was no rational connection between the legislative objective and the policy of indefinite retention, and that the policy went further than was necessary to fulfil the objective. The Criminal Justice Act (NI) 2013, when it comes into force, will bring the data retention position in Northern Ireland broadly into line with the current legislation applicable in England and Wales. In an important victory for rehabilitation rights, Treacy J ruled in Gallagher’s (Lorraine) Application that the Department of Justice’s scheme for enhanced disclosure certificates (EDCs) regarding a person’s past criminal record was in breach of

169 

JR38’s Application [2013] NIQB 44. D’s Application [2015] NIQB 78. 171  Gaughran v Chief Constable of the PSNI [2015] UKSC 29, [2016] 1 AC 345. 172  Gaughran v Chief Constable of the PSNI [2012] NIQB 88. 173  S and Marper v UK (2009) 48 EHRR 50. 170 

188  The Irish Yearbook of International Law 2015 Article 8 rights. The applicant was a care worker who had failed to get a job with the Western Health and Social Care Trust because the EDC revealed that she had six convictions (arising from two separate incidents) for driving without a seatbelt and for allowing children under the age of 14 to be driven without a seatbelt. Under the EDC scheme as it then operated,174 a person who had more than one past conviction would have all their convictions disclosed automatically, regardless of their relevance to the job being applied for, their age at the time of the conviction and whether they had become ‘spent’ under the Rehabilitation of Offenders (NI) Order 1978. In addition, even if there was just one past conviction, it was disclosable for the following 11 years. The judge was clear in his disapproval of the scheme.175 Under the Justice Act (NI) 2015, some changes have been made to the disclosure scheme, but it remains to be seen if it is now fully compliant with Article 8.176 The Act provides for certificates to be referred to an independent reviewer, it removes the requirement to furnish a copy of the certificate to anyone other than the applicant, it extends to Northern Ireland the independent appeals process currently in place in England and Wales, it introduces a higher relevancy test so that a chief police officer can now only include information on a certificate which he or she reasonably believes to be relevant as opposed to information which might be relevant, and it provides for a statutory Code of Practice to which chief police officers must have regard when discharging their functions.177 In October 2015 a significant judgment was issued by the European Court of Human Rights in RE v UK178 concerning the legality of covert police surveillance of supposedly private consultations between a criminal suspect and his or her legal advisor. The issue had already been considered in a separate case which had gone to a Divisional Court in Northern Ireland179 and then the House of Lords,180 both of which had held that such covert surveillance is lawful provided it is conducted under the ‘intrusive surveillance’ scheme created by the Regulation of Investigatory Powers Act 2000 and not just by the ‘directed surveillance’ scheme. New secondary legislation was then issued to make it clear that covert surveillance of legal consultations had to be conducted under the intrusive scheme.181 In this new case, the Divisional Court in Northern Ireland found that surveillance of legal consultations

174 

See s 113A of the Police Act 1997. The case reverted to Treacy J in May 2016 after the Court of Appeal asked him to confirm whether he thought that the self-declaration requirements of the rehabilitation legislation scheme also breached art 8 (he thought they did) and whether the scheme was ‘in accordance with law’ as required by art 8(2) (he thought it was not): Gallagher’s (Lorraine) Application [2016] NIQB 43. In October 2016, the Court of Appeal affirmed Treacy J’s decisions: [2016] NICA 42. It was not in accordance with law because it did not provide for reviews to be conducted of the keeping of the records of the convictions indefinitely, for any rational risk assessment of the need for disclosure or for any criteria to determine the relevance of the convictions to any proposed job. 176  The Court of Appeal was non-committal on the adequacy of the 2015 reforms: [2016] NICA 42 [65]. 177  Justice Act (NI) 2015, Part V (ss 37–47). 178  RE v UK, App No 62498/11, judgment of 27 October 2015. 179  Re C and Others [2007] NIQB 101. 180  McE v Prison Service of Northern Ireland [2009] UKHL 15, [2009] 1 AC 908. 181  Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010, SI 461. 175 

Correspondent Reports—Dickson 189 did fall within the remit of the safeguards relating to intrusive surveillance and that safeguards relating to how collected material should be retained and destroyed were adequate.182 It followed the principles set out by the European Court in Kennedy v UK.183 Permission to appeal to the Supreme Court was refused, so an application was lodged directly in Strasbourg. For the most part, the European Court in RE v UK agreed with the Divisional Court, but it did find that there had been a breach of Article 8 in that at the time of the applicant’s detention, the PSNI’s Service Procedure on Covert Surveillance of Legal Consultations had not yet come into force (and did not do so for a further seven weeks). For that breach, the UK government was ordered to pay €1,500 in compensation to the applicant. Arguably the most important court decision on human rights in Northern Ireland in 2015 was that in the Northern Ireland Human Rights Commission’s Application,184 which concerned abortion. Abortion law in Northern Ireland is still largely governed by the Offences Against the Person Act 1861, but Horner J declared that the failure of the law to provide exceptions to the prohibition of abortion in respect of fatal foetal abnormalities at any time during a pregnancy, and also in respect of pregnancies due to sexual crime up to the date when the foetus becomes capable of existence independent of the mother, constitutes a violation of the pregnant woman’s Article 8 rights. He consequently declared section 58 of the 1861 Act to be incompatible with the ECHR. In February 2016, an attempt was made to amend the Justice Bill then going through the Northern Ireland Assembly to permit abortion in cases of fatal foetal abnormality, but it was voted down by 59 votes to 40.185 At the time of ­writing Horner J’s decision was still under appeal. C.  Personal Cases Article 8 was cited in a few civil law cases too. In CG v Facebook Ireland Ltd Stephens J awarded the plaintiff £20,000 in compensation for statements made about him on Facebook which amounted to misuse of information and harassment.186 He was a sex offender who had served his time in prison and was trying to turn his life around. He also succeeded in obtaining a mandatory injunction against Facebook ordering it take down the page entitled ‘Keep Our Kids Safe from Predators 2’. This is another welcome example of how even huge social media companies can be brought to book for breaking the law. In BB v A and A, O’Hara J had to decide whether the mother of a child who had been adopted should be granted the right to keep in contact with the child.187

182 

RA’s Application [2010] NIQB 99 (per Girvan LJ). Kennedy v UK (2011) 52 EHRR 4. 184  Northern Ireland Human Rights Commission’s Application [2015] NIQB 96 and 102. In January, the NIHRC reissued to the Department of Justice its very helpful advice (first submitted in 2013) on what international human rights standards have to say about using criminal law to curtail abortion: see www. nihrc.org/uploads/publications/ANNEX_to_Consultation_response_DoJ_January_2015.pdf. 185  See www.bbc.co.uk/news/uk-northern-ireland-35546399. 186  CG v Facebook Ireland Ltd [2015] NIQB 11. 187  BB v A and A [2015] NIFam 17. 183 

190  The Irish Yearbook of International Law 2015 On the facts, he held that she should not, because the best interests of the child suggested that that was the most appropriate outcome. The judge also cited Article 8 of the UN Convention on the Rights of the Child, which requires states ‘to respect the right of the child to preserve his or her identity, including nationality, name and family relations’, but he concluded that even that right needed to take a back seat on this occasion. That was also the approach of Gillen LJ in MW’s Application, where he dismissed the argument that a Health and Social Care Trust should not disclose to the fathers of the two children of the applicant’s partner that he, the applicant, had previously been convicted of sexual offences.188 The applicant feared that disclosing the information could endanger his life or at least interfere with his private life, but the judge held that the interests of the two children had to outweigh any such fears. VII.  THE RIGHT TO FREEDOM OF EXPRESSION AND TO INFORMATION

In ABC v BBC Weatherup J again upheld the freedom of the press in a case where the BBC had been given CCTV footage that had been clandestinely recorded and appeared to reveal various malpractices by two employees of the Bank of Ireland who were visiting a company’s premises in Cookstown to examine its books and papers.189 One of the employees brought an action for breach of confidence, but the BBC wanted to proceed with broadcasting six minutes of the CCTV footage as part of one of its Spotlight programmes. Taking into account section 12(3) of the Human Rights Act 1998, which provides that no relief is to be granted to restrain publication before trial ‘unless the court is satisfied that the applicant is likely to establish the publication should not be allowed’, Weatherup J granted an injunction restraining any publication of the footage by the BBC prior to its broadcast, but requiring the BBC to give the bank employee prior access to the broadcast so that she could have the opportunity to respond to it as she wished. Very little if any progress was made during 2015 in enhancing the rights of speakers of Irish or Ulster-Scots. In February, the Department of Culture, Arts and Leisure issued a consultation paper on proposals for an Irish Language Bill,190 and the NIHRC, the Equality Commission and many other interested parties submitted responses to the paper. But the Bill was never brought before the Assembly, doubtless because within the Executive (ie, all the ministers sitting as a committee), the DUP ministers would not agree to this occurring. Supporters of a Bill can point to the fact that in the St Andrews Agreement reached in 2006, the British government promised that it would ‘introduce an Irish Language Act reflecting on the experience of Wales and Ireland and work with the incoming Executive to enhance and protect

188 

MW’s Application [2015] NIQB 50. ABC v BBC [2015] NIQB 86. www.communities-ni.gov.uk/sites/default/files/consultations/dcal/12-consultation-document-proposals-for-an-irish-language-bill-february-2015-bilingual.pdf. 189 

190 See

Correspondent Reports—Dickson 191 the development of the Irish language’.191 There is a North-South Ministerial Council Language Body: its achievements during 2015 were reported to the Assembly by the Minister for Culture in December.192 VIII.  THE RIGHT TO FREEDOM OF ASSOCIATION

The SHA193 contained no agreement on how to deal with parades in Northern Ireland. It simply set out the UK government’s proposal that responsibility for parades and related protests should be devolved to the Northern Ireland Assembly and that experts in legal drafting should provide a range of options on how the remaining key issues, including the Code of Conduct for people parading or protesting, the criteria to be used when deciding what conditions should be imposed on parades and protests, and the accountability procedures if things go wrong, could be addressed in legislation. The First and Deputy First Ministers were then to have brought forward proposals to the Executive by June 2015. Even by the end of 2016, no such options had been published, presumably in the absence of cross-party consensus that the UK government’s proposals were acceptable. It was not until June 2016 that a Commission on Flags, Identity, Culture and Tradition was established, with the task of reporting within 18 months on how to maximise consensus on those issues. It comprises 15 members (only one of whom is a woman) and is in addition jointly chaired by Mr Neville Armstrong and Dr Dominic Bryan. Throughout 2015, a loyalist ‘protest camp’ was continued at Twaddell Avenue in North Belfast, in an attempt to pressurise the authorities to allow an Orange Order parade which had begun in 2013 to continue along a route from which the Parades Commission had banned it. In November 2015, the PSNI revealed that the average cost of policing the protest camp over the previous 860 days had been almost £24,000 per day.194 IX.  THE RIGHT NOT TO BE DISCRIMINATED AGAINST

The most publicised case on human rights in Northern Ireland in 2015 was probably the ‘gay cake’ case, Lee v Ashers Baking Co Ltd.195 It turned on the refusal of a bakery to supply a cake bearing the iced message ‘Support Gay Marriage’. With the support of the Equality Commission for Northern Ireland, the disappointed customer took a complaint to the county court claiming discrimination in the provision of services. Judge Brownlie ruled that the bakery had unlawfully discriminated against 191  St Andrews Agreement, Annex B, ‘Human Rights, Equality, Victims and Other Issues’, available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/136651/st_andrews_agreement-2.pdf. 192  See http://data.niassembly.gov.uk/HansardXml/plenary-08-12-2015.pdf, 4–9. 193  See n 25 above. 194  See www.belfasttelegraph.co.uk/sunday-life/revealed-the-massive-bill-for-policing-twaddell-protest-34225267.html. The dispute was eventually resolved through mediation in September 2016. 195  Lee v Ashers Baking Co Ltd [2015] NICty 2.

192  The Irish Yearbook of International Law 2015 Mr Lee on grounds of sexual orientation and also of political opinion. Northern Ireland is the only jurisdiction in the UK where ‘political opinion’ discrimination is unlawful; in Great Britain, there is protection against discrimination based on ‘religious or other belief’, so beliefs that are analogous to religious beliefs are protected, but not political beliefs as such.196 In 2016, the case was taken to the Court of Appeal of Northern Ireland, where Judge Brownlie’s decision was upheld.197 ‘Support Gay Marriage’ was a political message because the campaign to persuade MLAs to vote in favour of legalising marriage between same-sex couples is still ongoing in Northern Ireland. In April 2015, the Assembly voted by 49 to 47 to reject marriage equality; in November, the tide had turned somewhat, with 53 voting in favour and 52 voting against,198 but the majority was not sufficient because under the Assembly’s rules certain issues have to be supported by a majority of votes from both the unionist MLAs and the nationalist MLAs before they are taken to be acceptable.199 Such cross-community support is unlikely to be achieved in the near future, since so many of the DUP MLAs have strong religious objections to the principle of gay marriage. Meanwhile, Northern Ireland continued to lag behind Great Britain in terms of the degree of protection it provides against many other forms of discrimination. It still has no legislation outlawing age discrimination in access to goods, facilities or services. What is now known as the Executive Office200 issued a consultation paper on the topic in July 2015, but no actual legislation has emerged since, even in draft form. Improvements to gender and disability discrimination law contained in Great Britain’s Equality Act 2010 have still not been mirrored in Northern Ireland; for instance, there is no protection against sex discrimination by public bodies when they are carrying out their public functions or by private clubs. What used to be the jewels in the crown of Northern Ireland’s discrimination law—the positive action measures allowable to counteract religious or political discrimination and the positive duties imposed on public authorities to promote equality of opportunity and good relations—have now been surpassed in Great Britain by more effectively worded and more easily enforceable provisions on positive actions duties. The Equality Commission continues to highlight the gaps in Northern Ireland’s discrimination law,201 but few in the devolved government seem to be listening. It was only in December 2015 that the Office of the First and Deputy First Minister (OFMDFM) eventually published a Racial Equality Strategy, intending it to

196  But see the amendment made to the law on unfair dismissal in Great Britain by s 13 of the Enterprise and Regulatory Reform Act 2013. This was a response to the judgment of the European Court of Human Rights in Redfearn v UK (2013) 57 EHRR 2. 197  Lee v Ashers Baking Co Ltd [2016] NICA 39. 198  See www.bbc.co.uk/news/uk-northern-ireland-politics-34692546. 199  Northern Ireland Act 1998, s 4(5). 200  Formerly the Office of the First Minister and Deputy First Minister. 201 See its Gaps in Equality Law between Great Britain and Northern Ireland: Key Point Briefing (October 2015), available at www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/LawReform-NIGBDifferences-KeyPointBriefing.pdf.

Correspondent Reports—Dickson 193 endure from 2015 to 2025.202 In July, the OFMDFM published responses to its earlier consultation paper on a sexual orientation strategy, but even by late 2016 no final version of that strategy was forthcoming. Throughout 2015, the OFMDFM continued to implement its Together: Building a United Community (T:BUC) strategy, which it published in 2013, though not a lot seems to have been achieved. In April 2015, there was an announcement that a pilot programme of 100 summer camps for young people would take place later in the year. A detailed evaluation of that programme was published in May 2016 and was largely positive in its assessment of the effectiveness of the camps.203 However the proposed transfer to the Equality Commission of the duty to monitor progress on the building of good relations did not occur and even by the end of 2016, there was no suggestion that the legislation to achieve that transfer was imminent. X.  SOCIAL RIGHTS

In June there was a notable success for the prominent human rights non-governmental organisation (NGO), the Committee on the Administration of Justice (which in 2016 celebrated its twenty-fifth anniversary). This was in an application for judicial review204 which was brought to challenge the failure of the OFMDFM to comply with its statutory duty to ‘adopt a strategy setting out how it proposes to tackle poverty, social exclusion and patterns of deprivation based on objective need’.205 In his forthright judgment, which was not appealed, Treacy J made it clear that he did not think the OFMDFM had come up with any strategy at all, let alone one based on objective need. This is a rare but welcome example of a senior judge holding a government fully to account for not planning its functions in accordance with the law. By the end of the year, however, a strategy on tackling poverty had still not emerged from the OFMDFM. In January 2015, the Committee on the Administration of Justice published a new edition of its popular ‘Handbook’, retitled Human Rights in Northern Ireland rather than Civil Liberties in Northern Ireland.206 It comprises 26 chapters contributed by some 36 individuals. Topics covered include ‘Family and Sexual Matters’, ‘Children’s Rights’, ‘Education Rights’, ‘Employment Rights’, ‘Housing Rights’, Social Security Rights’ and ‘Environmental Rights’. Employment rights were boosted during the year by the enactment of the Work and Families Act (NI) 2015, which conferred

202 Available at www.executiveoffice-ni.gov.uk/sites/default/files/publications/ofmdfm/racial-equalitystrategy-2015-2025.pdf. 203  Available at www.executiveoffice-ni.gov.uk/sites/default/files/publications/execoffice/tbuc-summercamps-evaluation-report.PDF. 204  CAJ’s and Gormally’s (Brian) Application [2015] NIQB 59. See too B Dickson, ‘Failure to Produce an Anti-poverty Strategy’, Discrimination Law Association Briefings, 56, 32–33 (18 November 2015). 205  Northern Ireland Act 1998, s 28E (inserted by the Northern Ireland (St Andrews Agreement) Act 2006, s 16). 206  Brice Dickson and Brian Gormley (eds), Human Rights in Northern Ireland: The CAJ Handbook (Oxford, Hart Publishing, 2015).

194  The Irish Yearbook of International Law 2015 shared rights to leave and pay on the parents of newly born children.207 It also provided enhanced rights in relation to time off work for attendance at antenatal clinics and to requests for flexible working. Consumers in Northern Ireland also benefited from the additional protections granted by the Consumer Rights Act 2015, which has UK-wide applicability. Amongst other reforms, from 1 October 2015, it has allowed consumers a 30-day period during which they can reject, and claim a full refund for, goods which are of unsatisfactory quality, unfit for purpose or not as described.208 In the field of education,209 2015 saw a rise in support for the concept of ‘shared’ education, whereby children from Protestant and Catholic backgrounds attend the same school but do not always attend the same classes. A Bill was introduced in the Northern Ireland Assembly to give substance to this idea and it received Royal Assent in 2016.210 The legislation extends the idea of ‘sharing’ to ‘those who are experiencing socio-economic deprivation and those who are not’211 and it imposes a duty on the Department of Education (so far as its powers extend) ‘to encourage, facilitate and promote shared education’.212 This wording goes further that that used in earlier legislation regarding ‘integrated’ education,213 where children from different religious backgrounds are taught together throughout their school life: the Department’s duty is merely to encourage and facilitate such education. In Cunningham’s (Maighread) Application, Treacy J quashed the Department of Education’s decisions to refuse permission to Clintyclay Primary School in Dungannon to transform from being a Catholic-maintained school to being an integrated school (the first time a Catholic school had made such a request) and to approve the closure of the school.214 The judge was clear that both decisions were flawed because the minister had taken into account the school’s alleged financial difficulties when in fact none existed.215 A Bill to assist children with special educational needs was also introduced in the Assembly in 2015, but it too was not fully enacted until 2016.216 In LC’s (A Minor) Application, Horner J set out how an Education Board must fulfil its duty to make a statutory assessment of a child’s special educational needs.217 In this case, the North

207 

Part 2 (ss 2–14). ibid, ss 20 and 22(3). 209  For a helpful overview, see Caroline Perry, Education System in Northern Ireland, Northern Ireland Assembly Research and Information Service Briefing Paper 44/16 (2016), available at www.niassembly. gov.uk/globalassets/documents/raise/publications/2016-2021/2016/education/4416.pdf. 210  Shared Education Act (NI) 2016. 211  ibid s 2(2)(b). 212  ibid s 3. 213  Education Reform (NI) Order 1989, art 64(1). 214  Cunningham’s (Maighread) Application [2015] NIQB 25. 215  The Court of Appeal considered Treacy J’s judgment in 2016 (see [2016] NICA 12). It stressed (at [91]) that: ‘The courts should not interfere lightly with ministerial decisions taken, principally, with regard to the allocation of resources, especially against the context of a long iterative process of consultation and advice.’ As it could not be sure that Treacy J had considered all of the relevant information looked at by the Minister, the Court of Appeal remitted the case to the judge for reconsideration. 216  Special Educational Needs and Disability Act (NI) 2016. 217  LC’s (A Minor) Application [2015] NIQB 15. 208 

Correspondent Reports—Dickson 195 Eastern Board was found to have failed to take into account the representations of the child’s parents on the matter and, more generally, had adopted an unlawful approach to parents’ appeals against the Board’s refusal to make a statutory assessment. In October 2015, the Equality Commission published a research report which indicated that inequality in education had become worse in Northern Ireland since 2007.218 It found that male children had persistently lower levels of attainment than female children throughout primary and secondary education, that Protestants had persistently greater lower levels of attainment than Catholics at GCSE and A-Level, that there were fewer male school leavers entering higher education than female school leavers, that students with a disability had lower attainment levels than students without a disability and were less likely to go on to higher education, that minority ethnic school leavers were more than twice as likely to enter unemployment as their white peers, and that ‘prejudice-based bullying’ was a persistent problem in schools. The Commission published its own ‘Draft Statement’ on the topic219 and called for the issues to be addressed urgently by the Northern Ireland government. Meanwhile the use of academic criteria to select children at the age of 11 for particular secondary schools was allowed to continue throughout 2015. The Sinn Féin Minister of Education wanted to make the use of such criteria unlawful, but such a reform was unobtainable given the opposition to the idea from the majority of unionist MLAs in the Northern Ireland Assembly.220 An important development for children more generally during 2015 was the enactment of the Children’s Services Co-operation Act (NI) 2015, the result of a Private Member’s Bill taken through the Assembly by Steven Agnew of the Green Party. It places a statutory duty on government agencies to cooperate with one another when delivering services to children.221 In January 2015, Koulla Yiasouma took over as the new Commissioner for Children and Young People in Northern Ireland, having served for 16 years as the Director of a prominent NGO dealing with children’s issues, Include Youth. Throughout the year, there were discussions over the content of the Mental Capacity Bill which was passing through the Assembly. It became an Act on 9 May 2016, but despite extensive lobbying by various children’s organisations, it is limited in its application to persons who are aged 16 or over.222 Persons younger than that will have to make do with the pre-existing common law, which does not always operate to their advantage.

218 

S Burns, R Leitch and J Hughes, Education Inequalities in Northern Ireland (Belfast, ECNI, 2015). www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/Education-Key Inequalities_DraftStatement.pdf. 220  Again, see the helpful paper by Caroline Perry, Academic Selection: A Brief Overview, Northern Ireland Assembly Research and Information Service Briefing Paper 48/16 (2016), available at www.niassembly.gov.uk/globalassets/documents/raise/publications/2016-2021/2016/education/4816.pdf. 221 Chris Page, ‘“Vital” New Law Helps Children in Care and with Special Needs’ BBC News (31 December 2015), available at www.bbc.co.uk/news/uk-northern-ireland-35160117. 222  Mental Capacity Act 2016, s 1(1). 219 See

196  The Irish Yearbook of International Law 2015 In May 2015, the NIHRC published the report of its inquiry into emergency healthcare in Northern Ireland,223 the first of its kind anywhere in the world. It is an excellent reminder of how a human rights-based approach to the provision of healthcare can produce a win-win situation for all concerned. By the end of the year, the Commission was working with the Belfast Health and Social Care Trust to develop a pilot project which will create a human rights-based approach to accident and emergency care.224

223 

Available at www.nihrc.org/uploads/publications/NIHRC_Emergency_Healthcare_Report.pdf. 2015 Annual Statement on Human Rights in Northern Ireland, see n 2 above, 74.

224 See

Human Rights in Ireland 2015 FIONA O’REGAN*

INTRODUCTION

T

HE SUCCESS OF the ‘yes’ vote in the marriage equality referendum ensured that 2015 was a milestone year for human rights in Ireland. In addition to signifying a historic advancement of human rights in Ireland, the referendum also presented Ireland as a leader worldwide in the field of LGBT rights as it became the first country in the world to legalise same-sex marriage by popular vote. There were many other positive human rights developments in 2015, most notably the passing of the Assisted Decision-Making, Gender Recognition and Child and Family Relationships Acts 2015. However, Ireland’s appearance before the United Nations (UN) Committee on Economic, Social and Cultural Rights in June 2015 also highlighted the many areas in which Ireland needs to improve its human rights record and, in particular, implement more effective measures to ensure the realisation of economic, social and cultural rights which have been particularly negatively affected by the austerity policies which followed the financial crisis. I.  CONSTITUTIONAL AND LEGISLATIVE DEVELOPMENTS

A.  Marriage Equality Referendum On 22 May 2015, Ireland voted to amend its Constitution to provide for same-sex marriage. The strength of the ‘yes’ vote underlines the commitment of the Irish people to marriage equality, with over 62 per cent of the electorate supporting the ‘yes’ vote from a very high voter turnout (over 60 per cent of registered voters voted in the referendum).1 The Thirty-Fourth Amendment of the Constitution (Marriage Equality) Act 2015 amends Article 41 of the Constitution (which relates to the family) by inserting paragraph 4, which states: Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

* Trainee solicitor with Eversheds Sutherland. The views expressed in this article are those of the author and not of Eversheds Sutherland. 1 Éanna Ó Caollaí and Mark Hilliard, ‘Ireland Becomes First Country to Approve Same-Sex Marriage by Popular Vote’ Irish Times (23 May 2015) www.irishtimes.com/news/politics/irelandbecomes-first-country-to-approve-same-sex-marriage-by-popular-vote-1.2223646.

198  The Irish Yearbook of International Law 2015 However, the High Court dismissed two separate legal challenges to the referendum in June 2015 which were later also dismissed by the Court of Appeal and the Supreme Court.2 The legal challenges mainly concerned the alleged misuse of state organs and resources to promote a ‘yes’ vote in the referendum. However, the Supreme Court ruled that there was no substance to the claims made as the evidence provided was inadequate.3 The amendment took effect on 29 August 2015. The Marriage Act 2015 amends relevant legislation to provide for marriage equality. In particular, it amends the Civil Registration Act 2004 to remove the impediment to same-sex marriage and repeals the relevant sections on civil partnership.4 It also makes provision for religious bodies by providing that no Act shall be construed as obliging a religious body to recognise a same-sex marriage or oblige a religious solemniser to solemnise a marriage in accordance with a form of marriage ceremony which is not recognised by the relevant religious body.5 In addition, the 2015 Act provides for the recognition of foreign same-sex marriages6 and amends various other Acts relating to matters such as mental treatment, succession, guardianship, judicial separation and criminal evidence to reflect the extension of marriage to same-sex couples.7 B.  The Assisted Decision-Making (Capacity) Act 2015 The Assisted Decision-Making Capacity Act 2015 introduces important reforms relating to adult decision-making capacity, in particular by providing for a rightsbased approach to assisted decision making in line with the Convention on the Rights of Persons with Disabilities (CRPD). The 2015 Act is thus a significant step towards enabling Ireland to ratify the CRPD as well as the 2000 Convention on International Protection of Adults (hereinafter the Hague Convention). The Act also repeals the current Ward of Court system, provides for an expanded enduring powers of attorney regime and provides statutory recognition for advance healthcare directives for the first time. The Assisted Decision-Making (Capacity) Act 2015 applies to ‘relevant persons’ who are defined as: (a) a person whose capacity is in question or may shortly be in question in respect of one or more than one matter, (b) a person who lacks capacity in respect of one or more than one matter, or (c) a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters.8

2  ‘Court of Appeal Dismisses Two Challenges against Same Sex Marriage Referendum Result’ Irish Independent (30 July 2015) www.independent.ie/irish-news/courts/court-of-appeal-dismisses-twochallenges-against-same-sex-marriage-referendum-result-31416534.html. 3  Walshe v Ireland and Others [2015] IESCDET 37. 4  Marriage Act 2015, pts 2 (ss 4–6) and 4 (ss 8–11). 5  ibid s 7. 6  ibid s 12. 7  ibid ss 14–24. 8  Assisted Decision-Making (Capacity) Act 2015, s 2.

Correspondent Reports—O’Regan 199 The Act sets out a functional test for assessing capacity, stating that ‘a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time’.9 A person lacks capacity for the purposes of the Act if he or she is unable: —— to understand the information relevant to the decision; —— to retain that information long enough to make a voluntary choice; —— to use or weigh that information as part of the process of making the decision; or —— to communicate his or her decision (by any means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.10 The Act includes guiding principles which are to apply for the purposes of decisionmaking interventions. First, there is to be a presumption of capacity for relevant persons unless the contrary is shown.11 Relevant persons are not to be considered unable to make a decision unless all practicable steps have been taken, without success, to help him or her to do so.12 The Act also requires the individual circumstances of the relevant person to be accounted for before an intervention can be made and, for any intervention to restrict the relevant person’s rights and freedom of action as minimally as possible, to have regard for the right of the relevant person to dignity, bodily integrity, privacy, autonomy and control over his or hers financial affairs and property, to be proportionate and as limited in duration as is practicable in the circumstances.13 In addition, the guiding principles set out obligations for interveners which require them to encourage and facilitate as much participation by the relevant person in the decision-making process as possible, as well as to consider the views of other persons, such as those involved in caring for the relevant person or who have a bona fide interest in the welfare of the relevant person.14 The Act thus enshrines a rights-based approach to capacity which seeks to ensure that the decision-making intervention interferes with the rights of the relevant person to the lowest degree possible. This is in line with the equality principle which lies at the core of the CRPD. The 2015 Act repeals the Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811, and so repeals the wardship jurisdiction that previously applied in cases involving adult incapacity.15 The Act also provides for review of the decision-making capacity of all existing adult wards of court within three years of the commencement of the relevant part of the 2015 Act.16

9 

ibid s 3(1). ibid s 3(2). ibid s 8(2). 12  ibid s 8(3). 13  ibid s 8(6). 14  ibid s 8(7). 15  ibid s 7. 16  ibid s 54. 10  11 

200  The Irish Yearbook of International Law 2015 The 2015 Act provides for three types of decision-making interventions for relevant persons, not including enduring powers of attorney and advance healthcare directives which apply in cases where a person has capacity at the time they enter into such agreements and instead relate to the future when the person might not have capacity. The first type of intervention is decision-making assistance, which enables a relevant person to appoint another person to assist him or her to make a decision relating to the relevant person’s personal welfare or property and affairs or both.17 The appointer and the decision-making assistant then enter into a decisionmaking assistance agreement, which can be revoked by either party at any time or varied at any time if both parties agree to do so.18 The second type of intervention is co-decision making.19 This is a more formal process designed to be used in cases where the relevant person has less capacity to make decisions than persons capable of opting for decision-making assistance. Under the co-decision-making procedure, the relevant person appoints another person (the co-decision maker) to jointly make decisions with him or her relating to relevant matters.20 A person is suitable for appointment as a co-decision maker if he or she is a relative or friend of the appointer who ‘has had such personal contact with the appointer over such a period of time that a relationship of trust exists between them’21 and is able to perform his or her functions under the codecision agreement.22 Co-decision-maker appointments have to be made in writing and co-decision agreements have to be registered with the Director of the Decision Support Service (hereinafter the Director).23 Co-decision agreements are subject to periodic review by the Director and co-decision makers are required to submit annual reports on the performance of his or her functions as a co-decision maker to the Director.24 The final type of intervention involves either a decision-making representation order or a decision-making order.25 This is the only court-based intervention and allows a relevant person or any other person over the age of 18 and who has a bona fide interest in the welfare of the relevant person to make an application to the Circuit Court.26 This type of intervention will apply in cases where the relevant person does not have any decision-making capacity and so is unable to avail himself or herself of the other two forms of intervention. A decision-making representation order involves the court appointing a suitable person to be a decision-making representative for the relevant person,27 while a decision-making order involves the

17 

ibid s 10(1). ibid s 10(2)–(3). ibid s 17. 20  ibid s 17(1). 21  ibid s 17(2)(a). 22  ibid s 17(2)(b). 23  ibid ss 17(3) and 21. The role of the Director of the Decision Support Service is discussed further below. 24  ibid s 27. 25  ibid s 36. 26 ibid. 27  ibid s 38(2)(b). 18  19 

Correspondent Reports—O’Regan 201 court itself making the decision concerned on behalf of the relevant person where it is satisfied that the matter is urgent or otherwise expedient for it to do so.28 The 2015 Act provides for an expanded enduring powers of attorney (EPA) regime. The Powers of Attorney Act 1996 is mainly limited to decisions relating to financial matters and will eventually be replaced by the regime provided for in the 2015 Act, because the 2015 Act will apply to any EPA created after the coming into force of the relevant part of the 2015 Act.29 However, in general, the 2015 Act does not apply to any EPA created under the 1996 Act, except that a person can make a complaint to the Director of the Decision Support Service in respect of an attorney appointed under the 1996 Act.30 The 2015 Act provides for greater safeguards and oversight in relation to the appointment of attorneys and the execution and registration of EPAs compared to the 1996 Act. This includes detailed provisions relating to eligibility of attorneys31 and an oversight system by the Director, which involves extensive review of an application to register an EPA32 and reporting requirements for the attorney once registration has been approved.33 The 2015 Act introduces statutory recognition for advance healthcare directives (AHDs), which are defined in the Act as an advance expression made by a person of his or her will and preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity.34 AHDs can be made by persons over the age of 18 who have capacity and shall be complied with at a time when the person lacks capacity to give consent to treatment, the treatment to be refused and the circumstances in which the refusal of treatment is intended to apply are clearly identified in the AHD.35 A request for refusal of treatment is not legally binding, but must be taken into account during any decision-making process which relates to treatment for the person who made the AHD, if that specific treatment is relevant to the medical condition for which the person may require treatment.36 The reasons for not complying with an AHD must be recorded by the relevant healthcare professional and delivered to the person’s designated healthcare representative within seven days.37 The Act contains provisions on the application of AHDs in cases involving pregnant women who lack capacity. Where a woman is pregnant and her AHD does not specifically state whether or not she intended a specific refusal of treatment set out in the directive to apply if she were pregnant, and it is considered by the healthcare professional concerned that complying with the refusal of treatment would have a deleterious effect on the unborn child, a presumption that treatment would be

28 

ibid s 38(2)(a). ibid s 81. 30  ibid s 76. 31  ibid s 65. 32  ibid s 69. 33  ibid s 75. 34  ibid s 82. 35  ibid s 84. 36  ibid s 84(3). 37 ibid. 29 

202  The Irish Yearbook of International Law 2015 provided or continued will apply.38 However, where a pregnant woman’s AHD sets out a specific refusal of treatment that is to apply even if she were pregnant and it is considered by the relevant healthcare professional that complying with the directive would have a deleterious effect on the unborn child, then there must be an application to the High Court to determine whether or not the refusal of treatment should apply.39 The Act provides that AHDs do not have to be complied with in the case of persons being treated under the Mental Health Act 2001 or the Criminal Law (Insanity) Act 2006. As Rickard-Clarke notes, this raises important issues in relation to equality of treatment and compliance with the CRPD.40 Rickard-Clarke also notes that the 2014 Report of the Expert Group on the Review of the Mental Health Act 2001 recommended that this matter needed to be dealt with in a more complete and comprehensive manner, and in particular that the authority to override a treatment refusal where a person’s health as opposed to life is at risk should be revisited again when the mental health legislation is being revised.41 One of the key features of the 2015 Act is the provision for the appointment of a Director of the Decision Support Service who will perform an important supervision and complaints-handling role in relation to the decision-making functions provided for under the Act.42 Significantly, this is a non-court-based procedure. As well as having supervisory and complaints-handling functions, the Director will also have an important role in the promotion of the features of the 2015 Act and providing information to relevant persons and persons appointed in decision-making roles under the Act, as well as offering guidance to organisations and state bodies in relation to their interaction with decision makers.43 The Director may also publish codes or practice providing guidance to those persons and bodies interacting with relevant persons.44 The complaints procedure under the Act allows any person to make a complaint concerning a decision-making assistant, co-decision makers, a decision-making representative, an attorney or a designated healthcare representative. Following receipt of a complaint, the Director will conduct an investigation and if he or she feels that the complaint is well founded, then he or she is required to make an application to the Circuit Court for a determination.45 The Director has been provided with wide investigative powers which will enable him or her to summon and examine witnesses and require the production of documents.46

38 

ibid s 85(6)(a). ibid s 85(6)(b). 40  P Rickard-Clarke, ‘The Assisted Decision-Making (Capacity) Act 2015’ (2016) 65 Mental Capacity Law Newsletter, 39 Essex Chambers 4, 15. 41 ibid. 42  Assisted Decision-Making (Capacity) Act 2015, s 95. 43 ibid. 44 ibid. 45  ibid s 96. 46  ibid s 96(2). 39 

Correspondent Reports—O’Regan 203 C.  The Child and Family Relationships Act 2015 The Child and Family Relationships Act 2015 provides important recognition for non-traditional family structures through legislating for donor-assisted human reproduction (DAHR) and by amending and extending the laws relating to guardianship, custody, access and maintenance. Before being debated and passed by the Oireachtas (the Irish Parliament), the 2015 Act was the subject of extensive pre-legislative scrutiny, with numerous experts within the field being consulted.47 The final result is an Act which has been described as adhering to best practice worldwide on DAHR and providing for a child-centred approach throughout.48 i. DAHR The 2015 Act defines a ‘DAHR procedure’ as: [A]ny procedure performed in the State with the objective of it resulting in the implantation of an embryo in the womb of the woman on whose request the procedure is performed, where: (a) one of the gametes from which the embryo has been or will be formed has been provided by a donor, (b) each gamete from which the embryo has been or will be formed has been provided by a donor, or (c) the embryo has been provided by a donor.49

The Act states that the parents of any child born as a result of DAHR are the mother, that is, the woman who gives birth to the child, and the spouse,50 civil partner or cohabitant, as the case may be, of the mother, provided that the mother and the spouse, civil partner or cohabitant have consented to the parentage of the child through the making of a written declaration.51 Where no such declaration is made, the mother is the sole parent of the child.52 The Act also provides that the donor of the embryo or gamete that is used in the DAHR procedure is not the parent of the child and has no parental rights or duties in respect of the child.53 The 2015 Act describes the requirements for consent by donors to the use of gametes and embryos in DAHR procedures, stating that the donor must have attained the age of 18, received the necessary information detailed in the Act and made a

47 B Tobin, ‘No Democratic Deficit: Children and Family Relationships Bill Has Had a Lengthy Gestation Period’ Human Rights in Ireland (5 March 2015) http://humanrights.ie/constitution-ofireland/no-democratic-deficit-children-and-family-relationships-bill-has-had-a-lengthy-gestation-period. 48 ibid. 49  Child and Family Relationships Act 2015, s 4. 50  Originally, the word ‘husband’ was used in the place of ‘spouse’ in the 2015 Act; however, this was amended after the marriage referendum and the passing of the Marriage Act 2015. 51  Section 9 of the Child and Family Relationships Act 2015 relates to a written declaration by the mother; s 11 relates to a written declaration by the spouse, civil partner or cohabitant. 52  ibid s 5(2). 53  ibid s 5(5), (6).

204  The Irish Yearbook of International Law 2015 written declaration that he or she has received such information, consent to the procedure, consent to provide information and to the recording of certain information on the Register for Information, and that he or she is aware that he or she will not be the parent of any child born as a result of the DAHR procedure.54 The donor can revoke his or her consent provided that the gamete or embryo has not been used in any DAHR procedure.55 The 2015 Act also makes provision for the parentage of children born as a result of DAHR procedures performed before the commencement of the relevant part of the Act by allowing ‘intending parents’56 other than the mother to apply with the mother to the District Court for a declaration that the intending parent is the parent of the child in cases where no person other than the mother is recorded in the register of births as the parent of the child.57 The 2015 Act provides for the establishment of a National Donor-Conceived Person Register, which will be maintained by the Minister for Justice and Equality. An entry shall be made in the Register for every child born as a result of a DAHR procedure, stating the child’s name, date of birth and sex, his or her address, the date on which the DAHR procedure was performed and the name and address of the relevant DAHR facility.58 The donor and the parent of the child are also required to provide specified information, including name, date of birth, address and contact details, as well as, in the case of a donor, place of birth, nationality and the date on which he or she provided the gamete.59 Sections 34 and 35 of the 2015 Act make provision for children born as a result of DAHR, who have attained the age of 18, to request access to information from the Register. Information other than the donor’s name, date of birth and contact details shall be provided to the child by the Minister; however, where the child requests the name, date of birth or contact details of the donor, the Minister has to notify the donor of the request. The donor has the opportunity to make representations not to release the information if he or she feels that his or her safety or the safety of the child requires that the information should not be released.60 The Minister is then required to consider these representations and decide if sufficient reasons exist to withhold the information, having regard to the right of the donor-conceived child to his or her identity.61 If the Minister decides that sufficient reasons exist not to release the information, then he or she shall notify the child and may also inform the child of the content of the representations of the donor.62 A donor can also make a request

54 

ibid ss 6–7, 14–15. ibid ss 8 and 18. 56  Section 20(2) of the Act defines ‘intending parent’ as meaning ‘in relation to a child who is born as a result of a DAHR procedure, a person, other than the intending mother of the child who, at the time the DAHR procedure is performed, was aware of the performance of the procedure and undertook to care for, and exercise responsibilities towards, any child born as a result of the procedure, as if he or she were the parent of the child’. 57  ibid s 21. 58  ibid s 33. 59  ibid ss 24(3) and 25(3). 60  ibid s 35(2). 61  ibid s 35(3). 62  ibid s 35(3)(a). 55 

Correspondent Reports—O’Regan 205 for information about a donor-conceived child provided that the child, when he or she has attained the age of 18, has consented to recording such information on the Register.63 ii. Amendments to the Guardianship of Infants Act 1964 and the Family Law (Maintenance of Spouses and Children) Act 1976 The 2015 Act also makes important amendments to the Guardianship of Infants Act 1964, in particular by ensuring that the best interests of the child is to be the paramount consideration in relation to court proceedings on guardianship, custody and access,64 and by strengthening the rights of unmarried fathers and other relatives. The 2015 Act provides for automatic guardianship to be granted to unmarried fathers who have been cohabiting with the mother of the child for not less than 12 consecutive months after the birth of the child, including a period of not less than three consecutive months during which both the mother and the father have lived with the child.65 However, this amendment only applies to unmarried fathers who meet the cohabitation requirement after the date on which the relevant subsection comes into force.66 The Act also allows persons other than the parents to become guardians. A person will be able to apply to the court to be appointed as a child’s guardian if married to or in a civil partnership with the child’s parent or if he or she has cohabited with the child’s parent for over three years and if he or she has had shared responsibility for child’s day-to-day care for more than two years.67 These requirements also apply if the spouse, civil partner or cohabitant wishes to apply for custody of the child.68 It will also be possible for the court to appoint a person, such as a grandparent or other relative, as a child’s guardian if that person has been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.69 Again, the same requirements apply if a person who has undertaken the day-to-day care of a child for more than 12 months wishes to apply for custody.70 The 2015 Act also makes provision for the appointment of temporary guardians in cases where a parent is suffering from a serious illness or injury which would prevent him or her from exercising his or her duties as a guardian, as well as making it easier for relatives and those acting in loco parentis to apply for access to a child in the event of marital breakdown.71 In addition, the Act introduces enforcement orders where a parent or guardian has been denied custody or access.72 63 

ibid s 36. ibid s 45. 65  Guardianship of Infants Act 1964, s 2(4A) (as inserted by the Child and Family Relationships Act, s 43(c)). 66  ibid s 2(4A)(b). 67  ibid s 6C(2)(a) (as inserted by the Child and Family Relationships Act 2015, s 49). 68  ibid s 11E (as inserted by the Child and Family Relationships Act 2015, s 57). 69  ibid s 6C(2)(b). 70  ibid s 11E. 71  ibid s 6E (as inserted by the Child and Family Relationships Act 2015, s 49). 72  ibid s 18A (as inserted by the Child and Family Relationships Act 2015, s 60). 64 

206  The Irish Yearbook of International Law 2015 These may include court orders requiring that the applicant gets compensatory time with the child, that his or her expenses be reimbursed or that one or both parties attend parenting programmes, family counselling or receive information on mediation.73 Furthermore, the 2015 Act extends the law on maintenance by ensuring that a child co-parented by civil partners will have the same protections as are enjoyed by a child of a family based on marriage. The court will be able to take into account the needs of a dependent child of a civil partnered couple regarding the shared home.74 The court will also be able to order a civil partner to pay maintenance for the support of a dependent child of the civil partners, including where the child is the child of only one of the civil partners.75 iii.  Amendments to the Adoption Act 2010 The 2015 Act makes significant amendments to the Adoption Act 2010 by enabling adoption by same-sex couples and cohabitants, as well as providing greater recognition for the rights of second female parents (ie, a woman who is a parent of a donor-conceived child in line with the provisions of the 2015 Act on DAHR).76 The 2015 Act extends the right to be consulted in relation to proposals and applications to place a child for adoption77 and decisions to make an adoption order78 to the second female parent of the child. Previously, this right to be consulted only applied to fathers. An entitlement to be heard in relation to adoption order applications is also extended to second female parents.79 Amendments are also made to the 2010 Act to accommodate cases involving the adoption of donor-conceived children, including situations where the child has no parent other than the mother80 and by substituting ‘parents’ for ‘birth parents’ where the latter appears in the 2010 Act. The 2015 Act also replaces references in the 2010 Act to ‘a married couple’ in relation to eligibility and suitability to adopt with ‘a married couple, a couple who are civil partners of each other or a cohabiting couple’,81 and thus allows same-sex couples and unmarried cohabitants to adopt for the first time. D.  The Gender Recognition Act 2015 With the introduction of the Gender Recognition Act 2015, Ireland became the final EU Member State to legislate for gender recognition. The 2015 Act is a milestone for the recognition of the human rights of trans* people and is a progressive piece 73 

ibid s 18A(4). Law (Maintenance of Spouses and Children) Act 1976, ss 5B and 5C (as inserted by the Child and Family Relationships Act 2015, s 73). 75  Family Law (Maintenance of Spouses and Children) Act 1976, s 5B (as inserted by the Child and Family Relationships Act 2015, s 73). 76 Section 102 of the Child and Family Relationships Act 2015 amends s 3(1) of the Adoption Act 2010, including by inserting a definition for ‘second female parent’. 77  Adoption Act 2010, s 17 (as amended by the Child and Family Relationships Act, s 107). 78  ibid s 30 (as amended by the Child and Family Relationships Act 2015, s 112). 79  ibid s 43 (as amended by the Child and Family Relationships Act 2015, s 120). 80  ibid s 18A (as inserted by the Child and Family Relationships Act 2015, s 109). 81  See, eg, Child and Family Relationships Act 2015, ss 113–16, 118 and 119. 74  Family

Correspondent Reports—O’Regan 207 of legislation, particularly because it provides for gender recognition based on selfdetermination rather than imposing a medical or surgical intervention requirement. However, the Act has been the subject of criticism, most notably in its failure to allow access to gender recognition for trans* children and by not including any express reference to intersex persons or making provision for persons of non-binary gender.82 Section 8 of the Gender Recognition Act allows individuals to apply to the Minister for Social Protection for a gender recognition certificate. A person must be over the age of 18 to make an application under section 8.83 Applicants also have to be ordinarily resident in the state or have their birth or adoption registered within the state.84 When the Act was originally passed, there was also a requirement that the applicant not be married or a civil partner so as not to allow for same-sex marriages.85 However, this requirement was removed after the marriage referendum and the passing of the Marriage Act 2015.86 The application must be made in written (including electronic) form and no fee is to be charged.87 The applicant is required to provide the Minister with certain information including name, address, PPS number, contact details, the forename and surname by which the person wishes to be known and proof of identity.88 The applicant is also required to make a statutory declaration that he or she: (i)

has a settled and solemn intention of living in the preferred gender for the rest of his or her life, (ii) understands the consequences of the application, and (iii) makes the application of his or her free will.89

Thus, there is no requirement for the applicant to have received a diagnosis of gender identity disorder or to have undergone gender assignment surgery before being able to make an application; instead, gender recognition is based on the autonomous intention and free will of the applicant. Ireland is one of the few states which allows for gender recognition based solely on self-determination and so in this respect, the 2015 Act is highly progressive.90 After considering the information submitted by the applicant, the Minister then decides whether to issue or refuse a gender recognition certificate.91 The applicant will be given notice in writing of a decision to refuse and is permitted to appeal the decision within 90 days.92 82  See P Dunne, ‘Legal Gender Recognition in Ireland’ Human Rights in Ireland (17 July 2015) http:// humanrights.ie/gender-sexuality-and-the-law/legal-gender-recognition-in-ireland. 83  Gender Recognition Act 2015, s 9(2)(a). Individuals over the age of 16 can make a court-based application under s 12. This is discussed further below. 84  ibid s 9(1). 85  As part of the statutory declaration required under s 10(1) of the Act (see below), an applicant also had to declare that he or she was not married or a civil partner. 86  Marriage Act 2015, s 24(c). 87  Gender Recognition Act, s 8(2). 88  Applicants are also required to furnish proof of birth and evidence of ordinary residence in the state if necessary. See Gender Recognition Act 2015, s 10(1). 89  ibid s 10(1)(f). 90  See Dunne (n 82). 91  Gender Recognition Act 2015, s 8(3). 92  ibid s 8(5).

208  The Irish Yearbook of International Law 2015 Children who are over the age of 16 but under the age of 18 can also apply for gender recognition certificates.93 However, this process is more onerous, as applicants are required to apply to the Circuit Court and must submit a certificate from a medical practitioner and a certificate from an endocrinologist or psychiatrist concurring with the opinion of the medical practitioner.94 The medical practitioner’s certificate must be from the child’s primary medical practitioner and must provide that in the professional medical opinion of the practitioner, the child has attained a sufficient degree of maturity to apply for gender recognition, that the child understands the consequences of the decision and makes the decision freely and independently, and that the child has transitioned or is transitioning into his or her preferred gender.95 The child’s parent or guardian must also consent to the making of the application.96 Gender recognition certificates can be revoked if the Minister is satisfied that he or she would not have issued the certificate had he or she been aware of information or facts before deciding to issue the certificate which since have been brought to his or her notice.97 The person to whom the certificate was issued has the opportunity to make representations before the decision to revoke the certificate is made. A person to whom a gender recognition certificate is issued can also make an application to have the certificate revoked.98 The effect of issuing a gender recognition certificate is that ‘the person’s gender shall from the date of that issue become for all purposes the preferred gender so that if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman’.99 The certificate can be used as proof of identity if the person to whom it is issued chooses, but the person shall not be required to produce it as proof of gender or identity for a purpose, save as required by law.100 The issuance of the certificate shall not affect the rights or liabilities of a person or consequences of an action by the person in his or her original gender prior to the date of issue of the certificate.101 The issuing of a gender recognition certificate also does not affect the status of a person as the father or mother of a child born prior to the date the certificate was issued.102 The Act provides that where ‘a relevant gender-specific sexual offence103 could be committed or attempted only if the gender of the person to whom a gender

93 

ibid s 12. ibid s 12(4). 95 ibid. 96  ibid s 12(4)(a). An order can be made dispensing with the requirement for the consent of a parent or guardian where the court is satisfied that the ‘consent cannot be obtained because the person cannot be identified or found or is failing or neglecting to respond to a request for consent or should not be obtained because the nature of the relationship between the child concerned and the person shows that it would not be in the interest of the safety or welfare of the child to contact the person’ (Gender Recognition Act 2015, s 12(5)). 97  ibid s 14. 98  ibid s 15. 99  ibid s 18(1). 100  ibid s 18(4) and (5). 101  ibid s 18(6). 102  ibid s 19. 103  An offence is a relevant gender-specific sexual offence if it satisfies one of the conditions specified in s 23(3): ‘(a) that the offence may only be committed by a person of a particular gender; (b) that the offence may only be committed against, or in relation to, a person of a particular gender’. 94 

Correspondent Reports—O’Regan 209 recognition certificate is issued were not the preferred gender, the fact that the person’s gender has become the preferred gender does not prevent the sexual offence being committed or attempted’.104 In addition, the Act states that a part of the body surgically constructed (particularly through gender assignment surgery) is the same, for the purposes of a sexual offence, as a part of the body not so surgically constructed.105 The Act makes provision for a register of gender recognition,106 which allows persons to whom a gender recognition certificate has been issued to request that certain information relating to the recognition of the gender of the person is entered in the register.107 Certain persons, including the person to whom the entry in the register relates, but also surviving spouses, civil partners, children, parents or brothers and sisters of the person, can make applications to search the register.108 An index shall also be maintained of connections between the register of gender recognition and the register of births and the Adopted Children Register.109 E.  Redress for Women Resident in Certain Institutions Act 2015 The Redress for Women Resident in Certain Institutions Act 2015 allows certain health services to be made available without charge to survivors of the Magdalene laundries who participated in the 2013 redress scheme.110 Under the 2015 Act, participants in the scheme are entitled to certain health services without charge, including general practitioner services, certain drugs, medicine and medical and surgical appliances, nursing services, home help services, dental, ophthalmic and aural services, and, subject to a referral made by a registered medical practitioner, counselling, chiropody and physiotherapy services.111 Participants are also not required to pay charges for acute in-patient services112 and in assessing the means of a person for the purposes of availing of financial support under the Nursing Homes Support Scheme Act 2009, ex gratia payments made to participants under the 2013 Scheme are to be disregarded.113 F.  The Children First Act 2015 The Children First Act 2015 aims to enhance the care and protection of children by introducing a requirement for providers of relevant services to make ‘child 104 

ibid s 23(1). ibid s 23(4). Section 27 of the Gender Recognition Act 2015 inserts pt 3A (ss 30A–E) into the Civil Registration Act 2004, which provides for the register of gender recognition. 107  Civil Registration Act 2004, s 30B(1). 108  ibid s 30C(2) and (3). 109  ibid s 30D. 110  For further details on this scheme, see F O’Regan, ‘Human Rights in Ireland 2013’ (2013) 8 Irish Yearbook of International Law 71, 91. 111  Redress for Women in Certain Institutions Act 2015, s 2. 112  ibid s 3. 113  ibid s 4. 105  106 

210  The Irish Yearbook of International Law 2015 safeguarding statements’ and imposing a requirement on mandated persons to report child protection concerns to the Child and Family Agency. The Act also abolishes the common law defence of reasonable chastisement.114 i.  Child Safeguarding The 2015 Act requires providers of relevant services (which includes providers of educational, healthcare and residential services, as well as other services where individuals have regular access to and contact with children)115 to ensure, as far as practicable, that children are safe from harm while availing themselves of the service. The Act also requires providers of relevant services and people who propose to operate a relevant service to undertake risk assessment in relation to use of the service by a child and to prepare a written statement specifying the nature of the service and the principles and procedures to be observed to ensure the safety of a child availing himself or herself of that service.116 This statement is to be provided to members of staff of the provider and can also be provided, on request, to a parent or guardian of a child availing himself or herself of the service, the Child and Family Agency or to members of the public,117 and is to be displayed in a prominent place where the service is provided.118 The Act also requires the statement to be reviewed by the service provider at least every two years.119 If a service provider fails to furnish the Child and Family Agency with a copy of the child safeguarding statement, then the Agency will serve notice to the service provider of its intention to serve a non-compliance notice on the provider.120 The service provider is given an opportunity to respond to the advance notice,121 but a noncompliance notice will be served if the service provider does not furnish the Agency with a child safeguarding statement within the date specified in the advance notice.122 A provider can appeal the non-compliance notice to the District Court.123 The Act also requires the Child and Family Agency to establish a register of non-compliance notices which is to be available for inspection by members of the public.124 ii. Reporting The 2015 Act imposes an obligation on ‘mandated persons’ to make a report to the Child and Family Agency where that person knows, believes or has reasonable grounds to suspect, on the basis of information received or acquired in the course 114 

Children First Act 2015, s 28. See Children First Act 2015, s 2 and sched 1, where ‘relevant services’ are specified for the purposes of the Act. 116  ibid s 11(1)–(3). 117  ibid s 11(5). 118  ibid s 11(6). 119  ibid s 11(7). 120  ibid s 12(1). 121  ibid s 12(4). 122  ibid s 12(6). 123  ibid s 12(8). 124  ibid s 13. 115 

Correspondent Reports—O’Regan 211 of his or her employment or profession as a mandated person, that the child has been harmed, is being harmed or is at risk of being harmed.125 ‘Mandated persons’ include various medical professionals, social care and social workers, probation officers, teachers, member of An Garda Síochána, guardians ad litem, youth workers, foster carers, pre-school service providers, managers and staff of various temporary housing facilities, clergy members and safeguarding and child protection officers.126 Mandated persons are also obliged to make a report where a child discloses to the person that he or she has been harmed, is being harmed or is at risk of being harmed.127 A mandated person is not required to make a report in cases involving sexual activity between a child over the age of 15 years but under the age of 17 years where the other party concerned is not more than two years older than the child and the mandated person knows or believes that there is no material difference in capacity or maturity between the parties, and that the relationship between the parties is not intimidatory or exploitative.128 The child concerned must also have made it known to the mandated person his or her view that the activity should not be reported to the Agency.129 The Act also provides that a person shall be appointed by the Agency to receive such reports and that this person shall be deemed to be a designated officer under the provisions of the Protections for Persons Reporting Child Abuse Act 1998.130 The 2015 Act requires the Minister for Children and Youth Affairs to establish an interdepartmental group known as the Children First Inter-Departmental Group.131 This Group is to be composed of members of government departments, a member of the Gardaí, and employees from the Child and Family Agency and the Health Service Executive.132 The Group is tasked with promoting compliance and monitoring implementation of the Act by State Departments and is required to make an annual report to the Minister.133 II.  HUMAN RIGHTS BEFORE THE SUPERIOR COURTS

A.  O’Donnell and Others v South Dublin County Council and Others: Socio-economic Rights The Supreme Court delivered a significant decision in the realm of socio-economic rights in O’Donnell and Others v South Dublin County Council and Others.134 This case involved the right to adequate housing under Article 8 of the European Convention on Human Rights (ECHR). 125 

ibid s 14(1). ibid s 2, sched 2. 127  ibid s 14(2). 128  ibid s 14(3). 129  ibid s 14(3)(d). 130  ibid s 15. 131  ibid s 20. 132  ibid s 21. 133  ibid ss 22 and 26. 134  O’Donnell and Others v South Dublin County Council and Others [2015] IESC 28. 126 

212  The Irish Yearbook of International Law 2015 O’Donnell involved an appeal from a High Court decision to grant a declaration that the respondent, South Dublin County Council (hereinafter the Council), had, by reason of its failure to provide adequate temporary accommodation, failed to respect the rights of Ellen O’Donnell (one of the applicants in the present case) under Article 8 ECHR and section 3 of the European Convention on Human Rights Act 2003 (hereinafter the ECHR Act 2003).135 Both the applicants and the respondents appealed against the High Court decision. The O’Donnell family (the applicants) contended that the High Court erred by failing to hold that the term ‘dwelling’ under section 56 of the Housing Act 1966 includes temporary dwellings as defined in section 10(2) of the Housing (Miscellaneous Provisions) Act 1992. Alternatively, the applicants submitted that the High Court erred in failing to hold that South Dublin County ­Council had a statutory duty to provide the entire O’Donnell family with adequate and suitable caravan accommodation. The County Council contended that the entire appeal should have been dismissed and that no member of the O’Donnell family was entitled to relief. i. Background The O’Donnell family are members of the Travelling Community. The family consisted of two adults and seven children, including Ellen O’Donnell, who has cerebral palsy and is confined to a wheelchair, and who was 15 years old at the time of the High Court application.136 In 2003, the family were provided with a second-hand mobile home and second-hand caravan, both of which were wheelchair accessible.137 The caravans cost €47,000 and were paid for by means of a disability grant made for Ellen O’Donnell’s benefit.138 The Council also installed a wheelchair ramp which cost €11, 293 (according to the judgment; it is not clear whether this was in addition to or part of the €47,000 grant).139 The Supreme Court noted that the caravan and the mobile home, taken together, might well have been sufficient to accommodate the O’Donnell family;140 however, Mr and Mrs O’Donnell decided to give the caravan to Mr O’Donnell’s mother in exchange for her older caravan because the older caravan was larger. However, this older caravan was dilapidated and infested with mice, and so had to be vacated after a short time, which meant that the entire O’Donnell family had to live in the mobile home in very overcrowded conditions.141 Ellen O’Donnell’s living conditions were described in an October 2005 letter written by a housing support officer for the Irish Wheelchair Association: —— Ms O’Donnell could not get into or out of the mobile home without assistance; —— she had to share a bedroom with four other family members and the room was not wheelchair accessible, which meant she had no independent living space; 135 

ibid para 2. ibid para 5. ibid para 10. 138 ibid. The grant was made under the Housing (Disabled Persons and Essential Repairs Grants) Regulations 2001. 139  O’Donnell (n 134). 140  ibid para 11. 141 ibid. 136  137 

Correspondent Reports—O’Regan 213 —— as the internal toilet was broken, she had to use an outside toilet and had to be assisted in order to use this facility; —— the outside shower facility was not wheelchair accessible, had defective temperature control and no air heating; —— the heating did not work in the mobile home; —— the cramped conditions within the mobile home meant that Ms O’Donnell could not engage in normal activities such as doing chores or preparing food; and —— the mobile home was infested with mice.142 The housing support officer made a number of recommendations in her letter to the Council.143 She called on the Council to make an overall long-term accommodation plan for the family and in the meantime to provide the family with the biggest possible mobile home with the largest number of bedrooms available. This was to be vetted by an occupational therapist to ensure that it met Ellen’s needs. She also called on the Council to make the outside shower facility wheelchair accessible. The housing support officer also suggested buying a three-bedroom house as an alternative option. In response to this letter, the Council took the view that as it had already provided the O’Donnell family with two fully equipped caravans in 2003 and so it was now for Mr and Mrs O’Donnell to solve the problem they had created, by, if necessary, buying another caravan.144 The O’Donnells contended that they could not afford this, but the Council pointed out that an interest-free loan to the value of €6,350 could be provided under the Council’s Caravan Loan Scheme and, as the family had a total income of over €36,000, they could afford this.145 In 2007, the family decided to make an application for a loan under the Council’s Caravan Loan Repairs Scheme as well as grants under the Disabled Persons Grant Scheme and the Essential Repairs Grant Scheme.146 The family sought a loan for €56,000 to purchase a replacement two-bedroom disabled person’s caravan, or €20,000 to repair their current caravan, and €20,000 to purchase a second-hand three-bedroom caravan.147 The Council responded by noting that the claims significantly exceeded the maximum loans available under the scheme and it had no power to pay out more than €6,350.148 In September 2007, the Council inspected the applicants’ caravan again and the applicants’ solicitors wrote to the Council drawing attention to black damp spores in the mobile home and expressing concern that some of the children suffered from chronic asthma.149 The solicitors called on the Council to invoke emergency powers, failing which they would have to take court action, resulting in the legal action which was eventually commenced.150 142 

ibid para 13. ibid para 14. 144  ibid para 15. 145 ibid. 146  ibid para 16. 147  ibid para 18. 148  ibid para 19. 149  ibid para 20. 150 ibid. 143 

214  The Irish Yearbook of International Law 2015 However, the Council did make a series of counter-offers to the family both around the time of the High Court hearing and later, including various offers to provide suitable houses and caravan bays.151 The apparent reason for the refusal to accept any of the offers was that Mr and Mrs O’Donnell were insistent on new caravan accommodation rather than moving into a house.152 However, the Supreme Court noted that ‘in light of these offers it is not easy to see how the County Council had failed in its duties to the O’Donnell family as a whole, excepting Ellen’.153 ii.  The High Court Judgment The High Court held that the Council had breached its statutory duties under section 13 of the Housing Act 1988 (as amended) by failing to provide adequate temporary accommodation for Ellen O’Donnell. Section 13 applies to ‘persons who traditionally pursue or have pursued a nomadic way of life’ and states that a h ­ ousing authority: [M]ay provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence pending the provision of permanent accommodation under an accommodation programme … and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.154

While the Court accepted that by failing to make repairs to the mobile home, the O’Donnell parents had allowed the condition of the mobile home to deteriorate and so bore some responsibility for the situation, the Council nonetheless failed in its duty by not making enquiries as to why the O’Donnells were not making repairs and providing them with assistance, if necessary, to access relevant services.155 The High Court emphasised the ‘exceptional’ circumstances of the present case, particularly the overcrowding situation, which effectively ‘sets at naught the custom adaptations that were made to the mobile home to accommodate Ellen’s disability’ and that the Council was aware of this situation since 2005 and allowed it to continue when it should not have.156 The High Court held that Ellen O’Donnell’s Article 8 ECHR rights were not being vindicated because of the overcrowding situation and made a declaration that the Council had breached its statutory duties under the Housing Acts 1966–2004 by failing to provide the applicants with adequate temporary accommodation pending their placement in permanent accommodation.157 However, despite this finding in favour of the entire O’Donnell family, the Court held that any relief should be confined to Ellen O’Donnell and that any damages she would be entitled to receive were

151 

ibid para 21. ibid para 22. 153 ibid. 154  Housing Act 1988, s 13(2). 155  O’Donnell (n 134) paras 29–30. 156  ibid para 31. 157  ibid para 32. 152 

Correspondent Reports—O’Regan 215 likely to be modest as no lasting physical or psychological prejudice was caused.158 The Supreme Court thus took the view that the declaration granted only concerned the rights of Ellen O’Donnell.159 iii.  The Supreme Court Judgment The first part of the appeal involved an issue of statutory construction, as the applicants contended that the High Court failed to interpret the term ‘dwelling’ (as contained in the Housing Act 1966) in accordance with sections 2 and 3 of the ECHR Act 2003.160 Section 2 of the 2003 Act requires a court to interpret any statutory provision or rule of law in a manner compatible with the state’s obligations under the Convention.161 Section 3 requires state organs to perform their functions in a manner compatible with the state’s obligations under the Convention.162 The Supreme Court noted that statutory provisions and rules of law are subject to general rules on legislative interpretation, which may require a purposive interpretation, but do not entitle a court ‘to interpret in a manner so as to legislate’, and a statute can only be interpreted ‘in a manner consistent with clear and constant ECtHR [European Court of Human Rights] jurisprudence’.163 The Court thus emphasised that it was ‘not open to a Court to engage in a “free standing” process of interpretation, or application, by simply comparing the statute with the provisions of the Convention’ (emphasis in original).164 The O’Donnell family claimed that the definition of ‘dwelling’ in section 56 of the Housing Act 1966 should have been interpreted, by applying section 2 of the 2003 Act, to have the same meaning as the definition of ‘temporary dwelling’ contained in section 10(4) of the Housing (Miscellaneous Provisions) Act 1992.165 Section 56 enables a housing authority to ‘provide dwellings (including houses, flats, maisonettes and hostels). Such dwellings may be temporary or permanent’, whereas the definition of ‘temporary dwelling’ in the 1992 Act includes tents, caravans, mobile homes, vehicles or other structures which can be moved from place to place and are used for human habitation. The Supreme Court did not accept this argument, stating that while section 56 falls to be interpreted in accordance with the ECHR Act 2003, it is ‘explicit and unambiguous’ and applies to a power to provide permanent accommodation, although the duration of the accommodation may be temporary or permanent.166 On the other hand, the ‘temporary dwelling’ definition applies only in the context of local authorities’ powers to remove unauthorised temporary dwellings from

158 

ibid para 33. ibid para 34. 160  ibid para 35. 161  European Convention on Human Rights Act 2003, s 2(1). 162  ibid s 3(1). 163  O’Donnell (n 134) para 39. 164 ibid. 165  ibid para 43. 166  ibid para 44. 159 

216  The Irish Yearbook of International Law 2015 certain locations.167 Thus, to interpret the section 56 definition to include caravans or mobile homes would be to ‘impermissibly legislate’ and would ‘radically alter the nature of the duty, in a way not consistent with any ECtHR jurisprudence’.168 The Court also noted that it would not be consistent with the manner in which statutes are to be interpreted in accordance with national law as the interpretation sought would have far-reaching effects in entitling an applicant to a caravan on the same basis as an applicant would be entitled to a dwelling house.169 In addition, the Court emphasised that no judgment of the ECtHR assisted the applicants, but rather the ECtHR had ‘expressly stated’ in Chapman v UK170 ‘that member states of the Council of Europe are not under a duty to provide accommodation of a claimant’s own choosing’.171 The Court noted that insofar as making special provision for members of the Travelling Community goes, the Council’s duty is to provide halting sites, not caravans, as clarified in University of Limerick v Ryan172 and provided for in section 13 of the Housing Act 1988 (as amended).173 Section 13 states that a housing authority ‘may provide, improve, manage and control sites for caravans’, and the Supreme Court emphasised that this section implies a duty rather than a discretion to provide halting sites for members of the Travelling Community.174 Apart from the obligation to provide halting sites, housing authorities also have the power, under section 25 of the Housing Act 1988, to grant loans for the repair and acquisition of caravans.175 This power is subject to the delimitation that terms and conditions can be specified, such as the condition that the maximum loan available be €6,350. The Supreme Court then proceeded to consider sections 9 and 10 of the Housing Act 1988. Section 9 provides for the assessment by housing authorities of the need to provide adequate and suitable housing to persons who require or are likely to require accommodation and are in need of accommodation and unable to provide it from their own resources. Section 9 also provides that in making such an assessment, housing authorities are required to have regard to the needs for housing of persons, including those who are homeless,176 members of the Travelling Community, those living in accommodation that is unfit for human habitation or living in overcrowded

167 ibid. 168 ibid. 169 ibid. 170 

Chapman v UK, App No 27238/95 (2001) 33 EHRR 442. O’Donnell (n 134) para 44. 172  University of Limerick v Ryan (unreported, High Court, 21 February 1991). 173  O’Donnell (n 134) para 45. Section 13 was substituted by s 29 of the Housing (Traveller Accommodation) Act 1998. 174  O’Donnell (n 134) para 47. 175  ibid para 53. 176 ‘Homelessness’ is defined in Housing Act 1988, s 2 as follows: ‘A person shall be regarded by a housing authority as being homeless for the purposes of this Act if—(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or (b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is, in the opinion of the authority, unable to provide accommodation from his own resources.’ 171 

Correspondent Reports—O’Regan 217 accommodation, those sharing accommodation with another person or persons and who have a reasonable requirement for separate accommodation, those in need of accommodation for medical or compassionate reasons, and persons who are disabled or handicapped and are not reasonably able to meet the cost of the accommodation they are occupying or afford suitable alternative accommodation.177 The assessment under section 9 is to be carried out at least every three years. The Court found that the criteria listed under section 9 were ‘very revealing’178 when applied to Ellen O’Donnell’s situation from 2005 onwards, as not only was she homeless within the definition of the Act, she was living in accommodation unfit for human habitation as well as overcrowded, shared accommodation when there was a need for separate accommodation, she was in need of accommodation for medical and compassionate reasons as well as because of her disability and she was not personally able to meet the cost of the accommodation or afford a suitable alternative.179 Section 10 of the 1988 Act imposes a duty on a housing authority, when a request is made to it, to make arrangements (including financial arrangements) for the provision of accommodation for a homeless person, provide assistance (including financial assistance) to the homeless person or rent accommodation, or arrange lodgings or contribute to the cost of lodgings for a homeless person.180 The Court found that the letter sent to the Council in 2005 by the officer from the Irish Wheelchair Association made such a request and so the Council had specific notice of Ellen O’Donnell’s situation.181 The Court then had to decide whether the statutory duty owed to Ellen O’Donnell under section 10 of the 1988 Act had been breached by the Council’s failure to process the loan, initiate repairs or ascertain why Mr and Mrs O’Donnell were not seeking repairs. However, this breach of duty applied to Ellen O’Donnell only as the Court concluded that the Council did not fail in its statutory duty to Mr and Mrs O’Donnell because they were made repeated offers of housing which they declined to accept.182 The Supreme Court held that the Ellen O’Donnell’s constitutional rights to autonomy, bodily integrity and privacy were ‘substantially diminished’ because of her living conditions, in particular the exceptional overcrowding and the destruction of the sanitation facilities.183 The Court found that ‘in light of Ellen O’Donnell’s disability, her capacity to live to an acceptable human standard of dignity was gravely compromised’ and her ‘integrity as a person was undermined’.184 The Court took the view that the exceptional nature of Ellen O’Donnell’s situation and the Council’s knowledge of that situation since 2005 were sufficient to impose a special duty upon the Council.185 However, the Council argued in its appeal that 177  Housing Act 1988, s 9(2). Other categories of persons are also listed that were not relevant in this case, including young persons leaving institutional care or without family accommodation and elderly persons. 178  O’Donnell (n 134) para 60. 179 ibid. 180  Housing Act 1988, s 10(1). 181  O’Donnell (n 134) para 62. 182  ibid para 66. 183  ibid para 68. 184 ibid. 185  ibid para 69.

218  The Irish Yearbook of International Law 2015 it had discharged its duties towards Ellen O’Donnell and insofar as privacy rights might arise under Article 8 ECHR, it had assessed her long-term accommodation needs, provided temporary accommodation in 2003, upgraded and specially adapted the service unit and facilities on the bay, provided a wheelchair-accessible caravan, offered a loan to Mr and Mrs O’Donnell for the purchase of a second-hand caravan to alleviate overcrowding and made provision in its Traveller Accommodation Programme for the provision of a purpose-built specially adapted group house designed to meet Ellen O’Donnell’s long-term accommodation needs, having regard to her disability.186 The Court accepted that there was strength to these submissions and that the situation was at least partially the responsibility of Mr and Mrs O’Donnell, who were entitled to make decisions on Ellen O’Donnell’s behalf, which the Council was entitled to accept, as part of their parental rights under Article 42 of the Constitution.187 However, the Council also had a statutory duty ‘when faced with clear evidence of inhuman and degrading conditions’ to vindicate, insofar as was practicable, Ellen O’Donnell’s personal rights under Article 40.3 of the Constitution.188 The Court stated that the extent of the duty owed by the Council had to be gauged against the degree of incursion into the constitutional and statutory rights engaged.189 It was noted that a ‘mere letter will not fix an authority with liability’,190 but rather it was ‘the truly exceptional nature of what was in the letter, and its acceptance’,191 which in the circumstances was sufficient to impose on the Council a duty under section 10 of the 1988 Act to take practicable steps following the request for accommodation which was made to it.192 This duty could have been discharged by offering financial assistance for repairs or perhaps by lending a second caravan to the family.193 The O’Donnell parents were not absolved of liability; however, the Court held that the extent of their liability would have to be decided in a plenary hearing.194 iv.  The ECHR Claim The Court then proceeded to consider whether the ECHR offered any support to Mr and Mrs O’Donnell in their claim for a second caravan as there was no basis under statute or the Constitution to support this.195 Under section 3 of the ECHR Act 2003, state organs such as the County Council are required to perform their functions in a manner compatible with the state’s obligations under the ECHR.196 A court must take account of any declaration,

186 ibid. 187 

ibid para 70.

189 

ibid para 71.

188 ibid. 190 ibid. 191 ibid. 192 

ibid para 73. ibid para 74. 194  ibid para 72. 195  ibid para 75. 196  European Convention on Human Rights Act 2003, s 3(1). 193 

Correspondent Reports—O’Regan 219 decision, advisory opinion or judgment of the ECtHR when assessing whether an organ of the state defaulted in its obligation under section 4 of the ECHR Act 2003. This obligation was interpreted in the earlier Supreme Court decision of JMcD v PL197 (referring to the House of Lords decision of R (Ullah) v Special Adjudicator)198 as an obligation, subject to the Constitution, to take due account of clear and consistent principles laid down in the Strasbourg jurisprudence.199 The Supreme Court thus identified three questions which needed to be answered in the present case: 1. Is there any statutory duty on the County Council, in the context the evidence regarding the other applicants, which, insofar as the claims for a second caravan are concerned, falls to be interpreted and applied in this case? 2. If so, can those statutory duties be interpreted in light of principles laid down in clear and constant Strasbourg jurisprudence? 3. In the absence of such principles, can any power or duty be interpreted or applied on the facts of this exceptional case, which might benefit the other applicants insofar as there is evidence?200 The Court began by noting that for a duty to exist, there must be an ECHR right arising under Article 3 or 8 of the Convention. In this regard, the Court cited Charleton J in Doherty v South Dublin County Council,201 where the judge stated that there is no positive obligation on a court to intervene to uphold the private and family rights found in Article 8 ECHR and that the text of Article 8 in fact forbids interference by a public authority with the exercise of this right. The Doherty judgment also notes that both the courts of England and Wales and the ECtHR had attempted to address the issue in respect of housing or welfare conditions without formulating a principle as to when state welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected.202 Charleton J also observed that there may be a positive duty on public authorities under Article 8 where ‘special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right’.203 Thus, the Court noted that while Charleton J concluded that ‘it would be hard to conceive of a situation in which the predicament of an individual would be such that Article 8 would require that person to be provided with welfare support, where his/her predicament was not sufficiently severe also to engage Article 3’,204 he felt that, as the Supreme Court put it, ‘Article 8 would be more readily engaged where a family unit is involved, or where the welfare of children was at stake’.205

197 

JMcD v PL [2007] IESC 81. R (Ullah) v Special Adjudicator [2004] 2 AC 323. 199  O’Donnell (n 134) para 76. 200  ibid para 77. 201  Doherty v South Dublin County Council [2007] IEHC 4. 202  O’Donnell (n 134) para 81. 203  Doherty (n 201) para 36. 204  O’Donnell (n 134) para 81. 205 ibid. 198 

220  The Irish Yearbook of International Law 2015 The Supreme Court accepted this assessment, but emphasised that ‘the existence and extent of such a duty would have to be discerned from clear and consistent Strasbourg jurisprudence’.206 However, the Court found that there was no judgment from the ECtHR which conferred a ‘right to be provided with a home of one’s choice, nor are there any positive obligations to provide alternative accommodation of an applicant’s choosing’.207 Yet, the Court did note an observation by the ECtHR in Marzari v Italy208 as being of interest: The Court considers that, although Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual.209

The Court thus held that the O’Donnell family’s (excluding Ellen O’Donnell) ECHR claim could not succeed as there was no case law from the Strasbourg Court to support the right to a home of one’s own choosing, which the family claimed they were entitled to under Article 8 of the Convention.210 The Supreme Court noted that the High Court appeared to give ‘direct effect’ to the provisions of the ECHR in some passages of its judgment and that this would be at variance with the sub-constitutional status of the Convention. The Court emphasised that while legislation is to be interpreted, insofar as is practicable, in a manner compatible with the state’s obligations under the ECHR, the interpretative obligation is limited, in that the Convention-compatible construction contended for must be possible in accordance with existing legal rules concerning the interpretation and application of legislation, and cannot be relied on to support an interpretation which is manifestly inconsistent with the legislative intention behind the provisions.211 Furthermore, the Court stated that ‘a correct interpretation of a provision is irrelevant, unless there is actually some right of a claimant which is protected by the Convention and which has been breached by the manner in which the provision has been applied’.212 The Court thus did not alter the High Court judgment insofar as it affected the appellants other than Ellen O’Donnell. However, the High Court order was varied in Ellen O’Donnell’s case by providing that she was entitled to a declaration that she was entitled to damages (which the Court noted may be moderate) by reason of the Council’s breach of statutory duty towards her.213 The damages claim was remitted back to the High Court for hearing. Although the Supreme Court’s decision was less progressive in its application of Article 8 ECHR than the High Court decision,214 it is nevertheless significant

206 

ibid para 80. ibid para 83. The Court noted Chapman (n 170) in this respect. 208  Marzari v Italy [1999] 28 EHRR CD 175. 209 ibid. 210  O’Donnell (n 134) para 84. 211  ibid para 85. 212 ibid. 213  ibid para 86. 214  D O’Donovan, ‘Future Worries for ECHR Litigation in Ireland? O’Donnell v South Dublin County Council’ Human Rights in Ireland (17 June 2015) http://humanrights.ie/international-lawinternationalhuman-rights/future-worries-for-echr-litigation-in-ireland-odonnell-v-south-dublin-county. 207 

Correspondent Reports—O’Regan 221 because it suggests that in very exceptional circumstances, legislative duties coupled with constitutional or ECHR rights may protect socio-economic rights such as the right to housing.215 B.  Connolly v DPP and Redmond v Ireland: Belief Evidence and the Right to a Fair Trial In the separate judgments of Connolly v DPP216 and Redmond v Ireland,217 the Supreme Court again considered section 3(2) of the Offences Against the State Act (OASA) 1972, which provides that the belief of a Chief Superintendent of An Garda Síochána that a person is a member of an unlawful organisation can be accepted as evidence in relation to the offence of membership of an unlawful organisation. This section had been the subject of an ECtHR decision in 2013, Donoghue v Ireland,218 where the ECtHR held that the section did not violate Article 6 ECHR. The Donoghue judgment was discussed in both Supreme Court decisions. i.  Connolly v DPP The appellant was tried and convicted in the Special Criminal Court of the offence of membership of an illegal organisation in 2006.219 Among the evidence which the Court took into account was a Chief Superintendent’s belief that the appellant was a member of an illegal organisation.220 The appellant appealed to the Court of Criminal Appeal, which dismissed the appeal in 2007. However, the Court of Criminal Appeal later issued a certificate under section 29 of the Court of Justice Act 1924, allowing the appellant to appeal to the Supreme Court because the case involved a point of law of exceptional importance.221 The certified point was as follows: Is the jurisprudence of the Supreme Court, as enunciated in People (DPP) v Kelly [2006] 3 I.R. 115, in relation to belief evidence of a Chief Superintendent, pursuant to s.3(2) of the Offences Against the State (Amendment) Act, 1972, still applicable, having regard to the European Convention on Human Rights Act, 2003?222

However, the certified point pre-dated a number of significant judgments: the Court of Criminal Appeal’s 2012 judgment in DPP v Donnelly and Others,223 the ECtHR’s decision in Donoghue v Ireland224 in 2013 and the Supreme Court’s 2012

215  See L Thornton, ‘Socio-economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court’ Human Rights in Ireland (16 March 2015) http:// humanrights.ie/constitution-of-ireland/socio-economic-rights-the-constitution-and-the-echr-act-2003odonnell-v-south-dublin-county-council-in-the-supreme-court. 216  Connolly v DPP [2015] IESC 40. 217  Redmond v Ireland [2015] IESC 98. 218  Donoghue v Ireland, App No 19165/08 [2013] ECHR 1363. 219  Connolly (n 216) para 4. 220 ibid. 221  ibid para 5. 222 ibid. 223  DPP v Donnelly and Others [2012] IECCA 78. 224  Donohoe (n 218).

222  The Irish Yearbook of International Law 2015 decision DPP v Damache.225 Donnelly and Donoghue both involved section 3(2) of the OASA 1972. Donnelly set out how the Special Criminal Court treats belief evidence and balances a series of factors to ensure a fair trial.226 Donnelly was referred to extensively in Donoghue, where the ECtHR held that section 3(2) did not violate the right to a fair trial under Article 6 ECHR. The decision in Donoghue thus rendered the point certified by the Court of Criminal Appeal in the present case redundant.227 However, in his appeal to the Supreme Court, the appellant also sought to raise a further point based on the decision in Damache, where section 29 of the OASA 1939, which relates to the issuing of search warrants in relation to the commission of offences under the 1939 Act, was declared unconstitutional.228 The appellant sought to argue that the evidence gathered following a warrant issued under section 29 should be treated as being unconstitutionally obtained and therefore inadmissible.229 The effect of this would be that the belief evidence would be the only admissible evidence supporting the membership charge. Thus, the second issue for consideration in this appeal was whether the appellant should be permitted to rely on the ‘Damache point’ he was seeking to raise. ii.  The Belief Evidence The Supreme Court considered the certified point relating to belief evidence first. The Court noted the other evidence that had been submitted at the appellant’s trial to support the membership charge alongside the belief evidence, including that the appellant had been involved in buying electronic timers and then later observed meeting one of the co-accused at the trial.230 The appellant claimed to have been at his mother’s house when this meeting took place. The timers were later found in the car of another co-accused in which the first co-accused was a passenger.231 A search of the appellant’s house, following the warrant issued under section 29 of the OASA 1939, also uncovered a document the trial court later held to be an IRA ‘debriefing document’.232 The Special Criminal Court also took into account adverse inferences, which were entitled to be drawn,233 from the appellant’s silence in Garda interviews while he was in custody. The belief evidence was thus not decisive in the appellant’s conviction at trial and this was confirmed by the Court of Criminal Appeal.234 The Supreme Court discussed the developments on the evidential status of belief evidence under section 3(2) of the OASA 1972, in particular, the decisions in

225 

DPP v Damache [2012] IESC 11. Connolly (n 216) para 9. 227 ibid. 228  ibid para 10. 229 ibid. 230  ibid para 12. 231 ibid. 232  ibid para 13. 233 Based on s 2 (membership of an unlawful organisation: inferences that may be drawn) of the Offences against the State (Amendment) Act 1998. 234  Connolly (n 216) para 17. 226 

Correspondent Reports—O’Regan 223 Donnelly and Donoghue. In Donnelly, the Court of Criminal Appeal emphasised that belief evidence under section 3(2) of the OASA 1972 is only admissible for one category of offence: membership of an illegal organisation.235 This type of offence has particular features which make it more susceptible to belief evidence, including the secretive and violent nature of illegal organisations and the fact that membership is a continuing activity rather than a single act, which means that the belief can be based on a variety of sources gathered over a period of time.236 However, the belief evidence is not conclusive or immune from being challenged.237 The evidence is also not hearsay evidence as it is likely to be based on a number of different types of sources, not just the statements of informants.238 In this way, the Supreme Court noted, the Court of Criminal Appeal in Donnelly distinguished the ECtHR cases of Doorson v Netherlands239 and Al-Khawaja and Tahery v UK,240 which involved hearsay evidence as the sole and decisive evidence against a defendant.241 The Supreme Court then discussed Donoghue, in which the ECtHR listed the counterbalances which had been taken into account by the trial court following the admission of belief evidence, noting that the trial court was aware of the need to approach this type of evidence with caution, having regard to the Superintendent’s claim of privilege.242 First, the trial court in Donoghue ‘reviewed the documentary material upon which (Chief Superintendent) sources were based in order to assess the adequacy and reliability of his belief’, which acted as an important safeguard because it enabled the court to monitor throughout the trial the fairness or otherwise of upholding the claim of privilege.243 Second, the trial court, in considering the privilege claim, was alert to the ‘innocence at stake’ exception, which might enable disclosure if the non-disclosed material was relevant to the defence, and examined the material with this exception in mind.244 Third, in coming to its judgment, the trial court had expressly excluded from its consideration any information it had reviewed when it was weighing the belief evidence in the light of the proceedings as a whole.245 Finally, the trial court had specifically stated it would not convict on the basis of the belief evidence alone and that it had informed the applicant and his coaccused of its intentions as regards its procedures and afforded them an opportunity to make detailed submissions inter partes, which they did.246 The ECtHR had also noted that there were ‘strong counterbalancing factors’247 in the statutory provisions governing belief evidence, including that only high-ranking

235 

Donnelly (n 223) para 26, cited in Connolly (n 216) para 32.

237 

Donnelly (n 223) para 27.

236 ibid. 238 ibid. 239 

Doorson v The Netherlands, App No 20524/92 (1996) 22 EHRR 330. Al-Khawaja and Tahery v UK, App No 26766/05 (2011) 54 EHRR 23. 241  Connolly (n 216) para 33. 242  Donoghue (n 218) para 88, cited in Connolly (n 216) para 35. 243  Donoghue (n 218) para 88. 244 ibid. 245 ibid. 246 ibid. 247  ibid para 89, cited in Connolly (n 216) para 35. 240 

224  The Irish Yearbook of International Law 2015 police officers with significant relevant experience of dealing with unlawful organisations are permitted to give such evidence, the evidence is not admitted as fact, but rather as the belief or opinion of an expert and has no special status, and the evidence could be tested by cross-examination.248 The ECtHR thus held that the proceedings in their entirety were fair as the weight of the evidence, other than the belief evidence alone, combined with the counterbalancing safeguards and factors, was sufficient to conclude that the grant of privilege as to the sources of the Chief Superintendent’s belief did not render the applicant’s trial unfair.249 Therefore, there was no violation of Article 6 of the Convention.250 The ECtHR judgment thus addressed the original question certified by the Court of Criminal Appeal and this issue did not need to be considered any further in the present case.251 iii. The Damache Issue The Supreme Court then considered the Damache issue, which required the Court to examine whether the question of the constitutionality of the search warrant procedure under section 29 of the OASA 1939 formed part of the decision of the Court of Criminal Appeal as required under the provisions of section 29 of the Courts of Justice Act 1924.252 It was noted that the validity of the search warrant was challenged at the appellant’s trial, but this challenge was confined to submitting that the warrant was ‘bad on its face’ and ‘[n]o question of the constitutionality of the warrant procedure was raised’.253 The effect of allowing the Damache point would be to remove from consideration the evidence gathered following the warrant leaving only the belief evidence as the basis for the appellant’s conviction. The appellant then sought to distinguish his case from Donnelly and Donoghue by submitting that were the belief evidence the only evidence in the prosecution, then different considerations would apply, thus giving rise to a scenario similar to that outlined by the ECtHR in the Doorson and Al-Khawaja and Tahery cases.254 The Supreme Court stated that the appellant was effectively seeking to ‘reconfigure the facts of the appeal at hand’255 and held that the Damache point did not form part of the Court of Criminal Appeal’s decision.256 The Court of Criminal Appeal had in fact noted that the search warrant issue was ‘never really pursued’ by the appellant in his appeal to that Court and in ‘briefly alluding in its judgment to the challenge to the validity of the search warrant, the Court of Criminal Appeal was not referring to a Damache point’.257 Thus, while the Supreme Court is entitled to hear a point not certified by the Court of Criminal Appeal, this point must form part of the Court of Criminal Appeal’s decision, which the Damache point did not.258 248 

ibid paras 90–92. Connolly (n 216) para 36. 250 ibid. 251  ibid para 37. 252  ibid paras 39–40. 253  ibid para 40. 254  ibid para 43. 255 ibid. 256  ibid para 45. 257 ibid. 258 ibid. 249 

Correspondent Reports—O’Regan 225 The Damache issue could thus not be considered by the Court and so the appeal was dismissed.259 iv.  Redmond v Ireland The constitutionality of section 3(2) of the OASA 1972 was challenged in Redmond v Ireland.260 The plaintiff submitted that the section violated the guarantee under Article 38.1 of the Constitution that ‘no person shall be tried on any criminal charge save in due course of law’.261 A challenge based on Article 6 ECHR was not proceeded with in the case, apparently because the ECHR Act 2003 was not in force at the relevant time.262 However, the Supreme Court considered the jurisprudence of the ECtHR to be of assistance, particularly Donoghue,263 and so this judgment was also discussed in this case.264 The plaintiff in Redmond was convicted of the offence of membership of an illegal organisation by the Special Criminal Court in 2002.265 This conviction was partially based on belief evidence under section 3(2) of the OASA 1972, but also on extensive forensic evidence.266 The plaintiff appealed to the Court of Criminal Appeal, which affirmed the conviction in 2004. He sought leave to appeal to the Supreme Court, but this was not granted.267 The plaintiff then commenced the present proceedings seeking a declaration of unconstitutionality. In rejecting the claim of unconstitutionality, the Supreme Court began by examining the purpose behind section 3(2) and its limited scope of application. The Court noted that the purpose of the section is to help preserve the security of the state and to allow for the provision of evidence where it cannot be adduced in the normal way from lay witnesses for fear of reprisal.268 Furthermore, the section only operates ‘on a charge of membership of an unlawful organisation, only in the context of a declaration by the Government that the ordinary courts are inadequate to secure the effective administration of justice, only before a bench of three professional judges in the Special Criminal Court’269 and ‘only where a written ruling explains the acceptance or rejection of that evidence’.270 The Court also noted the extensive safeguards which apply to the section,271 in particular that only Chief Superintendents with relevant experience in dealing with unlawful organisations can provide belief evidence,272 no presumption of truthfulness or reliability applies to the Chief Superintendent,273 the belief evidence enjoys no special status, but rather 259 

ibid para 46. Redmond (n 217). 261  ibid para 1. 262  Donoghue (n 218). 263  Redmond (n 217) para 3. 264 ibid. 265  ibid para 5. 266 ibid. 267 ibid. 268  ibid para 26. 269  ibid para 29. 270 ibid. 271  ibid para 27. 272  ibid para 26. 273  ibid para 32. 260 

226  The Irish Yearbook of International Law 2015 is merely a piece of admissible evidence,274 and the belief evidence can be the subject of cross-examination.275 The Supreme Court referred to its earlier decision in Connolly (discussed above) and the ECtHR decision in Donoghue where it was commented that ‘courts of trial are alert to the need for caution’ in relation to such evidence.276 The Court also noted the factors that were taken into account by the trial court in Donoghue, and later described by the ECtHR, in ensuring fairness where a claim of privilege was made.277 The fact that belief evidence does not apply to a single individual act in the past, but rather to a continuing state of affairs, as observed in Connolly, was also taken into account in the Supreme Court’s assessment.278 The Supreme Court felt that much of the plaintiff’s argument was ‘beside the point and speculative’, as a ‘plain reading of the impugned subsection of the Act of 1972 makes it clear that belief evidence is admissible within the safeguards so carefully constructed by the legislature around the operation of the provision’.279 As well as the statutory safeguards in place, the Court also emphasised that the practice of the Special Criminal Court was not to convict on such belief evidence alone and that the Director of Public Prosecutions (DPP) also had developed a practice of not initiating a prosecution based solely on belief evidence.280 The Court stated that this practice of the Special Criminal Court and the DPP that belief evidence should not stand alone, but that the charge should be supported by some other piece of evidence, supported the constitutionality of section 3(2).281 The Court thus held that the ‘impugned provision does not offend against that constitutional guarantee where such belief evidence is part of a body of evidence’,282 which is what happened in the present case, and thus dismissed the plaintiff’s claim. C.  Sivsivadze and Others v Minister for Justice and Equality and Others: Deportation Orders and Family Rights In Sivsivadze and Others v Minister for Justice and Equality and Others,283 the appellants challenged the constitutionality of section 3(1)284 and 3(11)285 of the

274 

ibid para 33. ibid para 30. 276  ibid para 34. 277  ibid. These factors are discussed above. 278  ibid para 36. 279  ibid para 40. 280 ibid. 281 ibid. 282  ibid para 44. 283  Sivsivadze and Others v Minister for Justice and Equality and Others [2015] IESC 53. 284 Section 3 of the Immigration Act 1999 provides: ‘Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.’ 285  Section 3(11) of the Immigration Act 1999 provides: ‘The Minister may by order amend or revoke an order made under this section including an order under this subsection.’ 275 

Correspondent Reports—O’Regan 227 Immigration Act 1999 primarily on the basis that the requirement in section 3(1) that a deportation order has effect for an indefinite period without any specified limitation amounted to a disproportionate interference with the constitutional rights of the family and the right to family life.286 The appellants also made an alternative claim for a declaration of incompatibility with the ECHR pursuant to section 5 of the ECHR Act 2003.287 The High Court upheld the constitutionality of the sections and so the present case involved an appeal to the Supreme Court. The respondents attempted to argue that the appeal should be dismissed on the grounds of an abuse of process on the part of the first and fourth named appellants, who were a married couple of Georgian nationality and who had both engaged in deception in their asylum application forms.288 However, this argument was rejected by the Supreme Court having regard to the objective constitutional interests involved in the case, including those of the minor children of the first and fourth named appellants, and the fact that the case involved a challenge to the constitutionality of a provision of an Act of the Oireachtas rather than judicial review proceedings simpliciter.289 One of the premises upon which the appellants grounded their argument concerning the constitutionality of section 3(1) and 3(11) of the Immigration Act 1999 was that the deportation order made against the fourth appellant constituted an administrative sanction or punishment.290 This deportation order was made in 2001, when the fourth appellant’s asylum application was refused. The fourth appellant was instructed to report to the Garda National Immigration Bureau after the order was made, but he failed to do so and thus was classified as an evader.291 He then travelled to Iceland in 2002, but was sent back to Ireland in 2003. He also failed to present himself to the Immigration Bureau after this, but remained in Ireland until 2011.292 He made a number of applications to have the deportation order revoked, but each of these was rejected.293 The appellant was also arrested in 2011 for unlawfully seeking to enter the state while subject to a deportation order and this ultimately led to his deportation to Georgia in November 2011.294 However, he was not prosecuted or punished for any offence.295 The Supreme Court rejected the argument that the deportation order amounted to an administrative sanction stating that deporting an alien was ‘no more than the application of the law and the exercise of sovereign powers to protect the integrity of the borders of the state by refusing permission to land or to stay’.296 No alien has a right to enter or to remain in the state without lawful permission and thus making

286 

Sivsivadze (n 283) para 3.

287 ibid. 288 

ibid paras 9–17. ibid para 31. 290  ibid para 32. 291  ibid para 17. 292  ibid para 17. 293  ibid para 36. 294 ibid. 295  ibid para 37. 296 ibid. 289 

228  The Irish Yearbook of International Law 2015 the deportation order amounted simply to an executive decision, within the powers of the state, exercised by the Minister.297 The Court also emphasised that the fact that a person can be prosecuted for acting in breach of a deportation order is a separate matter and that the deportation order was not made because the fourth appellant had been convicted of any offence.298 The appellants sought to rely on a number of ECHR cases to support their argument, including Nunez v Norway,299 Emre (No 2) v Switzerland300 and Antwi v Norway.301 However, the Supreme Court distinguished these cases on the basis that they each involved individuals who had been deported because they had committed criminal offences, which was not the case in the present proceedings.302 The Court also noted that there were ‘other reasons, including the particular facts and circumstances of each case, and domestic practice in immigration cases, which also differentiate those cases in principle from the present one’,303 but did not feel that it needed to consider the cases in detail as they did not support the appellants’ submission.304 However, the Court did observe that in any event, ‘there is no prohibition, as such, in law or the Constitution which prevents the deportation of an alien as a consequence of having committed a serious criminal offence’.305 The Court also noted that the ECtHR case law shows that deportation as a sanction, where a person has committed a criminal offence, does not as such contravene the Convention.306 The central argument in the appellants’ case was that section 3(1) and 3(11) of the Immigration Act 1999 was unconstitutional because the indefinite period of exclusion from the state imposed in deportation orders disproportionately interferes with the right to family life.307 The essence of the appellants’ complaint was that as the period of exclusion from the state is not defined in the deportation order, and so extends indefinitely, and that this has a disproportionate impact on the family life of the person who has been deported because he or she will be separated from his or her spouse and children lawfully resident in the country for an unknown period of time.308 However, the Supreme Court did not accept this argument, stating that while deportation orders are not made for a particular duration, this does not give rise to a ‘constitutional frailty’ and to say that it would misconceives ‘the very nature of a deportation order made in respect of an alien, as understood in the context of these proceedings’.309 First, the Court noted that deportation orders are not necessarily unlimited in time because under section 3(11), the Minister has the power to

297 ibid. 298 

ibid para 38. Nunez v Norway, App No 55597/09 (ECtHR, 28 June 2011). Emre (No 2) v Switzerland, App No 5056/10 (ECtHR, 11 October 2011). 301  Antwi v Norway, App No 26940/10 (ECtHR, 14 February 2012). 302  Sivsivadze (n 283) para 39. 303  ibid para 40. 304 ibid. 305  ibid para 42. 306 ibid. 307  ibid para 43. 308  ibid para 47. 309  ibid para 50. 299  300 

Correspondent Reports—O’Regan 229 amend or revoke such an order.310 Thus, while the order itself ‘does not contain any limitation period on the duration of the effect of the order, its effect may be brought to an end at any time should the Minister in his discretion consider it appropriate to do so’.311 The Minister is also bound to exercise this power to amend or revoke an order in a manner compatible with the Constitution, which means that ‘he must take into account all relevant factors, including any fundamental rights concerning the family and any right to family life, where relevant, of those directly affected by such an order’.312 The Court also stated that whether the decision to make or revoke a deportation order interferes with a person’s fundamental rights and whether this interference is proportionate or not depends on the circumstances of the particular case.313 In addition, the Court noted that the Minister would be bound to take any decision under section 3 of the 1999 Act ‘with due regard to the provisions of the European Convention on Human Rights Act, 2003’.314 The Court observed that the appellants had placed particular emphasis on the indefinite and potentially lifelong duration of the deportation order under the provisions of section 3.315 However, the Supreme Court agreed with the High Court’s conclusion that the making of such an order placed the deported non-national in the same position as any other non-national, restoring the deportee to the position he previously held as a non-national who is not permitted to enter the state without permission.316 The deportee and the non-national are thus, in substance, in the same position. Thus, the Court stressed that it ‘would be incongruous to expect a deportation order of such a nature to have a defined or limited period within which the obligation to remain outside the State would end’, as non-nationals require official authority to enter the state, and the right to enter or re-enter the state is not acquired with the passage of time alone.317 Furthermore, the Court felt that it ‘would be potentially misleading to limit the obligation to remain outside the State to a specified number of years, since that could be taken as wrongly implying that the deportee was permitted to return after the expiry of such a period’.318 The Court also added that while a state might make a deportation order for a specified time in cases involving a person who has committed a criminal offence in circumstances where that person had otherwise enjoyed a right of residence in the state concerned, that was not the situation being addressed in the present case.319 The Supreme Court concluded that it was not necessary to examine the nature and scope of the rights to family life under the Constitution in the context of deportation orders, but rather that it was ‘sufficient to say that insofar as in the particular circumstances of a case a deportation order may interfere with constitutional family

310 

ibid para 51. ibid para 52. 312 ibid. 313  ibid para 52. 314  ibid para 56. 315  ibid para 57. 316 ibid. 317  ibid para 58. 318 ibid. 319  ibid para 59. 311 

230  The Irish Yearbook of International Law 2015 rights of those concerned, it is a matter for the Minister to decide whether a consideration of such rights means that a deportation order should not be made, or should be revoked’.320 Thus, the Court held that as there is nothing in section 3(1) and 3(11) or in the 1999 Act more generally ‘restricting any constitutional obligation of the Minister to exercise his discretion proportionately in the circumstances of any individual case, it cannot be said that these provisions are unconstitutional because they would necessarily involve an adverse impact on family rights (or otherwise) as guaranteed by the Constitution’.321 The Supreme Court also rejected an argument advanced by the appellants based on Article 15.2.1 of the Constitution, which vests the sole and exclusive law-making power in the Oireachtas.322 The appellants had attempted to argue that the power to amend or revoke a deportation order under section 3(11) of Immigration Act 1999 amounted to an unauthorised delegation of legislative power. However, the Court emphasised that the power of the state to exclude non-nationals was executive in nature and so Article 15.2.1 has no bearing on section 3(11).323 i.  The ECHR Claim The appellants also claimed that section 3(1) and 3(11) was not compatible with the state’s obligations under the ECHR. As the constitutional arguments had failed, the Court was now required to consider this claim. The appellants’ ECHR claim was essentially the same as their argument based on the Constitution, that is, that the indefinite duration of deportation orders under section 3 of the Immigration Act 1999 amounted to a disproportionate effect on the right to family life.324 The appellants attempted to rely on a number of cases where the ECtHR found a breach of Article 8 ECHR because of the disproportionate effect of a deportation order.325 The Supreme Court noted that the relevant case law of the ECtHR recognises that the deportation of non-nationals is a legitimate public policy objective and also serves other legitimate aims, including the prevention of disorder and crime and the protection of public health or morals. However, the ECtHR has also held that even if a deportation order pursues a legitimate aim it is still necessary for the order to be ‘necessary in a democratic society’, that is, it must be justified by a pressing social need and be proportionate to the legitimate aim pursued.326 The Supreme Court highlighted that the practice of the ECtHR was to examine the circumstances of each particular case before determining whether deportation was necessary in a democratic society and a proportionate response.327 The Court noted that many of the cases they had been asked to consider involved persons who were lawfully resident in a state, but were deported because they had committed a criminal offence and that this was not the situation in the present case. In one of 320 

ibid para 62. ibid para 63. ibid para 64. 323  ibid para 69. 324  ibid para 72. 325  ibid para 74. 326  ibid para 77. 327  ibid para 78. 321  322 

Correspondent Reports—O’Regan 231 these cases, Uner v The Netherlands,328 criteria were set out by the ECtHR to assess whether the deportation order was necessary in a democratic society, including the effect on the applicant’s family situation. In a later ECtHR case, Khan v UK,329 the ECtHR added that implicit in the Uner criteria was the importance of ensuring that the best interests and wellbeing of the children of a family were protected.330 The Supreme Court also noted that in Uner the ECtHR had ‘also considered knowledge by one spouse, at the time of establishing a family relationship, of the other spouse’s illegitimate status in the host country as a relevant factor when considering the proportionality of a deportation measure’.331 Thus, in assessing whether a deportation order is ‘necessary in a democratic society’, the ECtHR takes into account all the relevant circumstances of the particular case. The duration of a deportation order is only one such factor the Court takes into account, and so while the 10-year exclusion period was a factor in both the Uner and Khan cases, the ECtHR also had regard to other factors, including that the applicants in both cases were resident in the relevant states for long periods of time and had strong ties to the particular states.332 The Supreme Court therefore concluded that: ‘There is no case or principle enunciated by the European Court from which one could deduce that a deportation order which has the effect of removing an alien, who had and has no right to be in the host state, for an indefinite period but with the option of applying at any time for a revocation or amendment of the deportation order is, in principle, incompatible with Convention obligations.’333 Thus, while there may be circumstances in which the decision to make a deportation order or amend or revoke it could be disproportionate as to be in breach of obligations under the Convention, ‘[t]hat falls to be determined in a particular case concerning a discrete decision on its own facts’.334 Therefore, similar to the conclusion that was reached in relation to the constitutional issue, the Supreme Court held that there was nothing in section 3(1) and 3(11) or in the Immigration Act 1999 more generally which would restrict the Minister from taking into account the right to family life under Article 8 ECHR when making a decision to make, amend or revoke an order.335 The impugned provisions were thus found not to be incompatible with the obligations of the state under the ECHR and so the appellants’ appeal was dismissed.336 III.  IRELAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

The ECtHR made no judgments relating to Ireland in 2015. However, the First Section, sitting as a Chamber, declared an application inadmissible in a decision involving both Hungary and Ireland in September 2015. 328 

Uner v The Netherlands [2007] 45 EHRR 14. Khan v UK [2010] 50 EHRR 47. 330  Sivsivadze (n 283) para 80. 331 ibid. 332  ibid para 81. 333  ibid para 82. 334 ibid. 335  ibid para 85. 336  ibid para 86. 329 

232  The Irish Yearbook of International Law 2015 A.  Zoltai v Hungary and Ireland Zoltai v Hungary and Ireland337 involved a complaint by a Hungarian national based on Article 2 ECHR in its procedural dimension. The applicant was the father of two children who were killed by a car driven by an Irish national (‘T’) who was living and working in Hungary at the time.338 The accident took place in April 2000.339 In October 2000, T’s employment contract in Hungary came to an end, so he decided to return to Ireland.340 In accordance with Hungarian law, he deposited a sum of money as bail and appointed a lawyer to represent him in the forthcoming criminal proceedings, which took place in his absence.341 T’s trial took place in May 2002 and he was convicted of negligent driving causing death.342 He was sentenced to three years’ imprisonment and banned from driving. The conviction was upheld on appeal in November 2002.343 While there was an extradition agreement between Ireland and Hungary at that time, it appears that T could not have been extradited owing to a lack of reciprocity, Hungary not accepting to extradite its own nationals to other jurisdictions.344 No extradition request was made in relation to T. However, following Hungary’s accession to the European Union on 1 May 2004, both states were bound by the Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States.345 An arrest warrant for T was received by the Irish authorities in June 2005 and was endorsed by the High Court in December 2005.346 T was arrested in January 2006 and brought before the High Court, which ordered his release on bail until the hearing, which took place in December of that year.347 The High Court accepted T’s argument that his situation did not come under the relevant provision of domestic law, namely section 10 of the European Arrest Warrant Act 2003, which required a person to whom the arrest warrant relates to have ‘fled’ from the issuing state, as T had not fled the country, but rather had departed in accordance with domestic legal procedure.348 The Irish state appealed this decision, but this appeal was rejected by the Supreme Court in 2007.349

337 

Zoltai v Hungary and Ireland, App No 61946/12 (ECtHR, 22 October 2015). ibid para 3. ibid para 4. 340  ibid para 5. 341  ibid para 6. 342  ibid para 7. 343 ibid. 344  ibid para 8. 345 ibid; Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States [2002] OJ L190, 18 July 2002, 1. 346  Zoltai (n 337) para 9. 347 ibid. 348 ibid para 10. Section 10 of the European Arrest Warrant Act 2003 originally provided (before its amendment in 2010): ‘Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person … (d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she: (i) commenced serving that sentence, or (ii) completed serving that sentence, that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.’ 349  ibid para 12. 338  339 

Correspondent Reports—O’Regan 233 Section 10 of the 2003 Act was amended in 2010 to remove the reference to a person having ‘fled’ the requesting state.350 The Hungarian authorities thus issued a new warrant for T’s arrest in September of that year, which was endorsed by the High Court in October 2010.351 T’s challenge to the request for his surrender was rejected by the High Court in February 2011, but the Court allowed T to appeal to the Supreme Court as the case involved points of law of exceptional public importance.352 The Supreme Court allowed T’s appeal based on a number of different grounds, particularly abuse of process.353 However, in 2013, an arrangement was reached between the Irish and Hungarian authorities whereby T would begin his sentence in Hungary before returning to Ireland to serve the remainder of his sentence.354 Thus, T arrived in Hungary in January 2014 and commenced his sentence before returning to Ireland three days later to serve the remainder.355 The applicant argued that the facts of the case disclosed inadequate protection of the right to life contrary to Article 2. The ECtHR began by noting that Article 2 requires states to put in place ‘a legislative and administrative framework designed to provide effective deterrence against threats to the right to life in context of any activity, whether public or not, in which the right to life may be at stake’, and this obligation ‘calls for an effective independent judicial system to ensure enforcement of the aforementioned legislative framework by providing appropriate redress’.356 An effective judicial system requires recourse to criminal law under certain circumstances. The Court added that while states have discretion in deciding how a system for the implementation of a regulatory framework protecting the right to life is to be designed and implemented, the available legal remedies must amount to legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress. Any deficiency in this respect may amount to a violation of the Convention. The Court also emphasised that one of the requirements for an effective regulatory framework is promptness and reasonable expedition by authorities when conducting proceedings.357 The Court first considered the applicant’s complaint against Hungary. It noted that the Hungarian authorities had prosecuted T and that the applicant had no complaint against the conduct of those proceedings or the outcome.358 It observed that having regard to the general principles it had outlined in relation to Article 2, the Hungarian authorities could be considered to have gone further than what was necessitated by the Article.359 The main thrust of the applicant’s argument was that it took more than 11 years for T to begin his sentence, for which he held Hungary partly responsible.360 However, the Court held that there was no basis to the applicant’s complaint as the Hungarian authorities had displayed persistence in seeking the 350 

ibid para 13.

351 ibid. 352 ibid. 353  354 

ibid paras 14–20. ibid para 21.

355 ibid. 356 

ibid para 27. ibid para 29. 358  ibid para 30. 359 ibid. 360  ibid para 31. 357 

234  The Irish Yearbook of International Law 2015 return of T, in particular by acting quickly once the impediment to T’s return was removed through the amendment to the European Arrest Warrant Act 2003 in 2010.361 The Court thus found no violation by Hungary of its procedural obligations under Article 2 and declared this part of the application manifestly ill-founded.362 The Court then considered the complaint against Ireland. The applicant’s complaint against Ireland related to the lengthy delay in T’s return to Hungary and his (the applicant’s) non-involvement in the legal proceedings concerning the arrest warrant.363 In relation to the latter issue, the Court noted that while Article 2 requires states to ensure the participation of the next of kin in proceedings concerning the death of their loved ones, this had no application in the proceedings which took place before the Irish courts as those proceedings did not concern the causes of the fatal accident or T’s liability for the deaths of the applicant’s children.364 Instead, the proceedings concerned the relevant provisions and principles of Irish law and the implementation of the Framework Decision in Ireland.365 The applicant thus had no right under Article 2 to be involved in such proceedings.366 The applicant also claimed that Ireland failed to transpose the Framework Decision correctly, as a result of which the first attempt to have T returned to Hungary was frustrated and a delay ensued before T could commence his sentence.367 The Court rejected this argument by emphasising that its competence does not extend to assessing whether Contracting States correctly implement other international legal obligations.368 However, in any case, the Court considered that ‘the Irish authorities genuinely and diligently sought to operate the European Arrest Warrant procedure’, first by appealing to the High Court in the first set of legal proceedings and later by amending the 2003 Act.369 The procedure was promptly resumed following the amendments to the 2003 Act in 2010 and ultimately, the Irish and Hungarian authorities came to an arrangement allowing T to serve his sentence mainly in Ireland.370 The Court thus held that ultimately ‘accountability for loss of life was enforced’ and Ireland was found not to be in violation of its Article 2 obligations.371 This part of the application was thus also rejected as manifestly ill-founded.372 IV.  OTHER DEVELOPMENTS

A.  Ireland before the Committee on Economic, Social and Cultural Rights The Committee on Economic, Social and Cultural Rights considered Ireland’s third periodic report on the implementation of the International Covenant on Economic, 361 ibid. 362 ibid. 363 

ibid para 32.

364 ibid. 365 ibid. 366 ibid. 367 

ibid para 33.

368 ibid. 369 ibid. 370 ibid. 371 ibid. 372 

ibid para 34.

Correspondent Reports—O’Regan 235 Social and Cultural Rights (ICESCR) at its thirty-second and thirty-third meetings held on 8 and 9 June 2015. The Committee delivered its concluding observations on Ireland’s report on 19 June 2015.373 The Committee highlighted a number of positive aspects in Ireland’s report, including Ireland’s signing of the Optional Protocol to the ICESCR, its accession to the Optional Protocol to the Convention on the Rights of a Child on a communications procedure and its ratification of the International Labour Organization’s Domestic Workers Convention 2011, the Maritime Labour Convention 2006 and the UN Convention against Transnational Organised Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.374 The Committee also welcomed the marriage equality referendum, the establishment of the Low Payment Commission, the adoption of the Employment Permits (Amendment) Act 2014, the adoption of the Irish Human Rights and Equality Act 2014 and the establishment of the Irish Human Rights and Equality Commission, the adoption of the National Action Plan for Social Inclusion 2007–16 and the adoption of the national policy on mental health (‘A Vision for Change’) in 2006.375 The Committee had a broad range of concerns relating to Ireland’s record on economic, social and cultural rights and made a number of significant recommendations. However, the Committee’s first recommendation concerned data collection for the purposes of Ireland’s report. The Committee stated that the data provided by Ireland was outdated and not disaggregated and that insufficient data was supplied in relation to certain issues. It thus recommended that detailed and updated information be provided in Ireland’s next periodic report and referred Ireland to the conceptual and methodological framework for human rights indicators developed by the Office of the UN High Commissioner for Human Rights for guidance.376 The Committee expressed regret that no steps had been taken to implement the ICESCR into domestic law and that Ireland does not intend to do so. It recommended that Ireland take all appropriate measures to ensure the direct applicability of the Covenant in its domestic legal order and that training for judges, lawyers and public officials on economic, social and cultural rights is enhanced.377 Concern was expressed at the lack of free legal aid services and it was recommended that this be improved, including by expanding the remit of the Civil Legal Aid Scheme.378 The Committee made recommendations in relation to the Irish Human Rights and Equality Commission, urging Ireland to review the Irish Human Rights and Equality Commission Act 2014 with a view to ensuring that the Commission has a broader remit in the area of economic, social and cultural rights.379 The Committee also encouraged greater consultation with civil society in formulating and implementing

373 UN Economic and Social Council, Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the Third Periodic Report of Ireland’ (8 July 2015) E/C.12/IRL/CO/3. 374  ibid paras 3–4. 375  ibid para 5. 376  ibid para 6; UN Office of the High Commissioner for Human Rights ‘Report on Indicators for Promoting and Monitoring the Implementation of Human Rights’ (6 June 2008) HRI/MC/2008/3. 377  UN Economic and Social Council (n 373) para 7. 378  ibid para 8. 379  ibid para 9.

236  The Irish Yearbook of International Law 2015 policies and legislation, and recommended that an effective consultation mechanism be established.380 The Committee noted the ‘unprecedented economic and financial crisis’381 that Ireland had experienced, but suggested that greater efforts needed to be made to mitigate the impact of austerity measures. It therefore recommended that all measures taken in response to the crisis be subject to a review based on human rights standards.382 In this respect, attention was drawn to the Committee’s May 2012 open letter to States Parties on austerity policies, where it was noted that such policies must be temporary, covering only the period of the crisis, and that they must be necessary and proportionate.383 Such policies must also not result in discrimination and increased inequalities, and must ensure the protection of the minimum core content of Covenant rights at all times.384 In addition, the Committee recommended that Ireland ensure that ‘austerity measures are gradually phased out and the effective protection of the rights under the Covenant is enhanced in line with the progress achieved in the post-crisis economy recovery’, consider reviewing its tax regime with a view to restoring pre-crisis levels of public services and social benefits, and consider instituting human rights impact assessments in its policy-making process, particularly relating to ICESCR rights.385 The Committee made a number of recommendations relating to non-discrimination and the rights of particular social groups. It urged Ireland to adopt comprehensive anti-discrimination legislation which would have regard to all the grounds of discrimination set out in Article 2(2) of the Covenant.386 In relation to persons with disabilities, the Committee called on Ireland to take all necessary steps to make available alternatives to institutionalisation and to improve living conditions in residential centres, including through regular inspections.387 It also recommended improved access for persons with disabilities, including by cancelling cuts in social benefit programmes.388 In respect of asylum seekers, the Committee expressed concern that the International Protection Bill 2015 had not yet been adopted and called on Ireland to expedite the adoption of this Bill.389 Ireland was also asked to improve the living conditions in direct provision centres, implement regular inspections of such centres and ensure the accountability of private actors for their actions and omissions in relation to such centres.390 The mental health issues of asylum seekers were also highlighted as needing to be addressed.391 Finally, Ireland was urged to

380 

ibid para 10. ibid para 11. 382 bid. 383 ibid; UN Committee on Economic, Social and Cultural Rights, ‘Letter from Ariranga Pillay Chairperson of the Committee on Economic Social and Cultural Rights’ (16 May 2012), available at www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf. 384  UN Economic and Social Council (n 373). 385 ibid. 386  ibid para 12. 387  ibid para 13. 388 ibid. 389  ibid para 14. 390 ibid. 391 ibid. 381 

Correspondent Reports—O’Regan 237 improve the reception of asylum seekers with a view to ensuring their economic, social and cultural rights and facilitating their integration into society.392 The Committee noted ‘the pervasive gender inequality in the State party’ and recommended that Article 41(2) of the Constitution on the role and status of women in Irish society be amended to render it gender-equal, and that effective measures be taken to increase women’s representation in decision-making positions in order to close the gender pay gap and to eliminate strong gender role stereotypes.393 Efforts to improve Ireland’s employment situation were also encouraged, including by adopting targeted measures for Travellers, Roma, young persons and persons with disabilities.394 In addition, the Committee recommended that the adoption of the National Minimum Wage (Low Pay Commission) Bill 2015 and the Industrial Relations (Amendment) Bill 2015 be expedited, and that Ireland review all relevant legislation to ensure just and favourable conditions for all workers.395 It also recommended that the Industrial Relations (Amendment) Bill 2015 should ‘enhance the collective bargaining rights of trade unions and do away with the requirement to obtain collective bargaining licences’.396 The Committee noted the apology made to survivors of the Magdalene Laundries and the establishment of the ex gratia scheme in 2013, but nevertheless expressed concern that no independent investigation into the Laundries had been conducted.397 It thus recommended that ‘a prompt, thorough and independent investigation’ be conducted by the state, that those responsible be brought to justice and that all victims be provided with effective remedies.398 The Committee recommended that eligibility criteria regarding social welfare benefits and their application be clarified to reduce the number of social welfare appeals and that initial decisions on social welfare appeals be made in a consistent and transparent manner.399 Ireland was also asked to review the habitual residence condition so as to eliminate its discriminatory impact on access to social security benefits, particularly among disadvantaged and marginalised individuals and groups.400 The Committee expressed concern that ‘domestic violence is pervasive in the State party’ and thus recommended that Ireland take ‘all the measures necessary to combat domestic violence, in particular by introducing a domestic violence bill, improving data collection on domestic violence and strengthening support services, including shelters and legal aid, for victims of domestic violence’.401 In addition, the Committee made recommendations in relation to maternity benefit and childcare services, calling on Ireland to review the maternity benefits scheme with a view to ensuring

392 ibid. 393 

ibid para 15. ibid para 16. 395  ibid para 17. 396  ibid para 19. 397  ibid para 18. 398 ibid. 399  ibid para 20. 400  ibid para 21. 401  ibid para 22. 394 

238  The Irish Yearbook of International Law 2015 that all women benefit from the scheme and also to expedite the proposed Family Leave Bill and take all necessary measures to meet the childcare needs of families.402 Poverty, food insecurity and malnutrition were also highlighted by the Committee, with Ireland being urged to step up its efforts to reduce poverty, in particular through the adoption of poverty reduction programmes and strategies which integrate a human rights-based approach.403 In addition, the Committee recommended that concrete measures be taken to address the food and nutritional needs of disadvantaged families and that Ireland ‘expedite the adoption of national action plan on food security and nutrition in line with the 2004 Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security’.404 The Committee made considerable recommendations in relation to adequate housing, drawing Ireland’s attention to its General Comments No 4 (1991)405 and No 7 (1997)406 on the right to adequate housing.407 In particular, Ireland was asked to review its policies to make them more effective in responding to the real needs of the population, especially disadvantaged and marginalised groups, to increase social housing, to consider introducing legislation on private rent and increasing rent supplements and banking regulations in order to strengthen protection for mortgage borrowers in arrears, to take all necessary measures to meet the critical needs of people who are homeless or at risk of being homeless and to establish effective complaint mechanisms for local authority tenants.408 The Committee also reiterated its previous recommendation that steps be taken to provide Travellers and Roma with culturally appropriate accommodation.409 The Committee noted the deterioration in healthcare services due to budget cuts in recent years and urged the state to take all necessary measures to improve such services, including by increasing public spending on healthcare and expediting the introduction of a universal health services system and community-based health services.410 Ireland was also encouraged to strengthen the Health Information and Quality Authority and to take measures to reduce the disparity between Travellers and Roma and the general public in health and access to health services.411 In relation to mental health, the Committee recommended revision of the Mental Health Act 2001 and that Ireland expedite the implementation of ‘A Vision for Change’, as well as calling for immediate measures to be taken to separate child patients from adults in psychiatric facilities.412

402 

ibid para 23. ibid para 24. 404  ibid para 25. 405  UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant)’ (13 December 1991) E/1992/23. 406  UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 7: The Right to Adequate Housing (Art. 11.1): Forced Evictions’ (20 May 1997) E/1998/22. 407  UN Economic and Social Council (n 373) para 27. 408 ibid. 409 ibid. 410  ibid para 28. 411 ibid. 412  ibid para 29. 403 

Correspondent Reports—O’Regan 239 Ireland’s ‘highly restrictive legislation on abortion’ was also criticised, particularly the criminalisation of abortion.413 The Committee recommended that Ireland should take ‘all the steps necessary, including a referendum on abortion, to revise its legislation on abortion, including the Constitution and the Protection of Life During Pregnancy Act 2013, in line with international human rights standards’, as well as adopting guidelines to clarify what constitutes ‘a real substantive risk to the life of a pregnant woman’ and publicising information on crisis pregnancy options, as well as other information on sexual and reproductive health.414 The Committee also made comments on the right to education, recommending that all necessary measures be taken to bring the relevant laws on education into line with international human rights standards, and that the number of non-denominational schools be increased, admission policies be reviewed with a view to removing discriminatory criteria and that austerity measures that disproportionately affect disadvantaged children be revoked.415 Ireland was also urged to improve efforts to promote inclusive education for all, including the implementation of the Education for Persons with Special Educational Needs Act 2004.416 Among the Committee’s final recommendations was that Ireland should ‘expedite its efforts to give legal recognition to Travellers as an ethnic minority and include them as an ethnic minority in anti-discrimination legislation’417 and that efforts to expand broadband internet access in rural areas be intensified.418 Ireland was also encouraged to ensure that before it enters into agreement with or implements any fiscal consolidation policy prescribed by international organisations, that such agreement or policy be in compliance with its obligations under the Covenant419 in order to achieve its ‘commitment to official development assistance of 0.7 per cent of its gross national product and to pursue a human rights-based approach in its development cooperation policy’,420 to withdraw its reservation to Article 13(2)(a) of the Covenant and to ratify the Optional Protocol to the ICESCR and the Convention on the Rights of Persons with Disabilities.421

413 

ibid para 30.

414 ibid. 415 

ibid para 31. ibid para 32. 417  ibid para 33. 418  ibid para 34. 419  ibid para 35. 420  ibid para 36. 421  ibid para 37. 416 

240 

Ireland and International Law 2015 DUG CUBIE*

INTRODUCTION

R

EVIEWING THE KEY issues arising in 2015 for Ireland from an international law and foreign relations perspective from the vantage point of early 2017, one is stuck by how the level of global uncertainty and fear for the future has increased in such a short period of time. The conclusion of multilateral international agreements during 2015, such as the Sustainable Development Goals and the Paris Agreement on Climate Change, provided much-needed optimism that global approaches to major challenges could be negotiated despite the diverse interests at stake. However, the events of 2016, particularly Brexit and election of President Trump, have signalled a fundamental shift of focus and concern. This is not to say that things were plain sailing during 2015. That year commenced with the devastating impact of the Ebola virus in West Africa, and the Syrian crisis reached its fifth year with no signs of abatement. Moreover, fighting was ongoing in eastern Ukraine and the November 2015 terrorist attacks in Paris shocked the world. Likewise, the April 2015 Nepalese earthquake overwhelmed both local communities and international tourists in the Himalayas. One is also struck by the level of preparation for Brexit on the part of the Irish authorities, even if during 2015 it was thought a remote possibility that the UK would actually vote to leave the European Union (EU). Indeed, the importance of Ireland’s role within the EU was one of the key themes highlighted in the comprehensive review of Irish foreign policy launched in January 2015. New policy documents were also launched covering Ireland’s Diaspora Policy and a White Paper on defence. From an operational perspective, the Irish Defence Forces continued their active engagement in peacekeeping missions, in particular the long-standing commitment to Lebanon and the Golan Heights, and Irish overseas development assistance increased to nearly €650 million, including €142 million for emergency humanitarian support in conflicts and natural disasters. Meanwhile, in June consular officials at the Department of Foreign Affairs and Trade responded to the tragic deaths of six young Irish students in Berkeley, California. I.  INTERNATIONAL AGREEMENTS

Building on the Outcome Statement of the United Nations (UN) Conference on Sustainable Development held in Brazil in 20121 (known as ‘Rio+20’ as it was held

*  Lecturer, School of Law, University College Cork. 1  UNGA Resolution A/66/L.56, The Future We Want (24 July 2012).

242  The Irish Yearbook of International Law 2015 20 years after the first UN conference on sustainable development), 2015 was a crunch year for the conclusion of several connected international agreements. The Millennium Development Goals (MDGs) adopted in 2000 had set ambitious targets to reduce global poverty for the period 1990–2015. As the end point of the MDGs period approached, extensive work was undertaken by the UN, governments and civil society to prepare a follow-on programme for the period 2015–30, including realistic targets for the reduction of poverty, maternal mortality, gender disparities and other key indicators of sustainable development.2 Of note, UN Secretary-General Ban Ki-moon appointed Ireland as a co-chair of the negotiating process which led to the successful conclusion of the Sustainable Development Goals (SDGs) in October 2015.3 Running parallel to the negotiations on sustainable development, the devastating impact of natural and human-made disasters was recognised through the adoption of the Sendai Framework on Disaster Risk Reduction 2015–2030, in the form of non-binding commitments for international cooperation and disaster prevention and preparation measures.4 The third interconnected agreement which was concluded during 2015 was the contentious successor to the Kyoto Protocol under the UN Framework Convention on Climate Change (UNFCCC).5 In advance of the final negotiations, to mark World Environment Day on 5 June, Ireland announced €2 million in funding for the world’s poorest countries to strengthen their ability to adapt to climate change and tackle environmental degradation, as well as to support them to engage in international negotiations in Paris.6 Likewise, Alan Kelly TD, Minister for the Environment, Community & Local Government, participated in the development of the EU common negotiating position for the Paris Agreement, noting in September 2015 that: ‘Ireland looks forward to working with partners in the negotiations to ensure we reach an ambitious outcome.’7 The final agreed text of the ‘Paris Agreement’ of 12 December 2015 ultimately committed signatory states to: Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognising that this would significantly reduce the risks and impacts of climate change.8

2  UNGA Resolution A/Res/70/1, Transforming Our World: The 2030 Agenda for Sustainable Development (21 October 2015). 3  Department of Foreign Affairs and Trade, ‘Ireland’s Ambassador to Co-chair Global Development Negotiations’, press release, 23 October 2014. 4 UN, Sendai Framework for Disaster Risk Reduction 2015–2030 (18 March 2015) A/CONF.224/ CRP.1. 5  For further discussion of the interconnected nature of these three agreements, see D Cubie, ‘Promoting Dignity for All: Human Rights Approaches in the Post-2015 Climate Change, Disaster Risk Reduction and Sustainable Development Frameworks’ (2014) 8(1) Human Rights and International Legal Discourse 36. 6  Department of Foreign Affairs and Trade, ‘Funding Announced to Mark World Environment Day’, press release, 5 June 2015. 7  Department of Housing, Planning, Community and Local Government, ‘Minister Kelly Welcomes Agreement of EU Negotiating Mandate for Paris’, press release, 18 September 2015. Ireland formally signed the Paris Agreement in April 2016, which will be covered in next year’s correspondent’s report. 8  Article 1(a) of the Paris Agreement under the UNFCCC (12 December 2015).

Correspondent Reports—Cubie 243 Former Irish President Mary Robinson, in her role as President of the Mary Robinson Foundation—Climate Justice and as the UN Secretary-General’s Special Envoy on Climate Change, welcomed the conclusion of the Agreement. In a guarded statement, Robinson noted that the Agreement had ‘the potential to set in train the steps needed to protect people living in the most vulnerable situations’, while also noting that it had ‘fallen short of adopting a human rights based approach’.9 Friends of the Earth Ireland likewise argued that the ‘weak’ agreement required ‘people power to drive the transition to climate safety’. Dr Cara Augustenborg, Chairperson of Friends of the Earth Ireland, noted: While this historic global agreement offers opportunities to safeguard the inhabitants of our planet, it will not avoid two degrees of warming based on the current national pledges and the lengthening of the time scale for implementation.10

Meanwhile, Ireland’s long-standing commitment to nuclear non-proliferation was stressed by the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, in advance of the UN Nuclear Non-proliferation Treaty Review Conference in New York on 27 April 2015. Minister Flanagan reiterated that nuclear disarmament ‘remains a core part of Ireland’s foreign policy. There needs to be concrete progress on nuclear disarmament and Ireland will continue to strive for the achievement of a world without nuclear weapons’.11 In recognition of the sixtieth anniversary of Ireland’s signature of the UN Charter in 1955, a series of events were held during 2015. Ban Ki-moon launched the commemorations in May 2015 when he visited Ireland to receive the Tipperary International Peace Prize.12 Minister Flanagan subsequently hosted an international symposium in December entitled ‘Reflecting on the Past, Preparing for the Future’. Flanagan highlighted Ireland’s ongoing commitment to the aims and objectives of the UN and noted that Peter Sutherland and Mary Robinson currently held key positions as Special Representatives to the UN Secretary-General on issues of global concern, namely international migration and climate change respectively.13 A.  List of Multilateral Agreements that Entered into Force during 2015 The following is a list of the multilateral agreements that entered into force for Ireland during 2015.

9  An Agreement for Humanity—Statement from Mary Robinson on the Paris Agreement (12 December 2015), available at: www.mrfcj.org/resources/statement-from-mary-robinson-on-the-paris-agreement. 10  Friends of the Earth Ireland, ‘Weak Paris Agreement Requires People to Drive Transition to Climate Safety’, press release, 12 December 2015. 11 Department of Foreign Affairs and Trade, ‘Minister Flanagan to Address the Nuclear Nonproliferation Treaty Review Conference in New York’, press release, 27 April 2015. 12 Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes Upcoming Visit of UN Secretary-General Ban Ki-moon’, press release, 22 May 2015. 13 Department of Foreign Affairs and Trade, ‘Minister Flanagan Hosts UN Leaders to Mark 60th Anniversary of Ireland at the United Nations’, press release, 17 December 2015. For the full text of the speech made by Minister Flanagan at the event, see Department of Foreign Affairs and Trade, ‘Symposium to Celebrate 60 Years of Ireland at the United Nations’, speech, 17 December 2015.

244  The Irish Yearbook of International Law 2015 ITS Number No 1 of 2015

Title of Agreement Amendment of the Declaration made by Ireland upon its ratification of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts. Notification of amendment deposited on 12 January 2015, entered into force on 12 January 2015.

No 4 of 2015

Cooperation Agreement on a Civil Global Navigation Satellite System (GNSS) between the European Community and its Member States and the Kingdom of Morocco, done at Brussels on 12 December 2006. Notification of completion of procedures necessary for entry into force deposited on 13 February 2012, entered into force 1 March 2015.

No 5 of 2015

Internal Agreement between the representatives of the governments of the Member States of the EU, meeting within the Council, on the Financing of European Union Aid under the Multiannual Financial Framework for the period 2014 to 2020, in accordance with the ACPEU Partnership Agreement, and on the allocation of financial assistance for the Overseas Countries and Territories to which part four of the Treaty on the Functioning of the European Union applies, done at Luxembourg and Brussels on 24 June and 26 June 2013 respectively. Notification of the completion of procedures required for entry into force deposited on 17 November 2014, entered into force 1 March 2015.

No 7 of 2015

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, done at Luxembourg on 16 June 2008. Notification of completion of procedures necessary for entry into force deposited on 4 June 2009, entered into force 1 June 2015.

No 8 of 2015

International Labour Organization, Maritime Labour Convention, 2006, done at Geneva on 23 February 2006. Ireland’s Instrument of Ratification deposited on 21 July 2014, entered into force with respect to Ireland on 21 July 2015.

No 10 of 2015

Statute of the International Renewable Energy Agency (IRENA), done at Bonn on 26 January 2009. Ireland’s Instrument of Ratification deposited on 9 June 2015, entered into force with respect to Ireland on 9 July 2015.

No 11 of 2015

International Labour Organization, Convention Concerning Decent Work for Domestic Workers, done at Geneva on 16 June 2011. Ireland’s Instrument of Ratification deposited on 28 August 2014, entered into force with respect to Ireland on 28 August 2015.

No 13 of 2015

Agreement between the Member States of the EU, meeting within the Council, regarding the protection of classified information exchanged in the interests of the EU, done at Brussels on 4 May 2011. Notification of the completion of procedures necessary for entry into force deposited on 6 October 2015, entered into force with respect to Ireland on 1 December 2015. (continued)

Correspondent Reports—Cubie 245 ITS Number No 14 of 2015

Title of Agreement Free Trade Agreement between the EU and its Member States, of the one part, and the Republic of Korea, of the other part, done at Brussels on 16 September 2010. Notification of the completion of procedures necessary for entry into force deposited on 8 August 2011, entered into force with respect to Ireland on 13 December 2015.

B.  Statements on the Work of the International Law Commission Over the course of 2015, the Department of Foreign Affairs and Trade (DFAT) provided written statements in the UN General Assembly Sixth Committee (Legal) on a variety of topics under consideration by the International Law Commission. These statements are included in full in the Documents section of this Yearbook.14 The two statements covered the following topics: —— Statement to UNGA 70, 6 November 2015 on Part 2 of the ILC Report relating to Identification of Customary International Law.15 —— Statement to UNGA 70, 10 November 2015 on Part 3 of the ILC Report relating to Immunity of State Officials from Foreign Criminal Jurisdiction and Provisional Application of Treaties.16 II.  DIPLOMATIC MATTERS

During 2015, the President of Ireland Michael D Higgins received credentials from ambassadors representing: Iceland, the People’s Republic of Bangladesh, the Republic of Kazakhstan,17 the Republic of Cyprus, Greece and Israel.18 Furthermore, the Minister for Foreign Affairs and Trade welcomed the appointment of Kevin Vickers as the new Canadian Ambassador for Ireland. Minister Flanagan noted the courageous actions of Mr Vickers as the Sergeant-at-Arms in the Canadian Parliament in

14 

See pp 301 and 303 below. Statement by Mr James Kingston, Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 70th Session, Agenda Item 83: The Report of the International Law Commission on the Work of its 67th Session, 6 November 2015, available at: www. dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/Statement-by-Ireland-onPart-2-of-the-ILC-Report--2016.pdf. 16  Statement by Mr Trevor Redmond, Assistant Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 70th Session, Agenda Item 83: The Report of the International Law Commission on the Work of its 67th Session, 10 November 2015, available at: www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/Statementby-Ireland-on-Part-3-of-the-ILC-Report--2016.pdf. 17  Department of Foreign Affairs and Trade, ‘New Ambassadors Present Credentials’, press release, 26 June 2015. 18  Department of Foreign Affairs and Trade, ‘New Ambassadors Present Credentials’, press release, 5 November 2015. 15 

246  The Irish Yearbook of International Law 2015 Ottawa during the terrorist attack which took place in October 2014.19 On meeting Ambassador Vickers, Flanagan stressed the strong business, political and cultural links between Ireland and Canada, and noted that Ireland’s annual trade with Canada amounts to at least €2.75 billion.20 Ireland also celebrated 40 years of Irish–Mexican consular relations in January 2015. In addition to stressing the current ties between Ireland and Mexico, Seán Sherlock TD, Minister for Development, Trade Promotion and North-South Cooperation, noted important historical ties, including the role of William Lamport from County Wexford in drafting the first Mexican Declaration of Independence in the 1640s and the last Viceroy of Mexico in the 1820s, Juan O Donojú (O’Donoghue), whose family originally came from County Kerry.21 III.  FOREIGN POLICY, BILATERAL RELATIONS, CONSULAR SERVICES AND THE DIASPORA

A.  Foreign Policy Over the course of 2014, the government had initiated a series of consultations regarding Ireland’s foreign policy, diaspora affairs and position in the world. The culmination of these consultations occurred with the launch in January 2015 of the first comprehensive document on Ireland’s foreign policy objectives since the 1996 White Paper Challenges and Opportunities Abroad.22 The report, The Global Island: Ireland’s Foreign Policy in the Changing World, set out five key thematic areas for Irish foreign policy, which it summarised as covering: i.

ii.

iii.

Our people: peace and reconciliation on the island of Ireland; the provision of support for Irish citizens travelling, living and working abroad; the growing engagement with the Irish diaspora; and the promotion of Irish culture abroad. Our values: Ireland’s support for a fairer, more just, more secure and more sustainable world through its development programme, human rights policies, peacekeeping, disarmament and security policies and growing engagement with emerging global issues including climate change; alongside the role of the EU and UN in amplifying Ireland’s voice and extending its influence. Our prosperity: the global economic background to the ongoing efforts in support of recovery, growth and job creation, in particular through trade, tourism, education, investment and the enhancement of Ireland’s reputation.

19  Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes Appointment of Mr Kevin Vickers as Canadian Ambassador to Ireland’, press release, 8 January 2015. 20  Department of Foreign Affairs and Trade, ‘Minister Flanagan Meets New Canadian Ambassador to Ireland, Kevin Vickers’, press release, 21 January 2015. 21  Department of Foreign Affairs and Trade, ‘Ireland and Mexico Celebrate 40 Years of Diplomatic Relations’, press release, 22 January 2015. 22 For debates on the White Paper in March 1996 in Dáil Éireann, see: http://oireachtasdebates. oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1996032800007. An additional policy document on Ireland’s global diaspora was launched in February 2015; see section III.D below for further details.

Correspondent Reports—Cubie 247 iv.

v.

Our place in Europe: the fundamental importance for Ireland in all of the foregoing areas of our membership of the EU and how the government engages across the broad agenda of EU decision making to safeguard and promote the interests of Ireland and to shape the EU and its global engagement. Our influence: how Ireland can best leverage the resources available to secure the maximum benefit for the Irish people from Ireland’s international engagement.23

Accompanying the report, the DFAT issued a statement of strategy for the period 2015–17, setting out the outcomes and priority outputs for each of the five thematic areas. In launching the report, the Taoiseach (Prime Minister), Enda Kenny TD, argued that ‘our foreign policy is at heart about protecting and promoting our national interests, broadly defined. Crucially, a responsive and relevant foreign policy depends on effective partnerships and teamwork for its execution—at home and abroad’.24 Minister Flanagan likewise noted that: The Global Island reaffirms Ireland’s principled engagement in areas such as international development, human rights, disarmament, UN peacekeeping and the search for peace in the Middle East.25

These foreign policy priorities were subsequently outlined by Minister Flanagan at the UN General Assembly.26 However, while the report was generally welcomed, specific issues were raised. Drawing on the Galway Platform on Human Rights in Irish Foreign Policy launched in December 2013,27 Shane Darcy from NUI Galway noted that the discussion of links between business and human rights were particularly disappointing, and did not reflect submissions made by members of civil society such as Amnesty International and Trócaire regarding the need for a human rights approach to Ireland’s trade promotion work.28 Likewise, in May 2015, Michael O’Flaherty, then Director of the Irish Centre for Human Rights, NUI Galway and former Vice-chair of the UN Human Rights Committee, penned on open letter to Ban Ki-moon to query aspects of the new foreign policy. In particular, O’Flaherty highlighted that the document was ‘short on firm forward-looking commitments’ in relation to human rights and that apart from one brief chapter, there were very few

23  Department of Foreign Affairs and Trade, The Global Island: Ireland’s Foreign Policy in the Changing World (January 2015) 9. See also G Keown, ‘Representing the Global Island: A Review of Ireland’s Foreign Policy’ (2015) 10(4) The Hague Journal of Diplomacy 430. 24  Department of the Taoiseach, ‘Opening Remarks by the Taoiseach at Department of Foreign Affairs Conference “Representing the Global Island” Dublin Castle’, Taoiseach’s speeches, 13 January 2015. 25  M Minihan, ‘First Major Review of Foreign Priorities in 20 years Highlights Five Signature Irish Policies’ Irish Times (14 January 2015). 26  Department of Foreign Affairs and Trade, ‘Minister Flanagan Addresses UN General Assembly on Ireland’s Foreign Policy Priorities’, press release, 1 October 2015. 27  The text of the Galway Platform on Human Rights in Irish Foreign Policy is available at: www. nuigalway.ie/media/intranet/Galway-Platform-Final-Version.pdf. 28  S Darcy, ‘A Missed Opportunity? Business and Human Rights in Ireland’s Foreign Policy Review’ Human Rights in Ireland Blog (9 February 2015), available at: http://humanrights.ie/international-lawinternational-human-rights/a-missed-opportunity-business-and-human-rights-in-irelands-foreign-policyreview. See also section VII below for further discussion of business and human rights.

248  The Irish Yearbook of International Law 2015 references to human rights elsewhere in the document.29 O’Flaherty also highlighted ongoing and historic human rights abuses which have occurred within Ireland, such as against members of the Travelling Community and the treatment of women and children in Magdalene Laundries and mother and baby homes.30 B.  Bilateral Relations Continuing the strong bilateral relations between Ireland and the UK, and building on President Michael D Higgins’ successful state visit to the UK in 2014, was a key feature of Irish foreign policy in 2015. In particular, a series of visits to Scotland by senior government ministers took place. In February 2015, Minister Flanagan met with the Scottish First Minister, Nicola Sturgeon MSP, in Edinburgh to ‘open a new chapter in Irish-Scottish relations’.31 Minister Flanagan noted his desire for greater two-way trade and investment, tourism exchange, research collaboration, and the exchange of people and ideas. In particular, he committed government support for these objectives, including ‘through official visits and exchanges and through the assignment of an additional diplomatic officer to Ireland’s Consulate General in Edinburgh’.32 In a post-Scottish independence referendum but pre-Brexit context, Flanagan noted in a major speech at the Europa Institute in the University of Edinburgh: As we consider the quality and the depth of the bonds between Ireland and Scotland, we must not overlook the role our common membership in the EU has played in bringing us even closer together. Being in the EU—together—has facilitated commercial links between our two countries. It has helped our respective businesses forge sustainable and enduring relationships with one another, to the benefit of both of our economies. The EU has boosted tourism and travel, making Ireland and Scotland better connected while simultaneously opening us to the world beyond.33

The Minister for Diaspora Affairs, Jimmy Deenihan TD, subsequently developed the focus on Scotland through a visit in April 2015 for discussions with the Irish community in Glasgow and Edinburgh. During his visit, Minister Deenihan noted the shocking murder of Irish nurse Karen Buckley in Glasgow and commended the assistance provided by the Scottish authorities her family.34 The connections between

29 M O’Flaherty, ‘Open Letter to Ban Ki-Moon: ‘Ireland’s Commitments to Human Rights are Being Weakened’ TheJournal.ie (22 May 2015), available at: www.thejournal.ie/readme/ human-rights-ireland-ban-ki-moon-2118179-May2015. 30 ibid. 31  Department of Foreign Affairs and Trade, ‘Minister Flanagan to Open a “New Chapter” in IrishScottish Relations’, press release, 2 February 2015. 32 ibid. 33  ‘Irish-Scottish Relations: A New Chapter’, address by Minister for Foreign Affairs and Trade of Ireland Charles Flanagan TD, the Europa Institute, University of Edinburgh, Scotland, 5 February 2015. 34 Department of Foreign Affairs and Trade, ‘Minister Deenihan Visits Irish diaspora in Scotland’, press release, 22 April 2015. See also Department of Foreign Affairs and Trade, ‘Statement by Minister Flanagan on the Karen Buckley Case’, press release, 16 April 2015.

Correspondent Reports—Cubie 249 Ireland and Scotland were further strengthened in June 2015 with the announcement by Nicola Sturgeon that the Scottish government would establish a ‘Scottish Hub’ within the British Embassy in Dublin with a particular focus on trade and investment.35 Bilateral relations with the UK also encompassed events surrounding the thirtieth anniversary of the conclusion of the 1985 Anglo-Irish Agreement regarding Northern Ireland, which Minister Flanagan noted was ‘the foundation stone on which many building blocks of the edifice of peace and political stability were subsequently laid’.36 Yet 2015 also marked the increasing realisation that the UK might vote to leave the EU. While few people across Europe at that stage seriously thought that Brexit would come to pass, a series of events were held during 2015 in preparation for such an eventuality. The possible return of a hard border between a non-EU Northern Ireland and the Republic of Ireland as a continuing EU Member State presented serious concerns. Commencing a series of events highlighting the impact of a possible Brexit on Ireland in March 2015, Minister Flanagan launched a book published by the Dublin-based Institute of International and European Affairs (IIEA) on Irish perspectives on Brexit.37 At the launch, Flanagan stressed that a ‘core message that leaps from this book’s pages is that it’s in our country’s fundamental interests that the UK remains a member of the European Union’.38 He continued to highlight the risks for Ireland at an event at Chatham House in London in September,39 as well as the implications for Northern Ireland at a symposium held at Queen’s University Belfast in November.40 Meanwhile, the DFAT hosted a debate on the economic impact for Irish small and medium-sized enterprises in December in conjunction with the British Irish Chamber of Commerce (BICC) and the Institute of Certified Public Accountants.41 Other bilateral events included a state visit by the President of Germany, HE Joachim Gauck, and his wife, Ms Daniela Schadt, from 13 to 15 July 2015. Over the course of the three-day visit, President Gauck met with business leaders and attended a civic reception hosted by the Lord Mayor of Dublin. He also attended a conference on human rights and development with President Michael D Higgins at NUI Galway, where he was awarded an honorary degree.42 Meanwhile, Minister

35  Department of Foreign Affairs and Trade, ‘New “Scottish Hub” Team in Dublin is Good News— Minister Flanagan’, press release, 19 June 2015. 36 Iveagh House Lecture— 30 years since the Anglo-Irish Agreement, ‘Opening Remarks by the Minister for Foreign Affairs and Trade, Mr Charlie Flanagan TD’ (12 November 2015), available at: www.dfa.ie/news-and-media/press-releases/press-release-archive/2015/november/special-event-markanglo-irish-agreement. 37 Institute of International and European Affairs, Britain and Europe: The Endgame—An Irish Perspective (Dublin, Institute of International and European Affairs, 2015). 38  Department of Foreign Affairs and Trade, ‘Minister Flanagan Launches New IIEA book on Irish Perspectives on “Brexit”’, press release, 25 March 2015. 39  Department of Foreign Affairs and Trade, ‘Minister Flanagan Addresses Chatham House in London on “Brexit”’, press release, 7 September 2015. 40 Department of Foreign Affairs and Trade, ‘Minister Flanagan Addresses QUB Symposium on “Brexit” Implications for Northern Ireland’, press release, 26 November 2015. 41  Department of Foreign Affairs and Trade, ‘Minister Flanagan Launches Debate to Promote Awareness of “Brexit” Implications for Irish SMEs’, press release, 2 December 2015. 42  Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes Visit by German President to Ireland’, press release, 10 July 2015.

250  The Irish Yearbook of International Law 2015 Sherlock hosted the Fourth South Africa-Ireland Partnership Forum on 27 November 2015. Co-chairing the event with the Deputy Minister of International Relations and Cooperation of the Republic of South Africa, Mr Luwellyn Landers, Minister Sherlock stressed the long-standing ties between Ireland and South Africa, including the strengthening economic relationship and development cooperation via Irish Aid-funded projects.43 The ongoing detention and numerous adjournments of the trial of Irish citizen Ibrahim Halawa remained a point of contention between Ireland and Egypt throughout 2015. Ibrahim Halawa was arrested along with his three sisters in Cairo in August 2013 during protests in support of the former President, Mohamed Morsi. While his sisters were subsequently released and allowed to return to Ireland, Halawa has remained in custody since his arrest.44 As a result, Amnesty International has classified him as a prisoner of conscience.45 Following yet another adjournment of his trial in December 2015, Minister Flanagan stated: ‘I remain very concerned about the length of time that Ibrahim has spent in detention and I have conveyed this concern directly to the Egyptian government. This case is receiving high priority in my Department.’46 He continued: There is ongoing contact between the Taoiseach and Egyptian President al-Sisi and I have intensively engaged with my Egyptian counterpart Foreign Minister Sameh Shoukry on numerous occasions. The Egyptian Government is in no doubt as to the Irish Government’s strong interest in Mr Halawa’s welfare and our wish to see him released.47

C.  Consular Services In January 2015, Minister Flanagan launched a new Irish passport card. The credit card-sized document was available to all Irish passport holders over the age of 18 from July 2015 and was authorised for travel in all EU and European Economic Area countries. Minister Flanagan noted that the card would be particularly useful for frequent travellers, as people could travel within Europe while their passport book was with an embassy as part of a visa application process or as a back-up travel document within Europe in the event that someone loses their passport while travelling.48 Outside of Europe, for many young Irish students, spending a summer working in the US under the J1 visa scheme is a rite of passage. However, the Irish consular

43 Department of Foreign Affairs and Trade, ‘Minister Sherlock Hosts Fourth South Africa-Ireland Partnership Forum’, press release, 27 November 2015. 44  For a detailed review of the case, see Ruadhán Mac Cormaic, ‘Ibrahim Halawa—The Inside Story’ Irish Times (8 August 2015), available at: www.irishtimes.com/news/education/ibrahim-halawa-theinside-story-1.2310182. See also Department of Foreign Affairs and Trade, ‘Minister Flanagan Statement on Ibrahim Halawa Case’, press release, 8 July 2015. 45  See: www.amnesty.ie/freeibrahim. 46  Department of Foreign Affairs and Trade, ‘Minister Flanagan Statement Following Further Adjournment of Ibrahim Halawa Case’, press release, 19 December 2015. 47 ibid. 48  Department of Foreign Affairs and Trade, ‘Minister Flanagan Announces Irish Passport Card’, press release, 27 January 2015.

Correspondent Reports—Cubie 251 services in San Francisco had to respond to a tragic incident involving several Irish students in June 2015. During a party at an apartment block in Berkeley, California, an outside balcony where students were standing collapsed. Five Irish citizens and one dual Irish-American citizen died, while seven others received life-changing injuries. The Consular Crisis Centre and emergency phone line were activated to support family and friends of Irish students in Berkeley.49 Minister Flanagan expressed his appreciation for the work of the first responders and local authorities,50 and Jimmy Deenihan TD, Minister for Diaspora Affairs, travelled to California to express solidarity with those affected by the accident.51 As a result of the accident, Berkeley City Council announced new building inspection regulations52 and several court cases were taken against a number of defendants, including the building’s developer, the contractors which constructed the building and the property managers.53 D.  The Diaspora In conjunction with the launch of the Global Island report on Ireland’s foreign policy priorities, a comprehensive report entitled Global Irish: Ireland’s Diaspora Policy was published in March 2015. The report was launched by the Taoiseach (Prime Minister), Enda Kenny TD, and the Tánaiste (Deputy Prime Minister), Joan Burton TD, who noted: It is important that we maintain and develop the connections that we have with those who are Irish, of Irish ancestry and those who share our cultural identity and heritage. So I am pleased to see that communications is a core theme in this Policy and we must ensure that we are proactive in reaching out to the Irish abroad to strengthen our relationship.54

The report itself sets out five themes for action by the government in regard to the Irish diaspora: 1. Supports: those who have left Ireland and need or want support; 2. Connects: in an inclusive way with those, of all ages, around the world who are Irish, of Irish descent or have a tangible connection to Ireland, and wish to maintain a connection with Ireland and with each other; 3. Facilitates: a wide range of activity at the local, national and international level designed to build on and develop two-way diaspora engagement;

49  Department of Foreign Affairs and Trade, ‘Minister Flanagan Expresses Sympathy over Deaths in California and Activates Consular Crisis Centre’, press release, 16 June 2015. 50  Department of Foreign Affairs and Trade, ‘Statement by Minister Flanagan on Berkeley Tragedy’, press release, 16 June 2015. 51  Department of Foreign Affairs and Trade, ‘Minister Deenihan to Travel to Berkeley Today’, press release, 18 June 2015. 52  ‘Berkeley Council Passes New Building Inspection Regulations’ RTÉ News Online (15 July 2015), available at: www.rte.ie/news/2015/0715/714847-berkeley-bill. 53 John Geluardi, ‘Berkeley Balcony Tragedy Cases to Be Heard Together’ Irish Independent (15 December 2015), available at: www.independent.ie/irish-news/berkeley-tragedy/berkeley-balconytragedy-cases-to-be-heard-together-34287769.html. 54  Department of Foreign Affairs and Trade, ‘Ireland’s First Diaspora Policy Launched’, press release, 3 March 2015.

252  The Irish Yearbook of International Law 2015 4. Recognises: the wide variety of people who make up the Irish diaspora and the important ongoing contribution that they have made, both individually and collectively, in shaping Irish development and its identity; 5. Evolves: to meet changing needs in changing times.55 As part of the new engagement with the Irish diaspora, a series of events took place, including the first Global Irish Civic Forum in June,56 the first Global Irish Parliamentarians Forum in September57 and the Global Irish Economic Forum in November.58 Likewise, a range of supports and funding were provided to diaspora groups around the world,59 alongside the launch of a Global Irish Media Fund to encourage quality reporting of all aspects of the Irish emigrant experience.60 Irish emigrants and other members of the diaspora were also recognised with the Presidential Distinguished Service Award, with British solicitor and human rights activist Gareth Peirce, Fr Brendan McBride of the Irish Immigration and Pastoral Center in San Francisco, and businessman and Chair of Concern Worldwide Tom Moran amongst those honoured at a ceremony at Áras an Uachtaráin in December.61 E.  List of Bilateral Agreements that Entered into Force during 2015 The following is a list of the bilateral agreements that entered into force for Ireland during 2015. ITS Number

Title of Agreement

No 2 of 2015

Agreement between Ireland and the Republic of the Marshall Islands for the Exchange of Information Relating to Tax Matters, done at Dublin and Majuro on 2 September 2010. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 28 July 2014 and 10 February 2015, entered into force on 10 February 2015. (continued)

55 

Department of Foreign Affairs and Trade, Global Irish: Ireland’s Diaspora Policy (March 2015) 4. of Foreign Affairs and Trade, ‘First Global Irish Civic Forum Meets in Dublin’, press release, 1 June 2015. See also Department of Foreign Affairs and Trade, ‘Minister Flanagan Highlights Opportunities for Returning Emigrants’, press release, 4 June 2015. 57  Department of Foreign Affairs and Trade, ‘Global Irish Parliamentarians Gather in Dublin’, press release, 3 September 2015. 58  Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes 300 Key Influencers from 29 Countries to 2015 Global Irish Economic Forum’, press release, 19 November 2015. 59 See, eg: Department of Foreign Affairs and Trade, ‘Visit by Minister Deenihan to London and Birmingham’, press release, 15 January 2015; Department of Foreign Affairs and Trade, ‘Minister for the Diaspora Visits Washington DC and Boston’, press release, 20 January 2015; Department of Foreign Affairs and Trade, ‘Minister for the Diaspora Jimmy Deenihan to Visit San Francisco and San Diego’, press release, 5 February 2015; Department of Foreign Affairs and Trade, ‘Minister Deenihan to Visit Canada and the United States’, press release, 4 May 2015; Department of Foreign Affairs and Trade, ‘Minister Deenihan Announces €6.73 Million in Emigrant Support Funding for Irish Community in Britain’, press release, 12 November 2015. 60  Department of Foreign Affairs and Trade, ‘Minister Deenihan Launches Global Irish Media Fund’, press release, 21 November 2015. 61  Department of Foreign Affairs and Trade, ‘Irish Abroad Recognised at Presidential Distinguished Service Awards Ceremony’, press release, 3 December 2015. 56  Department

Correspondent Reports—Cubie 253 ITS Number No 3 of 2015

Title of Agreement Agreement between Ireland and the Republic of Vanuatu for the Exchange of Information Relating to Tax Matters, done at Dublin and Port Vila on 31 May 2011. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 25 April 2012 and 19 February 2015, entered into force on 19 February 2015.

No 6 of 2015

Convention between the Government of Ireland and the Government of the Kingdom of Thailand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, done at Bangkok on 4 November 2013. Notifications of the completion of the procedures necessary for the entry into force of this Convention exchanged on 23 December 2014 and 11 March 2015, entered into force on 11 March 2015.

No 9 of 2015

Convention between the Government of Ireland and the Government of Ukraine for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, done at Kiev on 19 April 2013. Notifications of the completion of the procedures necessary for the entry into force of this Convention exchanged on 19 December 2013 and 17 August 2015, entered into force on 17 August 2015.

No 12 of 2015

Agreement between the Government of Ireland and the Government of the French Republic on the Reciprocal Holding of Emergency Stocks of Crude Oil and/or Petroleum Products, done at Paris on 17 November 2015. Entered into force on 17 November 2015.

No 15 of 2015

Protocol, and accompanying Exchange of Notes, to amend the Convention between Ireland and the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, signed at Luxembourg on 14 January 1972, done at Luxembourg on 27 May 2014. Notifications of the completion of the procedures necessary for the entry into force of the Protocol exchanged on 23 December 2014 and 11 December 2015, entered into force on 11 December 2015.

No 16 of 2015

Convention between Ireland and the Republic of Zambia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, done at Lusaka on 31 March 2015. Notifications of the completion of procedures necessary for the entry into force of this Convention exchanged on 19 November 2015 and 23 December 2015, entered into force on 23 December 2015. (continued)

254  The Irish Yearbook of International Law 2015 ITS Number No 17 of 2015

Title of Agreement Cooperation Agreement between the Government of Ireland and the International Organization for Migration, done at Geneva 5 June 2015. Notification of the completion of procedures required for entry into force deposited on 23 December 2015, entered into force on 23 December 2015.

No 18 of 2015

Protocol amending the Agreement of 30 March 2011 between Ireland and the Federal Republic of Germany for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, done at Dublin on 3 December 2014. Instruments of ratification exchanged on 30 December 2015, entered into force on 30 December 2015.

IV.  FOREIGN CONFLICTS

A series of anniversaries of key events in Ireland and Europe fell during 2015. The seventieth anniversary of the liberation of Auschwitz was commemorated on 27 January 2015 in Poland. Minister Flanagan attended. Reflecting on the millions of victims of the Holocaust, he stated: We must never forget the inhuman cruelty and industrial scale murder that took place here and in other death camps across Europe. We must continue to be alive to the fact that the Holocaust had its origins in intolerance, prejudice and racism. We must be vigilant in our promotion of equality and tolerance and our defence of fundamental human rights which remain under threat in many parts of the world today.62

The Minister subsequently attended events to commemorate the twentieth anniversary of the genocide which occurred in Srebrenica during the conflict arising from the dissolution of the former Yugoslavia. Remembering the 8,000 men and boys who were massacred in July 1995, he stressed: It is important that we challenge and condemn any attempts to minimise or deny the genocide that took place at Srebrenica. This genocide took place within living memory. The tragic impact of the conflict on its many victims should serve as a stark reminder of the need to learn the lessons of the past. We must redouble our efforts to promote tolerance and respect as fundamental values.63

In welcoming the February 2015 Minsk Agreement to end the fighting in ­eastern Ukraine, brokered by German President Angela Merkel and French President

62 Department of Foreign Affairs and Trade, ‘Minister Flanagan in Poland to Commemorate 70th Anniversary of the Liberation of Auschwitz’, press release, 27 January 2015. 63 Department of Foreign Affairs and Trade, ‘Statement on 20th Anniversary of the Genocide at Srebrenica’, press release, 7 July 2015.

Correspondent Reports—Cubie 255 ­ rançois Hollande, Minister Flanagan stressed the importance of the parties to the F conflict genuinely respecting the peace agreement: ‘It is important now that all sides demonstrate their commitment to the full implementation of the Minsk Agreements by deeds as well as words.’64 However, the ongoing conflict in Syria entered its fifth year and despite consistent reports of violations of international humanitarian law by all parties to the conflict, there was no end to the fighting in sight as 2015 drew to a close. Indeed, the conflict intensified over the course of 2015, resulting in a massive amount of both internal displacement and refugee flows out of the country. By 31 December 2015, over 4.5 million Syrians were registered as refugees in Egypt, Iraq, Jordan, Lebanon, Turkey and other countries.65 The death of three-year-old Alan Kurdi in September 2015, who drowned as his family were crossing the Mediterranean Sea to Greece from Turkey, symbolised both the global outcry at the tragic suffering of the Syrian people and the failure of the international community to bring it to an end.66 In the Americas, the former Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, was appointed as the EU Special Envoy for Colombia Peace Process in October 2015. The aim of the EU Special Envoy was to help coordinate the EU’s efforts to support the implementation of any peace deal agreed as a result of the negotiations in Havana, Cuba aiming to end the 50-year conflict between the government of Colombia and the FARC.67 V.  INTERNATIONAL TERRORISM

There were numerous incidents of international terrorism across the world throughout 2015. Perhaps most shocking from a European perspective were the attacks in Paris in November 2015. As a result of a series of coordinated attacks across cafes, the Bataclan theatre and the Stade de France football stadium, 130 people were killed and scores more were injured, including one Irish citizen.68 Minister Flanagan expressed the deepest condolences and sympathy of the Irish people, and expressed s­ olidarity with France.69 These attacks followed a suicide bombing in Ankara, Turkey on 10 October, where up to 128 people were killed at a rally of pro-Kurdish activists 64  Department of Foreign Affairs and Trade, ‘Minister Flanagan in Riga to Discuss Libya and Ukraine with EU Foreign Ministers’, press release, 6 March 2015. 65  Syria Regional Refugee Response (3R), Annual Report 2015, 4. 66 ‘“My Children Slipped through My Hands’—Father of Drowned Brothers’ RTÉ News Online (4 September 2015), available at: www.rte.ie/news/2015/0903/725355-syrian-toddler. See also Amnesty International, ‘Anniversary of Alan Kurdi Drowning Highlights Continuing Global Shame’ (1 September 2016), available at: www.amnesty.ie/anniversary-alan-kurdi-drowning-highlights-continuing-globalshame. 67 Department of Foreign Affairs and Trade, ‘Min Flanagan Welcomes Appointment of Eamon Gilmore as EU Special Envoy for Colombia Peace Process’, press release, 2 October 2015. 68  Department of Foreign Affairs and Trade, ‘Update from Minister Flanagan on Paris Consular Assistance’, press release, 16 November 2015. 69  Department of Foreign Affairs and Trade, ‘Statement from Minister for Foreign Affairs and Trade Charlie Flanagan on Paris Attacks’, press release, 14 November 2015. See also ‘Paris Attacks Death Toll Rises to 130’ RTÉ News Online (20 November 2015), available at: www.rte.ie/news/2015/1120/747897-paris.

256  The Irish Yearbook of International Law 2015 and civic groups.70 Expressing his sympathy for the victims and their families, ­Minister Flanagan stated: I strongly condemn the appalling attack that took place at the weekend in Ankara. It was an incident of savage brutality, all the more shocking as it occurred at a public demonstration in support of peace. On behalf of the Government of Ireland, I wish to express my heartfelt condolences and those of the Irish people to the families and loved ones of all those who lost their lives, to those who were injured and to the people of Turkey.71

In June 2015, Minister Flanagan outlined the EU’s five priorities for combating international terrorism which had been agreed at the February Foreign Affairs Council, namely: strengthening partnerships with key countries; supporting capacity building; countering radicalisation and violent extremism; promoting international cooperation; and addressing underlying factors and crises.72 In setting out the approach of the Irish authorities to the risk of terrorist attacks within Ireland, he highlighted that: An Garda Síochána keeps the level of threat from international terrorism under continuous review in light of ongoing developments and continues to take appropriate measures to counteract this threat. In this they have the full support of the Government … Our approach nationally combines preventive measures and capacity to prosecute terroristrelated behaviour … In terms of preventive measures, An Garda Síochána monitors the movements of those suspected of involvement in extremist behaviour. In tandem with that the Gardaí operate a progressive community relations programme through the Racial InterCultural and Diversity Office. As regards capacity to prosecute, existing 2005 legislation already provides for the offences of terrorist bombing and terrorist financing. We recently enacted the Criminal Justice (Terrorist Offences) (Amendment) Act 2015, which created three new offences: public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism.73

Nevertheless, the potential threat posed to Irish citizens from so-called ISIS, or Daesh, outside of Ireland was keenly felt soon afterwards when three Irish tourists were killed in a terrorist attack in Tunisia on 26 June 2015, resulting in a decision to upgrade the travel advice to Irish citizens to avoid all non-essential travel to Tunisia.74

70 ‘Thousands Take to Streets of Ankara over Suicide Bombing’ Irish Times (12 October 2015), available at: www.irishtimes.com/news/world/middle-east/thousands-take-to-streets-of-ankara-oversuicide-bombing-1.2387581. 71  Department of Foreign Affairs and Trade, ‘Minister Flanagan Condemns Ankara Terrorist Attack and Expresses Condolences to Victims’, press release, 12 October 2015. 72 Department of Foreign Affairs and Trade, ‘Minister Flanagan Addresses Seanad on Ireland’s Response to ISIS Threat’, press release, 11 June 2015. 73 ibid. 74 Department of Foreign Affairs and Trade, ‘Tunisia Travel Advice Updated in Light of Security Concerns’, press release, 10 July 2015.

Correspondent Reports—Cubie 257 VI.  PEACE SUPPORT OPERATIONS

At the end of 2015, the Irish Permanent Defence Forces (PDF) amounted to 9,140 personnel, comprised of 7,309 Army, 748 Air Corps and 1,083 Navy personnel (a total reduction of 140 personnel, or 1.5 per cent, compared to the end of 2014).75 The number of serving females amounted to 561, representing 6.1 per cent of the overall strength of the Permanent Defence Forces (PDF) (this represents a reduction of nine personnel compared to 2014, but due to the slight reduction in overall personnel numbers, the percentage of serving females in the PDF remained static at 6.1 per cent). An additional 2,520 personnel were members of the Reserve Defence Forces (comprised of 2,142 Army Reserve, 148 Naval Service Reserve and 240 former PDF personnel in the First Line Reserve). At the end of 2015, 429 personnel were stationed abroad, representing 4.7 per cent of the total PDF. During 2015, approximately 1,383 members of the PDF served overseas in various missions, including postings with the UN, the EU, the Organization for Security and Co-operation in Europe (OSCE) and NATO. In particular, Ireland participated in the European Defence Agency and the NATO Partnership for Peace (PfP), and was an active contributor to UN peace support operations. The overall total commitment to peace support operations during 2015 was as follows.76 Missions

1 January 2015

31 December 2015

12

13

MINURSO (Western Sahara)

3

3

MONUSCO (Democratic Republic of the Congo)

4

4

UNOCI (Côte d’Ivoire)

2

2

UNIFIL HQ (Lebanon)

9

9

186

184

4

4

130

131

1. UN-led operations UNTSO (Middle East)

UNIFIL Infantry Battalion (Lebanon) UNIFIL Sector West HQ (Lebanon) UNDOF Infantry Group (Golan Heights) UNDOF HQ (Golan Heights) Sub-total (UN)

8

8

358

358

7

7

2. EU-led operations EUFOR (Bosnia and Herzegovina) Nordic Battlegroup HQ

14

– (continued)

75  Note that these figures are calculated on the basis of actual numbers serving on 31 December 2015 and exclude those members who are on career breaks or on secondment to and being paid by other organisations. All figures from Department of Defence and Defence Forces Annual Report 2015, 23–24. 76  ibid 43–44.

258  The Irish Yearbook of International Law 2015 Missions

1 January 2015

31 December 2015

German-led Battlegroup 2016

–

10

UK-led Battlegroup 2016

–

5

EUTM Mali

10

9

Sub-total (UN mandated missions)

31

31

12

12

7

7

19

19

OSCE

3

3

Sub-total (OSCE)

3

3

UNNY (New York)

1

1

EUMS (Brussels)

3. NATO-led operations KFOR HQ RSM (Resolute Support Mission in Afghanistan) Sub-total (NATO/PfP) 4. OSCE-led operations

5. Military reps/advisers/staff postings 5

3

(Belgium)77

5

4

Irish delegation to OSCE (Vienna)

1

1

CSDP/PSC (Brussels)78

9

9

21

19

432

429

NATO/PfP

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

Linked to the overall review of Ireland’s foreign policy launched in January 2015, the government launched a White Paper on defence in August. As noted by Enda Kenny TD, the White Paper was a ‘further demonstration of the Government’s commitment to ensuring that defence policy and associated capabilities offer a pragmatic and appropriate response to a highly dynamic security environment and anticipated future operational requirements’.79 In addition to setting out a policy framework for national security and defence, the White Paper reiterates Ireland’s strong commitment to multilateral collective security represented by the UN and the primary role of the Security Council in the maintenance of international peace and security, and the triple-lock procedure for the deployment of Irish Defence Forces abroad requiring government, Dáil (Parliament) and UN approval.80 The White Paper also

77  Both civil and military staff from the Defence Organisation are deployed to NATO/PfP offices in Brussels. 78  Both civil and military staff from the Defence Organisation are deployed to CSDP/PSC offices in Brussels. 79  Department of Defence, White Paper on Defence (August 2015) iii. 80  ibid 26.

Correspondent Reports—Cubie 259 reiterates Ireland’s continuing contribution to multilateral cooperative and collaborative security arrangements within the EU, the UN and the OSCE, as well as bilateral agreements. As noted by the Chaplaincy Service of the Irish Defence Forces, since Ireland became a member of the UN on 14 December 1955, ‘not a single day has passed without the presence of the Irish Defence Forces personnel, deployed somewhere around the world in the service of peace. It’s a record of which we are very proud’.81 Reflecting on those Irish soldiers who have been killed while on active service for the UN during a visit to Irish troops in Lebanon in February 2015, Minister Flanagan stressed: Laying a wreath today at the memorial to the Irish peacekeepers who have lost their lives serving with UNIFIL served as a reminder at once of the importance of their work, and the dangers that go with it … I want to acknowledge too that it is not just the soldiers themselves who live with this danger, but their spouses, children, parents and friends at home in Ireland.82

VII.  HUMAN RIGHTS

A number of key policies regarding human rights issues were reconfirmed by the government over the course of 2015. The first was the launch in January of the second National Action Plan on Women, Peace and Security for the period 2015–18. Building on the first National Action Plan, which ran from 2011 to 2014, the CrossDepartmental Plan highlighted Ireland’s commitments under UN Security Council Resolution 1325.83 In particular, the Plan set out how the government intended to implement its commitments to gender equality, tackling the impact of conflict on women and girls, and promoting the importance of women participating in decision making in conflict and post-conflict situations. The Plan itself was based on four pillars: 1. Prevention of conflict, including gender-based violence (GBV) and sexual exploitation and abuse (SEA); 2. Empowerment and participation, including the participation and representation of women in decision making; 3. Protection, relief and recovery, including protection from GBV and SEA, and other violations of women’s human rights and international humanitarian law in relief, recovery and rehabilitation; 4. Promotion of the women, peace and security agenda in the international, regional and national arenas.84

81  Chaplaincy Service of the Irish Defence Forces, ‘Personnel Who Died Overseas’, http://militarychaplaincy.ie/in-remembrance. 82  Department of Foreign Affairs and Trade, ‘Minister Flanagan Visits Irish Peacekeepers in Lebanon’, press release, 13 February 2015. 83  Department of Foreign Affairs and Trade, ‘Government Launches Ireland’s National Action Plan on Women, Peace and Security’, press release, 14 January 2015. 84 Government of Ireland, Ireland’s Second National Action Plan on Women, Peace and Security 2015–2018 (January 2015) 8–12. See also Department of Foreign Affairs and Trade, ‘Women, Peace

260  The Irish Yearbook of International Law 2015 Arising from the Global Island review of Ireland’s foreign policy, in March 2015 the first meeting of the new Inter-departmental Committee on Human Rights took place, chaired by Seán Sherlock TD, Minister of State for Development, Trade Promotion and North-South Co-operation. The stated aims of the Committee were ‘to improve the coherence of the promotion and protection of human rights in Ireland’s foreign policy. It will also assist progress towards ratification by Ireland of key international human rights treaties and reporting to United Nations and Council of Europe human rights monitoring bodies’.85 At the international level, Minister Flanagan addressed the UN Human Rights Council in March. In particular, he highlighted issues of extremism, freedom of religion or belief, gender equality, the rights of LGBTI individuals, freedom of expression and pressing human rights crises, including in Syria and Ukraine. Speaking ahead of his address, he noted: It is one of the greatest shames of the modern world that States continue to deny individuals their human rights because of who they are or whom they love. Our own laws and Constitution must treat our citizens equally. The marriage equality referendum in May will provide an important opportunity for people to decide whether to amend the Constitution to provide for the availability of civil marriage to two persons, without distinction as to their sex.86

At the European level, Dr Síofra O’Leary was elected as Ireland’s new judge on the European Court of Human Rights (ECtHR) in Strasbourg in April. Reaffirming Ireland’s commitment to the ECtHR, Minister Flanagan stressed that Ireland attached the highest importance to the Court as ‘the cornerstone of human rights protection in Europe’, while also noting that the authority and credibility of the Court depended on the quality of its judges.87 International human rights defenders were similarly recognised at the Eighth Dublin Platform for Human Rights Defenders organised by the Irish non-governmental organisation (NGO) Front Line Defenders in November. Minister Sherlock stressed the government’s commitment to ‘promote and support efforts by States to create and maintain a safe and enabling environment in which Defenders can operate free from hindrance and insecurity’.88 Meanwhile, in December 2015, the DFAT published the working outline of Ireland’s National Plan on Business and Human Rights. An Inter-departmental Working Group had been established in June 2014 to develop a national plan for

and Security’, available at: www.dfa.ie/our-role-policies/international-priorities/peace-and-security/ women-peace-and-security. 85 Department of Foreign Affairs and Trade, ‘Minister Sherlock Chairs First Meeting of the Interdepartmental Committee on Human Rights’, press release, 25 March 2015. 86 Department of Foreign Affairs and Trade, ‘Minister Flanagan to Address UN Human Rights Council in Geneva’, press release, 4 March 2015. The Irish marriage equality referendum was subsequently passed by 62 per cent to 38 per cent on a turnout of over 60 per cent of the electorate. See Éanna Ó Caollaí and Mark Hilliard, ‘Ireland Becomes First Country to Approve Same-Sex Marriage by Popular Vote’ Irish Times (23 May 2015), available at: www.irishtimes.com/news/politics/ ireland-becomes-first-country-to-approve-same-sex-marriage-by-popular-vote-1.2223646. 87 Department of Foreign Affairs and Trade, ‘Dr Síofra O’Leary Elected as Judge at the European Court of Human Rights’, press release, 21 April 2015. 88 Department of Foreign Affairs and Trade, ‘Minister of State Sherlock Salutes Human Rights Defenders from around the World’, press release, 3 November 2015.

Correspondent Reports—Cubie 261 the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs). Following consultations with civic society and businesses,89 the DFAT requested submissions from the public and interested parties on the working outline by the end of January 2016. VIII.  OVERSEAS DEVELOPMENT AID AND HUMANITARIAN ASSISTANCE

Building on the review of Irish foreign policy set out in the Global Island report launched in January, 2015 was a particularly busy year for the development of Irish overseas development aid and humanitarian assistance (ODA) policies. In April, Minister Sherlock announced that Ireland would continue to spend at least 50 per cent of ODA in the world’s poorest countries.90 Meanwhile, in September, Irish Aid (the government’s overseas development agency, which is part of the DFAT) launched a research strategy for the period 2015–19. This five-year strategy stressed a commitment to working with partners in developing countries to undertake and develop research outputs, and identified seven research themes: (i) global hunger; (ii) fragile states; (iii) climate change; (iv) trade and economic growth; (v) essential services; (vi) human rights and accountability; and (vii) humanitarian assistance. As noted by Minister Sherlock: ‘At the heart of the Strategy are two commitments— working collaboratively to produce cutting-edge research and putting research into use.’91 Meanwhile, reflecting the extent of humanitarian crises across the globe arising from conflict, forced displacement and disasters, and the need for coordinated humanitarian responses, Irish Aid hosted the first ever Irish Humanitarian Summit at University College Dublin in July 2015. The Summit brought together over 200 people involved in humanitarian activities from organisations in Ireland, and was the culmination of a year-long consultative process involving key groups concerned with humanitarian action in Ireland. The recommendations from the Summit were intended to form the basis of Ireland’s submission to the first UN World Humanitarian Summit planned for May 2016 in Istanbul.92 However, despite a real increase in ODA funding from the previous year, reflecting the economic growth in the Irish economy more generally, the percentage share of ODA to gross national product (GNP) fell marginally to 0.36 per cent. It should be noted that this decrease occurred despite the government’s long-standing commitment to providing ODA representing 0.7 per cent of GNP per annum, and

89  See, eg: Trócaire, Developing a Comprehensive Irish National Action Plan for Implementing the UN Guiding Principles on Business and Human Rights, Position Paper (October 2014); Irish Congress of Trade Unions, Congress’ Submission on Ireland’s Proposed National Action Plan on UN Guiding Principles on Business and Human Rights (February 2015). See also the Business and Human Rights in Ireland blog, available at: https://businesshumanrightsireland.wordpress.com. 90 Department of Foreign Affairs and Trade, ‘Ireland Renews Commitment to World’s Poorest Countries’, press release, 18 April 2015. 91  Department of Foreign Affairs and Trade, ‘Minister Seán Sherlock Launches the Irish Aid Research Strategy 2015–2019’, press release, 22 September 2015. 92  Department of Foreign Affairs and Trade, ‘First Irish Humanitarian Summit’, press release, 2 July 2015.

262  The Irish Yearbook of International Law 2015 represented a continuing decrease in percentage terms of ODA compared to recent years, as set out in the table below.93 Year

2009

2010

2011

2012

2013

2014

2015

Total ODA Budget (€ millions)

722.2

675.8

657.0

628.9

637.1

614.9

647.5

% of GNP

0.55

0.53

0.50

0.47

0.46

0.39

0.36

The total ODA expenditure for 2015 included over €142 million for emergency humanitarian assistance in armed conflicts and natural and human-made disasters.94 In particular, the extreme suffering caused by the long-running conflict in Syria continued to be a focus of Irish humanitarian assistance during 2015. As noted by Minister Flanagan in December, Irish Aid had provided €42 million in humanitarian funding to Syria and neighbouring countries hosting Syrian refugees since 2012, including €13 million during 2015.95 A further €1.5 million was provided for UN and Red Cross activities in Yemen and Iraq.96 The other major humanitarian crisis which sparked both global and Irish responses was the 7.8 magnitude earthquake and aftershocks which struck the Kathmandu Valley of Nepal on 25 April 2015. Over eight million people were affected, including nearly 9,000 fatalities and 22,000 injuries, as well as extensive destruction of houses and livelihoods.97 A total of 170 Irish citizens were in the affected region when the earthquake struck, but all were safely accounted for.98 In addition to the private donations and activities of Irish non-governmental humanitarian agencies, Irish Aid provided €1.6 million in humanitarian funding following the earthquake, including 114 tonnes of relief items, such as tents and blankets, water and sanitation, and the provision of counselling and psychosocial support for those affected.99 The conclusion of the UN Sustainable Development Goals 2015–2030 in October provided both a focus for Ireland’s diplomatic efforts as one of the co-chairs of the negotiations and also an opportunity to highlight some of the key priorities for Ireland’s overseas development aid programmes. In conjunction with the Oireachtas All Party Interest Group on Sexual and Reproductive Health and Rights and

93 

Figures from Irish Aid, Annual Report 2015, 48–49. ibid 52–53. 95  Department of Foreign Affairs and Trade, ‘Ireland Increases Humanitarian Support to Victims of the Syria Crisis’, press release, 14 December 2015. 96 ibid. 97 International Federation of Red Cross and Red Crescent Societies (IFRC), ‘Nepal Earthquake: Emergency Appeal Operation Update No 12’ (21 October 2016). See also ‘UN Says Eight Million Affected by Nepal Earthquake’ RTÉ News Online (27 April 2015), available at: www.rte.ie/ news/2015/0427/696966-nepal-earthquake. 98  Department of Foreign Affairs and Trade, ‘Minister Confirms All Irish Citizens Now Accounted for in Nepal’, press release, 1 May 2015. 99  Irish Aid, Annual Report 2015, 13. See also Department of Foreign Affairs and Trade, ‘Ireland to Provide €1 Million in Life-Saving Assistance in Response to Nepal Earthquake’, press release, 27 April 2015; Department of Foreign Affairs and Trade, ‘Ireland Airlifts Emergency Relief Supplies to Nepal’, press release, 30 April 2015. 94 

Correspondent Reports—Cubie 263 Development, Minister Flanagan launched a series of factsheets on sexual and reproductive health and rights in March 2015. He argued that: ‘Empowering women and girls and promoting gender equality are critical in tackling maternal and child mortality, reducing poverty and ensuring that countries develop sustainably.’100 Moreover, referencing the ongoing negotiation of the SDGs, he stressed that: ‘Over twenty years ago, in Cairo, the international community agreed on a Programme of Action at the International Conference on Population and Development. We need to uphold these commitments to continue to work towards women’s empowerment and rights.’101 Likewise, following the conclusion of the SDGs process, Minister Sherlock launched a National Report on Global Education in Ireland, which contained recommendations for strengthening development education in Ireland, to feed into the next Irish Aid Development Education Strategy.102 The year concluded with Minister Sherlock meeting key Irish NGOs, including Trócaire, Concern and Oxfam. Reflecting on the range of challenges faced across the world in 2015, he concluded: This year has seen some of the most challenging humanitarian crises occur since World War Two. It is imperative that we continue to invest in the humanitarian responses to enduring conflicts that have torn apart societies and inflicted appalling suffering and displacement. We must never forget the human element of these crises and the invaluable work that our NGOs do in these regions along with Irish Aid.103

100 Department of Foreign Affairs and Trade, ‘Gender Equality and Women’s Empowerment Key Focus of Irish Aid—Minister Flanagan’, press release, 25 March 2015. 101 ibid. 102  Department of Foreign Affairs and Trade, ‘Minister Sherlock Launches the National Report on Global Education in Ireland’, press release, 24 November 2015. 103  Department of Foreign Affairs and Trade, ‘Minister Sherlock Meets Leading Irish Development NGOs’, press release, 16 December 2015.

264 

Ireland and the European Union 2015 RODERIC O’GORMAN*

INTRODUCTION

T

HE YEAR 2015 saw a smaller than usual number of Irish cases come before the Court of Justice of the European Union. Despite this, the decisions discussed here include at least one seminal judgment, Schrems v Data Protection Commissioner, which had EU-wide implications.1 This decision followed a trend already established in Digital Rights Ireland of Article 267 of the Treaty on the Functioning of the European Union (TFEU) references from Ireland regarding data protection issues.2 The questions referred from Irish courts continue to highlight the growth in the importance of the Charter and also its interaction with other human rights documents. The first section of this review will consider those cases involving Ireland or originating from Irish courts decided before the Court of Justice. It will also discuss one case which, while not referred from an Irish court, could have a significant impact on a domestic policy measure. It then considers two legislative enactments based on EU requirements. I.  IRISH CASES BEFORE THE COURT OF JUSTICE: EU CITIZENSHIP

In its decision in Singh,3 the Court of Justice had to consider a number of questions about the interpretation of the Citizenship Directive with specific reference to the consequences of the initiation of divorce proceedings for the residency rights of thirdcountry nationals who are the spouse of an EU citizen.4 The judgment concerned a set of cases referred from the High Court. In each case, a third-country national had, while living in Ireland, married a non-Irish EU national. While the original residency

* 

Lecturer, School of Law & Government, Dublin City University. Case C‑362/14 Schrems v Data Protection Commissioner EU:C:2015:650. 2  Cases C‑293/12 and C‑594/12 Digital Rights Ireland and Others EU:C:2013:845; EU:C:2014:238. 3 Case C-218/14 Kuldip Singh, Denzel Njume, Khaled Aly v Minister for Justice and Equality EU:C:2015:476. 4  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L158/77. 1 

266  The Irish Yearbook of International Law 2015 status of the third-country nationals in Ireland was a mix of legal and illegal, subsequent to the marriages, each were given permission to live in Ireland for five years as the spouse of an EU national. In each case, the marriage broke down and the EU national wife left Ireland and brought divorce proceedings in another Member State. The third-country nationals were all seeking a right to remain in Ireland following the divorce. A secondary issue arose regarding whether the requirement in Article 7(1)(b) of the Directive for sufficient resources, a prerequisite for the right of residence, could be met if the third-country national spouse had been providing some of those resources. The case was heard at a time of considerable concern regarding the possible abuse of marriages undertaken in Ireland in order to secure wider EU rights.5 Key to answering the first question was whether, in order for a third-country national to be able to rely on a right of residence under Article 13(2)(a) of the Directive, the EU citizen spouse must have resided in the host Member State under Article 7(1) until the date at which the divorce was decreed.6 The Court began by reiterating its judgment from O and B that the rights granted by the Citizenship Directive to third-country nationals are not autonomous rights, but rather are derived from the EU citizen’s exercise of freedom of movement.7 The obligation on the thirdcountry national to ‘accompany’ or ‘join’ the EU citizen in the host Member State in Article 7 was not necessarily an obligation on the spouses to live together but rather an obligation for them both to remain in the host Member State.8 As such, when the EU citizen leaves the host Member State, the third-country national no longer meets the criteria for enjoyment of the right of residence under Article 7(2).9 The next issue was whether the third-country nationals could enjoy a right of residence under Article 13(2)(a) following the EU citizen leaving the host state and getting a divorce. Reading the provision in conjunction with Article 2(3) of the Directive, which it held meant that the term ‘host Member State’ could only be understood in conjunction with the EU citizen using the right of free movement and residence, and the term ‘initiation of the divorce … proceedings’, the Court determined that: [T]he right of residence of the Union citizen’s spouse who is a third-country national can be retained on the basis of Article 13(2)(a) of Directive 2004/38 only if the Member State in

5  ‘“Sham Marriages” to Be Targeted by New Legislation’ Irish Times (18 August 2015), www.irishtimes. com/news/politics/sham-marriages-to-be-targeted-by-new-legislation-1.2320881; ‘Gardai Arrest 11 in Suspected Sham Marriage Scam’ Irish Times (28 November 2015), www.irishtimes.com/news/crime-andlaw/garda%C3%AD-arrest-11-in-suspected-sham-marriage-scam-1.2444027. 6  Article 13(2): ‘Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where: (a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State.’ 7  Kuldip Singh (n 3) para 50; Case C-456/12 O and B ECLI:EU:C:2014:135. 8  Kuldip Singh (n 3) para 54. Case C 244/13 Ogieriakhi ECLI:EU:C:2014:206. 9  Kuldip Singh (n 3) para 58.

Correspondent Reports—O’Gorman 267 which that national resides is the ‘host Member State’ within the meaning of Article 2(3) of Directive 2004/38 on the date of commencement of the divorce proceedings.10

Where the EU citizen departs the host state prior to initiating divorce proceedings, as was the situation in each of the cases before the High Court, the third-country national loses the right of residence under Article 13(2)(a).11 On the issue of the definition of sufficient resources, the Court noted that it had previously held that the Directive laid down no requirements regarding the origin of the resources.12 It recalled that in Chen, it had determined that to add any such conditions about the source of the resources, which would not actually address the key concern of this aspect of the Directive (namely the protection of the public finances of the host Member State), would be a disproportionate interference with free movement rights.13 As such, the fact that some of the resources that enable the EU citizen to meet the sufficient resources criterion under Article 7(1)(b) come from the activities of the third-country national spouse in the host Member State was found to be compatible with the Directive.14 II.  WORKERS’ RIGHTS

Ireland’s implementation of the Working Time Directive was challenged by the Commission in Commission v Ireland.15 The Commission believed that elements of a collective agreement and standard contract of employment signed by Non-consultant Hospital Doctors (NCHDs) were in breach of provisions of the Directive and took action against Ireland under Article 258 TFEU.16 The first concern expressed by the Commission was that certain activities stated by the collective agreement to be considered ‘training’ (scheduled and protected time off-site attending training as required by the training programme; on-site weekly/ fortnightly scheduled educational and training activities, including conferences, grand rounds, morbidity and mortality conferences) and not therefore counted for the purpose of calculating working time were in fact work. The Court restated that the definition of ‘working time’ was that period where the worker must be physically present at the place determined by the employer and when he or she must be available to the employer in order to be able to provide the appropriate services immediately.17 It was for the Commission to prove the infringement and to provide the Court with the necessary information, which would give detailed proof of

10 

ibid para 61. ibid paras 63, 64. 12  ibid para 74. Case C-86/12 Alokpa and Moudoulou ECLI:EU:C:2013:645. 13  Kuldip Singh (n 3) para 75; Case C-200/02 Zhu and Chen v Secretary of State for the Home Department [2004] ECR I-9925. 14  Kuldip Singh (n 3) para 76. 15  Case C-87/14 Commission v Ireland ECLI:EU:C:2015:44. 16  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time [2003] OJ L299/ 9. 17  Kuldip Singh (n 3) para 21. Case C‑14/04 Dellas and Others ECLI:EU:C:2005:728, para. 48. 11 

268  The Irish Yearbook of International Law 2015 the alleged practice of the national administration for which the Member State is answerable.18 In defending the action, Ireland was able to successfully argue that time spent during these periods was ‘protected’ to the extent that doctors were not expected to engage in medical care.19 It was also able to make a distinction between the working obligations that NCHDs had towards their employer and the training obligations they had towards their training organisations.20 The Commission failed to prove that the requirement on the NCHDs to be present for the training was a manifestation of the obligation to be physically present at a place determined by the employer within the meaning of its case law.21 The Commission also failed in their arguments that an obligation to undertake this training was included within their work contract22 or that NCHDs risked being fired if they did not undertake the training.23 The second breach alleged by the Commission concerned the reference periods within which the hours of work of NCHDs were calculated. Under the Directive, the maximum weekly work time and the weekly rest periods were to be calculated within a six-month reference period.24 However, this reference period could be extended up to 12 months if it resulted from collective agreements or arrangements relating to the organisation of the workplace, so long as this complied with the general principles relating to the health and safety of workers. Under the Collective Agreement applicable in Ireland, the reference period had been extended to 12 months. However, as the Court noted, the Commission had failed to bring forward any evidence as to why Ireland was not meeting the requirements of Article 19 of the Directive concerning the ability to derogate from the six-month reference period.25 As such, this complaint was also rejected. The third issue raised by the Commission was whether the Standard Contract of Employment was in compliance with the minimum daily and weekly rest periods prescribed by Articles 3 and 5 of the Working Time Directive. The Commission claimed that, due to its structure, there was nothing to indicate either a right to a minimum daily or weekly rest period, nor was there a clear cap on the length of the working week.26 Ireland was able to successfully argue that, by referring to the clause in the Standard Contract of Employment in isolation, the Commission was not recognising that the provisions of the Directive had been implemented in domestic law through a national regulation.27 Again, the Court held that the Commission was unable to prove that Ireland was implementing a practice contrary to that set out in the domestic regulation applying the Directive.28 18 

Kuldip Singh (n 3) paras 22–23. ibid para 24. ibid para 25. 21  ibid para 26. 22  ibid paras 28–29. 23  ibid para 30. 24  Article 19. 25  Kuldip Singh (n 3) paras 34–35. 26  ibid paras 36–37. 27  European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, SI 494/2004. 28  Kuldip Singh (n 3) para 44. 19  20 

Correspondent Reports—O’Gorman 269 Finally, the Commission had raised an arguably vague point regarding the fact that the Irish Medical Organisation (IMO) had made a declaration, following progress reports on the implementation of the Directive sent by Ireland to the Commission, that Ireland still was not in full compliance with it.29 Ireland argued that while it had not achieved all elements of the Directive, it had made a ‘constant and concerted efforts to achieve total conformity in practice and that it continues to deal with all instances of non-compliance’.30 The Court again dismissed the Commission’s argument in frank language, stating that it had failed to indicate whether the progress report and the declaration made were illustrations of some problems in the application of specific elements of the Directive or were indicative of a wider non-application of the legislation.31 Further, the Commission had to demonstrate practice contrary to the Directive undertaken by Ireland rather than merely referring to the progress report and the declaration.32 III.  THE AREA OF FREEDOM, SECURITY AND JUSTICE

In the Lanigan case, the Court had to address questions about the operation of the European Arrest Warrant and, in particular, the consequences for the overall process of a delay by a national authority in implementing a warrant.33 In so doing, it had to consider the interaction of the European Arrest Warrant’s provisions with the Charter of Fundamental Rights. A court in Northern Ireland had issued a European Arrest Warrant for Lanigan in late 2012 and he was arrested following this in Ireland in January 2013. As he was resisting his extradition to Northern Ireland, he was placed in custody pending a decision. Due to a series of adjournments, the Irish High Court only began to consider the application for extradition in June 2014. In December 2015, the applicant sought to have the request for his extradition rejected on the grounds that the time limits set out within the Framework Decision that had been the basis for the European Arrest Warrant had been exceeded.34 Two questions were referred to the Court of Justice: first, what was the effect on the procedure of the failure to comply with the time periods in the Framework Decision; and, second, did the failure to observe the time limits give a person in custody following such a warrant the right to be released? As the case concerned a person in detention, the Court of Justice accepted the request of the High Court to hear the case under the urgent procedure.35 On the issue of the time limits contained in the Directive, the Court began by recalling that the purpose of the Framework Decision was to replace the existing system of extradition between Member States with a system based on the surrender of 29 

ibid para 45. ibid para 46. ibid para 48. 32  ibid para 49. 33  Case C-237/15 PPU Minister for Justice & Equality v Francis Lanigan ECLI:EU:C:2015:474. 34  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190/1. 35  Kuldip Singh (n 3) paras 21–25. 30  31 

270  The Irish Yearbook of International Law 2015 convicted or suspected persons between judicial authorities, based on the principle of mutual recognition.36 It noted that Article 15(1) states that the executing judicial authority must decide, within the time limits and in accordance with the conditions in the Framework Decision, whether a person was to be surrendered to the requesting state. Article 17 requires that when an arrest warrant is being opposed, a decision on its execution should be taken within 60 days.37 This time period could be extended by a further 30 days.38 The Court concluded that the wording of Article 15 did not make it clear that an arrest warrant must be executed, even if the time periods set out in Article 17 had expired.39 Considering Article 15 within its wider context, it noted the limited circumstances set out in the Framework Decision in which a Member State could refuse to execute a warrant, and the importance that the legislation held in the wider scheme of judicial cooperation.40 In light of this, and in the absence of a clear statement that exceeding the time limits undermined the objectives of the legislation, the Court determined that Article 15 could not be interpreted as meaning that if the time limits in Article 17 were to be exceeded, the judicial authority could not execute the arrest warrant.41 The Court reinforced this finding by reference to a number of other provisions of the legislation. It noted that Article 17(7) did provide for a situation where there were delays to the execution of a warrant, but which did not require the abandonment of its execution.42 It also noted that the condition in Article 17(5) that the executing judicial authority must fulfil the material conditions for the effective surrender of the person until a final decision is made was not time limited and did not cease when the time limits in Article 17 were passed.43 Tellingly, the Court stated that a finding that the process would have to be abandoned if the time limits were passed would promote the use of delaying tactics as a means of undermining the process.44 The second point the Court had to address was whether the failure to adhere to the time limits in the Framework Decision gave rise to a right to be released. The Court noted that the legislation did not specifically provide that a person’s detention had to be linked to the time periods set out.45 While Article 12 did allow for the possibility of a person arrested on the basis of a European Arrest Warrant being provisionally released in accordance with domestic law, this was not required of the executing judicial authority in the event that the time limits in Article 17 were passed.46 The Court contrasted the situation with Article 23(5), which clearly stated

36 

ibid para 27. Article 17(3). 38  ibid art 17(4). 39  Kuldip Singh (n 3) para 34. 40  ibid paras 35–36. 41  ibid para 37. 42  ibid para 38. 43  ibid para 39. 44  ibid para 41. 45  ibid para 44. 46  ibid para 45. 37 

Correspondent Reports—O’Gorman 271 that a person still in custody was to be released after the expiry of the time limits for their surrender after the adoption of a decision on a European Arrest Warrant.47 The mandatory wording of Article 23 was compared with the more permissive terms in Article 17.48 Bearing in mind that it had already determined that the requirement to execute a European Arrest Warrant existed beyond the time limits in Article 17, the Court determined that an absolute duty to release would limit the effectiveness of the system put in place by the Member States.49 As such, the Framework Decision did not preclude the continued detention of the requested person after the time limits had been exceeded.50 The final element of the Court’s decision involved scrutinising the implementation of the arrest warrant for compatibility with fundamental rights under European law. The Framework Decision itself contained a provision at Article 1(3) stating that the legislation could not undermine the obligation to respect fundamental rights, as set out in Article 6 of the Treaty on European Union (TEU).51 As such, the Framework Decision must be interpreted in accordance with Article 6 of the Charter and, further to Article 52(3) of the Charter, the Charter rights were to be given the same meaning and scope as any similar rights contained in the European Convention on Human Rights.52 Examining the interpretation given by the European Court of Human Rights to Article 5(1)(f) of the Convention regarding extradition, the Court noted that that body had held that ‘only the conduct of such a procedure justifies the deprivation of a freedom based on that article and, consequently, if the procedure is not carried out with due diligence, the detention ceases to be justified’.53 As such, while the executing judicial authority could hold a requested person in custody after the time periods set out in the Framework Decision, this could only be done if the procedure for the execution of the arrest warrant had been undertaken in a diligent manner and the time spent in custody was not excessive.54 The Court outlined a list of factors that the executing judicial authority should consider in making this determination: any failure to act by the Member State authorities, the contribution of the requested person to the duration, the potential sentence facing the requested person, the risk of absconding and whether the requested person had been held in custody for a period greatly exceeding the time limits in Article 17.55 Subsequent to this review, if the executing judicial authority did decide to release the requested person, under Article 12 and 17(5) of the Framework Decision, it was mandatory to attach to the provisional release of the person any measures necessary to prevent him or her from absconding and to ensure that it would still be possible to execute the European Arrest Warrant once a final decision on the extradition was made.56 47 

ibid para 47. ibid para 48. 49  ibid para 50. 50  ibid para 52. 51  ibid para 53. 52  ibid para 56. 53  ibid para 57. Quinn v France, 22 March 1995, § 48, Series A No 311; Gallardo Sanchez v Italy, App No 11620/07, § 40, ECHR 2015. 54  Kuldip Singh (n 3) para 58. 55  ibid paras 59–60. 56  ibid para 61. 48 

272  The Irish Yearbook of International Law 2015 IV.  DATA PROTECTION AND FUNDAMENTAL RIGHTS

The decision of the Court of Justice in Schrems v Data Protection Commissioner, where it struck down reliance by the EU on the ‘Safe Harbour’ data protection principles applied by the US, has had significant consequences for the transmission of personal information outside of the EU.57 The case involved the application of the Data Protection Directive (Directive 95/46), created with a view to protecting the fundamental rights of EU citizens with respect to privacy in the processing of personal data.58 Article 25(2) of the Directive set up a system whereby the European Commission could certify that a third country met the EU-level requirements for protecting the private lives of individuals in terms of the way in which it dealt with personal information. Commission Decision 2000/520, adopted on the basis of that article, stated that US data protection rules provided sufficient protection to EU citizens.59 The applicant, an Austrian national, had been engaged in a protracted dispute with Facebook regarding the company’s treatment of his private information within the US. As part of this, he had requested that the Irish Data Protection Commissioner investigate the use of his personal data by Facebook. When the Data Protection Commissioner refused to undertake an investigation, citing European Commission Decision 2000/520, which had determined that US data protection rules provided sufficient protection to EU citizens, Schrems challenged this decision in the Irish High Court.60 In its reference decision, the High Court was critical of the manner in which the data of EU citizens was treated when it was transferred to the US, determining that EU citizens had no right to be heard and that the information could be accessed by US security agencies ‘in the course of the indiscriminate surveillance and interception carried out by them on a large scale’.61 Examining the issue as a matter of EU law, the High Court was of the view that Decision 2000/520 did not adhere to Article 7 or 8 of the Charter of Fundamental Rights. As such, it referred questions to the Court of Justice as to whether the Data Protection Commissioner was bound by the Commission’s Decision in light of Articles 7 and 8 of the Charter and, in the alternative, asked whether the Data Protection Commissioner should have undertaken his own investigation into the treatment of the relevant data in light of developments since the publication of the Commission Decision.62 In addressing the questions, the Court initially considered the powers of the national supervisory agencies referenced within the Directive (here the Data Protection 57 

Schrems (n 1). Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ([1995] OJ L281, 31), as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 [2003] OJ L284/1. 59  Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce [2000] OJ L215/7. 60  Schrems v Data Protection Commissioner [2014] IEHC 310 (18 June 2014). 61  Kuldip Singh (n 3) 31. 62  ibid para 36. 58 

Correspondent Reports—O’Gorman 273 Commissioner). The Court stated that as Directive 95/46 set up a regime for the processing of data which could interfere with fundamental rights, its provisions must be understood and applied in accordance with the fundamental rights protected in the Charter.63 Each supervisory agency had the power, under Article 28 of the Directive interpreted in accordance with Article 8(3) of the Charter, to monitor compliance with EU rules on data protection when data is being transferred from its Member State to a third country.64 Importantly, the Court found that the power to make a determination that a third country did not adequately protect data rested with either the Commission or the Member State.65 While a decision of the Commission that a third country did sufficiently protect data under Article 25(6) of the Directive had to be respected by the supervisory authorities of each Member State, it did not prevent an individual in a state lodging a claim with a national supervisory authority concerning his or her data, nor did it undermine the investigative powers of the national supervisory authorities.66 Indeed, even if a Commission decision under Article 25(6) has been taken in respect of a third country, if a national supervisory authority receives a claim in respect of that country, it ‘must be able to examine, with complete independence, whether the transfer of that data complies with the requirements laid down by the directive’.67 Without this safeguard, the persons whose data was being transferred would be left without the protection, provided for in Article 8(1) and (3) of the Directive, to lodge a claim with national supervisory authorities to protect their fundamental rights.68 Where such a claim is made about a third country subject to a Commission decision and the national supervisory authority rejects the claim, the party must have access to judicial remedies, including the possibility of an Article 267 TFEU reference if the national court considers the claims made to be well founded.69 In the event that the supervisory authority believes that the claims are justified, national legislation must provide the ability for it to place its concerns before a national court, which, if it finds these legitimate, can also make a preliminary reference to question the decision’s validity.70 Having established this, the Court proceeded to examine Decision 2000/520 for compatibility with the parent Directive, read in conjunction with the obligations stemming from the Charter. The requirement of Article 25(6) was that a third country must provide ‘an adequate level of protection’ to ensure the rights and freedoms of EU citizens.71 However, this term was not clearly defined at any point in the legislation. The Court determined that the requirement represented an implementation of the obligation contained in Article 8(1) of the Charter and, as such, was ‘intended

63 

ibid para 38. ibid para 47. 65  ibid para 50. 66  ibid paras 52, 53. 67  ibid para 57. 68  ibid para 58. 69  ibid para 64. 70  ibid para 65. 71  ibid para 69. 64 

274  The Irish Yearbook of International Law 2015 to ensure that the high level of that protection continue where personal data is transferred to a third country’.72 It held that while adequate protection would not mean identical protection to that provided within the EU, it did mean that the protection had to be ‘essentially equivalent’.73 In accessing the level of protection offered by the third country, the Commission must examine the applicable rules in that country, taking account of all circumstances surrounding the transfer of personal data.74 Significantly, this was not a static obligation, and the Commission was required to periodically investigate whether its determination of an adequate level of protection was still ‘factually and legally justified’, particularly if there was reason to believe that this was no longer the case.75 In light of the importance of the protection of personal data as a fundamental rights and the large number of people who could potentially be affected if a third country was not protecting data properly, the Commission’s obligations under Article 25 of the Directive were to be strictly interpreted and its discretion in judging the adequacy of a third country’s level of protection was reduced.76 The Court then proceeded to examine the ‘self-certification’ system, established and operated by the US, which was the basis of the ‘Safe Harbour’ principle. It focused on the fact that the self-certification approach solely applied to US organisations receiving personal data from the EU, but that US public authorities were not required to comply with it.77 The Commission Decision contained no analysis of the measures that the US had taken to ensure data protection beyond the Safe Harbour principles, in particular, by omitting any references to domestic law and international commitments, as required by Article 25(6) of the Directive.78 The Decision also contained considerable limitations to the Safe Harbour principles that, if mandated by US law, would have to be adhered to by US organisations.79 The consequences of this was that the Decision permitted interferences with the fundamental rights of people whose data had been transferred from the EU to the US on the grounds of national security, public interest requirements or other domestic legislative requirements of the US.80 Nothing in the Decision indicated any rules adopted within the US designed to limit the interference with fundamental rights or to provide any degree of legal protection against the interferences. The Court referred back to its earlier decision in Digital Rights Ireland in noting the safeguards that are required by the Charter of Fundamental Rights when rights are interfered with.81 In this case, the US legislation in question was not ‘limited to what is strictly necessary’ (as per Digital Rights Ireland) due to the open accessibility it provided

72 

ibid para 72. ibid paras 73, 74. 74  ibid para 75. 75  ibid para 76. 76  ibid para 78. 77  ibid para 82. 78  ibid para 83. 79  ibid paras 84–85. 80  ibid para 87. 81  ibid para 91; Digital Rights Ireland (n 2). 73 

Correspondent Reports—O’Gorman 275 to information transferred from the EU.82 This generalised accessibility to the information, and the lack of any legal remedies in relation to it, undermined the essence of the right to private life under Article 7 and the rights to effective judicial protection under Article 47.83 In light of this, Article 1 of the Decision failed to meet the requirements laid down in Article 25(6) of the Directive when read in conjunction with the Charter. The Court also found that Article 3 of the Decision attempted to prevent a national supervisory authority from being able to exercise its powers under Article 28 of the Directive to investigate if a third country has ensured an adequate level of data protection in the event that an individual brings a complaint to it.84 This exceeded the powers that the Directive gave to the Commission and, as such, this provision of the Decision was also invalid.85 In light of the importance of Articles 1 and 3 to the overall scheme of Decision, the Court determined that the entire Decision was invalid.86 V.  MINIMUM PRICING AND THE COURT OF JUSTICE

The implications of Court of Justice decisions for the regulatory policies of Member States was demonstrated in Ireland when the introduction of draft legislation proposing a minimum unit pricing for alcohol was put in doubt following a ruling of the Court on a similar scheme applied in Scotland. In December 2015, the Minister for Health introduced the Public Health (Alcohol) Bill 2015, which included a wide range of measures designed to reduce alcohol consumption in the country.87 Section 10 of the Bill introduced a formula for the calculation of a minimum price per unit of alcohol (MPU). However, its compatibility with EU law was thrown into doubt less than two weeks later following the decision of the Court of Justice in Scotch Whiskey Association.88 The purpose of the Scottish law was to fix a price below which alcohol could not be sold and thus reduce alcohol consumption by the population in general and that of problem drinkers specifically. Following a notification from Scottish Ministers that they planned to apply the MPU scheme, the Commission had issued an opinion to Scotland, stating that this was a quantitative restriction within the meaning of Article 34 TFEU and one which could not be justified under Article 36 TFEU.89 Following judicial review proceedings brought by the applicants in the case, the Inner House of the Court of Session referred a number of questions to the Court of Justice.

82 

Kuldip Singh (n 3) para 93. ibid paras 94–95. 84  ibid para 102. 85  ibid para 104. 86  ibid para 105. 87  No 120 of 2015. 88  Case C‑333/14 Scotch Whisky Association, spiritsEUROPE, Comité de la Communauté économique européenne des Industries et du Commerce des Vins, Vins aromatisés, Vins mousseux, Vins de liqueur et autres Produits de la Vigne (CEEV) v Lord Advocate, Advocate General for Scotland EU:C:2015:845. 89  ibid para 10. 83 

276  The Irish Yearbook of International Law 2015 The first key issue the Court had to address was whether the MPU scheme as it was applied to wine was legal in light of the Single Common Organisation of Markets (CMO) Regulation.90 The Court determined that the Regulation itself neither permitted nor prohibited national measures fixing the price of wine.91 Member States could therefore take measures not provided for within the Single CMO Regulation, so long as they did not undermine, interfere with or create exceptions to the Regulation.92 The Court noted the importance of the free formation of selling price as a means of free competition and how this would be interfered with by MPU and deny producers or importers any advantage provided by lower cost prices.93 It determined that an MPU for the retail selling of wine would undermine both the Regulation and the principle upon which it was founded.94 The Court accepted that a Member State may seek to justify a national measure which is likely to have an effect on the functioning of a sector of the common market if its objective is the protection of human life and health.95 Such a measure must respect the principle of proportionality, in that the law must be appropriate for attaining the objective pursued while not going beyond what is necessary to attain that objective.96 The next issue the Court had to address was whether the particular measures adopted by Scotland could be justified under Article 36 TFEU when the objective being pursued (protection of human life and health) could have been achieved through a measure less restrictive of trade and competition, namely via increasing excise duties. The Court reiterated that a measure having an equivalent effect to a quantitative restriction under Article 34 TFEU could only be justified under Article 36 TFEU if it is appropriate for securing the achievement of the objective pursued and does not go beyond what is necessary in order to attain it.97 The Court accepted that the policy was one which was capable of reducing the general consumption of alcohol and, specifically, its hazardous consumption.98 Looking at the range of measures that Scotland had introduced in pursuit of these goals, the Court accepted that there was a genuine concern about the issue and that the aims were being pursued in a consistent and systematic manner.99 As to whether the goal could be achieved as effectively through the use of fiscal measures, the Court accepted that there were disagreements on this point, but came down on the side that such measures could achieve the goals sought in a way that was less impactful on the formation of free prices.100 However, the final decision on this matter would

90  Regulation (EU) No 1308/2013 of the European Parliament and the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 [2013] OJ L347/671. 91  Kuldip Singh (n 3) para 17. 92  ibid para 19. 93  ibid paras 20–21. 94  ibid para 24. 95  ibid para 26. 96  ibid para 28. Case C-98/14 Berlington Hungary and Others ECLI:EU:C:2015:386, para. 64. 97  Kuldip Singh (n 3) para 33. 98  ibid paras 36, 39. 99  ibid para 37. 100  ibid para 44.

Correspondent Reports—O’Gorman 277 be left to the national court, which would have all the relevant issues of law and fact laid before it.101 In outlining how the proportionality of a national measure would be assessed, the Court noted that while the Member State must provide evidence of the appropriateness and proportionality of the restrictive measure adopted by the state, the burden of proof on the state could not be heightened to such an extent that it must prove that ‘no other conceivable measure could enable the legitimate objective pursued to be attained under the same conditions’.102 Regarding the evidence to be used in undertaking the review, the Court determined that the national court should look at any relevant information, evidence or other material of which it has knowledge and that it was not confined to examining only information available to the national legislature at the time that it adopted the contested measure.103 In the wake of the judgment, the Minister for Health confirmed that the Public Health (Alcohol) Bill would continue to be moved through the Oireachtas.104 Following the earlier opinion of Advocate General Bot on the case, which had mirrored the Court of Justice’s ruling, the Minister for Health, Leo Varadkar, had actually welcomed the opinion.105 At that time, Minister Varadkar had focused on the fact that the Advocate General had given conditional approval to the use of a minimum unit pricing policy in the event that ‘it can be shown to be more effective than other alternative measures’.106 It is suggested that the degree of specificity provided by the Court of Justice in Scotch Whiskey Association to any national court making such a judgment on the efficacy of similar measures places a heavy burden of proof on those supporting them. It may turn out that the Minister’s interpretation of the approach of the Advocate General was overly optimistic. VI.  IRISH LEGISLATION BASED ON EU REQUIREMENTS: THE INTERNATIONAL PROTECTION ACT 2015

In December 2015, the President signed the International Protection Act 2015 into law.107 This sizeable piece of legislation was proposed to allow Ireland to update its processes for the granting of refugee status and subsidiary protection into a single procedure. While Ireland had opted into the 2004 Asylum Qualification Directive,108

101 

ibid para 49. ibid paras 54–55. 103  ibid paras 64–65. 104  ‘Varadkar Still Committed to Plan for Minimum Alcohol Pricing’ Irish Times (23 December 2015), www. irishtimes.com/news/health/varadkar-still-committed-to-plan-for-minimum-alcohol-pricing-1.2476255. 105  ‘Press Release: Statement by Minister for Health Leo Varadkar on Minimum Unit Pricing’, 3 September 2015, http://health.gov.ie/blog/press-release/statement-by-minister-for-health-leo-varadkaron-minimum-unit-pricing. 106 ibid. 107  International Protection Act 2015 (No 66 of 2015). 108  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12. 102 

278  The Irish Yearbook of International Law 2015 it had opted out of the recast version in 2011.109 The government argued that this legislation was necessary in order to meet the more favourable standard in the 2011 Directive.110 The law was also in part a response to the growing refugee crisis across Europe, as it made more comprehensive provision for the requirements of the EU Temporary Protection Directive.111 This Directive was designed to provide minimum standards for those seeking international protection in the event of a sudden large-scale arrival of asylum seekers, as well as providing a mechanism for burden sharing amongst Member States in efforts to deal with such a crisis. Ireland had opted out of the original Directive,112 but had subsequently notified the Commission of its desire to opt in.113 The Act proved controversial with non-governmental organisations (NGOs) in the refugee sector and its adoption was criticised as a step backwards in relation to the protection of refugees in Ireland.114 Indeed, President Michael D Higgins had called a meeting of the Council of State to decide if the Bill should be referred to the Supreme Court for review under Article 26 of the Constitution before deciding to sign it.115 VII.  THE LEGAL SERVICES REGULATION ACT 2015

While not implementing any EU legislation per se, the passing of the Legal Services Regulation Act 2015 was notable as it marked the completion of one of the outstanding elements of the 2011 Economic Adjustment Programme between Ireland and the Troika.116 The original Implementing Decision, which had allowed the EU provide financial assistance to Ireland, referred to ‘changes to remove restrictions to trade and competition in sheltered sectors including the legal profession’.117 109  Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L337/23. 110  International Protection Bill 2015, Explanatory and Financial Memorandum, 2. 111  Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12. 112  ibid, Recital 25. 113  Commission Decision of 2 October 2003 on the request by Ireland to accept Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (notified under document number C(2003) 3428) [2003] OJ L251/23. 114  Irish Refugee Council, ‘International Protection Act 2015 is a Step Backwards for Ireland’s Support for Refugees, Say Irish Refugee Council’, www.irishrefugeecouncil.ie/news/international-protection-act2015-is-a-step-backwards-for-irelands-support-for-refugees-say-irish-refugee-council/4533. 115  ‘President Michael D Higgins Signs Asylum Bill into Law’ Irish Times (30 December 2015) www. irishtimes.com/news/politics/president-michael-d-higgins-signs-asylum-bill-into-law-1.2480567. 116  Legal Services Regulation Act 2015 (No 65 of 2015). 117  Council Implementing Decision 2011/77 of 7 December 2010 on granting Union financial assistance to Ireland [2011] OJ L30/34, art 3(7)(f).

Correspondent Reports—O’Gorman 279 The Memorandum of Understanding called for the introduction of legislation to remove restrictions to trade and competition in the legal sector,118 specifically listing the establishment of an independent regulator for the profession and the implementation of the recommendations of two reports designed to reduce legal costs.119 The Legal Services Regulation Bill was introduced into the Dail in October 2011.120 The long title of the Bill described its purpose as being to, inter alia, provide for the regulation of the provision of legal services, provide for the establishment of the Legal Services Regulatory Authority and provide for the establishment of the Legal Practitioners Disciplinary Tribunal, which would make determinations as to misconduct by legal practitioners. It was also to create new structures in which legal practitioners may provide services together or with others, and to provide for reform of the law relating to the charging of costs by legal practitioners and the system of the assessment of costs relating to the provision of legal services. There were extensive delays in securing the passage of the legislation. This caused dissatisfaction for the Troika, which could be discerned in its quarterly reports on Ireland’s implementation of the bailout programme. In its Autumn 2012 Report, this impatience can be detected, as a specific section of that document was dedicated to discussing statistics which demonstrated that the cost of legal services in Ireland had not reduced to the same extent that they had in other sectors in the post-crisis timeframe.121 The Spring 2013 Report contained even more significant criticism, with the Troika stating: ‘The process of reforming legal services has been unduly and frequently delayed and needs to come to fruition rapidly.’122 The report noted the strong resistance from the professional bodies that the Legal Services Regulation Bill had encountered.123 Taking account of the delays and the continued high costs of the services to the economy, the report concluded that ‘addressing high legal costs has now become an important policy challenge, including through the timely completion of the remaining legislative and executive steps to ensure the new Legal Services Regulatory Authority is operational without any further delay’.124 The influence of professional bodies on the legislative process was further referenced in the Summer 2013 Report, where, after acknowledging that the Legal Services Regulation Bill had gotten to committee stage in the legislative process, the Troika stated that the amendments that had been proposed ‘will determine the effectiveness of the bill in reducing legal services costs and therefore need to be

118 Memorandum of Economic and Financial Policies, ‘The Economic Adjustment Programme for Ireland’, Occasional Paper 76/2011, Directorate-General for Economic and Financial Affairs, European Commission, February 2011, para 57. 119 ibid; Competition Authority, Competition in Professional Services: Solicitors and Barristers (Dublin, Competition Authority, 2006); Report of the Legal Costs Working Group (Dublin, The Stationery Office, 2006). 120  Legal Services Regulation Bill 2011 (No 58 of 2011). 121  ‘The Economic Adjustment Programme for Ireland Autumn 2012 Review’, European Economy, Occasional Papers 127, January 2013 (European Commission), 42. 122 ‘The Economic Adjustment Programme for Ireland Winter Spring 2013’, European Economy, Occasional Papers 154, July 2013 (European Commission), 33. 123  ibid 34. 124  ibid 35.

280  The Irish Yearbook of International Law 2015 considered carefully and without fear of confronting narrow vested interests’.125 The report of the final Troika mission to Ireland, undertaken in the autumn of 2013, set out the stark point that: ‘No genuine progress towards enacting the Legal Services Regulation Bill was reported since the previous mission.’126 Even the first of the Post-Programme Surveillance Reports noted that the chances of the Bill being passed quickly were unlikely, particularly due to the significant number of amendments proposed.127 The eventual passage of the Bill into law, four years after the first draft was introduced into the Oireachtas, represented the final conclusion to an extensive political battle about the degree to which the legal professions would be regulated. It also marked the conclusion of one of the final legislative requirements of the Economic Adjustment Programme. CONCLUSION

A common theme that links some of the cases reviewed is the enhanced degree of scrutiny that EU measures now receive for compatibility with fundamental rights. This both circumscribes how Member States apply these measures, as was seen in Lanigan, and may even result in the Commission actions themselves being struck down, as in the case of Schrems. Elaboration of the burden of proof placed on parties, both before national courts and the Court of Justice itself, was also shared across a number of cases. This is equally relevant to respondents and applicants, as was seen in the examination of the conclusion of a national government about the best ways to combat excessive drinking, and the Commission’s own allegation against Ireland regarding the Working Time Directive. This latter case reminds us that the Commission itself is fallible, in that the action taken by it appears to have had an extremely weak legal and evidential base and was arguably ill-judged.

125  ‘The Economic Adjustment Programme for Ireland Winter Summer 2013’, European Economy, Occasional Papers 162, October 2013 (European Commission), 32. 126  ‘The Economic Adjustment Programme for Ireland Winter Autumn 2013’, European Economy, Occasional Papers 167, December 2013 (European Commission), 6. 127 ‘Post-Programme Surveillance for Ireland Spring 2014’, European Economy, Occasional Papers 195, June 2014 (European Commission), 31.

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Document 1 Statement by Mr. Tim Mawe Deputy Permanent Representative at the Open Debate of the Security Council “Sexual Violence in Conflict” New York, 15 April, 2015

Check against delivery Madam President, Ireland commends you for your initiative in scheduling today’s debate. We thank the Special Representative on Sexual Violence in Conflict, Madam Zainab Bangura, whose work we highly appreciate, and Ms. Hamsatu Allamin, speaking on behalf of civil society, for their insightful briefings on this topic. Ireland associates itself with the statement made on behalf of the European Union. Madam President, The Secretary-General’s report makes for difficult reading. It details horrible and systematic violations of the rights of women and girls and to a lesser, but discernibly growing extent, boys and men. The confluence of crises in 2014 wrought by violent extremism has brought home once again how sexual violence, rape, forced marriage and kidnapping is employed as a tactic of terror by radical groups in Iraq, Somalia, Syria and Nigeria in order to dehumanise and repress their victims. Nevertheless, 2014 saw some positive developments which are noteworthy. One highlight was the entering into force of the Arms Trade Treaty in December; the first treaty to recognise the links between the international arms trade and gender-based violence. We look forward to its effective implementation. While progress made must be commended we cannot shy away from the reality that 2014 saw a resurgence of sexual violence in conflict. Faced with such horrors, how can we translate the concern voiced around this table into meaningful action on the ground? Today, I would like to focus on just three points: Deployment of Women Protection Advisers; better participation and empowerment of women in peacebuilding and greater accountability for sexual violence in conflict. Madam President, The Secretary-General’s report notes the real difference being made by the deployment of Women Protection Advisers to UN missions. They have improved the quality of information and analysis received and have had a catalytic effect on the ground.

284  The Irish Yearbook of International Law 2015 However, of the 170,000 personnel deployed by the UN, just 20 are Women Protection Advisers. Ireland supports accelerated deployment of such Advisers as well as Gender Advisers to facilitate full implementation of all Women, Peace and Security resolutions. The number and roles of these positions must be systematically assessed during the planning and review of each UN mission and the costs should be reflected in the regular budgets of UN missions. Madam President, As Ms. Allamin stressed earlier today, the full and equal participation of women in conflict prevention and peacebuilding is fundamental to any prevention and protection response including to threats posed by violent extremism. In line with Council Resolution 2122 we must step up efforts to support women’s leadership and participation. We must listen to, invest in and build up the capacity of women-led civil society organisations. We need to eliminate legal and other barriers and proactively support the participation of women on an equal footing with men in economic and political decision-making from the household to the national and international level in order to transform the social norms underlying gender inequality. We know that peace agreements are less likely to fail where civil society is included. And yet, in disregarding the role of women, we manage to omit a large segment of civil society. Women represent only 9% of delegates to peace talks and 2% of mediators. And this is in a context where over half of peace efforts fail to sustain peace. There must be a better way. Ireland also calls for the inclusion of conflict-related sexual violence in mediation efforts and in ceasefire and peace agreements. We are encouraged by the Havana peace talks on the Colombian situation where a group of 60 survivors of sexual violence directly addressed the negotiations. As a result, conflict-related sexual violence has been raised in the negotiations by the stakeholders. Madam President, This Council has stressed on many occasions the importance of holding perpetrators of conflict-related sexual violence accountable, not only as an end in itself but to address the culture of impunity which threatens peace and security and post-conflict recovery. We encourage the Council to use all means at its disposal to bring perpetrators into the spotlight including through referrals to the ICC, mandating commissions of inquiry and by explicitly condemning these violations where they occur. Targeted sanctions are another tool at the disposal of the Council and the Council needs to be more ambitious in their use. Ireland strongly supports the recommendation in the Secretary-General’s report, as echoed by Madam Bangura today, to fully integrate conflict-related sexual violence into the work of the Security Council sanctions committees, including the Al-Qaida Sanctions List as part of designation criteria.

Documents 285 Madam President, Sexual violence in conflict can no longer be considered collateral damage or something that is “unfortunate”. It is the direct result of decisions taken by parties to conflict. The history of denial must end. We must incentivise national leaders to adopt women, peace and security as their own agenda. We must tackle the root causes of sexual violence. We must not stop until the barriers that exist for women are dismantled so they can claim their rights as equal citizens. Thank you.

286 

Document 2 Iveagh Lecture at Dublin Castle Ban Ki-moon, UN Secretary-General 25 May 2015 Dia dhaoibh! [Hello!] Thank you for your warm welcome. I am honoured to visit Ireland at this time, a crucially important time for Ireland. Congratulations—Ireland is celebrating 60th anniversary of your admission into the United Nations world organisation. We are now celebrating [our] 70th anniversary. What is more important is that it is not the age, how old you are, but what you have achieved, what you can do for humanity in the coming years. That is why I am here. I wanted to have a much, much [more] strengthened partnership between Ireland and the United Nations. Here in Dublin Castle, one can feel Irish history very powerfully. In that spirit, I would like to begin my remarks today with a bit of United Nations archaeology. You may be curious. In preparing for this visit, I dug up an old speech that was delivered to the General Assembly. ‘The peoples we represent’, said the ambassador, ‘are entitled to expect that above the clamour of our differences, there will also be heard in our debates the voice of reason and justice.’ The United Nations, he said, can draw on the ‘almost limitless resources of courage, energy and imagination which, as history proves, exist among the nations represented here’. And he concluded: ‘The problem still remains, how best to draw on these resources for the common good rather than squander them in mutual destruction, according to the cruel usage of the past.’ These words may seem to highlight the very challenge the human family faces today. Yet they were uttered in 1960 by Ireland’s Frederick Boland as he assumed his duties as President of the United Nations General Assembly in 1960. We have come a long way over the decades, but there is much distance to travel to achieve a peaceful and harmonious world order. As it happens, in October of that year, you may remember very well, Ambassador Boland presided over the famous meeting at which Soviet President Nikita Khrushchev

288  The Irish Yearbook of International Law 2015 used his shoe to make a point. There are some reports that in trying to restore order, Ambassador Boland just hit so hard his gavel was broken. Even in its early years in the United Nations, Ireland punched above its weight! That is why I admire Irish people and your spirit. Several generations and many thousands of Irish men and women have now served the United Nations in various capacities across six decades of membership. Ireland’s imprint has been huge and historic—well out of proportion to the country’s size and your population. Some of those good friends are here today. I would like to recognize: Mary Robinson, former President of Ireland and now working as my Special Envoy on Climate Change; Patricia O’Brien, Ambassador, former Under-Secretary-General for Legal Affairs and now Ireland’s Permanent Representative to the United Nations in Geneva; and Peter Sutherland, my Special Representative for International Migration, you must have seen him quite recently on the media; and [Ireland’s] Ambassador [to the United Nations] David Donoghue. He is now doing very important work. He is one of the two core negotiators, facilitators, of the sustainable development agenda. Ireland shows the ability of small states to make a big difference. Ireland took the first steps that led to the landmark agreement on the NPT, the Nuclear Non-Proliferation Treaty. The Good Friday Agreement that ended the conflict in Northern Ireland showed how countries can avoid condemning their children to endless cycles of violence. Last week’s moving handshake between Prince Charles and Gerry Adams was another reminder of how far you have come. Not so long ago, such an encounter would have been impossible to conceive. Ireland has emerged successfully from a deep economic and fiscal crisis. But while Irish unemployment rose, Ireland worked hard to provide aid to other countries. In going through your own period of austerity, you refused to inflict it on others. Ireland is outward-looking, connected to the world. The United Nations figures prominently in your foreign policy and your identity. I also feel a certain kinship on a more personal level. Ireland is said to have the world’s most beautiful golf courses. It was unfortunate that I could only walk around these courses because of time limits. As you may know Koreans are said to be among the world’s most avid golfers. We are a good team! In that spirit of partnership, I want to talk to you today about what we can do together as we strive for greater progress across the three pillars of the United Nations: peace and security, development and human rights. Excellencies, ladies and gentlemen, Let me start where Ireland stands out: in our pursuit of international peace and security.

2015 Documents 289 Ireland has participated in 36 United Nations peacekeeping missions since 1958. You were in the Congo during the throes of decolonization. You were there in warlord-dominated Somalia in the 1990s. Today you are in the Middle East, from Lebanon to the Golan Heights. Your soldiers and police continue to earn the respect of the international community. Moreover, Ireland has not shied away from risk and hostile environments. You have gone where the needs are, with one aim only: to protect the vulnerable. The United Nations is also grateful for Ireland’s strong support of mediation. You know the costs of conflict in a direct and personal way, and continue to help us strengthen our work to resolve conflicts peacefully. You can see those costs in the multiple crises that are happening at this time. From Syria and Iraq to South Sudan, suffering is on the rise and solutions are remote. Humanitarian needs in Yemen are escalating rapidly. The recent five-day humanitarian pause in the fighting was far too brief. It is regrettable that despite the appeals from the international community, including the United Nations, Yemen has decided to resume their fighting. I call yet again for a complete cease-fire immediately and a return to dialogue. In this 70th anniversary year, we must also look beyond the emergencies and consider the deeper issues that spell success or failure in keeping the peace. Many of today’s conflicts involve a complex web of internal grievances and external interests. The lines between transnational criminals and terrorists are blurring. We are seeing systematic sexual violence that is horrifying in its cruelty, scale and impact. The changing nature of conflict requires new thinking and approaches. I have appointed a High-Level Panel to recommend ways our peacekeeping, political and peacebuilding operations can better address today’s conflicts. The last review of our peace mission took place in 2000 by Lakhdar Brahimi. During the last 15 years, a lot of changes have taken place. Our peacekeepers [are] now [deployed in] certain cases where there is no peace to keep because civilians are being killed and human rights are being abused, totally. So the Security Council, upon my recommendation, for the first time, has to deploy peacekeepers where there is no peace to keep. We have deployed Force Intervention Brigades to pursue and to make and to enforce peace. Many of the peacekeepers are now working in very dangerous circumstances, and the United Nations flag itself, which used to be protection for United Nations staff and peacekeepers, they do not respect. They attack the United Nations. That is why we have to change our way of doing business. They are working in asymmetrical theatres. That is why I asked the High-Level Panel [to] please consider all the situations very seriously, carefully and let me have your recommendations, and we have the full support of the Security Council on this. I have also launched the Human Rights Up Front initiative to strengthen our ability to engage early to protect against serious violations and atrocities. Why are we working so hard? After all, the United Nations is working to protect human

290  The Irish Yearbook of International Law 2015 rights and human dignity so that everybody can live without any fear in their safety and security. In the name of peace and security, human rights should not be abused. We cannot give up our human rights. Human rights should be put upfront in our important pillars. We are also working to maintain the integrity of peacekeeping itself. Those sent to protect people in need have a duty to uphold the highest standards of conduct. Sexual violence by peacekeepers—we are taking a zero tolerance policy. This is loud and clear. The disarmament agenda is another priority. I am grateful to Ireland for ratifying the Arms Trade Treaty last year, so soon after its adoption. The major advance comes at an otherwise disappointing moment for disarmament and non-proliferation, as the NPT review conference, which was held until last week for four weeks, has not been able to adopt a consensus document. There are still very serious differences of opinions, positions, among Member States while nuclear proliferation is still a major source of concern for global peace and security. I will look to Ireland to maintain its leadership and commitment and help sustain momentum in a number of areas, particularly disarmament areas. Ladies and gentlemen, We are addressing peace issues, development and human rights issues. We have experienced that there will be no peace without development. Likewise, development cannot be promoted without security and safety. Therefore, peace and development should go hand-in-hand. It is tightly interconnected. In the months ahead, we have a once-in-a-generation opportunity to place the world on a more peaceful, sustainable and equitable path. Let me just lay out three most important priorities which the United Nations, all Member States of the United Nations, are working very hard on. First, in July in Addis Ababa, the Conference on Financing for Development will offer an opportunity to agree on a framework for the resources that are needed. In September, the United Nations has decided to convene a special summit meeting for three days where we are inviting the leaders of the world to address and adopt the sustainable development agenda with a set of Sustainable Development Goals. This year is the deadline year for the Millennium Development Goals—a 15-year vision—which has been largely successful but not fully realized, so we should have a successor development vision. That is the sustainable development agenda: the Post2015 Development Agenda. We hope that the leaders will come and adopt ambitious and visionary and implementable, practical visions for our development. That is what Ambassador David Donoghue is doing. I certainly hope he will demonstrate his leadership and make it happen. Secondly, in December in Paris, we have a hugely important responsibly to adopt a climate change agreement. The international community has been discussing this matter during at least the last 20 years without making any progress while the

2015 Documents 291 climate change phenomenon has been hitting and impacting all throughout the world. There are no boundaries between the developed and developing world. There are no geographic boundaries. So it is coming. We sincerely hope that the world leaders will show their political leadership to adopt ambitious, universal and very meaningful climate change agreement in December. Those are three priorities which we must realize by the end of this year. That’s why I’m travelling, I’m coming, particularly to Ireland, as one of the champion countries and as one of the EU member states. I count on your strong engagement and leadership. Ireland has also been a champion of efforts to conquer hunger. But today, one cannot be a leader on hunger without also being a leader on climate change. The rise in extreme weather associated with climate change could drastically reduce harvests and degrade arable land. I encourage Ireland to align its climate efforts with its admirable work against hunger. For too long, the response to climate challenge has been hindered by entrenched interests, national interests, and those who question the science. Now by this time, the science has made it simply clear that climate change is happening because of human behaviour. Now, it’s only natural that it is us as human beings who have to answer nature’s call. I often have been saying that nature does not negotiate, nature does not wait. Nature goes on its own path. It is us—we have to adjust ourselves to this changing situation. People say that we may be stepping on a tipping point. Depending upon where you set foot, we may just fall into chaotic situations, very deeply regrettable situations. Or if we take action now, today, it may not be too late. Addressing climate change has been seen as also antithetical to economic growth. Today we know that is a false choice. Putting our economies on a low-carbon pathway will create new markets, provide energy security and improve our health. Again, the moral case for climate action is just as clear. The world’s poorest and most vulnerable countries are the first to be impacted and the most impacted because they don’t have any capacity to mitigate and adapt. Last month, I met with His Holiness Pope Francis at his invitation and I went to the Vatican. I spent a day and had a serious talk with him on climate change. He said he is ready to help the international community, the United Nations, in promoting and pushing ahead this climate campaign. He said that he would issue his papal encyclical during the month of June, next month. I believe that once he issues his encyclical, it will have a profound impact. I am very much grateful. He is coming to a special session of the General Assembly in September. That will be the first time that any Pope comes to the General Assembly at the beginning of the regular General Assembly to address the leaders of the world. This year’s milestones give us the best chance to end poverty, and I believe that we are the last generation that can address climate change impacts and I think we may be the first generation that can put an end to poverty. That is the vision of our

292  The Irish Yearbook of International Law 2015 sustainable development; otherwise, we will have to regret and be morally, politically responsible to our succeeding generations. Ladies and gentlemen, Ireland is also strongly identified with human rights and humanitarian action. It is an active member of the Human Rights Council—and a leader in a drive to protect civil society at a time when citizens groups in many countries face rising harassment and intimidation. President Michael Higgins is a long-standing human rights advocate—and is working with UN Women to champion the ‘He for She’ campaign. I was the first man to sign the ‘He for She’ campaign and we have more than 1 million men who have joined this ‘He for She’ campaign. This aims to involve more men in working for gender equality and women’s empowerment. Ireland’s women are making their mark in the areas of justice and the law. As you may remember, in 1995 in Beijing, the world’s leaders affirmed and pledged that by 2005, we will establish gender parity. 2005 came and went a long time ago—10 years ago. Now, our aim is that by 2030, another 15 years, even though it is regrettable, we are now pushing our goal post 15 years ahead, [and] by that time, we must realize gender parity and gender empowerment. That’s a firm commitment I have already announced. That will be reflected in our development agenda. Ladies and gentlemen, Ireland is among the top 10 contributors to the United Nations’ Central Emergency Response Fund, a vital channel for disaster assistance. I welcome the meeting Ireland will hold in July to forge Ireland’s contribution to the first-ever World Humanitarian Summit which will be held in Istanbul next year. This Humanitarian Summit, which will be the first ever to be organized by the United Nations, aims to generate an ambitious forward-looking agenda for humanitarian action in an era when more and more people are facing life-threatening disasters, conflicts and other hazards. And of course, Ireland has just become the first country to grant same-sex marital rights through a national referendum. I was not here at Dublin Castle on Saturday night, but I saw the pictures of the jubilant crowd that gathered outside when the official count was announced. And I listened to interviews in which several people talked movingly about their experiences with bullying, discrimination and life in the shadows. Ireland voted on marriage, but in the process you have also decided to fully include members of the LGBT community in the life of this nation. The United Nations will continue to speak out, including through the Free & Equal campaign. You don’t have to be LGBT to care about LGBT rights; you only have to care about equality, fairness and human dignity. Those values are certainly part of the Irish identity. As Secretary-General, from day one, I have declared that I will make the United Nations the best workplace for LGBT people to work. At that time, these people were working in the shadows. They were very cautious. When I invited the

2015 Documents 293 representatives of LGBT staff, they refused to take a picture with me. They were the first in the world who refused to take a picture with me—you’d be surprised. Everybody wants to take a picture with me! I asked why? Why are you afraid? [They said] because our photos will be put on a website. They didn’t want to be identified. So I agreed. I promised that I will keep the photo to myself and I’d only give it to [them] without publicizing it. As time went by, because they were encouraged, they made a calendar—a 12-page calendar, one year—putting in their photos with me. Every month, there were different photos. So they feel that their rights and human dignity are protected. Now for the first time again this last year I changed my administrative bulletin that those same-sex married couples will be given the same financial entitlements. That was historic. You may not know how hard I [fought]. There was serious fighting within the General Assembly. Some Member States submitted a draft resolution to reverse, to kill my decision. Their argument was that I was acting beyond my own authority. Fortunately, that resolution was defeated by the majority of the Member States. In fact, I did this first before you had your national referendum! So I’m proud that the United Nations is leading this campaign. Ladies and gentlemen, There is another issue that touches the Irish DNA—the experience of migration. The Irish know what it is like to have to leave—and what it is like to be taken in, to overcome discrimination and to prosper in new environments. Ireland can bring that knowledge and empathy to today’s migration landscape. Whether fleeing war and persecution or seeking opportunity, people often face perilous journeys, become easy prey for criminals, and see closed gates—not open arms—when they reach their destinations. Recent tragedies from the Mediterranean to the Andaman Sea highlight the global nature of the challenge. I was very much moved today, this afternoon, [when] together with Peter Sutherland and the Justice Minister, we met a group of refugees from Afghanistan, the [Democratic Republic of the] Congo, Syria, Myanmar and elsewhere. I really appreciate, highly commend, the Irish Government’s very warm helping hands to caress them, to resettle [them] in Ireland. The Syrian [assistance] programme which is excellent, very generous, and I am also grateful for another programme to accommodate at least 300 Syrian refugees. That is what the Irish DNA shows. Ladies and gentlemen, Some basic touchstones must guide our response. One priority must be to save lives, including through ample search-and-rescue operations. Our approach must be comprehensive, focusing on the full continuum—countries of destination, transit and, above all, origin. We need to crack down on smugglers while protecting refugees and upholding human rights and international law. We need to go beyond the emergencies to get at the roots.

294  The Irish Yearbook of International Law 2015 Push factors include conflict and under-development. One pull factor includes the simple lure of an escape from poverty and deprivation. Europe must also acknowledge another: its workforce deficit. Europe is experiencing low population growth and demographic transition to an ageing population. If Europe is to retain its economic dynamism, Europe needs migrants. I welcome Ireland’s contribution of a naval vessel to the rescue capacity in the Mediterranean. Ireland has also resettled people from many countries. I urge the countries of the European Union to shoulder more of their resettlement responsibilities, and to align Europe’s actions with its values. Let us also work together more generally, across Europe and beyond, to address the worrisome increase in stigma and discrimination against migrants, and to highlight the benefits of migration themselves and the countries that receive them. Ladies and gentlemen, I will have to conclude—we have a full agenda and fateful decisions ahead. As Ireland and the United Nations commemorate our two milestones, let us draw inspiration from a third: the 150th anniversary of the birth of William Butler Yeats, one of Ireland’s Nobel Literature laureates. I have just learned that his birthday—June 13th, my birthday—so it is with a special feeling that I will close my remarks with one of his great quotes: ‘I have believed the best of every man. And find that to believe is enough to make a bad man show him at his best, or even a good man swings his lantern higher.’ It can be hard to stay positive at a time of crises and trends that put our future wellbeing at risk. But human beings have remarkable gifts—ideas, passions and compassion. If we use that great wealth—if we draw on the best of every man and every woman—we can set the world on a better course, and enable the beacon of peace to light up every human heart. Ladies and gentlemen, congratulations again on 60 years of dynamic membership in the United Nations. Let’s work together to make this world better for all and wonderful for all. I thank you. Go raibh maith agaibh. [Thank you.]

Document 3 Statement by the Taoiseach in Advance of the October Meeting of the European Council Dáil Éireann, 7 October 2015 A Cheann Comhairle I welcome this opportunity to address the House on the diverse agenda of the ­European Council taking place next week in Brussels. Following the events of recent months, which have seen the greatest movement of people to and through Europe since the Second World War, international and ­European attention has rightly been focused on the current refugee and migration crisis. An Extraordinary European Council was convened on 23 September which I attended. Building on previous European Council meetings in April and June, this looked both at the immediate crisis and at some of the broader issues around migration and our collective efforts to deal with them. It agreed on a wide range of issues requiring intense and urgent further work. The European Council will next week continue its work on shaping a comprehensive EU approach, on the basis of solidarity and responsibility, and recognising the crisis points which exist around our Union. This will involve a further substantial discussion on migration in all its aspects including follow-up on the points agreed at the previous European Council meetings. It will be briefed on the outcomes of the meetings with the Turkish President in Brussels on Monday and tomorrow’s high-level conference on the Western Balkans route. It will also take stock of preparations for the Valletta Summit with the African Union in early November. Also on the agenda, and further to the June 2015 meeting, the European C ­ ouncil will take stock of discussions to date on the Five Presidents’ Report on Economic and Monetary Union, based on work undertaken by the Council and by the Commission. Thirdly—and again following on from the June European Council, where Prime Minister Cameron outlined his general thinking on EU reform and the UK ­ ­referendum on EU membership—the President of the European Council, Donald Tusk, will inform Heads of State and Government about the state of play of the technical analysis that has been taking place at official level. The President will also set out his intentions for the process ahead. I have asked Minister Murphy to address foreign policy issues in his wrap-up statement. Of course, the situation in Syria is directly relevant to the migration crisis. I will, however, now address the other issues on the agenda.

296  The Irish Yearbook of International Law 2015 I should add that the fact that this Statement necessarily has had to be made ­somewhat earlier than usual means that the draft Conclusions have not yet been circulated by President Tusk, nor have the normal preliminary discussions yet taken place in Brussels. Migration The issue of migration and the current refugee crisis has been at the centre of ­European discussion over recent months. EU Justice Ministers met twice in ­September at ­emergency Councils in Brussels, first to confirm an earlier decision to relocate 40,000 people and then to adopt proposals to relocate a further 120,000 people in need of international protection. This means that a total of 160,000 people seeking asylum will be relocated to other EU Member States from Greece, Italy and other States which may be hit by a sudden inflow of nationals of third countries. At the informal European Council meeting on 23 September, progress on taking ­forward the various elements of a comprehensive approach to migration—which were broadly agreed at our meetings in April and June—was examined Outcomes included a commitment of some €1 billion in budgetary assistance to ­agencies such as the UNHCR and the World Food Programme, as well as renewed diplomatic efforts to resolve the crises in Syria and Libya. Strengthening the protection of the EU’s borders, and better arrangements to process arriving asylum seekers in front-line countries, were also discussed. Ireland has consistently called for solidarity, both externally and internally, in ­shaping the European Union’s responses to the migration issue. We have aimed, in our approach, to be both compassionate and practical, seeking to alleviate suffering as well as tackling root causes. I want to note that Ireland has been making an important contribution on a number of fronts to ongoing efforts to tackle the crisis: —— The Government has agreed that it will accept in the region of 4,000 asylum seekers and refugees overall under Resettlement & Relocation programmes. This is well in excess of any notional ‘quota’ that we might have been attributed by the European Commission. —— This includes 520 refugees which we have offered to resettle from refugee camps. Some of these have now started arriving in Ireland. —— The decisions to relocate 600 people from Italy and Greece under the initial Commission proposal, and a further approximately 1,850 under the subsequent Commission proposal, were of course subject to Oireachtas approval. This has now been received and the European Commission was duly notified on Monday, 5 October, of Ireland’s intention to join the two measures. —— The remaining 1,030 people will be taken on resettlement or on relocation, with the final breakdown between these two categories still under consideration.

2015 Documents 297 —— We have deployed a naval vessel and full crew in the Mediterranean since June—initially the LE Éithne, then LE Niamh and now the LE Samuel Beckett— to assist our Italian colleagues in their international humanitarian search and rescue efforts there. Since May, our naval vessels have rescued 7,639 people. We are extremely proud of their outstanding endeavours in very difficult ­circumstances, and I know that everyone in the House and the Irish people as a whole are united in their admiration and appreciation. —— Importantly, we provide other supports to areas particularly affected by instability and conflict. For example, a total of €41 million will have been provided by the end of 2015 towards assisting those displaced as a result of the Syrian crisis, including through participation in a Regional Development and Protection Programme in the Middle East. We have also provided almost €36 million in humanitarian funding to Somalia since 2008. Furthermore, at the start of September, we committed to doubling our annual contribution to the World Food Programme from €10 million to €20 million per annum, for the next three years. All of these measures have been supported by a swift response at home, led by the Department of Justice and Equality, to put measures in place that will facilitate the arrival of refugees to Ireland and will offer a welcome safe haven for those seeking international protection. The announcement on 10 September of the establishment of the ‘Irish Refugee ­Protection Programme’ and particularly the efforts of a new inter-departmental Taskforce, chaired by the Department of Justice & Equality, are significant steps in the Government’s contribution to long-term sustainable solutions to this crisis. An important part of Ireland’s response to the migration crisis is our forthcoming participation in high-level meetings with a specific regional focus, both of which were also discussed at the Extraordinary European Council meeting on 23 ­September. The first meeting, the Western Balkans Conference, takes place in Luxembourg tomorrow and will be attended by Ministers dealing with migration issues. This will immediately follow the scheduled meeting of the Justice and Home Affairs Council tomorrow and the Minister for Justice and Equality, Frances Fitzgerald, will attend on behalf of Ireland. The Western Balkans Conference is expected to agree a Declaration emphasising the need for solidarity and a collective response to what is a common challenge. In this context, President Erdogan’s visit to Brussels earlier this week when he held talks with the Presidents of the European Parliament, European Council and ­European Commission—Presidents Schulz, Tusk and Juncker is significant. Turkey hosts over 2.2 million people from Syria and Iraq so it must play an important part in addressing the crisis. President Juncker and President Erdogan, at their meeting, discussed a draft plan for strengthening cooperation between the EU and Turkey in responding to the migration crisis.

298  The Irish Yearbook of International Law 2015 This plan constitutes an important part of the ongoing political dialogue between the EU and Turkey, building on but going beyond the accession framework. It focuses on supporting refugees and their host communities in Turkey on the one hand, and stepping up cooperation in combating irregular migration on the other. The Commission and President Erdogan agreed to take forward work on the plan quickly. There will be continuing in-depth consideration of the situation as it affects Turkey and other partners, at the Western Balkans Conference tomorrow, and of course, following that, at the European Council itself. The Conference Declaration is expected to identify five key common actions including: support for host Governments and communities in Syria’s immediate neighbourhood, primarily Jordan, Lebanon, and Turkey; support to affected transit countries; cooperation in the fight against people smuggling and associated organised crime; addressing the root causes of forced displacement; and lastly working with countries of origin. We are hopeful that the Conference will contribute to making progress in dealing with this hugely complex and difficult issue. A second meeting, bringing together EU leaders and our African counterparts, as well as representatives of multilateral organisations in the region, will take place in Valletta, Malta on 11 and 12 November. This Summit was identified by EU ­leaders at our April Council as a valuable opportunity to increase engagement with our African partners. The purpose of the Summit is to focus on the external relations dimension of migration policy and to find the appropriate tools to address both the current—and future—migratory challenges. The conference will seek to build on existing cooperation frameworks with African partners, many of which are countries of origin and transit, in order to address migration challenges to our mutual benefit. It is proposed to issue two documents from the Valletta Summit—a Political Declaration and an Action Plan with Areas of Action. Arrangements for the Valletta Summit, including the preparation of these outcome documents, are ongoing across my Department, the Department of Foreign Affairs & Trade, and the Department of Justice & Equality. The Five Presidents’ report on Completing Europe’s Economic and Monetary Union. At the upcoming European Council, Heads of State and Government will give ­further consideration to the report on Completing Europe’s Economic and Monetary Union, which was published by the Presidents of the Euro Summit, ECB, Eurogroup, European Parliament and Commission on 22 June. At the June European Council, the Report was noted and referred back to Council for ‘rapid examination’. It will be recalled that, building on measures implemented in recent years to make Economic and Monetary Union—EMU—more stable and resilient, the report proposes a two-stage approach to further reform. The first is a short-term stage focused on boosting competitiveness, maintaining responsible fiscal policies and completing Banking Union, while the second is a longer-term stage which could involve more significant changes to the EU’s economic and institutional architecture. Following discussions by Finance Ministers at the informal Ecofin in September and by Social and Employment Ministers at EPSCO on 5 October, the ­Commission

2015 Documents 299 is expected to present some concrete proposals for Stage One in the coming weeks. These are likely to include an in-depth review of the so-called ‘six-pack’ and ‘two-pack’ which set out detailed fiscal rules in the framework of the S­ tability and Growth Pact; some re-organisation of the European Semester; and a ­proposal for unified external representation of the euro area at international financial institutions. Subsequent proposals are expected to focus on completing Banking Union. Ways to strengthen the euro area’s focus on competitiveness issues and its ability to take an overview of its fiscal position are also being considered. There has also been discussion of ways to strengthen the social dimension of the euro area. In general terms, Ireland is pragmatic and realistic about what can be achieved. As we see it, economic governance within EMU has been subject to major changes in recent years. The effects of these changes still have to be fully worked through, particularly at [the] national level where they have introduced a considerable ­ ­European dimension into the framing of budgets. Our stated position has been that work must continue on fully implementing the current economic governance ­framework, rather than engaging in significant further initiatives. Our focus has to be on practical measures for driving economic growth and the Union’s ability to deliver for its citizens. However, we welcome the focus of the ­proposed short-term measures to be proposed in Stage One, in particular the completion of Banking Union and accelerating the Capital Markets Union with the CMU Action Plan, which was launched by the Commission on 30 September. As for the medium-to-longer term, as the debate on future options becomes more concrete—which may not be for some time—we will continue to engage fully with partners and the institutions, on the basis of our own national analysis. I welcome the recent hearings by the Joint Committee on European Affairs on the future of EMU which represent a useful contribution to widening debate here. EU-UK Finally, I want to turn to the third item on the agenda, the issue of the United ­Kingdom’s membership of the European Union. Firstly, I understand that President Tusk intends to update Heads of State and Government at the Council on the state of play of the technical work that has been under way in Brussels between British and EU officials since the June European Council. I look forward to hearing from President Tusk and to finding out how he views the process advancing in the weeks ahead. There is an expectation that Prime Minister Cameron will present his latest thinking on the issues he has identified at some stage after the European Council ­meeting, and the hope is that this will lead to a phase of more detailed discussion. The arrangements for taking forward that detailed discussion are not yet clear, but there is likely to be further consideration by Heads of State or Government at the European ­Council meeting in December.

300  The Irish Yearbook of International Law 2015 I set out the position of the Government at some length in answer to questions in the House last week. However, I would like to take this opportunity again to stress that the place of the United Kingdom in the European Union is of real national ­importance for Ireland, and this issue is a strategic priority for the Government. I have made clear to Prime Minister Cameron in my discussions with him how much value we attach to the fact that both our countries are members of the European Union. We are therefore watching developments very closely. Officials in my Department, our Permanent Representation in Brussels and our Embassy in London are in very regular contact with British and other colleagues. We will be open and pragmatic when it comes to sensible proposals to improve the EU and make it better able to meet the needs of its citizens, and also to address specific UK concerns, though of course we will be fully conscious both of our own national interests and of the views of other Member States. We will work with the British Government and all our EU partners so as to find a consensual basis for the UK’s continued membership of our Union. I look forward to learning more about progress next week and of course to reporting to the House afterwards. The European Council will, therefore, address a number of important issues. I expect that, in keeping with the urgency and complexity of the situation, migration will dominate proceedings, but the discussions of EMU and the UK will also be of considerable interest for the longer term. I look forward now to hearing Deputies’ comments and perspectives. Thank you.

Document 4 Statement by Minister Flanagan re Foreign Affairs Council 16 November 2015

Minister Charles Flanagan, European Union, Press Releases, Europe, 2015, Statement by Minister Flanagan re Foreign Affairs Council This morning the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, attended the EU Foreign Affairs Council in Brussels. He joined fellow EU Foreign Ministers in standing in solidarity in the minute’s silence to remember the victims of the terrorist atrocity in Paris on Friday last. This was the first meeting of EU Ministers since the attacks. Minister Flanagan stated: ‘Today’s Foreign Affairs Council is an important coming together of EU Foreign Ministers to demonstrate both our support and solidarity with our French colleagues, and our unity as a union of Member States in the face on this assault on our value system. ‘We undertook a valuable discussion on migration and there was a clear view at the meeting that the issue of migration cannot and should not be conflated with the appalling acts of terrorism in Paris. ‘My French colleague briefed Ministers. I conveyed the condolences and fellowship of the Irish people to him directly. ‘Ministers also discussed the Middle East Peace Process. ‘I am now travelling to Belfast where all-party Talks are at a critical point.’ ENDS Press Office 16 November 2015

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Document 5 Statement by Mr. James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 70th Session Agenda Item 83: The Report of the International Law Commission on the Work of its 67th Session PART 2—Ch VI (Identification of customary international law), Ch VII (Crimes against humanity) and Ch VIII (Subsequent agreements and subsequent practice in relation to the interpretation of treaties) New York, 6 November 2015 Check against delivery Mr. Chair, Identification of customary international law 1. Ireland welcomes the continued work of the Commission on the topic of the identification of customary international law, and thanks the Special ­Rapporteur, Michael Wood, for a richly detailed third report, and the Drafting Committee for its careful consideration of the draft conclusions submitted to it. 2. Last year, my delegation supported engaging in a deeper analysis of the relationship between the two constituent elements of general practice and acceptance as law. We very much welcome, therefore, the further analysis and refinement provided by the Special Rapporteur. We agree with the addition of draft conclusion 3, paragraph 2, as provisionally adopted by the Drafting Committee. Like many aspects of this topic, we believe that this paragraph will benefit from further elucidation in accompanying commentaries, the basis for which might already be found in the Special Rapporteur’s report. 3. As my delegation had also encouraged it in its comments on the topic last year, we are particularly pleased with the further examination of the practice of

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Mr Chair, 4. We welcome the further consideration afforded to the question of inaction as practice and/or as evidence of acceptance as law. As previously stated, we believe a cautious approach to inaction is required, for the reason succinctly put by Ms Marie Jacobsson, quoted on page 11 of the report: “while it is possible that inaction may serve as evidence of acceptance of law, the reverse may also be true: namely that inaction may not be interpreted as acceptance”. We would, therefore, echo the suggestion that consideration be given to including, within the text of draft conclusion 11 itself, the specific criteria to be taken into account to qualify inaction as evidence of acceptance as law. 5. My delegation supports the cautious approach taken in the text of draft conclusion 11, and in particular the reference to the fact that treaties “may reflect” a rule of customary international law, provided that certain matters are established. As stated by the Chairman of the Drafting Committee, in and of itself a treaty does not create customary international law or conclusively attest to it. This note of caution has been further strengthened by the proposal by the ­Special Rapporteur to include a second paragraph, in which it is highlighted that the fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that it reflects a rule of customary international law. We note the reference in the Special Rapporteur’s report to the requirement expressed by the ICJ in the North Sea Continental Shelf Case that the treaty provision concerned should be of “a fundamentally norm-creating character”, and would suggest that this element might benefit from some further consideration and elaboration. To similar effect, we support the alteration made to draft conclusion 12 so as to place, as paragraph 1, a statement to the effect that resolutions of international organisations or intergovernmental conferences cannot, of themselves, create a rule of customary international law. 6. Regarding draft conclusion 13, we support the separation out as between, first, decisions of courts and tribunals and teachings and, secondly, as between decisions of international courts and tribunals and decisions of national courts. Once again, this is an area where the succinctness of the draft conclusions may benefit from further guidance within the commentaries. The singling out of the international Court of Justice is, in our view, justified, as is the cautionary reference to having regard to decisions of national courts “as appropriate”. 7. Both draft conclusion 15, on persistent objector, and 16, on particular customary international law, have a certain sensitivity, touching upon, as they do, the issue of fragmentation of international law. Whilst my delegation can express support, in principle, for the draft conclusions, we look forward to reading the

2015 Documents 305 relevant draft commentaries, which will be no less important in setting out a common understanding on these two significant questions. 8. Finally, Mr Chair, I wish to welcome the suggestion by the Special Rapporteur to include, within his next report, a consideration of practical means of enhancing the availability of materials on the basis of which a general practice and acceptance as law may be determined, and we very much look forward to this fourth report.

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Document 6 Statement by Mr. Trevor Redmond Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 70th Session Agenda Item 83: The Report of the International Law Commission on the Work of its 67th Session PART 3—Ch IX (Protection of the Environment in relation to Armed Conflicts), Ch X (Immunity of State officials from foreign criminal jurisdiction) and Ch XI (Provisional Application of Treaties) New York, 10 November 2015 Check against delivery Mr. Chair, Immunity of State Officials from foreign criminal jurisdiction 1. Regarding the topic “Immunity of State officials from foreign criminal jurisdiction”, Ireland welcomes the fourth report of the Special Rapporteur, Ms. Concepcion Escobar Hernández, which deals with the material and temporal scope of immunity rationae materiae, and the wealth of materials reviewed, as well as the provisional adoption fay the Drafting Committee of draft article 2(f), defining the term “act performed in an official capacity”, and draft article 6, defining the scope of immunity rationae materiae. 2. The concept of “an act performed in an official capacity” is central to this topic as a whole. We very much see the merit, therefore, in including a definition of this term, whilst at the same time recognising the importance of well-crafted commentaries in capturing the subtleties involved in such a definition. As expressed by the Special Rapporteur in paragraph 238 of the Commission’s report, given the diversity in the existing case law, it is indeed questionable whether the term

308  The Irish Yearbook of International Law 2015 ought best to be regarded as an indeterminate legal concept that can be Identified by judicial means. A definition, together with detailed commentaries, would, in our view, assist in achieving greater legal certainty. It would also serve to focus the mind on the core rationale of immunity, which is the protection of state sovereignty and ensuring the efficient performance of state functions, as opposed to benefitting individuals. This may help to guard against any unduly broad interpretations of the term. 3. It might be acknowledged, however, that the proposed definition has an element of circularity, and is general in nature. Accordingly, whilst the identification of an act as an “act performed in an official capacity” should be carried out on a case by case basis, we would nevertheless see value in including within the commentaries detail as to the criteria or characteristics that might be used in applying the definition in practice. We would, at this stage, retain an open mind as to whether such criteria might usefully be included within the definition itself. 4. As regards the proposed definition put forward, we agree that it is appropriate to follow the terminology used by the ICJ in the Arrest Warrant Case, namely “acts performed in an official capacity”. We share the view that the concept of an act performed in an official capacity does not automatically correspond to the concept of acta jure imperii, and that an act performed in an official capacity may refer to some action jure gestionis performed by state officials while fulfilling their duties and exercising state functions. In addition, the concept of an act performed in an official capacity bears no relation to the lawfulness or otherwise of the act in question. For the reasons set out in paragraphs 208–209 of the ILC’s Report, we support omitting the criminal nature of the act from the criteria for categorising an act as one performed in an official capacity. We are pleased to note that the Special Rapporteur intends to focus in her next report on the important question of limitations on, or exceptions to, immunity rationae materiae. We look forward to this report, including its consideration on how best to deal with the relationship between the definition of acts performed in an official capacity, and limitations and exceptions to immunity rationae materiae. 5. Finally, Mr. Chair, we commend the Special Rapporteur and the Drafting Committee for the careful consideration afforded to the complex issues dealt with in draft article 6, which sets out the material and temporal scope of immunity rationae materiae in a clear and precise manner. Provisional Application of Treaties 6. Ireland aligns itself with the statement delivered by the European Union in relation to the Provisional Application of Treaties, and would like to offer the following additional observations. 7. Ireland thanks the Special Rapporteur, Mr. Juan Manuel Gomez-Robiedo, for his third report and in particular for the detailed comparative analysis contained therein. The multiple examples provided of the provisional application of t­ reaties,

2015 Documents 309 in a variety of scenarios, are very helpful in contextualising our discussions. We also wish to thank the Secretariat both for its Memorandum on the negotiating history of Article 25 of the Vienna Convention on the Law of T ­ reaties between States and International Organisations, and for the non-exhaustive list of multilateral treaties which provide for provisional application, annexed to the Special Rapporteur’s report. 8. My delegation welcomes the twin focus in this year’s report on the relationship of provisional application to other provisions of the Vienna Convention on the Law of Treaties, and on provisional application with regard to international organisations. 9. With regard to the first theme, we agree with the need to stress the conceptual distinction between the expression of consent to be bound by a treaty with a view to its entry into force and the provisional application of a treaty for a period preceding its entry into force, albeit that the means of expressing consent to be bound by a treaty, as provided in Article 11 of the Vienna Convention, may also be used to agree to its provisional application. We agree, too, that provisional application is very different from any supposed exceptional modality for entry into force. As stated last year, Ireland shares the view that provisional application does produce legal effects. In this regard, we support the conclusion of the tribunal in the Yukos case, cited in paragraph 66 of the Special Rapporteur’s report, that a treaty must not allow domestic law to determine the content of an international legal obligation as regards provisional application, “unless the language of the treaty is clear and admits no other interpretation”. We would, however, support the suggestion that further analysis be undertaken as to the precise nature of the legal effects created by provisional application, and the extent to which they differ, if at all, from the effects created by the entry into force of the treaty. This might include a consideration of whether there are any differences in the termination and suspension processes for both regimes. 10. As regards the second theme, the analysis undertaken provides firm support for the conclusion that legal regime of provisional application of treaties between states and international organisations, or between international organisations is, mutatis mutandis, the same as that relating to treaties between states. The example provided of the provisional application of amendments to the Convention on the International Maritime Satellite Organisation raises a number of interesting issues which, we would suggest, may benefit from some further examination. In particular, whether, in the absence of any explicit provision in a constituent agreement of an organisation, states parties to that agreement may decide to provisionally apply amendments thereto and, if so, how such decisions are to be taken. 11. Finally, we of course thank the Special Rapporteur for the proposed draft guidelines, and the Drafting Committee for their careful consideration of a number of these at its current session. We can support the provisionally adopted draft guidelines 1 and 2, on scope and purpose. My delegation would also concur

310  The Irish Yearbook of International Law 2015 with the proposal to suppress from draft guideline 3 any reference to the internal law of the state or the rules of international organisations, and to track the language of Article 25 of the Vienna Convention as closely as possible. We welcome the Special Rapporteur’s intention to consider, in his next report, the question of the termination and suspension of provisional application, as well as the interplay between provisional application and reservations to treaties.

Document 7 National Statement to be Delivered by An Taoiseach Enda Kenny T.D., 21st Conference of the Parties to the UN Framework Convention on Climate Change 30 November 2015 Check against delivery Thank you, Mr. President. Ireland associates itself with the statements made by Presidents Junker and Tusk and the Luxembourg Presidency, on behalf of the EU and its Member States. COP 21 provides a unique opportunity for the political leaders of this generation to provide lasting foundations for the preservation and sustainability of generations of the future. Excellencies, colleagues: Many of us in this room came together in New York in September to agree the Sustainable Development Goals—the most ambitious programme of action ever agreed by the nations of the world. Today, we meet in Paris, a city whose people have demonstrated remarkable bravery, courage and resilience in the face of the most horrendous crimes. I hope that we are serious about putting in place a legally binding agreement on climate change that will underpin our actions on the goals already agreed and enhance our ability to reach them. This requires action by everybody—big and small. Ireland is determined to play its part. We have committed, with our EU partners, to a collective target to reduce greenhouse gas emissions by at least 40% by 2030. Ireland’s national longterm vision is presented in climate legislation, which sets out our intention to substantially cut CO2 emissions by 2050, while developing an approach towards carbon neutrality in the land sector that does not compromise our capacity for food production. We are developing a National Mitigation Plan to achieve that vision. One really significant area for Ireland is our valuable and already efficient agriculture sector. Through a series of programmes, like carbon foot-printing 43,500 beef farms and 18,000 dairy farms, we are driving economic and environmental efficiency in agriculture and achieving results that we believe are both transferable and scalable.

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The Irish Yearbook of International Law 2015

Our research will contribute to global progress and help all countries realise the potential of their land sectors in addressing climate change. This is not just about opportunities—but about the cooperation that will allow us to address our common challenges. Real transparency and accountability will benefit us all but we need to trust each other and the systems that we operate in. Building on our strong track record of supporting developing countries including in areas like climate justice, human rights, gender and education, Ireland recognises that vulnerable communities need very considerable assistance in adapting to climate change. Despite recent difficult economic circumstances, Ireland provided public climate finance of €34 million in 2014, including support for the Least Developed Countries Fund. These funds support adaptation in agriculture, food and energy systems, and help to strengthen the resilience of vulnerable households, primarily in sub-Saharan Africa. Ireland is committed to scaling up climate finance; 1. In addition to continuing our current level of support, which from 2016 to 2020 will ensure €175 million in public funding, mainly for adaptation, Ireland will commence contributions to the Green Climate Fund in 2016 with a view to building up our support over the coming years. 2. We will increase our contribution to the Least Developed Countries Fund and 3. We are also examining ways to mobilise private finance from Ireland, to further contribute to the 2020 goal. The negotiations this week will be very difficult but if we are serious then we should leave Paris with an ambitious and binding agreement that will ultimately limit global temperature increase to less than 2 degrees above pre-industrial levels. In this regard, I wish to salute the leadership the French Republic has brought to hosting the negotiations. I encourage our negotiators to bring this process to a successful conclusion next week. Let’s send the signal the world is waiting for and let us not deprive our successors and their children of a real future before they are born.

Document 8 Human Rights Council—24th Special Session Statement by Ireland 17th December 2015 Ireland would like to add some remarks to those already made by the EU. It is vital that the Human Rights Council acts swiftly in fragile situations where there is serious risk of mass violations and abuses. Today such a human rights situation exists in Burundi. Ireland is extremely concerned about escalating human rights violations and abuses in Burundi. A further increase in violence just last weekend left over ninety people dead. We are deeply disturbed by reports including of people being executed at their homes, and of murder victims being left on the streets. It is clear from the frequency and persistence of violent attacks in Burundi that the perpetrators consider they can carry out such attacks with total impunity. It is the Government’s primary responsibility to protect its people from violence and intimidation, to respect, protect and fulfil all human rights, to uphold the rule of law and to ensure accountability for all violations and abuses. Justice, accountability and an ending of the pervasive impunity are critical to end this crisis and to prevent its perpetuation and repetition. Ireland deplores what appears to be a broader campaign to systematically silence any dissent in Burundi, through the harassment and murder of human rights defenders, political opponents, and media workers, as well as the suspension of civil society organisations. These individuals and groups are the lifeblood of a democratic and pluralistic ­Burundian society. We warmly welcome members of Burundian civil society who were able to join this discussion today, particularly Mr. Pierre Claver Mbonimpa who continues to display tremendous courage in the face of unspeakable tragedy. It is imperative that Burundi create and maintain, in law and in practice, a safe and enabling environment in which civil society and journalists can operate free from hindrance and insecurity. Ireland calls on the Government of Burundi to immediately create the conditions needed for an inclusive inter-Burundian dialogue. We urge the Government to engage in the mediation efforts of the East African Community, led by Uganda, with the commitment and urgency which this volatile situation requires. Ireland commends the strong and principled response of the African Union and the African Commission on Human and Peoples’ Rights. We also welcome the UN

314  The Irish Yearbook of International Law 2015 S­ ecurity Council Resolution 2248, as well as the proposed UN Security Council mission. We regret that the EU’s Article 96 negotiations with Burundi did not result in clear commitments from the Government to address human rights ­violations and abuses and to promote reconciliation. The draft U.S. resolution before us today calls for the swift action which the human rights situation in Burundi warrants and which complements other UN and regional efforts. We believe the deployment of independent existing experts should take place immediately to prevent further deterioration of the situation. Ireland urges all members of the Council to support the draft resolution.

Book Reviews Public Sentinels: A Comparative Study of Australian Solicitors-General, by Gabrielle Appleby, Patrick Keyzer and John M Williams (eds), Surrey, Ashgate Publishing Ltd, 2014, 304 pp, hbk £100, ISBN: 978-1-4094-5425-0 Government lawyers are rarely the focus of academic scholarship—still less comparative academic scholarship—despite the significance of their constitutional role in upholding the rule of law. Public Sentinels exposes that lacuna for all to see, while establishing a laudable framework for organising future collections on the underresearched subject it explores. It assembles a remarkably varied range of analyses formulated by current and former Solicitors-General alongside those of senior scholars and judges from various jurisdictions, which allows readers to compare and contrast the views of ‘insiders’ and ‘outsiders’ with ease. What’s more, while the focus of the collection undoubtedly adheres to the promise of its title, namely the importance of Solicitors-General in various Australian jurisdictions, its contributors draw frequent connections between their knowledge of certain regions and their understanding of how that compares to other parts of the world. Indeed, aside from various comparisons between Australian jurisdictions, the book features dedicated comparative perspectives regarding New Zealand, the UK, the US and Canada. While it may be a pity that the study does not treat Ireland as a specific comparator, particularly given the availability of Professor Casey’s rich evaluation of the Irish law officers,1 it offers constitutional specialists in Ireland much food for thought nonetheless. At a general level, the book seeks to explain and analyse the work of public sentinels— that is, Solicitors-General, Attorneys-General and similar office holders who work within government—in order to demonstrate the importance of constitutional guardians other than the judiciary. Beneath this consciousness-raising objective, however, lie more specific hopes of ascertaining ‘the proper role of the office of SolicitorGeneral in the Australian constitutional system’ (page 1). In this vein, concern to assess the normativity of the office in its different incarnations—with a view towards comparative research-inspired reform—is evident throughout the collection, though some of the proposals made by individual contributors are openly contentious.

1  James Casey, The Irish Law Officers: Roles and Responsibilities of the Attorney General and the Director of Public Prosecutions (London, Sweet & Maxwell, 1996).

316  The Irish Yearbook of International Law 2015 For example, the introduction to the book (at page 13) is careful to highlight that David Collins’ preference, as expressed in Chapter 8, for the Solicitor-General in New Zealand to maintain a broad-ranging suite of responsibilities, including the oversight of prosecutions, is an outlook criticised by other writers. It should be emphasised that the reform agenda of the book is far from extremist, with most contributors exhibiting a fairly conservative approach to the task. Michael Sexton closes Chapter 4, for example, by recommending some ‘basic principles’ to guide the conduct of Solicitors-General who advise vice-regal office holders in Australia. He recommends that where the advice of a Solicitor-General is sought by a vice-regal office holder, the provision of same should only be considered constitutionally permissible if the knowledge and consent of either the Premier or the Attorney-General is in place, for reasons based on the desirability of effective accountability through public representatives (page 100). He caveats this recommendation, however, insofar as it applies to any advice sought in relation to the so-called ‘reserve powers’ of vice-regal office holders, on account of the potential for inappropriate interference with the provision of advice by Premiers and AttorneysGeneral in that context (page 101). The wisdom in Sexton’s suggestions is as plain as they are modest. Similarly, in Chapter 7, Gabrielle Appleby resists the temptation to call for a complete reversal of ‘the trend towards decentralisation’ (page 160) of legal services across Australian government. Instead, she proposes two less strenuous ways of addressing the disadvantages flowing from decentralisation, namely the introduction of monitoring and information-sharing systems to increase emphasis on ‘wholeof-government objectives’ (page 163) and the extension of reporting obligations to the Attorney-General’s Department to include ‘public interest’ issues as well as strictly legal ones (page 164). Such measured proposals are admirably realistic and imaginative. Certain reforms proposed by Fiona Hanlon (Chapter 6), Klearchos Kyriakides (Chapter 9) and Patrick Keyzer (Chapter 5) are perhaps more radical than the rest. Hanlon argues that the Solicitor-General should be elevated to Australia’s ‘First Law Officer’ and that the Attorney-General should be renamed its ‘Minister of Justice’. She reaches this view having taken the reader through a concise but rigorous overview of how the once closely-homogenous offices have changed over time; the SolicitorGeneral becoming a ‘permanent, unambiguously legal, ongoing and non-political office’ while the Attorney-General was ascribed ‘increased ministerial responsibilities and reduced professional capacity’ (page 126). Pointing out that continued recourse to the outdated legal characterisation of his or her office by an Attorney-General can work ‘to confuse and reduce accountability for both the Attorney-General and the executive government’, Hanlon makes a convincing case for her proposals. Kyriakides makes some equally provocative observations about the tensions implicit in different characterisations of law officers which lead him to suggest that a designated committee should be established by either House of the UK Parliament to hold the Attorney-General for England and Wales to account for the exercise of his or her

Book Reviews 317 functions (pages 201–202). While the considerable costs of this proposal are obvious, Kyriakides makes a persuasive case for ‘more regular, consistent and focused scrutiny’ of the Attorney-General by reference to a range of high-profile public controversies which have arisen in recent times. He supplements his argument by noting that the proposal would also elevate the status of the Attorney-General, who is not a full member of the UK Cabinet, ‘in the parliamentary as well as the public consciousness’. After a fair reading, this proposal seems perfectly logical too. Keyzer challenges the assumption that constitutional views of Attorneys-General are co-extensive with the interests of ordinary people by drawing on a range of empirical research. He notes, for example, that out of ‘the 689 interventions that took place in the 292 constitutional cases decided’ over a 30-year period in the Australian High Court, ‘only two interventions were made in support of the expansion of civil rights and freedoms’ (page 114). His research causes him to recommend that a public consultation process should be instituted to ‘inform Attorneys-General and their Solicitors-General when they are resolving questions of constitutional policy’ (page 115), a proposal which is opposed by PA Keane in his Foreword to the collection (at pages xii–xiii). Keane places particular weight on the proposition that ‘representatives of elected governments might be thought to have a stronger claim to speak for the public interest than self-appointed guardians of the public interest’ (page xiii) in his critique of Keyzer, which focuses very much on the latter’s arguments in favour of expanding citizens’ rights to intervene in court cases directly. Keane does not engage fully with Keyzer’s main proposal, however, which is to provide for citizen input to constitutional policy not through direct court interventions, but through a process of public consultation by Attorneys-General and SolicitorsGeneral. As unorthodox and under-developed as that proposal may be, it ostensibly leaves the job of formulating a final definition of the public interest to the representatives of elected governments. For that reason, I do not view Keyzer’s main conclusion with the same level of apprehension I anticipated I might have based on Keane’s foreword. In fact, I consider Keyzer’s proposals worthy of serious consideration by constitutional reformers. In addition to the many practical reform proposals proffered by its contributors, Public Sentinels addresses an impressively wide range of conceptual questions which are likely to be of interest to legal theorists. Deborah MacNair’s critical examination of how the ethical obligations of government lawyers are conflated with those relating to private lawyers is a particular highlight of the book in this respect (Chapter 12). Overall, this compilation should be hailed as a landmark contribution to the growing body of literature on constitutionalism within governments and, more particularly, the significance of government lawyers in that sphere. As its pages are replete with implicit and explicit ideas for further research, the collection leaves no room for doubt over the merits of treating the roles of government lawyers as a field worthy of serious constitutional scholarship. The editors deserve high praise for identifying such a refreshing subject of research; rallying such a talented array of contributors;

318  The Irish Yearbook of International Law 2015 and devising such an accessible framework for considering the complexities across jurisdictions comparatively. It is to be hoped that the foundations now laid by Public Sentinels will encourage international legal scholars to inspect the constitutional position of government lawyers from their own respective watchtowers. Conor McCormick Queen’s University Belfast, School of Law