Bliainiris Éireannach an Dlí Idirnáisiúnta The Irish Yearbook of International Law Volume 13, 2018 9781509936717, 9781509936748, 9781509936731

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BLIAINIRIS ÉIREANNACH AN DLÍ IDIRNÁISIÚNTA IMLEABHAR 13, 2018 THE IRISH YEARBOOK OF INTERNATIONAL LAW VOLUME 13, 2018 The Irish Yearbook of International Law supports research into Ireland’s practice in international affairs and foreign policy, filling a gap in existing legal scholarship and assisting in the dissemination of Irish policy and practice on matters of international law. On an annual basis, the Yearbook presents peer-reviewed academic articles and book reviews on general issues of international law. Designated correspondents provide reports on international law developments in Ireland, Irish practice in international bodies, and the law of the European Union as relevant to developments in Ireland. In addition, the Yearbook reproduces key documents that reflect Irish practice on contemporary issues of international law. This volume of the Yearbook includes a symposium on law and peacekeeping, and an article on the rights of migrants and refugees under the ECHR from Judge Paulo Pinto de Albuquerque.

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Bliainiris Éireannach an Dlí Idirnáisiúnta Imleabhar 13, 2018 Curtha in Eagar ag

Fiona de Londras agus Siobhán Ní Mhaolealaidh

The Irish Yearbook of International Law Volume 13, 2018 Edited by

Fiona de Londras and Siobhán Mullally

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2020 Copyright © The editors 2020 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/, 1998–2020. A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50993-671-7 ePDF: 978-1-50993-673-1 ePub: 978-1-50993-672-4 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

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

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Table of Contents Editorial1 Fiona de Londras and Siobhán Mullally Articles The Rights of Migrants and Refugees under the European Convention on Human Rights: Where are we now? Judge Paulo Pinto de Albuquerque

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Symposium Issue on Law and Peacekeeping Introduction25 Guest Editor: Ray Murphy Gender Planning for Peace and Security: Re-orienting National Action Plans Aisling Swaine

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EU Navfor Med Operation Sophia – An impossible challenge? Patrick Burke

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Arise, Sleeping Beauty: What PESCO means for Ireland Pearce Clancy

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The Human Rights jurisdictional reach: A new entry point in Peace Operations – An operational perspective Richard Brennan

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Correspondent Reports Human Rights in Ireland 2018 Sandra Duffy

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Ireland and International Law 2018 Dug Cubie

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Ireland and the European Union 2018 Adam P. McCann

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Human Rights in Northern Ireland 2018 Esther McGuinness

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viii  Table of Contents Book Review John Stanley, Immigration and Citizenship Law (Dublin: Round hall – Thomson Reuters, 2017)  Jessica Brennan

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Documents 17 May 2018 Security Council open debate on ‘Upholding International Law within the context of the maintenance of international peace and security’: Statement by Ireland 

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17 May 2018 Statement by Minister of State Cannon T.D. on the ‘Hooded Men’ case

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17 May 2018 Minister of State Cannon T.D. speech on the Council of Europe’s response to current and potential challenges

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29 May 2018 The Government’s role in and cooperation with Stormont House Agreement Institutions and legacy inquests

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13 September 2018 Speech by Minister Denis Naughten T.D. “The Investor Agenda: Accelerating Action for a Low-Carbon World” Global Climate Action Summit, San Francisco

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29 September 2018 Speech by Tánaiste and Minister for Foreign Affairs & Trade Simon Coveney T.D. to the General Assembly of the United Nations, New York

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23 October 2018 Statement to Sixth Committee, UNGA 73, on Part 1 of the ILC Report relating to the Commemoration of the ILC’s 70th Anniversary, Subsequent agreements and subsequent practice, Identification of customary international law and Other decisions and conclusions of the Commission

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26 October 2018 Statement to Sixth Committee, UNGA 73, on Part 2 of the ILC Report relating to Provisional application of treaties

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31 October 2018 Statement to Sixth Committee, UNGA 73, 31 October 2018 on Part 3 of the ILC Report relating to Immunity of State officials from foreign criminal jurisdiction 

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21 November 2018 Statement by Tánaiste at Dáil Debate on Brexit Withdrawal Agreement—Department of Foreign Affairs and Trade 

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Editorial

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E ARE DELIGHTED that Volume XIII of the Irish Yearbook of ­International Law includes a symposium issue on peacekeeping and peace operations, reflecting on 60 years of Ireland’s involvement in UN peacekeeping missions and the 70th anniversary of UN peacekeeping. The articles presented here highlight the contested nature of UN mandates and challenges arising for the practice of peacekeeping. This contestation has significant implications for Ireland. As Murphy notes, there has been insufficient attention and reflection on the legal implications of Ireland’s engagement in enforcement actions. On the other hand, as noted by Swaine, too often peace operations and peace building programmes fail to engage comprehensively with the Women, Peace and Security agenda, despite there having been almost 20 years since the adoption of Security Council Resolution 1325, a key priority area of Ireland’s foreign policy. The fragmentation of norms and practice is evident also when we reflect upon the role of Naval Services, applying customary norms of the Law of the Sea and the regulatory frameworks of Operation Sophia in the troubled waters of the Mediterranean, where the rights of migrants and refugees face continued challenge. These challenges are explored further in Judge Paulo Pinto de Albuquerque’s ­article, drawing on a keynote address delivered at the Irish Centre for Human Rights in May 2018, on the rights of migrants and refugees and the evolving case law of the European Court of Human Rights. Judge Albuquerque provides us with a first-hand insight into the politics of court judgments and doctrinal disputes on the scope of human rights norms, when applied to migration and asylum. Again in this volume, our correspondent reports reflect on Ireland’s practice in the domains of international, EU and human rights law, and our dedicated report on human rights in Northern Ireland highlights the significance of the UK’s planned exit from the EU for the protection of human rights at a domestic level. The selection of documents presented includes Brexit-related speeches and policy documents. Also included are examples of Ireland’s wider engagement on climate change and environmental law and policy, and with the work of the International Law Commission on immunity of foreign officials, identification of customary international law and international treaty law. The Yearbook’s commitment to reflecting on Irish practice in international law and on contemporary issues in policy and practice underpins the symposium theme on peacekeeping. We hope that the articles presented here will provide an opportunity for critical engagement with Irish foreign policy, with defence forces’ strategy and practice, Ireland’s position in evolving European Union cooperation arrangements on security and defence, and the Third National Action Plan on Women, Peace and Security. Fiona de Londras and Siobhán Mullally

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Articles

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The Rights of Migrants and Refugees under the European Convention on Human Rights: Where are we now?1 PAULO PINTO DE ALBUQUERQUE2

I. INTRODUCTION

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HE CURRENT APPROACH of the European Court of Human Rights (‘the Court’) towards migrants and refugees has been contradictory and somewhat confusing, creating an atmosphere of uncertainty across Europe. There is ­currently a messy state of affairs rife with internal contradictions within the jurisprudence of the Court that is in dire need of reconsideration and clarification. A few distinct topics illustrate the challenges migrants face at the Court and the slippery slope away from protection that the Court has been on over the last few years. These topics are complex and not exhaustive, but some of the most important ones include the detention of migrants and the expulsion of terminally ill foreigners (including migrants). II.  ARTICLES 3 AND 5: PROHIBITION OF TORTURE AND ILL-TREATMENT AND RIGHT TO LIBERTY

I will begin by discussing the plight of migrants often detained at the border or during the process of deportation.3 Generally, the detention of migrants has posed

1 This article is the keynote speech delivered during the conference ‘The Rights of Migrants and Refugees: Exploring the Role of Courts and Tribunals’, organised by the Irish Centre for Human Rights, on 17 and 18 May 2018, at the National University of Ireland, Galway. I thank Iulia Padeanu for the help provided in the research. The usual caveat applies: these are my own views and do not bind the European Court of Human Rights. 2 Judge at the European Court of Human Rights and full professor at the Faculty of Law of the Catholic University of Lisbon. 3  There have been a number of publications highlighting the problem of detention in various European countries. See eg Jeremy Sarkin, ‘Respecting and protecting the lives of migrants and refugees: the need for a human rights approach to save lives and find missing persons’ (2017) 22(2) The International Journal of Human Rights 207–36; Bill Frelick, ‘Pushed Back, Pushed Around Italy’s Forced Return of Boat Migrants and Asylum Seekers, Libya’s Mistreatment of Migrants and Asylum Seekers’ (HRW, 21 September 2009) www.hrw.org/report/2009/09/21/pushed-back-pushed-around/italys-forced-return-boat-migrants-andasylum-seekers; Paul Blomfield, ‘We are locking up people indefinitely. This inhumane practice needs to end’ The Guardian (Opinion) (24 August 2017) www.theguardian.com/commentisfree/2017/aug/24/ migrants-europe-detention-centres-time-limit.

6  The Irish Yearbook of International Law 2018 real challenges for the Court and illustrates two competing interests at play: on the one hand, the Court must take into account a State’s right to control its borders, but on the other, it must protect an individual’s right not to be subject to torture or ill-treatment. On the one hand, it is indisputable that each State has the right to secure its borders and ensure that individuals do not attempt to circumvent immigration restrictions. When accompanied by suitable safeguards for the persons concerned, the confinement of aliens is acceptable in order to enable States to prevent unlawful immigration.4 However, even in such limited circumstances, States must nevertheless ensure that they continue to abide by their international obligations, including the 1951 Geneva Convention relating to the Status of Refugees and the European Convention on Human Rights (‘the Convention’).5 In other words, ‘[s]tates’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions’.6 A.  Detention Conditions The Court has assessed detention conditions for migrants on a number of occasions and in several instances it found that they amounted to degrading treatment in violation of Article 3 of the Convention. For example, in SD v Greece, the Court held that confining an asylum-seeker to a prefabricated cabin for two months without allowing him outdoors or to make a telephone call, and with no clean sheets and insufficient hygiene products, amounted to degrading treatment within the meaning of Article 3 of the Convention.7 In the same case, the Court held that a period of detention of six days, in a confined space, with no possibility of taking a walk, no leisure area, sleeping on dirty mattresses and with no free access to a toilet was unacceptable.8 The Court has also considered degrading treatment the detention of an asylumseeker for three months in police premises pending the application of an administrative measure, with no access to any recreational activities and without proper meals.9 In another case, the Court held that the detention of an asylum-seeker, for three months in an overcrowded place in appalling conditions of hygiene and cleanliness, no leisure or catering facilities, where the dilapidated state of repair of the

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MSS v Belgium and Greece [GC], no 30696/09, 21 January 2011, § 216. MSS, cited above, § 216. See also Nikolaos Sitaropoulos, ‘Why International Migration Law Does Not Give a License To Discriminate’ (EJIL: Talk!, 20 May 2015) www.ejiltalk.org/why-international-migrationlaw-does-not-give-a-license-to-discriminate/; Francesca Pizzutelli, ‘The Human Rights of Migrants as ­Limitations on States’ Control Over Entry and Stay in Their Territory’ (EJIL: Talk!, 21 May 2015) www. ejiltalk.org/the-human-rights-of-migrants-as-limitations-on-states-control-over-entry-and-stay-in-theirterritory/. 6  ibid (citing to Amuur v France, 25 June 1996, § 43, Reports of Judgments and Decisions 1996‑III). 7  SD v Greece, no 53541/07, §§ 49–54, 11 June 2009. 8  ibid § 51. 9  Tabesh v Greece, no 8256/07, §§ 38–44, 26 November 2009. 5 

Articles—Pinto de Albuquerque 7 sanitary facilities rendered them virtually unusable and where the detainees slept in extremely filthy and crowded conditions amounted to degrading treatment.10 More recently, however, in the Grand Chamber case of Khlaifia and Others v Italy,11 the Court ruled that the detention of migrants in a reception centre on Lampedusa island and subsequently on ships moored in the Palermo harbour, did not amount to inhuman and degrading treatment in violation of Article 3. This is an unfortunate departure from the established case law, and a setback in the protection of rights for migrants.12 The Grand Chamber overturned the Chamber’s finding and rested its conclusion on the ‘situation of extreme difficulty facing the Italian authorities at the relevant time’.13 The abhorrent living conditions of migrants were acknowledged by the Court, but dismissed as having taken place during a particularly difficult period of influx of migrants.14 If the Court is willing to use influxes of migrations or difficult situations to permit States to create unsafe and unsanitary conditions in detention centres for migrants, the risk to these individuals will remain unchecked. While the Court need not dismiss the stress placed by such an influx on the Italian authorities, neither should it underestimate States’ capabilities to continue to uphold the Convention’s rights during difficult times. It is especially important that the Court require States to continue to abide by their obligations during such times, when it would be so easy to dismiss lack of protections for individuals as simply the product of a stressful and unexpected event. It should also be noted that, while the Convention does permit States to derogate from the duties embodied in the Convention under Article 15, there is a set process in place and States must give notice of their intention and need to derogate from its obligations. States may not use political difficulties, such as an unforeseen influx of migrants, to excuse actions that are incompatible with the Convention, and certainly not in relation to non-derogable obligations such as those deriving from Article 3. B.  The Rise of Crimmigration The issue of detention of migrants as a State policy must however be analysed from a broader perspective, which goes beyond the material conditions of detention in

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AA v Greece, no 12186/08, §§ 57-65, 22 July 2010. Khlaifia and Others v Italy, no 16483/12, 15 December 2016. 12 For a more detailed discussion of the case and its shortcomings, see also Denise Venturi, ‘The Grand Chamber’s ruling in Khlaifia and Others v Italy: one step forward, one step back?’ (Strasbourg Observers, 10 January 2017) https://strasbourgobservers.com/2017/01/10/the-grand-chambers-ruling-inkhlaifia-and-others-v-italy-one-step-forward-one-step-back/#more-3466; Stefano Zirulia and Steve Peers, ‘A Template for Protecting Human Rights During the ‘Refugee Crisis’?’ (EU Law Analysis, 5 January 2017) http://eulawanalysis.blogspot.com.tr/2017/01/a-template-for-protecting-human-rights.html. 13  Separate Opinion of Judge Raimondi in Khlaifia and Others v Italy, § 6. 14 In JR and Others v Greece (no 22696/16, 2018), the Court again held that the conditions of ­detention in a centre where three Afghan nationals were held, were not severe enough to be characterised as inhuman or degrading treatment. The Court based its finding, in part, on the fact that the Greek authorities faced an emergency situation after a significant number of migrants had arrived, which had created material difficulties. 11 

8  The Irish Yearbook of International Law 2018 individual cases. Over the past few years, as Europe has seen a surge in migration there has also been a trend towards ‘crimmigration’, a process by which criminal law has been used to enforce immigration laws and punish immigration offences, while immigration law has often been used as a tool of criminal policy.15 What has happened is that State criminal-law machinery, including detention, has been instrumentalised for the purpose of immigration enforcement and, similarly, expulsion and deportation measures and detention are imposed as a method of crime control.16 This policy, which perceives the migrant as the new enemy, has been tinged with the ignoble legacies of racism and xenophobia of the last century and has the potential to create an atmosphere of hate and distrust towards immigrants across Europe. There are serious issues with the crimmigration trend and its reflection in the Court’s case law. The detention of migrants has been just one way to observe the fusion of criminal and immigration law. Over the past few years the number of migrants jailed has reached unprecedented levels, something the Court has not always been able (or willing) to resist or put an end to. There are several cases that illustrate the Court’s failure in this regard. In Saadi v the United Kingdom,17 the Court held that a State may detain a temporarily admitted asylum-seeker to prevent unauthorised entry and to expedite the asylum claim.18 In that case the Court also held that it is not relevant whether detention is necessary in order to prevent that irregular entry. Although the Court in Saadi read into the first limb of Article 5, § 1(f) a requirement of non-arbitrariness, it also took away the necessity test from this analysis. While the detention of migrants should not be arbitrary, and should be carried out in good faith as the Court suggests, it is obvious that the non-arbitrariness requirement does not provide the same degree of protection as the necessity test. What this shows is that, in the view of the Grand Chamber, migrants can be treated worse than ordinary criminals (whose detention must be necessary), simply because

15  For an introduction to the concept of crimmigration, see César Cuauhtémoc García Hernández, Crimmigation Law (American Bar Association, 2015); Maria João Guia et al (eds), Social Control and Justice: Crimmigation in the Age of Fear (2013); Izabella Majcher, ‘Crimmigration’ in the European Union through the Lens of Immigration Detention (Global Detention Project Working Paper No 6, Geneva, 2013); Daniel Wilsher, Immigration Detention, Law, History, Politics (Cambridge, 2011); and Juliet P Stumpf, ‘The Crimmigration Crisis’ (2006) 56 Am UL Rev 367. 16  See David Alan Sklansky, ‘Crime, Immigration, and Ad Hoc Instrumentalism’ (2012) 15(2) New Criminal Law Review 157–223; Jennifer M Chacón, ‘Overcriminalizing Immigration’ (2012) 102(3) Northwestern Law Journal of Criminal Law & Criminology 613–52 Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge, Cambridge University Press, 2008); Juliet Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign State’ (2006) 56(2) American University Law Review 367–419; Alessandro Spena, ‘Iniuria Migrandi: Criminalization of Immigrants and the Basic Principles of the Criminal Law’ (2014) 8(3) Criminal Law and ­Philosophy 635–57; Council of Europe, Criminalisation of Migration in Europe: Human Rights Implications (Strasbourg: Office of the Commissioner for Human Rights Council of Europe, 2010). 17  [GC], No 13229/03, §§ 50 and 64, ECHR 2008-I. 18  For another view on the case, see Fiona de Londras, ‘Saadi v Italy: European Court of Human Rights Reasserts the Absolute Prohibition on Refoulement in Terrorism Extradition Cases’ (2008) 12(9) ASIL, and Gianluca Gentili, ‘European Court of Human Rights: An absolute ban on deportation of foreign citizens to countries where torture or ill-treatment is a genuine risk’ (2010) 8(2) International Journal of Constitutional Law 311–22.

Articles—Pinto de Albuquerque 9 efficiency trumps liberty in migration law. A detention order for the sole purpose of State bureaucratic convenience equates the targeted people to commodities. This was an unfortunate departure from the necessity principle, ultimately giving States a chèque en blanc to detain whenever they please, without assessing possible less intrusive alternatives, suited to each asylum-seeker. Ultimately, the Court’s decision to adopt a bad-faith criterion of the arbitrariness requirement worsens even further the legal situation of the asylum-seeker, since it leaves the asylum-seeker’s protection dependent on the Court’s assessment of the state of mind of the detaining authorities. In most cases, State authorities will likely be in a position to argue that they acted in good faith in detaining asylum-seekers. Later on, the Grand Chamber extended the Saadi’s arbitrariness criterion to the second limb of Article 5, § 1(f), in A and Others v the United Kingdom.19 In this case, the Grand Chamber admitted the applicability of the not ‘too narrow’ Saadi interpretation to detention with a view to deportation or extradition. In the landmark case Chahal v the United Kingdom,20 the Court had already discarded the necessity test in situations where detention was imposed to individuals facing deportation, expulsion, or extradition when they were already inside the country. The Grand Chamber in Chahal read Article 5, § 1(f) as not demanding that detention be necessary, such as when detention would prevent the person concerned from committing an offence. Furthermore, the Court also limited the principle of proportionality and held that it applied to detention under Article 5, § 1(f) only to the extent that detention should not continue for an unreasonable time. Thus, the Court held, any deprivation of liberty will only be justified ‘for as long as deportation proceedings are in process’ and will cease to be justified if deportation is no longer feasible, even if the individual is refusing to cooperate.21 In other words, A and Others updated the language of Chahal in the light of Saadi. Within the Court, there has been a silent but growing revolt from some chambers against Saadi and its spill-over effect on Chahal. In several cases the Court has held that detention of asylum-seekers and, in general, of migrants, breaches Article 5, § 1(f) when it is applied automatically and no other less drastic measure was sought. Some of the most prominent cases where this revolt can be witnessed include Louled Massoud v Malta,22 Suso Musa v Malta,23 Rahimi v Greece,24 Raza v Bulgaria25 and Mikolenko v Estonia.26 Louled Massoud and Rahimi acknowledged the primordial role of the necessity test in the application of the second limb of Article 5, § 1(f) to the detention of

19  No 3455/05, ECHR 2009. For more on this case, see also Sangeeta Shah, ‘From Westminster to Strasbourg: A and others v United Kingdom’ (2009) 9(3) Human Rights Law Review 473–88, Marko Milanovic, ‘European Court decides A and others v. United Kingdom’ (EJIL: Talk!, 19 February 2009) www.ejiltalk.org/european-court-decides-a-and-others-v-united-kingdom/. 20  No 22414/93, Reports 1996-V. 21  ibid § 113. 22  No 24340/08, 27 July 2010. 23  No 42337/12, 23 July 2013. 24  No 8687/08, 5 April 2011. 25  No 31465/08, 11 February 2010. 26  No 10664/05, 8 October 2009.

10  The Irish Yearbook of International Law 2018 asylum-seekers, while Raza and Mikolenko did so more generally, with regard to detention of migrants. The importance of the necessity test has also been affirmed in the application of the first limb when an individual has been detained pending the asylum assessment procedure. This was the situation in Suso Musa.27 In view of the silent revolt of the chambers, the challenge for the Grand Chamber is now to revisit and reverse the Saadi approach and finally hold that the detention of asylum-seekers is, as a matter of principle, a measure of last resort and may only be applied when a no less intrusive alternative is possible. This will help bring coherence to the Court’s messy case law by aligning it with international human-rights and refugee law. A number of international organs, organisations and instruments have repudiated the outrageous Saadi rationale, including the United National ­General Assembly, the European Parliament, the Court of Justice of the European Union, the Inter-American Court of Human Rights and the Inter-American Commission of Human Rights.28 The Court cannot remain deaf to the worldwide call that Saadi must go. C.  Expulsion of Terminally Ill Foreigners 2008, the year of delivery of Saadi, is an annus horribilis for the human rights of migrants also for another reason. N v the United Kingdom29 was pronounced that same year. In that case, the Court held 14 to three that the expulsion of the ­applicant, who claimed that removing her would be contrary to the prohibition on inhuman and degrading treatment of Article 3 of the Convention, for lack of adequate HIV/AIDS health care facilities in Uganda, did not amount to a violation of that Article. The Court set out three conditions that should guide any assessment of whether an expulsion of a seriously ill individual would be in breach of Article 3: (1) the seriousness and stage of the illness; (2) the availability of adequate treatment in the country of destination; (3) the availability of support by one’s relatives. The Court clarified that such expulsion would violate Article 3 only in ‘very exceptional case(s), where the humanitarian grounds against the removal are compelling’.30 The Court had set this principle in D v the United Kingdom,31 where it held that ‘the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support’.32 Although

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No 42337/12, 9 December 2013. opinion of Judge Pinto de Albuquerque in Abdullahi Elmi and Aweys Abubakar v Malta, nos 25794/13 and 28151/13, no 22 November 2016, §§ 6–15. 29  No 26565/05, 27 May 2008. See Antoine Buyse, ‘Grand Chamber judgment in N v UK’ (ECHR Blog, 28 May 2008) http://echrblog.blogspot.fr/2008/05/grand-chamber-judgment-in-n-v-uk_28.html. 30  N, cited above, § 42. 31  No 30240/96, 2 May 1997. See also Rosalind English, ‘Removal of child following faulty ­diagnosis of injury breached Article 8’ (UK Human Rights Blog, 2 April 2010) https://ukhumanrightsblog. com/2010/04/02/removal-of-child-following-faulty-diagnosis-of-injury-breached-article-8/. 32  N, cited above, § 42. 28 Concurring

Articles—Pinto de Albuquerque 11 the Court accepted that there might be other instances where exceptional circumstances prevent removal, it noted that ‘[any] alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country’.33 The majority in N extrapolated a general principle from the situation relating to the expulsion of a person with a HIV and AIDS-related condition, and held that ‘[t]he same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost’.34 Finding that this ‘high threshold’ should be applied to N, who ‘was fit to travel’, the Court agreed to her removal from the Contracting State in spite of her poor state of health and the doubts about the possibility of her obtaining the appropriate health care in the receiving State. Unsurprisingly, N died shortly after her removal to Uganda. There are serious problems with the Court’s judgment in N v United Kingdom.35 For one, the ground put forward by the majority to deny a positive obligation for the State to treat seriously ill foreign nationals is purely axiomatic. It lacks any clear legal criteria for deciding when a terminally ill person may or may not be removed, both in terms of the degree of seriousness of the illness and in terms of the quality, accessibility and cost of the treatment provided in the receiving country. Uncertainty, in this case, benefits the State. If an applicant cannot prove that treatment in the country to which he or she is deported falls short of what he or she needs, and poses a threat, the Court will weigh this uncertainty in favour of deportation. This argumentum ad ignorantiam contradicts a basic tenet of legal reasoning, that one should not draw conclusions from a lack of information or incomplete or insufficient sources of information. Furthermore, the Court rests its conclusions on the promise that uncertain scientific developments might one day reach the receiving country. The Court tried to limit N’s morally repugnant and legally untenable stance somewhat in a more recent case, Paposhvili v Belgium,36 but it did not formally leave the previous standard of ‘exceptional circumstances’. In a unanimous judgment the Grand Chamber stated that these circumstances refer not only to cases of imminent risk of death, but also when the person would face a real risk of being exposed to a

33  34 

ibid § 43. ibid § 45.

35  Dissenting

opinion of Judge Pinto de Albuquerque in SJ v Belgium (GC), no 70055/10, 19 March 2015, §§ 6–11. For a critique of the Court’s opinion, see also Virginia Mantouvalou, ‘N v UK: No Duty to Rescue the Nearby Needy?’ (2008) 20(4) The Modern Law Review 637–66. For additional comments on N v UK, and the role of the Court in protecting the rights of irregular migrants, see Sylvie Da Lomba, ‘The ECHR and the Protection of Irregular Migrants in the Social Sphere’ (2015) 22 International Journal on Minority and Group Rights 39–67. 36 [GC], no 41738/10, 13 December 2016. See Lourdes Peroni, ‘Paposhvili v Belgium: Memorable Grand Chamber Judgment Reshapes Article 3 Case Law on Expulsion of Seriously Ill Persons’ ­(Strasbourg Observers, 1 December 2016) https://strasbourgobservers.com/2016/12/15/paposhvili-v-belgium-memorable-grand-chamber-judgment-reshapes-article-3-case-law-on-expulsion-of-seriously-ill-persons/.

12  The Irish Yearbook of International Law 2018 serious, rapid and irreversible decline of his or her state of health resulting in intense suffering or to a significant reduction in life expectancy, on account of absence of appropriate treatment in the receiving State or lack of access to such treatment. In a rather elliptical, unusual approach in this type of case, the Court formulated two procedural obligations for States confronted with such situations: to assess the risk above mentioned before removal and, if need be, to obtain individual guarantees of appropriate treatment from the receiving State. On top of being quite unrealistic, this assurances’ requirement shows that ultimately the Grand Court is willing to take the risk of sending someone to die where ‘serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation’.37 This requirement is inspired by Judge Lemmens’ proposal in a separate opinion he delivered in a previous case, where he had suggested using the Tarakhel type of assurances in cases of expulsion of terminally ill patients.38 Again, like in N, the doubt plays against the applicant. Furthermore, the healthcare needs of children (like in Tarakhel) and terminally ill patients cannot be equated. The underlying logic of Paposhvili is evidently to get rid of the terminally ill foreigner, at any cost. In fact, the paragraph of the judgment that purports to move away from the problematic standard set in N is so convoluted that recently the UK Upper Tribunal considered it unworkable (‘over-elastic and ill-defined’ test which is ‘as long as the judge’s sleeve’) and that, until further clarification, N remains the guiding case.39 Subsequently, the Court of Appeal provided formal guidance, based on the Paposhvili judgment, to all courts and tribunals below the level of the Supreme Court on decisions regarding a stay on removal.40 The Court took note of this development in domestic law in Khaksar v the United Kingdom,41 an inadmissibility decision due to non-exhaustion of domestic remedies. It nonetheless added that this is all ‘pending consideration of the Supreme Court of the impact of [the Paposhvili case] for the purposes of domestic law’.42 D.  The Dublin Transfers In the ground-breaking MSS v Belgium and Greece case,43 regarding the transfer of an Afghan national from Belgium to Greece in June 2009 in accordance with the 37 

ibid § 191. Dissenting opinion of Judge Lemmens in Tatar v Switzerland, no 65692/12, 14 April 2015. 39  [2017] UKUT 445, EA & Ors (Article 3 medical cases – Paposhvili not applicable). 40  AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64. 41  No 2654/18, First Section (Committee), 3 April 2018. 42  ibid § 32. 43 For more on this case, see Gina Clayton, ‘Asylum Seekers in Europe: MSS v Belgium and Greece’ (2011) 11(4) Human Rights Law Review 758–73; Patricia Mallia, ‘Case of MSS v ­Belgium and Greece: A Catalyst in the Re-thinking of the Dublin II Regulation’ (2011) 30(3) Refugee ­Survey Quarterly 107–28; Ton Zuijdwijk, ‘MSS v Belgium And Greece (European Court Of Human Rights): The Interplay Between European Union Law And The European Convention On Human Rights In The Post-Lisbon Era’ (2011) 39 Georgia Journal of International and Comparative Law 808–32; and Tom Syring, ‘European Court of Human Rights’ Judgment on Expulsion of Asylum Seekers: M.S.S. v. Belgium & Greece’ (2011) 15(5) ASIL, www.asil.org/insights/volume/15/issue/5/ european-court-human-rights-judgment-expulsion-asylum-seekers-mss-v. 38 

Articles—Pinto de Albuquerque 13 Dublin II Regulation, the Court held that the Belgian authorities must have been aware of the deficiencies in the asylum procedure in Greece when the expulsion order against him had been issued. The Belgian authorities should not simply have assumed that the applicant would be treated in conformity with the Convention standards. Rather, they should have verified how the Greek authorities applied their asylum legislation in practice, but they had not done so. There had therefore been a violation by Belgium of the Article 3 prohibition of degrading treatment. As far as Belgium is concerned, the Court further found a violation of the Article 13 right to an effective remedy taken together with Article 3, because of the lack of an effective remedy against the applicant’s expulsion order. Although the Court of Justice of the European Union (CJEU) adopted a similar position to that of the European Court of Human Rights, referring explicitly to the judgment in MSS v Belgium and Greece,44 the subsequent case law of the Strasbourg Court has been pretty much erratic. For example, faced with a similar complaint that Greece had been unable to deal properly with asylum requests and had provided inadequate conditions for asylum-seekers based on a similar set of circumstances of a transfer from Austria to Greece, under the Dublin II Regulation, in October 2008, the Court held that the applicant’s transfer did not violate Article 3.45 According to the Chamber, while the Austrian authorities must have been aware of serious deficiencies in the Greek asylum procedure and the living and detention conditions for asylum-seekers, they need not have known at the time that those deficiencies reached the threshold of Article 3. In another case,46 the Court reached the same conclusion with regard to a situation of an applicant transferred from Austria to Greece during the spring of 2009, hence explicitly contradicting the MSS judgment, which dealt with a transfer that occurred in June 2009. Yet in a subsequent case47 the Court found no reason to depart from its findings in the judgment in MSS, and held that it had been for the authorities, Italian in this case, to examine the applicants’ individual situations and to verify, before returning them, how the Greek authorities applied their legislation on asylum in practice. Hence, it found a violation by Italy of Article 3, as the Italian authorities, by returning these applicants to Greece, had exposed them to the risks arising from the shortcomings in that country’s asylum procedure. Another example of this contradictory case law is the divergent assessment of the situation of the reception system in Italy. In Tarakhel v Switzerland,48 the Court found a violation of Article 3 in the absence of detailed and reliable information concerning the specific facility at destination, and the fact that the Swiss authorities did not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. Contrary to this finding, in AME v the Netherlands,49 the Court concluded that the situation in Italy

44 See, in particular, paras 88–91 of the CJEU Grand Chamber judgment of 21 December 2011, C-411/10 e C-493/10. 45  Sharifi v Austria, no 60104/08, § 38, 5 December 2013. 46  Safaii v Austria, no 44689/09, 7 May 2014. 47  Sharifi and Others v Italy and Greece, no 16643/09, 21 October 2014. 48  No 29217/12, 4 November 2014. 49  No 51428/10, 13 January 2015.

14  The Irish Yearbook of International Law 2018 for asylum-seekers could in no way be compared to the situation in Greece at the time of the MSS v Belgium and Greece judgment and the structure and overall situation of the reception arrangements in Italy could not therefore in themselves act as a bar to all removals of asylum-seekers to that country. III.  ARTICLE 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

A.  The Right to Family Life The Court has previously held that, where expulsions of migrants are challenged on the basis of an Article 2 or Article 3 violation, in order for the remedy to be ­‘effective’, it must have a suspensive effect.50 In other words, if expulsion threatens to interfere with the individual’s right to life or may subject the individual to torture or inhuman treatment, the expulsion proceedings must be paused until the application is assessed. Such is not the case, the Court held in De Souza Ribeiro v France,51 if an expulsion is challenged on the basis of alleged interference with private and family life. Although where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, States must give the individual concerned the possibility of challenging the order, without a suspensive effect, the alien may end up unable to return to his family and his home until the process is completed. This is, in fact, what happened to the applicant in De Souza Ribeiro, who was arrested, placed in administrative detention, and removed from French Guiana within 36 hours. Although the Court did find that the applicant had suffered a breach of his Convention rights, due to the brevity of the time that lapsed between the arrest and deportation, the Court did not go as far as to require States to institute a suspensive mechanism in situations where applicants claim that removal would interfere with their Article 8 rights. I find this to be troubling, and made an argument for such a development in a Concurring Opinion.52 Some international bodies have specifically called for a right to a suspensive appeal against expulsion, deportation, or removal of undocumented immigrants. For e­xample, the Human Rights Committee examined the situation in French ­Guiana, the context of De Souza Ribeiro, and called on the State Party to ‘ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect’.53 This is but one example of many in international human rights and international migration law that suggests these two bodies of law impose at least a twofold procedural guarantee in respect of undocumented migrants: first, they have the right to access to courts in the host country in order to uphold their

50 

See Marcelle Reneman, EU Asylum Procedures and the Right to an Effective Remedy (2014). 22689/07, 13 December 2012. For more on this case, see Noora Arajärvi, ‘Case Note: De Souza Ribeiro v. France’ (SSRN, 18 March 2013) https://ssrn.com/abstract=2234992. 52  Concurring opinion of Judge Pinto de Albuquerque in De Souza Ribeiro v France (GC). 53  UN Doc. CCPR/C/FRA/CO/4, 31 July 2008, para 20. 51 [GC],

Articles—Pinto de Albuquerque 15 human rights, including their family rights, and, secondly, they have the right to an automatic suspensive review of any order of expulsion, deportation, removal or any similar measure when they face the risk of alleged irreversible damage to their family lives. The European Court has already held that a remedy against expulsion, ­deportation, or removal or an individual is only effective if it has a suspensive effect, particularly where such measures would place the migrant in danger of irreversible damage. Usually ‘irreversible damage’ is associated with physical damage resulting from torture and ill-treatment, generally protected under Articles 2 and 3 of the Convention. However, the Court severed the link between physical damage and the necessity of a suspensive measure in Čonka v Belgium,54 where the notion of irreversible d ­ amage was derived from the prohibition of the collective expulsion of aliens.55 Thus, the Court in that case set a principle according to which potential irreversible damage may be invoked without the simultaneous allegation of danger of torture or ill-treatment. The separation of family members may indeed cause such irreversible damage that cannot possibly be undone. This ‘damage’ should not be seen in any way as secondary to or less important than the physical damage caused by ill-treatment. The consistency of the Court’s jurisprudence requires that the same broad understanding of the notion of ‘irreversible damage’ be upheld in the interpretation of Article 13. Unfortunately, in Khlaifia and Others56 the Court went the exact opposite way, taking the view that removal from the territory of the respondent State will not expose a person to harm of a potentially irreversible nature where he or she does not allege that he or she faces violations of Articles 2 or 3 of the Convention in the destination country. Indeed, the challenge for the Grand Chamber is not only to reconsider this line of case law, but more broadly the Maaouia principle that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6, para 1 of the Convention.57 I have serious doubts about the proposition that, on account of the alleged discretionary and public-order element of the decisions taken in these procedures, they are not to be seen as determining the civil rights of the person concerned. First, these decisions will necessarily have major repercussions on the alien’s private and ­professional and social life. Secondly, these decisions are not discretionary at all and do have to comply with international obligations, such as those resulting from the prohibition of non-refoulement. Such a restrictive interpretation of the right of access to courts unfoundedly discriminates between migrants and nationals, since

54  No 51564/99, ECHR 2002-I. For a further discussion on this case, and its implications, see Joanna Apap, Infringement of the European Convention on Human Rights by Belgium (CEPS Policy Brief No 12, February 2002). 55  See also Gebremedhin [Gaberamadhien] v France, no 25389/05, § 58, ECHR 2007-II. 56  See n 12, § 277–81. 57  With regard to the expulsion procedure, see Maaouia v France ([GC], no 39652/98, ECHR 2000-X), and to the asylum procedure see Katani and Others v Germany ((dec), no 67679/01, 31 May 2001).

16  The Irish Yearbook of International Law 2018 Article 1 of Protocol No 7 affords documented migrants (‘migrants lawfully resident’) fewer procedural guarantees than those set by Article 6 for nationals and, even worse, imposes a groundless differentiation among migrants, since it leaves undocumented migrants outside the scope of both Article 6 and Article 1 of P ­ rotocol No 7. To avoid this self-created legal gap, the Court has ingeniously provided undocumented migrants with a minimum degree of protection of their right of access to courts, based on Article 13 applied in conjunction with Articles 2, 3 or 8.58 The same legal avenue was taken in De Souza Ribeiro. It is high time to put an end to this minimalist interpretation of Article 6.59 B.  The Right to Citizenship Article 8 protects the right to privacy, and included in this right is also a right to citizenship. The Court tackled this issue recently, in the case Ramadan v Malta.60 In that case, the applicant, who at the time was an Egyptian national, had acquired Maltese citizenship by reason of his marriage to a Maltese national. The applicant’s marriage was annulled five years later and he subsequently remarried in Malta a Russian national with whom he had two children. In 2007, after becoming aware of the annulment of his first marriage, Maltese authorities revoked the applicant’s citizenship on the ground that he had only married his first wife for the purpose of acquiring citizenship. The applicant brought a case to the Court arguing that the order to deprive him, and subsequently his second wife, of Maltese citizenship deprived him of his Article 8 rights. Although the Court asserted that it could not rule out that ‘an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial in the private life of the individual’,61 in this case, the Court held there had been no violation. The Court concluded that the decision of the Maltese government had been in accordance with the law, not arbitrary, and did not lead to any real negative consequences – despite the fact that he and his wife were stripped of their Maltese nationality, the Court added that his children were not and that the applicant could continue to live and work in Malta. As to the applicant’s argument that as a result of the government’s decision he was, in effect, rendered stateless (since he had already renounced his Egyptian citizenship), the Court reasoned that ‘the fact that a foreigner has renounced his or her nationality of a State does not mean in principle that another State has the obligation to regularise his or her stay in the country’.62 Given all of the above-mentioned

58  For example, the Court has already based its assessment of the fairness of an asylum procedure on Article 3 of the Convention (Jabari v Turkey, no 40035/98, §§ 39–40, ECHR 2000-VIII). 59 Concurring opinions of Judge Pinto de Albuquerque in De Souza Ribeiro v France (GC), cited above, and in Hirsi and Jamaa and Others v Italy (GC), no 27765/09, 23 February 2012. 60  No 76136/12, Fourth Section, 21 June 2016. 61  Ramadan, cited above, § 84 (citing to Karassev v Finland (dec), no 31414/96, ECHR 1999-II; Slivenko v. Latvia (dec) [GC], no 48321/99, § 77, ECHR 2002-II; Savoia and Bounegru v Italy (dec), no 8407/05, 11 July 2006; and Genovese v Malta, no 53124/09, § 30, 11 October 2011). 62  ibid § 91.

Articles—Pinto de Albuquerque 17 considerations, the Court held that there had been no violation of Article 8 of the Convention. I entertain principled reservations to the majority’s assessment of the fairness of the revocation procedure and the proportionality of the revocation order, in view of the applicant’s ensuing statelessness, the risk of his imminent expulsion from Malta and its impact on his family life. The right to citizenship is an extremely important right, and despite the fact that it was not explicitly included in the Convention, it has been identified and protected in subsequent Protocols, as well as other international instruments.63 The Court has taken some steps to protect this right, but unfortunately the majority in the above-mentioned Ramadan case failed to take them into consideration when it decided the case. For example, in Karassev v Finland64 the Court did not exclude that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such denial on the private life of the individual. There is nothing to suggest that the above principle cannot apply to cases of deprivation or loss of citizenship or to the right to renounce citizenship. The issue of arbitrary denial of citizenship can also arise under Article 3 of Protocol No 4, if the purpose of the denial is to evade the prohibition against expulsion of nationals, as was the case in Slivenko v Latvia,65 where the Court was asked to decide whether the expulsion of a Russian military officer’s wife and daughter pursuant to the Latvian-Russian treaty on the withdrawal of Russian troops violated Article 3 of Protocol No 4. The Court in that case held there had been a breach of Article 8 of the Convention as a result of the applicants’ removal from Latvia as regards their right to respect for their private life and their home. What this case law suggests is that, within the Convention system, there is now a well-established prohibition of arbitrary denial or revocation of citizenship and thus, by logical implication, the existence of a right to citizenship under Article 8 of the Convention, read in conjunction with Article 3 of Protocol No 4. Thus, the manner in which States regulate matters bearing on nationality cannot today be deemed to be within the States’ sole jurisdiction. States are bound by two obligations: a negative obligation not to decide on the loss of citizenship if the person would thereby become stateless, and a positive obligation to provide its citizenship for stateless persons, at least when they were born or found in their respective territories or when one of their parents is a citizen. It is time for the Court to recognise explicitly that State citizenship belongs to the core of someone’s identity, which is protected by Article 8 of the Convention, and it is disappointing they failed to do so in Ramadan v Malta.66

63  See concurring opinion of Judge Pinto de Albuquerque in Ramadan v Malta. For more on the right to citizenship and issues of nationality and statelessness, see Mónika Ganczer, ‘The Right to a Nationality as a Human Right?’ in Hungarian Yearbook of International Law and European Law (Eleven International Publishing, 2014) 15–33; Sandra Mantu, ‘“Terrorist” citizens and the human right to nationality’ (2018) 26(1) Journal of Contemporary European Studies 28–41. 64  Karassev v Finland (dec), no 31414/96, ECHR 1999-II. 65  Slivenko v. Latvia (dec) [GC], no 48321/99, ECHR 2002. 66  On this point, see also Laurens Lavrysen and Claire Poppelwell-Scevak, ‘Ramadan v Malta: When will the Strasbourg Court understand that nationality is a core human rights issue?’ (Strasbourg ­Observers,

18  The Irish Yearbook of International Law 2018 A more recent positive, but timid development can be perceived in Hoti v Croatia.67 In it the Court found that Croatia’s failure to ensure stability of residence for Mr Hoti, who lived in Croatia for nearly 40 years, amounted to a violation of his Article 8 right to private and family life. The applicant’s repeated attempts to regularise his residence in Croatia were unsuccessful, aside from occasional short-term permits, which were granted and withdrawn. Mr Hoti’s statelessness played a crucial role in the judgment, in spite of the fact that it was a disputed fact between the ­parties. Nevertheless, this judgment is not about the applicant’s right to a nationality, but about his right to stable residence, and the Court did not even reproach the State for not having a statelessness determination procedure. IV.  THE PROHIBITION OF ARBITRARY EXPULSION AND COLLECTIVE EXPULSION

According to the Court’s well-established case law, a State is entitled to control the entry of migrants into its territory. Nevertheless, States do not have unlimited and unrestrained power to detain migrants, deny them entry, and return them back to where they came from. States continue to have duties and obligations, under both the Convention and international law more broadly, towards migrants. States must ensure that, for one, they do not deport individuals in an arbitrary manner, and when migrants are ‘knocking at their door’ States must ensure they do not engage in collective expulsions. A.  Arbitrary Expulsion The Court has often deferred to national authorities in cases of expulsion, and often this has led to arbitrary expulsions that have infringed upon individuals’ rights under the Convention. Let me give a striking example of this. In Vasquez v Switzerland,68 the applicant complained that his expulsion from Switzerland was in breach of his Article 8 rights. In short, an administrative process in Switzerland imposed an ­expulsion order in excess of what the criminal courts had seen fit to give the applicant who had been convicted in the early 2000s of a sexual crime. In practical terms, the administrative authorities ‘punished’ the applicant with a penalty that the criminal courts saw no need to apply. What’s more is that the Federal Supreme Court inferred a threat to public safety from legally irrelevant facts, such as two decisions dismissing criminal charges for a lack of criminal characterisation of the facts. The arbitrariness of this presumption of risk or threat to public safety was patent. It should also be noted that this is not the first, nor the last time the Court has failed to protect individuals from arbitrary expulsions. Similar issues arose in 22 July 2016) https://strasbourgobservers.com/2016/07/22/ramadan-v-malta-when-will-the-strasbourgcourt-understand-that-nationality-is-a-core-human-rights-issue/. 67  68 

No 63311/14, 26 April 2018. No 1785/08, 26 November 2013.

Articles—Pinto de Albuquerque 19 Shala v Switzerland69 and in Kissiwa Koffi v Switzerland,70 handed down by the Court on the same day in 2012.71 These are typical cases of crimmigration, whereby the State uses administrative immigration law as a tool of criminal prevention policy. B.  Collective Expulsion Article 4 of Protocol No 4 states clearly and unequivocally: ‘Collective expulsion of aliens is prohibited’. Collective expulsion is ‘any measure compelling aliens, as a group, to leave 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 alien of the group’.72 In practical terms, this means that groups of refugees cannot be s­ ubject to a diminished status based on an ‘inherent’ mass-influx exception to ‘genuine’ refugee status. To provide reduced, subsidiary protection for people who arrive as part of a mass influx would be unjustified discrimination. To date, the Court has found a violation of Article 4 of Protocol No 4 in only a handful of cases.73 In Čonka v Belgium,74 measures of detention and removal had been adopted for purposes of implementing an order to leave the country, but made no reference to the applicants’ asylum requests. A number of people had been simultaneously summoned to the police station, without being given an opportunity to contact a lawyer. The ‘only reference to the personal circumstances of the applicants was to the fact that their stay in Belgium had exceeded three months’, and the ­deportation documents made no reference to their application for asylum.75 The Court held that the expulsion procedure did not afford ‘sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account’,76 and as such there had been a violation of Article 4 of Protocol No 4. The Court also found a violation of Article 4 of Protocol No 4 in Hirsi Jamma and Others v Italy.77 In that case, the applicants did not undergo any identity checks 69 

No 52873/09, 15 November 2012. No 38005/07, 15 November 2012. No 38005/07, 15 November 2012. 72  Georgia v Russia (I) [GC], no 13255/07, 3 July 2014, § 167. 73 For a discussion on the potentially positive impact of the Court’s case law, see Daniel Rietiker, ‘Collective Expulsion of Aliens: The European Court of Human Rights (Strasbourg) as the Island of Hope in Stormy Times’ (2016) 36 Suffolk Transnat’l L Rev 651. See also, Jaya Ramji-Nogales, ‘Prohibiting Collective Expulsion of Aliens at the European Court of Human Rights’ 2016 20(1) ASIL www.asil.org/ insights/volume/20/issue/1/prohibiting-collective-expulsion-aliens-european-court-human-rights. 74  No 51564/99, 5 February 2002. 75  ibid § 61. 76 ibid. 77  [GC], no 27765/09, 23 February 2012, § 186. For more on this case, see Violeta Moreno-Lax, ‘Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?’ (2012) 12(3) Human Rights Law Review 574–98; Mariagiulia Giuffré, ‘Watered-Down Rights on the High Seas: Hirsi Jamaa and Others v Italy’ (2012) 61(3) International and Comparative Law Quarterly 728–50; and for a commentary on the impact of the case on the law of the sea, see Jasmine 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 Yves Haeck and Eva Brems (eds), Human Rights and Civil Liberties in the 21st Century (2013) 179–202. 70  71 

20  The Irish Yearbook of International Law 2018 and authorities merely put migrants who had been intercepted at sea onto military vessels to be taken back to the Libyan coast. But, this case is not without its flaws. In my view, the Court did not go far enough, and it should have also found that the Italian government also had a positive obligation to provide applicants with practical and effective access to an asylum procedure in Italy, not merely to hold that Italy could not push back migrants on the high seas.78 The Court again in Georgia v Russia (I)79 reproached ‘routine expulsions’ which followed a recurrent pattern, the result of a coordinated policy of arrest, detention, and expulsion of Georgians. Applicants were expelled in large groups without legal representation or individual assessment. In that Case, the Court found there had been a breach of Convention rights. And in Sharifi and Others v Italy and Greece,80 migrants intercepted in Adriatic ports were subjected to ‘automatic returns’ to Greece and had been deprived of any effective possibility of seeking asylum. Once again, the Court found a violation. Recently, the Court has, however, been more forgiving of States engaging in group deportation, and has developed a very broad definition of what ‘individual ­expulsion’ is. This was evident in the already mentioned Khlaifia v Italy case. The facts in that case, very briefly, were as follows: the applicants, Tunisian nationals, were part of a group of migrants who had set off by boat from Tunisia to Italy. They were intercepted by the Italian Coastguard and escorted to a port on the island of Lampedusa, where they were placed in an early reception centre. During a riot, the centre was gutted by fire and the applicants were then taken to ships moored in Palermo harbour, where they were then issued with refusal-of-entry orders. They were subsequently received by the Tunisian Consul, who recorded their identities, and put on planes bound for Tunisia. Once in Tunis they were released. The events lasted about 12 days.81 The case was first heard by a Chamber of the Court, which found that although the applicants were returned on the basis of individual refusal-of-entry orders, such orders were drafted in identical terms, with only the personal details varying from individual to individual. As such, even though the applicants had undergone an identification procedure, that did not necessarily show that there had not been a collective expulsion. These orders also failed to contain any reference to the person situation of the individuals. These elements led the Chamber to find that the expulsion was collective in nature, and in breach of Article 4 of Protocol No 4. Unfortunately, the Grand Chamber did not follow this line of reasoning and failed to find that there had been a breach of the Convention. Instead the Grand ­Chamber noted that the applicants underwent two identification procedures, and at the time of their first identification procedure ‘they had an opportunity to notify the authorities of any reasons why they should remain in Italy or why they should not

78 

Concurring opinion of Judge Pinto de Albuquerque in Hirsi Jamaa and Others v Italy (GC). [GC], no 13255/07, 3 July 2014. 80  No 16643/09, 21 October 2014. 81 Legal Summary, Khlaifia and Others v Italy [GC] – 16483/12, http://hudoc.echr.coe.int/ eng?i=002-11454. 79 

Articles—Pinto de Albuquerque 21 be returned’.82 Although the Grand Chamber agreed with the Chamber’s observation that the refusal-of-entry orders had been drafted in comparable terms, ‘the relatively simple and standardised nature of the refusal-of-entry orders could be explained by the fact that the applicants did not have any valid travel documents and had not alleged either that they feared ill-treatment in the event of their return or that there were any other legal impediments to their expulsion’.83 The State’s actions and ­justifications were thus not unreasonable. The Court then went on to find that ‘the virtually simultaneous removal of the three applicants does not lead to the conclusion that their expulsion was “collective” within the meaning of Article 4 of Protocol No 4 to the Convention’.84 Rather, it could be explained as ‘the outcome of a series of individual refusal-of-entry orders’.85 This was a disappointing finding by the Court, and a move in the wrong direction. I agree with Judge Serghides, who dissented in that case, for many of the same reasons. Like Judge Serghides, I too find there are serious issues with the Court’s interpretation of Article 4 of Protocol No 4. One of the main lines of disagreement between the dissent and the majority in this case is whether or not an individual interview is required in order for a deportation to be in line with the Convention. The majority answers in the negative, and Judge Serghides disagrees. I too believe that a personal interview is necessary to ­guarantee an individualised evaluation of the asylum claims and individual ­arguments of migrants attempting to cross into the territory of a State. Without a personal ­interview, there is automatically a violation of Article 4 of Protocol No 4. Allowing States to proceed with collective or group deportations without conducting personal interviews would be a huge step back for the protections of migrants and would significantly depart from the Court’s case law. Under the Convention there is a mandatory procedural obligation to assess the individual circumstances of each migrant a State deports, and this necessarily implies an obligation on the part of States to conduct a person interview. Otherwise, the Court is effectively giving States a carte blanche to decide when individual circumstances matter, and when they can be ignored.86 An added issue in this case was the existence of a bilateral agreement between Italy and Tunisia, which bypassed the need for an individual interview of Tunisian ­individuals who arrived in Italy. Under this agreement, there was ‘no mandatory obligation to conduct a personal interview’. I agree with Judge Serghides who argues that where ‘a bilateral agreement does not require mandatory personal interviews for the collective expulsion of aliens … it violates the provisions of Article 4 of ­Protocol No 4’.87 Since there has not been a reservation to Article 4 of Protocol No 4 by Italy, Italy’s full obligations under the Protocol remain in force and cannot be displaced by a bilateral agreement.

82 

Khlaifia and Others v Italy [GC], no 16483/12, 15 December 2016, § 247. ibid § 251. 84  ibid § 252. 85 ibid. 86  See also Venturi, n 13. 87  Dissenting Opinion of Judge Serghides in Khlaifia and Others v Italy, § 252. 83 

22  The Irish Yearbook of International Law 2018 V. CONCLUSION

When it comes to the protection of migrants the Court is set on a course to limit, narrow and curb individual rights. It continues to abide by precedents that are unclear, unfair and dated. The Court has utterly failed to extend the same fundamental rights citizens of Member States enjoy under the Convention to those individuals who often make a perilous journey to our shores. In doing so, the Court has turned its back on the most vulnerable and has failed to live up to its mission to protect human rights for all individuals. The Court has allowed itself to be involved in the politics of migration, often forgiving States for buckling under pressure, but failing to consider the individuals at the other end of those sweeping ‘solutions’. Politicians and politics may use excuses to limit rights when things get tough. But it is for the Court to stand strong in the face of uncertain times and unexpected world events. It is in those times that the most vulnerable in our society suffer first and suffer most. It is our job, our founding principle, as the shining light of human rights in Europe and across the world, to be the voice for the voiceless especially in trying times. The slippery slope the Court is on will inevitably lead to more and more p ­ roblems and less and less protections. Migration will not go away, and as we watch the world become increasingly more volatile, we must expect that waves of migrations will continue to bring many more vulnerable and desperate people to our shores. The Court will have to reflect on its role in protecting individuals who have come to Europe and managed to create a life here and have a family, only to have their lives upturned by arbitrary deportations. The Court will also have to consider its role in condoning an inhuman detention policy which treats migrants as disposable commodities. It is my view that the Court is on a wrong path: away from protection, and towards indifference. The implications of this would be tragic, not only for individuals who have no other protections but those that are guaranteed to them by the Convention, but also for the protection and development of human rights across Europe and the world.

Symposium Issue on Law and Peacekeeping

24

Sixty Years of Irish Peacekeeping – Lessons for the Future RAY MURPHY*

I. INTRODUCTION

M

EMBERSHIP OF THE UN has been a central tenet of Irish foreign policy since admission in 1955.1 Maintaining an effective multilateral system, especially in the area of conflict prevention and collective security, forms a key objective of Irish foreign policy. It is against this background that Ireland has a long and proud tradition of participation in UN mandated peace operations.2 In June 1958 the first Irish peacekeepers commenced duty as UN observers on the Lebanese-Syrian Border.3 Since then, UN peacekeeping has grown and evolved to cover a range of more complex peace support operations prevalent today.4 There has been a corresponding increase in Irish involvement and this volume of the Irish ­Yearbook of International Law is intended to mark the 60th anniversary of Irish participation in peacekeeping. Much has changed since 1958 and the different ­contributors to this volume provide insights and reflections on some of the c­ hallenges confronting a country of Ireland’s size, history and resources when engaged in peacekeeping and related activities. In addition, Aisling Swaine makes the case for real investment in the human development and human rights entitlements of women and girls in conflict-affected settings. Her review recommends the use of gender planning frameworks for peace and security that focus on the lives of women and girls to address current gaps.

* Professor, Irish Centre for Human Rights, School of Law, National University of Ireland Galway. 1 Department of Foreign Affairs, Challenges and Opportunities Abroad, White Paper on Foreign Policy (Dublin, 1996) 149–67; Department of Defence, White Paper on Defence (Dublin, 2000) 59–70; Department of Foreign Affairs and Trade, The Global Island – Ireland’s foreign policy for a changing world (Dublin, 2015) 28. 2  Department of Defence, White Paper on Defence (Dublin, 2015) p v and 26. 3  See www.military.ie/en/overseas-deployments/ accessed 16 June 2019. 4  J Koops, N McQueen, T Tardy and P Williams (eds), The Oxford Handbook of United Nations Peacekeeping Operations (Oxford, Oxford University Press, 2015); Report of the High-level Independent Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people, A/70/95, S/2015/446, 17 June 2015; MW Doyle and N Sambanis, ‘Peacekeeping Operations’ and M Pugh, ‘Peace Enforcement’ in T Weiss and S Daws (eds), The Oxford Handbook on the United Nations (Oxford, Oxford University Press, 2007) 323–48, 370–86 and see https://peacekeeping.un.org/en accessed 16 June 2019.

26  The Irish Yearbook of International Law 2018 As a small country vulnerable to external influence and threat, Ireland has a vested interest in the promotion of multilateral diplomacy. The deployment of the Defence Forces on peacekeeping missions is evidence of Ireland’s commitment to supporting the UN and the maintenance of international peace and security.5 It is also viewed as having enhanced Ireland’s international reputation.6 However, there are limitations to Irish involvement based on government guidelines which include risk assessment, mission resources and cost.7 A history of active membership of both the League of Nations and the UN has assisted in establishing a peacekeeping tradition.8 Furthermore, the effects of Ireland’s policies over a range of issues including decolonisation, disarmament, human rights, and its history under colonial rule and non-membership of a military alliance, combined to make it acceptable as a contributor to peacekeeping and related activities. According to the 2015 White Paper on Defence,9 a key policy issue for Ireland has been the developing responses to the changing security environment of global and regional security organisations, principally the UN, the European Union (EU), Organisation for Security and Cooperation in Europe and NATO Partnership for Peace (PfP).10 Ireland has always engaged actively in crisis management that may involve both UN led and UN mandated missions, including military missions, as part of the collective security response.11 While Ireland is ‘fully committed to and supportive of the UN based international rules system’, it continues to maintain a policy of so-called military neutrality.12 This has been characterised by non-membership of military alliances and non-participation in common or mutual defence arrangements. While this has been a fundamental principle of Irish foreign policy that underpinned engagement in peacekeeping ­operations, the policy of Irish political parties with respect to neutrality has evolved and changed over time.13 However, it explains the legal mechanism governing participation and the necessity for UN approval for any operation involving Irish forces.14

5  J Morrison Skelly, Irish Diplomacy at the United Nations, 1945–65 (Dublin, Irish Academic Press, 1997). 6 2015 White Paper on Defence, p v (n 2). 7  See 2000 White Paper on Defence (n 1) 63 and White Paper on Foreign Policy (n 1) 194–95. 8  Skelly (n 5) and MJ Kennedy, Ireland and the League of Nations (Dublin. Irish Academic Press, 1996). See also Norman JD McQueen, ‘Irish Neutrality: the United Nations and the Peacekeeping ­Experience 1945–1969’ (D Phil thesis, New University of Ulster, 1981) esp Introduction 1–13; N Heathcote, ‘Ireland and the United Nations Operation in the Congo’ (1971) 111 International Relations 880; P Keatinge, The Formulation of Irish Foreign Policy (Dublin, Institute of Public Administration) 1973, 7 and 83–86; and A Place Among the Nations (Dublin, Institute of Public Administration, 1978) 158–61. 9 2015 White Paper on Defence 3 (n 2). 10  ibid 6 and The Global Island: Ireland’s Foreign Policy for a Changing World, 27. 11  White Paper on Defence 19 (n 2). 12 2015 White Paper on Defence 24 (n 2). See also K Devine, ‘Irish Political Parties’ Attitudes towards Neutrality and the Evolution of the EU’s Foreign and Security and Defence Policies’ (2009) 24(4) Irish Political Studies 467–90 and B Tonra, Global Citizen and European Republic: Irish Foreign Policy in Transition (Manchester, Manchester University Press, 2007) 9–13. 13  Devine (n 12) and G Fitzgerald, ‘The Origins, Development and Present Status of Irish “Neutrality”’ (1998) 9 Irish Studies in International Affairs 11–19. 14 2015 White Paper on Defence 26 (n 2).

Symposium Issue on Law and Peacekeeping—Murphy 27 At the same time, Ireland’s willingness to share the burden of EU cooperation and solidarity in the security and defence field, in particular through contributions to military operations, is seen as influencing perceptions of its credibility and commitment within the EU and UN.15 Whether this is true or not is difficult to test. ­However, the EU and NATO are increasingly relied upon to provide UN missions with key enablers, rapid response forces and higher-end military capabilities. II.  THE DEFENCE FORCES AND PEACEKEEPING

The first major peacekeeping operation involving major units of the Defence Forces was the UN mission to the then Congo (ONUC).16 The army battalions that formed up for UN duty in the Congo (ONUC) in the 1960s were not well equipped for the mission ahead. Irish soldiers arrived to the sweltering heat of Central Africa in heavy ‘bulls wool’ uniforms and with bolt action rifles.17 This situation is in stark contrast to the equipment, training and experience of those participating in UN forces in Lebanon and Syria today. During a heated debate on Irish participation in ONUC, the then Taoiseach (Prime Minister) cited the obligations of Irish membership of the UN and the belief that the operation was in ‘the best interests of the Congo, Africa and of world peace’ as reasons for acceding to the UN Secretary-General’s request to make Irish troops available for the mission.18 It is difficult to assess in general terms the impact that involvement in peacekeeping has had on the Defence Forces. Nonetheless, it is evident from conversations with serving and former personnel that what is generally referred to in Irish military circles as ‘overseas service’ has always been viewed as a welcome respite from the day to day barrack routine at home.19 ‘Overseas service’ has also boosted morale and increased recruitment, especially in the early 1960s when the government first agreed to contribute large numbers of troops to the peacekeeping operation in the Congo. It has increased the wages and salaries of serving personnel by way of overseas allowances; a factor not to be overlooked when considering the number of volunteers of all ranks for service with the UN. However, it was the new sense of purpose that the army felt in the 1960s that provided the most significant boost to morale. The Irish Times in 1963 summed up the effect as follows: There had been created a better public image of the army. This had been achieved by much mention in the speeches of politicians at home and abroad. The national newspapers have

15 

ibid 28. www.military.ie/en/overseas-deployments/past-missions/african-missions/ accessed 15 June 2019. Personal interviews, Col R Bunworth, Dublin, February 1985 and Col J Leech, Athlone, September, 1988. Both officers served with ONUC and had extensive military experience in Ireland and with the UN. 18  Dáil Debates 185, 7 December 1960, col 185. 19  ‘Overseas service’ refers to all missions abroad, including UN and EU. All interviewees, military and civilian, expressed support for such service and acknowledged what they saw as the positive impact this has had on the Defence Forces since the first observer mission in 1958. 16  17 

28  The Irish Yearbook of International Law 2018 given it much publicity, albeit somewhat dramatic and hysterical at times … there was the enormous benefit in experience that active service gives … (and) … Irish troops did at last receive adequate pay in terms of overseas allowances.20

From a military point of view, peacekeeping operations have provided an ideal ­training ground for an army of Ireland’s size and resources. This is true in southern Lebanon and the Golan Heights today, owing to the general operational environment of the UN Forces there. The training and exercising of these units for UN service annually is probably the most tangible non-monetary benefit of Ireland’s present level of commitment to UNIFIL in Lebanon and UNDOF on the Golan Heights.21 The UN operations in Somalia in the 1990s had a profound impact on peace ­support missions since then, and Ireland’s policy and legal framework governing peacekeeping was also modified in response to events there. The Defence (Amendment) Act, 1993 amended earlier legislation in significant respects.22 This brought about an important change in Irish defence and foreign policy that was not reflected in the level of public or parliamentary debate at the time.23 It is unlikely that the new legislation would have had such an uncontroversial passage but for the humanitarian considerations in sending an Irish army transport unit to Somalia and the presence of Irish aid workers in that country. Although the Irish commitment in Somalia was quite small, the decision to participate had significant political and military implications. It was the first time Irish soldiers participated in a Chapter VII peace enforcement operation and it set a precedent that marked a watershed in Irish involvement in peacekeeping activities, and a realisation that Ireland could be left behind in the changing nature of the international security environment unless it too adapted to events. In 2005 the Minister for Defence made further proposals for participation of Irish troops in EU rapid-reaction forces that required a series of legislative amendments.24 These were intended to reflect the changes that had taken place in the organisation and structure of forces deployed on peace operations under the auspices of the UN.25 It was also to take into account the growing practice of regional organisations undertaking such operations at the behest or with the approval of the UN. This provided greater legal certainty to participation in UN approved EU, African Union and Organisation for Security and Cooperation in Europe missions.26 It also clarified

20  The Irish Times, 29 July 1963. See also ‘A record to be proud of’, editorial, The Irish Times (10 January 2019) 13. 21  Interview, senior Defence Forces officer with extensive UN and related experience, 26 January 2016. A similar view as expressed by most current and former Defence Forces personnel interviewed. 22  The principal amendment was contained in section 1 which by defining an ‘International United Nations Force’ as an international force or body established by the Security Council or General Assembly of the UN, went beyond the previous definition contained in the 1960 Act which had limited Defence Force participation to UN peacekeeping operations. 23  Dáil Debates 433, 29 June 1993, cols 309, 363, 376. 24 Defence (Amendment) Act, 2006, 623, Dáil Debates, 4 July 2006, cols 135–63 and 163–75 (Committee and Remaining Stages). 25  Defence (Amendment) Act, 2006, s 1. 26  Section 8 of the Act enabled the Defence Force to participate in an international UN force in the context of Ireland’s commitment to rapid response deployment and the so called ‘battle groups’. The section stipulates that the Defence Force cannot be deployed operationally before the formal adoption

Symposium Issue on Law and Peacekeeping—Murphy 29 the situation with regard to defence force personnel undertaking training activities abroad. This was evidence of a growing commitment by Ireland to UN backed EU led operations. Subsequent deployments to Chad, and training missions to Mali and Somalia, demonstrate this further. In July 1999, Ireland agreed to send a transport company to the NATO-led international peacekeeping force in Kosovo (KFOR).27 There was nothing radical in this decision, and their role was similar to that performed by the Irish contingent in Somalia.28 Nonetheless, Irish involvement in the former Yugoslavia set the scene for a longer-term re-orientation of Irish participation in international peace support operations away from the more traditional peacekeeping roles of the past. In the same year, Ireland also joined the NATO-led Partnership for Peace (PfP), thus paving the way for more significant involvement in UN approved but potentially NATO or EU-led crisis management/peacekeeping operations.29 Although Ireland advocates for a strong EU contribution to UN peacekeeping, there is no evidence that this has led to a reduction in the commitment to UN-led peacekeeping.30 The Irish contribution to UNIFIL in Lebanon is also an example of the evolution in Irish participation from stand-alone exclusively Irish battalions, to joint battalions with another State.31 The battalion has a wide range of capabilities, affording operational effectiveness while also providing extensive force protection capacity. III.  EUFOR AND UN INTERVENTION IN CHAD 200832

The decision to participate in an EU mission to Chad in 2007 marked a significant evolution in Irish participation in peacekeeping missions. In September 2007, the UN authorised the deployment of MINURCAT and an EU military force (EUFOR)

of the requisite Security Council resolution and the approval of Dáil Éireann. However it facilitates speedy deployment of equipment and personnel as part of a battle group or similar international military ­formation in anticipation of the requisite UN resolution being adopted. The Minster for Defence indicated that in the event that either the UN resolution or Dáil approval was not forthcoming, the Defence Forces would be withdrawn forthwith (623 Dáil Debates, 4 July 2006, col 139). 27 

www.military.ie/en/overseas-deployments/current-missions/ last accessed 15 June 2019. Dáil Debates, 507, 1 July 1999, cols 852–56. See also The Irish Times, 31 August 1999 and 1 and 2 July 1999. 29  Ireland joined the NATO’s Partnership for Peace (PfP) Programme in December 1999 and in 2001 it joined the PfP Planning and Review Process (PARP). See www.nato.int/cps/ra/natohq/topics_50349.htm accessed 15 June 2019. 30  The Global Island – Ireland’s foreign policy for a changing world (n 1) 28. 31  The 51st Infantry Group of 198 personnel was deployed to the UNIFIL mission in Lebanon in 2015 as was part of a joint battalion with Finland. 32  European Union Military Operation in Eastern Chad and North Eastern Central African R ­ epublic (EUFOR TCHAD/RCA) approved under Joint Action 2007/677/CFSP, 15 October 2008 and UN S/RES/1778, 25 September 2007. The mandate authorised a mission for one year from date of reaching Initial Operating Capacity (March 2008). Bruno Charbonneau, ‘What Is So Special about the European Union? EU–UN Cooperation in Crisis Management in Africa’ (2009) 16(4) International Peacekeeping 546–62. 28 

30  The Irish Yearbook of International Law 2018 in Chad and the Central African Republic.33 This was the first occasion that EU/UN cooperation adopted the model whereby an EU military force and a UN mission were combined under a single UN mandate. The mission was complicated by the fact that although French troops had been stationed in Chad for more than two decades and supported the regime of President Déby, France would provide the bulk of the troops for EUFOR.34 Such a mandate was bound to bring EUFOR into conflict with both the Chadian authorities and rebel groups and once deployed, Irish forces were involved in confrontations with rebel forces.35 In the event, the political expectations for EUFOR did not match the military capacity of the force and the range of obstacles that confronted it on the ground.36 The planned strength of EUFOR had to be reduced when insufficient troops were made available despite five force generation conferences.37 Nevertheless, apart from the delay in deploying, EUFOR was considered a success.38 Although it did have adequate military capability, this was intended for deterrence, not combat. This suited Irish forces on the ground. Deterrence became a key concept in the underlying strategy of the operation. In Ireland, there was some opposition to the participation of defence force personnel in a ‘French dominated’ international force and there were calls to deploy with the AU/UN force in Darfur.39 From an Irish perspective, the mission was seen as operationally and logistically challenging. It was also costly, and was financed from exchequer funding. The delays in deployment by both EUFOR and UN M ­ INURCAT missions did undermine operational effectiveness. This in turn had an adverse impact on the work of humanitarian agencies who considered the force was there to serve their interests and ensure humanitarian assistance was delivered.40 In addition, some Irish with EUFOR saw it as a vehicle for French policy that suited other States as it

33 Security Council Resolution 1778 (25 September 2007) para 1. Later, Security Council Resolution 1861 (2009) provided for the withdrawal of EUFOR and the creation of a military component of MINURCAT that would take over from EUFOR. See https://minurcat.unmissions.org/ last accessed 15 June 2019. 34  See comments by Lt Col J Vall, Deputy Chief of the Military Liaison Officers, MINURCAT, quoted by Integrated Regional Information Networks (IRIN), United Nations, 14 January 2008. 35 C Lally, ‘Irish troops criticised for failing to protect staff’ The Irish Times (18 June 2008) 1. The UNHCR subsequently apologised for the staff member’s remarks and ‘misinformation’ about the incident. See P Cullen, ‘Matter of UN Chad remarks “closed”’ The Irish Times (21 June 2008) and C Lally, ‘O’Dea says troops in Chad face greater risk’ The Irish Times (27 August 2008). See also M Fitzgerald, ‘Aid agencies and EU Chad force learn trust in tense security zone’ The Irish Times (26 November 2008). 36  A Mattelaer, The Strategic Planning of EU Military Operations – The Case of EUFOR TCHAD/ CAR, IES Working Paper 5/2008 (Brussels, Institute for European Studies, 2008) 6. 37  HG Ehrhart, Assessing EUFOR Chad/CAR (Hamburg, Institute for Peace Research and Security Policy, 2008) 1. 38  Oxfam Briefing Paper, Mission incomplete: why civilians remain at risk in eastern Chad (Oxfam International September 2008) 2 and 12–15. This was also the consensus among Irish officers interviewed that served with the mission. 39 See E Horgan, ‘Army tied into questionable peace missions’ The Irish Times (8 August 2008). In contrast see T Kinsella, ‘Chad Mission to EU military’s peaceful role’ The Irish Times (9 March 2009). 40  Interview, former UN Civil-Military Co-operation (CIMIC) officer with the Irish battalion during 2009 and 2010, Galway, December 2010.

Symposium Issue on Law and Peacekeeping—Murphy 31 disguised the inadequacy of the international response to the regional issues at the heart of the conflict in Chad, CAR and Sudan.41 Later there was also controversy regarding what many regarded as a premature withdrawal of Irish forces from MINURCAT, but this was linked to uncertainty over the renewal of the mandate and logistical issues.42 The security challenges were compounded by serious logistical difficulties. Later, concerns about ‘air assets’, medical evacuation and general supply matters led to the premature withdrawal of the Irish contingent. More recently, the Defence Forces have contributed a contingent to UNDOF on the Golan Heights between Syria and Israel at the height of the armed conflict in Syria.43 In so doing, Ireland has demonstrated a willingness to serve where other European armies would not go. This was also the case in respect of the UN mission to Liberia (UNMIL).44 Although the UNDOF mission reflected well on Irish willingness to deploy and prevent the collapse of the operation, the clash with Syrian rebel group al Nusra led to a re-evaluation of the Irish participation.45 Thereafter, a previous almost unwavering commitment to UN peacekeeping was going to be more conditional. This can be attributed to increased expectations over military capabilities, the need for realistic mandates and the responsibility of the Irish government to ensure it respected the duty of care to Irish soldiers. IV.  CURRENT CHALLENGES FOR IRISH UN PEACEKEEPING

There have been major changes to the organisation and structure of Defence Forces since the 2000 White Paper on Defence. The changing operational environment, modernisation and financial constraints have impacted Irish defence policy. The direct impact of the financial crisis since 2008 on all facets of Irish life has been severe. In 2015, defence expenditure (excluding pensions) was approximately 21 per cent

41 H Van Dijk, ‘Briefing: Political Deadlock in Chad’ (2007) 106 African Affairs 697–702 at 699; S Massey and R May, ‘Commentary: the crisis in Chad’ (2006) 106 African Affairs 420, 443–9. An analysis of the French role in the Chad/Darfur crisis can be found in B Charbonneau, ‘France’, in David R Black and Paul D. Williams (eds), The International Politics of Mass Atrocities: The Case of Darfur (London, Routledge, 2009). See also T Tardy and D Zaum, ‘France and the United Kingdom in the Security C ­ ouncil’ in von Einsiedel, Malone and Stagno Ugarte (eds), The UN Security Council in the ­Twenty-First Century (Boulder, Lynne Rienner, 2016) 121–38. 42  Personal interview, senior Irish officer with MINRCAT, December 2015. R Murphy, ‘Why is UN leaving Chad to banditry and strife’ The Irish Times (11 May 2010). 43  Since September 2013, www.military.ie/en/overseas-deployments/current-missions/ accessed 15 June 2019. 44 See www.military.ie/en/overseas-deployments/past-missions/african-missions/ accessed 15 June 2019. 45 Statement by the Minister for Defence, Simon Coveney TD, ‘United Nations Disengagement Observer Force (UNDOF) Golan Heights’, Department of Defence, 23 September 2014. F Gartland, ‘Troops role in Golan Heights to be re-evaluated’ The Irish Times (1 September 2014). According to Minister Coveney, the government would have to be satisfied that it [the mission] could be done ‘in a way that guarantees an acceptable level of risk as opposed to what we have seen in the last two days … When you have UN posts being directly attacked within a country and within an area that is supposed to be a demilitarised zone well then there are real problems with that and so if Irish troops are to remain part of a mission between Israel and Syria then there will have to be a full re-evaluation by the UN’.

32  The Irish Yearbook of International Law 2018 less than 2008 expenditure and 14 per cent less than 2007.46 An immediate consequence of cuts to the defence budget was the decision to reduce the establishment of the defence forces to 9,500 personnel.47 At the time of writing, the actual strength is around 8,500, an unsustainable low number in the long term. A.  Interoperability is a Key Objective of the Defence Forces48 In recent years the changing nature of peace support and crisis management operations, and particularly the role that EU Member States play in supporting the UN, has led to a demand for multinational peacekeeping forces that are fully integrated in accordance with recognised international standards for interoperability.49 Ireland is committed to participation in NATO’s PfP with a view to ensuring that the Defence Forces have the necessary interoperable capabilities to engage in peacekeeping with other European forces. In order to be accepted as a peacekeeping partner, it is now necessary for the Defence Forces to be trained and equipped to NATO standards.50 However, it is also important that it develop its own peacekeeping doctrine which is currently lacking. The development of more formal bilateral relations with other States is also becoming a feature of Ireland’s international peacekeeping and crisis management arrangements.51 Participation in multinational peace support, crisis management and humanitarian relief operations is one of the primary roles of the Defence Forces.52 The 2015 Defence White Paper acknowledges that the degree to which Ireland is prepared to share the burden of EU co-operation in the security and defence field, in particular through contributions to military operations and capabilities, influences perceptions of Ireland’s credibility and commitment as a Member State within the Union.53 It also contributes to maintaining Ireland’s credibility in the UN which is increasingly relying on regional organisations to provide UN missions with key enablers, rapid response forces and higher-end military capabilities. Full participation in EU Common Security and Defence Policy (CSDP) has been recognised as important in protecting Irish values and interests. At the same time,

46 2015

White Paper on Defence (n 2) 6. 1996, the strength was 12,750, Defence Forces Review Implementation Plan (Dublin, February 1996) 16. 48  This is the ability to train, exercise and operate together coherently, effectively and efficiently with partners to achieve tactical, operational and strategic objectives. Interoperable standalone, force packages are deployed to multinational expeditionary operations overseas and the Defence Forces have the capability to deploy up to battalion sized units, naval vessels and aircraft when requested, 2015 White Paper on Defence (n 2) 64. 49 2015 White Paper on Defence (n 2) 30. 50  ibid 65. 51  ibid 29. In this regard, joint deployments of a contingent with Finland to UNIFIL, with Sweden to Liberia, with the Netherlands to EUFOR Chad, and more recently, with the UK in Mali and Sierra Leone, demonstrate the evolving nature of bilateral peacekeeping. It is also a feature of our engagement in CSDP, where many Member States share common interests and perspectives. 52 2015 White Paper on Defence (n 2) 59. 53  ibid 28. 47  In

Symposium Issue on Law and Peacekeeping—Murphy 33 support for EU and UN co-operation and collaboration are an integral part of Irish engagement in the UN. Ireland does not see this as diverting resources from UN peacekeeping. Part of the reason for this is that under Irish law, Ireland cannot contribute to an EU or similar force unless there is a UN resolution approving the ­operation.54 It assumes that any EU operation that it supports will have the full backing of the UN and will be authorised by and in support of a UN resolution. Without such UN authorisation, Ireland will not participate. The 2015 White Paper acknowledges that the EU now regards military capacity and ‘expeditionary potential’ – that is the capacity to deploy to civilian and ­military operations overseas – as a primary area of development within Common Foreign and Security Policy/Common Security and Defence Policy.55 If Ireland wishes to be able to safeguard its own security and strategic interests, while at the same time exerting influence within the EU and playing a meaningful role in international peacekeeping, then continued active engagement in the Union’s Common Security and Defence Policy may be essential.56 In this context, Pearce Clancy considers the implications for Ireland of the EU Permanent Structure for Co-operation (PESCO) process. The article examines how PESCO fits into the relevant political and legal framework in Ireland, and what value, if any, can be derived from PESCO. It explores the concerns raised regarding the initiative and its implications for Irish involvement in peacekeeping. It argues for engagement with PESCO and the enhanced Common Security and Defence Policy (CSDP) based upon the foreign policy goals of Ireland and the economic and financial constraints which may otherwise act as a barrier. A challenge with PESCO and other commitments by Ireland under the EU Common Security and Defence Policy is that it represents a further advance in military cooperation. While PESCO does not commit Ireland to a European army, a major concern remains that it is not clear where such incremental steps may lead in the long term. B.  The Triple Lock – Legal Impediments to Irish Participation Although Ireland’s policy regarding participation in peace support operations has undergone significant progressive development to take account of the changed international security environment, important legal restrictions on what the government may commit to remain in force. The government has consistently stressed that participation in UN approved European peace support initiatives does not change ­Ireland’s traditional policy on military neutrality.57 This may well be official ­government policy, but it is hard to reconcile with the fact of participation with other European States in military operations of whatever nature, and the increasing

54 

See ‘Triple Lock’ discussed under ‘Obstacles to Irish Participation’. White Paper on Defence (n 2) 27. ibid 27. 57 2000 White Paper on Defence and 2015 White Paper on Defence 9 (nn 1 and 2). 55 2015 56 

34  The Irish Yearbook of International Law 2018 cooperation envisaged for EU States under the common foreign and security provisions of the Nice and later Lisbon treaties.58 Under the so-called ‘triple lock’ mechanism, before Ireland can participate in a peacekeeping mission it must be UN authorised, and approved by the Dáil (Irish Parliament) and the government.59 The problem that will confront Ireland in future years is participation in UN approved, but not formally mandated operations. If the UN hands over the responsibility of peacekeeping operations to the EU without a formal Security Council or General Assembly mandate, this will present Ireland with the same problem that arose with the mission to Macedonia in 2003. EU foreign ministers approved the first EU peacekeeping mission (operation Concordia) and agreed to replace the NATO peacekeeping operation that took over when the UN mission was vetoed by China.60 Ireland was presented with a serious legal and political dilemma regarding participation in this mission. After making a commitment to the EU preventive deployment force, Defence Force personnel were allocated a number of positions on the EU-lead mission. Soon after, Ireland withdrew its commitment to contribute personnel to the operation. This was a source of significant embarrassment to Irish diplomats at the Department of Foreign Affairs and the Defence Forces.61 The Irish Attorney General advised the government that Ireland could not contribute troops to this mission as it did not satisfy commitments made by Ireland as part of the Seville declaration prior to the Nice Treaty referendum.62 This has serious consequences for Irish foreign policy, both within the EU, and with regard to participation in future peacekeeping operations. C.  Other Factors Influencing Participation The reduction in the strength of the Defence Forces personnel and the fiscal challenges still confronting the Irish State are important factors. There is also a ­weakness 58  Nice Treaty White Paper (Dublin, Government Publications, 2001) and The Irish Times (29 March 2001) 8. See also J Maguire, Defending Peace – For an Alternative to NATO/PfP and a Militarized Europe (Afri, Dublin, 1999); Afri Position Paper No. 2, Towards Real Security – A Contribution to the Debate on Irish Defence and Security Planning (Dublin, 1999) and Comhlamh, Focus (Issue 62, Dublin, Aug/Sep 2000) 16–24. 59  Department of Foreign Affairs Press Release (Wednesday, 19 June, 2002) www.dfa.ie/pmun/newyork/peace-and-security/peacekeeping/. The legal basis for Irish participation in peace support operations was the Defence (Amendment)(No. 2) Act 1960, as amended by the Defence (Amendment) Act 1993 and Defence (Amendment) Act 2006. See R Murphy, ‘Legal Framework of UN Forces and Issues of Command and Control of Canadian and Irish Forces’ (1999) 4 Journal of Armed Conflict Law 41–73. 60  Agence France Presse (AFP), 27 January 2003 and 13 December 2002. 61  Personal interview, Department of Foreign Affairs official, Dublin, March 2003. 62  At the Seville European Council in June 2002, the Irish Government made a National Declaration. This stated, inter alia, that the Treaty of Nice does not affect Ireland’s policy of military neutrality, and that a referendum will be held in Ireland on joining any future common defence. It provides that Ireland reiterates that the participation of contingents of the Irish Defence Forces in overseas operations, including those carried out under European security and defence policy, requires: (a) the authorisation of the operation by the Security Council or the General Assembly of the United Nations, (b) the agreement of the Irish Government, and (c) the approval of Dáil Eireann, in accordance with Irish law. A similar national declaration was associated with the ratification of the Lisbon Treaty.

Symposium Issue on Law and Peacekeeping—Murphy 35 in the provision of logistics, especially medical evacuation assets, and the issue of duty of care.63 There was some resistance from the UN for the deployment of armoured personnel carriers with the Irish contingent of UNIFIL. Such force protection equipment later proved vital on the Golan Heights and necessary in Lebanon to ensure the safety of those deployed. The problem is that armoured personnel carriers are an expensive necessity, and the UN must foot the bill. V. CONCLUSION

In the past, the lack of policy and debate on defence issues reflected a general lack of ideas and interest at all levels. More recently, the publication of Strategy Statements, Annual reports, White Papers, and active representative bodies has improved this situation, but the overall level of public debate and knowledge remains low by European standards. A feature of Ireland’s policy response to the current security challenges is continued support for the UN multilateral system for the maintenance of international peace. Ireland’s approach to international security is characterised, inter alia, by a willingness to participate in peace operations and by a commitment to achieving collective security through the UN.64 Participation in the UNDOF mission on the Golan Heights was an important reaffirmation of Ireland’s commitment to UN peacekeeping. The decision to replace the Austrian contingent that withdrew from UNDOF was important for Ireland and did much to challenge the perception that it was risk averse. The mission has faced significant challenges, especially during 2014.65 It is alongside one of the most volatile countries in the world and does involve significant risk. The Middle East is an area where Irish forces have served for many decades and it can be said to be consistent with Irish foreign policy objectives in the region.66 At the same time, Ireland’s membership of the NATO Partnership for Peace ­programme allows it to obtain the training and related benefits for the Defence Forces that working closely with NATO countries brings, but few of the political disadvantages of membership for a country that has espoused a policy of military neutrality for decades.67 The importance of UN approval for all Defence Forces international operations was evident in the decision by Ireland to enter into a bilateral arrangement with Italy to assist with search and rescue missions for refugees/migrants in the Mediterranean.68

63  E Burke and J Marley, Walking Point for Peace: An Irish View on the state of UN peacekeeping, Center on International Co-operation (New York, New York University 2015) 15–16. 64 Minister of State at the Department of Defence (Deputy Paul Kehoe), Seanad Éireann Debate (Irish Senate) (2015) 244(3). 65 ibid. 66 2000 White Paper on Defence 261–65 (n 1). 67  Personal interview, senior Defence Forces officer, 6 January 2016 and Devine (n 12). 68  In response to the humanitarian crisis that unfolded in early 2015, three Irish Naval Service ships deployed under OPERATION PONTUS to the Mediterranean supporting the Italian Marine Rescue Coordination Centre with Search and Rescue assistance.

36  The Irish Yearbook of International Law 2018 In this volume, Pat Burke examines the challenges to the EU humanitarian ­mission launched in response to the increased migration on the Mediterranean Sea that evolved into a rescue operation with a policing role. The lack of UN Security Council approval for the initial EU mission presented Ireland with a political and legal dilemma regarding participation in an operation not formally mandated by the UN. Concluding a bilateral agreement with Italy for this humanitarian mission got around the strictures of the ‘triple lock’ mechanism requirement for participation in such an international maritime operation. Although the strength of the Defence Forces is small by international standards, the level of training and the equipment issued to the average soldier is high. The Defence Forces have progressed from participation in Chapter VI peacekeeping ­missions to deploying highly mobile mechanised infantry units for more robust m ­ issions. In the area of logistics, there has been a shift away from traditional reliance on UN support to the Defence Forces, to deploying self-sustaining units to so-called green field sites. There has been a distinct lack of open and realistic debate concerning the role of the Defence Forces and the move away from traditional UN police operations in favour of quasi-enforcement operations under Chapter VII of the UN Charter. Often these are led by regional organisations or lead States, part of a so-called coalition of the willing. There may be no alternative to these developments at international level, but it is difficult to discern a clear Irish policy on such issues.69 The guidelines for participation offer an insight into how individual decisions are made, but do not represent a clear policy or strategy. The challenge confronting Ireland has been described in the following terms, ‘as the Mother Teresa of the international community’, Ireland is uncomfortable with the dilemmas of the post-Cold War era.70 In the past it managed to protect itself from any external threat by availing itself of the NATO umbrella, while focusing the Defence Forces on the perceived internal security threat to the State.71 Ireland wants to enhance its international prestige and influence by contributing personnel to peace operations. Participation helped Ireland’s case for election to a non-permanent seat on the Security Council, which it did in 1962, in 1981–82 and in 2001–02. At the time of writing, the Irish government is considering sending around 12 soldiers from the special forces unit, the Army Ranger Wing (ARW), to participate in the UN peacekeeping mission in Mali, known as MINUSMA.72 Although the Defence Forces already contribute to an EU training mission in Mali, this is not a combat role. With almost 200 fatalities to date and Canada and the Netherlands

69 See generally J Maguire, Defending Peace – For an Alternative to NATO/PfP and a Militarized Europe (Afri, Dublin, 1999); Afri Position Paper No. 2, Towards Real Security – A Contribution to the Debate on Irish Defence and Security Planning (Dublin, 1999) and Comhlamh, (2000) 62 Focus 16–24. 70  E O’Halpin, Defending Ireland, (Oxford, Oxford University Press 1999) 353. 71  See AJ English, ‘The Irish Republic – Odd Man Out of European Defence’ in Jane’s Military Review (London, Jane’s Publishing, 1987) 31 and B Mac Sweeney, ‘Irish Defence in the Context of Irish Foreign Policy’ Irish Studies (1998) 51. 72  Security Council Resolution 2423 (28 June 2018) https://peacekeeping.un.org/en/mission/minusma accessed 15 June 2019.

Symposium Issue on Law and Peacekeeping—Murphy 37 planning to withdraw their contingents, this is considered one of the UN’s most dangerous missions.73 Ireland’s EU partners, especially France, have prioritised the mission in order to help limit large movements of people and terrorist activities in the region. UN forces in Mali are considered a party to the conflict. This raises the question whether counter-terrorism is something the Defence Forces should engage in under the guise of peacekeeping? To deal with the threat, the UN Security Council has approved MINUSMA ­taking robust and active steps to counter asymmetric attacks and carry out its mandate.74 Although not explicitly stated, this amounts to a de facto counter-terrorism role, something the recent 2015 High-level Independent Panel on Peace Operations ­recommended the UN should not do.75 Recent mandates adopted in respect of the peacekeeping missions in Mali and elsewhere constitute a doctrinal shift from traditional consent-based peacekeeping towards stabilisation and peace-enforcement missions.76 The problems often begin at the adoption of mandate stage. The strategic thinking behind this change is not clear, nor indeed are the implications for all UN peacekeeping operations and how they are perceived. The term stabilisation entered the lexicon of peace operations with the establishment of the NATO Stabilization Force in Bosnia in 1995. Unlike peacekeeping, which assumes a peace to keep, stabilisation implies military operations to stabilise a situation. The UN adopted the term in Haiti, and today the UN considers stabilisation as part of the broader remit of UN multi-dimensional peacekeeping operations.77 MINUSMA in Mali is an example of what the 2015 High-level Independent Panel on Peace Operations described as conflict management operations.78 These are intended to deter escalation and contain conflict while also protecting ­civilians and attempting to start a peace process. The reorientation of UN peacekeeping forces away from their traditional role towards conflict management has met with ­challenges. According to the UN Secretary-General, a peacekeeping operation is not an army.79 Nor is it a counter-terrorist force or a humanitarian agency. It is a tool to create the space for a nationally owned political solution.80 While many ­Council members share this view, in practice the challenges of conflict management are remoulding fundamental elements of contemporary UN peacekeeping.81

73 

Kevin Sieff, The world’s most dangerous UN mission, The Washington Post (17 February 2017). Resolution 2423 (n 72). 75  Report of the High-level Independent Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people, A/70/95, S/2015/446 (17 June 2015) 12. 76 W Kotze, ‘United Nations Multidimensional Integrated Stabilisation Mission in Mali’ in Koops, McQueen, Tardy, Williams (n 4) 854. 77 N Lemay-Hebert, ‘United Nations Stabilisation Mission in Haiti’ in Koops, McQueen, Tardy, ­Williams (n 3) 720. 78  Report of the High-level Panel (n 75) 43. 79  António Guterres, ‘Remarks to Security Council High-level Debate on Collective Action to Improve Peacekeeping Operations’ (28 March, 2018). 80 ibid. 81 R Gowan and R Rappa, Global Peace Operations Review, Peace Operations 2018 (Center on ­International Cooperation (CIC), NYU 2019). 74 

38  The Irish Yearbook of International Law 2018 MINUSMA’s role in addressing terrorism in Mali has proved divisive. While the mission has endured attacks on its bases and numerous roadside bombs, the S­ ecurity Council has not given it an explicit counter-terrorism mandate.82 This reflects the lack of consensus in respect of the mission. However, on the ground the issue is more nuanced as MINUSMA is clearly aligned to other forces conducting anti-terror operations. When the mandate is translated into operations on the ground, the de facto task is to limit terrorist action in northern Mali. The ARW are highly trained and more than able for any role they may be assigned. For example, they could assist in force protection or intelligence gathering. H ­ owever, any intelligence role is potentially problematic. Intelligence gathered will be shared and there will be no control over how it will be used. It may end up being part of an assessment before deciding whether to launch a drone or similar attack. In the long term, this form of conflict management by UN peacekeepers is not sustainable. Moving away from traditional principles and methods threatens the core concept of peacekeeping. It also potentially undermines efforts to promote and protect human rights. Limited mandates with realistic aims are also preferable to counter-terrorism operations under the guise of conflict management. Large-scale open-ended deployments with full or quasi combat roles should not be allowed become the norm. The issues are complex, and the dilemmas confronting Ireland were evident in the debate about participation in the multinational force in the former Yugoslavia.83 The government policy of military neutrality, however, did not preclude Irish participation when it was deemed appropriate to do so. In reality, both SFOR (Bosnia Herzegovina) and KFOR (Kosovo) were NATO forces, albeit operating with the authority of a UN Chapter VII resolution and with non-NATO member contributors. In military terms, Ireland does not possess the capacity to make any significant contribution to such large-scale operations. Irish involvement in these forces set the scene for a longer-term re-orientation of Irish international peacekeeping involving closer engagement with our EU partners. The decision to contribute to the UN ­mission in Mali is the most recent evidence of this evolution in Irish policy.84

82 

Resolution 2423 (n 72) and Security Council Report June 2019, Monthly Forecast, 31 May 2019. an examination of the security issues, see P Keatinge, European Security-Ireland’s Choices (Dublin, Institute of European Affairs 1996). 84  Dáil Debates (2019) 983(7) 817, www.oireachtas.ie/en/debates/debate/dail/2019-06-18/32/ accessed 20 June 2019. 83 For

Gender Planning for Peace and Security: Re-orienting National Action Plans AISLING SWAINE*

Abstract As the twentieth anniversary of the women, peace and security (WPS) agenda approaches, one of its most significant challenges has yet to be overcome: that of garnering real investment in the human development and human rights entitlements of women and girls in conflict-affected settings. Implementation has been heavily reliant on planning strategies, namely, National Action Plans on Women Peace and Security (NAPs-WPS) which have fallen short of fulfilling the women’s rights intentions of the agenda. Learning and adaptation from ‘gender planning theory’ employed in the development fields has been curiously absent from planning for WPS. This paper argues that through a move from ‘women in security’ to ‘gender, peace and security’, a ‘gender planning for peace and security’ approach could improve NAPS-WPS. The paper proposes a two-part ‘Gender Interests Analysis’ framework as a conceptual basis for gender planning for peace and security. To illustrate its validity, the framework is used to review existing NAPs-WPS in the Asia-Pacific region. The review of the NAPs-WPS finds that the plans are failing to address some of the most important critical needs of women and girls, are weighting planning towards the planners instead of women and girls, and are failing to ensure that common as well as distinctive and disaggregated interests of diverse groups of women and girls are met. It demonstrates that the use of gender planning frameworks could address such gaps and strengthen overall planning for WPS. The paper concludes by identifying the need for a re-orientation of NAPs-WPS towards the lives of women and girls through the use of gender planning for peace and security. Key Words: Asia-Pacific, Gender Planning, Inclusivity, National Action Plans, Practical and Strategic Interests, Resolution 1325, United Nations Security Council, Women, Peace and Security. ACKNOWLEDGEMENTS

This article draws upon a discussion paper developed for a UN Women and Japan hosted Expert Group Meeting: ‘Asia-Pacific Regional Symposium on National

* Associate Professor of Gender and Security, Department of Gender Studies, London School of Economics and Political Science.

40  The Irish Yearbook of International Law 2018 Action Plans on Women, Peace and Security’, convened in Thailand in July 2016. Thanks to Hanny Cueva-Beteta who provided direction and the statistical analysis for this paper. Much thanks to Carla Silbert for inputs and to Lesli Davis for research assistance. Thank you to all of the participants at the Symposium – your work and expertise guided and informed the final version of this paper. I. INTRODUCTION

G

LOBAL ADVANCEMENTS IN women’s human rights have been significantly shaped and influenced by the divergence that exists between on the one hand, the human rights/development regimes, and on the other, the security regimes of the United Nations system. Fragmentation has characterised these advancements, presenting critical issue-specific possibilities as well as contractions in each regime’s approach to women’s rights through international law and policy.1 The women, peace and security (WPS) agenda inaugurated by United Nations Security Council Resolution 1325 (UNSCR 1325, 2000) perhaps epitomises the opportunities and challenges that arise in the false dichotomy that has emerged between the two.2 Originally conceived as a women’s human rights resolution within the United Nations Security Council (UNSC), UNSCR 1325 (2000) has resulted in significant progress in addressing gender issues in conflict prevention, management and resolution.3 The entrance of women’s rights to the UNSC has however also resulted in significant contractions. Securitised versions of the interests of women have come to supplant that of the human rights and human development frame originally underpinning global legal and policy approaches to gender equality on which the resolution was based.4 As the twentieth anniversary of UNSCR 1325 (2000) approaches, one of its most significant challenges has yet to be overcome: that of garnering real investment in the human development and human rights entitlements of women in conflict-affected settings in a world that is becoming increasingly securitised and militarised. State military expenditures and spending by the UN system on peace keeping, now understood to include the use of force, are increasing, with dwindling resources allocated to women’s rights and development.5 Even though conflicts and peacebuilding interventions are increasingly protracted, a developmental approach, or even coherence between development, humanitarian and peacebuilding interventions, remains a critical gap. As identified by the ‘Global Study’, the 15-year review of the implementation of the WPS agenda in 2015, this has significant impacts for the fulfilment

1  Catherine O’ Rourke and Aisling Swaine, ‘CEDAW and the Security Council: Enhancing Women’s Rights in Conflict’ (2018) 67 International and Comparative Law Quarterly 167. 2  United Nations Security Council, Resolution 1325, S/RES/1325 (2000) (United Nations 2000). 3  Radhika Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council resolution 1325 (2015). 4 Natalie Florea Hudson, ‘Securitizing Women's Rights and Gender Equality’ (2009) 8 Journal of Human Rights 53. 5  Radhika Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council resolution 1325 (2015).

Symposium Issue on Law and Peacekeeping—Swaine 41 of women’s basic human rights. With the changing nature of conflict, insecurity and militarisation span the private and public spheres and women consulted for the study stressed the need for an expansive concept of security that includes ‘securing the well-being of individuals and their communities’ in political, social and economic terms.6 Most significantly, the study found that women and girls affected by conflict experience significant barriers in fulfilment of their very basic needs including shelter, food, health care, sanitation, education, protection, food security, education and livelihoods, as well as broader rights such as participation, asylum and their right to a nationality and statehood.7 These concerns were echoed in the 2015 review of the UN’s peacebuilding work which found that ‘[p]rioritization needs to be given to restoring social infrastructure and to establishing basic social services’,8 and in the review of UN peacekeeping operations which identified the need to ‘promote inclusive social and economic development, overcome systemic gaps and broaden community engagement, with women and youth playing a prominent role.’9 Through the Global Study women in conflict contexts have reminded global actors of the need for attention not just to their broader participation rights, but also to their most basic, practical humanitarian and development needs which remain unfulfilled. Addressing these gaps and re-orienting the agenda back towards women’s micro as well as macro rights should be the focus of the next ‘era’ of the WPS agenda. The opportunity for this lies in implementation of the resolutions. The most populous and promising implementation strategies have been ‘National Action Plans on women, peace and security’ (NAPs-WPS). Adopted by 41 per cent of UN Member States, the plans have become the principal technocratic tool used to advance compliance with the WPS agenda.10 The plans themselves have proved favourable in implementing the WPS agenda. There is evidence that the plans have encouraged broad governmental engagement on WPS; have enhanced understanding of gender concerns in peace and security and have garnered increased activities on these issues at State and multilateral levels.11 The plans are also however significantly lacking in their potential to advance substantive change in women’s lives. There has been a failure to nominate specific budgets for the plans; their potential in not just adding gender and women’s concerns to existing approaches to security, but

6 

ibid 24. ibid 177. 8  Advisory Group of Experts, The Challenge of Sustaining Peace: Report of the Advisory Group of Experts for the 2015 Review of the United Nations Peacebuilding Architecture, 2015) 24. 9  High-Level Independent Panel on Peace Operations, Report of the High-level Independent Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people, A/70/95, S/2015/446 2015) 10. 10  Accurate to time of writing. Of the total, 24 are in the Africa region, 8 in the Americas, 13 in Asia, 3 in Oceania and 33 in Europe. There are also two plans by UN ‘observer’ states Kosovo and Palestine. Aisling Swaine, ‘Globalising Women, Peace and Security: Trends in National Action Plans’ in Salha Aroussi (ed), Rethinking National Action Plans on Women, Peace and Security (IOS Publishing, 2017). 11  Aisling Swaine, ‘Assessing the Potential of National Action Plans to Advance Implementation of United Nations Security Council Resolution 1325’ (2010) 12 Yearbook of International Humanitarian Law 347; Radhika Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council resolution 1325. 7 

42  The Irish Yearbook of International Law 2018 bringing about fundamental change to how it is conceived and addressed has been missed;12 while scholars estimate that plans are falling short of ‘the realization of the transformative objectives of UNSCR1325’.13 There has been little by way of theory and conceptual frameworks underpinning the development of NAPs-WPS, a deficit common to planning strategies across human rights fields.14 These efforts at ‘planning as implementation’ have fallen short of fulfilling the women’s rights intentions of the WPS agenda. ‘Planning’ towards the achievement of gender equality is however not new or unique to the WPS agenda, nor are the challenges faced by these planning strategies exceptional. Similar experiences have been encountered in the development side of the UN system where ‘gender planning theory’ prompted the creation of a range of gender planning instruments used extensively in international development.15 In that field, there exists a deep and broad array of scholarship, policy, practice and most significantly lesson learning available on how State planning towards gender equality can be maximised for the fulfilment of women’s rights. Despite the diffusion of gender mainstreaming from the development across to the UN’s security architecture through the WPS agenda, NAPs-WPS have largely developed in isolation from the learning generated by the preceding and pioneering work of feminists in analogous planning approaches in development fields. As the antecedent to NAPs-WPS, it is curious that there has been very little engagement by proponents of action planning for WPS with the actors who have been planning for gender equality for decades in the development field. Nor is there much evidence of appropriate adaptation of existing gender planning instruments by the security arena. The possible gains that could be made in the security arena by learning from the successes and pitfalls of approaches taken to women’s rights through ‘gender planning for development’ has been diminished as a result. At this 20 year point in time, it may be pertinent to ask, ‘are we witnessing the loss of a strategic framework rather than the creation of one?’16 At stake is a consideration of how relevant tools and learning in one field may be used to progress and tackle some of the gaps and critiques of approaches taken by the other. What could WPS planning strategies used in the security field learn from the gender planning approaches practiced in the human development field? Is there room for more coherence on approaches to the achievement of women’s rights across development and security? Can gender planning for development be adapted to garner a deeper and more transformative framework of gender planning for peace and security?

12  Laura J Shepherd, ‘Making war safe for women? National Action Plans and the militarisation of the Women, Peace and Security agenda’ (2016) 37 International Political Science Review 324. 13 Barbara K Trojanowska, ‘Norm negotiation in the Australian Government’s implementation of UNSCR 1325’ (2018) 73 Australian Journal of International Affairs 29, 5; see also Katarina Lee-Koo, ‘Engaging UNSCR 1325 through Australia’s National Action Plan’ (2016) 37 International Political Science Review 336. 14  Azadeh Chalabi, National Human Rights Action Planning (Oxford University Press, 2018). 15  Caroline ON Moser, Gender Planning and Development: Theory, Practice and Training (Routledge, 1993). 16  David Chandler, ‘The security–development nexus and the rise of “anti-foreign policy”’ (2007) 10 Journal of International Relations and Development 362, 364.

Symposium Issue on Law and Peacekeeping—Swaine 43 This paper takes forward a consideration of these questions. It initiates a new inquiry into whether and how gender planning theory could address the current deficits in fulfilling women’s basic as well as more strategic rights that characterise planning for WPS. It first presents an overview of gender planning in the development field, offering a critical assessment of its relevance to implementation of the WPS agenda. Through arguing for a gender planning for peace and security approach, the paper establishes a new and unique planning tool, the Gender Interests Analysis framework which draws from but adapts existing gender planning tools to the peace and security field. To test its relevance and utility, the framework is applied to the nine existing Asia-Pacific NAPs-WPS. A critical analysis of the plans through the GIA framework demonstrates that NAPs-WPS require re-orientation towards fulfilling women and girls’ specific needs and interests if UNSCR 1325 is to be fully implemented. On the basis of the findings of the review, the article concludes by setting out some critical considerations for taking forward a ‘gender planning for peace and security’ framework with the aim of improving current planning through NAPs-WPS. II.  GENDER PLANNING FOR DEVELOPMENT

Feminist scholars and activists established an entire field of critique of global approaches to international development, exposing and challenging assumptions that development would have beneficial effects for women.17 Originally, a ‘women in development’ (WID) approach was espoused to address the exclusions women faced in international development. Critiques of this approach identified that focusing on women in isolation from their social context served to instrumentalise women’s lives towards economic development ends, leaving social inequalities intact.18 This realisation prompted a shift towards ‘gender and development’ (GAD), an approach that emerged from feminist socialist critiques of WID.19 GAD advanced development methods addressing the social context to gender relations, norms and hierarchies at the root of the gender and identity-based inequalities and exclusions women experienced.20 Women should be agents of their own empowerment and development, rather than recipients of aid per the WID approach. GAD placed the tackling of gender inequalities as a prerequisite for any gains made through international development.

17 Anne-Marie Goetz, ‘Institutionaizing Women's Interests and Accountability to Women in Development’ (1995) 26 IDS Bulletin 1; Maxine Molyneux and Andrea Cornwall, ‘The Politics of Rights: Dilemmas for Feminist Praxis: An Introduction’ in Maxine Molyneux Andrea Cornwall (ed), The Politics of Rights: Dilemmas for Feminist Praxis (Routledge, 2008); United Nations, Report of the World Conference of International Women’s Year, E/CONF.66/34 (United Nations 1975). 18  Razavi Shahrashoub and Carol Miller, From WID to GAD: Conceptual Shifts in the Women and Development Discourse, (1995). 19 Andrea Brown, ‘WID and GAD in Dar es Salaam, Tanzania: Reappraising Gender Planning Approaches in Theory and Practice’ (2006) 2 Journal of Women, Politics and Policy 57. 20  Ester Boserup, Woman’s Role in Economic Development (St Martin’s Press, 1970); Naila Kabeer, Reversed Realities: Gender Hierarchies in Development Thought (Verso, 1994).

44  The Irish Yearbook of International Law 2018 At its height in the 1990s, advocates, activists and scholars advanced a broad array of policy tools aimed at re-orienting international development (primarily focused on economic and structural adjustment policies) towards the achievement of gender equality through GAD approaches.21 Drawing upon the work of urban planners who had identified that planning was not done in isolation from their political contexts,22 but was ‘operating in a field of power and inequality,’ ‘gender planning theory’ for development emerged.23 Gender planning ‘… was based on the premise that women and gender were marginalised in planning theory and practice’ and aimed to unmask the hidden biases inherent in international development.24 It became an ‘approach to development planning which is based on an explicit recognition of the unequal gender relations between women and men in society, which are justified by symbolic codes, normative concepts and institutionalized practices’.25 It identified that men and women play differing gendered roles, often hold differing formal rights, and as a result, at household, broader community and societal levels, will have differing and specific gendered needs. The most populous tools ‘The Harvard Analytical Framework,’ the ‘Capacities and Vulnerabilities Analysis,’ the ‘Practical and Strategic Needs Analysis’ and the ‘Longwe Hierarchy of Needs’ all provide differing methods towards the same goal of generating equitable development programming.26 The tools are used to develop a ‘gender analysis’ to generate understanding of men and women’s social, political and economic status in a given context. Through the analysis, their differing needs, access to and control over resources and gaps in parity in productive, reproductive and community-level roles are identified. This analysis should then inform development policy, planning and programming with specific initiatives to address gender disparities and advance women’s empowerment. Gender planning theory and the associated tools are not without critique. Feminists have critiqued the neutering of the radical feminist politics originally underpinning engagement with development. Deeply political concepts such as gender and sexuality are coopted and institutionalised within planning strategies.27 Despite efforts at consultation, in the end the reality is that women’s lives become mediated and bargained through the planning process, with the methodology determining the discursive value and content of women’s lives, and often some women’s lives over others.28

21  Diane Elson, ‘From survival strategies to transformation strategies: women’s needs and structural adjustment’ in S Feldman and L Beneria (ed), Unequal Burden: Economic Crises, Persistent Poverty and Women’s Work (Westview Press, 1992); Noeleen Heyzer, Gender Issues in Development Analysis, Policy and Planning: Experiences from Asia and the Pacific (1992). 22  John Friedman, Insurgencies: Essays in Planning Theory (Routledge, 2011). 23  Lisa J Servon and Susan S Fainstein, ‘Introduction: The Intersection of Gender and Planning’ in Lisa J Servon and Susan S Fainstein (ed), Gender Planning: A Reader (Rutgers University Press, 2005) 2. 24  Caroline ON Moser, Gender Planning and Development: Revisiting, Deconstructing and Reflecting (University College London, DPU60 Working Paper Series: Reflections NO 165/60, 2014) 9. 25  Saskia E Wieringa, ‘Rethinking Gender Planning: A Critical Discussion of the Use of the Concept of Gender’ (1998) 2 Gender, Technology and Development 349, 351. 26  Candida March, Ines Smyth and Maitrayee Mukhopadhyay, A Guide to Gender Analysis Frameworks (1999). 27  Saskia E Wieringa, ‘Rethinking Gender Planning: A Critical Discussion of the Use of the Concept of Gender'. 28  Ibid; Catherine Locke and Christine Okali, ‘Analysing Changing Gender Relations: Methodological Challenges for Gender Planning’ (1999) 9 Development in Practice 274.

Symposium Issue on Law and Peacekeeping—Swaine 45 Planning methods, decisions and content are far from neutral as they are subject to the system and actors that produce the plans.29 While the move from WID to GAD prompted transformative approaches in development (with varying results), and the gender planning tools that emerged are far from ideal (as discussed), it is pertinent to consider whether the conceptual and practical advances made in that field could aid learning and opportunity in addressing the critiques and gaps attached to the planning that has taken place through the WPS agenda. III.  GENDER PLANNING FOR PEACE AND SECURITY

It is striking to observe that the WPS agenda has evolved along a very similar trajectory and is experiencing the same challenges encountered in the development field. ‘Women, peace and security’ is a focus on women, a ‘women in security’ (WIS) approach. Gender remains hidden in an agenda that originally aimed to advance gender mainstreaming and women’s rights in the security fields.30 The resulting ‘more compromised programme’31 in which the original feminist underpinnings of the agenda are replaced by the instrumentalist and securitised cooption of ‘women’, has prompted a debate on the merits of a move towards ‘gender, peace and security’ (GPAS).32 As an emerging concept, GPAS faces similar challenges to those in the development field. GPAS requires approaches that go beyond the ‘safe’ interpretations of gender currently permitted by the security system and thus beyond being a ‘problem solving tool, which does not challenge prevailing practices in armed conflict, peace and security’.33 For GPAS to advance, a critical challenge is overcoming the development-security schism in both mindset as well as practice, so that the original human rights and radical feminist intent of the agenda which began in the development arena, remain to the fore. Drawing from, adapting or simply learning lessons from the success and failures of GAD approaches to gender planning are arguably a critical part of this. Currently, in the security field, NAP-WPS are essentially the planning tools of the WPS agenda. NAPs-WPS enable Member States to plan for actions to fulfill the WPS agenda. NAPs-WPS are premised on the fundamental assumption that an ‘action plan,’

29 

Caroline ON Moser, Gender Planning and Development: Theory, Practice and Training. Cohn, ‘Mainstreaming Gender in UN Security Policy: A Path to Political Transformation?’ Working Paper No. 204/2004, Consortium on Gender, Security and Human Rights. 31 Paul Kirby and Laura J Shepherd, ‘The Futures Past of the Women, Peace and Security agenda’ (2016) 92 International Affairs 373, 392. 32 Nicola Pratt, ‘Reconceptualizing Gender, Reinscribing Racial–Sexual Boundaries in International Security: The Case of UN Security Council Resolution 1325 on “Women, Peace and Security”’ (2013) 57 International Studies Quarterly 772; Maria Jansson and Maud Eduards, ‘The politics of gender in the UN Security Council resolutions on women, peace and security’ (2016) 18 International Feminist Journal of Politics 590. 33  Sandra Whitworth, Men, Militarism & UN Peacekeeping: A Gendered Analysis (Lynne Rienner, 2004) 139. 30  Carol

46  The Irish Yearbook of International Law 2018 that is a matrix of actions and activities deriving from and responding to an existing policy (ie, the WPS resolutions) will bring about transformative changes to women and girl’s lives. This assumption misses recognition that just like in the development field where it remains the case that ‘in practice WID-type programs d ­ ominate, particularly for poor women’, so too, instrumentalist approaches that ‘add women’ to existing security and peacebuilding policies, that is WIS approaches, ­prevail.34 NAPs-WPS are critical to advancing State engagement and implementation of ­ the WPS agenda. The plans are however not (yet) the ‘antidote’ to current gaps in women’s rights and empowerment in the peace and security field.35 Nor most importantly, are they currently addressing gaps in implementation that move the WPS agenda beyond WIS approaches. Moving from NAPs-WPS based on WIS, to a ‘­gender planning for peace and security’ approach that tackles inequalities that create the need for the WPS agenda in the first place is what is needed. Such an approach could build on what has been achieved to date but, like gender planning under GAD, would ­‘differ[…] fundamentally’ from current planning approaches.36 A. Tools for Gender Planning for Peace and Security: Gender Interests and Inclusivity Analysis Of the range of gender planning frameworks available from the development field, the ‘gender needs analysis’ tool is potentially the most useful in moving NAPs-WPS towards planning for GPAS. Based on an analysis of the potential for women’s emancipation during the Nicaraguan revolution, Maxine Molyneux established a binary gender interests framework: ‘Strategic gender interests’ are ‘derived from the analysis of women’s subordination and from the formulation of an alternative, more satisfactory set of arrangements to those which exist’; and ‘Practical gender interests’, ‘are generally a response to an immediate perceived need and they do not generally entail a strategic goal such as women’s emancipation or gender equality’.37 Molyneux identified that a policy approach grounded in ‘women’s interests’ is reductive as women are not a monolith category and their interests are ‘multi-causal’.38 While she critiques assumptions that ‘gender is the principal determinant of women’s interests’ or that all women have the same interests, an approach grounded in ‘gender interests’ identifies that women’s gendered and other social positioning can determine some common interests.39 The framework is a means for assessing and generating a State’s response towards women’s common gendered interests.

34 Andrea Brown, ‘WID and GAD in Dar es Salaam, Tanzania: Reappraising Gender Planning Approaches in Theory and Practice’ 58. 35  Aisling Swaine, ‘Assessing the Potential of National Action Plans to Advance Implementation of United Nations Security Council Resolution 1325 ‘ 419. 36  Caroline ON Moser, Gender Planning and Development: Theory, Practice and Training 3. 37  Maxine Molyneux, ‘Mobilization Without Emancipation? Women’s Interests, the State and Revolution in Nicaragua’ (1985) 11 Feminist Studies 227, 232–33. 38  ibid 231. 39 ibid.

Symposium Issue on Law and Peacekeeping—Swaine 47 Hugely influential to gender planning theory, theorists shifted the framework towards the idea of ‘gender needs’, making it relevant to development practices.40 The widely used ‘Gender Needs Analysis’ framework sets out ‘strategic gender needs’ and ‘practical gender needs’ for planning purposes. For example, ‘strategic gender needs’ are those that arise from women’s subordination, and planning interventions would include reform of discriminatory legislation; while ‘practical gender needs’ are basic human needs, and planning interventions would centre on provision of basic services and tailored access to resources for daily survival. Importantly for planning, categories of ‘need’ are not ‘distinctive or exclusive, but often overlap and interventions should aim to address the relationship between the two’.41 The Gender Needs Analysis tool is of course far from perfect. Conceptually, the binary categories have been critiqued for essentially delimiting issues in women’s lives in static ways (although some of the fault lies with planners’ lack of ability to engage the conceptual basis and relationship between the two) and failing to capture the subtleties of the bargaining that takes place within micro and macro gender relations.42 Further, social contexts change, a reality particularly pertinent in a fastmoving and undulating armed conflict and movement of affected populations. Practically, complex inequalities and discriminations are not linear or excusive in nature and the itemised listing of major concerns in women’s lives, such as access to food and shelter, or lack of access to identity rights, can be reductive and possibly detract from the politics of addressing institutionalised forms of discrimination.43 Adaptation of this tool for the purposes of planning for GPAS thereby requires deeper attention to context, social complexities and intersecting power and identities. A Gender Interests Analysis framework made up of two parts is proposed here. The framework attempts to overcome some of the deficits inherent in the original tools. It also attempts to advance a conceptual basis for NAPs-WPS towards addressing the dynamic of inequalities in women’s lives, which has been missing to date in planning for WPS: i.  Gender Interests Analysis Framework A Gender Interests Analysis (GIA) tool for peace and security identifies the practical and strategic gender interests of women and girls that arise as a result of the patriarchal and militarised system in which global peace and security concerns emerge. Adapted from the ‘Gender Needs Analysis’ tool used in development policy and planning,44 the term ‘interests’ is used to denote a deeper engagement with the rights 40  Kate Young, ‘Introduction: Reflections on Meeting Women’s Needs’ in Kate Young (ed), Women and Economic Development: Local, Regional and National Planning Strategies (Berg/UNESCO 1988); Caroline ON Moser, ‘Gender Planning in the Third World: Meeting Practical and Strategic Gender Needs’ (1989) 17 World Development 1799. 41  Caroline ON Moser, ‘Gender Planning in the Third World: Meeting Practical and Strategic Gender Needs’ 1802–03. 42  Catherine Locke, ‘Analysing Changing Gender Relations: Methodological Challenges for Gender Planning’ 282, citing D Eade and S Williams, The Oxfam Handbook of Development and Relief (Oxfam, 1995). 43  Saskia E Wieringa, ‘Rethinking Gender Planning: A Critical Discussion of the Use of the Concept of Gender’ 362, 359. 44  Caroline ON Moser, Gender Planning and Development: Theory, Practice and Training.

48  The Irish Yearbook of International Law 2018 concerns of women and provides for a connective concept between fulfilment of basic practical human need as well as more strategic rights. Further, while ‘practical gender needs’ per the Molyneux and GAD tools are estimated to lack strategic intent, here the fulfilment of women’s practical everyday needs are understood as having strategic intent. Without fulfilment of basic survival needs, women’s ability to reach beyond poverty to the strategic rights arena, and fulfilment of the participation pillar of the WPS agenda is stymied. The relationship between practical and strategic interests must be addressed if the WPS agenda is to be fully implemented. The GIA tool is used to identify the practical and strategic gendered interests that arise in a specific context and that should then be addressed through planning. It aids planners in identifying whether and how the design of their planning is adequately responding to the practical or strategic gendered interests or both (or indeed none) as expressed by women and girls. It may be used to both plan policy and programming, as well as assess whether and how planning, policy and programming has addressed practical and strategic gender interests. For the purposes of illustration, Table 1 provides a non-exhaustive example of the kinds of issues that might be identified through use of the framework and that may be included in action plans. Table 1:  Gender Interests Analysis Framework: Example of Practical and Strategic Gender Interests analysis for a conflict situation PRACTICAL NEEDS

STRATEGIC NEEDS

DIMENSION 1: Basic Life Needs in crisis, displacement, recovery and post-conflict Access to food items – water, food

Decision-making role and power in household use of resources and provisions

Access to non-food items – adequate shelter, basic material goods such as clothing, cooking instruments

Decision-making role and power in design and delivery of humanitarian and peacebuilding programming Gender and intersectional policies implemented in humanitarian aid and peacebuilding

DIMENSION 2: Basic Services and Rights (eg health, education) in crisis, displacement, recovery and post-conflict Access to health and reproductive health care services

Guarantee of reproductive rights; provision of sexual and reproductive rights services (eg for rape, fistula); access to abortion services within displacement and post-conflict contexts Completion of education; linkages to fair and equal employment opportunities

Access to public transport

Safe mobility rights guaranteed in public transport

DDR programmes include women

DDR programmes are tailored to guarantee the rights entitlements of women and girl ex-combatants (continued)

Symposium Issue on Law and Peacekeeping—Swaine 49 PRACTICAL NEEDS

STRATEGIC NEEDS

DIMENSION 3: Livelihoods, Income Generation Needs, Economic Independence and Entrepreneurship Opportunities in crisis, displacement, recovery and post-conflict Access to income generating opportunities

Sustainable independent livelihood specifically designed for women and girls during and post-conflict

Access to micro-credit schemes

Strategies to ensure equal pay and fair remuneration, equal opportunity in the formal work sphere

Access to State welfare and development programming

Specific policies ensure equal opportunities and address disparities in access to formal employment

Access to tailored livelihoods support for women and girl ex-combatants, widows, lone heads of households

Changes to macro-economic systems towards more equitable ways and means of production Decision-making power within national development initiatives Right to inheritance of resources – land, material resources etc.

DIMENSION 4: Formal Rights Guarantees in crisis, displacement, recovery and post-conflict Reform of discriminatory legislation and policy that disadvantages women and girls Right to identity cards for women and girls, including children born of rape Laws, policies and subsidy of child care provision Laws and policies re-distributing the burden of care and specifically the added burden of caring for those impacted by conflict, returning family and community members etc. Equal participation rights in political fora, decision-making power and influence over public-sphere systems (eg peacekeeping; transitional administrations; elections; decision-making bodies interfacing with the international community) Inclusion of gender inequality issues, including violence against women, in processes to deal with the past and in peacebuilding measures Laws and policies regulating equitable representation of women in public media (continued)

50  The Irish Yearbook of International Law 2018 PRACTICAL NEEDS

STRATEGIC NEEDS Women’s broader contributions to conflict/liberation struggles recognised and status of veteran/combatant and associated benefits conferred on an equitable and tailored basis Reparation specifically tailored to women and girls and to survivors of sexual violence Specific rights of women with children born of rape fulfilled to those children

DIMENSION 5: Protection Rights and Needs in crisis, displacement, recovery and post-conflict

Services to respond to violence Adoption of laws and policies to guarantee lives free of violence, to prosecute and to prevent against women and girls violence against women and girls

Provisions to ensure multi-sectoral strategic rights-based responses through the justice and security chain included in peacebuilding reforms Specific actions tailored to prevent sexual violence by armed actors Measures to protect and prevent SEA by international actors, protection from trafficking in displacement camps

Inter-relationship between practical and strategic gender interests

The GIA tool may be methodologically adapted to conflict and peacebuilding contexts by planners through ensuring that all analysis and resulting planning is based on: gender and intersectional analysis of conflict, including the social, political and economic factors that influence gender roles, norms and relations in undulating conflicts;45 analysis of women and girl’s socio-cultural location, including the impacts of forced displacement; analysis of gendered risks and vulnerabilities, particularly with the arrival of new powerholders such as military, humanitarian and peacekeeping actors (planners should recognise that women are not ‘vulnerable’ in and of themselves, rather arising conditions and contextual inequalities such as gender, inter-ethnic relations and disabilities, induce differing and diverse vul-

45 See eg UN Women, Policy Briefing Paper Gender and Conflict Analysis (2012); UNDP, Conflict-Related Development Analysis (2003).

Symposium Issue on Law and Peacekeeping—Swaine 51 nerabilities that will mutate as political contexts shift and require engagement in planning); identification of specific arising gender inequalities as relevant to context (eg, conflict-related violence against women (CRVAW)). ii.  Gender Planning for Peace and Security Inclusivity Analysis An Inclusivity Analysis is critical to ensure that the GIA framework and resulting planning goes beyond responding to an assumed homogenous population of ‘women and girls’. Planning is instead tailored to ensure it fulfills a two-track approach: actions in the plan address common gendered interests per the above framework; and actions in the plan are also disaggregated to interests of specific groups. Gender planning for peace and security ‘recognizes that gender is simply one axis of difference, which intersects with many other forms of identity and experience’.46 Inclusivity Analysis and resulting ‘Inclusive Planning’ responds to multiple and layered discriminations including gendered identities, sexualities, age, ethnicity, race, disability, political and religious affiliation, economic and marital status. These characteristics are ascribed social values in differing contexts, determining women and girl’s lived experiences of inequalities before conflict, which may mutate and become hyper-politicised during and after conflict. In addition, specific iterations of stigmas and victimhood that are generated through the events of a conflict, and the multiplier effect they have on women and girls’ status and vulnerabilities, requires empirical understanding and a response through planning. The specific axes are identified for each specific context on the basis of consultation with women. The resulting Inclusivity Analysis generates actions tailored to the distinctive interests of some women (while also addressing the common gendered interests of many per above). Consultation with diverse groups of women and girls to generate a true inclusivity analysis is essential to gender planning for peace and security that is nimble and responsive to the specificities of women and girl’s lives. A NAP-WPS is thereby a planning framework that addresses the common and disaggregated interests of women and girls and which directly engages with key barriers and structural constraints to multiple and layered inequalities. IV.  APPLYING THE FRAMEWORK: A CRITICAL REVIEW OF ASIA-PACIFIC NAPS-WPS

The GIA framework can be used to inform planning processes and the development of NAPs-WPS. Here it is applied to critically assess current planning approaches in order to demonstrate how the tools can bring overall improvements to NAPs-WPS and advance gender planning for peace and security.

46  The diversity of women, women’s views, their experiences and potential contributions to conflict management and peacebuilding is set out clearly in the Global Study and this framework attempts to respond to this: see Radhika Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council resolution 1325 34.

52  The Irish Yearbook of International Law 2018 A. Methodology The GIA framework was applied to the nine existing Asia Pacific NAPs-WPS.47 The framework was used to review whether: (i) the planned actions in each of the plans met an assumed threshold of practical or strategic gender interests, and (ii) the nine Asia-Pacific NAPs-WPS are engaging with the demographic diversity of the populations the planning is serving (inclusivity approach through planning). Specifically, the review sought to identify whether and how the plans fulfill the rights, interests and wellbeing of differing women and girls per UNSCR 1325. The following questions framed the review of the plans: —— What are Asia Pacific NAPs-WPS specifically planning for? —— Are these NAPs-WPS designed and actions planned to meet the rights, interests and wellbeing of women and girls on an inclusive basis? —— How are NAPs-WPS responding to the aims of UNSCR 1325 in advancing women and girls’ practical and strategic gendered interests? Are NAPs-WPS contributing to the full implementation of UNSCR 1325? i.  Gender Interests Analysis Methodology Each of the action matrices for each NAP-WPS was reviewed against the Gender Interests Analysis framework (see Table 2 below). A textual analysis of each of the plans was undertaken and the actions within each plan were categorised according to whether they fit the broad definition of practical or strategic gender interests, or both, per the framework. ii.  Inclusivity Analysis Methodology A textual analysis of each of the narratives and action matrices of each NAP-WPS was undertaken to ‘map’ and identify ‘who’ appears as subject to the plans. The Inclusivity Analysis examined whether NAPs-WPS include reference to differing identities of women and how these are situated in respect to planning. It assessed inclusivity in the plans through two lenses: —— social and physical identity factors and characteristics of individual ­people and social groups including ethno-national identities, age, bodily ability,

47  At the time of the data analysis there were nine NAPs-WPS: Afghanistan (2015), Australia (2012), Indonesia (2014), Japan (2015), Nepal (2011), New Zealand (2015), the Philippines (2010), the Republic of Korea and Timor-Leste (2016). All nine NAPs-WPS have involved civil society in their development and implementation, albeit to varying degrees. Among these are NAPs-WPS that are inward and domestically focussed, and acknowledge the experience of armed conflicts within their own borders (Afghanistan, Indonesia, Nepal, the Philippines and Timor-Leste); have both an inward focus on internal conflicts and disasters and outward looking focus (Japan and Republic of Korea); and are largely externally focused through peacekeeping operations and multilateral advocacy (Australia and New Zealand). These reflect the range of NAPs-WPS globally and test the validity of the GIA tool to various kinds of plans.

Symposium Issue on Law and Peacekeeping—Swaine 53 sexualities etc. which through their intersection with gender and each other, may privilege or de-privilege depending on social context; —— public professional roles and identity attributions (eg public professional roles, titles, such as politician, community leader, police officer) that are attributed (in positive and/or negative ways) to women and girls in respect of the role of NAPs-WPS to advance agency and women’s participation. The textual analysis method reviews the written content of the NAP-WPS only, that is the analysis takes place at the level of the document only. Further analysis of implementation of stated actions and their impact was not undertaken and the review therefore cannot assess what generalised statements of action actually come to mean in practice. This limits the scope of the analysis to the document itself. While this is limited, it is in line with the assessing the ‘gender planning’ that is made for peace and security initiatives and offers insight into what the planning documents themselves are saying and doing, that is what they are planning for. The analysis is further limited by being applied by an external actor, that is the researcher. Not only will women and girls define their needs and interests in different ways in response to context, space and time, they may also arrange them in differing kinds of priorities and hierarchies, responsive to their own identities, lives and to historical injustices.48 A planning process using the GIA should be based on women’s own identification of their interests and priorities and how they may rank them. B.  General Findings The review of the action matrices of the Asia-Pacific NAPs shows that the nine plans have an average of 52 actions, which range from 24 to 107 actions across the plans. Actions that can be categorised as addressing the Practical and/or Strategic Gender Interests of women and girls are found across all nine NAPs-WPS. The plans vary significantly however, in the balance of Practical versus Strategic Gender Interests evident in the plans. For example, actions meeting the Practical Gender Interests of women and girls accounted for a majority of activities in only one of the nine ­Asia-Pacific plans, Indonesia. The New Zealand plan contained no actions that could be categorised as addressing Practical Gender Interests, while the Australia plan had only one. Actions meeting the Strategic Gender Interests of women and girls formed a majority of activities in two of the nine Asia Pacific NAPs-WPS, that of Afghanistan and Nepal (see Table 2 for examples of how these are categorised). A critical finding was that the plans contained a third ‘category’ of action that did not strictly fit either Practical or Strategic Gender Interests and were not focused on women and girls specifically. These actions focus on the ‘Institutional Interests’ of the planners themselves. These actions address the institutional needs or priorities of the State and include activities such as awareness-raising and capacity-building 48  Saskia E Wieringa, ‘ Women’s Interests and Empowerment: Gender Planning Reconsidered’ (1994) 25 Development and Change 829.

54  The Irish Yearbook of International Law 2018 of staff on gender and the WPS agenda; setting out State intentions to adopt or to create an institutional gender mainstreaming policy; listing of procedural methods for managing the plan itself across government; or an intention to undertake policy dialogue on WPS. These are actions in which the interests of women and girls themselves are not the central actor. The analysis thereby identified a range of substantive (Practical and Strategic Gender Interests) as well as procedural (Institutional Interests) actions within all of the NAPs-WPS. An example of actions across the Asia Pacific NAPs-WPS according to the analytical framework is presented in Table 2. Table 2:  Examples of the application of the GIA to Asia-Pacific NAPs Substantive Practical Interests

Strategic Interests

Procedural Institutional Interests

DIMENSION 1: Basic Life Needs in crisis, displacement, recovery and post-conflict Indonesia NAP:

Japan NAP:

Korea NAP:

Handling programme: No. 8, Goal: Providing decent, safe and gender responsive shelters and housing for women and children in conflict areas.

Goal 3/Action 1: Ensure women’s participation in drawing up plans for humanitarian and reconstruction assistance.

D. Relief and Recovery/Strategy 10.1 Integrate gender perspectives in ODA project policies and programmes/Action: Lay a foundation for gender mainstreaming in ODA policies and programmes through the implementation of gender mainstreaming guidelines, establishment of strategies on gender-equitable development cooperation and formulation of principles on the promotion of gender equality and empowerment of women regarding KOICA projects.

Action 1. Facilitating and decent, safe and responsive gender shelter and housing for women and children in conflict areas/Action 2. Clean water supply and sanitation for women and children.

DIMENSION 2: Basic Services and Rights (eg health, education) in crisis, displacement, recovery and post-conflict Timor-Leste NAP:

Afghanistan NAP:

New Zealand NAP:

3.3/3.3.1/(a). Service for counselling and access to health treatment, for those in situations of separation/war trauma; (b). Support for access to credit and agricultural equipment and for income management.

Objective 3/2: Situation of women in detention facilities is improved and women detainees are protected from all types of violence and discrimination.

IV. Peacebuilding, Relief and Recovery 1. New Zealand will advocate at international fora for equality of access to resources, justice at the domestic and international level, and basic services for women and girls in peacebuilding, relief and recovery phases in conflicted affected countries. This may include access to gender specific medical, psychological and other assistance required by women and girls affected in armed conflict. (continued)

Symposium Issue on Law and Peacekeeping—Swaine 55 Substantive Practical Interests

Strategic Interests

Procedural Institutional Interests

DIMENSION 3: Livelihoods, Income Generation Needs, Economic Independence and Entrepreneurship Opportunities in crisis, displacement, recovery and post-conflict Indonesia NAP:

Nepal NAP:

New Zealand NAP:

Empowerment and participation programme/2/Activities 2. Provide training on productive economic undertaking/ trade for women in conflict areas.

7.3.4/10. Provide seed money or interest-free loans to conflictaffected women and girls who have received training or apprenticeship for income generation

III Protection/1. New Zealand will advocate at international fora to strengthen and amplify efforts to protect the human rights of women and girls, and ensure their physical and economic well-being, particularly their protection from sexual and genderbased violence in fragile, conflict and post conflict situations, their protection as civilians under international law and recognition of the impact on women and girls when family members go missing as a result of hostilities.

DIMENSION 4: Formal Rights Guarantees in crisis, displacement, recovery and post-conflict Timor-Leste NAP:

Nepal NAP:

1.4/1.4.2. Take measures to increase numbers of women recruited as Coordinators, Mediators and Focal Points for conflict prevention at municipal levels.

Capacity Development, Monitoring and Reporting/Result Statement 17.1 Institutional capacity of government agencies involved in the implementation of the NAP is strengthened.

DIMENSION 5: Protection Rights and Needs in crisis, displacement, recovery and post-conflict Korea NAP:

Philippines NAP:

Australia NAP:

C. Protection/7. Continue to support so-called ‘comfort women’ victims: livelihood support, nursing care, medical treatment for their mental health.

5.2 Laws regulating possession of small arms are enacted and enforced.

Strategy 1/1.2 Develop guidelines for the protection of civilians, including women and girls.

5.3.1 An improved system for registration of small arms, which includes legitimate neuro exams, seminar and orientation on HR and women’s rights for gun owners.

56  The Irish Yearbook of International Law 2018 Actions meeting the Institutional Interests of States formed a majority of activities planned for in six of the nine NAPs-WPS (Australia, Japan, Republic of Korea, New Zealand, the Philippines and Timor-Leste). Working under the assumption that all ‘actions’ are equally important, the analysis demonstrates that on average, 52 per cent (over half) of all actions across the plans were dedicated to Institutional Interests of the planners. Approximately 35 per cent were dedicated to Strategic Gender Interests, while 13 per cent focused on Practical Gender Interests. The majority of actions across these nine NAPs-WPS are directed towards the State and institutional actors themselves. This breakdown is presented in Figure 1 below. Figure 1:  Proportion of Practical, Strategic and Institutional Interests across Asia-Pacific NAPs-WPS

STRATEGIC, 35%

INSTITUTIONAL, 52%

PRACTICAL, 13%

Overall, the degree to which the specific rights and interests of women and girls, as seen through whether and how the plans included actions focused on their Practical and Strategic Gender Interests, varied across the nine NAPs-WPS. States that have experienced conflict, for example, Afghanistan, Indonesia, Nepal, the Philippines, and Timor-Leste, tended to have more actions directly focused on women and girls. States whose plans are based in foreign policy (Australia, Japan, Republic of Korea, and New Zealand) tend to focus on developing institutional capacity to address WPS issues and to advance these through foreign policy, aid and policy dialogues. Notably, Japan (eg, disaster response) and Republic of Korea (eg, comfort women) housed actions that were both domestically as well as foreign policy focused. Overall, eight of the nine countries dedicated 15 per cent or less of the plan’s actions to Practical Gender Interests, with the exception of Indonesia where 46 per cent of actions were dedicated to these. Over half of the countries (five) dedicated more than 60 per cent of their actions to Institutional Interests. Three countries dedicated between 27 per cent and 48 per cent (Indonesia, Nepal and Japan) and only one dedicated less than 15 per cent (Afghanistan, with 14 per cent) to their own interests. This analysis is demonstrated in Figure 2 below.

Symposium Issue on Law and Peacekeeping—Swaine 57 Figure 2:  Distribution of Practical, Strategic and Institutional Interests across NAPs-WPS by country 120%

100% 27%

39%

14%

48%

68%

65%

62%

64%

33%

32%

83%

72%

80% 27% 60%

46% 40%

40%

46% 27%

22% 20%

17%

D AN

LI

AL

RA N

EW

ZE

ST

RO M

0%

A

E LE

PI IP

STRATEGIC

4%

ST

ES N

RE KO PF P.

RE PRACTICAL

8%

A

N JA

IS AN H G

PA

N TA

AL EP N AF

IN

D

O

N

ES

IA

0%

5%

AU

10%

TI

12%

IL

14%

PH

15%

INSTITUTIONAL

Disaggregation of the ‘subjects’ of the plan to advance inclusion and diversity varies across the NAPs-WPS. It also varies in respect of whether disaggregation appears in the general narrative of the action plan, or in the specific actions included in the matrices, or both. More often, references to differing women and girls appear in the narrative rather than in the action matrix of the plan. The narratives of the Australia and Japan NAP-WPS were the only ones to specifically name the need for inclusive intersectional approaches to planning. The Australia plan for example noted that ‘[w]omen and girls are not a homogenous group’ and nominated the need to address variant identities.49 The Japan plan noted that it ‘should be implemented with due consideration given to the diverse and unique needs and vulnerabilities of groups such as refugees and internally displaced people due to armed conflicts and heightened tensions; ethnic, religious, or linguistic minorities; people with disabilities; senior citizens; unaccompanied minors; single mothers; Lesbian, Gay, Transgender (LGBT) persons etc’.50 There was however some evaporation of mention of specific demographics of women in the action matrices themselves of these plans.

49  Housing Department of Families, Community Services and Indigenous Affairs, Australian National Action Plan on Women, Peace and Security 2012–2018 (2012) 6. 50  Ministry of Foreign Affairs, National Action Plan on Women, Peace and Security (2015) 5.

58  The Irish Yearbook of International Law 2018 In terms of social and physical identity factors and characteristics, the analysis found that: —— Women with ‘disabilities’ were referenced in the narratives of the Australia, Japan and Nepal NAPs-WPS, while included in the action matrix of the ­Timor-Leste plan.51 —— References to specific ‘ethnic minorities’ featured in the Philippines plan.52 —— ‘Age’ featured in the Timor-Leste NAP which referenced the specific targeting of older women in recent violence,53 while Japan mentioned ‘senior citizens’ in its reference to the need for inclusivity in its NAP.54 A significant gap across all NAPs was attention to youth. The Indonesian plan was the only one that contained a specific action on ‘teenagers.’55 —— Reference to ‘LGBT’ was only included in the narrative of the Japan plan framing the Conflict Prevention and Protection pillars of the plan.56 In terms of public professional roles and identity attributions, the analysis found that: —— ‘Women experts’ are mentioned in the Australia NAP;57 and women as ‘activists’ are mentioned in the Philippines58 and Timor-Leste NAP.59 —— Women as ‘peace promoters, ‘builders,’ ‘negotiators,’ ‘stewards of peace’ feature in the Philippines and Timor-Leste NAP narratives.60

51  Ministry of the Interior, National Action Plan United Nations Security Council Resolution 1325 on Women, Peace and Security (2016): ‘Pillar IV Peacebuilding – Specific Activities 4.3.2. Implementation of CAVR and CVA’s recommendations including monitoring in relation to women’s rights including women victims of sexual violence and people with disabilities particularly victims of the war’ 48. 52 Government of Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016 (2009) Matrix: Purpose 1/Action Point 1: ‘Review policies, legislations and practices that impinge on the security of women, especially IP and Moro women’ 9; Philippines NAP, ‘Matrix: Purpose 2/Action Point 10: ensuring the participation of IP/Moro women in strategies to advance women’s participation’ 17. 53 Interior, National Action Plan United Nations Security Council Resolution 1325 on Women, Peace and Security 18. 54 Affairs, National Action Plan on Women, Peace and Security 5. 55  Minister of People’s Welfare, The National Action Plans for the Protection and Empowerment of Women and Children During Social Conflicts of 2014–2019 (2014) 32. 56 Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016. See eg ‘III Protection: An overwhelming majority of victims of gender-based violence are women and girls, although men, boys, and LGBT persons are also victimized and their cases are even less reported and even harder to deal with’ 17. 57 Department of Families, Australian National Action Plan on Women, Peace and Security 2012–2018, ‘Support women experts, special envoys, commanders and high- ranking officials to promote a high-level consideration of gender issues in fragile, conflict and /or post-conflict settings’ 24. 58 Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016: ‘Increase the number of women peace and women’s rights advocates in peace panels, peace keeping operations and in other peace bodies at local and national levels’ 17. 59 Interior, National Action Plan United Nations Security Council Resolution 1325 on Women, Peace and Security 17. 60 Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016 5, 8; Interior, National Action Plan United Nations Security Council Resolution 1325 on Women, Peace and Security 19, 38, 40.

Symposium Issue on Law and Peacekeeping—Swaine 59 —— Women ‘judges, lawyers, prosecutors and public defenders’ featured in actions to increase numbers of women in these roles in the Timor-Leste plan.61 —— ‘Women combatants’ and ‘fighters’ appear in the Australia, Nepal, Philippines and Timor-Leste plan, which are largely tokenistic references to the idea that women are not just victims but may also play violent roles. The Philippines however includes an action point to ‘Address special needs of women and girls formerly involved in armed conflicts and their families’ in its action matrix,62 as does Nepal.63 —— ‘Detainees’ were mentioned in Afghanistan;64 while in the Timor-Leste plan, an action to advocate recognition and reparation for women who are ‘former political prisoners’ is included in the action matrix.65 —— ‘Single mothers’ were mentioned in the Japan narrative with specific actions referencing ‘female headed households’ included in the Japan action matrix; ‘single women’ were included in the Nepal NAP narrative which referred to programmes specifically for these women (but they did not appear in the action matrix); specific harms recently impacting ‘unmarried mothers’ were mentioned in the Timor-Leste NAP narrative without any corresponding action; —— Women ‘IDPs and refugees’ feature in six of the nine NAPs (Afghanistan, Japan, Republic of Korea, Nepal, Philippines, Timor-Leste). —— Men and boys appeared in two different ways across the NAPs: First, a collective reference to ‘men and women’ as population appeared within narratives that framed the plans, for example, citing how conflict impacts women differently than men,66 or has impacted both men and women,67 and that women and men need to have equal access to resources, opportunities,68 and to differences between men and women’s recruitment into militaries.69 Secondly,

61 Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016, ‘Pillar I Participation/Specific Activities/1.3.6. Take steps to increase the number of female judges, lawyers (prosecutors and public defenders) and also judges with expertise in international law; Indicators: Indicators: # and % of judges; # and % of lawyers; # and % of public defenders; # and % of prosecutors.’ 37. 62  ibid, Purpose 1 Protection and Prevention, Action Point 3, 11. 63 Ministry of Peace and Reconstruction, National Action Plan on Implementation of the United Nations Security Council Resolution 1325 and 1820, 2011/12–2016/17, 2011): ‘Specific Action: 1. Identify the actual condition (health, education, financial and economic status) of conflict-affected women, girls and former women combatants with their participation; Expected result: Needs of conflictaffected women, girls and former women combatants are identified and effectively addressed by relief and recovery programmes.’ 40. 64 Directorate of Human Rights and Women’s International Affairs Ministry of Foreign Affairs, Afghanistan’s National Action Plan on UNSCR 1325-Women, Peace, and Security, 2015–2022 (2015): ‘B. Protection/Objective 3/Action 2. Situation of women in detention facilities are improved and women detainees are protected from all types of violence and discrimination.’ 21. 65 Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016: Pillar II, Protection/3.4.6, 45–46. 66  See eg Department of Families, Australian National Action Plan on Women, Peace and Security 2012–2018 6. 67 See eg Philippines, The Philippine National Action Plan on UNSCRs 1325 and 1820: 2010–2016 3; Timor-Leste NAP, 14–16. 68  See eg Ministry of Foreign Affairs, Afghanistan’s National Action Plan on UNSCR 1325-Women, Peace, and Security, 2015–2022 1. 69  See eg Government of New Zealand, New Zealand National Action Plan for the Implementation of UN Security Council Resolutions, including 1325, on Women, Peace and Security 2015–2019 (2015) 14.

60  The Irish Yearbook of International Law 2018 ‘men and boys’ appear in respect of their engagement and involvement in advancing UNSCR 1325. For example, the Afghanistan narrative states that an aim of the plan is to: ‘Involve men and boys in the fight against all forms of violence against women’70 with a corresponding action in the matrix to involve young men in addressing violence against women.71

C.  Discussion of Findings The analysis of the nine Asia-Pacific NAPs-WPS through the GIA framework reveals a number of critical considerations useful to advancing gender planning for peace and security. It is evident that there is imbalance in each plan between actions that focus on differing sets of gendered interests. While the action plan should respond to its specific context, planning that addresses both sets of interests and the relationship between them, is critical for transformative outcomes for women (ie, the practical essentials of living for all demographics of women are met so that all women can then access and enjoy strategic human rights, such as political participation). For example, the Indonesia NAP-WPS strongly addresses the Practical Gender Interests of women affected by conflicts and disasters, such as fulfilling their basic needs for food, clothing and shelter,72 which differs greatly from a plan such as New Zealand’s where there are no Practical Gender Interests evident. The Indonesia plan is however largely structured around service provision (of 37 planned actions in the Indonesia NAP, 17 address practical Gender Interests, 10 address Strategic Gender Interests and 10 relate to Institutional Interests). There is little attention to broader Strategic Gender Interests. This is critiqued by women’s civil society in Indonesia highlighting the lack of State will to advance women’s rights in the public sphere.73 New Zealand’s plans do not address the basic needs of women and girls at all. However, such critique requires recognition that many donor States that situate their plan within foreign policy are often funding such initiatives through their overseas development assistance.74 Nonetheless, this again raises the spectre of the chism between security and development planning and the need to ensure that the basic human development needs of women and girls are addressed in NAPs-WPS. The current imbalance and failure to c­ omprehensively address the Practical Gender Interests of women and girls 70  Ministry of Foreign Affairs, Afghanistan’s National Action Plan on UNSCR 1325-Women, Peace, and Security, 2015–2022 10. 71 ibid NAP matrix: C. Prevention – Objective 1 – Strategic Objective 3: ‘Participation of men (particularly young men and religious leaders) of Afghanistan in combating VAW in the country’; and Specific Action: Establish provincial Committees (young men and religious leaders) in Kabul and all the 34 provinces with the aim of involving them in combating VAW.’ 23. 72 Welfare, The National Action Plans for the Protection and Empowerment of Women and Children During Social Conflicts of 2014–2019. See action matrix ‘Handling Programme’. 73 Women’s activists aired these concerns at a Regional Symposium on National Action Plans on Women, Peace and Security in 2016: Carla Silbert, Asia-Pacific Regional Symposium: National Action Plans on Women, Peace and Security (2016). 74 See: New Zealand, Ministry of Foreign Affairs and Trade, Our Approach to Aid, Available at: https://www.mfat.govt.nz/en/aid-and-development/our-approach-to-aid/.

Symposium Issue on Law and Peacekeeping—Swaine 61 does little to address the enduring critical gap in fulfilment of basic needs that was identified by women in the Global Study. Without fulfilment of basic livelihood needs, there is little chance that women’s political participation can be advanced. Successful gender planning for peace and security requires a balance of actions that meet both Practical and Strategic Gender Interests of women and girls and, significantly, their inter-relationship. This is particularly important for women and girls experiencing marginalisation due to identities or stigmas arising from conflict dynamics. The analysis reveals that the interests and rights of women and girls are not wholly central to WPS planning. It is commendable that States are including actions in their plans to develop institutional capacity on WPS. However, over half (52 per cent) of all actions across the Asia-Pacific plans were focused on the institution itself, and not on women and girls. This raises critical questions of whether planning for WPS is actually advancing implementation per the spirit of UNSCR 1325, that is in ways centred on women and girls. Actions that enhance institutional capacity are required, particularly to meet skills gaps of non-specialists responsible for implementation of plans and to address gaps where States do not have gender mainstreaming policies in place. However, the balance in the plans is critical again here. If UNSCR 1325 is to be implemented, resources and effort must be weighted towards addressing the gendered interests of women and girls, while including complementary actions that address institutional interests. Gender planning is not currently disaggregated to diverse social, economic, physical and public identities and roles of women and girls. There is a risk that those with more social, political and economic privileges will more readily benefit from the plans. This is particularly the case where there are deep imbalances in actions responding to practical or strategic gender interests. For example, those experiencing entrenched poverty or maginalisation due for example to conflictinduced politicisation of ethnicity, stigma attached to association with combatants or CRVAW, require actions tailored first to their practical interests (eg, provision of basic goods, health services), while simultaneously advancing actions that work to tackle the root causes of their marginalisation (behavioural change, legislative reform). Inclusivity planning ensures that plans do not simply reference the need for disaggregated approaches in their narrative sections. Rather a clear link is made between the narrative and actions in the action matrix. The actions must be disaggregated and tailored towards distinctive as well as common interests. The plan’s actions, monitoring indicators and attributed budgets should reflect this. An example is the Japan NAP-WPS, where reference to diverse identities including ‘ethnic, religious, linguistic minorities … LGBT’ was not only included in the narrative but also in the narrative framing pillars in the action matrix.75 More specificity, that is naming specific identity groups within actions will enhance the likelihood that 75 Affairs, National Action Plan on Women, Peace and Security. See eg ‘II. Conflict Prevention: Japan will promote inclusive support so as to ensure that refugees and displaced persons due to armed conflicts or heightened tension and other various vulnerable people, mainly women and girls (in particular, ethnic, religious, or linguistic minorities; those with disabilities; children without guardians; female-maintained households, LGBT persons, etc.; hereinafter referred to as “women and girls, etc.”), will not be excluded but can participate in all processes of prevention, management, and resolution of conflicts and decision making.’ 12.

62  The Irish Yearbook of International Law 2018 implementation, budgeting and later monitoring and accountability mechanisms will reach diverse groups of people. Recognition is also required that backlash to women’s rights such as political participation, can create the need for once again meeting their Practical Gender Interests (eg, threats and ostracisation of women human rights defenders). The circular relationship between practical and strategic gendered and diversified interests is critical to transformative GPAS approaches in gender planning. Naming the different roles, participation and entitlement rights and job categories that women might occupy matters in changing assumptions and misconceptions about women and girl’s status vis-à-vis a conflict and the emerging peacebuilding process. The Afghanistan NAP-WPS specifically identified the need to increase the number of ‘female civil servants’ by 10 per cent, including securing women’s representation in recruitment committees;76 as well as an action to ‘ensure the recruitment of female university graduates’ which uniquely featured in this plan.77 These kinds of disaggregated actions are important given that the plans will be implemented by various actors across government, including non-specialists who may not be wholly familiar with the issues and may also be influenced by victim-narratives attached to the WPS agenda. Another positive example is the Timor-Leste plan which referred to women ex-combatants as ‘heroines’, linking the plan and women’s status to the broader political narrative on ‘veterans’ in that society. By specifically using language ordinarily attributed to males who are entitlement holders of benefits, the plan gives status to women and girls who were part of the armed and clandestine struggle, attributing the same right to veteran benefits entitlements where these have been sorely lacking for women.78 The NAPs-WPS reviewed here set out ambitious commitments that are forwardlooking, and with the potential for advancing women’s rights and equality in multiple ways within the region. The use of the GIA tool to assess these plans reveals significant gaps, however, in current approaches to planning for WPS. Plans are failing to address some of the most critical priorities of women and girls (basic needs and rights), are missing the link between the women’s basic survival necessities and broader participation rights, are weighting planning towards the planners instead of towards women and girls, and are failing to ensure that actions matrices are tailored to distinctive as well as common interests and ensuring that the plans benefit diverse groups of women and girls. Implementation of the WPS agenda grounded in gender planning approaches, such as analytical planning tools adapted to specific contexts, will enhance the likelihood that such gaps be ­identified and addressed.

76 

Afghanistan NAP: A. Participation/Objective 1/Civil Service/Strategic Objective 2, 13–14. Afghanistan NAP: D. Relief and Recovery/ Objective 1/Strategic Objective 1, 24. 78  See eg ‘Pillar III/Output 3.3. Former women combatants and veterans receive justice and recognition for their contributions to peace.’ And see Lia Kent and Naomi Kinsella, ‘A Luta Kontinua (The Struggle Continues)’ (2014) 16 International Feminist Journal of Politics. 77 

Symposium Issue on Law and Peacekeeping—Swaine 63 V.  CONCLUSION: ADDRESSING THE GENDER GAP IN PEACE AND SECURITY PLANNING

This paper has identified that existing approaches to gender planning in the development field could lend significant learning to enhance gender planning in the peace and security field. Ultimately, NAPs-WPS should be about satisfying the micro-level practical everyday interests of women and girls with variant identity, ability, social location and social, economic and political status in equitable ways, while at the same time tackling the causes of inequalities and establishing women’s strategic rights for the longer-term. Achieving a balance and developing planning that responds to the intersection between practical and strategic gender interests is critical. It is also directly congruent with and promotes the goals of the reform of conflict prevention, response and peacebuilding that prompted the WPS agenda. In exploring and even proposing a gender planning approach to peace and security, it is imperative that the critiques of existing gender planning theory are acknowledged and addressed in any engagement with these tools in the peace and security field. Some of the most critical considerations include, first, addressing the risks inherent in ‘nexus-making’ across related but distinctive fields. There is an increase in the number and diversification of security actors newly engaging with women’s rights as a result of the WPS agenda. They are generally disconnected from international development and expertise on global gender policy, yet are expected to demonstrate leadership on planning in response to this agenda.79 Attempts towards coherence or learning must avoid becoming attempts at ‘coordination’ between actors but rather advance substantive policy approaches.80 They must also avoid the scenario where State-centric security interests trump those of development and human rights,81 particularly given that women and girls have specifically identified that their human development needs and rights remain critical gaps in peace and security policy implementation.82 Secondly, significant effort must be made to ensure that gender planning theory in peace and security advances ‘the process and politics of transformation of social relations of gender’.83 While gender mainstreaming practices, including the ones used here, have been characterised by a de-politicisation of feminist intent, there is a need to expect and counter the same in the security arena. Thirdly, the analysis here strengthens the argument that intersectionality-based inclusive planning is required. Planning should however avoid ‘oppression olympics’84 79 For further on diversification of security actors and impact on security-development nexus see Chandler, ‘The security–development nexus and the rise of “anti-foreign policy”’. 80  ibid 369. 81  ibid 363. 82  Radhika Coomaraswamy, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council resolution 1325. 83  Saskia E Wieringa, ‘Rethinking Gender Planning: A Critical Discussion of the Use of the Concept of Gender’ 350. 84  Olena Hankivsky, Daniel Grace, Gemma Hunting, Olivier Ferlatte, Natalie Clark, Alycia Fridkin, Melissa Giesbrecht, Sarah Rudrum, and Tarya Laviolette, ‘Intersectionality-Based Policy Analysis’ in Olena Hankivsky (ed), An Intersectionality-Based Policy Analysis Framework (Institute for Intersectionality Research and Policy, Simon Fraser University 2012) citing: Ange-Marie Hancock, ‘When Multiplication Doesn’t Equal Quick Addition: Examining Intersectionality as a Research Paradigm’ (2007) 15 Perspectives on Politics 63.

64  The Irish Yearbook of International Law 2018 and the associated discursive practice of ‘commatisation’85 that often emerges, so that the listing of ‘different’ women does not serve to mask ‘the advantages available to the unspoken norm’.86 Gender planning for peace and security should be based on the ‘restructuring of the social relations which constrain women’87 and indeed the relevance of shifting masculinities in conflict and post-conflict settings. This will be the key challenge of any planning that is essentially a technocratic processes that aims to speak to and engage technocrats. Critical is that the actions in the plan are framed to nominate common and specific interests so that those implementing it are required to address each, and in turn, monitoring and evaluation assesses the degree to which disaggregated and common interests have been successfully addressed. Fourthly, a critical concern going forward is who will determine the specific rights and interests included in the matrices of planning frameworks? Women and girls themselves ideally. How the planning process takes place, matters. Whether women’s expressed interests or those of the planners themselves ‘constitute the axis of the planning process’88 remains to be seen. Further, tensions and exclusions between different groups of women will require navigation, particularly in heighted political contexts where political identities associated with the ‘winners’ or ‘losers’ in a conflict determines access to planning and peacebuilding resources. Fifthly, concerns in the development field that women and women’s labour were simply ‘resources for appropriation’ also abound in the security field.89 In particular the instrumentalisation of women for intelligence gathering in programming addressing violent extremism for example risks gender planning becoming another source of the oppression of women. Gender planning for peace and security should be seen as an opportunity to generate empirical knowledge about women’s lives and to generate appropriate responses where needed. Planners need to ask new questions about the impacts of the gendered nature of conflicts and their aftermath, and the ways that historical and enduring oppressions manifest as a result of conflict and its aftermath. Borrowing from Saskia Wieringa, I propose that the questions that feminists have asked of the development field are relevant for the security field: ‘does [the plan] make a difference?’ and ‘Is this plan/project/proposal designed to diminish this formidable, complex power structure in which women’s subordination is embedded?’90 Sixthly, gender planning for peace and security should significantly advance the intersection of the WPS agenda with other global policy frameworks that lend deeper engagement with gender and its relationship with other inequalities. In particular, the Convention on the Elimination of Discrimination Against Women (CEDAW, 1979)

85  Mary O’Brien, ‘The commatisation of women: Patriarchal fetishism in the sociology of education’ (1984) 15 Interchange 43. 86  Karen Vincent and Joan Eveline, ‘The Invisibility of gendered power relations in domestic violence policy’ in Carol Bacchi, and Joan Eveline (eds), Mainstreaming politics: Gendering practices and feminist theory (University of Adelaide Press, 2010). 87  Diane Elson, ‘From survival strategies to transformation strategies: women’s needs and structural adjustment’. 88  Saskia E Wieringa, ‘ Women’s Interests and Empowerment: Gender Planning Reconsidered’ 838. 89  ibid 830. 90  ibid 842.

Symposium Issue on Law and Peacekeeping—Swaine 65 provides a human rights and legal basis to ensure that planning is fulfilling women’s rights. In addition, Goals 5 and 16 of the Sustainable Development Goals (SDGs) provide an ideal entry point for gender planning that concurrently addresses development and security concerns and makes inroads to improving women and girls’ overall wellbeing, regardless of and tailored to whether they are based in a conflict or non-conflict setting. Further, the silos at national levels between NAPs-WPS, and planning towards other policy priorities need to be overcome. This includes current silos between NAPs-WPS and planning for example on violence against women, or the status of women under the Beijing Platform for Action (1995) as is evidenced in many countries globally. Deeper than this, is cross-planning with other forms of discrimination, racial, ethnic, minority populations so that a feminist and intersectional approach underpins all State planning processes. Planning is in the end a technical, technocratic and bureaucratic process that is at odds with the deep complexity of the inequalities that ebb and flow across time and space in many women’s lives. A move from WIS towards GPAS, and the advancement of planning approaches that implement the intentions of UNSCR 1325 (2000) requires stronger engagement with complex gender relations and the inequalities that arise from women’s intersectional identities and how these mutate and respond to the flux of armed conflicts and their aftermaths. Gender Planning offers one avenue to attempt to re-orient the WPS agenda back to its origins and to ensure addressing gender inequalities at micro and macro levels and across the development-security divide are its central concern.

66

EUNAVFOR MED Operation Sophia – An Impossible Challenge? PATRICK BURKE*

… pass the message to the world that fighting the smugglers and the criminal networks is a way of protecting human life.1 Federica Mogherini

I. INTRODUCTION

T

HE MEDITERRANEAN SEA has been described as a sea of legends and harsh realities that provides a unique combination of complex geographical, political, cultural and economic factors that have shaped regional solutions and prompted developments in the law of the sea.2 In June 2015, in an attempt to tackle the harsh ­reality of the widespread loss of life from drowning created by the mass movement of migrants in the Mediterranean Sea, the EU launched EUNAVFOR MED.3 The ­primary mission of EUNAVFOR MED was to contribute to the EU’s efforts to dismantle the economic model of smugglers and traffickers of human beings in the ­southern part of the ­central Mediterranean. Four years later the mission has evolved to include the supporting tasks of training the Libyan Coastguard and contributing to the i­mplementation on the high seas of a UN embargo on illegal arm trafficking. Additionally, surveillance activities are carried out on the unauthorised export of oil from Libya, in accordance with UN Security Council resolutions. As part of Europe’s Comprehensive Approach EUNAVFOR MED is an EU led military operation which has become better known as Operation Sophia. This renaming followed the birth on 24 August 2015 onboard the German frigate Schleswig-Holstein, then part of the EUNAVFOR MED Task Force, of baby Sophia to a Somali mother rescued together with another 453 migrants. Sophia was named after the German ship on which she was born, the ship having been dedicated to the Prussian Princess Sophia of Schleswig-Holstein. The EU High Representative for Foreign Affairs and ­Security Policy was moved to call on the EU Member States to change the name of

* Patrick Burke, Commander (NS), Brigade Legal Officer 1 Brigade Headquarters, Defence Forces (Ireland). 1  Federica Mogherini, High Representative of the EU for Foreign Affairs and Security Policy, Rome, 24 September 2015, www.operationsophia.eu. EUNAVFOR MED. 2  I Papanicolopulu, ‘The Mediterranean Sea’ in R Rothwell, G Oude Elferink, K Scott and T Stephens, The Oxford Handbook of the Law of the Sea (Oxford, 2014) 604. 3  Council Decision 2015/778 dated 18 May 2015 on an EU Military Operation in the Southern ­Central Mediterranean (EUNAVFOR Med) (OJ L 122, 19.5.2015, p 31).

68  The Irish Yearbook of International Law 2018 the ­mission to Operation Sophia ‘To honour the lives of the people we are saving, the lives of people we want to protect, and to pass the message to the world that fighting the smugglers and the criminal networks is a way of protecting human life’.4 Four years later it is evident that Operation Sophia has evolved into something very different from what was originally envisaged. Tardy describes how the humanitarian mission which was launched to respond to the unprecedented surge of migrants crossing the Mediterranean Sea has become a rescue operation with a policing role while also generating added value to the EU as a maritime security instrument.5 This unplanned evolution means that what Operation Sophia is exactly about is still uncertain and it is now even more dependent on parameters that are beyond the EU’s own reach and control.6 Although Ireland did not initially join EUNAVFOR MED the Irish Government was quick to order the despatch of an Irish Defence Force’s naval ship in 2015 to assist in the humanitarian crisis. Initially operating under a ­bi-lateral agreement with the Italian Government under Operation Pontus, Ireland primarily participated in a search and rescue capacity only. Ireland became a member of EUNAVFOR MED in 2017 and has participated since with an annual review of commitment conducted by the Irish Government. Apart from taking the lead for the first time in an Irish Defence Force’s overseas mission, participation in Operations Pontus and Sophia resulted in Naval Service personnel rescuing more than 18,000 people from drowning at sea. This experience has left a deep impression on all who took part, aptly summarised by one sailor who stated ‘making a difference is one of the reasons we all joined the Defence Forces and, in terms of making a difference, this was really second to none’.7 While the EU Council extended the mandate of EUNAVFOR MED Operation Sophia until 31 March 2019, external changes and uncertainty have resulted in the future viability of Operation Sophia at sea coming under threat. Some EU nations have withdrawn their naval ships from the mission awaiting developments. Ireland has now also withdrawn its naval ship and it is timely to review whether EUNAVFOR MED’s extended mandate has resulted in the mission becoming an impossible challenge for the EU.8 II.  OPERATION SOPHIA – AN IMPOSSIBLE CHALLENGE?

Operation SOPHIA has been described as ‘mission impossible’.9 The initial mandate for the mission was certainly ambitious, consisting of a total of four different phases. While the old military adage cautions that the first casualty in any military operation is the plan, it is now clear that Operation Sophia’s initial four stage plan 4  Federica Mogherini, High Representative of the EU for Foreign Affairs and Security Policy, Rome, 24 September 2015, www.operationsophia.eu. EUNAVFOR MED. 5  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges. 6 ibid. 7  ‘Naval Service and sailors lament ending of Operation Sophia’ The Irish Times (2 April 2019). 8  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges. 9 ibid

Symposium Issue on Law and Peacekeeping­—Burke 69 has been stymied by both political and legal impediments. EUNAVFOR MED’s mission began with Phase One, which was to use information gathering and high sea patrolling to detect and monitor the existing migration networks. Early completion of Phase One in September 2015 allowed the mission to quickly move to Phase Two operations. This phase involved classic law of the sea maritime interdiction operations such as search, boarding, seizure and diversion of vessels suspected of engaging in human smuggling. These operations took place on the high seas and Operation Sophia enjoyed the support of almost all EU Member States as the Operational Headquarters in Rome sought to sequentially deal with the unfolding humanitarian crisis. Recognising the limitations of the United Nations Convention on the Law of the Sea (UNCLOS),10 in particular Article 110 ‘Right of Visit’, on EU Member States to take measures against those vessels suspected of engaging in migrant smuggling on the high seas, the UN Security Council enacted Resolution 2240/2015 under ­Chapter VII of the UN Charter.11 The UN effectively authorised Member States acting either nationally or through regional organisations on the high seas to inspect vessels that were suspected of engaging in migrant smuggling or human trafficking from Libya thereby providing a firm legal basis for Operation Sophia’s mission. UNSCR 2240/2015 permits the seizure and destruction of vessels suspected of engaging in migrant smuggling or human trafficking from Libya and this underpinned Phase Two operations. While creating the legitimate right for Operation Sophia ships to engage in search, seizure and destruction of such vessels on the high seas, UNSCR 2240/2015 also underlined the attendant international law rights of migrants by referring to the obligations under international human rights and refugee law. Emphasising the co-existing duties to protect these migrant rights enshrined in international law, Butler and Ratovich outline that these obligations need to be observed as if the resolution had not existed.12 From the outset, the instability in the Libyan political situation posed a significant obstacle to the success of Operation Sophia. Phase Three operations envisaged the EU either being granted a mandate by the UN Security Council or consent by the Libyan Government to conduct maritime interdiction operations inside Libyan territorial waters. While a UN Security Council Resolution adopted under ­Chapter VII of the UN Charter would permit the conduct of such operations in Libyan t­erritorial waters, some commentators consider that due to current Chinese and Russian p ­ ositions, the granting of such a resolution remains highly unlikely.13 Legally there are also a number of issues to consider if Phase Three type operations were to be conducted in Libyan territorial waters. Under international law when suspected human smugglers are interdicted on the high seas they face prosecution in

10 www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf. 11 

Unscr.com/en/resolutions 2240/2015. Butler and M Ratovich, ‘Operation Sophia in Unchartered Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea’ (2016) 85(3) Nordic Journal of International Law 255. 13  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges. 12  G

70  The Irish Yearbook of International Law 2018 an EU State, many having been prosecuted in Italy.14 If these suspected human smugglers are interdicted by EU navies participating in Operation SOPHIA in ­Libyan ­territorial waters then the question of Libyan criminal jurisdiction applies. The European Convention on Human Rights would also apply to all EU personnel were they to engage in interdiction operations inside Libyan territorial waters requiring careful consideration of the human rights implications of transferring EU detained suspected human smugglers to the Libyan authorities. Additionally, the principle of non-refoulement would prevent any such transfer where doubts exist concerning the standard of human rights applicable in that country. The result of such legal and political obstacles is that Operation Sophia has found itself confined to operations on the high seas only and has been unable to move to Phase Three and as a consequence, Phase Four of its mandate. The latter phase sought to consolidate the other supporting phases by taking all necessary measures against a vessel and associated assets by disposing of them or rendering them inoperable in Libyan territory and thereby effectively tackling the human smugglers at source. The effectiveness of the mission which sought to deal with human smugglers closer to shore inside Libyan territorial waters with the attendant safety element for those being smuggled or trafficked rather than conducting high seas interdictions where the risk is higher, has accordingly been significantly diminished. Tardy points to two consequences of being unable to lawfully enter Libyan territorial waters. First, Operation Sophia became focussed on rescue operations which do not tackle the source of the problem and secondly, the consequential waning of EU Member States’ support for the mission as a result.15 Recognising that Operation Sophia assets could not engage in operations inside Libyan territorial waters emboldened the human smugglers who could now act with relative impunity once they remained within the 12 nautical mile limit. Adapting to the inability to conduct operations in Libyan territorial waters, Operation Sophia was revised in 2016 to include the task of conducting the effective training, mentoring and capacity building of the Libyan Coastguard. This indirectly afforded the EU the mechanism to seek to influence activities of the human smugglers inside Libyan territorial waters. UN Security Council Resolutions 2292/16 and 2357/17 gave Operation Sophia the additional role of implementing the UN arms embargo on Libya on the high seas.16 Adding to the existing tasks of combatting human and arms smuggling, Operation Sophia’s mandate was amended to include surveillance of alleged illegal trafficking of oil from Libya.17 The revisions to Operation Sophia have resulted in greater maritime awareness of activities in the south central Mediterranean. Under the EU Comprehensive Approach information is now shared with other EU agencies operating in tandem to Operation Sophia such as EUROPOL and FRONTEX. Recognising the different actors present in the area, 14  For more detailed analysis see Eurojust Annual Report 2018.Europa.Eu, www.eurojust.europa.eu/ doclibrary/ 7 March 2019. 15  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges. 16  Unscr.com/en/resolutions 2292/17 and 2357/17. 17  Unscr.com/en/resolutions 2362/17.

Symposium Issue on Law and Peacekeeping­—Burke 71 Operation Sophia also engages in information sharing with the UNHCR, the UN mission present in Libya UNSMIL, the International Organisation for ­Migration and various NGOs via an agreed Code of Conduct. Building on this extensive network of contacts, Operation Sophia established the Shared Awareness and De-confliction in the Mediterranean seminar (SHADE MED).18 This forum facilitates creating a better understanding between civilian and military actors involved in the Mediterranean Sea. It also seeks to enhance mutual interaction and assist with the development of an overall framework for coordinating different activities and to identify best practices to deal with common security challenges. As a coordination concept SHADE MED’s success may be gauged by the participation at the sixth seminar in the series in Rome in January 2019 of 189 attendees, from 37 different countries and 121 organisations. Addressing the seminar, Rear Admiral Credendino, officer in command of Operation Sophia, stated ‘SHADE MED is an example of how we can shape a constructive dialogue an interaction among the relevant military and civilian actors who share a common interest in the Mediterranean region’.19 It is evident that the emergence of different factors than those present at the inception of Operation Sophia has resulted in an amended mission and a degree of uncertainty as to what the mission is intended to achieve. Building on the EU’s ­counter-piracy mission Operation Atalanta, the importance of the maritime domain to the EU is underlined by the continued commitment to operations in the ­Mediterranean. Although the mission began ostensibly as military led, it has evolved to including humanitarian aspects via search and rescue and also security through its evolved maritime policing roles. This evolution was something very different to what was originally envisaged. As such it tested the boundaries of the EU’s Common Security and Defence Policy (CSDP) due to Operation SOPHIA conducting its mission at the juncture between external and internal security.20 The evolution of Operation Sophia’s mission is not unique to other EU CSDP missions. There are parallels with other EU missions such as Operation Althea in Bosnia-Herzegovina and Operation Atalanta in the Gulf of Aden, both of which have evolved to become more security focussed rather than defensive in character.21 The concurrent law of the sea obligations on the Member States to engage in search and rescue at sea per UNCLOS underlined the humanitarian aspect of the mission.22 Ironically these moral and legal obligations to render humanitarian assistance to those in peril of losing their lives at sea has also led to criticism of how Operation Sophia naval assets have performed their duties. In 2017 a UK House of Lords EU Committee report stated that an unintended consequence of Operation Sophia’s policy of destroying interdicted smugglers’ boats has been that they have

18 www.operationsophia.eu/shade-med/.

19 www.operationsophia.eu/shade-med-1-2019/.

20  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges. 21 ibid. 22  UNCLOS Art 98, www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

72  The Irish Yearbook of International Law 2018 adapted and instead now sent refugees and migrants to sea in unseaworthy vessels, leading to even more deaths.23 Criticism of Operation Sophia’s modus operandi claimed that the number of recorded casualties on the central Mediterranean route between Libya and Italy rose by 42 per cent to more than 4,500 people drowning in 2016 compared with 3,175 in 2015.24 The House of Lords EU Committee claimed that rather than disrupting the smuggler’s business model the actions of Operation Sophia had instead led to a change in the model used by the smugglers with a shift to using unseaworthy inflatable boats which now had to be rescued barely outside the Libyan 12 nautical miles territorial sea. Lady Verma, chair of the House of Lords Committee, stated that as people-smuggling began onshore a naval mission alone was the wrong tool for tackling such a dangerous, inhumane and unscrupulous business. However, she considered the mission a humanitarian success and that it was critical that the EU’s lifesaving search and rescue work which has directly saved the lives of almost 44,000 people since its inception, continues.25 Lady Verma concluded that future EU action should focus on tackling peoplesmuggling at source and in transit countries, and supporting sustainable economic development and good governance in these countries. The House of Lords as well as criticising the sole reliance on the maritime element as a deterrent also argued that this approach has instead created an incentive for migrants to risk their lives on perilous sea crossings.26 Butler and Ratovich also argue that rescuing migrants at sea and transporting them to ports for processing can subsequently entail giving them status which creates a further pull factor rather than the deterrent which the EU is attempting to achieve.27 It was found that the success of Operation Sophia may be measured by the local law enforcement powers tackling at source the roots of the migration issue on home soil, thereby preventing migrants from undertaking their dangerous sea crossings in the first place. They also recognise the requirement for the root causes of migration to be addressed rather than the sole focus being on preventing migration routes being used.28 While the House of Lords report highlighted shortcomings it particularly lauded the humanitarian life-saving aspect of the mission. Nonetheless, the humanitarian aspect of Operation Sophia has also not been without criticism with some claiming that the interception of migrants at sea through search and rescue can also act as a form of border control. Moreno-Lax argues that the invocation of human rights paradoxically serves to curtail migrant’s human rights by justifying interdiction at sea to save lives and thereby impeding access to Europe via a narrative of ‘rescue’; interdiction as a life saving device instead becomes an ethically sustainable strategy 23  House of Lords, European Union Committee, Operation Sophia, the EU’s Naval Mission in the Mediterranean: An Impossible Challenge (13 May 2016), www.publications.parliament.uk. 24 ‘EU-UK naval mission on people-smuggling led to more deaths’ The Guardian (11 July 2017) modified 27 November 2017. 25 ibid. 26  House of Lords, European Union Committee, Operation Sophia, the EU’s Naval Mission in the Mediterranean: An Impossible Challenge (13 May 2016), www.publications.parliament.uk. 27  G Butler and M Ratovich ‘Operation Sophia in Unchartered Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea’ (2016) 85(3) Nordic Journal of International Law 255. 28  ibid 257.

Symposium Issue on Law and Peacekeeping­—Burke 73 of border governance.29 Tardy succinctly describes the paradox by outlining how the very success of the humanitarian facet is what makes it all the more difficult to terminate Operation Sophia in the absence of an alternative competent search and rescue element.30 III.  FROM SEARCH AND RESCUE TO MARITIME SECURITY CAPACITY BUILDING

The EU 2018 Strategic Review on Operation Sophia claimed that the mission’s presence has played a decisive role in improving the overall maritime security picture in the southern central Mediterranean.31 Pointing to the evolved mission mandate which was broadened to include disruption of human and arms trafficking and the conduct of surveillance activities, including in relation to oil smuggling, the European External Action Service Strategic Review states that Operation Sophia has become a unique multi-faceted maritime security provider.32 The Strategic Review cites the apprehension of 148 suspected smugglers and traffickers, the destruction of some 550 vessels, more than 1,700 hailings and more than 100 friendly approaches of vessels on the high seas as tangible results. The Strategic Review elaborates that the training of more than 200 personnel of the Libyan Coast Guard both at sea and in Member States facilities greatly enables Libya to take more control within its territorial sea. Citing the presence of Operation Sophia in the Central Mediterranean as a deterrent, the Strategic Review notes that the ability of smugglers to operate has significantly decreased in international waters and that their actions have been mostly confined to Libyan territorial waters where, as highlighted earlier, the operation is not legally allowed to operate. The Strategic Review stresses the need to continue the EU’s fight against the criminal networks involved in illicit activities which includes human trafficking, smuggling of migrants, arms and oil and terrorism. Placing emphasis on the EU’s Comprehensive Approach, the Review urges continued focus on information-sharing and cooperation between security and defence activities and EU Justice and Home Affairs actors. Accepting that the current political turmoil in Libya and the fact that a UN Security Council resolution to operate inside the Libyan territorial sea remains unlikely, the Review concludes that Operation Sophia should continue operating on the high seas, and in support of the Libyan Coast Guard via training and monitoring. A fundamental aspect of Operation Sophia has been the partnership ethos that developed between the EU’s agencies and NGOs operating in the area. The Strategic Review declared that partnership

29 Violeta Moreno-Lax, ‘EU Refugee Policies and Politics in Times of Crisis’ (2017) 56(1) JCMS: Journal of Common Market Studies 119–40, The EU Humanitarian Border and the Securitization of Human Rights: The ‘Rescue-Through-Interdiction/Rescue-Without Protection’ Paradigm. 30  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges. 31  EEAS (2018) 835 Strategic Review on EUNAVFOR MED Op Sophia, EUBAM Libya & EU Liaison and Planning Cell, 26/07/2018. https://eeas.europa.eu. 32 ibid.

74  The Irish Yearbook of International Law 2018 has been the key word for the operation and refers to partner countries, partner organisations, NGOs and international agencies all working together and sharing their experiences and best practices. Noting the significant decrease in migrants entering Europe via the central Mediterranean, the UNHCR reported that between January and July 2018 the number of refugees and migrants dropped by 41 per cent compared to 2017.33 Explaining this significant reduction, the UNHCR cited new measures targeting irregular migration in the central Mediterranean, including further support for Libyan authorities to prevent sea crossings to Europe, further restrictions on the work of NGOs involved in search and rescue operations, and limited access to ­Italian ports for refugees and migrants rescued at sea as key factors.34 The UNHCR report went on to find that the establishment of a Libyan search and rescue region has also resulted in increased numbers of people being intercepted or rescued at sea by the nascent Libyan Coast Guard and returned to Libya with no possibility of release to the UNHCR except for the purpose of evacuation to a third country.35 While the claimed decrease in the numbers of migrants undertaking perilous journeys in the central Mediterranean may have decreased, both the 2018 EEAS Strategic Review of Operation Sophia and the UNHCR ‘Desperate Journeys Report’ must be read against the backdrop of a change in government in Italy in 2018. The newly elected populist Italian government made closing access to Italian ports for ships carrying rescued migrants a central policy pillar as part of its election manifesto. Outlining what he considered as the unfair burden of having over 650,000 people of mostly African and Middle Eastern origin land on their shores since 2014, Interior Minister Matteo Salvini stated ‘Italy will no longer be Europe’s r­efugee camp’.36 The change of Italian government policy of denying access to NGO ­vessels, in ­particular with rescued migrants, to Italian ports put significant pressure on the EU’s leaders. A communiqué issued by the European Council cautioning the NGO vessels’ operators that they should defer to the Libyan coastguard, was described by NGOs as amounting to ‘deliberately condemning vulnerable people to be trapped in Libya, or die at sea’.37 Italy’s actions in closing all access to Italian ports have been widely criticised as being in breach of international law.38 However, this criticism overlooks the obligations placed on a State by the Maritime Safety Committee of the UN sponsored International Maritime Organisation (IMO). The IMO requires the State

33 

UNHCR, Desperate Journeys: January–August 2018, www.unhcr.org.

34 ibid. 35 ibid.

36  ‘Italy’s Call for France and Spain to Open Ports to Migrants is Rejected’ The Guardian (30 August 2018). 37  ‘EU condemns rescue boats picking up drowning refugees in Mediterranean as Leaders side with populists’ The Independent (29 June 2018). 38  E Cusumano and K Gombeer, ‘In deep waters: The legal, humanitarian and political implications of closing Italian ports to migrant rescuers’ (2018) Mediterranean Politics Taylor & Francis Online www. tandfonline.com/doi/full/10.1080/13629395.2018.1532145. See also ‘Between The Devil and The Deep Blue Sea: Europe Fails Refugees and Migrants in The Central Mediterranean’ (Amnesty International, 3 August 2018) www.amnesty.org.

Symposium Issue on Law and Peacekeeping­—Burke 75 r­esponsible for the search and rescue region in which the rescue occurred to take primary ­responsibility for ensuring that 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.39 The IMO also requires that assistance shall be provided regardless of the ­nationality or status of such a person or the circumstances in which that person is found.40 Accordingly, it would be a matter for the Italian authorities to determine places of safety within their search and rescue zone; a place of safety being defined as a location where rescue operations are considered to terminate, that is where the survivors’ safety of life is no longer threatened and where their basic human needs can be met and from which arrangements can be made for the survivors’ next or final destination.41 All of this presupposes that the rescue actually took place within the Italian Search and Rescue Region in the first place, but this has increasingly not been the case. The Italian authorities point to NGO vessels conducting rescue operations outside of their search and rescue region, primarily within the Libyan search and rescue region but seeking to then utilise Italian ports as the place of safety for the rescued migrants as opposed to the State which is actually responsible for the search and rescue region in which the rescue took place, primarily Libya. This has led to NGO vessels being denied access by Italy and forced to seek places of safety in other countries such as France and Spain, thereby subjecting the already vulnerable ­rescued migrants to protracted sea journeys.42 The EEAS Strategic Review of 2018 recognised the external factors, including the policy of the new Italian government, that are impacting on Operation Sophia.43 It is clear that in order to ensure that Operation Sophia continues fulfilling its mandate, new disembarkation procedures for persons rescued at sea operations will have to be agreed upon. Additionally, further support must be given to the EU project supporting the Libyan Marine Rescue Coordination Centre which is being ­significantly aided by the Italian authorities. To enable sufficient time to effectively establish, equip and train the Libyan Marine Rescue Coordination Centre, the Strategic Review recommends that Operation SOPHIA should be extended to a common expiry date of 30 June 2020 which coincides with the projected end date for other EU missions in the area such as the EU Integrated Border Management Assistance Mission in Libya. The IMO publicised the Libyan Search and Rescue Region on its Global ­Integrated Shipping Information System website in June 2018 and the Libyan

39  Regulation 33 of SOLAS and IMO Guidelines on the Treatment of Persons Rescued at Sea. www. imo.org/en/OurWork/Facilitation/personsrescued/Documents/Resolution%20MSC.153(78)-MSC% 2078.pdf. 40  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. 41 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. 42  ‘Italy ships criticism over plan to send migrants to Spain’ The Irish Times (12 June 2018). 43  EEAS (2018) 835 Strategic Review on EUNAVFOR MED Op Sophia, EUBAM Libya & EU Liaison and Planning Cell, 26/07/2018. https://eeas.europa.eu, p 30.

76  The Irish Yearbook of International Law 2018 authorities took control of all rescues within this area.44 The Italian Coastguard has led the EU ­project to assist the Libyan authorities to establish a fully operational Maritime Rescue Coordination Centre in order to efficiently coordinate search and rescue operations within the Libyan SAR Region with full operational capacity expected to be achieved by 2020. The development of the Libyan Coastguard and Navy is being strengthened by the EU with the support of Greece, Italy, Spain and Malta as well as the UNHCR, IMO and UNSMIL. Included in the law enforcement training are dedicated m ­ odules on human and refugee rights as well as gender awareness. By the end of August 2018 a total of 237 personnel had been trained and the UN Secretary-General noted that the Libyan Coast Guard have taken an increasingly active role in fighting illicit activities and saving lives at sea as a result of the training and equipment provided by the EU.45 While Operation Sophia reports that it undertakes a vetting process for all Libyan trainees and that it monitors the performance of the Libyan Coastguard it does not include the observation of migrants’ conditions ashore. It should be noted that this is not within the operation’s mandate and is arguably a function for shore-based agencies in Libya such as UNSMIL and the OCHR. Indeed, the UN Secretary General points to reports from UNSMIL and the OCHR that have documented the use of firearms and physical violence by the Libyan Coastguard during search and rescue operations in Libyan and international waters. The automatic detention in Libya of those disembarked there exacerbates an already fraught human rights situation and the increased pressure on overwhelmed facilities has compounded the deterioration of conditions.46 The Secretary-General recognises that durable solutions will necessitate continued engagement with the Libyan authorities as well as greater solidarity at the European and international level.47 He expressed his concern that the space for refugee protection might be shrinking as human rights protection is eroding. Recognising that all States have the right to manage their borders and the right to define their own migration policies, the Secretary-General appealed to nations to do so in a manner which remains sensitive to the protection of migrants and refugees while fully respecting applicable international law norms. Noting that the number of arrivals to Europe has decreased, the Secretary-General points to the humanitarian and human rights situation of refugees and migrants in Libya as remaining dire. He also expands that he foresees this situation deteriorating further owing to the greater number of interceptions at sea and the growing closure of the Mediterranean Sea for migrant departures. Succinctly defining the balance required the Secretary-General states that the UN is committed to advancing action to bring traffickers to justice while protecting and supporting their victims and preventing sexual and gender-based violence in all of its forms.

44 

‘Libya takes charge of refugee rescues in the Mediterranean’ The Times (29 June 2018). Security Council Report of the Secretary-General on the Implementation of resolution 2380(2017) S/2018/807 31 August 2018. 46 ibid. 47 ibid. 45 UN

Symposium Issue on Law and Peacekeeping­—Burke 77 IV. CONCLUSION

While migrants remain the subject of major human rights violations the exact function of Operation Sophia remains uncertain and the mission also faces further complexity due to the dependence on factors that remain beyond the control of the EU.48 Operation Sophia’s evolution has seen it embrace a maritime security mandate that is no longer primarily focussed on migrant rescue. This has led to criticism due to a misperception that the primary function of the mission was search and rescue. Operation Sophia is the first naval mission under the EU’s 2014 Maritime ­Security Strategy. It has sought to tackle the human traffickers and smugglers business model, to focus on the persons responsible for trafficking in human persons and to prevent those bringing vulnerable and desperate migrants to the EU via the central ­Mediterranean route.49 While this approach is certainly laudable, it has arguably failed to fully embrace the model utilised by its sister EU maritime mission, Operation Atalanta, in tackling piracy off the Horn of Africa. Operation Atalanta has demonstrated that while sea based operations are mandatory, they must be complimented by a concerted comprehensive shore based approach which reinforces the maritime element. Some commentators argue that while Operation Sophia has focused almost solely on the maritime element of migration, the unintended result has been to divert migrants to land based routes and this poses new threats to the EU on its external Schengen borders and that this approach is systematically flawed.50 Operation Sophia has been hamstrung from the outset by the legal imperative which prevented its naval assets engaging inside Libyan territorial waters. The application of the law of the sea in this instance has ironically frustrated maritime law enforcement operations while simultaneously giving the smugglers a virtual border to hide behind. Just as the efficacy of this border shield is being eroded by the emergence of the Libyan Coastguard, the closure of ports of disembarkation for rescued migrants by the new Italian government has presented a new level of complexity for Operation Sophia’s planners. When viewed through the lens of mission effectiveness it emerges that Operation Sophia has enjoyed limited success, primarily because of a mandate that has evolved to encompass other tasks and unrealistic expectations of how a military mission can manage migration. A key difficulty that the mission faces is the perception that its sole function is to engage in search and rescue. As the numbers of migrants rescued decreases, increasingly due to the effectiveness of Libyan border control, Operation Sophia stands accused of engaging in denying migrants access to Europe’s frontiers. This is to ignore the reality that Operation Sophia’s mission was never one of search

48 UN Security Council Report of the Secretary-General on the Implementation of resolution 2380(2017) S/2018/807 31 August 2018. 49  Council of the EU, European Union Maritime Security Strategy (11205/14) https://register.­consilium. europa.eu/doc/srv?l=EN&f=ST%2011205%202014%20INIT. 50  G Butler and M Ratovich, ‘Operation Sophia in Unchartered Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea’ (2016) 85(3) Nordic Journal of International Law 235–59, 256.

78  The Irish Yearbook of International Law 2018 and rescue; that role is an ancillary legal obligation placed on the participating ships by virtue of their law of the sea commitments under UNCLOS. Whatever the many criticisms faced by Operation Sophia it is indisputable that the lives of migrants have been saved from drowning due to the very presence of Europe’s naval ships in the central Mediterranean Sea. The EU comprehensive approach in Operation Sophia seeks to tackle the physical component of mass migration while also tackling the root causes of persecution, climate change, abject poverty and conflict. Participation in implementing the UN arms embargo as well as illicit traffic in oil has significantly increased the EU’s maritime domain awareness and contributed to the EU’s security role in this area. However, Tardy accurately questions whether the evolution to the different mission facets, rescue, smuggler disruption, capacity building and maritime security challenge the overall coherence of Operation Sophia and as a consequence, its ability to have a tangible effect.51 Operation Sophia does not and indeed should not provide the sole prism through which to analyse the EU’s policy on illegal migration and to attempt to use such a restrictive focus is to miss the point that the mission itself is but one part of a much broader response.52 It is more useful to assess Operation Sophia for what it really is; a targeted and limited response with a restricted mandate as opposed to viewing it as the sole answer to the EU’s migration issue. The evolution of the different components of Operation Sophia’s mandate – disruption of smugglers, search and rescue, maritime capacity building and providing maritime security effectively made the mission a hybrid of sorts, one that is all things to all people. While Europe’s navies operating in Operation Sophia have directly saved over 44,000 people from drowning at sea, it must be accepted that of itself the mission will be unable to deliver the panacea that many seek to the EU’s migration crisis.

51 T Tardy, ‘Operation Sophia: Tackling the Refugee Crisis with Military Means’, Brief Issue (EU Institute for Security Studies, Paris, 2015) www.iss.europa.eu/content/operation-sophia-tackling-refugeecrisis-military-means. 52  T Tardy, ‘Operation Sophia’s World: Changes and Challenges’, Brief Issue (EU Institute for Security Studies, Paris, 2017) www.iss.europa.eu/content/operation-sophias-world-%E2%80%93-changes-andchallenges.

Arise, Sleeping Beauty: What PESCO means for Ireland PEARCE CLANCY*

I. INTRODUCTION

I

T HAS BEEN suggested by some that an important ‘stepping up [in] cooperation is in the air’,1 whereas anti-establishment voices have denounced such moves as clandestine foundational positioning for a later European Army, a notion increasingly evoked by European leaders. Whatever the truth is, it would appear that the European Union’s (EU) Common Security and Defence Policy (CSDP) is undergoing a recalibration, thus meaningful discourse on the domestic implications of such alterations cannot responsibly be avoided and must be actively promoted. This chapter considers the implications of a re-invigored European security scene and the introduction of the Permanent Structure for Cooperation (PESCO) for the Republic of Ireland. The focus will be less on the structure and current goals of the initiative, and more on how it fits into the relevant political and legal framework of Ireland, and how value, if any, can be gleamed from PESCO. Part II will briefly sketch the development of the EU in the realm of security and defence, and how this led to the introduction of PESCO; Part III will interrogate the arguments that PESCO represents a threat to Irish neutrality, both in the political and the legal context; and finally Part IV will attempt to provide an argument for engagement with PESCO and the enhanced CSDP based upon the foreign policy goals of Ireland and the economic and financial constraints which may otherwise act as a barrier. What becomes of PESCO will, undoubtedly, depend on the cooperation and engagement of participating States;2 thus, serious consideration must be given to the implications and benefits for Ireland. This chapter will explore the concerns raised regarding the initiative and paint a positive picture for the future of Irish involvement in the CSDP, and ultimately for Irish peacekeeping.

*  Irish Centre for Human Rights, School of Law, National University of Ireland Galway. Many thanks to Prof. Ray Murphy, Irish Centre for Human Rights, without whose help this chapter would not have made its way to the present volume. 1  S Biscop, Oratio Pro Pesco (91 Egmont Papers, Brussels, 2017) 10. 2  J Gotkowska, The Trouble with PESCO: The Mirages of European Defence (69 The Point of View, Warsaw, 2018) 7.

80  The Irish Yearbook of International Law 2018 II.  THE DEVELOPMENT OF PESCO AND THE CSDP

A.  The Rocky Road to St Malo The fall of the Berlin Wall, and thus the end of the Cold War, generated intense feelings of both optimism and pessimism in Europe, particularly in the areas of defence and security.3 As the USSR dissolved, the North Atlantic Treaty Organisation (NATO), then the premier organisation in the area, found itself at the centre of an existential shift regarding the foundations of the Euro-Atlantic security landscape, sparked by shifting power structures, the EU’s expression of interest in entering the security field,4 the various new threats facing Europe.5 and the humiliation in the former Yugoslavia.6 As such the 1990s were something of a whirlwind for European security and defence; Charles de Gaulle’s championing of French military independence morphed into a French championing of European common defence, which France saw as an alternative to the Anglo-Saxon centricity and reliance upon American support which had previously hampered NATO.7 As earlier attempts to foster closer military cooperation in Europe, such as 1952’s European Defence Community, were ultimately doomed by political rivalries8 and ambitious scope,9 it’s of little surprise that the pre-existing, and far less intrusive, Western European Union (WEU) saw increased importance in this era. Created as the Western Union in 1948, the refurbished WEU served as the primary framework for joint military operations outside of NATO.10 WEU’s role was perhaps best manifested through the introduction of the Petersberg Declaration11 which allowed deployment under the WEU for ‘humanitarian and rescue tasks, peace-keeping tasks, and tasks of combat forces in crisis management, including peacemaking’.12

3  See generally JJ Mearsheimer, ‘Back to the Future: Instability in Europe after the Cold War’ (1990) 15 International Security 5. 4  Treaty of Maastricht (Treaty on European Union), Art J; JP Perruche, ‘From exception to facilitator: what place for France in the EU/NATO partnership in the post-Cold War world?’ (2014) 12 Journal of Transatlantic Studies 432. 5  H Larsen, ‘Concepts of Security in the European Union After the Cold War’ (2003) 54 Australian Journal of International Affairs 338. 6  Perruche, above n 4, 432–3. 7  See generally A Menon, ‘From independence to cooperation: France, NATO and European security’ (1995) 71 International Affairs 19. 8 P Koutrakos, The EU Common Security and Defence Policy (Oxford University Press, Oxford, 2013) 8–9. 9  See Treaty establishing the European Defence Community (unratified), Art 9 which provided that Member States of the proposed community should be prohibited from maintaining national armed forces except in exceptional circumstances outlined in Article 10; also M Trybus, ‘The vision of the European Defence Community and a Common Defence for the European Union’ in M Trybus and N White (eds), European Security Law (Oxford University Press, Oxford, 2007) 33–4. 10 J McCormick, European Union Politics (Palgrave and Macmillian, Hampshire, 2011) 78–79; SG von Kielmansegg, ‘The Meaning of Petersberg: Some Considerations on the Legal Scope of ESDP Operations’ (2007) 44 Common Market Law Review 631. 11  Petersberg Declaration (19 June 1992). 12  Art II (4), Petersberg Declaration; for an in-depth explanation of these terms within the initial WEU framework see von Kielmansegg, above n 10, 631–36.

Symposium Issue on Law and Peacekeeping—Clancy 81 The true watershed moment, however, came in 1998 when a dramatic shift in British foreign policy under Blair’s New Labour government led the UK and France, under President Chirac, to sign the St Malo Declaration13 which stressed the EU’s need ‘to be in a position to play its full role on the international stage’,14 attainable only through ‘the capacity for autonomous action’15 when NATO is unable or unwilling to act. Crucially the Declaration envisaged a ‘separable but not separate relationship’, wherein the EU could operate outside of NATO’s structures if need be but would avoid duplicating assets.16 This document, which indicated both a British desire to avoid being ‘left behind’ as a European leader after declining to join the Euro, as well as a joint desire to save Europe from playing second fiddle to NATO17 marks the starting point of the modern project. B.  Paved with Good Intentions Though the decade following St Malo was a turbulent one on the international stage, featuring Europe’s controversial involvement in Kosovo, the rise of the neoconservative and less Euro-friendly George Bush, and the infamous 9/11 attacks,18 the fact remained that British support under Blair had removed the political barriers which stood in the way of European cooperation.19 Nonetheless, the project persisted; the Common Foreign and Security Policy (CFSP) pillar envisaged in Maastricht maintained a marked intergovernmental philosophy, a trait which was retained in the later Amsterdam and Nice treaties.20 The 1992 inception of the Common European Security and Defence Policy (ESDP, later the CSDP) as a sub entity of the CFSP was seen as a natural development in Europe’s toolkit for realising its international ambitions. This was most strikingly put by Bailes: Since the end of the Cold War, when Europe gained an exportable surplus of security, the focus has shifted from the shield to the active sword, or rather the use of European military force as a scalpel: to perform surgery in crises threatening to life of other communities and nations and thus open the way for their recovery.21

Thus, the ESDP (as it was then called) was framed as altruistic.22 This rhetoric is largely unsurprising, however, as the Amsterdam treaty had provided for EU access 13 

Franco-British St Malo Declaration (4 December 1998) (henceforth ‘St Malo’). St Malo, Art 1. 15  St Malo, Art 2. 16 AJK Bailes, ‘NATO’s European Pillar: The Security and Defense Identity’ (1999) 15 Defense Analysis 315. 17 Kourtakos, above n 8, 18; J Smith, ‘A Missed Opportunity? New Labour’s European Policy 1997–2005’ (2005) 81 International Affairs 709–10. 18  J Howorth, Security and Defence Policy in the European Union, 2nd edn (Palgrave Maxmillian, Hampshire, 2014) 11. 19  N Gnesotto, ‘Preface’ in F Hesibourg (ed), European defence: making it work (Chaillot Papers 42, Paris, 2000) v. 20  Howorth, above n 18, 36. 21 AJK Bailes, ‘The EU and a “Better World”: What Role for the European Security and Defence Policy?’ (2008) 84 International Affairs 116. 22 ibid. 14 

82  The Irish Yearbook of International Law 2018 to WEU operational capabilities in furtherance of the Petersberg Tasks, which, while allowing for robust peace enforcement missions, did not provide for a common defence.23 This development positioned the EU well to follow the UN SecretaryGeneral’s Agenda for Peace which noted the importance of regional organisations.24 The rapid developments in Brussels led to the deployment of 16 EU missions between 2003 and 2007 alone, including the first joint UN/EU operation under a single mandate in Chad.25 In most cases however these missions were civilian in nature,26 thus maintaining the EU’s image as a primarily civilian power.27 Attempts were made to strengthen the Petersberg Tasks in the rejected ­European Constitution,28 including the first mention of the ‘permanent structure for ­cooperation’29 which was intended to increase the EU’s capabilities for taking part in UN operations.30 For the Europeanists, the Constitution’s references to external relations represented a will to increase the coherence of the CSDP31 and its rejection was indicative of a rise in Euroscepticism.32 It should be noted that the lamenting of this lack of coherence was not limited to this group.33 Of particular concern was the EU’s failure in generating sufficient numbers of ground troops and training personnel, as this still had to be done on an ad hoc basis, as well as the deficit of effective cooperation among deployed personnel.34 Nonetheless, the Lisbon Treaty was adopted and the reference to PESCO was seen by the Europeanists as reassuring,35 though this was but one element of the primary responsibility of the CSDP to provide the operational capacity to allow the EU to deploy for ‘peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’ using resources provided by Member States.36

23  Art J.7 of the Treaty of Amsterdam (Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts); the modern legal basis is found in Art 42(2) TEU (as amended). 24  See UN Secretary-General, ‘An Agenda for Peace’ (8 October 1993) A/RES/47/120B, particularly 60–65. 25  UN S/RES/1778 (25 September 2007), particularly paras 1 and 6–9; this mission is generally considered a success, see R Murphy, ‘Europe’s return to UN peacekeeping? Opportunities, Challenges, and ways ahead – Ireland’ (2016) 23 International Peacekeeping 730. 26  von Kielmansegg, above n 10, 629; this trend remains the case today, see European External Action Service, Military and civilian missions and operations (2019). 27  See comprehensively Larsen, above n 5. 28  K Lenaerts and P van Nuffel, Constitutional Law of the European Union, 2nd edn (Thomson Sweet & Maxwell, London, 2004) 872–73. 29  See Arts I-41(6) and III-312, Treaty establishing a Constitution for Europe (unratified). 30 Art 1(b), Protocol on Permanent Structures Cooperation Established by Article I-41(6) and ­Article III-312 of the Constitution, appendix to note 29. 31  M Martin and I Lirola, ‘External Action of the European Union After the Constitutional Setback’ (2006) 2 European Constitutional Law Review 374. 32  See eg N Startin and A Krouwel, ‘Euroscepticism Re-galvanized: The Consequences of the 2005 French and Dutch Rejections of the EU Constitution’ (2013) 51 Journal of Common Market Studies 65. 33  For a criticism of incoherence in the then-ESDP see comprehensively A Menon, ‘Security Policy and the Logic of Leaderlessness’ in J Hayward (ed), Leaderless Europe (Oxford University Press, Oxford, 2008) 131. 34  A Menon, ‘European Defence Policy from Lisbon to Libya’ (2011) 53 Survival 79–80. 35  ibid 80; Art 42(6) TEU. 36  Art 42(1) TEU.

Symposium Issue on Law and Peacekeeping—Clancy 83 The Lisbon provisions were lauded for their precision relative to the vague CFSP.37 However, tools such as PESCO were rarely utilised, leading Jean-Claude Juncker to famously refer to PESCO as the ‘Sleeping Beauty of the Lisbon Treaty’.38 With such tools being firmly confined to the box, including the EU Battlegroup concept, which at present has never yet been put to use in the field, Lisbon failed to make the EU more effective as an international actor,39 as illustrated by the experience in Libya.40 Criticism was harsh as surges in nationalism, disagreements surrounding strategic cultures and the extent of European ambition, and austerity hampered the project, leading some to question the CSDP’s value without mechanisms such as PESCO to provide the EU with autonomy from NATO and the United States.41 C.  PESCO and the Present The years since Libya have seemingly spelled a return to earlier ambitions. The decision of the British electorate in 2016 to leave the EU now means London no longer stands to block the full use of Lisbon,42 including the burden-sharing capabilities which France sought following its post-colonial engagement in Mali.43 Additionally, the change in administration in the United States, and its subsequent questioning of the relevancy of NATO, have culminated in an unearthing of PESCO.44 Initiated in late 2017 as part of broader EU reforms in the security and defence sector,45 PESCO is to provide for increased, legally binding, cooperation through various collaborative projects aimed towards the development of national forces’ military capabilities and their ability to cooperate, of which initially there are 17.46 It should be noted, however, that PESCO is a voluntary project which does not override or compromise the pre-existing security structure. However, once commitments are made to take part in particular projects, this then becomes legally ­binding.47 As such, PESCO has rightly been described as a non-intrusive collaborative process with the end goal being the capacity of autonomous action on the

37 

See P Eeckhout, EU External Relations Law, 2nd edn (Oxford University Press, Oxford, 2011) 168. Juncker, Speech at the Defence and Security Conference Prague: ‘In defence of Europe’ (2017) http://europa.eu/rapid/press-release_SPEECH-17-1581_en.htm accessed 27 October 2018. 39 See G Lindstrom, Enter the EU Battlegroups (97 Chaillot Papers, Paris, 2007); N Granholm, ‘EU-battlegroups: Some new capabilities, actually’ (2006) 151 The RUSI Journal 62. 40  Menon (n 34) 75–76. 41 J Howorth, ‘EU-NATO cooperation: the key to Europe’s security future’ (2017) 26 European ­Security 454; O Schmitt, ‘A Tragic Lack of Ambition: Why EU Security Policy is no Strategy’ (2013) 32 ­Contemporary Security Policy 413. 42  S Biscop, ‘All or nothing? The EU Global Strategy and defence policy after the Brexit’ (2016) 37 Contemporary Security Policy 431–32. 43  F Heisbourg, ‘A Surprising Little War: First Lesson of Mali’ (2013) 55 Survival 7. 44  N Nováky, ‘The EU’s Permanent Structured Cooperation in defence: Keeping Sleeping Beauty from snoozing’ (2018) 17 European View 99. 45  Council Decision (CFSP) 2017/2315. 46  European Union External Action, PESCO – Factsheet (2018) 8. 47  Novásky, above n 44, 99; AC Ertürk, ‘EU’s PESCO: A New Foreign Policy Instrument or the Same Old Story?’ (2018) 51 GPoT Policy Brief 4. 38  JC

84  The Irish Yearbook of International Law 2018 part of the CSDP,48 with the first projects including initiatives such as cross-border ­mobility, cyber-defence, and disaster relief.49 It must, however, be stressed that PESCO itself does not have the capacity to put such capabilities into use in the field; the function of PESCO is purely to equip participating States, and ultimately the CSDP as a whole, with the functionality to do so. France sees such limitations as emblematic of under-ambition; as France’s alternate vision for a more exclusive variant of PESCO led by larger EU Member States was sidelined, Macron has instead explored an operational cooperation framework outside of the cumbersome bureaucracy of the EU. This European Intervention Initiative (EI2), born from the French mindset following the 2015 Paris terror attack and its experience in Mali, represents the more action-orientated approach not found in PESCO.50 The governance of the PESCO instrument is divided between two layers; that of the Council of the European Union, and that of the PESCO members, supplemented by a dedicated PESCO secretariat. The Council serves as the EU institution overlooking PESCO’s broader policy directions via the implementation of its governance guidelines. Thus, decision-making powers pertaining to individual PESCO projects are vested primarily in States taking part in the project, and voting must be conducted by unanimity. Once proposed PESCO projects receive authorisation from the Council, and adherence to the guidelines is established, the participating States assume complete control and need not seek further guidance; the guidelines do, however, require annual progress reports to be made to the Council.51 An important challenge for PESCO will be helping onlookers understand its nature; the common perception of PESCO is as its own autonomous institution,52 whereas in reality its place within the broader CSDP context is quite subtle. No longer is the question about ‘integration’, rather the object of PESCO now is ‘cooperation’ via a modular approach focused on participation in individual projects.53 While this invocation of PESCO is undoubtedly in part due to an unease regarding the future of US/NATO supremacy, the anticipated outcomes of the project stand to also benefit NATO and the project was initially welcomed by NATO’s Secretary General, particularly given the similarity between a number of the currently planned projects and those being pursued by NATO.54

48 F Mauro, Permanent Structured Cooperation: national perspectives and state of play (Policy Department, Directorate-General for External Policies, Luxembourg 2017) 10, 13–14; J Howorth, ‘For a True European Defence Union’ (2018) 17 European View 5. 49  Novásky, above n 44, 100. 50  See generally N Koenig, ‘The European Intervention Initiative: A look behind the scenes’ (2018) www.delorsinstitut.de/en/all-publications/the-european-intervention-initiative-a-look-behind-the-scenes/ accessed 22 April 2019. 51 Ertürk, above n 47, 4; European External Action Service, Permanent Structured Cooperation – PESCO: Deepening Defence Cooperation Among EU Member States (2018). 52  Mauro, above n 48, 18. 53  ibid 19. 54  J Stoltenberg, ‘Doorstep speech at the start of the EU Foreign Affairs Council in Defence format’ www.nato.int/cps/en/natohq/opinions_148840.htm accessed 28 October 2018; S Biscop, ‘European Defence: Give PESCO a Chance’ (2018) 60 Global Politics and Strategy 174.

Symposium Issue on Law and Peacekeeping—Clancy 85 PESCO’s future will largely rely on its ability to produce results; should this ­ rocess fail to increase the CSDP’s ability to give action to Europe’s altruistic p ­scalpel it may face the same fate as the Battlegroups, particularly as elements of the ­‘Franco-German core’ experiment with alternative means to attain autonomy.55 III.  DOMESTIC IRISH CONTEXT

Parliamentary debates in Ireland on PESCO have followed the precedent set by other matters surrounding the EU and its CSDP; with assertions that Irish and E ­ uropean leaders intend to ‘sell out our military neutrality’ in favour of an unacceptable degree of militarisation, ultimately culminating in an EU army.56 Thus, this section will consider the implications of Irish involvement in PESCO projects57 in light of Ireland’s political positions and legal provisions on neutrality. A.  Political Factors The nature of Ireland’s political stance regarding its neutrality has been the subject of heated debate; while some consider the policy as inherent to Ireland’s place in the international community and ‘not a policy hastily conceived’,58 others contend the exact opposite.59 Regardless of one’s beliefs as to its genesis, there is considerably more agreement on the point that Irish neutrality does not fit into traditional definitions of the term.60 i.  Background to Irish Neutrality Éamonn de Valera is typically seen as the father of Irish neutrality. While it has been said that de Valera maintained this policy by exerting significant personal control 55 D Keohane, ‘EU Military Cooperation and National Defence’ (2018) 4 German Marshall Fund Policy Brief 6–8; increased French and German experimentation in this area have been referred to as a ‘Franco-German military complex’ by a respected commentator, see S Biscop, ‘European Defence: What’s in the CARDs for PESCO?’ (2017) 91 Security Policy Brief 1. 56  See the comments of Deputy Boyd Barrett in Dáil Debates, 5 December 2017, 962(6), p 722. 57 At the time of writing Ireland has committed to two projects: EU TMCC and the Upgrade of ­Maritime Surveillance; see Institute of International and European Affairs, Ireland’s involvement in PESCO (2018). 58  P Keatinge, The Formulation of Irish Foreign Policy (Institute of Public Administration, Dublin, 1973) 25; A Cottey, ‘Ireland and NATO: a distinctly low profiled partnership’ in A Cottey (ed), The European Neutrals and NATO: Non-alignments, Partnership, Membership? (Palgrave Macmillian, ­ ­London, 2018). 59  For the argument that Irish neutrality was always based on political expediency and pragmatism, see comprehensively RJ Raymond, ‘Irish Neutrality: Ideology or Pragmatism?’ (1983) 60 International Affairs 31, see particularly 40: Irish neutrality was ‘hastily cobbled together’; K Devine, ‘Irish political parties’ attitudes towards neutrality and the evolution of the EU’s foreign, security and defence policies’ (2009) 24 Irish Political Studies 467. 60  G Fitzgerald, ‘The Origins, Development and Present Status of Irish “Neutrality”’ (1998) 9 Irish Studies in International Affairs 18–19; BG Jesse, ‘Contemporary Irish Neutrality: Still a Singular Stance’ (2007) 11 New Hibernia Review 94–95.

86  The Irish Yearbook of International Law 2018 over his Cabinet during his tenure as Taoiseach,61 it seems that even then pragmatism was taking hold on Ireland’s direction internationally, as de Valera’s government supported membership of the United Nations, not believing it to complicate the nation’s declared neutrality.62 Despite claims by renowned Swiss jurist Hans Kelsen that membership would be incompatible with neutrality, it was adamantly argued by State officials, most notably Department of External Affairs legal adviser William Fay, that this was not the case.63 Even though Kelsen’s position had been supported by other authoritative experts,64 the argument gained little support domestically, and did not trump the word of de Valera. Though this is now largely of historical interest, it seems this framing of neutrality as a moral, as opposed to a legal, issue succeeded in creating what has been called a ‘holier than thou’ mindset,65 laying what has been described by one respected commentator as ‘an orthodoxy, if not a dogma’.66 The modern position is defined as military neutrality, characterised by nonmembership of military and mutual defence alliances, though with strong support for UN, EU, Organisation for Security Cooperation in Europe (OSCE) and NATO’s Partnership for Peace (PfP) operations in the peacekeeping context.67 Neutrality is conceptualised as the basis for international activities with the aim of combatting global ‘injustice, oppression or want’.68 Irish neutrality is proactive, seeing the prevention of conflict as an extension of neutrality69 and involves contributing to the above organisations, as well as seeking a leadership role on disarmament, nonproliferation, and arms control.70 Thus, the Department of Defence and the Defence Forces have admitted that neutrality has never proven to be a ‘limiting factor’ in the UN and EU context.71 ii.  Ireland’s Pragmatic Approach to Neutrality The Irish conceptualisation of neutrality is undoubtedly idiosyncratic. Some commentators have contended that this is due to a deliberate watering down of Irish 61 

Keatinge, above n 58, 57–58. Murphy, ‘Ireland, Peacekeeping and Defence Policy: Challenges and Opportunities’ in B Tonra and E Ward (eds), Ireland in International Affairs: Interests, Institutions and Identities (Institute of Public Administration, Dublin, 2002) 17. 63 J Allain, ‘The Use of Force – An Irish Approach’ in G Biehler, International Law in Practice: An Irish Perspective (Thomson Round Hall, Dublin, 2005) 290–91; JM Skelly, ‘Ireland, the Department of ­External Affairs, and the United Nations, 1945–55: A New Look’ (1996) Irish Studies in International Affairs 78. 64  It was contended, for example, that neutrality would not be permitted if a State was mandated by the Security Council to declare war, see H Lauterpacht, Oppenheim’s International Law, Vol II: Disputes, War and Neutrality, 7th edn (Longmans, Dublin, 1951) 647–49. 65 E O’Halpin, Defending Ireland: The Irish State and its Enemies since 1922 (Oxford University Press, Oxford, 1999) 257. 66 P Keatinge, A singular stance: Irish neutrality in the 1980’s (Institute of Public Administration, Dublin, 1984) 20. 67  Department of Defence, White Paper on Defence 2015 24–27. 68 Department of Foreign Affairs, Challenges and Opportunities Abroad: White Paper on Foreign Policy 1996 15–17. 69  ibid 118–20. 70  Department of Foreign Affairs, Statement of Strategy 2016–2019. 71  Department of Defence and Defence Forces, Annual Report 2015 17. 62  R

Symposium Issue on Law and Peacekeeping—Clancy 87 neutrality by political elites72 into ‘military neutrality’, directly caused by continued EU integration.73 To a certain extent this perspective is well-founded; Irish military neutrality is undoubtedly weaker and more pragmatic than the a priori definition of the term, however this is not to say that it is devoid of principle. Ireland’s membership of PfP, for example, was motivated by a fear of isolation and being ‘left behind’ should it not join; the military view going so far as to say that continued peacekeeping contributions would have become untenable if Ireland did not join.74 Financially, the high cost of peace enforcement and ‘robust’ peacekeeping would effectively have priced Ireland out of the market.75 The argument for PESCO follows similar lines: if Ireland wishes to continue to effectively contribute to EU peacekeeping operations, membership of PESCO seems to be an imperative. Obvious issues arise in cases where peacekeepers from different contributors are unable to effectively cooperate,76 and PESCO’s Training Mission Competence Centre (EU TMCC) stands to be the place where European best practice is developed for training missions such as that of Mali, thus making involvement in this and similar future projects invaluable for Irish peacekeepers and members of civilian missions.77 Ireland’s history of being ill-equipped should not be forgotten,78 and if Ireland wishes to continue to pursue this policy of ‘proactive’ neutrality, care must be taken to ensure it is not done recklessly. Irish peacekeeping is routinely held up as a point of national pride,79 and if ­Ireland’s prominent role in peacekeeping is to be maintained, cooperation with regional organisations and partnerships such as the EU and PfP, and full engagement with EU TMCC is something to be welcomed.80 Indeed here perhaps an unnecessary amount of caution may be observed; given Irish expertise in training missions from postings in Mali and Uganda, one could easily imagine a more ambitious Ireland taking a leading role in the Competence Centre.

72  K Devine, ‘A Comparative Critique of the Practice of Irish Neutrality in the “Unneutral” Discourse’ (2008) 19 Irish Studies in International Affairs 96. 73  K Devine, ‘Neutrality and the development of the European Union’s common security and defence policy: Compatible or competing?’ (2011) 46 Cooperation and Conflict 359. 74  O’Halpin, above n 65, 347; as observed in Murphy, above n 62, 17, this raises interesting parallels with de Valera’s motivations and decision regarding UN membership. 75  On the increasing cost of peacekeeping see H Shimizu and T Sandler, ‘NATO Peacekeeping and Burden Sharing: 1994–2000’ (2003) 31 Public Finance Review 126; R Doherty, ‘Partnership for peace: The sine qua non for Irish participation in regional peacekeeping’ (2000) 7 International Peacekeeping 70. 76  Dáil Debates, 7 December 2017, 962(8), speech 163. 77  For the importance of being privy to best practice in the rapidly developing field of peacekeeping and peace enforcement, see R Murphy, ‘Ireland Withdraws from Participation in EU Peacekeeping Mission to Macedonia’ (2005) 9 International Peacekeeping 131; for dangers of insufficient training see generally WA Dorn and J Libben, ‘Preparing for peace: Myths and realities of Canadian peacekeeping training’ (2018) 73 International Journal 274–77. 78 R Murphy, ‘Ireland, the United Nations and peacekeeping operations’ (1998) 5 International ­Peacekeeping 35. 79  See eg the words of the current Taoiseach in Dáil Debates, 9 May 2018, speech 99; also, those of the current President in R Flaherty, ‘Higgins says Ireland can take pride in its peacekeeping record’ The Irish Times (Dublin, 19 August 2018). 80 An interesting study suggests that the Irish public also takes a flexible approach to neutrality, and supports PfP involvement to assist Irish peacekeeping, see K Ishizuka, Ireland and International ­Peacekeeping Operations 1960–2000: A Study of Irish Motivation (Frank Cass, London, 2004) 155–57.

88  The Irish Yearbook of International Law 2018 iii.  Comparisons to Other States Advocates for Irish non-membership of PESCO typically point to the decisions of Denmark and Malta not to take part in the process to argue that Ireland’s membership is inappropriate for a neutral State.81 It should be noted that the comparison between Ireland and these two States is a deeply flawed one, thus will be briefly explored. a. Denmark Denmark is unique as being the only Member State which successfully demanded and negotiated an ‘opt-out’ from the CSDP, following its electorate’s rejection of the Maastricht Treaty via referendum; as such, Denmark does not generally take part in CFSP activities when it considers them to have implications for defence.82 ­Nonetheless, Denmark does support the development of the CSDP, though does still use the opt-out.83 Unlike Ireland, however, Denmark is not neutral, instead serving as a full member of NATO, and uses the opt-out due to NATO and its supremacy serving as the ‘corner stone of Danish security policy’.84 As such, Denmark has no qualms with using offensive military force, most notably in Iraq and Syria against the so-called Islamic State.85 Comparisons between Ireland and Denmark, therefore, fall on the first hurdle of even military neutrality. b. Malta Malta has opted not to join PESCO at this time, citing concerns that membership of the process may breach its constitutional neutrality clause. It has, however, committed to monitoring the development of the process and may join later.86 The neutrality clause explicitly sets out that Malta is neutral, adhering to a non-alignment policy and not taking part in any military alliance.87 This has not prevented Maltese involvement in PfP, though membership was suspended for a time after a change of government.88 Malta’s renewed membership was not immediately followed by 81  Eurosceptic Irish MEP Luke ‘Ming’ Flanagan often cites the Denmark example, see www.lukemingflanagan.ie/news/2018/3/12/pesco-is-not-about-peace-it-is-preparation-for-eu-wars accessed 7 November 2018; the Malta example was used by Deputy O’Sullivan in Dáil Debates, 7 December 2017, 962(8), speech 292. 82 F Schimmelfennig, D Leuffen and B Rittberger, ‘The European Union as a System of Differentiated Integration: Interdependence, Politicization and Differentiation’ (2014) Wien: Institut für Höhere Studien 21 www.ssoar.info/ssoar/bitstream/handle/document/41724/ssoar-2014-schimmelfennig_et_alThe_European_Union_as_a.pdf?sequence=3 accessed 7 November 2018. 83 CH Frederiksen, ‘Denmark in a rapidly changing security environment’ (2017) Danish Foreign Policy Yearbook 2017 27. 84  ibid 23. 85  ibid 26. 86  Nováky, above n 44, 100; also ‘Minister Farrugia attends Foreign Affairs Council Defence meeting’ https://homeaffairs.gov.mt/en/media/Press_Releases/Pages/2017/Nov/Minister-Farrugia-attends-ForeignAffairs-Council-Defence-meeting.aspx accessed 7 November 2018. 87  Constitution of Malta, Art 1(3). 88  Suspension was predominately due to an abrupt shift in government and party politics, see M Cini, ‘The Europeanization of Malta: Adaptation, Identity and Party Politics’ (2000) 5 South European Society

Symposium Issue on Law and Peacekeeping—Clancy 89 active participation in peacekeeping operations; rather, the partnership was used to develop its capacity to do so, though it should be noted that given Malta’s low population, this is a challenge.89 In reactivating PfP membership, Malta made sure to underline its view that membership was not inconsistent with the Maltese constitution, and that it was being viewed as a mechanism to increase the potential to contribute to UN sanctioned operations.90 This approach is noticeably similar to that of Ireland, as outlined above. Malta’s current Prime Minister (a member of the ardently pro-neutral Labour Party) wished to wait and see ‘whether PESCO is simply a system by which weapon purchases by European countries are more coordinated, or if it is going to take a more military form’,91 thereby confusing PESCO with the European Defence Fund, a separate, albeit connected, CSDP mechanism which will be discussed in Part IV. Thus, it ultimately appears that Malta’s primary issue is a lack of understanding of what exactly PESCO would entail,92 as well as internal political pressure and the government’s fear of losing power, as occurred prior to the suspension of PfP membership. It would thus seem counterintuitive and ill-advised to rely on Maltese nonparticipation as an argument against Irish involvement; misunderstanding and a lack of cohesion should not be something to aspire to. Further, the notion of Maltese neutrality is routinely interpreted in different ways by successive governments, creating a more chaotic conceptualisation than its vague, but relatively consistent, Irish counterpart. B.  Legal Factors i.  The Triple-Lock Due to the confusion surrounding PESCO, a brief consideration of the Irish ‘triplelock’ may be warranted. This mechanism has been described as the legal embodiment of Irish neutrality93 and was introduced initially in the Seville Declaration.94 Under this mechanism, all overseas operations undertaken by the Defence Forces must be authorised by the UN, the Irish Government, and Dáil Éireann. As such,

and Politics 265; for an overview of relevant Maltese party interests, see D Fenech, ‘Malta’ (2009) 48 European Journal of Political Research 1050. 89 M Petersson, ‘NATO and the EU “Neutrals” – Instrumental or Value-Oriented Utility?’ in H Edström, JH Matlary and M Petersson (eds) NATO: The Power of Partnerships (Palgrave Macmillian, Hampshire, 2011) 115. 90  ibid 121. 91 Quoted in European Parliament, Permanent structured cooperation (PESCO): Beyond establishment 6. 92  This is an issue not just in Malta but across many of the EU Member States, see Mauro, above n 48, 16–22. 93  See C Costello, ‘People’s Vengeances: Ireland’s Nice Referenda’ (2005) 1 European Constitutional Law Review 368–69. 94  Art 6, National Declaration by Ireland to the EU Council (21 June 2002).

90  The Irish Yearbook of International Law 2018 the Defences Forces may not be deployed where UN authorisation is not explicit; this requirement led to the withdrawal of Irish troops from an EU peacekeeping mission in Macedonia, as the ‘welcoming’ and ‘endorsement’ of the Security Council were not found to meet the requirement of the triple-lock, falling short of explicit authorisation.95 This requirement is untouched by EU law and PESCO; PESCO alone has no autonomous operational capacity itself, rather its function is to grant such capabilities to the CSDP.96 It must be stressed that jointly-procured enhanced capabilities are not to be jointly-owned, thus will not frustrate the triple-lock requirement, and that the EU has not reneged on its pledge that EU law does not infringe upon the right of individual Member States to make sovereign decisions regarding the use of their militaries.97 ii.  Bunreacht na hÉireann Unlike Malta, Ireland’s neutrality is not expressly provided for in the Irish constitution, in fact an Oireachtas committee expressly recommended against its inclusion.98 Nonetheless, it has long been government policy that any involvement in a common defence policy will require authorisation by the Irish people via referendum;99 this commitment was reaffirmed in Seville,100 and finally codified in 2009 during the Lisbon Referendum in the form of Article 29.4.9°.101 This provision may rightfully be considered as merely a constitutional mechanism to give effect to this long-standing commitment, however the fact remains that it is a functioning element of the Irish constitution, and thus deserves to be analysed in light of this fact. Unfortunately, such analysis has not yet been conducted, with leading constitutional law textbooks glossing over the Article.102 The text of the Article reads as follows: The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State.103

95 

Murphy, above n 77, 135; UN S/RES/1371 (26 September 2001) paras 4 and 5. See Mauro, above n 48, 13–14. 97 Art 6, Declaration of the European Council (21 June 2002); this question (unanswered by the government) was posed by Senator Alice-Mary Higgins, see Seanad Debates, 13 December 2017, 255(2), speeches 227, 277. 98 The All Party Oireachtas Committee on the Constitution, Report of the Constitutional Review Group (1996) 83; there is some support for its inclusion, though it should be noted that Sinn Féin’s proposal is insubstantial in terms of constitutional draftsmanship, omitting even a proposed wording for such a provision, see Sinn Féin, Defending Irish Neutrality: An Alternative to the Approach of the Irish Government. 99  See Department of Foreign Affairs, above n 68, 17. 100  See above n 94, Art 5. 101  Twenty-eight Amendment of the Constitution (Treaty of Lisbon) Act 2009, s 1, Article 1(d). 102  See GW Hogan and FG Whyte, JM Kelly: The Irish Constitution, 4th edn (Lexis Nexis ­Butterworths, London, 2003) 532; M Forde and D Leonard, Constitutional Law of Ireland, 3rd edn (Bloomsbury, ­London, 2013) 839, also 16, wherein it is mistakenly referred to as a general neutrality provision. 103  Art 29.4.9°. 96 

Symposium Issue on Law and Peacekeeping—Clancy 91 Clearly the Article is heavily steeped in the language of the EU and therefore should be interpreted as such. Thus, the question which must be asked is what constitutes a ‘common defence’ under Article 42 TEU. There are two relevant elements in this European provision which warrant interrogation: the ‘progressive framing’ of a common defence policy, which is to lead to a common defence,104 and the mutual assistance clause,105 both of which will be discussed in turn. a.  A Common Security or Defence Policy? Under the Article, Ireland may not take part in a common defence, which as we have seen, is to be one of the ultimate goals of the CSDP. The constitution, however, does not define ‘common defence’. Nor does Article 42 TEU, thus a debate has arisen surrounding the meaning of this term. The most compelling understanding is hinged upon a distinction between the term defence, supposedly referring to territorial defence, and security, supposedly referring to a broader concept, which may include the use of military personnel for purposes not related to territorial defence.106 This approach has been used by the European Parliament.107 An alternate interpretation has also been suggested, that ‘defence’ may be interpreted broadly to include all military matters, regardless of whether they pertain to territorial defence or broader security objectives. This interpretation, however, would ignore the differences between such matters,108 that is the difference between patrolling one’s borders and taking part in peacekeeping or peacebuilding operations; the implication here would be that a security mission would only refer to those which are purely civilian in nature. This is hardly satisfactory; what is the essential difference between a mission comprising of civilian police forces, and a mission comprising of military personnel, when both are in furtherance of the Petersberg Tasks? This would seem to devalue the deeply civilian elements of many CSDP missions, which feature both military and civilian components,109 effectively conceptualising the CSDP as, in cases involving armed forces, a fundamentally militaristic initiative. To consider any military operation as necessarily predicated upon some form of common defence in this sense would be to effectively disregard the CSDP’s predominantly civilian and non-combative spirit. The primary aspiration of the CSDP, however, remains a common defence; this vision was strengthened in the change in wording from ‘might lead’ to ‘will lead’ 104 

Art 42(2) TEU. Art 42(7) TEU. Naert, International Law Aspects of the EU’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Intersentia, Cambridge, 2010) 194–95. 107  European Parliament, Resolution on the Gradual Establishment of a Common Defence Policy for the European Union 190: ‘… a clear distinction should be made … with the concept of security covering Petersberg tasks’. 108  Naert, above n 106, 195–96; the opposite extreme has also been suggested, that the CSDP’s ‘D’ is in name only and that its function is entirely based upon security, see T Tardy, ‘Does European defence really matter? Fortunes and misfortunes of the Common Security and Defence Policy’ (2018) 27 E ­ uropean Security 129–30. 109  For an overview of CSDP civilian missions see Koutrakos, above n 8, 133–82. 105 

106 F

92  The Irish Yearbook of International Law 2018 after Lisbon, however practically this difference does not seem to make much ­difference, and should not compromise the integrity of current operations, as no timetable has been provided for such a development, and it requires a unanimous decision of the European Council.110 With security referring to, in essence, the Petersberg Tasks, and defence referring to territorial defence, the question remains as to the distinction between a common defence and a common defence policy. Once again, as the EU itself omits providing an explicit definition, some commentators have taken to arguing that the ‘most sensible’ interpretation of the term ‘common defence’ indicates a mutual defence clause.111 While a compelling case may be made for such an interpretation, it does seem to ignore the presence of the similar mutual assistance clause also present in Article 42(7) TEU, as well as the commitments of many EU Member States to NATO’s mutual defence clause, explicitly referenced in Article 42(7) TEU. Rather, an alternative understanding of the term may be found which better aligns with the sentiments expressed at Seville. This interpretation sees the common defence policy as the ‘creation of structures providing for coordination of the defence policies of the Member States’, whereas the common defence entails the ‘creation of an integrated command structure under whose orders a European army would ­operate’.112 Thus, Article 29.4.9° would only prohibit Ireland’s participation in an ‘EU army’, not the further coordination of the Defence Forces in line with their European peers.113 Furthermore, it would also rectify some contradictions in previous foreign policy documents.114 The future establishment of an ‘EU army’ at the behest of the European Council is not an impossibility, and it is true that PESCO may be used to provide training and equipment for such a force should it come into being, however it must be stressed that PESCO is not it. b.  Mutual Defence or Mutual Assistance? Concerns have been raised that the new-found, PESCO-driven capabilities of the Defence Forces would be used to wage ‘EU wars’ via a mutual defence clause.115 Naturally, such suggestions conjure up allusions to NATO’s famous mutual defence

110 

Naert, above n 106, 226. ibid 233. 112  RG Bono, ‘Some Reflections on the CFSP Legal Order’ (2006) Common Market Law Review 343; this interpretation was echoed in H Krieger, ‘Common European Defence: Competition or Compatibility with NATO?’ in M Trybus and N White, above n 9, 186–87. 113  This is consistent with the remarks made in the Seville Declaration: see the rejection of an EU army and recognition that development of EU capacity for humanitarian and crisis management tasks does not constitute an EU army in Art 4. 114  Compare Department of Foreign Affairs, above n 68, 18: ‘the Government have undertaken to put the outcome of any future negotiations that would involve Ireland’s participation in a common defence policy to the people in a referendum’ with 17: that neutrality will not prejudice Ireland’s approach to negotiations regarding a common defence policy; it is likely that the remarks on page 18 were referring to a common defence, not a common defence policy. 115  See eg L ‘Ming’ Flanagan MEP, ‘PESCO is not about peace, it is about preparing for EU wars’ Irish Examiner (Dublin, 20 March 2018). 111 

Symposium Issue on Law and Peacekeeping—Clancy 93 clause, which is rightly seen as being fundamentally antithetical to neutrality; it must be stressed that no analogous provision exists under EU law. The provision often cited as constituting an EU mutual defence clause, Article 42(7) TEU,116 may more accurately be described as a mutual assistance clause, which comes with exceptionally broad caveats. Envisaged in this provision is not strictly mutual military defence, as in NATO’s case, but a vaguer obligation for assistance, not necessarily of a military character.117 Even those who envisage the reference to an eventual common defence in Article 42(2) as being a commitment to the future introduction of a mutual defence clause do not believe the EU to currently have such a provision,118 Article 42(7) is thus necessarily weaker. The mutual assistance clause was first invoked by France following the 2015 ­terror attack,119 sparking a debate as to the nature of the obligation. Documents from the European Commission suggested that Member States had no discretion to decide whether to act, simply as to how, though even then the Commission recognised what has been dubbed the ‘Irish Clause’120 found in Article 42(7).121 While some commentators maintain cynicism surrounding the strength of the Irish Clause and believe Article 42(7) does indeed create an ‘EU Collective Defence’,122 it would be unwise to so simply discount its force. The correct interpretation of Article 42(7), contrary to the aforementioned documents, which do not necessarily portray the Commission’s views, seems to be that mutual assistance is not in fact obligatory. The Irish Clause, combined with the reference to ‘all the means in [member states’] power’ does appear to create a caveat for States declared as neutral,123 thus suggesting that the neutral status of a State such as Ireland may render the mutual assistance clause non-obligatory. This view is also consistent with the analysis of an authoritative commentator on the analogous Article I-41(2) of the rejected EU Constitution.124 Regardless, even if the above analysis proves false and assistance is required, it explicitly need not be of a military character. Perhaps tellingly in this regard, following the 2015 attacks France’s primary interest was in assistance such as ­burden-sharing

116  The relevant clause in Art 42(7) TEU reads: ‘If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States’. 117  N Nováky, ‘The Invocation of the European Union’s Mutual Assistance Clause: A Call for Enforced Solidarity’ (2017) 22 European Foreign Affairs Review 361; Koutrakos, above n 8, 68–71; also Council Decision 2013/106/EU which provides that the decision as to the nature of assistance to be provided is to be decided by individual Member States. 118  See Naert, above n 106, 233. 119  European Commission, ‘From Mutual Assistance to Collective Security’ (2015) 10 ESPC Strategic Notes 1; though the writer still refers to the Article as a ‘mutual defence clause’, the telling failure of the Article in this capacity after the 2015 attack is outlined well in Tardy, above n 108, 125. 120  ibid 2. 121  The Irish Clause reads: ‘[the mutual assistance clause] shall not prejudice the specific character of the security and defence policy of certain Member States’. 122  Devine, above n 73, 354–55. 123  Naert, above n 106, 227. 124  J Howorth, ‘The European Draft Constitutional Treaty and the Future of the European Defence Initiative: A Question of Flexibility’ (2004) 9 European Foreign Affairs Review 495–96.

94  The Irish Yearbook of International Law 2018 in its various operations outside of the campaign against IS, most notably in Mali, rather than traditional assistance in territorial defence.125 Regardless, should future military support be sought, its deployment will remain limited by the authorisation requirements under the triple-lock. Even still, while the future development of a European mutual defence clause would likely prove unconstitutional, the current mutual assistance clause is fully compliant with Article 29.4.9°. IV.  BENEFITS OF PESCO FOR IRELAND AND THE IRISH DEFENCE FORCES

What benefits then, can PESCO bring? Perhaps the greatest argument for Irish involvement in PESCO is a financial one. This section will consider the financial barriers facing the Defence Forces and how PESCO serves to mitigate these issues and provide for a more cost-efficient improvement of the Irish military. A.  The Defence Forces on Austerity At the time of writing, the Irish Defence Forces are embroiled in a crisis surrounding the payment of military personnel.126 This can largely be attributed to the effect of a government policy of austerity following 2008, wherein it was decided to action defence staff reductions, cut the Reserve Defence Forces by two-thirds, end overseas missions not considered worth the cost, close a number of barracks, discontinue a number of programmes, and to outsource tasks such as ministerial transport to the private sector.127 These reforms did little to assist a military which has historically been below authorised strength128 and which Price Waterhouse in their leaked 1994 report referred to as ‘badly structured, too old, poorly trained, and inappropriately equipped’.129 The end results of this campaign were subpar training facilities,130 high turnover due to migration to the private sector,131 and a shortage of medical personnel,132 among other issues. The most visible issue for civilians, however, is that of pay and pensions; even though the vast majority (80.5 per cent in 2017) of defence funding goes towards personnel expenditure, placing Ireland joint highest in Europe

125 S Biscop, ‘The European Union and Mutual Assistance: More than Defence’ (2016) 51 The ­International Spectator 120. 126 See P Murtagh, ‘Defence Forces veterans claim lack of respect being shown’ The Irish Times (­Dublin, 2 October 2018). 127  Department of Finance, Report of the Special Group on Public Service Numbers and Expenditure Programmes, Vol I (2009) 39–40. 128  Murphy, above n 25, 725; as of 31 July 2018, the strength of the Permanent Defence Forces stood at 8,898 of an authorised 9,500, see Dáil Debates, 7 September 2018, speech 31. 129  Murphy, above n 78, 32. 130 Department of Defence, Value for Money Review of the Military Training Lands Portfolio (2010) iii. 131  Department of Defence, Annual Report 2016 40. 132 ibid 26; this has led to increased outsourcing of medical procedures to the private sector, see Defence Forces Strategy Statement 2015–2017.

Symposium Issue on Law and Peacekeeping—Clancy 95 in this area,133 it is reported that many personnel do not earn a living wage.134 Of what was left, 8.65 per cent was spent on equipment135 and only 1.8 per cent on operational expenditure.136 This puts the pay to non-pay ratio of the total defence spending at just over 80:20, remaining static since Price Waterhouse recommended moving towards a target of 70:30 in 1994.137 The current government has committed to increases in the defence budget, including a €541m investment into equipment and infrastructure over the period 2018–22,138 however it is likely that real improvement will prove far more expensive.139 B.  Pricing Peacekeeping From a financial perspective, Ireland generally favours peacekeeping operations conducted through the UN framework; UN peacekeeping operations are, unlike their EU counterparts, reimbursed, and as such are seen as an ‘austerity option’ for so-inclined States.140 This makes UN operations particularly attractive to smaller States, as they stand to make a profit from UN reimbursement, which Ireland has done in the past;141 in 2016, reimbursements stood at $1,332 US per head volunteered.142 Unfortunately for Ireland, however, an increasing trend seems to be for the UN to delegate and outsource peacekeeping operations to bodies such as the EU,143 which operates on a ‘costs lie where they fall’ basis.144 Under this approach each contributing Member State is responsible for paying for their own expenses, which triggered a slowdown in CSDP operations generally following the introduction of austerity measures in States across Europe following 2008.145 The Athena ­mechanism 133  See Department of Public Expenditure and Reform, Spending Review 2017: Defence Vote Group 3–4, 29–30. 134  J Mac Mahon, S Mac Curtain and C Harnett, Workplace Climate in the Defence Forces Phase 2: Results of the Focus Group Research (2017) 26, 170. 135  Department of Public Expenditure and Reform, above n 133, 24. 136  ibid 27. 137  Department of Defence, White Paper on Defence 2000 para 9.3.1. 138  Dáil Debates, 21 March 2018, 966(8), speech 381. 139  It has been observed that this increased investment may be viewed simply as compensation for austerity measures enacted since 2008, and that the true net benefit of these lavish figures (such as the €416m proposed at the end of 2017) may be closer to the tune of a mere €25m, see B Flynn, ‘PESCO, Multilateral Defence Cooperation and Ireland’ (2018) 29 Irish Studies in International Affairs 88. 140  E Burke and J Marley, Walking Point for Peace: An Irish view on the state of UN peacekeeping (New York University Centre on International Cooperation, New York, 2015) 5. 141  N Kiely, ‘State made £5m “profit” from UNIFIL’ The Irish Times (Dublin, 10 September 1986); it should be noted however that this has not always worked smoothly, on the experience in Chad see ibid 21–22. 142  T Sandler, ‘International Peacekeeping Operations: Burden Sharing and Effectiveness’ (2017) 61 Journal of Conflict Resolution 1881–82. 143  See Doherty, above n 75, 80; H Yamashita, ‘Peacekeeping cooperation between the United Nations and regional organisations’ (2012) 38 Review of International Studies 165. 144 F Terpan, ‘Financing Common Security and Defence Policy operations: explaining change and inertia in a fragmented and flexible structure’ (2015) 24 European Security 222–23. 145  ibid 225–29.

96  The Irish Yearbook of International Law 2018 has been implemented to assist in burden sharing in response to the challenges of assembling and funding on an ad hoc basis,146 however due to intense disputes surrounding burden-sharing Athena has remained largely in the control of a small number of Member States.147 As such, the European Commission’s new role in funding, introduced along with and in complementarity to PESCO, is key.148 C.  PESCO and the European Defence Fund It is clear that that Irish defence spending must increase, both to improve living standards of personnel, and to develop the capabilities to effectively contribute to future missions under the UN and EU; the question is how to do so in the most costeffective manner – thus, enter PESCO and the European Defence Fund (EDF). The EDF, established along with PESCO to assist the EU in attaining autonomy, provides a framework whereby the EU will provide part of the cost of ­collaborative efforts for the research, development, and procurement of defence capabilities; thus, the Fund is intended to provide extra funding for eligible projects conducted via PESCO.149 The EDF will operate based on two ‘windows’; one for research, based upon the development of future defence technologies, with a current EU budget of €25m, and one for capabilities (known as the European Industrial Development Programme), focused upon allowing the joint-purchasing of defence assets,150 for example a number of States collectively investing in a bulk order of helicopters.151 It has been suggested that this window could provide €500m per year towards such capability projects, with an ambitious €1bn planned for after 2020.152 Such benefits will not come free. The requirement to invest 20 per cent of collective defence spending on capability development (Ireland currently spends only approximately 8.65 per cent of its domestic defence spending on equipment) implicitly requires an increase in overall Irish defence spending.153 It should be noted, however, that as this applies collectively among Member States as opposed to individually, attempting to gauge the immediate impact of this requirement is not at all a simple exercise.154 Nonetheless, as we have seen Ireland intends to make such increases anyway, bringing us closer in line with the 70:30 ratio advised in 1994.

146  N Nováky, ‘Who wants to pay more? The European Union’s military operations and the dispute over financial burden sharing’ (2016) 25 European Security 217–18; for a list of costs which can be charged to Athena, see Council Decision (CFSP) 2015/528. 147  Nováky, above n 146, 231–33. 148  See Tardy, above n 108, 128–29. 149  See European Commission, The European Defence Fund (2018). 150  As such, costs would be split between the purchasing States and the EDF, which would contribute up to 20% for non-PESCO projects, and up to 30% for PESCO projects. 151  European Commission, European Defence Action: Towards a European Defence Fund (2016). 152  European Commission, The European Defence Fund: Questions and Answers (2017). 153 Biscop, above n 54, 3; European Parliamentary Research Service, European defence industrial development programme (EDIDP) (2018) 4. 154  See Flynn, above n 139, 93.

Symposium Issue on Law and Peacekeeping—Clancy 97 A NATO-style (individual) ‘2 per cent’ requirement has also been suggested, with some support, though as commentators have observed, its success is unrealistic.155 Increased military spending is a thorny issue in Ireland, particularly with such crises as those of housing and homelessness ongoing,156 however it seems clear that it has become a necessity if we are to maintain our current international status. If Irish ambitions to contribute towards international peace and security are to continue to be realised, engagement with increased CSDP ambition will likely be essential. Budgetary constraints are understandable, however without increased investment Ireland’s peacekeeping prestige will become untenable, particularly outside of the UN-led context. As such, engagement with PESCO and the enhanced CSDP is recommended from a financial perspective. After involvement in EUFOR in Chad cost Irish taxpayers €59m in 2008, increased central EU funding certainly looks ­attractive,157 particularly as Ireland has become a net contributor to the EU since 2014.158 Such is the carrot presented by the EU’s new initiatives; for a decade now the CSDP has laid relatively dormant, thus little attention was given to the costs or Irish re-engagement in new such missions. If European cooperation does however ‘step up’ in furtherance of the Petersberg Tasks and Ireland wishes to continue its prominent role in international peace and security, our relationship with resourcing our defence forces will need to change. PESCO and the EDF represent a modest degree of assistance in this process. V. CONCLUSION

Relative to other reforms called for by European leaders, PESCO hardly seems unrealistic.159 From the European perspective, reliance on NATO and the US has always been somewhat humiliating, however since 2016 this crucial relationship has, not infrequently, been plunged into uncertainty. The potential of the CSDP’s machinery has remained, for the most part, unrealised since Lisbon; initiatives such as the EU Battlegroups have remained undeployed, undeveloped, and unscrutinised, leading to high costs for little benefit,160 save for their role in the development of individual national forces.161 Enhanced cooperation among EU Member States, and PESCO’s

155 

Biscop, above n 54, 3. generally Seanad Debates, 1 May 2018, 257(10); K Allen, ‘Pesco makes us choose defence spending over housing homeless’ The Irish Times (Dublin, 15 December 2017); Flynn, above n 139, 93. 157 B Tonra, ‘Greater military cooperation under Pesco presents range of costs’ The Irish Times (­Dublin, 14 November 2017). 158 B O’Halloran, ‘Ireland paid €200m net to European Union in 2017’ The Irish Times (Dublin, 27 February 2019). 159  See eg calls for a ‘true European army’ in A Merkel, ‘Debate on the Future of Europe: opening statement’ https://multimedia.europarl.europa.eu/en/debate-on-the-future-of-europe-opening-statementby-angela-merkel-german-federal-chancellor-_I162933-V_rv accessed 15 November 2018. 160  See generally Y Reykers, ‘EU Battlegroups: High costs, no benefits’ (2017) 38(3) Contemporary Security Policy 457. 161  European Parliament Debates, 31 October 2018, E-004550/2018; Dáil Debates, 21 March 2018, 966(8) speech 70. 156 See

98  The Irish Yearbook of International Law 2018 commitment to the concept, may unlock the Battlegroups, finally presenting an operational return to contributing States. Further, Brexit will represent a striking plummet in the level of defence research conducted under the EU’s umbrella.162 PESCO’s modular project-based structure presents an opportunity for remaining States to increase their capabilities collectively while availing of subsidies from the EDF. Undoubtedly some projects will be more popular, and more successful, than others, however those who do engage stand to avail of better developed capabilities, both for their own territorial defence and in pursuit of the Petersberg Tasks, and of increased coherence while overseas on specific missions, facilitated by projects such as the EU TMCC. Thus, PESCO may present somewhat of a second coming for the CSDP; the future of PESCO may unfold in myriad ways, however at its outset it certainly holds potential. This potential has largely been missed in the Irish discourse, due to a misunderstanding of the admittedly vague provisions of Article 42 TEU and conflicting language of cooperation and an EU Army from the European leadership. Irish neutrality, common defence, and common defence policy are by no means well-defined terms, thus orientating oneself in the European and military jargon of PESCO and the CSDP is a challenge for civilian onlookers. It must be stressed that PESCO is by no means the ‘European Army’ called for by some and feared by others to lurk deep within the Lisbon Treaty. Rather, PESCO serves to develop national forces and to assist in the realisation of the CSDP. It is certainly true that enhancements facilitated by PESCO, and partly funded by the EDF, may be used as part of NATO-mandated mutual defence operations, Iraqstyle interventions, and even the future exploits of a ‘European Army’. Nonetheless, this may also be said of any form of defence collaboration; even UN training for peace-enforcement missions may be so misappropriated. This does not invalidate its necessity for the task at hand, nor does the initiative require, or even incentivise the removal of the triple-lock, helping to ensure such misappropriations are not committed by Irish troops, ensuring the Irish focus is kept squarely on peacekeeping.

162 The UK was responsible for approximately 40% of R&D in the area of Defence, see T May, ‘PM speech at Munich Security Conference: 17th February 2018’ www.gov.uk/government/speeches/pmspeech-at-munich-security-conference-17-february-2018 accessed 15 November 2018.

The Human Rights Jurisdictional Reach – A New Entry Point in Peace Operations – An Operational Perspective RICHARD BRENNAN*

a U.N. flag doesn’t give … immunity as a state or as an individual soldier1 I. INTRODUCTION

T

HE APPLICABILITY OF human rights as a matter of law remains controversial in some respects, such as the extraterritorial application of the European Convention on Human Rights. Questions as to when a State owes obligations under a human rights treaty towards an individual ‘located outside its territory are being brought more and more frequently, before courts both international and domestic’.2 The list is broad and varied; victims of aerial bombardment,3 inhabitants of territories under military occupation,4 even deposed dictators5 have all claimed protection from human rights law against a State affecting their lives while acting outside its territory. The reality is that human rights and their universalist premise * Lieutenant Colonel, Brigade Legal Officer, 2nd Brigade Headquarters, Defence Forces (Ireland). 1 Liesbeth Zegveld, Dutch Lawyer who represented the victims of Srebrenicia. ICD. The Netherlands v Nuhanovic – Asser Institute. www.internationalcrimesdatabase.org/Case/1005/ The-Netherlands-v-Nuhanovi%C4%87/. 2 M Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State jurisdiction in Human Rights Treaties’ (2008) 8(3) Human Rights Law Review https://papers.ssrn.com/sol3/papers. cfm?abstract_id=1139174. 3  Bankovic and Others v Belgium and Others [GC] (dec), App. No. 5853/06, 11 December 2001 (hereinafter Bankovic and ors GC). The application was brought by six citizens of the Federal Republic of Yugoslavia (FRY) and concerned the bombing by the North Atlantic Treaty Organization (NATO) of the building of Radio Televizije Srbije (Radio-Television Serbia, RTS) during the Kosovo crisis in April 1999. The building was destroyed; 16 people were killed and 16 others were seriously injured. The applicants, all family members of the deceased or themselves injured in the bombing, complained that the bombardment of the RTS building violated not only Article 2 (right to life), but also Article 10 of the European Convention on Human Rights (freedom of expression). 4  R (Al-Skeini and others) v Secretary of State for Defence [GC] (dec), App. No.55721/07, 7 July 2007. Al-Skeini concerned the killing of six Iraqi civilians by British soldiers in southern Iraq, including the brutal death of Baha Mousa during his detention at a UK army base. In 2007, the House of Lords held that the Human Rights Act 1998 did not apply to the soldiers’ actions save those on the army base. ­However, the Grand Chamber held that the UK Government had a duty to conduct an effective investigation into the deaths of all the civilians killed by British soldiers, whether or not they were within the confines of a UK military base. It based its decision on the fact that the UK had assumed responsibility for the maintenance of security in Southern Iraq and was exercising ‘control and authority’ over Iraqi civilians. 5 See Milosevic v The Netherlands (dec), App. No. 77631/01, 19 March 2002.

100  The Irish Yearbook of International Law 2018 have become ‘internalised to such an extent that their extraterritorial application is no longer a theoretical issue’.6 This conclusion is further underpinned by the UN Human Rights Committee,7 which unequivocally sets out the obligations of a State party to respect and ensure the rights of all persons within its territory and its jurisdiction including ‘persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonable foreseeable manner’.8 II.  HUMAN RIGHTS AND PEACE OPERATIONS

In this regard, the application of human rights in Peace Operations retains an equally important narrative. Each Troop Contributing Country (TCC) undertaking United Nations mandated Peace Operations9 has an independent obligation under International Human Rights Law (IHRL) to ensure that its armed forces comply with its human rights obligations during its participation in a Peace Operation, whether expressly declared in the mandate or not.10 Indeed, it is an obligation that has been growing progressively more acute in the past decade. In Peace Operations, human rights obligations can be viewed through three pillars: the mandate under which the operation is taken; in the absence of express provision in the mandate, Peace Operations should respect the law of the host State including its obligations under international law of which human rights may be a part; and finally, the human rights obligations of the sending State and/or of the

6 M Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford University Press, 2013) 6. 7  UN Human Rights Committee (HRC), General comment no. 36, on article 6 of the International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36,(2018) www.refworld.org/ docid/478b26ae2.html accessed 17 April 2019. 8  ibid para 63. ‘In light of article 2, paragraph 1 of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably manner.’ For more on the controversial application of this view see N Lubell, Extraterritorial Use of Force Against Non-State Actors, (Oxford University Press, 2010) 194–206. 9  For the purposes of this chapter, the term ‘Peace Operations’ covers consensual Peace Operations regardless of their organisational structure, including both traditional peacekeeping operations and multidimensional Peace Operations which go beyond the traditional tasks of maintaining the post-conflict ­status quo and monitoring ceasefire and redeployment between warring parties, and include peacebuilding and post conflict resolutions. Such operations rely on consent of the Host State and at the outset also on the consent, or at least on the acquiescence, of all major parties to the conflict. A Peace Force operating within the confines of this chapter may be called upon to use force in situations of temporary break down and instability or violence directed against civilians, but will not be expected to become party to an armed conflict and will maintain impartiality and use force only as a last resort in self-defence and in defence of the mandate. See T Gill, D Fleck, WH Boothby and A VanHeusden (eds), Leuven Manual on the International Law applicable to Peace operations, (Cambridge University Press, 2017), rules 1.1 and 5.1 respectively. 10  BF Klappe, ‘The Law of International Peace Operations’ in D Fleck (ed), The Handboook of International Humanitarian Law, 3rd edn (Oxford University Press, 2013) 619–25.

Symposium Issue on Law and Peacekeeping—Brennan 101 organisation under the control of which a Peace Operation is conducted may apply extraterritorially for acts committed within its jurisdiction.11 This follows from what is described as the: […] the tripartite obligation which is incumbent on all State parties to all human rights treaties to respect, to protect and to fulfil human rights. The obligation to respect human rights means that the State shall not interfere with anyone’s enjoyment of their rights and freedoms. The obligation to protect human rights means the State shall take active steps to protect individuals against such interference from other actors. Finally, the obligation to fulfil human rights means that the State shall take active feasible through legislation, administrative practice … to realise the human rights of everyone towards whom they have human rights duties and obligations.12

A view consistent with the International Court of Justice (ICJ), who having considered the ‘object and purpose’ of the International Covenant on Civil and Political Rights in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, stated that while the jurisdiction of States is territorial, it may sometimes be exercised outside the national territory and it would, ‘seem natural that even when such is the case, State parties to the Covenant should be bound to comply with its provisions’.13 The ICJ noted that the ‘constant practice of the Human Rights Committee is consistent with this’.14 Similarly, as a matter of policy and practice human rights provide ‘significant guidance in EU operations and in practice, EU operational planning and rules of engagement take into account internationally recognised standards of human rights law’.15 An obligation of universal application as affirmed within the recent text of the 2018 United Nations Human Rights Committee (UNHRC) General Comment No. 36 which adopted an ‘impact’ approach setting out that the International ­Covenant on Civil and Political Rights applies to ‘… persons located outside any ­territory effectively controlled by the State, whose right to life is nonetheless impacted by its

11  T Gill, D Fleck, WH Boothby and A VanHeusden (eds), Leuven Manual on the International Law applicable to Peace operations, (Cambridge University Press, 2017) 76–77. 12  ibid 81, ‘This tripartite obligation, which is similar to the obligation under international humanitarian law (IHL) ‘to respect and to ensure respect for’ the Geneva Conventions of 1949 in all circumstances, means that States must ensure, to the greatest extent possible, that their armed forces comply with their States’ human rights obligations.’ 13  Legal Consequences of the Construction of a Wall in Occupied Palestine Territory, Advisory ­Opinion, ICJ Reports 2004, para 109, p 136 (hereinafter The Wall case). Israel denied that the human rights instruments to which it was a party, including the International Covenant on Civil and Political Rights, were applicable to the Occupied Palestinian Territory. The ICJ seminally set out that ‘As regards the relationship between IHL and HRL, there are three possible situations; some rights may be exclusively matters of International Humanitarian law; others may be exclusively matters of Human Rights law; yet others may be matters of both branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law …’ 14  ibid para 109 ‘The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory.’ Lubell posits that the ‘position of the Human Rights Committee, that the ICCR obligations can apply extraterritorially, appears to be consistent and been repeated on a number of occasions’. See N Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford University Press, 2010) 196. 15  F Naert, ‘International Humanitarian Law in Peace Operations as part of a variable ius post bellum’, Institute for International Law, Working paper No. 150 (2011) www.law.kuleuven.be/iir/nl/onderzoek/ working-papers/wp150e.pdf.

102  The Irish Yearbook of International Law 2018 military or other activities in a direct and reasonably foreseeable manner’.16 (This approach did not meet with consensus among certain States who have argued that the notion of ‘impact’ was too broad).17 This certainly has relevance for the Irish Defence Forces, given the current ­deployment of Irish troops within the rubric of increasingly challenging mandate requirements where use of force beyond traditional self-defence norms is m ­ andated – such as Protection of Civilians,18 in Lebanon (UNIFIL) and the recently ­authorised19 robust deployments20 to Mali (MINUSMA) where MINUSMA is mandated to anticipate and deter threats and to ‘take robust and active steps to counter asymmetric attacks against civilians or United Nations personnel’.21 In such an environment, where the spectrum of Peace Operations has evolved both within policy doctrine (the Irish Government’s White Paper on Defence) – as moving beyond ‘simply monitoring or imposing peace agreements and separation of forces’,22 and internationally where – as set out in the recent United Nations Cruz 16  UN Human Rights Committee (HRC), General comment no. 36 (63), Article 6 of the International Covenant on Civil and Political Rights, on the right to life, 30 October 2018, CCPR/C/GC/36, www. refworld.org/docid/478b26ae2.html accessed 17 April 2019. 17 D Mogster, ‘Towards Universality: Activities Impacting the Enjoyment of the Right to Life and Extraterritorial Application of ICCPR’ (EJIL Talk!, 2018) www.ejiltalk.org/towards-universality-­ activities-impacting-the-enjoyment-of-the-right-to-life-and-the-extraterritorial-application-of-the-iccpr/ ‘Seven States raised objection to formulation … . The more easily dismissible objections were voiced by Canada and the U.S. who advocated for the return to a conjunctive understanding of “territory and jurisdiction” … barring any extraterritorial application of the Covenant. The rest argued that the notion of “impact” was too broad (France, Germany, Austria, Norway and the Netherlands), going “far beyond the established interpretation of the extraterritorial application of the Covenant”.’ 18  UN Security Council, Security Resolution, 1701 (2006) 11 August 2006 S/RES/1701/2006, Operational Paragraph (OP) 12 ‘Acting in support of a request from the Government of Lebanon to deploy an international force to assist it to exercise its authority throughout the territory, authorizes UNIFIL to take all necessary action in areas of deployment of its forces and as it deems within its capabilities, to ensure that its area of operations is not utilized for hostile activities of any kind, to resist attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council, and to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of United Nations personnel, humanitarian workers and, without prejudice to the responsibility of the Government of Lebanon, to protect civilians under imminent threat of physical violence.’ https://unsco.unmissions.org/sites/default/files/s_res_17012006.pdf. 19  The Dail Approved on 20 June 2019 the deployment of Army Ranger Wing to Mali as part of the MINUSMA. www.thejournal.ie/dail-approval-to-send-irelands-army-ranger-wing-to-mali-4691682Jun2019/. 20  Colm O Mongain, ‘Risk is real as Irish Special Forces to deploy to Mali’ www.rte.ie/news/analysisand-comment/2019/0112/1022614-irish-troops-mali/. They will be taking part in the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), described by The Washington Post as ‘The World’s Deadliest Mission’. 21  UN Security Council, Security Resolution,2423 (2018) June 28 2018 S/RES/2423/2018, Operational Paragraph (OP) 34 ‘Requests MINUSMA, in pursuit of its relevant priority tasks and active defence of its mandate, to continue anticipate and deter threats and to take robust and active steps to counter asymmetric attacks against civilians or United Nations personnel, to ensure prompt and effective responses to threats of violence against civilians and to prevent a return of armed elements to those areas, engaging in direct operations pursuant only to serious and credible threats.’ 22  White Paper Defence (2015) ‘Peace support and crisis management operations have evolved beyond simply monitoring or imposing peace agreements and separation of forces. This has required the development of new responses as traditional threats have morphed into more complicated asymmetric and hybrid formats, the rapidly changing threat environment is demanding a more complex and ­co-ordinated response across a whole range of areas, including conflict prevention, containment and resolution, and post conflict stabilisation, reconstruction and development.’ Para 3.4.5. www.military.ie/en/public-­information/

Symposium Issue on Law and Peacekeeping—Brennan 103 Report,23 the so called ‘era of “Chapter VI-style” peacekeeping is over’24 requiring, as outlined by the Report of the High-Level Independent Panel on Peace Operations (the HIPPO report), a more proactive robust UN posture,25 the question of the applicability of human rights law, in particular ECHR law, becomes acute and relevant for UN operational Commanders and their legal advisers and Irish troops deployed within such theatres of operations. The incorporation of the European Convention into Irish law by the European Convention on Human Rights Act 2003 sharpens this focus and as stated by the Minister for Defence in 2007 ‘there is now an obligation upon every organ of State to operate in a manner compatible with the Convention …’26 This chapter’s primary contribution is to review relevant aspects of certain ­decisions27 of the European Court of Human Rights (ECtHR), in particular where the Court has held States responsible for the extraterritorial acts of their troops in UN mandated military operations. The application of ECHR law to such actions reflects a pattern, according to the recently published Leuven manual, which ­demonstrates that the Convention is considered applicable in Peace Operations, if the criteria for application are satisfied in the particular case.28 This chapter will finally look at some of the challenges for the Irish commanders and their legal advisers in operationalising these legal obligations in all aspects of the training; planning and execution of UN mandated Peace Operations. III.  UNDERSTANDING THE THRESHOLD CRITERION OF ‘JURISDICTION’

In order for any military force to have legal human rights obligations towards ­anyone, a relevant nexus is required between the military forces and the potential rights holders. In human rights treaties, this nexus is often referred to as the exercise of ‘jurisdiction’.29 Article 1 of the European Convention of Human Rights (ECHR) publications/white_paper_review_2007.pdf. See also comments of Minister Paul Kehoe TD to Dail Eireann on 18 June 2019 ‘The range of tasks assigned to UN Peace operations has expanded significantly in response to shifting patterns of conflict and adapted approaches to addressing threats to international peace and security …’ www.oireachtas.ie/ga/debates/debate/dail/2019-06-18/32/. 23  Lieutenant General (Retired) Carlos Alberto dos Santos Cruz, ‘Improving Security of United Nations Peacekeepers: We need to change the way we are doing business’ (2017) 11. https://peacekeeping.un.org/ en/improving-security-of-united-nations-peacekeepers-independent-report. 24  ibid p 1. 25  United Nations, Uniting our Strengths for Peace – Politics, Partnership and People: Report of the High-Level Independent Panel on Peace Operations, 16 June 2015: ‘They must operate on the assumption that the use of force may be necessary from the outset to protect civilians and to defend the mission and its mandate … Contingents must deploy with the necessary equipment and training and a clear understanding of the mission rules of engagement.’ Para 113 vii. https://peaceoperationsreview.org/wp-content/ uploads/2015/08/HIPPO_Report_1_June_2015.pdf. 26 Defence (Amendment) (No.2) Bill 2006 Second Stage – Seanad Eireann opening statement by ­Minister for Defence, Mr Willie O’Dea TD, www.oireachtas.ie/en/debates/debate/seanad/2007-02-06/7/. 27  There is not enough space here to give a detailed analysis of all cases of and views on extraterritorial applicability. This chapter will attempt to set out the main concerns and approaches to this issue. 28  T Gill, D Fleck, WH Boothby and A VanHeusden (eds), Leuven Manual on the International Law applicable to Peace Operations (Cambridge University Press, 2017) 81. 29  ibid para 5.2, p 79.

104  The Irish Yearbook of International Law 2018 sets out the threshold criterion that ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 130 of the Convention’. It is the ‘threshold criterion, which must be satisfied in order for treaty obligations to arise in the first place’.31 In other words, a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it. Naturally, the meaning of this ‘contentious concept’32 of ‘jurisdiction’ and the precise parameters of this extraterritorial reach is of ‘paramount importance’.33 However, it is a concept that is often hotly contested between the competing forces of ‘universality’ and the essentially territorial notion of jurisdiction. The counter point being that the notion of ‘jurisdiction’ should not be allowed to ‘“evolve” or “incrementally develop”, in the same way as the law in respect of the substantive rights and freedoms guaranteed by the Convention’.34 ‘Jurisdiction’ in human rights treaties is primarily territorial,35 in the sense that States are presumed to have human rights obligations within their own territory, but not normally outside the territory.36 However, practice from international human rights bodies and the European Court of Human Rights (ECtHR) has accepted a notion of extraterritorial jurisdiction, meaning that a State is considered to exercise jurisdiction, and consequently to have human rights treaty obligations outside its own territory37 in exceptional circumstances.38 The evolving jurisprudence of the ECtHR has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. IV.  EXCEPTIONAL CIRCUMSTANCES

The ECtHR has recognised that a State’s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory such as

30 European Convention of Human Rights (ECHR), Section 1 sets out the Rights and Freedoms g­ uaranteed under the Convention; Article 2 – Right to Life; Article 3 – Prohibition of Torture; Article 4 – Prohibition of slavery; Article 5 – Right to Liberty and Security; Article 6 – Right to a fair trial etc, www. echr.coe.int/Documents/Convention_ENG.pdf. 31 M O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A ­comment on “Life After Bankovic”’ (2004), in F Coomans and M Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 125. 32 C Ryngaert, ‘Clarifying the Extraterritorial Application of the European Convention on Human Rights’ (2011) Utrecht Journal of International and European Law 58. 33  M Milanovic, ‘Al-Skeini and Al Jedda in Strasbourg’ (2012) 23(1) The European Journal of International Law 122. 34  Jaloud v The Netherlands, Application No 47708/08,[GC] [dec] 20 November 2014, para 121. It was the argument by the intervening government – the United Kingdom, that the ‘living instrument’ doctrine was inapplicable. 35  See n 3 at paras 61 and 67. 36  See n 11 at p 79. 37  See n 11 at p 80. 38  See n 3 at para 67: ‘In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention.’

Symposium Issue on Law and Peacekeeping—Brennan 105 ­ iplomatic and consular agents when State agent authority and control is exercised.39 d Within this rubric, the State may also exercise effective control of the relevant territory and its inhabitants when through ‘the consent, invitation or acquiescence of the Government of that territory, it exercises some or all of the public powers ­normally exercised by of that Government’.40 In addition, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring an individual, brought under the control of the State’s authorities, into the State’s Article 1 jurisdiction. Such circumstances include individuals taken into custody of State agents abroad41 – referred to as the ‘personal model’ of jurisdiction within the rubric of ‘State agent authority and control’.42 Importantly, the Court has underpinned that what is ‘decisive’ in such cases is the ‘exercise of physical power and control over the person in question’,43 and not ‘solely’ control over buildings in which individuals may be held.44 The Court has also recognised that a State’s jurisdiction under Article 1 may extend outside its jurisdiction when a State exercises effective control of an area outside its national territory45 whether lawfully or unlawfully.46 It is of course a question of fact

39 See n 3 at para 73: ‘Additionally, the Court notes that other recognised instances of the extra-­ territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or ­consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, customary international law and treaty provisions have recognised the extraterritorial exercise of jurisdiction by the relevant State.’ 40  R (Al-Skeini and others) v Secretary of State for Defence [GC] (dec), App. No.55721/07, 7 July 2007 at para 135 ‘… Thus, where in accordance with custom, treaty or other agreements, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the ­Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State.’ 41  Öcalan v Turkey [GC] [dec], App. No.46221/99, 12 May 2005 at para 91 ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. 42  See n 2 at 122. 43  See n 4 at para 136. 44 See n 4 at para 137 ‘It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the ­situation of the individual. In this sense, therefore, the Convention rights can be “divided and tailored”.’ 45  Loizidou v Turkey, [GC] (dec) (preliminary objections),Application no 15318/89, 23 February 1995, para 62 ‘Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.’ See T Gill, D Fleck, WH Boothby and A VanHeusden (eds), Leuven Manual on the International Law applicable to Peace Operations (Cambridge University Press, 2017) 80, ‘State is considered to exercise jurisdiction, and consequently to have human rights treaty obligations, outside its own territory in exceptional circumstances namely if it exercises authority or control over an individual or over a geographical area, regardless of whether this authority or control is exercised lawfully or unlawfully.’ 46  Issa v Turkey, [GC] (dec) Application No.31821/96, 16 November 2004, para 71, ‘a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State.’ See Milanovic at n 2 above who posits that ‘this case was an example of allowing application of both the Spatial and the personal model of jurisdiction to a Turkish incursion in Iraq’.

106  The Irish Yearbook of International Law 2018 whether a State exercises effective control over an area outside its own ­territory.47 Critically, the Court has established that the importance of establishing the occupying State’s jurisdiction in such cases does not imply that ‘jurisdiction under Article 1 of the Convention can never exist outside the territory’ covered by the Council of Europe Member States.48 This killed off the argument that the Convention was not designed to be applied throughout the world,49 that the extraterritorial reach was limited to the ‘espace juridique’ or legal space of the Convention States. This jurisdictional reach is now accepted by all but a very few objecting States and critically, according to the Leuven manual, constitutes the ‘entry point for legal human rights obligations for Peace Operations’50 when deployed and operational outside the territory of their respective Troop Contributing Countries. V.  ‘PARTICULAR FACTS’

However, the question as to whether ‘exceptional circumstances’ exist to trigger extraterritorial jurisdiction ‘must be determined with reference to the particular facts’.51 A brief overview of some seminal domestic and ECtHR jurisprudence ­provides significant indicators of what are increasingly important ‘particular facts’ triggering ECHR obligations in Peace Operations. In Nuhanovic v The Netherlands52 the Supreme Court of the Netherlands emphasised the extraterritoriality of the ECHR. The case concerned events that occurred shortly after the fall of Srebrenica on 11 of July 1995.53 Hasan Nuhanovic worked as an interpreter for the United Nations Military Observers (UNMOs), who were attached to UNPROFOR54 and formed part of the Netherlands Battalion (­Dutchbat) 47  R (Al-Skeini and others) v Secretary of State for Defence [GC] (dec), App. No.55721/07, 7 July 2011, (hereinafter Al-Skeini GC), para 139, ‘In determining whether effective control exists the Court will primarily have reference to the strength of the State’s military presence in the area … other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region …’ 48  ibid para 142. 49  Bankovic and Others GC, see n 3 above, para 80, ‘… The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far be relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.’ 50  See n 11 at p 80. 51  Al-Skeini GC, see n 4 at para 58. 52  The Netherlands v Hasan Nuhanovic, Supreme Court (Hoge Raad) of the Netherlands, judgment of 6 September 2013, 53 ILM (2014) 516 (hereinafter Nuhanovic judgment). 53 ibid para 3v of the judgment: ‘On 5 and 6 July 1995 the Bosnian-Serb army under the command of General Mladic mounted an attack on the Srebrenica enclave. Srebrenica was captured by the ­Bosnian-Serb army on 11 July 1995. Subsequently refugees started leaving the town with 5000 refugees entering the Dutchbat compound at Potacari including 239 men of military age. The refugees within the compound were accommodated in an abandoned factory. A far larger number of refugees (probably around 27000) had to stay in Potacari outside the compound in the open air.’ 54  UN Security Council, Security Council Resolution 743 (1992) 21 February 1992 S/RES/743(1992), op 2, decides to establish, under its authority, a United Nations Protection Force (UNPROFOR) in accordance with the above-mentioned report and the United Nations peace-keeping plan and requests the Secretary-General to take the measures necessary to ensure its earliest possible deployment.

Symposium Issue on Law and Peacekeeping—Brennan 107 stationed in Potacari (outside Srebrenica). Nuhanovic had a UN pass and was on the list of local personnel allowed to be evacuated with Dutchbat. However his father, mother and brother, who had sought refuge in Potacari, were not on this list. The Dutchbat commanders ultimately allowed Nuhanovic’s father to stay because he had been part of a committee of Srebrenica civilians that had held consultations with Mladic. However, his mother and his brother were not allowed to stay. His father decided to leave the compound with them.55 All three were murdered by the Bosnian Serb Army or related paramilitary groups.56 Hasan Nuhanovic argued that the State responsible was responsible for the harmful consequences arising from their eviction from the compound at Potacari. The Supreme Court found that the ‘possibility is not excluded that a Contracting State may, in exceptional circumstances have jurisdiction referred to in Article 1 even outside its territory’.57 The Court accepted that the rights codified in Articles 2 and 3 of the ECHR were also rules of customary law that are binding extraterritorially in that form. Secondly, in discussing whether Dutchbat (and thereby the Netherlands) had ­‘control’ of the kind that would be sufficient to trigger extraterritorial human rights obligations, the Court examined the overall political framework regulating their operations. The Court noted that, In this case Dutchbat’s presence in Srebrenica and in the compound in Potocari resulted from the participation of the Netherlands in UNPROFOR, and UNPROFOR derived its right to take action in Srebrenica from the Agreement on the status of the United Nations Protection Force in Bosnia and Herzegovina concluded between the United Nations and Bosnia Herzegovina.58

This Agreement underpinned Bosnian consent to the presence of UNPROFOR and its control over the ill-fated Potacari compound, in so far as ‘… the State was competent, through Dutchbat, to exercise jurisdiction within the meaning of Article 1 ECHR, in the compound’.59 Furthermore, notwithstanding the actual fall of the enclave on 11 July 1995, the Court noted that ‘the Bosnian Serb army respected Dutchbat’s authority over the compound to which it had withdrawn until the departure of Dutchbat on 21 July 1995’

55  Nuhanovic judgment, see n 52, at para 3xiv of the judgment ‘… Franken then told Nuhanovic’s father (Ibro) that he was allowed to stay because he had been a member of the civilian committee that had held consultations with Mladic. Nuhanovic’s mother and brother were not offered that opportunity. Ibro chose to leave the compound together with his wife and his son Muhamed. All three of them were taken away by the Bosnian Serbs and murdered by the Bosnian Serb Army or related paramilitary groups.’ 56  ibid para 3xiv of the judgment. 57  ibid para 3.12.2 of the judgment. The Court further set out at para 3.17.1 ‘Part 5 submits that any assessment of Dutchbat’s disputed conduct by reference to the legal principles implicit in articles 2 and 3 ECHR and articles 6 and 7 ICCPR is prevented by the fact that the State did not have jurisdiction as referred to in article 1 ECHR and article 2(1) ICCPR either in Srebrenica or in the compound in Potocari. This submission fails (my emphasis).’ 58  ibid para 3.17.3. 59 ibid.

108  The Irish Yearbook of International Law 2018 that Dutchbat retained authority60 over the compound.61 Critically, these facts formed a sufficient basis for the view that ‘the State, through Dutchbat, was actually able to ensure compliance with the human rights enshrined in articles 2 and 3 of the ECHR’.62 The Court also held that international law does not exclude the possibility of dual attribution of given conduct.63 This case was important not only as it marked the first time an individual government has been held to account for the conduct of its peacekeeping troops operating under a UN mandate, but also the reasoning and methodology adopted by the Court, in finding in favour of an extraterritorial reach for human rights obligations that ought to have been adhered to by the Netherlands, through the actions of its battalion troops. In Al-Skeini and others v The United Kingdom64 the ECtHR examined the application of the Convention to the deaths of the relatives of six applicants65 during the period of United Kingdom’s occupation66 of south east Iraq, where five of the applicants were killed by British troops on patrol in UK occupied Basra at intervening periods from the cessation of hostilities in May 2003 and November 2003. The sixth applicant, Mr Baha Mousa was arrested by British Troops and taken to a UK detention facility, where he was mistreated and ultimately killed.67 The applicants

60 T Dannenbaum, ‘Dutch Supreme Court Affirms that Dutchbat Acted Unlawfully in Srebrenica’ (EJIL: Talk, 2013), arguing that the Dutch jurisdiction was dependent on a hybrid of de jure consent by Bosnia and Herzegovina and de fact consent of the VRS. Even without the consent of Bosnia and Herzegovina, if the Bosnian Serb forces were respecting Dutchbat control of the compound, the battalion arguably had de facto control over the area, and (in the alternative) over the individuals in question, www.ejiltalk.org/dutch-supreme-court-affirms-that-dutchbat-acted-unlawfully. 61  Nuhanovic judgment; see n 52 at para 3.17.3. 62  ibid para 3.12.3. 63  Nuhanovic judgment: see n 52 at para 3.11.2. ‘… As held above at 3.9.4., international law, in particular article 7 DARIO in conjunction with article 48(1) DARIO, does not exclude the possibility of dual attribution of given conduct’. 64  R (Al-Skeini and others) v Secretary of State for Defence [GC] (dec), App. No.55721/07, 7 July 2011, (hereinafter Al-Skeini GC). 65 See Al-Skeini and others (Respondents) v Secretary of State for Defence (Appellant) Al-Skeini and others (Appellants) v Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26, para 6: Mr Hazim Jum’aa Gatteh Al-Skeini was shot dead on 4 August 2003 by a member of a B ­ ritish military patrol in Basra; Mr Muhammad Abdul Ridha Salim was fatally wounded on 6 November 2003 when British troops raided a house in Basra; Mrs Hannan Mahaibas Sadde Shmailawi was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra, she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen; Mr Waleed Sayay Muzban was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a peoplecarrier when he was shot, and he died the next day; Mr Raid Hadi Sabir Al Musawi was shot and fatally wounded by a member of a British military patrol in Basra on 26 August 2003; Mr Baha Mousa was employed as a receptionist at a hotel in Basra and was working there on the morning of 14 September 2003 when British troops entered the hotel. He was seized and detained and taken to a British military base in Basra At the base he was brutally beaten by British troops. He died of the injuries so inflicted during the night of 15 September 2003. 66  Al-Skeini GC, see n 61, at para 143 ‘… the Court takes as its starting point that on 20 March 2003, the United Kingdom together with the United States … entered Iraq with the aim of displacing the Ba’ath regime … This aim was achieved by 01 May 2003, when major combat operations were declared to be complete and the United States and the United Kingdom became Occupying Powers within the meaning of Article 42 of the Hague Regulations.’ 67  M Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 The European Journal of International Law 125, www.ejil.org/article.php?article=2250&issue=110.

Symposium Issue on Law and Peacekeeping—Brennan 109 alleged that their relatives (civilians) fell within UK jurisdiction at the time that they were killed and that there had been no effective investigation into their deaths, in breach of Article 268 of the ECHR.69 The Court examined the elements of governmental authority exercised by the UK forces (Multinational Division (South East) at that time in the province of Al-Basra. It noted that as occupying powers in Iraq from end of combat operations on 1 May 2003, ‘the United States of America and the United Kingdom, having displaced the previous regime created the CPA to exercise powers of government temporarily … the provision of security in Iraq, including the maintenance of civil law and order.’70 Importantly, the Court, not unlike the Court in Nuhanovic, noted the formal terms and construction of the Security Council resolutions in particular UNSCR 1483, which, gave further recognition to the security role which was assumed by the … United Kingdom calling upon the Occupying Powers ‘to promote the welfare of the Iraqi people … including in particular working towards the restoration of conditions of security and stability’.71

The Court noted that UNSCR 1511 authorised a Multinational Force:72 […] … to take all necessary measures to contribute to the maintenance of security and stability in Iraq.73

Finally, UNSCR 154674 ‘endorsed the formation of a sovereign interim government of Iraq … which will assume full responsibility and authority by 30 June 2004 for governing Iraq’.75 The Court concluded that the ‘United Kingdom … assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government.

68 Article 2 of the European Convention of Human Rights (ECHR) does impose an obligation on States to conduct effective official investigations where individuals have been killed as a result of the use of force, see McCann v The United Kingdom (1995) 21 EHRR. In addition the Court has set out that an Article 2-compliant investigation must be reasonably prompt, independent and effective, have a sufficient element of public scrutiny and appropriately involve the subject or next of kin, see, Hugh Jordan v UK [2001] App No 24746/94, BAILII: [2001] ECHR 327, para 107; Kelly and ­Others v UK [2001] App No 30054/96, BAILII: [2001] ECHR 328, para 95; McKerr v UK (2002) 34 EHRR 20, para 112n no. 55721/07. 69  Al-Skeini GC, see n 61 at para 3. 70  ibid para 143. 71  ibid para 146. 72 UN Security Council, Security Council Resolution, 1973 (2003), 16 October 2003,S/RES/1511 (2003), OP 13: ‘… authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purposes of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration and key humanitarian and economic infrastructure.’ www. un.org/en/sc/documents/resolutions/2003.shtml. 73  Al-Skeini GC, see n 4 at para 148. 74  UN Security Council, Security Council Resolution, 1546 (2004), 8 June 2004, S/RES/1546 (2004), OP 10: ‘Decides that the Multinational Force shall have authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq … including by preventing and deterring terrorism, so that the United Nations can fulfil its role in assisting the Iraqi people …’ www.un.org/en/sc/ documents/resolutions/2004.shtml. 75  Al-Skeini GC, see n 4 at para 148.

110  The Irish Yearbook of International Law 2018 In particular … authority and responsibility for the maintenance of security’.76 In these exceptional circumstances, the Court considered that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over the individuals killed in the course of the security operations so as to ‘establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention’.77 The case reflects a more expansive approach to extraterritorial jurisdiction, applying a personal model of jurisdiction to the killing of all six applicants, but did so ‘only exceptionally, because the UK exercised public powers in Iraq’,78 which was grounded on the particular facts as evidenced from the mandates given. At the time, UK forces were operating in a chaotic theatre of military operations. Since 1 May 2003, there had been ‘1050 violent attacks against Coalition Forces in the Multinational Division (South-East) […] 12 grenade attacks […] 101 attacks using improvised explosive devices […] 145 mortar attacks, 147 rocket propelled attacks, 535 shootings … .’79 It was in this environment that the ‘British army was the sole agent of law and order, within its area of operations’.80 In other words, if the UK were not exercising such public powers, the personal model of jurisdiction would not apply. The Court ruling, from an operational commander’s perspective goes to the gravamen of the matter, where Convention rights are expected to be respected in Peace Operations – post bellum, where there may simply not be the requisite amount of troops in a theatre of operations, to impose law and order or, moreover, where the issue of public powers may not be clear in joint operations or supporting operations with the Host State, within a Chapter VI mandated paradigm as in UNIFIL, where ‘accompany and support’ with Host State forces are mandated.81 The case of Al-Jedda v The UK82 engaged with the thorny matter of attribution for wrongdoing between the UN and the State, and the equally difficult matter of UN obligations as set out under mandate versus a State’s obligations under human rights law. In this case the applicant was detained by British forces in Iraq under the authority to detain preventatively under UNSCR 1546.83 He claimed his detention

76 

ibid para 149.

77 ibid. 78 

See n 67 at p 130. Al-Skeini GC, see n 4 at para 23. ibid para 22 citing the Aitken Report (para 69) which was prepared on behalf of the Army Chief of General Staff. 81  UN Security Council, Security Council Resolution, 1701. (2006) S/RES/1701 OP 11. Decides, in order to supplement and enhance the force in numbers, equipment, mandate and scope of operations, to authorise an increase in the force strength of UNIFIL to a maximum of 15,000 troops, and that the force shall, in addition to carrying out its mandate under resolutions 425 and 426 (1978) … (b) Accompany and support the Lebanese armed forces as they deploy throughout the South, including along the Blue Line, as Israel withdraws its armed forces from Lebanon as provided in para 2. 82  Al-Jedda v The United Kingdom, [GC] (dec) Application no. 27021/08, 7 July 2011, hereinafter (Al-Jeddah GC). 83  S/RES/1546 (2004) 8 June 2004 at op para 10 and annex: ‘Decides that the Multinational Force shall have authority to take all necessary measures to contribute to the maintenance of security and ­stability in Iraq in accordance with the letters annexed to this resolution.’ The letters referred to were sent to the Council by the then US Secretary of State, Mr. Colin Powell, and the interim president of Iraq. 79  80 

Symposium Issue on Law and Peacekeeping—Brennan 111 was unlawful under Article 584 of the ECHR, while the UK – accepting jurisdiction under Article 1 of the ECHR, relied on Article 103 of the UN Charter, which provides that in the event of a conflict between the obligations of the Members of the UN and their obligations under any other international agreement, their obligations under the Charter shall prevail. In respect of attribution, the Court did not consider that, as a result of the ‘authorisation contained in Resolution 1511, the acts of soldiers within the Multinational Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations’.85 On the substantive issue, the Court held that a Resolution prevails only if it ­explicitly provides an obligation to act in a manner which does not comply with human rights treaties. It rejected the submission that under Article 103 of the UN Charter, Sates had an obligation to give effect to resolutions of the Security Council which prevailed over obligations under the European Convention. This was because the relevant Security Council Resolution – in this case UNSCR 1546, left the choice of methods to the multinational force in Iraq. In the absence of sufficiently specific language the Security Council’s authorisation to use ‘all necessary measures’ did not therefore create an obligation to detain even if it created a power to do so. The Court ruled that ‘in interpreting its resolutions, there must be a presumption that the ­Security Council does not intend to impose any obligations on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations’.86 Significantly, in respect of the balance between the demands of a mandate and a State’s obligations to human rights, the Court has laid down a clear statement rule for interpreting Security Council resolutions ‘that can go a long way in providing meaningful human rights check on the Security Council’.87 In this case the Court found that Mr Al-Jedda was unlawfully detained. Certainly, the judgment warrants careful consideration where TCCs are engaging with detention Rules of Engagement on the implied authorisation of Security Council resolutions in Peace Operations; the matter has been the subject of further review and commentary in the recent UK Supreme Court ruling in Serdar Mohammed v Ministry of Defence.88 The letters outlined the duties of the MNF forces stating that these ‘will include combat operations against members of insurgent groups, internment where this is necessary for the imperative reasons of security’, www.un.org/en/sc/documents/resolutions/2004.shtml. 84  Article 5 ‘Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.’ 85  Al-Jedda, GC, see n 82 at para 80. 86  ibid para 102. 87 ibid. 88  Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent),Serdar Mohammed (Respondent) v Ministry of Defence (Appellant), [2017] UKSC 2 dicta of Lord Sumption paras 48 & 49) the Supreme Court distinguished the approach of the ECtHR in Al-Jeddah, the Supreme Court viewed Al-Jeddah as about whether the UK had an obligation to detain, rather than simply an authorisation, since this was key for the (in)operation of Article 103 of the UN Charter; that approach should also

112  The Irish Yearbook of International Law 2018 Finally, in Jaloud v The United Kingdom89 the matter of jurisdiction was arguably further expanded by the Court. The case arose out of the fatal shooting of Azhar Sabah Jaloud by Dutch troops at a checkpoint in Iraq in 2004. In this case the applicant alleged that Article 290 of the Convention had been violated in that the investigation into the death of his son, Mr Azhar Sabah Jaloud had been inadequate. In this case the Netherlands Government were asking the Court to distinguish the present case from Al-Skeini on two principle grounds. First, the Netherlands Forces did not exercise any State agent authority or control.91 The Netherlands troops were deployed as part of Stabilisation Force in Iraq (SFIR) pursuant to United Nations Security Resolution 148392 and were not an ‘occupying Power’ in terms of international humanitarian law.93 Moreover they were ostensibly deployed under the operational control of the UK Armed Forces.94 Secondly the physical act of shooting at a moving vehicle occupied by individuals not in detention was not in itself sufficient for personal jurisdiction to arise.95 The Court addressed both issues holding in the first instance that the ­Netherlands was ‘not divested of its “jurisdiction” within the meaning of Article 1 of the Convention, solely by dint of having accepted the operational control of the commander of MND(SE), a United Kingdom officer’.96 Further noting that in any case the ­Netherlands retained ‘full command’ over its military personnel.97 Critically, the Court noted that while the forces of other nations took their day-to-day orders from foreign commanders ‘the formulation of essential policy – including the limits agreed not be followed because Article 5(1) does not reflect a universal human rights standard but a regional one, and because the interpretation of UNSC resolutions should also be universal. The majority held that British forces had implicit power pursuant to UNSCRs (through the use of ‘all necessary means formula’ – para 28) to take and detain prisoners for periods exceeding 96 hours if this were necessary for imperative reasons of security – that was the legal basis under UNSCR and was not displaced by Article 103 of the Charter (distinguish Al-Jeddah). However, the Court determined that the procedures for doing so did not comply with ECHR Article 5(4) because they did not afford prisoners an effective right to challenge their detention. See commentary of M Milanovic who finds that the ‘majority does not provide a rigorous doctrinal explanation of the carve out it is doing from Article 5(1)’. www.ejiltalk. org/a-trio-of-blockbuster-judgments-from-the-uk-supreme-court/. 89 

Jaloud v The Netherlands, [GC] (Dec) Application No 47708/08, 20 November 2014. para 157 ‘The applicant alleged that the respondent State had failed to meet its obligations properly to investigate the death of his son with a view to bringing the person responsible to justice. He relied on Article 2 of the Convention.’ 91  Jaloud, GC see n 89 at para 114 ‘Nor had the Netherlands assumed in Iraq any of the public ­powers normally to be exercised by a sovereign government. These powers were entirely in the hands of the United States and the United Kingdom which had set up the Coalition Provisional Authority.’ 92  ibid para 50. 93  Jaloud, GC see n 89 at para 113 ‘Firstly, the Netherlands was not an occupying power in terms of international humanitarian law. Only the United States and the United Kingdom were “occupying ­powers” having being so designated by United Nations Security Council Resolution 1483; this distinguished them from the other States working under the Coalition Provisional Authority.’ 94  ibid para 115 ‘The Netherlands contingent had at all times been under the operational control of the commander of MND (SE), an officer of the United Kingdom.’ 95  Jaloud, GC see n 89 at para 118 ‘Netherlands forces had not at any time exercised physical authority or control over Mr Azhar Sabah Jaloud, since he had never been in their custody.’ 96  ibid para 143 ‘… the fact of executing a decision or an order given by an authority of a foreign State is not in itself sufficient to relieve a Contracting State of the obligations which it has taken upon itself under the Convention (…)’. 97  ibid para 143. 90  ibid

Symposium Issue on Law and Peacekeeping—Brennan 113 in the form of Rules of Engagement … remained the reserved domain of individual sending States.’98 Therefore the ‘Netherlands assumed responsibility for providing security in that area, to the exclusion of other participating States, and retained full command over its Contingent there’.99 Secondly, the Court held that the applicant’s son came within the personal jurisdiction of the Netherlands not because the use of the weapon brought the victim under the authority of control of the State agents, but because he passed through a checkpoint specifically set up ‘for the purpose of asserting authority and control over persons passing through the checkpoint’.100 In other words a ‘sphere of influence existing in a space, rather than as a precisely demarcated geographical location’.101 Jaloud v Netherlands is important and is indicative of a more expansive scope of personal jurisdiction which the Court now holds to exist alongside the well-known examples of arrest and detention.102 Furthermore, the Court will not permit command relationships to relieve a contracting State of the obligations which it has taken upon itself under the Convention. In other words the notion of ‘full command’ constitutes an important nexus between a State and its armed forces. More importantly, the existence of full command ensures that ‘any acts carried out by national contingents which cross the threshold of jurisdiction constitute national acts for the purposes of Article 1 of the Convention’.103 VI.  RESPECTING THE ENTRY POINT

The Leuven manual correctly, in this author’s view, identifies the jurisdiction of the ECHR as an important ‘entry point for legal human rights obligations for Peace Operations’.104 The Court in setting out a very broad interpretation of ‘jurisdiction’ in conjunction with a very clear position as regards attribution of the same conduct to the UN and the State105 may prove to be important for securing human rights compliance with respect to UNSC decisions. More importantly, this jurisprudence fosters accountability, opening, as stated by the Court in Nuhanovic, ‘… the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent’.106 98 

Jaloud, GC see n 89 at para 147. ibid para 149. Jaloud, GC see n 89 at para 152. 101  A Sari, ‘Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations’ (EJIL:Talk!, 2014) www.ejiltalk.org/jaloud-v-Netherlands-new-directions-in-extra-territorial-military-operations/. 102  ibid. Sari posits that ‘… because of this, the boundaries of this category of extraterritorial jurisdiction are fluid and uncertain. Checkpoints do not have to be fixed or permanent. They can be mobile and set up at short notice …’ 103  A Sari, ‘Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations’ (EJIL:Talk!, 2014) www.ejiltalk.org/jaloud-v-Netherlands-new-directions-in-extra-territorial-military-operations/. 104  See n 11 at p 80. 105  Al-Jedda v The United Kingdom, Application no. 27021/08, judgment 7 July 2011, para 80 ‘The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multinational Force became attributable to the United Nations or – more importantly, for the purposes of this case – ceased to be attributable to the troop-contributing nations.’ 106  Nuhanovic, see n 52. 99 

100 

114  The Irish Yearbook of International Law 2018 VII. OPERATIONALISATION

The operationalisation of ECHR legal obligations is not without difficulties with some experts opining that the jurisprudence of the ECtHR is ‘[…] fragmented, ambiguous and unpersuasive’107 and would most likely have a ‘distracting effect on the conduct of multinational military operations involving European forces who are subject to ECHR’.108 In particular, where European forces are to reconcile their obligations under the ECHR with non-European forces in Peace Operations. Notwithstanding, it remains important that Irish commanders and their legal advisers can reconcile or operationalise the often competing interests of complex mandate requirements, within the parameters as set through the jurisprudence of the ECtHR. In particular, those which respect the right to life and liberty under the ECHR. In this regard, legal interoperability amongst UN partner nations is a key theme for the Defence Forces. Joint deployments, along bi-lateral lines, with Convention ‘like-minded’ States, who share common interests and legal perspectives, is an important and necessary cornerstone of Defence Forces policy.109 This will continue to be a valid consideration, particularly if the States contributing to a Peace Operation have divergent obligations under international human rights law. Critically, applicable human rights obligations cannot be circumvented by reference to the fact that other actors in the same operation have different obligations.110 This may from time to time trigger the use of caveats to applicable Rules of Engagement or operational instructions such that a State that has more stringent obligations under International Human Rights Law shall not engage in activities that would amount to a potential breach of its obligations. Furthermore, the Defence Forces must continue to nest its training for Peace Operations within human rights parameters, where, for example, the use of lethal force is informed in particular by the right to life. The force being used in self-defence or in defence of the mandate must be strictly ‘necessary and proportionate’.111 More importantly, Irish commanders and their legal advisers must ensure that all operational taskings in Peace Operations are analysed carefully, planned and controlled with all available information carefully considered. Within this ECHR operational paradigm where Irish troops will be operating extraterritorially in non-permissive

107  International Institute of Humanitarian Law, 41st Round Table on current issues of International Humanitarian Law, 6–8 September 2018, Cathcart, Blaise, ‘Contemporary challenges when applying IHL and IHRL to protect persons deprived of their liberty in relation to armed conflict, in particular NIAC’ 55. 108  ibid p 55. See also Key note address Stephen Hill, ‘Between international humanitarian law, human rights law and standards: challenges in conducting detention operations in non-international armed ­conflicts’ 32. 109  White Paper on Defence (August 2015) para 3.4.6. In this regard, joint deployments of a contingent with Finland to UNIFIL, with Sweden to Liberia, with the Netherlands to EUFOR Chad, and more recently, with the UK in Mali and Sierra Leone, demonstrate the evolving nature of bilateral peacekeeping. It is also a feature or our engagement in CSDP, where many Member States share common interests and perspectives. www.defence.ie/system/files/media/file-uploads/2018-06/wp2015eng_1.pdf. 110  ibid 28 at p 85. 111  ibid 28 at p 151.

Symposium Issue on Law and Peacekeeping—Brennan 115 environments, the use of lethal force must be strictly proportionate to the accomplishment of the objective, and all possible precautions must have been carefully taken with a view to avoiding the requirement to resort to lethal force whenever possible.112 There is little doubt that this will be challenging proposition for Irish commanders and their troops, particularly where Ireland’s UN Peace Operations are increasingly characterised by their involvement in operations aimed at eradicating threats from non-state armed groups,113 or engaging in direct operations against armed elements.114 All of which may have to be executed within the boundaries of extra jurisdictional space that are ‘fluid and uncertain’115 as evidence in Jaloud v The Netherlands.116 In respect of the very narrow and prescriptive Article 5 rights arising from deprivation of liberty, further introspection may be required arising from the ECtHR decision in Al-Jeddah and the recent ruling of the UK Supreme Court in Serdar Mohammed v Ministry of Defence,117 particularly given the position as outlined by the Leuven manual that as regards Security Council resolutions, a general authorisation to take ‘all necessary measures’ would not meet the requirement for detention in Peace Operations, rather ‘more specific language explicitly authorising detention for specified reasons could meet these requirements’.118 How soon and how far this ‘entry point’ should be identified by planners and commanders prior to deployment on Peace Operations remains open for further discussion, and is outside the scope of this chapter. Notwithstanding, it is increasingly arguable that when operating in theatre Irish commanders and their legal advisers should error on the side of Convention application. For the Irish commander, it is submitted that the ‘particular facts’ of Al-Skeini, Nuhanovic and Al-Jeddah are not beyond the operational picture of any deployment on Peace Operations involving Irish troops, given the increasingly broad mandates and robust rules of engagement, where protection of civilians and powers of detention are the norm, moving human rights closer to the centre of ‘compliance’ gravity in Peace Operations. Accordingly, it remains important that the fundamental principles of human rights law continue to be built into the Defence Forces Peace Operations training with durability. Perhaps it is somewhat apposite to leave the final words to the concurring opinion of Judge Motoc in Jaloud v The Netherlands that ‘Soldiers who take part in peacekeeping operations or are members of multi-national forces cannot enjoy immunity simply on account of the fact that their State is participating in such operations.’119

112 See McCann and Others v the United Kingdom, Application No.18984/91, judgment of 27 ­September 1995 [GC], para 212. 113  T Ferraro, ‘The applicability and application of International Humanitarian Law to Multinational forces’ (2013) International Review of the Red Cross 95 (891/892), 561. ‘The mission of the multinational forces in Afghanistan, the Democratic Republic of the Congo (DRC), Somalia, Libya or Mali are no longer confined to ensuring ceasefires or monitoring buffer zones but are characterised by their involvement in military operations aimed at eradicating threats from various quarters, especially from non-state armed groups engaged in a non-international armed conflict (NIAC).’ 114  ibid 21 115  Sari, see n 102. 116  Jaloud, GC, see n 89. 117  Serdar Mohammed, UKSC, see n 88. 118  ibid 21 at p 160. 119  Jaloud v The Netherlands, Application no.47708/08, judgment 20 November 2014.

116

Correspondent Reports

118

Human Rights in Ireland 2018 SANDRA DUFFY*

I

N TERMS OF human rights in Ireland, 2018 was dominated by the issue of reproductive rights, centering around the holding of a referendum on the repeal of the almost-total prohibition on abortion contained in the Eighth Amendment to the Constitution. Successful repeal in the May 2018 referendum was followed by a long legislative process, resulting in the introduction of the Health (Regulation of Termination of Pregnancy) Act 2018. In addition, the issues of asylum and immigration were once again also to the forefront, with both legislative and judicial developments on the entitlements of asylum seekers. Ireland also finally ratified the United Nations Convention on the Rights of Persons with Disabilities becoming the last European Union Member State to do so, 11 years after Ireland signed the Convention. I.  LEGISLATIVE DEVELOPMENTS

A. Developments Related to the Eighth and Thirty-Sixth Amendments to the Constitution of Ireland, and the Health (Regulation of Termination of Pregnancy) Act 2018 On 25 May 2018 the Irish public voted by referendum to repeal Article 40.3.3 of the Constitution, commonly known as the Eighth Amendment. This provision, which was incorporated into the Constitution following a 1983 referendum, read: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Article 40.3.3 was later amended by the Thirteenth and Fourteenth Amendments, approved by referendum in 1992, with the additions: This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

Because of the requirement to consider an unborn foetus as a being with a right to life equivalent to that of the pregnant person gestating it, Article 40.3.3 ensured a neartotal ban on abortion in this jurisdiction from its inception. In 1992, the Supreme Court *  Irish Centre for Human Rights, NUI Galway

120  The Irish Yearbook of International Law 2018 found in Attorney General v X1 that abortion could be ­constitutionally permitted in the case of threat to the life of the pregnant woman/person; however, it would be 2013 before legislative provision was made for these circumstances in the Protection of Life During Pregnancy Act 2013 – a decision taken only after the European Court of Human Rights had ruled against Ireland in the case of A, B, and C v Ireland,2 in which the Court found a violation of Article 8 because of the failure to ensure the constitutional right to access abortion where there was a real and subsantial risk to life could be exercised in practice. In 2017 the United Nations Human Rights Committee, in Amanda Jane Mellet v Ireland3 and Siobhán Whelan v Ireland,4 found that the lack of legal abortion in cases of ‘fatal foetal anomaly’ resulted in vilations of the International Covenant on Civil and Political Rights. On 7 March 2018 the Minister for Health, Simon Harris, formally proposed a Government Bill calling for a referendum to repeal the Eighth Amendment. The question put to the vote would be the replacement of the existing text of Article 40.3.3 with the text: Provision may be made by law for the regulation of termination of pregnancy.

The General Scheme of the Draft Regulation of Termination of Pregnancy Bill 2018 was introduced on 27 March 2018, outlining the proposed legislation which would be enacted should the referendum pass. The Heads of Bill included provisions for the termination of pregnancy in the case of risk to life or health of the pregnant woman/ person (Head 4) including in emergencies (Head 5) and in the presence of conditions likely to lead to the death of the foetus (Head 6), as well as up to the twelfth week of pregnancy without restriction as to reason (Head 7). Several challenges to the referendum result were mounted in the weeks following the 25 May vote; the most lasting of these was the series of Jordan v Ireland5 decisions, which eventually failed when the Supreme Court denied the applicant leave to appeal from her unsuccessful Court of Appeal hearing.6 The Thirty-Sixth Amendment to the Constitution was signed into law by the President of Ireland on 18 September 2018, and the Health (Regulation of Termination of Pregnancy) Act 2018 was signed into law by the President on 20 December 2018. It entered into force on 1 January 2019. The Act provides for termination of pregnancy under a number of grounds: —— In the case of risk to the life or health of the pregnant woman/person;7 —— In the case of risk to the life or health of the pregnant woman/person in emergency circumstances (with less onerous certification requirements);8

1 

[1992] IESC 1. Application no. 25579/05. 3  Views adopted by the Committee under Article 5(4) of the Optional Protocol, concerning communication No 2324/2013, Amanda Jane Mellet v Ireland, adopted 31 March 2016. 4  Views adopted by the Committee under Article 5(4) of the Optional Protocol, concerning communication No 2425/2014, Siobhán Whelan v Ireland, adopted 17 March 2017. 5  High Court: Jordan v Ireland & ors [2018] IEHC 438; Court of Appeal: Jordan v Ireland & Ors [2018] IECA 291. 6  Jordan v Ireland, The Attorney General and The Referendum Returning Officer, [2018] IESCDET 124. 7  Health (Regulation of Termination of Pregnancy) Act 2018, s 9. 8  ibid s 10. 2 

Correspondent Reports—Duffy 121 —— In the presence of a condition likely to lead to the death of the foetus, or baby, within 28 days of birth;9 —— Until the twelfth week of pregnancy, without restriction as to reason.10 Conscientious objection on the part of a medical practitioner, nurse, or midwife, is allowed under the Act; however, a practitioner so objecting shall arrange for the transfer of care of the patient to a suitable medical practitioner.11 It remains a criminal offence for a person other than the pregnant woman/person herself to ‘prescribe, administer, supply or procure any drug, substance, instrument, apparatus or other thing knowing that it is intended to be used or employed with intent to end the life of a foetus, or being reckless as to whether it is intended to be so used or employed, ­otherwise than in accordance with the provisions’ of the Act, or to ‘aid, abet, counsel or procure a pregnant woman to intentionally end, or attempt to end, the life of the foetus of that pregnant woman otherwise than in accordance with the provisions of this Act’.12 The offence carries a potential penalty of a fine or up to 14 years’ imprisonment. This referendum was carried out under the spotlight of worldwide media attention, with the result being hailed as an achievement for human rights work, activism, and lawyering in a historically comparatively conservative country. Ireland’s new legislation brings it closer to compliance with the international standards which it has been urged to follow by numerous global human rights mechanisms.13 B.  Commencement of the European (Recast) Reception Conditions Directive Following the Supreme Court’s 2017 decision in NHV v Minister for Justice, Equality, and Law Reform14 on the right to work for asylum seekers in Ireland, the government announced that it would incorporate the European (recast) Reception Conditions Directive15 into Irish law in order to give effect, among other matters, to a limited right to work for people awaiting asylum decisions. The Reception Directive was duly given effect in July 2018 with the adoption of Statutory Instrument No 230/201816 by Minister for Justice, Charles Flanagan. The Reception Conditions Regulations address the entitlements of a person arriving in Ireland with the intent of seeking asylum. Such a person is entitled to ­material

9 

ibid s 11. ibid s 12. 11  ibid s 22. 12  ibid s 23. 13  Most recently: UN Committee Against Torture, Concluding Observations on Ireland (2017) CAT/C/ IRL/CO/2 at paragraph 31; UN Committee on the Elimination of Discrimination Against Women, ­Concluding Observations on Ireland (2017) CEDAW/C/IRL/CO/6-7 at paragraph 42–43; UN Committee on the Rights of the Child, Concluding Observations on Ireland (2016) CRC/C/IRL/CO/3-4 at paragraph 57–58; statements recorded in the Report of the Working Group on the Universal Periodic Review of Ireland (2016) A/HRC/33/17. 14  NHV v Minister for Justice, Equality, and Law Reform [2016] IECA 86. 15  Directive 2013/33/EU 16  European Communities (Reception Conditions) Regulations 2018, SI 2018/230. 10 

122  The Irish Yearbook of International Law 2018 r­eception arrangements where he or she does not have sufficient means for an adequate standard of living;17 in this case, to accommodation in a designated reception centre.18 Where the applicant is in receipt of external income, the material reception entitlements may be reduced.19 If the applicant earns €97.01 or more per week, they are liable for a proportion of the costs of their accommodation.20 If an applicant has not completed, or not complied with the conditions of, their asylum application,21 if they have committed a serious breach of the rules of the accommodation centre,22 or if they have engaged in seriously violent behaviour23 the material entitlements can be withdrawn. The Regulations must be interpreted in the best interests of a minor applicant.24 In the case of an unaccompanied minor, Túsla: The Child and Family Agency may act as their representative while they are in the process of their asylum application.25 An applicant may apply for permission to work once a period of nine months has elapsed from the date of their application without a decision being made in their case.26 This permission may be granted, renewed, or revoked subject to c­ onditions. and at the assessment of the Minister.27 A list of proscribed employers forms Schedule 6 to the Regulations, and an applicant by seeking or entering into employment with one of those employers – primarily public service institutions – is grounds for revocation of the permit.28 Schedule 6 is reviewable by the Minister subject to fluctuations in the labour market.29 Employers are also subject to conditions,30 including informing the Minister of the acceptance of a permission-holder to employment.31 An employer may only accept such an application where their workforce is composed of more than 50 per cent nationals of the European Economic Area States and the Swiss Confederation.32 An applicant for asylum who is a minor is entitled to access to primary and postprimary education on an equal basis with citizens, as well as appropriate educational supports.33 Asylum seekers are also entitled to access healthcare, including for acute, or serious and ongoing, conditions, as well as mental health services deemed appropriate to their needs.34

17 

ibid s 4. ibid s 7. 19  ibid s 5. 20  ibid s 5(2); amounts, varying by income, set out in Sch 2 to the Regulations. 21  ibid s 6(a). 22  ibid s 6(b). 23  ibid s 6(c). 24  ibid s 9. 25  ibid s 10. 26  ibid s 11(4). 27  ibid ss 11 and 12. 28  ibid s 11(9). 29  ibid s 13. 30  ibid s 14. 31  ibid s 14(2). 32  ibid s 14(6). 33  ibid s 17. 34  ibid s 18. 18 

Correspondent Reports—Duffy 123 II.  HUMAN RIGHTS IN THE SUPERIOR COURTS

A.  IRM v Minister for Justice, Equality, and Law Reform In March 2018 the Supreme Court delivered its judgment in the case of IRM v ­Minister for Justice, Equality, and Law Reform.35 This case related to the constitutional rights of ‘the unborn’; notably, whether the foetus had rights outside of those explicitly guaranteed by Article 40.3.3 of the Constitution. The case centred around IRM, an asylum seeker who challenged his deportation from the State on the grounds that the rights of his unborn child to the presence of its father should be considered. The case was decided at a pivotal moment in Irish constitutional law, as the referendum on the repeal of Article 40.3.3 approached. Although it was primarily an immigration case and would be decided as such,36 the potential existence of constitutional rights accruing to a foetus, if validated, would have posed a serious complication to the introduction of abortion rights to Irish law. IRM had arrived in Ireland from Nigeria in 2007 and applied for asylum and subsidiary protection. His application was unsuccessful on both counts and in 2008 he was issued a deportation order. However, he remained in the State, working on an undocumented basis. In 2015 he made an application to the Minister for Justice, Equality, and Law Reform under section 3(11) of the Immigration Act 1999 to have the order revoked on the basis of a significant change of circumstances, namely the pregnancy of his partner, who was an Irish citizen.37 The Supreme Court heard this case on ‘leapfrog appeal’ from the High Court due to the substantive nature of the legal questions in play and the limited time before the upcoming referendum. The questions had in fact become moot before the High Court hearing, as the child in question had been born and IRM had been granted Irish residency as the parent of a citizen child. However, the Court felt that there were questions of public importance to be heard, and ‘the parties appeared willing to treat the proceedings as a test case in relation to the issues’.38 At the High Court, Humphreys J upheld IRM’s application, requiring the Minister to review the deportation order on the grounds of the potential rights of the unborn foetus.39 He held that ‘what he considered to be judicial decisions recognising that certain rights of the unborn are protected by Article 40.3’40 were a continuation, rather than an erasure of those principles. Furthermore, he grounded his belief in those rights in Article 42A of the Constitution, which ‘recognises and affirms the natural and imprescriptible rights of all children’, as he considered that ‘all’ children must include ‘the child before birth’.41 Clarke CJ, writing for the unanimous Supreme Court bench, identified the following key issues. First, ‘whether the fact of the impending birth of the third respondent 35 

IRM v Minister for Justice, Equality, and Law Reform [2018] IESC 14. ibid, para 1.2. 37  ibid paras 4.1–4.9. 38  ibid para 5.2. 39  ibid para 5.24(i). 40  ibid para 5.11. 41  ibid para 5.16. 36 

124  The Irish Yearbook of International Law 2018 was a factor or consideration which was required to be taken into account by the Minister in the context of the application by Mr. M. to revoke the relevant deportation order under the provisions of Section 3(11)’; secondly, ‘whether the Minister was required to have regard to the fact that the third respondent, if and when born, would be an Irish citizen child who would enjoy all of the rights guaranteed to such a child under the Irish Constitution’; thirdly, ‘whether the third respondent had, prior to birth, any constitutional entitlements or rights which extend beyond the express terms of Article 40.3.3’; fourthly, ‘whether an unborn is a child for the purposes of Article 42A of the Constitution’; and fifthly, whether the Supreme Court should consider the question of whether ‘the meaning of the term “family” as used in the Constitution or the constitutional rights which attach to a non-marital family needs reconsideration’ owing to matters arising at the High Court.42 The Supreme Court upheld IRM’s application on the first ground, ruling that the pregnancy of a potential deportee’s partner and the likely birth in Ireland of their child is a circumstance which the Minister should consider when potentially revoking a deportation order. The effects of the deportation on the rights, acquired on birth, of an Irish citizen child, should also be considered. The Minister’s appeal on this ground was dismissed, although it was noted that she could still refuse to revoke the deportation order following reconsideration of the circumstances with due regard for the balances to be struck as laid out in Oguekwe v Minister for ­Justice, Equality and Law Reform.43 The remainder of the judgment addressed the rights, if any, of the unborn. In holding that the Constitution did not grant natural law rights to the unborn outside of those provided for in Article 40.3.3, the Court engaged in a lengthy review of Article 40 caselaw both pre- and post-Eighth Amendment. The Court also dismissed the trial judge’s assertion that ‘significant’ rights of the unborn were created under common law and statute, reaffirming that these sources award the unborn no legal personality. IRM argued that in cases including G v An Bord Uchtála;44 McGee v Attorney General and the Revenue Commissioners;45 and Finn v Attorney General and the Minister for the Environment,46 it was found that the unborn had rights under Article 40.3 which preceded the enactment of the Eighth Amendment. However, on examination, the Supreme Court considered these statements to be obiter dicta and therefore were not binding. Further, on examining Article 40.3.2, the Court was of the opinion that the rights of the citizens referred to therein are rights which can only be meaningfully asserted by a born person; if the intention of the drafters was to have them apply to the unborn, this would have been specifically marked in the text. The Constitution addresses ‘matters which the People choose as the fundamental law. The Constitution can, and should, be interpreted to mean what it says, and perhaps as importantly does not say’.47

42 

ibid paras 6.1–6.14. (2008) IESC 25. 44  (1980) IR 32. 45  (1974) IR 284. 46  (1983) IR 15. 47  IRM, at para 10.48. 43 

Correspondent Reports—Duffy 125 The Court opined that the ‘most plausible’ status of the unborn under the Constitution before the Eighth Amendment was ‘uncertainty’;48 it had previously asserted in Attorney General v X49 that the Amendment ‘was quite clearly designed to prevent any dispute or confusion’50 regarding the right to life of the unborn. The Eighth Amendment itself, once enacted, was intended to provide legal certainty as to the rights of the unborn. The Court followed that ‘[i]f, therefore, an objective of the Eighth Amendment was to remove uncertainty, that could only be achieved if the Amendment is regarded as encapsulating and expressing definitively the constitutional position of the unborn’.51 Furthermore, the question of the rights of the unborn previous to the Eighth Amendment was ‘not necessary, and arguably not possible’ to resolve.52 The job of the Court, in its opinion, is to interpret the Constitution as it now stands. Using this analysis, the Court cited the wording of the Thirteenth and Fourteenth Amendments as significant in their statement of ‘[T]his subsection shall not limit …’ (emphasis original). If the Constitution envisioned rights of the unborn other than the right to birth, then the rights of pregnant people to travel and information could be necessarily curtailed as to obtain a termination would be to deny the foetus those rights.53 However, this was not the case. Birth, therefore, is the ‘defining event’ wherein a foetus becomes a baby with full legal personhood and independently held rights.54 The Court was careful to add that this does not render the unborn ‘invisible’, as the State can both have regard to the rights it will accrue on birth, and also hold the value of human life as a factor when considering the common good while legislating.55 The Court then considered the position of the unborn child with regard to Article 42A of the Constitution. Humphreys J, had held that the wording ‘all children’ in Article 42A should include ‘the child before birth’.56 The Supreme Court concluded that the trial judge erred in making this assessment. Citing Geoghegan J in Roche v Roche,57 it remarked that while ‘the unborn’ is an unusual and ill-defined phrase, it was most probably intended to refer to ‘future existences’.58 Article 42A, however, was enacted with the intent of providing for the rights of children, in particular the removal of inequity of treatment between children of marital and non-marital ­families.59 It is ‘a composite provision recognising the rights of children, making it clear that its provisions apply to all children regardless of the marital status of the parents, providing that the children's best interests will be the paramount consideration and providing for the voice of the child to be ascertained in proceedings

48 

ibid para 10.51. [1992] IESC 1. IRM, at para 10.51. 51  ibid para 10.53. 52  ibid para 10.54. 53  ibid para 10.57. 54  ibid para 10.58. 55  ibid para 10.63. 56  ibid para 11.1. 57  [2010] 2 IR 321. 58  IRM, at para 11.11. 59  ibid para 11.20. 49  50 

126  The Irish Yearbook of International Law 2018 concerning them’.60 This clearly operates independently of, and refers to a different set of subjects to, the right to life of the unborn as per Article 40.3.3 – an assessment reflected in the lack of statutory or jurisprudential references to Article 42A or its predecessor, Article 42.5, including ‘the unborn’ in their definitions of ‘children’.61 The Court dealt briefly with some obiter dicta made by Humphreys J regarding the status of non-marital families. Although issues around marriage, family structures, and immigration could potentially give rise to case law in the future, it summarised, they did not form part of the grounds under appeal in this case.62 In conclusion, it found that the Minister ‘is obliged to consider the fact of pregnancy of the partner of a proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee’;63 furthermore, they must have regard to the rights which an Irish citizen child will accrue on birth.64 However, the Minister is still within her rights to refuse to revoke a deportation order after having made these considerations.65 On this point, the Supreme Court upheld the trial judge’s order and dismissed the Minister’s appeal.66 With regard to the Constitutional position of the unborn, the Supreme Court overturned the High Court’s findings on this part, and stated that the Minister should consider that the unborn is entitled only to the right to life granted it by Article 40.3.3.67 B.  MAM (Somalia) v Minister for Justice, Equality, and Law Reform On 26 February 2018, the High Court issued its decision in the joined cases of MAM (Somalia) v Minister for Justice, Equality, and Law Reform, KN (Uzbekistan) v MJELR and IK (Georgia) v MJELR.68 The question under discussion in each of these cases, henceforth referred to collectively as MAM, was, per the Court’s wording: ‘Does a refugee continue to be a refugee after acquiring citizenship of the State?’.69 At issue in this case was the right to family reunification which is conferred on recognised refugees under sections 56 and 57 of the International Protection Act 2015. Previous to the enactment of this statute, family reunification applications were considered under section 18 of the Refugee Act 1996. Applications for family reunification made previous to the enactment of the 2015 Act continued to be heard under the terms of the 1996 Act. Section 18(1) of the Refugee Act 1996 allowed ‘a refugee in relation to whom a declaration is in force [to] apply to the Minister for permission to be granted to a

60 

ibid para 11.21. ibid para 11.24. 62  ibid paras 12.1–12.13. 63  ibid para. 3(i). 64  ibid para 13.3(ii). 65  ibid para 13.3(iii). 66  ibid para 13.3(iv). 67  ibid para 13.3(vii). 68  [2018] IEHC 113. 69  ibid para 1. 61 

Correspondent Reports—Duffy 127 member of his or her family to enter and to reside in the State’. A ‘family member’ was defined as a spouse, a parent (for refugees aged under 18 years), or a child under the age of 18.70 The Minister for Justice also had discretion to allow a dependent member of the refugee’s family permission to enter and reside in the State.71 Section 56 of the International Protection Act 2015 states that ‘[a] qualified ­person (in this section referred to as the “sponsor”) may … make an application to the Minister for permission to be given to a member of the family of the sponsor to enter and reside in the State’. A member of the family under the 2015 Act includes a spouse or civil partner, parent or parents of a refugee under 18 years of age along with any other children under 18 years, or the child of the sponsor under 18 years.72 Section 47(9) of the IPA 2015 states that ‘[a] refugee declaration or a subsidiary protection declaration given, or deemed to have been given, under this Act shall cease to be in force where the person to whom it has been given becomes an Irish citizen’. The 1996 Act had contained no equivalent provision. Between the commencement of the Refugee Act 1996 and its repeal by the International Protection Act 2015, applications for family reunification followed a number of different procedures under the jurisdiction of the Minister for Justice. Before 2010, the Minister did not consider family reunification applications from naturalised citizens. Between 2010 and 2017, a broader reading of section 18 of the International Protection Act was utilised, which allowed for naturalised citizens to make applications for family reunification. However, in 2017, the Department of Justice reverted to the pre-2010 conditions for applicants, excluding naturalised citizens once more.73 MAM was a refugee from Somalia who had been granted asylum in Ireland in 2008 and naturalised as an Irish citizen in 2013. In 2009, she applied for a family reunification order regarding her minor children, which was granted. In 2017, she applied for a reunification order regarding her estranged husband, with whom she had recently regained contact. This order was refused, firstly on the basis that it had not been made within 12 months of her refugee status declaration (as per IPA 2015, s 56(8)), then secondly, following a revocation and restating of the Minister’s decision, because as a naturalised citizen, she had automatically had her refugee status withdrawn along with the rights which went therewith.74 Similarly, KN, who became a naturalised Irish citizen in 2012, applied for reunification with her daughter, granddaughters, and son-in-law in 2016, while Department policy would have been favourable to her application. However, the order was also refused on the basis of her naturalised citizenship.75 IK, the final applicant, wished to be allowed to remain in the State with her new husband, despite a deportation order which had previously been issued against her.76 70 

Refugee Act 1996, s 18(3)(b). ibid s 18(4)(a). International Protection Act 2015, s 56(9)(a). 73 Irish Human Rights and Equality Commission, amicus curiae submission in MAM and KN v MJELR, Court of Appeal Records 2018/141 and 2018/138, October 2018, para 5. 74  MAM, paras 2–3. 75  ibid paras 5–7. 76  ibid paras 9–10. 71  72 

128  The Irish Yearbook of International Law 2018 As previously stated, the question before the Court was whether the issuance of naturalised Irish citizenship automatically revokes refugee status, even if that status was conferred previous to the explicit statement of such in the International ­Protection Act 2015. The Court also considered submissions regarding the shifts in policy in the Department of Justice regarding family reunification orders, particularly whether the withdrawal of refugee status from naturalised citizens constituted discrimination against those persons;77 lastly, it considered whether such policies created legitimate expectation of continuance for applicants.78 Humphreys J, relying on European,79 United Nations80 and Geneva Convention81 provisions, found that refugee status is a declaratory status and, as such, the revocation of refugee status must also be declaratory. Utilising the definition of refugee status in section 2(1) of the Refugee Act 1996 and alluding to the equivalent provisions in the International Protection Act 2015, he concluded that a refugee, as someone who is by definition ‘outside of their country of nationality’, cannot logically retain that status once they have acquired a new nationality. This accords with the United Nations Office of the High Commissioner for Refugees guidelines, as well as precedent at the Court of Appeal for England and Wales.82 Humphreys J makes a distinction between being a refugee and having a declaration of refugee status, referring to European Union law.83 To be a refugee is a state of being; one fits the definition under law. Accepting naturalised citizenship automatically negates that status as one no longer falls under the legal definition of a refugee as a person outside the country of their nationality. Therefore, if MAM and KN are now Irish citizens, they are precluded from also being refugees. The definition of a person qualified to sponsor family members includes both possessing refugee status and having an active declaration of refugee status; therefore, if one of those conditions is no longer extant, the person is no longer a qualified sponsor and therefore cannot have an application for family reunification accepted. The Court accepted the Minister’s submission that the changes in policy regarding naturalised citizens between 2010 and 2017 were based on an inaccurate position emanating from legal advice, and that the Minister was within his rights to act on correcting this position. Per Humphreys J: ‘There is no principle of continuity such as to enable somebody to continue to get away with something that they or others have been getting away with to date. Changing an incorrect position to reflect correct legal advice does not amount to unlawful or unconstitutional discrimination, or discrimination contrary to the EU Charter or the ECHR’.84 Furthermore, the 77 

ibid para 39. ibid paras 40–41. 14 to the Qualification Directive (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). 80  United Nations Office of the High Commissioner for Human Rights, Handbook on Procedures and Criteria for Determining Refugee Status, at para 28. 81  Articles 1(c) and 1(e), Convention relating to the Status of Refugees 1951. 82  DL (DRC) v Entry Clearance Officer, Karachi, [2008] EWCA Civ 1420. 83  MAM, para 34. 84  ibid para 39. 78 

79  Recital

Correspondent Reports—Duffy 129 applicants could not claim that differential treatment between refugees and citizens was unlawful discrimination, as discrimination necessarily includes an element of arbitrariness. It is ‘rational and objective’ to treat persons who have voluntarily acquired naturalised citizenship differently from refugees under law; as the status is volitionary, this cannot be construed as discrimination.85 Accordingly, the High Court refused the applications of all three applicants under this collective case. As of 31 December 2018, applications for appeal from MAM and KN are awaiting hearings at the Court of Appeal, which was scheduled for early 2019. III.  IRELAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

A.  O’Sullivan McCarthy Mussel Development v Ireland In 2018, the European Court of Human Rights (ECtHR) issued its judgment in the case of O’Sullivan McCarthy Mussel Development v Ireland.86 The applicant alleged economic loss, for which it held the Irish Government responsible, owing to changes in the issuances of permits for harvesting of mussel seed due to E ­ uropean Union environmental regulations. The applicant alleged that their rights under Article 1 of Protocol 1 to the European Convention on Human Rights, as well as Article 8 ECHR were breached owing to this financial loss, for which they were not compensated. They also alleged that their Article 13 ECHR right to an effective remedy had been breached, along with their Article 6 ECHR right to a fair trial with regard to the length of domestic proceedings. O’Sullivan McCarthy was an aquaculture company which operated in ­Castlemaine Harbour, County Kerry, farming mussels. Subject to licencing and authorisation, it would customarily fish for mussel seed (immature shellfish) in the harbour before transporting them elsewhere to be grown.87 In 199388 and again in 200089 the Irish Government designated Castlemaine as a protected conservation area under two EU Directives,90 commonly known as the Birds Directive and the Habitat Directive. This gave Castlemaine the status of a ‘Natura 2000’ site.91 Between 1998 and 2002, the European Commission communicated that it believed Ireland was not complying with conservation requirements surrounding a number of its protected sites, including Castlemaine. This culminated in the Commission bringing infringement proceedings to the European Court of Justice (CJEU) in 2004.92

85 

ibid paras 44–45. Application 44460/16. 87  ibid para 5. 88  ibid para 9. 89  ibid para 10. 90  Directive 79/409/EEC of 2 April 1979 (‘the Birds Directive’), and Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’). 91  O’Sullivan McCarthy, at para 10. 92  ibid para 11. 86 

130  The Irish Yearbook of International Law 2018 The CJEU handed down its decision in 2007,93 finding against Ireland on the basis of its failure ‘to ensure systematically that aquaculture programmes likely to have a significant effect on SPAs, either individually or in combination with other projects, are made subject to an appropriate prior assessment’.94 Following this judgment, the Irish government took measures to comply, including putting a temporary stay on mussel seed fishing in Castlemaine, pending a proper assessment.95 The time period in question conflicted with the season wherein O’Sullivan McCarthy would normally carry out their fishing operations, which resulted in the loss of, allegedly, €289,599 to the company.96 They had also, shortly beforehand, invested in a new fishing boat at significant cost.97 O’Sullivan McCarthy communicated to the government that it would hold the State responsible for their losses.98 In 2009 the company operated as normal. In 2010 an extra ‘Natura permit’ was required and the company lost €119,941 as it had not obtained that permit in time.99 During this period, the Irish Government was in constant communication with the European Commission regarding the necessary actions which would bring it back into line with EU environmental laws, including the collection of data, carrying out of assessments, and allocation of funds. Castlemaine was authorised by the Commission to be reopened for fishing on 2 October 2008 and the Minister for the Environment accordingly signed a Statutory Instrument to that effect the next day.100 In 2009 the applicants began proceedings at the High Court on grounds including ‘breach of legitimate expectation, operational negligence and breach of the constitutional right to earn a livelihood’.101 The High Court ruled in their favour in 2013. It stated that the company had a legitimate expectation that they would be able to operate as usual in the 2008 season, as they had for many years received authorisation to do.102 It also found that there was operational negligence on the part of the government for non-compliance with the requirements of EU environmental law.103 The State appealed to the Supreme Court, which unanimously overturned the High Court’s decision on the grounds of legitimate expectation, and also overturned the negligence finding by a 3–2 majority.104 The Supreme Court’s deliberations centred around the policy considerations of the case, with the majority stating that while there was a ‘strong public interest in ensuring a proper balance between private and public rights and duties, there was a stronger public interest in ensuring that government can actually function, and that administrators were not impeded in making decisions through fear of a morass of litigation’.105 The Minister was

93 

Commission v Ireland (C-418/04). ibid para 12. 95  ibid para 14. 96  ibid para 17. 97  ibid para 14. 98  ibid para 16. 99  ibid para 21. 100  ibid paras 22–27. 101  ibid para 32. 102  ibid para 38. 103  ibid para 39. 104  ibid paras 42–43. 105  ibid para 44. 94 

Correspondent Reports—Duffy 131 obliged to undertake action regarding 140 sites around the country, many of which were sites of commercial activity. The closure and reopening of the Castlemaine site was done through valid statutory instruments.106 The ECtHR decided to hear the complaint of economic loss under Article 1 of Protocol 1 only.107 It rejected the government’s submission that the applicant had not exhausted domestic remedies,108 along with their submission that the authorisation to fish did not constitute a ‘possession’ under the scope of Article 1, Protocol 1.109 It considered that while the State’s actions did interfere with the ability of the applicants to conduct their business, it was not ‘akin to a de facto expropriation. Rather, the interference must be considered a “control of the use of property”, which falls under the second paragraph of Article 1 of Protocol No. 1.’110 Regarding the lawfulness and purpose of the interference, the ECtHR referred to the Supreme Court’s findings on the validity of the secondary legislation used to enact the closure, as well as the steady communication between the applicant and the Minister which ensured that legal uncertainty did not apply. The purpose of the interference was environmental protection, which the Court recognised as ‘an increasingly important consideration’.111 The Court rejected the State’s submission that the Bosphorus112 presumption113 applied to this case, citing the wide margin of appreciation allowed to the government in the fulfilment of a Directive, but left open the question of whether compliance with a CJEU judgment could potentially be regarded as reducing that margin significantly enough to fall under Bosphorus equivalent protection.114 Finally, the Court considered the justification for the interference. It took into account the fact that the applicants were ‘engaged in a commercial activity that is subject to strict and detailed regulation by the domestic authorities, and, as regards the fishing of mussel seed, operates in accordance with the conditions stipulated in the authorisations granted to it from year to year’.115 The Court considered that the applicants, as a commercial operator, ‘cannot disclaim all knowledge of relevant legal provisions and developments’,116 and should have been aware of the

106 

ibid para 45. ibid para 69. 108  ibid para 84. 109  ibid paras 90–91. 110  ibid para 104. 111  ibid para 109. 112  Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland [GC] no 45036/98. 113  ibid paras 153–55; ‘a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations … State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides … If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.’ 114  O’Sullivan McCarthy, at para 112. 115  ibid para 116. 116  ibid para 117. 107 

132  The Irish Yearbook of International Law 2018 CJEU judgment in 2007 which directly affected their sector – indeed that they could have been aware as far back as the infringement proceedings’ launch in 2004 that there would likely be disruption to their activities, yet made the decision to buy a new boat in these circumstances. The applicants were also not completely prohibited from fishing in 2008, but temporarily restricted.117 Accordingly, the Court held that it could not attribute their loss of profits to ‘the inevitable and immitigable consequence’ of the government’s actions.118 Furthermore, it found that the State had a strong general interest in both upholding standards of environmental protection, and in compliance with EU environmental law, which further justified the temporary restriction on the use of Castlemaine Harbour.119 It therefore overall found no breach of Article 1 of Protocol 1 to the ECHR.120 Regarding the allegation of a breach of Article 6 ECHR due to the length of domestic proceedings, the Court ruled that the applicants’ rights had not been infringed. The case was factually and legislatively complex,121 but it had been granted priority consideration by the Supreme Court and the only visible delays were minor and stemming from the parties themselves during the proceedings’ early stages.122 The Court declared the rest of the application inadmissible under Article 35(4) ECHR.123 IV.  OTHER DEVELOPMENTS

A. Ratification of the United Nations Convention on the Rights of People with Disabilities The Government of Ireland ratified the United Nations Convention on the Rights of Persons with Disabilities on 20 March 2018, 11 years after Ireland became a signatory to the Convention. Ireland has not yet ratified the Optional Protocol to the Convention, which would allow for individual complaints to be taken against the State to the UN Committee on the Rights of Persons with Disabilities. Ireland entered two reservations to the Convention, relating to Articles 12 (equal treatment before the law) and 27(1) (on work and employment). Two declarations were also submitted, relating to Articles 12 and 14 (on liberty and security of person). Ireland’s reservations relate to the retention of substitute decision-making arrangements, and to employment in the Gardaí, Defence, rescue, and emergency services.

117 

ibid para 121. ibid para 120. 119  ibid paras 126–29. 120  ibid para 130. 121  ibid para 145. 122  ibid para 156. 123  ibid para 162. 118 

Correspondent Reports—Duffy 133 B. Country visit of the United Nations Special Rapporteur on the Sale and Sexual Exploitation of Children The United Nations Special Rapporteur on the sale and sexual exploitation of ­children, Ms Maud de Boer-Buquicchio, conducted a week-long country visit to Ireland between 14–21 May 2018. Ms de Boer-Buquicchio’s visit included examinations of issues around care services, a lack of sexual assault treatment centres for children, particular vulnerability among disabled children, Traveller children, and children from ethnic minority backgrounds in the State. The Rapporteur’s report on the country visit was to be presented in March 2019.

134

Ireland and International Law 2018 DR DUG CUBIE*

T

HE FAR-REACHING EFFECTS of the United Kingdom’s decision to leave the European Union continued to dominate political and public discourse in Ireland during 2018. Countless meetings, discussions and analyses were undertaken to prepare for the expected exit of the UK, and the impact of Brexit lurked as a shadow over much of the day-to-day work in the Department of Foreign Affairs and Trade. For example, the new policy on foreign affairs, Global Ireland: Ireland’s Global Footprint to 2025,1 published in June, explicitly flagged the need for Ireland to expand its range of international partners across Europe and globally. Equally, the government’s bid for a seat on the UN Security Council for the period 2021–22 reflected the core policy of multilateralism, as well as recognition of the need to maintain influence at the highest levels of international politics. However, Brexit did not dominate all activities during 2018. The changing dynamics of Irish emigration, with an increasing number of returning emigrants and broader geographic spread of destination countries prompted a review of the 2015 Global Irish – Ireland’s Diaspora Policy.2 Likewise, following a review of the Irish Aid programme by the Oireachtas Committee on Foreign Affairs and Trade, and Defence in February, the government launched a public consultation to identify priority areas for future international development assistance. As in previous years, the Department of Foreign Affairs and Trade set out the government’s position on key aspects of international law, from statements made at the UN General Assembly Sixth Committee regarding the work of the International Law Commission, to statements condemning violations of international humanitarian law and breaches of international human rights law. Reflecting the changing geopolitical situation, 2018 saw tit-for-tat expulsions of Russian and Irish diplomats and an increasingly strained relationship with the Russian Federation. Yet traditional allies, such as the US, also provided challenges, with the government issuing strong statements on both the US decision to withdraw from the UN Human Rights Council and the cancelation of funding for the UN Relief Works Agency for Palestine.

*  University College Cork. 1  Government of Ireland, Global Ireland: Ireland’s Global Footprint to 2025 (June 2018). 2  For discussion, see: ‘Ireland and International Law 2015’ (2017) 10 Irish Yearbook of International Law 251–52.

136  The Irish Yearbook of International Law 2018 In congratulating Mary Robinson on her appointment as the Chair of the Elders,3 the Tánaiste stressed: Her appointment to succeed the late Kofi Annan, former Secretary General of the UN, is recognition of her long and courageous engagement in the causes of international peace, justice and human rights. She takes up this position at a time when the world needs to hear strong voices, such as Mary Robinson’s, advocating for multilateralism and international cooperation … In congratulating her, I also wish to pay tribute to her predecessor, Kofi Annan, an exceptional international statesman who worked tirelessly for a more peaceful and equal world.4

I. BREXIT

The ongoing lack of clarity from the British Government and opposition political parties regarding the likely outcome and format of the United Kingdom’s exit from the European Union (‘Brexit’) overshadowed many of the events which took place during 2018, not just in Ireland but across the continent. Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney TD, commenced the year by highlighting that Irish officials undertook 738 Brexit-related high level engagements and 433 stakeholder consultations during 2017. He continued by paying tribute to the work of colleagues in other EU Member States, and noted that: We can be proud of what we accomplished in phase one on the negotiations – we achieved the goals we set out, including maintenance of the Common Travel Area, protection of the Good Friday Agreement in all its parts and the gains of the peace process, including guarantees on avoiding a hard border. As we move into phase two where we will be consolidating these gains while also seeking agreement on transitional arrangements and the framework for the future EU-UK relationship, we will be reliant on our resourcefulness, vigour and dynamism as well as the solidarity of our partners to achieve the best possible outcome for the island of Ireland, our citizens and our economy.5

Irish politicians and diplomats continued these extensive bilateral discussions and contacts with partners in the EU throughout 2018. Key events included: —— The North-South Joint Committee meeting in January to discuss human rights under the Good Friday Agreement and Brexit.6 —— Meetings with the National Civil Aviation Development Forum (NCADF) to discuss the implications of Brexit for the aviation sector in March.7 3 The Elders are a group of former world leaders founded by Nelson Mandela in 2007. For more information, see www.theelders.org last accessed 29 May 2019. 4  DFAT, ‘Tánaiste welcomes the appointment of Mary Robinson as Chair of The Elders’, Press Release (1 November 2018). 5  DFAT, ‘Tánaiste highlights Brexit activity for 2017’ (1 January 2018). 6  DFAT, ‘North-South Joint Committee to discuss Human Rights under the Good Friday Agreement & Brexit’, Press Release (23 January 2018). 7  DFAT, ‘Tánaiste and Minister Ross meet Irish Aviation sector to discuss the implications of Brexit’ (8 March 2018).

Correspondent Reports—Cubie 137 —— An All-Island Civic Dialogue on Brexit in April with over 500 participants, including the EU Lead Negotiator, Michel Barnier.8 —— The launch of the ‘Getting Ireland Brexit Ready’ public information campaign in September.9 A series of bilateral meetings with EU partners also occurred, with EU partners ­visiting Ireland and Irish Ministers undertaking official trips to multiple EU partners over the course of the year. For example, the French Minister for European Affairs, Nathalie Loiseau, visited Ireland in February for bilateral discussions with Helen McEntee TD, Minister of State for European Affairs in advance of an informal s­ummit in Brussels of the EU’s Heads of State and Government to discuss institutional issues and the future financing of the European Union. Then in July, ­Minister McEntee held a bilateral meeting with the Romanian Minister for European Affairs, Victor Negrescu at the start of Romania’s Presidency of the EU Council of M ­ inisters.10 Of note, a joint plan of action for enhanced bilateral and EU cooperation between Ireland and Germany was launched on 26 November following a series of bilateral meetings in Dublin and Berlin.11 Speaking at the launch, the Federal Minister for Foreign Affairs of Germany, Heiko Maas, stated: The Joint Action Plan which we agreed today shows how close relations are between ­Ireland and Germany. We do not just want to cooperate more closely at bilateral level – on research and innovation, as well as on finance issues or agricultural policy. We also want together to help to make Europe more able to act and to strengthen the United Nations and the rules based multilateral order as a whole.12

As further evidence of an increasing pivot from the UK to promoting connections between Ireland and other European and global partnerships, Ireland was granted Observer Status at the Organisation Internationale de la Francophonie (OIF) in October.13 Addressing the 17th Summit of the Francophonie in Yerevan, Armenia, Minister McEntee noted that achieving observer status to the OIF was one of the steps set out in ‘Global Ireland’, the government’s initiative to double the scope and impact of Ireland’s global footprint in the period to 2025.14

8  DFAT, ‘Tánaiste Coveney, welcomes Michel Barnier & 500 participants to All-Island Civic Dialogue on Brexit’, Press Release (30 April 2018). 9  DFAT, ‘Getting Ireland Brexit Ready’, Press Release (20 September 2018). 10  DFAT, ‘Minister Helen McEntee TD, meets Romanian Minister for European Affairs’, Press Release (18 July 2018). 11  Germany–Ireland Joint Plan of Action for Enhanced Bilateral and EU Cooperation (15 November 2018), available at www.dfa.ie/media/dfa/newsmedia/181115_DEU-IRL_Joint-Plan-of-Action_final.pdf last accessed 29 May 2019. 12  DFAT, ‘Agreement with Germany on a Joint Plan of Action for Enhanced Cooperation’, Press release (26 November 2018). 13 DFAT, ‘Ireland granted Observer Status at the Organisation Internationale de la Francophonie’, Press Release (11 October 2018). 14  Government of Ireland, Global Ireland (n 1). For more information on the ‘Global Ireland’ initiative, see ‘Foreign Policy’ below.

138  The Irish Yearbook of International Law 2018 II.  INTERNATIONAL AGREEMENTS

Arms control and nuclear disarmament remained a key issue for Ireland during 2018. Of note, the disarmament delegation of Ireland was jointly awarded the 2017 Arms Control Person(s) of the Year, alongside Austria, Brazil, Mexico, New ­Zealand, South Africa and Ambassador Elayne Whyte Gómez of Costa Rica, for their leadership during the negotiations of the Treaty on the Prohibition of Nuclear ­Weapons  (TPNW).15 Following the announcement, the Tánaiste and ­Minster for Foreign Affairs and Trade, Simon Coveney TD noted: Ireland has begun working towards ratification of the Treaty and we urge other States to do likewise. We have a deep sense of the risks and catastrophic consequences of any use of nuclear weapons; risks and consequences which, considering the current security environment in the DPRK [North Korea], remain at the forefront of our minds and serve to heighten our ambition to prohibit these weapons.16

Also in the field of arms control, the Tánaiste marked the 10th anniversary of the UN Cluster Munitions Convention, which was adopted in Dublin in May 2008. Noting that Ireland was one of the first countries to sign the Convention, the Tánaiste stressed that ‘Ireland continues to take every opportunity to encourage States not party to the Convention to join as soon as possible’.17 Meanwhile, in November, the Department of Foreign Affairs and Trade called for submissions to Ireland’s Third National Action Plan on Women, Peace and Security for the period 2019–24.18 Based on UN Security Council Resolution 1325, the domestic National Action Plan (NAP) is intended to operationalise the international commitments States have signed up to under the UN’s Women, Peace and Security agenda. For example, Ireland’s Second National Action Plan (2015–18)19 was structured around the four pillars of UNSC Resolution 1325, namely: (i) prevention; (ii) participation; (iii) protection; and (iv) relief and recovery, alongside the promotion of the agenda. The results of the public consultation process, and resultant NAP will be available in early 2019. A.  List of Multilateral Agreements that Entered into Force during 2017 The following is a list of the multilateral agreements that entered into force for ­Ireland during 2017.20 15  See ‘Ireland and International Law 2016 & 2017’ (2018) 11–12 Irish Yearbook of International Law 221–22. 16  DFAT, ‘Ireland wins Arms Control Person of the Year’, News (10 January 2018). 17  DFAT, ‘Tánaiste Simon Coveney TD marks 10th anniversary of Convention on Cluster Munitions’, Press Release (30 May 2018). 18  DFAT, ‘Tánaiste welcomes call for submissions to 3rd National Action Plan on Women, Peace & Security’, Press Release (16 November 2018). 19 Government of Ireland, Ireland’s second National Action Plan on Women, Peace and Security (2015–2018), www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/ourwork/empoweringwomenpeaceandsecurity/Irelands-second-National-Action-Plan-on-Women-Peace-and-Security.pdf last accessed 29 May 2019. 20  Details of multilateral agreements that entered into force in 2018 are not yet available.

Correspondent Reports—Cubie 139 Table 1:  List of Multilateral Agreements that Entered into Force during 2017 ITS Number

Title of Agreement

No 1 of 2017

Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation of the Republic of Croatia as a Contracting Party, following its accession to the European Union, done at Brussels on 4 March 2016 Concluded on behalf of the European Union and its Member States on 8 November 2016 and the Swiss Confederation on 16 December 2016, entered into force on 1 January 2017

No 2 of 2017

Protocol to the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 18 July 2014 Approved by the former Yugoslav Republic of Macedonia on 31 March 2016 and on behalf of the European Union and its Member States on 31 January 2017, entered into force on 1 February 2017

No 3 of 2017

Protocol to the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 25 June 2014 Approved by the Republic of Serbia on 10 November 2014 and on behalf of the European Union and its Member States on 31 January 2017, entered into force on 1 February 2017

No 4 of 2017

Protocol to the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 20 February 2014 Approved by the Republic of Albania on 30 June 2015 and on behalf of the European Union and its Member States on 31 January 2017, entered into force on 1 February 2017

No 5 of 2017

Agreement amending for the second time the Partnership Agreement between the African, Caribbean and Pacific States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 as first revised in Luxembourg on 25 June 2005, done at Ouagadougou on 22 June 2010 Ireland’s Instrument of Ratification deposited on 15 November 2012, entered into force on 1 April 2017 (continued)

140  The Irish Yearbook of International Law 2018 ITS Number No 7 of 2017

Title of Agreement Third Protocol to the General Agreement on Privileges and Immunities of the Council of Europe, done at Strasbourg on 6 March 1959 Ireland’s Instrument of Accession deposited on 18 April 2017, entered into force with respect to Ireland on 18 April 2017

No 8 of 2017

Additional Protocol to the Trade Agreement between the European Union and its Member States, of the one part, and Colombia and Peru, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 30 June 2015 Approved on behalf of the European Union and its Member States on 4 July 2016 and by Peru on 11 April 2017, entered into force between the European Union and its Member States and Peru on 1 May 2017

No 12 of 2017 Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, together with the decision of the Heads of State or Government of the 28 Member States of the European Union, meeting within the European Council, done at Brussels on 27 June 2014 Ireland’s Instrument of Ratification deposited 17 April 2015. Decision of the Heads of State or Government of the 28 Member States of the European Union, meeting within the European Council done on 15 December 2016. Entered into force on 1 September 2017 No 13 of 2017 Protocol to the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 15 December 2016 Approved on behalf of the European Union and its Member States on 20 June 2017 and by Bosnia and Herzegovina on 7 September 2017, entered into force on 1 October 2017 No 14 of 2017 Articles of Agreement of the Asian Infrastructure Investment Bank, done at Beijing, People’s Republic of China on 29 June 2015 Ireland’s Instrument of Acceptance deposited on 12 October 2017, entered into force with respect to Ireland on 12 October 2017 No 15 of 2017 Framework Agreement on Partnership and Cooperation between the European Union and its Member States, of the one part, and Mongolia, of the other part, done at Ulaanbaatar on 30 April 2013 Ireland’s notification of the completion of the procedures necessary for the entry into force of this Agreement deposited on 30 May 2017, entered into force on 1 November 2017 (continued)

Correspondent Reports—Cubie 141 ITS Number

Title of Agreement

No 18 of 2017 Protocol to the Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States, of the one part, and the Socialist Republic of Viet Nam, of the other part, to take account of the accession of the Republic of Croatia to the European Union, done at Brussels on 19 November 2014 Approved on behalf of the European Union and its Member States on 16 December 2016 and the Socialist Republic of Viet Nam on 6 November 2017, entered into force on 1 December 2017 No 19 of 2017 Multilateral Agreement between the European Community and its Member States, the Republic of Albania, Bosnia and Herzegovina, the Republic of Bulgaria, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Iceland, the Republic of Montenegro, the Kingdom of Norway, Romania, the Republic of Serbia and the United Nations Interim Administration Mission in Kosovo on the establishment of a European Common Aviation Area (ECAA), done at Luxembourg and Brussels on 9 June 2006 Ireland’s Instrument of Ratification deposited on 14 June 2012, entered into force 1 December 2017 No 20 of 2017 (Treaty Action) Declaration to the Convention on Mutual Administrative Assistance in Tax Matters, on the Effective Date for Exchanges of Information under the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information Ireland’s declaration deposited on 22 December 2017, entered into force on 22 December 2017 No 21 of 2017 Declaration to the Convention on Mutual Administrative Assistance in Tax Matters, on the Effective Date for Exchanges of Information under the Multilateral Competent Authority Agreement on the exchange of Country-by-Country Reports Ireland’s declaration deposited on 22 December 2017, entered into force on 22 December 2017

B.  Statements on the Work of the International Law Commission Over the course of 2018, 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 (ILC). These statements are included in full in the Documents section of this Yearbook.21 The three statements covered the following topics: —— Statement to UNGA 73, 23 October 2018 on Part 1 of the ILC Report relating to Subsequent Agreements and Subsequent Practice, Identification of 21 

See Documents section.

142  The Irish Yearbook of International Law 2018 ­ ustomary International Law, Commemoration, and Other Decisions and C Conclusions of the Commission.22 —— Statement to UNGA 73, 26 October 2018 on Part 2 of the ILC Report relating to Protection of the Atmosphere, Provisional Application of Treaties, and ­Peremptory Norms of General International Law (jus cogens).23 —— Statement to UNGA 73, 31 October 2018 on Part 3 of the ILC Report relating to Protection of the Environment in Relation to Armed Conflicts, Succession of States in Respect of State responsibility, and Immunity of State Officials from Foreign Criminal Jurisdiction.24 III.  DIPLOMATIC MATTERS

During 2018, the President of Ireland Michael D Higgins received credentials from ambassadors representing: the Slovak Republic, Peru, the Grand Duchy of ­Luxembourg,25 the Italian Republic, the People’s Republic of Bangladesh, the Republic of Albania,26 the United Arab Emirates, the Czech Republic, the Socialist Republic of Vietnam,27 the Republic of Burkina Faso, the Kingdom of Thailand, the ­Republic of the Philippines,28 the Kingdom of Saudi Arabia, the Republic of Kazakhstan, Jamaica,29 the Kingdom of Lesotho, the Republic of Korea, ­Iceland, the D ­ emocratic Republic of Congo,30 the Hashemite Kingdom of Jordan, the Republic of Seychelles, the Kingdom of Cambodia, the Republic of Ghana,31 the Republic of Cyprus, the Republic of Estonia, the Kingdom of Denmark,32 ­Switzerland, the D ­ emocratic ­People’s Republic of Korea, the Republic of Tunisia,33 Israel, New ­Zealand, the R ­ epublic of Paraguay,34 the Islamic Republic of Iran, the Islamic Republic of ­Pakistan, the Republic of Burundi,35 the Kingdom of Spain, India, and the Republic of Uganda.36

22  Statement by Mr. James Kingston, Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 73rd Session, Agenda Item 82: The Report of the International Law Commission on the Work of its 70th Session (23 October 2018). 23  Statement by Mr. James Kingston, Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 73rd Session, Agenda Item 82: The Report of the International Law Commission on the Work of its 70th Session (26 October 2018). 24  Statement by Ms. Anne-Marie O’Sullivan, Assistant Legal Advisor, Department of Foreign Affairs and Trade, at the Sixth Committee United Nations General Assembly 73rd Session, Agenda Item 82: The Report of the International Law Commission on the Work of its 70th Session (31 October 2018). 25  DFAT, ‘New Ambassadors Present Credentials’, Press Release (18 January 2018). 26  DFAT, ‘New Ambassadors Present Credentials’, Press Release (9 February 2018). 27  DFAT, ‘New Ambassadors Present Credentials’, Press Release (13 March 2018). 28  DFAT, ‘New Ambassadors Present Credentials’, Press Release (19 April 2018). 29  DFAT, ‘New Ambassadors Present Credentials’, Press Release (18 May 2018). 30  DFAT, ‘New Ambassadors Present Credentials’, Press Release (3 July 2018). 31  DFAT, ‘New Ambassadors Present Credentials’, Press Release (13 July 2018). 32  DFAT, ‘New Ambassadors Present Credentials’, Press Release (4 September 2018). 33  DFAT, ‘New Ambassadors Present Credentials’, Press Release (20 September 2018). 34  DFAT, ‘New Ambassadors Present Credentials’, Press Release (16 October 2018). 35  DFAT, ‘New Ambassadors Present Credentials’, Press Release (28 November 2018). 36  DFAT, ‘New Ambassadors Present Credentials’, Press Release (6 December 2018).

Correspondent Reports—Cubie 143 2018 also marked a series of anniversaries since the establishment of bilateral ­ iplomatic relations, commencing with an official visit by the State Minister for d Foreign Affairs of Japan, Kazuyuki Nakane, in January to celebrate 60 years of diplomatic relations between the two countries. At the closing ceremony, Minister of State at the Department of Foreign Affairs and Trade, Ciarán Cannon TD, noted: 60 years is a very significant landmark in the Japanese calendar, denoting the completion of one cycle of life and the starting of another. There is much to celebrate in the strong relationship between Ireland and Japan, from culture and sport to trade. Japan is a crucial partner for Ireland as both our largest source of investment from Asia and the largest export market in Asia for Irish goods. The development of a new Ireland House in Tokyo by the Department of Foreign Affairs and Trade is further evidence of Ireland’s commitment to this important partner.37

Next, in July, the Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney, TD, celebrated the 25th anniversary of bilateral relations with South ­ Africa at the opening of an exhibition at Kilmainham Gaol commemorating the centenary of Nelson Mandela’s birth.38 The Tánaiste, who was joined by Trevor Manuel, ­Economic Envoy of the South African President, highlighted that: The people of Ireland showed great solidarity with South Africa during the struggle against apartheid. It was only after the end of that regime that Ireland established diplomatic relations with South Africa … President Ramaphosa has himself been a great friend of Ireland: we owe him a continuing debt of gratitude for his important contribution to our peace process.39

Reflecting a more strained relationship with Russia following the ‘regrettable’ expulsion of an Irish diplomat from the Irish Embassy in Moscow in March,40 in October the Tánaiste exchanged letters with the Minister of Foreign Affairs of the Russian Federation, Sergey Lavrov, to mark the 45th anniversary of diplomatic relations between the two countries. In a terse and short statement, the Tánaiste noted the importance of continued cooperation and dialogue, including through the Council of Europe, the EU, the OSCE, and the UN in particular.41 Meanwhile, as part of the continuing release of historical foreign policy documents, Volume XI of the Documents on Irish Foreign Policy series was launched 37  DFAT, ‘Closing ceremony for 60th anniversary of diplomatic affairs between Ireland and Japan’, Press Release (19 January 2019). The event also saw the launch of a report commissioned by the Department of Foreign Affairs and Trade mapping the development of Ireland and Japan’s relationship over the past 60 years: M Kennedy and E Kinsella, Ireland and Japan, 1957–2017: Diplomatic, Economic and Cultural Relations (Royal Irish Academy, 2018). 38  DFAT, ‘25 years of relations with South Africa celebrated with Mandela exhibition in ­Kilmainham Gaol’, Press Release (12 July 2018). In November, a former inmate of Robbin Island, Thulani Mabaso, visited the exhibition and met with Minister of State for the Diaspora and International Development, Ciarán Cannon TD See DFAT, ‘Former inmate of Robben Island to visit Ireland’, Press Release (1 ­November 2018). 39 ibid. 40  DFAT, ‘Statement on the expulsion of an Irish diplomat from Russia’ (30 March 2018). See also discussion of the 4 March 2018 chemical nerve agent attacks in Salisbury in the UK in the section on Foreign Conflicts and International Terrorism below. 41  DFAT, ‘Statement on 45th anniversary of Ireland and Russian diplomatic relations’, Press Release (1 October 2018).

144  The Irish Yearbook of International Law 2018 in November.42 The period covered, April 1957 to March 1961, includes the first missions by the Irish Defence Forces as UN Peacekeepers, in particular the mission to Katanga Province in the Congo. Consequently, the volume contains documents relating to both the Niemba Ambush in November 1960 which led to the deaths of 9 Irish peacekeepers, and the fighting at Jadotville and Elisabethville in September 1961, as well as Iveagh House’s reactions to these attacks. The volume also covers a key period at the height of the Cold War, and Ireland’s role at the UN General Assembly on issues including nuclear disarmament, apartheid, and the admission of Communist China. IV.  FOREIGN POLICY, BILATERAL RELATIONS, CONSULAR SERVICES AND THE DIASPORA

A.  Foreign Policy Ireland continued its traditional support for the UN and multilateral institutions over the course of 2018. For example, during the visit of UN Deputy Secretary ­General, Amina Mohammed, to Dublin in September, the Tánaiste stated: In my meeting with the UN Deputy Secretary General Mohammed today, I will be stressing Ireland’s support for a more effective, efficient and results-focused UN approach, given the key role the UN is playing in making the Sustainable Development Goals a reality for everyone, everywhere. This is in keeping with Ireland’s consistent support for the United Nations and our core belief that small countries can and should take a leadership role in the organisation.43

Of particular note, in July the government launched a bid for a seat on the UN ­Security Council for the period 2021–22.44 The Tánaiste’s speech noted Ireland’s commitment to multilateralism, and role in negotiating the 2030 Agenda for S­ ustainable Development and the SDGs in 2015, facilitation of the New York D ­ eclaration for Refugees and Migrants in 2016, and ongoing role as Chair of the Commission on the Status of Women. In particular, the Tánaiste argued that: We stand for the centrality of multilateralism to international relations, and the importance of a rules based system of laws and responsibilities. We stand for sustaining peace and protecting the most vulnerable globally. We stand for sustainable development, disarmament, humanitarian assistance, the realisation of human rights for all, and the empowerment of women and girls.45

42  M Kennedy, E O’Halpin, K O’Malley, B Whelan and D Keogh (eds), Documents on Irish Foreign Policy, Volume XI, 1957–1961 (Royal Irish Academy, November 2018). 43  DFAT, ‘Tánaiste & Minister Cannon confirm support for UN reform as UN Deputy Sec. General visits Ireland’, News (7 September 2018). 44  The campaign document produced by the Government of Ireland is available at www.dfa.ie/media/ dfa/ourrolepolicies/unitednations/Campaign-Brochure-July-2018.pdf (last accessed 29 May 2019). See also ‘The Irish Times view on Ireland’s UN Security Council bid: A campaign that needs a message’, The Irish Times (4 July 2018). 45  DFAT, ‘Tánaiste’s remarks at UN Security Council campaign launch’, Speech (3 July 2018).

Correspondent Reports—Cubie 145 In addition to the campaign for a seat on the UN Security Council, Ireland launched a key policy on foreign policy in June. The core objective of the Global Ireland: Ireland’s Global Footprint to 202546 document is to double Ireland’s global impact by 2025. In practice, as set out by the Taoiseach, Leo Varadkar TD, this will entail: —— opening up new embassies and consulates in important locations around the world; —— expanding some of the missions we already have; —— investing more in our agencies, such as the IDA, Enterprise Ireland, Bord Bia and Tourism Ireland; —— sharing our culture more widely around the world and deepening links to our global family; —— building new air and sea connections; and —— welcoming more international students to Ireland.47 The policy notes that Ireland’s international relations today are conducted in an environment characterised by increasing global interdependence and growing unpredictability, not least that caused by Brexit, which will force Ireland to identify new markets and opportunities, and to ‘deepen and renew relationships and alliances in Europe and beyond’.48 Global Ireland 2025 is intended to provide an international counterpart to the domestic Project Ireland 2040 policy. It also transects several other policy documents produced in recent years, including the Global Irish diaspora policy and Global Island foreign policy documents launched in 2015,49 and the new international development policy, which will be launched in early 2019. B.  Bilateral Relations As acknowledged in the Global Ireland 2025 policy, one of the impacts of Brexit has been the need for Ireland to increase its bilateral contacts with EU partners, as well as expanding its impact at the global level. Some key bilateral relationships, such as with Germany, were strengthened during 2018, while others such as with Russia and, to a certain extent, the US were more strained. The strengthening relationship with China is evident from the doubling of trade between 2013 and 2017 to an estimated €15 billion per annum, led mainly by increases in Irish goods exports. Moreover, Ireland is one of only three EU countries with a trade surplus with China, in both goods and services. The importance of this relationship was highlighted by the fact that the Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney, TD, travelled to China for the St Patrick’s Day celebrations in March. As he noted prior to his departure: China is an increasingly prominent actor in global affairs, and increasing our mutual understanding on key bilateral and international issues, including Brexit, will feature prominently 46 

Government of Ireland, Global Ireland (n 1). ibid p 8. 48  ibid p 10. 49  For discussion, see ‘Ireland and International Law 2015’ (2015) 10 Irish Yearbook of International Law 241, 246–48, 251–52. 47 

146  The Irish Yearbook of International Law 2018 in my visit. The opportunities for increased trade and investment between Ireland and China are immense, and will be further transformed with the establishment of direct flights from Hong Kong to Dublin from June 2018. I hope to build on this increasingly strong connection between Ireland and China and am optimistic that we will make visible progress during this visit.50

The bilateral relationship was further promoted with a three-day visit to Ireland by Cai Qi, Beijing Party Secretary and member of the Political Bureau of the Communist Party of China, in May 2018. Dublin and Beijing have been twinned cities since 2011, and Cork and Shanghai since 2005. Reflecting on these links, the Tánaiste stated: During my visit to China in March, I saw first-hand that the opportunities for trade and investment between our two countries are immense. There is also huge potential for partnership in the fields of education, research, culture and tourism … Senior political visits, such as this visit by Party Secretary Cai, represent an important opportunity to further our goals and also to increase our mutual understanding on key bilateral and regional issues, such as Brexit.51

In the Middle East, reflecting both bilateral ties and foreign policy objectives, the Tánaiste undertook several visits to Israel and Palestine during late 2017 and early 2018. Following a meeting with Israeli Prime Minister, Benjamin Netanyahu, in January the Tánaiste stated: Helping to resolve the Israeli-Arab conflict in the Middle East has been a priority for me since I took office. This issue is of deep interest to many people in Ireland, and in the course of our conversation I told the Prime Minister that I believe it is counterproductive to exclude from Israel and the occupied Palestinian territory groups which have a deep interest in this situation. This does not help to build a better mutual understanding.52

During the same trip, the Tánaiste travelled to Ramallah and met with the ­Palestinian President Mahmoud Abbas and Foreign Minister Malki, where he reaffirmed ­‘Ireland’s commitment and support to the two-state solution, as well as the final resolution of the status of Jerusalem as the future capital of both Palestine and Israel’.53 The Tánaiste also announced dedicated funding for Palestinians to undertake ­ Masters level education in Ireland via the Irish Aid Fellowship Training ­programme, with the intention to further expand the programme in Palestine over the next five years.54 The Tánaiste subsequently returned to Israel and Palestine for further discussions in June, his third visit to the region in less than a year.55 50  DFAT, ‘Visit by Tánaiste and Minister for Foreign Affairs and Trade, Mr. Simon Coveney, T.D. to China’, Press Release (12 March 2018). 51 DFAT, ‘Tánaiste Simon Coveney TD welcomes Beijing Party Secretary Cai Qi to Ireland’, News (9 May 2018). 52  DFAT, ‘Tánaiste and Minister for Foreign Affairs & Trade, Simon Coveney T.D. meets Prime Minister Netanyahu’, News (10 January 2018). See also: DFAT, ‘Statement by the Tánaiste on settlements’, Press Release (12 January 2018). 53  DFAT, ‘Visit by Tánaiste to Ramallah’, News (10 January 2018). 54  DFAT, ‘Tánaiste announces new scholarships for Palestinian students’, Press Release (11 January 2018). 55 See: DFAT, ‘Tánaiste Simon Coveney meets with Prime Minister Netanyahu of Israel’, News (8 June 2018); DFAT, ‘Visit by Tánaiste Simon Coveney to Ramallah’, Press Release (7 June 2018);

Correspondent Reports—Cubie 147 C.  List of Bilateral Agreements that Entered into Force during 2017 The following is a list of the bilateral agreements that entered into force for Ireland during 2017.56 Table 2:  List of Bilateral Agreements that Entered into Force during 2017 ITS Number No 6 of 2017

Title of Agreement Agreement between Ireland and Saint Christopher (Saint Kitts) and Nevis for the Exchange of Information relating to Tax Matters, done at London on 20 July 2015 Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 23 December 2015 and 15 March 2017, entered into force on 14 April 2017

No 9 of 2017

Exchange of Notes amending the Agreement between the Government of Ireland and the Government of the Argentine Republic on a Working Holiday Programme Notes exchanged on 7 July 2017, entered into force on 7 July 2017

No 10 of 2017 Agreement on the Mutual Recognition of Driving Disqualifications between Ireland and the United Kingdom of Great Britain and Northern Ireland, done at Dublin on 30 October 2015 Exchange of notes in relation to correction exchanged on 21 January 2016 and notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 1 August 2017, entered into force on 1 August 2017 No 11 of 2017 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing the Independent Reporting Commission, done at Dublin on 13 September 2016 Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 8 August 2017, entered into force on 8 August 2017 No 16 of 2017 Air Transport Agreement between the Government of Ireland and the Government of the Federal Democratic Republic of Ethiopia, done at Addis Ababa on 3 November 2014. Notification of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 22 March 2016 and 20 November 2017, entered into force on 20 November 2017 (continued)

DFAT, ‘Tánaiste begins visit to Jordan, Israel, Palestine and Cyprus’, Press Release (5 June 2018); and DFAT, ‘Statement by the Tánaiste on the threat of demolition to a Palestinian community’, Press Release (31 May 2018). 56 

Details of bilateral agreements that entered into force in 2018 are not yet available.

148  The Irish Yearbook of International Law 2018 ITS Number

Title of Agreement

No 17 of 2017 Agreement for Cooperation in the Field of Education between the Government of Ireland and the Government of the Federative Republic of Brazil, done at Dublin on 24 November 2010 Notification of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 1 December 2010 and 29 November 2017, entered into force on 29 November 2017 No 22 of 2017 Convention between the Government of Ireland and the Government of the Republic of Kazakhstan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, done at Astana on 26 April 2017 Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 27 December 2017 and 29 December 2017, entered into force on 29 December 2017

D.  Consular Services Over 822,000 Irish passports were issued during 2018, and during peak ­periods over 6,500 applications were being submitted per day.57 Applications from ­Northern Ireland (84,855) and Great Britain (98,544) increased by 2 per cent and 22 per cent respectively over 2017 figures, reflecting the continued influence of Brexit. The increase in applications was facilitated by the expansion of the Online Passport Renewal Service which was originally launched in March 2017, to include the renewal of children’s passports, introduction of a Passport Card for children, and an expansion of the cohort of adults eligible to renew online. The value of an Irish passport was acknowledged internationally, with Irish passports ranked in the top five passports globally for visa-free travel by both the Henley Passport Index and Arton’s global passport index.58 Meanwhile, over 7,000 passports were reported lost or stolen in 2018, and over 2,300 Irish citizens in distress received consular assistance.59 Between January and November 2018, Irish Embassies, Consulates-General and Honorary Consuls provided assistance to, inter alia, 344 Irish citizens who were arrested abroad, 71 cases of deportation, 15 cases of child abduction, and 271 deaths of Irish citizens abroad.60 Reflecting the growing international focus set out in the Global Ireland strategy published in June 2018, the government committed to maintaining an Irish Embassy in each EU Member State, as well as opening seven new

57  DFAT, ‘Tánaiste statement on 2018 passport figures’ Press Release (31 December 2018). All figures from this statement, unless otherwise noted. 58 DFAT, ‘Tánaiste welcomes announcement of Irish passport global ranking’, Press Release (12 January 2018). 59 DFAT, ‘DFAT supports high number of citizens in distress abroad in 2018’, Press release (31 December 2018). 60 ibid.

Correspondent Reports—Cubie 149 ­ mbassies or ­Consulates in Cardiff, Frankfurt, Kiev, Manila, Rabat, Monrovia E and Los Angeles.61 E.  The Diaspora The government’s Global Irish – Ireland’s Diaspora Policy, launched in March 2015,62 set out five policy goals (namely to support, connect, facilitate, recognise and evolve), while also establishing an Inter-Departmental Committee on the Irish Abroad. In June 2018, the government published the first review of the implementation of the diaspora policy, which noted that changing migration patterns had led to an increase in returning Irish emigrants.63 In addition to reviewing the progress and activities undertaken towards achieving the goals set out in the policy, the review identified five further priority areas: 1. 2. 3. 4. 5.

More accessible support. More targeted/prioritised support. More accountable support. More joined up/comprehensive support. More strategic support/next generation.

Examples of the support provided to Irish emigrants and diaspora communities during 2018 included: a collaboration between the Irish Immigrant Centre of ­Philadelphia and the Youth development organisation Foróige to engage Irish American youth and provide an opportunity for young people to connect with their Irish heritage in a contemporary way;64 over £5.2 million in funding to 108 organisations in Great Britain under the Emigrant Support Programme (ESP);65 the publication of a series of children’s activity books by Conradh na Gaeilge’s international Cultúr Club activity books;66 and the launch of a ‘Back for Business’ entrepreneur mentoring programme for returning emigrants.67 However, reflecting the global nature and increasing diversity of Irish emigration, a survey of 785 Irish emigrants living in Asia found that a mere 16 per cent were aware of the government’s diaspora policy and only 12 per cent were aware of the ESP.68 The high education level 61  DFAT, ‘Tánaiste announces 7 new Missions in next phase of Global Ireland’, Press Release (11 June 2018). See also: Government of Ireland, ‘Taoiseach launches Global Ireland: Ireland’s Global Footprint to 2025’, Press Release (11 June 2018). 62  For discussion, see: ‘Ireland and International Law 21015’ (2017) 10 Irish Yearbook of International Law 251–52. 63 DFAT, Review of Implementation of Global Irish – Ireland’s Diaspora Policy (June 2018) 5. 64 DFAT, ‘Minister Cannon launches first international Foróige Club in Philadelphia’, Press release (12 February 2018). 65  DFAT, ‘Minister Ciarán Cannon announces over £5.2 Million in ESP Funding to the Irish Community in Britain’, Press Release (23 October 2018). 66 DFAT, ‘Conradh na Gaeilge launches Irish-language & culture resources for diaspora children’, Press Release (3 October 2018). 67  DFAT, ‘Minister Cannon launches ‘Back for Business’ a programme to support returning emigrants’, Press Release (17 December 2018) 68  DFAT (Irish Abroad Unit), Report of Irish in Asia Diaspora Survey (July 2018) p 4. See also: DFAT, ‘Survey of the Irish Diaspora in Asia’, Press Release (23 July 2018).

150  The Irish Yearbook of International Law 2018 of the respondents was clear with 88 per cent holding a university degree, and 46 per cent holding at least a Master’s degree. In terms of employment, ‘­education’ and ‘finance’ were the top two sectors, with those working in ‘finance’ generally having lived in Asia for longer, being more likely to have children, and being less likely to return to Ireland in the next five years.69 Overall, the future plans of the respondents were fairly evenly split, with 30 per cent considering returning to Ireland in the next 5 years, 32 per cent who did not, and 38 per cent who did not know.70 The results of the survey were echoed in an independent Report on Addressing Challenges Faced by Returning Irish Emigrants, which was published in March 2018.71 Speaking at the launch, the Minister of State for the Diaspora and International Development, Ciarán Cannon TD, noted: In a world of increased international mobility and an increasingly global labour market, it is imperative that the Government facilitates the mobility of our citizens; that we enable them to travel abroad, continue engagement with them while they are living abroad, and most importantly, make it as easy as possible for them to return home.72

In addition to the annual St. Patrick’s Day celebrations,73 a series of events for the Irish diaspora took place during 2018, including the launch of a Global Irish Festival Series to encourage members of the diaspora to visit Ireland,74 and the ‘Blazing a Trail’ exhibition which celebrated the lives and legacies of 21 pioneering Irish diaspora women of the nineteenth and twentieth centuries.75 Led by Dr Angela Byrne, the DFAT historian-in-residence, the exhibition was launched in Dublin, and subsequently travelled to various Irish Embassies and Consulates to commemorate the achievements of Irish women in the fields of arts, sciences, sport and humanitarian work worldwide. V.  FOREIGN CONFLICTS AND INTERNATIONAL TERRORISM

As the war in Syria entered its eighth year, and the conflict in Yemen entered its fourth year, the Middle East continued to be a focus for Irish foreign policy. The Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney TD, commenced 2018 with a visit to Egypt, Israel and Palestine to discuss bilateral and regional issues. Speaking at the start of the visit, the Tánaiste noted: This is my second trip to Israel and Palestine as Minister for Foreign Affairs and Trade. This reflects the importance I attach to the Middle East Peace Process, and the high p ­ riority 69 

ibid p.2. ibid pp 4–5. 71  Indecon International Economic Consultants, Economic Report on Addressing Challenges Faced by Returning Irish Emigrants (27 February 2018) www.dfa.ie/media/dfa-2017/globalirish/Report-onReturning-Emigrants-2018.pdf last accessed 29 May 2019. 72  DFAT, ‘Minister publishes Economic Report on Addressing Challenges Faced by Returning Irish Emigrants’, Press Release (7 March 2018). 73 See: DFAT, ‘Tánaiste announces 2018 St. Patrick’s Day “Promote Ireland” Programmes’, Press Release (16 January 2018); and DFAT, ‘Visit by Tánaiste and Minister for Foreign Affairs and Trade, Mr. Simon Coveney, T.D. to China’, Press Release (12 March 2018). 74  DFAT, ‘New Global Irish Festival Series to Celebrate Diaspora’, Press Release (21 August 2018). 75  DFAT, ‘Minister Cannon welcomes launch of Blazing a Trail: Lives and Legacies of Irish Diaspora Women’, Press Release (20 November 2018). 70 

Correspondent Reports—Cubie 151 given to this issue by the Government, the Oireachtas and the Irish people. I will meet with a range of interlocutors from the Government of Israel and the Palestinian Authority, as well as from other international and non-governmental organisations. I will use the opportunity of this visit to express Ireland’s concerns about the impact of the continuing occupation.76

The ongoing instability in Libya was also on the agenda of the EU’s Foreign Affairs Council in January, following which the Tánaiste noted: Ireland fully supports [UN Special Representative for Libya] Salamé’s efforts to implement the UN Action Plan for Libya. We support the formation of a functioning government under the framework of the Libyan Political Agreement. A political solution, that is Libyan owned and led, remains the only way forward for the people of Libya.77

Meanwhile, the use of the chemical nerve agent, Novichok, in Salisbury, UK to attack a former Russian military official, Sergei Skripal and his daughter Yulia, on 4 March 2018 shocked officials and the public.78 The Tánaiste stressed: Ireland condemns this cowardly attack which has taken place on our neighbour’s soil. The use of chemical weapons, including the use of any toxic weapons, is unacceptable and abhorrent. The incident in Salisbury represents a disturbing violation of international law and goes against norms which have long been established. We join many states in supporting the UK’s efforts to ensure a thorough investigation so that the perpetrators of this crime can be held accountable. We offer our full support and solidarity to the UK and to the Organisation for the Prohibition of Chemical Weapons (OPCW) in their efforts to seek answers and take appropriate action for this indiscriminate and reckless act.79

As more details emerged, Ireland supported the joint EU position focusing on the Russian Federation as the source of the attacks, and reiterated that: ‘The attack in Salisbury was not just an attack against the United Kingdom, but an affront to the international rules-based system on which we all depend for our security and ­wellbeing’.80 Consequently, the Irish Government terminated the diplomatic status of a member of staff in the Russian Embassy, who was required to leave the State; a move reciprocated by the Russian authorities a few days later with the expulsion of an Irish diplomat from Russia.81 The role of Russia in the attack on Malaysia Airlines flight MH17 on 17 July 2014 was highlighted with the issuance of the findings of the Joint Investigation Team.82 The Tánaiste and Minister for Foreign Affairs and Trade, Simon Coveney TD,

76 DFAT, ‘Tánaiste begins visit to Middle East’, Press Release (8 January 2018). See also: DFAT, ‘Tánaiste meets with Egyptian Foreign Minister and Secretary General of the Arab League’, Press Release (8 January 2018); and DFAT, ‘Statement from the Tánaiste on developments in Gaza’, Press Release (31 March 2018). 77  DFAT, ‘Tánaiste Coveney attends EU Foreign Affairs Council in Brussels to discuss the post-Cotonou framework’, Press Release (22 January 2018). 78  See eg ‘Russian spy: What happened to Sergei and Yulia Skripal?’ (BBC News Online, 27 September 2018) www.bbc.com/news/uk-43643025 last accessed 29 May 2019. 79  DFAT, ‘Tánaiste Coveney Condemns Chemical Weapons Nerve Agent Attack in UK’, Press Release (13 March 2018). 80  DFAT, ‘Statement by Tánaiste on response to Salisbury nerve agent attack’, News (27 March 2018). 81  DFAT, ‘Statement on the expulsion of an Irish diplomat from Russia’ (30 March 2018). 82  See ‘Update in criminal investigation MH17 disaster’ (Openbaar Ministerie, 24 May 2018) www. om.nl/onderwerpen/mh17-crash/@103196/update-criminal-0/ last accessed 29 May 2019.

152  The Irish Yearbook of International Law 2018 ­ nderlined Ireland’s continuing support for UN Security Council Resolution 2166 u (2014) which called for those responsible to be held accountable, and he stressed that: Ireland is fully convinced of the independence, professionalism and impartiality of the Joint Investigation Team. We join the call on the Russian Federation, made this morning by the European Union, to accept its responsibility and to cooperate with all efforts to establish accountability. The families of those bereaved in this terrible incident deserve no less.83

Meanwhile, as part of the UN Pledging Conference for Yemen, which took place in Geneva in March 2018, the government pledged €4 million for humanitarian assistance to support civilians in Yemen. Speaking at the conference, the Tánaiste stressed: I remain deeply concerned by the level of violence in Yemen, and by reports of violations of human rights and international humanitarian law. I condemn in the strongest terms all actions which endanger civilians, including the recent missile attacks on the Kingdom of Saudi Arabia which killed one person, and the airstrike on the port city of Hodeida ­yesterday which killed fourteen people, many of them women and children. Ireland has ­repeatedly called on all parties to the conflict to take every necessary step to ensure the ­protection of civilians and to comply with international humanitarian law. I take this opportunity to reiterate my call for full and unimpeded humanitarian and commercial access to Yemen, in order to alleviate the suffering of the Yemeni people.84

Following an increase in violence and displacement in the Democratic Republic of Congo (DRC), the Tánaiste participated in a UN Pledging Conference in April, and announced at least €5 million in funding for humanitarian assistance in DRC for 2018. Speaking at the conference, the Tánaiste reiterated the need for all parties to respect international human rights and humanitarian law: I remain deeply concerned by the level of violence, including gender based violence, in the DRC, and by the grievous human rights abuses, and ongoing violations of international humanitarian law. In particular, I condemn the ongoing recruitment of child soldiers and recent attacks on hospitals and schools in the Kasai. In order to protect human life and reduce suffering, I call on the Government of the DRC to scrupulously respect human rights and International Humanitarian Law. The Government should also take urgent measures to give full and safe access to all humanitarian agencies and to allow effective implementation of humanitarian relief operations.85

The need to respect international humanitarian law was also central to the Tánaiste’s statement following reports of another chemical weapons attack in Syria in early April: It is extremely distressing to see images of children choking and unable to breathe, as a result of a conflict they cannot understand … A UN investigation found extensive ­evidence

83  DFAT, ‘Statement by the Tánaiste on findings of the Joint Investigation Team on the downing of Flight MH 17’, News (25 May 2018). See also: DFAT, ‘Statement by Tánaiste on the fourth anniversary of the downing of flight MH17’, News (17 July 2018). 84  DFAT, ‘Ireland to participate in UN Pledging Conference for Yemen’, Press Release (3 April 2018). 85  DFAT, ‘Ireland pledges at least €5m to the Democratic Republic of Congo’, News (13 April 2018).

Correspondent Reports—Cubie 153 that the Assad regime was responsible for that attack. The continued use of chemical weapons in Syria highlights the urgent need for accountability, and it is deeply regrettable that Russia has vetoed previous UN Security Council efforts to investigate and identify the perpetrators of chemical attacks in Syria … The protection of civilians is an obligation on all parties to this conflict.86

Responding to the apparent growing use of chemical weapons in various conflicts, in July 2018 Ireland joined the French-led International Partnership Against Impunity for the Use of Chemical Weapons.87 The Tánaiste reiterated the international prohibition of the use of chemical weapons, and stressed the government’s commitment to ‘working with our partners to strengthen the resolve of the international community to end impunity for those responsible for the use of these weapons’.88 In Asia, the Tánaiste welcomed the inter-Korean summit between President Moon Jae-in of South Korea and Kim Jong-un of North Korea in April, the first such meeting to be held in 11 years, and used the opportunity to reiterate Ireland’s stance on nuclear disarmament: The achievement and maintenance of a world without nuclear weapons has been and remains a driving force of Ireland’s foreign policy. We support all genuine steps towards progress on nuclear disarmament. We continue to urge the DPRK to abide by its obligations under relevant United Nations Security Council resolutions, and to ratify the Comprehensive Nuclear Test Ban Treaty. We urge it to abandon all nuclear weapons and ballistic missile programmes in a complete, verifiable, and irreversible manner.89

Following the signing of the historic peace agreement between the Government of Colombia and FARC in 2016,90 the Tánaiste warmly congratulated President Juan Manuel Santos of Colombia on receiving the Tipperary International Peace Award in August 2018.91 Noting Ireland’s strong support for the peace process, the Tánaiste paid tribute to the ongoing work of former Tánaiste and Minister for Foreign Affairs, Eamonn Gilmore who is the EU Special Envoy to the Peace Process. Finally, the Tánaiste responded to a number of terrorist attacks over the course of 2018, including an attack outside a mosque in Benghazi, Libya in January which killed at least 27 people,92 and a suicide attack on an education centre in Kabul in August.93 In all cases he reiterated Ireland’s condemnation of terrorism and support for efforts to combat terrorism in all its forms.

86 DFAT, ‘Statement by the Tánaiste on apparent chemical weapons attack in Syria’, Press release (9 April 2018). 87  DFAT, ‘Ireland joins International Partnership Against Impunity for the Use of Chemical Weapons’, News (12 July 2018). 88 ibid. 89  DFAT, ‘Statement by the Tánaiste on inter-Korean summit’, Press Release (26 April 2018). 90  Government of Colombia and FARC, Final Agreement to End the Armed Conflict and Build a ­Stable and Lasting Peace (24 November 2016). Text available in English at http://especiales.presidencia.gov. co/Documents/20170620-dejacion-armas/acuerdos/acuerdo-final-ingles.pdf last accessed 29 May 2019. 91 DFAT, ‘Tánaiste congratulates President Santos of Colombia on Tipperary International Peace Award’, Press Release (1 August 2018). 92  DFAT, ‘Statement by the Tánaiste on the terrorist attack in Libya’, Press Release (24 January 2018). 93  DFAT, ‘Tánaiste condemns suicide attack at education centre in Kabul’, Press Release (15 August 2018).

154  The Irish Yearbook of International Law 2018 VI.  PEACE SUPPORT OPERATIONS

The Irish Defence Forces have the longest unbroken record of overseas service with the UN of any country in the world, and 2018 marked the 60th anniversary of the first Irish UN peacekeeping deployment in 1958. It should be noted that at the time of writing neither of the 2017 nor 2018 Annual Reports for the Defence Forces are yet publicly available. However, in December 2018, the Defence Forces published provisional figures for 2018, which are subject to finalisation in the 2018 Annual Report.94 These figures note that a total of 492 recruits (460 male/32 female) and 89 cadets (78 male/11 female) began their military training in 2018. In regards to overseas operations undertaken during 2018, a total of 1,692 Defence Forces personnel served in overseas UN-mandated Peace Support and security operations in 14 countries and one sea, and as of 28 December 2018 there were over 650 Defence Forces personnel serving in 14 countries. The largest Defence Forces deployment was with UNIFIL in South Lebanon where 462 personnel were deployed, as well as 138 personnel deployed as a Disengagement Observer Force in the Golan Heights (UNDOF). The Naval Service continued their participation with the EUNAVFOR MED Operation Sophia as part of the EUs maritime mission to disrupt human smuggling and trafficking in the Mediterranean, with the LÉ Samuel Beckett and the LÉ James Joyce deployed to the Mediterranean during 2018. The Naval Service received its ninth ship in October, to be named the LÉ George ­Bernard Shaw, and a formal naming and commissioning ceremony will take place in 2019. Separately, a Counter Improvised Explosive Device (C-IED) Mobile Training Team travelled to Ouagadougou, Burkina Faso in November to provide training support to the UN Mine Action Service (UNMAS) in their delivery of C-IED Training for the Burkina Faso Armed Forces. VII.  HUMAN RIGHTS

Within the context of Brexit, the Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission met in January to discuss human rights and the Good Friday Agreement.95 The Tánaiste and Minister for Foreign Affairs and Trade Simon Coveney, TD, stressed that the human rights and equality provisions of the Good Friday Agreement were central to

94 Irish Defence Forces, ‘Defence Forces Operations 2018’, Press Release (28 December 2018). All information comes from this Press Release unless otherwise stated. 95  See C Murray, A O’Donoghue and B Warwick, Discussion Paper on Brexit (IHREC, 2018) www. ihrec.ie/app/uploads/2018/03/Discussion-Paper-on-Brexit.pdf last accessed 29 May 2019; and Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission, Policy statement on the United Kingdom withdrawal from the European Union (March 2018) www.ihrec.ie/app/uploads/2018/03/Joint-Committee-IHREC-NIHRC-Brexit-PolicyStatement_March-2018.pdf last accessed 29 May 2019.

Correspondent Reports—Cubie 155 the Peace Process, then in reference to the ongoing Article 50 EU–UK negotiations, he highlighted that: In terms of fundamental rights and equality, the EU and the UK have acknowledged the contribution of EU law and practice as a supporting framework for the rights and equality provisions of the Good Friday Agreement, both in Northern Ireland and across the island of Ireland. The UK has committed to ensuring that no diminution of rights is caused by its departure, including in the area of protection against forms of discrimination in Union law. This is a significant and substantive commitment. The UK has also committed to facilitating the work of the institutions and bodies of the Good Friday Agreement in upholding human rights and equality standards.96

At the global level, 2018 saw the 20th anniversary of the Declaration on Human Rights Defenders, the 25th anniversary of the Vienna Declaration, and 70 years since the adoption of the Universal Declaration on Human Rights (UDHR). Reflecting on the core values set out in the UDHR in his address to the UN Human Rights Council in February, Minister of State for the Diaspora and International Development, Ciaran Cannon, TD, highlighted the human rights situations in a number of countries including Yemen, Myanmar and the occupied Palestinian territories, as well as expressing strong support for human rights defenders and highlighting ­Ireland’s work on the Council to protect civil society.97 The Inter-Departmental Committee on Human Rights, established in 2015 under The Global Island: Ireland’s Foreign Policy for a Changing World to improve the coherence of the promotion and protection of human rights in our foreign policy, brings together senior officials from a number of government departments who coordinate on relevant issues including compliance with international human rights treaty obligations. The Inter-Department Committee had its first 2018 meeting in April and Minister Cannon noted a number of significant developments, including the ratification of the UN Convention on the Rights of Persons with Disabilities, the launch of the National Plan on Business and Human Rights, and Ireland’s chairing of the UN Commission on the Status of Women.98 However, from the humanitarian crises in Syria and Yemen to the expulsion of Rohingya from Myanmar99 and ongoing detention and trial of human rights activists in Turkey,100 2018 saw a worrying trend globally against the core principles of international human rights. This was particularly evident with the decision by the

96  DFAT, ‘North-South Joint Committee to discuss Human Rights under the Good Friday Agreement & Brexit’, Press Release (23 January 2018). 97  DFAT, ‘Minister Cannon addresses Human Rights Council and the Conference on Disarmament in Geneva’, Press Release (27 February 2018). 98  DFAT, ‘Minister Cannon convenes Inter-Departmental Committee on Human Rights’, Press Release (18 April 2018). 99  DFAT, ‘Statement by Minister Ciarán Cannon, T.D., on Myanmar’, Press Release (28 September 2018). 100  DFAT, ‘Statement by the Tánaiste on decision at pre-trial hearing of Chair of Amnesty International Turkey’, News (22 June 2018). See also: DFAT, ‘Statement by the Tánaiste on the release of Chair of Amnesty International Turkey’, Press Release (15 August 2018).

156  The Irish Yearbook of International Law 2018 US to withdraw from the UN Human Rights Council in June. Expressing his deep regret at the US decision, the Tánaiste highlighted the close working relationship between Ireland and the US on the Council between 2013–15 and, while acknowledging that the Council ‘sometimes falls short of what Ireland would regard as the ideal’, stated that: Nevertheless, I believe that it is imperative that countries such as the United States and Ireland, which have long championed human rights, continue to engage with countries which do not share our values and that we seek to effect positive change on human rights issues … At a time when human rights are increasingly under threat I would urge the United States to reconsider this step and decide to work from within the Council to improve its effectiveness.101

A key policy focus for Ireland’s engagement with the Human Rights Council during 2018 was the importance of supporting a strong civil society in all countries so as to ensure the promotion of equality, accountability and the rule of law. Following the successful passing of an Irish-led resolution on civil society space at the 38th session of the Human Rights Council in Geneva,102 the Tánaiste noted: The promotion and protection of Civil Society Space is a foreign policy priority for Ireland. Across the world we are witnessing a retrenchment of civil society as it comes under increasing pressure through the stigmatisation, harassment and even criminalisation of civil society actors.103

Another key priority area for the Irish Government was supporting human rights defenders. Speaking at the announcement of the establishment of a memorial for human rights defenders in Dublin on 10 December, World Human Rights Day, Mary Lawlor, the founder of Front Line Defenders, stated: I am delighted to be working with the Tánaiste, Simon Coveney, and the Department of Foreign Affairs and Trade, on this exciting project. And it is fitting that this memorial will be situated in the grounds of Iveagh House, where the Irish government’s international human rights policy is formed. It was also here that the decision to push for EU Guidelines on Human Rights Defenders was announced prior to Ireland’s EU Presidency in 2004. The killing of non-violent human rights defenders for their legitimate work for the rights of others should be a red line for governments both in their domestic and foreign policy. On this the 70th Anniversary of the Universal Declaration of Human Rights, Governments around the world should take stock and put in place systems to help prevent their murder by state and non-state actors.104

Also on World Human Rights Day, the Tánaiste announced an additional €650,000 in funding for the UN Office of the High Commissioner for Human Rights (OHCHR)

101  DFAT, ‘Statement by the Tánaiste on US withdrawal from the UN Human Rights Council’, News (20 June 2018). 102  UN Human Rights Council, Resolution 38/12, Civil society space: engagement with international and regional organizations (16 July 2018) UN Doc.: A/HRC/RES/38/12. 103 DFAT, ‘Ireland successfully leads on championing Civil Society Space at UN Human Rights ­Council’, Press Release (6 July 2018). 104  DFAT, ‘Tánaiste announces Memorial to Human Rights Defenders’, Press Release (10 December 2018).

Correspondent Reports—Cubie 157 for its work on civil society space and reprisals, and to the OHCHR country office for the occupied Palestinian territories. Speaking at the annual Civil Society Forum, the Tánaiste noted that: ‘The allocation of this additional funding, on top of our core contribution of €1,865,000, reaffirms Ireland’s commitment to the promotion and protection of civil society space as a foreign policy priority’.105 VIII.  OVERSEAS DEVELOPMENT AID AND HUMANITARIAN ASSISTANCE

There was modest growth of Irish Overseas Development Assistance (ODA) in 2017106 – from €725.78 million in 2016 to €743.42 million in 2017, representing a 2.4 per cent increase. However, as a percentage of Irish Gross National Product (GNP), the Irish ODA has stagnated for the past three years at 0.32 per cent. This remains less than the proportion given in 2001 (0.33 per cent) and is significantly lower than the high of 0.59 per cent in 2008,107 despite the government’s longstanding commitment to achieve the UN target of spending 0.7 per cent of Gross National Income (GNI*)108 on ODA. The breakdown of Irish ODA for the period 2012–17 is set out in the following table: Table 3:  Irish ODA 2012–2017 Year

2012

2013

2014

2015

2016

2017

Total ODA Budget (€ millions)

628.90

637.10

614.86

647.56

725.78

743.42

0.47

0.46

0.39

0.32

0.32

0.32

% of GNP

Indeed, the Oireachtas Joint Committee on Foreign Affairs and Trade, and Defence called on the government to increase Irish ODA expenditure in their review of the Irish Aid programme in February 2018.109 The review highlighted the Committee’s strong support for a continued focus by Ireland on the needs of the world’s poorest and most vulnerable people, and commended Ireland’s record on providing untied aid. As noted by the Chairperson of the Joint Committee, Brendan Smith, TD: It is understandable that concerns around Brexit, around health and homelessness, around employment and education, around security and justice and much more, dominate people’s day to day concerns. 105  DFAT, ‘Tánaiste announces additional funding to the Office of the High Commissioner for Human Rights’, Press Release (10 December 2018). 106  The equivalent figures for 2018 are not yet available. 107  All figures come from the Irish Aid Annual Report 2017 (published in October 2018), pp 61–62. Note that Irish Aid reports on the basis of GNP, not GNI*. 108  As explained by the Central Statistics Office (CSO): ‘Modified GNI (or GNI*) is defined as GNI less the effects of the profits of re-domiciled companies and the depreciation of intellectual property products and aircraft leasing companies. This new indicator of the level of the Irish economy will be a useful additional input to debt ratio analysis.’ See: CSO, Press Statement Macroeconomic Releases Year 2016 and Quarter 1 2017 (14 July 2017) www.cso.ie/en/csolatestnews/pressreleases/2017pressreleases/ pressstatementmacroeconomicreleasesyear2016andquarter12017/ last accessed 29 May 2019. 109  DFAT, ‘Launch of Joint Committee on Foreign Affairs and Trade and Defence report on Irish Aid programme’, Press Release (22 February 2018).

158  The Irish Yearbook of International Law 2018 Despite this, I was greatly heartened at the results of a poll last year which showed that 80% of those surveyed believe we should increase our support to efforts to eradicate poverty. It is a clear demonstration of Ireland’s commitment to global solidarity and a continued validation of Ireland’s long standing, historic role in addressing the needs of others beyond our own borders.110

The key themes the Committee identified for future priority included: taking forward the implementation of the Sustainable Development Goals (with a specific focus on gender, education, climate change and agriculture); ensuring a ‘whole of government’ approach to overseas development; the balanced use of both bilateral and multilateral channels for disbursing aid; and how to ensure better development education and communication of the Irish Aid programme at home.111 The review was followed by the commencement of a public consultation process on Ireland’s international development policy in July 2018, with the new policy to be launched in early 2019.112 Of note, it was announced in October that the overall government ODA would increase by €109.8 million in Budget 2019 compared to Budget 2018 – the largest year-on-year increase in ODA since 2006, with an estimated total ODA for 2019 of €816.9 million.113 In launching the Irish Aid Annual Report for 2017 in October, the Tánaiste and Minister for Foreign Affairs and Trade Simon Coveney, TD, noted both the positive reputation which Ireland’s aid programme enjoys worldwide, and how this fact would assist Ireland in its bid to secure a seat on the UN Security Council for 2021–22. The Tánaiste also highlighted Ireland’s commitment to the UN Sustainable Development Goals (SDGs): The SDGs remind us that those furthest behind are not always to be found in places where Ireland has traditionally worked. It is therefore vital that as we look to double the scope and impact of Ireland’s global footprint, we also recommit to helping the world’s most vulnerable and this is something which will remain as one of the key priorities of our new international development policy.114

At an EU level, the Tánaiste took part in discussions on the successor to the EU’s ­Cotonou Framework for African, Caribbean and Pacific countries in January 2018, and noted Ireland’s strong support for the process. In particular, the Tánaiste highlighted a shared focus on ‘eradicating poverty and hunger, promoting trade and political dialogue, and addressing issues such as climate change, conflict and inequality’.115

110  Joint Committee on Foreign Affairs and Trade and Defence, Review of the Irish Aid Programme (February 2018), p 1 https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_ foreign_affairs_and_trade_and_defence/reports/2018/2018-02-22_report-review-of-the-irish-aidprogramme_en.pdf last accessed 29 May 2019. 111  ibid p 3. 112  DFAT, ‘Tánaiste and Minister Cannon launch public consultation on new international development policy’, Press Release (12 July 2018). 113  DFAT, ‘Tánaiste Welcomes Budget 2019 Allocations for Overseas Development Assistance’, Press Release (9 October 2018). 114  DFAT, ‘Tánaiste to launch the 2017 Irish Aid Annual Report’, Press Release (1 October 2018). 115 DFAT, ‘Tánaiste Coveney attends EU Foreign Affairs Council in Brussels to discuss the postCotonou framework’, Press Release (22 January 2018).

Correspondent Reports—Cubie 159 Additionally, a series of funding announcements was made over the course of 2018. In February, the Minister of State for the Diaspora and International Development, Ciarán Cannon TD, announced that Ireland would more than double its funding to the Global Partnership for Education (GPE) – bringing Ireland’s contribution to €25 million over the next three years.116 In the field of food security, an additional €250,000 was made available to support Irish agri-food companies develop partnerships with African companies via the Africa Agri-Food Development Programme;117 while the Tánaiste announced the provision of €7.5 million for the period 2019–21 to the International Fund for Agriculture and Development (IFAD), in support of its work eradicating rural poverty in developing countries.118 To promote economic development in Africa, the 6th annual Africa Ireland Economic Forum was held in Dublin on 11 October 2018. As noted by Minister for Agriculture, Food and the Marine, Michael Creed TD, ‘The two themes of the Forum, “Agri-business” and “Women in Business” resonate strongly within my Department, not only underpinning the sustainable development of the agri-food sector in Ireland, but also as a cornerstone to Ireland’s international development assistance strategy.’119 Meanwhile, the visit of the head of the UN Office for the Coordination of Humanitarian Affairs (OCHA), Sir Mark Lowcock, to Dublin in March provided an opportunity for the announcement of €2.9 million additional funding for OCHA, as well as a further €8.5 million to relieve humanitarian crises in Yemen, Syria and Iraq.120 Speaking in advance of the meeting, the Tánaiste reiterated Ireland’s support for the UN: The United Nations is a cornerstone of Ireland’s global engagement. I am pleased to announce almost €11.5 million in Irish Aid support to the UN’s humanitarian relief work. This work helps alleviate the vulnerability of those most exposed to the effects of conflict, natural disaster and famine, in particular those most at risk due to the enduring crises in Yemen, Syria and Iraq. However, across the world, humanitarian need continues to outstrip the resources available. The Government is strongly committed to working with UN UnderSecretary-General Lowcock and the wider UN system to help put in place new solutions, including looking at innovative financing, and, most importantly, to find long-lasting solutions for peace.121

In addition to funding well-publicised conflicts, such as the ongoing civil war in Syria,122 humanitarian funding was allocated for forgotten conflicts, such as in

116 DFAT, ‘Minister Cannon pledges €25 million to international education’, News (2 February 2018). 117  DFAT, ‘Tánaiste Coveney and Minister Creed call for applications to Africa Agri-Food D ­ evelopment Programme’, Press Release (8 February 2018). 118  DFAT, ‘Ireland announces €7.5m to support IFAD’, News (12 February 2018). 119 DFAT, ‘Tánaiste to open the 6th Africa Ireland Economic Forum’, Press Release (10 October 2018). 120  DFAT, ‘Ministers welcome UN humanitarian chief, Sir Mark Lowcock, to Dublin’, News (22 March 2018). 121 ibid. 122 DFAT, ‘Ireland’s support to Syria crisis response exceeds €100 million’, Press Release (25 April 2018).

160  The Irish Yearbook of International Law 2018 Somalia,123 the ongoing work of non-governmental organisations,124 and the UN Relief Works Agency for Palestine (UNRWA).125 Indeed, following the decision by the US to withdraw all its funding for UNRWA in September, the Tánaiste issued a strongly worded statement: I believe this step is both heartless and dangerous, and will impact negatively on the Middle East region. And I have made my views on this absolutely clear in contacts with the US administration … Ireland is a longstanding supporter of UNRWA. We will continue that assistance and discuss with our EU and other partners what more can be done to support its work.126

This commitment was confirmed in December, with the announcement of a further €2 million in funding for UNRWA, bringing the total Irish funding provided to UNRWA in 2018 to €9 million. Noting the increased humanitarian needs in Palestine, and the impact of the US withdrawal of funding, the Tánaiste reiterated that: ‘The services that UNRWA provides are necessary, and will remain necessary, until a durable solution to the Israeli/Palestinian conflict can be negotiated that meets the needs of both parties, ends the occupation that began in 1967 and resolves all final status issues’.127

DFAT, ‘Ireland provides €3m funding to Somalia humanitarian crisis’, Press Release (11 May 2018). DFAT, ‘Tánaiste Simon Coveney and Minister Ciarán Cannon announce over €10 million in grants to NGOs’, Press Release (6 June 2018); DFAT, ‘Tánaiste Simon Coveney announces over €2 million in grants to Cork-based organisations’, News (6 June 2018). 125  DFAT, ‘Tánaiste announces humanitarian funding for UN Agency for Palestine Refugees’, News (27 June 2018). 126  DFAT, ‘Statement on cut to UNRWA funding’, Press Release (1 September 2018). 127 DFAT, ‘Tánaiste announces funding of €2 million for the Palestinian people’, Press Release (22 December 2018). 123 

124 

Ireland and the European Union 2018 ADAM P McCANN*

I

T WAS NOTED in the ‘Ireland and the European Union 2016 and 2017’ report that Brexit will present Ireland with an ‘impactful challenge’.1 Looking back at 2018, we may now consider this an understatement. Indeed, due to the ­all-consuming nature of Brexit in mainstream media, it is perhaps easy to forget that Ireland had an eventful 2018 as a Member State of the EU notwithstanding Brexit. First, some encouraging news. According to the autumn 2018 ­ Eurobarometer, Irish respondents are still the most likely to have a positive image of the EU at 64 per cent.2 This is unchanged from the previous two annual surveys. 64 per cent of Irish respondents think the situation of the European economy is good (4th highest in the EU); 84 per cent support the Euro (4th highest in the EU); and 85 per cent feel they are EU citizens (3rd highest in the EU).3 The recent results of the SME funding instruments were also encouraging. Ireland was the 6th most successful country under the 2018 round of Fast Track Innovation funding.4 According to studies published by the European Commission in November 2018, Ireland had the largest number of high-skilled employment supported by EU exports to the rest of the world; exports from Ireland to countries outside the EU supported 648,000 jobs; and Irish companies’ exports outside the EU were worth €128 billion. Ireland was one of the ten countries found to have a 2019 draft national budget plan in compliance with the the EU Commission Stability and Growth Pact.5 The 2018 autumn report by the Commission’s D-G for Economic and Financial Affairs,6 showed favourable labour market development, strong construction investment and unemployment rates falling rapidly towards pre-crisis levels. The same Commission report did outline a number of risks in 2018, namely the volatility of the labour market and influence of multinational companies, the shortage of housing supply, and significant increases in residential property prices and rents.7 *  University of Exeter. 1  See R O’Gorman ‘Ireland and the European Union 2016 and 2017’ in Irish Yearbook of I ­ nternational Law (Hart Publishing, 2017) 11–12, 197. 2  Standard Eurobarometer 90, ‘Public opinion in the European Union’ (Autumn 2018) 9. 3  ibid 33. 4 Under the Fast Track to Innovation scheme, projects receive around €2 million each plus access to free business coaching and acceleration services. The scheme is for relatively mature ground-breaking technologies, concepts and business models that are close to market. See https://ec.europa.eu/ ireland/news/9-irish-smes-to-get-eu-funding-to-help-bring-their-top-class-projects-to-market_en accessed 24 March 2019. 5  See http://europa.eu/rapid/press-release_IP-18-6462_en.htm accessed 24 March 2019. 6  European Commission Directorate-General for Economic and Financial Affairs (2018) ‘Post-Programme Surveillance Report: Ireland’ Institutional Paper, 081. 7  ibid 5.

162  The Irish Yearbook of International Law 2018 Indeed, there was some development in a dispute not entirely unrelated to these concerns, namely in relation to the corporate tax rate and Ireland’s multinational company dependency. The Commission, in October 2018, decided to withdraw the Court action it initiated against Ireland for the failure to recover from Apple the undue tax benefits of up to €13 billion. Almost 18 months after the deadline imposed on Ireland to recover the illegal State aid, an escrow fund was set up into which Apple repaid a total of €14.3 billion including interest. Note that the Irish government are still contesting the initial Commission decision ordering the payment. The formal action for annulment of this decision was set out before the General Court of the European Union for which we are, at the time of writing, still awaiting a decision on.8 Attention must now turn, however summarily, to another dispute for which we are awaiting also awaiting a decision on: Brexit. Part I of this report traces the key actions undertaken by the Irish Government leading up to and during the Brexit negotiations in 2018. Beyond these negotiations, EU law continued to operate as per normal in Ireland and within the period encompassed in this report, a number of important preliminary references covering a range of policy areas were brought before the Court of Justice (CJEU). Part II of the report discusses these. I.  BREXIT AND IRELAND IN 2018

On 17 January 2018, Taoiseach Leo Varadkar delivered the first EU leader speech in a series of debates at the European Parliament with Heads of Government on the future of the European Union. He made due reference to the ‘breakthrough achieved before Christmas’ whereby the UK guaranteed that a hard border on the island would be avoided, that the Common Travel Area and its associated rights will be maintained, and that Peace Process will not be jeopardised. These were the key messages on Brexit, from both the Irish Government and EU leaders, throughout 2018. The only thing that changed over the course of the year – from the EU and Irish perspective – was the forum for engagement on these issues. There was a firm expectation that these guarantees would be delivered in practice, in the Taoiseach’s own words: ‘[t]here can be no backsliding’.9 Not long after, Tánaiste Simon ­Coveney welcomed the publication of the European Commission’s Draft EU-UK Withdrawal Agreement, which included the ‘Protocol on Ireland/Northern Ireland’.10 In this regard, the Irish Government made clear that in pursuance of avoiding a hard border, this protocol provides the necessary legal provisions to implement the ­backstop and thus protect North-South cooperation.

8 

Case T-778/16 Ireland v Commission (case in progress). speech available at www.gov.ie/en/news/3db54c-speech-by-an-taoiseach-leo-varadkar-td-tothe-european-parliament-st/ accessed 24 March 2019. 10 European Commission Draft Withdrawal Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy ­Community, TF50 (2018) 33 – Commission to EU 27. Available at https://ec.europa.eu/commission/sites/ beta-political/files/draft_withdrawal_agreement.pdf. 9 Full

Correspondent Reports­—McCann 163 Practical discussions with UK and EU counterparts were routinely ­undertaken throughout the year. Paschal Donohue, Minister for Public Expenditure and Reform, maintained ongoing dialogue with his counterpart Chancellor Philip H ­ ammond MP, while the Tánaiste attended a number of high-level meetings in Brussels, including meetings with EU Chief Negotiator Michel Barnier to discuss the legal text of the draft Withdrawal Agreement. The Minister for European Affairs, Helen ­McEntee, continued to meet with regional business representatives North and South, and the Local Authority Border Control Group. Government Agency Support for business and SMEs was facilitated through Enterprise Ireland, Bord Bia and I­nterTradeIreland, all of which established targeted advice centres to provide sector-specific information on Brexit related issues. In April 2018, the Department of Finance published a detailed economic research paper examining the sectoral import exposures of the Irish economy and other EU members to the UK. The report found, unsurprisingly, that Ireland ‘is a substantial outlier amongst the EU-27 in terms of its import exposure to the UK, at an aggregate level, and in almost every sector.’11 This added further support for the government mantra of ensuring ‘the closest possible relationship between the EU and the UK’. This sentiment was strongly present in the All-Island Civic Dialogue that followed in May, at which Michel Barnier delivered the keynote speech. Barnier provided assurances of solidarity in negotiations and made clear that ‘without a backstop, there can be no Withdrawal Agreement’.12 These assurances were repeated in his speech to the Joint Houses of the Oireachtas. By June, the concern over the lack of progress on agreeing a backstop solution was apparent. Indeed, Leo Varadkar and EU leaders at the European Council Summit in Brussels explicitly stated such concern.13 At the same Summit, Prime Minister Theresa May updated Varadkar on her plans to produce a White Paper on the new relationship between the UK and the EU.14 Four months later and with slow progress on a withdrawal agreement, the government announced details of the ‘Getting Ireland Brexit Ready’ public information campaign. The Taoiseach, at the October European Council meeting, continued to review progress and discuss steps in the negotiation process with European leaders, including with President Tusk and the Chair of the European Parliament’s Brexit Steering Group, Guy Verhofstadt. On 14 November 2018, the European Commission and UK negotiators reached an agreement on the legally operative backstop solution to prevent a hard border.15 The agreement, endorsed by the European

11 See https://mailchi.mp/dfa/government-brexit-update-16-april-224357?e=67825c9765 accessed 24 March 2019. 12 For full speech, see http://europa.eu/rapid/press-release_SPEECH-18-3624_en.htm accessed 24 March 2019. 13 See https://mailchi.mp/dfa/government-brexit-update-29-june-306689?e=%5bUNIQID accessed 24 March 2019. 14 ibid. 15  Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on 14 November 2018, TF50 (2018) 55 – Commission to EU 27. Available for download at https://ec. europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf accessed May 2019.

164  The Irish Yearbook of International Law 2018 Council one week later, included a transition period up to the end of 2020, during which the EU would treat the UK as if it were a Member State, with the exception of participation in the EU institutions and governance structures. The Protocol on Ireland and Northern Ireland essentially set out the condition that both countries would remain part of the same EE-UK customs territory with no tariffs, quotas, or checks on rules of origin. It also set out a clear commitment to the rights established on the Good Friday Agreement and a continuation of the Common Travel Area arraignments. In December 2018, less than 100 days away from the expected date of UK ­withdrawal from the EU, the government published a Contingency Action Plan. The plan set out the Irish Government’s approach to dealing with the ‘very real’ prospect of a no deal Brexit. The plan reflected the Commission’s communication on implementing its Contingency Action Plan. It set out a number of crisis management strategies and the economic, fiscal, and security impact of a no deal exit.16 Both the government and the EU expressed their regret that the Withdrawal Agreement, agreed between the EU and the UK, had not been approved by the British Parliament. The Brexit saga of 2018 indeed ended on this extremely uncertain note, with Theresa May deferring a parliamentary vote on the Agreement in the hope of securing support for it. The House of Commons has since rejected the Agreement twice (once on 15 January 2019 by a vote of 432 to 202, and again on 12 March 2019 by a vote of 391 to 242). II.  IRELAND AND THE EUROPEAN UNION 2018

A.  Area of Freedom, Security and Justice In 2012 and 2013, three European arrest warrants (‘EAWs’) were issued by P ­ olish courts against Artur Celmer (hereafter ‘LM’, as per the CJEU judgment).17 The request was for LM’s arrest and surrender to the issuing courts to face criminal charges for narcotic trafficking. In May 2017, he was arrested in Ireland on the basis of those EAWs and brought before the Irish High Court. He refused to consent to the surrender and awaited a decision in custody. In Ministry for Justice and Equality v LM18 the High Court sought clarification from the CJEU regarding the conditions upon which it could justify an optional non-execution of the requested EAWs, as per Articles 4 and 4a of the EAW Framework Decision.19 The concern behind this preliminary reference derived from the worrying findings of a ‘reasoned proposal’ by

16 See: www.dfa.ie/media/dfa/eu/brexit/brexitcontingency/No-Deal-Brexit-Contingency-Action-PlanDecember-18.pdf accessed 24 March 2019. 17  Case C-216/18 Minister for Justice and Equality v LM. 18  Minister for Justice & Equality v Celmer [2018] IEHC 119. 19  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p 24). Implemented into Irish national law via the European Arrest Warrant Act, 2003.

Correspondent Reports­—McCann 165 the Commission regarding the rule of law in Poland.20 The proposal detailed ‘serious threats’ to the rule of law and the separation of powers in Poland, and specifically to systemic deficiencies regarding the independence of the judicial authorities. Concerns were raised with regard to the independence of the Polish Constitutional Court, Supreme Court, National Council for the Judiciary, the organisation of the ordinary courts, the National School of Judiciary and the Public Prosecutor’s Office. LM’s claim was therefore hardly unanticipated and quite straightforward: due to these deficiencies, the Irish High Court’s decision to surrender him to the Polish justice system would breach his fundamental right to a fair trial, as enshrined in the EU Charter (Article 47) and the ECHR (Article 6). The challenge facing the High Court – evaluating the strength of that claim – was not as straightforward, particularly in light of the fundamental importance of European judicial cooperation. The first point of uncertainty was strongly worded by the High Court, perhaps even overstated given the ultimate outcome it reached after the CJEU judgment (outlined below). It sought clarity on whether an individual risk assessment is still required even when the executing national court determines there is ‘cogent evidence’ of conditions incompatible with the right to a fair trial due to the ‘entire justice system no longer operating under the rule of law’? If so, was the High Court obliged to revert to the Polish issuing authorities for further information to discount the risks of an unfair trial? And indeed, if this is so, what guarantees to a fair trial would suffice in making its determination? The answer to the first question was predictable in light of the CJEU’s previous case law. The CJEU rightly noted that EU jurisprudence has established the need for the executing court to adhere to a two-step procedure when deciding whether to reject the request of the issuing court. It must first ascertain if there are general or systematic deficiencies in the protections provided in the issuing Member State and then assess the protections available to the individual requested in the case at hand.21 The Court’s response, however, to the second question was problematic. The two-step procedure to be applied in such cases, whereby, evidence is required from the issuing Member State, was set out in a case involving a potential breach of Article 3 ECHR – the prohibition of torture, inhuman, or degrading treatment.22 This case involved a potential breach of Article 6 ECHR and strong claims that the judiciary were now, effectively, corrupt. If this was the case, the utility of a requirement to seek information from the issuing judicial authorities must be questioned. This concern is latent in the wording of High Court’s referring question. Direct reference was indeed made to the Commission’s reasoned proposal. Nonetheless, the CJEU maintained this dialogue was an element of the two-step test the High Court should follow, regardless of the nature of the alleged rights violation at hand. 20 Article 7 TEU provides: ‘1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.’ Note that this particular reasoned proposal also referred to the extensive findings of the Venice Commission, a reliable advisory body to the Council of Europe. See Case C-216/18 Minister for Justice and Equality v LM, paras 17–21. 21  ibid para 68. 22  Case C-404/15 and C-659 Aranyosi and Căldăraru.

166  The Irish Yearbook of International Law 2018 The next question from the High Court concerned the type of test to apply in determining the risk at hand.23 In response, the CJEU fleshed out the established legal framework and jurisprudence on judicial cooperation in the Union. The EAW, and the principle of mutual recognition,24 are key elements in this cooperation and any exceptions to this cooperation ‘must accordingly be interpreted strictly’.25 The Court then stated that the executing judicial authority must find that there is a ‘real risk of breach of the essence of the fundamental right to a fair trial’.26 The Irish Supreme Court itself had used this high standard in previous extradition cases.27 Two issues have been raised with this standard. First, as von Bogandy and others recognised,28 the Court can be criticised for introducing a ‘real risk’ requirement when it has already been established that are systemic deficiencies undermining the entire independence of the judiciary. This point is discussed again below. Secondly, the Irish High Court’s interpretation in the post-CJEU ruling on this case reveals the uncertainty of this standard. The High Court held that there is good authority saying that ‘substantial grounds’ must be established in order to support the argument that such a real risk exists. It then went on to state that the determination would proceed on the basis that there is ‘no distinction between the two words “reasonable” or “substantial”’.29 It is also worth noting that the CJEU did not refer, in its reasoning, to the established ECtHR test that there must be a risk of ‘flagrant denial of justice’ in the requesting country.30 The High Court considered it ‘inconceivable’ that this omission meant the CJEU was amending the ECtHR test by implication. The outcome of this case ultimately resulted in the extradition of LM to Poland. This was notwithstanding the fact that the Irish High Court, taking into account ­evidence from a Polish law firm with expertise in national constitutional matters31 and the issuing judicial authorities (namely, the President of the Warsaw Regional Court, a judge from said court, and the Regional court in Poznan), found serious deficiencies in the independence of the Polish judiciary.32 The High Court, however, then moved on to assess the degree of risk faced by the individual application specifically. Despite the systemic lack of judicial independence, the fact that the Minister of Justice is the public prosecutor, and indeed the fact the Deputy Minister of Justice

23 

Case C-216/18 Minister for Justice and Equality v LM, para 34. Recital 6 of Framework Decision 2002/584. 25  Case C-216/18 Minister for Justice and Equality v LM, para 41. More widely, the CJEU referred to the ‘common values’ set out in Article 2, the internal borders, and the established principle of mutual trust between Member States (see paras 35 and 36). See Case C-284/16 Achmea, para 34 and the case law cited; C-270/17 Tupikas, para 49 and the case law cited. 26  Case C-216/18 Minister for Justice and Equality v LM, para 68. 27 The ‘Aranyosi precedent’, see Case C-404/15 and C-659 Aranyosi and Căldăraru.; in the Irish ­context, see: Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45. 28 A von Bogdandy et al, ‘Drawing Red Lines and Giving (Some) Bite – the CJEU’s Deficiencies ­Judgment on the European Rule of Law’, VerfBlog, 2018/8/03 https://verfassungsblog.de/drawing-redlines-and-giving-some-bite-the-cjeus-deficiencies-judgment-on-the-european-rule-of-law/ accessed last 25 March 2019. 29  The Minister for Justice and Equality v Celmer No.5 [2018] IEHC 639, para 8. 30  Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1. 31  Pietrzak Sidor & Partners. 32  Para 96. 24 

Correspondent Reports­—McCann 167 ‘made very public comments’ on the respondent’s guilt, the Irish High Court held that the threshold of a ‘real risk’ to the right to a fair trial had not been met. The other case referred from the Irish judiciary in this policy area (Freedom, Security and Justice) was also the first CJEU Brexit related judgment. Minister for Justice and Equality v RO33 concerned the implications of Brexit on the execution of an EAW issued by the UK to serve a sentence expected to extend beyond the date of the UK withdrawal from the EU. The EAW in question requested the surrender of the applicant (RO) to Northern Ireland in order to face a number of serious ­criminal charges. He argued that due to the UK’s expected withdrawal from the EU, as per its triggering of Article 50 TEU, the rights he enjoys under EU law34 could not be guaranteed if he were surrendered to the UK. Repeating its jurisprudence on the importance of mutual recognition and judicial cooperation on such matters, the CJEU held that the ‘mere notification’ by the UK of its intention to withdraw from the EU via Article 50 could not constitute ‘exceptional circumstances […] capable of justifying a refusal to execute a European arrest warrant issued by that Member State’.35 However, the executing judicial authority must still assess whether there are ‘substantial grounds for believing’ that there is a risk to the subject’s fundamental rights under the Charter and his rights derived from the Framework Directive. In this case, no such risk could be made out. The UK is a party to the ECHR and has incorporated the provisions of Article 3 ECHR into its national law (which correspond to those in Article 4 of the Charter). Furthermore, there was no evidence that any of the other rights (Articles 26, 27, and 28) relied on by RO were at risk; these rights indeed ‘reflect’ provisions of the Council of Europe’s Extradition ­Convention and have been implemented into UK law ‘irrespective of EU law, to any person who is extradited into the UK’.36 In short, the Court stated that when deciding whether an EAW should be executed in response to a request from a Member State withdrawing from the Union, it may be presumed that said Member State will apply the relevant EU law rights after the actual withdrawal. This presumption can be made if the withdrawing Member State has incorporated ‘the substantive content of those rights, particularly because of the continuing participation of that Member State in international conventions, such as the European Convention on Extradition […] and the ECHR’.37 Judicial authorities can only refuse to execute a EAW, even after the withdrawal of the requesting State, if there is ‘concrete evidence to the contrary’.38

33 

Case C-327/18 Minister for Justice and Equality v RO. ibid para 24. Namely, the right to a deduction of a period spent in custody in the executing Member State, provided for in Article 26 of the Framework Decision; the so-called ‘specialty’ rule, the subject of Article 27 of the Framework Decision; the right limiting further surrender or extradition, the subject of Article 28 of the Framework Decision, and respect for the fundamental rights of the person surrendered under the Charter of Fundamental Rights of the European Union (‘the Charter’). 35  ibid para 48. 36  ibid paras 57 and 58. 37  ibid para 61. 38 ibid. 34 

168  The Irish Yearbook of International Law 2018 B.  Access to Justice and Equal Treatment in Employment Law In Minister for Justice, Equality and Law Reform v Workplace Relations Commission39 the Supreme Court had to deal with a long-running dispute over the jurisdiction of the Workplace Relations Commission40 (hereafter the ‘WRC’) to disapply national law in light of the Equality Framework Directive.41 The impugned national legislation set the maximum age of recruitment to the national police force (An Garda Síochána) at 35 years of age.42 This maximum age limit excluded Mr Ronald Boyle, Mr Brian Fitzpatrick and Mr Gerard Cotter from consideration in the recruitment procedure. They brought a complaint before the WRC on the grounds that the (Irish) Equality Act 2004, implementing the Directive, prohibited discrimination on the basis of age.43 This presented what Fahey aptly described as an ‘unlikely’ constitutional crisis:44 a question over the limits of Member State procedural autonomy. The crux of this CJEU case was not the substantive claim regarding the potentially discriminatory nature of the age restriction; it was whether the WRC had jurisdiction to determine the issue at all. The Minister for Justice argued the primacy and effectiveness of EU law did not require jurisdiction to be granted to the WRC, and brought judicial review proceedings before the High Court. Charleton J in the High Court agreed with the Minister. Only courts established under the Constitution (as per Article 34) have jurisdiction to decide, if necessary, to disapply the impugned secondary legislation. The WRC is not such a court, but instead a creature of statute45 and as a result cannot, according to Charleton J, set aside or disapply any measure of law. The question of whether EU law could mandate a different approach was then referred to the Supreme Court. On this question, the Supreme Court made a preliminary reference order to the CJEU under Article 267. Before looking at the CJEU’s response, a number of points relating to Irish and European law are worth noting in the Supreme Court’s decision.

39  Minister for Justice, Equality and Law Reform and and the Commissioner of An Garda Siochána v Workplace Relations Commission, [2017] IESC 43. 40  The WRC (previously ‘the Equality Tribunal’) is the quasi-judicial body established to investigate, hear and decide on complaints of discrimination. Pursuant to the relevant provisions of the Employment Equality Acts, the WRC is entitled to make an order for compensation in the form of arrears of remuneration; an order for equal remuneration; an order for compensation for discrimination; an order for equal treatment; an order of an injunctive kind; and an order that an employer re-engage a complainant, with or without compensation. 41  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 42 Regulation 5(1)(c) of the Garda Síochána (Admissions and Appointments) Regulations 1988, as amended by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004 (‘the Admissions and Appointments Regulations’). 43  Note: the Court of Justice has recently, in Case C-258/15, Sorondo v Academia Vasca de Policia y Emergencias, had to consider the question of maximum recruitment ages in the context of police forces. In its judgment in that case the Court of Justice concluded that a maximum recruitment age of 35 was permissible in the circumstances of the case in question. 44  E Fahey, ‘A Constitutional Crisis in a Teacup: The Supremacy of EC Law in Ireland’ (2009) 15(4) European Public Law 515. Also, see this article for a closer analysis of the High Court decision. 45  Employment Equality Acts 1998 to 2004 (‘the Employment Equality Acts’ which term also includes, where appropriate, subsequent amending legislation); Workplace Relations Commission Act, 2015 (‘the 2015 Act’).

Correspondent Reports­—McCann 169 First, the Supreme Court confirmed that the WRC did not have jurisdiction under national law to disapply the impugned Garda regulation, this was a power vested in the High Court (and on appeal to the Court of Appeal and/or the Supreme Court).46 It then went on to assess whether this division of jurisdiction was in accordance with the jurisprudence of the CJEU, and namely the principles of equivalence and effectiveness. It dealt with the former principle quite swiftly.47 This principle requires that the procedure to be followed in respect of a claim under EU law must be equivalent to the procedure that would be followed by a party seeking to pursue an analogous claim based purely on national law.48 Indeed, as recognised by the Supreme Court, a party seeking to have a measure of secondary legislation set aside or disapplied would have to bring their claim before the High Court rather than a tribunal, such as the WRC. Thus, there was, according to this line of argument, no breach of the ­principle of equivalence. The question surrounding the principle of effectiveness was not, however, as straightforward. This principle requires that the national procedures in place to guarantee the rights enshrined under EU law must not be ‘practically impossible or excessively difficult’49 to use. To assess this, recourse must be had to the jurisprudence of the CJEU itself. Here the Supreme Court, following the approach of the High Court, did not employ an entirely pro-communautaire interpretation of CJEU case law.50 It recognised that the evaluation of national ­procedural law was a matter for the referring court, in light of the ‘special features’ of national procedural rules and structures. No mention was made at this point of relevant CJEU decisions such as Simmenthal,51 Factortame,52 or Winner Wetten.53 The Supreme Court instead set out a number of pragmatic arguments why it was more effective to sidestep the WRC and proceed directly to the High Court in cases like the one at hand. In short, as the claimants were seeking a ‘significant’ public law remedy it was considered ‘highly likely’ that their case would end up, via appeal, before the High Court anyway. This would result in a more complicated, lengthy and potentially expensive process. On the point of costs, the Supreme Court noted that a complainant to the WRC does not have the benefit of obtaining an order for costs in the event of being successful (and thus will ‘find it more difficult to obtain the services of the necessary lawyers’54); a benefit he/she would have before the High Court. The Supreme Court also referred to the difference in expertise; decision-makers in the WRC, like those in a range of other statutory bodies, do not

46  Minister for Justice, Equality and Law Reform v Workplace Relations Commission, [2017] IESC 43, para 5.1. 47  ibid para 7.1. 48  See Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland. 49  See Case C-312/93 Peterbroeck, Van Campenhout & Cie v Belgian State. 50  Minister for Justice, Equality and Law Reform v Workplace Relations Commission, [2017] IESC 43, paras 7.2–7.17. 51  Case C-106/77 Simmenthal. 52  Case C-213/89 Factortame and Others. 53  Case C-409/06 Winner Wetten. 54  Minister for Justice, Equality and Law Reform v Workplace Relations Commission, [2017] IESC 43, para 7.8.

170  The Irish Yearbook of International Law 2018 necessarily have any legal training and are, therefore, not as well placed as the High Court to answer questions of law like the one at hand. In summing up, the Supreme Court then recognised that the principle of effectiveness does not require national procedures to ‘be perfect’, but they must not render the vindication of Union rights ‘excessively difficult’. The CJEU made short work of this preliminary reference,55 in a decision with significant domestic constitutional ramifications. The crux of the issue, according to the CJEU, was a principle not mentioned once in the Supreme Court’s judgment: the primacy of EU law. Providing a terse account of EU law on the matter, the Court recognised: (i) that the WRC has been given express jurisdiction to enforce the p ­ rinciple of non-discrimination in respect of employment; (ii) when faced with a dispute involving observance of that principle, the principle of primacy requires the WRC to provide the legal protection which individuals derive from EU law and to ensure that EU law is fully effective, disapplying any contrary national legislation;56 and (iii) that it would be contradictory if an individual could rely on provisions of EU law before a particular body which has jurisdiction to hear his dispute, only to discover that said body has no power to apply those provisions by refraining from applying conflicting national law.57 Accordingly, the CJEU held that national law setting out a division of jurisdiction like the one at hand is contrary to EU law. The WRC ought to be able to disapply national legislation that conflicts with the rights set out in the Equality Framework Directive. C.  Environmental Policy In 2018, three separate cases made their way from the Irish High Court and one from the Irish Supreme Court to the CJEU involving environmental policy issues. Of these four cases, three were preliminary references concerning the EU Habitats Directive. In People Over Wind and Peter Sweetman v Coillte,58 environmental activists challenged a proposal by Coillte (a State owned company that operates in the forestry sector) to lay a cable connecting a wind farm to an electricity grid. The required work was expected to have an impact on two special areas of conservation59 – the River Barrow and the River Nore. These rivers are a habitat for an endangered type of freshwater pearl mussel.60 The main threat to the existence of these species stems from the high level of sedimentation of the bed of the rivers. Consent to develop the near-by wind farm was granted by An Bord Pleanála (hereafter ‘the Board’)

55  Case C-378/17 Minister for Justice and Equality, Commission of An Garda Siochána v Workplace Relations Commission. 56  See Case C-144/04 Mangold, para 77; C-555/07 Kücükdeveci, para 53. 57  See Case C-103/88 Costanzo, para 31. 58  Case C-323/17 People Over Wind & Peter Sweetman v Coillte Teoranta. 59  As per the European ecological network Natura 2000. 60  Margaritifera durrovensis; ‘the Nore pearl mussel’, which is included in Annex II to the Habitats Directive. According to the estimates mentioned in the High Court decision, there are as few as 300 ­individuals, having been as high as 2000 individuals in 1991.

Correspondent Reports­—McCann 171 in 2013, subject to various conditions. One of these conditions was the submission of a Construction Management Plan containing a detailed plan to ‘ensure that surface water run-off is controlled such that no silt or other pollutants enter watercourses’.61 The applicants were not satisfied with Coillte’s plan and contended that the river pollutants, such as the silt and sediment, from the proposed connection cable will still have a harmful effect on the endangered pearl mussels. Coillte contended that the laying of the cable is an ‘exempted development’ not requiring consent under national planning legislation,62 however it did accept that should such consent be required the next question would be whether an ‘appropriate assessment’ is needed. The purpose of an appropriate assessment, as per the Habitats Directive, is to assess the implications of the proposal in respect of the site’s ‘conservation objectives’ and therefore to enable the competent authority to determine if the proposal would adversely affect the integrity of the site. In order to determine the necessity of carrying out an appropriate assessment, Coillte’s consultants completed a screening report. This report concluded that ‘the grid connection works will not have a significant effect on the relevant European sites […] and an appropriate assessment is not required’. This conclusion was ‘clearly reliant on the fact that protective measures had been factored into the screening report’.63 This is what triggered the High Court to make a preliminary reference order to the CJEU. Was it permissible to consider protective measures when carrying out a screening for appropriate assessment under Article 6(3) of the Habitats Directive? The CJEU adopted a purposive interpretation of the Habitats Directive, insisting that Article 6 ‘must be construed as a coherent whole in the light of the conservation objectives pursued by the directive’. It relied on previous case law to restate that Article 6(3) requires two stages of inquiry.64 The first requires the Member States to ‘carry out an appropriate assessment of the implications for a protected site of a plan or project when there is a likelihood that the plan or project will have a significant effect on that site’.65 The second, which occurs following the appropriate assessment, requires the Member State to authorise the plan or project ‘only if it will not adversely affect the integrity of the site concerned’.66 In order to assess the requirement for an appropriate assessment, the risk itself must be assessed on the basis of ‘objective information’67 and in light of ‘the characteristics and specific environmental conditions of the site concerned by such a plan or project’.68 As the applicant and the Commission rightly pointed out, the very fact that Coillte’s consultants took

61  Condition 17 of the planning permission. Case C-323/17 People Over Wind & Peter Sweetman v Coillte Teoranta, para 12. 62  Planning and Development Acts. 63 See R Broadbent and C Caine, ‘A fresh start for screening under the Habitats Regulations: Case c-323/17 People Over Wind, Peter Sweetman v Coillte Teoranta [2018] Ecr I-244’ (2018) 20(3) ­Environmental Law Review 168–70. 64  Joined Cases C-387/15 and C-388/15 Orleans and Others, paras 44 and 46. 65  Case C-323/17 People Over Wind & Peter Sweetman v Coillte Teoranta, para 29. 66 ibid. 67 C-538/09 Commission v Belgium, para 39. 68  Joined Cases C-387/15 and C-388/15 Orleans and Others, para 45.

172  The Irish Yearbook of International Law 2018 preventative measures into account when determining if it was necessary to carry out an appropriate assessment ‘presupposes that is likely that the site is affected ­significantly and that, consequently, such an assessment should be carried out’.69 The Court then asserted (in contrast with recent High Court decisions70) that a full and precise analysis of the preventative measures must be carried out at the ­appropriate assessment stage, not at the screening stage.71 If such analysis was to occur at the screen stage it would compromise the practical effect of the ­Habitats Directive in general, ‘and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage’.72 The Court relied on its own jurisprudence: the assessment required under Article 6(3) of the Habitats Directive must contain ‘complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned’.73 For these reasons, it was ultimately held as inappropriate, at the screening stage, to take account of preventative measures. Grace v An Bord Pleanála74 involved a proposal to build a wind farm in a ­specially protected area that stretches from Slieve Felim to the Silvermines Mountains. This area hosts the natural habitat of hen harriers (an endangered species of bird identified in Annex I of the Birds Directive).75 Ms Grace and Mr Sweetman brought proceedings before the High Court, and a subsequent appeal before the Supreme Court, contesting the decision by the Board to grant permission for the wind farm development. The contested development set out a ‘dynamic’ management plan containing measures to address the potential effects of the wind farm on the hen harrier’s foraging habitat, an area expected to vary geographically and over time. The plan acknowledged that there would be permanent and direct loss of suitable habitat (9 hectares) and, during the project, a further temporary loss of suitable habitat (162.7 hectares). The plan also included measures to address the effects of the development – restoring areas of blanket bog (41.2 hectares) and providing areas of optimum habitat for hen harriers and other animals during the lifetime of the project (137.3 hectares). It was the nature, and subsequent applicability, of these measures that led the Supreme Court to make a preliminary reference. The question was whether the measures proposed in the management plan seeking to reduce damage to the habitat, and perhaps enhance the area, should be classified as mitigating measures, or whether they must be regarded as compensatory measures within the meaning of Article 6(4) of the Habitats Directive. If the measures in question are deemed to be mitigation measures, they are therefore relevant to the evaluation under Article 6(3) – that is the evaluation of the risk of the project

69 

Case C-323/17 People Over Wind & Peter Sweetman v Coillte Teoranta, para 35. Ratheniska Timahoe and Spink (RTS) Substation Action Group v An Bord Pleanála [2015] IEHC 18; Harten v An Bórd Pleanála [2018] IEHC 40. 71  Case C-323/17 People Over Wind & Peter Sweetman v Coillte Teoranta, para 36. 72  ibid para 37. 73  Joined Cases C-387/15 and C-388/15 Orleans and Others, para 50. 74  Case C-164/17 Grace & Sweetman v An Bord Pleanála. 75  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds. 70 

Correspondent Reports­—McCann 173 having a significant effect on the integrity of the site. If the measures are compensatory in nature, they are therefore relevant to the evaluation under Article 6(4) – that is the evaluation of the steps taken to offset the negative effects of the project. The CJEU strongly asserted the distinction between the two sub-provisions. Unless there is no reasonable scientific doubt that there will be no adverse impact on the integrity of the area (as per Article 6(3)), the second stage must be carried out and approval for the project can be given only if the strict tests in Article 6(4) are met. This requires that there is no alternative solution, that there are imperative reasons of overriding public interest to justify the project and that compensatory measures are taken. The Court deemed the measures in casu be compensatory (and providing benefits which could not be foreseen with certainty) and thus must be subject to the more rigorous examination set out under Article 6(4). The combined effect of this case and People Over Wind is that not only will mitigation measures be excluded from the screening stage, but that compensatory measures cannot now be taken into account as part of the appropriate assessment, and should only be considered, if necessary, under Article 6(4).76 Then came the third decision of 2018 involving a preliminary reference from the Irish courts in relation to the Habitats Directive, Holohan v An Bord Pleanála.77 This case concerned a proposal to build a new carriageway in Kilkenny that will cross the River Nore and the River Barrow; the same two protected habitat sites at the heart of the Grace case. In Holohan the applicants claimed that the Board failed to consider the environmental effects of the main alternatives studied and that the appropriate assessment purportedly carried out was deficient. Following a hearing in 2014, an inspector for the Board published a report which concluding that the Environmental Impact Statement (‘the EIS’) and Natura Impact Statement (‘NIS’) were not adequate and required significant further information. Notwithstanding that inspection report, permission was granted for the development project. The applicants brought a claim before the High Court seeking an order of certiorari annulling the Board’s decision. The High Court referred 11 questions to the CJEU, which responded with five answers addressing all the issues raised – three on the Habitats Directive and two on the EIA Directive. The CJEU summarised the first three questions as essentially asking whether an appropriate assessment under Article 6(3) of the Habitats Directive required a catalogue for the effects of the project on all habitat types and species, even those for which the site has not been listed and/or which may be found outside the boundaries of the site. The Court, referring to the wording of Article 6(3) and the Opinion of the Advocate General, swiftly answered this question in the affirmative. The next question the CJEU addressed was whether Article 6(3) enables planning permission to be granted while the parameters of the construction remain to be determined, and, if so, whether those parameters may, at that later stage, be determined unilaterally by the developer and merely notified to that authority. The Court repeated its jurisprudence on the inquiry required by Article 6(3): the competent authority must

76  77 

See A Stuart, ‘New Rules to reflect on’ The Estates Gazette (29 September, 2018). Case C-461/17 Brian Holohan and Others v An Bord Pleanála.

174  The Irish Yearbook of International Law 2018 identify any affect the project may have on the conservation objectives of the site; and that such assessment must contain complete, precise and definitive findings in light of the best scientific knowledge. The Court then felt the need to repeat the duty at hand – that these ‘obligations are not borne by the developer […] but by the competent authority’.78 In terms of the specific question asked, it stated that planning consent which leaves the developer free to determine the parameters at a later point may be given. However, this is with the proviso that the development establishes conditions ‘that are strict enough to guarantee that those parameters will not adversely affect the integrity of the site’.79 The next question before the CJEU was quite straightforward. Does Article 6(3) require additional information to be obtained when the competent authority rejects scientific expert opinion which recommends ‘that additional information be obtained’? Unsurprisingly, in light of its jurisprudence, the Court answered this in the affirmative. This requirement arises not only on occasions when expert evidence is rejected but also when assessing, more generally, the impact of the project on the site. There cannot be any gaps in the scientific findings regardless of the verdict of the experts. The Court then moved away from the Habitats Directive and on to the EIA Directive. Similar in its environmental objectives, the latter Directive has a broader application, applying to all ‘public and private objectives which are likely to have significant effects on the environment’.80 There is also a practical difference, a shift in the burden of proof. It is the developer, as per Article 5(1) of the EIA Directive, who is obliged to supply information addressing the significant effects of its project on all species identified in the environmental impact assessment. Concerning the remaining three questions, the Irish High Court essentially asked whether the EIA Directive requires the developer to also supply information on the environmental effects ‘of all the main alternatives studied by the developer … even if such an alternative was rejected at an early stage’. As Reid points out this CJEU decision ‘continues the court's emphasis on environmental protection, both in the range of information that must be provided and the criteria to be met before approval can be given’.81 The result is that assessment procedures under the Habitats Directive and the EIA Directive must give thorough consideration to all environmental consequences that may flow from a proposed project. The burdensome nature of this demand, as discussed above, is not insignificant from a developers and planning authority perspective. The fourth and final environmental-policy related case referred from the Irish courts to the CJEU in 2018 was the case of Volkmar Klohn v An Bord Pleanala.82 In this case, Klohn sought judicial review of a decision by the Board to permit the

78 

ibid para 44. ibid para 47. 1 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (‘the EIA Directive’). 81 C Reid, ‘Case Comment: Environmental impacts and habitats assessments’ (2019) 191 Scottish Planning and Environmental Law 10. 82  Case C-167/17 Volkmar Klohn v An Bord Pleanála. 79 

80  Article

Correspondent Reports­—McCann 175 construction of an inspection unit for fallen animals in a site close to his farm. The facility was intended to be part of the response to the bovine spongiform encephalopathy epizootic (BSE) crisis between 1989 and 2004. Mr Klohn’s application for judicial review was dismissed by the High Court and he was ordered (by the Taxing Master) to pay the costs incurred by the Board. These costs totalled €86,000. After unsuccessfully asking the High Court to overturn these costs, Mr Klohn appealed to the Supreme Court arguing that the costs awarded against him were ‘prohibitively expensive’ and thus contrary to Article 10a of the EIA Directive (which sets out a ‘not prohibitively expensive’ rule).83 One of the main reasons this case arose was down to the fact that, at the time Mr Klohn brought his claim, Ireland had failed to transpose into national law the rule in Article 10a of EIA Directive. In the meantime, the Commission successfully brought an infringement procedure against Ireland.84 This resulted in an amendment to the Planning and Development Act in 2011 to give effect to the ‘not prohibitively expensive’ rule. The first question the CJEU addressed was whether said rule had direct effect before the adoption of the 2011 Act, or whether the national court is only under a duty to interpret national law in a manner, to the fullest extent possible, which achieves an outcome c­ onsistent with the objective pursued by that rule. The Court stated, consistent with its case law, that the words used in the Directive85 setting out the rule did not impose a ‘sufficiently ­precise obligation […] in order to dispense of with national implementing ­measures’.86 For this reason, the rule did not have direct effect and Irish courts were only under an obligation to to interpret national law ‘so far as possible’ with a view to achieving the objective of the rule – that is to ensure the right to an effective remedy in the context of protecting and preserving the quality of the environment. The next question considered by the CJEU was whether the ‘not prohibitively expensive’ rule applies to the proceedings at hand, which was brought before the time-limit for transposing the directive expired. And if so, should the rule apply ‘to all the costs incurred in the context of those proceedings or only to those incurred after that time limit expired’.87 The Board argued that retroactive applicability of the ‘not prohibitively expensive’ rule to ongoing proceedings is contrary to the principle of legal certainty. It argued that ‘the rule on the allocation of costs, as known at the outset of the proceedings, influenced the amount of the costs which the parties decided to commit to defending their rights’.88 The Court dealt with this argument quite swiftly. First, the parties did not receive any assurances that the rule on the allocation of costs would be maintained in force until the end of the proceedings (thus no violation of legitimate expectations).89 Secondly, the parties ‘could envisage’ given that the Directive entered into force in 2003, that the national rule

83 

Article 10a of Directive 85/337. Case C-427/07 Commission v Ireland, paras 92–94. rule requires that the judicial proceedings concerned ‘shall be fair, equitable, timely and not prohibitively expensive’ ibid. 86  Case C-167/17 Volkmar Klohn v An Bord Pleanála, para 29. 87  ibid para 37. 88  ibid para 49. 89  ibid para 52. 84 

85  This

176  The Irish Yearbook of International Law 2018 ‘would have to be amended before long […] that is to say probably before the end of those proceedings’.90 As a result, the Court held that the Irish courts are under an obligation to interpret national law in conformity with the Directive when deciding on the allocation of costs in judicial proceedings that were ongoing at the date on which the time limit for transposing the ‘not prohibitively expensive’ rule expired. Furthermore, this applies irrespective of the date on which those costs were incurred during the proceedings.91 The final question concerned whether, the Supreme Court in reviewing Mr Klohn’s challenge to the amount of costs, having regard to the force of res judicata attached to the High Court’s decision to award costs against the applicant, are entitled to interpret national law so that he does not bear prohibitively expensive costs. On this question, the Court showed restraint of a kind. It stated that it was for the national courts to assess the force of res judicata attached to the High Court decision awarding costs against the applicant. It then went on to ‘give guidance’ in interpreting national law in conformity with the relevant EU law. It reminded the referring court that according to CJEU case law: ‘the force of res judicata extends only to the legal claims on which the court has ruled’.92 It does not, therefore, preclude the Taxing Master or the Supreme Court, in a later dispute, from ruling on points of law on which there is no ruling in that definitive decision. The Court also went on to state that it would ‘be contrary to the principle of legal certainty and the requirement for the foreseeability of EU law’ if the Board ‘would be entitled to claim all the costs reasonably incurred for its defence’.93 The logic is straightforward. Mr Klohn could not have known the amount awarded against him (which was three times the amount of the costs he incurred himself) until the Taxing Master’s decision ‘delivered more than a year after the decision awarding costs against him, and could not, therefore, challenge the first of those decisions with full knowledge of the facts’.94 III. CONCLUSION

In a year dominated by Brexit-related concerns, it is worth noting that Irish courts played an important role, via the Article 267 TFEU process, in some notable developments of EU law. Irish Courts were at the heart of a sensitive debate about the limits of judicial steps to sanction serious concerns over the rule of law in another Member State, albeit indirectly, by having the limited discretion to refuse to execute a EAW, a ‘cornerstone’ of judicial cooperation. The CJEU and the Irish High Court were in an unenviable position, with the latter having to determine if an alleged drug trafficker would receive a fair trial in Poland. The second EAW case referred by the Irish Courts was equally notable, but on this occasion for being the first Brexit-related decision handed down by the CJEU. Provided the UK does not repeal

90 

ibid para 52. ibid para 55. 92  ibid para 69. 93  ibid para 70. 94  ibid para 70. 91 

Correspondent Reports­—McCann 177 any of its current national laws implementing the ECHR and its obligations under international law on extradition proceedings, this case suggests that it should remain ‘business as usual’ post-Brexit in terms of basic judicial cooperation in this area. These were not the only Article 267 TFEU cases referred from Irish Courts in 2018 with potentially wider human/fundamental rights ramifications. The CJEU decision requiring the Workplace Relations Commission to disapply national law that conflicts with discriminatory EU law was welcomed by the Irish Human Rights and Equality Commission.95 This outcome, notwithstanding the short-term practical costs to equip quasi-judicial bodies, is a step intended to ensure better access to justice and remedies under EU law. Moreover, it is a decision that resolves a minor threat to the operation of primacy of EU law in the Irish legal order. The final group of cases discussed above, on the interpretation and requirements of the Habitats Directive and EIA Directive, also have wider policy implications. They overturn a number of previous Irish and, indeed UK, national decisions on the nature of appropriate assessments of proposed planning projects. They are a strong reminder of the importance EU law places on ensuring maximum environmental protection and increase the demands placed on national planning authorities. Notwithstanding these decisions, Irish–EU relations in 2018 will be remembered more widely for the challenging Brexit negotiations with the UK. The outcome of these negotiations has yet to be determined, and will undoubtedly have a profound impact on the cases that will come before the courts in Ireland and the CJEU in the coming years.

95  See www.lawsociety.ie/gazette/Top-Stories/ihrec-welcomes-wrc-ruling-from-cjeu/ accessed 24 March 2019.

178

Human Rights in Northern Ireland 2018 DR ESTHER McGUINNESS*

T

HIS 2018 NORTHERN Ireland report for the Yearbook is the second published against the backdrop of the absence of devolved government in Northern Ireland. The outstanding issues are profound, including the need to reform the law on access to termination of pregnancy, deal effectively with the past including outstanding investigations and legacy inquests, ongoing inequalities in relation to same sex marriage, child sexual exploitation, and the continued absence of a strategy to reduce poverty, despite this being declared unlawful in the High Court three years ago.1 The other subject dominating public life is the referendum decision to leave the European Union and its implications for Northern Ireland. The consequences for the protection of human rights and equality are substantial. The United Kingdom Government is committed to leaving the Charter of Fundamental Rights of the European Union, which incorporates and supplements the protections contained in the European Convention on Human Rights when dealing with European Union Law. The Charter with its ‘Convention plus’ approach is the nearest thing we have to what was envisaged in the Belfast (Good Friday) Agreement for a Bill of Rights for Northern Ireland. There is a strong argument to either retain the Charter within Northern Ireland, or to incorporate its essence as a Bill of Rights. For the past two years, Northern Ireland and its border with Ireland have been at the centre of political debate and negotiation in Europe. The Brexit negotiations have focused on our region. British and European politicians have wandered the border counties marvelling at the strange out-workings of partition and the now ‘invisible’ border. As the end-game approaches, politics in Britain and Northern Ireland are defined by the attitude towards the ‘Irish backstop’.2 It is not in Northern Ireland’s political, social or economic interests to become ‘a place apart’.3 Leaving the European Union will have implications, not only for protecting existing rights, but also for developing future rights. Many issues have progressed in the past because of the development of European Union law. While in

* 

Ulster University School of Law. The Committee on the Administration of Justice (CAJ) and Brian Gormally’s Application [2015] NIQB 59 https://judiciaryni.uk/sites/judiciary/files/decisions/Committee%20on%20the%20Administration%20of%20Justice%20%28CAJ%29%20and%20Brian%20Gormally%E2%80%99s%20Application.pdf. 2  CAJ Annual Report 2018 https://s3-eu-west-1.amazonaws.com/caj.org.uk/2018/12/10162146/ Annual-report-2018.pdf. 3  NIHRC Annual Human Rights Statement 2018 www.nihrc.org/uploads/publications/2018_Annual_ Human_Rights_Statement.pdf. 1 

180  The Irish Yearbook of International Law 2018 other parts of the United Kingdom socio-economic issues may continue to advance following withdrawal from the European Union, recent history suggests that such confidence in Northern Ireland would be misplaced.4 I.  BREXIT AND HUMAN RIGHTS IN NORTHERN IRELAND

On 28 February 2018, the European Commission published a draft Withdrawal Agreement between the European Union and the United Kingdom, translating into legal terms the December 2017 Joint Report. Subsequently, on 19 March 2018, the European Commission and the United Kingdom published an amended version of the draft Withdrawal Agreement.5 Before turning to that document, it is important to note a number of other key dates. On 19 March 2018, Prime Minister May reiterated in a letter to President Tusk her commitment to have a legally operative backstop solution in the Withdrawal Agreement to avoid a hard border between Ireland and Northern Ireland.6 The European Council in March agreed with the UK’s proposal to have a transition period, and adopted guidelines on the framework for the future relationship.7 On 19 June 2018, a Joint Statement was published, outlining further progress in the negotiations on the Withdrawal Agreement.8 On 14 ­November 2018, two documents were published on the UK’s withdrawal from the European Union: the Draft Withdrawal Agreement9 and a much shorter s­tatement on the Future

4 For an alternative and perhaps less pessimistic view, see Peter Osbourne the head of the North’s Community Relations Council ‘opportunity can come out of crisis’ (The Irish Times, Friday 29 ­December 2017) www.irishtimes.com/news/ireland/irish-news/2018-could-be-seminal-year-for-northern-­ireland1.3340043. 5 https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf. 6  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/691625/PM_Pres_Tusk_19.03.2018_001.pdf. 7  See www.consilium.europa.eu/media/33458/23-euco-art50-guidelines.pdf. 8 See https://ec.europa.eu/commission/publications/joint-statement-negotiators-european-union-andunited-kingdom-government-progress-negotiations-under-article-50-teu-united-kingdoms-orderly-withdrawal-european-union_en. 9  Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators’ level on 14 November 2018. TF50 (2018) 55—Commission to EU27 https://ec.europa.eu/commission/sites/ beta-political/files/draft_withdrawal_agreement_0.pdf. The Withdrawal Agreement establishes the terms of the UK’s withdrawal from the EU. It ensures that the withdrawal will happen in an orderly manner once an exit date has been agreed. It offers legal certainty once the Treaties and EU law will cease to apply to the UK. The Withdrawal Agreement covers the following areas:

—— Common provisions, setting out standard clauses for the proper understanding and operation of the Withdrawal Agreement. —— Citizens’ rights, protecting the life choices of over 3 million EU citizens in the UK, and over 1 million UK nationals in EU countries, safeguarding their right to stay and ensuring that they can continue to contribute to their communities. —— Separation issues, ensuring a smooth winding-down of current arrangements and providing for an orderly withdrawal (for example, to allow for goods placed on the market before the end of the transition to continue to their destination, for the protection of existing intellectual property rights including geographical indications, the winding down of ongoing police and judicial cooperation in criminal matters and other administrative and judicial procedures, the use of data and information exchanged before the end of the transition period, issues related to Euratom, and other matters).

Correspondent Reports—McGuinness 181 ­Relationship.10 The former, if agreed by the UK, the European Parliament and the European Council will be legally binding, whereas the Future Relationship document is a statement of agreed political intentions. The Withdrawal Agreement is a detailed 585 page document, while the Future Relationship statement is a seven page list of bullet-points. It includes a specific article on the ‘rights of individuals’. One of the most important things in terms of rights protection is that the Future Relationship document indicates the UK reaffirms its commitment to the European Convention on Human Rights and its system of enforcement. This is welcome and important. The ECHR is not a part of EU law and in theory Brexit had no implications for adherence to it. However, the Conservative Party had been equivocal at best about the ECHR in its 2017 manifesto11 saying only that the UK would remain a signatory for the duration of the Parliament elected in 2017. The Future Relationship document recognises that the relationship must be based on ‘shared values including the respect for human rights and fundamental freedoms’. The Withdrawal Agreement contains numerous protocols, including a Protocol on Ireland/Northern Ireland (‘the Protocol’). This is the ‘backstop’ translated into legal text; the divorce deal that would guarantee an invisible border in the event of no other solution to achieve this being found in a Brexit deal, either in a specific solution for Northern Ireland or in a broader EU-UK trade deal.12

—— A transition period, during which the EU will treat the UK as if it were a Member State, with the exception of participation in the EU institutions and governance structures. The transition period will help in particular administrations, businesses and citizens to adapt to the withdrawal of the United Kingdom. —— The financial settlement, ensuring that the UK and the EU will honour all financial obligations undertaken while the UK was a member of the Union. —— The overall governance structure of the Withdrawal Agreement, ensuring the effective management, implementation and enforcement of the agreement, including appropriate dispute settlement mechanisms. —— The terms of a legally operational backstop to ensure that there will be no hard border between Ireland and Northern Ireland. The protocol on Ireland/Northern Ireland also contains UK commitments not to diminish rights set out in the Good Friday (Belfast) Agreement 1998, and to protect North-South cooperation. It provides for the possibility to continue the Common Travel Area arrangements between Ireland and the UK, and preserves the Single Electricity Market on the island of Ireland. —— A protocol on the Sovereign Base Areas (SBA) in Cyprus, protecting the interests of Cypriots who live and work in the Sovereign Base Areas following the UK’s withdrawal from the Union. —— A Protocol on Gibraltar, which provides for close cooperation between Spain and the UK in respect of Gibraltar on the implementation of citizens’ rights provisions of the Withdrawal Agreement, and concerns administrative cooperation between competent authorities in a number of policy areas 10  Outline of the Political Declaration Setting out the Framework for the Future Relationship between the European Union and the United Kingdom https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/756378/14_November_Outline_Political_Declaration_on_ the_Future_Relationship.pdf. 11  Forward Together; Our Plan for a Stronger Britain and a Prosperous Future. The Conservative and Unionist Party Manifesto 2017 https://s3.eu-west-2.amazonaws.com/conservative-party-manifestos/ Forward+Together+-+Our+Plan+for+a+Stronger+Britain+and+a+More+Prosperous….pdf.ESTO 2017. 12  S Carswell ‘Brexit explained: Why does the Border matter and what is the backstop? The Border is a sticking point in Brexit negotiations, but why?’ (The Irish Times, 12 October 2018) www.irishtimes. com/news/politics/brexit-explained-why-does-the-border-matter-and-what-is-the-backstop-1.3661518.

182  The Irish Yearbook of International Law 2018 During 2019, in particular, there were numerous debates in the UK Parliament on how Brexit might be delayed and how the ‘Backstop’ could be reconfigured. These debates focused on series of amendments named after the MPs who proposed them,13 and were accompanied by a number of Parliamentary votes.14 They will be considered in the 2019 Report. II.  THE RENEWABLE HEATING INQUIRY (RHI)

The judicial Inquiry into the non-domestic renewable heat incentive (RHI) scheme which was introduced in November 2012 to support the then Executive’s Programme for Government commitment to renewable energy, concluded in December 2018.15 The Renewable Heating Scheme landed Stormont with an overspend bill once projected at almost £500million and was cited by former deputy First Minister Martin McGuinness as one of his reasons for resigning in January 2017. The Inquiry heard a number of allegations directed against senior civil servants, DUP ministers, including leader Arlene Foster, and special advisers. During its 114 days of oral evidence, former First Minister Arlene Foster acknowledged that she was ‘accountable but not responsible’ in respect of some aspects of the failed scheme;16 it was revealed that there was a severe lack of written records of ministerial meetings,17 and it was alleged that DUP Ministers had worked with their special advisers to leak emails to the media showing that departmental officials were to blame for the spike in applications to the RHI scheme in order to divert media attention away from special advisers to civil servants.18 Public sessions ended on 14 December 2018 and the panel have retired to prepare their final report. No date has been fixed for publication. III.  DEALING WITH THE PAST

On 23 December 2014, the Stormont House Agreement was reached.19 The ­Agreement sets out a structure for the effective investigation of conflict related deaths.

13  From Malthouse, to Cooper, to Benn among others. See P Walker, ‘What are the amendments to the article 50 extension vote and how did MPs vote?’ (The Guardian, 14 March 2019) www.theguardian. com/politics/2019/mar/14/mps-amendments-for-the-brexit-article-50-extension-vote. 14  These Parliamentary votes were conceived to allow Parliament to vote on the content Withdrawal Agreement, hence the numerous amendments by various MPs who sought to limit the ‘Backstop’, and/or include other proposals that would impact on the type of Brexit deal which would follow. 15  See Official Report (Hansard) (Tuesday 24 January 2017) 123(4) 58 www.rhiinquiry.org/sites/rhiinquiry.org/files/media-files/24-01-17-ministerial-statement-in-ni-assembly.pdf. 16  See RHI Inquiry, Witness Statements, 11 April 2018, Arlene Foster Witness Statement No 1 (PDF 561 KB) at www.rhiinquiry.org/witness-statements. 17  Stormont’s chief civil servant David Sterling revealed some meetings were deliberately not minuted to avoid disclosures through Freedom of Information legislation—a startling claim that has prompted its own investigation by the Information Commissioner’s Office, www.rhiinquiry.org/witness-statements. 18  See RHI Inquiry, Witness Statements, 22 October 2018, Simon Hamilton Witness Statement No 1 (PDF 540 KB) at www.rhiinquiry.org/witness-statements; ‘RHI: Significant criticism of individuals and groups likely’ (BBC News, 14 December 2018) www.bbc.co.uk/news/uk-northern-ireland-46564566. 19  NI Office, ‘Stormont House Agreement’, 23 December 2014.

Correspondent Reports—McGuinness 183 Four bodies and one specific service to deal with ‘The Past’ are to be established. These are: —— The Oral History Archive, which will provide a central place for peoples from all backgrounds (and from throughout the UK and Ireland) to share experiences and narratives related to the Troubles.20 —— Victims and Survivors’ Services, which will include a Mental Trauma Service, a proposal for a pension for severely physically injured victims, and advocatecounsellor assistance.21 —— The Historical Inquiries Unit, which will take forward investigations into outstanding Troubles-related deaths.22 —— The Independent Commission on Information Retrieval, which will enable victims and survivors to seek and privately receive information about the (Troubles-related) deaths of their next of kin.23 —— The Implementation and Reconciliation Group, which will oversee themes, archives and information recovery and commission an academic report after five years analysing themes.24 The UK Government has stated that specific measures of the financial package to NI will include up to £150m over five years to help fund the bodies to deal with the past.25 In May 2018, the NI Office launched a consultation entitled Addressing the Legacy of NI’s Past, seeking views on draft legislation to establish the various legacy bodies proposed within the Stormont House Agreement. However, the provisions contained within the draft Bill are not fully human rights compliant in law and practice. The narrative on the remit, resourcing, independence and use of closed material proceedings regarding the Historical Investigations Unit is vague and further consideration needs to be given to the remits and operations of the Independent Commission of Information Retrieval and the Oral History Archive and Implementation and Reconciliation Group. Proposals in the draft Bill to extend the accelerated release scheme to those serving sentences for related offences committed on or after 1 January 1968 and before 8 August 1973 and confirmation that the accelerated release scheme extends to the security forces have been broadly welcomed by the Northern Ireland Human Rights Commission (NIHRC).26 However, the NIHRC highlighted a number of omissions from the draft Bill including a mechanism to expediently investigate other serious conflict related human rights abuses and violations in instances where the victims have not been

20 

ibid para 22. ibid paras 26–29. 22  ibid para 30. 23  ibid para 41. 24  ibid para 51. 25  NI Office, ‘Stormont House Agreement, Financial Annex’ (23 December 2014) 1. The Stormont House Agreement includes a further broad financial commitment to all sections covered within the ­Agreement. It is stated within the Financial Annex that: ‘the total value of the Government’s package is additional spending power of almost £2 billion’. 26  See NI Human Rights Commission, ‘Submission to NIO’s Consultation on Addressing the Legacy of NI’s Past’ (NIHRC, 2018). 21 

184  The Irish Yearbook of International Law 2018 killed, introduction of a pension for severely physically injured victims in NI, and introduction of advocate-counsellor assistance.27 IV.  STATUTE OF LIMITATIONS

In April 2017, the Defence Select Committee issued a report on investigation into fatalities in NI involving British military personnel, in the Report the Committee recommended: the enactment of a statute of limitations, covering all Troubles-related incidents, up to the signing of the 1998 Belfast Agreement, which involved former members of the Armed Forces.28

If enacted, such a statute would amount to an amnesty and if such an amnesty were to be held to excuse acts constituting gross human rights violations and abuses (including the right to life and the prohibition on torture or other cruel, inhuman or degrading treatment or punishment) this would be incompatible with human rights law.29 In June 2018, the Prime Minister, in response to a parliamentary question on investigations into conflict related deaths commented: the [UK] Government is committed to ensuring that all outstanding deaths in NI should be investigated in ways that are fair, balanced and proportionate.30

In July 2018, Gavin Williamson MP, Secretary of State for Defence announced that a dedicated team within the Ministry of Defence had been established to consider whether serving and former personnel are receiving adequate legal protection and certainty.31 V.  INQUIRIES ACT 2005

In 2015, the UN Human Rights Committee recommended that the UK ‘reconsider its position on the broad mandate of the executive to suppress the publication of Inquiry reports under the Inquiries Act 2005’.32 In May 2018, the National Audit Office issued a report of its investigation into government-funded inquiries finding, inter alia, that: the Cabinet Office and the Ministry of Justice have not acted on recommendations to improve the way inquiries are run. Since 2014, the Cabinet Office and the Ministry of ­Justice have committed to various actions to improve the efficiency and effectiveness of inquiries 27 ibid.

28  House of Commons Defence Select Committee, ‘Investigations into Fatalities in NI involving British Military Personnel—Seventh Report of Session 2016–17’ (HC 1064) 26 April 2017. 29  See NI Human Rights Commission, ‘Advice on the House of Common’s Defence Committee Report on Investigations in Fatalities in NI involving British Military Personnel’ (NIHRC, 2017) at para 34. 30  Hansard, ‘Terrorism: NI, Prime Minister Written Question’, 15 June 2018. 31  Hansard, ‘Armed Forces Veterans: Historic Allegations Oral Answers to Questions—Defence—in the House of Commons’, 9 July 2018. 32  CCPR/C/GBR/CO/7, ‘UN Human Rights Committee Concluding Observations on the Seventh Periodic Report of the UK of Great Britain and NI’, 17 August 2015, at para 8.

Correspondent Reports—McGuinness 185 originating from two parliamentary select committee reports. These include updating and publishing its inquiry guidance for Inquiry Chairs, secretaries and sponsor departments; reviewing the Inquiry Rules relating to the Representations Process which allows individuals criticised in inquiries to review and comment on extracts from the report; and requesting and sharing lessons learned reports from inquiries. None of these commitments have been fulfilled.33

The government have so far failed to comment. VI.  THE RIGHT TO LIFE

Security statistics released by the Police Service for Northern Ireland (PSNI) for October 2017 to September 2018 record one security related death, compared to three in the previous 12 months, and 20 casualties of paramilitary style shootings, compared to 24 in the previous 12 months. Following the six-month period between February and July 2018, which saw a notable decrease in this paramilitary style shootings, between August and September 2018 there was an increase with five such attacks having taken place. During the same period, there were 17 bombing incidents, 13 fewer from the previous 12-month period, and 54 casualties because of paramilitary style assaults, 21 less than the previous 12-month period. The number of paramilitary style assaults fell significantly in Belfast (from 31 to 18) and Mid and East Antrim (from 17 to 5) compared to the previous 12 months, while Antrim and Newtownabbey saw the largest increase (from 2 to 10).34 In June 2018, Police Service NI head of the Criminal Investigation Branch Detective Chief Superintendent Tim Mairs, when commenting on the reduction in paramilitary style attacks, said: while we welcome the reduction in paramilitary-style assaults in Belfast and in Mid and East Antrim … one assault is one too many for the victim. Let me be clear—there is no place for what are often faceless thugs who believe they have a legitimacy to mete out their so-called justice in our communities in an attempt to seek control through fear and violence.35

In July 2016, the NI Executive published an action plan on tackling paramilitary activity, criminality and organised crime, modelled on the four goals of; promoting lawfulness, support for transition, tackling criminality and addressing systemic issues.36 Implementation of the plan has been restricted due to the suspension of the NI Assembly. A dedicated Paramilitary Crime Task Force has been ­established between the Police Service NI, the National Crime Agency and Her Majesty’s Revenue and Customs to focus on the criminality of paramilitary groups.

33  National Audit Office, ‘Investigation into Government-funded Inquiries’, HC 836, 23 May 2018, at 10. 34  Police Service NI, ‘Police Recorded Security Situation Statistics Annual Report covering the period 1 October 2017–30 September 2018’ (PSNI, 2018). 35  ‘Decline in paramilitary beatings in Belfast is welcomed’ Belfast Telegraph (11 June 2018). 36  NI Executive, ‘Tackling Paramilitary Activity, Criminality and Organised Crime—Executive Action Plan’ (NI Executive, 2016).

186  The Irish Yearbook of International Law 2018 In the period 2017/18, the task force conducted 193 searches and made 47 arrests, of which 44 people were charged or reported to the Public Prosecution Service.37 VII.  RIGHT TO LIBERTY

In June 2018, the UK Government introduced the Counter-Terrorism and Border Security Bill 2017–19 to the House of Commons. The Bill, inter alia, strengthens the legal framework addressing those who show support for proscribed organisations and makes provision to enable persons at ports and borders to be questioned for national security and other related purposes.38 Areas of concern include extended powers to stop, question, search and detain people at ports and borders to determine whether they appear to be (or have been) engaged in ‘hostile activity’. UK laws do not clearly define ‘hostile activity’, raising concerns that the power may be used arbitrarily. In October 2018, the Joint Committee on Human Rights published its second scrutiny report on the Counter-Terrorism and Border Security Bill 2017–19. The Committee remains concerned the Bill, by taking the criminal law further into private spaces, is legislating ‘close to the line on rights compliance’.39 The Joint Committee remains particularly concerned by the introduction of the new clause establishing a designated area offence, which was introduced at the Report Stage in the House of Commons. In light of the limited opportunity for scrutiny in the House of Commons, the Joint Committee urged the House of Lords to give particular consideration to the necessity and proportionality of the new clause.40 By the end of 2018, the Bill was still progressing through Parliament. In 2013, the UN CEDAW Committee recommended that the UK Government and the NI Executive continue to develop alternative sentencing and custodial strategies for women convicted of minor offences.41 In 2013, the UN CAT Committee called for effective diversion from the criminal justice system for non-violent women offenders convicted of minor offences.42 However, the imprisonment of persons for fine default has historically contributed significantly to the prison population in NI. Fine default receptions decreased from 653 during 2016/17 to 611 during 2017/18 (decrease of 6.4 per cent).43 The NIHRC has continually raised this issue with UN treaty bodies.44 The Justice Act (NI) 2016 (Part 1), which provides for a ­statutory 37 

Department of Justice, ‘Tackling Paramilitary Programme Newsletter: Issue 1’ (21 June 2018) 8. Counter-Terrorism and Border Security Bill 2017–19. 39  UK Joint Committee on Human Rights, ‘10 clauses Government Must Change in Counter-Terrorism and Border Security Bill’ (12 October 2018). 40 ibid. 41 CEDAW/C/GBR/CO/7, ‘UN Committee on the Elimination of Discrimination Against Women, Concluding Observations on the Seventh Periodic report of the UK of Great Britain and NI’ (30 July 2013) para 55(b). 42  CAT/C/GBR/CO/5, ‘UN Committee against Torture, Concluding observations on the Fifth Periodic Report of the UK of Great Britain and NI’ (6 May 2013) para 33. 43  NI Prison Service, ‘The NI Prison Population 2017/18’ (NIPS, 2018), at 10 and Table 7. 44  NI Human Rights Commission, ‘Response to Department of Justice Consultation on Fine Default in NI’ (NIHRC, 2011); NI Human Rights Commission, ‘Submissions to the UN CEDAW Committee: Parallel Report on the 7th Periodic Report of the UK of Great Britain and NI under the Convention on the Elimination of all Forms of Discrimination against Women’ (NIHRC, 2013) at paras 32–34; 38 

Correspondent Reports—McGuinness 187 framework for the collection and enforcement of fines, was commenced on 1 June 2018.45 The new framework builds on earlier work undertaken by the Department of Justice to strengthen the fine enforcement system.46 A.  Imprisonment of Children with Adults The UN CRC, Article 37(c), requires that: every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.47

In June 2016, the UN CRC Committee recommended that the UK Government and NI Executive ‘ensure that child detainees are separated from adults in all detention settings’.48 The Criminal Justice (Children) (NI) Order 1998 makes provision for a 15–17 year old offender, considered likely to injure him or herself or others to be detained in the young offenders centre at Hydebank Wood, which accommodates offenders up to 21 years of age. An administrative scheme has operated effectively to prevent the imprisonment of children at Hydebank Wood. However, the imprisonment of children alongside adults remains legally permissible. In June 2018, the Criminal Justice Inspection NI published a report into an announced inspection into Woodlands Juvenile Justice Centre, which found that the regime at the Juvenile. Justice Centre had been redesigned to include 17-year-olds and that they were being successfully managed by the Centre.49 The Department has previously committed to abolish provisions of the 1998 Order allowing for the imprisonment of children alongside adults. Officials have confirmed that reforms to the 1998 Order will be implemented by way of a proposed Department of Justice Children’s Bill, which is planned for introduction to the NI Assembly in 2020.50 During the period 2017/18, 7 per cent of the movements within the Juvenile ­Justice Centre related to children and young people under sentence, a decrease of 1 per cent from the previous year. The remaining 93 per cent were movements within the Juvenile Justice Centre related to children and young people under the Police NI Human Rights Commission, ‘Shadow Report on the Sixth Periodic Report of the UK of Great ­Britain and NI’ (NIHRC, 2008) at paras 16–19; NI Human Rights Commission, ‘Submission to the UN ­Committee Against Torture, Parallel Report on the 5th Periodic Report of the UK under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (NIHRC, 2013), at paras 5.3–5.5; NI Human Rights Commission, ‘Annual Statement 2012’ (NIHRC, 2012), at 19–20; NI Human Rights Commission, ‘Annual Statement 2013’ (NIHRC, 2013), at 20; NI Human Rights Commission, ‘Submission to the UN CEDAW Committee: Parallel Report to the Eighth Periodic Report Submitted by the UK of Great Britain and NI’ (NIHRC, 2018). 45 

Justice (2016 Act) (Commencement No 2) Order (NI) 2018. of Justice, ‘Press Release: Ford highlights reforms to fine enforcement system’, 2 February 2012. 47  Convention on Rights of the Child 1989, Article 37(c). 48  CRC/C/GBR/CO/5, ‘UN Committee on the Rights of the Child Concluding Observations on the Fifth Periodic Report of the UK of Great Britain and NI’ (12 July 2016). 49  Criminal Justice Inspection NI, ‘An Announced inspection of Woodlands Juvenile Justice Centre’ (CJINI, 2018) at 6. 50  Declan McGeown, ‘Scoping Study Stakeholder Update’ (DoJ, 2017). 46  Department

188  The Irish Yearbook of International Law 2018 and Criminal Evidence Act 1984 or on remand, an increase of 1 per cent from the previous year.51 In June 2018, the Criminal Justice Inspection NI issued a report on an announced inspection of Woodlands Juvenile Justice Centre, speaking at the launch of the report the Criminal Justice Inspector Brendan McGuigan stated: In 2015, we called for the Youth Justice Agency to work with its statutory partners to reduce the number of children being inappropriately committed to custody in this manner. Yet this inspection found the Juvenile Justice Centre was still being used in this way. This situation must be addressed, particularly as 50 per cent of children admitted to custody under Police and Criminal Evidence Act proceedings were released within 24 hours.52

In its report, the Criminal Justice Inspection NI elaborated on plans for the development of a closely aligned health and justice facility to provide support to children with psychiatric, substance misuse and behavioural problems, encompassing step-up and step-down intensive units. The Criminal Justice Inspection stated: The intention is to ‘repurpose’ the [Juvenile Justice Centre] into a multi-use facility for all children who require secure placements, supporting them in a welfare, rather than justice, setting. It is envisaged that issues such as the overuse of custody for Police and Criminal Evidence Act placements, and debates about whether health or criminal justice providers should be responsible for the welfare needs of child offenders, could be resolved to a large extent through addressing the locus and purpose of the [Juvenile Justice Centre].53

A number of recent legal cases have highlighted the difficulties in this area, with the High Court considering the duties owed by Health and Social Care Trusts to provide accommodation to children when either looked after or children in need under the Children (NI) Order 1995, where the child is on remand at the Juvenile Justice Centre.54 In OC’s Application, Mrs Justice Keegan confirmed that the duty to ­provide accommodation for looked after children is absolute, that suitable accommodation must be provided in a reasonable time and that there is an obvious urgency due to the deprivation of the child’s liberty.55 Whilst not declaring an absolute prohibition on hotel/bed and breakfast accommodation in circumstances where a child is held on remand, Justice Keegan ruled that its use should be ‘rare, restricted and heavily monitored’.56 B.  Women in Prison In June 2018, there were 43 sentenced adult female, 26 un-sentenced adult female, one young offender woman sentenced and three young offender female un-­sentenced 51 Department of Justice, ‘Youth Justice Agency Annual Workload Statistics 2017/18’ (DoJ, 2018) at 23. 52  Criminal Justice Inspection NI, ‘Press Release, Care standards at Juvenile Justice Centre praised but challenges remain’ (20 June 2018). 53  Criminal Justice Inspection NI, ‘An Announced Inspection of Woodlands Juvenile Justice Centre’ (CJNI, 2018) at 19. 54  OC’s (A Minor) Application and LH’s (A Minor) Application In the matter of a decision by a Health and Social Care Trust [2018] NIQB 34. 55  ibid para 50. 56  ibid para. 49.

Correspondent Reports—McGuinness 189 prisoners in NI. The average sentence length for adult females was 4.7 years and three months for young females. The average time on remand was 60.92 days for adult females and 13 days for young female. An assessment of the 2017/2018 prison population shows that the overall female population and sentence lengths have remained at much the same level. There has been a 37 per cent increase in ­un-sentenced adult females and 33 per cent reduction in the average time on remand for adult females.57 It has previously been noted that the absence of a discrete prison facility for women and of gender appropriate services in NI undermines the reformative and rehabilitative aims which imprisonment should strive towards.58 The UN CAT Committee and the National Preventative Mechanism, designated under the Optional ­Protocol to the UN CAT, have also recommended that women should no longer be held at Hydebank Wood and that a separate custodial facility should be e­ stablished.59 In September 2017, the Department of Justice stated it remained committed to the development of a separate facility dedicated to women to provide fit for purpose accommodation that will aid their rehabilitation and enhance public p ­ rotection.60 However, capital funding for a separate facility dedicated to women is not yet secured. In July 2018, the NI Prison Service published Prisons 2020 a strategic plan for continuous improvement within the prison service, including through the development of infrastructure.61 VIII.  FREEDOM FROM TORTURE, INHUMAN AND DEGRADING TREATMENT

On 8 July 2016, the Historical Institutional Abuse Inquiry concluded the programme of hearings, which began in January 2014. The Inquiry report made broad ranging recommendations, including for the erection of a memorial, the establishment of a Commission for Survivors of Institutional Abuse and that a compensation scheme should be established. In addition, the Inquiry recommended the establishment of a publicly funded compensation scheme, to be administered by a Redress Board to make determinations relating to compensation for persons who have suffered abuse in the form of sexual, physical or emotional abuse, or neglect or unacceptable practices, between 1922 and 1995; and were resident in a residential institution in NI.

57  NI Prison Service, ‘Analysis of NIPS Prison Population from 01/04/2017 to 30/06/2018, ­Department of Justice’ (NIPS, 2018). 58 See, NI Human Rights Commission, ‘Submission of the NI Human Rights Commission to the Department of Justice and Department of Health Consultation on Improving Health within Criminal Justice’ (NIHRC, 2016) at para 7.4. 59 National Preventative Mechanism, ‘Report on announced inspection of Ash House, Hydebank Wood Women’s Prison 18–22 February’ (NMP, 2013). Twenty statutory bodies make up the UK National Preventive Mechanism. Of specific relevance are the Criminal Justice Inspector NI, the Independent ­Monitoring Board (NI), the Regulation and Quality Improvement Authority and the NI Policing Board Independent Custody Visiting Scheme are included in the list of bodies. 60  Permanent Secretary of Department of Justice, ‘COR-1076-2017: Letter from Department of Justice to NI Human Rights Commission’ (22 September 2017). 61  NI Prison Service, ‘Prisons 2020: The Way Forward’ (NIPS, 2018).

190  The Irish Yearbook of International Law 2018 When officially closing the inquiry on 30 June 2017, Sir Anthony Hart, the Chairman of the Historical Institutional Abuse Inquiry, encouraged the Secretary of State NI: because of the wide welcome for, and support of the Report, expressed in the previous Assembly on 23 January, and the clear undertaking by the Prime Minster to the House of Commons on 8 February that the findings of the report will be ‘taken into account and acted upon’ I feel justified in urging you to put in hand the necessary steps to implement the recommendations of the Inquiry in full as a matter of urgency and without delay.62

The non-implementation of recommendations set out in the report of the Historical Institutional Abuse Enquiry (the ‘HIA Report’) was challenged in 2018 and is likely to be the first of several challenges.63 In March 2018, the European Court of Human Rights (ECtHR) rejected the Irish government’s request to revisit the Ireland v United Kingdom64 judgment in respect of the so-called ‘Hooded Men’, seeking to establish that their maltreatment was, in fact, torture.65 Dismissing the request by 6 votes to 1, the ECtHR said that the original judgment, which found that the treatment of the men was inhumane and degrading but not torture, should still stand. The so-called ‘Hooded Men’ were 14 Catholics detained indefinitely without trial in 1971. The men were hooded and flown by helicopter to a secret location where they suffered sleep deprivation, deprivation of food and water and physical assaults. The legal team acting for the men made clear their intention to appeal this decision: ‘Our clients have instructed us to take steps to support a referral of this case to the Grand Chamber of the European Union. It is hoped that this injustice can be corrected in that forum, for the sake of the integrity of the Court and survivors of torture all over the world.’66

A.  Domestic and Sexual Violence The UN ICESCR Committee highlighted, in its 2016 concluding observations on the UK, that the significant rise in homelessness in NI affected victims of domestic violence amongst other vulnerable groups. The UN ICESCR Committee urged the UK Government and NI Executive: To take immediate measures, including allocating appropriate funds to local authorities … to ensure adequate provision of reception facilities, including emergency shelters, hostels and reception, as well as social rehabilitation centres67 62  Historical Institutional Abuse Inquiry, ‘Press Release: HIA Inquiry comes to an end and the Chairman urges the Secretary of State to implement the recommendations of its Report’ (30 June 2017). 63  JR80’s Application [2018] NIQB 32. 64  (1979–80) 2 EHRR 25. 65  Case of Ireland v The United Kingdom ECtHR 5310/71; In the case of Ireland v the United K ­ ingdom (request for revision of the judgment of 18 January 1978), Final Judgement delivered 20 September 2018, https://hudoc.echr.coe.int/eng#{‘fulltext”:[‘Ireland v UK 2018”],“sort”:[“kpdate Descending”],“docume ntcollectionid2”:[“JUDGMENTS”], “itemid”:[“001-181585”]}. 66 See ‘UK/IRELAND: Hooded men torture ruling is “very disappointing”’ (Amnesty International Press Release, 20 March 2018) www.amnesty.org/en/latest/news/2018/03/uk-ireland-hooded-men-tortureruling-is-very-disappointing/. 67  E/C.12/GBR/CO/6, ‘UN Committee on Economic, Social and Cultural Rights, Concluding Observations on the Sixth Periodic Report of the UK of Great Britain and NI’ 14 July 2016, at paras 51 and 52.

Correspondent Reports—McGuinness 191 Statistics collated by the Police Service NI record that domestic violence has increased significantly since 2004/05 when the data series began. There were 30,595 domestic abuse incidents recorded between 1 July 2017 and 30 June 2018. This was a 4.8 per cent increase over the previous year. There were 15,049 domestic abuse crimes recorded between 1 July 2017 and 30 June 2018. This is an 8.6 per cent increase on the crimes recorded the previous year.68 These statistics are the highest they have been over a 12-month period since such statistics were first collated. The Department of Justice has highlighted that this equates to over 80 domestic violence and abuse incidents every day in NI and that approximately five people are killed each year in NI by a partner, ex-partner, or close family ­member. The Department stressed that domestic violence and abuse in NI remains significantly under-reported.69 The Stopping Domestic and Sexual Violence and Abuse in NI Strategy was published in March 2016, with a commitment to publish an annual action plan.70 In August 2018, the Departments of Health and Justice jointly published the third action plan under the strategy, which covers 2018–19.71 In early 2016, the Department of Justice consulted on whether there should be a specific offence that captured patterns of coercive and controlling behaviour.72 Following this consultation the Department of Justice began preparing a Domestic Abuse Bill, which it continues to develop.73 This Bill aims to provide for a new domestic abuse offence capturing patterns of psychological abuse, violence, and/or coercion of a partner, ex-partner or close family member. It also includes a statutory aggravation of domestic abuse, which may attract enhanced sentencing for other offences. The enactment of this Bill is subject to the legislative process, which is delayed due to the suspension of the NI Assembly. B.  Access to Justice for Victims of Domestic and Sexual Violence The UN CEDAW Committee, in its 2013 concluding observations, urged the UK Government and NI Executive ‘To ensure effective access by women, in particular women victims of violence, to courts and tribunals’.74

68  Police Service NI, ‘Domestic Abuse Incidents and Crimes Recorded by the Police in NI: Update to 30 June 2018’ (PSNI, 2018). 69  Department of Justice, ‘Press Release: Over 80 domestic violence and abuse incidents every day in NI—working together we can help stop it’ (4 July 2018). 70 Department of Health, Social Services and Public Safety and Department of Justice, ‘Stopping Domestic and Sexual Violence and Abuse in NI: A Seven Year Strategy’ (DHSSPS and DoJ, 2016). 71 Department of Health and Department of Justice, ‘Stopping Domestic and Sexual Violence and Abuse Strategy: Draft Year 3 Action Plan’ (DoH and DoJ, 2018). 72  Department of Justice, ‘Domestic Abuse Offence and Domestic Violence Disclosure Scheme’ (DoJ, 2016). 73  Permanent Secretary of Department of Justice, ‘COR-1076-2017: Letter from Department of Justice to NI Human Rights Commission (22 September 2017). 74 CEDAW/C/GBR/CO/7, ‘UN Committee on the Elimination of Discrimination Against Women, Concluding Observations on the Seventh Periodic report of the UK of Great Britain and NI’ (30 July 2013) para 23(a).

192  The Irish Yearbook of International Law 2018 A Magistrates’ Court pilot scheme was launched in Derry/Londonderry in ­ ovember 2011. This provided for special listing arrangements for domestic vioN lence cases, whereby domestic violence cases were clustered and heard by one judge on specifically designated days. This enabled the relevant agencies, including the support services, to concentrate their efforts and resources into those days in order to provide moral and practical support to victims. For example, under this arrangement, court staff provide victims with separate entrances and waiting areas, the Public Prosecution Service provides a specially trained prosecutor and Women’s Aid or Victim Support NI liaise to mentor and support women. In September 2016, the then Minister for Justice indicated that the arrangements for the pilot scheme ‘Should be enhanced, before further consideration is given to rolling out the model across other areas of NI’.75 In spite of this, there are currently no plans to expand this scheme across NI. The 2018–19 Domestic and Sexual Violence and Abuse Action Plan sets out as a key action the commencement of a Crown Court Observers’ study to gather information on victims’ and witnesses’ experience of the court in sexual offence cases. In June 2018, the Voyeurism (Offences) (No 2) Bill 2017–19 was introduced to the House of Commons. The Bill, which applies to England and Wales only, seeks to amend the Sexual Offences Act 2003 to include certain acts of voyeurism, including up-skirting.76 Following similar incidents in NI in 2018, the Department of Justice commented that it plans to commence a consultation that will consider potential amendments to sexual offences legislation in NI, including introducing the crime of up-skirting.77 C.  Protection from Domestic Violence In March 2018, the Department of Justice established a Domestic Violence Disclosure Scheme in NI.78 This scheme allows a victim or a third party known to a potential victim who may have concerns, to apply to the police for information on a partner. The Scheme aims to help ensure the safety of victims, allowing them to make an informed choice about whether they would wish to continue in their relationship. The Department of Justice also launched a pilot Domestic Violence Perpetrators’ Programme in Derry/Londonderry during March 2018.79 This pilot is expected to run for nine months, involving a maximum of 30 perpetrators. It adopts a problemsolving justice approach, aimed at changing behaviours of convicted offenders. The pilot is to be subject to monthly judicial monitoring. The Department is also developing a local Domestic Homicide Review Model, where a person has died as a result of domestic violence. The Model will seek out and 75  AQO 268/16/21, ‘Question from Mr McAleer to Minister of Justice on Domestic Violence: Court Listings’ (20 September 2016). 76 Parliament Business, ‘Voyeurism (Offences) (No 2) Bill 2017–19’ https://services.parliament.uk/ bills/2017-19/voyeurismoffencesno2.html. 77  See www.bbc.co.uk/news/uk-northern-ireland-47388359. 78  Department of Justice, ‘Domestic Violence and Abuse Disclosure Scheme NI Guidance’ (DoJ, 2018). 79  ‘NI pilot scheme launched to change behaviour of domestic violence offenders and help victims’ Belfast Telegraph (22 March 2018).

Correspondent Reports—McGuinness 193 share opportunities for learning, identify what worked well and inform the development of practice to improve services. This is with a view to preventing domestic violence and abuse and domestic homicide happening in the future. In a further move to improve protection for victims of domestic violence, the Department has committed to implementing this mechanism in the 2018–19 Domestic and Sexual Violence and Abuse Action Plan. The Plan sets out that consideration should be given to how relationships and sexuality education curriculum resources can support teachers in addressing domestic and sexual violence and abuse.80 D.  Prison Review and Conditions The NI Prisoner Ombudsman received 1,953 complaints from prisoners between April 2017–March 2018, which marked a 55 per cent decrease from the previous year. 167 of complaints received were submitted by integrated prisoners, with 1,786 complaints received from separated prisoners on Roe 3 and 4 landings at Maghaberry Prison.81 The NI Prisoner Ombudsman made 134 recommendations for improvement in response to prisoners’ complaints. As of September 2018, 76 per cent of these recommendations had been accepted by the NI Prison Service, with 9 per cent having been rejected, and 15 per cent awaiting a decision.82 Between January 2007 and September 2018, 50 prisoners have died in NI’s prisons. The Prison Ombudsman has confirmed that 27 of these deaths were self-inflicted, 21 were deaths by natural causes and two cannot easily be classified.83 During the period April 2017 to March 2018, the NI Prisoner Ombudsman commenced investigations into three deaths in custody. One involved a prisoner at Magilligan Prison and two involved prisoners at Maghaberry Prison. The deaths occurred in May, August and September 2017. Two of the deaths appeared to be self-inflicted, whilst the third person appeared to die from natural causes. The NI Prisoner Ombudsman made nine recommendations for improvement in the two death in custody reports that were published; these included two recommendations for the NI Prison Service and seven recommendations for the South Eastern Health and Social Care Trust.84 All recommendations were accepted, with implementation pending. Since November 2014, 195 recommendations have been made in 13 death in custody reports by the Prison Ombudsman. Of these 173 were accepted by the NI Prison Service and South Eastern Health and Social Care Trust, including 42 recommendations that had been previously made and accepted.85 Commenting on this, the Chief Inspector of the

80 Department of Health and Department of Justice, ‘Stopping Domestic and Sexual Violence and Abuse Strategy: Draft Year 3 Action Plan’ (DoH and DoJ, 2018). 81  Prisoner Ombudsman NI, ‘Annual Report 2017–18’ (PONI, 2018), at 14. 82  ibid 15. 83  See, Claire Smyth, ‘Call for independent inquiry after 206 prisoner deaths in 12 years’ The Detail (27 September 2018). 84  Prisoner Ombudsman NI, ‘Annual Report 2017–18’ (PONI, 2018), at 21. 85 Claire Smyth, ‘Call for independent inquiry after 206 prisoner deaths in 12 years’ The Detail (27 September 2018).

194  The Irish Yearbook of International Law 2018 Criminal Justice Inspection NI who is overseeing the work of the Prisoner ­Ombudsman NI’s office until a successor is appointed, Mr Brendan McGuigan, stated: I acknowledge that the NI Prison Service and South Eastern Health and Social Care Trust have demonstrated their willingness to work to improve prisoner safety by accepting the recommendations made as a result of death in custody investigations. However, it is a matter of concern that recommendations which have been accepted have not been implemented and on many occasions, recommendations have been repeated. This is an issue which my predecessor Tom McGonigle raised with the then Ministers of Justice and Health in November 2014.86

Since the retirement of the previous Prison Ombudsman on 31 August 2017, the office of Prisoner Ombudsman has been vacant. The appointment of a successor is the responsibility of the Minister for Justice for NI, and is not possible due to the suspension of the NI Assembly. E.  Freedom from Slavery In 2016, the UNCRC Committee expressed concerns about the practice of children in NI being placed in secure accommodation and recommended that the NI Executive: Ensure that secure accommodation in NI is only used as a measure of last resort and for the shortest possible period of time, address the reasons for repeated or lengthy stays in such accommodation and develop alternatives to secure accommodation.87

According to a recent report from The Queen’s University, Belfast, there are ongoing issues with children going missing from care facilities.88 According to data provided by the Police Service NI, from April 2017 to March 2018, the police received 2,871 missing persons reports from children’s homes, relating to 197 children. During 2016/17, 21 children were reported missing more than 50 times and two were reported missing 95 or more times. The Police Service NI has expressed concerns regarding a ‘revolving door’ effect where a young person is returned to residential care, after which they subsequently abscond again. It has been noted that there is a ‘particular link’ between children going missing from care and child sexual exploitation.89 In 2018, the Department of Health and the Department of Education consulted in respect of the draft strategy for Looked After Children.90 Any outcomes from this consultation are subject to approval by the relevant Minister, which is hindered by the current suspension of the NI Executive. The Health and Social Care Board and the Police Service NI are currently carrying out work under a joint strategic action 86 ibid.

87  CRC/C/GBR/CO/5, ‘UN Committee on the Rights of the Child Concluding Observations on the Fifth Periodic Report of the UK of Great Britain and NI’ (12 July 2016). 88  Safeguarding Board for NI, ‘Getting Focused and Staying Focused, Looked After Children, Going Missing, and Child Sexual Exploitation, A Thematic Review’ (QUB, 2015) 25. 89 ibid. 90  Department of Health and Department of Education, ‘Strategy for Looked After Children: Improving Children’s Lives’ (DoH and DoE, 2018).

Correspondent Reports—McGuinness 195 plan on Children Missing from Residential Care. It is expected that this work will be completed in late 2019. F.  Modern Slavery and Human Trafficking Between April 2017 and March 2018, 36 potential victims of human trafficking were referred from NI. This figure included 17 adult males and 19 adult females. Recorded exploitation includes labour exploitation, domestic servitude and sexual exploitation.91 Over the same period, the PSNI Modern Slavery and Human Trafficking Unit made eight arrests, conducted 22 searches under warrant and carried out 59 safeguarding visits/non-warrant operations for labour and sexual exploitation, six persons were charged with modern slavery and human trafficking offences and/ or related offences, and two persons were reported to the Public Prosecutions Service NI for human trafficking related offences.92 In 2018, five persons were prosecuted and two convicted for the trafficking of persons to NI for sexual exploitation.93 The PSNI saw a potential upsurge in cases of modern slavery, with 33 victims identified in the first six months of 2018, compared to 36 in the whole of 2017.94 During that same period, the Department of Justice’s contracted support providers, Migrant Help and Women’s Aid, supported 18 potential adult victims (three male and 15 female).95 The PSNI highlighted that the actual number of people in NI affected by modern slavery is unknown, as it often goes unreported and undetected within the community.96 G.  The Right to Private and Family Life On 11 February 2018, a 14-year-old Northern Ireland girl settled her legal action against Facebook after a man allegedly posted a naked photograph of her on a Facebook page. The teenager sued Facebook for damages, alleging misuse of private information, negligence and breach of the Data Protection Act 1998. Her legal team argued that Facebook had the ability to block any republication of her photograph by using a DNA process to identify the image. Facebook had failed in an earlier bid to have the claim dismissed at a preliminary stage. It is expected that the case will have legal ramifications for other social media platforms to monitor inappropriate content.97 91 Police Service NI, ‘Annual Report and Accounts for the Year Ended 31 March 2018’ (PSNI, 2018) 30. 92 HM Government, ‘2018 UK Annual Report on Modern Slavery’ (HM Government, 2018) para. 2.34. 93  ibid Tables 28 and 29. 94  ‘Potential upsurge in modern slavery in NI’ (ITV News, 18 October 2018). 95 HM Government, ‘2018 UK Annual Report on Modern Slavery’ (HM Government, 2018) para. 2.125. 96  ‘Potential upsurge in modern slavery in NI’ (ITV News, 18 October 2018). 97  See Ralph Reigal, ‘Northern Ireland teen’s Facebook legal action over blackmail photo could pave way for a flood of claims’ Belfast Telegraph (12 February 2018).

196  The Irish Yearbook of International Law 2018 In August 2018, the UK Supreme Court ruled that the requirement that couples be married in order to access Widowed Parent’s Allowance was in violation of the right to private and family life under Article 8 ECHR and was also discriminatory, contrary to Article 14 ECHR.98 The UK Supreme Court held that this was so as the purpose of the allowance was to benefit children and it was therefore unjustifiable that the allowance should be restricted to married couples so as to preserve its special status. A declaration of incompatibility was issued by the Supreme Court, although a change to the law in NI may be delayed until the Executive is restored.99 H.  Equality and Non-discrimination The PSNI report that there were 267 homophobic incidents and 163 homophobic crimes recorded in 2017/18; 12 fewer incidents and one more crime compared with the 2016/17 figures.100 In the case of Lee v Ashers Baking Co Ltd (2015), the NI County Court found that Ashers Baking Company unlawfully discriminated against Mr Lee on the grounds of his sexual orientation, contrary to regulation 5(1) of the Equality Act (Sexual Orientation) Regulations (NI) 2006 by refusing to provide him with a cake with the slogan ‘Support Gay Marriage’. The NI County Court also ruled that Ashers had directly discriminated against Mr Lee on the grounds of his religious beliefs/ political opinion contrary to Article 3(2) of the Fair Employment and Treatment Order 1998.101 In delivering judgment, District Judge Brownlie affirmed that the law requires businesses to supply their services to all and noted that Ashers Baking Company were not a religious organisation, but were conducting their business for profit; there were therefore no exceptions to the 2006 regulations in the circumstances of the case.102 The judgment was upheld by the NI Court of Appeal in 2016, following an appeal by Ashers Baking Company. In dismissing the appeal, the NI Court of Appeal ruled that the 2006 regulations were lawfully made and did not discriminate against the appellants as the legislation treated all parties in the same way. The NI Court of Appeal noted that the answer, in this case, was not to remove the equality protections in the 2006 regulations, but rather ‘for the supplier of services to cease distinguishing, on prohibited grounds, between those who may or may not receive the service’.103 The NI Court of Appeal also did not find any breach of the appellant’s Article 9 ECHR, right to manifest their religion, or Article 10 ECHR, right to freedom of expression. 98  In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48. 99  See Allan Preston, ‘NI mum facing Stormont delay after Supreme Court victory on pensions for unmarried widows’ Belfast Telegraph (31 August 2018). 100  Police Service NI, ‘Incidents and Crimes with a Hate Motivation Recorded by the Police in NI, Quarterly Update to 31 March 2018’ (PSNI, 2018). 101  The Fair Employment and Treatment (NI) Order 1998, Statutory Instruments, 16 December 1998. 102  Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) NI) [2018] UKSC 49 at para 55. 103  Gareth Lee v Colin McArthur, Karen McArthur and Ashers Baking Company Limited [2016] NICA 39 at para 100.

Correspondent Reports—McGuinness 197 Commencing on 1 May 2018, the UK Supreme Court heard an appeal by Ashers Baking Company.104 The UK Supreme Court delivered its judgment on 10 October 2018 and allowed the appeal. The UK Supreme Court held Ashers Baking Company had not discriminated against Mr Lee on the grounds of his sexual orientation. Referencing District Judge Brownlie, the UK Supreme Court did not find that the bakery refused to fulfil the order because of Mr Lee’s actual or perceived sexual orientation, but because of their opposition to same-sex marriage. Lady Hale noted the ‘submission that the bakery would have supplied Mr Lee with a cake without the message “support gay marriage” and that they would also have refused to supply a cake with the message requested to a heterosexual customer. The objection was to the message, not the messenger’.105 Regarding the submitted argument that the case was one of associative discrimination, Lady Hale said of the NI Court of Appeal’s judgment that: this suggests that the reason for refusing to supply the cake was that Mr Lee was likely to associate with the gay community of which the McArthurs disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in nondiscriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.106

She later summarised: In a nutshell, the objection was to the message and not to any particular person or persons.107

Legislation to allow for the recognition of same-sex marriages in Northern ­Ireland has been debated in the Northern Ireland Assembly five times since 2012. On the first four of those occasions, only a minority of assembly members voted in favour of same-sex marriage, though the most recent vote on the issue in November 2015 saw a majority of MLAs vote in favour of same-sex marriage.108 Following Mr Justice O’Hara’s determination in Re X in 2017 that a couple’s rights were not violated by the Northern Ireland Assembly’s refusal to recognise their union as a marriage, and that same-sex marriage was a matter of social policy for the Parliament to decide rather than the judiciary,109 an Appeal was made to the Court of Appeal on 16 March 2018. On 28 March 2018, a Private Members’ Bill was introduced to the House of Commons providing for the extension of the legislation of same sex marriage to NI.110 The bill’s second reading in the Commons was blocked by Conservative

104 

Mark Simpson, ‘Judgment reserved in “gay cake” Supreme Court case’ (BBC News, 2 May 2018). Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (NI) [2018] UKSC 49, at para 22. 106  ibid para 28. 107  ibid para 34. 108  Noel McAdam, ‘Northern Ireland MLAs vote “yes” for gay marriage—but motion is torpedoed by DUP’ Belfast Telegraph (2 November 2015). 109  Re X [2017] NIHC 12 (Fam) (17 August 2017). 110  Marriage (Same Sex Couples) (NI) (No.2) Bill 2017–19. 105 

198  The Irish Yearbook of International Law 2018 MP Christopher Chope on 11 May 2018.111 An identical bill was introduced to the House of Lords on 27 March by Baron Hayward, and passed its first reading that day, though without government support.112 In October 2018, Conor McGinn MP and Stella Creasy MP tabled an amendment to the NI (Executive Formation and Exercise of Functions) Bill 2018, which focused on addressing: The incompatibility of the human rights of the people of NI with the continued enforcement of section 13(e) of the Matrimonial Causes (NI) Order 1978 where they pertain to the provision and management of public services in NI.113

The amendment was passed by 207 votes to 117, and received royal assent on 1 November 2018. Among the amendments tabled by McGinn and Creasy, are sections describing Northern Ireland’s same-sex marriage and abortion bans as human rights violations. The law does not legalise same-sex marriage in Northern Ireland, but directs the British Government to ‘issue guidance’114 to civil servants in Northern Ireland ‘in relation to the incompatibility of human rights with the region’s laws on the two issues’.115 In May 2018, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Tendayi Achiume, visited NI. During her visit, the Special Rapporteur noted inconsistency in the data collected by government departments and its current limitations in scope, including its failure to account for the racial impact of immigration and counter terrorism law and policy.116 The Office of the First and deputy First Minister (now the Executive Office) recognises that: Following the enactment of the Equality Act 2010 in England, Scotland and Wales, a significant gap has opened up between the protections offered in Great Britain and [NI].117

Within the Racial Equality Strategy 2015–25, the Office of the First and deputy First Minister committed to a: Review of [the] current Race Relations (NI) Order 1997 and other relevant aspects of other legislation.118

In furtherance of this commitment throughout 2018, the Executive Office has brought forward a review of the Race Relations (NI) Order 1997. As part of the

111 

‘Bid to introduce same-sex marriage in Northern Ireland blocked’ Belfast Telegraph (11 May 2018). NI same-sex marriage bill passes first stage in Lords’ (BBC News, 28 March 2018). ‘Committee of the Whole House—24 October 2018: NI (Executive Formation and Exercise of Functions) Bill. 114 ‘Northern Ireland equal marriage measure passed by MPs in symbolic vote’ (PinkNews, 24 October 2018). 115 ibid. 116 Office of the High Commissioner for Human Rights, ‘UN rights expert hails UK for anti-­ racism action but raises serious concerns over Immigration Policy, Prevent programme and Brexit’ (11 May 2018). 117  The Executive Office, ‘Racial Equality Strategy 2015–2025’ (TEO, 2015) at para 5.9. 118  ibid para 5.11. 112 

113 Parliament.UK,

Correspondent Reports—McGuinness 199 review, the Executive Office will consider outstanding recommendations for reform from numerous international human rights treaty bodies. The PSNI has reported 834 sectarian incidents and 522 sectarian crimes between July 2017 and June 2018.119 This marks a decrease on the previous year, with 105 fewer incidents and 147 fewer crimes recorded.120 Nonetheless, the continuance of sectarian violence raises significant human rights concerns, including: individuals being subjected to torture, inhuman and degrading treatment; individuals being forced from their homes and denied the right to choose their place of residence; and individuals being denied the right to express their culture. In 2017/18, the Public Prosecution Service NI received 83 files from the PSNI in relation to sectarian hate crime; 56 of which proceeded to prosecution.121 There is no category of ‘sectarian’ under the Criminal Justice (No. 2) (NI) Order 2004, meaning that sentences cannot be considered as ‘aggravated by hostility’ and therefore attract an enhanced sentence. Throughout 2018, flags, cultural symbols and emblems remained a source of ­dispute.122 The Stormont House Agreement provided for the establishment of a Commission on Flags, Identity, Culture and Tradition. The Commission was established in June 2016 and tasked to report and make recommendations on the way forward with respect to flags, identity, culture and tradition. The final report has not been published. In June 2018, a case was brought to the NI High Court claiming that the flying of the Union flag at courthouses in NI unlawfully discriminated against nationalists. The applicant claimed that such practice breached a requirement in the Belfast (Good Friday) Agreement 1998 to ensure parity of esteem for both communities. Making its judgment in October 2018, Mrs Justice Keegan, dismissed the challenge stating that: In my view it is abundantly clear that the [then] Secretary of State [NI] fulfilled his obligation to have regard to the principles contained in the Agreement in conducting a balancing exercise and as such the Regulations cannot be said to be unlawful.123

Throughout 2018, the Executive Office has not consulted on proposed definitions of ‘sectarianism’ or ‘good relations’. The draft NI (Stormont House Agreement) Bill, which was consulted on over the summer of 2018, proposes the establishment of an Implementation and Reconciliation Group. This group is intended to promote reconciliation and anti-sectarianism. However, a definition of sectarianism is not included in the draft Bill or consultation document.124

119 Police Service NI, ‘Incidents and Crimes with a Hate Motivation Recorded by the Police in NI’ (PSNI, 2018) at 4. 120 ibid. 121  Public Prosecution Service NI, ‘Statistical Bulletin: Cases Involving Hate Crime 2017/18’ (PPSNI, 2018) at 11. 122  ‘UVF flags near mixed Belfast estates removed’ (BBC News, 16 May 2018). 123  In Matter of an Application for Judicial Review by Helen McMahon [2018] NIQB 74 at para 22. 124  NI Office, ‘Consultation Paper, Addressing the Legacy of NI’s Past’ (NIO, 2018).

200  The Irish Yearbook of International Law 2018 I. Freedom of Religion and Belief, Expression, Association and Right to Participate in Public and Political Life In August 2018, journalists Barry McCaffery and Trevor Birney were arrested as part of an investigation into the suspected theft of confidential documents from the Police Ombudsman NI, relating to a police investigation into the 1994 murder of six men at Loughinisland, Co Down.125 The PSNI had asked Durham Constabulary to conduct an independent investigation into the alleged theft of sensitive material, which was used in a documentary made by the two journalists. Detectives from Durham Constabulary, supported by Police Service NI officers, searched two homes and a business premises in Belfast. During the searches documents and computer equipment were seized, however this is not to be examined by police until the ­outcome of a legal challenge by the company that produced the film. Lawyers for Fine Point Films brought emergency proceedings to the Belfast High Court challenging the legality of the search warrant used by police. During these proceedings, they suggested that a mutually acceptable independent lawyer or retired judge could be appointed to examine material held by police and filter out those items not covered by the search warrant. In September 2018, the emergency proceedings were adjourned to take further instructions on the proposal for an independent assessment of everything seized by the police.126 Durham Constabulary maintains that the arrests were a ‘[s]ignificant development in what has been a complex investigation … The terms of reference given to our inquiry were clear in that the investigation is solely into the alleged theft of material from the Police Ombudsman NI … The theft of these documents potentially puts lives at risk and we will follow the evidence wherever it leads us’.127 However, the Committee on the Administration of Justice has raised concerns internationally around the human rights compliance of these arrests and the resulting erosion of journalists’ freedom of expression more broadly, including making submissions to the Organisation for Security and Cooperation in Europe and the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye. Commenting on the arrests, the Organisation for Security and Cooperation in Europe’s Representative on Freedom of the Media, Harlem Désir stated: I am seriously concerned by the arrest of two journalists in NI. Journalists have the right to use any confidential information for reporting on stories of public interest … It is ­positive that independent judiciary will decide whether journalists’ property can be examined since it is essential that journalists’ privilege to confidential sources is protected and that journalists are free to do their work.128

125 

‘Loughinisland: Journalists arrested over documents investigation’ (BBC News, 31 August 2018). Erwin, ‘Arrest of Loughinisland journalists attempt to intimidate whistleblowers, court told’ Belfast Telegraph (7 September 2018). 127  Loughinisland: Journalists arrested over documents investigation’ (BBC News, 31 August 2018). 128  OSCE Representative on Freedom of the Media, ‘Press Release: OSCE media freedom representative seriously concerned by arrest of journalists in UK’, 1 September 2018. 126  Alan

Correspondent Reports—McGuinness 201 At the time of writing, it had been announced that Durham Constabulary were to drop their investigations into both journalists.129 J.  Right to Health In July 2016, the UN ICESCR Committee recorded its concern that termination of pregnancy was still criminalised in all circumstances in NI, save for where the life of the mother was in danger.130 The Committee noted that this could lead to unsafe terminations and discriminated against women from low-income families who could not afford to travel to access termination services. The Committee recommended that NI legislation on termination of pregnancy be amended to make it compatible with women’s rights to health, life and dignity. The UN CRC Committee also recommended that legislation in NI be reviewed to ensure girls have access to safe abortion and post-abortion care services.131 Following a legal challenge by the NIHRC in 2014,132 and a subsequent appeal to the Court of Appeal133 in June 2018, the Supreme Court held by a majority of 4–3, that the NIHRC did not have standing to bring proceedings, although it also found that the law per se was not in compliance with the ECHR.134 The lack of standing meant that no remedy could be provided. The outcome in this case is likely to be challenged by Ms Ewart directly in 2019. Running parallel to these cases in Northern Ireland, was the campaign to repeal the Eighth Amendment to the Constitution of Ireland (for Article 40.3.3), which granted an equal right to life to the mother and unborn, was gaining pace. On 25 May 2018, the Irish public voted in favour of a referendum that repealed the provision and replaced it with ‘Provision may be made by law for the regulation of termination of pregnancies’.135 Following the passage of the Health (Regulation of Termination of Pregnancy) Act 2018 in the Republic of Ireland, Northern Ireland now has the most restrictive abortion law regime across these islands. The Government of Ireland’s Minister of Health, Simon Harris, confirmed that women from NI will be able to access abortions under this law in Ireland, albeit subject to a considerable financial charge.136 In September 2018, the NIHRC welcomed the continued and increased

129  See ‘Northern Ireland: ‘Victory for press freedom’ as police drop case against investigative ­journalists’ (Amnesty International Press Release) www.amnesty.org.uk/press-releases/northern-ireland-victory-pressfreedom-police-drop-case-against-investigative. 130  E/C.12/GBR/CO/6, ‘UN Committee on Economic, Social and Cultural Rights, Concluding Observations on the Sixth Periodic Report of the UK of Great Britain and NI’ (14 July 2016). 131  CRC/C/GBR/CO/5, ‘UN Committee on the Rights of the Child Concluding Observations on the Fifth Periodic Report of the UK of Great Britain and NI’ (12 July 2016). 132  Re Northern Ireland Human Rights Commission’s Application for Judicial Review (n 89) [178] 56. 133  Attorney General for Northern Ireland & The Department for Justice v The Northern Ireland Human Rights Commission Neutral Citation No. [2017] NICA 42/. 134  In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27. 135  ‘Irish abortion referendum: What is the law?’ (BBC News, 26 May 2018). 136  Seanín Graham, ‘Landmark move to allow NI women access to abortion services in Republic confirmed’ (The Irish News, 9 August 2018).

202  The Irish Yearbook of International Law 2018 momentum for change to Northern Ireland’s abortion law.137 In Autumn 2018, the NIHRC submitted a written intervention in JR76, a judicial review case challenging the prosecution of a mother for obtaining abortifacient medication for her 15-year-old daughter who was pregnant. Chief Commissioner Les Allamby commented: JR76 is an extremely important case; it is the first time that local courts will be able to consider how our laws criminalise termination of pregnancy since the Commission’s Supreme Court judgment in June. The Supreme Court has outlined that Northern Ireland’s laws on termination of pregnancy are contrary to human rights standards. The Commission is arguing that the Court in Belfast should follow the judgment of the Supreme Court when coming to its decision in this case.138

A decision in the case is pending. K.  Social Rights In November 2018, the UN Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, undertook an official visit to the UK. The Special Rapporteur met with stakeholders in NI, including the NIHRC, who highlighted the absence of a robust policy framework to address poverty.139 Northern Ireland has higher levels of multiple deprivation than the rest of the UK with over a third of the population living on or below the breadline. 29 per cent of households are ‘sometimes skimping’ or going without food so that others in their household will have enough to eat. 7 per cent of households can’t afford regular fresh fruit and vegetables. People are struggling to heat their homes across Northern Ireland and 10 per cent of families live in damp homes. Almost a fifth cannot afford to keep their homes in a decent state of decoration. For many people on low incomes the situation is set to get worse, as the cost of living continues to rise and wages continue a three-year decline and benefits begin to fall behind inflation.140 In preliminary comments, Professor Alston stated that Ministers are in a ‘state of denial’ about poverty, and that despite being in the one of the world’s richest countries he had encountered ‘misery’. Professor Alston found levels of child poverty ‘staggering’ with 1.5 million people destitute at some point in 2017 alone, and overall a fifth of the population, amounting to 14 million people, living in poverty.141 Professor Alston used a new measure developed by the Social Metrics Commission to come up with the figure of 14m people in the UK in poverty. It is a measure of ‘relative poverty’, meaning it looks at the percentage of people living with less than 55 per cent of the median income, taking into account costs such as childcare,

137  See NIHRC Press Release www.nihrc.org/news/detail/momentum-to-change-termination-of-­ pregnancy-laws-welcomed. 138 ibid. 139  Meeting between the UN Special Rapporteur on extreme poverty, Philip Alston, the NI Human Rights Commission and civil society organisations, 10 November 2018. 140  See, Poverty and Social Exclusion Report, www.poverty.ac.uk/community/northern-ireland. 141  See www.bbc.co.uk/news/uk-46236642.

Correspondent Reports—McGuinness 203 housing, debt and disability. But the government has preferred to use the measure of ‘absolute poverty’. This counts the number of people in households with less than 60 per cent of the median income as it was in 2010/11, so it shows how living standards of low-income households have changed over time. By that measure, the government says there are a million fewer people in absolute poverty than there were in 2010.142 The UN defines extreme poverty as a multidimensional phenomenon that encompasses much more than a lack of sufficient income alone.143 While many international actors still use measures based exclusively on income, such as the World Bank’s $1.25 a day definition, the UN notes that such approaches fail to capture the depth and complexity of extreme poverty and do not reflect the significant impact of poverty on the full enjoyment of human rights. For the Special Rapporteur, extreme poverty involves a lack of income, a lack of access to basic services and social exclusion.144 This accords closely with the United Nations Development Programme’s (UNDP) ‘Multidimensional Poverty Index’, which seeks to reflect multiple deprivations at the household level, including in health, schooling and living conditions. Using a multidimensional approach to poverty, the UN note that the incidence of extreme poverty around the world is staggering.145 Professor Alston accused the British government of the ‘systematic i­mmiseration of a significant part of the British population’. Ministers responded that it was ‘a completely inaccurate picture of our approach to tackling poverty’ and instead claimed the UK was among the happiest countries in the world.146 Alston’s report compared Conservative policies to the creation of Victorian workhouses. Amber Rudd, Secretary of State for Work and Pensions, said she felt it was politically biased and alleged that Alston did not do enough research, only visiting the UK for 11 days. The government said it would complain to the United Nations.147 IX. CONCLUSION

Concerns about the possibility of a ‘no deal’ Brexit have called into question the status of political agreement reached to date on aspects of the Withdrawal Agreement including citizenship, a transition period and the commitment to no diminution of rights and avoiding a hard border.148 While Brexit will not erase human rights and equality in Northern Ireland or the UK, it looks to some like the start of a

142 ibid. 143 

See www.un.org/en/sections/issues-depth/poverty/. See UN Doc (A/HRC/7/15, para 13). 145  See Special Rapporteur on extreme poverty and human rights www.ohchr.org/EN/Issues/Poverty/ Pages/SRExtremePovertyIndex.aspx. 146  Robert Booth, ‘UN poverty expert hits back over UK ministers’ “denial of facts”’ The Guardian (24 May 2019). 147 ibid. 148  See NIHRC Annual Statement 2018, p 197, www.nihrc.org/publication/detail/annual-statement2018. 144 

204  The Irish Yearbook of International Law 2018 process of potential decline and erosion with hard-to-predict rights-related negative consequences.149 The scale of anxiety in Northern Ireland flows from the belief that another pillar of the peace process is being torn down and that a supranational framework of guarantees and relative security will disappear. It is such things that provide a measure of stability and comfort in a region where disputes can quickly escalate into localised inter-communal conflict.150

149 C Harvey, ‘Brexit and Human Rights in Northern Ireland’ (BrexitLawNI, 18 October 2018) https://brexitlawni.org/blog/brexit-and-human-rights-in-northern-ireland/. 150 ibid.

Book Review

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John Stanley, Immigration and Citizenship Law (Dublin: Round hall – Thomson Reuters, 2017) 250pp ISBN: 9780414034839 Price: €225.00 Immigration and Citizenship Law by John Stanley is a welcome addition to p ­ revious texts in this field of law, particularly given the immense changes that have occurred in recent times in this dynamic area of law. The book attempts to cover both ­immigration and citizenship law in Ireland and is comprised of 28 chapters together with six annexed appendices. Its publication is timely given the relatively recent enactment of the International Protection Act 2015 and will serve the needs of both ­practitioners and postgraduate law students alike. Stanley acknowledges the input of practitioners working in the field together with his personal experience as a member of the International Protection Appeals ­Tribunal and this is visible from the moment one begins to read. The book speaks to the legal theory related to immigration and citizenship law, as well as the p ­ rocedural aspects of running such cases before administrative tribunals and Courts. The book which is most comprehensive, can be read in sequence or indeed as a useful tool to resolve a particular point in issue. Developments in the area of immigration and c­ itizenship have been included up until 31 October 2017. Therefore, the recent developments regarding the right to work for asylum seekers while referenced has not been fully explored. The book is introduced by Justice Finlay Geoghegan of the Court of Appeal who advocates that the author should be ‘congratulated on producing this comprehensive and excellent text’ and further states that it will “be undoubtedly of great benefit to all those practising or working in this area and indeed to those of us judges who often have to reach what are difficult decisions’. Stanley begins by helpfully explaining the layout and format of the book and begins by tracing the developments of Irish immigration law, EU free movement law in Ireland and Irish citizenship law. Not only should Stanley be commended for taking on what appears like an almost impossible task, in compiling the relevant legislation and case law at a national and European level relating to both immigration and citizenship law, but the author also succeeds in formatting this in a ­manner which allows the reader to receive a thorough overview of a complex area of law. Within the initial chapters of the book, the author spends some time outlining the various relevant sources of law from the Irish Constitution, legislation, case law, the European Convention on Human Rights (ECHR) and EU law. Stanley also ­examines the sovereign power of the State and emphasises how the Irish Courts have interpreted the right to ‘control foreign nationals entry and stay in its territory’ as a sovereign right.1 The introductory chapter considers the key rights that are relevant in the field of immigration law such as private and family life, equality, liberty and non-refoulement. The author specifically reserves two subsections of this part of the chapter for the rights of both children and unborn children, which includes a short discussion of the constitutional provision relating to children as well as the position

1 

J Stanley, Immigration and Citizenship Law (Dublin: Round hall – Thomson Reuters, 2017) 8.

208  The Irish Yearbook of International Law 2018 at ECHR level. One caveat relating to unborn children is that reference is made to the constitutional provision relating to the right to life of the unborn child prior to the recent referendum and constitutional amendment. The right to life of the unborn may not play such a role in the arguments presented before a decision maker in the context of a deportation as a result of this amendment. Chapter two recounts the changes that have been made to both immigration and citizenship law prior to the Immigration Acts coming into force and our membership of the EU. Within this chapter the author also comments on the issue of residency for non-Irish parents of minor Irish children. One critique of the book in this regard is that given the issue of residency for parents of Irish born children, it may have been more advantageous if this section were reserved for a chapter entirely devoted to discussion of this topic. The historical chapter also examines the Common Travel Area prior to World War II and traces its development to the present day before considering the impact of Brexit. Throughout the book, it is clear to see that the author has sought to ensure that the social context is included when necessary and ­discussions around the potential implications of Brexit, even if brief, is an example of this. This chapter concludes with a historical depiction of the evolution of citizenship law particularly within the national context. This chapter is over 60 pages long in what is an already heavy book and while interesting, it could have been summarised and condensed further in order to provide a more condensed version of this historical narrative to both practitioners and students. Chapter three is reserved for an examination of Irish visas. Generally ­speaking, the book is well laid out, with each chapter continuing sequentially from the last, ­beginning with a historical inventory, before moving through the immigration ­­process and matters related to deportation, before examining EU free movement rights and citizenship. As a person will require a visa in advance of entering the State, it is logical to have the chapter on visas positioned ahead of the chapter on entry to the State, thus a practitioner or law student can identify the various processes and procedures involved in each particular step of the migratory journey as they occur in practice. It is anticipated that most readers will refer to this text with a particular issue in mind and therefore will not be reading each chapter in succession given the sheer volume of text. Chapter three will be invaluable to practitioners and others who assist migrants in a voluntary capacity given its practical nature and explanation of the various types of visas issued and the application process. ­Additionally, ­Appendix C outlines the remaining administrative visa schemes that were not discussed in c­ hapter three. It is rare for an academic text to incorporate such practical information; something which is helpful to practitioners who are engaging with such administrative schemes and also students as it allows them to identify and further understand the practical application of the law in this area. This is a unique advantage of the book and something which makes it a must for anyone working or interested in this field of law. Chapter four discuses permission to land under the Immigration Act 2004, under the Aliens Orders 1946 to 1999 and permission to enter the State to seek international protection. Next, chapter five considers residence and permission to be in the State from a procedural perspective. Chapter six continues by examining a­ dministrative residency schemes and arrangements related to family unity, humanitarian residency

Book Review 209 and leave to remain; while chapter seven focuses on statutory residency permissions relating to international protection. Prior to the publication of this book, literature related to the International Protection Act 2015 was particularly scarce. Therefore, chapter seven is most welcome as it provides readers with a comprehensive overview of the legislation and also how this legislation is operating in practice. Discussion of programme refugees is also included in this chapter, together with an examination of the permissions related to a member of a family who qualifies for international protection and dependent family members. Each of these chapters ­provides a detailed analysis of the legal context, including case law where applicable. Again, the arrangement of these chapters and the subsections will allow a person to identify the specific issue which is of relevance. The remaining chapters then focus on removal from the State with chapter eight considering removal from the State under the Immigration Act 2003. Chapter nine focuses on deportation under the Immigration Act 1999 and the parallel process under the new International Protection Act 2015. The construction of this chapter allows one to compare and contrast the different provisions under each piece of legislation. This is not only of benefit to practitioners but also to students as they can then identify how the law has changed in recent times. Chapter nine also has a practical focus considering matters such as the service of notices relating to deportation and a consideration of the grounds on which one may request a judicial review of the deportation order. The principal of non-refoulement is considered within chapter ten. The concept is defined and its position within the International Protection Act 2015 is also evaluated. Stanley considers the relevance of the Constitution and other national measures before moving to analyse the position under the European Convention on Human Rights. Again, this is a very comprehensive chapter that examines the national and regional perspective, drawing on case law that will assist practitioners and which will further support students in understanding the principle of non-refoulement. Chapter eleven focuses on both the private and family life rights in the deportation process as well as the private and family life considerations in the deportation process and the relevant litigation that has arisen in this area as well as an examination of the relative success of same. This is useful for practitioners in preparing cases where similar arguments can be invoked. The richness of this text is visible in such chapters and as a result is an essential resource for any practitioner working in this field. Stanley must also be applauded for including a chapter specifically devoted to children’s rights within the deportation process as all too often the child can be forgotten in such a situation. In chapter twelve, Stanley provides guidance from a children’s rights perspective under the Constitution, under Article 8 of the ECHR and under the UN Convention on the Rights of the Child. Stanley further considers issues regarding the deportation of settled, unsettled, aged out and abandoned minor children; something which is rather novel in such an expansive text. Within this chapter the author also reviews the position regarding the deportation of a parent of a non-Irish minor child and a parent of a minor Irish child. Again, such considerations demonstrate the various family ties and implications that a deportation can have for all members of the family and provides a useful demonstration of how such matters play out before the Irish Courts.

210  The Irish Yearbook of International Law 2018 Chapter thirteen considers the amendment and revocation of a deportation order, while chapter fourteen considers the use of injunctions as a method of restraining deportation. Both chapters will be applicable to all those with an interest in this area of law and will be particularly relevant to students. One could further suggest that chapter fourteen on injunctions could be considered as relevant reading material for all students studying injunctive proceedings in general. Chapters fifteen through eighteen are rather technical in nature and text heavy. Chapter fifteen relates to the transfer from the State of applicants for international protection. Chapter sixteen examines civil enforcement measures relating to entry to and presence in the State. Chapter seventeen focuses on civil enforcement ­measures relating to removal from the State. Chapter eighteen is extremely detailed and focuses on criminal enforcement measures relating to immigration and ­control; ­covering everything from offences relating to entering or transiting through the State, to offences relating to exiting the State to powers of entry, search and seizure. Part of this chapter also examines offences relating to unlawful employment in the State of non-Irish nationals. Readers should be aware that part of this chapter may now be slightly out of date due to the recent developments relating to asylum seekers and their right to work in limited circumstances. From here the book changes direction and examines EU free movement law through chapters nineteen to twenty-five, beginning with an introduction to free movement law in Ireland, to rights of residence based on EU Free Movement Rights, to procedural safeguards and enforcement measures. Again, this text must be praised for managing to cover both the theoretical aspects of this area of law as well as the practical application of both national and EU law in Ireland. ­Chapter twentysix then independently examines static Irish citizens and third country national ­family members which is the beginning of the next segment of the book relating to ­citizenship. Covering both immigration and citizenship law within one text, while not a straight forward task, has been successfully achieved by Stanley. Chapter twenty-seven examines Irish citizenship from birth, by entitlement and as a token of honour and considers matters such as citizenship by descent, citizenship relating to adopted children and loss of Irish citizenship. The final chapter focuses exclusively on naturalisation; from the conditions of naturalisation, the waiver of conditions of naturalisation to the fees relating to naturalisation; thereby providing a comprehensive overview of this topic. A further highlight includes the six appendixes attached to this book which p ­ rovide practical information on the EU legal instruments relating to the free ­movement of persons and immigration, immigration related decisions and measures subject to the special rules for judicial review under section 5 of the Illegal Immigrants (Trafficking) Act 2000, visa schemes and arrangements, residency schemes, ­immigration stamps and a list of the Aliens Orders made under section 5 of the Aliens Act 1935. It is most beneficial to have such information so readily available in one convenient text and increases both the practical and academic value of the book. Given the increase in immigration in recent times and the relevant changes in legislation and procedures relating to international protection in the Irish context, this book is both timely and very much needed. While the text is voluminous and

Book Review 211 may present as rather overwhelming to an undergraduate student, this text makes every effort to walk one through immigration and citizenship law from start to finish. Immigration and citizenship law are both complex and specialist areas, yet for the novice exploring these areas for the first time, Stanley’s textbook will prove to be a valuable resource. For the practitioner, this text will be the ‘go to’ resource providing relevant commentary and synopsises of case law to assist a practitioner in resolving a client’s claim. While perhaps some of the chapters for ease of reading should have been presented in a more logical format, it is anticipated that both ­students and practitioners will not read this book from start to finish but rather refer to this text for instructive guidance on a particular point before returning again with an alternative query. It is rare that an academic text of this magnitude can appeal to the law student, researcher and practitioner, yet this text has made a very successful attempt at doing so. This text should be considered as the most informative guide currently available on immigration and citizenship law and comes highly recommended to those with an interest in this area of law. Jessica Brennan School of Law University College Cork

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Documents

214

Document 1 Security Council open debate on ‘Upholding International Law within the context of the maintenance of international peace and security’ 17 May 2018 Statement by Ireland Mr President, Thank you for convening today’s important debate. I would like to align myself with the statement delivered earlier on behalf of the European Union. The preamble to the Charter of the United Nations identifies one of the aims of the UN as “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. The Charter, the foundation stone of this organisation, recognises that the rule of law must be at the heart of our shared efforts to create a peaceful world. It is important that, as we strive collectively to abide by the UN Charter, we are vigilant in differentiating between the rule of law and rule by law. The difference is human rights, the universal freedoms and rights of individuals. Rule by law can negate these rights, whereas the rule of law operationalises them, ensuring their promotion and protection in peace or in war. Ireland’s commitment to an international order based on the rule of law is enshrined in its Constitution and reflected in Ireland’s acceptance of the compulsory jurisdiction of the International Court of Justice. Ireland is party to the core international and European human rights treaties and strongly supports strengthening the multilateral human rights framework and the importance of respect for international humanitarian law in all circumstances. However, legal norms, without enforcement, are clearly insufficient. Thus Ireland supports, amongst other measures, universal adherence to the Rome Statute establishing the International Criminal Court. We seek to ensure accountability for the perpetrators of the most serious crimes of concern to the international community, to deliver justice for the victims, and ultimately we seek to prevent these crimes being committed. 2018 is particularly important as it marks the 20th anniversary of the adoption of the Statute as well as the coming into effect of the Court’s jurisdiction with respect to the crime of aggression. Ireland is working to ensure ratification of the Kampala amendment on the crime of aggression, which is a key foreign policy priority.

216  The Irish Yearbook of International Law 2018 Ongoing violations of international law, including international humanitarian law and human rights law, in situations of conflict, are of grave concern. These ­violations—which include attacks by both state forces and non-state armed groups against health facilities and personnel—are unacceptable. The regularity and severity of these attacks risks the normalisation of such action and the disruption of the delivery of humanitarian aid to those in most need. The deliberate denial of humanitarian aid to vulnerable populations, or the use of humanitarian access as a bargaining chip in peace negotiations, is never acceptable. The Security Council must play its role in referring violations to the ICC, and the Council must work to ensure that any referral is accompanied by ongoing support to the Court, particularly with respect to the execution of arrest warrants and the provision of adequate financial support. Ireland continues to support reform of the Security Council veto and believes that, at a minimum, the use of the veto must be restricted, in accordance with the France/ Mexico initiative, and the ACT Code of Conduct regarding genocide, crimes against humanity and war crimes. Where the Security Council is unable to act, and thus to fulfil its primary ­responsibility to work towards the purpose and principles of the UN, other organs, including the General Assembly, must act. In this context, Ireland also wishes to reiterate its continuing political and financial support for the International Impartial and Independent Mechanism to assist in the investigation and prosecution of the most serious crimes under international law committed in Syria. Mr President, At a time when serious violations of international law and international humanita­ rian law are all too common, and where the multilateral rules-based ­system itself is under threat, we call on all states to support the purposes and principles of the UN Charter, uphold international law, and strictly abide by the decisions of the Security Council and other relevant organs. END

Document 2 Statement by Minister of State Cannon on the ‘Hooded Men’ case 17 May 2018 The prevention and eradication of torture and other forms of cruel, inhuman or degrading treatment or punishment has been a cornerstone of Ireland’s approach to human rights for decades. We are rightly seen across the world as a defender of the international human rights framework, including through our work in the EU and in international fora such as the United Nations, the International Criminal Court, the Council of Europe and the Organisation for Security and Cooperation in Europe. The case taken by Ireland against the UK in 1971 broke new ground in the international protection of human rights. As the first interstate case to be brought before the European Court of Human Rights, Ireland v UK showed that all states that signed up to international agreements on human rights could and should be held accountable. That is a principle that we stand by today. Then, on 2 December 2014, the Government announced its decision to request the European Court of Human Rights to revise its 1978 judgment in the case taken by Ireland against the UK. On the basis of new material uncovered, the Government contended that the ill-treatment suffered by 14 men in Northern Ireland in 1971, should be recognised as torture. The Court’s judgment was delivered on 20 March. As you know, the Court refused the Government’s application to revise the 1978 judgment and find that the men had suffered torture. The refusal was made on two grounds. Firstly, the Court did not believe the new documents contained a sufficient prima facie case that one of the witnesses had misled the Commission and the Court about the long-term effects of the ‘five techniques’ of interrogation. Secondly, the Court did not accept that, even if Dr Leigh had given misleading ­evidence, it might have had a decisive influence on the Court’s finding in the original judgment. The men who suffered this treatment have understandably been disappointed by the Court’s decision. Four decades have gone by since the case was first decided by the Court and the men have shown great courage and dignity in continuing to seek to have their treatment recognised as torture. My colleague the Tánaiste and Minister

218  The Irish Yearbook of International Law 2018 for Foreign Affairs and Trade met the men recently to hear their experiences, and I know that he was deeply moved by what they told him on that day. I want to take this opportunity to pay tribute to the fortitude and persistence of the men who became known around the world as the ‘Hooded Men’. They have had to deal with the long-lasting effects of this treatment and my thoughts are with them this evening. It is important to remember that nothing in the judgment of 20 March changes the finding that the men suffered inhuman and degrading treatment, in breach of their rights under Article 3 of the European Convention on Human Rights. Nor does it mean that this treatment is not, by current standards, torture. The revision procedure is about looking again at the case as it was at the time and considering whether the new information would have changed the Court’s decision at the time of the original judgment. In this case, the Court decided that it would not have changed the original judgment. I know many people are eager that the Government should seek a referral of the ­revision application to the Grand Chamber of the European Court of Human Rights. While this is possible, it is important to note that there is no automatic right for referral. Any application to have the case referred to the Grand Chamber would first be considered by a panel of five judges. No application to refer a revision request to the Grand Chamber has ever been successful. I want to be clear that the Government has not ruled out making such an application. But this is a decision that we will not take lightly. The Government has three months from the date of the decision to apply for a referral. We are using that time to consider the judgment carefully before any Cabinet decision on whether to move ahead with the application. When the Government has made a decision on whether to apply for a referral to the Grand Chamber of the European Court of Human Rights, that decision will be made public. Cathaoirleach, In closing, I want to assure the men whose treatment led Ireland to take this case in 1971, and all those who have campaigned with them in the decades since, that the Government regards this with the utmost seriousness. That is why we will consider the judgment of 20 March very carefully before reaching a decision based on the information and advice that we have.

Document 3 Minister Cannon TD speech on the Council of Europe’s response to current and potential challenges 17 May 2018 Speech As we prepare to mark the 70th anniversary of the Council of Europe next year, we are collectively facing one of the most serious crises to the current and future ­well-being of the Organisation since its creation among a spirit of new hope and beginnings in 1949. As a founder member, with a deep commitment to human rights which permeates our foreign policy, Ireland has always had a strong and deep attachment to the ­mission and values of the Council of Europe. We should never forget the remarkable achievement to establish this pan-European body which has played such a crucial role in securing democracy, human rights and the rule of law in Europe. The European Convention on Human Rights, supported by a legally-binding Court of Human Rights and providing the focal point for a wider convention-system, was and continues to be one of the great achievements of the European Continent. It has provided a backbone for the protection of human rights and is so rightly referred to as a ‘jewel’—it so deserves our political support and protection. It is against this background that we are increasingly dismayed about the fundamental challenges currently facing the Organisation, which threaten to undermine the basis on which we operate and are having a corrosive impact on our Organisation. The drip-feed of allegations relating to alleged activities of a corruptive nature has impacted on the overall reputation not only of the Parliamentary Assembly, but also on the Council of Europe more generally. We welcome the publication last month of the Report of the Independent Investigative Body on the allegations of corruption and would urge the Assembly to follow up on the recommendations so an ­atmosphere of greater trust and confidence can be re-established in the coming months. These political challenges are compounded by the impact of a deep and serious financial crisis. We regret the inevitable impact that the decision by one grand payeur (Turkey) to reduce its contribution is seriously impacting on the overall budgetary situation of the Organisation. Moreover, the decision by another grand payeur (Russia) to cease all payments to the ordinary budget since July of last year, resulting

220  The Irish Yearbook of International Law 2018 in a dramatic shortfall in funding, if sustained, presents existential challenges for the future of the Council. We would recall that membership of the Council of Europe, as provided for in the founding Statute, has both rights and obligations. We would call on all members to respect their obligations in full. We support full implementation of the Council of Europe statute in this regard. Faced with these challenges, it is important for the Council of Europe to look towards the future and to identify a longer-term perspective. [To this end, Ireland warmly welcomes the draft proposals outlined in the mandate from Elsinore to Helsinki that seeks to chart a political horizon for the Council of Europe for the next decade. We wholeheartedly agree that there should be renewed focus on the core values articulated in articles 2, 3 and 4 of the Convention—on the right to life, the prohibition of torture and prohibition of slavery and forced labour. The Convention has provided us with the gold standard for human rights ­protection. Developing future policies on the nexus between human rights, bio-ethics, artificial intelligence and new technologies is necessary if our European conscience is to keep abreast of science. The Council of Europe should focus on being a centre of ­excellence for human rights protection in the 21st century. It is through respect for the Convention and the institution that we are strengthened collectively. The Council of Europe is unique in its composition and we should strive to renew, reform and nurture this institution which has stood us in good stead. I­reland stands ready to play its part in resolving the current challenges and ­consolidating the Council of Europe’s achievements for the future.

Document 4 The Government of Ireland’s Role in and Co-operation with Stormont House Agreement Institutions and Legacy Inquests This paper gives an overview of how the Irish Government will meet its commitments to cooperate with the Stormont House Agreement institutions. It also includes updated information on work to facilitate cooperation with legacy inquests in Northern Ireland. If groups or individuals wish to discuss the Government’s approach to legacy issues in more detail, please contact us by email or in writing and a meeting with officials will be arranged. E-mail: [email protected] Postal Address Legacy Issues Political and Reconciliation Section Ireland, UK and Americas Division Department of Foreign Affairs and Trade 80 St Stephen’s Green Dublin 2 Legislative measures underpinning cooperation with the Historical Investigations Unit Criminal Justice (Mutual Assistance) Act 2008 Immediate co-operation between the Garda Authorities and the HIU is already possible in respect of the HIU’s criminal investigation role. No legislative provision or amendment is required. In this regard, the Irish authorities can receive and respond to requests for assistance through the existing criminal mutual legal assistance arrangements and can provide ‘police-to-police’ support to the HIU as soon as the HIU has been established and commences its work.

222  The Irish Yearbook of International Law 2018 The framework for assistance in the conduct of criminal investigations and proceedings is set out in the 2000 European Union Convention on Mutual Assistance in Criminal Matters and in a number of Council of Europe conventions to which both Ireland and the UK are parties. It has been given effect in Irish law by the Criminal Justice (Mutual Assistance) Act 2008. The mutual assistance framework under the 2008 Act is well established and enables a range of assistance to be provided by the Irish authorities to the competent authorities in other jurisdictions, including frequent assistance to authorities in the UK, for the purposes of the investigation and prosecution of criminal offences. This assistance includes the taking of witness testimony for use in court proceedings, the transmission of evidence, including files and other documentation, information about financial transactions and the freezing and seizure of property. Further details are available on the Department of Justice and Equality website.1 The 2008 Act is available here.2 Timeframe: Immediate—the mutual assistance framework will apply to the criminal investigations being undertaken by the HIU as soon as the HIU is established. Section 28 Garda Síochána Act 2005 Section 28 of the Garda Síochána Act 2005 provides a legal basis for An Garda Síochána to enter into agreements on cooperation and information exchange with law enforcement agencies outside the State. As the HIU will be a law enforcement agency this provision can enable a broad level of co-operation with the activities of the HIU insofar as these are the police-type or the criminal investigation functions in addition to the co-operation facilitated by the mutual assistance framework. The text of Section 28 is available here.3 Timeframe: Steps to establish such an Agreement could begin immediately upon establishment of the HIU. In respect of the non-police or non-criminal investigation functions of the HIU— for example, functions that would relate to the examination of police discipline issues—amendments to section 28 of the Garda Síochána Act 2005 are being prepared as part of the Criminal Justice (International Cooperation) Bill 2017. These amendments will provide for co-operation agreements between Irish authorities and non-police or non-law enforcement bodies outside the State, which could facilitate further co-operation with the HIU. Such agreements will include arrangements to provide for information exchange.

1 http://www.justice.ie/en/JELR/Pages/mutual_legal_assistance.

2 http://www.irishstatutebook.ie/eli/2008/act/7/enacted/en/print.html.

3 http://www.irishstatutebook.ie/eli/2005/act/20/section/28/enacted/en/html.

2018 Documents 223 Timeframe: These amendments are proposed as part of the Criminal Justice (International Cooperation) Bill. The Government approved the priority drafting of this Bill in November 2017 and the General Scheme has been published. It is available on the Department of Justice and Equality website.4 Disclosure of Information and Transparency The Government is committed to full co-operation with the HIU and its work, including full disclosure, consistent with its constitutional obligations and in accordance with law. In the course of co-operation with the HIU, the Garda Commissioner will, as is now the case with all criminal co-operation requests, including those from the PSNI, comply with constitutional and fundamental rights’ obligations (including those under Articles 2, 6 and 8 of the European Convention on Human Rights) and with obligations in law, in particular under the Garda Síochána Acts 2005–2015. These Acts set out the Garda Commissioner’s responsibilities with respect to providing security services to the State (see section 3A of the Garda Síochána Acts 2005–2015 at Appendix 1). Some redactions may on rare occasions be required before material can be shared. If this occurs the rationale for the proposed redactions will be explained fully to the Director of the HIU. The Minister for Justice and Equality will put in place a judicial arrangement to assist the Garda Commissioner and the Director of the HIU in the decision-making process in respect of individual cases where needed. This arrangement would, of course, be without prejudice to the right of the Director of the HIU to challenge the decision of the Garda Commissioner by way of Judicial Review. (See below for further details). The Government has already confirmed that it will seek no role in relation to reviewing family reports prepared by the HIU where they include information received from Irish authorities. In order to ensure transparency the Government also requested the inclusion of a specific provision in the UK Bill (Clause 18 (5) whereby the HIU Director must include in any relevant report a statement about the cooperation given by the Government of Ireland and whether any of the information given was in a redacted form. The Government is willing to consider what further confidence-building measures in respect of disclosure it might be possible to take in the interests of supporting the overall legacy framework and advancing the work of the bodies to be established.

4 http://www.justice.ie/en/JELR/General_Scheme_of_Criminal_Justice_(International_Co-operation)_ Bill.pdf/Files/General_Scheme_of_Criminal_Justice_(International_Co-operation)_Bill.pdf.

224  The Irish Yearbook of International Law 2018 These measures would, of course, have to take account of the fact that information from Ireland (unlike that being provided from UK agencies) will be crossing an international border and identical provisions will not therefore be legally possible. Judicial Review Judicial review is a well-established mechanism before the High Court, founded in the Constitution and the procedures governing the operation of judicial review are governed by the Rules of the Superior Courts. All natural and legal persons may apply to the High Court for leave bring judicial review proceedings challenging decisions made by public bodies in exercise of their public functions. Judicial review proceedings can be brought against any person or body exercising a public function. In the context of a judicial review, the High Court has jurisdiction to examine and adjudicate on issues of fairness and propriety of procedures in decision-making and the substantive lawfulness of public bodies’ decisions including the Garda Commissioner. The Court of Appeal and the Supreme Court have jurisdiction to hear appeals from decisions of the High Court. Legislation establishing the Independent Commission for Information Retrieval An international agreement was concluded between the two Governments on 15 October 2015 to provide for the establishment of the ICIR and legislation is under preparation to give effect to this. This legislation will, inter alia, grant the ICIR the immunities and privileges of an international body and ensure it is not subject to judicial review, Freedom of Information, Data Protection and National Archives legislation. Analogous provisions to those in the UK draft Bill in relation to the creation of criminal offences for unauthorised disclosure (‘leaks’) will also be provided. In addition, the legislation will also provide that information given to ICIR will not be admissible in Court proceedings. The ICIR will be under a duty to protect life in the exercise of its functions. In light of this duty and in recognition that the ICIR will not test information to an ­evidential standard, ICIR reports will not name alleged perpetrators or disclose the identities of people who provide information. The international agreement to establish the ICIR is available here.5 Timeframe: It is intended that the Government’s approval will be sought before the summer. The General Scheme of a Bill will then be published before the end of the public consultation on the UK legislation.

5 http://opac.oireachtas.ie/AWData/Library3/FATRdoclaid210116_100026.pdf.

2018 Documents 225 Legislative measures underpinning cooperation with inquests in Northern Ireland There is currently no international legal framework, analogous to the mutual legal assistance framework for criminal matters, to regulate the transmission of information or evidence for use in non-criminal inquiries such as coroner’s inquests or the work of police oversight bodies (where such matters are not criminal inquiries). Amendment to Section 28 Garda Síochána Act 2005 As noted above, section 28 of the Garda Síochána Act 2005 provides a legal basis for An Garda Síochána to enter into agreements on cooperation and information exchange with police and law enforcement agencies outside the State. There is no corresponding provision for An Garda Síochána to enter into such agreements with ‘civil’ agencies and bodies outside the State (or in respect of the non-law ­enforcement functions of police/law enforcement bodies) where that cooperation would be compatible with the functions of An Garda Síochána. The amendments to the Act described above will provide for the possible establishment of co-operation agreements with non-police or non-law enforcement bodies. This could further facilitate co-operation with the Legacy Inquests being conducted by the Northern Ireland Coroner and with the Office of the Police Ombudsman for Northern Ireland in respect of some of its inquiries. Criminal Justice (International Cooperation) Bill 2017 The primary purpose of the Bill is to facilitate co-operation by An Garda Síochána with Coroners’ Inquests in Northern Ireland and Great Britain that are examining troubles-related deaths, whether caused by paramilitaries or by the security forces, and that have a substantial connection with this State. The Bill also proposes to expand the scope of Section 28 of the Garda Síochána Act 2005, to allow for the Garda Commissioner to enter into agreements, with the prior approval of the Government, for general co-operation with bodies outside the State that are not police services or law enforcement agencies but which may have functions that are consistent with the responsibilities of An Garda Síochána. This amendment will support and enhance further co-operation with bodies such as the Northern Ireland Coroner’s Service in relation to legacy inquests. Timeframe: The Government approved the priority drafting of a Criminal Justice (International Cooperation) Bill on 21 November 2017 and for the publication of the General Scheme of the Bill. Other Stormont House Agreement bodies Oral History Archive The Irish Government will legislate as required to provide for protection from ­defamation and other proceedings for persons making oral contributions to the Archive.

226  The Irish Yearbook of International Law 2018 The Irish authorities will also engage with the OHA to promote and facilitate ­contributions from within its jurisdiction as appropriate. Implementation and Reconciliation Group The Government will nominate a member of the IRG in accordance with the ­Stormont House Agreement. The two Governments have unique roles in the development of the IRG given their commitments under the Stormont House Agreement to consider making statements of acknowledgment. At the conclusion of the work of the IRG, the Government would intend to make a statement of acknowledgement, and hopes and expects that others would do the same. 29 May 2018

Document 5 Speech by Minister Denis Naughten TD ‘The Investor Agenda: Accelerating Action for a Low-Carbon World’ Global Climate Action Summit, San Francisco, Thursday, 13 September 2018 INTRODUCTION

Thank you to the panellists for the valuable discussion that we have heard today. It is clear that the global investor community, as well as the financial system more broadly, has an essential role to play in enabling the scaling up of both ambition and the action needed to meet the goals of the Paris Agreement. THE INVESTMENT GAP AND ECONOMIC DIVIDEND

At a global scale, estimates of the financing requirements are in the range of up to €90 trillion. Clearly the public sector cannot cover the full extent of the investment required. Private capital is therefore essential if we want to reach our decarbonisation ­targets in the coming years, with green and climate finance having a substantial role to play in mobilising the necessary private capital for this investment. As the Global Commission on the New Climate Economy reported this week, there is also a huge economic dividend at stake. Bold action by the international community could yield a direct economic gain of US$26 trillion through to 2030 compared with business-as-usual. So the economic case is clear. There is an onus on Government to create the policy, taxation and regulatory environment to galvanise private sector investment. Integral to achieving this is the need to engage with the private sector and understand how we can jointly address this challenge. ACTION BEING TAKEN IN IRELAND

In Ireland we are doing this through our ten-year National Development Plan, ­published earlier this year, which commits 20% of its total budget, or almost €22bn, to investments in climate action plus an additional €8.6bn in sustainable mobility.

228  The Irish Yearbook of International Law 2018 For Ireland, this represents a huge leap forward in our approach to addressing climate action, both in the scale of our ambition and the funding that we’re making available, as a Government, to meet the challenges. We also recognise that Government does not have a monopoly on good ideas. Therefore as part of this initiative we recently established a €500m internationally accessible Climate Action Fund. Its primary goal is to fund innovative projects that will reduce Ireland’s carbon emissions. We are open to any joint ventures that harness creativity; considering applications from small local businesses to global corporations. A long term signal on carbon pricing is also essential in order to create certainty for business in its medium to long term investment decisions. In Ireland we already have a very broad based carbon tax, at a rate of 20 Euros per tonne. On a cross party basis I have asked the Irish Parliament to bring forward proposals regarding the level and trajectory for pricing carbon out to 2030 and beyond. I have asked colleagues to look at an innovative new concept in carbon pricing that sets a long-term floor price for a barrel of oil equivalent. This novel approach could address the risk of falling fossil fuel prices that can undermine a traditional carbon tax approach. So regardless of global production or economic demand for fossil fuels by 2030 the effective price through tax and other measures for fossil fuels would be perhaps €200 per barrel. Not only does this give control back to the Governments of today’s oil consuming economies, but takes control away from oil producers in the future. So by effectively pricing oil out of the market it will act as a major disincentive to investment in further exploration and instead would, I believe, ramp up investment in sustainable alternatives. Ireland took a further significant step on the low carbon investment journey with the National Treasury Management Agency announcing that it will shortly come to the market with Ireland’s first sovereign Green Bond. FOSSIL FUEL DIVESTMENT BILL

Ireland is also demonstrating global leadership in the divestment agenda. Earlier this year, a huge milestone was achieved when the lower house of the Irish Parliament approved a Bill that requires Ireland’s sovereign investment fund to divest of all fossil fuel assets over a five year period. There is strong cross-party support for this legislation in the Irish Parliament and it will become law shortly. I am a strong supporter of legislative initiatives such as this which are targeted, considered and practical, while recognising that the low carbon transition must be properly managed. From the perspective of the Irish Government and our sovereign investment fund, this means continuing to generate investment returns for the Irish tax-payer, while supporting Ireland’s transition to a low carbon, climate resilient and environmentally sustainable economy by 2050.

2018 Documents 229 For all of our economies around the world, the transition will mean that certain industries that exist today will no longer do so in the future. In Ireland we have our own domestically produced fossil fuel – peat – which stabilizes regional parts of our grid and is a significant employer in the midlands of Ireland. Yesterday I spoke at a Powering Past Coal event. I believe the toolkit available through this excellent initiative will help us to achieve our objective of taking peat and all dirty fossil fuels out of power generation within the next decade, while ­providing a just transition to green employment for the families so reliant on these jobs today. We must create sustainable jobs that meet the skills capacity of the existing ­workforce and jobs for their children as well. Government planning is essential for this and in the coming weeks in Ireland we will set out a roadmap, showing how we intend to achieve this within the next decade. Finally, underpinning all these initiatives, government engagement with business and broader society is essential. In Ireland we have developed a very innovative model to achieve this – our National Dialogue on Climate Action. It brings together representatives of national and local government, business and industry as well as ordinary citizens to chart a path forward in addressing climate change. Achieving consensus is essential if government and business are to ­successfully work together to enable the transition to a low carbon, climate resilient and ­environmentally sustainable society. Plans will come to nothing unless funding scale, an estimated €90 trillion I ­mentioned at the outset, is made available to drive this transition. That’s why initiatives such as the green bond and global divestment movement are so critical. CONCLUSION

To conclude, I would like to once again commend the panellists and participants for this rich discussion, and to thank you all in your ongoing work in facilitating the transition of the world’s financial system to help build the low carbon economy that the world needs.

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Document 6 Speech by Tánaiste and Minister for Foreign Affairs & Trade Simon Coveney TD to the General Assembly of the United Nations, New York 29 September 2018 President The General Assembly is meeting this week as we mark the 100th anniversary of the birth of Nelson Mandela and as we mourn the recent death of Kofi Annan. Two great leaders from Africa whose personal commitment to the values and ­principles of multilateralism was unwavering – something we should reflect on and draw ­inspiration from, particularly at this time of global instability and open challenge to the very approach to global decision-making that has been the foundation of this institution. Ireland was honoured to have been asked to co-facilitate the consultative process with Member States to produce the Political Declaration adopted at the Mandala Peace Summit on Monday. Nelson Mandela and Kofi Annan were revered and loved in Ireland. To do justice to their legacy, we must renew our efforts to actively work for a culture of peace, tolerance and respect for human dignity globally. Is that not fundamentally what the UN should be about? Can we challenge o ­ urselves to use the Peace Summit and this UNGA week to strive, with the courage and humility which marked them out, for the type of world that Mandela and Annan envisioned? We must do better – and we can do better – to live up to the aspirations they represented. President, Geographically, Ireland may be a small island on the Western edge of Europe. But in Ireland we see ourselves as an island at the centre of the world, with a global diaspora more than ten times the size of our population at home. We have learned that, in an inter-dependent world, the challenges of our time do not respect ­geographic boundaries. Finding solutions is a shared responsibility, whether you are a small Polynesian Island or a superpower – we breathe the same air.

232  The Irish Yearbook of International Law 2018 This sense of shared responsibility guides Ireland’s view of the world and the part we try to play in it. Almost a century ago Ireland became an independent state, escaping a history of colonialism. Ours is not a unique story; but it is one which allows us to empathise with so many countries here at the UN. Like the UN itself, we were born out of conflict. It has shaped how we view the world and our responsibilities as global citizens. Our membership of the UN has played a major part in our development. We not only support a fair rules-based order in international affairs – we exist, survive and prosper because of it. And we see no viable alternative. In peacekeeping, disarmament, sustainable development, climate, nutrition, human rights and humanitarian assistance we have striven to match our words with actions and funding, supporting multilateral structures. While the system has flaws, ­Ireland is convinced that there is no other way to meaningfully address the common ­opportunities and threats that face each of us. For Ireland, multilateralism strengthens our independence, self-confidence and ­security, rather than diminishes it. If you believe in multilateralism, now is the time to fight for it across the UN s­ ystem, including with powerful countries which have traditionally played great leadership roles within this institution. We cannot defend a logic that views multinational engagement as an abdication of national leadership or a loss of influence on the international stage. We urgently need global leadership which galvanises global support through strength of argument, which leads in finding solutions to our collective problems, to raise ­living standards for everyone, in particular those furthest behind. We need positive outward-looking leadership by the great powers in the UN, ­particularly powers which traditionally have been indispensable, if imperfect, forces for good. Without this, I fear for the future of global stability. I fear for the future of the UN in the work it must do, a work that can never be replicated by transactional bilateral engagement; where the powerful dominate and decisions are no longer based on the strength of argument, compassion or generosity but instead based on states choosing sides, fearful of being ‘offside’ with the strong and powerful or being put on a list for special treatment. Ireland does not wish to see any diminution in the role played by the UN’s leading actors. At the same time, we will always demand a place on the stage for everyone and an atmosphere that encourages free speech and new or sometimes controversial thinking. The UN’s foundations will crumble without the inclusivity and generosity of thinking embedded though decades of experience. And sometimes it’s the smallest states that have the answers to our biggest problems.

2018 Documents 233 We cannot be complacent, however, about the institutional reforms needed to ­maximise the UN’s legitimacy and relevance in a changing world. Ireland salutes the efforts of Secretary-General Guterres and welcomes the steps taken by the General Assembly on reform. Implementation of these reforms is now key. Ireland particularly wants to see successful reform of the UN Development System to support the implementation of the Sustainable Development Goals. That is why my Government earlier this month pledged more than a million dollars in support of the reform of the UN Development System to complement the strong financial support Ireland already provides to UN Funds, Programmes and Agencies. But reforms at the UN must go beyond the managerial and structural level. The UN’s political bodies must also catch up to where the world is. This is particularly the case regarding the Security Council. Ireland is clear on the need to increase the size of the Council. Many areas of the world are either insufficiently represented in the Security Council or not at all represented. The historic unjust under-representation from Africa in particular needs to be addressed so that there can be a fair African say in Council decisions affecting their own continent, where much of the UN’s focus will be needed in the decades ahead. We also want to see consideration of a designated role for Small Island Developing States. The growing impact of climate change on international peace and security lends weight to this call. It is not only the composition of the Security Council that should be under scrutiny. The use or threat of the veto remains a serious obstacle to the work of the Council. Far too often, this results in the shocking abandonment of some of the most vulnerable people on earth. The failure of the Security Council to take action to prevent mass atrocity crimes betrays victims and undermines the UN’s credibility. I strongly believe that political reform of the Council would inevitably lead to a greater sense of participation, responsibility and ownership among the UN ­membership – this would surely only be positive for the functioning of the UN more widely. Many say we are wasting our time calling for reform of the Security Council. Maybe so, but if the power of evidence and argument is to mean anything then Ireland will keep trying to build a coalition for change. President, While recognising the need for new structures, we also need to make the best use of existing structures and always look for ways to improve them. International criminal justice, where there has been an irreversible shift towards accountability, is one such example. It is particularly pertinent to recall this on the twentieth anniversary of the adoption of the Rome Statute of the International Criminal Court.

234  The Irish Yearbook of International Law 2018 Justice and accountability is always a better alternative to revenge, impunity or amnesty. And we have seen important developments in the area of gender-based and sexual violence, by enabling the prosecution of sexual violence as a war crime, a crime against humanity and genocide. We have witnessed universal justice strengthened beyond power politics and beyond geopolitical interests. And I am pleased to report that earlier this month Ireland ratified the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression which were agreed in Kampala. Yesterday I lodged the instrument of ratification with the UN Secretary-General. President, Ireland welcomes the level of ambition at the heart of the Secretary-General’s new Disarmament Agenda. We hope this will be a turning point in the current challenges facing disarmament and arms control processes. Ireland is proud of the historic role we played in the development of the Non-­ Proliferation Treaty in the last Century. The NPT demonstrates what States can achieve together in the spirit of peace and cooperation. However, we also have a responsibility to remain ambitious in the pursuit of the total elimination of nuclear weapons. Our efforts to promote the adoption of the Treaty on the Prohibition of Nuclear Weapons reflect this. Ireland is deeply concerned by the persistent use of explosive weapons in populated areas in armed conflicts across the globe. Civilian populations continue to bear the brunt of armed conflicts and we all must redouble our efforts to fulfil the SecretaryGeneral’s call to address this challenge. We continue to call on the DPRK to abide by its obligations under relevant United Nations Security Council resolutions and its international commitments, and to abandon all nuclear and other Weapons of Mass Destruction (WMD) and ballistic missile programmes in a complete, verifiable, and irreversible manner. President, Ireland’s multilateralism runs deep through our commitment to UN peacekeeping. Our contribution to UN peacekeeping operations enjoys a special place in the hearts of the Irish people. This year marks the 60th anniversary of Ireland’s participation in UN peacekeeping. For six decades, tens of thousands of Irish women and men have worn the blue h ­ elmets and berets on UN peacekeeping operations, particularly on missions in Africa and the Middle East. Our Prime Minister stated here at UN Headquarters in July: ‘We are as proud of the blue helmet as we are of the harp or the shamrock’ – two emblems that are closely associated with Ireland. Today, there are more than 500 Irish Defence Forces personnel deployed on UN peacekeeping missions, including more than 350 women and men on the UNIFIL mission in Lebanon, a mission that we have been contributing to for

2018 Documents 235 40 years now. Ireland is the highest per capita European Union contributor of troops to UN ­peacekeeping with deployments to 6 UN missions across the Middle East and Africa. The UN’s humanitarian and development work is central to Ireland’s commitment to the UN, but we know we need to do more. We have reaffirmed our commitment to achieving the UN target of providing 0.7 per cent of Gross National Income for Official Development Assistance by 2030 – the same year the world has pledged to deliver the Sustainable Development Goals. We are ambitious for Ireland’s international development cooperation. We also need to be authentic to our own experiences. We have known hunger. We have known poverty. But we have also experienced transformation, a transformation based on education and innovation and a vibrant civil society. Our values are not Ireland’s alone, however. They are at the core of the 2030 Agenda and the future we seek. We know that to create a peaceful, fair and just world, we must respect the human rights of all. Economic progress cannot be delivered at the cost of equality and protecting the most vulnerable in our societies. We must also go beyond rhetoric in our efforts to empower women and girls. Gender equality cannot be seen as a gift to be granted, but rather as a fundamental driver which can ­underpin real improvements in the lives of all of our people. President, The need for collective action to address Climate Change is more evident every month. As an island State, we learned centuries ago that the waters surrounding our island cannot deter forces beyond our control – isolation does not mean safety. Since I spoke here last year Ireland has experienced its first hurricane, generated in the east Atlantic, its most severe winter cold weather snap and the most sustained drought in living memory. The denial needs to end and the collective action on ­climate ­adaptation and abatement must intensify. Today many more island nations face challenges not of their making, through ­climate change, pollution and rising seas. We must work together to face these challenges, nations united by a determination to protect ourselves. More broadly, the scale of the humanitarian crises facing the international community cannot be overstated. Over 134 million people around the world are in need of humanitarian assistance and protection, with conflict the single greatest driver of this need. As a country committed to humanitarian principles, we will continue contributing to international efforts to ease the plight of civilians suffering the impact of conflicts in South Sudan, the Central African Republic, Syria, Yemen, Palestine and elsewhere. Over 68 million people have been forcibly displaced from their homes worldwide, with over 25 million cross-border refugees. I am very conscious that a huge majority of displaced people are being sheltered in countries already experiencing high levels of vulnerability and poverty, and that this is placing a huge strain on already

236  The Irish Yearbook of International Law 2018 very limited resources. Ireland will continue to support refugees and vulnerable host communities. I particularly want to acknowledge the generosity of many States and the extraordinary burden they are being ask to carry. States like Bangladesh, Ethiopia, Egypt, Jordan, Kenya, Lebanon, Pakistan, Turkey and Uganda, and many more – these countries are hosting enormous numbers of people displaced by conflicts in ­neighbouring regions. Bangladesh is now host to the world’s largest refugee camp, sheltering over a m ­ illion refugees. In the year since I last addressed you, this camp has swelled with h ­ undreds of thousands of Rohingya refugees fleeing appalling violence in neighbouring ­Rakhine State. The Rohingya must be assured of a safe, voluntary, dignified and sustainable return. And the international community must insist on an end to impunity for the appalling acts of violence that have come to light and ensure accountability for the crimes that have been committed. President, Because of Ireland’s experience of prolonged, intractable conflict but also a successful peace settlement, the Israel Palestine conflict and lack of progress on a peace agreement is a big foreign policy priority for me and for the Irish Government. Ireland’s own experience shows that even decades-long conflicts can have a turning point. Peace is a process, not a moment. To bear fruit, that process requires untiring work and commitment. And we all surely realise that forced outcomes with winners and losers can never be the basis for lasting peace. From all my visits to the Middle East, I know that the current situation serves the interests of neither people. But I am also conscious that the burden of being under occupation is the heavier one. Settlement construction underlines this, and is causing ever-greater damage to the prospects for peace. Ireland, like many, is very conscious of the threat to Khan al Ahmar and other strategically-located West Bank villages. What happens there will tell us much about whether we can count on a real commitment to negotiating a two-state solution. The situation in Gaza, also, is simply untenable, and the 1.9 ­million people living there desperately need the decade-long blockade to end, so that they can start to rebuild normal lives, reject the twisted promises of radicals, and look to the future with hope. They also need countries which fund terrorist activities, chaos and mismanagement in Gaza to halt this unwelcome interference without delay. When I visited Gaza, I was struck by how much people there rely on the efforts of UNRWA, both to meet basic needs, and to know that they are not forgotten. I am proud that Ireland is such a long-standing supporter of UNRWA, not just in Gaza, but in the West Bank and across the region. Ireland will continue that assistance and has increased our contribution to €7m for this year, recognising the financial

2018 Documents 237 pressures. I greatly regret recent cuts to UNRWA’s funding by the US and plead with those in power to reconsider the consequence of their decisions. Reform of UNRWA is needed, but in the context of a peace deal and a functioning Palestinian State. Shutting off funding now is simply adding to the turmoil of current pressures where UNRWA cuts are interpreted as a collective punishment, targeting women and ­children. How does increasing the misery of Palestinians not empower the radicals, who want to poison the minds of hopeless, angry, young Palestinians and destabilise the moderate political leadership who want peace? A people who have been downtrodden for decades will not be pressured into negotiating through enforced hardship and humiliation – the human soul doesn’t work that way. Without hope or dignity, minds close to the compromises we all know are necessary. I believe there is a way forward for the Middle East Peace Process with American leadership and with the support of others, that can help to broker a peace deal between an Israel that justifiably demands security and a Palestinian people who dream of their own country and state. Ireland is a small player in all of this, but we will continue to advocate honestly for progress and justice as a friend of both Israel and Palestine. President, Member States know that Ireland is a proud and ambitious candidate for a seat on the Security Council at the elections to be held in 2020. We have been making our case better known with States over the past months. We Irish are by nature bridge-builders. We listen to all sides and work to build ­collective solutions to our global challenges. We are committed to hearing and heeding the voices of all, to forge consensus and common purpose. We think independently. Our path is our own. We bring no partisan agenda to the table. We are here to serve the wider good and to support the UN and the m ­ ultilateral system. And we will be courageous when the UN, and all of you, need courage and ­leadership from the Security Council. Empathy, partnership and independence will guide us. With Ireland, you have a small country with a broad mind, a listening ear and a strong independent voice that promotes the values that should inspire this o ­ rganisation in the future. Thank you.

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Document 7 Statement by Mr. James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 73rd Session Agenda Item 82: The Report of the International Law Commission on the Work of its 70th Session PART 1—Chps I, II, III, IV (Subsequent agreements and subsequent practice), Ch V (Identification of Customary international law), Ch XII (Commemoration) and Ch XIII (Other decisions and conclusions of the Commission) New York, 23 October 2018 Check against delivery Mr Chair, 1. As this is the first time I have taken the floor in the Sixth Committee, allow me to congratulate you and the members of the Bureau on your election, and to assure you of Ireland’s support for your work. 2. I will speak today on four issues—first, Commemoration of the seventieth anniversary of the Commission; second, Subsequent agreements and subsequent practice in relation to the interpretation of treaties; third, Identification of customary international law and finally, Other decisions and conclusions of the Commission. A fuller version of my remarks is available on Papersmart.

240  The Irish Yearbook of International Law 2018 Commemoration 3. Ireland wishes to congratulate the Commission on the successful conclusion of events in New York and Geneva commemorating the Commission’s 70th Anniversary. In particular, we wish commend the Commission for effectively balancing a full and varied agenda of commemorative events alongside its usual programme of work. In this regard, we recognise the important role played by Commission’s Secretariat and support staff. 4. This delegation was pleased to see the theme of the 70th Anniversary, “Drawing a Balance for the Future”, reflected in numerous panel discussions and side events and look forward to the publication of details of proceedings of the s­ eventieth anniversary commemorative events. In looking to the future of the International Law Commission, one of the questions worth reflecting on is that of its composition, in particular the continued lack of women on the Commission. Seventy years after its establishment, it is dispiriting that the under-representation of women on the Commission remains a challenge. While it was welcome progress to see the number of women on the ILC double to four in the latest elections, this is not a number that permits complacency, particularly when it represents less than 12% of the current membership and when it is recalled that less than 7% of the candidates put forward were women. We are reminded of the Secretary General’s statement when launching his 2017 strategy on achieving gender parity at the United Nations that “[t]he meaningful inclusion of women in decision-making increases effectiveness and productivity, brings new perspectives and solutions to the table, unlocks greater resources, and strengthens efforts” across all areas of our work. 5. In addition to gender diversity, it is also Ireland’s view that we are best served when there is a good mix of expertise on the Commission, including those with experience of academia, legal diplomacy and private practice in international law. Mr Chair, Subsequent agreements and subsequent practice 6. In relation to the topic, Subsequent agreements and subsequent practice in relation to the interpretation of treaties, Ireland wishes to align itself with the statement delivered by the European Union. Ireland would also like to express our gratitude to the Special Rapporteur, Mr Georg Nolte, for his work on this topic and in particular the rigorous and in-depth analysis contained within the Commentaries which will assist those tasked with the interpretation of treaties into the future. 7. Regarding Conclusion 6, which indicates how subsequent agreements and subsequent practice as a means of interpretation are to be identified, Ireland ­welcomes the further clarification in the commentaries to this Conclusion that the examples of conduct that do not constitute subsequent agreement or practice

2018 Documents 241 of treaty interpretation set out in the second sentence of paragraph 1, which deals with temporary non-application of a treaty or modus vivendi, are illustrative only. 8. Ireland welcomes the language introduced in paragraph 1 of Conclusion 10 on agreement of the parties regarding the interpretation of a treaty. This conclusion now clearly reflects the aim of the Commission to reaffirm that agreement, for the purpose of article 31, paragraph 3 need not be legally binding, in contrast to other provisions of the 1969 Vienna Convention in which the term “agreement” is used in the sense of a legally binding instrument. 9. The importance of subsequent agreement and subsequent practice in treaty interpretation means that these Conclusions and their accompanying Commentaries will undoubtedly prove a useful tool for practitioners and academics alike in years to come. Mr Chair, Identification of customary international law 10. Turning to the topic of Identification of customary international law, Ireland aligns itself with the statement made by the European Union and wishes to congratulate the Special Rapporteur, Sir Michael Wood, for his excellent work on this topic and on the successful adoption of the Conclusions and detailed commentaries. In addition, this delegation welcomes the Memorandum prepared by the Secretariat on ways and means for making the evidence of customary international law more readily available. This is a very useful resource and Ireland supports the Commission’s recommendation that the Secretariat continue to make available the information contained in the annexes to the Memorandum through an online database to be updated periodically based on information received from States, international organisations and other entities. Mr Chair, Other decisions and conclusions of the Commission 11. In respect of other decisions of the Commission during its Seventieth Session, Ireland welcomes the inclusion of the topic “Universal criminal jurisdiction” on the Commission’s Long-Term Programme of Work and wishes to thank Mr Charles C. Jalloh for his paper addressing this proposed topic, as well as the useful bibliography. Given the legal and technical nature of this topic, the Commission is well positioned to assist States in identifying the basic principles of universal jurisdiction, including a definition of universal jurisdiction, its nature and scope and a consideration of State practice in its application. Ireland believes examination of this principle by the Commission should provide a basis for future constructive discussion of this issue within the Sixth Committee.

242  The Irish Yearbook of International Law 2018 12. Ireland is also open to further study of the topic “Sea-level rise in relation to international law” by the Commission. Rising sea-levels pose significant challenges across the globe, and for low-lying countries and small island states in particular. Therefore, Ireland is of the view that an in-depth analysis of existing international law carried out by a Study Group could assist the international community’s understanding of the international law rules applicable to sealevel rise, particularly its effect on statehood and in relation to the protection of affected persons.

Document 8 Statement by Mr. James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 73rd Session Agenda Item 82: The Report of the International Law Commission on the Work of its 70th Session PART 2—Chps V (Protection of the Atmosphere), VII (Provisional application of treaties) and VIII (Peremptory norms of general international law (just cogens) New York, 26 October 2018 Check against delivery Mr Chair, 1. My statement will address the topic Provisional Application of Treaties. Ireland aligns itself with the statement delivered by the European Union. 2. My delegation welcomes the adoption on first reading of a full set of draft Guidelines and Commentaries on this topic. We would like to express our gratitude to the Special Rapporteur, Mr Juan Manuel Gomez-Robledo, for his fifth report and the Drafting Committee for its consideration of the draft guidelines. 3. Turning first to draft Guideline 6, Ireland welcomes the decision of the Drafting Committee to amend the guideline and replace the phrase “the same legal effects” with “a legally binding obligation to apply the treaty or a part thereof”. The clarification in paragraph 5 of the Commentary that this new formulation does not imply that provisional application has same legal effect as entry into force is also a useful addition.

244  The Irish Yearbook of International Law 2018 4. In relation to draft Guideline 7, Ireland takes note of the divergent views of Commission Members on whether it is necessary to include a provision on reservations in the context of provisional application of treaties. Furthermore, we note that no case where a treaty has provided for the formulation of reservations in relation to provisional application or where a State has formulated reservations to a treaty that is being applied provisionally has been identified. Bearing that in mind, and given that the Commission is only at an initial state of considering the question of reservations in this context, my delegation is of the view that further study of the practice of States and international organisations should be undertaken and referred to in the Commentaries if this guideline is to be adopted. 5. The development of model clauses provides useful assistance in cases where provisional application is considered appropriate. However, there is a need for flexibility in an area where different institutional and legal systems may seek to use provisional application. The tendency of states and international organisations to tailor their treaty obligations through the use of provisional application was noted by the Secretariat in its memorandum. In particular, the Secretariat noted that this flexibility reveals itself with regard to the terminology used, the type of agreement on and conditions for provisional applications. If these model clauses are adopted, it would be important to note in the commentaries that they are provided simply as a useful guide for parties seeking to avail of provisional application. 6. Ireland looks forward to considering the entire set of draft Guidelines and commentaries in greater detail and hopes to provide comments and observations by December 2019.

Document 9 Statement by Ms. Anne-Marie O’Sullivan Assistant Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 73rd Session Agenda Item 82: The Report of the International Law Commission on the Work of its 70th Session PART 3—Ch IX (Protection of the environment in relation to armed conflicts), Ch X (Succession of States in respect of State responsibility) and Ch XI (Immunity of State officials from foreign criminal jurisdiction) New York, 31 October 2018 Check against delivery Mr Chair, 1. Thank you for the opportunity to comment on the third cluster of issues contained in the International Law Commission’s Report. I will speak today on the topic of “Immunity of State officials from foreign criminal jurisdiction”. 2. Ireland expresses its warm appreciation to the Special Rapporteur, Ms ­Concepcion Escobar Hernández, for her Sixth Report, which begins the analysis of the important question of procedural aspects of immunity of State officials from foreign criminal jurisdiction. As the Rapporteur did not propose any draft ­articles in her Report, we understand that the debate which took place within the Commission on this topic was preliminary in nature and will be ­continued next year at the Seventy-first session of the Commission. Nevertheless, my delegation wishes to comment on some of the preliminary conclusions reached by the Special Rapporteur on the proviso that a more complete analysis of these particular procedural aspects of immunity will only be possible next year.

246  The Irish Yearbook of International Law 2018 Mr Chair, 3. In this regard, Ireland supports consideration of the dual components of procedural aspects: on the one hand, concerning issues such as timing and waiver, and on the other hand, full consideration of safeguards—including in the specific context of Article 7. We are of the view that such consideration should analyse safeguards protecting due process and other guarantees under international human rights law, as well as safeguards aimed at protecting the stability of international relations and avoiding political and abusive prosecutions. 4. We recognise that discussion this year focussed on the procedural aspects of immunities more generally rather than setting out procedural provisions and safeguards as they apply to particular draft articles, such as Article 7. Discussion of procedural safeguards at next year’s session will give the Commission a ­welcome opportunity to revisit elements of draft Article 7, including in conjunction with provisions on procedures and safeguards. 5. As mentioned on previous occasions, my delegation would welcome guidance from the Commission on those aspects of the draft articles put forward that constitute codification of existing international law and those which represent progressive development. Mr Chair, 6. We agree with the view expressed by some members that procedural provisions and safeguards are relevant to the draft articles as a whole. My delegation believes that the question of timing is one on which the Commission can offer valuable guidance. 7. We note that it is generally accepted that determinations in relation to the immunity of a State’s official from foreign criminal jurisdiction should be considered in limine litis. However, it would be useful if the Special Rapporteur and the Commission could consider this issue in more detail. Mr Chair, 8. As regards the material element, that is the acts of the forum States to which immunity applies, the Special Rapporteur identified detention, appearance as a witness and precautionary or preliminary measures as acts that could attract immunity. We note the Special Rapporteur and the Commission’s consideration of the impact of inviolability on immunity and in particular the distinctions discussed in this regard in relation to immunity ratione personae and immunity ratione materiae. Further, the discussion at plenary of the difference between a criminal investigation of a case more generally and criminal investigation of a particular case for the purposes of immunity was interesting. It is our view that these areas could benefit from further elaboration in the Special Rapporteur’s next report.

2018 Documents 247 9. Ireland notes the plan of future work suggested by the Special Rapporteur and supported by Commission members which aims to complete the first reading of the draft articles during the next session. In this context we note that a number of issues remain to be resolved, both in relation to procedural matters in the Seventh Report, as well as in relation to matters addressed in earlier reports. We note further that States will not have had an opportunity to comment on all draft articles before the planned first reading of all draft articles in 2019. ­Bearing in mind the significance of immunity of State officials from foreign criminal jurisdiction in international relations, my delegation would highlight the need to ensure that adequate time is allocated in order to complete full consideration of this important and complex topic. 10. We look forward to receiving the Special Rapporteur’s Seventh Report and to continuing this discussion of the procedural aspects of immunity next year.

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Document 10 Statement by Tánaiste at Dáil Debate on Brexit Withdrawal Agreement—Department of Foreign Affairs and Trade 21 November 2018 Ceann Comhairle As the Taoiseach has said, Ireland and the UK share profound and strong ties, across so many areas, which have benefitted greatly from both countries’ membership of the EU. There could never, therefore, be a positive outcome to our closest neighbour and friend leaving a European Union we joined together in 1973. That remains the case today—while we respect the UK vote, we think it is bad for Britain, bad for Europe and bad for Ireland too. Since the decision was taken in 2016 however—and even before it was reached—the Government has sought to ensure that we, in Ireland, can minimise the negative impacts of Brexit for this island. We have had clear objectives throughout, centring on protecting our peace process, the Good Friday Agreement and our Common Travel Area, and avoiding any return to the borders of the past. We couldn’t expect all EU governments would be familiar with these concerns. But we did feel they’d listen. And in truth, they have gone on to do so much more. Prime Ministers and Foreign Ministers took the time to visit the border for themselves and to see how it facilitates peace, North-South cooperation and our all-island economy. And the solidarity that flowed from these visits and meetings became a powerful shared bond across all 27 Member States in Brussels. Michel Barnier channelled that shared outlook and determination with great skill and subtlety throughout. He has been a formidable Chief Negotiator for the EU, leading a highly talented team that we have got to know well. Over the past two years, the complexity of the UK’s departure from the EU and the scale of the challenge it presents have become all too clear. The draft Withdrawal Agreement which has been achieved by both sets of negotiators represents real compromise by both sides. It provides the best way of ensuring that the UK’s departure can happen in an orderly manner, avoiding the UK crashing out, with all the severe consequences that would bring. The Withdrawal Agreement covers all elements of the UK’s withdrawal from the EU. This includes the protection of UK and EU citizens’ rights, as well as protecting the current EU budget. It provides for the orderly winding down of current arrangements across the broad spectrum of EU cooperation, as well as the governance structures for the implementation of the agreement. It also includes Protocols on Gibraltar and the British sovereign bases in Cyprus. Importantly, the Agreement provides for a period of transition, up to December 2020, during which EU rules and regulations will

250  The Irish Yearbook of International Law 2018 continue to apply to the UK. This will allow for the negotiation of an agreement on the future relationship between the EU and the UK, which we hope will be deep and comprehensive. The transition period should also provide certainty to citizens and business, as we continue our preparations for a new relationship with the UK outside the EU. It is welcome that the agreement now includes an option to extend this transition if more time is needed to complete negotiations and conclude a future agreement—something I have long argued may indeed be necessary. Ceann Comhairle Crucially, this draft Agreement meets Ireland’s key objective of protecting the Good Friday Agreement in all its parts, with a Protocol on Ireland and Northern Ireland, to address issues specific to this island. The Protocol underpins, in a dynamic way, continuing North-South cooperation and the all-island economy. It acknowledges the Common Travel Area, whereby Irish and British people can live, work, study, and access healthcare, social security and public services in each other’s jurisdictions. The Agreement includes important commitments to ensure no diminution of rights, safeguards and equality of opportunity as set out in the Good Friday Agreement and confirms that people in Northern Ireland will continue to enjoy rights as EU citizens. This will remain a significant priority for the Government throughout the Brexit process—we will do our utmost to ensure that the rights of citizens in Northern Ireland are protected to the fullest possible extent. The Withdrawal Agreement provides for continued support for the North-South PEACE and INTERREG funding programmes. It also preserves the Single Electricity Market on the island of Ireland. Vitally, nothing in the Agreement will prejudice the constitutional status of Northern Ireland and the principle of consent as set out in the Good Friday Agreement. This is explicitly laid out in the very first clause of the first Article of the Protocol. Ceann Comhairle Most importantly, the Protocol includes a backstop to prevent the re-emergence of a hard border on this island in all circumstances. The backstop is an insurance policy, which we hope will never have to be used. It remains our priority to achieve a future EU-UK agreement that can in its own right maintain an open border, while protecting North-South cooperation and our all-island economy. The Withdrawal Agreement itself includes a ‘best endeavours clause’ that commits both sides to pursue this. Over the next two years we will be working closely with our EU partners to meet that commitment. However, if this is not possible within that time, the draft agreement provides for the transition period to be extended, once, for a limited time. If there is no subsequent agreement at the end of transition, then the backstop will apply. The UK-wide customs territory which would apply under the backstop will involve no tariffs or quotas, and includes well-established rules with regard to ensuring a level-playing field. Northern Ireland would remain aligned to those rules of the Single Market that are indispensable to avoiding a hard border. A review mechanism for the backstop allows that these provisions can cease to apply, in whole or part, once a better solution has been found. The Agreement makes clear, however, that this decision cannot be taken unilaterally but must be taken jointly by the EU and the UK. This translates the UK’s political commitment to avoid a hard

2018 Documents 251 border on the island of Ireland into a legal guarantee. I would like to pay tribute to Prime Minister May in following through in full on this important commitment. Ceann Comhairle The focus now is to ensure that the agreement will be endorsed by a special meeting of the European Council on 25 November, together with a political declaration on the framework for the EU-UK future relationship. The European Parliament will also have to provide its consent, before the EU formally conclude the Withdrawal Agreement. At the same time, the UK must ratify the Agreement according to its own constitutional arrangements. All going well—and I accept that is a significant caveat—from 30 March 2019, we will start the considerable work of negotiating the future relationship. Our goal has always been for this to be the closest possible partnership. The draft Political Declaration expresses the hope of all sides that it should be as deep and comprehensive as possible. In doing this of course, we must also maintain the integrity of the EU Single Market. Unfortunately, however, as we know very well, developments over the coming weeks cannot be taken for granted. The Government therefore continues to advance extensive and detailed Brexit preparedness and contingency work across all Departments and State Agencies. This addresses the full range of Brexit scenarios—to make sure Ireland is ready no matter what and come what may. The Government has focused on preparedness measures needed on an East-West basis, preparing our ports and airports. The first phase of a recruitment programme of approximately 1,000 staff, for customs and SPS controls, in addition to ICT and infrastructure measures is underway. This initial phase of recruitment will see staff in place by the end of March next year. The intention is that further recruitment will take place during the transition period. Planning is also in place to allow for these measures to be accelerated or adapted in the case of no deal. In a number of key areas, it will be at the EU level that the appropriate response and mitigation will be needed. We have also actively engaged with the European Commission, and its Brexit Preparedness Unit, on areas where the lead policy role lies with the EU. For instance, we are working closely with the Commission, and other affected Member States, to ensure continued effective use of the UK landbridge. This includes preparing EU ports to facilitate transit of EU products through the UK, once it leaves the EU. In Ireland, a cross-Departmental landbridge project group, chaired by my Department, coordinates our approach. This is a priority given its importance in getting Irish products to market in Europe, in particular with regard to the agri-food products. This work is intensifying and good progress is being made. The importance has been recognised and agreed in the Protocol to the draft Withdrawal Agreement, which reaffirms the commitment of the UK to facilitate efficient and timely transit. I welcome the UK’s formal notification of its intention to join the Common Transit Convention, which would play an important role in ensuring Irish access to EU using the landbridge. In our last two Budgets, we have already announced a wide array of supports for business. To better inform business and the public at large, the Government has also overseen a coordinated communication and outreach campaign through the Brexit website, social media and public events. The Getting Ireland Brexit Ready public information campaign

252  The Irish Yearbook of International Law 2018 has seen very successful outreach events held throughout October in Cork, Galway, Monaghan and Dublin, with further events this week in Limerick and next week in Letterkenny. In conclusion, Ceann Comhairle, we are grateful for the support and advice received from all sides of the House. We need to sustain this effort now—leaders and spokespersons with sister parties in the UK need to ensure our British colleagues are fully seized of the protections for this island and our peace process in the Agreement currently on the table. And I am on the record as stating that parties with a vote in these landmark decisions should use that franchise in the interests of all people on this island. As Theresa May has acknowledged, these are now difficult days as she tries to gain support in the House of Commons for this hard-won deal. We can only hope the arguments which hold sway in the coming weeks are economic, practical and aware of our shared history, rather than forgetful of all we’ve overcome. Support of this house for the draft Withdrawal Agreement will send a strong signal ahead of the European Council this Sunday that Ireland is behind this deal. I therefore ask the Dáil to support the motion.