Bliainiris Éireannach an Dlí Idirnáisiúnta The Irish Yearbook of International Law Volume 9, 2014 9781509909186, 9781509909216, 9781509909209

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BLIAINIRIS ÉIREANNACH AN DLÍ IDIRNÁISIÚNTA IMLEABHAR 9 THE IRISH YEARBOOK OF INTERNATIONAL LAW VOLUME 9 The Irish Yearbook of International Law (IYIL) supports research into Ireland’s practice in international affairs and foreign policy, filling a gap in existing legal scholarship and assisting in the dissemination of Irish thinking and practice on matters of international law. On an annual basis, the Yearbook presents peer-reviewed academic articles and book reviews on general issues of international law. Designated correspondents provide reports on international law developments in Ireland, Irish practice in international bodies, Ireland and the Law of the Sea and the law of the European Union as relevant to developments in Ireland. In addition, the Yearbook reproduces key documents that reflect Irish practice on contemporary issues of international law. Publication of the Irish Yearbook of International Law makes Irish practice and opinio juris more readily available to Governments, academics and international bodies when determining the content of international law. In providing a forum for the documentation and analysis of North-South relations, the Yearbook also makes an important contribution to post-conflict and transitional justice studies internationally. As a matter of editorial policy, the Yearbook seeks to promote a multilateral approach to international affairs, reflecting and reinforcing Ireland’s long-standing commitment to multilateralism as a core element of foreign policy.

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Bliainiris Éireannach an Dlí Idirnáisiúnta Imleabhar 9, 2014 Curtha in Eagar ag

Fiona de Londras agus Siobhán Ní Mhaolealaidh

The Irish Yearbook of International Law Volume 9, 2014 Edited by

Fiona de Londras and Siobhán Mullally

OXFORD AND PORTLAND, OREGON 2017

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

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The Editors 2017 The Editors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2016. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-918-6 ePDF: 978-1-50990-920-9 ePub: 978-1-50990-919-3 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

EDITORIAL BOARD

Members of the Advisory Board Lord Lester of Herne Hill QC Professor Conor Gearty, London School of Economics and Political Science Professor Gráinne de Búrca, New York University Judge Teresa Doherty, Special Court for Sierra Leone Ms Patricia O’Brien, Permanent Representative of Ireland to the United Nations and other International Organisations in Geneva Editors-in-Chief Professor Fiona de Londras, Professor of Global Legal Studies, University of Birmingham Professor Siobhán Mullally, University College Cork Editorial Board Professor Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Dr Dug Cubie, University College Cork Dr Shane Darcy, Irish Centre for Human Rights, NUI Galway Professor Jeffrey L. Dunoff, Temple University Professor Imelda Maher, University College Dublin Professor Joseph McMahon, University College Dublin Professor Fionnuala ní Aoláin, University of Minnesota and Transitional Justice Institute, Ulster University Dr Aoife O’Donoghue, Durham University Professor Michael O’Flaherty, National University of Ireland, Galway Professor Gerard Quinn, National University of Ireland, Galway Professor Jaya Ramji-Nogales, Temple University Professor Philippe Sands, University College London Professor William Schabas, Middlesex University Correspondents Dr Fiona O’Regan, Human Rights in Ireland in 2014 Dr Dug Cubie, Ireland and International Law in 2014 Dr Roderic O’Gorman, Ireland and the European Union in 2014 Prof. Brice Dixon, Human Rights in Northern Ireland in 2014 Prof. Ronán Long, Irish State Practice on the Law of the Sea in 2014

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Table of Contents Editorial1 Articles ‘To Unite Our Strength to Maintain International Peace and Security’: The International Response to the Syrian Civil War & the Global Discourse on State Sovereignty Seán Butler

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The Right to Inclusive Education: Article 24 of the UN Convention on the Rights of Persons with Disabilities and the Irish Experience Andrea Broderick

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Accountability for Violations of International Humanitarian Law in Domestic Courts: Can War Crimes be Prosecuted in Ireland? Amina Adanan

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Notes and Comments Occupying the Continental Shelf?—A Note Considering the Status of the Continental Shelf Delimitation Agreement Concluded between Turkey and the TRNC during the Belligerent Occupation of Northern Cyprus Susan Power

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Correspondent Reports Ireland and International Law 2014  Dug Cubie

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Human Rights in Ireland 2014 Fiona O’Regan

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Human Rights in Northern Ireland 2014 Brice Dickson

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Ireland and the European Union—2014 Roderic O’Gorman

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Irish State Practice on the Law of the Sea 2014 Ronán Long

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viii  The Irish Yearbook of International Law 2014 Documents Universal Periodic Review, Ireland: National Interim Report, March 2014

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Treaty Series 2014 N°1, Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing a Single Maritime Boundary between the Exclusive Economic Zones of the two countries and parts of their Continental Shelves. Done at Dublin on 28 March 2013, Notifications of Acceptance exchanged at London on 31 March 2014, Entered into force on 31 March 2014

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Statement by H.E. Mr. David Donoghue, Permanent Representative at the UN Security Council Open Debate: Women, Peace and Security­—Sexual Violence in Conflict, New York, 25 April 2014

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Guidelines Relating to the Employment of Private Domestic Employees by Accredited Members of the Mission 

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Statement by the Minister for Foreign Affairs and Trade of Ireland, Mr. Charlie F ­ lanagan, T.D. to UNGA 69, New York, 29 September 2014

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Statement by Mr. James Kingston, Legal Adviser, Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 69th Session, New York, 31 October 2014

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Statement by H.E. Mr. David Donoghue, Permanent Representative at the UN Security Council Open Debate on Women, Peace and Security, New York, 28 October 2014

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Statement by Mr. Tim Mawe, Deputy Permanent Representative at the UN Security Council Open Debate on Working Methods, New York, 23 October 2014

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Statement by Mr James Kingston, Legal Adviser, Department of Foreign Affairs and Trade at the Sixth Committee, United Nations General Assembly 69th Session, New York, 27 October 2014

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Editorial

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HE NINTH VOLUME of the Irish Yearbook of International Law engages with contemporary issues in international law, raising questions both as to the conceptual underpinnings of international law in relation to the Responsibility to Protect doctrine, and state practice in fields such as Law of the Sea and belligerent occupation, prosecution of war crimes in domestic courts, and the evolving field of international disability law. Adanan’s article examines the possible legal basis for the prosecution of war crimes in Irish courts, and the limited engagement to date with customary international law in legal practice. She examines not only the gaps that arise in terms of the role of domestic courts in combating impunity for violations of international humanitarian law, including war crimes, but also the reluctance of courts to embrace an expansive role for custom in domestic law. The limited engagement with customary international law is not, of course, unique to Irish courts. A lack of familiarity with custom as a source of international law, and the uncertainty that can arise in the process of identifying a customary norm, have contributed to more restrictive engagement by domestic courts with customary international law. Butler’s opening article examines the troubled trajectory of the Responsibility to Protect (R2P) doctrine and its relevance for debates as to the legality or otherwise of intervention in the ongoing civil war in Syria. The legacy of intervention in Libya for the evolution of the normative underpinning of R2P, and contestation by BRICS states (Brazil, Russia, India, China, and South Africa), in particular, of the claimed legality of that intervention, is explored. While the criticisms advanced by Russia and China of the NATO-led intervention in Libya have been the subject of academic commentary, the positions taken by India, South Africa and Brazil are less well known. Butler notes the continuing elusiveness of a coherent concept of restricted sovereignty, and of legitimacy for intervention as envisaged by proponents of the R2P doctrine. State practice continues to diverge, and, as he notes, polarisation within the Security Council mitigates against the taking of ‘collective action, in a timely and decisive manner’, as envisaged in the Outcome Document of the 2005 United Nations World Summit1 and formulated in the SecretaryGeneral’s 2009 Report on Implementing the Responsibility to Protect.2 Broderick’s article examines the concept of inclusive education and the social model of disability underpinning Article 24 of the UN Convention on the Rights of Persons with Disabilities (CRPD). As she notes, effective compliance with the obligations imposed by Article 24 would prove a challenge for Ireland, both in terms of the legislative and policy

1  2 

UN Doc A/RES/60/1, para 138–40. UN Doc A/63/677.

2  The Irish Yearbook of International Law 2014 framework on educational practice, and educational content. It is interesting to note that although Ireland has not yet ratified the UN CRPD, at both the level of research and scholarship, and state practice, the standards set by the CRPD continue to be a key point of reference for debates on reform, reflecting the normative pull of the Convention itself. The EU has of course ratified the CRPD, and as documented by De Búrca elsewhere,3 the European Community (as it then was) played a key role in the drafting process— primarily with the aim of promoting its own disability discrimination model rather than the more ‘experimentalist’ model ultimately adopted in the Convention text. The experimentalist model of disability law reform is not one that has, as yet, been fully embraced in Ireland. In advance of ratification, Broderick’s analysis highlights the central role that the reform of Irish education practice should take if Convention obligations are to be effectively implemented on the ground. The Law of the Sea has been, and continues to be, a critically important field of Irish practice in international law. In Power’s note on the Continental Shelf Delimitation Agreement concluded between Turkey and the disputed legal entity of the Turkish Republic of Northern Cyprus (TRNC), the questions of belligerent occupation and the interface with the practice of Law of the Sea are examined. The evolution of international humanitarian law as it applies to maritime territory, and the vesting of permanent sovereignty over natural resources in peoples and nations, are at the centre of this analysis. The significance of these disputed claims are of relevance beyond the particular context of TRNC, raising issues familiar to contentious legal proceedings on delimitation of the Continental Shelf and maritime boundaries more generally. Continuing their role in disseminating Irish practice in international law, the correspondent reports document and analyse state practice in Law of the Sea, international law, Ireland’s relationship with the European Union as a global actor, and human rights in both Northern Ireland the Republic of Ireland. The reports continue to provide a rich resource for international lawyers interested in following Irish state practice, relevant to both the formation of international law and its progressive development. Supplementing the correspondent reports, it is always a pleasure to review and present selected documents reflecting key moments in Irish state practice in international law. In 2014, these include new Guidelines relating to the Employment of Private Domestic Employees by Accredited Members of the Mission, Agreement between Ireland and the United Kingdom establishing a Single Maritime Boundary between the Exclusive Economic Zones of the two countries and parts of their Continental Shelves, and a Statement by HE Mr David Donoghue, Permanent Representative at the UN Security Council open debate on Women, Peace and Security—Sexual Violence in Conflict. The Statement focuses on the question of how to translate normative progress on international law and sexual violence, into more widespread change on the ground. The specific situation of Myanmar’s transition to democracy and the need to address current and historical human rights abuses, including crimes of sexual violence, is noted.

3  De Búrca, G, ‘The EU in the Negotiation of the UN Disability Convention’ (2010) 35 European Law Review 174.

The Irish Yearbook of International Law 3 Ireland’s engagement with the work of the International Law Commission includes statements on the Duty to Prosecute or Extradite, and links with the ongoing consideration by the International Law Commission on the Scope and Application of the Principle of Universal Jurisdiction, Immunity of State Officials from Foreign Criminal Jurisdiction and Interpretation of Treaties. The importance of such contributions and the role of state practice in the formation of international law is evident here in this selection of documents. We hope, as ­Editors of the Yearbook that continued dissemination of Irish practice will contribute to further research and scholarship on Ireland’s contribution to the development of international law. Siobhán Mullally and Fiona de Londras

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Articles

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‘To Unite Our Strength to Maintain International Peace and Security’: The International Response to the Syrian Civil War & the Global Discourse on State Sovereignty SEÁN BUTLER*

INTRODUCTION

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HE INTRACTABILITY OF the post-Arab Spring civil war in Syria has exacted a massive humanitarian toll on the civilian population, with figures reported at the United Nations (UN) listing 250,000 dead, over 11 million displaced either in Syria or as refugees abroad, and ‘much of the remaining population—some 13.5 million people—in dire need of humanitarian assistance’.1 Given these figures and the ongoing threat to the population, the response of the international community to the conflict has been anaemic, with the most notable events being a peace process mediated by Kofi Annan that collapsed in mid-2012,2 a hastily-brokered agreement involving the US and Russia to dismantle the Syrian chemical weapons programme in the aftermath of an attack on the town of Ghouta in 2013,3 and a series of UN Security Council Resolutions authorising the delivery of humanitarian assistance into Syria without the direct consent of the Syrian Government.4 The paucity of robust responses to the Syrian crisis has partly been a function of deadlock within the UN Security Council over the best means to proceed, and has * 

Lecturer in Law, University College Cork. Email: [email protected]. Security Council, The Situation in the Middle East: Report of the Secretary-General on the Implementation of Security Council Resolutions 2139 (2014), 2165 (2014), 2191 (2014) and 2258 (2015) (S/2016/60), 27 January 2016, S/PV.7612, 2. 2  See Gowan, R and Dreisbach, T, ‘United Nations Supervision Mission in Syria (UNSMIS)’ in Koops, J et al (eds), The Oxford Handbook of United Nations Peacekeeping Operations (Oxford, Oxford University Press, 2015) for a fuller discussion of this mission. 3  US Department of State Office of the Spokesperson, Framework for the Elimination of Syrian ­Chemical Weapons, 14 September 2013, available at: www.state.gov/r/pa/prs/ps/2013/09/214247.htm, accessed 18 ­February 2016. 4 UN Security Council, Security Council Resolution 2165 (2014) [on the humanitarian situation in the Syrian Arab Republic and the establishment of a monitoring mechanism], 14 July 2014, S/RES/2165; UN Security Council, Security Council Resolution 2191 (2014) [on the humanitarian situation in the Syrian Arab Republic and the establishment of a monitoring mechanism], 17 December 2014, S/RES/2191; UN Security Council, Security Council Resolution 2258 (2015) [on the humanitarian situation in the Syrian Arab Republic and the establishment of a monitoring mechanism], 22 December 2015, S/RES/2258. 1  UN

8  The Irish Yearbook of International Law 2014 i­ncorporated both political and legal concerns. This article seeks to focus primarily on the latter, in particular how the ‘Responsibility to Protect’ (R2P) doctrine5 has intersected with the conflict and the international responses therein. In this regard, it will focus on two particular aspects of the international response to Syria: the use by China and Russia of their veto power to block Security Council Resolutions on Syria on three occasions in 2011 and 2012, and the turn to the consideration and later implementation of unilateral military actions by Western states in response to the chemical weapons question in 2013 and in tackling the Islamic State jihadist group in 2015. The analysis in this article is chiefly focused on the discourse concerning international action over Syria, as evidenced in the debates at the Security Council, government documents and speeches by political leaders. This article will argue that the Security Council deadlock over Syria partly occurred because the controversy concerning NATO’s intervention into Libya in 2011 contributed to a return to a pre-R2P approach to international intervention: the ‘BRICS’6 states moved away from the fragile consensus on sovereignty that underpinned the R2P doctrine and embraced a more Westphalian view of the principle, a move that provoked Western states, in response, to turn to unilateral action to pursue their goals. This resulted in a polarised Security Council that could no longer agree on either the normative content of contemporary sovereignty or on the appropriate policy approach to conflict in Syria. The article will be divided into four sections. The first section will offer a brief introduction to R2P and some necessary context on the operationalisation of the doctrine prior to Syria. The second section will discuss the three draft Resolutions on Syria vetoed between October 2011 and July 2012, analysing the justifications offered by Russia and China for these vetoes and how these justifications operated within the interpretive framework of R2P and contemporary sovereignty. The third section will discuss the turn to unilateralism in 2013, first analysing the legality of the proposed ‘right to humanitarian intervention’ that arose in scholarly discourse in response to the Ghouta chemical weapons attack, and second discussing the consequences of the turn to unilateralism for the global discourse on sovereignty and the pluralist world order. The fourth section will offer some concluding remarks and analysis of the current state of the R2P doctrine, in the wake of continuing failures in responding to conflict and a humanitarian crisis in Syria. R2P: INTRODUCTION AND PRE-SYRIA CONTEXT

The R2P doctrine was formulated in 2001 by the Independent Commission on Intervention and State Sovereignty (ICISS), an entity established by the Canadian government to address the question of humanitarian intervention in international law in response to the failures of UN action in Rwanda7 and Srebrenica8 and NATO’s ‘illegal but ­legitimate’ 5  International Commission on Intervention and State Sovereignty, (ICISS), The Responsibility to Protect (Ottawa, International Development Research Centre, 2001); UN General Assembly, 2005 World Summit Outcome Document, 24 October 2005, A/RES/60/1, paras 138–39. 6  Brazil, Russia, India, China and South Africa. 7 See Prunier, Gerard, The Rwanda Crisis, 1959-1994: History of a Genocide (London, Hurst & Co Publishers, 1999) for a full history. 8  Landgren, K, ‘Safety Zones and International Protection: A Dark Grey Area’ (1995) 7 International Journal of Refugee Law 436–58, 444–47.

Articles—Butler 9 intervention in Kosovo in 1999.9 Deriving from a normative history that included Bernard Kouchner’s ‘right to intervene’10 and Francis Deng’s ‘sovereignty as responsibility’,11 the R2P doctrine posited a shift in the foundation of state sovereignty from ‘control’ to ‘responsibility’,12 and thereby argued that the international community had a secondary responsibility to protect civilian populations from atrocity crimes,13 should the state in question prove unable or unwilling to discharge its primary responsibility. International action would range from non-coercive diplomacy to more robust mechanisms, with military intervention utilised as a last resort.14 The R2P doctrine was endorsed by the UN General Assembly in 200515 and by the Security Council in 2006.16 While ICISS countenanced military action by regional organisations or ad hoc coalitions in the event of Security Council deadlock,17 the UN version supported only the Security Council in taking such measures. R2P was thus integrated into the pre-existing UN Charter framework on the use of force, with the doctrine’s military aspects effectively operating as an interpretive modifier on the Security Council’s Article 39 mandate to ‘maintain or restore international peace and security’,18 thereby incorporating the prevention and halting of atrocity crimes into the Council’s Chapter VII exception to the prohibition on interference in domestic matters, as recognised in Article 2(7) of the Charter.19 In this regard, it is a continuation of Council practice in which the interpretation of Article 39 has expanded from a strict Westphalian construction towards the consideration of action within ‘the economic, social, humanitarian and ecological fields’ to tackle issues that can be characterised as being threats to international peace and security.20 R2P formed a part of the international diplomatic response to the crises in Darfur21 and Kenya22 in the mid-2000s, but the limited and non-forceful nature of these invocations meant that the doctrine remained ‘something of a diplomatic abstraction’.23 The Security Council first invoked R2P in a military context in Resolution 1973, which authorised a military intervention (primarily in the form of a no-fly zone) against the 9  Independent International Commission on Kosovo, The Kosovo Report (Oxford, Oxford University Press, 2000) 4. 10  Bettati, M and Kouchner, B, Le Devoir d‘Ingérence: Peut-on les Laisser Mourir? (Paris, Editions Denoel, 1987). 11  Deng, F et al, Sovereignty as Responsibility: Conflict Management in Africa, (Washington, Brookings Institute, 1996). 12 Evans, G, The Responsibility to Protect: Ending Mass Atrocities Once and For All (Washington, Brookings Institute, 2008) 38. 13  In the UN World Summit version of R2P (n 5), this was specifically narrowed to incorporate genocide, crimes against humanity, war crimes and ethnic cleansing. 14  ICISS (2001) (n 5) xi–xiii. 15 UNGA, 2005 World Summit Outcome (n 5). 16  UN Security Council, Security Council Resolution 1674 (2006) [Protection of civilians in armed conflict], 28 April 2006, S/RES/1674. 17  ICISS (2001) (n 5) 53. 18  Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 39. 19  ibid, Article 2(7). 20 UN Security Council, Decision of 31 January 1992 (3046th Meeting): Statement by the President, 31 January 1992. 21  Bellamy, Alex, Global Politics and the Responsibility to Protect: From Words to Deeds (Oxon, Routledge, 2011) 53–54. 22  ibid, 41. 23  Quote by Simon Adams in Wheeler, W, ‘Why the World’s “Responsibility to Protect” Extends to Libya but Not Syria’, Good Magazine, 4 April 2012.

10  The Irish Yearbook of International Law 2014 Libyan ­government of Colonel Muammar Gaddafi in March 2011.24 The intervention was undertaken by a coalition spearheaded by NATO, which was accused of disregarding the mandate established by Resolution 197325 by conducting offensive operations against the Gaddafi regime’s command and control infrastructure, leading to the overthrow of the government in August 2011. The decision of NATO to interpret its civilian protection mandate to permit offensive operations and ultimately enact regime change echoed a similar strategy also undertaken in 2011 by the United Nations Operation in Cote d’Ivoire (UNOCI) peacekeeping force, which contributed to the overthrow of the de facto Ivorian government of Laurent Gbagbo in order to fulfil its mandate of civilian protection outlined in Resolutions that invoked the language of R2P.26 NATO’s actions in Libya were condemned most vociferously by the loose alliance known as ‘BRICS’. In November 2011, a Russian Ministry for Foreign Affairs spokesperson argued that NATO’s approach to R2P in Libya threatened ‘the very foundation of world order’.27 Chinese Assistant Foreign Minister Le Yucheng declared in April 2012 that ‘Libya… has gone too far from the original interpretation of R2P’ and that ‘this kind of “protection” is a failed and irresponsible one applying “protect” as the cover of the brutal “intervention”’.28 At a November 2011 Security Council meeting on the protection of civilians, the Indian Ambassador to the UN criticised the fact that ‘several member-states [are] all too willing to expend considerable resources for regime change in the name of protection of civilians’,29 and the South African representative declared that ‘regime change, arming civilians and harming of civilians cannot be justified in the name of protecting civilians’.30 In its 2011 proposal on suggested parameters for R2P known as ‘Responsibility while Protecting’ (RwP), Brazil cautioned that ‘that the concept of the responsibility to protect might be misused for purposes other than protecting civilians, such as regime change’.31 As will be discussed below, the controversy over NATO’s actions would play a significant role in the Security Council’s response to Syria. SYRIA 2011–12: THREE VETOED RESOLUTIONS

The Security Council’s addressing of the Syrian Civil War, at least with regards to the early stages of the conflict, cannot be considered separately from the controversies c­ oncerning

24  UN Security Council, Security Council Resolution 1973 (2011) [on the situation in the Libyan Arab Jamahiriya], 17 March 2011, S/RES/1973. 25 See, for example, UN Security Council, Letter dated 15 September 2011 from the Secretary-General addressed to the President of the Security Council (S/2011/578), 16 September 2011, S/PV.6620, 3. 26  For a fuller discussion on the actions of UNOCI and the question of whether regime change can be legally permitted under a Security Council Resolution, see Butler, S, ‘Separating Protection from Politics: The UN Security Council, the 2011 Ivorian Political Crisis and the Legality of Regime Change’ (2015) 20(2) Journal of Conflict and Security Law 251–76. 27  Kurowska, X, ‘Multipolarity as a Resistance to Liberal Norms: Russia’s Position on the Responsibility to Protect’ (2014) 14(4) Conflict, Security & Development 489–508, 501. 28 Le Yucheng, ‘China’s Relations with the World at a New Starting Point’, Speech delivered at the China Institute of International Studies (CIIS) Forum, 10 April 2012, Text available at: www.ciis.org.cn/ english/2012-04/12/content_4935720.htm, accessed 19 February 2016. 29  UN Security Council, Protection of Civilians in Armed Conflict, 9 November 2011, S/PV.6650, 18. 30  ibid, 21. 31  Annex to UN Security Council, Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General, 11 November 2011, S/2011/701.

Articles—Butler 11 Libya and Cote d’Ivoire. In particular, the experience of Libya made the BRICS members of the Security Council32 extremely reticent about authorising any form of military operation in Syria. This reticence, in turn, provoked a return to a more Westphalian interpretation of sovereignty as opposed to the responsibility-oriented configuration that forms the core of R2P, implicitly accepted in the successful passing of Resolution 1973 at the Security Council.33 As Edward Luck has argued, the impact of the Libya situation has been to generate a ‘buyer’s remorse’ towards R2P,34 with the result that ‘Syrians have paid the price of NATO excesses in Libya’.35 How this ‘buyer’s remorse’ has impacted upon conceptions of sovereignty in the Security Council will be addressed below. Between October 2011 and July 2012, three draft Security Council Resolutions were vetoed by China and Russia. On 4 October 2011, a draft Resolution sponsored by four European states that ‘[called] on the Syrian Government to halt its violent offensive at once’ and ‘[recalled] the Syrian Government’s primary responsibility to protect its population’36 was defeated. Explaining its veto, Russia stated that: The situation in Syria cannot be considered in the Council separately from the Libyan experience. The international community is alarmed by statements that compliance with Security Council resolutions on Libya in the NATO interpretation is a model for the future actions of NATO in implementing the responsibility to protect… we are prepared to develop a genuinely collective and constructive position for the international community and not get involved with… attempts at violent regime change.37

Additionally, China argued that the draft failed to comply with the UN Charter and the principle of non-intervention in the domestic affairs of a state.38 A second draft Resolution, co-sponsored by 11 members of the Arab League and eight other states, was placed before the Council on 4 February 2012. The draft Resolution ‘[condemned] the continued widespread and gross violations of human rights and fundamental freedoms by the Syrian authorities’, but noted that ‘nothing in this resolution authorizes measures under Article 42 of the Charter’.39 Russia justified its veto by arguing that the draft ‘did not adequately reflect the true state of affairs in Syria and sent a biased signal to the Syrian sides’.40 Following the failure of a six-point peace plan drafted by Kofi Annan and its accompanying ceasefire supervised by the UN Supervision Mission

32  China and Russia are permanent members of the Security Council. Brazil was a non-permanent member of the Council in 2010 and 2011, and India and South Africa were non-permanent members for 2011 and 2012. 33  Brazil, China, India and Russia abstained on Resolution 1973, and South Africa voted in favour of it. The Chinese and Russian abstentions were of extra significance given their power to defeat the Resolution through the use of a veto. UN Security Council, The Situation in Libya, 17 March 2011, S/PV.6498. 34  Luck, E, ‘The Responsibility to Protect: The First Decade’ (2011) 3 Responsibility to Protect 387–99, 392. 35  Thakur, R, ‘R2P after Libya and Syria: Engaging Emerging Powers’ (2013) 36(2) Washington Quarterly 61–76, 70. 36  UN Security Council, France, Germany, Portugal and the United Kingdom of Great Britain and Northern Ireland: Draft Resolution, 4 October 2011, S/2011/612, 1. 37  UN Security Council, On the Situation in the Middle East, 4 October 2011, S/PV.6627, 4. 38  ibid, 5. 39  UN Security Council, Bahrain, Colombia, Egypt, France, Germany, Jordan, Kuwait, Libya, Morocco, Oman, Portugal, Qatar, Saudi Arabia, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland and United States of America: Draft Resolution, 4 February 2012, S/2012/77, 1. 40  UN Security Council, On the Situation in the Middle East, 4 February 2012, S/PV.6711, 9.

12  The Irish Yearbook of International Law 2014 in Syria in mid-2012,41 France, Germany, Portugal, the UK and the US presented a draft Resolution before the Security Council on 19 July 2012. The Resolution condemned the Syrian government’s violation of the six-point plan and increasing use of heavy weapons on population centres, but also explicitly condemned ‘human rights abuses by armed opposition groups’.42 The February 2012 draft included an explicit disassociation of the Resolution from Article 42 of the Charter, likely introduced to assuage Chinese and Russian concerns about the possibility for creative interpretations of the Resolution following the controversy over Libya. When this Resolution was nonetheless vetoed, the July 2012 draft featured a return to more robust language: the Resolution sought to declare the situation to be ‘a threat to international peace and security’, recognise the Council as acting under Chapter VII, and threaten sanctions under Article 41 should Syria not comply with international demands within 10 days.43 As a result, the third use of the veto by China and Russia was unsurprising, with both states criticising the ‘unbalanced content’ of the draft.44 Rather than evidence of an approaching compromise being visible, the July 2012 draft text instead demonstrated that the Western and BRICS blocs were increasingly polarised in their perceptions of the conflict and entrenched in divergent positions on how the international community should address it. The Security Council debates on Syria offer some evidence as to why this was occurring. In particular, two arguments offered by the BRICS bloc are of interest to this discussion: first, that the three draft Resolutions were unreasonably biased against the Syrian government; and second, that the experience of Libya had made them suspicious of the intentions of the West and thus a more conservative approach was required. These arguments will be analysed below. Before this analysis is undertaken, it is necessary to recognise that these justifications for the BRICS position are necessarily incomplete, as they do not account for the wider political context of the Syrian conflict that colours the approach of China and Russia in particular. Both states have major economic links to the government of Bashar al-Assad,45 and additionally Russia has a strong strategic interest in maintaining control over its naval port at Tartus.46 Nevertheless, the position taken by

41  The six-point plan called on the Syrian government to: 1) commit to work with the Envoy to address the legitimate aspirations of the Syrian people; 2) commit to achieve a UN-supervised ceasefire; 3) ensure provision of humanitarian assistance; 4) release arbitrary detained persons; 5) ensure freedom of movement for journalists; and: 6) respect the right to associate and demonstrate. Full text available at: www.un.org/News/Press/ docs/2012/sc10583.doc.htm, accessed 19 February 2012. 42  UN Security Council, France, Germany, Portugal, United Kingdom of Great Britain and Northern Ireland and United States of America: Draft Resolution, 19 July 2012, S/2012/538. 43  ibid. 44  UN Security Council, On the Situation in the Middle East, 19 July 2012, S/PV.6810, 8–14. 45  The Assad regime is a major customer of both the Russian government and private Russian companies for arms and defence equipment, and Russia has a number of economic investments in Syria, focusing mostly in natural gas extraction. On this, see Zifcak, S, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13 Melbourne Journal of International Law 59–93, 91. China is heavily involved in Syria’s oil industry: the Al-Furat Petroleum Company, the main oil-producing entity in Syria, is part-owned by the state-owned China National Petroleum Corporation (CNPC). See www.cnpc.com.cn/en/Syria/country_index.shtml, accessed 19 February 2012. 46  Tartus gives Russia access to the Mediterranean Sea, and is consequently crucial to Russian interests for two reasons: first, as a warm-water and Europe-facing port, it ‘play[s] a role in compensating for Russia’s geographic deficiencies’ in a strategic sense; second, by establishing a presence in the Mediterranean, it increases the Russian ability to secure its interests in the Middle East. See Delman, E, ‘The Link Between Putin’s

Articles—Butler 13 these states on the Syria issue in the Security Council debates is insightful from an international legal perspective. They point to obstacles to the full integration of R2P into the normative landscape of international law. Biased Resolutions? The claims of bias forwarded by China and Russia focused on the emphasis in the draft Resolutions in condemning the Syrian government for its actions in the conflict, while insufficiently addressing the human rights violations and war crimes committed by the opposition side. There is merit to this claim, especially with regards to the first two draft Resolutions. The October 2011 draft Resolution ‘[called] on the Syrian Government to halt its violent offensive at once’ and ‘strongly [condemned] the continued grave and systematic human rights violations and the use of force against civilians by the Syrian authorities’,47 but made no mention of any human rights violations by the opposition side. Similarly, the February 2012 draft Resolution again ‘strongly [condemned] the continued grave and systematic human rights violations and the use of force against civilians by the Syrian authorities’ and ‘[demanded] that the Syrian government immediately put an end to all human rights violations and attacks against those exercising their rights’. While it did condemn all violence in Syria, it again made no specific mention of human rights violations by opposition groups.48 Such a biased approach is unreasonable, as there is strong evidence that opposition groups have committed war crimes, including murder, torture, hostage-taking and attacking protected cultural property.49 A greater attempt at balance was attempted in the July 2012 draft Resolution, in that it ‘condemn[ed] the continued widespread violations of human rights by the Syrian authorities, as well as any human rights abuses by armed opposition groups’,50 but was again vetoed by China and Russia on account of what they argued to be its unbalanced content. On this occasion, the claim of bias focused on the proposed actions: Russia noted that ‘the threats of sanctions were levelled exclusively at the Government of Syria’,51 and China contended that ‘its unbalanced content seeks to put pressure on only one party’.52 An alternative draft Resolution, composed by Russia but withdrawn during the course of the meeting, similarly condemned human rights violations by both sides of the conflict, but made no mention of sanctions in the event of non-compliance.53

Military Campaign in Syria and Ukraine’ The Atlantic, 2 October 2015, available at: www.theatlantic.com/­ international/archive/2015/10/navy-base-syria-crimea-putin/408694/, accessed 19 February 2016. Also see ‘The Economist Explains: Why Russia is Increasing its Military Presence in Syria’, The Economist, 22 S­ eptember 2015 for a further discussion on the particular importance to Russia of keeping the Assad regime in power. 47 

Draft Resolution, 4 October 2011 (n 36). Draft Resolution, 4 February 2012 (n 39). 49  See for example UN Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, 5 February 2013, A/HRC/22/59, 1. 50  Draft Resolution, 19 July 2012 (n 42). 51  UNSC (n 44) 9. 52  ibid, 13. 53  UN Security Council, Russian Federation: Draft Resolution, 17 July 2012, S/2012/547/Rev.2. 48 

14  The Irish Yearbook of International Law 2014 As such, the veracity of the third Resolution’s purported bias hinges on the legitimacy of threatening sanctions merely towards the government side. In this regard, the UK representative at the 19 July 2012 meeting argued that the threat of sanctions on the regime and the focus on its heavy weaponry was a function of the priority upon regime compliance emphasised by the then Joint Envoy Kofi Annan.54 This contention is supported by the speech made by Annan to the General Assembly on 7 June 2012, when he argued that ‘the first responsibility lies with the Government’ and ‘[…] as we demand, compliance with international law and the six-point plan, it must be made clear that there will be consequences if compliance is not forthcoming’.55 It is this deflection of ‘first responsibility’ and lack of proposed punitive consequences that separates the Russian alternative draft from the vetoed European draft, and argues against the sincerity of the Russian position claiming bias. While efforts to rectify the imbalance of the first two vetoed Resolutions were undertaken by the Western states that sponsored the third Resolution, Russia made no effort in its draft to meet the call for a more robust response to previous recalcitrance from the Assad regime. The Chinese position at the 19 July 2012 meeting was more nuanced in that it offered three additional justifications for its veto beyond its concerns of imbalance. Two of these, that the draft, ‘would seriously erode international trust and cooperation on the issue of Syria’ and that it ‘jeopardize[d] the unity of the Security Council’,56 spoke to concerns over the diplomatic process leading to the draft text, in that the Western sponsors eschewed the consensual approach that led to the creation of the United Nations Supervision Mission in Syria (UNSMIS) in favour of a more confrontational stance, both within the Security Council and against the Assad regime. The fourth justification, that the approach violated the principle of non-interference by imposing a solution on the Syrian people,57 is of particular interest to this article, and to the consequences for the evolution of the R2P doctrine. To fully analyse the significance of this particular argument, it is necessary to place the debate within the context of NATO’s actions in Libya and the impact on perceptions of the R2P doctrine. The Libyan Precedent The backlash to NATO’s perceived excesses in Libya is evident in the three Security Council meetings in 2011 and 2012 at which draft Resolutions on Syria were vetoed. Russia explicitly linked their use of the veto to the ‘Libya experience’ at the 4 O ­ ctober 2011 meeting, and declared that they would oppose any ‘attempts at violent regime change’ through the Security Council.58 Similar concerns at Western attempts to institute regime change were expressed at the meeting by India59 and South Africa.60 Russia again

54 

UNSC, 19 July 2012 meeting (n 44) 2–3. of speech available at: www.kofiannanfoundation.org/news-releases/remarks-to-the-un-generalassembly-by-joint-special-envoy-for-syria-kofi-annan/, accessed 20 February 2016. 56  UNSC, 19 July 2012 meeting (n 44) 13–14. 57  ibid, 13. 58  UNSC, 4 October 2011 meeting (n 37) 5. 59  ibid, 6.` 60  ibid, 11. 55 Text

Articles—Butler 15 accused Western states of ‘calling for regime change’ at the 4 February 2012 meeting.61 At the 19 July 2012 meeting, Russia expressed concerns that the draft Resolution ‘refused to exclude military intervention’,62 and China argued that ‘the future and fate of Syria should be independently decided by the Syrian people, rather than imposed by outside forces’.63 To the BRICS states, the question of regime change was central to the calculus concerning suitable international action in Syria. The Chinese position, in which the warning of future sanctions imposed in the third draft Resolution threatened the sovereignty of Syria, stands in stark contrast to their support for Security Council Resolutions 197064 and 197565 the previous year. In both of these Resolutions, sanctions were similarly placed on a government that was utilising force to retain power in a contested environment, but China made no reference to any possible violations of the sovereignty of either Cote d’Ivoire or Libya in the Security Council meetings at which these Resolutions were passed.66 The Chinese position on Syria reflected a much more restrictive conception of sovereignty than that utilised in the initial considerations of the crises in Cote d’Ivoire and Libya. Indeed, it can be argued that it relied upon a pre-R2P conception of sovereignty, in which the application of the Security Council’s Chapter VII powers was restricted by a Westphalian interpretation of its Article 39 mandate that did not incorporate the tackling of atrocity crimes under the ‘international peace and security’ umbrella.67 While it is difficult to fully distinguish correlation from causation in this instance (largely due to the complicating political factors discussed above), the fact that China’s perception of sovereignty regressed in its approach to the first high-profile mass atrocity situation post the Libyan intervention, is probably of some significance. Chinese rhetoric towards the Syrian crisis suggests that the backlash with regards to NATO’s actions in Libya has, in part, manifested in a re-entrenchment of international perceptions of sovereignty, away from the conditionality of ‘sovereignty as responsibility’ and back towards the classical Westphalian framework in which the principle of non-interference is a primary consideration. In the case of China, this re-entrenchment has likely occurred because the base logic operated by China towards R2P differs from the Western interpretation. As evidenced by a 2008 government position paper, China sees international military action under R2P as a complement to state sovereignty rather than acting against it, and as a corollary of this position, is only willing to support interventions that operate with the consent of the state in question.68 61 

UNSC, 4 February 2012 meeting (n 40) 9. UNSC, 19 July 2012 meeting (n 44) 8. 63  ibid, 13. 64  UN Security Council, Security Council Resolution 1970 (2011) [on targeted sanctions against members of the Government of Libya], 26 February 2011, S/RES/1970. 65  UN Security Council, Security Council Resolution 1975 (2011) [on targeted sanctions against individuals meeting the criteria set out in resolution 1572 (2004) on arms embargo against Côte d‘Ivoire], 30 March 2011, S/RES/1975. 66  UN Security Council, Peace and Security in Africa, 26 February 2011, S/PV.6491, 4; UN Security Council, On the Situation in Cote d’Ivoire, 30 March 2011, S/PV.6508, 6–7. 67  For a deeper discussion on interpretative issues of sovereignty in the Security Council, particularly with regards to Rwanda (1994) and Kosovo (1999), see Walling, C, ‘Human Rights Norms, State Sovereignty, and Humanitarian Intervention’ (2015) 37(2) Human Rights Quarterly 383–413. 68  Permanent Mission of the People’s Republic of China to the UN, Position Paper of the People’s Republic of China at the 63rd Session of the United Nations General Assembly, 16 September 2008, available at: www. china-un.org/eng/hyyfy/t512988.htm, accessed 20 February 2016. 62 

16  The Irish Yearbook of International Law 2014 From this perspective, the willingness of China to abstain rather than veto Security Council Resolution 1973 seems anomalous at first glance. At the 17 March 2011 meeting at which the Resolution was adopted, the Chinese representative justified this abstention by referencing the ‘special circumstances’ of the situation at hand and noting the ‘great importance’ China attached to the positions of the Arab League and the African Union.69 In essence, China was willing to permit action against Libya as an exception to its usual approach to the R2P doctrine. NATO’s subsequent actions in Libya, however, merely reinforced its view that state sovereignty was too sacrosanct to permit its erosion by offering a ‘blank cheque’70 to Western states to act under a more expansive interpretation of R2P. This view is evidenced in a 2014 government document on the international rule of law, which emphasised that: ‘Hegemonism, power politics and all forms of “new interventionism” pose a direct challenge to basic principles of international law including respect for sovereignty and territorial integrity and non-interference in other countries’ internal affairs.’71 A similar position on intervention and state sovereignty can be seen in a February 2013 Russian policy document titled, ‘Concept of the Foreign Policy of the Russian ­Federation’, which condemned ‘creative application’ of the law, declaring specifically that it was: […] unacceptable that military interventions and other forms of interference from without which undermine the foundations of international law based on the principle of sovereign equality of states, be carried out on the pretext of implementing the concept of ‘responsibility to protect’.72

From the perspective of China and Russia, NATO’s actions in Libya demonstrated that concerns about Western hegemony were justified, and consequently these states have returned to more restrictive conceptions of sovereignty as a bulwark against Western imperialism. This is a discouraging development as it threatens to return the apparent tensions between sovereignty and human rights to the centre of international legal discourse concerning international action against mass atrocities. In doing so, it reverses the progress made in the normative reconceptualisation of ‘sovereignty as responsibility’ centred upon R2P, a reconceptualisation that moreover was crucial to the willingness of the developing world to accept R2P over competing norms such as the ‘right to humanitarian intervention’.73 This normative regression has practical consequences, in that it points to a return to a polarised Security Council in which the conditional and Westphalian perceptions of sovereignty clash. Such clashes lead in turn to an increase in the pursuit of extra-legal or quasi-legal paths to achieve desired political aims. This has been demonstrated in

69 

UNSC, 17 March 2011 meeting (n 33) 10. Liu, T and Zhang, H, ‘Debates in China About the Responsibility to Protect as a Developing International Norm: A General Assessment’ (2014) 14(4) Conflict, Security & Development 403–27, 418. 71 Keck, Z, ‘4th Plenum: Rule of Law with Chinese Characteristics’, The Diplomat, 20 October 2014, available at: http://thediplomat.com/2014/10/4th-plenum-rule-of-law-with-chinese-characteristics/, accessed 20 ­February 2016. 72  Ministry of Foreign Affairs of the Russian Federation, ‘Concept of the Foreign Policy of the Russian Federation’, 12 February 2013, English translation available at: http://archive.mid.ru//brp_4.nsf/0/76389FEC168189 ED44257B2E0039B16D, accessed 20 February 2016. 73  On this, see for example Teitt, S, ‘The Responsibility to Protect and China’s Peacekeeping Policy’ (2011) 18(3) International Peacekeeping 298–312, 299–301. 70 

Articles—Butler 17 the response to the crisis in Syria since the three vetoed Security Council Resolutions discussed above, most notably in the countenance of unilateral military responses to the chemical weapons issue in 2013 by political leaders and academic commentators, and in the willingness of a number of states to undertake military action against the Islamic State group in 2014 and 2015, under the ostensible justification of individual and collective self-defence. State practice has effectively returned the discourse concerning intervention to prevent the commission of mass atrocities to the pre-R2P era. SYRIA 2013–2016: UNILATERAL MILITARY ACTIONS

With the Security Council deadlocked over action on Syria, the international response to the crisis turned towards unilateralism in 2013 in reaction to the potential use of chemical weapons in the conflict. US President Barack Obama first referred to the use of chemical weapons as a ‘red line’ for US military action in August 2012,74 and military action by the US appeared imminent after the Ghouta attack of August 2013, prevented only by a last-minute diplomatic effort by Russia that resulted in Syria becoming a signatory to the Chemical Weapons Convention.75 In a public address on 10 September 2013, Obama outlined four justifications for the use of force in response to the Ghouta attack: as deterrence against future use of chemical weapons by the Assad regime; to prevent their use in future by any Syrian government or terrorist organisation; as an act of collective selfdefence supporting Turkey, Jordan and Israel; and as an enforcement of the norm of non-use of weapons of mass destruction.76 From an international law point of view, the four justifications can be split into two categories: the first and fourth can be seen as an attempt to secure enforcement of international law and international legal norms; and the second and third can be perceived as acts of self-defence, both individual and collective. A restrictive view of the law on the use of force, in which the UN Charter’s rules are seen as authoritative and exhaustive, would perceive the use of force as being lawful only under a Chapter VII authorisation from the UN Security Council77 and in self-defence under Article 51.78 In that regard, only the latter category of justifications would potentially be prima facie legal, although it would arguably constitute an unreasonably broad understanding of self-defence, one closer to the controversial ‘pre-emptive self-defence’ doctrine of the George W Bush era79 than the more internationally accepted Caroline dictum.80 The former category, defence 74  The White House Office of the Press Secretary, ‘Remarks by the President to the White House Press Corps’, 20 August 2012, available at: www.whitehouse.gov/the-press-office/2012/08/20/remarks-president-white-housepress-corps, accessed 20 February 2016. 75  Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, Paris, 13 January 1993 (Entry into force, 29 April 1997). 76  Analysis of Obama’s speech in terms of these four justifications is provided in Stahn, C, ‘Between LawBreaking and Law-Making: Syria, Humanitarian Intervention, and “What the Law Ought to Be”’ (2014) 19(1) Journal of Conflict and Security Law 25–48, 27–28. 77  Charter of the United Nations (n 18), Articles 2(4) and 42. 78  ibid, Article 51. 79  For a fuller discussion of the legal framework governing pre-emptive self-defence, see Shah, N, ‘SelfDefence, Anticipatory Self-Defence and Pre-Emption: International Law’s Response to Terrorism’ (2007) 12(1) Journal of Conflict and Security Law 95–126. 80 The Caroline test derives from a series of correspondence between a British and an American diplomat concerning the legality of an attack on a steamboat during the Upper Canadian Rebellion of 1837. The test is

18  The Irish Yearbook of International Law 2014 of international law, would under the Charter system fall more readily into the purview of the Security Council as the global executive power rather than a state acting unilaterally.81 Given the questionable legality of Obama’s justifications under a strict reading of the Charter, it is unsurprising that advocates of US action in Syria sought to broaden the debate in the ensuing academic discourse. The work of two authors, Harold Koh and Daniel Bethlehem, are most significant in this regard. Koh argued that, ‘the Charter’s bar on national uses of force should be understood not as the end in itself, but a means for promoting the UN’s broader purposes’,82 and that: […] in the name of fidelity to the UN and this rigid conception of international law, leaders would either have to accept civilian slaughter or break the law, because international law offers no lawful alternative to prevent the slaughter.83

Koh’s alternative is to treat the situation in Syria as offering the potential to crystallise a new limited right of humanitarian intervention, in which a six-part test would be applied: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion, (3) Limited, Necessary, Proportionate and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends.84

Koh’s arguments operated mostly as an argument for lex ferenda, ie what the law could become. In contrast, Daniel Bethlehem argued that a right to intervention could be discerned from the current customary law. In his piece, Bethlehem criticised the: […] insufficiency of a narrow, traditionalist view of the law on [humanitarian intervention] and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need.

Consequently, he argued that it is possible to discern, ‘the emergence of a tightly constrained principle of humanitarian intervention that is consistent with traditional conceptions of customary international law’, drawing on an eight-point analytical thread that, among others, references the, ‘compelling objective of the United Nations’, the international law on non-forcible counter-measures, evidence of practice with regards to that a lawful invocation of self-defence would need to ‘show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. See Letter from Daniel Webster to Henry S Fox (24 April 1841) in 29 British and Foreign State Papers (1841–42) 1129–39 (1857). The Caroline test is considered part of customary international law (see, for example, Grimal, F, ‘Missile Defence Shields: Automated and Anticipatory Self-Defence’ (2014) 19(2) Journal of Conflict and Security Law 317–39, 327), although its relevance in the UN Charter era is disputed (see for example Tladi, D, ‘The Nonconsenting Innocent State: The Problem with Bethlehem’s Principle 12’ (2013) 107(3) American Journal of International Law 570–76, 572). 81  Pre-UN Charter, armed reprisals were accepted as punishment for violations of international law, but it is now generally accepted that this would violate Article 2(4). See Darcy, S, ‘Retaliation and Reprisal’ in Weller, M (ed), Oxford Handbook of the Use of Force in International Law (Oxford, Oxford University Press, 2015) 879–97. 82 Koh, H, ‘Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward’, EJIL: Talk!, 4 October 2013, available at: www.ejiltalk.org/syria-and-the-law-of-humanitarian-­ intervention-part-ii-international-law-and-the-way-forward/, accessed 20 February 2016. Koh points to the wording of Article 2(4) to support this contention, which includes the clause that the use of force is prohibited in ‘…any other manner inconsistent with the Purposes of the United Nations’. 83  ibid. 84  ibid.

Articles—Butler 19 humanitarian interventions and the emergence of R2P.85 I will discuss the Bethlehem/Koh position on two levels: first, as a viable proposition about the law; and second, as a point of reference within the ongoing discourse on intervention and sovereignty. Humanitarian Intervention as a Right under Customary International Law Both Bethlehem and Koh argue that humanitarian intervention could operate as a right of customary international law, separate but complementary to (and in certain cases, superseding) the Charter framework on the use of force. Bethlehem contends that this could occur in three ways: (a) the customary international law principle could sit alongside the UN Charter (following the reasoning of the International Court of Justice in the Nicaragua case); (b) the customary international law principle could operate at an interpretative level, by reference to the interpretative canon reflected in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), as regards the interpretation of the scope of Article 2(4) and other provisions of the UN Charter; and/or (c) the principle could be regarded as a supervening, later in time, principle of customary international law for purposes of filling in the gaps in, or even prevailing over elements of, the UN Charter.86

The first point to be made in this regard is that it is not immediately clear that customary exceptions or variations to the content of the Charter’s use of force rules are permitted in contemporary international law, on account of the widespread acceptance of the jus cogens nature of Article 2(4). The International Law Commission (ILC) has twice stressed this jus cogens character, in its 1966 commentary on Article 53 of the Vienna Convention on the Law of Treaties87 and in its 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts,88 a contention supported by the International Court of Justice in the same Nicaragua judgment upon which Bethlehem relies upon as a support for his line of argumentation.89 Additionally, Dapo Akande has argued that Article 103 of the Charter, which promulgates the supremacy of the Charter over other treaty obligations,90 could act as an additional obstacle to the customary-exception hypothesis. He argues that, ‘if States cannot by explicit agreement in a treaty free themselves from their Charter obligations, it seems strange to argue that they can do this by custom’.91

85  Bethlehem, D, ‘Stepping Back a Moment—The Legal Basis in Favour of a Principle of Humanitarian Intervention’, EJIL: Talk!, 12 September 2013, available at: www.ejiltalk.org/stepping-back-a-moment-thelegal-basis-in-favour-of-a-principle-of-humanitarian-intervention/. 86  ibid. 87  UN General Assembly, Reports of the International Law Commission to the General Assembly, 21 UN GAOR Supp No 9 Pt II, 19 July 1966, A/6309/Rev.1. 88  UN General Assembly, Report of the International Law Commission 53rd Session, GAOR, 56th Sess, Supp No 10, 10 August 2001, A/56/10, 283. 89  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, 14, 190. 90  Charter of the United Nations (n 18), Article 103. 91  Akande, D, ‘The Legality of Military Action in Syria: Humanitarian Intervention and the Responsibility to Protect’, EJIL: Talk!, 28 August 2013, available at: www.ejiltalk.org/humanitarian-interventionresponsibility-to-protect-and-the-legality-of-military-action-in-syria/.

20  The Irish Yearbook of International Law 2014 As such, Bethlehem’s (a) and (c) positions seem difficult to sustain. The (b) position, which argues for an interpretive impact similar to that undertaken upon the ‘international peace and security’ clause of Article 39 by the R2P doctrine, would provide the clearest procedural avenue for such a customary rule to emerge, but such an emergence would require strong international support in order to amend the content of the jus cogens norm deriving from Article 2(4). However, the claim that humanitarian intervention is currently accepted as an interpretive amendment to Article 2(4) is considerably weakened by the dearth of evidence in support of this notion. As Akande argues, ‘there is very little State support for the view that international law permits States to use force in other States on humanitarian grounds’,92 and the piecemeal evidence of state practice provided by Bethlehem is insufficient to overcome this. Additionally, Bethlehem’s citing of R2P as a link in his analytical chain is problematic in that it fails to distinguish the original ICISS version of R2P, in which military action outside the Security Council framework is countenanced, from the amended UN version, in which the Security Council is the only actor empowered to authorise military action.93 With regards to Koh’s contention that action in Syria could have acted as a crystallising moment for international law vis-à-vis humanitarian intervention, caution is advised on three grounds. First, the lack of international support for such an amendment to the Charter’s use of force rules discussed above suggests that an attempt to carve a customary law exception for humanitarian intervention would fail, thereby leaving any unilateral military action as merely an illegal act. Second, action taken under a supposed ‘right’ to humanitarian intervention would have threatened to further polarise the international community on the issue of military action to tackle atrocity crimes and thus reverse the gains achieved in this field since the 1999 Kosovo crisis, most notably through the R2P doctrine. Earlier endeavours to frame the debate in terms of a right to intervene were the subject of backlash from the developing world over concerns that it could act as a ‘Trojan horse’ for neo-colonial activities.94 Third, while Security Council deadlock over Syria is regrettable, it is far from clear that unilateral action by a powerful state or a coalition thereof is the next best option from a legitimacy perspective. One need only recall the fallout from the intervention by the ‘Coalition of the Willing’ in Iraq in 2003, to illustrate the potential harm to aspirations of a pluralist world order from such a move.95 An alternative means of undertaking internationally legitimate action in the absence of Security Council authorisation, one indeed suggested by Brazil in its RwP proposal,96 would be to resurrect the ‘Uniting for Peace’ mechanism, whereby the General Assembly can make recommendations for collective measures, ‘including… the use of armed force when necessary’, in the event that the Security Council ‘fails to exercise its primary responsibility for the maintenance of

92 

ibid. This distinction is crucial as it impacts Bethlehem’s claim as regards evidence of customary international law, in that the ICISS version of R2P was merely a proposal by the commission in question whereas it is the UN version that enjoys widespread international acceptance through its adoption by the international organisation. 94 Evans, G, The Responsibility to Protect: Ending Mass Atrocities Once and For All, (Washington, ­Brookings Institute, 2008) 32. 95  See for example Thakur, R, The United Nations, Peace and Security (Cambridge, Cambridge University Press, 2006) 223–44. 96  Annex to UN Security Council (n 31) 3. 93 

Articles—Butler 21 international peace and security’.97 While such a move by the General Assembly would undoubtedly be politically contentious, it would operate from a much stronger position of international legitimacy, given the requirement of support by two-thirds of the UN membership for such a Resolution to be adopted. The ‘Uniting for Peace’ mechanism is arguably also on much firmer evidential ground concerning proposed customary exceptions to the Charter’s use of force rules. The 2013 Syria Debate as a Reference Point in the Discourse of Sovereignty In his aforementioned piece, Koh contended that the ‘absolutist position’ that humanitarian intervention would violate Charter Article 2(4), ‘amounts to saying that international law has not progressed since Kosovo’.98 Leaving aside the issue that this ignores the interpretive modification to the Security Council’s mandate towards mass atrocities that is contributed by the R2P doctrine, there is a kernel of truth to Koh’s contention. The political discourse concerning international action in response to the 2013 Ghouta attacks is reminiscent of responses to the 1999 Kosovo crisis. Most striking in this regard is Koh’s contention that, ‘leaders would either have to accept civilian slaughter or break the law’, a comment that echoed a question posed by Antonio Cassese regarding Kosovo: ‘Should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation?’99 Just as in the 1999 Kosovo crisis, advocates of international action in response to the Ghouta attack argued that the inability of the Security Council to decide on appropriate collective action ought not to mark the endpoint of the legal discussion. Rather, it was argued that a mechanism to supplant the Council’s role in times of deadlock should be recognised. This aspect of the problem may be the Achilles heel of R2P, in that the doctrine sought to overcome the normative deadlock caused by the continuing prominence of the Westphalian model of sovereignty, but (in the UN version) did nothing to address the procedural deadlock caused by the Security Council veto. The failure of the R2P norm to fully re-shape perceptions of sovereignty in the Security Council exposed this ‘procedural’ deficiency and resulted in the re-emergence of the discursive themes that dominated the pre-R2P landscape. The regression of the debate in this manner demonstrates not only that the core disagreements over sovereignty have not been resolved, but also that some Western political leaders and academics have failed to learn the key lesson from the discursive aftermath of Kosovo: a consensus was reached on the need for robust international action against mass atrocities, but many states remained uncomfortable with providing a legal avenue through which unilateral military action would be permissible. The evolution undergone by R2P since its formulation in 2001 attests to this view. While action outside the Security Council framework was countenanced in the ICISS version of R2P, this aspect of the doctrine was dropped in the UN version, in favour of a retention of the existing rules on the use of force. Rather than bestow a post hoc ­legality

97 

UN General Assembly, Uniting for Peace, 3 November 1950, A/RES/377. Koh (n 82). 99 Cassese, A, ‘Ex Iniuria Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ (1999) 10 European Journal of International Law 23–30, 25. 98 

22  The Irish Yearbook of International Law 2014 upon NATO’s actions in Kosovo, the UN version of R2P sought instead to expand the remit of the Security Council to include action against atrocity crimes. The UN-R2P compromise, in which the possibility of Security Council deadlock in atrocity situations was accepted as the trade-off for retaining the Charter’s tight constraints on unilateral uses of force, may appear too restrictive to some Western governments and scholars, but does reflect a global consensus (albeit an implicit one). In returning the debate to consideration of a unilateral ‘right to humanitarian intervention’, Western leaders and scholars rejected this consensus. In this regard, the return to the ‘right to humanitarian intervention’ debate reflects a broader attack on the model of pluralistic world governance embodied in the UN system. The conditionality of sovereignty is a fundamental attribute of the Charter framework, particularly with regards to the role of the Security Council in maintaining international peace and security. By conceiving sovereignty in terms of ‘responsibility’ and empowering the Council and the UN more generally, with the secondary responsibility of protecting populations from mass atrocities, the UN version of R2P explicitly acknowledged this conditionality of sovereignty and bolstered the hierarchical nature of the relationship between sovereignty and intervention, by expanding Security Council power into areas that would traditionally have fallen within the ‘domestic jurisdiction’ of the state. The UN-R2P model, in effect, reinforces the constitutive nature of the post-1945 world order, in that a right of sovereignty bestowed upon a state by the international community can revert to that community in the event that this sovereignty is abused in specific ways.100 In contrast, a state asserting a right to humanitarian intervention is making a claim to universalism, but doing so without the constitutive legitimacy through the Charter framework, that underpins the claims of the UN to such. By establishing a ‘red line’ with regards to chemical weapons use, the US is making a claim that it, and not the UN, is the protector of international law, and in that vein can act as the arbiter of when that law has been violated and how such violations should be punished. Reprisals and countermeasures are a useful (and perhaps necessary) mechanism of enforcing bilateral obligations and punishing transgressions thereof in a classically decentralised system of international law, but it does necessarily follow that such actions are a legitimate means of enforcing erga omnes obligations in a system where such competence is delegated to a centralised executive power, particularly when such actions explicitly violate a core prohibition of the centralised system.101 The issue here, of course, is that the contemporary international legal system is neither wholly centralised nor wholly decentralised, but is rather a hybrid of the two: some competences regarding the enforcement of international law rest with the UN, but states must also rely on self-help as an enforcement mechanism. This complexity is exacerbated by the regular inability of the Security Council to discharge its competences, and the lack of widely accepted procedures for delegating such competences elsewhere in the event of these failures. The threatened US action in Syria thus would have fallen s­ omewhere

100  For a deeper discussion on the constitutionalisation of international law in the UN era, see Habermas, J, The Divided West (Cambridge, Polity Press, 2006) 115–93. 101  For a deeper discussion of the international legal landscape and issues regarding unilateral enforcement of breaches of erga omnes obligations, see Dupuy, PM, ‘Back to the Future of a Multilateral Dimension of the Law of State Responsibility for Breaches of “Obligations Owed to the International Community as a Whole”’ (2012) 23(4) European Journal of International Law 1059–69.

Articles—Butler 23 between ‘vigilante justice’ and ‘self-help’. However, by turning to unilateral action rather than attempting to find a multilateral path through which violations of the law can be punished, such ‘self-help’ damages the quest for pluralistic world governance by undercutting the constitutional order upon which the legitimacy of the system is premised. While the immediate transgression is punished, this move perversely makes effective enforcement of erga omnes obligations more difficult in the long run, as the push back against the constitutional order by a powerful state induces weaker states to return to the normative architecture that previously provided protection against such power, such as in this case Westphalian sovereignty.102 CONCLUSION

The international response to the Syrian civil war has been hampered by the politics of the situation, both internally within Syria and internationally. Internally, the multi-­ faceted nature of the conflict from an ethnic, religious and political perspective, exacerbated by the entry into Syria by Islamic State in mid-2014, means that the likelihood of finding a viable political solution to the situation is slim. Internationally, the protection afforded to the Assad regime by Russia and to a lesser extent China, as well as the willingness of the US to take unilateral action, has severely damaged the ability of the Security Council to act as the guarantor of peace and security in the region through the erosion of goodwill between the world’s most powerful states and the fundamental lack of agreement on the best methods to approach the conflict. These political impediments have clouded the situation in Syria, diminishing the potential of international law to provide avenues of solutions to the conflict. From an R2P perspective, Syria has exposed two fundamental flaws with the doctrine. First, it remains prey to the political machinations that tend to polarise and deadlock the Security Council. The normative impacts of R2P on the generation of political will have proven to be too weak to overturn larger realpolitik considerations, particularly when an ally of a permanent member of the Security Council is involved. For Russia, the retention of a trusted partner in the Assad regime and control of the Tartus naval port matters more than any concerns it feels over blocking international action against atrocity crimes in Syria. Second, the perceived overreach of NATO in Libya has damaged the buy-in of certain states towards R2P and resulted in a re-entrenchment of Westphalian norms with regards to sovereignty. The spectre of regime change now hangs over R2P, and so it is liable to be tainted with the same concerns over Western imperialism that previously hampered the acceptance by the developing world of other interventionist doctrines in the past. The consequence of these obstacles blocking effective action under R2P has been a reversion to unilateralism on the part of Western states, particularly the US. The willingness of the US to undertake action outside of the accepted UN framework in response to the Syrian violation of a ‘red line’ with regards to chemical weapons use, and the 102  The reinforcing of Westphalian sovereignty norms in response to NATO’s actions in Libya is perhaps an example of this phenomenon, although this was more a failure of the system’s logic (ie the lack of robustness in the operationalisation of R2P) than an attack by NATO upon the constitutional order of the UN system (although some states undoubtedly perceived it as such).

24  The Irish Yearbook of International Law 2014 a­ cademic discourse concerning the legality of such actions, echoes the events and debates that concerned Kosovo in 1999. As discussed in this article, the legality of any such action would be very much in doubt, and moreover threatens to unravel the progress made towards a pluralist world order based on adherence to a shared vision of international law. While unilateral military action was ultimately not undertaken in response to the Ghouta attack, it has been undertaken by a number of states in response to the rise of Islamic State. While action against Islamic State in Iraq is occurring on the explicit request of the Iraqi government, action against the group in Syria is occurring without a Chapter VII Security Council mandate103 and with, at best, only the implicit consent of the Syrian government;104 as such, its legality rests on a thin line of argumentation, relying on a plethora of half-justifications and contentious interpretations of the law. What the international response to the Syrian civil war has thus shown from the perspective of the rule of law, is that states are still grappling with the contours of sovereignty in the UN era, and opinions are diverging as to what the normative content of contemporary sovereignty is; the logic of the classical Westphalian conception of state sovereignty has broken down in the face of globalisation and the resulting challenges to the maintenance of ‘international peace and security’ (and indeed the changing interpretations as to what that phrase means). Further interpretive evolution is required for the logic of sovereignty in the UN Charter era to cohere, but the international response to Syria has demonstrated that there is no clear evolutionary path for these norms, and contestation over how global order, and the evolving R2P doctrine, should function will continue. The key to a fully functioning R2P doctrine is to recognise that this contestation is stemming from legitimate disagreement over how contemporary international law should operate, and consequently to seek a true global consensus on contested norms rather than circumvent the system when it fails to adequately realise one’s self-interest. The drafters of both the Covenant of the League of Nations and the UN Charter recognised that the achievement of effective international co-operation and the maintenance of global peace was dependent on respect for and adherence to international law.105 The logic of this approach has not changed since. The UN, and the Security Council in particular, may be flawed as an instrument of global governance, but in its status as a representative of global community interests it enjoys a perception of legitimacy that a unilateral agent acting ‘on behalf of humanity’ simply does not, no matter how benevolent its actions are. It is imperative that powerful states acknowledge this limitation if international law is to fully mature as a system through which effective global governance can be realised. Instead, Western states chose to respond to Security Council deadlock over Syria by reverting to the pursuit of paths outside of contemporary international law to further their goals; such actions do little but threaten the continuing viability of the system.

103  In the aftermath of the November 2015 Islamic State (IS) attacks in Paris, the Security Council adopted Resolution 2249 condemning IS attacks and human rights abuses and ‘call[ing] upon Member states… to take all necessary measures’ against the group, but the Resolution made no reference to Chapter VII and thus its impact on the legality of force against IS was negligible. UN Security Council, Security Council Resolution 2249 (2015) [Prevention and suppression of Daesh terrorist attacks], 20 November 2015, S/RES/2249. 104  Arimatsu, L and Schmitt, M, ‘The Legal Basis for the War against ISIS Remains Contentious’, The Guardian, 6 October 2014. 105  Covenant of the League of Nations, Paris, 28 April 1919, Preamble; Charter of the United Nations (n 18), Preamble.

The Right to Inclusive Education: Article 24 of the UN Convention on the Rights of Persons with Disabilities and the Irish Experience ANDREA BRODERICK*

INTRODUCTION

I

N THE PAST, and indeed up to the present day, persons with disabilities and those with ‘special educational needs’1 have largely been segregated from their peers in socalled ‘special schools’. As recently as 1993, the Irish State refused to educate certain disabled children, whom it claimed were ‘ineducable’2 within the meaning of the Irish Constitution.3 The legislative and policy framework in Ireland has changed immensely in recent times and the rights of children with disabilities are being taken into account to a greater extent by the Irish State by virtue of a gradual shift towards inclusive education. Until the adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD or Convention), the core international human rights treaties4 did not explicitly recognise a right to inclusive education within the mainstream school system. Inclusive education has been described by the Committee on the Rights of the Child (CRC Committee) as ‘a set of values, principles and practices that seeks meaningful, effective, and quality education for all students, that does justice to the diversity of ­learning conditions and requirements not only of children with disabilities, but for all students […]’.5

*  Dr Andrea Broderick, Assistant Professor, Department of International and European Law, Maastricht University (PhD, LLM, Solicitor). 1  The terms ‘persons with disabilities’ and ‘persons with special educational needs’ are not the same. Many people with special needs do not have a disability and, vice versa, many people with a disability do not have special educational needs. It must be noted that there is some criticism of the use of the term ‘special needs’ in the context of education. However, as it is the term that is used in the Irish legislative framework and in the relevant literature, I will use the term ‘special educational needs’ at relevant points throughout this article. 2  In the case of O’Donoghue v Minster for Health and Others, the State contended that the applicant, ‘by reason of being profoundly mentally and physically disabled, is ineducable, and that all that can be done for him to make his life more tolerable is to attempt to train him in the basics of bodily function and movement’. O’Donoghue v Minister for Health [1993] IEHC 2, [1996] 2 IR 20 (27th May 1993). 3  See www.irishstatutebook.ie/eli/cons/en/html, accessed 10 November 2015. 4  While the core international human rights treaties did not recognise an explicit right to inclusive education, inclusive education was referred to as a guiding philosophy in a number of soft-law documents that will be discussed in the next section below. 5  CRC Committee, General Comment 9 on Children with Disabilities (2006), UN Doc CRC/C/GC/9, 27 February 2007, para 67.

26  The Irish Yearbook of International Law 2014 Article 24 of the CRPD contains the first explicit legal enunciation of the right to inclusive education for persons with disabilities and it imposes wide-ranging duties on States Parties to the Convention. Ireland has signed but not yet ratified the CRPD, although the Irish Government has signalled its intention to do so. The Government has indicated that Ireland will ratify the CRPD once an updated framework on legal capacity has been enacted. This article contends that there are shortcomings in the Irish legislative and policy framework, from a CRPD perspective, beyond the issue of legal capacity. In that connection, this article will analyse the extent to which the Irish legislative and policy framework can be described as truly inclusionary in meeting the standards imposed by Article 24 of the CRPD, in terms of both content and educational practice. It will be argued that whilst the Irish framework has improved dramatically in recent times, many gaps in legislation and policy remain. Furthermore, this article will contend that educational practice in Ireland has a long way to go before it can be deemed to meet the high standards contained in the Convention. This article will be broken down into three main sections. In the first instance, the development of the right to inclusive education at the international level will be outlined. In the second instance, the concept of inclusive education will be considered generally.6 This will be followed by an interpretation of Article 24 of the CRPD and an analysis of the duties imposed on States thereunder. To aid in the interpretation of Article 24 of the CRPD, recourse will be had to the rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties (VCLT). As a subsidiary source of interpretation, reference will be made to the observations and recommendations of the Committee on the Rights of Persons with Disabilities (CRPD Committee). Thirdly, the Irish legislative and policy framework will be analysed, in order to determine whether it aligns with Article 24 of the CRPD. The Irish education system will also be analysed, with a view to determining the extent to which educational practice in Ireland is consistent with Article 24 of the Convention. THE DEVELOPMENT OF THE RIGHT TO INCLUSIVE EDUCATION IN INTERNATIONAL HUMAN RIGHTS LAW

The right to education is both an end in itself, as well as a means towards attaining all other human rights. Former United Nations (UN) Special Rapporteur on Education, Katarina Tomasevski, has described education as ‘a bridge to all human rights’.7 The proper enjoyment of the right to education is of fundamental importance for persons with disabilities. As an empowerment right, education has been described as ‘the primary vehicle by which economically and socially marginalized adults and children can […] obtain the means to participate fully in their communities’.8 Without an ­appropriate

6  The first two sections of this article have been taken, in large part, from my doctoral thesis, entitled The Long and Winding Road to Disability Equality: The United Nations Convention on the Rights of Persons with Disabilities (Antwerp, Intersentia, 2015). 7  K Tomasevski, Education Denied: Costs and Remedies (London, Zed Books Ltd, 2003) 172. 8  UN Committee on Economic, Social and Cultural Rights (UNCESCR), General Comment 13 on The Right to Education (Article 13 of the Covenant) (1999), UN Doc E/C.12/1999/10, 8 December 1999, para 1.

Articles—Broderick 27 education, persons with disabilities are denied the exercise and enjoyment of many other rights, including the right to work and the right to independent living, as without a formative education disabled individuals will be deprived of essential life and social skills necessary to ensure full and effective participation in society.9 The right to education is a long established right at the level of international human rights law.10 Notably, the right to education for disabled children is mentioned specifically in Article 23 of the Convention on the Rights of the Child (CRC). In addition to its prominence in the core international human rights treaties, the right to education has been addressed in several internationally approved conventions and declarations.11 The UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted in 1993, urge States to ensure that education for persons with disabilities forms ‘an integral part of national educational planning, curriculum development and school organization’.12 Another important instrument protecting the right to education is the Salamanca Statement and Framework for Action on Special Needs Education,13 which is the first major international human rights document to recognise the diversity of learners and the necessity for reasonable accommodations (modifications or adjustments to educational environments and practices in order to accommodate the needs of persons with disabilities). The Salamanca Statement marked the beginnings of the acknowledgment at the international level of the importance of educating children in inclusive learning environments.14 Despite intermittent references to the right to education for persons with disabilities under the binding and non-binding UN instruments, there were still major gaps to be filled in ensuring education in the mainstream for disabled persons. Article 24 of the CRPD seeks to redress such anomalies by enshrining the cornerstone principle of inclusive education in international human rights law.

9  The CRC Committee has recognised this fact in its General Comment 9, in which it notes that ‘the lack of appropriate education and vocational training discriminates against [children with disabilities] by denying them job opportunities in the future’. CRC Committee (n 5), para 8. 10  The right to education was first introduced in Article 26 of the Universal Declaration of Human Rights, which affirmed a right to education for all individuals. It has been expanded upon and strengthened considerably in subsequent international instruments. It is contained in Articles 13 and 14 of the International Covenant on Economic Social and Cultural Rights (ICESCR). It is also contained in Article 10 of the United Nations Convention on the Elimination of Discrimination against Women (CEDAW). See also Articles 28 and 29 of the United Nations Convention on the Rights of the Child (CRC) and Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). 11  See eg The United Nations Educational, Scientific and Cultural Organization (UNESCO), Convention against Discrimination in Education [adopted at the General Conference of the United Nations Educational, Scientific and Cultural Organization, meeting in Paris, 14 November to 15 December 1960, at its eleventh session], adopted in 1960, which lays down comprehensive standards pertaining to non-discrimination and equal treatment of individuals in education. In 1990, the World Declaration on Education for All (WEA) was adopted, as well as the Framework for Action to Meet Basic Learning Needs [UNESCO, The World Declaration for Education for All: Meeting Basic Learning Needs (1990), adopted by the UNESCO World Conference on Education for All of 9 March 1990]. 12  Rule 6, UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (adopted by the United Nations General Assembly, forty-eighth session, Resolution 48/96, annex, of 20 December 1993). 13  The Salamanca Statement and Framework for Action on Special Needs Education (adopted at the World Conference on Special Needs Education: Access and Quality, Salamanca, Spain, 7–10 June 1994). 14  Article 3 of the Salamanca Statement urges States to ‘include all children regardless of individual differences or difficulties […and to…] adopt as a matter of law or policy the principle of inclusive education, enrolling all children in regular schools, unless there are compelling reasons for doing otherwise’.

28  The Irish Yearbook of International Law 2014 THE RIGHT TO INCLUSIVE EDUCATION: ARTICLE 24 OF THE CRPD

This section will contain an overview of the concept of inclusive education generally and the various components of an inclusive learning system. Article 24 of the CRPD will then be interpreted according to the rules of interpretation contained in the VCLT. Thereafter, the normative content of Article 24 of the Convention and corresponding State obligations will be outlined. This will provide a backdrop against which to analyse the Irish legislative and policy framework, as well as educational practice in Ireland. The Concept of Inclusive Education Inclusive education refers not only to the education of persons with disabilities but to that of all learners, particularly disadvantaged groups. It has been described as a ‘process of addressing and responding to the diversity of needs of all learners by increasing participation in learning, cultures and communities, and reducing exclusion within and from education’.15 The goals of inclusive learning can be summarised as including the core principles of non-discrimination and equality of opportunities, as well as accessibility of structures, facilities and processes and individualised learning methods. Diversity can be seen as the core value underlying inclusive educational systems. The benefits16 of inclusive education have been documented widely.17 The World Report on Disability acknowledges that inclusion in mainstream schools ‘promotes universal primary completion, is cost-effective and contributes to the elimination of discrimination’.18 Former UN Special Rapporteur on the Right to Education, Mr Vernor Muñoz Villalobos, acknowledges that the inclusion of learners with disabilities in mainstream schools ‘confers significant psychological advantages, as well as greater fulfilment of intellectual and, especially social and emotional needs through regular and natural

15 UNESCO, Overcoming Exclusion through Inclusive Approaches in Education: A Challenge and a Vision, Conceptual Paper (2003) 7, citing T Booth, ‘A Perspective on Inclusion from England’ (1996) 26(1) Cambridge Journal of Education 87. 16  In spite of its reported benefits, certain representative organisations of persons with disabilities have voiced concerns that education in inclusive settings may not cater fully to the diverse needs of all individuals with disabilities, owing to a lack of sufficient supports for disabled learners. [See World Federation of the Deaf, Education Rights for Deaf Children: A Policy Statement of the World Federation of the Deaf (2007), www. wfdeaf.org/databank/policies, accessed 11 October 2015]. Article 24(3)(c) of the CRPD seeks to ensure that those types of fears are mitigated. It maintains the option for disabled individuals, particularly those who are blind, deaf or deaf-blind to attend specialised schools as long as it is in an environment that ‘maximizes academic and social development’. 17  For instance, Phil Smith observes that ‘inclusive practices bring clear, unequivocal academic and social benefits for students with and without disabilities, across a variety of age ranges and education disciplines’. P Smith, ‘Defining Inclusion. What Is It? Who Does it Benefit?’ in P Smith (ed), Whatever Happened to Inclusion? The Place of Students with Intellectual Disabilities in Education (New York, Peter Lang Publishing Inc, 2010) 41; See also R Morrison and I Burgman, ‘Friendship Experiences Among Children with Disabilities who Attend Mainstream Schools’ (2009) 76 Canadian Journal of Occupational Therapy 145 [information taken from L Waddington and C Toepke, ‘Moving Towards Inclusive Education as a Human Right: An Analysis of International Legal Obligations to Implement Inclusive Education in Law and Policy’ (December 8 2014) Maastricht Faculty of Law Working Paper No 2014, http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2535198, accessed 15 November 2015]. 18  World Health Organization & World Bank, World Report on Disability (2011) 206.

Articles—Broderick 29 interaction with a diverse group of learners’.19 It is important to note that inclusive ­education is often wrongly perceived to be prohibitively expensive. This is not always the case and many positive educational measures are not extremely costly. In fact, having one centralised education system usually entails cost savings, at least over the medium-to-long term. Admittedly, the initial outlay costs for inclusive education may be high. However, it has been observed that over a longer period ‘a single system lowers management and administration costs […].’20 In order to ensure fully inclusive educational systems, it is vital that proper supports are available to individuals and that systemic change is effected. This raises the important distinction between mere integration in mainstream schools and full and effective participation and inclusion. In its concluding observations, the CRPD Committee has drawn attention to the fact that there remains ‘some confusion’ between the concepts of ‘inclusive education’ and ‘integrated education’ in certain States Parties to the Convention.21 An integrationist approach seeks merely to ensure that the disabled learner fits in with the ‘norm’. Mr Villalobos has outlined the fact that ‘the “integration” of learners with disabilities without full inclusion can lead to isolation of the learner and ultimately, [can be] an obstacle to meeting the education needs of all learners’.22 Integrationist systems can therefore be exclusionary in themselves. By way of contrast, an inclusive learning system is designed to ensure the removal of barriers by adapting the educational system to individuals with disabilities so that they can participate fully and access the right to education on an equal basis with others. Inclusive education accords with the tenets of the social model of disability,23 which underlies the CRPD. According to the social model, disability is viewed as an interaction between persons with impairments and pervasive societal barriers (physical, legislative, attitudinal and other). By way of contrast, the out-dated medical model of disability views functional limitations as a consequence flowing from impairments. In other words, it perceives the inability of disabled people to participate in society as an inevitable result of their own impairment rather than as a consequence of any disabling and discriminatory barriers in society. Systems of segregated or special education reflect the medical model of disability in the sense that they focus on the functional limitations of the person in question and require the disabled learner to adapt to inaccessible educational institutions, whereas inclusive education requires systemic change in all aspects of education processes.

19  Report of the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos, The Right to Education of Persons with Disabilities, UN Doc A/HRC/4/29, 19 February 2007, available at http://ap.ohchr. org/documents/alldocs.aspx?doc_id=12900, last accessed 1 December 2015, para 39. 20  United Nations, From Exclusion to Equality: Realizing the Rights of Persons with Disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (Geneva, Inter-Parliamentary Press, 2007) 85. 21  CRPD Committee, Concluding Observations on the Initial Report of Austria (2013), UN Doc CRPD/C/ AUT/CO/1, para 40. 22  Report of the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos (n 19), para 40. 23  For more information on the social model generally and the shift in disability theory from the medical to the social model, see T Shakespeare (ed), Disability Rights and Wrongs (Routledge, London, 2006) 15–22; See also P Weller (ed), New Law and Ethics in Mental Health Advance Directives: The Convention on the Rights of Persons with Disabilities and the Right to Choose (Routledge, New York, 2013) 27–38.

30  The Irish Yearbook of International Law 2014 A Legal Interpretation of Article 24 of the CRPD Before the adoption of the CRPD, the right to inclusive education had not been mentioned specifically in an international human rights treaty. The CRC contains references to many of the objectives of inclusive education, in particular the importance of ensuring adaptability in learning systems. Article 23(3) of the CRC recognises the special needs of disabled children. It outlines the requirement to accord assistance designed to ensure that children with disabilities have effective access to, and receive, education and training (among other things) in a manner that is conducive to the child achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.24 Article 28(1)(b) of the CRC requires that secondary education should be available and accessible25 and Article 28(1)(c) requires that higher education must be accessible to all on the basis of capacity by every appropriate means.26 The aims of education outlined in Article 29 of the CRC (including development of the child’s potential, talents and abilities to their fullest potential, as well as development of respect for human rights) also endorse an inclusive philosophy. Notwithstanding this, the CRC does not explicitly mention a right to inclusive education for disabled children. Article 24 of the CRPD is based on the human rights-based approach to disability, according to which disabled people are viewed as equal citizens, capable of contributing to society to the same extent as their non-disabled peers. In order to interpret Article 24 of the CRPD, recourse must be had to the rules of treaty interpretation contained in the VCLT. Articles 31 and 32 of the VCLT contain interpretative tools—literal (textual) interpretation according to the actual wording of the Convention; systematic (contextual) interpretation in line with the general principles, general obligations of the CRPD, its Preamble and annexes; teleological (functional) interpretation according to the object and purpose of the Convention; and historical interpretation according to the travaux préparatoires (drafting history) of the Convention. The Drafting History of Article 24 of the CRPD Interestingly, the travaux préparatoires of the CRPD reveal that there was some debate during the negotiation sessions leading to the adoption of the Convention as to whether segregated education should be prohibited explicitly under the Convention or whether it should be allowed in certain circumstances.27 The original draft Article 17(3) of the

24 

CRC, Article 23(3). Under Article 28(1)(b) of the CRC, States undertake to ‘encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need’. 26  Under Article 28(1)(c) of the CRC, States undertake to ‘make higher education accessible to all on the basis of capacity by every appropriate means’. Furthermore, Article 28(1)(d) of the CRC requires States to ‘make educational and vocational information and guidance available and accessible to all children’. 27  For instance, the Canadian delegate argued that persons with disabilities should ‘always [be] educated within the general education system’. On the other hand, the Japanese delegate maintained that ‘the use of general or special schools should be decided according to the best interests of the child’. [Seventh Session of the Ad Hoc Committee (16/01/06–03/02/06), Daily summary of discussion at the seventh session 24th January 2006, www.un.org/esa/socdev/enable/rights/ahc7sum24jan.htm, last accessed 17 November 2015]. 25 

Articles—Broderick 31 CRPD provided as follows: ‘Where the general education system does not adequately meet the needs of persons with disabilities, special and alternative forms of learning should be made available’.28 The phrase ‘effective alternative support measures’ was generally understood as referring to special education or a mixed form of educational provision.29 On foot of proposals put forward by the EU and Australian delegates, this stance was altered, and under the new draft Article 17(1), States Parties to the Convention undertook to ensure ‘the goal of inclusiveness of their general education systems’.30 Many delegates at the negotiation sessions believed that the focal point of the right to education under the CRPD should be on inclusion.31 However, as Oddný Mjöll Arnardóttir points out, ‘the emphasis was clearly on the right to choose inclusive education’.32 This assertion is confirmed by the report of the Working Group on the CRPD, which notes that ‘there was no intention to create an obligation on students with disabilities to attend general schools where their needs may not be adequately met’.33 It is noteworthy that Article 24 of the CRPD does not prohibit segregated education explicitly.34 It allows for special educational systems in limited circumstances—including, where necessary to cater for individuals who are blind, deaf or deaf-blind. In that regard, Article 24(3)(c) of the Convention provides that States Parties shall take all appropriate measures towards: Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is delivered in the most appropriate languages and modes and means of communication for the individual, and in environments which maximize academic and social development.35

28  Draft Article 17(3) of the CRPD, Report of the Working Group to the Ad Hoc Committee (2004), UN Doc A/AC.265/2004/WG/1, Annex 1, www.un.org/esa/socdev/enable/rights/ahcwgreortax1.htm, accessed 18 November 2015. 29  G de Beco, ‘The Right to Inclusive Education According to Article 24 of the UN Convention on the Rights of Persons with Disabilities: Background, Requirements and (Remaining) Questions’ (2014) 285 Netherlands Quarterly of Human Rights 32(3), 285, citing O Arnardóttir, ‘The Right To Inclusive Education For Children With Disabilities—Innovations In The CRPD’ in A Eide, J Möller, and I Ziemele (eds), Making Peoples Heard. Essays on Human Rights in Honour of Gudmundur Alfredsson (Leiden/Boston, Martinus Nijhoff Publishers, 2011) 197, 217. 30  See the proposals put forward by the Australian delegate in the negotiation sessions leading to the adoption of the CRPD—‘Draft Article 17 EDUCATION’, www.un.org/esa/socdev/enable/rights/ahc6australia.htm, accessed 16 November 2015; See also the proposal put forward by the EU delegate—‘European Union Proposal for Article 17’ www.un.org/esa/socdev/enable/rights/ahc6eu.htm, accessed 16 November 2015. 31  The Centre for Studies on Inclusive Education (CSIE) noted that inclusive education ‘should be the thrust of Article 24’. The CSIE defined inclusion broadly to mean ‘education in mainstream schools with a full range of support and accommodations necessary to facilitate effective education for all students with disabilities, including those who are blind, deaf and deafblind’. [Seventh Session of the Ad Hoc Committee (n 27)]. 32  Arnardóttir (n 29) 210. 33 Report of the Working Group to the Ad-Hoc Committee, A/AC.265/2004/WG/1, Annex 1. Available www.un.org/esa/socdev/enable/rights/ahcwgreport.htm, last accessed 14 November 2015. 34 Some States Parties have made specific reservations to Article 24 regarding inclusive education. For instance, Mauritius made a reservation with regard to Article 24(2)(b) because, although the State Party had a policy of inclusive education, it wanted to keep its special education system also. [Mauritius Reservation to the CRPD, Article 24 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV15&chapter=4&lang=en, accessed 17 November 2015.] Similarly, the UK made a reservation to Articles 24(2)(a) and 24(2)(b) regarding the right for disabled children to be educated outside their local community where more appropriate educational provision is available elsewhere. Nevertheless, the UK made clear that parents of disabled children have the same opportunity as other parents to state a preference for the school at which they wish their child to be educated, including in both mainstream and segregated or so-called special schools. [United Kingdom Reservation to the CRPD, Article 24 https://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en, accessed 17 November 2015]. 35  CRPD, Article 24(3)(c).

32  The Irish Yearbook of International Law 2014 As Gauthier de Beco notes, the consequence of that particular provision is that persons with sensory or communication impairments ‘should be allowed to be educated in special schools, although this option should not prevent them from asking to be able to participate in the general education system’.36 Doubts remain regarding the extent to which special education systems are permitted under Article 24(2)(e) of the CRPD, in circumstances where the individual in question does not fall under the exception (outlined above) for blind, deaf or deaf-blind students. Article 24(2)(e) of the Convention provides that effective individualised support measures may be provided in ‘environments that maximize academic and social development, consistent with the goal of full inclusion’.37 This would appear to give some leeway to States, in terms of educational provision, where fully inclusive education is not yet feasible for the State in question or where the needs of a particular disabled child cannot be met within the general education system. As Arnardóttir points out, the addition of Article 24(2)(e) to the final text of the CRPD: Is the result of a compromise between the position that persons with disabilities should be educated within the general mainstream education system at all times and the ‘realism-based position’38 that a certain amount of mixed alternative and possibly even special segregated education may be chosen or required.39

However, Arnardóttir rightly asserts that this is a ‘narrow exception indeed’40 and Article 24(2)(e) itself states that any such deviations from mainstream education must be ‘consistent with the goal of full inclusion’.41 The Shift away from Segregated Education to Inclusive Education Many States Parties to the CRPD retain a robust system of segregated education. It would be unrealistic to expect those segregated settings to be closed overnight. Moreover, doing so would lead to a discriminatory gap in education for many disabled children, who would not have access to any educational provision. What is required in those States Parties is that there is a gradual shift away from segregation towards inclusive education systems, where that is feasible. As de Beco observes: Such a transition can be achieved by establishing a mixed form of education. One of the solutions is to bring the two systems to the same campus so that the knowledge and materials from special schools can be used in regular schools. Special schools will then be transformed [into] learning resource centres.42

De Beco notes, however, that this must remain ‘a temporary solution, considering that bringing these two systems together can still mean a segregated education system in

36 

de Beco (n 29) 286. CRPD, Article 24(2)(e). 38  See Ad-Hoc Committee, Seventh Session, Daily Summary of Discussions at the Seventh Session, 24 January 2006, www.un.org/esa/socdev/enable/rights.ahc7sum24jan.htm, last accessed 20 November 2015. 39  Arnardóttir (n 29) 225. 40  Arnardóttir (n 29). 41  CRPD, Article 24(2)(e). 42  de Beco (n 29)285, citing Office of the United Nations High Commissioner for Human Rights (OHCHR), Thematic Study on the Right of Persons with Disabilities to Education (2013) UN Doc A/HRC/25/29, at p 13. 37 

Articles—Broderick 33 ­reality’.43 Thus, he posits that ‘the learning resource centres should be incorporated into mainstream schools. Resources have likewise to be transferred from the special schools to the mainstream schools’.44 One vital question that merits attention is how to align the CRPD’s mandate of inclusion with the provision of appropriate or effective education for persons with severe or profound disabilities. Indeed, there are a limited number of individuals for whom reasonable accommodations may not be possible or for whom supports may not be effective. For instance, given the highly specific and complex needs of children with profound intellectual disabilities or moderate/severe autism spectrum disorders, it may not always be realistic to advocate for inclusive education (at least not in circumstances where effective supports are, as yet, unavailable). In such cases where the eloquent theory of inclusive education is not achievable, what then? De Beco notes that ‘Article 24 does not prevent States from establishing special schools for these children’.45 ‘Nor, however, does it ­compel them to be equipped with special schools’.46 He contends that providing special education for such learners with disabilities is permissible ‘as long as this is not done on the basis of their impairments but on the basis of the barriers to their participation in society’.47 It would appear that States will therefore ‘have a certain leeway’ in the provision of education, although they should ‘provide a strong CRPD-based j­ustification if they keep a partially-segregated education system’.48 In addition, de Beco ­highlights the fact that the ‘special’ forms of education provided to these disabled c­ hildren ‘must not be of lesser quality than normal education, because this would again lead to discrimination’.49 The Provision of Effective Education The overarching theme of Article 24 of the CRPD is that education must be effective. According to Article 24(2)(d), any support provided within mainstream education must facilitate the ‘effective education’50 of disabled persons. Where education is deemed necessary in ‘environments that maximize academic and social development’51 (in other words, where education is provided in segregated settings, with a view to achieving full inclusion progressively), Article 24(2)(e) of the Convention requires the provision of ‘effective individualized support measures’.52 Thus, the individual learner should actually be able to draw benefit from the education provided. In circumstances where severely disabled individuals cannot benefit from mainstream education, it would not be in their best interests to be thrown into an unsupportive environment and alternative forms of educational provision must be explored instead.

43 

de Beco (n 29) 285. de Beco (n 29) 285. de Beco (n 29) 285. 46  de Beco (n 29) 285, citing Arnardóttir (n 29) 210. 47  de Beco (n 29) 285. 48  de Beco (n 29) 285. 49  de Beco (n 29) 285. 50  CRPD, Article 24(2)(d). 51  CRPD, Article 24(2)(e). 52 Ibid. 44  45 

34  The Irish Yearbook of International Law 2014 A Textual, Systematic and Functional Interpretation of Article 24 of the CRPD Aside from the foregoing ‘deviations’ from inclusive education systems, the CRPD lays down the principle of inclusion clearly in Article 24. On a textual reading of Article 24, States are required to ‘ensure an inclusive education system at all levels’.53 As Oddný Mjöll Arnardóttir points out, the right to inclusive education is ‘expressly and unequivocally confirmed as the main principle embodied in Article 24’.54 She further states that ‘providing such a clear principled position on this issue also makes clear that any divergences must be viewed as exceptions and must be clearly construed as such’.55 Article 24(2)(a) of the CRPD seeks to ensure that ‘persons with disabilities are not excluded from the general education system on the basis of disability’. Moreover, Article 24(2)(b) requires States to ensure that ‘persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live’. States should therefore aim for full inclusion of persons with disabilities in mainstream education where that is feasible. Article 24 of the CRPD also underlines the goals to be achieved by education in the context of disabled persons. First and foremost, education should be directed towards ‘the full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human d ­ iversity’.56 Article 24 of the Convention also highlights the fact that education should aim at the ‘development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential’.57 The third goal to be achieved by education under the CRPD is to enable ‘persons with disabilities to ­participate effectively in a free society’.58 All of these goals are clearly reflective of an inclusive education mandate—they seek to ensure that the innate capabilities of persons with d ­ isabilities are nurtured and given room to develop in educational systems. The object and purpose of the Convention is stated in Article 1 as being to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent ­dignity.59 Article 1 of the Convention also acknowledges the fact that the participation in society of persons with disabilities is hindered through interaction with various barriers.60 This reflects the social model of disability, which seeks to ensure full participation and inclusion of persons with disabilities in mainstream learning systems. The Preamble of the CRPD evidences a rights-based approach to children. It requires States to guarantee that children with disabilities ‘have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children’.61 In addition, the general principles of the Convention, contained in Article 3, mirror this rights-based approach by seeking

53 

CRPD, Article 24(1). (n 29) 218 and 219, citing the comments of the Chair of the Ad-Hoc Committee, Chair’s ­Closing Remarks, www.un.org/esa/socdev/enable/rights/ahc7chairclose.htm accessed 19 November 2015. 55  Arnardóttir (n 29) 218. 56  CRPD, Article 24(1)(a). 57  CRPD, Article 24(1)(b). 58  CRPD, Article 24(1)(c). 59  CRPD, Article 1. 60 Ibid. 61  CRPD, Preamble para (r). 54  Arnardóttir

Articles—Broderick 35 to ensure ‘[r]espect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities’.62 The object and purpose and general principles of the Convention are cross-cutting, applying inter alia to Article 24. By recognising the diversity of children with disabilities, the Convention endorses the principles of accessibility and adaptability, including in the context of the right to education. Once again, this demonstrates that the Convention as a whole seeks to ensure that persons with disabilities can develop their talents and abilities in the mainstream, through the provision of material support where necessary. The concluding observations of the CRPD Committee can be used as a subsidiary aid to the interpretation of Article 24. The Committee has confirmed that full inclusion of persons with disabilities in the general education system is the goal for States Parties to the Convention. In its ‘List of Issues’ to the Tunisian Government, for instance, the Committee includes a request for ‘information about the progress achieved toward ensuring full scholastic inclusion of children with disabilities’ [emphasis added].63 On the basis of all of the above, it is beyond doubt that full inclusion of persons with disabilities in education should be the ultimate target for States Parties to the CRPD. As highlighted above, there are circumstances in which the provision of inclusive education may not be feasible or may not result in appropriate or effective educational provision for certain disabled individuals, especially those with high support needs. In such instances, it would appear that States have a certain amount of leeway in choosing the most appropriate educational structures. Nonetheless, in the provision of education for persons with disabilities, States must adhere to the specific obligations imposed on them under Article 24 of the CRPD. Those obligations will be delineated below. State Obligations under Article 24 of the CRPD In this sub-section of the article, the most relevant State obligations under Article 24 of the CRPD will be outlined. These entail the obligation to provide non-discriminatory access to education, the provision of reasonable accommodations and other individualised support measures, as well as appropriate forms of communication, teacher training and the guarantee of lifelong learning. Non-Discriminatory Access to Education States Parties to the CRPD are required to ensure non-discrimination in access to, and in the exercise of, the right to education by persons with disabilities. The right of non-­ discriminatory access to education for persons with disabilities is set out in Articles 24(2)(a) and 24(2)(b) of the CRPD.64 Those articles seek to ensure equality of opportunities for

62 

CRPD, General Principle 3(h). CRPD Committee, List of Issues to be Taken up in Consideration of the Initial Report of Tunisia (adopted at the fourth session of the Committee, 4–8 October 2010), para 20. 64 Article 24(2)(a) of the Convention requires States to ensure that ‘persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of ­disability’. Article 24(2)(b) of the Convention requires States to ensure that ‘persons with disabilities can access 63 

36  The Irish Yearbook of International Law 2014 persons with disabilities. Lack of access to education, culminating in unequal opportunities, has been recognised as a ‘dominant problem in the disability field’65 for both children and adults with disabilities. The CRPD Committee has emphasised the fact that States Parties to the Convention must intensify their efforts to ensure that disabled children can benefit to the same extent as non-disabled children from any system of compulsory education established by domestic authorities.66 The Committee has also drawn attention to the fact that States should focus on inclusion at all levels, including tertiary and adult education.67 In addition, the Committee voices its concern throughout its concluding observations that access to mainstream education is being blocked for a large proportion of disabled individuals and that, in many countries, disabled learners are being placed in segregated education and not in inclusive educational settings.68 Ensuring access to inclusive education will begin with States Parties to the CRPD drawing up a clear definition of what is meant by inclusive education and incorporating this in national legislation.69 It has been acknowledged that while ‘there is almost universal recognition of the need to promote inclusive education practices […] the concept of inclusive education does not seem to be clearly recognized in all countries, many of which identify it with integrated education’.70 In other words, ‘there does not appear to be a consensus on the meanings and implications of the two pedagogical approaches or methods’.71 Guaranteeing access to inclusive education will also require systemic change, through the removal of all discriminatory barriers to participation and inclusion.72 This will entail tackling physical inaccessibility, lack of individualisation, as well as attitudinal barriers in the form of negative stereotypes. The right to be free from discrimination is not subject to progressive realisation. This has been confirmed by the core human rights treaty bodies, among others.73

an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live’. 65  SJ Peters, Report on Inclusive Education: An EFA Strategy for All Children (World Bank, November 2004) 5, citing the United Nations Special Rapporteur on Human Rights and Disability, Bengt Lindqvist, ‘Education as a Fundamental Right’ in UNICEF, (1999) 2(4) Education Update 7, www.unicef.org/education/files/vol2disabileng. pdf, accessed 19 November 2015. 66  CRPD Committee, Concluding Observations to Argentina (2012) UN Doc CRPD/C/ARG/CO/1, para 38. 67  CRPD Committee, Concluding Observations to Costa Rica (2014) UN Doc CRPD/C/CRI/CO/1, para 48. 68  See eg, CRPD Committee, Concluding Observations to China (2012) UN Doc CRPD/C/CHN/CO/1, para 35; Concluding Observations to Spain, (2011) UN Doc CRPD/C/ESP/CO/1, para 43; Concluding Observations to Costa Rica (n 67), para 45; Concluding Observations to Austria (n 21) para 40; Concluding Observations to Australia (2013) UN Doc CRPD/C/AUS/CO/1, para 45; Concluding Observations to Hungary (2012) UN Doc CRPD/C/HUN/CO/1, para 39. 69  See CRC Committee, Concluding Observations to Cyprus (2012) UN Doc CRC/C/CYP/CO/3-4, paras 38 and 39. 70  Report of the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos (n 19) para 53. 71  Report of the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos (n 19) para 53. 72  See generally CRPD Committee, Concluding Observations to Argentina (n 66) para 37. 73  States have an immediate obligation stemming from Article 2(2) of the ICESCR to ‘guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind’. This has been confirmed by the UNCESCR on many occasions, including in its General Comment 3 [UNCESCR, General Comment 3 on the Nature of States Parties Obligations (Art 2, para 1), adopted at the fifth session of the Committee on 14 December 1990, UN Doc E/1991/23, para 1]. The immediacy of the obligation to ensure non-discrimination in the progressive realisation of human rights is also reflected in Principle 22 of the Limburg Principles, which highlights the fact that States must ‘eliminate de jure discrimination by abolishing without delay any

Articles—Broderick 37 ­ iscrimination in education has been defined as including the treatment of any student D in a way that separates him or her from the other students and negatively impacts on his or her ability to participate in and receive education.74 This includes depriving a person or a group from access to education,75 limiting a person or group to an inferior education,76 establishing or maintaining separate educational systems for certain groups,77 or inflicting on any person or group conditions which are against their dignity.78 Of course, these remarks concerning non-discrimination in education must be viewed in conjunction with the comments made above regarding instances in which deviations from inclusive education may be necessary. The foregoing provisions are also not to be taken to mean that there is an immediately realisable right to inclusive education for persons with disabilities. That is not the case and the progressive realisation of the right to education will be expanded upon in the next sub-section below. Reasonable Accommodations and other Individualised Support Measures Experience has shown that as many as 80 to 90 per cent of children with special education needs, including children with intellectual disabilities, ‘can easily be integrated into regular schools and classrooms, as long as there is basic support for their inclusion’.79 Educational systems must therefore adapt to the individual needs of disabled learners, where that is feasible. In order to contribute to ensuring adaptability and accessibility in education for persons with disabilities, Article 24 of the CRPD imposes several positive obligations on States, including the duty to ensure provision by private and public schools of reasonable accommodation80 and other individualised measures of support. The provision of reasonable accommodations seeks to ensure disability equality in the context of the right to education, as failure to accommodate a disabled person amounts to disability discrimination under Article 2 of the Convention.81 It is not argued here that the immediate inclusion of all disabled children—no matter how profound their disability—into the mainstream education system can be described as ‘reasonable

discriminatory laws, regulations and practices (including acts of omission as well as commission) affecting the enjoyment of economic, social and cultural rights’. [Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, Principle No 37.] The Limburg Principles also note that ‘de facto discrimination occurring as a result of the unequal enjoyment of economic, social and cultural rights, on account of a lack of resources or otherwise, should be brought to an end as speedily as possible’. Ibid, Principle No 38. This is also reflected in the general comments of the UNCESCR. In that regard, see, for example, UNCESCR, General Comment 13 (n 8) para 37, in which the Committee commented as follows: ‘States parties must closely monitor education—including all relevant policies, institutions, programmes, spending patterns and other practices—so as to identify and take measures to redress any de facto discrimination’. 74 

UNESCO Convention against Discrimination in Education, Paris (1960), Article 1. Ibid, Article 1(a). 76  Ibid, Article 1(b). 77  Ibid, Article 1(c). 78  Ibid, Article 1(d). 79  United Nations (20) 85. 80  See Article 24(2)(c) and Article 24(5) of the CRPD. 81  According to Article 2 of the CRPD, ‘reasonable accommodation’ means ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’. 75 

38  The Irish Yearbook of International Law 2014 a­ ccommodation’. Nonetheless, it is argued that there are certain low-cost measures which States can take in order to ensure that the mainstream education system adapts to the needs of disabled individuals. The duty to reasonably accommodate is a qualified obligation, being subject to the defence of ‘disproportionate or undue burden’. Thus, it is not unrealistic to argue that States must ensure that educational establishments immediately take certain (generally low-cost) steps to adapt the mainstream system to the needs of persons with disabilities. In tandem with the provision of reasonable accommodations, Articles 24(2)(d) and 24(2)(e) of the Convention impose a duty on States to ensure the provision of other forms of individualised supports to persons with disabilities in the educational system. Certain support measures for disabled individuals, particularly those individuals who have higher support needs, will take much longer to put in place, such as the provision of assistive technology and accessible and adapted curricula. Indeed, it is arguable that there may be certain disabled individuals for whom effective education cannot be provided in the mainstream. As a socio-economic right, the right to (inclusive) education is subject to progressive realisation. Nonetheless, the duty to reasonably accommodate disabled students is an immediate obligation (as it falls under the non-discrimination norm). This has been confirmed by the CRPD Committee in its Concluding Observations.82 States must immediately ensure that certain measures designed to adapt the mainstream education system to disabled persons are put in place, where such adaptations do not impose a disproportionate or undue burden. This does not entail an obligation to include all disabled students immediately within the mainstream system and the provision of more complex and costly individualised supports falls within the obligations of progressive realisation incumbent on States. It is therefore subject to the ‘maximum of available resources’ criterion. Where the resources of a given State are constrained, the implementation of adequate supports to ensure the effective education of people with disabilities will be a difficult challenge. There will therefore be some leeway for States to ensure that supports are put in place gradually with a view to achieving fully inclusive systems over the medium-to-long term. Nonetheless, States are not permitted to delay in the implementation of inclusive education and must take ‘deliberate, concrete and targeted’83 steps towards achieving the goal of full inclusion in education. It goes without saying that it is no longer acceptable to pour all resources into segregated learning environments, special classes or special units in mainstream schools and that resources must instead be mobilised to ensure inclusion in the mainstream system, where such inclusion is feasible and would be in the best interests of the disabled individual in question. Appropriate Forms of Communication, Training for Teachers and Lifelong Learning Article 24(3) of the CRPD recognises the fact that certain disabled individuals will require specific forms of support in terms of alternative modes of communication (among other things), in order to ensure ‘full and equal participation in education and as members of

82 

See eg CRPD Committee, Concluding Observations to Spain (n 68) para 44. General Comment 3(n 73) para 2.

83 UNCESCR,

Articles—Broderick 39 the community’.84 Article 24(3) requires States to ensure that persons with disabilities ‘learn life and social development skills’85 by taking appropriate measures, including by ‘facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring’.86 It also requires that States facilitate ‘the learning of sign language and the promotion of the linguistic identity of the deaf community’.87 Article 24(4) of the CRPD gives concrete examples of the types of measures that will be necessary in order ‘to help ensure the realisation of the right to education for persons with disabilities’.88 That provision highlights the fact that it is not just financial resources that will be determinant in the proper implementation of Article 24. Human resources will be particularly important in ensuring the actualisation of the right to inclusive education. To that end, Article 24(4) provides that States Parties ‘shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education’.89 The Convention envisages that such training shall ‘incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities’.90 The CRPD Committee has drawn attention to the importance of human resources in implementing Article 24 of the Convention91 and has advised States to put in place policies designed to train education professionals in inclusive education.92 Article 24(5) of the Convention highlights the fact that it is not just children with disabilities who must benefit from inclusive educational settings. States must also ensure that adults with disabilities are guaranteed the right to inclusive education, as many disabled individuals have been deprived of a basic formative education. In that connection, Article 24(5) of the Convention requires States to ensure that persons with disabilities are able to access general tertiary education, lifelong learning and vocational training ‘without discrimination and on an equal basis with others’.93 In sum, the CRPD endorses a strong human-rights based approach to education, holding governments accountable for the measures they take in ensuring inclusive structures. Having thus considered the various elements of Article 24 of the CRPD, the following section of this article will analyse the extent to which the Irish legislative and policy framework, as well as educational practice in Ireland, align with the lofty aspirations embodied in Article 24 of the Convention.

84 

CRPD, Article 24(3).

85 Ibid. 86 

CRPD, Article 24(3)(a). CRPD, Article 24(3)(b). 88  CRPD, Article 24(4). 89 Ibid. 90 Ibid. 91  See eg, CRPD Committee, Concluding Observations to Spain (n 68) para 44(a); Concluding Observations to Tunisia (2011) UN Doc CRPD/C/TUN/CO/1, paras 32(c) and 32(d); Concluding Observations to Azerbaijan (2014) UN Doc CRPD/C/AZE/CO/1, para 41(b); Concluding Observations to Hungary (n 68) para 41. 92  See CRPD Committee, Concluding Observations to Costa Rica (n 67) para 46; Concluding Observations to Azerbaijan (n 91) para 41(c). 93  CRPD, Article 24(5). 87 

40  The Irish Yearbook of International Law 2014 THE IRISH EXPERIENCE—FROM EXCLUSION TO INCLUSION?

The Irish legislative and policy framework concerning educational provision for children with disabilities and those with special needs has altered dramatically in recent times. Desmond Swan has described the progression of special needs education in Ireland in three phases: the era of neglect and denial, the era of the special school and the era of integration or inclusion.94 In the subsections that follow, these gradual developments in the Irish legislative and policy framework will be analysed. The objective of that analysis will be to address two questions: Firstly, it will seek to determine whether the Irish legislative and policy framework is truly designed with inclusion in mind, in line with Article 24 of the CRPD. Secondly, it will aim to evaluate whether the Irish framework is rights-based95—that is, whether individuals with disabilities are statutorily entitled to assessment and to the requisite support services thus identified—and the implications of that in light of international human rights law. Policy Developments in Ireland Up until relatively recently, the primary protection of the right to education in Ireland was enshrined in Article 42 of the Irish Constitution.96 As far back as 1993, the Special Education Review Committee (SERC)97 report noted that Ireland had ‘a conspicuous lack of legislation governing most forms of educational provision but particularly covering [educational] provision for students with special needs’.98 The report documented serious shortfalls in the provision of education for children with special needs, as well as constraints on their integration in Irish schools. While the SERC report advocated a continuum of services to include educational provision in both ordinary and special schools, the report clearly favoured ‘as much integration as is appropriate and feasible, and as little segregation as necessary’.99 The next major development on the Irish educational landscape came in the form of the Report of the Commission on the Status of People with Disabilities (1996),100 which highlighted (among other things) the structural inequalities surrounding lack of access to, and participation in, appropriate educational programmes for persons with disabilities. The Commission’s report represented a watershed in terms of articulation of the social model of disability. It noted that ‘people with disabilities and their families […] want,

94 

D Swan, ‘From Exclusion to Inclusion’ (2000) Frontline Magazine 44. For more information on rights-based provision in the context of disability, see eg, B Nolan, On RightsBased Services for People with Disabilities, ESRI Policy Research Series No 49 (October 2003), available at www.lenus.ie/hse/bitstream/10147/337751/1/rightbasedservicespeoplewithdisabilitiesoct03.pdf, accessed 19 November 2015. 96  See Constitution of Ireland, available at www.irishstatutebook.ie/en/constitution/index.html#article42, accessed 19 November 2015. 97  Department of Education, Report of the Special Education Review Committee (Dublin, The Stationery Office, 1995). 98  Ibid, 56. 99  Ibid, 22. 100  Commission on the Status of People with Disabilities, A Strategy for Equality—Report of the Commission on the Status of People with Disabilities (Dublin, The Stationery Office, 1996). 95 

Articles—Broderick 41 and are entitled to, equality and full participation as citizens’.101 Much like its predecessor (the SERC report), there is a clear presumption for inclusion underlying the Commission’s report—it asserts the inalienable right for children with disabilities and those with special educational needs to an appropriate education in the least restrictive environment and the responsibility of all schools to strive towards inclusive institutions.102 Fundamental gaps in educational provision were further highlighted by a series of high-profile court cases103 initiated by parents of children with severe/profound general learning disabilities and/or autism spectrum disorders, in which the parents challenged the appropriateness of existing provision for their children. One of the most significant of those cases—O’Donoghue v Minister for Health and Others104—established the right of children with disabilities to an appropriate education, entailing the modification of the curriculum at primary school-level to accommodate disabled children. The case law also served to force the State to set aside a vast increase in the amount of resources for the education of children with disabilities. In response to the above-mentioned developments, the educational landscape in Ireland changed dramatically in a relatively short period of time. Shevlin et al summarise neatly this altered landscape when they state that ‘there has been a significant policy shift from parallel systems of special and mainstream education towards provision underpinned by enabling legislation with a presumption for inclusion’.105 This shift in policy and legislation was also due, in no small part, to the influence of international trends towards establishing inclusive learning environments, which resulted in a concerted effort on the part of the Irish Government to bring about integration, and ultimately to strive towards inclusion. The Irish Legislative Framework: Conditionality and Key Concerns The first major legislative development in the field of Irish education is the Education Act 1998, one of the objectives of which is ‘to give practical effect to the constitutional rights of children, including children who have a disability or who have other special educational needs, as they relate to education’.106 While the Act addresses education generally, Section 7(1) of the Education Act is of particular relevance to persons with disabilities. It requires the Minister for Education and Science to ensure that ‘support services and a level and quality of education appropriate to meeting the needs and abilities of that

101 

Ibid, para 1.2. However, the report contained the caveat that inclusive education is not feasible ‘where it is clear that the child involved will not benefit through being placed in a mainstream environment, or that other children would be unduly and unfairly disadvantaged’. Ibid, 33. 103  From the early 1990s, a number of legal test cases were brought to court in Ireland on behalf of children with special educational needs. These included O’Donoghue v Minister for Health and Others (1996) 2 IR 20 (HC); Sinnott v Minister for Education [2001] 2 IR 545 (SC); and TD and Others v Minister for Education and Others 1998 [2000] 4 IR 259 (SC). 104  O’Donoghue v Minister for Health and Others (n 103). 105  M Shevlin, E Winter and P Flynn, ‘Developing Inclusive Practice: Teacher Perceptions of Opportunities and Constraints in the Republic of Ireland’ (2013) 17(10) International Journal of Inclusive Education 1119, 1119. 106  Education Act, 1998 Section 6(a), available at www.irishstatutebook.ie/1998/en/act/pub/0051/print.html, accessed 19 November 2015. 102 

42  The Irish Yearbook of International Law 2014 person’107 are made available to each person resident in the State, including a person with a disability or who has other special educational needs. However, the foregoing provision is conditional, having regard to the resources available108 to the State. Further legislative enactments addressing the rights of persons with disabilities in the field of education are the Equal Status Acts 2000–2016, which prohibit discrimination in the provision of goods and services, the disposal of property and access to education, on the grounds of disability (among others). The Acts require that educational establishments shall not discriminate109 in relation to the admission or the terms or conditions of admission of a person as a student to the establishment110 and the access of a student to any course, facility or benefit provided by the establishment.111 Derogation from the foregoing provisions is permitted where compliance with them in relation to students with disabilities would ‘by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students’.112 In other words, access to education can be denied where the Irish State considers that what is required to facilitate access for the particular student with a disability impairs the quality of provision for students generally.113 While it is of course a laudable aim of any education system to balance the needs and capabilities of all students, this caveat is clearly not reflective of an inclusive education system. On the contrary, it creates a yawning gap between the person with a disability and his/her nondisabled peers. In a single, national education system, the focus should be on including all persons, irrespective of varying levels of capabilities. By focusing on the ‘otherness’ of persons with disabilities, and by making their right to education conditional on the rights of other students, this arguably negates the core of inclusive education. Inclusion under Article 24 of the CRPD envisages access for persons with disabilities to mainstream education on an equal basis with others [emphasis added]114 and requires systemic change in the manner in which education takes place to ensure respect for the needs of all learners. This sense of ‘otherness’ is repeated in the most recently enacted piece of legislation in this area—the Education for Persons with Special Educational Needs (EPSEN) Act 2004.115 While the text and provisions of the EPSEN Act itself are far-reaching (and will be explored below), the rights accorded to students with special educational needs in the Act are also somewhat conditional. This conditionality can be seen in Section 2 of the EPSEN Act, which confers a statutory right on children and young people with special

107 

Ibid, Section 7.1. Ibid, Section 7(4)(a)(i). 109  Under the Equal Status Acts 2000–2016, discrimination on the grounds of disability includes ‘a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service’. [Section 4(1)]. However, the educational establishment will not have to provide that accommodation if it gives rise to more than ‘a n ­ ominal cost’. [Equal Status Acts 2000–2016, Section 4(2), www.lawreform.ie/_fileupload/RevisedActs/­ WithAnnotations/EN_ACT_2000_0008.PDF, accessed 16 June 2016. 110  Ibid, Section 7(2)(a). 111  Ibid, Section 7(2)(b). 112  Ibid, Section 7(4)(b). 113  This defence is only applicable in relation to individual students and cannot be used to exclude, for example, all students with a specific disability from a particular course of study. 114  See Article 24(2)(b) of the CRPD. 115  Education for Children with Special Educational Needs Act (No 30 of 2004), available at www.oireachtas.ie/ documents/bills28/acts/2004/A3004.pdf, accessed 20 November 2015. 108 

Articles—Broderick 43 educational needs to an inclusive education alongside other children who do not have such needs. However, it places a caveat on that self-same right by stating that inclusive education will be provided unless the inclusive education is ‘inconsistent with the effective provision of education for children with whom the child is to be educated’.116 Such an opt-out clause from the obligation to work towards, and ensure, inclusive educational provision for children with special needs is not compatible with the CRPD. Moreover, it is paradoxical, in light of the fact that the EPSEN Act has as one of its primary objectives ‘to provide that people with special educational needs shall have the same right to avail of, and benefit from, appropriate education as do their peers who do not have such needs’.117 While again acknowledging the necessity to ensure that a balance is maintained between the respective rights of all individuals in the education system, the EPSEN Act provides no guidance on how such a balancing of rights might proceed. It merely stipulates that a person with special educational needs will be denied the right to mainstream education in circumstances where his/her needs impact on the rights of others. This serves to forge a gap between various types of learners and does not align with the social model of disability that underlies the CRPD. Furthermore, as Margaret Egan observes, ‘a space to manoeuvre is afforded to social professionals working within the context of practice to maintain a dual system of education in Ireland, special education for some and mainstream education for others’ [emphasis in original]118 and that space ‘subverts progress towards inclusion’.119 The EPSEN Act: Resource Considerations Notwithstanding the conditionality of the right to inclusive education in Section 2 of the EPSEN Act, overall the Act sets out a comprehensive statutory framework for the education of persons with special educational needs. The Preamble of the EPSEN Act acknowledges the fact that any provision for the education of people with special needs must be ‘informed by best international practice’.120 Moreover, it states that such educational provision aims: To assist children with special educational needs to leave school with the skills necessary to participate, to the level of their capacity, in an inclusive way in the social and economic activities of society.121

The Act provides for a statutory right to an assessment of educational needs and the development of an Individual Education Plan (IEP) for each person coming within the parameters of the Act. However, the key provisions of the Act relating to assessments and IEPs have not yet been commenced. As it currently stands, the only statutory right to an

116 

Ibid, Section 2(b). Ibid, Preamble. 118  M Egan, Inclusive Education Policy, the General Allocation Model and Dilemmas of Practice in Primary Schools (PhD Thesis, University College Cork, 2013) 163, available at https://cora.ucc.ie/bitstream/ handle/10468/1247/EganM_Thesis%20%20final%20Version%209th%20Sept.pdf?sequence=1, accessed 23 November 2015. 119 Ibid. 120  EPSEN Act, Preamble. 121 Ibid. 117 

44  The Irish Yearbook of International Law 2014 assessment of need process available to parents of a child with a disability is an assessment under Part 2 of the Disability Act 2005.122 The primary purpose of the Disability Act is to enable provision to be made for the assessment of health and education needs of people with disabilities. The logic of having two separate procedures under Irish legislation (under both the Disability Act and the EPSEN Act) was to allow for a coordinated assessment of health and personal social service and educational support needs. The Disability Act is often used as a means to expedite educational assessments, pending the commencement of the relevant sections of the EPSEN Act.123 However, the legal entitlement under Part 2 of the Disability Act to an independent assessment of health and education needs, as well as the provision of a service statement in that regard, is currently only available for children aged five and under because, in October 2008, full implementation of Part 2 of the Act was deferred as a result of the decision not to commence similar elements of the EPSEN Act. Implementation of the EPSEN Act has been delayed indefinitely, in spite of the firm commitment to implement the key provisions of the Act in the Programme for Government (2007–2012).124 In its reply to the list of issues raised by the UN Committee on Economic, Social and Cultural Rights (UNCESCR), the Irish State acknowledges that ‘due to the very difficult economic situation and significant costs involved’,125 the full implementation of EPSEN has been deferred. The Government has expressed its intention ‘to bring into effect many of the good ideas contained in the Act, on a non-statutory basis initially, through policy developments across a range of areas […]’.126 However, even such a commitment on the part of the Irish Government does not mask the fact that the EPSEN Act is not truly rights-based since the most significant rights contained in the Act, and hence the provision of supports and services, are heavily circumscribed by the actual availability of resources and by various conditionality clauses in that regard. Thus, even where necessary supports are identified in the assessment process, it may not be possible to provide those supports to a student as part of their IEP if sufficient resources are not available. The Irish legislative framework has been summed up as encompassing an ‘almost rights-based’127 legal framework. Conor O’Mahony neatly summarises the key concerns under the EPSEN Act from the point of view of the provision of resources.128 Under

122 Disability Act, No 14 of 2005, available at www.irishstatutebook.ie/eli/2005/act/14/enacted/en/html, accessed 16 June 2016. 123  However, the Department of Education and Skills issued a circular in 2011, which sought to clarify that children whose needs related only to participation in school should not ordinarily be advised to apply for an assessment under the Disability Act 2005. Department of Education and Skills, Circular No 0020/2011 ‘Circular to the Management Authorities of National Schools on the Assessment of Need Process under the Disability Act 2005’ (2011), available at http://m.into.ie/roi/circulars/circulars2011/Circular20_2011.pdf accessed 16 June 2016. 124  Programme for Government 2007–2012, available at www.greenparty.ie/government/agreed_programme_ for_government, accessed 24 November 2015. 125 UNESCR, List of Issues in Relation to the Third Periodic Report of Ireland (8 April 2015) UN Doc E/C.12/IRL/Q/3/Add.1, para 136. 126 Ibid. 127  S Drudy and W Kinsella, ‘Developing an Inclusive System in a Rapidly Changing European Society’ (2009) 13(6) International Journal of Inclusive Education 647, 660. 128  See C O’Mahony, Educational Rights in Irish Law (Dublin, Thomson Round Hall, 2006) paras 9:10–9:17 in particular.

Articles—Broderick 45 Section 13(1) of the EPSEN Act, the Minister for Education and Science, along with the Minister for Health and Children, must obtain the approval and consent of the Minister for Finance in terms of resource allocation for the purposes of the preparation and implementation of education plans prepared in respect of children with special educational needs. Section 13(3) of the Act provides that, in formulating a policy for such provision of resources, regard shall be had and ‘due account’ taken of the duties of the State under Article 42 of the Irish Constitution. Section 13(3) of the Act also provides that due account shall be taken of the objective of the Act ‘to ensure that children with special educational needs have the same right to avail of, and benefit from, appropriate education as do their peers who do not have such needs’.129 Thus, as O’Mahony points out, ‘the invocation of constitutional principles in the text of the 2004 Act arguably suggests that a lack of resources is no excuse under the legislation’ for non-provision of resources. However, he further posits that ‘a major difficulty arises’, namely that ‘in the event of insufficient resources being voted through by the Oireachtas to meet the needs of all children with special educational needs, the Minister’s hands are tied regardless of the content of the policy which he has formulated’.130 Moreover, as O’Mahony points out, ‘the Minister for Finance would seem to have been given in effect a veto on the provision of resources’.131 In that regard, he argues that ‘the limiting effect of [Section 13 of the EPSEN Act] is such that the 2004 Act does not provide for a fully effective remedy for a breach of the constitutional right to education’; nonetheless, this ‘does not act as a bar to direct recourse to constitutional provisions’.132 Such in-built resource qualifications and conditionality clauses in the Irish legislative framework are not necessarily contrary to international human rights law, which does not mandate that economic, social and cultural rights (such as the right to education) are realised immediately. Article 4(2) of the CRPD allows for progressive implementation of socio-economic rights. It is certainly not being argued that there is an immediately realisable obligation to provide inclusive education for all disabled children and resources for that purpose. While the Irish legislative framework on inclusive education is not actually rights-based (guaranteeing immediate access to resources and a justiciable right under the EPSEN Act in the event of non-provision), the concerns noted by O’Mahony above are troubling. What is even more troubling about the situation in Ireland is the fact that there are such long delays in the whole process of implementation of these key provisions of disability legislation, with no apparent transparency in that process. In order to guarantee that fully inclusive education can be effectuated in Ireland, it is vital that the key provisions in both the Disability Act and the EPSEN Act are commenced without delay and that the essential interface between the two Acts is mapped out procedurally. This will serve to ensure external support services are in place to bolster educational provision in Ireland for persons with disabilities and those with special educational needs. Pending full implementation of the relevant legislation, the Irish Government must take concrete measures to ensure a real shift towards inclusive education in practice.

129 

EPSEN Act, Section 13(3). O’Mahony (n 128) para 9.12. 131  O’Mahony (n 128) para 9.12. 132  O’Mahony (n 128) para 9.16. 130 

46  The Irish Yearbook of International Law 2014 The Definition of ‘Disability’ and ‘Special Educational Needs’ In addition to the foregoing remarks, one might also voice concern with regard to the definitions of ‘disability’ and ‘special educational needs’ in Irish legislation. The term ‘disability’ is defined under the Disability Act as a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State by reason of an enduring physical, sensory, mental health or intellectual impairment.133

The EPSEN Act provides that ‘special educational needs’ entails: A restriction in the capacity of the person to participate in and benefit from education on account of an enduring physical, sensory, mental health or learning disability, or any other condition which results in a person learning differently from a person without that condition.134

Neither of these definitions is in line with the social model of disability underlying the CRPD, since they both focus on the functional limitations of impairment and not on the external barriers in society.135 The formulation of these terms in the Irish legislative framework highlights the fact that government policy still deals with disability in terms of difference from the mainstream. That inevitably impacts on any attempts to ensure inclusive learning environments. Integration versus Inclusion in Education Another point of incongruence in the Irish legislative and policy framework is the blurring of the terms ‘integration’ and ‘inclusion’. The concept of integration was proposed by the SERC report in 1993, yet the EPSEN Act talks about inclusive education.136 There is a noticeable conflation of both terms in several key Irish policy documents. For instance, Special Education Circular 24/03137 refers to ‘inclusion’138 but also to ‘the principle of integration in learning and teaching’.139 Furthermore, it recommends that, ‘wherever possible, schools should provide additional help for children in the mainstream classroom or, if necessary, in small groups’.140 Education in ‘small groups’ is tantamount to withdrawal from the mainstream classroom, a teaching strategy that is not encompassed by the term ‘inclusion’. Special Education Circular, SP ED 02/05,141 also refers to 133 

Disability Act 2005, Section 2(1). EPSEN Act 2004, Section 1(1). other issues have been identified with regard to the definition of disability put forward in the Disability Act 2005. See further www.nuigalway.ie/cdlp/documents/publications/CDLP%20submission%20 review%20of%20Disability%20Act%2028%20May%202010.pdf, accessed 25 November 2015. 136  Perhaps this can be explained by the time gap in between the two documents and the influence of international law in that respect (which has moved away from using the term ‘integration’ towards speaking in terms of ‘inclusion’). 137  Department of Education and Science, Circular letter SP ED 24/03, ‘Circular to Boards of Management and Principal Teachers of National Schools Allocation of Resources for Pupils with Special Educational Needs in National Schools’, available at m.into.ie/roi/circulars/circulars2003/SP24_03.doc, accessed 25 November 2015. 138  Ibid, at para. 8. 139  Ibid, at para. 6. 140 Ibid. 141  Department of Education and Skills, Special Education Circular, SP ED 02/05, ‘Organisation of Teaching Resources for Pupils who need Additional Support in Mainstream Primary Schools’ (August 2005), available at www.education.ie/en/Circulars-and-Forms/Active-Circulars/sped02_05.pdf, accessed 25 November 2015. 134 

135  Various

Articles—Broderick 47 the notion of ‘withdrawal of pupils from mainstream classes’ in the context of ensuring ‘an inclusive approach to education’.142 This sends mixed signals to those responsible for delivery of education and inevitably impacts on educational practice (a point that will be considered below).143 As long as there is no clear delineation between the terms ‘integration’ and ‘inclusion’ in the Irish legislative and policy framework, the State will continue to address the rights of persons with special educational needs in terms of difference, rather than in an inclusive cohesive manner, which focuses on the innate capabilities and potential of individual learners. In spite of the various gaps in the legal and policy framework in Ireland, there is no doubt that there has been a significant increase in the resources provided to the education sector to address the needs of persons with disabilities and those with special educational needs. The Irish Government’s annual expenditure on special education increased from €468 million in 2004 to €1.3 billion in 2011, representing a percentage increase of 178 per cent. This was at a time when the State’s total income from tax returns fell by €1.5 billion.144 This investment has resulted in approximately 10,000 learning support and resource teachers having been assigned to Irish schools in recent times (an increase from a level of approximately 1,300 in 1993), in addition to over 10,000 special needs assistants (up from fewer than 100 in 1993), as well as the purchase of specialist equipment and school building adaptations.145 As a result, there has been a substantial increase in the number of students with disabilities/special needs enrolling in mainstream schools. Research findings have shown that the majority of children with disabilities and/or special educational needs (72 per cent) now attend mainstream schools and that a further 13 per cent are in special classes in mainstream schools, while 15 per cent attend special schools.146 One could say that there has certainly been an outward appearance of a shift towards inclusive education. Nonetheless, it is vital to dig deeper and to unearth the truths concerning Irish educational practice—is the Irish system truly inclusive or inwardly exclusionary?

Inclusive Education in Practice: A Case of Eloquent Theory or Words in Action? In order to determine whether the Irish legislative and policy framework on education translates into effective provision in practice, in accordance with Article 24 of the CRPD, the following sub-sections of this article will analyse Irish educational practice under the principal criteria set down by the CRPD as being vital to inclusive educational provision.

142  In that regard, it states that ‘logistical factors, such as timetabling for in-class additional teaching support and for withdrawal of pupils from mainstream classes, should be taken into account in order to ensure an inclusive approach to the education of the pupils to the greatest extent possible’. Ibid, 6. 143  See sub-section entitled ‘Supports for Persons with Disabilities in the Irish Education System’ below. 144  National Council for Special Education (NCSE), Supporting Students with Special Educational Needs in Schools, NCSE Policy Advice Paper No 4 (2013) 4. 145 Ibid. 146  National Disability Authority (NDA) and the Economic and Social Research Institute (ESRI), Insights into the Lives of Children with Disabilities: Findings from the 2006 National Disability Survey (March, 2015), ix, available at nda.ie/nda-files/Insights-into-the-Lives-of-Children-with-Disabilities-Full-Report.pdf, accessed 16 June 2016.

48  The Irish Yearbook of International Law 2014 Non-Discrimination and Access to Inclusive Education in Ireland The UNCESCR has expressed its concern to the Irish Government regarding the persistence of discrimination against persons with physical and mental disabilities in the field of education, among others.147 Articles 24(2)(a) and 24(2)(b) of the CRPD highlight the importance of ensuring non-discriminatory access to inclusive education for children with disabilities. Non-discriminatory access entails, in the first instance, an inclusive enrolment policy, as well as equality of access to, and participation in, the mainstream system. The right to equality of access is guaranteed under Irish legislation.148 It also underpins the policy framework in Ireland.149 In spite of the fact that there has been a dramatic increase in the number of disabled children entering mainstream schools, a recent debate in Seanad Éireann highlighted the many practical difficulties experienced by those with all forms of disability in accessing educational and other services.150 The barriers encountered by disabled persons within the education system are manifold and can relate, for instance, to difficulties in accessing the mainstream curriculum, as well as a lack of reasonable accommodation and individualisation. In addition, barriers can take the form of physical obstacles in the educational environment or attitudinal barriers, such as negative stereotyping of the capabilities of persons with disabilities. Class Placements for Disabled Students A joint report by the National Disability Authority (NDA) and the Economic and Social Research Institute (ESRI) demonstrates the fact that access to mainstream schools is not always guaranteed. In fact, the report shows that class placements ‘appear to be influenced by the type of disability’151 a student has. The report observes, for instance, that children with speech difficulties are more likely to be placed in segregated schools or classes than children with other forms of disability. The report also demonstrates the fact that children with intellectual or learning difficulties, those with autistic spectrum disorders or intellectual impairments, such as Down’s syndrome, are ‘far more likely to be placed in special education settings compared to children with learning d ­ isabilities152,

147 UNCESCR, Concluding Observations to Ireland: Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant (5 June 2015) UN Doc E/C.12/1/Add.77, para 15. 148  See eg Education Act 1998, Section 6(c), which states that one of the objectives of the Act is ‘to promote equality of access to and participation in education and to promote the means whereby students may benefit from education’; See also Education Act 1998, Section 21(2), which states that ‘the school plan shall state the objectives of the school relating to equality of access to and participation in the school and the measures which the school proposes to take to achieve those objectives including equality of access to and participation in the school by students with disabilities or who have other special educational needs’; See also the Equal Status Acts 2000–2011, Section 7(2)(b). 149  See eg the National Disability Strategy Implementation Plan (2013–2015), a major objective of which is to ensure that ‘people with disabilities get the education and training that enables them to reach their potential’ and to ensure ‘participation by persons with disabilities in education programmes,’ although it is unclear as yet how these aims will be implemented. [National Disability Strategy Implementation Group, National Disability Strategy Implementation Plan 2013–2015, p 33, available at www.justice.ie/en/JELR/NDS_ImplementationPlan_ FINAL.pdf/Files/NDS_ImplementationPlan_FINAL.pdf, accessed 26 November 2015.] 150  Access to Educational and Other Opportunities for People with Disabilities: Motion Debated Wednesday, 24 September 2014 Dáil Éireann Debates Vol 773 No 1 (2014). 151  NDA and ESRI (n 146) ix. 152  NDA and ESRI (n 146) ix.

Articles—Broderick 49 such as dyslexia and attention deficit hyperactivity disorder. Significantly, there is a discrepancy between access to primary and second-level education, with students being more likely to enter special education at post-primary compared to primary level.153 It is unclear whether this phenomenon is attributable to discriminatory enrolment policies or parental choice (on account of a lack of supports to sustain effective education in mainstream schools). Either way, it is important to point out that inclusive education is only effective in circumstances where it is properly resourced and supported. In the absence of sufficient resources and individualised learning supports, there is a grave risk that the education of persons with disabilities in the mainstream can be isolating and exclusionary, thereby impacting negatively on the learning experience of the disabled individual. It is imperative that there is greater transparency in the Irish context concerning decisions on class placement in order to ensure non-discrimination in implementation of the right to inclusive education. In its implementation report on the EPSEN Act, the National Council for Special Education (NCSE)—established under the Act to provide (among other things) planning, assessment, service delivery and research functions— referred to concerns about the perceived development of so-called ‘magnet schools’,154 whereby schools in a local area may have an over-representation of children with special educational needs while other schools in the same area have a significant under-representation. This clearly demonstrates the fact that access to existing mainstream schools is not always guaranteed for students with disabilities and those with special educational needs. Moreover, it illustrates that the theory behind inclusive education ‘is not yet working in practice’.155 Tertiary Education, Lifelong Learning and Adult Education Beyond the issue of access to primary and post-primary education, the Irish legislative framework does not provide much scope for increasing access to tertiary education, vocational training, adult education and lifelong learning specifically for persons with disabilities,156 contrary to Article 24(5) of the Convention.157 The main focus of the EPSEN Act is on primary and secondary education and the scope of the Act is limited mainly158

153 

NDA and ESRI (n 146) ix. Implementation Report of the EPSEN Act 2004 (2006) 53. 155 Ibid. 156  In that regard, note that Section 6(d) of the Education Act 1998 states that one of the objectives of the Act is ‘to promote opportunities for adults, in particular adults who as children did not avail of or benefit from education in schools, to avail of educational opportunities through adult and continuing education’. 157  Article 24(5) of the EPSEN Act provides that States must ensure that persons with disabilities can access such forms of education ‘without discrimination and on an equal basis with others’. 158  The EPSEN Act does refer occasionally to adults with disabilities. For instance, Section 15(1) of the Act provides that: ‘In preparing or reviewing an education plan, the principal of the relevant school or relevant special educational needs organiser shall, from the child’s attaining such age as the principal or organiser considers appropriate, have regard to the provision which will need to be made to assist the child to continue his or her education or training on becoming an adult’. In addition, Section 15(2)(b) of the EPSEN Act provides that: ‘In performing the functions under subsection (1), the principal or the special educational needs organiser shall […] take such steps as are necessary as will enable the child to progress as a young adult to the level of education or training that meets his or her wishes or those of his or parents and that are appropriate to his or her ability.’ See also Sections 20(h) and 20(i) of the EPSEN Act. 154 NCSE,

50  The Irish Yearbook of International Law 2014 to children under the age of 18. This hinders significantly the right to education for a large proportion of disabled persons. This narrow application of the Act is not in line with the obligations engendered by the CRPD. The Irish Government has committed to taking a number of other initiatives159, which may contribute to meeting the obligations set down in the Convention in that regard. For instance, it has adopted the National Plan for Equity of Access to Higher Education (2008–2013),160 the key objective of which is to ensure that the higher education rates of people with disabilities will be increased through greater opportunities and supports. However, in the absence of concrete legislation governing the area, opportunity gaps continue to arise. There is no denying the fact that progress has certainly been made in ensuring access of persons with disabilities to higher education. In fact, the academic year 2012/2013 showed the ‘biggest year-on-year increase in the participation rates of students with disabilities in higher education (up to 4.6% of [the] total student population)’.161 Notwithstanding this, there are still clear barriers to access for certain categories of disabled people. One report highlights grave concerns regarding low participation rates of students who are blind or visually impaired in higher education and recommends in that regard ‘access to learning via technology […],’162 stating that: A separate structured programme in specific skills such as [information and communications technology] is required to enable them to reach national standards in the core skills and achieve the entry requirements for higher education.163

Practical difficulties in gaining access to Irish higher education systems are echoed in a report by the Academic Network of European Disability Experts, which notes that: While there has been progress in relation to access for disabled people to third level institutions, this has mainly focused on those with physical and sensory disabilities and additional supports and resources are required to ensure inclusion of people with an intellectual disability.164

Recent figures estimate that only four per cent of those with an intellectual and learning disability have a third-level degree and 63 per cent have not progressed to second level (compared to 19 per cent of all adults).165 It is clear that the eloquent theory of inclusive education does not translate to practice for all categories of persons with disabilities. In that connection, the Irish Higher Education Authority notes that ‘the considerable achievement of many countries in the promotion of lifelong learning suggests that there

159  See eg the commitments made by the Irish Government in the Department of Enterprise, Trade and Employment Sectoral Plan, relating to the FAS Vocational Training Strategy. 160  The National Access Plan (2015–2019) is still pending. 161  Association for Higher Education Access and Disability, ‘Number of Students with Disabilities Studying in Higher Education in Ireland 2012/2013’ (Dublin, Ahead Educational Press, December 2013) 48, available at www.tcd.ie/disability/assets/doc/pdf/Annual-report-statistics/12-13/Ahead%20%20PARTICIPATION%20 RATES%20REPORT%202012-13.pdf, accessed 27 November 2015. 162 Ibid. 163 Ibid. 164  R Webb, Academic Network of European Disability Experts, Ireland: Country Report on Equality of Educational and Training Opportunities for Young Disabled People (Leeds, Centre for Disability Studies, University of Leeds, 2010) 2. 165  D Watson and B Nolan, A Social Portrait of People with Disabilities in Ireland (Dublin, ESRI/Department of Social Protection, 2011) 20.

Articles—Broderick 51 is significant room for improvement in Ireland’.166 In fact, the UNCESCR has urged the Irish State ‘to enact legislation that extends the constitutional right to free primary education to all adults with special educational needs’.167 There is also, of course, the issue of those adults who require intensive education of a more fundamental variety into adulthood—the very issue that was at the centre of the Sinnott case.168 It is notable that the Disability Act 2005 makes some (very) limited provision for such types of support needs. In that connection, the definition of ‘disability’ in Section 2 of the Act is interpreted in Section 7 of the Act as including situations which give rise ‘to the need for services to be provided continually to the person whether or not a child […]’.169 Curriculum Differentiation Aside from the initial difficulties in actually accessing the education system, once inside the Irish educational system, children with special needs require appropriate access to mainstream curricula. An inclusive curriculum must be adaptable, accessible and flexible so that the diverse needs of all learners are met. In that regard, differentiation of the curriculum is vital to ensuring a truly inclusive education system, as it promotes access for all students by acknowledging that individuals learn at different rates and in different manners. Differentiated instruction concerns adjustments to classroom organisation and management, to the content of lessons and pedagogy, to the degree of access to resources and to assessment methods, among other things.170 A more recent development linked to differentiation is the concept of ‘universal design’. Universal design pre-empts and overcomes barriers to curricular access from the outset and therefore appeals to the diverse needs of all learners, making learning accessible to all. The CRPD poses a heavy challenge to States Parties to overhaul their education systems in a manner that will ensure that students receive individualised supports to meet their needs, but within a system that ensures that educational processes are ‘usable by all’.171 The Irish primary curriculum has been acknowledged as having a ‘strong philosophical underpinning in terms of being child-focused’ and being ‘non-prescriptive in terms of

166  Higher Education Authority, ‘National Plan for Equity of Access to Higher Education 2008-2013’, 52, available at www.hea.ie/sites/default/files/national_plan_for_equity_of_access_to_higher_ed.pdf52, accessed 29 November 2015. 167  UNESCR (n 125), para 36. 168  Sinnott v Minister for Education (n 103). 169  See Section 7(2) of the Disability Act 2005. 170  According to the Department of Education in Ireland: ‘Instruction can be differentiated, for example, in relation to the level of difficulty of the subject matter, the style of presentation of a lesson, the pace of the lesson, the lesson structure, the style of questioning, the sequence of learning activities to be undertaken by the student, the degree of access to additional resources for an individual student, and the degree of access to additional teaching support for an individual student.’ [Department of Education and Science, Inclusion of Students with Special Educational Needs: Post-Primary Guidelines (Dublin, Stationery Office, 2007), 72/73. ­available at www.education.ie/en/Publications/Inspection-Reports-Publications/Evaluation-Reports-Guidelines/ insp_inclusion_students_sp_ed_needs_pp_guidelines_pdf.pdf, accessed 6 December 2015.] 171  Article 2 of the CRPD defines ‘Universal Design’ as follows: ‘The design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed’.

52  The Irish Yearbook of International Law 2014 lesson content’.172 The NCSE acknowledges the fact that the Irish primary curriculum ‘also attempts to encourage variation and differentiation in teaching methods’.173 Furthermore, Irish policy documents encourage differentiated pedagogical approaches.174 The NCSE has observed that teachers in primary schools: Do use a range of strategies to differentiate the curriculum for young children with [special education needs] by, adapting their classroom organisation, using additional or different resources, modifying the content of the lesson and occasionally modifying their expectations of pupils or using some form of specialist pedagogy.175

However, the NCSE notes that most of these strategies are used ‘only by a minority of teachers for a small percentage of the time’.176 Access to the secondary curriculum for persons with disabilities and those with special needs is inherently more difficult. This is due to the heavy focus of pedagogy on State examinations, which has been deemed to ‘ensure the rigidity of curriculum organisation in junior cycle’.177 The NCSE notes that ‘there is a recognition that junior cycle curriculum and assessment provision is not meeting the needs of students with mild and moderate learning disabilities’.178 Since access to tertiary education is determined on the basis of performance at second-level, the rigidity and competitiveness inherent in the Irish educational system militates against inclusion at tertiary level, owing to the fact that a student’s performance at the point of exit from the second-level education system determines his/her point of entry to third-level education.179 Supports for Persons with Disabilities in the Irish Education System In order to ensure that education is truly inclusive for persons with special educational needs, in line with Article 24 of the CRPD, the provision of reasonable accommodations 172  NCSE, Research Report No 8, Access to the Curriculum for Pupils with a Variety of Special Educational Needs in Mainstream Classes: An Exploration of the Experiences of Young Pupils in Primary School (2011), 19, available at http://ncse.ie/wp-content/uploads/2014/10/AccesstotheCurriculum_1.pdf, accessed 30 November 2015. 173 Ibid. 174  See eg Department of Education and Skills, Circular No 0070/2014 (Circular to the Management Authorities of Secondary, Community and Comprehensive Schools and the Chief Executive Officers of the Education and Training Boards: Guidance for Post-Primary Schools on the Provision of Resource Teaching and Learning Support), para 7.3, available at www.education.ie/en/Circulars-and-Forms/Active-Circulars/cl0070_2014.pdf, accessed 30 November 2015. 175  NCSE (n 172) 3. 176 Ibid. 177  National Council for Curriculum and Assessment, Innovation and Identity: Ideas for a New Junior Cycle (February 2010) 9. 178  In that regard, the NCSE has cited responses to a 2007 publication by the National Council for Curriculum and Assessment (NCCA) of Guidelines for Teachers of Students with Mild General Learning Disabilities, which recognised that a group of students exists that, even with teacher support using the most sophisticated approaches to differentiation, would never access the mainstream junior cycle curriculum. National Council for Special Education, Curriculum and Curriculum Access Issues for Students with Special Educational Needs in Post-Primary Settings: An International Review, 16, available at http://ncse.ie/wp-content/uploads/2014/10/ Access_to_the_Curriculum_19_10_12-2.pdf, accessed 30 November 2015. 179  With regard to third-level access for persons with disabilities in Ireland, it is worth taking note of the Disability Access Route to Education (DARE) scheme, which is a third-level alternative admissions scheme for school-leavers whose disabilities have had a negative impact on their second-level education. The scheme consists of offering reduced points places to school leavers, who as a result of having a disability have experienced additional educational challenges in second-level education.

Articles—Broderick 53 and other effective individualised supports is vital. On the surface, it would seem that the Irish Government’s actions align with the obligations laid down by the CRPD to ensure that persons with disabilities receive the support required, within the general education system, to facilitate their effective education.180 As shown above,181 supports for mainstream schools have increased greatly over the last two decades and reasonable accommodations are now widely available in the context of State examinations for candidates with certain permanent or long-term conditions (including visual and hearing difficulties and specific learning difficulties).182 While the amount of supports provided to Irish children has increased, it is necessary to dig beneath the surface and uncover whether the Irish system of supports does actually facilitate effective inclusive education. The General Allocation Model of Learning Support Provision Up until September 2005, the Irish system of allocating resources for educational supports consisted of the approval of individual applications, based on the categorisation of students for resource eligibility. Since then, the Irish Government has effected welcome changes to resource allocation by introducing, in September 2005, the General Allocation Model (GAM) of learning-support provision into primary schools under the Department of Education Special Education Circular, SP ED 02/05. That policy document provides primary schools183 with a permanent allocation of support based on enrolments for different categories of schools and ensures a general allocation of resources to local settings and authorities to meet needs as they arise.184 The introduction of the GAM was intended to ensure that schools have a means of providing additional teaching support to pupils with high incidence disabilities185 (mild but frequently-occurring disabilities, such as dyslexia or other learning or behavioural difficulties) without recourse to making applications on behalf of such pupils. This was supposed to facilitate flexible and early intervention for pupils with high incidence disabilities and has been welcomed as a great improvement on the pre-existing state of affairs.

180 

CRPD, Article 24(2)(d). See sub-section entitled ‘The Irish Legislative Framework: Conditionality and Key Concerns’ above. 182  Application may be made in that regard to the State Examinations Commission for a reasonable accommodation to facilitate the student in taking an examination. 183  For information on the resource allocation model in Irish post-primary schools, see Department of Education and Skills (n 174). 184  The General Allocation Model provides additional teaching resources to assist schools in making appropriate provision for the following students: 181 

—— ——

——

Pupils who are eligible for learning-support teaching (those whose score below the 10th percentile on standardised reading or mathematics tests); Pupils with learning difficulties, including pupils with mild speech and language difficulties, pupils with mild social or emotional difficulties and pupils with mild co-ordination or attention control difficulties associated with identified conditions such as dyspraxia, attention deficit disorder, attention deficit hyperactivity disorder; and Pupils who have special educational needs arising from high incidence disabilities (borderline mild general learning disability, mild general learning disability and specific learning disability). [See Department of Education and Skills (n 141).]

185  High incidence disabilities are those that occur more frequently in the general population, such as borderline mild general learning disability, mild general learning disability and specific learning disability.

54  The Irish Yearbook of International Law 2014 With regard to pupils with low incidence disabilities186 (complex but less frequentlyoccurring physical, sensory or intellectual disabilities like cerebral palsy, deafness or autism), schools continue to be allocated additional resource teaching hours for the support of such students on the basis of a diagnosis. This means that pupils with ­‘low-incidence’ disabilities still have to undergo the system of individual applications and ‘often have to “tick the right box” of a set list of 11 disability categories in order [to] get resource teaching hours, even if their educational needs are more complex in reality’.187 The necessity for students to have a formal diagnosis of disability before they can access additional resource teaching support is not in line with the CRPD and furthermore creates inequalities between learners, on account of the inability of some schools and students to access these formal assessments. The GAM was intended ‘to make possible the development of truly inclusive schools’.188 In spite of its laudable aims, it is interesting to note that throughout Circular 02/05 itself, there is constant reference to methods of learning support that can take place outside of the mainstream classroom, thereby going against the spirit of inclusion. The circular allows for ‘in-class as well as out-of-class teaching support by the learning-support/ resource teacher’ [emphasis added].189 The circular also maintains that most students will receive ‘additional teaching support in the classroom or in small withdrawal groups in addition to the support they receive from the class teacher […]’ [emphasis added].190 As Margaret Egan contends, ‘any approach that is seen as an “add-on” will always be interpreted as that which is outside the norm, not considered mainstream’.191 Egan also points to the fact that there is ‘no mention of [cooperative-teaching] as a model of support in the circular introducing a “new” approach to support’.192 Cooperative teaching is a method of pedagogy that relies on a classroom teacher, as well as a learning support or resource teacher, both of whom educate students together in the same classroom to meet the needs of all individuals. By allowing the key actors in the education sphere to willingly choose to withdraw students from the mainstream classroom, and by not placing limitations on the level of withdrawal that can take place, the text of Circular 02/05 actually militates against inclusion. This inevitably manifests itself in practice in Irish schools. In fact, a review of Irish primary schools points to the fact that some schools continue to have a ‘heavy reliance’193 on the withdrawal method of support. This goes against the core of inclusive education

186  Low incidence disabilities include, for instance, physical disability, hearing impairment, visual impairment, emotional disturbance, severe emotional disturbance, moderate general learning disability, severe/­ profound general learning disability, autism/autistic spectrum disorders, specific speech and language disorder, as well as multiple disabilities. 187  J Cradden, ‘Special Needs Education in Mainstream Schools’ The Irish Times, Dublin, 7 January 2014, available at www.johncradden.ie/2014/01/07/special-needs-education-in-mainstream-schools/, accessed 28 November 2015. 188  Department of Education and Skills (n 141), 3. 189  Department of Education and Skills (n 141), 4. 190  Department of Education and Skills (n 141), 3. 191  Egan (n 118), 174. 192  Egan (n 118), 175. 193  Department of Education and Skills, Review of the Primary Schools’ General Allocation Model, 11, available at www.education.ie/en/Publications/Policy-Reports/Review-of-the-Primary-Schools’-GeneralAllocation-Model.pdf, accessed 1 December 2015.

Articles—Broderick 55 under the CRPD. By withdrawing students from the mainstream environment, it hinders their access to the mainstream curricula and it negates their ability to develop their capabilities on an equal basis with others. It makes them dependent on the support received, rather than nurturing their innate potential alongside their peers. It is hardly surprising that there are such divergences between inclusive aspirations and practice in Ireland, in light of the fact that there is no coherent interplay between legislation and policy on certain pivotal issues related to the education of persons with special needs. Surprisingly, there is no reference to the EPSEN Act in the text of Circular 02/05, even though the GAM policy operates within that self-same legislative context. In spite of its many advantages, one major drawback of the GAM is that, in determining eligibility for learning-support teaching, priority is given to pupils whose achievement is at or below the 10th percentile on standardised tests of reading or mathematics. This means that entitlement to support is determined according to IQ measurements and standardised assessments. This is out of line with the social model of disability as it measures functional limitations rather than barriers in society and also results in constructions of ‘otherness’ and deviance from the norm. It measures abilities and capabilities according to mainstream standards, rather than acknowledging that capabilities come in all shapes and sizes. Indeed, under Article 24 of the CRPD (and according to the spirit and tenor of the Convention on the whole), the full potential of children with disabilities should be recognised. CRPD-Compliant Resource Allocation All of the above raises the vital question as to how resources should be allocated in respect of learning support in a manner that would be CRPD-compliant, assuming that resources are limited?194 In many of its concluding observations, the CRPD Committee has emphasised the importance of including sufficient budgetary allocations in inclusive education policies drawn up by States.195 While some support measures may be expensive, ensuring inclusive education may not require additional resources but merely a cost-effective reallocation of existing resources which have been poured into special educational facilities.196 Of course, many practical and challenging issues lie ahead for States in harnessing existing resources from special educational facilities into resources designed to assist the mainstream provision of education. National authorities must therefore draw up a plan of action with concrete benchmarks for addressing such challenges in order to enable the full and effective realisation of the right to education within a reasonable timeframe. In all States, but particularly in developing States, resources should be used optimally. States will be required to ensure that they maximise existing resources through international

194 

This paragraph has been taken, in large part, from my doctoral thesis (n 6). generally, CRPD Committee, Concluding Observations to Argentina (n 66) para 38; Concluding Observations to Hungary (n 68) para 41; Concluding Observations to Peru (2012) UN Doc CRPD/C/PER/ CO/1, para. 37; Concluding Observations to Spain (n 68), para 44(a); Concluding Observations to Tunisia (n 91), para 32(d). 196  Mr Villalobos acknowledges that ‘much can be done to work towards inclusive education either at little additional costs or through the more efficient and effective use of existing resources’. [Report of the Special Rapporteur on the Right to Education, Vernor Muñoz Villalobos (n 19) para 83]. See also CRPD Committee, Concluding Observations to China (n 68), para 36. 195  See

56  The Irish Yearbook of International Law 2014 assistance, where necessary. It will be particularly important to ensure rights-based and performance-based budgeting in order to identify the areas where resources are being wasted and where existing resources can be more efficiently targeted to implement the right to inclusive education (among other rights) for persons with disabilities. In States where new schools are being built, the most important thing will be to identify and implement appropriate cost-effective measures from the outset. In that regard, the Convention’s universal design mandate will be critical. Diane Richler states that the CRPD can promote system change by encouraging State Parties to ensure ‘universal design in educational provision, including curriculum, instructional and teaching methods’.197 The cost of including accessible features from the very outset, at the time of construction, can be low or minimal. However, costs increase substantially if accessibility features are introduced at a later stage. Brian Nolan has put forward a suggestion for increasing transparency in resource and service provision. He contends that the State, through the relevant authorities, should ‘set out clearly what level of service provision the current level of resources is intended to underpin’.198 He asserts that people with disabilities should not only know what this level of service provision is, but that they should have ‘an entitlement to those services with associated enforcement199 mechanisms’.200 Moreover, he suggests that the State should ‘set out in concrete terms how services are to be improved over time as more resources become available’.201 In the Irish context, a proposed new model for allocating teaching resources for students with special educational needs has been put forward by the NCSE. The NCSE recommends that all children should be allocated additional resources in line with their level of need, rather than by disability category, and a new allocation model should be developed based on a school’s educational profile, while providing a baseline allocation to every mainstream school to support inclusion. The new model proposes a number of welcome changes, including the fact that parents would no longer need to get a diagnosis for their children to be able to access additional resources. Instead, each school’s allocation of resources would be based ‘on a formula linked to numbers of pupils with complex needs, children with low reading-test scores, the social mix of pupils, and the gender mix of the school’. While the use of test scores is not in line with the social model of disability, the emphasis on students’ levels of need rather than on the type of disability they have is a welcome change. This would mean a move away from ‘labelling and potentially stigmatising students’.202 In spite of the new proposals, Minister for Education Jan O’Sullivan has announced that she is not planning to change the system in September 2015, as had been originally proposed. Instead, she has asked department officials to design a pilot of

197  D Richler, ‘Inclusive Education and Systemic Reform’ (Presentation at the Conference on Inclusive Education, Moscow, September 27 2011), available at www.unicef.org/ceecis/Diane.pptx, accessed 4 December 2015. 198  Nolan (n 95) 48. 199  Currently, Part 2 of the Disability Act provides for an independent redress mechanism. Additionally, Section 36 of the EPSEN Act provides for the establishment of the Special Education Appeals Board for the resolution of disputes and the determination of appeals. 200  Nolan (n 95), 48. 201  Nolan (n 95), 48. 202  Information taken from J Banks, ‘Resources for Students with Disabilities in Irish Schools: What Do We Know?’ The Irish Times, Dublin, Monday, 22 June 2015.

Articles—Broderick 57 the new model, which schools could opt into on a voluntary basis. In making this decision, the Minister said she was guided by the advice of a working group of the NCSE that ‘sufficient time’ should be allowed for further consultation with the education stakeholders before the new model was implemented in schools.203 Coordination of Resources and Service Delivery Another core tenet of inclusive education entails the coordination of resources and service delivery between the various sectors in the education system, as well as ensuring the coordination of external support services to address, for instance, the health needs of pupils with disabilities.204 There is a distinct lack of supports at the transitional phase in the Irish education system. Lack of cohesion between the different education sectors ‘from [early years] settings to primary and from primary to post-primary school’ has been identified as a challenge in a report by Travers et al.205 The EPSEN Act, in Section 9(g) thereof, states that the IEP provided to a child with a disability must contain, ‘where appropriate, the special education and related support services to be provided to the child to enable the child to effectively make the transition from primary school education to post-primary school education’.206 However, as highlighted above, the provisions concerning IEPs in the EPSEN Act have not yet been commenced. Therefore, the statutory framework supporting the transitional phase in the life of a disabled learner is weak at present. Teacher Training In order to guarantee inclusive education systems, it is vital that teachers and other educational professionals have sufficient and appropriate training in implementing and differentiating the curriculum for persons with disabilities and those with special educational needs. Article 24(4) of the CRPD requires States Parties to ensure that all staff working at all levels of the education system receive disability awareness training, as well as training on the use of ‘appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities’.207 An issue of pressing concern in the Irish context is the lack of access to teacher training for those working with children with disabilities in mainstream schools. An NCSE report exploring the experiences of young pupils in primary schools reveals that two-thirds of the teachers interviewed said that initial teacher training in special educational needs was

203  Information taken from J Humphreys, ‘Planned New System for Special Needs Resources is Shelved’ The Irish Times, Dublin, Friday 19 June 2015. 204  On this point, see further Drudy and Kinsella (n 127), 655. 205  J Travers et al, Addressing the Challenges and Barriers to Inclusion in Irish Schools: Report to Research and Development Committee of the Department of Education and Skills (2010) 127, available at www.spd. dcu.ie/site/special_education/documents/AddressingChallengesBarrierstoInclusioninIrishSchools_StPatricks­ College_2014.pdf> accessed 5 December 2015. 206  EPSEN Act (2004), Section 9(g). 207  CRPD, Article 24(4).

58  The Irish Yearbook of International Law 2014 ‘non-existent or minimal’208 and that ‘only a minority’209 of the teachers interviewed felt prepared to work with children with special educational needs in a mainstream classroom as a result of their lack of initial training in that regard. While the Irish State offers a variety of post-graduate qualifications in special educational needs, one of the entry requirements for many of these courses is being currently appointed to a special education post (such as a resource or learning support post). This excludes mainstream teachers from eligibility for such courses.210 Moreover, access to Continuing Professional Development (CPD) is limited. If the implementation of inclusive education is going to succeed in Ireland, this situation cannot be allowed to persist. Inclusive education materials and methodologies should be disseminated as a core part of the syllabus for initial teacher-training and all educators should have ready access to CPD training on dealing with special educational needs in the mainstream. Additionally, the use of pyramid training techniques should be encouraged, whereby teachers, once trained in inclusive education methodologies, teach their peers.211 Effective Education: Accountability and Outcomes A core tenet of Article 24 of the CRPD is the provision of ‘effective education’212 for learners with disabilities. The goal of inclusion has been stated by the Irish Government as being: To create a framework within which differences between individuals are accommodated and celebrated. […] Inclusion does not seek to erase or ignore differences between individuals: in its essence, inclusion implies the right to appropriate education.213

Despite policy objectives and the largely positive response to international developments supporting the establishment of inclusive educational provision, limited information exists in Ireland regarding the extent to which the academic and social needs of individuals with disabilities and/or special needs are being met in mainstream environments, in particular. While the numbers of children with special needs attending mainstream schools has increased dramatically as a result of the various developments outlined in this article,214 an NCSE report draws attention to the fact that ‘tensions are emerging between inclusion and effective provision for pupils with [special educational needs in ­Ireland]’.215 Significant efforts have been made in most schools to cater for pupils with such needs; nonetheless there are clear difficulties regarding the manner in which policy and legislation are being translated into school practice. Drudy and Kinsella note that ‘there is no consistent model of integrated or inclusive practice evident across the majority of Irish schools, as practices tend to vary considerably from school to school’.216 Indications are 208 

NCSE (n 172), 135. NCSE (n 172), 135. 210  NCSE (n 172), 16. 211  United Nations (n 20), 82. 212  CRPD, Articles 24(2)(d) and (e). 213  Department of Education and Science (n 170), 39. 214  See sub-sections entitled ‘Policy Documents in Ireland’ and ‘The Irish Legislative Framework: Conditionality and Key Concerns’ above. 215  NCSE (n 172), 19. 216  Drudy and Kinsella (n 127), 659. See also the comments of S Mc Coy and J Banks, ‘Simply Academic? Why Children with Special Educational Needs Don’t Like School’ (2012) 27(1) European Journal of Special 209 

Articles—Broderick 59 that practice is ‘derived more from the integrationist rather than from the inclusionist perspective’.217 Shevlin et al echo this sentiment in their assertion that we are ‘in a transition phase as inclusion policy and practice has yet to become firmly embedded in Irish schools’.218 This is reflected by the fact that education completion rates for persons with disabilities are much lower than the rates in respect of their non-disabled peers.219 An increase in supports and resources is vital to ensuring inclusive education. On that front, the Irish State is doing well overall. Nonetheless, it can be argued that educational provision for persons with disabilities in Ireland has tended to be overly conceptualised in terms of resources. The fundamental problem with such an approach to inclusion is that it masks, and does not eradicate, deeply embedded issues related to the development of appropriate pedagogy. Instead of simply pouring resources into mainstream schools, there is a requirement for systemic change in how the provision of education for children with disabilities and those with special educational needs is conceptualised. Radical restructuring is required at all levels of the Irish education system in order to meet the diverse needs of learners. The NCSE has consistently emphasised the importance of monitoring the outcomes for students with special educational needs220 to ensure that they are making progress commensurate with their ability and that State resources are being used to optimal effect. Equality of educational opportunities and equality of outcome is the underlying focus of Article 24 of the CRPD. In order to ensure that these objectives are met, accountability provisions must be enacted to enhance the effectiveness of services for pupils with special educational needs, as well as to enhance the outcomes for all learners. There is little point in pouring money into deficient systems, without continually measuring the academic and social progress of learners with disabilities in line with international human rights law. CONCLUSION

Article 24 of the CRPD cements the principle of inclusion as an indispensable element of the provision of education for persons with disabilities at the level of international human rights law. During the negotiation sessions leading to the adoption of the CRPD, the right to education was described aptly as ‘the vector for all human development’. It was furthermore described as a right which is ‘foundational to society, and […] a predicate to the full enjoyment of a wide range of civil, political, economic, social and cultural rights,

Needs Education 81, 94, where the authors assert that ‘there is limited evidence of an inclusive education ­system’ in Ireland. 217 

Drudy and Kinsella (n 127), 659. Shevlin, Winter and Flynn (n 105), 1119and 1120. 219  A recent study shows that among those in the 25 to 29 year age group without a disability, only 3% of people finished schooling with primary education or less. This compares to 19% of individuals with a disability. In this same age group, 84% of people without a disability have completed second-level education, while only 63% per cent of people with a disability have done so. While 52% of people with no disability in the 25 to 29 age group have a third-level qualification, this is true of only 36% of people with a disability in the same age group. [Watson and Nolan (n 165), 21]. 220  See eg, NCSE, Implementation Report: Plan for the Phased Implementation of the EPSEN Act 2004 (Dublin, Stationery Office, 2006); See also NCSE, Guidelines on the IEP Process (Dublin, Stationery Office, 2006). 218 

60  The Irish Yearbook of International Law 2014 including political participation, freedom of expression, and access to employment’.221 If States Parties to the CRPD are to guarantee meaningful content to the right to ­education for persons with disabilities, they must remove any discriminatory legislative, physical, economic and attitudinal barriers to accessing mainstream educational systems. Domestic authorities will be required to amend their laws in line with the CRPD. Implementation of the right to education must actually be assured and this is contingent, among other things, on the allocation of sufficient resources—financial, human and technical resources—and the establishment of effective monitoring mechanisms. The enforcement of a human rights-based approach in the area of special educational needs remains a major challenge internationally. Nonetheless, there are examples of good practice. For instance, the Swedish Government has demonstrated concerted efforts in the implementation of the right to inclusive education. The CRPD Committee has acknowledged this in its concluding observations, where the Committee has commended Sweden for its education system, in which only 1.5 per cent of children are instructed outside inclusive, mainstream schools.222 The Irish State is no different in that regard and, whilst the Irish Government will face significant challenges in reforming educational provision for persons with disabilities, it should be possible to do so provided that appropriate structures are put in place. This article has demonstrated the fact that the Irish legislative and policy framework for persons with disabilities, and those with special educational needs, has improved dramatically in recent times. Notwithstanding this, there are continued gaps in the Irish framework for educational provision. This article has also shown that the practice and outcomes of the Irish educational system are not yet fully in line with the aims of Article 24 of the CRPD. One could say that the main focus of special educational reform in Ireland over the years has been on securing additional resources rather than undertaking systemic reform in processes and mindsets. Article 24 of the CRPD can serve to bridge the opportunity gaps that still exist in the Irish education system by serving as a guiding compass towards real inclusion. If education is to be truly inclusive in Ireland, it must operate within legislative, policy and social systems that are truly inclusive in ethos. That is the challenge lying ahead for the Irish State.

221  Remarks by Judith Heumann, Special Advisor for International Disability Rights the United States Delegation, at Round Table 2: CRPD Article 24—Inclusion and the Right to Education Third Conference of States United Nations, New York (September 2010), available at usun.state.gov/remarks/4769, accessed 16 June 2016. 222  CRPD Committee, Concluding Observations to Sweden (2014) UN Doc CRPD/C/SWE/CO/1, para 4.

Accountability for Violations of International Humanitarian Law in Domestic Courts: Can War Crimes be Prosecuted in Ireland? AMINA ADANAN*

T

HE RIGHT OF States to punish persons who have committed war crimes in noninternational armed conflicts exists in international law. This applies regardless of the nationality of the accused person and irrespective of the place of commission of the crime. The right is not codified in international law, unlike the same right in respect of war crimes committed in international armed conflicts. This article analyses the legislation enacted in Ireland to hold individuals accountable for extraterritorial violations of international humanitarian law. It concludes that Irish legislation is largely in line with international law, except in respect of the exercise of universal jurisdiction over war crimes committed during non-international armed conflicts. Thus, customary international law would have to be relied on to try such crimes in I­ reland. The article asserts that the restrictive approach adopted by the courts in interpreting the application of customary international law in Ireland would impede the exercise of universal jurisdiction over war crimes committed in non-international armed conflicts. INTRODUCTION

The purpose of international humanitarian law (IHL) is to protect persons who are not or no longer participating in the hostilities, and to restrict the means and methods of warfare in situations of armed conflict.1 Breaches of the laws and customs of war are commonly referred to as war crimes, which are defined as ‘serious violations of customary or treaty rules belonging to international humanitarian law’ (emphasis in original).2 These are crimes committed by military personnel or members of *  PhD candidate at the Irish Centre for Human Rights, School of Law at NUI Galway [email protected]. This research was funded by the National University of ­Ireland under the EJ Phelan Fellowship in International Law. Thank you to Professor Ray Murphy, Dr Noelle Higgins, Dr Helen McDermott and the two anonymous reviewers of the Irish Yearbook of International Law for their comments on earlier versions of the article. I am responsible for any errors. 1  Injured combatants, prisoners of war, civilians, medical personnel and civilian journalists are protected by IHL. 2  A Cassese and others, Cassese’s International Criminal Law, 3rd edn (Oxford, Oxford University Press, 2008) 65.

62  The Irish Yearbook of International Law 2014 armed groups, against members of enemy forces/enemy groups or against civilians.3 War crimes can also be committed by civilians, against members of armed forces/groups or against enemy civilians.4 Violations of the rules of IHL are dealt with under international criminal law (ICL), which is defined as ‘a body of international rules designed to both proscribe certain categories of conduct… and to make those persons who engage in such conduct criminally liable’.5 ICL affirms that individual criminal responsibility attaches to war crimes, which may be punished by national or international courts. War crimes are criminalised in the domestic legislation of States and in the statutes of international criminal tribunals.6 Since the 1990s, there has been an increase in the number of domestic war crimes prosecutions. The atrocities committed during the fragmentation of Yugoslavia and the genocide in Rwanda acted as the catalysts for this transition. The United Nations Security Council mandated Member States to cooperate with both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) ‘in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law’.7 To fulfill their international obligations, many States subsequently incorporated extraterritorial jurisdiction into their national legal systems, where they had not already done so.8 The adoption of the Rome Statute on 17 July 1998 encouraged States parties to legislate for extraterritorial jurisdiction over international crimes.9 In international law, States have the capacity to prosecute crimes committed outside of their territory by exercising their rights under the principles of extraterritorial jurisdiction. States exercise territorial jurisdiction when the crime has occurred on their territory.10 The active personality principle authorises the State of nationality of the alleged perpetrator(s) to prosecute the offence. The passive personality principle allows the State of nationality of the victim(s) to prosecute the offence. Where a State’s national interest has been violated by an offence committed in another jurisdiction, that State can prosecute the offence under the protective principle.

3 

ibid, 67. ibid, 67. 5  ibid, 1. 6  War crimes are criminalised in Ireland in the International Criminal Court Act 2006 and the Geneva Conventions Act 1962 as amended by the Geneva Conventions (Amendment) Act 1998. For details of legislation criminalising war crimes in Australia, Austria, Belgium, Germany, Israel, Senegal, Switzerland, the United Kingdom and the United States, see L Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford, Oxford University Press, 2002). War crimes are also criminalised in the respective Charters of the International Military Tribunals (IMTs) at Nuremburg and the Far Fast, as well as in the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone and the Rome Statute of the International Criminal Court (Rome Statute). 7  Art 29 of the ICTY statute and Art 28 of the ICTR statute. Ireland legislated for these obligations in the International War Crimes Tribunals Act 1998, which focuses on the surrender of individuals to the two Tribunals. 8 R Van Elst, ‘Implementing Universal Jurisdiction Over Grave Breaches of the Grave Breaches of the Geneva Conventions’ (2000) 13 Leiden Journal of International Law 815, 841. 9  Reydams (n 6). Presently, the Rome Statute obligates States parties to exercise jurisdiction over international crimes, which are genocide, crimes against humanity and war crimes. The International Criminal Court (ICC) operates under the principle of complementarity, which preserves the primary responsibility of States to prosecute international crimes. 10  This is known as the ‘territorial principle’ and extends to vessels and airplanes registered in a State, via the ‘flag principle’. 4 

Articles—Adanan 63 The universality principle (or universal jurisdiction) allows any State to prosecute the offence, ­regardless of where the crime has occurred and irrespective of the nationality of the accused person(s) or victim(s). The latter jurisdiction only applies to a specific list of serious human rights abuses, namely genocide, crimes against humanity, war crimes, torture and piracy committed on the high seas.11 National courts play a central role in the functioning of ICL. This is the case for a number of reasons. The current framework for the prosecution of international crimes is governed by ‘the principle of complementarity’. This is set out in the Rome Statute, the Preamble of which emphasises that the ICC is ‘complementary to national criminal jurisdictions’.12 Article 17 of the Rome Statute grants the ICC the authority to hear a case only where a State with jurisdiction over the offence is unable or unwilling to carry out the prosecution, and when the crime is of a particular gravity. As such, the functioning of the ICC, which is the principal international penal tribunal of modern times, is based on complementarity.13 It must be remembered that in the event of an international crime occurring, the priority to prosecute the offence will always rest with the territorial State.14 However, in reality, the territorial State may be unable or unwilling to punish the offence.15 What is more, the commission of international crimes usually involves the State.16 In addition, international crimes are often committed during armed conflict, and a post-conflict State may not have the legal infrastructure in place to carry out the investigation and trial. Even when a State punishes international crimes committed in its territory, it is a highly politicised affair, which for political reasons, may not result in a conviction.17 For these reasons, extraterritorial prosecutions of international crimes are a vital component in the functioning of the international criminal justice system in order to prevent impunity. This article is concerned with domestic prosecutions of war crimes under the principle of universal jurisdiction, where the crimes are committed outside of the forum State.18 In particular, the article examines to what extent war crimes can be prosecuted in this jurisdiction. Ireland is a small, officially neutral State that takes its international legal obligations seriously; placing international law as a pillar of its foreign policy.19 Its commitment to IHL is evidenced by its ratification of the main IHL Treaties.20 The ­Government

11 

Reydams (n 6). Rome Statute, Preamble, para 10 and Art 1. 13  Professor William Schabas has noted that if Art 17 had not been included in the Rome Statute, the Treaty may not have been supported by States, W Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010) 336. 14 D Akande and S Shaah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21 European Journal of International Law 815, 816. 15  ibid, 816. 16  ibid, 816. 17  The trial of former General Efraín Ríos Montt in Guatemala is such an example. In May 2013, Montt was convicted of genocide committed against the Ixil population during his military regime in the 1980s. The trial process took over 10 years. Ten days after the judgment was issued, Montt had his conviction annulled. The annulment was the result of lobbying by a powerful business group in Guatemala. Efforts to prosecute Montt continue in Guatemala. See E Malkin, ‘Guatemalan Court Overturns Genocide Conviction of Ex-Dictator’ (New York, New York Times, 20 May 2013). 18  The forum state is the state in which the crime is prosecuted. 19  Art 29.3 of the Constitution of Ireland. See also Department of Foreign Affairs and Trade, The Global Island: Ireland’s Foreign Policy for a Changing World (2015) 27. 20  Ireland has ratified the Four Geneva Conventions of 1949 and the two Additional Protocols of 1977, as well as the Rome Statute. See text at section entitled ‘The Incorporation of International Humanitarian Law in Ireland’. 12 

64  The Irish Yearbook of International Law 2014 a­ dvocates that the rules of IHL be respected.21 Of special note, is the leadership shown by Ireland during the negotiation of the Convention on Cluster Munitions in 2008. Prompted by humanitarian motives, the Government presided over the creation of the text that was adopted by the Diplomatic Conference.22 Also of note, is the Irish Defence Forces’ assistance to other States in the field of the disarmament.23 Despite this extensive support for IHL, as this article demonstrates, the Oireachtas has yet to enact legislation to enable the State to exercise universal jurisdiction in respect of war crimes committed during noninternational armed conflicts (NIAC). The Oireachtas has legislated for the right in respect of war crimes committed during international armed conflicts (IAC). Yet, the reality is that NIAC occur more frequently today than IAC.24 Thus, Ireland does not have adequate legislation in place to deal with the full extent of contemporary domestic war crimes prosecutions. Moreover, customary international law confers on States the right to exercise universal jurisdiction over war crimes committed in NIAC.25 Leaving the exceptions aside,26 an equivalent right does not exist in conventional international law. This article argues that due to the current legislative void, the Irish courts would have to assess the applicability of the customary right of the State to exercise universality over war crimes committed in NIAC. The problem here is that in the past the judiciary has taken a conservative approach to the application of customary international law in Ireland.27 This piece of writing suggests that Article 29.8 of the Constitution may provide a gateway through which the State can exercise its ­customary right over aliens in the State who have committed war crimes abroad in NIAC. However, it also suggests that the courts may prefer a more ‘dualist’ approach in their interpretation of the application of the customary right. It is imperative that Ireland and the other States enact the necessary legislation to prosecute war crimes committed during NIAC to bring to an end the culture of impunity that is associated with the commission of international crimes. This is particularly significant, given the fact that war crimes are more likely to be committed in NIAC than IAC today. Furthermore, the ICC is limited in the amount of cases it can prosecute. The Court faces other issues that affect its operation, such as delays in the length of ­proceedings.28 Thus, it is not feasible to rely on the Court as the sole legal mechanism to ­punish ­international crimes. What is more, in practice, attempts to try international crimes 21  Statement by An Taoiseach on ‘Foreign Conflicts’, 20 March 2003. Here, the then Taoiseach stated in relation to the Second Gulf War, that the Dáil, ‘[C]alls on all parties to any conflict to respect the provisions of international humanitarian law, in particular, the Geneva Conventions’. 22  For a detailed account of leadership exercised by Ireland during the process, see the account by the head of the Irish negotiating team in D O’Ceallaigh, ‘Ireland and the Negotiation of the Convention on Cluster Munitions’ (2014) 25 Irish Studies in International Affairs 53. 23  J Burke, ‘The Role of the Irish Defence Forces in Conventional Disarmament’ (2014) 25 Irish Studies in International Affairs 45. 24  D Robinson and H von Hebel, ‘War Crimes in Internal Conflicts: Article 8 of the ICC Statute’ (1999) 2 Yearbook of International Humanitarian Law 194. 25  See text at section entitled ‘The Customary Right of States to Exercise Universal Jurisdiction over War Crimes Committed in NIAC’. 26  See Art 16 (1) of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the event of Armed Conflict. The Article applies to violations during NIAC and provides for universal jurisdiction in respect of violations of the Protocol. See also Art 13(1) of the Convention on the Safety of United Nations and Associated Personnel 1994. 27  See text at section entitled ‘The Application of Customary International Law in Ireland’. 28  R Blattmann and K Bowmann, ‘Achievements and Problems of the International Criminal Court’ (2008) 6 Journal of International Criminal Justice 711.

Articles—Adanan 65 abroad using universal jurisdiction can result in a subsequent prosecution in the territorial State.29 The second section of the article analyses how customary international law confers on States the right to exercise universal jurisdiction over war crimes committed during NIAC. The third section discusses how Ireland incorporates international treaties into the domestic legal system. It also examines the Irish law enacted to facilitate prosecutions for war crimes and the role of the Director of Public Prosecutions in such proceedings. The fourth section analyses the interpretation of customary international law by the Irish Judiciary, in the context of how this may affect the application of customary IHL obligations in this jurisdiction. Finally, the fifth section presents some concluding observations on the barriers to the potential exercise of universal jurisdiction over war crimes committed in NIAC, in Ireland. THE CUSTOMARY RIGHT OF STATES TO EXERCISE UNIVERSAL JURISDICTION OVER WAR CRIMES COMMITTED IN NIAC

The penal sanctions in conventional IHL have not progressed to reflect the realities of modern armed conflicts. Traditionally, punishment of war crimes committed during civil war was the concern of the territorial State only. This was because the sovereignty of the territorial State was paramount, and could not be violated by other States. Moreover, national criminal law also applies during NIAC. Conventional IHL has prohibited the commission of certain acts during NIAC in common Article 3 of the Four Geneva Conventions of 1949.30 The Article does not obligate the High Contracting Parties to take measures to repress violations thereof. Thus, it is entirely up to States themselves how they punish violations of the common Article. Nevertheless, the Appeals Chamber of the ICTY has attributed individual criminal responsibility to violations of the Article.31 In addition, the International Court of Justice (ICJ) has confirmed that common Article 3 has reached the status of customary international law.32 The grave breaches regime of the Four Geneva Conventions and Additional Protocol I of 1977 (AP I) obligates States parties to search for and punish persons found on their territory who are accused of having committed grave breaches. If not, the State party must extradite the suspect to another state with prima facie evidence against the individual.33

29  This reality was one of the reasons for the prosecution of international crimes in Argentina, following the ­Argentinian Dirty War. See CAE Bakker, ‘A Full Stop to Amnesty in Argentina: The Simón Case’ (2005) 3 Journal of International Criminal Justice 1106, 1109. 30  Hereafter referred to as ‘common Article 3’. 31  Prosecutor v Duško Tadić (Decision on the defence motion for interlocutory appeal in jurisdiction) ICTY case number IT-94-1, Appeals Chamber judgment 2 October 1995, paras 128–36. This case is referred to as Prosecutor v Tadić (jurisdictional decision case) hereafter. 32  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), ICJ, judgment 27 June 1986, para 218. 33  This is the common penal sanctions provision of the Four Geneva Conventions. It is found in Art 49 of the First Geneva Convention on Wounded and Sick in Armed Forces in the Field; Art 50 of the Second Geneva Convention on Wounded, Sick and Shipwrecked of Armed Forces at Sea; Art 129 of the Third Geneva Convention on Prisoners of War; and Art 146 of the Fourth Geneva Convention on Civilians. See also Art 85 of AP I relating to the Protection of Victims of International Armed Conflicts.

66  The Irish Yearbook of International Law 2014 The regime was included in the Treaties to ensure that, ‘such offences [would] not be left unpunished’ (insertion added).34 The obligation is a duty and a right of States that exists in conventional and customary international law.35 Thus, the situation exists in conventional international law where States are obligated to punish a brutal act carried out in IAC, but not if the same act occurs in NIAC. The situation arises partly because the Conventions and AP I affirm that grave breaches can only be committed against protected persons in the hands of an adversary, the concept of which is inherently linked to IAC.36 States are obligated to criminalise non-grave breaches committed during IAC.37 The difference between the obligation to punish war crimes committed during IAC and the lack of an equivalent obligation in respect of war crimes committed in NIAC is based on a transcribed legal framework that no longer reflects the actuality of war. To suggest that there is a difference between the atrocities committed in an international war compared to an internal war is lamentable. Part of the reason for the application of universal jurisdiction to the crimes it applies to is because the acts violate the conscience of humanity.38 It does not follow that wilful killing of a civilian during NIAC is less heinous than the same act committed during IAC. The application of universal jurisdiction does not depend on the characterisation of a conflict, because it is activated by the seriousness of the act itself. The convergence between the rules of IHL in IAC and NIAC has been noted.39 This transposition is further evidenced by the military manuals of some States that no longer distinguish between the characterisation of armed conflict in respect of the commission of war crimes.40 This situation is reflective of a general move away from the differential categorisations of war crimes (for example grave breaches, violations of common Article 3) to a more generalised category of ‘war crimes’.41 Also of note, is the fact the majority of States at the Diplomatic Conference in Rome, where the Rome Statute was created, recognised the need to include war crimes committed during civil war among the core crimes in the Statute.42 It is well established that war crimes committed during NIAC can 34 

J Pictet, Commentary on the Geneva Conventions of 1949 (Geneva, ICRC, 1952) 359. Prosecutor v Tadić (jurisdictional decision case) (n 31) para 80. 36  Protected persons are defined in Arts 13, 24, 25 and 26 of Geneva Convention I, Arts 13, 36 and 37 of Geneva Convention II, Art 4 of Geneva Convention III, Arts 4, 13 and 20 of Geneva Convention IV and in Arts 8, 44, 45 and 73 of AP I. The nationality requirement of Art 4 of the Fourth Geneva Convention was expanded on by the ICTY Appeal Chamber to apply to civilians who find themselves in the hands of a Power to which they do not owe allegiance. Prior to this, civilians had to be in the hands of a Power that did not share their nationality. See Prosecutor v Duško Tadić (Judgment) ICTY case number IT-94-1-A, Appeals Chamber judgment 15 July 1999, para 166. 37  See the third para of the common penal provision in the Geneva Conventions. 38  Attorney General of the Government of Israel v Eichmann, Israel Supreme Court 1962, published in (1968) 36 International Law Reports 277. See also Attorney General of the Government of Israel v Eichmann, District Court of Jerusalem 1961, published in (1968) 36 International Law Reports 59. See also The Trial of Josef Altstotter and others (Justice Trial) in Law Reports of the Trials of War Criminals (Vol VI, UNWCC, H. M. Stationary Office, 1948) 81. 39  Prosecutor v Tadić (jurisdictional decision case) (n 31) para 127. This is further evidenced by the list of war crimes criminalised during NIAC in the Rome Statute in Art 8(2)(c) and 8(2)(e). The list is almost identical to those listed in Arts 8(2)(a) and 8(2)(b) that apply to IAC. 40  D Momtaz, ‘War Crimes in Non-International Armed Conflicts under the Statute of the International Criminal Court’ (1999) 2 Yearbook of International Humanitarian Law 190. 41  T Graditzky, ‘Individual Criminal Responsibility for Violations of International Humanitarian Law Committed in Non-International Armed Conflicts’ (1998) no. 322 International Review of the Red Cross 29. 42 A Zimmermann, ‘War Crimes Committed in Armed Conflict not of an International Character’ in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, 35 

Articles—Adanan 67 be punished by international penal tribunals, as this is codified in international law. However, for evidence of a customary rule of States to punish war crimes in their national courts, we must look for evidence of opinio juris and State practice. Many States have enacted legislation allowing them to exercise universal jurisdiction over war crimes committed in NIAC.43 What is more, States exercise universal jurisdiction in respect of war crimes committed during NIAC.44 The International Committee of the Red Cross (ICRC) lists the right of States ‘to vest universal jurisdiction in their national courts over war crimes’, in its rules of customary international humanitarian law.45 However, the ICRC notes that in the practice it cites, it was significant that the State of nationality of the perpetrator did not complain about the extraterritorial prosecution.46 I would add to this that the presence of the accused in the forum State is also required.47 Practice shows that the forum State is more likely to act where the accused is present in its territory.48 Practice also demonstrates that the accused person may have ties to the forum State,49 or have subsequently sought refuge in that State.50 Priority to punish a war crime committed during internal armed conflict lies with the territorial State.51 Suffice it to say, that the exercise of universal jurisdiction over war crimes committed during NIAC is a right of States and not an obligation.52 In modern times, it is mostly European States that prosecute international crimes committed abroad.53

Article by Article, 2nd edn (Munich, CH Beck, 2008) 476. The Diplomatic Conference in Rome is referred to as the ‘Rome Conference’ hereafter. 43  In Australia, see division 268.123 of the International Criminal Court Act 2002 and s 15.4 of the Criminal Code. In Belgium, see Art 8 of the Law on Grave Breaches of International Humanitarian Law, Moniteur Belge, 7 August 2003 at p 40506. In Canada, see s 8 of the Crimes Against Humanity and War Crimes Act 2000. In Germany, see Arts 8–11 of the Code of Crimes Against International Law 2002. In the Netherlands, see Art 3(1) of the Crimes in Wartime Act 1952 and Art 8(1) of the Dutch Criminal Code. In Switzerland, see Art 264 (d-h) and Art 264(i) of the Criminal Code, 21 December 1937, as amended. For further examples see Reydams (n 6). See also M Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes’ (2011) 105 American Journal of International Law 1. 44  In Switzerland, see Military Prosecutor v Gabrez, Tribunal Militaire, Division 1, Lausanne, 18 April 1997. See also Military Prosecutor v Niyonteze, Tribunal Militaire, Division 2, Lausanne, 30 April 1999 (trial judgment); Tribunal Militaire d’appel 1A, Geneva, 26 May 2000 (appeals judgment); Tribunal Militaire de Cassation, 27 April 2001 (cassation judgment). In Belgium, see Public Prosecutor v Higaniro et al Assize Court of Brussels, 8 June 2001. In the Netherlands, see Public Prosecutor v Knesevic, 1 December 1995 (examining magistrate); Supreme Court of the Netherlands, 11 November 1997. In Germany, see Public Prosecutor v Djajic, Bavarian Supreme Regional Court, 23 May 1997. See also JM Henckaerts and L Doswald-Beck, Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005) Vol I, 604–05. 45  Rule Number 157 of the ICRC Rules of Customary International Humanitarian Law. See Henckaerts and Doswald-Beck, ibid, 604. 46  Henckaerts and Doswald-Beck (n 44) 605. 47  This is a common feature of the case law cited in n 44 and other cases of international crimes prosecuted using universal jurisdiction. This feature is specifically legislated for in the Canadian legislation. See s 8(b) of the Crimes against Humanity and War Crimes Act 2000. 48  Similarly, this is also a common feature of the case law cited in n 44 and other cases of international crimes prosecuted using universal jurisdiction. 49 See Public Prosecutor v Djajic (n 44). See also Public Prosecutor v Higaniro et al (n 44). 50 See Military Prosecutor v Gabrez, Military Prosecutor v Niyonteze and Public Prosecutor v Knesevic (n 44). See also United Nations Convention Relating to the Status of Refugees, Art 1F. 51  Preamble to the Rome Statute, para 8. 52  This is in contrast to the equivalent action over war crimes committed in an IAC. 53  See Langer (n 43). An exception to this trend is National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another [2014] ZACC 30, Constitutional Court of South Africa, 30 October 2014. On the 30 May 2016, the Extraordinary African Chambers in Senegal found

68  The Irish Yearbook of International Law 2014 No State has been the persistent objector of universal jurisdiction.54 The famous Case of the SS Lotus before the Permanent Court of International Justice laid down the principle that a State has the authority to exercise extraterritorial jurisdiction, so long as it does not ‘overstep the limits which international law places upon its jurisdiction’.55 It follows that States may not exercise universal jurisdiction over an incumbent Head of State, suspected of committing war crimes during NIAC.56 Any State has the right to exercise universal jurisdiction, once it remains within the parameters set in the Lotus principle. That States consciously agreed to the criminalisation of certain war crimes committed during civil war is evidence of opinio juris to that effect. During the Rome Conference, the decisions to include the prohibition of war crimes during NIAC in the Statute and what acts should be listed therein were among the most controversial topics discussed.57 In the end, it was decided that the definitions for the crimes within the jurisdiction of the Court should reflect the prohibitions in customary international law.58 In respect of the signing of the IMT Charters for Nuremburg and the Far East, which codified laws not previously criminalised, Professor M Cherif Bassiouni commented, ‘The fact that four victorious states signed the Charter and nineteen others subsequently acceded to it evidences those states’ opinio juris’.59 The same argument can be applied to the signing and ratification of the Rome Statute regarding the prohibition of war crimes committed during NIAC. It is significant that three of the five permanent members of the UN Security Council agree that war crimes are prohibited in NIAC.60 There are now 124 State parties to the Rome Statute.61 Not all States that have incorporated the Rome Statute into domestic law have utilised the legislation. However, commenting on the crystalisation of international legal rules based on humanitarian norms, Professor Andrew Clapham notes that opinio juris may be more convincing than State practice.62 The fact that international crimes warranted the creation of the IMT at Nuremburg, its equivalent in the Far East, in

former Chadian head of State, Hissène Habré guilty of crimes against humanity and war crimes committed against Chadian nationals in Chad. 54  States have objected to universality when it relates to their own nationals, but not to the jurisdiction in general. See A Zimmermann, ‘Violations of Fundamental Norms of International Law and the Exercise of Universal Jurisdiction in Criminal Matters’ in C Tomuschat and JM Thouvenin (eds), The Fundamental Rules of the International Legal Order (Leiden, Martinus Nijhoff, 2006) 353. 55  The Case of the SS Lotus, Permanent Court of International Justice, judgment 7 September 1927, p 19. 56  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ, judgment 14 February 2002. 57  P Kirsch and D Robinson, ‘Reaching Agreement at the Rome Conference’ in A Cassese and others (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford, Oxford University Press, 2002) Vol I, 79. 58  Robinson and von Hebel (n 24). 59  MC Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge, Cambridge University Press, 2011) 147. 60  Both France and the UK are party to the Rome Statute, while in its amicus curiae brief submitted to the ICTY in the Tadić case, the US acknowledged that ‘“grave breaches” provisions of Article 2 of the Tribunal Statute apply to armed conflicts of a non-international character as well as those of an international character’. See Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in the Case of the Prosecutor v Duško Tadić, 17 July 1995, p 35. 61  As of 9 October 2016. In addition, there are 31 State signatories. 62  A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006) 88.

Articles—Adanan 69 a­ ddition to national military tribunals after the Second World War, at a time when little or no prior State practice existed, is evidence of the universal condemnation which these crimes attract,63 albeit in the context of victor’s justice.64 There is no doubt that when some of these prohibitions are breached (such as common Article 3) they incur individual criminal responsibility. A customary right of States to exercise universal jurisdiction over war crimes committed during NIAC can be identified in the obligations that flow from the categorisation of war crimes as a jus cogens peremptory norm.65 The Irish Government has recognised the existence of war crimes in this category of offences.66 Jus cogens is a privileged status given to particular human rights abuses universally disapproved by States.67 Article 53 of the Vienna Convention on the Law of Treaties affirms that jus cogens offences are ‘accepted and recognised by the international community of States as a whole’ and cannot be authorised via international treaty. International crimes such as genocide,68 crimes against humanity, war crimes69 and torture70 come under the concept. The categorisation of war crimes as a jus cogens offence does not discriminate between the characterisation of the armed conflict in which they occur. To eviscerate war crimes from the list of jus cogens offences on the grounds that they are committed during NIAC is nonsensical. Jus cogens offences receive higher protection because they are heinous acts condemned by the international community. In this regard, wilful torture committed in NIAC is no less reproachable than the same act committed in IAC. Jus cogens is not without controversy.71 Some scholars argue that it is a separate source of international law, as distinct from customary international law or the general principles of international law.72 Conversely, other scholars suggest that jus cogens is a general principle of law,73 while others advocate that it is part of the customary international law.74 What is clear is that it is binding law, even to persistent objectors.75 Some domestic courts

63 

Before 1946, genocide was considered a type of crime against humanity. Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law ­(Cambridge, Polity, 2007). 65  MC Bassiouni, ‘“Jus Cogens” and “Obligatio Erga Omnes”’ (1996) 59 (4) Law and Contemporary Problems 63. 66  Statement by Minister for Health on Criminal Justice (Female Genital Mutilation) Bill, 13 July 2011. Here the then Minister commented, ‘Under international law, only offences jus cogens, against the conscience of the world, such as piracy, war crimes and terrorist acts, carry universal jurisdiction’. 67  Bassiouni (n 65) 67. 68  Case concerning Armed Activities on the Territory of the Congo (New Application 2002) (Democratic Republic of Congo v Rwanda), jurisdiction of the Court and Admissibility of the Application, ICJ, judgment 3 February 2006, para 64. 69  Prosecutor v Zoran Kupreškić, ICTY case number IT-95-16, Trial Chamber II judgment, 14 January 2000, para 520. 70  Prosecutor v Anto Furundžija, ICTY case number IT-95-17/1, Trial judgment, 10 December 1998, para 156. 71  Questions arise as to its position in the hierarchy of sources in international law, in addition to the lack of certainty in its law-making process, see GM Danilenko, ‘International Jus Cogens: Issues of Law-Making’ (1991) 2 European Journal of International Law 42. 72  R Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press, 1994) 21–22. 73 BD Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge, ­Cambridge University Press, 2010) 243. 74  Bassiouni (n 59) 263–64. 75  Lepard (n 73) 250–52. D Shelton, ‘International Law and Relative Normativity’ in MD Evans (ed), International Law, 2nd edn (Oxford, Oxford University Press, 2006) 172. 64 GJ

70  The Irish Yearbook of International Law 2014 are warming to the concept of jus cogens in judicial decisions,76 whereas others remain opposed to it.77 The subject of jus cogens has recently been taken up by the International Law Commission (ILC), a measure that was welcomed by the Irish Government.78 The consequence of the commission of a jus cogens offence was addressed by the ICTY Trial Chamber in Prosecutor v Furundžija. Here it was affirmed: …[O]ne of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.79

The statement declares that the obligation to try or extradite (also referred to as aut dedere aut judicare) applies to jus cogens peremptory norms. This means that whenever a person suspected of having committed a jus cogens offence is found on the territory of any State, that State must punish the individual in its own national courts. If not, the State must extradite the individual to a State that is willing and able to punish the offender. This right exists in customary international law.80 The nationality of the alleged perpetrator is irrelevant, as is that of the victims. It follows that the obligation to try or extradite attaches to war crimes, by virtue of their status as a jus cogens peremptory norm. The obligation is a duty and not a right of States.81 What is more, the incorporation of universal jurisdiction is a necessary part of the obligation to try or extradite.82 For this reason, it is imperative that States such as Ireland legislate for universal jurisdiction in respect of war crimes committed in both IAC and NIAC. Although, it should be noted that universal jurisdiction does not apply to all jus cogens offences.83 This is the case in respect of violations of the right to a fair trial or breaches of the prohibition of racial discrimination (that do not qualify as apartheid). However, universality does apply to international crimes. As Professor Andrew Clapham has noted: Some of these international crimes will fall into the category of crimes of universal jurisdiction. In this situation, even in the absence of an applicable international treaty, governments will be able to try individuals who committed an offence outside the jurisdiction even where there is no link to the commission of the offence through the nationality of the perpetrator or the victims.84

76 D Shelton (ed), International Law and Domestic Legal Systems, Incorporation, Transformation, and ­Persuasion (Oxford, Oxford University Press, 2011) 1–7. 77  States with older Constitutions tend to show more reluctance to international law. See Shelton, ibid, 2. 78  See statement of Mr James Kingston, Legal Advisor, Department of Foreign Affairs at the Sixth Committee UN General Assembly’s 69th session, 27 October 2014. 79  Prosecutor v Furundžija (n 70) para 156. 80  MC Bassiouni and EM Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dordrecht, Martinus Nijhoff, 1995). 81  Bassiouni (n 65) 65. 82  In respect of the application of the obligation to try or extradite to torture, the UN Committee on Torture has stated it is vital that State parties enact universal jurisdiction into their national law. It is arguable that the same applies in relation to war crimes committed during NIAC, as they are viewed as being as heinous as torture, and in some cases include the act of torture. 83  Zimmermann (n 54) 338. 84  Clapham (n 62) 94. In the same vein, Andreas Zimmermann notes that, ‘State practice tends towards accepting the exercise of universal jurisdiction and, thus, by the same token, recognises that public international law has yet taken another step towards making the underlying jus cogens prohibitions more effective’. See Zimmermann (n 54) 353.

Articles—Adanan 71 A further obligation applies to jus cogens offences in international law. Erga omnes obligations are duties that States owe to other members of the international community. There is an overlap between jus cogens offences and the acts to which this obligation applies.85 When the act occurs, all Member States of the international community are obliged to punish the violation. Like peremptory norms, the acts to which erga omnes obligations apply are non-derogable.86 The nature of the duty was affirmed by the ICJ in the Barcelona Traction Case.87 Here, it was stated: In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.88

Speaking on what offences come within this framework, the ICJ noted: Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law… others are conferred by international instruments of a universal or quasi-universal character.89

Judge James Crawford has since affirmed that whether an erga omnes obligation attaches to an act, depends on the extent of the universal prohibition of the offence.90 The fact that war crimes committed during NIAC are prohibited by 124 States parties to the Rome Statute and also by some non-State parties, is evidence of the widespread condemnation of these acts. It would be next to impossible for every single member of the international community to ratify the Rome Statute, given that a State will abide by a rule depending on its constitutional, national or political interests.91 However, States from a variety of cultural backgrounds should agree on the international rule in question.92 Moreover, the purpose of the creation of the ICC was to punish crimes ‘universally recognised’ as being so by the international community.93 In this regard, it is worth noting that States that have not yet ratified the Rome Statute played an important role in the creation of the Statute.94 This section has attempted to illustrate how customary international law confers on States the right to exercise universal jurisdiction over war crimes committed in NIAC. 85  International Law Commission’s Third Report on State Responsibility, by James Crawford, Special Rapporteur, Doc A/CN.4/507 and Add. –4, p 34. See also Bassiouni (n 65) 72. 86  International Law Commission’s Third Report on State Responsibility (n85) p 34. 87  Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (New Application: 1962), ICJ, judgment 5 February 1970, paras 33–34. 88  ibid, para 33. 89  ibid, para 34. 90  As cited in Clapham (n 62) 97. 91  An example of this is the almost uniform ratification of the UN Convention on the Rights of the Child, to which the US is the only non-State Party. For constitutional reasons, the US has not ratified the Treaty. 92  Lepard (n 73) 246. 93  H von Hebel and D Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S Lee (ed), The International Criminal Court: The Making of the Rome Statute (The Hague, Kluwer International Law, 1999) 122. 94  Powerful military non-States parties such as China, Israel, Russia and the US all participated and influenced the content of the Rome Statute.

72  The Irish Yearbook of International Law 2014 Of course, for a State to exercise the customary right to punish war crimes, it must have enacted legislation to this effect. We now turn to analyse how Ireland has legislated for the punishment of violations of IHL in its legal system. THE INCORPORATION OF INTERNATIONAL HUMANITARIAN LAW IN IRELAND

Ireland is a dualist State95 with a common law legal system. Dualist States require the incorporation of international rules into domestic legislation in order for them to be enforceable in the State.96 The dualist nature of the Irish State is expressly outlined in the Constitution in Articles 29.5 and 29.6.97 Article 29.6 reads, ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas’.98 Ireland also adopts a dualist approach towards the incorporation of customary international law and this is discussed in the section entitled ‘The Application of Customary international law in Ireland’. Ireland places international treaties on a sub-constitutional level, the same as legislation. This is consistent with the majority of common law legal systems.99 Only international instruments that are in accordance with the Constitution may be ratified,100 and bi-cameral approval is required for an international agreement to be transformed into a legislative act.101 Further evidence of the dualist nature of the State is in Article 15.2.1° of the Constitution, which affirms that the Oireachtas is the sole law-making body of the State.102 The dualism in the Irish Constitution has been described as ‘pursuing the higher ideal of “patriating” international human rights norms’.103 To assess the extent to which Ireland has incorporated its IHL obligations in respect of extraterritorial prosecutions of war crimes into domestic law, it is necessary to examine the relevant legislation. The International Criminal Court Act 2006 Ireland ratified the Rome Statute on 11 April 2002. The State’s commitment to the goals of the Rome Statute is evidenced by the 23rd Amendment to the Constitution, which introduced Article 29.9 to the Constitution. A referendum was required in order for the State to cede sovereignty to the ICC in certain areas of the criminal law. Article 29.9 95 

D Fennelly, International Law and the Irish Legal System (Dublin, Roundhall, 2014) 4. This is known as ‘transformation theory’. See CR Symmons, ‘The Incorporation of Customary International Law into Irish Law’ in G Biehler, International Law in Practice: An Irish Perspective (Dublin, Thomson Roundhall, 2005) 111. 97  Art 29. 5. 1° of the Constitution reads ‘Every international agreement to which the State becomes a party shall be laid before Dáil Éireann’. 98  The Oireachtas is composed of the president, the Dáil (the Parliament) and the Seanad (the Senate). In 1996, the ­Constitutional Review Group did not recommend any changes to Art 29.5.1° or Art 29.6 of the Constitution. 99  Shelton (n 76) 5. 100  D O’Connell, ‘The ECHR Act 2003: A Critical Perspective’ in U Kilkelly (ed), ECHR and Irish Law (Bristol, Jordan Publishing Limited, 2004) 1. 101  Art 20 of the Constitution requires that legislation be passed by both the Dáil and the Seanad. 102  Art 15.2.1° of the Constitution reads, ‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State’. 103  O’Connell (n 100) 1. 96 

Articles—Adanan 73 reads, ‘The State may ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998’.104 The Rome Statute and the obligations therein were incorporated into Irish law by the enactment of the International Criminal Court Act 2006 (ICC Act).105 The purpose of the Act is to allow offences within the jurisdiction of the ICC to be prosecuted in Irish national and military courts,106 and to facilitate the transfer of suspects to the ICC.107 The legislation also authorises assistance to the ICC. The Act came into force on 31 October 2006 and since then, the Government has reiterated its commitment to the goals of the Rome Statute.108 Yet significantly, the legislation falls short in providing for universal jurisdiction over war crimes committed during NIAC. As Professor Ray Murphy points out, the legislation preserves Irish sovereignty, as the Minister for Foreign Affairs and Trade may challenge or postpone a request from the ICC to have a person arrested and extradited to the Court.109 The Act criminalises the offences of war crimes,110 crimes against humanity and genocide as defined in the Rome Statute.111 The inclusion of ‘war crime’ in the definition of an ICC offence in section 9(1) of the ICC Act does not discriminate between the characterisation of the conflict. Ancillary offences that contribute to the commission of an ICC offence (as specified in Article 25 of the Rome Statute) are also prohibited under the legislation.112 Apart from genocide, the Irish Courts have jurisdiction in respect of international crimes committed after the passing of the ICC Act only.113 The Act repeals the Genocide Act 1973.114 In this regard, the Irish legislation goes further than the temporal jurisdiction provided in Article 11 of the Rome Statute, which grants jurisdiction to the ICC in respect of acts committed after the entry into force of the Rome Statute. Regarding extraterritorial jurisdiction, the active personality principle is provided for in section 12 (1), which reads, ‘An Irish national who does an act outside the State that,

104  This provision was approved by a referendum in June 2001. The referendum was carried by a majority of 64.2% to 35.8%. See B Roche, ‘Ireland’ in C Kreß, The Rome Statute and Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (il Sirente, 2005) Vol II 156–57. 105  For further analysis of the ICC Act, see S Mullally and others, ‘Human Rights 2006’ (2006) 1 Irish Yearbook of International Law 314; R Murphy, ‘Correspondent Report on Ireland’ (2006) 9 Yearbook of International Humanitarian Law 487–88; F deLondras, ‘International Law in Ireland 2006’ (2006) 1 Irish Yearbook of International Law 258. For an analysis of the Bill that led to the Act, see Roche, ibid, 155. 106  ICC Act, s 6(1). 107  ICC Act, s 25. 108  Statement on behalf of Ireland at the Kampala Conference by Mr James Kingston, Legal Adviser, Department of Foreign Affairs, 1 June 2010 reprinted in (2010) 4-5 Irish Yearbook of International Law 417, 420. 109  Murphy (n 105) 488. 110  Section 6(1) defines a war crime as ‘any of the acts specified in Article 8.2 (except subparagraph (b)(xx))’. Article 8(2)(b) of the Rome Statute includes as a war crime ‘Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts…(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123’. The Government has received criticism for this exception, see Amnesty International’s Comments and Recommendations on the International Criminal Court Bill 2003 (EUR 29/001/2004) 3. 111  ICC Act, s 7. 112  ICC Act, s 8. 113  ICC Act, s 9 (4). 114  ICC Act, s 7(2).

74  The Irish Yearbook of International Law 2014 if done within it, would constitute an ICC offence or an offence under section 11 (1) is guilty of that offence and liable to the penalty provided for it’. The territorial and flag principles are also prescribed in the Act.115 Universal jurisdiction applies to grave breaches of the Geneva Conventions only, as per section 12 (2) of the ICC Act: Subsection (1) also applies in relation to a person of any other nationality who does an act outside the State that, if done within it, would constitute both— (a)a war crime under subparagraph (a) (grave breaches of the Geneva Conventions) or (b) (other specified serious violations of the laws and customs applicable in international armed conflict) of Article 8.2, and (b)an offence under section 3 (grave breaches of the Geneva Conventions and Protocol I thereto) of the Geneva Conventions Act 1962. … (4) The reference in subsection (2)(b) to section 3 of the Geneva Conventions Act 1962 is to that section as amended by section 3 of the Geneva Conventions (Amendment) Act 1998 and by paragraph 2 of Schedule 3.

Section 3 of the Geneva Conventions Act 1962, as amended by section 3 of the Geneva Conventions (Amendment) Act 1998, criminalises grave breaches committed during IAC only.116 Therefore, foreigners who have committed grave breaches abroad during IAC can be prosecuted in Ireland. The legislation is silent on jurisdiction over foreigners who commit war crimes against foreigners abroad during NIAC. Thus, a notable void exists in the domestic legislation that enables the punishment of war crimes in Ireland. In the event that an alleged war criminal were to be found in Irish territory, and the territorial State or State of nationality of the accused was unable or unwilling to punish the offender, the legislation in place would be inadequate to enable the Irish Courts to have jurisdiction over the offence. It may be the case that the State would prefer to surrender the accused to the ICC. However, this would not be possible if the ICC, for whatever reason, did not request the extradition of the accused. It is uncertain how the Irish Courts would interpret the application of the customary right of States to exercise universal jurisdiction over war crimes in NIAC.117 As Professor Siobhán Mullally and others have warned in respect of the ICC Act, ‘The strict dualist position that has been adopted by the Irish Courts and the ‘externalising’ of custom and general principles is unlikely to provide good ground for the exercise of universal jurisdiction’.118 Thus, there is a likelihood of the State becoming a safe haven for war criminals in such instances. Conversely, the Rome Statute itself does not necessitate States parties to incorporate universal jurisdiction in respect of the core crimes. At a minimum, the States parties ­are obligated to incorporate the territorial and active personality principles into their jurisdiction, which Ireland has done. However, many States have gone further and incorporated universal jurisdiction, in respect of the three international crimes over which the 115 

ICC Act, s 12 (3). See text in next subsection. 117  See text at section entitled ‘The Application of Customary International Law in Ireland’. 118  S Mullally and others (n 105) 314. 116 

Articles—Adanan 75 ICC currently exercises jurisdiction, into their legal systems, and this includes war crimes committed in NIAC abroad.119 Aside from grave breaches of the Geneva Conventions, the ICC Act does not provide for universal jurisdiction over the ICC offences. This fact was previously highlighted by Amnesty International when the Bill was first published.120 More recently, this was highlighted by the Free Legal Advice Centres, and other civil society organisations.121 During the lifetime of the last Government, an attempt was made to rectify this situation.122 As in the case of war crimes committed during NIAC, a judicial examination of customary international law would also be required in respect of the exercise of universality over genocide and crimes against humanity. It would be difficult to argue that universal jurisdiction over genocide and crimes against humanity had not crystalised as a norm of customary international law.123 Yet, it is unlikely that either of these crimes could be relied upon in customary international law by the State, given the restrictive interpretation of the application of customary international law in Ireland.124 The ICC Act affirms, ‘Judicial notice shall be taken of the [Rome] Statute’ (insertion added),125 which infers that the Rome Statute should be taken into account in judicial decision-making.126 The ICC Act further affirms that proceedings for ICC offences committed outside of the State are to be carried out as if the offence was committed ‘in that place’.127 This provision proposes that investigations are permitted without the presence of the accused, which is in line with the practice in other States.128 Under the Act, the punishment upon conviction is life imprisonment, if the offence entails murder.129 For any other offence, the maximum penalty imposed is 30 years.130 These penalties adhere to the provisions of the Rome Statute, as the ICC can impose a sentence of up to 30 years’ imprisonment,131 and can impose a life sentence depending on the gravity of the offence.132 In July 2012, Thomas Lubanga was sentenced to 14 years’ imprisonment for war crimes committed during a NIAC, in particular for enlisting and conscripting children under the age of 15 into an armed group.133 Financial penalties can also be

119 

See text at n 43. Amnesty International’s Comments and Recommendations on the International Criminal Court Bill 2003 (n 110) 5. 121  Shadow report submitted by Free Legal Advice Centres, the Irish Council for Civil Liberties and the Irish Penal Reform Trust to the UN Human Rights Commission as part of Ireland’s Third Periodic Report under the International Covenant on Civil and Political Rights, p 18. 122  A Private Members Bill, ‘Universal Jurisdiction of Human Rights Bill 2015’ was initiated in the Dáil by Deputy Mick Wallace. The Bill proposed the amendment of s 7(1) of the ICC Act to read, ‘Any person, whatever their nationality and wherever in the world, who commits a crime against humanity, a war crime or genocide is guilty of an offence and is liable upon conviction to imprisonment for life by the State’. The Bill was not opposed in a Dáil debate on 2 April 2015. Since then, the Bill has not progressed through the Oireachtas. 123  Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc S/1994/674, para 107. See also Attorney General of the Government of Israel v Eichmann (n 38). 124  See text at section entitled ‘The Application of Customary International Law in Ireland’. 125  ICC Act, s 3(3). 126  Murphy (n 105) 487. 127  ICC Act, s 9 (3). 128 See National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another (n 53). See also amicus curiae brief submitted by Professor John Duggard and others in the case. 129  ICC Act, s 10 (1). 130  ICC Act, s10 (1)(b). 131  Rome Statute, Art 77(1)(a). 132  Rome Statute, Art 77(1)(b). 133  In December 2014, the sentence was upheld on appeal. 120 

76  The Irish Yearbook of International Law 2014 imposed under the ICC Act134 and monies recuperated can be directed towards victim reparations.135 Geneva Conventions Act 1962 as Amended On 27 September 1962, Ireland ratified the four Geneva Conventions of 1949. The Treaties were incorporated into national law via the Geneva Conventions Act 1962,136 the Prisoner of War and Enemy Aliens Act 1956 and the Red Cross Act 1954. Ireland subsequently ratified the Additional Protocols I and II on 19 May 1999 and they were incorporated into Irish law in the Geneva Conventions (Amendment) Act 1998.137 The 1998 Act also made amendments to the 1962 Act. The 20 years that passed before the two Additional Protocols to the Geneva Conventions were incorporated into Irish law call into question Ireland’s commitment to IHL.138 Like the ICC Act, the 1962 Act, as amended, allows for universal jurisdiction in respect of grave breaches of the Geneva Conventions in the context of IAC only. Grave breaches are defined in the Act as specified in the Geneva Conventions and in AP I.139 Universal jurisdiction over grave breaches of the Geneva Conventions is provided for in section 3 of the Geneva Conventions Act 1962, as amended. This reads: Any person, whatever his or her nationality, who, whether in or outside the State, commits or aids, abets or procures the commission by any other person of a grave breach of any of the [Geneva] Conventions or Protocol I shall be guilty of an offence and on conviction on indictment(a) in the case of a grave breach involving the wilful killing of a person protected by the ­Convention or Protocol in question, shall be liable to imprisonment for life or any less term, (b) in the case of any other grave breach, shall be liable to imprisonment for a term not ­exceeding 14 years (insertion added).140

The 1998 Act introduced to the 1962 Act universal jurisdiction over grave breaches of the Geneva Conventions, when committed by omission. Section 3(1A) reads: Any person, whatever his or her nationality, who, whether in or outside the State, fails to act, when under a duty to do so, to prevent the commission by another person of a grave breach of any of the [Geneva] Conventions or Protocol I shall be guilty of an offence and on conviction on indictment shall be liable to imprisonment for a term not exceeding 10 years (insertion added).141

134 

ICC Act, s 10(1). ICC Act, s 10(3). 136  Hereafter referred to as ‘the 1962 Act’. 137  This Act is also referred to as ‘the 1998 Act’. 138  C Campbell and R Murphy, ‘Correspondent Report on Ireland’ 1 Yearbook of International Humanitarian Law 380. 139 Section 3 of the Geneva Conventions Act 1962 as amended by s 3(1B) of the Geneva Conventions (Amendment) Act 1998. 140  Section 3(1) of the Geneva Conventions Act 1962 as amended by s 3(1) of the Geneva Conventions (Amendment) Act 1998. 141  Section 3(1) of the Geneva Conventions Act 1962 as amended by s 3(1A) of the Geneva Conventions (Amendment) Act 1998. 135 

Articles—Adanan 77 War crimes that are not considered to be grave breaches of the Geneva Conventions are defined as ‘minor breaches’.142 The territorial principle is provided for in respect of these offences: Any person, whatever his nationality, who, in the State, commits, or aids, or abets or procures the commission in the State by any other person of, any minor breach of any of the [Geneva] Conventions or of Protocol I or Protocol II shall be guilty of an offence.143

Culpability may also be attributed to a person who fails to prevent the minor breach from occurring within the State when they have a duty to do so.144 In addition, the active personality principle applies to persons who commit minor breaches of the Geneva Conventions and AP I and AP II: Any citizen of Ireland who, outside the State, commits, or aids, or abets or procures the commission outside the State by any other person of, any minor breach of any of the Scheduled Conventions shall be guilty of an offence.145

Similarly, responsibility may also be attributed to Irish citizens who fail to prevent the commission of a minor breach when they have a duty to do so.146 It is significant that the State chose to legislate for violations of AP II committed by Irish nationals abroad. This is because violations of AP II are viewed as matters internal to the territorial State concerned. In fact, AP II does not dictate how its provisions are to be criminalised. The Irish legislation providing for individual criminal responsibility in respect of violations of AP II (committed by Irish nationals) was reflective of the wider move towards this position in other States at the time.147 One assumes that the lawmakers were aware of the converging laws on the rules of war pertaining to international and internal armed conflicts, as well as the individual criminal responsibility attributed to common Article 3 in the Tadić decision. The criminalisation of minor breaches in the Irish legislation is also significant considering that the Geneva Conventions and Additional Protocols do not specify how States are to repress such acts.148 In Prosecutor v Sam Hinga, the Appeals Chamber of the Special Tribunal for Sierra Leone noted that Ireland was one of five States whose legislation criminalised the recruitment of child soldiers before the creation of the Rome Statute.149 The legislation grants the responsibility to determine the circumstance in which the Conventions and Additional Protocols apply to the Minister for ­Foreign Affairs and 142  Section 4(4) of the Geneva Conventions Act 1962 as amended by s 4(1)(g) of the Geneva Conventions (Amendment) Act 1998. 143  Section 4(1) of the Geneva Conventions Act 1962 as amended by s 4(1)(a) of the Geneva Conventions (Amendment) Act 1998. 144  Section 4(1) of the Geneva Conventions Act 1962 as amended by s 4(1)(b) of the Geneva Conventions (Amendment) Act 1998. 145  Section 4(2) of the Geneva Conventions Act 1962. 146  Section 4(1)(d) of the Geneva Conventions (Amendment) Act 1998. 147  Campbell and Murphy (n 138) 381. 148  A general direction is given in the common penal provision of the Four Geneva Conventions and AP I. This reads, ‘Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article’. 149  Prosecutor v Sam Hinga Norman—Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Special Court for Sierra Leone case number SCSL-2004-14-AR72(E), judgment 31 May 2004, para 45. The legislation referred to by the Court was ss 4 (1) and (4) of the Geneva Conventions Act 1962 (as amended), which provide for territorial jurisdiction (by guilt by commission or omission) for minor breaches of the Geneva Conventions and AP I and II.

78  The Irish Yearbook of International Law 2014 Trade.150 The Minister’s opinion can be used as evidence in court.151 This suggests that it is for the Minister to make a determination on the characterisation of the armed conflict in question. Section 6 of the 1998 Act allows for reports of the International Fact-Finding Commission (provided for under Article 90(2) of AP I) to be included in proceedings.152 Despite the extensive measures provided in the legislation incorporating the Geneva Conventions and Additional Protocols into Irish law, the laws do not go far enough. It is significant that the legislation does not allow for a prosecution to take place in Ireland in respect of war crimes committed by foreigners against foreigners in NIAC. However, prosecutions of the same acts committed in IAC can take place in this jurisdiction, irrespective of the nationality of the accused. This is an antiquated approach to the punishment of war crimes, because today the vast majority of war crimes are committed during NIAC. It may be the case that the State follows the common law belief, emanating from the British legal system, that crimes are best punished by the territorial State.153 The problem with this approach is that a territorial prosecution is not always possible. On this basis, it is imperative that Ireland and other States incorporate the necessary legislation to punish international crimes committed abroad. Ireland’s commitment to enforcement of IHL would be seriously called into question if the situation arose where a war criminal (who had committed war crimes abroad in NIAC) was legally residing in the State. Other European States have been confronted with such situations.154 In which case the State’s right to exercise universality under customary international law would have to be relied upon. In most jurisdictions, the public prosecutor plays a pivotal role in the punishment of international crimes. We now turn to examine the role of the public prosecutor, the Director of Public Prosecutions (DPP), in such a scenario. The Role of the Public Prosecutor In common law jurisdictions, the public prosecutor is the prosecutorial arm of the State. In recent years, some European States have apportioned more responsibility to public prosecutors in the prosecution of international crimes committed abroad.155 Some countries have always required the consent of the public prosecutor or Attorney General to prosecute international crimes.156 The ICC Act states that persons accused of committing an ICC offence cannot be tried without the authority of the DPP, and DPP consent

150 

Referred to as the Minister for External Affairs in the 1962 Act. Section 5 of the Geneva Conventions (Amendment) Act 1998, which amends s 5 of the 1962 Act. 152  This mechanism has never been used. However, it may soon be activated. See S Ackerman and others, ‘Doctors without Boarders: We Received No Advance Warning of US Airstrike’ (London, The Guardian, 7 October 2015). 153  Reydams (n 6) 202. 154  See text at section entitled ‘The Customary Right of States to Exercise Universal Jurisdiction over War Crimes Committed in NIAC’. 155  In the UK, see s153 of the UK Police Reform and Social Responsibility Act 2011, which requires the consent of the DPP for the issuing of an arrest warrant against an individual accused of having committed grave breaches of the Geneva Conventions. In Belgium, see Art 16 (2) of the Law on Grave Breaches of International Humanitarian Law, August 2003, which requires the consent of the Federal Prosecutor for an investigation to proceed, in the case of proceedings under the Act. 156  Canada is one such State, see s 9 (3) of the Crimes Against Humanity and War Crimes Act 2000. Thank you to Professor William Schabas for bringing this to my attention. 151 

Articles—Adanan 79 is required for any activity other than the accused being remanded in custody or granted bail.157 Furthermore, section 6(1) of the ICC Act 2006 affirms that proceedings under the ICC Act are to be dealt with in the Central Criminal Court or the Special Criminal Court.158 Meanwhile, the consent of the Attorney General is required for proceedings under section 3(3) of the Geneva Conventions Act 1962, for any action other than the accused being remanded in custody or being granted bail.159 In some States private individuals have initiated prosecutorial proceedings for international crimes.160 In I­reland, private prosecutions are a scarcely utilised procedure.161 Victim participation in national criminal proceedings has also been a feature of the exercise of universal jurisdiction in continental Europe.162 It is questionable whether this would be the case in this jurisdiction, particularly given that victims are not formal participants in the legal process. Professor Steven Ratner has suggested that guidelines be put in place to direct public prosecutors punishing international crimes under universal jurisdiction.163 Of course, in order for the functions of the DPP to be engaged, the customary right of States to exercise universality over war crimes during NIAC would have to be relied on in the Irish Courts. We now turn to analyse how this right might be dealt with by the Courts. THE APPLICATION OF CUSTOMARY INTERNATIONAL LAW IN IRELAND

Since 2000, the Irish Courts have interpreted customary international law from a dualist perspective.164 Practice demonstrates that the particular customary rule being relied on will also have an impact on the judicial interpretation thereof. In the past, customary international law has been rejected in legal challenges to the constitutionality of criminal law statutes.165 However, reliance on customary international law has been successful in cases concerning sovereign immunity.166 This is perhaps due to the fact that sovereign immunity is a rule of international law that existed before the creation of the State. In this respect, universal jurisdiction over war crimes committed during NIAC is a ­relatively

157 

ICC Act, s 9 (2). Proceedings in the Central Criminal Court or the Special Criminal Court must be prosecuted by the DPP. See Art 30.3 of the Constitution in conjunction with the Prosecution of Offences Act 1974, which transferred most of the criminal work of the Attorney General to the DPP. 159  This is one of the exceptions to the transfer of criminal functions of the Attorney General to the DPP in the Prosecution of Offences Act 1974. See s 3(5) thereof. 160  In Belgium, the procedure is called ‘civil partie’, while in Spain it is called ‘acción popular’. 161  As Thomas O’Malley has noted, ‘a private prosecution for an indictable offence may still be initiated privately, but the accused may not be sent forward for trial without the consent of the DPP’. See T O’Malley, The Criminal Process (Dublin, Roundhall, 2009) 377–78. 162  F Francioni, ‘The ICC Relationship with National Jurisdictions: What Future’ in M Politi and F Gioia, The International Criminal Court and National Jurisdictions (London, Ashgate, 2008) 140. 163  SR Ratner, ‘Belgium’s War Crime Statute: A Postmortem’ (2003) 97 American Journal of International Law 888, 894–96. 164  Clive Symmons notes that this regression is evident since MFM v MC et al (Proceeds of Crime) [2001] 2 IR 385. See Symmons (n 96) 111–52. 165  Symmons (n 96) 112, citing Re Ó Laighléis [1960] IR 93, MFM v MC et al, ibid and Kavanagh v Governor of Mountjoy Prison [2002] IR 97. 166  Symmons (n 96) 112, citing Zarine v Owners of the SS Ramava [1942] IR 248 and Saorstát and Continental Steamship Co v De las Morenas [1945] IR 291. 158 

80  The Irish Yearbook of International Law 2014 recent phenomenon. However, the right of States to establish a tribunal to punish war crimes dates back to before the creation of the State.167 On face value, Article 29.8 of the Constitution has the potential to provide a gateway through which the State could exercise universal jurisdiction over war crimes committed during NIAC. The Article expressly refers to the extraterritorial jurisdiction of the State, and reads, ‘The State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law’. However, the exact scope of the Article is open to interpretation, as it has yet to be examined by the Judiciary.168 Upon a literal interpretation, the provision could allow for the exercise of universal jurisdiction in respect of war crimes committed in NIAC. Clear reference is made to the exercise of extraterritorial jurisdiction, so long as it is in line with the general principles of international law. As explained above, the customary right exists in international law. However, if one looks to the intention of the drafters, the Article may not provide for the right under customary international law. Article 29.8 was one of the amendments to the Constitution that arose from the State’s obligations emanating from the 1998 Good Friday Agreement.169 This context is evident from the Dáil discussion on the Article.170 However, the Oireachtas had the authority to enact legislation with extraterritorial effect prior to the introduction of Article 29.8.171 Judge Gerard Hogan and Professor Gerry Whyte have noted that: … [Article 29.8] ensures that the power of the Oireachtas to legislate with extra-territorial effect is not defined by reference to the equivalent power of the older Parliament but may develop organically in line with modern public international law.172

The Article has been interpreted as meaning that the extraterritorial jurisdiction the State has the authority to enact, actually is enacted by the Oireachtas. As such, the Article does not confer upon the State the capacity to rely on a rule of customary international law directly. The State must exercise its prescriptive jurisdiction. This fact has been recognised by the Law Reform Commission,173 and by civil society organisations.174 Thus, without the enactment of the particular form of extraterritorial jurisdiction over the said

167  Commenting on this right in the aftermath of the First World War, the Commission on the Responsibility of the Authors of War and on Enforcement of Penalties in 1919 stated, ‘Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of such cases [violations of the laws and customs of war]’. See Commission on the Responsibility of the Authors of War and on Enforcement of Penalties’s Report to the Preliminary Peace Conference in 1919, reprinted in (1920) 14 American Journal of International Law 95, 121. 168  M Forde and D Leonard, Constitutional Law of Ireland, 3rd edn (Haywards Heath, Bloomsbury Professional, 2013) 260. 169  M Forde, Constitutional Law, 2nd edn (Dublin, First Law, 2004) 245. 170  Statement by An Taoiseach on The Good Friday Agreement, 1 December 1999. 171  Donegal Fuel Supply Ltd v Londonderry Harbour Commissioners [1994] 1 IR 24; Re Article 26 and the Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129. 172  GW Hogan and GF Whyte, JM Kelly: The Irish Constitution, 4th edn (Haywards Heath, Butterworths, 2003) 562. 173  The Law Reform Commission has stated, ‘Article 29.8 of the Constitution provides that the State may legislate with extra-territorial effect, which must be done expressly…’ Law Reform Commission, Issues Paper on Cyber-Crime Affecting Personal Safety, Privacy and Reputation Including Cyber-Bullying (LRC, IP 6-2014) p 12. See also Law Reform Commission, Report on Harmful Communications and Digital Safety (LRC, 1162016) p 8. 174  Amnesty International (n 110) 6. See also Free Legal Advice Centres, the Irish Council for Civil Liberties and the Irish Penal Reform Trust (n 121) 18.

Articles—Adanan 81 offence, in this case, universality over war crimes committed in NIAC, it is unlikely that Article 29.8 could provide a solution to the legal void that currently exists in Irish law. Conversely, Article 29.8 authorises the State to legislate for universal jurisdiction in respect of war crimes committed in NIAC. The reference to ‘generally recognised principles of international law’ in other sub provisions of Article 29 has been interpreted as including customary international law.175 However, the phrase has been construed as referring to rules that apply between States.176 This should not pose a problem to the Oireachtas, because the customary right to exercise universality belongs to States and not to individuals. In Horgan v An Taoiseach, the Irish Courts held that a customary rule on neutrality applied to Ireland, albeit stemming ultimately from an international treaty.177 Here, the High Court found that the customary rule in question, on the rights and obligations of neutral States, was a general principle of international law. Similarly, the right of States to exercise universality over war crimes in NIAC exists in customary international law, and would therefore, come under the ‘generally recognised principles of international law’. It is also worth reiterating that the erga omnes obligation in customary international law is owed to other States and not to individuals. Again, universal jurisdiction is a right of States and not individuals.178 Article 29.3 of the Constitution has been litigated on numerous occasions in relation to the application of customary international law in Ireland. It reads, ‘Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States’. The fact that the Article has been interpreted by the Courts as referring to laws that apply between States,179 has resulted in the provision being described as having ‘external effect’.180 The mention of ‘Ireland’ in the Article has been construed as meaning that the Article is directed towards the State only.181 Consequently, the reference to ‘The State’ in Article 29.8 could be interpreted in a similar manner, which may result in the Article not conferring a right of action of individuals. It would therefore follow, that in the event of the State not exercising universal jurisdiction over an individual present in its territory, it may not be possible for an individual to complain to the Courts on the basis of Article 29.8. This situation can be inferred from the case law on Article 29 to date.182 However, it would be possible for another State to issue a complaint on that basis against Ireland before the ICJ.183

175 

R Fuller, Biehler on International Law: An Irish Perspective, 2nd edn (Dublin, Roundhall, 2013) 64. Re Ó Laighléis (n 165), Maguire CJ affirmed, ‘[Sections] 1 and 3 of Article 29… clearly refer only to relations between states and confer no rights on individuals’, at 124. Fennelly J upheld this view in Kavanagh v Governor of Mountjoy Prison (n 165) at 106. 177  Horgan v An Taoiseach [2003] 2 IR 468, 505. 178  See section entitled ‘The Customary Right of States to Exercise Universal Jurisdiction over War Crimes Committed in NIAC’ above. 179 In Re Ó Laighléis (n 165). See also Horgan v An Taoiseach (n 177) at 508–09. 180  Symmons (n 96) 116. 181  Horgan v An Taoiseach (n 177) 513. See however, ACT Shipping (PTE) Ltd. v Minister for the Marine [1995] IR 93. 182  Horgan v An Taoiseach (n 177); Kavanagh v Governor of Mountjoy Prison (n 165); Re Ó Laighléis (n 165). See however, ACT Shipping (PTE) Ltd. v Minister for the Marine (n 181). 183  Belgium issued a complaint before the ICJ against Senegal’s failure to meet its obligations under aut dedere aut judicare in respect of torture. See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, judgment, 20 July 2012. 176 In

82  The Irish Yearbook of International Law 2014 It is unclear at what level ‘the generally recognised principles of international law’ are incorporated into Irish domestic law.184 However, it is clear that where there is conflict between a provision of domestic law and a general principle of law, the domestic law will prevail.185 Similar approaches have been adopted in other countries. As Professor Dinah Shelton describes, ‘Domestic law continues to prevail, however, when it cannot be reconciled with international law’, because in most countries written law is privileged over unwritten law.186 As it stands, in the event of the Courts having to decide on the existence of a customary right to exercise universality over war crimes in NIAC, the legislation in place, namely the ICC Act and the Geneva Conventions Act 1962 (as amended) would prevail. This would result in Ireland not conforming to international law. This is true both in respect of the right under customary international law as demonstrated above, and also in respect of the erga omnes obligation that applies to war crimes. The enactment of a provision allowing universality over war crimes during NIAC would provide a more concrete alternative than the State having to rely on the un-legislated customary right in the Irish Courts. In the event that the State, or rather the DPP relying on an unlegislated right under customary international law, the accused persons would have good grounds to challenge the legality of the action. The Irish Courts have adopted a restrictive interpretation of the application of customary international law in Ireland. In the past, Article 15.2.1° of the Constitution has operated as a barrier to the application of customary rules in Ireland.187 However, in Horgan v An Taoiseach, Keane J held that Article 15.2.1° ‘does not per se inhibit the incorporation of customary international law into Irish domestic law, subject to the proviso that there is no resultant conflict with the Constitution, statute law or common law’ (emphasis in original).188 Article 46 on the procedure to be followed for constitutional amendments has previously been used by the State as an argument prohibiting the application of customary international rules in Ireland.189 Recently, David Fennelly has noted that a conflict exists between the interpretation of customary international law in European Union (EU) law and in Irish law.190 This arises because the Court of Justice of the EU views customary international law as being superior to conflicting EU legal norms.191 The EU has sought to achieve a common policy among Member States towards the ICC.192 It has entered into an agreement with the ICC, which defines the ‘terms of cooperation and assistance’ between the two ­institutions.193 In addition, the EU has issued a series of Council Decisions concerning

184  Hogan and Whyte (n 172) 501. See also J Casey, Constitutional Law in Ireland, 3rd edn (London, Sweet & Maxwell, 2000) 193–95. 185  Horgan v An Taoiseach (n 177); ACT Shipping (PTE) Ltd. v Minister for the Marine (n 181). 186  Shelton (n 76) 7. 187  Kavanagh v Governor of Mountjoy Prison (n 165). 188  Horgan v An Taoiseach (n 177) at 505. 189  This argument was used by the State in Horgan v An Taoiseach (n 177). 190  Fennelly (n 95) 217–18. 191  Fennelly, ibid, 204–16. 192  TM Moschetta, ‘Cooperation between the European Union and the International Criminal Court: Legal Bases and Opportunities for Implementation’ in M Politi and F Gioia (eds), The International Criminal Courts and National Jurisdictions (London, Ashgate, 2008) 124. 193  Agreement on Cooperation and Assistance with the International Criminal Court 10 April 2006 [2006] OJ L115/50. This agreement applies between the ICC and the EU and not between the ICC and the Member States of the EU.

Articles—Adanan 83 the prosecution of persons accused of having committed international crimes.194 Council Decision 2002/494/JHA of 13 June 2002 established a network of contact points in each Member State for the exchange of information about people suspected of having committed international crimes within the jurisdiction of the Court.195 The Decisions were in response to génocidaires and war criminals subsequently seeking refuge in EU Member States, after having committing such crimes abroad.196 It is notable that the Council Decisions do not distinguish between war crimes committed during an international or internal war. Recently at the UN General Assembly, Ireland aligned itself with the EU Statement on the work of the ILC on customary international law.197 The State has incorporated universality into Irish law when obligated to do so by an international treaty. Universal jurisdiction is legislated for in respect of grave breaches of the Geneva Conventions and AP I198 and Torture.199 Thus, Ireland has fulfilled its international obligations in this regard. Universal jurisdiction has also been incorporated into domestic law for offences committed against UN and associated personnel, during UN operations not authorised under Chapter VII of the UN Charter.200 This legislation also applies to attacks against premises and vehicles of UN and associated personnel.201 The 1994 Convention on the Safety of UN and Associated Personnel obligates States parties to incorporate the nationality and territorial principles into their national law.202 Article 14 of the Treaty obligates States parties to exercise the obligation to try or extradite in respect of the offences. The consent of the DPP is required for the trial to proceed under the domestic legislation giving effect to the Treaty.203 The fact that the State has legislated for universality when required to do so by international Treaty demonstrates that the State takes a positivist approach toward incorporation of international law rules into the domestic legal system. The exercise of universal jurisdiction in Ireland would be ‘exceptional’.204 It would be extraordinary if the situation arose whereby the Irish State was required to exercise universal jurisdiction over any international crime, let alone in the case of war crimes.205

194  Council Decision 2002/494/JHA of 13 June 2002 setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes [2002] OJ L167/1. See also Council Decision 2003/335/JHA of 8 May 2003 on the investigation and prosecution of genocide, crimes against humanity and war crimes [2003] OJ L118/12. This called for cooperation between authorities to prosecute suspects, in respect of suspects who claim residency in an EU Member State. This also encouraged closer cooperation between immigration and law enforcement authorities. 195  This network also allows for support to national authorities carrying out investigations. 196  Council Decision 2002/494/JHA of 13 June 2002, Preamble reads ‘Member States are being confronted with persons who were involved in such crimes and are seeking refuge within the European Union’s frontiers’. The Council Decision is concerned with the sharing of information between immigration and police enforcement authorities, given that suspects of international crimes were seeking residency in EU Member States. 197  Statement of Mr Trevor Redmond, Assistant Legal Adviser, Department of Foreign Affairs and Trade at the Sixth Committee UN General Assembly’s 60th Session on the Third Report of the International Law Commission, 3 November 2014. 198  See text at section entitled, ‘The Incorporation of International Humanitarian Law in Ireland’. 199  Criminal Justice (United Nations Convention against Torture) Act 2000, ss 2 and 3. 200  Criminal Justice (Safety of United Nations Workers) Act 2000, s 2. 201  Criminal Justice (Safety of United Nations Workers) Act 2000, s 2. 202  Convention on the Safety of UN and Associated Personnel 1994, Arts 10(1) and 10(2). 203  Criminal Justice (Safety of United Nations Workers) Act 2000, s 5. 204  N Ní Mhuircheartaigh, ‘Statement to UN on Universal Jurisdiction’ in S Mullally and F de Londras (eds), Irish Yearbook of International Law (Oxford, Hart Publishing, 2011). 205  Since this article was written, a private prosecution was initiated in the Dublin District Court in respect of torture committed against Jaafar Al Hasabi in Bahrain. Ali Bin Fadhul Al Buainain, the incumbent Attorney

84  The Irish Yearbook of International Law 2014 In the early cases on customary ­international law and its application in the State, the Courts looked to Britain for ­guidance.206 In this regard it is worth noting that international crimes may be punished in the UK when committed abroad by a person of any nationality who is resident in the UK.207 Persons who become resident in the UK after the commission of the offences may also be punished.208 Crucially, the UK legislation borrows its definition of war crimes from Article 8 of the Rome Statute, thus it allows for jurisdiction over war crimes committed NIAC.209 In interpreting the ICC Act 2006 and the Rome Statute, the Irish Courts may take into account the travaux préparatoires of the Rome Statute, academic commentary, as well as decisions of the ICC, its Rules of Procedure and Evidence and the Elements of Crimes.210 Other relevant judgments may also be considered.211 However, given the previous case law concerning the application of customary international law, it is likely that the Courts would adopt a conservative approach to the State’s right to exercise universal jurisdiction over war crimes committed during NIAC. Michael Forde and David Leonard note that although customary international law is part of the common law (unless it conflicts with statute or the Constitution), it is questionable whether it can be the basis for criminal liability.212 As noted by the Constitutional Review Group in 1996, ‘[T]he effect to be given in domestic law to customary international law is much less clear’.213 The stifling interpretation of the application of customary international law in the State would hamper the exercise of universal jurisdiction over war crimes committed in NIAC. What is more, it acts as a deterrent to pursuing international cases through the Irish Courts.214 In spite of this, it should be remembered that the status of customary international law in domestic legal systems raises many questions, not only for this jurisdiction. This reality is one of the reasons why the ILC are currently engaged in an examination of the subject. Commenting on the work of the ILC, the Irish Government: [S]hared the view that the outcome of this work must be to provide guidance which is clear and practical, for those not only working at the international level but also to practitioners in the

General of Bahrain, who was due to visit Dublin in September 2016, was allegedly involved in the torture. The application sought to summon Al Buainain before the Court to be tried under the Criminal Justice (United Nations Convention Against Torture) Act 2000, which provides for the exercise of universal jurisdiction over torture. See C Keena, ‘Attempt rejected to have Bahrain AG appear before Dublin Court’ (Dublin, The Irish Times, 13 September 2016). 206  Symmons (n 96) 120–21. Symmons notes that the fact that Britain does not have a written constitution has been overlooked by judges in this jurisdiction. 207  International Criminal Court Act 2001 (UK), s 51(2)(b). See also International Criminal Court (Scotland) Act 2001, s 2(b). The Irish Government has adopted this approach to enforcement jurisdiction in the context of female genital mutilation committed abroad. See Criminal Justice (Female Genital Mutilation) Act 2012, s 4(1)(c). 208  International Criminal Court Act 2001 (UK), s 68. See also International Criminal Court (Scotland) Act 2001, s 6. 209  International Criminal Court Act 2001 (UK), Sch 8. See also International Criminal Court (Scotland) Act 2001, s 1(4). 210  ICC Act, s 3. In the past, Judges have relied on the writings of jurists as a guide to interpreting customary international law. Symmons (n 96) 118. 211  ICC Act, s 3(1)(b). 212  Forde and Leonard (n 168) 250. 213  Report of the Constitutional Review Group (Dublin, Stationary Office, 1996) 103. 214  In 1996, the Constitutional Review Group (CRG) did not make any recommendations in respect of the application of customary international law. In his submission to the CRG, Clive R Symmons recommended that customary international law be automatically incorporated into Irish law, ibid, 580–83.

Articles—Adanan 85 domestic sphere, while at the same time not be unduly prescriptive such that it might restrict the inherent flexibility of customary international law.215

We must also recognise that national courts are not immune from the political implications of their decisions, particularly when the issue relates to matters within another State’s borders. This scenario often arises in prosecutions of international crimes, including war crimes. One must not be blind to the fact that the rules of IHL, where legislated for in domestic law, may not result in a normative outcome.216 Sharon Weill has noted how ‘National courts of democratic states with a long tradition of judicial independence have developed different self-restraint doctrines…. In order to avoid giving rulings on issues with colossal political consequences’.217 In some situations domestic courts have narrowly interpreted the national law giving effect to international obligations.218 There have also been situations where Courts have developed ‘avoidance doctrines’, such as reliance on the act of State doctrine or the principle of non-justiciability,219 which equip ‘the executive with an effective shield against judicial review under international law’.220 Ultimately, the national legal order will always be the priority of national courts.221 Whatever the case, judges play an important role in interpreting international law and its application in the domestic setting.222 Furthermore, the issue of national interest and State resources will impact a State’s decision to prosecute an offence.223 CONCLUSION

This article has attempted to demonstrate the customary right of States to exercise universal jurisdiction over war crimes committed in NIAC, and to assess if this right is reflected in Irish law. As demonstrated, Irish domestic law fully complies with the State’s international obligations to punish war crimes committed in IAC. In some areas Irish law goes further than what is required by international treaty. However, the legislation does not provide for universality over war crimes committed in NIAC, genocide or crimes against humanity.224 Thus, there is a gaping void in Irish law. This is a significant issue, considering that extraterritorial prosecutions are a vital part of IHL implementation, as the primary responsibility for enforcement of IHL lies with national courts.225 What

215 

Redmond (n 197). Weill, The Role of National Courts in Applying International Humanitarian Law (Oxford, Oxford University Press, 2014) 2. 217  ibid, 67. 218  E Benvenisti ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241–274. 219  Weill (n 216). 220  E Benvenisti and GW Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law’ (2009) 20 European Journal of International Law 59, 60 221  ibid, 61. 222  Eyal Benvenisti and George W Downs note that ‘The judges can exercise this discretion in any number of ways: by interpreting treaties, by ordering treaty obligations in a hierarchical order, by ‘finding’ customary international law, and by determining which of these norms is directly applicable within the domestic legal system and how they interact with domestic norms’. See ibid, 67. 223  T Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89 American Journal of International Law 554, 555–56. 224  See text at section entitled ‘The Incorporation of International Humanitarian Law in Ireland’. 225  Weill (n 216) 8. 216  S

86  The Irish Yearbook of International Law 2014 is more, for reasons cited above, a territorial prosecution may not always be possible. Ireland, and other countries, must not become safe havens for suspected war criminals, or persons who are suspected of having committed other international crimes. This is an accusation that has been directed at the State in the past, in the context of war criminals fleeing Nazi Germany and the former Nazi Occupied Territories after the Second World War.226 To prevent this situation from occurring in this jurisdiction, it is imperative that the Oireachtas legislate for universal jurisdiction in respect of war crimes committed during NIAC. This would not be a complete change in policy, as the Irish Government has supported universal jurisdiction in the past. At the Rome Conference, Ireland supported a proposal by Germany to include universal jurisdiction in the Rome Statute.227 Recently, the Government made positive statements on universal jurisdiction at a debate at the UN General Assembly.228 During the debate, the Government did not agree with a proposal to postpone the exercise of universal jurisdiction pending the completion of discussions at the UN General Assembly.229 Instead, it supported a proposal by Switzerland to have the matter submitted to the ILC.230 In addition, the Government recognised the importance of universal jurisdiction, stating that it ‘may often be the last defence against impunity’.231 Equally, Ireland has abided by its international obligations where universal jurisdiction is authorised by international treaty. This is in line with Irish Foreign Policy, which is centered on international law and the principles of the UN Charter.232 As was stated by a former Minister for Foreign Affairs on the occasion of the 60th anniversary of the Geneva Conventions, ‘Successive Irish Governments have consistently advocated the effective investigation and prosecution of violations of international humanitarian law’.233 This statement can be questioned by the information provided in this article, and elsewhere.234 However, for a small country, Ireland carries substantial influence in the formation of IHL.235 The Government should incorporate universal jurisdiction over war crimes committed in NIAC, genocide and crimes against humanity into domestic law, and encourage other States in the same predicament to follow suit.

226  See correspondence between Ambassador to Ireland Maurice Goor and Belgian Foreign Minister Spaak dated 11 November 1944 and 17 November 1944 in dossier 12.643 at the Belgian Diplomatic Archives. 227  Schabas (n 13) 279–80. This position was ultimately defeated in favour of the active personality and territorial principles. 228  ‘The scope and application of the principle of universal jurisdiction’ is currently on the agenda of the Sixth Committee of the UN General Assembly. 229  Ní Mhuircheartaigh (n 204). The Government expressed disagreement with the proposal to set up an international commission linked to the UN General Assembly to regularise the exercise of universal jurisdiction. 230  Ní Mhuircheartaigh (n 204). 231  Ní Mhuircheartaigh (n 204). 232  Department of Foreign Affairs and Trade (n 19) 27. 233  Statement by the Minister for Foreign Affairs on ‘The Relevance of the Geneva Conventions in Contemporary Warfare’, Irish Red Cross Seminar, 3 November 2009. 234  Campbell and Murphy (n 138) 380. 235  See information in nn 22 and 23. See also M O’Driscoll and J Walsh, ‘Ireland and the 1975 NPT Review Conference: Norm-Building and the Role of Small States’ (2014) 25 Irish Studies in International Affairs 101.

Articles—Adanan 87 In the meantime, whether or not Article 29.8 of the Irish Constitution can provide a solution to the current legal void will depend on whether the provision can be relied on by the State to authorise unlegislated enforcement jurisdiction. The provision has been unlitigated so far and in general has not received much attention from ­Government.236 In interpreting the application of rights in customary international law in this j­ urisdiction, the Courts should bear in mind that ultimately, one of the purposes of customary international law is that it prohibits States from authorising heinous acts, which would otherwise be carried out with impunity. This proposition can be demonstrated by the formation of the IMTs at Nuremberg and the Far East. The purpose of these tribunals was to retrospectively supersede State authorised international crimes. As stated by one of the prosecutors at Nuremberg, Nicolas Doman, if it wasn’t for customary international law, [I]nstigators of international crimes could fashion their own laws in such a way as to exclude their criminal acts from the applicability of the national penal law. Then there would be no international or national law under which even the most horrendous crimes and mass murders could be punished.237

Perhaps the concern is that to allow the State to exercise universality over war crimes committed in NIAC would affect Irish neutrality. In this regard, it must be noted that the right of punishment of war crimes during NIAC applies to neutrals. In fact, another neutral State, Switzerland, regularly exercises universality in respect of war crimes.238 Similarly, other States engaged in peacekeeping exercise universal jurisdiction over international crimes, including war crimes committed in NIAC.239 Lastly, the rationale for the application of universal jurisdiction to the grave breaches regime in the Geneva Conventions must be remembered. The reason for its creation in 1949 was to prevent the acts from going unpunished.240 This concern also arises in respect of the same acts committed during internal wars. Just because an act is committed in NIAC does not increase the likelihood of prosecution. In fact, if the war crime has been committed by State forces or by an entity linked to the State, there is a strong possibility of the offence not being punished at all. A war crime committed during NIAC will still attract the condemnation of peoples the world over, because it is no less heinous than the same act committed during IAC. As was stated by the ICTY Appeals Chamber in Tadić, ‘[W]hat is inhumane and consequently proscribed, in international wars, cannot be inhumane and inadmissible in civil strife’.241 Given that the principle of complementarity dictates the operation of international criminal justice, it is vital that States legislate for universal jurisdiction over war crimes committed in international and internal armed conflict. This is necessary to close the impunity gap for such atrocities.

236  No recommendations were made on Art 29.8 or Art 29.9 in the Report of the All Party Oireachtas Committee on the Constitution in 2003. 237  As cited in Bassiouni (n 59) 160 from NR Doman, The Nuremberg Trials Revisited (American Bar Association, 1961) 260–61. 238  Reydams (n 6) 196–202. 239  Belgium has exercised universal jurisdiction over international crimes that occurred in countries in which it was engaged in peacekeeping operations. See Reydams (n 6) 109–25. 240  Final Report of the Diplomatic Conference of Geneva of 1949 (Geneva, ICRC, 1949) Vol II. See also Pictet (n 34). 241  Prosecutor v Tadić (jurisdictional decision case) (n 31), para 119.

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Notes and Comments

90 

Occupying the Continental Shelf?—A Note Considering the Status of the Continental Shelf Delimitation Agreement Concluded between Turkey and the TRNC during the Belligerent Occupation of Northern Cyprus SUSAN POWER*

INTRODUCTION

O

N 21 SEPTEMBER 2011, the Turkish Ministry of Foreign Affairs issued a Press Statement on the Continental Shelf Delimitation Agreement Signed between Turkey and the Turkish Republic of Northern Cyprus (TRNC) confirming that Turkey and the TRNC had concluded a continental shelf delimitation agreement in response to offshore drilling activities by the Republic of Cyprus in the south of the island.1 On 12 December 2012, on the completion of the ratification process, the agreement entered into force between Turkey and the TRNC.2 Greece strongly opposed the move in a note verbales to the Secretary General of the UN, on the grounds that granting exploration licences to the Turkish Petroleum Corporation encroached on Greece’s continental shelf. It further deprived the Dodecanese islands in the Aegean Sea of their legitimate maritime zones, representing a unilateral act contrary to international law.3 Turkey responded

* 

Dr Susan Power, Griffith College Cork. Republic of Turkey, Ministry of Foreign Affairs, ‘No 216, 21 September 2011, Press Statement on the Continental Shelf Delimitation Agreement Signed between Turkey and the TRNC’ at www.mfa.gov.tr/no_-216_-21 -september-2011_-press-statement-on-the-continental-shelf-delimitation-agreement-signed-between-turkeyand-the-trnc.en.mfa;Turkish Republic of Northern Cyprus, Ministry for Foreign Affairs, ‘Press Statement on the “Agreement on the Delimitation on the Continental Shelf in the Mediterranean”’ (5 May 2014) at http://mfa.gov. ct.tr/press-statement-on-the-agreement-on-the-delimitation-of-the-continental-shelf-in-the-mediterranean/. 2  QA-10, 30 April 2014, Statement of the Spokesman of the Ministry of Foreign Affairs in Response to a Question Regarding the Statement of the Spokesman of the Ministry of Foreign Affairs of Greece on the Continental Shelf Delimitation Agreement between Turkey and the TRNC at http://dublin.emb.mfa.gov.tr/ ShowAnnouncement.aspx?ID=209135. 3  Permanent Mission of Greece to the United Nations, Ref 389, ‘Verbal Note’ (New York, 20 February 2013) at www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/communications/grc_note_20022013_ re_tur.pdf; Hellenic Republic, Ministry of Foreign Affairs, ‘Foreign Ministry Announcement Regarding the Sending of a note verbale to the United Nations on the Safeguarding of Greece’s Sovereign Rights on the Continental Shelf (21 February 2013) at www.mfa.gr/en/current-affairs/news-announcements/foreign-ministryannouncement-regarding-the-sending-of-note-verbale-to-the-united-nations-on-the-safeguarding-of-greecessovereign-rights-on-the-continental-shelf.html. 1 

92  The Irish Yearbook of International Law 2014 by note verbales, arguing that the ‘permit areas fall entirely within the Turkish continental shelf where Turkey exercises exclusive sovereign rights for the purpose of exploring and exploiting its natural resources of the seabed and subsoil under international law’.4 On 22 September 2011, the day after the Continental Shelf Delimitation Agreement was concluded between the TRNC and Turkey, the TRNC granted the Turkish Petroleum Association a licence for oil and gas exploration activities within the newly delimited continental shelf area.5 On 26 September 2011, a seismic vessel ‘Piri Reis’ began exploration within the licensed area.6 In February 2014, Turkish frigate ‘Giresun’ warned the Norwegian seismic vessel ‘Princess’ against operating in blocs five and six in the disputed continental shelf territories between Turkey and the TRNC, highlighting the escalating tensions between States operating in the region.7 Both Cyprus and Turkey lay claim to the continental shelf in this maritime zone. Recently, in a letter dated 25 April 2014, addressed to the Secretary General, Turkey asserts that the areas claimed by the Republic of Cyprus ‘fall entirely within Turkey’s continental shelf’ as defined in notes verbales No 2004/Turkuno DT/4739 (2 March 2004) and No 2013/14136816/22273 (12 March 2013).8 This new chapter in the dispute between the Republic of Cyprus and Turkey pivoting on sovereign rights over natural resources in the continental shelf between Turkey as occupying power in Northern Cyprus and the Republic of Cyprus, raises interesting questions in relation to the precise interface between the international law of the sea and the law pertaining to belligerent occupation. This note establishes that Turkey’s status in Northern Cyprus is that of belligerent occupant. Accordingly, the note reviews the legality of the delimitation agreement under occupation law. It suggests that international agreements concluded between Turkey as belligerent occupant and authorities representing occupied Northern Cyprus are limited by occupation law. In particular, the article examines the deposit of coordinates with the Secretary General in his capacity as the depository of the UN Convention on the Law of the Sea, and questions whether it is possible to conclude a delimitation agreement with a territorial entity that is not a State under international law. Furthermore, the note questions whether the exploitation of the continental shelf is considered separately under the UN Convention on the Law of the Sea (UNCLOS) as a distinct legal regime from belligerent occupation.9 Additionally, it questions whether the belligerent occupant has rights of use over the continental shelf, falling short of sovereign rights.10 Finally, the note

4  Permanent Mission of Turkey to the United Nations (New York, 12 March 2013) at www.un.org/depts/ los/LEGISLATIONANDTREATIES/PDFFILES/communications/tur_note_re%20grc_12032013.pdf. 5  Turkish Republic of Northern Cyprus, Ministry of Foreign Affairs at http://mfa.gov.ct.tr/ cyprus-negotiation-process/natural-gas/. 6  ibid. 7  ‘Turkish Frigate Warns Off Norwegian Seismic Vessel’ LGC News, 3 February 2014 at www.lgcnews.com/ turkish-frigate-warns-norwegian-seismic-vessel/. 8  United Nations General Assembly, A/68/857, Letter Dated 25 of April from the Permanent Representative of Turkey to the United Nations addressed to the Secretary General, at www.un.org/ga/search/view_doc. asp?symbol=a/68/857. 9  Part VI, United Nations Convention on the Law of the Sea (UNCLOS), 1833 UNTS 397, 10 December 1982. 10  ‘Sovereign rights’ in this regard (see also section entitled ‘Extending International Humanitarian Law to the Continental Shelf?’) refers to the limited capacity of the belligerent occupant to administer occupied territory under Article 43 of the Hague Regulations (1907) and Article 64 of the Fourth Geneva Convention (1949). As such, the belligerent occupant adopts a caretaker role governing the territory temporarily in the absence of the legitimate sovereign. See further, Y Arai-Takahashi, The Law of Occupation, Continuity and Change of

Notes and Comments—Power 93 2° E

33° E

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36° E

30°

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MEDITERRANEAN SEA TURKEY - KKTC

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EUROPEAN DATUM (ED 50) PROJECTION: MERCATOR Silifke Gazipasa

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15 910 1112 13 14

20 21

25 2627

Ras El Basit

Tu r Syr key ia

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SYRIA

19 18

3 4

Al Qamsiyah

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Arnauti Br

30°

Ucgulluk

Girne Kuzey Kibris Turk Cumhuriyeti Gazimagusa Korfezi Guzelyurt Gazimagusa K.K Cyprus .T .C G.K.R.Y. Kibris Adasi G .K.R G.K.R.Y. .Y Greco Penninusula Larnaca Guney Kibris Rum Yonetimi

(S U R I Y E)

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Mersin Karfezi

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SCALE 1 : 1 102 000 (39°)

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Baniyas

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Figure 1:  Map of Delimitation between Turkey and TRNC11

indicates that the two legal regimes of the UNCLOS and belligerent occupation may be viewed together, as recognising and protecting the rights of the occupied sovereign State over its continental shelf. THE STATUS OF THE TRNC AS OCCUPIED TERRITORY

On 16 August 1960, the Republic of Cyprus gained independence from Britain.12 The Republic of Cyprus was immediately recognised by the international community and on 21 December 1960 became a Member State of the United Nations.13 Three years later 13 constitutional amendments were adopted, dismantling Turkish-Cypriot municipal councils installed under British rule and ending the Turkish-Cypriot veto on the budget.14

International Humanitarian Law, and its Interaction with Human Rights Law (Martinus Nijhoff Publishers, 2009) 95; S Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford University Press, 2009) 179; O Ben-Naftali, International Humanitarian Law and International Human Rights Law (Oxford University Press, 2011) 150. 11 

Part VI, United Nations Convention on the Law of the Sea, 833 UNTS 397, 10 December 1982. Palmer, ‘The Turkish Republic of Northern Cyprus: Should the United States Recognise it as an Independent State?’ (1986) 4 Boston University International Law Journal 423, 423. ‘Britain had first administered the territory on the basis of the Convention of Defensive Alliance between Great Britain and Turkey with Respect to the Asiatic Provinces of Turkey (1878), and later annexed the territory in 1914’. 13  United Nations General Assembly (UNGA) Res 1489 (XV) GAOR 15th Sess Supp 65. 14  Republic of Cyprus, Breakdown of the 1960 Constitution at www.cypnet.co.uk/ncyprus/history/republic/ breakdown.html. 12 S

94  The Irish Yearbook of International Law 2014 Following the constitutional amendments Turkish Cypriots refused to participate in government. During this time there were massive population movements with 25,000 Turkish Cypriots moving to Northern Cyprus.15 Fighting broke out between the two communities and the United Nations Peace Keeping Force in Cyprus (UNFICYP) were deployed to prevent further fighting.16 On 15 July 1974, Turkey invaded Northern Cyprus in violation of Article 2(4) of the Charter of the UN and by 1983 had established the TRNC as the government of a newly created purported State.17 The declaration by the Turkish Cypriot authorities to create a newly independent State in Northern Cyprus was considered legally invalid under Security Council Resolution 541 (1983).18 More recently, this position was reiterated by the International Court of Justice (ICJ) in the Kosovo Advisory Opinion where the declaration of independence was found to be illegal on the basis of its connection with the unlawful use of force and the violation of jus cogens norms of general international law.19 Moreover, UN Security Council Resolution 550 (1984) called upon ‘all States not to recognise the purported state of the “Turkish Republic of Northern Cyprus” set up by secessionist acts and calls upon them not to facilitate or in any way assist the aforesaid secessionist entity’.20 On this basis, Northern Cyprus remained occupied by Turkish armed forces operating under the laws of armed conflict. Article 42 of the Hague Convention IV, Annex to the Convention Regulations Respecting the Laws and Customs of War on Land of 1907 establishes that territory is considered occupied ‘when it is actually placed under the authority of the hostile army’ and considers that ‘the occupation extends only to the territory where such authority has been established and can be exercised’.21 In Loizidou v Turkey [1996], the European Court of Human Rights characterised the military presence in Northern Cyprus as occupied territory where: ‘Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication.’22 This position was echoed in the judgments of the European Court of Human Rights (ECtHR) in Cyprus v Turkey [2001] where the Court recognising the regime of belligerent occupation concluded that it appears indeed difficult to admit that a State is made responsible for the acts occurring in a territory unlawfully occupied and administered by it and to deny that State the opportunity to try to avoid such responsibility by correcting the wrongs imputable to it in its courts.23

15 

Calgar v Billingham [1996] STC (SCD) 150, para 28. United Nations Peace Keeping Force in Cyprus at /www.un.org/en/peacekeeping/missions/unficyp/. 17  United Nations Security Council (UNSC) Res 353 (20 July 1974) UN Doc S/RES/353; UNSC Res 541 (18 November 1983) UN Doc S/RES/541; UNSC Res 550 (11 May 1984) UN Doc S/RES/550; Republic of Cyprus, ‘The 1974 Turkish Invasion and Its Consequences’ at www.moi.gov.cy/moi/pio/pio.nsf/All/6F5DD418 DD053ED1C2256D6D001E7571?OpenDocument. 18  S/RES/541 (1983). 19  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 2004, 403, para 81. 20  S/RES/550 (1984). 21  Article 42, 1907 Hague Convention IV, Annex to the Convention Regulations Respecting the Laws and Customs of War on Land. The full text of the Hague Convention can be found in both the Second Peace Conference of the Hague 1907, 187 CTS 227 and 1 Bevans 631 (reproduced in Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd edn (Oxford University Press, 2000) 80. 22  Loizidou v Turkey [1996] 108 ILR 433 (merits) para 16–17. 23  Cyprus v Turkey Application no 25781/94 (ECtHR, 2001) para 13, 101. 16 

Notes and Comments—Power 95 The key point is that the Court also stated that it is evident from international practice that the international community does not recognise the TRNC as a State under international law.24 This position has been reflected in the judgments of national courts.25 For example, in Autocephalous Church of Cyprus v Golberg (1990), the US Court of Appeals, considered an action by Autocephalous Church of Cyprus and Cyprus to recover a sixth century Byzantine mosaic looted after the monks were forced to evacuate the church in 1976.26 The Court held that the confiscatory decrees of the TRNC could not take effect in the US Court of Appeals due to the US government’s non-recognition of the TRNC.27 Similarly in Calgar v Billingham [1996], the UK Special Commissioners (Inspector of Taxes) found that the appellants who were working for the TRNC in London were not exempted from income tax as the exemption applied only to recognised foreign States and the United Kingdom did not recognise the TRNC for the purposes of tax exemption.28 The laws of belligerent occupation have been applied in the case-law of the Constitutional Court for the TRNC to protect the property of displaced Greek Cypriots from being registered and assimilated as State property of the TRNC, on the grounds that alteration of title to private immoveable property is prohibited under occupation law.29 For instance, in National Unity Party v TRNC Assembly of the Republic (2006), a question arose over the constitutionality of a new Law on Compensation, Exchange and Return of Immoveable Properties (2005) introduced by the TRNC as a mechanism of redress for displaced Greek Cypriots, dispossessed of private immoveable property, in line with previous ECtHR rulings.30 The main opposition party argued that this new compensatory mechanism conflicted with Article 159 of the TRNC Constitution, which provided for the assimilation of properties into the public portfolio. In a landmark decision, the TRNC Constitutional Court held that private immoveable property cannot be appropriated by the invading belligerent and although there is support for the proposition that property may be temporarily used by the belligerent during hostilities for public purposes, this does not permit the occupant to ‘change the legal tie between absentees and their properties’.31 In arriving at this decision the Court relied on Article 46 of the Hague Regulations which expressly states that ‘private property may not be confiscated’. The decision

24 

Article 42 (n 21) para 42. Polly Peck International Plc v Nadir (No 2) [1992] 4 All ER 769, [1992] 2 Lloyd’s Rep 238, CA; Domestic courts may give effect to laws in unrecognised States where to not do so would adversely impact on day-to-day aspects of life. See Hesperides Hotels v Agean Turkish Holidays [1978] QB 205; 73 ILR 9; Calgar (n 14) at 535–40. 26  Autocephalous Church of Cyprus v Golberg 917 F.2d 278 (1990) para 20. 27  ibid at para 68. 28  Calgar (n 15) para 158. 29  Calgar (n 15) para 158. 30  National Unity Party (Ulusal Birlik Partisi) v TRNC Assembly of the Republic (KKTC Cumhuriyet Meclisi) ILDC 499 (TCC 2006) para F1. According to Article 159 of the Constitution of the Turkish Republic of Northern Cyprus, ‘All immoveable properties, buildings and installations which were found abandoned on 13th February, 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or not being owned after the abovementioned date, or which should have been in the possession or control of the public even though their ownership had not been determined….shall be the property of the Turkish Republic of Northern Cyprus notwithstanding the fact that they are not so registered in the records of the Land Registry Office records shall be amended accordingly’. 31  ibid. 25 

96  The Irish Yearbook of International Law 2014 was also influenced by the academic writings of Oppenheim on the temporary use of private property and the writings of Eyal Benvenisti and Eyal Zamir on the non-alteration of property status during occupation.32 Biehler suggests that the decision carries ‘particular weight’, considering that it was handed down by the highest court of the occupying authority.33 It also attests to the status of Northern Cyprus as occupied territory for the purposes of applying the Continental Shelf Delimitation Agreement and demonstrates the Court’s willingness to find constitutional provisions void for incompatibility with property rights guaranteed under occupation law. Moreover, applying this reasoning, a legal challenge to the Continental Shelf Delimitation Agreement on its incorporation into domestic law, might not withstand the scrutiny of the Constitutional Court should it apply the laws of belligerent occupation. LIMITING POLITICAL AGREEMENTS UNDER OCCUPATION LAW

Notably, the conclusion of the Continental Shelf Delimitation Agreement comprises a ‘special agreement’ between Turkey and the TRNC, and as such, is regulated by Articles 7 and 47 of the 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War.34 Significantly, Article 7 provides that ‘no special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them’.35 The provision recognises that belligerents may conclude international agreements for a number of reasons, but the scope of the agreements are necessarily limited by reference to the protections guaranteed under the Geneva Conventions. The first part of the sentence spells out a general obligation to safeguard the occupied population, while the latter part protects specific rights. Pictet underscores the value of this, by example of an agreement, which on surface value may appear to benefit the occupied population, but later turns out to adversely affect them. The latter safeguard specifically prohibits State derogations from convention obligations through the channels of diplomatic agreements.36 This protection is restated in Article 47 of the Fourth Geneva Convention, which limits the effects of political agreements negotiated during occupation of an ‘absolute character’.37 Political Agreements and the Example of Palestine The agreement to delimit the continental shelf granting Turkey a larger portion of the continental shelf based on so called ‘equitable principles’ may be likened to the somewhat 32  ibid, at para 32. E Benvenisti and E Zamir, ‘Private Claims to Property Rights in the Future IsraeliPalestinian Settlement’ (1995) 89 American Journal of International Law 295, 295. ‘International law recognises the power of the occupant to take possession of, and to administer, the private property of absent individuals….the administration of the property does not sever the legal tie between absentees and their property. Thus the occupant cannot sell real property belonging to absentees’. 33  G Biehler, Procedures in International Law (Springer, 2008) 211. 34  Articles 7, 47, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, entered into force 21 October 1950. 35  Art 7, Fourth Geneva Convention. 36  JS Pictet, The Geneva Conventions of 12 August 1949, Commentary Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (International Committee of the Red Cross, 1958) 64. 37  ibid, at 273.

Notes and Comments—Power 97 anomalous natural resource provisions contained in the Oslo Accords concluded during the Israeli occupation of the Palestinian Territory. Although Article VII of the 1995 Oslo Interim Agreement specifically guarantees respect for international law, requiring that ‘the Israeli military government shall retain the necessary legislation, judicial and executive powers and responsibilities, in accordance, with international law’. Notably, Annex III of the Oslo Agreement provides the legal basis for a ‘joint exploitation’ cooperation agreement for the management of industrial quantities of oil and gas resources ‘particularly in the Gaza Strip and in the Negev’.38 In reality, these resources are protected for the benefit of the occupied population. Accordingly, Article 55 of the Hague Regulations provides: the occupying state shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.39

Article 55 of the Hague Regulations ensures that contracts negotiated for the exploitation of natural resources with the occupying power comply with the rules of usufruct and the duty to safeguard the capital of the properties. Similarly, the ruling by the Israeli High Court of Justice in Yesh Din v The Commander of the IDF in the West Bank finding that the exploitation of quarries featuring in the Accords are political matters which have been ‘settled’ under the Interim Agreement, and beyond the competence of the Court falls foul of Article 7 considerations.40 Accordingly, the protections accorded to the ­occupied population under the Hague Regulations41 and Geneva Conventions are not compromised in any way by the nature of the diplomatic agreements.42 Article 47 of the Fourth Geneva Convention (1949) offers a useful insight into the question of maintaining the previous structures of State, providing that protected persons shall not be deprived of the protection of the Convention in the event that changes are introduced in the institutions of government during occupation by arrangements

38 Article 3, Oslo Agreement, Annex III, Protocol on Israeli-Palestinian Cooperation in Economic and Development Programs. ‘Cooperation in the field of energy, including an Energy Development Program, which will provide for the exploitation of oil and gas for industrial purposes, particularly in the Gaza Strip and in the Negev, and will encourage further joint exploitation of other energy resources. This Program may also provide for the construction of a Petrochemical industrial complex in the Gaza Strip and the construction of oil and gas pipelines’. 39  Article 55, Hague Regulations. 40  HCJ 2164/09, ‘Yesh Din’—Volunteers for Human Rights v The Commander of the IDF Forces in the West Bank, Supreme Court sitting as the High Court of Justice, para 4–6 (published 26 December 2011); HCJ 4354/92, The Temple Mount and Land of Israel Devotees v The Prime Minister (unpublished, 10 January 1993); HCJ 4877/93, The Victims of International Arab Terror Organisation (Neta) v The State of Israel (unpublished, 12 September 1993). 41  Article 46, Hague Regulations. The rules embodied in the Regulations were partly reaffirmed and developed by the two Protocols to the Geneva Conventions of 1949 adopted in 1977. Furthermore, they were considered declaratory of customary international law by the International Military Tribunal at Nuremberg, in Case of the Major War Criminals, Judgment, 1 October 1946, Official Documents, Vol I, 253–54; HCJ 606/78, Ayyub v Minister of Defense [1978] PD 33 (2) 113 (Beth El Case). 42  V Azarov, ‘Al Haq’s Questions and Answers: Palestine’s UN Initiatives and the Representation of the Palestinian People’s Rights’ (Al Haq, 2011) 12; See also, I Scobbie and A Margalit, ‘The Israeli Military Commander’s Powers under the Law of Occupation in Relation to Quarrying Activity in Area C’ (4 July 2012) at www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/quarrying-in-area-c--final---july-2012.pdf.

98  The Irish Yearbook of International Law 2014 concluded between the belligerent occupant and authorities in the occupied territory.43 Naturally the Article is couched in protectionist terms towards the occupied population and underscores the continued humanitarian guarantees of the Geneva Convention regardless of illegal measures undertaken by occupying powers such as annexation and institutional alteration. In this manner, agreements staking claims to the continental shelf in occupied territory will be limited by reference to Article 47. However, some argue that a certain amount of transformation beyond the conservationist core of Article 43 of the Hague Regulations may be implemented under certain circumstances. For example, the transformative reference to institutional change may introduce an element of transformation under international law, in terms of the introduction of a new government. Pictet, in the ICRC Commentary, notes that Article 47 does not ‘expressly prohibit the occupying power from modifying the institutions or government of the occupied territory. Certain changes might be considered necessary and even an improvement’.44 The question is whether claims to the continental shelf may be included in such a transformational mandate. Accordingly, Pictet’s analysis of Article 47 suggests that where the original institutions of the occupied State operate to the detriment of the humanitarian guarantees provided for under the Fourth Geneva Convention, an element of transformation and State engineering may be required by the belligerent occupant to fulfil its humanitarian obligations. The protection of core humanitarian norms outweighs the obligation to preserve the machinery and institutions of State. Article 43 provides the barometer for addressing the transformation where the occupant respects ‘unless absolutely prevented’ the laws in force in the territory.45 The problem with ‘improvements’ implemented by the seemingly benevolent belligerent occupant is that they may not necessarily be viewed as ‘improvements’ by the occupied population, regardless of the humanitarian design. Even if it could be argued that the delimitation of the continental shelf is in the interests of the occupied population, the right of peoples and nations to permanent sovereignty over their natural resources arguably prevents the transformation of territory to this degree. Under Resolution 1803, the UN General Assembly established that the ‘right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned’.46 Additionally, the right to permanent sovereignty over natural resources is an integral element of the principle of self-determination, a peremptory norm from which no derogation is permitted.47 On this basis a treaty provision, violating a jus cogens norm, will be struck down for incompatibility under Article 53 of the Vienna Convention on the law of Treaties.48 Despite Pictet’s radical statement in 1958 on the potential of the belligerent occupant to transform the institutions or government of the occupied State, international law

43 

Article 47, Fourth Geneva Convention. Pictet, (n 36) 274. 45  Pictet, (n 36) 274, fn 1. 46  UNGA Res 1803 (1962) GAOR Supp 17, 15. 47  M Shaw, Title to Territory in Africa (Oxford University Press, 1986) 91; G Espiel, ‘Self-Determination and Jus Cogens’ in A Cassese (ed), UN Law, Fundamental Rights (Martinus Nijhoff Publishers, 1979) 167–71; J Dugard, Recognition and the United Nations (Grotius Publications, 1987) 158ff. 48 Article 53, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol 1155, p 331. 44 

Notes and Comments—Power 99 writers in the intervening years have resiled from this position and reverted to the traditional policy manifest in the Hague Regulations to maintain, unless absolutely prevented, the status quo ante bellum. Fox concludes that the occupier possesses no local legitimacy or necessary stake in the welfare of the territory after it departs and it is not competent to enact reforms that fundamentally alter the governing structures in the territory or create long-term consequences for the local population.49

Again, rooted in the conservationist principle, Dinstein observes: The occupying power is not allowed to shake off the pillars of government in the occupied territory. Thus, it cannot validly transform a unitary system in the occupied territory into a federal one (or vice versa), even if the metamorphosis would allegedly be in force only during the period of occupation.50

This echoes the earlier Article 43, Hague Regulations’ restrictions on change to the fundamental institutions of the occupied State on the basis that radical reformatting was the preserve of the sovereign and the occupant’s authority extended to powers of administration only.51 Similarly, the International Committee of the Red Cross in an official statement on current challenges to the law of occupation admitted that those laws on occupation preclude transformative occupation.52 Meanwhile, Kretzmer suggests that changes to the political status of the occupied State must not be orchestrated by force but by international negotiations.53 The Advisory Opinion of the ICJ in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory observed that Article 47 of the Fourth Geneva Convention did not contain a qualifying provision to account for military exigencies, therefore the occupant cannot bend the rule in Article 47 in contemplation of security concerns, which is contrary to the position espoused by Pictet.54 But what is the relationship between Article 7 and Article 47 of the Fourth Geneva Convention and Article 55 of the Hague Regulations? Article 154 of the Fourth Geneva Convention indicates that the Convention is supplementary to Sections II and III of the Hague Regulations providing: in the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 19, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations annexed to the above-mentioned Conventions of The Hague.55

49 

GH Fox, Humanitarian Occupation (Cambridge University Press, 2008) 237. Y Dinstein, The International Law of Belligerent Occupation (Cambridge University Press, 2009) 124. 51  E Feilchenfeld, The International Law of Belligerent Occupation (Carnegie Endowment for International Peace, Monograph Series No 6, 1942) 89. Similarly, Feilchenfeld proposes that the occupant may not transform a democratic republic into an absolute monarchy or engage in other such measures. 52  D Thürer, M MacLaren, ‘ICRC Official Statement’ Speech at www.icrc.org/web/eng/siteeng0.nsf/html/ occupation-statement-211105. 53  D Kretzmer, The Occupation of Justice, The Supreme Court of Israel and the Occupied Territories (State University of New York Press, 2002) 57. 54  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports 2004, para 135. 55  ibid, at para 89; Article 154, Fourth Geneva Convention. 50 

100  The Irish Yearbook of International Law 2014 As such, the Fourth Geneva Convention bridges the gap concerning the humanitarian civilian protection that is absent in the Hague Regulations.56 However, members of the American delegation Yingling and Ginnane argued that Article 43 of the Hague Regulations has no counterpart in the supplementary Geneva law at the Geneva Conference.57 Article 43 of the Hague Regulations provides the legal framework for belligerent occupation. Following on from the de facto control of territory established in Article 42, ‘the authority of the legitimate power’ passes in fact into the hands of the occupying power, placing administrative obligations on the invading army for the duration of time that the authority is ‘established and can be exercised’.58 The belligerent occupant’s administration of the territory is temporary and on this basis the belligerent occupant does not acquire sovereign title in the territory.59 On the contrary, Pictet describes the penal law requirements in Article 64 to 78 of the Fourth Geneva Convention, the provision governing labour legislation in Article 54, the regime regulating the supply of medicine and food in Article 55, the preservation of hygiene and public health in Article 56 and Article 58 on spiritual assistance concerning the protection of inhabitants of the occupied territory, as supplementary to Article 43 of the Hague Regulations.60 This position was recently espoused in the expert opinion of Dr Théo Boutruche, and Professor Marco Sassòli.61 Furthermore, Article 47 of the Fourth Geneva Convention which expands on the principle established in Article 7, was designed to protect the occupied population from changes to the occupied State, such as territorial annexation orchestrated in violation of Article 43 of the Hague Regulations.62 Commentary to the Geneva Conventions in relation to Article 47 considers ‘the possibility of concluding such agreements is therefore strictly limited by Article 7, paragraph 1, and the general rule expressed there is reaffirmed by the present provision’.63 Consequently, Article 7 and Article 47 of the Fourth Geneva Convention not only apply to protect the humanitarian guarantees of protected persons under the Fourth Geneva Convention of 1949, but also supplement the laws governing the administration of occupied territory, the economic and property laws contained in the Hague Regulations of 1907. Furthermore, the property Articles of the Hague Regulations are supplemented by the Fourth Geneva Convention which protects both public and private property from destruction and requisition. Article 53 of the Fourth Geneva Convention establishes that destruction of real property belonging to the occupied State

56 

Pictet (n 36) 614. Yingling, RW Ginnane, ‘The Geneva Conventions of 1949’ (1952) 46 American Journal of International Law 393, 417. 58  Article 42, Hague Regulations. ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’ 59 M Sassoli, ‘Article 43 of the Hague Regulations and Peace Operations in the Twenty-First Century’ International Humanitarian Law Research Initiative’ (HPCR, 2004) 11 at www.hpcrresearch.org/sites/default/ files/publications/sassoli.pdf. 60  Pictet (n 35) 617. 61  See generally, T Boutruche, M Sassoli, ‘Expert Opinion, On International Humanitarian Law Requiring of the Occupying Power to Transfer back Planning Authority to Protected Persons Regarding Area C of the West Bank’ (February, 2011). See also, Scobbie and Margalit (n 42). 62  Pictet (n 36) 273. 63  Pictet (n 36) 274. 57  RT

Notes and Comments—Power 101 is prohibited, while Article 55 of the Fourth Geneva Convention prohibits the requisition of property supplementary to Article 52 of the Hague Regulations. Indeed it is difficult to see how ceding large tracts of the continental shelf from Northern Cyprus to Turkey, on a loose application of the ‘equitable principles’ of the delimitation of the continental shelf, is intended to serve the occupied population in any way. RECOGNITION AND THE LAW OF MARITIME BOUNDARY DELIMITATION

The deposit of the coordinates of the continental shelf with the Secretary General was clearly designed to have a legal effect. But what is the effect of the law of maritime boundary delimitation on the recognition of the TRNC? A State established in violation of international law is often considered to have no legal existence until it is recognised.64 Recognition may have a constitutive effect, whereby the general act of recognition by States creates the new State endowing it with international legal personality.65 Absent State recognition under the constitutive theory ‘the unrecognised State can have no rights or obligations in international law’.66 Alternatively, the declaratory theory is the procedural recognition by States of an already constituted State, and unlike the constitutive recognition produces no legal effects.67 An act of recognition may take many forms including ‘the form of an agreement, or declaration of intent to establish diplomatic relations, or a congratulatory message on attainment of independence’.68 The main question here, apart from the actual delimitation of the continental shelf, is whether the deposit of instruments of delimitation by an internationally unrecognised State (the TRNC) can produce legal effects. Ioannidis suggests that ‘by transmitting this document to the UN Secretary-General, Turkey sought to achieve the publication of the agreed coordinates in the Law of the Sea Bulletin (LSB) where official submissions by States regarding the law of the sea are published’.69 In a letter to the Secretary General from the Permanent Representative of Cyprus to the UN (5 December 2013), Cyprus underscored the breach of sovereignty by Turkey in violation of Security Council Resolutions 541 (1983) and 550 (1984) on the non-recognition of the TRNC, by carrying out illegal seismic operations in the exclusive economic zone and the continental shelf of the Republic of Cyprus.70 In an annex to the letter, Cyprus attached a map detailing the coordinates of its continental shelf and exclusive economic zone for the entire territory. The rules governing the law of the sea were codified in the UN Convention on the Law of the Sea 1982 (UNCLOS), which for the parties to the Convention, supersedes the

64 

P Malanckuz, Akehurst’s Modern Introduction to International Law, 7th edn (Routledge, 1997) 83. M Shaw, International Law, 5th edn (Cambridge University Press, 2003) 368. 66  ibid, 369. 67  ibid. 68  I Brownlie, Principles of Public International Law, 6th edn (Oxford University Press, 2003) 89. 69  NA Ioannidis, ‘The Continental Shelf Delimitation Agreement between Turkey and “TRNC”’ EJIL Talk, 26 May 2014 at www.ejiltalk.org/the-continental-shelf-delimitation-agreement-between-turkey-and-trnc/. 70  A/68/644–S/2013/720, Letter dated 5 December 2013 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General (5 December 2013); See also Article 311(1), UNCLOS (1982). 65 

102  The Irish Yearbook of International Law 2014 ANNEX

Total area reserved by Turkey for seismic surveys

REPUBLIC OF CYPRUS

MEDITERRANEAN SEA Legend Zone of 12 NM. The territorial sea of the Republic of Cyprus extends to a distance of 12 NM from the shore Outer limits of the Exclusive Economic Zone and Continental Shelf of the Republic of Cyprus (based on the median line method). Part of the territorial sea of the Republic of Cyprus illegally reserved by Turkey for seismic surveys Part of the Exclusive Economic Zone/Continental Shelf of the Republic of Cyprus illegally reserved by Turkey for seismic surveys

Figure 2:  Map of Coordinates of Delimitation of Cypriot Continental Shelf71

four earlier Conventions on the Law of the Sea 1958.72 Importantly, much of the UNCLOS represents customary international law binding on non-parties to the Convention.73 Article 84 of the UNCLOS outlines that the coastal State shall deposit the coordinates of the outer continental shelf with the Secretary General.74 However Turkey is not a State party to the UNCLOS and the TRNC is not a State under international law. Article 1(2) (1) limits the scope of the UNCLOS to State parties which have consented to be bound by the Convention.75 Whereas Articles 11–17 of the Vienna Convention on the Law of Treaties outline the means of expressing consent to be bound, including ‘by signature, by exchange of instruments constituting a treaty, ratification, acceptance, approval or accession or by any other means if so agreed’.76 However the provisions on the continental

71  NA Ioannidis, ‘The Continental Shelf Delimitation Agreement between Turkey and “TRNC”’ EJIL: Talk!, 26 May 2014 at www.ejiltalk.org/the-continental-shelf-delimitation-agreement-between-turkey-and-trnc/. 72  A Aust, Handbook of International Law, 2nd edn (Cambridge University Press, 2010) 278. 73  LB Sohn, J Noyes, E Franck and K Juras, Cases and Materials on the Law of the Sea (Brill Nijhoff, 2014) 184. 74  Article 84, 1982 United Nations Convention on the Law of the Sea (UNCLOS), 1833 UNTS 3 / [1994] ATS 31 / 21 ILM 1261 (1982). 75  Article 1(2)(1), UNCLOS. 76  Article 11–17, Vienna Convention on the Law of Treaties.

Notes and Comments—Power 103 shelf contained in the UNCLOS represent customary international law and are binding on all States on this basis.77 The deposit of instruments on maritime boundary delimitation does not amount to an international recognition of the TRNC. Notably the UN does not recognise the TRNC as a sovereign State and the Department of Oceans and the Law of the Sea (DAOLAS) did not accept, or publish on its website, Turkey’s deposit of the boundary agreement.78 Additionally the submission of the notes verbales with the Secretary General establishing the coordinates of the continental shelf does not confer recognition on the TRNC. As such it can be distinguished from the type of treaty accession witnessed in April 2014, when the ‘State of Palestine’ acceded to a number of international treaties on the basis that it had fulfilled the criteria required by each treaty, either as a State party, or a member of a specialised agency, or by invite to accede as a State party.79 Firstly, the communication does not represent an accession to the Treaty. In this line, Turkey has vociferously rejected the UNCLOS, outlining in a letter to the UN Secretary General its disappointment that the UNCLOS ‘was not successful in attaining the balanced and equitable solution Turkey had strived for’.80 Moreover, deposit of instruments alone is not enough to confer recognition, as it is up to each State party to a treaty whether it recognises the entity as a State in its international relations.81 For example, the Republic of Cyprus in referencing UN Security Council Resolutions 541 (1983) and 550 (1984) in its letter on the continental shelf to the Secretary General, illustrated its non-recognition of the TRNC as a State.82 EXTENDING INTERNATIONAL HUMANITARIAN LAW TO THE CONTINENTAL SHELF?

During belligerent occupation, the belligerent occupant is obligated to ensure as far as is possible the laws in force in the State status quo ante bellum.83 In this vein, a belligerent occupant is permitted to legislate in order to govern occupied territory; the question is to what extent (if any) may a belligerent occupant particularly during a prolonged belligerent occupation conclude delimitation agreements with neighbouring States? For example, does it make a difference if there is some participation of representatives of the occupied territory? Notably, Article 3 of the Continental Shelf Law, Law No 8 of 5 April

77  North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark and Netherlands) 1969 ICJ p 39, para 63. There the ICJ considered that Articles 1–3 on the continental shelf were ‘regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law’. The already recognised customary international law provisions of the 1958 Geneva Convention on the Continental Shelf were codified in UNCLOS. See further, D Joseph et al, The IMLI Manual of International Maritime Law, Volume 1, Law of the Sea (Oxford University Press, 2014) 409. (The North Sea Continental Shelf Cases are mentioned in this regard as Turkey is not a State party to the UNCLOS.) 78  See www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/TUR.htm. 79  Article 81, Vienna Convention on the Law of Treaties. 80  A/57/641, Annex to the letter dated 3 December 2002 from the Permanent Representative of Turkey to the United Nations addressed to the Secretary-General (10 December 2002). 81  A Aust, Modern Treaty Law and Practice (Cambridge University Press, 2000) 264; RK Gardiner, International Law (Edinburgh Gate, 2003) 198. 82  A/644–S/2013/720 (n 69); See also A/68/759, Letter Dated 13 February 2014 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary General (18 February 2014). 83  Article 43, Hague Regulations.

104  The Irish Yearbook of International Law 2014 1974 governs the exploration rights over the continental shelf of the Republic of Cyprus where ‘all rights that are exercisable by the Republic with respect to the continental shelf and its natural resources shall be deemed to be, and always to have been, vested in the Republic’.84 Both the Law of the Sea and the Hague Regulations protect the sovereign rights of the State over its natural resources.85 Moreover, agreements concluded on behalf of the occupied State to delimit the continental shelf do not have legal effect under Articles 7 and 47 of the Fourth Geneva Convention (as previously discussed). The delimitation agreement concluded between the TRNC and Turkey, rather than representing an international agreement instead amounts to a unilateral maritime delimitation. The practice of maritime delimitation is an international act between two or more States.86 Further, the ICJ has warned against the unilateral application of the Convention on the Continental Shelf (1958).87 In Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (1984), the ICJ was requested to draw a delimitation line relating to the continental shelf and the exclusive fishing zone between Canada and the United States in the Gulf of Maine. The Court confirmed that the equidistance principle enshrined in Article 6 of the Convention on the Continental Shelf had not evolved into customary international law, and the delineation of boundaries was settled using equitable principles.88 Accordingly the ICJ determined: No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence. In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result.89

The policy against unilateral delimitation and the requirement for an effective agreement ‘is merely to confirm that a general rule for the conduct of inter-State relations is applicable to the subject of delimitation’.90 In addition, Turkey’s unilateral maritime delimitation and extension of jurisdiction over the maritime space of occupied Northern Cyprus violates Article 2(4) of the Charter of the UN. Notably, the establishment of boundaries in international law will ‘constitute a root of title in themselves’ and are considered ‘to establish an objective territorial regime

84 

Article 3, Continental Shelf Law, Law No 8 of 5 April 1974. Article 56, UNCLOS; Article 55, Hague Regulations. Y Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (Hart Publishing, 2006) 8. 87  Case Concerning Delimitation of The Maritime Boundary in The Gulf of Maine Area, Judgment [1984] ICJ Rep 1984, 246, para 112; Convention on the Continental Shelf, Geneva 29 April 1958, United Nations, Treaty Series, vol 499, p 311. 88  In the Anglo-French Continental Shelf Case (1979), the Arbitral Tribunal assimilated Article 6 of the Convention on the Continental Shelf with the equitable principles. This view was echoed by the ICJ in Greenland/Jan Mayen (Denmark v Norway) 1993. M Dixon, Textbook on International Law, 7th edn (Oxford University Press, 2013) 232; Jan Mayen Case (Denmark v Norway) 1993 ICJ Rep 38; Anglo-French Continental Shelf Case (1979) 18 ILM 397; Canada/France Maritime Delimitation (1992) 31 ILM 1145. 89  Case Concerning Delimitation of The Maritime Boundary in The Gulf of Maine Area (n 85) para 112. 90  Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, Dissenting Opinion of Judge Oda, ICJ Reports 1982, 246, para 144. 85  86 

Notes and Comments—Power 105 valid erga omnes’ to ensure stability of boundaries.91 Interestingly, the ICJ has factored in security considerations concerning maritime spaces during its assessment of the delimitation of the continental shelf. In Jan Mayen Case (Denmark v Norway) 1993, Denmark lodged a complaint against Norway over the delimitation of the continental shelf between the Danish territory in Greenland and the Norwegian island Jan Mayen. There the Court noted that ‘security considerations are of course not unrelated to the concept of the continental shelf’.92 However, the security consideration pertained to the process of maritime delimitation rather than entitlement to delimit. Similarly, the ICJ found in Libyan Arab Jamahiriya/Malta [1985] that the delimitation in question was ‘not so near the coast of either party as to make questions of security a particular consideration in the present case’.93 Arguably this could potentially be redrawn where considerations of security require the boundary to be established further away from one State.94 Again, the concept of geographic disadvantage is touched upon in relation to the exclusive economic zone, but this is more in relation to fishing rights of geographically disadvantaged or landlocked States.95 Nevertheless, Turkey has based its claims to a generous portion of the continental shelf on its understanding of ‘equitable principles’ arguably derived and expanded from the ruling on the North Sea Continental Shelf Cases (1969).96 If one concludes that the TRNC and the Turkish delimitation of the continental shelf during belligerent occupation is illegal, do the occupying authorities still have rights of use over the continental shelf, falling short of sovereign rights? The Continental Shelf and Sovereign Rights Such issues are significant as the continental shelf can be rich in mineral reserves and oil and gas deposits. In the North Sea Continental Shelf Cases, the International Court of Justice declared Article 1 of the Convention on the Continental Shelf as customary international law, opining that the requisite opinio juris sive necessitates derived from ‘what might be called the natural law of the continental shelf’ and having ‘a priori character’ through its exclusive appurtenance to the coastal State.97 The Court continued to declare Article 2 and Article 3 as customary international law.98 The rights of a State over

91 

Shaw (n 65) 417. Jan Mayen Case (n 87) para 81. 93  Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment [1985] ICJ Reports 1985, 42, para 51. 94  ibid. 95  Article 70, UNCLOS. 96  North Sea Continental Shelf Cases (n 77) paras 83–101. 97  North Sea Continental Shelf Cases (n 77) para 37. 98  North Sea Continental Shelf Cases (n 77) para 63. ‘1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil’. 92 

106  The Irish Yearbook of International Law 2014 the continental shelf exist ipso facto and ab initio, by virtue of its sovereignty over the land, and the State does not need to make a good claim over those areas.99 Consequently, the existence of the continental shelf ‘can be declared but does not need to be constituted’.100 The continental shelf can extend beyond the territorial sea to a distance of 350 nm, or where the land territory falls short of this, to 200 nm.101 Additionally, UNGA Resolution 1803 provides that ‘the right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well being of the people of the State concerned’.102 In terms of belligerent occupation, the General Assembly Resolution on the Permanent Sovereignty of the Palestinian People in the Occupied Palestinian Territory, including East Jerusalem, and of the Arab population in the occupied Syrian Golan over their natural resources, affirms the inalienable right of the Palestinian people over their natural resources.103 This is significant, as the belligerent occupant as a temporary administrative authority does not acquire sovereignty over the occupied State; it merely holds it in abeyance until the conclusion of the conflict.104 Analogously, the belligerent occupant does not acquire sovereign rights over natural resources otherwise characterised as public immoveable property during occupation.105 However, unlike the limited regime established under the law of the sea, some rights of usufruct are conferred on the belligerent to safeguard the functioning of the property, and maintain the property intact.106 This note considers that it might be useful to think of Article 55 of the 1907 Hague Regulations as applying to the continental shelf during periods of belligerent occupation. Accordingly, the occupier is merely the caretaker of the sovereign rights of the previous regime.107

99 

North Sea Continental Shelf Cases (n 77) para 19. North Sea Continental Shelf Cases (n 77) para 19. 101  Article 76, UNCLOS; See also, DP Reisman, ‘Recent Jurisprudence Addressing Maritime Delimitation Beyond 200 Nautical Miles from the Coast’ (2014) 18(21) American Society of International Law Insights. 102  UNGA Res 1803 (XVII) (n 46). 103  UNGA Res 229 (9 April 2013) UN Doc A/RES/67/229. 104  DA Graber, The Development of the Law of Belligerent Occupation 1863–1914: A Historical Survey (Columbia University Press, 1949) 179. 105  Contemporary writers espouse the elective position whereby the occupant’s rights over property are limited to possessory rights. Schwarzenberger argues that the occupant ‘may not sell or destroy such property or alter its character, but must administer it in accordance with the rules of usufruct’. G Schwarzenberger, International Law as Applied by International Courts and Tribunals: Volume II The Law of Armed Conflict (London Stevens & Sons Ltd, 1968) 248. Gerson suggests that one of the most important qualifications on the belligerent occupant’s use of public immoveable property is that the occupant ‘does not acquire title to the real property of the ousted sovereign’. A Gerson, ‘Off-Shore Oil Exploration by a Belligerent Occupant: The Gulf of Suez Dispute’ (1977) The American Journal of International Law 71(4) 725, 729. Graber contends that ‘title to immoveable property does not pass to the occupant but that the occupant may use the property during occupation’. Graber, The Development of the Law of Belligerent Occupation (n 102) 164. Oppenheim more specifically determines that the belligerent occupant may not alienate or sell ‘public enemy land and buildings’. L Oppenheim, International Law, A Treatise Vol. II Disputes, War and Neutrality, 7th edn (Longmans, 1952) 397. Stone argues that the Hague Regulations serves ‘to prevent dealings with iura in re aliena, such as the interests of the enemy State as mortgagee of the land, which the occupant has no power to cancel or to transfer’. J Stone, Legal Controls of International Conflict, A Treatise on the Dynamics of Disputes and War Law (Stevens & Sons Ltd, 1954) 715. The common understanding of the status of immoveable property title amongst international writers is consonant with the ephemeral limitations of usufruct where the occupant enjoys restricted rights of use over the property whose title remains vested with the owner. 106  Article 55, Hague Regulations. 107  ibid. 100 

Notes and Comments—Power 107 Interrelationship between International Humanitarian Law and the Law of the Sea Increasingly, human rights considerations are evident in the jurisprudence of the ICJ and International Tribunal for the Law of the Sea (ITLOS) in relation to law of the sea matters more generally.108 ITLOS Judge Tullio Treves noted, the resort to human rights or humanitarian considerations and rules in the context of the Law of the Sea is just at a beginning stage. Other situations may be envisioned that are neither foreseen explicitly or implicitly in the LOS Convention nor have been considered by international courts and tribunals.109

Similarly, Article 10 (a) of The San Remo Manual on International Law Applicable to Armed Conflicts at Sea considers that naval forces may conduct hostile actions over the exclusive economic zone and the continental shelf.110 While Article 88 of the Oxford Manual of Naval War (1913) determined that maritime territory can be occupied providing: Occupation of maritime territory, that is of gulfs, bays, roadsteads, ports and territorial waters, exists only when there is at the same time an occupation of continental territory, by either a navel or a military force. The occupation, in that case, is subject to the laws and usages of war on land.111

Dinstein submits that the occupation of maritime territory should be expanded to include the continental shelf, over which sovereign rights were later recognised.112 Certainly Article 53 of the Hague Regulations on requisition broadly extends to all appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.113

In a similar vein, Article 54 regulates the use of submarine cables connecting the occupied territory with neutral parties.114 These are submarine cables which are laid on the continental shelf.115 Notably in the Final Acts of the International Peace Conference in 1907, the delegates agreed that the principles of land warfare would, in the absence of a

108  Comouco (Panama v France), ITLOS Reports 2000, 10, 125 ILR 164 (Int’l Trib L of the Sea); Monte Confurco (Seychelles v France), ITLOS Reports 2000, 86, 125 ILR 220 (Int’l Trib L of the Sea, 2000); Hoshinmaru (Japan v Russian Federation), Order of 9 July 2007, ITLOS Reports 2005–2007, 18, 12 (Int’l Trib L of the Sea 2007); Corfu Channel (UK and N Ir v Alb), 1949 ICJ 4, at Merits (April 9); Tomimaru case (Japan v Russian Federation), Judgment of 6 August 2007, ITLOS Reports 2005–2007, 74 (Int’l Trib L of the Sea 2007). 109 T Treves, ‘Human Rights and the Law of the Sea’ (2010) 28(1) Berkeley Journal of International Law 1, 6. 110  Article 10(a), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994. 111  Oxford Manual of Naval Law, Adopted by the Institute of International Law, 1913, in D Schindler and J Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions, and other Documents, 4th edn (Brill, 2004) 1123, 1135. 112  Dinstein (n 49) 47. 113  Article 53, Hague Regulations. 114  Article 54, Hague Regulations. 115 Article 5(1), Continental Shelf Law, Law No 8 of 5 April 1974 at www.un.org/depts/los/ LEGISLATIONANDTREATIES/PDFFILES/CYP_1974_Law.pdf.

108  The Irish Yearbook of International Law 2014 Convention on maritime warfare, be applied ‘as far as possible to sea warfare’.116 This indicates that the regime of belligerent occupation could potentially extend in certain contexts over maritime space. CONCLUSION

Article 43 of the Hague Regulations provides the legal framework for the administration of the occupied State; the belligerent occupant maintains public order and civil life (l’ordre et la vie publics) while respecting, unless absolutely prevented, the laws in force in the country.117 Further, the belligerent occupant has a ‘duty of vigilance’ under Article 43 to ensure that natural resources are protected from looting, plunder and exploitation.118 Article 43 and Article 55 of the Hague Regulations of 1907 together operate to protect the corpus of immoveable property for the returning sovereign.119 Accordingly, the belligerent occupant is prohibited from alienating the public immoveable property of the occupied State as title to the property never vests in the belligerent occupant.120 Article 7 of the Fourth Geneva Convention provides the general rule reaffirmed in Article 47 prohibiting the belligerent occupant from trying to ‘free itself from the obligation incumbent on it under occupation law’.121 Article 154 of the Fourth Geneva Convention establishes that the Geneva Conventions supplement the Hague Regulations.122 The potential extension of the Article 55 paradigm over the continental shelf of occupied Northern Cyprus would mean that the TRNC would have an obligation to maintain the operation of oil and gas wells already in use. Since the Hague Regulations were adopted in 1907, international law on natural resources has developed and permanent sovereignty over natural resources now vests also in peoples and nations. Furthermore, Turkey could not enter into negotiations or award licences for new exploration activities, unless there was evidence that the fruits of the corporate activities were intended to benefit the occupied population.123 Some attempt was made to use the immoveable resources of the occupied population sold and deposited in the Development Fund for Iraq, for the transformation of the territory during the 2003 US/UK occupation of Iraq, however this required a Chapter VII Security Council Resolution mandate.124 Both international

116 

M Greenspan, The Modern Law of Land Warfare (University of California Press, 1959) 352. Dinstein (n 50) 89. 118  Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Reports 2005, p 168, para 250. 119 See, Chapter II, Expert Legal Opinion, HCJ 2164/09 Yesh Din—Volunteers for Human Rights v Commander of IDF Forces in West Bank et al (26 December 2011) p 5 at www.yesh-din.org/infoitem. asp?infocatid=181. 120  HCJ 285/81, El Nazer et al v Commander of Judea and Samaria et al, 36(1) PD 701, 704–05. 121  Pictet (n 36) 274. 122  Article 154, Fourth Geneva Convention. 123 A Gerson, Israel, the West Bank and International Law Volume 8 (Frank Cass and Company Ltd, 1978) 220. 124  UNSC Res 1483 (22 May 2003) UN Doc S/RES/1484; S Power, ‘The 2003–2004 Occupation of Iraq: Between Social Transformation and Transformative Belligerent Occupation’ (2014) 19(2) Journal of Conflict and Security Law 341, 380. 117 

Notes and Comments—Power 109 treaty and customary law acknowledge the sovereign rights of the State over the resources in its continental shelf. These rights are similarly protected under the laws of belligerent occupation and the principle of sovereignty over natural resources is inextricably linked with the right of self-determination of peoples.125 Accordingly, the TRNC, as an illegal entity does not have the legal capacity to conclude a continental shelf boundary agreement as this remains the sole prerogative of a sovereign State, recognised as such under international law. Notwithstanding, the publication of the note verbales does not in any way confer legitimacy on the diplomatic correspondence of the belligerent occupant. This type of negotiation beyond the limits of public immoveable property protection under the Hague Regulations and Geneva Conventions exceeds the parameters of ‘special agreements’ which the laws of occupation permit.

125  N Schrijver, ‘Self Determination of Peoples and Sovereignty over Natural Wealth and Resources’ at www. ohchr.org/Documents/Issues/Development/RTDBook/PartIIChapter5.pdf.

110 

Correspondent Reports

112 

Ireland and International Law 2014 DUG CUBIE*

INTRODUCTION

T

HE INTENSIFICATION OF armed conflicts in places such as Syria, Ukraine, Iraq and Central African Republic provided a stark reminder of the international challenges faced during 2014 by Ireland, the EU and the broader international community. However, a noticeable strengthening and deepening of official bilateral relations with our nearest neighbour continued apace. The state visit by President Michael D Higgins in April provided an opportunity to showcase the economic, social and cultural ties between Ireland and the United Kingdom, while the on-going peace and reconciliation process in Northern Ireland remained to the fore of foreign policy. 2014 saw the death of two key architects of the peace process, with the death of former Taoiseach [Prime Minister] Albert Reynolds in August, and former Northern Ireland First Minister Dr Ian Paisley in September.1 Human rights continued to play an important role in Irish foreign policy during 2014, with a focus on sexual violence, hunger and climate change, alongside an on-going commitment to the provision of Irish humanitarian and development assistance, and multi-lateral peace support operations. Key international agreements signed by Ireland during the period under review were the UN Arms Trade Treaty and the 3rd Optional Protocol to the UN Convention on the Rights of the Child. Meanwhile, following poor results in the local and European elections of May 2014, the Tánaiste [Deputy Prime Minister] and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, resigned as Labour Party leader, and therefore his ministerial roles.2 ­Charlie Flanagan TD, from the majority ruling party, Fine Gael, took over the position of ­Minister for Foreign Affairs and Trade following Gilmore’s departure.

* 

University College Cork. Paid to Former Taoiseach Albert Reynolds’, RTÉ News Online, 30 November 2015, available at: www.rte.ie/news/2014/0821/638427-albert-reynolds-tributes (accessed 30 November 2015); ‘Giant in Ulster Politics Ian Paisley Dies Aged 88’ RTÉ News Online, 13 September 2014, available at: www.rte.ie/ news/2014/0912/643262-ian-paisley (accessed 30 November 2015). 2  Miriam Lord, ‘Gilmore Departs after a Very Civilised Coup’ Irish Times, 27 May 2014, available at: www. irishtimes.com/news/elections/miriam-lord-gilmore-departs-after-a-very-civilised-coup-1.1810096 (accessed 30 November 2015). 1 ‘Tributes

114  The Irish Yearbook of International Law 2014 INTERNATIONAL AGREEMENTS

Following a seven-year negotiation process before the UN General Assembly, the UN Arms Trade Treaty (ATT) was concluded on 2 April 2013.3 The ATT is the first legally binding instrument to regulate the international trade in conventional weapons, and state parties are prohibited from exporting arms to countries if they know those weapons will be used to commit gross violations of human rights.4 Ireland was one of the first states to sign the ATT, and exactly one year after its conclusion Ireland ratified the ATT in New York on 2 April 2014, alongside 16 other EU Member States, including France, Germany, Italy, Spain, and the UK. In parallel, the Tánaiste announced that Ireland would contribute €150,000 to the UN Trust Fund established to help states to meet their obligations under the Treaty. In making the announcement, the Tánaiste said: Ireland remains committed to ensuring that irresponsible trade in weapons, which destabilises states and contributes to violence and conflict, is stopped. The Arms Trade Treaty is an important tool in achieving this. It is vital to ensure that as many states as possible are able to implement the rules laid down in the Treaty. With this donation, Ireland is offering practical support to states which are working towards ratification.5

Subsequently, after its ratification by 55 states, the ATT entered into force between contracting states in December 2014. In marking this event, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, stated: This important Treaty prohibits States which have ratified it from authorising arms exports where it knows that the weapons will be used in acts of genocide, crimes against humanity, grave breaches of the Geneva Conventions, or other war crimes. I particularly welcome the Treaty as the first-ever to recognise the link between gender-based violence, violence against women and children, and the international arms trade. Arms exporting States must, under this new Treaty, assess the risk of weapons being used commit serious acts of violence against women and children.6

Another key international agreement which Ireland ratified during 2014, was the 3rd Optional Protocol to the UN Convention on the Rights of the Child.7 The 3rd Optional Protocol establishes an individual complaints procedure, and allows children or their representatives from ratifying states to bring complaints about grave or systematic children’s rights violations directly to the UN Committee on the Rights of the Child.8

3 Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) UN Registration No 52373. 4  See in particular, Article 6(3): ‘A State Party shall not authorize any transfer of conventional arms covered under Article 2(1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.’ 5  Department of Foreign Affairs and Trade, ‘Tánaiste Welcomes Ratification of Arms Trade Treaty to Halt Weapon Sales’, Press Release, 2 April 2014. 6  Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes Entry into Force of Arms Trade Treaty’, Press Release, 23 December 2014. 7  Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (adopted 19 December 2011, entered into force 14 April 2014) UN Doc A/RES/66/138. 8  Ibid, Article 5.

Correspondent Reports—Cubie 115 In welcoming the Irish ratification of the Optional Protocol, Tanya Ward, Chief Executive of the Children’s Rights Alliance stated: We commend the Minister for Children and Youth Affairs, Dr James Reilly, for being extremely proactive in ensuring that children’s rights are protected at the highest level. Now children will have somewhere to turn when our national bodies and courts cannot help them. The Children’s Rights Alliance has campaigned for Ireland to sign and ratify this important procedure since 2012 and we are delighted that the Government has taken this decisive action.9

List of Multilateral Agreements that Entered into Force during 2014 The following is a list of the multilateral agreements that entered into force for Ireland during 2014. ITS Number

Title of agreement

No 16 of 2014

Agreement on the Application of Article 65 of the Convention on the Grant of European Patents, done at London on 17 October 2000. Ireland’s instrument of accession deposited on 25 November 2013, entered into force with respect to Ireland on 1 March 2014.

No 18 of 2014

Framework Agreement on Comprehensive Partnership and Cooperation between the European Community and its Member States, of the one part, and the Republic of Indonesia, of the other part, done at Jakarta on 9 November 2009. Notifications of the completion of requirements for entry into force deposited on 4 June 2013, entered into force on 1 May 2014.

No 19 of 2014

Political Dialogue and Cooperation Agreement between the European Community and its Member States, of the one part, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, of the other part, done at Rome on 15 December 2003. Notifications of the completion of requirements for entry into force deposited on 25 May 2004, entered into force on 1 May 2014.

No 20 of 2014

Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part, done at Brussels on 10 May 2010. Notifications of the completion of requirements for entry into force deposited on 4 June 2013, entered into force on 1 June 2014.

No 22 of 2014

Convention on the Law of the Non-navigational Uses of International Watercourses, done at New York on 21 May 1997. Ireland’s instrument of accession deposited on 20 December 2013 and entered into force with respect to Ireland on 17 August 2014.

9  Children’s Rights Alliance, ‘Government Decision Paves the Way for Children to Complain Directly to the UN’, Press Release, 17 September 2014. See also: Department of Foreign Affairs and Trade, ‘Minister Charlie Flanagan Ratifies a Key UN Protocol to Strengthen the Rights of Irish Children’, Press Release, 24 September 2014.

116  The Irish Yearbook of International Law 2014 No 24 of 2014

Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, done at London 1 November 2002. Ireland’s Instrument of Accession deposited on 7 August 2014 and entered into force with respect to Ireland on 7 November 2014. [Ireland’s Instruments of Denunciation of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, and the Protocol of 1976 thereto, deposited on 7 August 2014 and took effect on 7 November 2014.]

No 25 of 2014

Protocol on the Concerns of the Irish People on the Treaty of Lisbon, done at Brussels on 13 June 2012. Ireland’s instrument of ratification deposited on 8 October 2012, entered into force on 1 December 2014.

No 26 of 2014

Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, done at New York on 19 December 2011. Signed by Ireland on 24 September 2014, Ireland’s instrument of ratification deposited on 24 September 2014, entered into force with respect to Ireland on 24 December 2014.

No 27 of 2014

The Arms Trade Treaty, done at New York on 28 March 2013. Signed by Ireland on 3 June 2013, Ireland’s instrument of ratification deposited on 2 April 2014, entered into force with respect to Ireland on 24 December 2014.

Statements on the Work of the International Law Commission Over the course of 2014, the Department of Foreign Affairs and Trade provided written statements in the UN General Assembly Sixth Committee (Legal) on a variety of topics under consideration by the International Law Commission. These statements are included in full in the Documents section of this Yearbook.10 The three statements covered the following topics: Statement to UNGA 69, 27 October 2014 on Part 1 of the ILC Report Relating to Expulsion of Aliens, Protection of Persons in the Event of Disasters, Crimes against Humanity and Jus Cogens.11 Statement to UNGA 69, 31 October 2014 on Part 2 of the ILC Report Relating to Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties,

10 

See p 237 below. Statement by Mr James Kingston, Legal Adviser, Department of Foreign Affairs and Trade, at the Sixth Committee, United Nations General Assembly 69th Session, Agenda Item 78: The Report of the International Law Commission on the Work of its 66th Session, 27 October 2014, available at: www.dfa.ie/media/ dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/Statement-on-the-Report-of-the-ILC,-Part-1.pdf (accessed 30 November 2015). 11 

Correspondent Reports—Cubie 117 Immunity of State Officials from Foreign Criminal Jurisdiction and the Obligation to Extradite or Prosecute.12 Statement to UNGA 69, 3 November 2014 on Part 3 of the ILC Report Relating to Identification of Customary International Law and Provisional Application of Treaties.13 DIPLOMATIC MATTERS

During 2014, the President of Ireland received credentials from ambassadors representing: Switzerland, the Czech Republic, the Republic of Tunisia,14 the Republic of Cuba, Italy, the Republic of Zambia,15 the Federative Republic of Brazil, the Republic of South Africa, France,16 the Republic of Paraguay, the People’s Republic of Bangladesh, Peru,17 the People’s Republic of China, the Islamic Republic of Iran, the Republic of Senegal,18 the Federal Republic of Germany, the United States of America, the Republic of Colombia,19 the Republic of the Union of Myanmar, the Republic of Namibia, and the Kingdom of Sweden.20 Welcoming the historic resumption of diplomatic relations between the United States of America and Cuba in December 2014, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, stated: I look forward to speedy progress towards ending the long-standing economic, commercial and financial embargo against Cuba and towards the granting of civil, political and economic rights and freedoms to the people of Cuba by their government, as long advocated by Ireland and our partners in the European Union.21

Minister Flanagan continued by urging the Government of Cuba to continue and extend the economic and social reform process embarked on since 2011. The Department of Foreign Affairs and Trade press release further noted that Ireland did not believe that the embargo had contributed to democratic reform in Cuba and strongly opposed the extra-territorial application of its financial and other aspects.22

12  Statement by Mr James Kingston, Legal Adviser, Department of Foreign Affairs and Trade, at the Sixth Committee, United Nations General Assembly 69th Session, Agenda Item 78: The Report of the International Law Commission on the Work of its 66th Session, 31 October 2014, available at: www.dfa.ie/media/ dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/Statement-on-the-Report-of-the-ILC,-Part-2.pdf (accessed 30 November 2015). 13  Statement by Mr Trevor Redmond, Assistant Legal Adviser, Department of Foreign Affairs and Trade, at the Sixth Committee, United Nations General Assembly 69th Session, Agenda Item 78: The Report of the International Law Commission on the Work of its 66th Session, 3 November 2014, available at: www.dfa.ie/media/ dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/Statement-on-the-Report-of-the-ILC,-Part-3.pdf (accessed 30 November 2015). 14  Department of Foreign Affairs and Trade, Press Release, 14 January 2014. 15  Department of Foreign Affairs and Trade, Press Release, 16 January 2014. 16  Department of Foreign Affairs and Trade, Press Release, 12 February 2014. 17  Department of Foreign Affairs and Trade, Press Release, 11 March 2014. 18  Department of Foreign Affairs and Trade, Press Release, 15 April 2014. 19  Department of Foreign Affairs and Trade, Press Release, 8 October 2014. 20  Department of Foreign Affairs and Trade, Press Release, 15 October 2014. 21  Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes the Resumption of Diplomatic Relations between the United States and Cuba’, Press Release, 18 December 2014. 22 Ibid.

118  The Irish Yearbook of International Law 2014 Meanwhile, as part of the continuing release of historical foreign policy documents, Volume IX of the Documents on Irish Foreign Policy23 series was launched on 20 November, covering 1948 to 1951. The period under review includes when the Free State became a Republic and the establishment of the first Inter-Party Government under Taoiseach John A Costello. Also included in the Volume are documents relating to Ireland’s decision to leave the Commonwealth, and Minister for External Affairs Seán MacBride’s decision to seek the approval of Archbishop of Dublin, John Charles McQuaid, for Ireland’s foreign policy. The Volume also contains reports of Winston Churchill speaking of his hopes for a United Ireland in 1948 and the Government’s concern at the prospect of a third world war.24 Other historical documents released during 2014 included an online archive entitled ‘Ireland’s Memorial Records’, detailing 49,000 soldiers from the island of Ireland who died during the First World War or as a result of wounds sustained during battle.25 BILATERAL RELATIONS, CONSULAR SERVICES AND THE DIASPORA

Bilateral Relations Following the widely-acknowledged success of Queen Elizabeth II’s visit to Ireland in May 2011,26 the President of Ireland, Michael D Higgins, undertook a state visit to the United Kingdom (UK) in April 2014. The President was accompanied by his wife, Sabina ­Higgins, and the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD.27 Of note, Queen Elizabeth II hosted a Northern Ireland-themed reception in Windsor Castle, attended by representatives from the UK and Irish governments, and the Northern Ireland Assembly. Speaking in advance of the visit, the Tánaiste noted: The very detailed and personal nature of this visit reflects the depth and substance of the relationship between our two countries. It provides an opportunity to acknowledge the warm friendship which now exists across the Irish Sea and to recognise the substantial contribution made by the Irish community in the UK.28

23  Caitriona Crowe, Ronan Fanning, Michael Kennedy (eds), Documents on Irish Foreign Policy, Volume IX: 1948–1951 (Royal Irish Academy, 2014). 24  Documents on Irish Foreign Policy is a project of the Department of Foreign Affairs and Trade, the Royal Irish Academy, and the National Archives of Ireland and was established in 1997. The project publishes essential source material on the development of Irish foreign policy since 1919. See: Department of Foreign Affairs and Trade, ‘Minister Flanagan Launches Documents in Irish Foreign Policy, Volume IX’, Press Release, 20 November 2014. 25 The archive is available at: http://imr.inflandersfields.be (accessed 30 November 2014). See also: ­Department of Foreign Affairs and Trade, ‘Ministers Launch Online Records of Ireland’s First World War Casualties’, Press Release, 10 January 2014. 26  See for example: ‘Queen Elizabeth II Concludes Irish Visit’, RTÉ News Online, 20 May 2011, available at: www.rte.ie/news/2011/0520/301304-queen (accessed 30 November 2015); Stephen Bates and Henry McDonald, ‘Irish Eyes are Smiling: Show of Respect Turns Queen into Runaway Favourite’ The Guardian, 20 May 2011, available at: www.theguardian.com/uk/2011/may/19/queen-ireland-visit-respect-adams (accessed 30 November 2015). 27  Department of Foreign Affairs and Trade, ‘Tánaiste to Accompany President Higgins on State Visit to the UK’, Press Release, 7 April 2014. 28 Ibid.

Correspondent Reports—Cubie 119 During the visit, the Tánaiste addressed an event for Irish High-Potential Start-Up companies and British businesses at the Irish Embassy in London, and argued that: The UK is our most important export market, with trade of over €1 billion worth of goods and services every week, and 200,000 people employed in Ireland as a result of exports to the UK. This visit will help to forge even closer economic links which support jobs on both sides of the Irish Sea.29

The relationship between Ireland and the UK was also under scrutiny during the ­campaign on the Scottish referendum on independence, which took place on 18 September 2014. While refraining from intervening during the referendum process, the recently appointed Minister for Foreign Affairs and Trade, Charlie Flanagan TD, issued a statement following the 45/55 per cent vote for Scotland to remain part of the UK. Reflecting on potential implications of changes to devolution structures in the UK, not least how these may affect the Good Friday Agreement of 1998 and the powers of the Northern Irish Assembly, Minister Flanagan stated: The strong bonds and historic links between us all run deep and are well-known. As a neighbour, friend and partner across political, economic, cultural and many other spheres, Ireland enjoys excellent and ever-improving relations with Britain and with Scotland. We will be in close contact with London, Edinburgh and other administrations as discussions proceed on enhanced devolution for Scotland and on the political changes across the UK as outlined by Prime Minister Cameron in his statement this morning.30

Nevertheless, despite the increasingly close relationship between Ireland and its nearest neighbour, echoes of the past remain. In December 2014, the Irish Government formally requested the European Court of Human Rights to revise its judgment in the so-called ‘Hooded Men’ case of 1978.31 In this case, the European Court held that the five interrogation techniques used by the UK forces in Northern Ireland during detention32 amounted to inhumane and degrading treatment contrary to Article 3 of the European Convention on Human Rights, but not torture. In explaining the rationale behind the Irish Government’s decision to request a review of the original judgment, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, noted: The Government is aware of the suffering of the individual men and of their families, of the significance of this case, and of the weight of these allegations … On the basis of the new material uncovered, it will be contended that the ill-treatment suffered by the Hooded Men should be recognised as torture. The Government’s decision was not taken lightly. As EU partners, UK and Ireland have worked together to promote human rights in many fora and during the original case, the UK did not contest before the European Court of Human Rights that a breach of Article 3

29  Department of Foreign Affairs and Trade, ‘Tánaiste Supports New and High Potential Irish Exporters during State Visit’, Press Release, 9 April 2014. 30  Department of Foreign Affairs and Trade, ‘Statement by Minister Flanagan on the outcome of the referendum in Scotland’, Press Release, 19 September 2014. 31  Case of Ireland v the United Kingdom Application no 5310/71 (ECtHR, Judgment 18 January 1978). 32  The techniques were: hooding, wall-standing, subjection to noise, sleep deprivation, and deprivation of food and drink.

120  The Irish Yearbook of International Law 2014 of the European Convention of Human Rights took place. The British and Irish Governments have both worked hard to build stronger, more trusting relations in recent years and I believe that this relationship will now stand to us as we work through the serious matters raised by these cases which have come to light in recent months.33

The on-going challenges of peace and reconciliation in Northern Ireland were also evident throughout 2014, not least in the negotiation process that led to the conclusion of the Stormont Agreement between the five Northern Ireland Executive parties, and the Irish and UK governments.34 The Agreement, signed on 23 December 2014, addresses a broad range of political, social and economic issues. In particular, the Agreement contains provisions covering: financial and welfare reform;35 flags, identity, culture and t­radition;36 the devolution of responsibility for parades to the Northern Ireland Assembly;37 the establishment of a dedicated Historical Investigations Unit;38 and institutional reform at Stormont.39 In welcoming its conclusion, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, stated: As co-guarantors of the Good Friday Agreement, this Government is conscious of our responsibilities to all of the people of this island. The last three months have involved a huge commitment from both the Governments and from all of the parties concerned. Minister of State Sherlock and I, with the support of the Taoiseach and Tánaiste, were privileged to carry out this work. We will continue to advance political progress and to play our part in the implementation of today’s Agreement. This will help to ensure that the huge potential in the Agreement is realised.40

The end of 2014 also saw the first formal bilateral meeting between the newly-appointed British Foreign Secretary, Philip Hammond MP, and the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, during which the Minister stressed that Ireland intended to continue to work with the UK to ‘deal with common global challenges, and also to make the most of the shared opportunities ahead’.41 Moving to the Middle East, in the context of advice for Irish individuals and companies regarding the Israeli settlements in the Occupied Palestinian Territories (OPT), the Irish Government reiterated its support for the EU position on the OPT, in particular its clear position that: The West Bank, including East Jerusalem, Gaza and the Golan Heights are territories which have been occupied by Israel since 1967. Israeli settlements are illegal under international law, constitute an obstacle to peace and threaten to make a two-state solution to the IsraeliPalestinian conflict impossible. The EU and its Member States will not recognise any changes

33  Department of Foreign Affairs and Trade, ‘Statement by Minister Flanagan on the “Hooded Men” Case’, Press Release, 2 December 2014. 34  See also: Brice Dickson, ‘Human Rights in Northern Ireland 2014’ in this volume. 35  The Stormont House Agreement, 23 December 2014. See in particular, sections 4–14, plus the Stormont House Agreement Financial Annex. 36  The Stormont House Agreement, section 15. 37  Ibid, sections 16–20. 38  Ibid, sections 30–40. 39  Ibid, sections 56–66. 40  Department of Foreign Affairs and Trade, ‘New Agreement Means Brighter Days Ahead for Northern Ireland—Minister Flanagan’, Press Release, 23 December 2014. 41 Department of Foreign Affairs and Trade, ‘First Formal Meeting with British Foreign Secretary and ­Minister Flanagan Concludes a Positive Year’, Press Release, 16 December 2014.

Correspondent Reports—Cubie 121 to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties.42

The advice continued by noting the potential reputational implications of getting involved in economic and financial activities in settlements, as well as possible abuses of the rights of individuals. The Government also reiterated its long-standing policy of complete opposition to any form of boycott directed against Israel, as well as its continued strong commitment to promoting trade and business ties with Israel.43 In a meeting with the Israeli Ambassador to Ireland, the Minister for Foreign Affairs and Trade also strongly condemned the attack on a UN-run school in Gaza by Israeli forces on 25 July, and stated: I again reiterated to the Ambassador that the appalling level of civilian casualties which we are now seeing in Gaza as a result of Israel’s current military operation cannot be justified under any circumstances. The violence on all sides must stop now and an immediate ceasefire be agreed. I requested the Ambassador to convey these messages on behalf of the Government to the Israeli Government and he undertook to do this immediately.44

Consular Services In January 2014, the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, announced the establishment of three new Embassies (in Bangkok, Jakarta, and Zagreb), the re-opening of Embassies in Nairobi and the Holy See, plus three new Consulates (in Hong Kong, China; Sao Paulo, Brazil; and Austin, Texas, USA).45 The re-opening of an Irish Embassy in the Holy See represented a reversal of the controversial closure decision taken in November 201146 as part of a cost-cutting programme across the Irish consular services. The Tánaiste explained that the decision to re-open an Embassy to the Holy See followed Pope Francis’ election in February 2013: I’ve been particularly impressed by what Pope Francis has been saying about his priority to tackle world hunger and poverty. The issue of hunger and poverty is now at the centre of the international agenda. That’s why we’re opening a one-person mission to the Holy See, which will have a focus on aid and poverty and hunger agenda.47 42 Department of Foreign Affairs and Trade, ‘Advice on Investment in Israeli Settlements in Occupied Palestinian Territory’, available at: www.dfa.ie/our-role-policies/international-priorities/middle-east-andnorth-africa/opt-investment-advice (accessed 30 November 2015). See also: Department of Foreign Affairs and Trade, ‘Tánaiste Publishes Advice on Financial and Economic Activities in Israeli Settlements in the OPT’, Press Release, 3 July 2014; Department of Foreign Affairs and Trade, ‘Statement by the Minister for Foreign Affairs and Trade on Israeli Settlement Expansion’, Press Release, 1 September 2014. 43  ‘Advice on Investment’, ibid. 44  Department of Foreign Affairs and Trade, ‘Minister Flanagan Speaks to Israeli Ambassador: Calls for Immediate End to Violence’, Press Release, 25 July 2014. 45  Department of Foreign Affairs and Trade, ‘Tánaiste Announces Expansion of Irish Embassy Network in Support of Trade & Aid’, Press Release, 21 January 2014. 46  See Darren O’Donovan, ‘The Diplomatic Disputes between the Holy See and the Irish State, 2009–2012: A Legal Analysis’ (2011) VI Irish Yearbook of International Law 69. 47  Colm Kelpie, ‘Two Years after Cuts Led to Closure, “Scaled-Down” Vatican Embassy Opens’ Irish Independent, 22 January 2014, available at: www.independent.ie/irish-news/two-years-after-cuts-led-to-closurescaleddown-vatican-embassy-opens-29938282.html (accessed 30 November 2015).

122  The Irish Yearbook of International Law 2014 Meanwhile, nearly 1,650 Irish citizens were supported during serious consular emergencies by the Department of Foreign Affairs and Trade during 2014, representing a 10 per cent increase on 2013. These figures include arrests, accidents, child abductions and hospitalisations, and assistance provided to the families of 217 people who died while abroad. The highest number of cases occurred in Spain, followed by Australia, USA, Canada, Britain, France, Thailand, UAE and Portugal. Meanwhile, the Department registered more than 5,500 people for Irish citizenship through Foreign Births Registration, and provided more than 3,000 Certificat de Coutume (civil letters of freedom) to Irish citizens getting married or entering into civil partnerships abroad. The most popular countries for ceremonies abroad were Italy, Spain, Malta, France and Germany, and 50 applications were received from Irish citizens entering into same-sex civil partnerships abroad. Additionally, Department of Foreign Affairs and Trade staff authenticated over 60,000 Irish documents such as educational certificates, legal documents and company documents, for example, in order to secure employment abroad or for property and commercial transactions.48 The prominent and long-running case of detained Irish citizen, Ibrahim Halawa, continued during 2014. Mr Halawa was arrested with his three sisters in Cairo in August 2013 for allegedly taking part in demonstrations supporting the deposed President, Mohammed Morsi. In July, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, met with the Halawa family in Dublin to brief them on his conversation with the Egyptian Minister for Foreign Affairs. Minister Flanagan stated that: I spoke to Minister Shoukry on my first day as Minister for Foreign Affairs and Trade and I subsequently wrote to him setting out the Irish Government’s concerns with regard to Ibrahim’s case … Throughout, I have emphasised that Ibrahim was only seventeen when the alleged offences took place, and that he planned to return to Ireland immediately if released. In my contacts with Minister Shoukry, I stressed that while I was in no way attempting to interfere in the judicial process, it is the Government’s view that Ibrahim should not be tried as part of a trial involving a large number of defendants; that he should be advised of the specific charges to be laid against him, and be allowed to be defended in court by a lawyer of his choosing.49

Following a subsequent postponement of the trial date in Cairo, Minister Flanagan stated: I am very concerned about the continuing delay in the hearing of the case involving Ibrahim Halawa. I know that the deferral of the case today is a great cause of concern for Ibrahim and his family, as it is to me and the Government … I have taken a close personal interest in this case and myself and my Department will continue to provide all assistance possible.50

However, while his sisters were released in December 2013, Ibrahim Halawa remained in pre-trial detention at the close of 2014. A total of 629,446 passports were issued in 2014 by the Department of Foreign Affairs and Trade, with over 25 per cent of all passport applications received during the months

48  All figures from: Department of Foreign Affairs and Trade, ‘Almost 1,650 Irish Citizens Assisted Abroad by the Department of Foreign Affairs and Trade in 2014’, Press Release, 4 January 2015. 49  Department of Foreign Affairs and Trade, ‘Minister Flanagan Meets Family of Ibrahim Halawa’, Press Release, 31 July 2014. 50  Department of Foreign Affairs and Trade, ‘Minister Flanagan Statement on the Case of Ibrahim Halawa’, Press Release, 12 August 2014.

Correspondent Reports—Cubie 123 of May and June.51 However, despite the newly designed passport winning the Regional ID Document of the Year 2014 at the High Security Printing Conference in Milan,52 2014 commenced with a cloud hanging over the Passport Office. In early February 2014, is was confirmed that a joint Passport Service / Garda investigation had taken place at the Passport Offices in Molesworth Street and Balbriggan, resulting in two employees of the Passport Service being arrested by An Garda Síochána. The Passport Service had launched an investigation in late 2013 when internal checks revealed irregularities in the processing of three passports. The Garda National Bureau of Criminal Investigation was subsequently informed and a joint investigation was launched.53 The Diaspora Continuing the focus on the role of the Irish Diaspora in supporting the economic development and recovery of Ireland following the economic crisis of 2009, the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, met with the Global Irish Network Advisory Group in February 2014, and argued that: The Global Irish Network is a powerful demonstration of the resourcefulness of the Irish ­Diaspora. The economic backdrop to their work has changed a lot since the crisis began and I think it’s important that we continually look at the reach of the network, as our export ­markets evolve, in order to ensure that the Government and the Network, working together, can best contribute to creating jobs and supporting exports.54

The on-going commitment to working with the Diaspora included the launch in March of a public consultation process on the Government’s engagement with the Irish abroad,55 and the announcement of 10 recipients of the Presidential Distinguished Services Awards for the contributions of members of the Diaspora to Ireland and its international reputation. Recipients included: Fionnula Flanagan, Catherine Day, Niall O’Dowd and Thomas Keneally.56 In addition to recognising the contribution of individuals, the Minister for Diaspora, Jimmy Deenihan TD, announced a series of funding measures during 2014 to support diaspora groups. The Emigrant Support Programme in the USA was awarded over €1.8 million in funding to support vulnerable Irish emigrants in America, including cultural and heritage grants of €310,000 and funding for mental health and suicide

51  Department of Foreign Affairs and Trade, ‘The Department of Foreign Affairs and Trade issued 629,446 passports in 2014’, Press Release, 5 January 2015. 52  Department of Foreign Affairs and Trade, ‘Irish Company Wins International Award for Passport Design’, Press Release, 18 February 2014. 53  Department of Foreign Affairs and Trade, ‘Statement on Investigation Concerning the Passport Offices in Dublin’, Press Release, 5 February 2014. See also: Conor Lally, ‘Inquiry into Alleged Sale of Bogus Passports by Civil Servants’, Irish Times, 5 February 2014, available at: www.irishtimes.com/news/crime-and-law/ inquiry-into-alleged-sale-of-bogus-passports-by-civil-servants-1.1680891 (accessed 30 November 2015). 54  Department of Foreign Affairs and Trade, ‘Tánaiste Meets with Global Irish Network Advisory Group’, Press Release, 17 February 2014. 55 Department of Foreign Affairs and Trade, ‘Tánaiste Seeks Views on Future Diaspora Policy’, Press Release, 18 March 2014. 56 Department of Foreign Affairs and Trade, ‘Minister Flanagan Announces Recipients of Presidential Distinguished Service Awards for 2014’, Press Release, 30 September 2014.

124  The Irish Yearbook of International Law 2014 prevention activities by Pieta House in New York.57 Likewise, €415,000 was granted to organisations across Australia to provide welfare services and support to Irish emigrants. Announcing the funding, Minister Deenihan noted: I also acknowledge the work being done by organisations to promote Irish culture and preserve our heritage in Australia. Australia is often dubbed ‘the most Irish country in the world outside of Ireland’ and the stories of successive Irish emigrants and their descendants form an important part of Australian history. In the 2011 census, nearly 2.1 million Australians indicated they had Irish ancestry. I am delighted that these grants will help to increase interest and understanding of that heritage and enhance our connections with the global Irish community.58

Within Europe, funding was provided to the Franco-Irish business network, Network­ Irlande, which has received a total of €113,500 from the Irish Government since its foundation in 2010.59 Meanwhile, coinciding with the major debate over immigration reform in the United States of America, the Tánaiste raised the on-going issue of over 50,000 undocumented Irish citizens living and working in the US during a two-day visit to Washington, DC in June 2014.60 List of Bilateral Agreements that Entered into Force During 2014 The following is a list of the bilateral agreements that entered into force for Ireland during 2014. ITS Number

Title of agreement

No 15 of 2014

Agreement Between the Government of Ireland and the Government of Romania on Co-operation in Preventing and Combating Illicit Drug Trafficking, Money Laundering, Organised Crime, Trafficking in Persons, Terrorism, Terrorism Financing and other Serious Crime, done at Dublin on 17 January 2013. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 2 August 2013 and 19 December 2013, entered into force on 19 January 2014.

No 17 of 2014

Agreement Between the Government of Ireland and Government of the United States of America to Improve International Tax Compliance and to Implement FATCA, done at Dublin on 21 December 2012. Notifications of the completion of the procedures necessary for the entry into force of this Agreement exchanged on 7 March 2014 and 2 April 2014, entered into force on 2 April 2014.

57  Department of Foreign Affairs and Trade, ‘Irish Emigrants in the US to Receive Support of over €1.8 million—Minister Deenihan Announces’, Press Release, 6 November 2014; and Department of Foreign Affairs and Trade, ‘Minister Deenihan Announces Mental Health Funding for New York Irish’, Press Release, 11 December 2014. 58 Department of Foreign Affairs and Trade, ‘Minister Deenihan Announces Funding to Support Irish Emigrants to Australia’, Press Release, 23 November 2014. 59  Department of Foreign Affairs and Trade, ‘Minister Deenihan Visits Irish Community in Paris’, Press Release, 3 December 2014. 60  Department of Foreign Affairs and Trade, ‘Gilmore in Washington to Discuss Undocumented Irish’, Press Release, 18 June 2014.

Correspondent Reports—Cubie 125 No 21 of 2014

Exchange of Notes constituting an Agreement between the Government of Ireland and the Government of the People’s Republic of China concerning the establishment of the Consulate General of Ireland in the Hong Kong Special Administrative Region. Notes exchanged on 21 May 2014 and 6 June 2014, entered into force on 6 June 2014.

No 23 of 2014

Agreement on Technical and Development Cooperation between the Government of Ireland and the Government of the Federal Democratic Republic of Ethiopia, done at Addis Ababa on 3 November 2014. Entered into force on 3 November 2014.

No 28 of 2014

Protocol to amend the Convention between the Government of Ireland and the Government of the Kingdom of Denmark for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, which was signed at Dublin on 26 March 1993, done at Dublin on 22 July 2014. Notifications of the completion of the procedures necessary for the entry into force of this Protocol exchanged on 17 December 2014 and 23 December 2014, entered into force on 23 December 2014.

FOREIGN CONFLICTS

The four-year conflict in Syria continued to dominate both international headlines and diplomatic efforts during 2014. In supporting the EU’s call for the situation in Syria to be referred to the International Criminal Court, the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, stated: ‘War crimes have clearly been committed in Syria and we have a duty to ensure that there should be no impunity for those ­responsible.’61 The Tánaiste continued: Humanitarian access remains a serious concern and has become even more precarious due to security, administrative, and operational restrictions. We fully support the existing Security Council Resolution 2139, which calls for all parties to the conflict to facilitate the delivery of life-saving humanitarian aid. Ireland has been to the fore in the international efforts to help alleviate the suffering of the Syrian people and is one of the most generous contributors to the humanitarian response on a per capita basis.62

Meanwhile, the escalation of sectarian violence in the Central African Republic (CAR) in early 2014 led to a series of attacks on humanitarian workers in the country. In addition to announcing additional humanitarian assistance and stressing the grave consequences for the civilian population of CAR, Minister for Trade and Development, Joe Costello TD, stated: Ireland condemns in the strongest possible terms recent attacks on humanitarian personnel as they seek to deliver lifesaving assistance to the most vulnerable populations. It is vital 61  Department of Foreign Affairs and Trade, ‘Ireland Calls for Security Council to Refer Syria to the International Criminal Court’, Press Release, 21 May 2014. 62 Ibid.

126  The Irish Yearbook of International Law 2014 that all parties respect International humanitarian law; that civilians are protected; and that humanitarian access is provided for UN agencies and NGOs working in CAR and neighbouring countries.63

Also in Africa, the civil war which erupted in South Sudan in December 2013 continued throughout 2014, resulting in almost two million people being forced to flee their homes, and almost half a million people taking refuge in neighbouring countries. During a visit by President Michael D Higgins to refugee camps in Gambella, Ethiopia, in November 2014, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, said: I am gravely concerned at the impact that the violence is having on the civilian population. I am particularly alarmed by the high levels of sexual and gender based violence being perpetrated against women and girls and at the plight of refugees who have fled the country.64

The threats to the civilian population, and humanitarian personnel working to assist them, were also a feature of the increasing violence in Iraq during 2014. In June, ­Minister Costello called on all those involved in the fighting in Iraq to ‘respect international humanitarian law, to ensure that civilians are protected, that safe and unhindered access is granted to humanitarian agencies and that those fleeing areas directly affected by the fighting are guaranteed safe passage’.65 Meanwhile, the elusive search for a peaceful solution to the Israel-Palestine conflict was the focus of a speech given by the Minister of Foreign Affairs and Trade at a major international conference on the reconstruction of Gaza, convened by the governments of Egypt and Norway, held in Cairo in October 2014. Minister Flanagan noted: The recent conflict in Gaza has been a disaster, the third—and the worst—in only five years. While neither side may have wished it, the conflict followed inevitably from the policies they pursued. Nobody won, nobody achieved their objectives, and innocent civilians above all lost.66

Minister Flanagan reiterated Ireland’s long-standing support for the Palestinian people, and for a negotiated two-state solution. However, he also warned that: ‘We need to be able to see that our investment for the people of Gaza is going to last, and not just produce tomorrow’s targets.’67 Minister Flanagan concluded by stressing: Only a political process to bring about the urgent realisation of a negotiated two-State solution can end this, and secure the future of both the Palestinian and Israeli peoples. I urge political leaders on both sides to commit themselves genuinely to this process and to avoid all actions which might impede the prospects for peace.68

63  Department of Foreign Affairs and Trade, ‘Ireland Dispatches Vital Supplies to Refugees from Central African Republic’, Press Release, 13 June 2014. 64 Department of Foreign Affairs and Trade, ‘Government Announces €2 million in Funding to Help Communities Affected by Conflict in South Sudan’, Press Release, 4 November 2014. See also: Department of Foreign Affairs and Trade, ‘Minister Sherlock Announces €1.5 million Funding to Fight the Threat of Famine in South Sudan’, Press Release, 7 August 2014. 65  Department of Foreign Affairs and Trade, ‘Government Announces Funding to GOAL for Emergency Assistance in Iraq’, Press Release, 18 June 2014. See also: Department of Foreign Affairs and Trade, ‘Ireland to Send Urgently-Needed Supplies for People Displaced by Violence in Iraq’, Press Release, 29 June 2014; Department of Foreign Affairs and Trade, ‘Government Announces Funding to Meet Immediate Life-Saving Needs in Northern Iraq’, Press Release, 13 August 2014. 66  Department of Foreign Affairs and Trade, ‘Minister Flanagan Address at the International Conference in Support of the Reconstruction of Gaza’, Speech, 12 October 2014. 67 Ibid. 68 Ibid.

Correspondent Reports—Cubie 127 The potential reignition of the Cold War was brought starkly into focus during 2014 with the Russian annexation of Crimea in March, and the escalating conflict in eastern Ukraine. Alongside other EU Member States, Ireland rejected the Crimean referendum results of 16 March, with the Tánaiste noting: As I have already made clear, today’s referendum in Crimea is illegal. The results of the vote are without legal effect. Ireland and the majority of the international community do not recognise the legitimacy of the referendum. Nor do we accept the validity of the result.69

Following the subsequent EU Foreign Affairs Council meeting on 17 March, the Tánaiste stressed the EU’s support for the territorial integrity and sovereignty of Ukraine, and the establishment of targeted sanctions against 21 named Russian individuals.70 However, following the deterioration of the security situation in eastern Ukraine in the run-up to the Ukrainian Presidential elections in May, Ireland sent a team of election monitors under the auspices of the Organisation for Security and Co-operation in Europe (OSCE), and supported additional sanctions against named individuals and companies.71 The signature of the Minsk Agreement on 5 September appeared to indicate a potential resolution to the conflict in eastern Ukraine, particularly around the Donbass region.72 However, the year ended with no end in sight for the conflict in Ukraine. On 15 December, Minister of State for European Affairs and Data Protection, Dara Murphy TD, stressed: Ireland remains deeply concerned by the ongoing crisis in Ukraine. The increased levels of violence and troop movements on the ground in Eastern Ukraine in recent weeks clearly threaten progress towards peace. While there has been a reduction in violence in recent days, the situation remains extremely fragile. It is crucial that all sides, including the Russian Federation, fully implement the commitments they have signed up to in Minsk. No actions should be taken to undermine the objective of the negotiated and peaceful end to this crisis that we all wish to see.73

INTERNATIONAL TERRORISM

In response to a series of bombings in Cairo in January 2014, the Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore TD, unreservedly condemned the attacks and all such acts of terrorism and called on all Egyptians to renew the spirit of national

69  Department of Foreign Affairs and Trade, ‘Tánaiste says Referendum Outcome in Crimea is Illegal’, Press Release, 16 March 2014. See also: Department of Foreign Affairs and Trade, ‘Tánaiste Calls for Cancellation of Referendum in Crimea’, Press Release, 14 March 2014. 70 Department of Foreign Affairs and Trade, ‘Ireland Welcomes Foreign Affairs Council Agreement on Crimea’, Press Release, 14 March 2014. 71  Department of Foreign Affairs and Trade, ‘EU Imposes Additional Sanctions as Situation in Ukraine Deteriorates’, Press Release, 12 May 2014. 72  Department of Foreign Affairs and Trade, ‘Minister for Foreign Affairs and Trade on the Announcement of a Ceasefire in Ukraine’, Press Release, 5 September 2014. See also: ‘EU Agrees New Sanctions on Russia over Ukraine’ RTÉ News Online, 5 September 2014, available at: www.rte.ie/news/2014/0905/641560-ukraine (accessed 30 November 2015). 73  Department of Foreign Affairs and Trade, ‘Minister Murphy in Brussels to Discuss Iraq, Syria, Western Balkans, Ukraine and Ebola’, Press Release, 15 December 2014.

128  The Irish Yearbook of International Law 2014 unity which inspired the peaceful protests of January 2011.74 The Tánaiste likewise condemned attacks and abductions in Nigeria in April, stressing that: The increasing frequency of violent attacks in Nigeria is of great concern to Ireland and its partners in the European Union. Acts of violence against school children and other innocent civilians cannot be tolerated. Ireland, together with our EU partners, will continue to support efforts to counter extremism and violence in Nigeria and to support the rule of law and human rights.75

Meanwhile, the attack on Malaysian Airlines flight MH17 on 18 July over eastern Ukraine was swiftly condemned by the Minister for Foreign Affairs and Trade, Charlie Flanagan TD. Noting that an Irish citizen was amongst the 298 people on board who were killed when it was hit by a rocket, Minister Flanagan stated: Ireland fully supports calls for a full, independent international investigation to establish the cause of this grave tragedy and to ensure that those responsible are swiftly brought to justice. I encourage all the authorities involved—and the parties to the conflict in Ukraine—to work together, to ensure that the hundreds of families who have been bereaved can get the answers they need.76

In Pakistan, Minister Flanagan condemned the attack on the Army Public School in Peshawar on 16 December 2014, which killed 141 people including 132 school children, as ‘an attack of savage brutality which targeted innocent children in their place of study’.77 The Minister continued by noting that ‘Those responsible showed extreme cowardice in carrying out this senseless act of violence.’78 On the same day, Minister Flanagan likewise extended his sympathies and the thoughts of all Irish people to the victims of the attack and hostage-taking in a café in Sydney.79 DISARMAMENT

On 28 March 2014, the Royal Irish Academy hosted a major disarmament conference, organised by the Department of Foreign Affairs and Trade, in association with University College Cork and the Embassy of Japan. The conference was addressed by Setsuko ­Thurlow, a survivor of the nuclear attack on Hiroshima. In a keynote speech, the ­Minister for Trade and Development, Joe Costello TD, stressed:

74 Department of Foreign Affairs and Trade, ‘Tánaiste Condemns Cairo Bombings’, Press Release, 24 January 2014. 75  Department of Foreign Affairs and Trade, ‘Tánaiste Condemns Recent Violent Attacks in Nigeria’, Press Release, 16 April 2014. See also: Department of Foreign Affairs and Trade, Tánaiste Condemns Recent Violent Attacks in Nigeria’, Press Release, 7 May 2014. 76  Department of Foreign Affairs and Trade, ‘Statement by Minister Flanagan on the Loss of Flight MH17 in Ukraine’, Press Release, 18 July 2014. See also: ‘Malaysia Airlines Passenger Plane Reported Shot Down over Ukraine’ RTÉ News Online, 18 July 2014, available at: www.rte.ie/news/2014/0717/631440-ukraine-plane-crash (accessed 30 November 2015). 77  Department of Foreign Affairs and Trade, ‘Minister Flanagan Condemns Attack on Pakistan School’, Press Release, 16 December 2014. 78 Ibid. 79  Department of Foreign Affairs and Trade, ‘Statement by the Minister for Foreign Affairs and Trade, Charlie Flanagan, on the Attack in Sydney’, Press Release, 16 December 2014.

Correspondent Reports—Cubie 129 The humanitarian consequences of the use of nuclear weapons must become the guiding ­principle of international efforts to eliminate nuclear arsenals entirely. Recent research has revealed that the risk of an explosion happening through human error or systems failure is higher than previously thought. Because of the huge destructive capacity of modern nuclear weapons and the growing populations in urban areas, any attempt at managing the aftermath in a coordinated way would be utterly ineffectual.

The Minister continued by stressing: The pace of nuclear disarmament has been far too slow. Ireland is determined to see the fulfilment of the Nuclear Non-Proliferation Treaty, which calls for effective measures towards nuclear disarmament.80

PEACE SUPPORT OPERATIONS

At the end of 2014, the Irish Permanent Defence Forces (PDF) amounted to 9,280 ­personnel, comprised of 7,457 Army, 766 Air Corps and 1,057 Navy personnel. The ­number of serving females amounted to 570, representing 6.1% of the overall strength of the Permanent Defence Forces (a marginal increase from 5.9% in 2013). An ­additional 2,555 p ­ ersonnel were members of the Reserve Defence Forces (comprised of 2,159 Army Reserve, 143 Naval Service Reserve and 253 former PDF personnel in the First Line Reserve).81 At the end of 2014, 425 personnel were stationed abroad, representing 4.6% of the total Permanent Defence Forces. During 2014, approximately 1,181 members of the Permanent Defence Force served overseas in various missions, including postings with the UN, EU, OSCE and NATO. In particular, Ireland participates in the European Defence Agency and the NATO Partnership for Peace (PfP), and is an active contributor to UN peace support operations. The overall total commitment to Peace Support Operations during 2014 was as follows:82 Missions

01-Jan-14

31-Dec-14

1. UN-led operations UNTSO (Middle East)

12

12

MINURSO (Western Sahara)

3

3

MONUSCO (Democratic Republic of Congo)

4

4

UNOCI (Côte d’Ivoire)

2

2

UNIFIL HQ (Lebanon)

16

9

185

181

8

4

114

129

UNIFIL Infantry Battalion (Lebanon) UNIFIL Sector West HQ (Lebanon) UNDOF Infantry Group (Golan Heights)

80 Department of Foreign Affairs and Trade, ‘Minister Costello Calls for a Quicker Pace of Nuclear Disarmament’, Press Release, 28 March 2014. 81  All figures from: Department of Defence and Defence Forces Annual Report 2014, pp 19–20. 82  Ibid, p 39.

130  The Irish Yearbook of International Law 2014 Missions

01-Jan-14

31-Dec-14

UNDOF HQ (Golan Heights)

4

8

UNMAS (Mine Action)

4

-

UNIFIL Contingent Security team Sub-total (UN)

5

5

357

357

2. EU-led operations EUFOR (Bosnia & Herzegovina)

8

7

Nordic Battlegroup

-

14

EUTM Somalia

7

-

EUTM Mali

8

10

23

31

12

12

7

7

19

19

4

4

4

4

UNNY (New York)

1

1

EUMS (Brussels)

5

5

NATO/PfP (Belgium)

5

4

CSDP/PSC (Brussels)

4

4

Sub-total (EU) 3. NATO-led operations KFOR HQ ISAF (Afghanistan) Sub-total (NATO/PfP) 4. OSCE-led operations OSCE Sub-total (OSCE) 5. Military Reps/Advisors/Staff Postings

Sub-total (Military Reps/Advisers/Staff)

15

14

Total Personnel Overseas

418

425

A major international conference hosted by US Vice-President Joe Biden and UN ­Secretary General, Ban Ki-moon took place in New York on 26 September 2014, as part of a review of all UN peacekeeping operations. Reflecting Ireland’s long-standing commitment to UN peacekeeping operations, the ‘Strengthening United Nations Peace Operations’ conference was attended by the Minister for Foreign Affairs and Trade, Charlie F ­ lanagan TD, where he announced the establishment of a dedicated training programme for ­officers and NCOs in specific African countries. Building on existing relationships established through Ireland’s overseas development programmes, Minister Flanagan noted: The training will include a specific focus on areas including protection of civilians, gender sensitivity, human rights and leadership training and logistics. There are also niche areas in which Ireland has specific expertise, such as training in countering improvised explosive devices or training for military police.83 83  Minister Charlie Flanagan announces new Irish peacekeeping initiative at major New York summit, Department of Foreign Affairs and Trade, Press Release, 26 September 2014.

Correspondent Reports—Cubie 131 CLIMATE CHANGE

The Fifth Assessment Report of the Inter-Governmental Panel on Climate Change (IPCC) on ‘Impacts, Adaptation and Vulnerability’ was published in March 2014,84 which confirmed that it is ‘extremely likely [ie 95 to 100 per cent certainty] that human influence has been the dominant cause of the observed warming since the mid-20th century’.85 In welcoming the publication of the IPCC report, the Minister for Trade and Development, Joe Costello TD, stated: Ireland will continue to play a strong and active role in addressing the climate challenge. Since our EU Presidency in 2013, Ireland has been taking a lead in the negotiations for a new framework for global development post-2015 which will include efforts to address climate change. I am participating in the negotiations at the Open Working Group at the UN in New York on the development of new sustainable development goals. Through this work, and the work of our aid programme on the ground, we are determined to ensure that the interlinked challenges of hunger and climate change receive the urgent attention they need and deserve.86

In July, former Irish President Mary Robinson was appointed as a Special Envoy on Climate Change by UN Secretary General, Ban Ki-moon. The Minister for Foreign Affairs and Trade noted that ‘the appointment is both an honour for Ireland and a tribute to Mary Robinson’s stature on climate change and human rights issues and across the UN system’.87 HUMAN RIGHTS

Several specific aspects of international human rights law were highlighted and prioritised by the Irish Government during 2014. In February, the Tánaiste expressed his deep concern about the impending enactment of legislation to criminalise homosexuality in Uganda, and in a statement stressed: I would like to express support for all human rights activists in Uganda, particularly those working for the human rights of Lesbian Bisexual Gay and Transgender people. I want to assure them that Ireland is committed to ensuring that the people of Uganda do not suffer violence or discrimination on the grounds of their sexual orientation. Ireland will continue to play a positive role in support of human rights and equality in Uganda.88

Gender equality and tackling sexual violence were also key themes raised by Minister for Trade and Development, Joe Costello TD, two weeks later at a UN meeting in New York 84  CB Field et al (eds), Summary for Policymakers. Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2014). 85  Ibid, 3, 6. 86  Department of Foreign Affairs and Trade, ‘Minister Costello Welcomes Report on Climate Change’, Press Release, 31 March 2014. 87  Department of Foreign Affairs and Trade, ‘Minister Flanagan Welcomes Appointment of Mary Robinson as UN Climate Change Envoy’, Press Release, 14 July 2014. 88  Department of Foreign Affairs and Trade, ‘Statement by the Tánaiste on the Anti-Homosexuality Bill in Uganda’, Press Release, 18 February 2014.

132  The Irish Yearbook of International Law 2014 to discuss the contributions of women, young people and civil society to the Post 2015 Development Agenda.89 Minister Costello highlighted Ireland’s position the following day, International Women’s Day, arguing that: Ireland’s development policy, One World, One Future, reaffirms our strong commitment to gender equality. Studies have shown that in countries where women do not have the right to own land, there are on average 60% more malnourished children. This rises to 85% when women cannot access credit. Ireland wants to see gender equality positioned centrally as a standalone goal in the Post 2015 Development framework as well as being integrated across all the other goals.90

Moreover, in July at the ‘Global Summit to End Sexual Violence in Conflict’ in London co-hosted by the UK Foreign Secretary, William Hague, and Angelina Jolie, the Special Envoy of the UN High Commissioner for Refugees, Minister Costello reiterated the Government’s policy that gender-based violence is ‘a major abuse of human rights, which can have serious impacts on women’s health, well-being and livelihoods’.91 Following the international conference on hunger, nutrition and climate justice held in Dublin Castle in April 2013, another continuing priority during 2014 was Ireland’s role in tackling global hunger. In September, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, co-hosted the ‘Delivering Zero Hunger’ conference in New York, alongside the Netherlands, Mexico, and three UN agencies. The primary objective of the conference was to encourage governments, businesses and civil society organisations to adapt five key actions to eradicate global hunger. Reflecting on Ireland’s own historical experience of famine and hunger, Minister Flanagan stated: Ireland is recognised as a global leader in the battle against hunger. It is at the heart of our aid programme, Irish Aid, and of our foreign policy … The Taoiseach last year committed Ireland to doubling our development funding for nutrition by 2020 and I am re-affirming that promise at the UN today.92

Meanwhile, reflecting the generally improving economic situation within Ireland, the Department of Foreign Affairs and Trade’s annual Forum on Human Rights in November 2014 focused on business and human rights. A cross-section of business and civil society representatives addressed the forum, including representatives from Google, Marks & Spencer and CRH, as well as Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission and representatives from the American Chamber of Commerce, Amnesty International, Trócaire and the United Nations. In delivering his keynote speech, the Minister for Foreign Affairs and Trade noted: Ireland is now well on its way to economic recovery … The challenge now is to harmonize economic growth with the protection of human rights. Many companies recognise the moral

89  Department of Foreign Affairs and Trade, ‘Minister Costello Attends High Level UN Meeting on the Future of International Development’, Press Release, 7 March 2014. 90  Department of Foreign Affairs and Trade, ‘Minister Costello Highlights Ireland’s Support for Gender Equality on International Women’s Day’, Press Release, 3 March 2014. 91  Department of Foreign Affairs and Trade, ‘Minister Costello Calls for Action to End Sexual Violence at London Summit’, Press Release, 12 June 2014. 92  Department of Foreign Affairs and Trade, ‘Minister Flanagan Co-Hosts Major International Summit on Achieving Zero Hunger’, Press Release, 25 September 2014.

Correspondent Reports—Cubie 133 imperative to respect human rights and it is the role of the State to assist Irish companies in meeting human rights standards in today’s fiercely competitive business environment.93

OVERSEAS DEVELOPMENT AID

Following a marginal increase in Euro terms of Overseas Development Aid (ODA, comprised of Irish Aid’s annual budget plus expenditure by other government departments, including contributions to the EU international development and co-operation budget) in 2013, the total ODA budget fell to €614.9 million in 2014, equivalent to 0.39 per cent of Gross National Product (GNP). This represented the sixth consecutive year that the proportion of ODA to GNP has fallen, from a high of 0.59 per cent in 2008, as reflected in the figures below.94 Year

2008

2009

2010

2011

Total ODA Budget (€ millions)

920.7

722.2

675.8

657.0

% of GNP

0.59

0.55

0.53

0.50

2012 628.9 0.47

2013 637.1 0.46

2014 614.9 0.39

In advance of the elaboration of the Budget in September 2014, the submission from Dóchas (an umbrella body for Irish development non-governmental organisations (NGOs)) called on the Government to ensure it made ‘no further cuts to the overseas aid budget and to set out how it will meet the 0.7% ODA/GNI target it had originally committed to achieving by 2015’. Dóchas furthermore highlighted that an opinion poll undertaken by Ipsos MRBI in July 2014 found that 75 per cent of people in Ireland think that ‘even in an economic down-turn, we have an obligation to invest in overseas aid’.95 Despite the reduction in overall funding, during 2014 over 30 countries received ODA, including Irish Aid partner countries (Ethiopia, Lesotho, Malawi, Mozambique, Sierra Leone, Tanzania, Uganda, Vietnam and Zambia), as well as a range of other countries, in particular the Democratic Republic of Congo, Zimbabwe, Kenya and Liberia.96 Humanitarian assistance was provided following natural disasters, in particular for the Ebola crisis in West Africa, and armed conflicts, including those in Syria, South Sudan, Central African Republic, and Gaza.97 The quality of Irish overseas development assistance was prioritised by the government and recognised internationally throughout the course of 2014. In April, at the first meeting of the Global Partnership for Effective Development Cooperation, held in Mexico,

93 Department of Foreign Affairs and Trade, ‘Our Challenge is to Harmonise Economic Growth with ­Protection of Human Rights’, Press Release, 7 November 2014. 94  Figures from: Irish Aid Annual Report 2014, p 54. 95  Dóchas, ‘2015 Budget Submission: Overseas Aid Works and is Widely Supported—Stop Cutting the Aid Budget, say NGOs’, Press Release, 16 September 2014. 96  Irish Aid Annual Report 2014, p 59. For full details of the activities of Irish Aid, see: www.irishaid.ie (accessed 30 November 2015). 97  Irish Aid Annual Report 2014, p 9.

134  The Irish Yearbook of International Law 2014 the Minister for Trade and Development, Joe Costello TD, argued that ‘as well as the volumes of assistance, the quality of aid and the way in which it is delivered is critical for its impact in fighting hunger and malnutrition, delivering sustainable livelihoods and reducing poverty’.98 This international focus on aid effectiveness was subsequently translated into the domestic context via a conference in Dublin entitled ‘Protecting Public Trust: Preparing the NGO sector for changing times’, which focused on the importance of charity regulation, transparency, and accountability of international aid.99 This was followed in July with the Washington-based Brookings Institute’s third report on the quality of official development assistance.100 This report bench-marked the ODA of 31 developed countries against four headings, namely: maximising efficiency; fostering institutions; reducing burden; and transparency and learning. The Irish Aid programme was the only one which was ranked within the top four in all four categories. Indeed, the report noted: ‘Most donors have their strengths and weaknesses in different dimensions of aid quality … Ireland is a stand-out, ranking first in fostering institutions and 4th or better in the other three dimensions.’101 The Development Assistance Committee (DAC) of the Organisation for Economic Co-operation and Development (OECD) likewise praised the Irish Aid programmes in December 2014 following its regular development co-operation peer review process.102 The OECD noted that: A strength of Ireland’s development co-operation is the way in which development priorities are grounded in the needs of partner countries and in what the Irish public supports, while being informed by Irish Aid’s country level experience.103

Nevertheless, the OECD also issued a number of recommendations for the Irish ODA programmes, including a recommendation that ‘Ireland should communicate the rationale and priorities for scaling up its ODA towards 0.7% of GNI to the public and key stakeholders. It should also start planning how increases will be allocated’.104 During the second half of 2014, the threat posed by the rapid spread of the Ebola virus in West Africa became apparent. In July, the Minister for Trade and Development, Joe Costello TD, announced the first tranche of additional funding to fight Ebola in Irish Aid partner countries Sierra Leone and Liberia.105 Minister for Trade, Development and

98  Department of Foreign Affairs and Trade, ‘Minister for Trade and Development: Ireland a Leader in Aid Effectiveness’, Press Release, 16 April 2014. 99  Department of Foreign Affairs and Trade, ‘Minister Costello Welcomes NGO Drive for Greater Accountability and Value for Money’, Press Release, 1 May 2014. 100  Nancy Birdsall and Homi Kharas, The Quality of Official Development Assistance (QuODA) (Washington, Brookings Institute, 2014). 101  Ibid, 14. See also: Department of Foreign Affairs and Trade, ‘Minister Costello Welcomes Report P ­ raising Quality of Irish Aid’, Press Release, 12 July 2014. 102  As explained on the OECD website: ‘Each DAC member country is peer reviewed roughly every four years with two main aims: to help the country understand where it could improve its development strategy and structures so that it can increase the effectiveness of its investment; and to identify and share good practice in development policy and strategy. Led by examiners from two DAC member states, the process typically takes around six months to complete and culminates with the publication of the findings.’ See: www.oecd.org/dac/ peer-reviews (accessed 30 November 2015). 103  Organisation for Economic Co-Operation and Development, ‘OECD Development Co-operation Peer Reviews: Ireland 2014’ (OECD Publishing, 2014) 15. 104  Ibid, 16. See also: Department of Foreign Affairs and Trade, ‘Ireland Continues to Excel in Delivering Effective Aid—OECD’, Press Release, 2 December 2014. 105  Department of Foreign Affairs and Trade, ‘Minister Costello Announces Additional Funding to Help Fight Ebola in West Africa’, Press Release, 15 July 2014.

Correspondent Reports—Cubie 135 North South Co-Operation, Seán Sherlock TD, subsequently called on the international community to ‘further support these efforts in a coordinated manner through the allocation of more human and financial resources to support these countries’,106 and Ireland continued to provide additional funding, materials and human resources over the course of the year.107 Minister Sherlock was subsequently the first EU Minister to visit the region in October 2014, where he met with the President of Sierra Leone, Ernest Bai Koroma, and Government representatives to discuss their response to the crisis and the support provided by the international community. During his visit, Minister Sherlock highlighted that: My visit this week allows me to demonstrate solidarity with those who have been worst-affected and to assess the response to the crisis by the Government in Freetown and also the work of the international community.108

Meanwhile, in November, the Cabinet agreed to the deployment of three Irish Defence Forces personnel to Kerrytown, Sierra Leone, as embedded members of the UK Armed Forces Treatment Unit. In making the announcement, the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, stated: The deployment of Defence Forces’ personnel to the embassy in Sierra Leone is a clear example of the whole of government approach required to fight this dreadful disease. By bringing field experience in areas such as emergency planning and response, logistics and risk mitigation, those deployed will add a significant new dimension to the Ireland’s contribution.109

The year concluded with a series of events marking the 10th anniversary of the 2004 Indian Ocean Tsunami, which killed over 226,000 people and displaced millions across 14 countries.110 The Irish Ambassadors to Thailand and Indonesia attended commemoration ceremonies in Khao Lak and Banda Aceh, while the Minister for Foreign Affairs and Trade, Charlie Flanagan TD, and the Minister of State for Development, Trade Promotion, and North South Co-Operation, Seán Sherlock TD, reflected on the anniversary at events in Dublin, where Minister Sherlock noted: Irish Aid learnt some very valuable lessons from the Tsunami and we have put in place new approaches to ensure that we are better equipped to respond efficiently and effectively when major crises occur. Ireland has been recognised internationally as a leader in providing humanitarian aid. We have developed an innovative system to prepare for and respond to major disasters. These include the pre-positioning of funding so that it can be quickly accessed when disaster strikes and also by establishing a corps of skilled personnel, the Rapid Response Corps,

106  Department of Foreign Affairs and Trade, ‘Minister Sherlock Announces €120,000 Additional Funding to Fight the Spread of Ebola in West Africa’, Press Release, 6 August 2014. 107  Department of Foreign Affairs and Trade, ‘Minister Sherlock Announces over €600,000 in Funding and Emergency Supplies to Tackle Ebola’, Press Release, 22 September 2014; Department of Foreign Affairs and Trade, ‘Minister Sherlock Announces over €1 Million in Additional Funding to Fight Ebola Outbreak’, Press Release, 3 October 2014; Department of Foreign Affairs and Trade, ‘Government Announces New Funding to Fight Ebola in West Africa’, Press Release, 23 November 2014. 108  Department of Foreign Affairs and Trade, ‘Minister Sherlock Travels to Sierra Leone to Assess Response to Ebola Outbreak’, Press Release, 1 October 2014. 109  Department of Foreign Affairs and Trade, ‘Defence Forces Personnel to Assist in Ireland’s Response to the Ebola Crisis in West Africa’, Press Release, 11 November 2014. 110  See for example: Irish Red Cross, After the Wave: A Pictorial History of the Irish Red Cross Indian Ocean Tsunami Relief and Recovery Programme 2005–2011 (Irish Red Cross, 2011) 8.

136  The Irish Yearbook of International Law 2014 to deploy at short notice to provide targeted support in areas including logistics, telecommunications, sanitation and health. We are also recognised for our generous funding and support. In 2014 we airlifted 269 tonnes of supplies—such as tents, blankets, jerry cans, water tanks, mosquito nets, pickaxes and spades, on eight occasions as part of Ireland’s response to emergencies and crises in a number of countries and regions. Some 32 members of our Rapid Response Corps have been deployed so far in 2014 to countries including South Sudan, Central African Republic, Jordan, Lebanon, Ethiopia, Somalia and Senegal.111

The UN Central Emergency Response Fund (CERF) was established in the aftermath of the 2004 Indian Ocean Tsunami, as a means of better coordinating responses to major international humanitarian crises. To mark the 10th anniversary of the CERF in December 2014, Ireland committed an additional €10 million to the fund, which brought Ireland’s total contributions to the CERF since its commencement to €120 million. In making the announcement, Minister for Foreign Affairs and Trade, Charlie Flanagan TD, noted: When major emergencies happen because of a natural disaster or conflict, a quick and coordinated response is essential to save lives. This is why Ireland is such a strong supporter of the UN’s Central Emergency Response Fund, so that aid can be deployed as quickly as possible to where it is most needed. I am proud that Ireland is among the top ten donors to this fund.112

111  Department of Foreign Affairs and Trade, ‘Ireland Represented at Ceremonies to Remember those who Died in the Indian Ocean Tsunami, Press Release, 26 December 2014. 112  Department of Foreign Affairs and Trade, ‘Ireland Pledges €10 million to the UN’s CERF for Humanitarian Emergencies’, Press Release, 23 December 2014.

Human Rights in Ireland 2014 FIONA O’REGAN*

INTRODUCTION

M

ANY NOTABLE HUMAN rights developments occurred in 2014, including the handing down of the highly significant O’Keeffe v Ireland1 judgment by the European Court of Human Rights (ECtHR), in which Ireland was found to be in violation of Article 3 for failing to put in place an effective system of protection for primary school students. An important decision was also reached in the People (DPP) v Gormley and the People (DPP) v White,2 in which the Supreme Court held that the right of access to legal advice included a right of access before the commencement of interrogation. This decision brought Irish law into line with ECtHR jurisprudence and that of other common law jurisdictions. Ireland submitted its fourth periodic report to the Human Rights Committee in 2014. The Committee expressed concern in relation to a wide range of areas including violence against women, abortion, the rights of asylum seekers, prisoners’ rights and the rights of survivors of institutional abuse. However, I­ reland also signed and ratified the Third Optional Protocol to the Convention on the Rights of the Child which represented an important advance in children’s rights, by allowing them access to the Committee on the Rights of the Child’s complaints procedure. LEGISLATIVE DEVELOPMENTS

The Irish Human Rights and Equality Commission Act, 2014 The Irish Human Rights and Equality Commission Act 2014 provided for the dissolution of the Irish Human Rights Commission and the Equality Authority and established in their place a new body, the Irish Human Rights and Equality Commission (IHREC). The IHREC has five core functions: (1) to protect and promote human rights and equality; (2) to encourage the development of a culture of respect for human rights, equality, and intercultural understanding; (3) to promote understanding and awareness of the importance of human rights and equality; (4) to encourage good practice in intercultural relations and promote tolerance and acceptance of diversity and respect for the freedom and

*  Legal Researcher, Law Reform Commission of Ireland. The views expressed in this report are those of the author and not the Law Reform Commission. 1  O’Keeffe v Ireland, Application no 35810/09 (ECtHR, 28 January 2014). 2  The People (DPP) v Gormley, The People (DPP) v White [2014] IESC 17.

138  The Irish Yearbook of International Law 2014 dignity of each person; and (5) to work towards the elimination of human rights abuses, discrimination and prohibited conduct.3 The Act also lists a number of additional functions to aid in the furtherance of the core functions, including, to provide information to the public in relation to human rights and equality, to keep the law under review as it relates to the protection of human rights and equality, to make recommendations to the Government on measures which could be taken to strengthen human rights and equality, to consult with bodies or agencies within the field of human rights and equality, to undertake educational activities and to conduct inquiries.4 Section 12 of the Act provides that the Commission shall consist of no more than 15 and no fewer than 12 members, including a Chief Commissioner.5 Appointments are to be made by the President and Commissioners are to hold office for a period not exceeding five years. The Commission is required to hold as many meetings in a year as may be necessary to fulfil its functions, but at a minimum, it must meet every three months. The Act also amends the European Convention on Human Rights Act 2003 by inserting section 3A which allows a person, in respect of whom a finding has been made by the High or Supreme Court that he/she has been deprived of his/her liberty as a result of a judicial act, to institute proceedings in the Circuit Court to recover compensation for any loss, injury or damage suffered.6 Compensation can only be granted for actual injury, loss or damage, and the Circuit Court is required to take into account the principles and practice of the ECtHR in relation to affording just satisfaction under Article 41 of the European Convention on Human Rights (ECHR).7 HUMAN RIGHTS IN THE SUPERIOR COURTS

Gormley and White: Right of Access to Legal Advice The key questions considered in The People (DPP) v Gormley and The People (DPP) v White,8 concerned whether the right to legal advice, which forms part of the constitutional right not to be tried on any criminal charge save in due course of law, extends to an entitlement to legal advice before the commencement of any interrogation and before any samples are taken for the purposes of forensic examination. Gormley was convicted of attempted rape and White was convicted of murder in the Central Criminal Court and appealed to the Court of Criminal Appeal. Both had been arrested at times when access to a lawyer would potentially be more difficult: Gormley was arrested on a Sunday and White arrested early in the morning, and in both cases material evidence was gathered after a request for a solicitor was made but before the relevant solicitor arrived. These

3 

Irish Human Rights and Equality Commission Act 2014, s 10(1). Ibid, s 10(2). 5  There are currently 15 members of the Commission including the Chief Commissioner. On 31 October 2014, Emily Logan was appointed to this role. See www.ihrec.ie/about/the-commission.html (accessed 20 October 2015). 6  European Convention on Human Rights Act 2003, s 3A (1) as inserted by s 54 of the Irish Human Rights and Equality Commission Act 2014. 7  Ibid, s 3A (3). 8  Gormley and White (n 2). 4 

Correspondent Reports—O’Regan 139 circumstances formed the basis for each of their appeals. Gormley and White’s applications were both rejected, so they sought further appeal to the Supreme Court under section 29(2) of the Courts of Justice Act 1924, which enables an appeal where the ­decision involves a point of law of exceptional public importance.9 On 16 February 2011, the Court of Criminal Appeal certified two questions in relation to Gormley’s case, asking firstly whether the constitutional right of access to legal advice requires that commencement of questioning be postponed for a reasonable period of time to enable the solicitor who has been requested by the suspect, the opportunity to attend at the Garda station, and secondly whether this right is vindicated where members of the Gardaí do not postpone the questioning in such circumstances.10 On the 16 February 2012, the Court certified a question relating to White’s case, asking whether Gardaí are obliged not to take or cease taking any forensic samples where a person in custody has requested a solicitor until the solicitor has indicated that he/she will attend to protect the right of access to a solicitor.11 Two subsequent grounds were later added to White’s case relating to a District Court warrant and fingerprint evidence, respectively.12 At the outset, the Supreme Court emphasised the difference between the two cases: Gormley’s case related to statements made to the Gardaí, while White’s case involved ‘objective forensic evidence’ in the form of mouth swabs and hair samples which the Court felt involved different considerations.13 Nonetheless, ‘one major common question’ arose in both cases: whether material evidence procured after an accused has been arrested and requested a solicitor, but before the solicitor concerned has arrived, is ­lawful.14 The Court also identified three further key questions concerning the relationship between the Constitution and the ECHR. The ECtHR had recognised that the right to protection against self-incrimination is breached where a person makes an incriminating statement without the benefit of legal advice, where the entitlement to advice has not been waived and that statement forms a substantial part of the evidence leading to their conviction.15 Thus, the first additional question was whether the interpretative obligation imposed on the Irish courts under section 2 of the European Convention on Human Rights Act 2003 is such that Irish law must be interpreted as preventing the use of statements made or evidence of samples taken during a period between a request for a solicitor being made and the attendance of the solicitor concerned. The second question then was whether the right to a trial in due course of law recognised in Article 38.1 of the Constitution included a right to legal advice before a suspect is interrogated and/or before forensic samples are taken from the suspect. The final question related to whether any distinction arose either under the ECHR or the Constitution between cases of interrogation and cases involving the taking of objective forensic samples.16

9  Gormley and White (n 2), para 2.4 (Judgment of Clarke J), s 29(2) of the Courts of Justice Act 1924 (as substituted by s 22 of the Criminal Justice Act 2006). 10  Gormley and White (n 2), para 2.5. 11  Gormley and White (n 2), para 2.6. 12  Gormley and White (n 2), para 2.7. 13  Gormley and White (n 2), paras 2.8–2.9. 14  Gormley and White (n 2), para 2.10. 15  Salduz v Turkey (2009) 49 EHRR 19. 16  Ibid, para 2.11.

140  The Irish Yearbook of International Law 2014 The Supreme Court first considered the case in light of the Constitutional right of access to legal advice. Of particular relevance was The People (DPP) v Buck17 which involved an accused who had been arrested on a Sunday and was questioned a number of times before his solicitor arrived. Here, the Supreme Court stated that as long as the Gardaí made ‘bona fide attempts’ to comply with the detained person’s request for a solicitor then the admissibility of any statements made before that solicitor arrived should be decided by the trial judge as a matter of discretion in light of common law principles of fairness to the accused and public policy.18 The Court felt that such an approach was preferable to a strict exclusionary rule. In relation to the taking of samples without the presence of a solicitor, the Supreme Court noted The People (DPP) v Creed,19 where the Court of Criminal Appeal followed a similar approach to the Supreme Court in Buck, holding that where reasonable efforts have been made to contact a solicitor and no deliberate and conscious violation of the constitutional right of access to a solicitor has taken place, then the question of whether the evidence should be admitted becomes a matter for the discretion of the trial judge.20 The Supreme Court then turned to the jurisprudence of the ECtHR, discussing Salduz v Turkey,21 where the ECtHR set out important principles relating to post-arrest rights. In Salduz, the accused was interrogated by police in the absence of a lawyer and made a number of admissions which he later claimed were untrue and made under duress. He was convicted based on this evidence and brought his case to the ECtHR claiming that his right to legal assistance under Article 6 § 3(c) had been violated. The Court held that Article 6 (particularly Article 6(3)) would apply to pre-trial proceedings if the fairness of the trial is likely to be seriously prejudiced by failure to comply with Article 6 during the pre-trial process.22 The ECtHR also emphasised that the right to be effectively defended by a lawyer is ‘one of the fundamental features of a fair trial’.23 However, it is left to the Contracting States to determine the means of ensuring that this right is safeguarded.24 The ECtHR went on to underline the importance of the investigation stage and noted that the accused ‘often finds himself in a particularly vulnerable position at that stage of the proceedings’ and in most cases this vulnerability can only be properly compensated for by the assistance of a lawyer.25 The ECtHR also noted that the right to legal advice is a fundamental safeguard against ill-treatment and any exceptions to this right have to be clearly circumscribed and limited particularly where serious charges are involved. Thus, the ECtHR concluded that for the right to a fair trial to remain practical and effective, ‘access to a lawyer should be provided as from the first interrogation of the suspect by the police’, unless there are compelling reasons in the circumstances of the case to restrict this right.26

17 

People (Director of Public Prosecutions) v Buck [2002] 2 IR 268. Gormley and White (n 2), para 5.3. People (Director of Public Prosecutions) v Creed [2009] IECCA 90. 20  Gormley and White (n 2), para 5.6. 21  Salduz v Turkey (n 15). 22  Salduz v Turkey (n 15), para 50. 23  Salduz v Turkey (n 15), para 51. 24  Salduz v Turkey (n 15), para 51. 25  Salduz v Turkey (n 15), para 51. 26  Salduz v Turkey (n 15), para 55. 18  19 

Correspondent Reports—O’Regan 141 In addition, the Supreme Court noted Cadder v Her Majesty’s Advocate where the UK Supreme Court concluded that based on Salduz, Contracting States are under an obligation ‘to organise their systems in such a way as to ensure that unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police ­questioning’.27 The Court also cited Saunders v United Kingdom where the ECtHR distinguished between admissions made prior to access to a lawyer and objective evidence such as samples taken before such access, stating that the right not to incriminate oneself ‘does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers’ including the taking of ­samples.28 However, where such evidence is acquired through forcible or highly intrusive methods where less invasive means were available to the investigating authorities, this might amount to a breach of Article 3 (Jalloh v Germany).29 The Court also considered jurisprudence from other common law countries, observing that there appears to be a clear international view, that there is, at a minimum, an obligation in most circumstances (possibly subject to some exceptions) on investigating police to refrain from interrogating a suspect at a time after the suspect has requested a lawyer and before that lawyer has arrived to advise the suspect concerned.30

The Supreme Court then proceeded to examine the key questions arising in the two cases. The first question was whether the right to a trial in due course of law under Article 38.1 of the Constitution included a right to legal advice prior to interrogation and/or prior to the taking of forensic samples. The Court clarified that such a right had not been recognised to date and that its recognition would be ‘a significant development in the jurisprudence in this area’.31 Thus, the issue for the Court was whether any part of the investigative process formed part of a trial in due course of law. The Court stated that the arrest stage is ‘an important juncture in any criminal process’32 as the coercive power of the State has been exercised against the suspect and he or she has been deprived of his or her liberty. The Court held that it is thus ‘proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage’ and that the ‘basic fairness of process’ identified in State (Healy) v Donoghue33 applies from the time of arrest of the suspect.34 The Court emphasised that this requirement does not necessarily mean that all of the rights an accused is entitled to at trial apply at this stage, yet ‘the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law’.35 The second question the Court had to consider was whether this requirement of basic fairness extended to an entitlement not to be interrogated without having first had access

27 

Cadder v Her Majesty’s Advocate [2010] UKSC 43. Saunders v United Kingdom (1996) 23 EHRR 313. 29  Jalloh v Germany (2006) 44 EHRR 67. 30  Gormley and White (n 2), para 7.11. 31  Gormley and White (n 2), para 8.4. 32  Gormley and White (n 2), para 8.8. 33  State (Healy) v Donoghue [1976] IR 325. 34  Gormley and White (n 2), para 8.8. 35  Gormley and White (n 2), para 8.8. 28 

142  The Irish Yearbook of International Law 2014 to legal advice and/or not to have forensic samples taken without such access. The Court considered the interrogation issue, which formed the basis of Gormley’s case, first. Once again, the Court highlighted that the international position, including that of the ECtHR was that any entitlement to have access to a lawyer before questioning, carries with it an entitlement not to be interrogated after a request for a lawyer is made and before the lawyer is present.36 The Court held that this position also applies under Article 38.1. It was stressed that the legal advice received before questioning is among the most important and that the right of a detainee to have a lawyer present while in custody would be significantly diluted if questioning could take place before the lawyer’s arrival. Thus, the Court concluded that the need for basic fairness required under Article 38.1 includes, ‘at least in general terms and potentially subject to exceptions, an entitlement not to be interrogated after a request for a lawyer has been made and before that lawyer has become available to tender the requested advice’.37 Importantly, the Supreme Court also held that the position of the ECtHR and the US Supreme Court in relation to the securing of a conviction of a person by placing significant reliance on admissions made in the course of questioning which occurred in the absence of advice from a lawyer in breach of the suspect’s entitlements, leads to the trial being an unfair one, also applies under the Constitution.38 The Court accepted that there may be limits on entitlement to have a lawyer present before questioning takes place following an arrest, but that these did not apply in the present case as a clear request for a lawyer was made and the lawyer arrived expeditiously. The Court also stressed that the right to legal advice before interrogation ‘is an important constitutional entitlement of high value’ and that only ‘exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life’ would justify any exceptions to the right.39 In addition, it was emphasised that the right is designed to support other constitutional rights, namely the rights against self-incrimination and the right to a fair trial.40 Thus, the Court held that Gormley’s constitutional right to a trial in due course of law was breached because material evidence on foot of which he was convicted was evidence obtained during questioning which occurred after he had requested legal advice and before that legal advice had been obtained.41 As Gormley’s case was decided on the constitutional issue, it was unnecessary for the Court to consider whether he would have succeeded under the ECHR. The Court then considered the forensic samples issue which formed the central element of White’s case. The Court began by stating that different considerations apply to forensic testing compared to admissions as the results of the former are objective. In addition, where authorities are entitled to take forensic samples, do so in accordance with the relevant laws, and samples are taken in a minimally obtrusive way, then no breach of the right to fair process occurs.42 This position is consistent with the ECHR. Thus, the Court was satisfied that the mere fact that otherwise lawful forensic samples are taken without the presence of a lawyer does not render the subsequent trial (relying on such 36 

Gormley and White (n 2), para 9.1. Gormley and White (n 2), para 9.2. 38  Gormley and White (n 2), para 9.12. 39  Gormley and White (n 2), para 9.14. 40  Gormley and White (n 2), para 9.15. 41  Gormley and White (n 2), para 9.17. 42  Gormley and White (n 2), para 10.2. 37 

Correspondent Reports—O’Regan 143 samples) unfair, where reasonable steps have been taken to gain access to the lawyer.43 The Court noted that the situation might be different where the suspect had ‘genuine legal choices available in respect of the taking of samples and where it would be necessary for the suspect concerned to have access to legal advice to make such choices’.44 However, that was not the case for White who was required as a matter of law to submit to the relevant forensic testing. Therefore, the Court was satisfied that there is a distinction, for the reasons and in the circumstances set out in the judgment, between the entitlement to legal advice prior to interrogation and the lack of such an entitlement in the case of mandatory, non-obtrusive taking of forensic samples.45 The Court felt that ‘absolute clarity’ should be ensured as to this difference which may require specific regulation to ensure no confusion exists for suspects.46 The final question the Court had to consider was whether incorrect statements made by the Gardaí indicating that White had a choice as to whether to give the samples affects the validity of his conviction.47 However, the Court held that as White had a legal obligation to provide the samples, refusal of which would constitute a criminal offence, the issue of legal advice did not arise.48 Furthermore, the incorrect statements made by the Gardaí did not have any impact on the fairness of White’s trial as the error they made actually benefitted rather than disadvantaged him. The fairness of the trial would only have been affected if White had actually declined to give a sample based on the statements, which did not occur. Having dealt with White’s case under the Constitution, the Court then briefly considered the ECHR. However, as ECtHR jurisprudence provided that the taking of objective forensic samples without the benefit of legal advice did not amount to a breach of the right against self-incrimination and thus to an unfair trial, White’s appeal was dismissed under both the Constitution and the Convention on the principal point.49 The Court went on to dismiss White’s appeal on the two further points concerning the validity of the warrant50 and the fingerprint evidence.51 CA and TA v The Minister for Justice and Equality, The Minister for Social Protection, Attorney General and Ireland: Challenge to Direct Provision CA and TA52 concerned a challenge to the controversial direct provision system. The applicants were a mother and son from Uganda who unsuccessfully applied for refugee status and were awaiting decision on their subsidiary protection applications. The applicants brought judicial review proceedings in respect of the absence of formal permission to be

43 

Gormley and White (n 2), para 10.3. Gormley and White (n 2), para 10.6. Gormley and White (n 2), para 10.7. 46  Gormley and White (n 2), para 10.7. 47  Gormley and White (n 2), para 10.8. 48  Gormley and White (n 2), para 10.9. 49  Gormley and White (n 2), paras10.12–10.13. 50  Gormley and White (n 2), para 11.21. 51  Gormley and White (n 2), para12.8. 52  CA and TA (A Minor Suing through his Mother and Next Friend CA) v The Minister for Justice and Equality, The Minister for Social Protection, Attorney General and Ireland [2014] IEHC 532. 44  45 

144  The Irish Yearbook of International Law 2014 in the State during the subsidiary protection process, unlawful procedures for determining subsidiary protection and the prohibition on employment and receipt of social welfare. However, as the High Court identified, the key focus of the case was on the alleged illegality of the direct provision system. The nature of the proceedings meant that the Court could not make a finding of fact as to whether direct provision creates negative effects as the first applicant claimed it did. Resolving this dispute between the parties would have involved cross examination of the respondents, as well as expert evidence on the effects of direct provision, but as judicial review rather than a plenary hearing was sought, this was not possible in the case.53 The Court was thus left with three issues to determine: whether direct provision either in part or cumulative effect breaches the fundamental rights of the applicants, whether Article 15.2 of the Constitution is breached because direct provision is an administrative scheme without legislative basis (other than the prohibitions on work and social welfare) and finally, whether the weekly cash payment (the Direct Provision Allowance) is ultra vires the Social Welfare Consolidation Act 2005 or otherwise unlawful.54 The Court considered the human rights issue first. The applicants claimed that the direct provision scheme breached Articles 40.3, 41 and 42.1 of the Constitution, as well as Articles 3, 8 and 14 ECHR and Article 2 of the Fourth Protocol of the ECHR.55 This claim was based on the ‘severe financial constraints and pressures’ faced by the first applicant, the unsuitable and inadequate living/accommodation arrangements, the lack of autonomy and control over the everyday functioning of the family including with respect to their diet and food arrangements and requirements, as well as regards the appropriate upbringing and nurturing of the minor Applicant, the restrictions and rules they face with respect to their place of residence and movement, together with the denial of the first named Applicant of the right and ability to provide for and support her child by way of employment.56

Emphasis was also placed on the length of time spent in direct provision, which the first applicant claimed contributed in significant part to the alleged harm she and her son suffered through their involvement with the system. Although the Court stated that it struggled with the applicants’ human rights claim as it lacked specificity, it nonetheless identified five key human rights issues for determination: —— Is direct provision a form of inhuman and degrading treatment? —— Are there particular aspects of direct provision which breach particular human rights? —— Does direct provision because of cumulative effects violate the applicants’ right to respect for private and family life? —— Does direct provision breach rights due to the length of exposure to the regime? —— Finally, is the EU Charter of Fundamental Rights applicable to the case?57

53 

Ibid, para 5.3. CA and TA (n 52), para 6.1. 55  CA and TA (n 52), para 6.5. 56  CA and TA (n 52), para 6.6. 57  CA and TA (n 52), para 6.9. 54 

Correspondent Reports—O’Regan 145 The Court considered each of these issues in turn. The applicants claimed that direct provision is a form of inhuman and degrading treatment contrary to Article 3 ECHR and Article 40.3 of the Constitution. The Court examined ECtHR jurisprudence on Article 3, including MSS v Belgium and Greece58 where the ECtHR established that a violation of Article 3 will follow ‘once compelling facts which demonstrate a minimum level of severity are proved’ and that ‘no additional evidence proving the negative effects of those facts is required in order to answer the legal question as to whether those facts amount to inhuman and degrading treatment.’59 In MSS, the circumstances of the applicant’s detention while he sought asylum were ‘appalling’ as he was detained in overcrowded and extremely filthy conditions and suffered physical abuse.60 Thus, the facts of MSS were ‘in sharp contrast’ to the present case where no ‘startling examples of physical or mental abuse’ were present.61 For treatment to be regarded as inhuman, it must have been ‘premeditated, applied for hours at a stretch and caused either actual bodily injury or intense mental suffering’ which the applicants failed to prove.62 The applicants also failed to prove that direct provision amounted to ‘degrading’ treatment which involves treatment that ‘humiliates or debases an individual’ or diminishes his/he dignity or ‘arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’63 The Court thus rejected the inhuman and degrading treatment claim based on reference to the ECHR, but stated that its conclusion would have been the same if the analysis had been based on the Constitution.64 The second human rights issue related to whether any particular aspects of direct provision breached particular human rights. The applicants claimed that a number of features of direct provision breached Article 8 ECHR, including the daily registration requirement, the requirement to provide notification of any proposed absence, the rule against having guests in rooms, and unannounced searches of rooms with or without permission. The Court held that while the direct provision centres are entitled to carry out room inspections, the respondents failed to establish the need for such inspections to be unannounced. The principle of proportionality requires as little interference with the right as possible and the inspections regime went ‘well beyond what is necessary to reduce risks to persons living in the communal environment’ and amounted to a breach of Article 8 and the constitutional right to privacy.65 The Court also felt that the daily sign in requirement, the requirement to notify intended absence, and the prohibition on guests amounted to unjustified and disproportionate interferences with the applicants’ right to respect for private and family life. The Court rejected the respondent’s argument that a wide margin of appreciation is permitted in this area, stating that regulating such centres does not involve ‘sensitive or difficult problems which balance deeply held rights and views of different parts of the community such as would justify a wide margin of appreciation.’66 The Court also considered the applicant’s claim that the complaints

58 

MSS v Belgium and Greece Application no 30696/09 (ECtHR, 21 January 2011). CA and TA (n 52), para 7.13. 60  CA and TA (n 52), para 7.14. 61  CA and TA (n 52), para 7.21. 62  CA and TA (n 52), para 7.23. 63  Pretty v the United Kingdom, Application no 2346/02 (ECtHR, 29 April 2002). 64  CA and TA (n 52), para 7.27. 65  CA and TA (n 52), para 8.8. 66  CA and TA (n 52), para 8.13. 59 

146  The Irish Yearbook of International Law 2014 procedure connected to accommodation centres lacks independence, as the Reception and Integration Agency (RIA) is both the author of the relevant House Rules and the final arbiter of disputes between residents and the centres. The Court held that it was ‘not appropriate’ for the RIA to decide on any disputes based on the rules that it had written, and that there was ‘no compelling reason why RIA must be the final complaints body for residents’.67 The applicants thus succeeded on this aspect of their claim as well. The third issue related to whether the cumulative effects of direct provision violated the applicants’ right to respect for family and private life. The applicants claimed that their private and family rights required the State to provide accommodation of a certain standard. However, the Court noted that no free standing right to food and accommodation existed in Irish or international law, but rather was an element of the right to make an application for protection. The Court continued by stating that the obligation to provide food and shelter did not preclude the State from doing so on a communal basis.68 The Court held that while communal living does interfere with privacy, it is justified and lawful so long as no injury is caused.69 Thus, the Court held that the general interferences caused by direct provision, as opposed to the specific matters addressed above, are unavoidable and thus are justified and proportionate.70 Unavoidable interferences only cause a breach of rights where actionable harm is proven, which the applicants had not done. In relation to the cumulative effects of direct provision on family life, the Court considered that the central claim was that the ‘alleged abnormality in which this family reside is a breach of their Article 8 and Constitutional rights’.71 However, the Court felt that the applicants had not provided sufficient evidence to prove this claim, and should have done more to ‘persuade the Court as to the negative psychological effects of such an environment’.72 Thus, while the Court was inclined to believe that direct provision ‘is not an ideal environment for rearing children’, it did not feel like it could ‘assume the skill and knowledge of a psychologist’ to make conclusions about the suitability of the system for children.73 The fourth issue concerned whether the length of exposure to direct provision breached human rights. The Court stated that it found this aspect of the applicants’ case ‘to be somewhat evanescent’ as the applicants had not stated clearly which rights they claimed had been breached.74 At the time the proceedings commenced, the first applicant had been living in direct provision for three and a half years. The Court noted that the applicants’ direct provision experience could have concluded some two years before the present proceedings were commenced if the asylum and subsidiary protection applications had been handled together as is the case in every other EU State.75 Although the Court went on to dismiss this aspect of the applicants’ claim based, once again, on the failure to prove harm or negative effects, it nonetheless stated

67 

CA and TA (n 52), para 8.16. CA and TA (n 52), para 9.7. 69  CA and TA (n 52), para 9.7. 70  CA and TA (n 52), para 9.10. 71  CA and TA (n 52), para 9.18. 72  CA and TA (n 52), para 9.19. 73  CA and TA (n 52), para 9.19. 74  CA and TA (n 52), para 10.2. 75  CA and TA (n 52), para 10.6. 68 

Correspondent Reports—O’Regan 147 the interests of justice require the State, which has opted for a system of ‘direct provision’ and which has opted to separate the asylum application procedure from the subsidiary protection procedure, to provide relief from the harmful effects of ‘direct provision’ if harm is proved.

The Court also stated that ‘[u]nduly lengthy exposure to direct provision may well be injurious and thus unlawful’.76 The final human rights issue related to whether the EU Charter on Fundamental Rights had any application in the case. The Court held that as the Charter only applies when a Member State is implementing Union law, it did not apply here: the ‘manner in which Ireland provides material support to protection applicants is not any form of implementation of Union law’.77 The Court then considered the applicants’ claim that the Direct Provision Allowance is a disguised social welfare payment and thus ultra vires the Social Welfare Consolidation Act 2005. The Court rejected this argument on its merits, but also held that the applicants did not have standing to challenge the legality of the allowance as they are not injured by the fact that the payment is, as they claimed, ultra vires or otherwise in breach of the social welfare code.78 The final argument considered by the Court revolved around Article 15.2.1. The applicants claimed that as direct provision lacked a legislative basis, it breached this Article. The Court found that the applicants had not submitted any authority in support of their claim that, when State action affects fundamental human rights, legislation is required and executive action alone is prohibited.79 The applicants attempted to argue that the legislature abdicated its powers to the executive, but this was rejected as the Oireachtas could only be said to have abdicated its powers if there had been legislation in place requiring the particular issue to be governed by statutory instrument. Rather than doing this, the relevant Minister established an administrative scheme instead.80 However, in this case, the Oireachtas had never legislated for the reception conditions of protection applicants and had never ‘established principles and policies governing the area and indicated that the executive may regulate the area by Statutory Instrument’.81 The Court also rejected the implicit suggestion in the applicants’ argument that the executive can only act as mandated by the legislature, stating that this ‘cannot be correct and would lead to a perverse result’.82 The Court emphasised that branches of government are equal and that ‘the mere fact that “direct provision” could have been placed on a legislative footing does not mean that this must happen’.83 The Court concluded its judgment by adjourning the application seeking nominal damages pursuant to section 3 of the European Convention on Human Rights Act 2003.84

76 

CA and TA (n 52), para 10.8. CA and TA (n 52), para 11.9. 78  CA and TA (n 52), para 13.23. 79  CA and TA (n 52), para 14.13. 80 See O‘Neill v The Minister for Agriculture [1988] 1 I.R. 539. 81  CA and TA (n 52), para 14.17. 82  CA and TA (n 52), para 14.18. 83  CA and TA (n 52), para 14.25. 84  CA and TA (n 52), para 15.2. 77 

148  The Irish Yearbook of International Law 2014 PP v HSE: Right of Mother to a Dignified Death v Right to Life of Unborn PP v HSE85 again highlighted the effects of Article 40.3.3 of the Constitution. PP was the father of NP, who had suffered brain stem death shortly after being admitted into hospital. She was 15 weeks pregnant at the time. However, the hospital continued to sustain NP’s life, with the intention of doing so for the duration of her pregnancy, against the wishes of PP and the father of NP’s unborn child. The hospital doctors felt that this was legally required as the unborn child still had a heartbeat. Thus, PP sought a declaration from the High Court that this medical treatment be discontinued as there was no reasonable prospect that the unborn child would survive and he wanted his daughter to have a dignified death. This case was remarkable because it was decided almost entirely on the right to life of the unborn rather than equal consideration being given to the rights of the mother. The High Court heard from a range of medical experts who confirmed that the unborn child had no reasonable prospect of survival as the gestation was insufficiently advanced, the woman’s body was seriously infected, and her blood pressure was very high. The medical experts also confirmed that the somatic care being provided was experimental and that there were no successful cases where such support began at so early a stage of the pregnancy. Thus, one expert described the case as ‘an absolutely extraordinary one’ and said that to continue with the treatment would be ‘going from the extraordinary to the grotesque’.86 In assessing the medical evidence, the Court concluded that it ‘goes one way only, and that is to establish that the prospects for a successful delivery of a live baby in this case are virtually non-existent’.87 The Court thus found as a fact that the unborn child would not be born alive and furthermore that continuing the somatic support would be likely to ‘cause distress to the unborn child in circumstances where it has no genuine prospect of being born alive’ which would be ‘a distressing exercise in futility for the unborn child’.88 The Court then proceeded to examine the applicable legal principles, beginning with the application of Article 40.3.3 to the case. Counsel for the unborn argued that ­Article 40.3.3 was applicable because as NP had died, the rights of the unborn child should take precedence over the grief of the family and NP’s entitlement to a death with dignity. Thus, there were no ‘equal rights’ to life to be balanced; rather the overriding obligation was to vindicate the right to life of the unborn as far as practicable.89 ­However, counsel for the plaintiff argued that Article 40.3.3 was not engaged as its objective is to ‘copper fasten the protection provided in the statutory regime which outlaws the procuring of a miscarriage’,90 ie it was limited to deliberate interference with the unborn so as to procure a miscarriage. The Court held that the Article was applicable, but emphasised that the mother’s right to retain dignity in death had to be considered along with the right to life of the unborn. However, the Court then went on to state that:

85 

PP v HSE [2014] IEHC 622. Ibid, para 31. PP v HSE (n 85), para 40. 88  PP v HSE (n 85), para 44. 89  PP v HSE (n 85), para 48. 90  PP v HSE (n 85), para 46. 86  87 

Correspondent Reports—O’Regan 149 when the mother who dies is bearing an unborn child at the time of her death, the rights of that child, who is living, and whose interests are not necessarily inimical to those just expressed, must prevail over the feelings of grief and respect for a mother who is no longer living.91

Thus, the question that had to be considered was how far the Court should go in trying to vindicate the right to life of the unborn in the circumstances of the present case.92 The Court noted In re a Ward of Court,93 where the High Court held that although the right to life ranked first in the hierarchy of rights, it was not absolute and that respecting life also involved ensuring dignity for the dying and ‘[a] view that life must be preserved at all costs does not sanctify life’.94 The Court also referred to the general principle regarding withdrawal of life support stated in Airedale NHS Trust v Bland, which provides that where a responsible doctor comes to the reasonable conclusion that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person.95

Re A (A Minor) was also noted, where an order was granted to disconnect a ventilator from a child who was brain dead as it was found to be ‘wholly contrary’ to the interests of the child ‘for his body to be subjected to the continuing indignity to which it was currently subject’.96 The question then for the Court to resolve was if the measures being used to maintain the bodily functions of the mother in this case are continued there is a realistic prospect that the child will be born alive. The Court noted relevant medical journal articles on the subject, which concluded that maternal somatic support should not be maintained where there is no realistic prospect of delivery of a live baby. The Court then stated that in cases where the High Court is exercising its wardship functions and had to consider whether to withdraw life support, then the best interests principle is to be employed, which requires that ‘the paramount and principal consideration must be the best interests of the child’.97 The Court thus concluded that a necessary part of vindicating the right to life of the unborn in this jurisdiction involves enquiring as to the practicality and utility of continuing life support measures. In this respect, the Court stated that in this case ‘the unfortunate unborn has suffered the dreadful fate of being present in the womb of a mother who has died, and in which the environment is neither safe nor stable, and which is failing at an alarming rate’.98 The evidence of the medical witnesses, that there was no real prospect of maintaining stability in the mother’s condition for the duration of the pregnancy so that a live birth would be possible, was accepted. Furthermore, the Court noted that the ‘somatic support being provided to the mother is being maintained at hugely destructive cost to both her remains and to the feelings and sensitivities of her family and loved ones’99 and that to maintain such support would ‘deprive her of dignity

91 

PP v HSE (n 85), para 56. PP v HSE (n 85), para 57. 93  In re a Ward of Court (Withholding Medical Treatment) (No 2) [1996] 2 IR 79. 94  Ibid, para 58. 95  Airedale NHS Trust v Bland [1993] AC 789. 96  Re A (A Minor) [1993] 1 Med L Rev 98. 97 Quoting SR (A Ward of Court) [2012] 1 IR 305 at 323. 98  PP v HSE (n 85), para 65. 99  PP v HSE (n 85), para 65. 92 

150  The Irish Yearbook of International Law 2014 in death and subject her father, her partner and her young children to unimaginable distress in a futile exercise which commenced only because of fears held by treating medical specialists of potential legal consequences’.100 The Court thus ordered the withdrawal of the somatic support being provided to the mother as this was in the best interests of the unborn child.101 IRELAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

O’Keeffe v Ireland In 2014, the Grand Chamber of the ECtHR delivered its highly significant judgment in the case of O’Keeffe v Ireland,102 concluding that by failing to put in place an effective regulatory framework of protection between the State and primary school children, ­Ireland was in breach of Articles 3 and 13 of the ECHR. In 1973, the applicant suffered sexual abuse by a teacher (LH) while she was a pupil at Dunderrow National School. After a number of other allegations of abuse were made against him, LH eventually resigned and moved to another National School where he remained until his retirement in 1995. In 1996, the applicant was contacted by the Gardaí who were investigating abuse claims against LH. In 1997, she made a statement to the Gardaí. LH was eventually charged with 386 criminal offences of sexual abuse involving several former pupils. In 1998, he pleaded guilty to 21 sample charges and was sentenced to imprisonment. In October 1998, the applicant applied to the Criminal Injuries Compensation Tribunal and obtained an award of over €44,000. She also initiated civil proceedings in September 1998 against LH, the Minister for Education, Ireland and the Attorney General. Her case against the State Defendants had three elements: relating firstly to negligence by the State in relation to examination and supervision of the school and failing to put in place effective measures to protect from, and to cease, the systematic abuse perpetrated by LH since 1962; secondly, she claimed the State was vicariously liable for the abuse; and finally, she made a claim for breach of her constitutional rights to bodily integrity and education. The applicant obtained judgment in default against LH and was awarded over €305,000 in damages. As LH did not have the means to make the payments, the applicant successfully brought enforcement proceedings against him. She had been awarded approximately €31,000 by the time of the ECtHR proceedings. The applicant’s case against the State Defendants failed, so she appealed to the Supreme Court on the vicarious liability issue alone. However, the Supreme Court dismissed her appeal in June 2006. The applicant claimed that the State failed to protect her from sexual abuse by a teacher in her National School and that she did not have an effective remedy in that regard.103 She invoked Article 3 (alone and with Article 13), Article 8 and Article 2 of Protocol 1 (these latter Articles she invoked alone and in conjunction with Article 14). Before considering

100 

PP v HSE (n 85), para 66. PP v HSE (n 85), para 67. 102  O’Keeffe (n 1). 103  O’Keeffe (n 1), para 97. 101 

Correspondent Reports—O’Regan 151 the merits of her application, the Court had to consider two preliminary issues. Firstly, the Irish Government claimed that the applicant had not exhausted domestic remedies as she should not have abandoned her core negligence complaint after the High Court case. The Court rejected this claim, stating that the case law of the Court establishes that an applicant is entitled to choose one feasible domestic remedy over another and so the applicant was permitted to choose the vicarious liability claim over the other claims. Secondly, the Government argued that the applicant had lost her victim status as she had been granted awards by the Criminal Injuries Compensation Tribunal and the High Court. The Court also rejected this claim, recalling that a favourable decision or measure is not sufficient to deprive an applicant of victim status unless the national authorities have acknowledged either expressly or in substance the breach of the Convention and then afforded redress.104 This had not occurred in the present case as firstly, neither LH’s criminal conviction nor the damages award against him concerned State responsibility105 and secondly, only approximately 10 per cent of the damages awarded in the High Court had been recovered. The Court then proceeded to consider the merits of her application. The Court addressed the Article 3 claim first. The applicant’s core complaint was that the State had violated its positive obligations under Article 3 by failing to put in place an adequate legal framework of protection for children from sexual abuse. The Court began by acknowledging that any State responsibility had to be assessed in light of the facts and standards of 1973.106 The Court emphasised that Article 3 ‘enshrines one of the most fundamental values of democratic society’, and that this Article, in conjunction with Article 1 of the Convention, ‘requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment’.107 This positive obligation has been interpreted in such a way as to not impose an excessive burden on the State, so that not every risk of ill-treatment requires measures to be taken to prevent that risk from materialising. Nonetheless, the Court held that required measures ‘should at least provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill-treatment of which the authorities should have had knowledge’.108 In addition, the positive obligation assumes ‘particular importance in the context of the provision of an important public service such as primary education’ with school authorities under the obligation to protect the health and wellbeing of pupils, ‘particularly young children who are especially vulnerable and are under the exclusive control of those authorities.’109 Thus, the fundamental nature of the rights guaranteed under Article 3, combined with the vulnerability of children, meant that the State had an inherent obligation to ‘ensure their protection from ill-treatment, especially in the primary education context’ through adopting effective measures. The Court also held that this obligation applied in 1973, referring to the obligations that existed under international instruments, requiring States to take measures for the protection of children and the fact that the Court itself had recognised this positive obligation in relation to child protection in its case law by this time.110 104 

O’Keeffe (n 1), para 115. O’Keeffe (n 1), para 118. O’Keeffe (n 1), para 143. 107  O’Keeffe (n 1), para 144. 108  O’Keeffe (n 1), para 144. 109  O’Keeffe (n 1), para 144. 110  O’Keeffe (n 1), para 147. 105  106 

152  The Irish Yearbook of International Law 2014 As to the content of the positive obligation, the Court stressed the need for suitable criminal laws in this area, and that detection and reporting mechanisms exist to ensure that the criminal law is effective.111 The Court clarified that there was no evidence of an operational failure to protect the applicant, as until the complaint was made in 1995, the State neither knew nor ought to have known that LH posed a risk to the applicant.112 It was also emphasised that it was not necessary to show that ‘but for’ the State omission the ill-treatment would not have happened; rather, it was sufficient to demonstrate that there was a failure to take ‘reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm’.113 The Court accepted the applicant’s claim that the State cannot absolve itself of its obligations to children in primary schools by delegating those responsibilities to private bodies or individuals. It also rejected the Government’s claim that the State was released from its obligations because the applicant chose to go to Dunderrow National School, stating that she had no ‘“realistic and acceptable alternative” other than attendance’, as primary education was obligatory and few parents had the resources to pursue the alternatives (fee-paying schools and home-schooling) to National Schools.114 Thus, the question for the Court was whether the State’s framework of laws, particularly its mechanisms for detection and reporting, provided effective protection for children attending a National School against the risk of sexual abuse (a risk which State authorities were aware of in 1973), and thus whether the State fulfilled its positive obligation under the Convention.115 In determining whether the positive obligation was fulfilled, the Court began by noting that it was not disputed that the applicant had been abused and that this ill-treatment fell within the scope of the Convention.116 The parties also had little dispute over the structure of the Irish primary school system, whereby the State provided for education through setting the curriculum, licensing teachers and funding schools, but most primary education was provided by National Schools which were owned by Religious bodies. The Minister for Education therefore did not have any direct management or control of National Schools. Thus, what was in dispute was the resulting liability of the State under domestic law and the Convention.117 It was noted that by the 1970s approximately 91 per cent of National Schools (which represented 94 per cent of all primary schools) were owned and managed by the Catholic Church and that the vast majority of Irish ­children, like the applicant, would have attended their local National School.118 This model of education was ‘entirely sui generis’ and unlike any other system in Europe.119 The Court then noted that by the early 1970s the State was aware of the level of sexual crime against minors through its enforcement of criminal laws on the subject.120 A significant number of prosecutions for such offences had taken place prior to the 1970s, with

111 

O’Keeffe (n 1), para 148. O’Keeffe (n 1), para 148. 113  O’Keeffe (n 1), para 149. 114  O’Keeffe (n 1), para 151. 115  O’Keeffe (n 1), para 152. 116  O’Keeffe (n 1), para 153. 117  O’Keeffe (n 1), para 154. 118  O’Keeffe (n 1), para 157. 119  O’Keeffe (n 1), para 158. 120  Including ss 50 and 51 of the Offences against the Person Act 1861 (as amended) and the Criminal Law (Amendment) Act 1935. 112 

Correspondent Reports—O’Regan 153 the Court referring to statistics included in the 1931 Carrigan Report,121 which illustrated ‘an alarming amount of sexual crime in Ireland’ with a large number of cases concerning children under the age of 10. Similar findings were also evidenced in the Ferriter Report,122 which analysed the criminal court archives during the period after the C ­ arrigan Report up until the 1960s, and the Ryan Report,123 which included evidence of complaints made to State authorities prior to and during the 1970s about the sexual abuse of children by adults. Although the Court acknowledged that the Ryan Report was mainly concerned with Industrial Schools, ‘these earlier complaints still amounted to notice to the State of sexual abuse by adults of minors in an educational context’ and, in any case, the relevant complaints listed in the Report also included National Schools.124 The Court thus held that the State was aware of the level of sexual crime by adults against minors and that by relinquishing control of education to non-state actors this would present a risk to the safety of children requiring protective measures. Such protective measures would require, at a minimum, effective mechanisms for the detection and reporting of ill-treatment by and to the State-controlled body. The Court found that neither reporting processes nor the system of school inspectors were designed to monitor a teacher’s treatment of children or provided for complaints procedures for pupils or parents to complain about a teacher to a State authority. Instead, any complaints were to be made to a non-State manager (generally a local priest). The Court thus held that the mechanisms did not provide effective protection for children.125 The Court considered that the facts of the present case illustrated ‘the consequences of this lack of protection and demonstrate that an effective regulatory framework of protection in place before 1973 might “judged reasonably, have been expected to avoid, or at least, minimise the risk of the damage suffered”’ by the applicant.126 In particular, it was noted that complaints had been made to the Manager about LH in 1971 and 1973 but these were not brought to a State authority; that did not happen until 1995. Thus, the Court stated that ‘[a]ny system of detection and reporting which allowed such extensive and serious ill-treatment to continue for so long must be considered to be ineffective’127 and had action been taken on the complaint in 1971 and LH removed from the school, the applicant would not have been abused. The State was therefore found to have failed in its positive obligation under Article 3 of the Convention.128 The applicant also claimed that the State had not fulfilled its procedural obligations under Article 3, as the ineffective detection and reporting mechanisms meant that the 1971 complaint was not reported and this led to a long delay before the investigation and eventual conviction of LH.129 However, the Court found no violation; as such obligations only arise once the matter has been brought to the attention of the authorities. This did not occur until 1995, at which point the State fulfilled its obligations by investigating the complaint and eventually prosecuting LH. 121  Report of the Committee on the Criminal Law Amendment Acts (1880–1885) and Juvenile Prostitution (1931). 122  Commission to Inquire into Child Abuse, Report by Dr Diarmuid Ferriter (June 2006). 123  Commission to Inquire into Child Abuse, Final Report (May 2009). 124  O’Keeffe (n 1), para 161. 125  O’Keeffe (n 1), para 165. 126  O’Keeffe (n 1), para 166. 127  O’Keeffe (n 1), para 166. 128  O’Keeffe (n 1), para 169. 129  O’Keeffe (n 1), para 170.

154  The Irish Yearbook of International Law 2014 The Court also considered whether there had been a violation of Article 13 in conjunction with the substantive Article 3 claim. In this case, an effective remedy under Article 13 requires a mechanism to be available to establish State liability for Convention breaches which includes the availability of non-pecuniary damages.130 The Court first dismissed the remedies against non-state actors that the Government attempted to rely on, including arguments that the applicant could have sued the non-state actors connected with the National School, and that the conviction against LH offered an effective remedy.131 It also rejected the remedies that the Government argued were available to the applicant against the State, namely, the vicarious liability, negligence and breach of constitutional rights actions, noting that these claims had failed in the Irish courts. Thus, the Court concluded that the applicant did not have access to an effective remedy as regards her complaints under the substantive limb of Article 3 and that this amounted to a violation of Article 13 of the Convention.132 The Court then proceeded to consider the claims under Article 8 and Article 2 of ­Protocol 1 (‘no person shall be denied the right to education’). In relation to Article 8, the applicant claimed that the failure by the State to protect her from sexual abuse violated her physical integrity and that the abuse caused her significant sexual and marital problems. However, the Court noted that the same facts and issues evoked in the Article 3 claim were being relied on in respect of the Article 8 claim, with no separate issues raised. Similarly, the claim under the Protocol also did not give rise to any new issues. The Court thus felt that it was unnecessary to examine these claims as well as the claims relating to Article 14 of the Convention.133 Finally, the Court examined the applicant’s claim for just satisfaction under Article 41 of the Convention. The Court considered that the nature of the serious ill-treatment the applicant was subjected to amounted to ‘serious nonpecuniary damage which cannot be sufficiently compensated by a finding of a violation of the Convention’.134 The Court thus took into account the awards the applicant had already received and awarded the applicant a sum of €30,000 as regards both pecuniary and non-pecuniary loss.135 The applicant was also awarded €85,000 in costs.136 Inadmissible Applications The Court declared a number of Irish applications inadmissible in 2014. In Lynch v Ireland, Whelan v Ireland,137 the applicants were prisoners serving mandatory life sentences for murder. They complained under Article 5 that their continuing detention was unlawful as there was no possibility to raise this matter before an Irish court so as to seek release. They also claimed under Article 6 that the effective power to determine the duration of the sentence lay with the executive as the Minister for Justice and Equality has the power to review cases and grant release. Whelan’s case was rejected 130 

O’Keeffe (n 1), para 177. O’Keeffe (n 1), para 179. 132  O’Keeffe (n 1), para 187. 133  O’Keeffe (n 1), para 195. 134  O’Keeffe (n 1), para 202. 135  O’Keeffe (n 1), para 203. 136  O’Keeffe (n 1), para 209. 137  Lynch v Ireland, Whelan v Ireland, Application nos 70495/10 and 74565/10 (ECtHR, 8 July 2014). 131 

Correspondent Reports—O’Regan 155 by the Court on the basis that he had not lodged his case with the Court within the time limit and thus only Lynch’s case was considered. The Court firstly examined the claim under Article 5 § 1(a) which permits deprivation of liberty on the basis of lawful detention following conviction by a competent court. The Court rejected the applicant’s argument that the life sentence was not wholly punitive, stating that in ‘Ireland a mandatory life sentence for the crime of murder has as its sole purpose the punishment of the offender’138 and that in contrast to the UK, no ‘tariff period’ set by the Minister and which the prisoner must serve exists in Ireland. The Court found that the executive in Ireland has no sentencing power, nor could it under the provisions of the Constitution. Furthermore, the discretionary power of the executive to grant temporary release to a life prisoner is not inconsistent with the solely punitive character of a mandatory life sentence and cannot be said to give rise to any uncertainty as regards the applicant’s legal status. The Court held that, in light of its finding under Article 5(1), it was not necessary to examine the claim under Article 5(4). In relation to Article 6, the applicant contended that the principle of the separation of powers was breached because the Minister had the power to decide the actual length of his sentence. The Court noted that a State’s choice of a specific criminal justice system including sentence review and release arrangements lies outside the scope of its supervision, provided the system does not breach Convention principles. The argument that the Minister had involvement in the sentencing process was rejected, with the Court stating that the charge was finally determined on the date of the applicant’s appeal against conviction and that the Minister’s role only came into play many years after the trial. Thus, ‘it was artificial to suggest that a mandatory life sentence remains “unfixed” until the prisoner is eventually released by ministerial decision.’139 The Court thus concluded that the claim was manifestly unfounded under Article 6 as well. In MD v Ireland,140 the applicant had been charged with the offence of sexual intercourse with a female person under the age of 17, as well as with the offence of buggery on a person under the age of 17 under section 3(1) of the Criminal Law (Sexual Offences) Act 2006. The applicant had been 15 at the time of the offence while the girl involved had been 14. He brought a case constitutionally challenging section 3 claiming discrimination as only males could commit this offence.141 After this case failed, he pleaded guilty to the offence of having sexual intercourse with a child under the age of 17. The applicant complained under Article 8 that by criminalising the sexual activity he had engaged in, the State had violated his right to respect for his private life. He further complained that by exempting the girl from criminal liability there had been a violation of Article 14 in conjunction with Article 8. He complained under Article 6 that his trial had not taken place within a reasonable time and that he had been prejudiced by the delay and that his trial was unfair as the 2006 Act was arbitrary and contained no consent defence. He also made complaints under Article 14 taken with Article 6 and under Article 13. The Court firstly considered the claim under Articles 8 and 14. It was noted that the applicant had failed to raise complaints under Article 8 at domestic level, arguing only

138 

Ibid, para 35. Lynch and Whelan (n 137), para 50. 140  MD v Ireland, Application no 50936/12 (ECtHR, 16 September 2014). 141  MD (Minor) v Ireland AG & DPP [2010] IEHC 101; MD (Minor) v Ireland AG & DPP [2012] IESC 10. 139 

156  The Irish Yearbook of International Law 2014 that he had been discriminated against, and so the Court considered it more appropriate to consider the case under Article 14. The Court noted that not every difference in treatment amounts to discrimination and that States have a wide margin of appreciation in relation to protecting children from the harm of premature sexual activity.142 The Court considered that the State had objective and reasonable justification for treating the applicant and complainant differently because of the risk to girls of pregnancy while they are still themselves children and that the exemption from criminal liability for girls pursues the legitimate aims of deterring the male, protecting the female and encouraging her to report the case. The Court also felt that this legitimate aim was proportionate as the Act only includes one clearly drawn exception based on gender and on age (females over the age of 17 are not exempt). Furthermore, the Court held that the Act allows lesser penalties in cases where the parties are close in age143 and that prosecution can only proceed with the consent of the DPP.144 The Court thus concluded that the ‘difference in treatment of which the applicant complained is not lacking in justification, and falls within the margin of appreciation of the respondent State’.145 This part of the application was thus found to be manifestly ill-founded. The Court then proceeded to reject the Article 6 claims. It held that the claim of a breach of Article 6 in conjunction with Article 14 was simply a reiteration of the Article 14 claim already rejected. Secondly, the Court held that the applicant’s trial had not been unfair and the lack of ‘consent’ defence was consistent with the Act’s purpose. The delay argument was also not accepted as the constitutional challenge resulted in proceedings being necessarily stayed and his trial resumed only five months after these proceedings ended. The failure of the applicant’s other claims meant that the Article 13 claim did not apply. In NicGib v Ireland,146 the applicant was the partner of a man who had been shot and killed by a member of An Garda Síochána in May 1998 during the course of an armed robbery. An inquest into the death of the man opened in August 1998, but was subject to considerable delays with the hearing eventually taking place in September 2009. The applicant was critical of the inquest for a number of reasons, including the Coroner’s refusal to allow disclosure of certain police documents and the absence of certain figures from the proceedings including a police officer who had been part of relevant police officer’s unit. The applicant also commenced civil proceedings against the State in 1999 seeking damages for unlawful, wrongful and intentional killing and assault and for negligence and breach of duty. These proceedings were also subjected to extensive delays, principally because the State claimed privilege in relation to certain police documents. Disclosure of these documents was eventually ordered by the High Court in May 2013 and the proceedings remained pending at the time of the application. The applicant complained that the investigation into her partner’s death had not satisfied the requirements of Article 2 of the Convention. She also complained that the non-retrospective effect 142 

Ibid, para 37. Justice (Sexual Offences) Act 2006, s 3(10). This section provides that if the person who is convicted of an offence under section 3 is ‘not more than 24 months older than the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act’ then they shall not be subject to the provisions of the Sex Offenders Act 2001. 144  Ibid, s 3(9). 145  Ibid, para 44. 146  NicGib v Ireland, Application no 17707/10 (ECtHR, 25 March 2014). 143  Criminal

Correspondent Reports—O’Regan 157 of the European Convention on Human Rights Act 2003 constituted a violation of her rights under Articles 2, 6, 8 and 13. The Government submitted a unilateral declaration to the Court requesting it to strike out the application in November 2013. In this declaration, the Government admitted that an effective official investigation had not yet taken place and that this amounted to a violation of Article 2. It also outlined its intention to establish a Commission of Investigation to investigate the circumstances of the death and set out draft terms of reference for the Commission. In addition, the Government undertook to pay the applicant €23,000 in damages and costs. The applicant was not satisfied with some of the terms of the declaration, in particular, she felt that the terms of reference were inadequately focused as they did not mandate the Commission to make findings on those matters necessary to comply with Article 2 and she considered that the assurances relating to her procedural rights were lacking. Under Article 37(1)(c), the Court is empowered to strike out a case on the grounds that ‘it is no longer justified to continue the examination of the application’, including on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the case to continue. The Court then examined the declaration, noting that it ‘clearly acknowledges a violation of Article 2 by the respondent State’.147 The Court also regarded the compensation proposed to be adequate. It then turned to consider the Commission of Inquiry, finding that it satisfied the requirements governing investigation under Article 2, noting in particular the express provisions made for the independence of the inquiry and for it to operate expeditiously. The Court also found that there were no grounds, based on its examination of the Commission’s terms of reference, for the applicant to claim that the inquiry would not be conducted in accordance with Article 2. The Court thus felt that the contents of the declaration meant that it was no longer justified to continue the examination of the application based on Article 37(1)(c). The Court rejected the applicant’s other argument, that the non-retrospective nature of the European Convention on Human Rights Act constituted a violation of her rights under Articles 2, 6, 8 and 13, as manifestly ill-founded as it found that there was no appearance of a violation of the cited provisions. In Keena and Kennedy v Ireland,148 the applicants, who were the public affairs correspondent and the editor of the Irish Times respectively, complained under Article 10 of an interference with their right to protect their journalistic sources. This complaint came about after the applicants published an article concerning the investigation of possible payments to the former Taoiseach [Prime Minister] Bertie Ahern by the Tribunal of Inquiry into Certain Planning Matters and Payments. The applicants had learned of this when a copy of correspondence between a business man and Mr Ahern was delivered to the first applicant anonymously. The applicants were summoned to appear in front of the Tribunal to hand over the documents they had received and answer questions. However, the applicants destroyed the documents and refused to answer any questions which might lead to the identification of their source. The Tribunal ruled that the applicants were in breach of its orders and of the relevant statutory provisions and later, it commenced High Court proceedings seeking orders to compel the applicants

147  148 

Ibid, 8. Keena and Kennedy v Ireland, Application no 29804/10 (ECtHR, 30 September 2014).

158  The Irish Yearbook of International Law 2014 to comply with the order to produce the documents and to answer questions. The High Court granted these orders.149 However, the Supreme Court allowed the applicant’s appeal, stating that there was no clear benefit to be obtained for the Tribunal in ordering the applicants to answer questions as the documents had been destroyed.150 Yet, in a separate hearing, the applicants were ordered to pay the costs of the Tribunal.151 The applicants complained that the award of costs against them violated their rights under Article 10. Central to the applicants’ case was a claim that the Tribunal’s attempt to discover the source was misconceived and presented a direct threat to their right to protect their source. The Court stated that this was a matter for domestic courts to resolve and this would have been possible had the documents not been destroyed. The Court noted that the domestic courts had referred extensively to Article 10 case law principles and there was no reason to believe that they would not have made a proper determination if they had been capable of doing so. It was further noted that permitting the domestic courts to ‘adjudicate the matter in full would have been fully consonant not only with Article 10, but also with the rule of law’.152 Thus, the Court held that the destruction of the documents was not a legitimate exercise of the applicants’ right under Article 10 to refuse to disclose their source. The Court emphasised that the Convention does not allow individuals to ‘take upon themselves a role properly reserved for the courts’153 and that even if the applicants did not intend to prevent full judicial examination of the issue as claimed, this was still the effect of their actions. The Court did not accept that the applicants could not have foreseen the Tribunal’s actions and furthermore, it was after the Tribunal indicated that it would take proceedings that the applicants destroyed the documents. The applicants also claimed that the domestic courts were still able to rule on the case despite the destruction of the documents. The Court rejected this claim, stating that the role of the judiciary had been undermined and that the destruction of the documents deprived the Tribunal of any effective power to conduct an inquiry and by extension, the courts of any power to give effect to any order by the Tribunal. The Court also refused to accept the claim that the costs order had a chilling effect on freedom of expression, noting the order would have no effect on journalists ‘who vehemently protect their sources yet recognise and respect the rule of law’.154 Instead, the Court considered that the true effect of the costs ruling was ‘to signal that no party is above the law or beyond the lawful jurisdiction of the courts’.155 The Court thus concluded that the Article 10 claim was manifestly ill-founded. The Court considered that relying on all the material it had in its possession, there was no appearance of a violation of the other Articles the applicants had complained under (Articles 6, 13 and 14). In Reilly v Ireland,156 the applicant made complaints under Articles 3, 8, 6 and 13 in conjunction with Articles 1, 3 and 8. The applicant alleged that he had been a victim of a number of sexual assaults between 1989 and 1995 from a superior officer (PD) while

149 

Mahon Tribunal v Keena & anor [2007] IEHC 348. Mahon Tribunal v Keena & anor [2009] IESC 64 and 78. 151 Ibid. 152  Keena and Kennedy v Ireland (n 148), para 47. 153  Keena and Kennedy v Ireland (n 148), para 47. 154  Keena and Kennedy v Ireland (n 148), para 50. 155  Keena and Kennedy v Ireland (n 148), para 50. 156  Reilly v Ireland, Application no 51083/09 (ECtHR, 23 September 2014). 150 

Correspondent Reports—O’Regan 159 he was a member of the army. Later, after the applicant had left the army, a number of complaints were made against PD which eventually led to a criminal investigation. PD pleaded guilty to charges of sexual assault against another soldier, but was later acquitted of charges relating to the applicant. The applicant also brought civil proceedings against PD and the State. The claim against PD was settled in the sum of €5000 without admission of liability, however, the case against the State defendants for vicarious liability and direct negligence failed in the domestic courts. In considering the Article 3 claim, the Court was required to examine whether the impugned acts could be imputed to the State. The Court stated that PD’s conduct was far removed from the performance of his duties as a military officer and was in violation of military and criminal laws. The Court noted that army personnel in a subordinate position could find themselves in a vulnerable position, yet, they did not discern any particular vulnerability on the part of the applicant. This was based on the fact at the time of the abuse he was an adult, an experienced soldier, married with a family and a physically strong man who had competed internationally in boxing. He also did not reside in the army base. The Court further noted that the applicant had not been left without any system of recourse as a formal complaints procedure was in place at the time of the abuse. The fact that the applicant had taken two cases against the Defence Forces before (in relation to personal injuries arising out of a road traffic accident and a claim relating to deafness) also showed that he possessed a certain resolve in relation to vindicating his rights and just because he didn’t make a complaint against PD until he left the army did not mean that the military authorities could not be suspected of acquiescence or connivance. Thus, the Court felt that the acts of PD could not be imputed to the State. The Court also examined the complaint based on the State’s positive obligations under Article 3, which requires State measures to ensure individuals are not subjected to illtreatment in certain circumstances. The Court held that the State’s general obligation to guard against ill-treatment applies to its armed forces. In this respect, the degree to which the authorities knew or ought to have known of the risk posed by PD was of critical importance. The applicant submitted that the ridicule he had been subjected to by other soldiers on account of his perceived closeness to PD should have been sufficient to put the authorities on notice. However, the Court noted that this contention had been rejected by the domestic courts and it was not for it to question this finding. The Court also accepted the domestic court’s observation that there had been less public awareness of sexual abuse in institutions at the time of the abuse and that it was correct, as had been done in O‘Keeffe v Ireland,157 to question the matter of the State’s responsibility based on the standards of the time. The strongest evidence of PD’s behaviour—a complaint or a statement by the applicant did not emerge until much later on. The Court thus found that there was no evidence before it that would enable it to find that there was an operational failure on the part of the State to protect the applicant against ill-treatment. The Court also considered the framework of protection that existed at the time to be adequate— there were effective criminal laws in place as well as military law and an official complaints procedure. The Court thus felt that reasonable steps had been taken by the State to prevent this particular form of ill-treatment among the armed forces and so the claim was held to be manifestly ill-founded.

157 

O’Keeffe (n 1).

160  The Irish Yearbook of International Law 2014 The Court also rejected the claim under the procedural aspect of Article 3. The Court again referred to O‘Keeffe, holding that this responsibility only comes into play once an official complaint has been made and once this was done in this case, a criminal investigation took place. The Court rejected the Article 8 claim on the basis that it did not give rise to any issues different to what had already been considered under Article 3 and the failure of the previous complaints meant that there was no arguable claim under Article 13. The Article 6 complaint, which had been based on the State’s rejection of vicarious liability, was also rejected as the Court found that the domestic courts had only applied wellestablished rules on vicarious liability and the applicant’s right of access to court had not been limited. OTHER DEVELOPMENTS

Human Rights Committee: Concluding Observations on the Fourth Periodic Report of Ireland In July 2014, the Human Rights Committee considered Ireland’s fourth periodic report.158 The Committee delivered its final observations on the Report on 23 July.159 The Committee highlighted a number of positive aspects taken by Ireland during the relevant period, including its withdrawal of reservations to Articles 14 and 19(2) of the International Covenant on Civil and Political Rights (ICCPR).160 The Committee also welcomed the adoption of the Criminal Justice (Female Genital Mutilation) Act 2012, the Civil Law (Miscellaneous Provisions) Act 2011 and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.161 Finally, the Committee welcomed Ireland’s ratification of the United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention against Transnational Organized Crime in June 2010.162 However, the Committee listed a number of areas of concern and made recommendations in relation to these issues. Firstly, the Committee reiterated its concern that the ICCPR is not directly applicable in Ireland and that Ireland maintains reservations to Article 10(1) and Article 20(1). It also expressed regret that Ireland had yet to undertake a tabulation of relevant provisions of its domestic legislation as promised in a previous report.163 The Committee welcomed the adoption of the Human Rights and Equality Commission Act 2014 but recommended that care was taken to ensure that the Act was in full conformity with the Paris Principles, that a unified definition of human rights is included in the Act and a sufficient budget provided to the Commission.164

158  UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Fourth Periodic Reports of States Parties: Ireland (12 November 2012) CCPR/C/IRL/4. 159  UN Human Rights Committee (UN HRC), ‘Concluding Observations on the Fourth Periodic Report of Ireland’ (19 August 2014) CCPR/C/IRL/CO/4. 160  Ibid, para 3. 161 Ibid. 162  Ibid, para 4. 163  Ibid, para 5. 164  Ibid, para 6.

Correspondent Reports—O’Regan 161 The Committee made a number of recommendations in relation to gender equality. Firstly, they recommended amendment of Article 41.2 of the Constitution to render it gender neutral and that measures are taken to ensure greater participation of women in the public and private sectors. The Gender Recognition Bill 2014 was also noted, with the Committee encouraging engagement with transgender persons and organisations to ensure that their rights are fully guaranteed, including the right to gender recognition without the requirement of dissolution of marriage or civil partnership.165 The Committee also made recommendations in relation to violence against women, noting that it remained a ‘serious problem in the State Party’ and that a comprehensive data collection system on the issue was required and that measures were required to ensure that women from marginalised or vulnerable groups had equal access to p ­ rotection.166 167 The Committee also made recommendations on abortion, expressing concern as to the highly restrictive circumstances under which women can access abortion within the State. The Committee stated that Ireland should revise its legislation on abortion and that abortion should be made available in cases of rape, incest, fatal foetal abnormality and where there is a serious risk to the health of the mother. The Committee also considered that a guidance document clarifying what constitutes a ‘real and substantial risk’ to the life of the pregnant woman is required and that information on crisis pregnancy options be made more accessible. In addition, the Committee addressed the institutional abuse of women and children, encouraging the State to conduct ‘prompt, independent and thorough investigations’ into all allegations of abuse in the Magdalen laundries, children’s institutions and mother and baby homes, punish the perpetrators and provide an effective remedy to victims.168 The Committee also urged a proper investigation into symphysiotomy cases and the establishment of an ex gratia scheme for victims.169 Other areas highlighted by the Committee included mental health, where concern was expressed at the use of certain restrictive and coercive practices as well as the definition of ‘voluntary patient’ in the Mental Health Act 2001, which the Committee stated should be amended so that it only applies to those who genuinely consent to admission and treatment.170 The Committee also expressed concern as to the lack of independence of the Garda Síochána Ombudsman Commission, and welcomed the Garda Síochána (Amendment) Bill 2014 which aimed to strengthen the efficacy and independence of this body.171 ­Concern was also voiced over the lack of legal prohibition of corporal punishment in all settings172 and the living conditions and treatment of prisoners.173 The number of persons being imprisoned for failure to pay fines was also noted with concern and the

165 

Ibid, para 7. Ibid, para 8. 167  Ibid, para 9. 168  Ibid, para 10. 169  Ibid, para 11. 170  Ibid, para 12. 171  Ibid, para 13. 172  Ibid, para 14. 173  Ibid, para 15. 166 

162  The Irish Yearbook of International Law 2014 Committee encouraged full implementation of the Fines (Payment and Recovery) Act 2014, which provides for community service orders as an alternative to imprisonment.174 Further recommendations made by the Committee within the criminal justice sphere related to the right to have counsel present during interrogation175 (the Supreme Court decision in Gormley and White176 was welcomed in this respect) and the introduction of a definition of terrorism in domestic legislation. The Committee also asked the State to consider abolishing the Special Criminal Court.177 The Committee expressed regret at the lack of a single application procedure for all grounds for international protection and the lack of an accessible and independent complaints mechanism for individuals in direct provision centres.178 It recommended that such matters be rectified and the Immigration, Residence and Protection Bill 2010 be adopted. The Committee also urged the State to improve the assistance and protection it provides to victims of trafficking.179 The Committee encouraged the State to take measures to further the right to freedom of religion.180 In particular, constitutional amendment was recommended in relation to the requirement for religious oaths before individuals take up certain senior public office positions, that access to secular education be improved and that the Employment Equality Acts be amended in a way that bars all forms of discrimination in employment in the fields of education and health. The Committee also recommended that the blasphemy offence provided be abolished.181 Finally, the Committee highlighted the rights of members of the Traveller and Roma communities. It recommended that the State should recognise Travellers as an ethnic minority (as it had recommended before), that the Housing (Miscellaneous Provisions) Act 2002 be amended in relation to accommodation requirements, and that an effective policy and action plan be adopted in consultation with both communities.182 Ratification of the 3rd Optional Protocol to the UN Convention on the Rights of the Child On 24 September 2014, Ireland signed and ratified the 3rd Optional Protocol to the UN Convention on the Rights of the Child (UNCRC).183 This instrument gives children the right to make a complaint to the UN Committee on the Rights of the Child in relation to their rights under the UNCRC or its Optional Protocols, provided that domestic remedies have been exhausted.

174 

Ibid, para 16. Ibid, para 17. 176  Gormley and White (n 2). 177  UN HRC, ‘Concluding Observations (n 159), para 18. 178  UN HRC, ‘Concluding Observations (n 159), para 19. 179  UN HRC, ‘Concluding Observations (n 159), para 20. 180  UN HRC, ‘Concluding Observations (n 159), para 21. 181  UN HRC, ‘Concluding Observations (n 159), para 22. 182  UN HRC, ‘Concluding Observations (n 159), para 23. 183  Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (19 December 2011) UN Doc A/Res/66/138. 175 

Correspondent Reports—O’Regan 163 Independent Review of Issues Relating to Symphysiotomy In March 2014, former Circuit Court Judge Yvonne Murphy submitted the Independent Review of Issues Relating to Symphysiotomy184 to the Minister for Health. Judge Murphy’s terms of reference included examining all reports and information relating to symphsiotomy including Professor Walsh’s Report on Symphysiotomy in Ireland 1944–1984,185 to meet with women who had undergone the procedure, to assess the ­liability of insurers, indemnifiers and other parties and assess the merits and the costs to the State of proceeding with an ex gratia scheme relative to allowing the court process to proceed. The most significant element of the report was the ex gratia scheme proposed by Judge Murphy. Judge Murphy estimated that the State may become involved in some 200–250 symphsiotomy cases with successful plaintiffs expecting to recover between €250,000– €275,000 in general damages and that an ex gratia scheme would cost the State far less.186 This scheme recommended three categories of payments that could be made: €50,000 for surgical symphysiotomy with no long-term effects, €100,000 for surgical symphysiotomy with long-term complex effects, and €150,000 for symphysiotomy carried out post-birth.187 Claimants would also be given a sum for legal costs incurred in applying to the scheme of €5000 with an additional €8000 where legal proceedings have already been commenced.188 However, participants in the scheme would have to give up any legal claims.189 Survivors of symphsiotomy have indicated their dissatisfaction with the ex gratia scheme and the State’s failure to properly investigate the practice of symphysiotomy in Ireland. Thus, Survivors of Symphysiotomy, a group which represents survivors, wrote to the UN Committee against Torture in March 2014 claiming that the State violated the UN Convention on the Prevention of Torture and Inhuman and Degrading Treatment by failing to initiate an independent inquiry and restitution scheme for survivors.190

184  Independent Review of Issues Relating to Symphysiotomy (14 March 2014) (Murphy Report) available at http://health.gov.ie/wp-content/uploads/2014/07/Scanned-Murphy-report-redacted-version1.pdf (accessed 21 October 2015). 185 Report on Symphysiotomy in Ireland, 1944–1984 (29 May 2013) available at http://health.gov.ie/wp-­ content/uploads/2014/07/Final-Final-walsh-Report-on-Symphysiotomy1.pdf (accessed 21 October 2015). 186  See Murphy Report (n 184), para 50, where the costs of an ex gratia scheme versus litigation are estimated to be €33,482,000 as opposed to €94,750,000. 187  Murphy Report (n 184), paras 48–49. 188  Murphy Report (n 184), para 49. 189  Murphy Report (n 184), para 48. 190  Colin Gleeson, ‘Symphysiotomy Survivors Take Torture Case against State to United Nations’ The Irish Times, 12 March 2014, www.irishtimes.com/news/ireland/irish-news/symphysiotomy-survivors-take-torturecase-against-state-to-united-nations-1.1720961 (accessed 20 October 2015).

164 

Human Rights in Northern Ireland 2014 BRICE DICKSON*

INTRODUCTION

2

014 WAS ANOTHER difficult year for Northern Ireland,1 not so much because of politically motivated violence but because of political bickering between the two main parties in the Northern Ireland Assembly and Executive. Two days before Christmas, the so-called Stormont House Agreement (SHA) was reached,2 supposedly providing a blueprint for the solution of disputes over welfare reform, fiscal policies, dealing with the past, the display of flags and the regulation of parades. Unfortunately, as the report in the 2015 Yearbook will make clear, it did not take long for the SHA to unravel. In July 2014 a new Chief Constable, George Hamilton, took over the role from Matt Baggott. Although he had previous service in the Royal Ulster Constabulary, which was replaced by the Police Service of Northern Ireland (PSNI) in 2001, nationalist politicians seemed content with the appointment. Throughout 2014, however, the National Crime Agency (NCA)—established in England, Scotland and Wales in October 2013—was not operational in Northern Ireland because of nationalist politicians’ doubts as to the accountability of NCA officers. This left a policing gap as regards serious organised crime and the confiscation of ill-gotten gains.3 During 2014 the European Court of Human Rights (ECtHR) processed 1,997 applications against the United Kingdom, all but 27 of which were declared inadmissible or struck out.4 The remaining 27 applications resulted in 14 judgments, but in only four of these did the Court conclude that there had been at least one violation of a right protected by the European Convention on Human Rights (ECHR).5 One of those four cases emanated directly from Northern Ireland: in McDonnell v UK the ECtHR held again6 that there had been an inexcusable delay in holding an inquest in Northern Ireland, this time into the death of a man in prison in 1996 (the inquest not taking place until 2013); 10,000 euros were awarded to his mother as compensation. * 

Queen’s University Belfast. Additional information about human rights in Northern Ireland in 2014 is available from The 2014 Annual Statement of the Northern Ireland Human Rights Commission: www.nihrc.org/uploads/NIHRC_Annual_ Statement_2014.pdf. 2  See Stormont House Agreement (SHA), available at: www.gov.uk/government/uploads/system/uploads/ attachment_data/file/390672/Stormont_House_Agreement.pdf. 3  The NCA eventually became operational in Northern Ireland on 20 May 2015. 4  Data available at: www.echr.coe.int/Documents/CP_United_Kingdom_ENG.pdf (as updated in October 2015). 5  These were Paulet v UK (2015) 61 EHRR 39; McDonald v UK (2015) 60 EHRR 1; Firth v UK (App No 47784/09, judgment of 12 August 2014); McDonnell v UK (App No 19563/11, judgment of 9 December 2014). 6  As it had already done in McCaughey v UK (App No 43098/09) and Hemsworth v UK (App No 58559/09), both judgments of 16 July 2013. See too text at n 53 below. 1 

166  The Irish Yearbook of International Law 2014 THE RIGHT TO LIFE

Throughout 2014 there was continued concern as to the right to life in Northern Ireland. This did not primarily concern contemporary killings and attempted killings, although some such incidents did occur. Rather, the focus was on how Northern Ireland should and could deal with the legacy of killings committed during the conflict prior to the ­Belfast (Good Friday) Agreement in 1998. Loss of Life in 2014 In the year 1 April 2014 to 31 March 2015, three people lost their lives due to what appeared to be politically motivated violence. The number of bombing incidents decreased from 69 in the previous year to 36, but the number of shooting incidents rose from 54 to 73, the highest since 2009–10. At least 37 of the shooting incidents occurred other than as paramilitary punishment attacks (see below), many of them being shots aimed at police officers. In their efforts to thwart the terrorists, the PSNI seized 58 illegally held firearms (compared to 101 in 2013–14), 22.9kg of explosives (23.1kg in 2013–14) and 4,569 rounds of ammunition (5,057 in 2013–14).7 Army bomb disposal officers were called out 347 times between August 2013 and July 2014.8 According to the Independent Reviewer of Terrorism Legislation in the UK, David Anderson QC, ‘there were 22 dissident republican attacks on national security targets during 2014, ranging from rudimentary letter bombs to explosively formed projectiles demonstrating a developing armour-piercing capability’.9 Luckily none of these caused any serious injuries, but Anderson reminds us that the Director General of MI5 has said that ‘for every one of those attacks we and our colleagues in the police have stopped three or four others coming to fruition’.10 In his assessment of the national security arrangements in Northern Ireland in 2014, Lord Carlile of Berriew QC wrote: I regard 2014 as a year of continuing success in thwarting and detecting terrorism. Pending trials are likely to demonstrate this, as have trials during the year. However, there is no sign of reduced ambition in the minds of terrorists, and limited evidence of a lack of capacity on their part. Attrition and continued effort against the dissident republican groups remain a paramount requirement.11

Apart from the three supposedly paramilitary-related killings, 13 other individuals were murdered in 2014–15, very much in line with the figure for each of the previous

7  The figures in this paragraph so far are taken from www.psni.police.uk/globalassets/inside-the-psni/ourstatistics/security-situation-statistics/documents/annual_security_situation_statistics_report_2014-15.pdf, p 2. 8  ‘Army Bomb Teams Called out 347 Times in Northern Ireland in Year’, BBC News, 28 January 2015, ­available at: www.bbc.co.uk/news/uk-northern-ireland-31018191. 9  David Anderson QC, ‘The Terrorism Acts in 2014’ (September 2015), available at: https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/09/Terrorism-Acts-Report-2015_web-version. pdf, p 12. 10  Andrew Parker, address of 8 January 2015 to RUSI, available at: www.mi5.gov.uk, paras 28–29. 11  The report was not published but was summarised to the House of Commons by the Secretary of State for Northern Ireland on 20 March 2015: www.parliament.uk/business/publications/written-questions-answersstatements/written-statement/Commons/2015-03-20/HCWS436. The period covered in Lord Carlile’s report ran from 1 December 2013 to 31 December 2014.

Correspondent Reports—Dickson 167 three years.12 There were also eight cases of manslaughter, three of which were corporate manslaughter.13 In the calendar year 2014 six murders occurred as a result of domestic violence, the victims being one baby and five women.14 In May 2014 a man died while being held in police custody;15 at the time of writing no further details are available as to whether the police were in any way responsible. In the prisons, the Prisoner Ombudsman initiated investigations into three deaths in custody and five post-release deaths.16 None of the latter seems to have been directly connected to the period of imprisonment. Reports were also published into five deaths which had occurred in previous years.17 The Prisoner Ombudsman understandably expressed concern that 18 of the 78 recommendations in these reports were ones which had been made and accepted on earlier occasions. He was assured by the Ministers of Justice and Health that this failure of implementation was being treated seriously by the two government departments.18 On the roads there were 79 fatalities in 2014, with 710 people being seriously injured. This represents 22 more deaths, but 10 fewer serious injuries than in 2013. It is sobering to think that in 1972 there were 372 road deaths, even though the number of vehicles was very much lower than today.19 There was a reminder in Re A’s Application that whenever a health trust is investigating a serious incident (in this case a multiple stabbing at one of its health centres), the investigation does not itself have to fully comply with Article 2 of the ECHR.20 In AB v The Sunday World, the Court of Appeal, reversing the judge at first instance, granted an interim injunction to a man who claimed that a Sunday newspaper was putting at risk his own life and that of his close family by reporting what he claimed were false allegations about him.21 Dealing with the Past As regards dealing with the past, the greatest achievement in 2014 was reaching the Stormont House Agreement after 11 weeks of inter-party talks. A year earlier, talks chaired 12 Data available at: www.psni.police.uk/globalassets/inside-the-psni/our-statistics/police-recorded-crimestatistics/documents/police_recorded_crime_in_northern_ireland_1998-99_to_2014-15.pdf, Table 2.2. See also reports on Human Rights in Northern Ireland in Volumes VI, VII and VIII Irish Yearbook of International Law. 13  Ibid, Table 2.2. 14  For details of all the murder victims in 2014 see Allison Morris, ‘Number of Recorded Violent Deaths Falls to a 40-Year Low’ The Irish News, 5 January 2015, available at: www.irishnews.com/news/2015/01/05/news/ number-of-recorded-violent-deaths-falls-to-a-40-year-low-112188/. 15  See Police Ombudsman for Northern Ireland, ‘Man Who Died in Police Custody Named’ (30 May 2014), available at: www.policeombudsman.org/Media-Releases/2014/Man-who-died-in-police-custody-named. 16  See The Prisoner Ombudsman for Northern Ireland, ‘Annual Report 2014–15’, available at: www.niprisonerombudsman.com/publications/Annual_Report_2014-15.pdf, p 24. 17  These deaths all occurred in Maghaberry Prison. The reports are available on the website of the Prisoner Ombudsman and relate to Mr E (published 30 April 2014), Mr F (7 May 2014), Mr David Brown (22 July 2014), Mr G (2 October 2014) and Mr Geoffrey Singleton (13 November 2014). 18  See n 16 above. 19  Figures in this paragraph are taken from www.psni.police.uk/psni_2014_rtc_key_statistics_published_ 27.3.15.pdf, pp 2 and 16. 20  Re A’s Application [2014] NIQB 74. 21  AB v The Sunday World [2014] NICA 58.

168  The Irish Yearbook of International Law 2014 by the US Special Envoy Richard Haass and Harvard Professor Meghan O’Sullivan had failed to culminate in an agreed package, although dealing with the past seems to have been the least contentious aspect of that process.22 The 2014 Agreement provides for the creation of a Historical Investigations Unit to take over from the PSNI and the Police Ombudsman the remaining investigations into conflict-related deaths and complaints against police officers dating from that time.23 It also calls for an Independent Commission on Information Retrieval (ICIR) to be set up to allow victims and survivors to receive, in private, information about the deaths of their loved-ones.24 Information which is passed to the ICIR, like that which is provided to the still-functioning Independent Commission on the Location of Victims’ Remains, will not be admissible in court, although it does not follow that any person who provides information to the ICIR will be automatically immune from prosecution if evidence against him or her emerges from other sources.25 There is also to be an Oral History Archive, located within the Public Records Office of Northern Ireland, and an Implementation and Reconciliation Group will be set up to support other initiatives aimed at reconciliation, including the compilation of a report on themes written by independent academic experts.26 At the end of 2014, the Chief Constable closed down the PSNI’s ill-fated Historical Enquiries Team (HET), the performance of which had been seriously undermined by a report of Her Majesty’s Inspector of Constabulary in 2013.27 The Policing Board eventually published its own views on how the recommendations of that report had been implemented,28 but by then the HET was already doomed. The Board set out the broad principles which ought to apply to the work of any future organisation given the responsibility of investigating unresolved killings.29 Its views on the relevance of obligations imposed by Article 2 of the ECHR were also published.30 These took account of recent English case-law concerning the investigation of abuses by the British army in Iraq, specifically on what is meant by the requirement that investigators be completely independent.31 In January 2014, Stephens J issued a 129-page judgment quashing the verdict of the jury at the 2012 inquest into the killing of Pearse Jordan by police officers in 1992.32 The jury had been unable to reach agreement on whether the police had used reasonable force. The judge held that the Stalker/Sampson reports into earlier killings by the security forces33 should have been made available to the jury, as should statements made

22  See ‘Human Rights in Northern Ireland in 2013’ (2013) Irish Yearbook of International Law 137, at 137 and 154. 23  SHA (n 2), paras 30–40. 24  SHA (n 2), paras 41–50. 25  SHA (n 2), para 49. 26  SHA (n 2), paras 22–25 and 51–55. 27  See ‘Human Rights in Northern Ireland in 2013’ (n 22) 137, at 139. 28  See www.nipolicingboard.org.uk/het_position_paper.pdf (April 2014). 29  Ibid, pp 13–14. 30  Ibid, pp 33–53. 31  See, in particular, R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 and R (Ali Zaki Mousa) v Secretary of State for Defence (No 2) [2013] EWHC 1412 (Admin). 32  Re Jordan’s Applications [2014] NIQB 11. 33  The reports covered three separate incidents in County Armagh in 1982, when police shot dead six alleged terrorists. John Stalker was appointed to carry out an investigation into allegations of a police cover-up of their role in the incidents. He prepared an interim report but was then removed from his post. The investigation was concluded by Colin Sampson.

Correspondent Reports—Dickson 169 to the Police Ombudsman after another police killing 10 years later by an officer who had had high-level responsibility for the planning and control of both operations. He also found that the coroner had been wrong to empanel a jury for this inquest in the first place, because so-called ‘legacy’ inquests are always controversial and the risk of a perverse verdict is high. As juries are still dispensed with in terrorism-related criminal trials in Northern Ireland (though this is usually explained on the basis that jurors might be intimidated), the judge believed they should also be dispensed with at inquests into terrorism-related deaths. He found too that the police had ‘created obstacles and difficulties which have prevented progress in the inquest’:34 they had so heavily over-redacted some documents that these became unintelligible and they had apparently undertaken no steps on disclosure until directed to do so by the coroner. In November the Court of Appeal affirmed Stephens J’s decision.35 It did so first and foremost on the basis that the Stalker/Sampson reports ought to have been disclosed to the jury. It added, however, that it could not be said that in all legacy inquests36 there was inevitably a real risk of a perverse verdict. The Court of Appeal repeated earlier criticisms concerning the state of coronial law in Northern Ireland, evidenced by the amount of ­litigation concerning Pearse Jordan alone: in his case there had been 24 judicial reviews, 14 appeals to the Court of Appeal, two hearings in the House of Lords and one hearing in the ECtHR.37 While stressing that it was not the Court’s job to decide how the UK should honour its Article 2 obligations in legacy cases, the appeal judges stated: [I]t seems inevitable that the requirement of reasonable expedition will continue to be breached unless there is a new approach. There are models within this jurisdiction, such as the Historical Institutional Abuse Inquiry, which might provide the basis for an effective solution. It would be possible to have all of the legacy cases taken out of the inquest system and all of them considered in a time bound inquiry.38

Indeed this was not the only occasion on which Pearse Jordan’s death was considered by a Northern Ireland court in 2014. In Re Jordan’s and five other Applications,39 Stephens J issued a declaration that there had been a delay in conducting inquests into the deaths of the applicants’ six loved-ones such as to violate Article 2 of the ECHR and he awarded damages of £7,500, even though the family of Pearse Jordan had already been awarded compensation of £10,000 by the ECtHR for the delay occurring up to 2001.40 The Department of Justice agreed that it was the appropriate public authority to pay these amounts. In Re Gribben’s Application the Court of Appeal extended the grounds on which leave would be granted to challenge the decisions of a coroner and jury at the inquest into the killing of Martin McCaughey and Desmond Grew by the British Army in 1990.41 The UK Supreme Court had ruled in 2011 that, despite the deaths occurring 10 years before the commencement of the Human Rights Act 1998, the inquest had to fully

34 

Re Jordan’s Applications (n 32) at [349]. Re Jordan’s Applications [2014] NICA 76. 36  Ibid. The Court said (at [121]) that there were at that time 51 such cases involving 78 deaths, the oldest relating to a death in February 1971 and the most recent to a death in July 2005. 37  Ibid, at [122]. 38  Ibid, at [123]. The Historical Institutional Abuse Inquiry is referred to in the next section of this report. 39  Re Jordan’s and five other Applications [2014] NIQB 71. 40  Jordan v UK (2003) 37 EHRR 2. 41  Re Gribben’s Application [2014] NICA 42. 35 

170  The Irish Yearbook of International Law 2014 comply with Article 2 of the ECHR, meaning that it had to consider in what circumstances the deceased had come by their deaths.42 In Gribben, the Court of Appeal rejected most of the applicant’s arguments but upheld the claims that the coroner should have allowed much more evidence to be considered relating to the involvement of particular soldiers in other lethal force incidents. In February and April 2014, the UK Government sent the Committee of Ministers of the Council of Europe two reports on the progress being made in implementing the decision of the ECtHR in McKerr v UK43 and seven similar cases.44 An information note was then prepared by the Court’s Department for the Execution of Judgments45 and in August the Belfast-based Committee on the Administration of Justice (CAJ) submitted its own report on the eight cases.46 The CAJ called on Ministers’ Deputies to seek clarification from the UK Government as to how it would ensure effective and independent investigations into alleged violations of Articles 2 and 3 by the armed forces in Northern Ireland.47 More generally, in December 2014, the UK Government submitted a report to the Parliamentary Joint Committee on Human Rights48 on the Government’s response to judgments of the ECtHR delivered between 1 August 2013 and 31 July 2014. In relation to the McKerr line of cases considered above, this report mentioned that the PSNI was reviewing the resources for its Legacy Support Unit, which manages the disclosure process to the families of victims and to the coroner. It added that a cross-agency working group, chaired by the Minister for Justice, was focusing on reducing delay and it pointed out that the Legal Aid and Coroners’ Courts Act (NI) 2014 allows the Lord Chief Justice of Northern Ireland to introduce improved judicial case management within the Coroners’ Courts.49 Victims of troubles-related killings will not have been heartened by the decision of the ECtHR in March 2014 in Harrison v UK,50 which declared inadmissible the complaint that British authorities had not effectively investigated the deaths of 96 football supporters at Sheffield Wednesday’s football ground, Hillsborough Stadium, in 1989. The applicants argued that the original inquests had not been compliant with Article 2 of the ECHR and that, although new inquests had eventually been ordered (and began in March 2014), they had to wait for over 24 years for them to take place. The ECtHR found that since the publication of the Hillsborough Investigation Panel report in 2012, the UK Government had acted promptly to ensure that the deaths were properly investigated. 42 

In re McCaughey [2011] UKSC 20, [2012] 1 AC 725. McKerr v UK (2002) 34 EHRR 20. 44  Shanaghan v UK (App No 37715/97), judgment of 4 May 2001; Jordan v United Kingdom (App No 24746/94) judgment of 4 May 2001; Kelly & Ors v UK (App No 30054/96), judgment of 4 May 2001; McShane v UK (App No 43290/98), judgment of 28 May 2002; Finucane v UK (App No 29178/95), judgment of 1 ­October 2003; Hemsworth v UK (App No 58559/09), judgment of 16 July 2013; McCaughey & Ors v UK (App No 43098/09), judgment of 16 July 2013. 45  See information available at: https://wcd.coe.int/ViewDoc.jsp?id=2194309&Site=CM. 46  Committee on the Administration of Justice, ‘Submission no 435’ (August 2014), available at: www.caj. org.uk/files/2014/08/28/S435_Submission_to_the_Committee_of_Ministers_August_2014.pdf. 47  Ibid, p 4. 48 Ministry of Justice, ‘Responding to Human Rights Judgments’ (December 2014), available at: www. gov.uk/government/uploads/system/uploads/attachment_data/file/389272/responding-to-human-rights-­ judgments-2013-2014.pdf. 49  Ibid, p 19. 50  Harrison v UK (App No 44301/13) judgment of 25 March 2014. 43 

Correspondent Reports—Dickson 171 As well as new inquests, a new criminal inquiry had begun and allegations of police misconduct were being independently investigated.51 Significantly, the Court stressed that: [I]t would be wrong to see the revival of the procedural obligation incumbent on the United Kingdom under Article 2 following the emergence of new relevant information [the Panel’s report] as the continuation of the original obligation to investigate, bringing with it the consequence that the State may be taxed with culpable delays going back many years. Attaching retroactive effect in this way is likely to discourage governments from taking any voluntary steps that might give rise to the revival of the procedural obligation under Article 2 in the first place.52

In Re McDonnell’s Application53 an attempt was made, after the jury at an inquest had reached a verdict with which the deceased’s next-of-kin were content, to seek a ruling that the next-of-kin’s Article 2 rights had nevertheless been breached because the coroner had allowed some witnesses to remain anonymous and to be screened from the public. Treacy J rejected the claim, saying it was questionable whether the proceedings should have been brought at all, given the considerable expense to the public purse.54 THE RIGHT NOT TO BE ILL-TREATED

Alarmingly, in 2014–15 the number of ‘punishment attacks’ carried out on behalf of paramilitary organisations increased by 34 per cent over the figure for 2013–14, up from 70 to 94. This was the highest figure since 2009–10 and, as in previous years, republican paramilitaries seemed to favour shooting their victims while loyalist paramilitaries preferred beating them. Republicans shot 30 people while loyalists shot six, but loyalists beat 42 while republicans beat 16.55 Some medical experts see beatings as more serious: they tend to leave multiple wounds, some of which can have life-long effects. Unfortunately, the ECtHR confirmed its view that States are under no obligation to allow access to civil courts by victims of torture abroad, a stance which is difficult to square with the Court’s strong opposition to the use in any trial of information which may have been obtained by torture.56 In Jones v UK57 four UK nationals alleged that they had been tortured in Saudi Arabia by State officials. The UK courts had denied them the right to sue the Saudi authorities because of the doctrine of State immunity. The Strasbourg Court agreed with this interpretation of the ECHR but did say that ‘in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States’.58 As regards complaints against the police relating to assaults, the annual statistical bulletin of the Police Ombudsman for 2014–15 shows that the number of such allegations fell by 30 per cent compared with the previous year, down from 1,047 to 741 allegations.59

51 

Ibid, [54]. Ibid, [58]. 53  Re McDonnell’s Application [2014] NIQB 66. See too text at n 6 above. 54  Ibid, [19]. 55  For the source of the figures in this paragraph, see n 7 above. 56  See eg Othman (Abu Qatada) v UK (2012) 55 EHRR 1. 57  Jones v UK (App Nos 34356/06 and 40528/06), judgment of 14 January 2014. 58  Ibid, [25]. 59  See www.policeombudsman.org/PONI/files/d6/d682eed6-d052-49a9-a2a7-5f7f69f8dfea.pdf, Table 15. 52 

172  The Irish Yearbook of International Law 2014 There was a comparably significant drop in the number of allegations suggesting ‘incivility’ by a police officer, down by 23 per cent to 421.60 The annual report of the Prisoner Ombudsman revealed that there were as many as 9,456 complaints made by prisoners, 97 per cent of which came from Maghaberry Prison, which houses prisoners who claim allegiance to unlawful paramilitary organisations. Those prisoners’ main concerns related to controls on their movements, the use of full-body searching and the refusal to allow prisoners to enter separated conditions. No figures are supplied on complaints of assaults by prison officers. A group of independent assessors undertook a review of an agreement which was reached with republican prisoners in 2010 on how their concerns should be dealt with, and the prisoners accepted its recommendation that a ‘prisoner forum’ should be reinvigorated. But consensus could not be reached on who should chair that forum, so it did not meet. As the Prisoner Ombudsman rather gloomily summed up, ‘It is therefore increasingly difficult to offer creative solutions to complaints received from separated republican prisoners’.61 In February 2015 an answer to a Freedom of Information Act inquiry revealed that in 2014 there were 38 allegations of assault made by prison officers against prisoners in Maghaberry Prison; this compares with 57 in 2013 and 34 in 2012.62 Sadly, the number of hate motivated incidents rose again in 2014–15. Sectarian hate incidents went up from 1,284 in the previous year to 1,517; race hate incidents from 982 to 1,356; homophobic incidents from 280 to 334; and disability incidents from 107 to 138.63 The race and disability hate incidents were the highest ever, but sectarian incidents have been much more numerous in some previous years. In May 2014, First Minister Peter Robinson caused widespread consternation when, in an attempt to defend a pastor who in a sermon to his congregation had described the Islamic faith as ‘satanic’ and a ‘doctrine spawned in hell’, said that he would not trust Muslims for spiritual guidance but he would trust them to go to the shops for him and in other day-to-day activities.64 These remarks were seen as horribly patronising and prompted a large anti-racism demonstration in Belfast’s city centre. Anna Lo, an Alliance Party Member of the Northern Ireland Assembly and the only Chinese-born parliamentarian in the United Kingdom or Ireland, announced that she was so disillusioned with sectarian attitudes in Northern Ireland that she was thinking not only of quitting politics but of leaving Northern Ireland altogether.65 Domestic Violence and Child Abuse As regards domestic violence, in 2014–15 there were 28,287 incidents, the highest number ever recorded. Of these, 16,360 were ones where no offence was recorded, but

60 

Ibid, Table 16. The Prisoner Ombudsman for Northern Ireland, ‘Annual Report 2014–15’ (n 16) p 15. 62  Information available at: www.dojni.gov.uk/sites/default/files/publications/doj/15-40-assaults-in-maghaberry2010-2014.pdf. 63  Trends in Hate Motivated Incidents and Crimes Recorded by the Police in Northern Ireland 2004/05 to 2014/15 (PSNI, 2015) p 9, available at: www.psni.police.uk/globalassets/inside-the-psni/our-statistics/hatemotivation-statistics/hate_motivated_incidents_and_crimes_in_northern_ireland_2004-05_to_2014-15.pdf. 64  ‘Robinson: I wouldn’t trust Muslims spiritually but I’d trust them to go to the shops’ Irish News, 28 May 2014. 65  ‘Anna Lo to Quit NI Politics over Disillusionment’ BBC News, 29 May 2014, available at: www.bbc.co.uk/ news/uk-northern-ireland-27616319. 61 

Correspondent Reports—Dickson 173 the remaining 11,927 incidents involved a total of 13,426 crimes, again the highest ever number. For every 1,000 people in the population there were 15 domestic incidents and seven domestic crimes. Thirteen per cent of the victims of domestic crimes were under the age of 18, while 70 per cent of victims were female and 30 per cent were male. Some 84 per cent of all victims were or had been in a relationship of some kind with the alleged perpetrator. The 2014–15 figure for rape offences was 176, the highest level ever recorded and 35 more than in 2013–14. About 24 per cent of these offences were categorised as having a domestic abuse motivation, a slight decrease on the previous year.66 The Historical Institutional Abuse Inquiry continued its work throughout 2014.67 This is looking at allegations of abuse in residential institutions in Northern Ireland (except schools) during the period 1922 to 1995. It has now completed its process of listening to people who were children in those institutions at the time (the ‘Acknowledgement Forum’), including 428 who attended the Forum in person, and since January 2014 it has been holding public hearings into whether abuse occurred, daily transcripts of which are published on the Inquiry’s website. Thirteen institutions are currently listed as under investigation and the Inquiry’s report is due to be published in January 2017. The PSNI continued to investigate numerous incidents of alleged child sexual exploitation (CSE) and in November 2014 a report was published by an independent inquiry chaired by Professor Kathleen Marshall, a former Commissioner for Children and Young People in Scotland.68 The inquiry team had been asked to establish the nature and extent of CSE in Northern Ireland, to examine the effectiveness of current cross-sectoral child safeguarding measures to tackle CSE, and to make recommendations on how best to prevent CSE. It found that between 100 and 145 children were currently at significant risk of CSE but that the number actually experiencing CSE was likely to be significantly higher.69 It made 60 ‘key’ and a further 60 ‘supporting’ recommendations, many of which focused on the need for a more collaborative and strategic approach on the part of various public bodies such as government departments, the police and health trusts. The Safeguarding Board for Northern Ireland also conducted work on a thematic review of CSE in 2014 but this was not complete by the year’s end. The Board had itself been created in 2012 to ensure that agencies working on child protection did so in a coordinated way. In October 2014 it published a useful booklet on how to define and deal with CSE.70 In its July 2014 Concluding Observations on the UK’s report under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, the UN Committee on the Rights of the Child lamented that several measures taken in England and Wales to help protect children from harm had not yet been extended to Northern Ireland.71 These included the work of the National Crime

66  Figures in this paragraph are taken from www.psni.police.uk/globalassets/inside-the-psni/our-statistics/ domestic-abuse-statistics/domestic_abuse_incidents_and_crimes_in_northern_ireland_2004-05_to_2014-15. pdf, pp 6–8 and 11–12. 67  The Historical Institutional Abuse Inquiry’s website is www.hiainquiry.org. 68 www.cjini.org/CJNI/files/f0/f094f421-6ae0-4ebd-9cd7-aec04a2cbafa.pdf. 69  Ibid, at p 79. 70  Safeguarding Board for Northern Ireland, ‘Child Sexual Exploitation: Definition and Guidance’ (October 2014), available at: www.safertoknow.info/sites/default/files/CSE%20professional%20definition%20and%20 guidance.pdf. 71 See http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2f OPSC%2fGBR%2fCO%2f1&Lang=en.

174  The Irish Yearbook of International Law 2014 Agency and making it an offence for a non-national to arrange the trafficking of a child outside the jurisdiction. THE RIGHT NOT TO BE SUBJECTED TO FORCED LABOUR

A report commissioned by the Joseph Rowntree Foundation and written by Neil Jarman was published in June 2014 on the topic of forced labour in Northern Ireland.72 While recognising that progress had been made in this field since 2011, with the Department of Justice, the PSNI and the Organised Crime Task Force having referred to the phenomenon in various policy documents, Jarman concluded that more needed to be done. He found that there was restricted capacity to investigate potential cases of forced labour in Northern Ireland because responsibilities were spread across many agencies and there was limited co-ordination of responses or information-sharing.73 In 2014, according to the National Crime Agency, 45 persons in Northern Ireland were referred by the police under the National Referral Mechanism as suspected of having been trafficked.74 This was just two per cent of the total number of persons referred in the UK but was a 10 per cent rise on the previous year’s number. Interestingly, the majority of persons referred in Northern Ireland had allegedly suffered labour exploitation and not sexual exploitation. The main countries from which they were trafficked were Romania (22) and China (10). During 2014, the Assembly debated and approved the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act, which received Royal Assent in January 2015. It started life as a Private Member’s Bill promoted by Lord Morrow, a DUP MLA. It helps to implement in Northern Ireland the obligations imposed by the Council of Europe’s Convention on Action against Trafficking in Human Beings 2005 and the EU’s Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011.75 Amongst other things, the Act provides for slavery and trafficking prevention orders, sets a sentence for those convicted of trafficking and slavery-like offences,76 makes it easier to confiscate criminal assets which result from such behaviour,77 allows courts to order persons convicted of these offences to pay compensation to their victims,78 and makes additional provision regarding assistance for victims and potential victims of trafficking.79 The most controversial provision is section 15, which repeals the previous law that made it an offence to loiter or solicit for purposes of prostitution80 and creates the new offence of paying for the sexual services of a person.81 This is the approach which Sweden has adopted to try to reduce incidents of prostitution, but opinions differ as to whether the reform is desirable. Amnesty International was against the 72 file:///C:/Users/2094932/Downloads/Forced-Labour-Northern-Ireland-FULL%20(1).pdf. 73 

Ibid, p 3. No More Traffik, ‘2014 Trafficking Statistics for UK’ (21 January 2015), available at: www.nomoretraffik. com/2014-trafficking-statistics-for-uk. 75  Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, 2011/36/ EU, OJ L 101, 15.4.2011, pp 1–11. 76  Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act, s 11 and Sch 3. 77  Ibid, s 8. 78  Ibid, s 10 and Sch 2. 79  Ibid, ss 17–21. 80  Sexual Offences (NI) Order 2008, art 59. 81  This is now art 64A of the Sexual Offences (NI) Order 2008. 74 

Correspondent Reports—Dickson 175 move,82 and the PSNI was sceptical.83 MLAs on the Assembly’s Committee on Justice, which reported on Lord Morrow’s Bill in April 2014, visited Sweden to obtain more information on how the law was working there, but they remained split as to whether the criminalising of paying for sex was a good idea or not.84 In Re RE’s Application, Treacy J granted judicial review of a decision by the UK Border Agency that on the balance of probabilities the applicant had not been the victim of human trafficking, but he stopped short of finding a violation of Article 4 of the ECHR because the availability of judicial review indicated that the State had not yet failed in its positive obligations towards the applicant.85 THE RIGHT TO LIBERTY

Non-Terrorist Cases In the period 1 April 2014 to 31 March 2015 there were 24,377 arrests under the Police and Criminal Evidence (NI) Order 1989 (the PACE Order),86 just 1.1 per cent fewer than in 2013–14. All but 94 of the people arrested were charged or released without charge within 24 hours. Of the 94 who were detained beyond 24 hours, 49 were held for up to 12 additional hours and then released without charge. The remaining 45 people were the object of applications to a district judge for warrants of further detention to allow them to be detained for longer than 36 hours, a rise of 11 applications on the 2013–14 figure. All of the 45 applications were granted; 22 were for further detention of 24 hours or less, one was for 30 hours and the remaining 22 were for 36 hours.87 In the same period 2,831 people were arrested for drug offences, 1.3 per cent fewer than in 2013–14.88 These are likely to have been carried out under the Misuse of Drugs Act 1971. In Re HA’s (A Minor) Application a Divisional Court ruled that the power to attach conditions to pre-charge bail under the PACE Order,89 without automatic and prompt production of the person before a judge, was compatible with Article 5(3) of the ECHR.90 The Court said that, while Article 5(3) imposes an obligation on the State to ensure an automatic and prompt review of the lawfulness of the continued detention of a person held in custody and the existence of reasonable suspicion, such an obligation does not arise in the case of someone who is not detained but is on bail.

82  Grainne Teggart, ‘Human trafficking clause that criminalises prostitution is no safeguard for sex workers’, Belfast Telegraph, 7 March 2014. 83  Liam Clarke, ‘Criminalising people who pay for sex won’t help anti-trafficking fight, says police chief’, Belfast Telegraph, 5 September 2013. 84 www.niassembly.gov.uk/globalassets/documents/reports/justice/report-on-human-trafficking-bill.pdf, paras 11–13. 85  Re RE’s Application [2014] NIQB 15. 86 Figures taken from: www.psni.police.uk/globalassets/inside-the-psni/our-statistics/police-and-criminalevidence/pace_statistics_report_2014.15.pdf, p 3. 87  Ibid, p 4. The information provided is not clear as to whether any individual was held for more than 72 hours. 88  Figures taken from: www.psni.police.uk/globalassets/inside-the-psni/our-statistics/drug-seizure-statistics/ annual_statistics_report_drug_seizures_and_arrests_2014-15.pdf, p 10. 89  PACE Order, art 48(3D). 90  Re HA’s (A Minor) Application [2014] NIQB 115.

176  The Irish Yearbook of International Law 2014 In Re RS’s Application,91 Treacy J, perhaps surprisingly, held that a man’s detention under the Mental Health (NI) Order 1983 was unlawful because the doctor in question had not provided evidence on the prescribed form to support his opinion that detention was justified at that particular time. The judge stressed that filling out the form needed to be taken very seriously by the doctors concerned.92 During 2014 the Department of Health, Social Services and Public Safety in Northern Ireland (DHSSPS) and the Department of Justice jointly consulted on how to proceed when a detained patient lacks capacity to make a referral to the Mental Health Review Tribunal. The matter will be addressed in the Mental Capacity Bill to be debated by the Assembly during 2015 and in the meantime the DHSSPS will issue non-statutory guidance reminding professionals in the field of their statutory duty to take such reasonable steps as are practicable to ensure that the nearest relative of a detained patient is provided with a written statement of his or her rights.93 It will also point out that a doctor can refer a case to the DHSSPS or the Attorney General where there is reason to think that a patient who lacks capacity to make a referral to the Tribunal would wish to do so.94 Changes are required to the law throughout the UK on this matter because of the adverse judgment of the ECtHR in MH v UK.95 Terrorist Cases As regards terrorism-related arrests in 2014–15, 227 people were arrested in Northern Ireland under section 41 of the Terrorism Act 2000, an increase of 59 (35 per cent) on the figure for 2013–14 and the highest number since 2005–06.96 To put the figures into perspective, in the whole of the rest of the UK there were just 65 arrests under section 41 in 2014,97 but in Great Britain there were, in addition, 289 ‘terrorism-related arrests’, which refer to arrests carried out under other legislation, such as the Police and Criminal Evidence Act 1984. This suggests that the police in Northern Ireland more routinely resort to the Terrorism Act power than their colleagues in Great Britain, perhaps because the persons so arrested can then be held under powers which allow the police more leeway than exists under the powers applying in non-terrorism cases.98 Another possible reason is that the ‘terrorism-related arrests’ may relate to acts in preparation of terrorism which, while unlawful under the Terrorism Act 2006, may not be something for which a person can be arrested under section 41 of the Terrorism Act 2000. The 2006 Act also applies in Northern Ireland but the nature of the terrorist activities conducted by dissident republicans and some residual loyalist groups may be different from that which is characteristically conducted by Islamic extremists in Great Britain: the latter, for example, make much more use of the internet and social media.99 91 

Re RS’s Application [2014] NIQB 88. Ibid, [51]–[53]. 93  Under the Mental Health (NI) Order 1986, art 27(2)(c). 94  Ibid, art 72. 95  MH v UK (2014) 58 EHRR 35. 96 Figures taken from: www.psni.police.uk/globalassets/inside-the-psni/our-statistics/security-situation-­ statistics/documents/annual_security_situation_statistics_report_2014-15.pdf, p 8. 97  Figures taken from: https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/09/ Terrorism-Acts-Report-2015_web-version.pdf, p 36. 98  For details as to the differences in the powers, see Brice Dickson and Brian Gormally (eds), Human Rights in Northern Ireland: The CAJ Handbook (Oxford, Hart Publishing, 2015), Ch 3. 99  Figures taken from data given in n 97, p 37. 92 

Correspondent Reports—Dickson 177 Of the 227 people arrested in Northern Ireland under section 41 of the Terrorism Act 2000, only 19 were the object of applications to extend their detention beyond the normal maximum, which is 48 hours rather than 36 as in PACE Order cases.100 The longest period of detention was between six and seven days, even though the permitted maximum is 14 days (as opposed to just four days in PACE Order cases).101 All 19 applications for extensions were granted, and 17 of the people involved were charged with an offence. Only 35 (18 per cent) of the 227 people arrested were charged with any kind of offence, while in Great Britain 96 (27 per cent) of the 354 people arrested on reasonable suspicion of involvement in terrorism or of some terrorism-related activity were charged with terrorism-related offences. David Anderson QC has expressed disappointment at the ‘persistently low’ charging rates in Northern Ireland, which he thinks may indicate that the arrest power is overused in Northern Ireland, even taking account of the fact that terrorist incidents are far more common there.102 The fact remains that the total number of charges laid against the 35 individuals charged in 2014–15 was 130 and they included 29 charges of murder, 16 charges of membership of a proscribed organisation, 16 charges connected with firearms offences, seven charges of directing a terrorist organisation and a further seven charges of preparing a terrorist act.103 As in 2013–14, no one person was charged with failing to disclose information which he or she knew or believed might be of material assistance in preventing the commission by another person of an act of terrorism, or in securing the apprehension of such a person.104 Fifty-three of the 227 persons arrested in Northern Ireland under section 41 of the Terrorism Act 2000 made a request to have someone informed of their detention, a right which is granted by the Act itself.105 All but two of these requests were granted immediately and in the remaining two cases access was delayed for less than 12 hours.106 The number of arrested persons who requested access to a solicitor was 220, and all of these requests were granted immediately.107 It had been hoped that during 2014 the UK Supreme Court would have issued judgment in the case of Beghal v Director of Public Prosecutions,108 which concerns the compatibility of the powers of questioning and detention at UK ports with the ECHR. But the hearing did not take place until November and judgment was not expected until mid-2015. Likewise, by the end of 2014 the application brought to Strasbourg by Sabure Malik concerning his detention, questioning and search at London Heathrow airport under anti-terrorism legislation had still not been decided by the ECtHR.109

100 Northern Ireland Office (NIO), ‘Northern Ireland Terrorism Legislation: Annual Statistics 2014/15’ (NIO, 2015), p 8, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/465088/ Terrorism_Bulletin_2014-2015.PDF. 101  Ibid, p 11. 102 Ibid. 103  Ibid, pp 14–15. 104  Ibid, p 24. 105  Terrorism Act 2000, Sch 8, para 6. 106  NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 12. 107  NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 13. Access to a solicitor is a right conferred by the Terrorism Act 2000, Sch 8, para 7. 108  Beghal v Director of Public Prosecutions [2015] UKSC 49, [2015] 3 WLR 344. 109  www.echr.coe.int/Documents/CP_United_Kingdom_ENG.pdf, p 5. This is App No 32968/11, declared admissible on 28 May 2013.

178  The Irish Yearbook of International Law 2014 In Re Rodger’s Application,110 Stephens J considered at some length the alleged lack of fairness in the applicant not having been granted the royal prerogative of mercy. He had spent 16 years in prison for a sectarian murder committed in 1974. He rehabilitated himself during the next 20 years but was then arrested on suspicion of having committed another murder in 1973. In 2013 he was convicted of that murder and sentenced to another minimum term of 16 years,111 although under the Northern Ireland (­ Sentences) Act 1998 he is entitled to accelerated release after having served just two years in prison.112 The applicant argued that he should have been granted a royal pardon and not required to spend any time in prison but the judge rejected his arguments. THE RIGHT TO A FAIR TRIAL

Trials without Juries In 2014–15, 63 defendants were disposed of at non-jury trials under section 1 of the Justice and Security (NI) Act 2007. Of these, 49 (78 per cent) were found guilty of at least one offence.113 These figures are similar to those from the previous two years. Since the ‘new’ Diplock Courts began operating in 2007, under a system which requires cases to be specifically selected for a non-jury trial by the Director of Public Prosecutions (the DPP), as opposed to being specifically excluded from non-jury trial, a total of 156 non-jury trials have been authorised114 and 460 people have been tried. Just over 17 per cent have been found not guilty of all charges.115 An attempt to judicially review the Minister for Justice’s decision not to award compensation for a miscarriage of justice was unsuccessful in Re Magee’s Application.116 Mr Magee’s conviction had been overturned by the Court of Appeal in 2001,117 after he had taken his case first to the ECtHR118 and then to the Criminal Cases Review Commission. But Gillen LJ held that the miscarriage was not due to ‘a new or newly discovered fact [which] shows beyond reasonable doubt that there has been a miscarriage of justice’, as required by legislation.119 The refusal to grant the applicant access to a solicitor and the coercive atmosphere in Castlereagh police station back in 1990 when he was questioned there were facts known to his lawyers at the time of his trial without a jury, but they did not raise them then. Applying Re Fitzpatrick,120 the judge said that the case was an illustration of where a change in legal standard subsequent to the trial of an applicant whose conviction was in accordance with the law at the time of trial cannot be viewed

110 

Re Rodger’s Application [2014] NIQB 79. [2013] NICC 2 and 4 (Horner J). 112  Northern Ireland (Sentences) Act 1998, s 10(6). 113  NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 19. 114  NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 20. 115  NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 20. 116  Re Magee’s Application [2014] NIQB 142. 117  R v Magee [2001] NI 217. 118  Magee v UK (2001) 31 EHRR 35. 119  Criminal Justice Act 1988, s 133(1). 120  Re Fitzpatrick [2013] NICA 66. 111 

Correspondent Reports—Dickson 179 as the discovery of a new fact.121 Under a provision in the Anti-Social Behaviour, Crime and Policing Act 2014,122 in force from 13 March 2014,123 a person is deemed to have suffered a miscarriage of justice in Northern Ireland only if the newly discovered fact shows beyond reasonable doubt that he or she did not commit the offence, a test which effectively requires the person to prove his or her innocence. Access to Legal Advice The Legal Aid and Coroners’ Courts Act (NI) 2014 implemented the main recommendation of the Access to Justice Review, which reported in 2011,124 namely that the responsibility for the delivery of civil legal aid and assistance should be removed from a non-departmental public body (the Northern Ireland Legal Services Commission) and given instead to an executive agency within the Department of Justice, but with guarantees that the independence of decision-making in relation to grants of civil legal aid would be safeguarded. The safeguards are to be found in section 3 of the 2014 Act, which stipulates that, while the Director of Legal Aid Casework must comply with directions given by the Department and have regard to guidance issued by the Department, the Department must not give a direction or guidance about the granting of civil legal aid in individual cases and it has a positive duty to ensure that the Director acts independently when applying a direction or guidance. Appeals against decisions of the Director are heard by panels of prescribed persons.125 The new Legal Service Agency was eventually inaugurated on 1 April 2015. It is intended to increase transparency, accountability and efficiency in the field of civil legal aid. Awards of criminal legal aid remain the responsibility of the criminal courts themselves. In January 2014, the UK Supreme Court allowed the applicant’s appeal in Re Brownlee’s Application, where his argument was that a modification should have been made to the standard legal aid fees to allow him to be legally aided for the sentencing hearing in his case.126 In February the Minister for Justice, exercising powers conferred by the Legal Aid, Advice and Assistance (NI) Order 1981,127 authorised civil legal aid of £157,600 for the respondents to an appeal brought by Colm Murphy and Seamus Daly against the High Court decision that they were liable to pay compensation to the respondents for losses caused as a result of the Omagh bomb in 1998, which killed 29 people and two unborn children.128 A month later the ECtHR communicated the case of McKevitt 121  Re Magee’s Application (n 116), [44]. See generally Marny Requa, ‘Revisiting the Past: Miscarriages of Justice, the Courts and Transition’ in Anne-Marie McAlinden and Clare Dwyer (eds), Criminal Justice in Transition: The Northern Ireland Context (Oxford, Hart Publishing, 2015) Ch 12. 122  Anti-Social Behaviour, Crime and Policing Act 2014, s 175, amending the Criminal Justice Act 1988, s 133. 123  Ibid, s 185(2)(a). 124  Available at: www.courtsni.gov.uk/en-GB/Publications/Public_Consultation/Documents/Access%20to% 20Justice%20Review%20Northern%20Ireland%20-%20The%20Report/Access%20to%20Justice%20 Review%20FINAL%20REPORT.pdf. 125  Access to Justice (NI) Order 2003, art 20A. 126  Re Brownlee’s Application [2014] UKSC 4. 127  Legal Aid, Advice and Assistance (NI) Order 1981, art 10A(2)(b), inserted by the Legal Aid (NI) Order 2005, art 2. 128  See www.dojni.gov.uk/sites/default/files/publications/doj/lsani-doj-authorisation-omagh-civil-action-06february-2014.pdf.

180  The Irish Yearbook of International Law 2014 and Campbell v UK to the UK Government.129 This is being brought by two former members of the IRA who were found liable in the civil proceedings just mentioned. Relying upon Articles 6(1) and 6(3)(d) of the ECHR, they are arguing that hearsay evidence should not have been taken into account by the civil court. A decision by the ECtHR is not expected until 2016 at the earliest. By the end of the year, lawyers in Northern Ireland were gearing up to again engage in strike action to protest against the Minister for Justice’s plans to curb expenditure on civil legal aid, particularly in family law cases. They went on strike in 2011, when cuts were made to the criminal legal aid budget, but in the end they had to live with the changes. In 2014 the Minister’s position was strong, as he could demonstrate that the amount of money being spent per capita on legal aid in Northern Ireland was still amongst the highest in the world, although the Law Society disputed his figures.130 In 2013–14 the total amount paid in legal aid fees to barristers and solicitors in Northern Ireland was £104.2 million, some 10 per cent higher than in the previous year.131 In December 2014 a Chamber of the ECtHR issued its judgment in Ibrahim v UK, a case taken by some of the 21 July 2005 London bombers who complained that there had been an unwarranted and prejudicial delay in providing them with access to a lawyer during police questioning.132 The Chamber held by six to one that there had been no violation of Article 6 because: (a) the police were justifiably concerned that access to legal advice would lead to the alerting of other suspects at a time when there was an exceptionally serious threat to public safety;133 (b) in relation to the first three applicants, the counterbalancing safeguards contained in the legislative framework, the trial judge’s ruling on admissibility and the strength of other prosecution evidence meant that no undue prejudice had been caused; and (c) in relation to the fourth applicant he had later confirmed his earlier statement after he received legal advice. This decision provides further evidence that the ECtHR is increasingly giving States leeway to deal with terrorist suspects differently from other suspects. The Chamber’s decision has since been referred to the Grand Chamber,134 perhaps an opportunity for greater emphasis to be placed on this significant jurisprudential development. Victims’ Rights In 2013–14 the Victims of Crime Fund allocated more than £208,000, obtained through the ‘offender levy’,135 to projects which supported victims and witnesses in the criminal justice process.136 This included a payment of £74,000 to the Victim Witness Care Unit. However, victims of troubles-related killings received a severe blow. In February 2014 the trial in London of John Downey, who was accused of involvement in planting a bomb at Hyde Park in 1982 which killed four British soldiers, was halted as the judge thought 129 

McKevitt and Campbell v UK (App Nos 62780/12 and 61474/12). Chris Kilpatrick, ‘Lawyers Slam David Ford’s Plan to Cut Legal Aid Budget’ Belfast Telegraph, 3 March 2014, available at: www.belfasttelegraph.co.uk/news/northern-ireland/lawyers-slam-david-fords-planto-cut-legal-aid-budget-30056365.html. 131  See Adam Kula, ‘Lawyers’ Legal Aid Fees Described as Staggering’ News Letter, 16 April 2015, available at: www.newsletter.co.uk/news/northern-ireland-news/lawyers-legal-aid-fees-described-as-staggering-1-6692409. 132  Ibrahim v UK (2015) 61 EHRR 9. 133  Ibid, [198], [201] and [203]. 134  file:///C:/Users/2094932/Downloads/003-5097825-6282370.pdf, p 4. 135  Authorised by the Justice Act (NI) 2011, ss 1–6. 136 www.dojni.gov.uk/sites/default/files/publications/doj/victims-of-crime-fund-2012-13and-2013-14.pdf. 130 See

Correspondent Reports—Dickson 181 the prosecution was an abuse of process. This was because in 2007 Mr Downey had received a letter from the Northern Ireland Office (NIO) telling him that he was not wanted for questioning by the PSNI and that the PSNI were not aware of any interest in him by any other police force, the latter statement being untrue.137 The acquittal provoked a political storm, with unionist politicians arguing that they had been kept in the dark about this so-called ‘on the runs’ scheme, and it led to three inquiries apart from the PSNI’s own internal review of how they had been operating the scheme. One of these, conducted by the Northern Ireland Affairs Committee of the House of Commons, was not due to be published until the middle of 2015. Of the other two inquiries, the first was conducted by a senior Court of Appeal judge in England, Dame Heather Hallett.138 This looked at the operation of the scheme between 2000 and 2014, when it was terminated. Dame Heather concluded that the scheme was unprecedented and flawed, but not unlawful and not an ‘amnesty’. She found that there was a lack of structure and strategy to the scheme, as well as inadequate liaison between the organisations responsible, and that the error that led to the sending of a letter of assurance to Mr Downey was the result of a mistake by the PSNI which, though later identified, was inexplicably not corrected. The Hallett review unearthed two more occasions where a letter of assurance seems to have been sent in error. The second inquiry was by the Police Ombudsman for Northern Ireland, who investigated the PSNI’s operation of the scheme between 2007 and 2009 and concluded that it was marked by ‘a lack of clarity, structure and leadership, with disjointed communication between key officers’. He found that perhaps the most serious flaw was that under the scheme the PSNI applied a higher standard when considering whether someone should be arrested than that which they would have normally applied. John Downey was one of 36 people who had previously been assessed as ‘wanted’ but were then re-assessed as ‘not wanted’. At no point did the PSNI record that they were not aware that Mr Downey was wanted by another police service, yet they asserted as much when responding to inquiries from the NIO.139 In Re Mooney’s Application, Article 8 of the ECHR, rather than Article 6, was cited in support of a successful application by the victim of a crime to overturn a prosecutor’s decision not to commence proceedings against an alleged offender.140 Miscellaneous Issues Reacting to a Divisional Court decision in 2013,141 which declared the previous law to be incompatible with Article 6 of the ECHR, the Magistrates Courts (Amendment) Rules

137  R v Downey, available at: www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/r-vdowney-abuse-judgment.pdf. 138  An Independent Review into the On the Runs Administrative Scheme, available at www.gov.uk/ government/uploads/system/uploads/attachment_data/file/335211/41003_Hallett_Review_Print_Ready.pdf. The review reported that of the 228 names put forward by Sinn Féin, the Irish Government and the Northern Ireland Prison Service, 156 received letters of assurance confirming they were not wanted, another 31 were told in some other way that they were not wanted, 23 were told they were wanted and 18 had not yet been told their status. 139  See www.policeombudsman.org/PONI/files/9d/9d6aa90c-5429-43cd-9f66-8ed229fde238.pdf. 140  Re Mooney’s Application [2014] NIQB 48. 141  Re McLarnon’s Application [2013] NIQB 40.

182  The Irish Yearbook of International Law 2014 (NI) 2014 were introduced. These require district judges to hold a fine default hearing before they imprison someone for non-payment of a fine. In 2014 only 48 persons were committed to prison for fine default, while in 2013 the figure was 205, a reduction of 77 per cent. In R v Higgins, the Court of Appeal quashed a confiscation order on the basis that the defendant’s Article 6 rights had been breached, citing a ‘combination of procedural errors and shortcomings, the protracted delays and the discharge of counsel in circumstances in which the applicant should have had the benefit of legal assistance’.142 In R v Foronda the Court of Appeal found no violation of Article 6 but did make suggestions as to how the system whereby defendants and witnesses are provided with interpreters could be improved.143 Re McClean’s Application is a rare example of Article 4 of Protocol 7 to the ECHR being considered in a domestic court.144 The UK has not ratified or even signed Protocol 7. Article 4 provides that no-one shall be liable to be tried and punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted. In this case a prisoner who had already been punished by a prison governor for an assault was later prosecuted for the same offence. The Divisional Court quickly concluded that the prison adjudication proceedings were not criminal proceedings for the purposes of Article 4.145 It also referred to the UN Standard Minimum Rules for the Treatment of Prisoners and to the European Prison Rules, which prohibit punishing a prisoner twice for the same act or conduct. The Court said that it was accepted that, if the appellant were to be found guilty in any criminal proceedings, allowance would have to be made for the fact that he had already been subject to the adjudication.146 In an unreported case brought by a former dissident republican prisoner, Terence McCafferty, the Secretary of State made what appears to have been a successful application to use a closed material procedure in his civil claim for false imprisonment.147 This was the first time such a procedure, allowed for under the Justice and Security Act 2013, was applied for in Northern Ireland. THE RIGHT TO A PRIVATE AND FAMILY LIFE

Policing Issues Under section 47A of the Terrorism Act 2000, which replaced section 44 of the same Act in 2012,148 the police can, in order to prevent terrorism, stop and search vehicles and

142 

R v Higgins [2014] NICA 47, [42]. R v Foronda [2014] NICA 17, [14]–[17]. 144  Re McClean’s Application [2014] NIQB 124. 145  Ibid, [32]. 146  Ibid, [33]. 147 See Barry McCaffrey, ‘Secretary of State Requests Use of Secret Courts for First Time in Northern Ireland Civil Cases’ The Detail, 24 March 2014, available at:www.thedetail.tv/articles/ secretary-of-state-requests-use-of-secret-courts-for-first-time-in-northern-ireland-civil-cases. 148  Protection of Freedoms Act 2012, ss 61 and 115(2), and Sch 10, Pt 4. 143 

Correspondent Reports—Dickson 183 their occupants, as well as pedestrians, provided that this has been authorised by a senior police officer. Any such authorisation applies to a specific area and can endure for a maximum of 14 days, but the area may be the whole of Northern Ireland and authorisations can be renewed an indefinite number of times. In 2014–15 no such stop and searches took place; in fact the power has hardly been used at all since it was introduced in 2012.149 Under section 37 of, and Schedule 5 to, the Terrorism Act 2000, the police can search premises for the purposes of a terrorist investigation if they are acting under a warrant issued by a lay magistrate. The warrant also allows the police to search any person found on the premises and to seize any relevant material which is found. In 2014–15 there were searches of 162 premises in Northern Ireland, compared with 107 in the previous year.150 In Re McVeigh’s Application, a challenge was made to the compatibility of the power to search premises with the rights protected by Article 8 and Article 1 of Protocol 1 to the ECHR, but because the challenge was made during the course of a criminal prosecution the judge held that it should be dealt with at that trial rather than in satellite litigation.151 The Independent Reviewer of the Justice and Security (NI) Act 2007, David Seymour, reported that in the period from August 2013 to July 2014, the overall use of stop and search powers in Northern Ireland fell from 32,951 the previous year to 30,912 (a 6 per cent drop).152 Only 190 of the stop and searches led to a complaint (0.6 per cent).153 Many of the stop and searches previously conducted under the anti-terrorism legislation were conducted instead under ‘ordinary’ legislation. Incidents where people were stopped and questioned under section 21 of the 2007 Act fell from 2,670 to 1,830 (31 per cent fewer), the number of premises entered under section 23 fell from 147 to 25 (83 per cent fewer), and stops and searches under section 24 for munitions and transmitters fell from 7,320 to 4,860 (34 per cent fewer).154 Moreover, stops and searches under section 43 of the Terrorism Act 2000 dropped from 165 to 96 (42 per cent less).155 It seems clear that in previous years the anti-terrorism powers were often deployed when they were not in fact necessary. Mr Seymour is content that the powers he reviews are not being used arbitrarily, disproportionately or in a discriminatory way, but he suggests that perceptions might be improved if there was greater transparency in their use, if lay ­people could observe their use and if police officers could deploy body worn cameras.156 By the year’s end consideration was being given by the PSNI to monitoring the community background of people stopped and/or searched and Mr Seymour seems to think that that would be a worthwhile development.157 Two challenges were made in the courts to the legality of the stop and question and stop and search powers under sections 21 and 24 of the 2007 Act. In Re Ramsey’s ­Application, the judge rejected the allegation that, despite there being a Code of Practice

149 

NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 5. NIO, ‘Northern Ireland Terrorism Legislation’ (n 100), p 6. Re McVeigh’s Application [2014] NIQB 57. 152  ‘Report of the Independent Reviewer, Justice and Security (Northern Ireland) Act 2007, Seventh Report: 1 August 2013–31 July 2014’ (January 2015), available at: www.gov.uk/government/uploads/system/uploads/ attachment_data/file/397442/7th_Report_-_Independent_Reviewer_of_JSA__NI__2007.pdf, p 19. 153  Ibid, p 21. 154  Ibid, p 18. 155 Ibid. 156  Ibid, pp 19–25. 157  Ibid, pp 25–29. 150  151 

184  The Irish Yearbook of International Law 2014 for how the power should be exercised, the police were still not acting ‘in accordance with law’ as required by Article 8.158 On the other hand, in Re McAreavy’s Application the same judge accepted the allegation that there had not been a proper consultation on the Code of Practice because a paragraph which required the police to provide detainees with a record of the stop at the time it took place had been removed from the Code after the consultation process had ended.159 A further six-week consultation was therefore held on that aspect of the Code towards the end of 2014.160 During 2014, the Department of Justice had hoped to bring into force the measures enacted in the Criminal Justice Act (NI) 2013 to make Northern Ireland’s law on retention of fingerprints and DNA profiles consistent with the ECtHR’s judgment in S and Marper v UK,161 but this did not occur. When it does, the police will be required to destroy all fingerprints and DNA samples within six months of them being taken from persons who have been arrested but released.162 In Re Wood’s Application a Divisional Court held that the PSNI had breached the law on the taking of non-intimate samples.163 It ruled that the police do not have power under the PACE Order164 to take a non-intimate sample at any time and in any place from a person charged with a recordable offence unless there has been the appropriate consent. In another important case involving the police, Re DB’s Application, the applicant challenged the PSNI’s approach to the policing of ‘parades’ by loyalist flag protestors in January 2013.165 As the ‘parades’ were not notified, as they should have been under the Public Processions (NI) Act 1998, the applicant argued that the PSNI had facilitated illegality, undermined their statutory duties to protect life and property, preserve order and prevent offences166 and violated the applicant’s rights under Article 8 of the ECHR. Treacy J held for the applicant at first instance167 but the Court of Appeal reversed him. It applied the principles set out by the House of Lords and the ECtHR in the case ­concerning the ‘protests’ at Holy Cross Girls Primary School in 2001.168 As the Court of Appeal put it: The issues facing those policing this major public disruption, which extended far beyond Belfast to all parts of Northern Ireland, demonstrated the enormous difficulties for those policing modern societies in circumstances of community conflict and heightened tension. We consider that the decision to manage disruption and pursue a subsequent criminal justice charging policy was well within the area of discretionary policing judgement which such situations require in light of the challenges posed by the circumstances set out above.169

158  Re Ramsey’s Application [2014] NIQB 59. At [53], Treacy J referred to the similar view of the Court of Appeal of England and Wales in R (Roberts) v Commissioner of Police of the Metropolis [2014] EWCA Civ 69, [26]. 159  Re McAreavy’s Application [2014] NIQB 62. 160 See www.gov.uk/government/uploads/system/uploads/attachment_data/file/372951/Consultation_regarding_ the_Justice_and_Security__NI__Act_2007_Code_of_Pr….pdf. 161  S and Marper v UK (2009) 48 EHRR 50. 162  Justice Act (NI) 2015, s 83(3), amending Sch 2A to the PACE (NI) Order 1989. 163  Re Wood’s Application [2014] NIQB 119. 164  PACE Order, Arts 63 and 63A. 165  Re DB’s Application [2014] NICA 56. 166  Police (NI) Act 2000, s 32(1). 167  Re DB’s Application [2014] NIQB 55. 168  E v Chief Constable of the RUC [2008] UKHL 66, [2009] 1 AC 536 and PF and EF v UK (App No 28326/09), decision of 23 November 2010. 169  Re DB’s Application (n 165), [53].

Correspondent Reports—Dickson 185 In Re Swann’s Application, the applicant complained that the police had issued him with a ‘Harbourer’s Warning Notice’ (HWN) in breach of his Article 6 and 8 rights.170 An HWN, also known as ‘a Child Abduction Warning Notice’, is used by police throughout the UK to warn A that B, who has parental responsibility for child C, has forbidden C from contact with A and that for A to assist C to stay away from a parent may render A liable to arrest for child abduction. In this case A argued that there was no basis under statute or at common law for the issue of such notices, but Horner J disagreed, holding that the power was reasonably incidental to the duties imposed on the police by statute.171 Article 6 was not engaged because there was no civil right or obligation involved, but in issuing the notice the police had breached the common law’s requirement for fairness by not taking the applicant’s side of the story into account. There was also a violation of Article 8 because each HWN had been issued without any reasonable investigation and with no process for review or appeal, they were to remain in force until each of the children in question reached 16 years, and the information was to be retained indefinitely.172 In both Re Doherty’s Application173 and Re Cooley’s Application174 challenges were raised against the Chief Constable’s refusal to issue certificates stating that it was unsafe for the applicant or a member of his or her household to continue to reside in the house because that person had been directly threatened and as a result was at risk of ­serious injury or death.175 On the facts in Doherty, no breach of Article 8 was found but in Cooley the Court of Appeal held that the police had not given adequate reasons for refusing the certificate. The Court said that the test for the giving of reasons was whether or not they were required for the effective implementation of the domestic laws protecting the relevant right,176 citing the Article 2 decision of Jordan v UK.177 More generally, following a visit to Northern Ireland,178 the UN Special Rapporteur on Housing, Raquel Polnik, recommended in 2014 that additional efforts should be made to address persistent inequalities in housing in North Belfast.179 In Re McNamee and McDonnell’s Application, the Court of Appeal reversed Treacy J’s opinion more than two years earlier180 and held that the PSNI had not breached the applicant’s rights by delaying him access to a solicitor when in police custody.181 It accepted that a solicitor had the standing to make such an application for judicial review (even though the right of access is the detainee’s) but on the facts there was a legitimate purpose in denying access because the chosen solicitor was alleged to have been involved in the detainee’s supposed wrongdoing.

170 

Re Swann’s Application [2014] NIQB 81. Ibid, [26]–[31], citing the Police (NI) Act 200, s 32(1). 172  Ibid, [47]–[56]. 173  Re Doherty’s Application [2014] NIQB 6. 174  Re Cooley’s Application [2014] NICA 18. 175  This is the wording within the Special Purchase of Evacuated Dwellings (SPED) Scheme, drawn up under art 29 of the Housing (NI) Order 1988. 176  Re Cooley’s Application (n 174), [25]–[28]. 177  Jordan v UK (n 40). 178  Kate Ward, ‘Housing, the UN and Northern Ireland—Where to Now?’ Rights NI, 12 September 2013, available at: http://rightsni.org/2013/09/housing-the-un-and-northern-ireland-%E2%80%93-where-to-now. 179  A/HRC/25/54/Add.2, 30 December 2013. Presented to the UN Human Rights Council in March 2014. 180  Re McNamee and McDonnell’s Application [2011] NIQB 104. 181  Re McNamee and McDonnell’s Application [2014] NICA 13. 171 

186  The Irish Yearbook of International Law 2014 Custody Issues In 2014, Article 8 was raised in several applications brought for judicial review by persons in custody, especially in relation to temporary release. In Re Kane’s Application (Leave Stage) Stephens J refused leave to apply for judicial review to a prisoner who was given compassionate leave to attend his mother’s cremation but not her funeral mass.182 The judge said the Prison Service’s decision was well within the margin of appreciation granted to States under Article 8 of the ECHR. But in Re Smith’s Application, Treacy J held that the refusal to grant a prisoner compassionate leave to visit his terminally ill grandmother was a breach of Article 8.183 In Re McConville’s Application, Stephens J ruled that there was no violation of Article 8 when a prisoner was given temporary release for two days on the condition that he must have no contact, direct or indirect, with persons linked to paramilitary organisations or criminal activity.184 Given that the prisoner could have sought guidance on what in practice this meant from staff at the Probation Board, there was no such uncertainty as to render the interference with his right to a private life not ‘in accordance with law’.185 In Re Jones’ Application a prisoner who was a former police officer succeeded in his challenge to the police’s opening of his correspondence with a solicitor, the judge saying that this was exactly the kind of arbitrary and unregulated breach of privacy which ­Article 8 was designed to prevent.186 And in Re JR 70’s Application,187 a judge ruled that the Article 8 rights of a prisoner who had been denied access to a Sex Offenders’ Treatment Programme had been violated because the programme would have facilitated him being allowed some form of direct supervised contact with his daughter. On the other hand, in Re Makhlouf ’s Application, the Court of Appeal rejected a claim by a Tunisian that his deportation to his home country would be a violation of his right to a private life.188 This was because he had not kept in touch with his two children anyway and in fact had been denied contact with them by court orders. In Re Conway’s Application, the Court of Appeal affirmed that it had not been established on the evidence that there was a total inflexibility on the part of the Prison Service in the operation of their policy on the full body searching of prisoners entering and leaving Maghaberry Prison.189 There was therefore no violation of Article 8 (or of Article 3). In Re Stewart’s Application, a prisoner argued that his confinement in a Care and Supervision Unit at Maghaberry Prison violated his rights under Articles 3 and 8 of the ECHR, but O’Hara J easily rejected that claim.190 In Re HM’s Application, Treacy J applied the interpretative power conferred by section 3 of the Human Rights Act 1998 so as to read into the Mental Health (NI) Order 1986 provisions which added the detained patient him- or herself to the list of people who are

182 

Re Kane’s Application (Leave Stage) [2014] NIQB 118. See too Re McManus’s Application [2014] NIQB 105. Re Smith’s Application [2014] NIQB 50. Re McConville’s Application [2014] NIQB 109. 185  Ibid, [27]. 186  Re Jones’ Application [2014] NIQB 136. 187  Re JR 70’s Application [2014] NIQB 5. 188  Re Makhlouf ’s Application [2014] NICA 86. 189  Re Conway’s Application [2014] NICA 51. In Re Conway’s Application [2012] NICA 11, the Court of Appeal held that the same policy was not disproportionate. 190  Re Stewart’s Application [2014] NIQB 120, [19]. 183  184 

Correspondent Reports—Dickson 187 entitled to apply to the county court for a change of the patient’s ‘nearest relative’.191 He also read the list of grounds for a change of nearest relative as including ‘that the nearest relative of the patient is otherwise not a suitable person to act as such’. This decision is an excellent example of the ability of the Human Rights Act to modify existing laws in a way which makes them fairer. Treacy J felt confident in so acting because in ­England identical legislation had been amended following a High Court decision that it was incompatible with Article 8 and the ECtHR had subsequently confirmed that position.192 Another instance of section 3 being used to promote justice is the Court of Appeal’s ruling (obiter) in R v McGreechan,193 where it was prepared to read words into legislation so as to allow a person to appeal against a judge’s refusal to discharge an order authorising publication of his name.194 Personal Issues The issue of marriage equality was prominent during 2014. In 2013 the Northern ­Ireland Assembly had refused to approve a Legislative Consent Motion which would have allowed the Marriage (Same Sex Couples) Act 2013, which applies in England and Wales, to extend to Northern Ireland. There was another Assembly debate on the issue in April 2014, initiated by Sinn Féin. On this occasion, 43 MLAs voted in favour of introducing marriage equality but 51 voted against.195 For the time being, same-sex marriages lawfully celebrated in other jurisdictions are recognised in Northern Ireland only as civil partnerships. In October 2014 the Department of Justice launched a consultation on whether the criminal law on abortion should be amended in cases of lethal foetal abnormality and sexual crime.196 In its response, the Equality Commission for Northern Ireland197 expressed disappointment that a full consultation on abortion had not been issued, agreed that there was a pressing need to consider a change to the criminal law to provide for l­awful termination of pregnancy as an option for women in certain limited circumstances, and supported the Department’s proposal to consider providing for abortion in cases of pregnancy resulting from sexual crime. The Commission also urged the Department to ensure that its approach was in compliance with the UK Government’s obligations under the UN Convention on the Rights of Persons with Disabilities and it was in favour of a right of conscientious objection being included in any new legislation. The Northern

191 

Re HM’s Application [2014] NIQB 43. M v UK (App No 30357/03), decision of 13 February 2007, confirming the High Court’s decision in Re (M) v Secretary of State for Health [2003] EWHC 1094. These decisions led to an amendment being made to the Mental Health Act 1983, s 29, by the Mental Health Act 2007, s 23 and Sch 10. 193  R v McGreechan [2014] NICA 5. 194  Criminal Justice Act 1988, s 159(1)(c). 195  See Northern Ireland Assembly, ‘Official Report’ (29 April 2014), available at: www.niassembly.gov.uk/ assembly-business/official-report/reports-13-14/29-april-2014/#5. 196 www.justice-ni.gov.uk/sites/default/files/consultations/doj/the-criminal-law-on-abortion-lethal-foetalabnormality-and-sexual-crime.pdf. 197  Equality Commission for Northern Ireland, ‘Response to DOJ Consultation on the Criminal Law on Abortion: Lethal Foetal Abnormality and Sexual Crime’ (January 2015), available at: www.equalityni.org/ ECNI/media/ECNI/Consultation%20Responses/2015/DOJ_consultation_on_abortion-Jan15.pdf. 192 

188  The Irish Yearbook of International Law 2014 Ireland Human Rights Commission (NIHRC) likewise called for the Department to introduce legislation in the Assembly removing criminal sanctions which prevent access to termination of pregnancy in Northern Ireland in circumstances of serious malformation of the foetus, rape or incest.198 Coincidentally, the NIHRC announced at the end of 2014 that it would be making an application for judicial review to challenge the Department of Justice’s ongoing failure to change the law so that women and girls have the choice of accessing a termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest.199 The Minister for Justice described this move as premature, and it does raise questions over whether senior judges in Northern Ireland are the best people to determine policy in this sensitive area. In R (Nicklinson) v Ministry of Justice, a nine-judge UK Supreme Court ruled that UK law’s criminalisation of assisted suicide, even in cases where the person who wishes to die is too disabled to commit the act personally, is not in violation of the ECHR.200 But two judges—Lady Hale and the judge from Northern Ireland, Lord Kerr—dissented, holding that UK law did violate Article 8 of the ECHR. In Re Decisions of the Northern Ireland Health and Social Care Trust, Treacy J ruled that a decision to remove a child from the care of its mother, without first consulting any relevant party, was a violation of both the mother’s and the child’s rights to a family life.201 The revelations by Edward Snowden, a former systems administrator with the US National Security Agency, have provoked several applications to Strasbourg. In January 2014 the ECtHR communicated to the UK Government applications by three non-­ governmental organisations (NGOs) and an academic working internationally in the fields of privacy and freedom of expression, alleging that they are likely to have been placed under surveillance by the UK intelligence services, in violation of Article 8.202 In January 2015, similar applications were referred to the UK Government in the cases of Bureau of Investigative Journalism and Alice Ross v UK.203 The applicants argue that the blanket interception, storage and exploitation of their communications amount to disproportionate interference with their right to freedom of expression under Article 10 of the ECHR. THE RIGHTS TO FREEDOM OF EXPRESSION AND TO INFORMATION

In Kennedy v Charity Commission,204 a journalist from The Times lost his battle to obtain information from the Charity Commission about a charity set up by the Respect Party MP, George Galloway. The majority held that Article 10 of the ECHR gave

198  Northern Ireland Human Rights Commission, ‘Response to “The Criminal Law on Abortion—Lethal Foetal Abnormality and Sexual Crime—A Consultation on Amending the Law by the Department of Justice”’ (January 2015), available at: www.nihrc.org/uploads/publications/Consultation_response_DoJ_January_2015. pdf. 199  See Amanda Ferguson, ‘Human Rights Commission to take Stormont Justice Department to the High Court over Northern Ireland Abortion Law’ Belfast Telegraph, 10 December 2014, available at: www.belfasttelegraph.co.uk/news/northern-ireland/human-rights-commission-to-take-stormont-justice-department-to-thehigh-court-over-northern-ireland-abortion-law-30816227.html. 200  R (Nicklinson) v Ministry of Justice [2015] UKSC 38, [2014] 3 WLR 200. 201  Re Decisions of the Northern Ireland Health and Social Care Trust [2014] NIQB 49. 202  Big Brother Watch v UK (App Nos 58170/13) et al. 203  Bureau of Investigative Journalism and Alice Ross v UK (App No 62322/14). 204  Kennedy v Charity Commission [2014] UKSC 20, [2015] 1 AC 455.

Correspondent Reports—Dickson 189 Mr Kennedy no greater rights of access to information than he already enjoyed under the Charities Act 1993, the Freedom of Information Act 2000 and the common law. More worryingly, they ruled that Article 10 does not impose a freestanding positive duty of disclosure on public authorities. Lords Wilson and Carnwath, dissenting, would have allowed the appeal on the basis that Mr Kennedy did have a right to the information under Article 10. They relied on various Chamber decisions of the Court which have not yet been approved by the Grand Chamber. Mr Kennedy and his employer have since lodged an application in Strasbourg, which could well be allocated to the Grand ­Chamber in due course.205 THE RIGHT TO FREEDOM OF ASSOCIATION

In April 2014, through its decision in RMT v UK, the ECtHR upheld the legality of the rather strict regulations governing strike ballots throughout the UK.206 In particular, the ban on secondary industrial action was found not to breach Article 11 of the ECHR, there having been no evidence submitted to the Court indicating that such a prohibition on sympathy strikes was excessive. In Re JM’s Application Stephens J ruled that the Parades Commission’s decision to allow up to 200 people to attend each of two protests against an anti-internment parade in Belfast was not outside the wide discretion as to the choice of means to be used in fulfilment of the State’s positive obligation under Article 11 of the ECHR.207 THE RIGHT NOT TO BE DISCRIMINATED AGAINST

The Office of the First Minister and Deputy First Minister (OFMDFM) finally launched a new Racial Equality Strategy for consultation in June 2014.208 It seems to have been rushed out because of the furore that erupted over the First Minister’s remarks about Muslims, mentioned above.209 The Equality Commission welcomed the consultation document as an important first step, but was concerned that it did not contain, nor seek views on, ‘a comprehensive suite of headline actions’. It felt that there was ‘no clear picture of what will be delivered, when or by whom’ and it noted that no discrete funding was being allocated to implement the strategy.210 The NIHRC also called for much more specificity in the strategy.211 The first of its 25 recommendations for improvements to it 205 

Times Newspapers Limited and Kennedy v UK (App No 64367/14). RMT v UK (2015) 60 EHRR 10. Re JM’s Application [2014] NIQB 102, [26]. See too Re KA’s Application [2014] NIQB 108. 208 The Executive Office, ‘Consultation on Racial Equality Strategy for Northern Ireland 2014–2024’, available at: www.ofmdfmni.gov.uk/consultations/consultation-racial-equality-strategy-northern-ireland-2014-% E2%80%93-2024. 209  See text at n 64. 210  Equality Commission for Northern Ireland, ‘Summary Position: Response to the OFMDFM Consultation on Proposals for “a Racial Equality Strategy for Northern Ireland 2014-2024”’ (October 2014), available at: www. equalityni.org/ECNI/media/ECNI/Consultation%20Responses/2014/OFMdFM-SummaryPosition_Race_ Equality_Strategy2014-2024.pdf. 211  NIHRC, ‘Response of the Northern Ireland Human Rights Commission to the OFMDFM Consultation on “A Sense of Belonging: Delivering Social Change through a Racial Equality Strategy for Northern Ireland 2014–2024”, available at: www.nihrc.org/uploads/publications/NIHRC_-_Advice_on_RES_%28final%29.pdf. 206  207 

190  The Irish Yearbook of International Law 2014 was that it should be re-framed so as to serve as a national action plan against racism, which is what the UN’s Committee on the Elimination of Racial Discrimination called for in 2011 when commenting on the UK Government’s latest periodic report.212 Although the UK Government submitted its first periodic report to the UN Committee on the Rights of Persons with Disabilities in July 2013, nearly 20 months late,213 the Committee had still not considered it by the end of 2014. In fact the Committee issued concluding observations on only 10 countries during 2014. The OFMDFM published its three-year Disability Strategy in 2012, but only in 2015 did it release its first annual report on its implementation, covering the period April 2013 to March 2014.214 In March 2014 the Equality Commission published a helpful summary of the areas in which there is still a gap between the protection of equality in Northern Ireland and its protection in Great Britain.215 The Commission’s website contains more details of the differences between the two sets of laws in relation to particular types of discrimination. THE RIGHT TO PEACEFUL ENJOYMENT OF ONE’S POSSESSIONS

In Paulet v UK the ECtHR found a violation on procedural grounds of Article 1 of Protocol 1 to the ECHR.216 The applicant had been convicted of obtaining employment after using a false passport. His wages had then been confiscated, but Mr Paulet argued that this was disproportionate because it deprived him of his entire savings over nearly four years of genuine work. The Court held that UK law breached Article 1 of Protocol 1 because it did not permit the courts to consider the proportionality of the confiscation order. In Re GMJ’s Application the High Court rejected the applicant’s claim that the police’s refusal to renew his firearms certificate (because he had epilepsy) was a violation of Article 1 of Protocol 1 to the ECHR.217 Nor was it discrimination under the Disability Discrimination Act 1995. THE RIGHT TO VOTE IN ELECTIONS

The UK Government continued to be at loggerheads with the ECtHR over the issue of votes for prisoners. In Firth v UK, the Court confirmed that 10 prisoners who, simply because of their convictions and imprisonment, were unable to vote in elections to the European Parliament in June 2009 had suffered a violation of their right under Article 3

212 

UN Doc CERD/C/GBR/CO/18-20, CERD Committee, ‘Concluding Observations on the UK’, para 17.

213 file:///C:/Users/2094932/Downloads/G1344959.pdf. 214  The

Executive Office, ‘Disability Strategy 2013–2014 Annual Report’ (9 July 2015), available at: www. ofmdfmni.gov.uk/disability-strategy-report-2013-2014.pdf. 215  Equality Commission for Northern Ireland, ‘Gaps in Equality Law between Great Britain and Northern Ireland’ (March 2014), available at: www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/Gaps-in-Equality-Law-in-GB-and-NI-March-2014.pdf. 216  Paulet v UK (App No 6219/08), judgment of 13 May 2014. Although a case from England, the decision is binding on the UK as a whole. 217  Re GMJ’s Application [2014] NIQB 135 (Horner J).

Correspondent Reports—Dickson 191 of Protocol 1 to the ECHR.218 The case could not be distinguished from Greens and MT v UK,219 because the UK legislation in question220 had still not been amended. However, in what has been seen as a concession to the widespread political opposition to votes for prisoners amongst political parties in the UK, the Court rejected the applicants’ claims for compensation and legal costs. Even by the time of writing (in mid-2015), the UK Government had still not made clear how it intends to comply with the ECtHR’s position on votes for prisoners. SOCIAL RIGHTS

In January 2014 the European Committee on Social Rights issued its report on the extent to which the UK complied between 2008 and 2011 with various provisions in the European Social Charter of 1961.221 The provisions deal with the right to safe and healthy working conditions (Article 3), the right to protection of health (Article 11), the right to social security (Article 12), the right to social and medical assistance (Article 13), the right to benefit from social welfare services (Article 14), and the right of elderly persons to social protection (Article 4 of the Additional Protocol). Generally speaking, the Committee found that the UK complied with its obligations, but it had a few reservations. It noted that ‘domestic servants’ employed in private households are not covered by health and safety legislation anywhere in the country, even though other domestic workers, such as health or social care workers, are covered. It confirmed the positive record of the authorities in the prevention of fatal accidents at work in Northern Ireland, but wondered whether the low level of occupational diseases might indicate under-reporting. It found the UK to be in breach of Article 12(1) of the Charter because the minimum levels of incapacity benefit, state pension and job seeker’s allowance were all ‘manifestly inadequate’. The Committee deferred reaching a conclusion on whether the UK was complying with its duty to provide social and medical assistance to non-residents because the Government had not provided sufficient information about this in its periodic report. There were no significant legislative developments concerning labour rights in Northern Ireland during 2014, but a Bill to extend the rights of working parents received Royal Assent on 8 January 2015. This provides additional flexibility concerning the sharing between parents of rights to leave and pay,222 time off for ante-natal care and adoption appointments,223 and requests for flexible working arrangements.224 Northern Ireland law still confers on employees the right not to be unfairly dismissed after just one year’s service with an employer,225 whereas in the rest of the UK the service qualification is two 218  Firth v UK (App No 47784/89) et al, judgment of 12 August 2014. See too McHugh v UK (App No 51987/08) and 1,014 other applications, judgment of 10 February 2015. 219  Greens and MT v UK (2011) 53 EHRR 21. Greens and MT itself followed Hirst v UK (No 2) (2004) 38 EHRR 40. 220  Representation of the People Act 1983, s 3. 221 See European Social Charter, available at: www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/ State/UKXX2_en.pdf. 222  Work and Families Act (NI) 2015, ss 2–14. 223  Ibid, ss 15–18. 224  Ibid, s 19. 225  Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order (NI) 1999, SR 277.

192  The Irish Yearbook of International Law 2014 years.226 Also, Northern Ireland has not introduced fees for lodging an application at an industrial tribunal; fees have been in place for employment tribunals in Great Britain since July 2013.227 The UK Supreme Court held in Hounga v Allen that just because a claimant was an illegal immigrant did not mean that she could not go to a tribunal to enforce her right not to be dismissed from her job in a private home on a discriminatory basis.228 In January 2014 the Committee of Ministers of the Council of Europe issued recommendations to the UK concerning the country’s implementation of the European Charter for Regional or Minority Languages.229 These included suggestions that the UK Government should adopt and implement a comprehensive Irish language policy preferably through the adoption of legislation providing statutory rights for Irish speakers, strengthen its support for the work done by the Ulster Scots Agency, take measures to establish the teaching of Ulster Scots, and ensure that the present cuts in public spending do not have a disproportionate effect on the protection and promotion of minority languages. In its June 2013 report on the UK Government’s report, the Committee of Experts which monitors the implementation of the Charter regretted that the report did not include information about matters which have been devolved to Northern Ireland because the power-sharing Executive there could not agree on the text that needed to be included.230 The UK Government has told the Committee that it will not interfere in devolved matters and that the Committee needs to realise that ‘[i]t is an important feature of the political settlement in Northern Ireland that difficult or divisive issues are taken forward through agreement between the Northern Ireland political parties’.231 The Committee was nevertheless encouraged by the ‘positive approach’ of the Department of Education in Northern Ireland in the field of Irish-medium education.232 It also acknowledged that written communications in Irish sent to government departments do receive replies, but noted that there was no systematic approach to handling oral communications in Irish and that in most cases ‘even the minimum standards required by the Code of Courtesy on the use of Irish and Ulster Scots…are not met’.233 The Committee encouraged the introduction of a system of simultaneous translation into Irish of all statements made in the Northern Ireland Assembly. In Re Reid’s Application234 Horner J upheld the legality of Belfast City Council’s ­policy on the erection of dual-language street names: it requires the dual-language names to be supported by at least two-thirds of the occupiers living on the street who are on the Electoral Register and the Council must ‘have regard to’ the views expressed by

226  Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, SI 989. 227  Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013. For the impact of these fees, see Doug Pyper and Feargal McGuinness, Employment Tribunals Fees, House of Commons Briefing Paper No 7081, 2015, available at file:///C:/Users/2094932/Downloads/SN07081.pdf. 228  Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889. 229  See www.coe.int/t/dg4/education/minlang/Report/Recommendations/UKCMRec4_en.pdf. 230  European Charter for Regional or Minority Languages, ‘Application of the Charter in the United Kingdom’ (Strasbourg, 15 January 2014), available at: www.coe.int/t/dg4/education/minlang/Report/EvaluationReports/ UKECRML4_en.pdf, p 5. 231  Ibid, p 41. 232  Ibid, p 29. 233  Ibid, p 31. 234  Re Reid’s Application [2014] NIQB 129.

Correspondent Reports—Dickson 193 ­ ccupiers of premises in the street.235 The Charter for Regional or Minority Languages o was ­considered by the judge, but he held that it did not add anything to the interpretation of the domestic legislation.236 Despite high-flown rhetoric, the Northern Ireland Executive made little discernible ­progress during 2014 in implementing the much-trumpeted strategy for improving relations between people from different religious and/or political backgrounds. This was issued in May 2013 and called Together: Building a United Community.237 The promised Equality and Good Relations Commission did not materialise, nor was any draft legislation published for consultation. In the courts, however, an important decision was reached in Re Drumragh Integrated College’s Application, where Treacy J ruled that the Department of Education’s statutory duty ‘to encourage and facilitate the development of integrated education, that is to say the education together at school of Protestant and Roman Catholic pupils’238 means that it is not enough for such pupils to share educational facilities: ‘[t]he provision plainly envisages education together at the same school’.239

235 

Local Government (Miscellaneous Provisions) (NI) Order 1995, art 11(4). Re Reid’s Application (n 234), [39]. 237  Available at www.executiveoffice-ni.gov.uk/sites/default/files/publications/ofmdfm_dev/together-buildinga-united-community-strategy.pdf. 238  Education Reform (NI) Order 1989, art 64(1). 239  Re Drumragh Integrated College’s Application [2014] NIQB 69, [50]. 236 

194 

Ireland and the European Union—2014 RODERIC O’GORMAN*

INTRODUCTION

I

N 2014, WHILE the economic crisis continued to dominate the EU’s political agenda, with particular focus on the potential for a third economic adjustment programme for Greece and the consequences of a snap election called in that country at the end of the year, Ireland’s relationship with the European Union was returning to a degree of normality. The year saw no need for either constitutional change or emergency legislation on foot of perceived economic necessity or EU requirements. Ireland now joins other Member States in annual responses to the European Semester programme of fiscal and macro-economic monitoring, while also having to undergo some extra monitoring requirements as a country exiting a bailout. Away from the economic sphere, Article 267 TFEU references to the Court of Justice of the European Union (CJEU) from Irish courts and tribunals continued to generate the significant majority of cases relevant to Ireland in 2014. Cases in the reporting year covered a wide range of areas including commercial law, equal treatment, and residency rights stemming from Union citizenship or asylum applications. FINANCIAL CRISIS

Following its exit from the economic adjustment programme in late 2013, Ireland was no longer subject to strict quarterly reviews undertaken by the Troika. However, the country remained in a process of ‘post-programme surveillance’ which involved biannual visits by European Commission staff. The first report from these, released in June 2014, recognised the continued strengthening of the Irish economy, but also flagged the failure of the Irish authorities to achieve some of the legislative changes that had been required under the economic adjustment programme, such as reform to the provision of legal services in Ireland.1 A growing exasperation on the part of the Commission officials regarding this issue can be detected in their second report in Autumn 2014, where they highlight the role that lobbying has played in delaying the enactment of the Legal Services Regulation Bill, 2011.2

*  Dublin

City University. European Commission ‘Post-Programme Surveillance for Ireland—Spring 2014 Report’, European Economy, Occasional Papers 195, June 2014 at 3.3.5. 2 European Commission, ‘Post-Programme Surveillance for Ireland—Autumn 2014 Report’, European Economy, Occasional Papers 210, Jan 2015 at 3.3.4. 1 

196  The Irish Yearbook of International Law 2014 Another consequence of Ireland’s exit was that, for the first time, the Commission included Ireland within the European Semester analysis of the Eurozone, as required under the six pack legislation.3 This development, and the subsequent report, represents a further ‘normalisation’ of the treatment of Ireland’s economic condition.4 The report was a key element of the Alert Mechanism created under the Regulation, whereby annual reports examining a scorecard of issues would forewarn EU institutions of impending economic threats.5 While domestically 2014 saw no major constitutional or legislative enactments required on foot of the economic crisis, the Oireachtas did pass the European Stability Mechanism (ESM) (Amendment) Act 2014 in order to recognise the accession of Latvia to the ESM.6 EQUAL TREATMENT

Conscious of the lack of legislation in Ireland governing the issue of surrogacy and the extent to which it would become an issue in the subsequent Marriage Equality referendum, it was interesting to see two cases come before the CJEU regarding the treatment of women who became mothers as a result of a surrogacy arrangement. One of these, Z, came from Ireland and concerned an Article 267 TFEU reference made by the Equality Tribunal.7 At issue was whether the failure of the applicant’s employer to give her leave when she had a baby through a surrogacy arrangement was in breach of Union law. The employer, and subsequently the Department of Education, argued that as Z had neither given birth nor adopted the child, neither maternity leave nor adoptive leave applied in the situation. A number of questions were referred to the Court of Justice: Should Directive 2006/54 be interpreted as meaning there is gender discrimination if a woman is not offered surrogacy leave on the same basis as maternity leave or adoptive leave?8 Should Directive 2000/78 be interpreted as meaning that a woman denied surrogacy leave in the situation of the applicant was being discriminated against on the basis of disability? If not, could the UN Convention on the Rights of Persons with Disabilities be used to interpret Union law and if it could was Directive 2000/789 compatible with it?10 On the point of whether the refusal to provide Z with maternity leave was a breach of Directive 2006/54, the Court emphasised the fact that under Articles 2(1)(a) and (b) direct discrimination would mean that the grounds for refusing the leave applied exclusively

3 Parliament and Council Regulation 1176/2011 on the Prevention and Correction of Macroeconomic Imbalances [2011] OJ L306/25. 4 European Commission, ‘Macroeconomic Imbalances Ireland 2014’, European Economy, Occasional Papers 181, Mar 2014. 5  Regulation 1176 (n 3), Article 3. 6  No 32 of 2014. 7  Case C-363/12 Z v A Government Department and The Board of Management of a Community School ECR 0000. 8  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation [2006] OJ L204/23. 9  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Equal Treatment Directive’) [2000] OJ L303/16. 10  Z v A Government Department (n 7), para 45.

Correspondent Reports—O’Gorman 197 to workers of one sex.11 As a man in the same situation would also have been refused leave having become a parent through a surrogacy arrangement, the grounds for refusal were not related to Z’s gender. Similarly, when examining the issue of indirect discrimination and whether the Irish approach put more female workers at a disadvantage compared to male workers, the Court determined that there was nothing to indicate that this was the case.12 On the issue of adoptive leave, the Court determined that the circumstances of the woman in question, who had had a child through a surrogacy arrangement, fell outside the scope of the Directive.13 The Court noted that adoptive leaves itself was not a right under the Directive, but Article 16 stated that it was something that Member States could provide and regulate if they so choose.14 As regards the status of the UN Convention and its impact on Directive 2000/78, initially the Court had to determine whether the applicant could be considered to have a disability under the Directive, due to the fact that she had no uterus. The Court held that in this context, a disability was to be understood as meaning the impossibility of exercising a professional activity, or a hindrance to the full and effective participation in professional life on an equal basis with other workers.15 As Z’s condition did not prevent her participating or advancing in her career, it could not constitute a disability within this meaning.16 The Convention formed an integral part of Union law due to the primacy of international agreements over provisions of secondary legislation and therefore the Directive had to be interpreted in accordance with it.17 However, the provisions of the Convention could not be relied upon for direct effect by the applicant, as they were not sufficiently unconditional and precise.18 As such, the applicant failed to have the validity of the Directive judged in the light of the UN Convention. Further evidence of the failure of Union law to adjust to the reality of children conceived through surrogacy was seen in the CD decision, following a reference from a British Employment Tribunal.19 Here, the applicant’s employer refused her application for surrogacy leave. Immediately upon the birth of the child to the surrogate, CD commenced mothering the child and breastfed it for three months. The applicant made a similar argument to that in Z: that this refusal constituted sex discrimination in breach of Article 14 of Directive 2006/54. She also contended that there was a breach of the Pregnancy Directive.20 As regards the applicant’s claim under the Pregnancy Directive, the Court reiterated that … the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they 11 

Z v A Government Department (n 7), para 51. Z v A Government Department (n 7), para 53–54. 13  Z v A Government Department (n 7), para 63. 14  Z v A Government Department (n 7), para 62. 15  Z v A Government Department (n 7), paras 77, 80. 16  Z v A Government Department (n 7), para 82. 17  Z v A Government Department (n 7), para 72–73. 18  Z v A Government Department (n 7), para 90. 19  Case C-167/12 CD v ST ECR 0000 20  Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (‘Pregnancy Directive’) [1992] OJ L348/1. 12 

198  The Irish Yearbook of International Law 2014 could suspend their employment, without the public authorities or employers being allowed in any way to call the legitimacy of that ground into question.21

Its purpose was to give physical protection to the woman before and after the pregnancy and to protect the special relationship between mother and child in the period following birth.22 Focusing on the use of the term ‘confinement’ in Article 8 of the Directive, the Court determined that the key focus of maternity was to protect the health of the mother due to the special nature of pregnancy.23 As such, the Court determined that the grant of maternity leave under the Directive presupposed that a woman had to be pregnant and have given birth.24 The fact that the applicant was breastfeeding was not found to make any difference to the outcome. As regards the applicant’s argument under the Equal Treatment Directive, the Court determined, similarly to Z, that she was not being discriminated against on the basis of her gender as she was being treated in the same way as a man who became a parent through surrogacy would be.25 While, under Article 2(2)(c) of the Directive, any unfavourable treatment of a woman on the basis of her pregnancy was also discrimination for the purposes of the Directive, the Court again pointed to the fact that a woman whose child had been born through a surrogacy arrangement and who had, thus, never been pregnant could not claim protection under this heading. The key point from both of these cases is that EU law does not recognise any rights to leave for parents whose children are born through surrogacy arrangements. The Court was clear in rejecting any attempt to broaden the applicability of the Pregnancy Directive to such parents. The Court was not prepared to extend the logic of providing for the needs of women who have recently given birth, to men and women who had recently become parents without giving birth. While the Court had previously noted in the RocaÁlvarez case that time off from work for breastfeeding had evolved into wider time off to parent a child in Spanish legislation, it did not continence such an evolution in the cases on this point.26 Any potential resolution of the disadvantage faced by the parents of surrogate children will require new Union legislation on the point. UNION CITIZENSHIP

In Ogieriakhi v Minister for Justice & Ors, the Court had to address questions about the Citizenship Directive and regarding the EU Law doctrine of State liability for damages.27 The issues arose from a reference from the Irish High Court.28 The applicant was a Nigerian national who had married a French national (Ms Georges) in Ireland in

21 

CD v ST (n 19), para 32. CD v ST (n 19), para 34. 23  CD v ST (n 19), para 35. 24  CD v ST (n 19), para 37. 25  CD v ST (n 19), para 47. 26  Case C-104/09 Roca Álvarez v Sesa Start España ECR [2010] 1-08661, at para 28–29. 27  Case C-244/13 Ogieriakhi v Minister for Justice [2014] ECR I-2068, Directive 2004/38 EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 304/12. 28  Ogieriakhi v Minister for Justice & Ors [2013] IEHC 133. See See R O’Gorman, ‘Ireland and the European Union 2013’ (2013) 8 IYIL 121. 22 

Correspondent Reports—O’Gorman 199 mid-1999 while he was seeking asylum there. The marriage broke up by mid-2001 and the applicant proceeded to live with an Irish woman from that point on. He subsequently married this woman in 2009, once his divorce from Ms Georges was concluded. The applicant contended that, due to his marriage to and residence with a French national, he had acquired a right of residence as the spouse of a Union citizen under Article 16(2) of the Citizenship Directive. Hogan J referred two questions to the CJEU regarding the applicant’s residency in Ireland. Firstly, whether Ogieriakhi gained a right of residence due to his marriage to a French national under Article 16(2), which required five years continuous residence together in the State, in a situation where their marriage had broken up after only two years. Secondly, as the Citizenship Directive, which became valid in 2006, required that the applicants’ residence had to be legally valid according to the legislation that the Directive repealed, had Ogieriakhi met the conditions of the pre-existing Regulation 1612/68, which required that the Union worker have family housing available for any family members (Article 10(3)), while he and the Union worker (Ms Georges) were living apart.29 The Court also referred a third question regarding Francovich liability.30 The applicant, who had lost his job with An Post when the Minister for Justice held that he was in the country without a valid status allowing him to work, was taking an action in damages against Ireland for this dismissal, arguing that the Irish Government had failed to properly transpose the Citizenship Directive into national law. The High Court asked whether the fact that it was required to make a reference to the CJEU about the transposition of the Directive was relevant to the determination of whether the breach of Union law by the Member State was ‘obvious’ within the meaning of the Francovich case-law. Key to the Court’s decision on the first question was its previous judgment in ­Lassal, where it had held that continuous periods of five years’ residence completed before the transposition of the Citizenship Directive, which were in accordance with pre-­ existing EU legal instruments, counted for the purposes of Article 16(2) of the Citizenship Directive.31 Since the five-year residency period that the applicant was trying to establish stretched before and after the Citizenship Directive’s introduction, he had to demonstrate the legality of his residence under both the Citizenship Directive and the pre-existing law.32 Despite the fact that the applicant had been separated from Ms Georges, the Court found that the conditions for Article 16(2) were met. This was firstly because the marriage was regarded as legally valid until such time as it was officially dissolved, even if the couple were separated.33 Secondly, the Directive was to be interpreted broadly. The Court noted that divorced spouses were entitled to certain protections under the Directive, and the Court stated that the separated spouse of a Union citizen should not receive a lesser degree of protection.34 29  Council Regulation (EEC) No.1612/68 on the freedom of movement of workers within the Community [1968] OJ L 257/2. 30  Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany, The Queeen v Secretary for State for Transport ex parte: Factortame Ltd [1996] ECR I-1029. 31  Case C-162/09 Secretary of State for Work and Pensions v Taous Lassal [2010] ECR I-9217, para 40. 32  Ogieriakhi v Minister for Justice (n 27), para 32. 33  Ogieriakhi v Minister for Justice (n 27), para 37. 34  Ogieriakhi v Minister for Justice (n 27), para 41–42.

200  The Irish Yearbook of International Law 2014 Regarding the application of Article 10(2) of Regulation 1612/68, the Court noted that in the Diatta case, it had determined that the requirement only meant that the worker had to provide suitable accommodation for family members, but that it did not require them to live together.35 The Court also noted that Article 10(3) of the Regulation stated that the requirement for suitable accommodation was to be measured at the time the third country national came to live with the EU national spouse.36 As this had been the case with Ogieriakhi and his former wife, the condition was met. On the issue of Francovich liability, the Court held that it was a well-established point of law that in determining if a breach of Union law by a Member State was ‘sufficiently serious’ to find liability, a key factor was whether that State had ‘manifestly and gravely disregarded the limits of its discretion’.37 The Court highlighted that the freedom of the national courts to make Article 267 TFEU references about the interpretation of Union law would be circumscribed if by doing so, they increased the likelihood that there would be a finding of manifest and grave disregard by the State and accordingly, liability. Such a position would undermine the entire Article 267 TFEU process.38 IMMIGRATION AND ASYLUM

The first significant growth in the number of asylum applications in Ireland since 2010 occurred in 2014.39 The interaction between domestic and Union law was considered in the Nawas case. In this case, the Court had to address the provisions of the Minimum Standards Directive in the context of Refugee Act 1996.40 The applicant, a Pakistani student living in Ireland, was informed by the Minister for Justice that he was considering making a deportation order against him as his residence in Ireland was no longer legally valid. N then applied for ‘subsidiary protection’, defined under the Directive as being required when a person held a belief that on return to their country, they ‘… would face a real risk of suffering serious harm’.41 This is regarded as a form of minimum protection for persons who did not reach the criteria for refugee status. Under the Refugee Act 1996, an individual must apply for refugee status initially, and only if this is rejected, could an application for subsidiary protection be lodged. N had submitted his application for subsidiary protection, without originally seeking refugee status. The Minister for Justice rejected his application on the basis that an application for refugee status had to be made first. The applicant sought judicial review of this, and the Supreme Court referred a question to the Court of Justice regarding whether the principle of good administration protected under Article 41 of the Charter

35  Ogieriakhi v Minister for Justice (n 27), para 45; Case 267/83 Aissatou Diatta v Land Berlin [1985] ECR 567. 36  Secretary of State for Work and Pensions v. Taous Lassal (n 31), at para 46. 37  Joined Cases C-46/93 and C-48/93 (n 29), para 55–58. 38  Ogieriakhi v Minister for Justice (n 27), para 54. 39  Office of the Refugee Applications Commissioner, Annual Report 2014, at 16. 40  Case C-604/12 HN v Minister for Justice, Equality and Law Reform, Ireland, Attorney General ECR 0000; Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refuges or as persons who otherwise need international protection and the content of the protection granted (‘Minimum Standards Directive’) [2004]OJ L304/12. 41  Article 2(e).

Correspondent Reports—O’Gorman 201 allowed a Member State to legislate for a right to subsidiary protection status only after an applicant has applied for and been refused refugee status.42 The Court began by considering whether the Irish requirement to exhaust the refugee process before starting the subsidiary protection process was legitimate. The Court noted that, according to the text of the Directive, subsidiary protection was designed for persons who did not qualify for refugee status and was additional and complementary to the protection of refugees.43 As refugee status offers a greater degree of protection than subsidiary protection, an application for the former should be considered before an application for the latter.44 As such, the Irish system was compatible with the Directive. However, the Court did determine that, in order to ensure that an applicant for subsidiary protection is actually in a position to avail of this right provided under the Directive, Member States must allow the application for subsidiary protection to be made at the same time as the application for refugee status and that the determination of the status should be done in a reasonable period of time, which would be judged by the national court.45 The Court then proceeded to examine the implications of Article 41 of the Charter on this process. The Court determined that the process whereby the Irish authorities would issue a notice of intention to deport after a refusal of refugee status did not mean that their subsequent determination on the issue of subsidiary protection lacked objective impartiality.46 However, Article 41 also required that the decision on subsidiary protection be taken within a reasonable time.47 COMMERCIAL LAW

Union commercial law was at issue in Karen Millen v Dunnes Stores,48 where the Court had to deal with the interpretation of the Community Design Regulation.49 This legislation provided for the concept of an unregistered Community design, which was created to give a degree of protection to an industry which produced large numbers of potentially short-lived designs over short periods of time in circumstances where only some may eventually become commercialised.50 Dunnes Stores had started to manufacture and sell a ladies’ striped shirt and a black knit top which were similar in design to ones that had been designed by Karen Millen and sold in its Irish stores. Karen Millen claimed it held unregistered Community designs within the meaning of the Regulation for the two items in question and it sought an injunction against Dunnes Stores preventing it from selling the garments. In the High Court, Dunnes Stores accepted that it had copied the Karen Millen designs. However,

42 

HN v Minister for Justice (n 40), para 24. HN v Minister for Justice (n 40), paras 29, 32. HN v Minister for Justice (n 40), paras 34, 35. 45  HN v Minister for Justice (n 40), para 45. 46  HN v Minister for Justice (n 40), para 53. 47  HN v Minister for Justice (n 40), para 56. 48  Case C-345/13 Karen Millen v Dunnes Stores ECR 0000. 49  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (‘Community Design Regulation’) [2002] OJ L3/1. 50  Recital 25. 43  44 

202  The Irish Yearbook of International Law 2014 it rejected the argument that Karen Millen possessed an unregistered Community design over them. Under Article 4 of the Regulation, in order for a garment to be protected under the Regulation, it needed to be new and to have individual character. The Supreme Court referred a series of questions to the CJEU in relation to determining what constituted individual character. Firstly, in determining the ‘overall impression’ that the garment produced on a user within the meaning of Article 6 of the Regulation, the Supreme Court asked whether this was to be determined on the basis of (a) any individual design which has previously been made available to the public, or (b) any combination of known design features from more than one such earlier design. Secondly, it asked whether it must consider an unregistered Community design valid within the meaning of Article 85(2) of the Regulation where the rights holder simply indicates what constitutes the individual character of the design, or must the rights holder prove that the design has individual character in accordance with Article 6 of the Regulation. The CJEU determined that the question of whether a design had ‘individual character’ was to be judged in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously.51 In doing so, it rejected the much wider interpretation of the provision that Dunnes Stores had argued for, where the ‘individual character’ would be defined according to the overall impression which the design produces on the informed user and would have to be different from that produced on the same user by one or more earlier designs, taken individually, or by a combination of features taken in isolation and drawn from a number of earlier designs.52 Arguments put forward by Dunnes Stores that this wider interpretation was supported by the text of the preamble to the Regulation was rejected by the Court, stating that the preamble ‘… has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording’.53 The second question centred on what standard of proof was required in a Union court to prove the existence of an unregistered Community design. The Court noted that the Regulation created a presumption of validity of registered Community designs in Article 85(1) and for unregistered Community designs in Article 85(2).54 Again, Dunnes Stores was arguing for an onerous interpretation of the meaning of Article 85(2) of the Regulation, to the effect that the person claiming the unregistered Community design would have to satisfy a wide range of provisions of the Regulation.55 In interpreting Article 85(2), the Court held that it meant that the holder of an unregistered Community design only had to show what constitutes the individual character of that design. As a condition, it was unambiguous and could not be interpreted, as proposed by Dunnes Stores, as requiring the holder to provide the more onerous proof that the design concerned has individual character.56 The Court determined that although it is necessary for the holder of the design at issue to specify what he wants to have protected under that provision due to the lack of registration formalities for this category of design,

51 

Karen Millen v Dunnes Stores (n 48), para 25. Karen Millen v Dunnes Stores (n 48), para 23. Karen Millen v Dunnes Stores (n 48), para 31. 54  Karen Millen v Dunnes Stores (n 48), para 39. 55  Karen Millen v Dunnes Stores (n 48), para 40. 56  Karen Millen v Dunnes Stores (n 48), para 45. 52  53 

Correspondent Reports—O’Gorman 203 it was enough for him to set out those elements of the design which give it individual character.57 TAXATION

The obligations on the Commission to defend a decision not to undertake a State aid investigation were at issue in Ryanair v Commission.58 This case represented an effort by regular CJEU litigant Ryanair to challenge a Commission decision concerning Ireland’s Air Travel Tax (ATT). The Commission had undertaken a preliminary investigation in which it had found that the ATT did not constitute state aid in breach of Union law. Ryanair sought an annulment of the Commission’s decision where it stated, in light of this preliminary investigation, that it would not initiate a full investigation under Article 108(3) TFEU.59 The ATT at issue was charged at a rate of €3 for each departure of a passenger on an aircraft from an Irish airport. Transfer and transit passengers were exempt from paying the tax. Ryanair argued that this exemption was a form of state aid for Aer Lingus and Aer Arann as these airlines had a relatively high proportion of such passengers and flights.60 There were three main elements to Ryanair’s claim. It argued firstly that the Commission had committed a manifest error of assessment and an error of law in not finding the disputed measure to be state aid. Further, it challenged the failure to initiate the formal investigation procedure provided for in Article 108(2) TFEU, despite the serious difficulties identified in the Irish tax scheme. Finally, it claimed the Commission had breached its obligation to state reasons.61 The Court stated that to succeed in its action, Ryanair had to demonstrate that the Commission’s assessment of the evidence and information it had during the preliminary investigation should have raised doubts regarding whether the measures in question were State aid and were compatible with the internal market.62 The Court held that under a preliminary investigation of this nature, the Commission must either decide that the measure in question does not constitute aid within the meaning of Article 107(1) TFEU or, if it decides that it is State aid, that it is Treaty compatible. In the event that doubts about the compatibility of the national measures with the international market remained following the preliminary investigation, the Commission must then begin the full formal investigation under Article 108(2) FEU.63 The Court then undertook a review of whether, as argued by Ryanair, there were factors that gave rise to ‘serious doubts’ about the compatibility of the Irish ATT with the State aid rules.64 The Court found that the preliminary investigation, which lasted

57 

Karen Millen v Dunnes Stores (n 48), para 46. T-512/11 Ryanair Ltd v European Commission ECR 0000. Decision C(2011) 4932 final of 13 July 2011. 59  Decision C(2011) 4932 final of 13 July 2011. 60  Ryanair Ltd v European Commission (n 58), para 5. 61  Ryanair Ltd v European Commission (n 58), para 27. 62  Ryanair Ltd v European Commission (n 58), para 31. 63  Ryanair Ltd v European Commission (n 58), para 58. 64  Ryanair Ltd v European Commission (n 58), para 66. 58  Case

204  The Irish Yearbook of International Law 2014 just over 24 months, was excessively long and that there was nothing to explain this length of time.65 However, it was only if the delay was reinforced by other factors that it could find that the Commission had encountered serious difficulties in its investigation which warranted initiation of the full procedure.66 On the issue of whether the national measure was selective (a key component in proving State aid), the Court examined whether the Commission had sufficiently investigated whether the Irish scheme was conclusively not selective and therefore not State aid.67 In doing so, the Court flagged concerns about a number of issues, including reliance on a Commission working paper as the basis for some of its assumptions68 and the weight given to a letter from the Irish authorities sent after the Commission decision was issued, in which the Commission sought retrospective clarification of some of the points in that decision.69 There were also inaccuracies in the Decision itself, with the statement that the need to avoid double taxation formed an element of the finding that the Irish scheme was not selective being basically incorrect.70 Finally, there was a clear degree of uncertainty regarding how certain elements of the Irish scheme would be operated, which was admitted by the Irish authorities themselves.71 The Court determined that such uncertainty should have been investigated further.72 Thus, in light of the lack of a sufficiently complete analysis of the selective nature of the Irish scheme, the Court found that the Commission should not have reached the conclusion that there were no doubts about the scheme.73 This, in conjunction with the length of time taken for the investigation, meant that the Commission was not in a position to resolve all the serious difficulties identified concerning Ryanair’s complaint, at the date when it adopted its decision not to initiate a full investigation.74 As a consequence, the Court annulled the Commission’s decision. SOCIAL SECURITY

In addressing a question about the interpretation of Regulation 883/200475 in I v HSE, the Court of Justice had to deal with a particularly tragic set of circumstances.76 The applicant, an Irish national, had been holidaying in Germany in 2002 when he was diagnosed with a bilateral infraction of his brain stem, which caused quadriplegia and loss of motor function. Subsequent to this, he was discovered to have a blood mutation. While the legal proceedings were underway, he was also diagnosed with cancer.

65 

Ryanair Ltd v European Commission (n 58), para 74. Ryanair Ltd v European Commission (n 58), para 75. 67  Ryanair Ltd v European Commission (n 58), para 82. 68  Ryanair Ltd v European Commission (n 58), para 85. 69  Ryanair Ltd v European Commission (n 58), para 87. 70  Ryanair Ltd v European Commission (n 58), para 95–97. 71  Ryanair Ltd v European Commission (n 58), para 100. 72  Ryanair Ltd v European Commission (n 58), para 101. 73  Ryanair Ltd v European Commission (n 58), para 103. 74  Ryanair Ltd v European Commission (n 58), para 106. 75  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L166/1. 76  Case C-255/13 I v HSE ECR 0000. 66 

Correspondent Reports—O’Gorman 205 The applicant had been receiving specialist treatment in a hospital in Germany since the initial diagnosis, and had lived in Germany in a rented apartment with his partner. The Irish Health Services Executive (HSE) had been paying for his treatment through the E112 form. This document is provided for under Article 20 of the Regulation and applies in circumstances where the competent authority of the home Member State gives a patient permission to travel to a country of which he is not resident for the purpose of receiving treatment appropriate to his condition. Up to 2011, this form had been reauthorised on 20 separate occasions, but at that point, the HSE refused to do so again. It stated that as the applicant had been living in Germany for nine years, he should now be considered a resident there, and as such, the conditions of Article 20 and reliance on the E112 form were no longer met. While the HSE had committed to continuing to meet his costs on an ex gratia basis, the issue of whether they could refuse the E112 form was contested in the High Court. A question was referred to the CJEU, the key element of which was whether ‘I’ should be regarded as ‘staying’ in Germany, or whether he was ‘resident’ there. The Court noted that the reasoning behind the original social security Regulation was both to guarantee that persons in another Member State were not left without social security because there was no applicable legislation, but also to make sure that such persons were only the beneficiaries of a single social welfare system.77 The same principles underlined Regulation 883/2004. It noted that it had previously found that the concept of residence referred to ‘… the State in which that person habitually resides and where the habitual centre of his interests is to be found’.78 Crucially for I’s situation, the Court determined that just because an individual stayed in one Member State, even if that was for an extremely long time, this did not automatically equate with ‘residence’ for the purpose of the Regulation.79 The decision on what was an applicant’s habitual centre of residence would be based on an assessment of all relevant criteria, including the applicant’s intention as to where the place of residence should be, which itself would be determined in light of objective facts and circumstances.80 The Court stated that it was for the national courts to make this assessment, but in giving some guidance on how to judge I’s circumstances, the Court found that while he had lived in Germany for a long period, this was not out of choice, but rather as he was compelled to as a result of his illness. The Court noted that he was tax resident in Ireland and he did not have a bank account in Germany.81 JUDICIAL COOPERATION IN CIVIL MATTERS

The growing influence of the EU in the area of family law can be seen in the Court of Justice’s decision in C v M.82 The case concerned a reference from the High Court

77 

Ibid, para 40. Ibid, para 44. Ibid, para 48. 80  Ibid, para 54. 81  Ibid, para 56–58. 82  Case C-376/14 PPU C v M ECR 0000. 78  79 

206  The Irish Yearbook of International Law 2014 seeking an interpretation of the Enforcement of Judgments in Matrimonial Matters Regulation.83 A French man (C) and a British woman (M) married and had a child together in 2008. Later in the year, the relationship between the two parties broke down completely and they undertook divorce proceedings in the French courts, and were divorced in 2012. The French court determined joint parental authority over the child, providing that habitual residence should be with the mother with access and accommodation rights for the father. The judgment also made some provision for the mother if she moved her established residence to Ireland.84 Following the judgment, the mother and child returned to Ireland and set up residence there. However, the decision of the original court was overturned by a higher French court, which stated that the child should live with the father and granted the mother access and accommodation rights. As M had refused to return the child to France, C sought orders in the French courts granting him sole parental authority, the return of the child to France and prohibiting the child from leaving France other than with her father’s permission. When this was granted, C sought an order in the Irish High Court under Article 28 of the Regulation seeking its enforcement in Ireland, which was successful. However M, who was appealing the French judgment on a point of law, also made an application to the High Court to stay the Irish enforcement proceedings. In response to a set of questions from the Irish Supreme Court, the CJEU determined that the crucial issues surrounded Article 2(11) of the Regulation which covered the wrongful removal or retention of a child from a jurisdiction, and Article 11 which addresses the return of a child.85 For the purposes of these two provisions, the Court had to determine if the child of the couple was habitually resident in France at the time when the child was removed from France to Ireland. In order to answer this, the Court had to address the consequences of the first decision of the French courts, which had awarded custody to the mother, but which was subsequently successfully appealed. It would only determine wrongful removal/retention and grant an order of return if it was determined that the child was, immediately before the alleged wrongful retention, habitually resident in France.86 The Court outlined a range of criteria to be taken into account in determining habitual residence. These included the physical presence of the child in a Member State; the duration, regularity, conditions and reasons for the stay in the territory of a Member State; the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State; the intention of the parents or one of them to settle permanently with the child in another Member State and the duration of a stay.87 As regards the significance of the existing but appealable custody order, the Court stated … it is important, in circumstances such as those of the main proceedings, to take into account the fact that the court judgment authorising the removal could be provisionally enforced and

83  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338/1. 84  C v M (n 82), para 20. 85  C v M (n 82), at para 43. 86  C v M (n 82), at para 49. 87  C v M (n 82), at para 50–53.

Correspondent Reports—O’Gorman 207 that an appeal had been brought against it. Those factors are not conducive to a finding that the child’s habitual residence was transferred, since that judgment was provisional and the parent concerned could not be certain, at the time of the removal, that the stay in that Member State would not be temporary.88

In light of this, the Court examined C’s application to have his child returned to France under Article 11. It held that where a child was removed from a jurisdiction following a provisionally enforceable court judgment which was subsequently overturned by a higher court, and this second decision fixed the child’s residence at the home of the parent living in the Member State of origin, failure to return the child to that Member State in light of the second judgment is wrongful. Article 11 would be applicable if it is held that the child was still habitually resident in that Member State immediately before the retention.89 If it had been held that the child was not habitually resident in the Member State of origin at the time of the second judgment, a decision dismissing the application for return based on that provision would be without prejudice to the application of the rules established in Chapter III of the Regulation relating to the recognition and enforcement of judgments given in a Member State.90 FUNDAMENTAL RIGHTS

In the important Digital Rights Ireland decision, the Court set out some clear guidance for the approach it takes to judicial review of Union legislation that is alleged to infringe on fundamental rights.91 In a significant rebuff to the Union legislature, the Court of Justice struck down the Data Protection Directive.92 The decision stemmed from two separate challenges to the Directive which were referred under Article 267 TFEU from the Irish High Court and Austrian Constitutional Court.93 It was claimed that provisions of the Directive breached the right to privacy (Article 7) and the right to the protection of personal data (Article 8) contained within the Charter of Fundamental Rights. The Directive was designed to compel economic operators to collect and retain large amounts of data generated or processed from electronic communications made by citizens throughout the territory of the Union. This data would be available to law enforcement bodies for the investigation and prosecution of serious criminal activities and also to ensure the proper functioning of the internal market. In its judgment, the Court focused on whether the Directive breached Articles 7 and 8 of the Charter. The Court determined that the manner in which the Directive was to operate would cause interferences with both rights.94 The Court held that the question

88 

C v M (n 82), at para 55. C v M (n 82), at para 69. 90  C v M (n 82), para 69. 91  Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others [2014] ECR I-238. 92  Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54. 93  Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources Minister for Justice, Equality and Law Reform, Commissioner of the Garda Síochána, Ireland and The Attorney General [2010] IEHC 221. 94  Digital Rights Ireland (n 91), paras 34, 36. 89 

208  The Irish Yearbook of International Law 2014 of whether the material was sensitive or not, or whether people were inconvenienced in any way by the retention of the data, was not relevant to its finding of interference with the right of privacy.95 The Court restated the approach set out under Article 52(1) of the Charter to be taken to measures that are found to impact on fundamental rights. It stated that such interferences had to be provided for in law and must respect the essence of the rights. Further, the limitations to the rights could only be done if they were necessary and genuinely met objectives of general interest recognised by the Union or were needed to protect the rights and freedoms of others, which would be determined through application of the proportionality principle.96 As the Directive did not allow the acquisition of knowledge regarding the actual content of the communications covered, and adequate measures were to be adopted to prevent accidental or illegal destruction or interference with the data, the Court found that it did not undermine the essence of the rights to privacy and data protection respectively.97 Having identified the fight against international terrorism as a Union objective of general interest and noting how data stemming from electronic communications was regarded as particularly effective in fighting organised criminal organisations, the Court determined that the Directive did fulfil an objective of general interest.98 Moving to the proportionality analysis, the Court restated existing case law that stated that institutional acts of the EU had to be appropriate for attaining the legitimate objectives pursued and that it should not exceed what is appropriate and necessary to attain them. Addressing how these conditions would be examined in the specific context of a Union act which interferes with fundamental rights, the Court clarified that the Union legislature’s discretion may be limited. This would be decided on the basis of the area concerned, the nature of the Charter right in question, the extent of the interference and the object pursued by that interference.99 In this case, the Court determined that it would be strict in its review of the Union legislature’s discretion, due to both the importance of data protection in ensuring the right to privacy and the degree of seriousness of the Directive’s interference with the right.100 Due to the benefits that scrutinising electronic communications could give to national anti-crime agencies, the Court held that retention of the data permitted by the Directive could be considered to be appropriate for attaining the objective pursued by it.101 Derogations from the protection of fundamental rights could only be applied as far as was strictly necessary.102 As such, any Union legislation would have to put in place clear and precise rules covering the scope and application of the measure in question and imposing minimum safeguards to protect personal data against the risk of abuse and to prevent unlawful access.103

95 

Digital Rights Ireland (n 91), para 33. Digital Rights Ireland (n 91), para 38. 97  Digital Rights Ireland (n 91), para 39–40. 98  Digital Rights Ireland (n 91), para 42–44. 99  Digital Rights Ireland (n 91), para 47. 100  Digital Rights Ireland (n 91), para 48. 101  Digital Rights Ireland (n 91), para 49. 102  Digital Rights Ireland (n 91), para 52. 103  Digital Rights Ireland (n 91), para 54. 96 

Correspondent Reports—O’Gorman 209 In making this assessment of whether the interference generated by the Directive was strictly necessary, the Court noted the scope of its application, with practically the whole European population potentially affected. The Court then outlined a number of major concerns with the legislation. Firstly, there was no need for a relationship between the data retained and a particular threat to public security.104 The Directive contained no objective criteria which could be used to put a limit on a national authority’s access to and use of data.105 Further, there were no substantive and procedural conditions setting out how the data would be used.106 The Court highlighted the absence of any forum for review by a court or independent tribunal which would determine whether national authorities should be entitled to access data, nor did the Directive require such a body to be created.107 The Court also drew attention to the length of time for which the Directive permitted data to be retained. It was concerned that there was no correlation between the length of time permitted for retention and the usefulness of the particular data, and also that the range of time for which it could be retained (between six and 24 months) was not circumscribed in any way.108 The Court concluded that the Directive created a broad and serious interference with Articles 7 and 8, and that there was nothing within the Directive which would limit the interference to what was strictly necessary.109 As such, it held that the provisions of the Directive were invalid. CONCLUSION

The cases discussed here demonstrate the balancing act that the Court of Justice has to engage in with regard to its exercise of judicial power. In Digital Rights Ireland it took the significant step of striking down the Directive enacted by the Union legislature and in so doing, demonstrated the growing influence of the Charter of Fundamental Rights. In Z and CD, the Court was forced to grapple with the consequences of advances in reproductive technology, but here its decision makes it clear that it sees the role of bringing about a resolution to the potential lacuna in the law in this area as falling to the Union legislature. Aside from these wider questions of law and policy, the cases discussed are striking for the very personal aspects of the lives of Union residents that are being litigated. Cases dealing with the rights of asylum seekers are a legal manifestation of the human crisis currently being experienced on the Union’s outer borders. The Enforcement of Judgments in Matrimonial Matters Regulation forces the Court of Justice to deal with the perennially complex area of family law disputes, fought over a number of jurisdictions. After the strongly public law element of the litigation that occurred during the financial crisis, the very individual nature of the issues involved in the cases discussed in this report is a clear reminder of the near pervasive reach of Union Law.

104 

Digital Rights Ireland (n 91), para 59. Digital Rights Ireland (n 91), para 60. Digital Rights Ireland (n 91), para 61. 107  Digital Rights Ireland (n 91), para 62. 108  Digital Rights Ireland (n 91), para 63–64. 109  Digital Rights Ireland (n 91), para 95. 105  106 

210 

Irish State Practice on the Law of the Sea 2014 RONÁN LONG*

INTRODUCTION

T

HE INTERNATIONAL COMMUNITY celebrated the 20th anniversary of the coming into force of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in 2014.1 Regional trends and the state practice of countries bordering the North-East Atlantic continue to shape the progressive development of the law of the sea within the parameters set forth by the Convention and related agreements.2 In line with international best practice and in tandem with the rolling-out of the ­European Union’s (EU’s) integrated maritime policy,3 several initiatives were taken in Ireland during the report period to provide strategic direction to the work of the various public and private bodies concerned with the regulation and administration of maritime matters in Ireland. Significant developments included the following: the implementation of Ireland’s integrated marine plan; the formulation and application of area-based management tools in the context of maritime spatial planning, the foreshore and marine protected areas; the articulation of new policies on offshore renewable energy and the publication of revised fiscal terms governing offshore hydrocarbon exploration and exploitation activities; the adoption of measures to give effect to obligations arising under the Marine Strategy Framework Directive;4 the enactment of a new statutory scheme governing the registration of ships; the ratification of the Maritime Labour Convention and the Manila Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers; the enforcement of fisheries law and the adoption of a new scheme of penalty points for fishery offences; the participation by Ireland on the ongoing work of the International Whaling Commission; the handing down of a ­judgment by the High Court on the Voisinage Agreement governing reciprocal fishing rights; the coming into force of the agreement between Ireland and the United Kingdom (UK)

*  National University of Ireland Galway 1 (1996) Irish Treaty Series No 1. Entered into force with respect to Ireland on 28 July 1996. 2  R Long, ‘North-East Atlantic and the North Sea’ in D Rothwell, A Oude Elfink, T Stephens (eds), Oxford Handbook On The Law Of The Sea (Oxford, Oxford University Press, 2015) 647–71. 3  Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions—Guidelines for an Integrated Approach to Maritime Policy: Towards Best Practice in Integrated Maritime Governance and Stakeholder Consultation, COM(2008) 395, Brussels, 26 June 2008. 4  Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [2008] OJ L164/19.

212  The Irish Yearbook of International Law 2014 establishing a single maritime boundary between the exclusive economic zones (EEZs) and parts of the continental shelves lying within 200 miles of the respective baselines of the two countries; the rendering of an advisory opinion by the International Tribunal for the Law of the Sea (ITLOS) in Case 21, which concerned a request for an advisory opinion submitted to the Tribunal by the Sub-Regional Fisheries Commission in West Africa; the implementation of scientific research projects in sea areas under Ireland’s sovereignty and jurisdiction by national and foreign research vessels in accordance with Part XIII of UNCLOS; as well as law of the sea capacity building measures. In general, the outlook for the marine sector appears to be upbeat with increased public and political awareness of the critical role of the ocean for climate regulation, communications, and maritime security and for the future development of the marine economy. Indeed, knowledge of the socio-economic benefits of the Irish marine economy is growing continuously, largely through the sterling work that has been undertaken by the Socio-Marine Research Unit at the National University of Ireland Galway.5 In addition, the outlook for shipping services is encouraging, with renewed efforts to establish an international shipping services centre in Dublin.6 INTEGRATED MARINE PLAN FOR IRELAND

The legal regime pertaining to the oceans is very much aligned with economic development and the exploitation of resources by States in accordance with their rights and duties under UNCLOS.7 Thus, it is unsurprising to note that Ireland is increasingly looking to the Atlantic Ocean and adjacent seas as a source of economic growth in the so-called ‘blue economy’.8 This accords with EU and international trends including contemporary developments at the United Nations, where the oceans and seas is one of the topics for discussion by the Open Working Group on Sustainable Development Goals.9 Similarly, the EU’s blue growth strategy aims to advance sustainable growth in marine related industries.10 The latter initiative is complemented by the EU’s Atlantic Strategy, which aims to coordinate all EU policies with a maritime dimension to ensure environmental, social and economic sustainability in the Atlantic region.11 Complementing international and EU initiatives, Ireland’s Integrated Marine Plan (IMP) is focused on delivering three objectives, namely: establishing a thriving maritime economy, healthy ecosystems and engendering greater political awareness and public engagement with the sea.12 The second progress review of the implementation of IMP

5 

See: www.nuigalway.ie/semru/. C Duffy, V Power, E Roberts, ‘Ireland’ in J Gosling, T Huzarski (eds), The Shipping Law Review ­(London, Law Business Research Ltd, 2015), 294–311, especially at 310–11. 7  Article 56, UNCLOS. 8  See, Ireland’s Ocean Economy Report Series, available at: http://nuigalway.ie/semru/. 9  See http://sustainabledevelopment.un.org/focussdgs.html. 10 European Commission, ‘Blue Growth Opportunities for Marine and Maritime Sustainable Growth, COM(2012) 494, Brussels, 13 September 2012. 11  European Commission, ‘Developing a Maritime Strategy for the Atlantic Ocean Area’ COM(2011) 782, Brussels, 21 November 2011. 12  F de Londras and S Mullally (ed), Irish Yearbook of International Law (Oxford, Portland, Oregon, Hart Publishing, 2014) Vol 7, 284–85. 6  See,

Correspondent Reports—Long 213 was published in 2014.13 The plan is very much predicated on economic development and the results to date appear to be very impressive with the Irish ocean economy growing at nine per cent between 2010–2012.14 At a comparative European level, however, the sector remains relatively small at less than one per cent of Gross Domestic Product (GDP) with a turnover of €4.5 billion and providing employment for 18,450 workers.15 On the other hand, it ought to be noted that ambitious plans are in place to grow the blue economy over the coming decade and the Expert Group on Future Skills Needs (EGFSN) estimates that an additional 10,000 jobs could be created in the sector in the period leading up to 2020.16 In the longer term, the overall aim of the IMP is to double the value of the blue economy to 2.4 per cent of GDP by 2030 and to move it towards three to five per cent of GDP thereafter, which is the average size for EU coastal States with well-established maritime economies such as Denmark.17 With a view to improving the climate for foreign direct investment, the Department of Finance is committed to reviewing the ‘financial and taxation supports and opportunities available to the marine sector’ by 2015.18 PROTECTION OF THE MARINE ENVIRONMENT

All offshore economic development, prima facia, must comply with national, EU and international measures aimed at protecting the marine environment. In 2014, work continued on the development of the marine monitoring programme and indicators of good environmental status pursuant to the scheme established under the Marine Strategy Framework Directive (MSFD).19 The Department of Environment, Community and Local Government is responsible for the implementation of the MSFD and is supported by a number of other departments and state agencies, including the Marine Institute. There was also progress on the elaboration of an IUCN Red List of Threatened Species outlining the conservation status of more than 80 elasmobranch species in Irish waters.20 AREA-BASED MANAGEMENT TOOLS

The formulation of government policy on the application of area-based management tools continued apace in 2014 in response to various EU and international regulatory requirements. More specifically, a major milestone was achieved on the landscape of EU law with the adoption of Directive 2014/89/EU establishing a framework for maritime spatial planning (the MSP Directive).21 According to the preamble of the MSP Directive, 13  ‘Harnessing Our Ocean Wealth Review of Progress 2014’. Available at: www.ouroceanwealth.ie/sites/ default/files/sites/default/files/news/Final%20HOOW%20Progress%20Report%202014.pdf. 14  Ibid at 9. 15  SEMRU, ‘Ireland’s Ocean Economy Report’ (Galway, SEMRU, 2015). 16  EGFSN, ‘Report on the Current and Future Skills Requirements of the Marine/Maritime Economy to 2020’ (April 2015). Available at: www.education.ie/en/The-Department/Bodies-and-Committees/EGFSNStudy_Current_Future_Skills_Requirements_Marine_Maritime_Economy.pdf. 17  ‘Harnessing Our Ocean Wealth Review of Progress 2014’ (n 13) 9. 18  ‘Harnessing Our Ocean Wealth Review of Progress 2014’ (n 13) 15. 19  Marine Strategy Framework Directive (n 4). 20  See www.iucnredlist.org. 21  Directive 2014/89/EU establishing a framework for maritime spatial planning (the MSP Directive) [2014] OJ L257/135.

214  The Irish Yearbook of International Law 2014 the ‘planning of ocean space is the logical advancement and structuring of obligations and of the use of rights granted under UNCLOS’ and a practical tool in assisting ­Member States to comply with their international obligations.22 Ireland is obliged to transpose the MSP Directive into Irish law by 2016 and to implement a scheme of maritime spatial plan(s) by March 2021 at the latest.23 Indeed, the future growth of the ocean economy described above is very much contingent upon the adoption of such a scheme. In 2014, the Department of the Environment, Community and Local Government (DECLG) was appointed as the lead department in the development of a maritime spatial planning framework and it is anticipated that the prospective scheme will aim to harmonise the national approach to coastal and terrestrial planning in a uniform and integrated manner. In addition, the new scheme will have to take into account land-sea interactions and ensure trans-boundary cooperation with neighbouring Member States in accordance with regional institutional structures, including those established under the Regional Sea Conventions and in conformity with the sea-basin strategies adopted under the MSFD Directive.24 In 2014, the Marine Institute published a report on National, International and EU Legal Instruments Relevant to the Development of a Marine Spatial Planning Framework in Ireland,25 which identified a range of options for MSP in Ireland and a number of criteria for testing those options. The executive summary of the report summarises the options as follows: The forward planning system (minimal parallel system) proposes the introduction of a marine planning system through primary legislation, which would operate in parallel with the existing terrestrial system. While it would be separate from the land based planning system and policies, the MSP system would be coordinated with the terrestrial system, as required. There would be no change to the marine consenting regime, and initially it would have no role in conservation management. The main focus of the legislation would be the statutory requirement for the preparation of a hierarchy of plans, with a statutory role for the plan in the decision making/ licensing process. The marine spatial planning system would immediately abut the terrestrial planning system at the high water mark and would extend to the limit of the continental shelf. The hierarchy would consist of a mandatory National Marine Spatial Strategy (NMSS) aligned to the National Spatial Strategy (NSS). There would be mandatory regional sea basin plans for areas of high pressure use and discretionary regional plans for other areas and integrated coastal zone management (ICZM) plans where required. An existing body/ government department or key sections of appropriate bodies/ departments, with the appropriate expertise would be responsible for the preparation of the plans, but could coordinate with regional or local authorities as appropriate, particularly for ICZM plans.26

22 

Recital 7 of the MSP Directive (n 21). Article 15(1) of the MSP Directive (n 21). 24  Articles 7 and 11 of the MSP Directive (n 21). 25 MacCabe Durney Barnes et al, National, International and EU Legal Instruments Relevant to the Development of a Marine Spatial Planning Framework in Ireland (Oranmore, Marine Institute, 2014), available at: http://oar.marine.ie/bitstream/10793/1039/1/Desk%20Study%20Legal%20Instruments%20for%20 Marine%20Spatial%20Planning.pdf. 26  Ibid at i. 23 

Correspondent Reports—Long 215 A number of other technical studies on MSP were published in 2014.27 Further parliamentary work was also undertaken on the reform of the foreshore legislation, with the Joint Oireachtas Committee on the Environment, Culture and the Gaeltacht publishing a report on the subject in February 2014.28 MARINE PROTECTED AREAS

Ireland has adopted measures to protect and preserve sensitive habitats and threatened species in the marine environment. In particular, Ireland has designated marine special areas of conservation under the Habitats Directive as part of the EU’s NATURA 2000 network.29 These habitats include: estuaries; large shallow inlets and bays; mudflats and sandflats not covered by sea water at high tide; reefs; sandbanks; submerged or partly submerged sea caves.30 In line with the scheme advanced by the Habitats Directive, six additional sites to protect bottlenose dolphins, sandbanks and reefs were notified to the European Commission following public consultation in 2014.31 The sites are important because the coastal environment and the land-sea interface in Ireland are subject to increasing pressures from infrastructure development, pollution, urban expansion, fishing and aquaculture, amongst other activities. Ireland has not enacted specific regulatory measures to fulfil marine protected area (MPA) commitments pursuant to international treaties, but utilises the NATURA 2000 network for this purpose. At the regional level of the North-East Atlantic, for example, 19 of the Irish sites form an important component of the OSPAR network of MPAs,32 which is made-up of 413 sites amounting to six per cent of the total OSPAR area, 10 of which are located in areas beyond national jurisdiction.33 The precise conservation status of the sites designated by Ireland and other EU M ­ ember States is subject to assessment in accordance with the procedures set out in Article 17 of the Habitats Directive. The most recent scientific assessments were completed in 2014.34 The Article 17 summary report noted that the Atlantic biogeographic region shows one of the highest proportions of unfavourable/bad assessments for more than half of the species and habitats designated for protection under the Habitats Directive.35 Moreover,

27  See, for example, W Flannery, Review of Marine Spatial Planning: Best Practice of Relevance to Ireland, (Belfast, School of Planning, Architecture and Civil Engineering Queen’s University, 2014) available at: http:// oar.marine.ie/bitstream/10793/1041/1/QUB%20Final%20Report%20MSP%20Best%20Practice%20Nov-13. pdf. 28  Report available at: http://www.oireachtas.ie/parliament/media/committees/environmenttransportcultureandthegaeltacht/Maritime-Area--Foreshore-Report-Final.pdf. 29  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. Transposed into Irish law by the EC (Natural Habitats) Regulations 1997, SI 1997/94. 30  Ibid. 31  de Londras and Mullally (n 12) 285–88. 32  The full list is available at: www.npws.ie/sites/default/files/general/OSPAR%20MPAs.pdf. 33 OSPAR Recommendation 2003/3 adopted by OSPAR 2003 (OSPAR 03/17/1, Annex 9), amended by OSPAR Recommendation 2010/2 (OSPAR 10/23/1, Annex 7). 34  European Commission, ‘The State of Nature in the European Union Report on the Status of and Trends for Habitat Types and Species Covered by the Birds and Habitats Directives for the 2007–2012 Period as Required under Article 17 of the Habitats Directive and Article 12 of the Birds Directive COM(2015) 219, Brussels, 20 May 2015. 35  Ibid, at 9.

216  The Irish Yearbook of International Law 2014 the Commission concluded that ‘the complexity of working in the marine environment and the relative lack of data’ made the assessment particularly difficult in relation to the protection of marine features.36 As regards marine ecosystems, the Commission pointed out that the ‘use of living resources’ and ‘pollution’ constitutes the main threats to achieving the objective of favourable conservation status under the Habitats Directive.37 On a positive note, the Article 17 report records an improvement in the conservation status of the alga Maerl Lithothamnium coralloides in Ireland, which is attributed by the Commission to the protection regime afforded by the Habitats Directive.38 In general, the absence of appropriate site specific management plans as well as a comprehensive monitoring programme makes it difficult to draw any definitive conclusions about the effectiveness of the marine Special Area of Conservation/Marine Protected Area SAC/MPA network in Ireland. Moreover, a number of stakeholder bodies and environmental non-governmental organisations (NGOs) continue to voice their concerns regarding the national approach to marine conservation measures.39 The European ­Environmental Agency has also raised questions about the absence of political commitment at a pan-European level to the use of MPAs as a means to halt the loss of biodiversity in Europe’s seas.40 Furthermore, the percentage of marine areas designated for protection as MPAs in Ireland appears to fall well short of the Aichi Target under the Convention on Biological Diversity, which calls for the designation of at least 10 per cent of coastal and marine areas as protected areas by 2020.41 OFFSHORE RENEWABLE ENERGY

The publication of the Offshore Renewable Energy Development Plan and Strategic Environmental Assessment in 2014 marks further progress in developing this important sector at a national level.42 The Offshore Renewable Energy Steering Group, which draws expertise from several government departments and state agencies concerned with offshore development, is tasked with the orderly implementation and oversight of the plan. OFFSHORE HYDROCARBONS

Ireland is vested with significant sovereign rights in relation to offshore hydrocarbons under UNCLOS.43 Moreover, a comprehensive code of legislation and fiscal measures 36 

Ibid, at 12. Ibid, at 15. 38  Ibid, at 15. 39  L Siggins, ‘Marine Conservation Plans Seem to be all at Sea’ Irish Times, 4 January 2014. 40  European Environment Agency, ‘Marine Protected Areas in Europe’s Seas: An Overview and Perspectives for the Future’ (Luxembourg, Publications Office of the European Union, 2015) 32. 41 UNEP/CBD/SBSTTA/18/2. 42 Renewable and Sustainable Energy Division Department of Communications, Energy and Natural Resources, ‘Offshore Renewable Energy Development Plan: A Framework for the Sustainable Development of Ireland’s Offshore Renewable Energy Resource’ (Dublin, February 2014). Available at: www.dcenr.gov.ie/ energy/SiteCollectionDocuments/Renewable-Energy/20140204%20DCENR%20-%20Offshore%20Renewable%20Energy%20Development%20Plan.pdf. The Strategic Environmental Assessment Statement is available at: www.dcenr.gov.ie/energy/SiteCollectionDocuments/Renewable-Energy/SEA%20Statement%20pdf%20 1.12mb.pdf. 43  Article 77, UNCLOS. 37 

Correspondent Reports—Long 217 apply to all hydrocarbon exploration and exploitation activities in sea areas under Ireland’s sovereignty and jurisdiction. In 2014, as a follow-up to a report on the fiscal measures applicable to the licensing of offshore exploration and production activities,44 the Minister for Communications, Energy and Natural Resources announced changes to the tax terms for upstream petroleum activities. The changes were based on a comparative examination of the fiscal regime that applies in Canada, New Zealand, Portugal, Spain, Morocco, South Africa and the United Kingdom. On the basis of the comparative analysis, the specialist report recommended the following: —— The retention of the corporation tax rate applying to petroleum production at 25 per cent. —— The maintenance of a concession system, with industry rather than the State bearing the fiscal risk associated with exploration activities. —— The continued application of production profit tax but subject to revision for new licences. Specifically, the tax to be levied on a field-by-field basis on the basis of profitability with a minimum payment rate that ensures a higher share for the State from the most profitable fields. This would result in a maximum tax rate of 55 per cent, applicable to new licences. In bringing forward the proposed changes and with a view to setting out government policy on this contentious matter, the Minister for Communications, Energy and Natural Resources stated as follows: …[the] intention [is to send] a clear message in relation to the stability of Ireland’s fiscal regime for the oil and gas exploration sector. For existing licences no changes are proposed. For future prospective licence holders a clear regime is being set out and the rationale for that regime has been explained. This should further engender industry confidence in the stability and predictability of Ireland’s oil and gas fiscal terms and allow the industry to focus on effective and timely exploration effort.45

The revised fiscal terms apply to authorisations awarded from 18 June 2014 and will be given legal effect by means of the Finance Act 2015.46 Also in June 2014, the Atlantic Margin Oil and Gas Exploration Licensing Round was announced by the Department of Communications, Energy and Natural Resources. The Round applied to all the major Atlantic basins in sea areas under Ireland’s sovereignty and jurisdiction, including the Porcupine, Goban Spur, Slyne, Erris, Donegal and Rockall basins. The form of concession on offer was a two-year Licensing Option under the 1960 Petroleum and Other Minerals Development Act.47 REGISTRATION OF IRISH SHIPS

Similar to other countries worldwide, international law and UNCLOS in particular ­compels Ireland to set the conditions that apply to the granting of its nationality to ships, 44 Wood Mackenzie, ‘Review of Ireland’s Oil and Gas Fiscal System’, available at: www.dcenr.gov.ie/ natural-resources/Lists/Publications%20Documents/ReviewofIrelandsOilGasFiscalSystem%20FINAL.pdf. 45 Press Release, 18 June 2014, available at: www.dcenr.gov.ie/news-and-media/en-ie/Pages/PressRelease/ Rabbitte-announces-new-tax-regime-.aspx. 46  s.20, Finance Act 2015, No 52 of 2015. 47  Petroleum and Other Minerals Development Act 1960, No 7 of 1960.

218  The Irish Yearbook of International Law 2014 for the registration of ships on its territory and for regulating the ensuing entitlement of a ship to fly the Irish flag.48 As such, flag State jurisdiction remains the predominant means of maintaining legal order over activities that take place at sea.49 In this regard, the Merchant Shipping (Registration of Ships) Act 2014 brings about much needed reform to the statutory code applicable to the registration of shipping in Ireland.50 The new statutory scheme is achieved by the repeal and updating of the Mercantile Marine Act 1955,51 as subsequently amended by a number of other enactments including most markedly by the Merchant Shipping (Miscellaneous Provisions) Act 1998,52 as well as the Sea-Fisheries and the Maritime Jurisdiction Act 2006.53 The 2014 Act was enacted against a background of increased emphasis in EU and international instruments on the safety of shipping and the protection and preservation of the environment.54 Indeed, the registration of shipping continues to be of paramount importance for the international community and there has been substantial efforts by both the International Maritime Organization (IMO) and ITLOS to clarify legal matters pertaining to the necessity of maintaining a genuine link between a ship and its flag State, as well as on the issues of registration, liability and the respective roles of coastal, port and flag States more generally.55 Worldwide, however, there remains a proliferation of open registries/flags of convenience and as a result substandard and hazardous conditions are an all too common feature and long-standing problem in international shipping.56 Ireland has long sought to exercise effective control over ships that fly the Irish flag and to ensure the application of generally accepted international rules and standards. Essentially, the 2014 Act consolidates the law and sets out the technical and administrative detail pertaining to the registration of ships in Ireland and aims to ensure the safety of maritime transport services. The term ‘ship’ is defined broadly under the 2014 Act to include ‘every description of vessel used in navigation not propelled exclusively by oars and includes personal watercraft and small fast powered craft’.57 Notably, the 2014 Act provides a statutory basis for the establishment and operation of an Irish Register of Ships and extends the number of categories of ships that are subject to mandatory

48 

Article 91, UNCLOS. See R Barnes, ‘Flag States’ in Rothwell, Oude Elfink and Stephens (n 2) 304–24. 50  Merchant Shipping (Registration of Ships) Act 2014, No 43 of 2014. With the exception of section 69, the new scheme established by the 2014 Act will come into force as soon as regulations are made by the Minister and as soon as the new electronic database is established by the Department of Transport. 51  Mercantile Marine Act 1955, No 29 of 1955. 52  Merchant Shipping (Miscellaneous Provisions) Act 1998, No 20 of 1988. 53  Sea-Fisheries and the Maritime Jurisdiction Act 2006, No 8 of 2006. 54  See Barnes (n 49). 55  The United Nations Convention for Registration of Ships failed to clarify many of the critical issues and is not yet in force. See GC Kasoulides, ‘The 1986 United Nations Convention on the Conditions for Registration of Vessels and the Question of Open Registry’ (1989) 20(6) Ocean Development and International Law 543–76. Also see M/V ‘Saiga’ cases (Saint Vincent and the Grenadines v Guinea): no 1, prompt release; no 2, provisional measures; no 3 merits, reproduced in (1998) 37 International Legal Materials 360. 56  One of the first in-depth studies of this subject was undertaken by B Boczek, Flags of Convenience: An International Study (Cambridge, Harvard University Press, 1962). 57  s 2, Merchant Shipping (Registration of Ships) Act 2014. 49 

Correspondent Reports—Long 219 registration,58 as well as establishing a statutory footing for the removal of noncompliant ships from the Register.59 Warships and recreational craft, which are less than 24 metres in load line length, are exempted from the requirement of registration.60 All ships registered in Ireland are entitled to fly the national colours and assume national character for legal and other purposes.61 Part II of the 2014 Act provides much of the detail pertaining to registration, including the procedures, documentation, qualifications, measurement, as well as the naming and marking of ships and certificates of registry.62 Significant developments in the statutory code are the new requirements pertaining to the registration of small fast powered craft, certain small commercial angling boats and fishing boats less than 15 metres in length.63 One novel aspect of the statute is the extension of the registration scheme to personal watercraft (jet skis) in response to a recommendation made by the Marine Casualty Investigation Board following a number of marine casualty incidents involving such equipment.64 Indeed, the prohibition of using personal watercraft on waters other than general navigable waterways has been regulated in a number of European countries and has been the subject of case law in Sweden and the Court of Justice of the European Union.65 The updated scheme of registration entails the maintenance by Ireland of 13 ports of registry, namely: Arklow, Cork, Drogheda, Dublin, Dundalk, Galway, Limerick, Skibbereen, Sligo, Tralee, Waterford, Westport and Wexford.66 From an international law perspective, a crucial mandatory requirement under the 2014 Act is that a ship must have its operations controlled and directed from within the State in order to satisfy the requirements of Irish registration.67 The 2014 Act contains extensive provisions relating to enforcement, including: the granting of the power of detention to surveyors for registration related offences; an increase in penalties and the introduction of a system of fixed payments for certain offences; and the designation of a range of State personnel, including commissioned officers in the Naval Service as authorised persons for law enforcement purposes.68 There are private law provisions on title, ownership, transfers of ships and mortgages on ships,69 legal proceedings, as well as on the liability of the owner and ­master.70 Additionally, with a view to tidying-up the statute book, the 2014 Act provides

58 

s 9, Merchant Shipping (Registration of Ships) Act 2014. s 21, Merchant Shipping (Registration of Ships) Act 2014. 60  s 11(2)(a)–(b), Merchant Shipping (Registration of Ships) Act 2014. 61  s 33(2)(3), Merchant Shipping (Registration of Ships) Act 2014. 62  ss 9–26, Merchant Shipping (Registration of Ships) Act 2014. 63  s 11, Merchant Shipping (Registration of Ships) Act 2014. 64  s 11(1)(b), Merchant Shipping (Registration of Ships) Act 2014. ‘Personal watercraft’ are defined to mean ‘a ship (other than a recreational craft) of less than 7 metres in length overall which uses an internal combustion engine having a water jet pump as its primary source of propulsion, and which is designed to be operated by a person or persons sitting, standing or kneeling on, rather than within the confines of a hull’. 65  Case C-142/05 Mickelsson and Roos [2009] ECRI-4273. 66  s 3 and Sch 3, Merchant Shipping (Registration of Ships) Act 2014. 67  s 11(6)(a), Merchant Shipping (Registration of Ships) Act 2014. 68  ss 39–42, Merchant Shipping (Registration of Ships) Act 2014. 69  ss 48–62, Merchant Shipping (Registration of Ships) Act 2014. 70  ss 63–67, Merchant Shipping (Registration of Ships) Act 2014. 59 

220  The Irish Yearbook of International Law 2014 for an updated definition of the ‘Safety Convention’ in the Merchant Shipping (Safety Convention) Act 1952, in accordance with the amendment of the International Convention for the Safety of Life at Sea.71 In general, the 2014 Act is a welcome improvement to the Irish maritime law code and is consistent with regulatory trends at the IMO, which require flag States to implement and ensure compliance with international standards under domestic law.72

MARITIME LABOUR CONVENTION

In July 2014, Ireland ratified the 2006 Maritime Labour Convention.73 Four sets of regulations were made to give effect to the Convention and to the provisions of Council Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the 2006 Convention.74 Briefly stated, the first set of regulations implement the provisions in the 2006 Convention relating to seafarer employment agreements and wages.75 Specifically, they address the minimum contents of seafarer employment agreements, the duties of shipowners with regard to records of employment, the obligations towards seafarers who are not employees and the minimum periods of notice, as well as prescribing provisions relating to the payment of crew wages. The latter is a major issue of contention due to the depressed state of the global shipping market and has resulted in High Court proceedings in Ireland in relation to foreign flagged vessels, as will be discussed below.76 The second set of regulations implements the provisions in the 2006 Convention relating to accommodation, recreational facilities, food, catering and ships’ cooks.77 The third set of regulations implements the provisions of the 2006 Convention relating to shipowners’ liability and repatriation including addressing seafarer medical care and other expenses following sickness or injury resulting in incapacity for work.78 The fourth set relates to flag State responsibilities.79 Also in 2014, specified categories of ships registered in Ireland were issued with statements of compliance in accordance with the 2006 Convention.80

71 

s 69, Merchant Shipping (Registration of Ships) Act 2014. IMO Res A1070(28), IMO Instruments Implementation Code (III Code), 4 December 2013. 73  Done at Geneva on 23 February 2006. Ireland’s Instrument of Ratification deposited on 21 July 2014. Entered into force with respect to Ireland on 21 July 2015 (2015) Irish Treaty Series No 8. 74  Amending Directive 1999/63/EC [2009] OJ L124/30. 75 Merchant Shipping (Maritime Labour Convention) (Seafarer Employment Agreement and Wages) Regulations 2014, SI 2014/373. 76  Amsterdam Trade Bank NV v The owners and all persons claiming an interest in the MV Clipper Faith [2014] IEHC 329. 77 Merchant Shipping (Maritime Labour Convention) (Accommodation, Recreational Facilities, Food, Catering and Ships’ Cooks) Regulations 2014, SI 2014/374. 78  Merchant Shipping (Maritime Labour Convention) (Shipowners’ Liabilities and Repatriation) Regulations 2014, SI 2014/375. 79  Merchant Shipping (Maritime Labour Convention) (Flag State Inspection and Certification) Regulations 2014, SI 2014/376. 80  ‘Harnessing Our Ocean Wealth Review of Progress 2014’ (n 13). 72 

Correspondent Reports—Long 221 MANILA AMENDMENTS TO THE STCW CONVENTION

Regulations were made to transpose the requirements arising under Directive 2012/35/EU on the minimum level of training of seafarers.81 This Directive gives effect in EU law to the major revisions of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (the STCW Convention), commonly referred to as the Manila Amendments.82 Ireland remains on the STCW ‘White List’, which is maintained by the IMO for seafarer training, with this indicating that it has communicated to the IMO information that demonstrates that it has given full and complete effect to the relevant provisions of STCW Convention.83 ADMIRALTY COURT

A specialist division of the Irish High Court, the Admiralty Court deals with maritime claims pursuant to the Jurisdiction of Courts (Maritime Conventions) Act 1989,84 which amongst other matters incorporates the 1952 International Convention relating to the arrest of seagoing ships into Irish law.85 The work of the Court is very much linked to the international shipping market, which has over-capacity and is acutely exposed to the fragility of the global economy. A case in point arose in relation to the bulk carrier, MV Clipper Faith, registered in Belize and owned by a company ‘Afternoon Maritime Corporation’ (AMC) incorporated in Libya, which was arrested in Dublin on foot of a claim made against it by Amsterdam Trade Bank NV, the latter holding a mortgage over the vessel. The Bank called in the loan on the grounds of default and issued proceedings on 13th March 2013. Judgment was obtained from the Admiralty Court, which granted various orders including one allowing the ship to be sold to cover the wages of the crew.86 The vessel was sold in May 2013 for the sum of €4.8 million and the proceeds lodged in Court for subsequent distribution on the determination of the case. Under Irish shipping law, the determination of priorities against the proceeds of sale is decided by the Court with the wages of the crew and the Admiralty Marshal’s expenses taking priority over the interests of the mortgagor(s) and other creditors.87 On 12th July 2013, the Supreme Court directed that the plaintiff bank was entitled to bring a motion clarifying whether the AMC’s parent holding company ‘Zealand Holdings Incorporated’ (Zealand) had any interest in the vessel or the funds in Court and if Zealand had locus standi to defend or intervene in the proceedings. Following on from

81  Directive 2012/35/EU amending Directive 2008/106/EC on the minimum level of training of seafarers, [2012] OJ L343/78; Directive 2008/106/EC of the European Parliament and of the Council of 3 December 2008 on the minimum level of training of seafarers [2008] OJ L323/33; European Union (Training, Certification and Watchkeeping for Seafarers) Regulations 2014, SI 2014/242. 82  Entered into force with respect to Ireland on 11 December 1984 (2007) Irish Treaty Series No 113. 83  IMO MSC.1/Circ.1163/Rev.9, 15 June 2015. 84  No 5 of 1989. 85 (1992) Irish Treaty Series No 6. 86  After an intervention by the International Transport Workers’ Federation on behalf of the crew, who were from the Russian Federation and the Ukraine. See SIPTU Press Release, ‘ITF Secures Record Settlement for Crew of Ship Stranded in Dublin’, 28 May 2013. 87  Duffy, Power, Roberts (n 6) 307.

222  The Irish Yearbook of International Law 2014 this in 2014, Zealand sought to intervene in the High Court proceedings, Amsterdam Trade Bank NV v The owners and all persons claiming an interest in the MV Clipper Faith, by virtue of the fact that its subsidiary company AMC had paid a sum of about $15 million to the plaintiff bank and that it thus had a charge on the ownership of the ship that allowed it to defend the action and to counterclaim.88 The plaintiff bank contended that the owners of the Neptune Companies (all subsidiaries of Zealand) had paid the sums in question under obligations to do so, and that they, therefore, never had a claim to a beneficial interest in the vessel.89 They further argued that Zealand was trying to make a claim to an interest in the assets of its subsidiary company, namely AMC.90 Butler J, who delivered the judgment of the Admiralty Court, held that a ‘shareholder has no property, legal or equitable, in the assets of a company’, and that as a consequence Zealand never had ‘any interest in the vessel, or, by extension, in any of the funds in Court’.91 Accordingly, the Court held that Zealand had no locus standi to defend the proceedings and struck out a memorandum of appearance filed on its behalf.92 MARITIME SAFETY

Preserving and enhancing maritime safety is a priority for the Irish Government. In 2014, a public and stakeholder consultation process was undertaken with a view to addressing the causes of maritime fatalities and to develop a national Maritime Safety Strategy.93 Also in 2014, the IMO continued its work on a long-term action plan on passenger ship safety,94 which will have important consequences for Ireland due to the growth in the number of cruise ship visits to Irish ports in recent years. For instance, according to recent figures published by the Irish Maritime Development Office, a total of 238 cruise ships called to Irish ports in 2014, representing an increase of four per cent on the number of visits in 2012.95 MARITIME SECURITY

The Naval Service commissioned a new offshore patrol ship, the LÉ Samuel Beckett, which entered service in 2014. The Naval Service also continued its participation in the

88 

Amsterdam Trade Bank NV (n 76). Amsterdam Trade Bank NV (n 76) para 11. 90  Amsterdam Trade Bank NV (n 76) para 11. 91  Amsterdam Trade Bank NV (n 76) para 12. 92  Amsterdam Trade Bank NV (n 76) para 13. 93 Department of Transport, Tourism and Sport, ‘Maritime Safety Strategy Consultation Document’ (Dublin, 2014), available at: www.dttas.ie/sites/default/files/publications/maritime/english/maritime-safetystrategy/maritime-safety-strategy-english-draft.pdf. 94  IMO Maritime Safety Committee, 94th session, 17–21 November 2014. 95  Source: IMDO, ‘The Irish Maritime Transport Economist’, 2011, 2012, 2013, 2014 and 2015. Cited by SEMRU in ‘Ireland’s Ocean Economy, Reference Year 2012’, available at: www.nuigalway.ie/semru/documents/ semru__irelands_ocean_economy__web_final.pdf, 20. 89 

Correspondent Reports—Long 223 European Defence Agency Maritime Surveillance project, which facilitates the sharing of maritime operational information among government agencies and security services in 17 Member States and Norway.96 The European Council (General Affairs) adopted the European Union Maritime Security Strategy in 2014,97 which provides a framework for coherent development of policies and a common response to maritime threats and risks. The common response entails a sustained effort by all EU Member States to implement national and EU legislation as well as international law, in particular UNCLOS and other relevant conventions and instruments pertaining to the ocean.98 EXTRA-TERRITORIAL LAW ENFORCEMENT

In September 2014, the Naval Service exercised extra-territorial enforcement powers in a sea outside of Ireland’s sovereignty and jurisdiction by arresting the yacht, Makayabella, in a position that was reportedly more than 200 miles south-west of the Irish coast, pursuant to section 35 of the 1994 Criminal Justice Act.99 Amongst other matters, the latter statute has extensive provisions on drug trafficking offences at sea and incorporates into Irish law aspects of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.100 Subject to certain prescribed conditions, the 1994 Act applies to an Irish ship, a ship registered in a Convention State and a ship not registered in any country or territory.101 In particular, the 1994 Act provides a legal basis for the Minister for Foreign Affairs to authorise the interdiction on the high seas of a foreign registered vessel suspected of drug trafficking offences.102 The First Schedule of the 1994 Act sets out the powers of an enforcement officer to stop, board, divert and detain a ship. According to media reports, the operation to track and detain the yacht involved the Naval Service working in conjunction with the Customs and Excise and An Garda Síochána, as well as with the assistance of the Maritime Analysis and Operations Centre (Narcotics) in Portugal, the National Crime Agency and National Maritime Information Centre in the UK, along with French and Venezuelan authorities.103 The crew and others involved in the drug trafficking offence were subsequently prosecuted successfully in Ireland and the UK.104

96  Belgium, Bulgaria, Cyprus, Germany, Spain, Greece, Finland, France, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Sweden, and the UK. 97  Council of the European Union, 11205/14, 24 June 2014. Available at: register.consilium.europa.eu/doc/ srv?l=EN&f=ST%2011205%202014%20INIT. 98  See R Long, ‘Maritime Security Law in the EU: Between the Devil and the Deep Blue Sea’ (2016) Havard Law School National Security Journal (forthcoming). 99  No 15 of 1994. See ‘Cork Cocaine Haul: Four Men Arrested over £63m Drug Seizure off Irish Coast’ BBC News, 25 September 2014, available at: www.bbc.com/news/world-europe-29357923. 100 (1997) Irish Treaty Series No 4. 101  s 34(1), 1994 Criminal Justice Act. 102  s 35, 1994 Criminal Justice Act. 103  Irish Times, 5 December 2014. 104  Irish Times, 24 April 2015.

224  The Irish Yearbook of International Law 2014 MARINE LIVING RESOURCES

One of the most pressing challenges in ocean affairs globally is the continued deterioration of fish stocks and the loss of marine biodiversity. There have been a number of international initiatives to reverse this trend, including the adoption of the Strategic Plan for Biodiversity 2011–2020 under the Convention on Biological Diversity and the Aichi Biodiversity Target 6, which are aimed at ensuring that all fish stocks are ‘managed and harvested sustainably, legally and applying ecosystem-based approaches by 2020’.105 In the EU, the reformed common fisheries policy came into force on the 1st January 2014 and is aimed at ensuring sustainability in the exploitation of marine living resources by 2015 where possible and by 2020 for all stocks.106 The seas adjacent to Ireland remain ‘biologically sensitive’ with the general status of fish stocks remaining precarious. More specifically, on the basis of scientific advice from the International Council for the Exploration of the Seas and by the International Commission for the Conservation of Atlantic Tunas amongst other international bodies, the status of 73 fish stocks in sea areas adjacent to Ireland were published by the Marine Institute in the 2014 Stock Book.107 The book reveals a higher number of sustainably managed stocks at 25 when compared with figures for the previous year.108 The percentage and number of stocks overfished also increased in 2014.109 There appears to be a major scientific knowledge deficit in so far as 60 per cent of the stocks are recorded as ‘unknown/undefined status’ in the 2014 Stock Book.110 Following a review of the North East Atlantic Fisheries Commission (NEAFC) regulation on bottom trawl fishing, a revised recommendation on the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area was adopted in 2014,111 the effectiveness of which will be reviewed every five years. FISHERIES LAW ENFORCEMENT

Ireland undertakes a broad range of enforcement activities including the boarding, inspection and the detention of fishing vessels where warranted to ensure compliance with the rules underpinning the common fisheries policy and national law.112 The Naval Service and the Sea Fisheries Protection Authority are responsible for the tasks associated with fisheries law enforcement in Ireland. As can be seen from the information presented in Table 1 below, the Naval Service undertook 994 inspections and detained 16 vessels in 2014. 105  See Report of the Secretary-General, ‘Oceans and the Law of the Sea’, A/69/71, 21 March 2014, especially paras 83–92. 106  Art 2(2) of Regulation No 1380/2013 of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/22. 107  Marine Institute, ‘Annual Review of Fish Stocks in 2014 with Management Advice for 2015’ (Oranmore, MI, 2014). 108  Ibid at 12. 109  Ibid at 12. 110  Ibid at 13. 111  NEAFC Rec 2014-19, 11 September 2014. 112  Art 73(1), United Nations Convention on the Law of the Sea.

Correspondent Reports—Long 225 Table 1:  Fisheries Vessels Boarded, Inspected and Detained by the Naval Service in 2014 2014

Boarding / Inspection

Ireland

403

7

Spain

273

1

UK

104

4

France

193

3

Denmark

4

–

Faroe Islands

1

Netherlands

7

1

Germany

1

–

Norway

1

–

Belgium

7

–

994

16

Total

Detentions

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

PENALTY POINT SYSTEM

Significant efforts have been made in recent years to introduce a more flexible system to address the penalties invoked for fishery offences in Ireland. The issue came to public attention as a result of court proceedings in previous years.113 There have been two major developments in Irish law in this regard during the report period. First, further to EU legislation,114 regulations were made establishing a point system for serious infringement by licence holders of the rules underpinning the common fisheries policy by foreign vessels within the exclusive fishery limits of the State, as well as for Irish flagged vessels irrespective of their location.115 The key features revolve around the powers vested in the Sea Fisheries Protection Authority, which is responsible for the administration of the system and the assignment of points. The regulations also make provision for an independent appeals officer, a practising barrister or solicitor of not less than five years’ standing appointed by the Minister, to hear appeals against the assignment of points. The number of points to be attributed for specific infringements is set down in EU regulation, which aims to achieve a more transparent and uniform penalty system for all EU Member States.116 Every time a serious infringement is committed, the appropriate number of points will be assigned to the licence holder of the vessel. Under the system, serious infringement of fisheries legislation can lead to the suspension of a sea fishing boat licence for a period up to one year, or for the permanent withdrawal

113  O‘Driscoll & Anor v Attorney General & Ors [2012] IEHC 404; Michael Faherty v Attorney General & Ors [2011] IEHC 222; Browne v Attorney General [2003] 3 IR 205. See R Long, ‘Irish State Practice on the Law of the Sea 2012’ in de Londras and Mullally (n 12) 274–275. 114  Article 92 of Council Regulation (EC) No 1224/2009 [2009] OJ L343/1 and Title VII of Commission Implementing Regulation (EU) No 404/2011 [2011] OJ L112/1. 115  European Union (Common Fisheries Policy) (Point System) Regulations 2014, SI 2014/3. 116  Commission Implementing Regulation (EU) No 404/2011 [2011] OJ L112/1.

226  The Irish Yearbook of International Law 2014 of a licence in exceptional cases. Reportedly, the system is subject to an application for judicial review on constitutional grounds made on behalf of the licence holder and the master of the Tea Rose trawler.117 The second major development in 2014 was the publication of the Regulatory Impact Analysis of the Proposal for a Bill to amend the Sea Fisheries and Maritime Jurisdiction Act 2006 to provide for fixed penalties for minor offences, a points system for masters of fishing vessels for serious offences and quota management policy.118 The new measures aim to bring Irish law into conformity with EU law.119 INTERNATIONAL WHALING COMMISSION

Ireland participated at the 65th Meeting of the International Whaling Commission (IWC) in Slovenia in 2014. At the meeting, Denmark introduced a proposed amendment to the schedule and need statement in relation to aboriginal subsistence whaling (ASW), noting that these were part of a ‘package’ proposal with the proposed resolution by Italy on behalf of the EU to address the short-term and long-term issues relating to ASW. Along with the other EU Member States, Ireland voted in favour of both the schedule amendment and resolution on ASW by Greenland.120 At the meeting, a number of IWC Contracting Parties and NGOs (Whale and Dolphin Conservation and Animal Welfare Institute) asserted that the quotas were in excess of what was required for subsistence hunting and will therefore set a precedent for the resumption of commercial whaling.121 Nonetheless, the meeting adopted the amendment and resolution as tabled by Denmark.122 Resolutions were also adopted on the following agenda items: highly migratory cetacean species, civil society participation and transparency at the IWC, the Scientific Committee, and on whaling under special permit.123 One of the key issues debated at the meeting concerned animal welfare issues. Italy, on behalf of the EU, put on record its belief that the IWC had a clear role to play in adopting appropriate measures in this regard. Similarly, the UK believed that the IWC should follow a comprehensive approach to welfare and produced a revised version of the recommendations.124 Ireland, along with Argentina, Australia Germany and the US, associated themselves with the comments made by the UK and Italy on behalf of the EU.125 The meeting adopted a new welfare workplan by consensus.

117 

See ‘Penalty Points System for Fishermen Halted by High Court’ Irish Examiner, 16 January 2016. at: www.agriculture.gov.ie/media/migration/customerservice/publicconsultation/RIASFMJA 2014201114.pdf 119  European Union (Common Fisheries Policy) (Point System) Regulations 2014 (n 115). 120  IWC/65/15 Resolution on Aboriginal Subsistence Whaling-EU, ‘IWC Chairman’s Report of the 65th Annual Meeting’, para 50. The vote on Schedule Amendment IWC/65/16 on strike limits for the Greenland hunt 2014–2018, which required a three-quarter majority in support passed, with 46 votes in favour, 11 votes against and 3 abstentions. 121  IWC Chairman’s Report (n 120) paras 56 and 58–60. 122  The adopted text is given as Resolution 2014-1 in Annexes N and E to the IWC Chairman’s Report (n 120). 123  Ibid. 124  IWC/65/WKM&AWI05 Rev1. 125  IWC Chairman’s Report (n 120) para 206. 118 Available

Correspondent Reports—Long 227 Amendments of IWC Convention regarding the establishment of a South Atlantic whale sanctuary and the capture of minke whales by small-type coastal whaling vessels did not achieve the necessary three quarters majority vote of IWC Contracting Parties. Similarly, a resolution on food security did not achieve the requisite consensus vote for adoption. In general, however, the 65th Meeting was deemed a success by the Chair, Ms Jeannine Compton-Antoine, who noted the historic signing of a Memorandum of Cooperation, by Japan, the Russian Federation and the UK, to progress joint actions in regard to the western North Pacific gray whales.126 The next meeting is scheduled for 2016. OUTER CONTINENTAL SHELF

By the end of 2014, the Commission on the Limits of the Continental Shelf (CLCS) had adopted 20 sets of recommendations pursuant to Article 76 of UNCLOS.127 Apart from Ireland,128 only three other States worldwide have deposited with the Secretary-General of the United Nations information and data permanently describing the outer limits of the continental shelf on the basis of the recommendations of the Commission and in accordance with UNCLOS.129 VOISINAGE ARRANGEMENT

Ireland and Great Britain concluded a Voisinage Arrangement (hereinafter ‘the Arrangement’) in 1964–1965, which confers reciprocal fishing rights on fishermen from Ireland and Northern Ireland.130 The Arrangement was in the form of an exchange of letters and operates under Article 9 (2) of the 1964 Fisheries Convention and was concluded at a time when Ireland had extended its territorial sea and exclusive fishery limits to 12 miles,131 following on from the establishment of a system of straight baselines on the south and west coasts in 1959.132 In this context it is important to keep in mind that Article 9(2)

126 

IWC Chairman’s Report (n 120) para 423. ‘Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, Pursuant to Article 76, Paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982’ (2014), available at www.un.org/depts/los/clcs_new/commission_submissions.htm. 128  In the area abutting the Porcupine Abyssal Plain. 129  Report of the Secretary-General, ‘Oceans and the Law of the Sea’, A/69/71/Add.1, 1 September 2014, 5/44. 130 Fisheries Convention—Agreement as to Transitional Rights (Regarding Ireland)—Agreement as to Transitional Rights (Regarding Britain)—Protocol of Provisional Application of the Fisheries Convention— London, 9 March 1964 (adopted 9 March 1964, entered into force 15 March 1966, 58 UNTS 57; (1996) Irish Treaty Series No 1). The technical aspects of the Voisinage Arrangement is set out at paras 13–14 of the judgment of Mr Justice Birmingham in Paul Barlow, Woodstown Bay Shellfish Limited, Michael Crowley, Riverbank Mussels Limited, Gerard Kelly, Fresco Seafoods Limited, Tardrum Fisheries Limited, Alex Mccarthy And Halcome Merchants (Ireland) Limited Trading as Alex Mccarthy Shellfish v Minister For Agriculture, Food and the Marine, The Registrar General of Fishing Boats, Ireland and the Attorney General [2014] IEHC 471. For a history of the Arrangement, see C Symmons, Ireland and the Law of the Sea, (Dublin, Round Hall Sweet and Maxwell, 2000) 161–64. 131  s 2, Maritime Jurisdiction Act 1959, No 22 of 1959; s 2, Maritime Jurisdiction Act 1964, No 32 of 1964. 132  s 4, Maritime Jurisdiction Act 1959; Maritime Jurisdiction Act, 1959 (Straight Baselines) Order, SI 1959/ 173. 127 

228  The Irish Yearbook of International Law 2014 of the 1964 Convention provided that Contracting Parties ‘may continue to accord the right to fish … to other Contracting Parties of which the fishermen have habitually fished in the area by reason of voisinage arrangements’. Remarkably, the Arrangement was not given effect in Irish law by means of statutory enactment and this has raised doubts in the intervening years about its precise legal effects.133 As your author has noted elsewhere, however, the absence of a statutory footing for the Arrangement in Irish law and its form as a technical and administrative memorandum is perhaps reflective of the diplomatic approach adopted by both governments at the time when Ireland had a constitutional claim to the whole island of Ireland including the territorial waters of Northern Ireland.134 For this reason, Ireland was unwilling to conclude a formal treaty with the UK in relation to reciprocal fishing rights. That said, the Arrangement achieved its main purposes and facilitated the orderly management of a number of fisheries for well over five decades, including as a mechanism to manage the ground mussel seed fishery, a task which is undertaken with the assistance of a crossborder advisory body, the Seed Mussel Advisory Committee.135 The increase in fishing effort and the subsequent collapse of this fishery in the period 2010–2013 has led to considerable controversy within the industry,136 culminating in two sets of High Court judicial review proceedings initiated at the suit of four Irish companies, all of which have a history in the involvement of the fishery.137 In the second set of proceedings, referred to as Barlow II, the plaintiffs’ claimed that ‘aggressive and unsympathetic’ fishing by Northern Irish vessels had caused the loss of a sustainable mussel industry in Ireland and that Northern Irish vessels could not be permitted to fish in Irish waters unless provisions are made for this by Irish law stemming from the express provisions of the Constitution, from the constitutional order of the State and from statute.138 Accordingly, the plaintiffs sought the intervention of the High Court in the form of a number of orders declaring that the authorisation by Ireland of fishing for mussel seed in Irish waters by vessels from Northern Ireland was both unconstitutional and unlawful.139 The case canvassed major issues of public importance and novelty stemming from several contentions made by the plaintiffs, including that the neighbourhood Arrangement was not legally binding in international or domestic law. In relation to the Constitutional argument and on the basis that fish were nullius in bonis (no one’s property),140

133 

See 610 Dáil Debates Col 542. Long, Marine Resource Law (London/Dublin/Toronto/Hong Kong, Thomson Round Hall, 2007) para 3–15. 135  See 610 Dáil Debates Col 541–543; 429 Dáil Debates Col 440–441. The legality of this body is subject to a second set of proceedings in the Irish High Court referred to as Barlow I pending the outcome of the present case referred to as Barlow II. See High Court Record No 2006/2687P. 136  By way of illustration, Ireland produced 29,500 tons of bottom mussels, the National Development Plan envisaged that this would rise to 44,000 tons by 2015. However, in 2010, the figure had dropped to just over 13,000 tons and the figure for 2013 was down to 2,500 tons. 137  Barlow (n 130). 138  Barlow (n 130) para 6. 139  Barlow (n 130) para 8. 140  Barlow (n 130) paras 18–22, citing R (Moore) v O’Hanrahan [1927] IR 406; Columbia v AG for Canada [1914] AC 153; Foyle and Bann Fisheries v Attorney General [1949] 83 ILTR 29; Royal Fishery of the Banne case (1610) Dav Ir 55. 134 R

Correspondent Reports—Long 229 the High Court rejected the proposition that mussel seed is a natural resource belonging to the State for the purpose of applying Article 10 of the Constitution.141 In relation to the common law right to fish in the sea, Birmingham J opined that it was very hard to believe that the Irish people in adopting a Constitution could ever have contemplated that they were setting aside long established legal principles dating back from many centuries and in the process surrendering rights that their ancestors had enjoyed over the centuries.142

The High Court cautioned that the courts in entering foreign policy issues require restraint.143 These ‘requirements for restraint and circumspection … in the area of foreign affairs is heightened when what is at issue’ is Anglo-Irish relations and that there is no authority excluding the Government from conducting such relations through neighbourhood agreements or arrangements.144 Following on from this and on the basis of its distinctive technical and administrative character, the Court rejected the argument that the memo of understanding had to be laid before the Dáil.145 On the latter point, the Court held that the Arrangement could be described in a ‘very broad sense as an international agreement’.146 In rejecting the statutory challenge that the exchange of letters at issue were not ‘in force’ and therefore not legally binding, the High Court held that the relevant provisions in the Sea Fishing and Maritime Jurisdiction Act 2006 in its ‘plain and ordinary meaning permits Northern Ireland boats to enter the exclusive fishing limits in order to fish on a reciprocal basis, a lawful purpose recognised by the Voisinage arrangement’.147 Moreover, that the word ‘arrangements’ in the 1964/65 documentation were used to describe the intention of the two governments to leave the then pre-existing arrangements unchanged.148 The High Court also examined a number of requirements arising under the Arrangement pertaining to reciprocity, residency, vessel length and habitual fishing. The High Court adopted a teleological approach on these issues and rejected the lack of reciprocity on the basis that a fishery may be open or closed at a particular time and any such arrangements does not affect the operation of the Agreement.149 A similar approach was taken to the structures for ownership and the regime on vessel length, which the Court observed evolve over time.150 In relation to the argument that the mussel was not habitually fished in 1964 or prior to then, the Court held that the arrangement relating to the seas around the island of Ireland was not mussel fishing agreement or arrangement, but an agreement or arrangement applicable to fish generally. The proof of that is that cockle fishing takes place in Dundalk Bay on foot of the arrangements and that small boats from border fishing ports north and south of the border exercise the right to fish pursuant to the Voisinage arrangements.151

141 

Barlow II (n 130), para 21. Barlow II (n 130) para 22. 143  Barlow II (n 130) para 24. 144  Barlow II (n 130) para 27. 145  Barlow II (n 130) paras 27–29, citing State (Gilliland) v Governor of Mountjoy [1987] IR 201. 146  Barlow II (n 130) para 29. 147  Barlow II (n 130) para 35, s 8(1)(a) Sea Fishing and Maritime Jurisdiction Act 2006. 148  Barlow II (n 130) para 35. 149  Barlow II (n 130) paras 38–39. 150  Barlow II (n 130) para 41. 151  Barlow II (n 130) para 44. 142 

230  The Irish Yearbook of International Law 2014 Therefore, what is required by the 1964 Convention and the exchange of letters is that ‘fishing should have occurred, not that there should have been habitual fishing of a particular species or habitual fishing involving particular fishing methods’.152 In rejecting the plaintiffs’ claim, the High Court held that there is no requirement for legislation to give effect to the Arrangement and that it was not entitled to interfere with the Government in the exercise of its executive functions on the basis of the doctrine on the separation of powers. Significantly, on the latter point, as pointed out above, the Court was reluctant to interfere on foreign policy matters, which it considered fell within the competence of the executive or the legislature.153 Furthermore, the learned judge observed that it was ‘strange’ to suggest the reversing of the long standing all Ireland cooperation on fishing at a time ‘when Anglo/Irish relations and North/South relations were never closer’.154 The judgment of the High Court was appealed directly from the High Court to the Supreme Court on a number of substantive points and in relation to costs.155 This type of appeal, colloquially known as a ‘leapfrog’ appeal, was the first granted by the Supreme Court under Article 34.5.4 of the Irish Constitution, on the grounds that Barlow II raised exceptionally important issues on the regulation of fishing in Irish waters and in particular the question of whether mussel seed is a ‘natural resource’ for constitutional ­purposes.156 Other important questions relate to the effect of EU and international law on the meaning and justiciability of the Voisinage Arrangement.157 SINGLE MARITIME BOUNDARY BETWEEN IRELAND AND THE UK

Ireland and the UK concluded a bilateral continental shelf delimitation treaty in 1988,158 which was subsequently supplemented by a Protocol in 1992,159 as well as an Exchange of Notes in 2001. This was followed by the conclusion of a further agreement establishing a single maritime boundary between the exclusive economic zones (EEZs) and parts of the continental shelves lying within 200 miles of the respective baselines of the two

152 

Barlow II (n 130) para 44. Barlow II (n 130) para 27. 154  Barlow II (n 130) para 27. 155  Barlow & Ors v Minister for Agriculture Food and Marine & Ors [2015] IESCDET 8. On the extension of time, [2015] IESCDET 29. 156  Ibid, citing Fox v Mahon & Others [2015] IESCDET 2. 157  Ibid para 25. 158  Agreement between the Government of Ireland and the Government of the UK concerning the delimitation of areas of the continental shelf between the two countries, see Irish Government Treaty Series 1990, No 1; UK Treaty Series No 20 (1990), Cm 1735, 13 Los Bulletin 48 (1989). For a detailed description of the dispute as well as an analysis of the Agreement, see C Lysaght, ‘The Agreement on the Delimitation of the Continental Shelf between Ireland and the UK’ (1990) 3 Irish Studies in International Affairs 81–91; DH Anderson provides a summary of the salient points of the Agreement, a copy of the Agreement and appended Maps, in Boundary Report 9-5(a), JI Charney and LM Alexander (eds), International Maritime Boundaries (Dordrecht, Nijhoff, 1993) 1776–79. See also, inter alia: Decaux, ‘L’Accord Anglo-Irlandais de Delimitation du Plateau Continental’ (1990) XXXVI Annuaire Francais de Droit International 757–71; C Symmons, ‘The UK/Ireland Continental Shelf Agreement, 1988: A Model for Compromise in Maritime Delimitation’ in Grundy Warr (ed), International Boundaries and Boundary Conflict Resolution (Durham, IBRU, 1990) 390–97. 159  See, C Symmons, ‘The 1992 Protocol to the 1988 Anglo-Irish Agreement on the Continental Shelf’ (1993) 42 International and Comparative Law Quarterly 970. 153 

Correspondent Reports—Long 231 countries.160 The latter agreement came into force on 31 March 2014 and amends the continental shelf boundary agreed in 1988 and terminates the provisional delimitation of an area of the continental shelf pursuant to the 2001 Exchange of Notes.161 Briefly stated, the Agreement establishes the boundary in two segments, shown in Annex I below, one segment in the Irish Sea extending southwards to an area south west of Ireland, as well as a second segment in the area to the north west of Ireland. In order to achieve a single boundary, the 2013 Agreement substitutes a number of new points for positions agreed previously under the 1988 Agreement in the Irish Sea and the South West Area. A similar exercise is undertaken in relation to the continental shelf boundary in the North West Area. The continental shelf boundary in the Irish Sea and the South West Area as well as in the North West Area, also constitute an EEZ boundary between the two countries, thus forming a single boundary between the two countries for maritime delimitation purposes. The Agreement comes into force pursuant to an Order under the 2006 Sea Fisheries and Maritime Jurisdiction Act, which prescribes the new EEZ boundaries,162 as well as an Order under the 1968 Continental Shelf Act to amend the continental shelf areas.163 The purpose of the latter is to designate the areas where the State may exercise the rights to explore and exploit the natural resources of the seabed and subsoil of the continental shelf. Clearly, it is beyond the scope of this report to attempt any analysis of the single boundary line. There are a number of aspects of the 2013 Agreement, however, that call for brief comment. First, the Agreement on an agreed boundary entailed an exchange between the two countries of an area of Irish continental shelf for a similar sized area of the UK continental shelf, which were deemed by the negotiators to be of similar potential exploitability for the purpose of fisheries and hydrocarbons.164 The swap of small areas of sea bed was necessary because part of the UK claimed exclusive fishery zone, which extended over its side of the then continental shelf boundary, was also more than 200 miles from Irish baselines, although within 200 miles of the UK. The use of the continental shelf boundary as an EEZ boundary would therefore result in this area of the water column being lost to the high seas. Hence the change to the continental boundaries in the north segment and the corresponding changes in the south segment. Second, the methodolgy applied by Ireland and the UK for the delimitation of the continental shelf/EEZ appears to be largely based on equitable considerations in line with the established practice of the States,165 as well as the approach adopted by the International Court of Justice in the Black Sea case and Annex VII Arbitral Tribunal in the Bangladesh/Mynamar

160  Done in Dublin, 28 March 2013. Notification of Acceptance at London, 31 March 2014 (2014) Irish Treaty Series No 1. 161  Ibid. 162  Maritime Jurisdiction (Boundaries of Exclusive Economic Zone) Order 2014, SI 2014/86. 163  Continental Shelf (Designated Areas) Order 2014, SI 2014/ 87. 164 Foreign and Commonwealth Office, Explanatory Memorandum on Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland establishing a Single Maritime Boundary between the Exclusive Economic Zones of the Two Countries and parts of their Continental Shelves, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/ file/226441/No__19_Cm_8666_Ireland_No__1.pdf. 165  Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ 3; and Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v Myanmar), Award of the Annex VII Tribunal, 7 July 2014.

232  The Irish Yearbook of International Law 2014 case.166 Both segments of the boundary use parallels of latitude and meridians of longitude to delineate the delimitation line and this method accords with the objective of achieving ‘an equitable solution’ under UNCLOS in the delimitation of the continental shelf between States with opposite or adjacent coasts.167 The linear nature of the delimitation line also facilitates the granting of exploration licences for rectangular blocks in accordance with the established practice of Ireland and the UK in the licensing of offshore oil and gas activities.168 Third, the use of a single maritime boundary for the purpose of EEZ/continental shelf delimitation within 200 miles of the baselines, conforms with international best practice as evidenced by state practice worldwide.169 Finally, it ought to be noted that the single boundary commences at the Irish territorial sea limits. As pointed out in a previous report, Ireland and the UK have agreed a memorandum of understanding for the purpose of facilitating offshore renewable energy development in sea areas adjacent to Northern Ireland.170 SUB-REGIONAL FISHERIES COMMISSION ADVISORY OPINION

Many of the cases that have been adjudicated by the ITLOS since its establishment concern fisheries and are of concern to flag, coastal and port States worldwide, including Ireland. Thus it is unsurprising to note that along with 22 States parties to UNCLOS and eight intergovernmental organisations,171 Ireland submitted a written statement to the ITLOS in Case 21, which concerned a request for an advisory opinion submitted to the Tribunal by the Sub-Regional Fisheries Commission (the SRFC) in 2013.172 This request was initiated by the SRFC on behalf of seven west African States that are Contracting Parties to the 2012 Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub–Regional Fisheries Commission (the 2012 Convention).173 Essentially, the four questions submitted to the ITLOS concerned the obligations, rights and liabilities of the flag and coastal State, as well as international organisations, in relation to illegal, unreported and unregulated (IUU) fishing activities.

166  Similar considerations were applied in the 1988 Agreement, see C Carleton, ‘The Role of the Territorial Waters Officer and the Problems Associated with the UK Continental Shelf’ in C Grundy-Warr (ed), International Boundaries and Boundary Conflict Resolution, (Durham, IBRU, 1990) 111. 167  Art 83, United Nations Convention on the Law of the Sea. 168  Background information note issued by the Department of Foreign Affairs, November 1988. 169  M Evans, ‘Maritime Boundary Delimitation’ in Rothwell, Oude Elfink and Stephens (n 2) 254–79. 170  R Long, ‘Irish State Practice on the Law of the Sea 2011’ in F de Londras and S Mullally (eds), Irish Yearbook of International Law (Oxford, Portland, Oregon, Hart Publishing, 2013) Vol 6, 123–26. 171  Saudi Arabia, Germany, New Zealand, China, Somalia, Ireland, Micronesia (Federated States of), ­Australia, Japan, Portugal, Chile, Argentina, UK, US, Thailand, Netherlands, European Union, Cuba, France, Spain, Montenegro, Switzerland, Sri Lanka. The international organisations were as follows: Forum Fisheries Agency, International Union for Conservation of Nature, Caribbean Regional Fisheries Mechanism, United Nations, Sub-Regional Fisheries Commission, Food and Agriculture Organization of the United Nations, Central American Fisheries and Aquaculture Organization. 172  Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion) Case No 21, Advisory Opinion of 2 April 2015, www.itlos.org/fileadmin/itlos/documents/cases/case_ no.21/advisory_opinion/C21_AdvOp_02.04.pdf. The Irish statement is available at: www.itlos.org/fileadmin/ itlos/documents/cases/case_no.21/written_statements_round1/C21_10_Ireland_orig_Eng.pdf. 173  Cabo Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone.

Correspondent Reports—Long 233 In line with the EU’s exclusive competence in relation to fisheries under the common fisheries policy,174 the statement made by Ireland was confined to the question of the general jurisdiction of ITLOS to provide an advisory opinion in the said proceedings. The central thrust of the Irish statement was that the Tribunal lacked vires and did not enjoy advisory jurisdiction under UNCLOS, apart from the circumscribed powers afforded to the Seabed Disputes Chamber, which were not germane to the request made by the SRFC.175 Moreover, according to the statement, the general advisory jurisdiction could not be ‘assumed or inferred’ from UNCLOS or from the Statute of the Tribunal. In the alternative, Ireland contended that if the Tribunal found that the Statute conferred jurisdiction on the Tribunal on the basis of another agreement such as the 2012 SRFC Convention, that the advisory opinion was limited to the interpretation or application of the agreement itself or of the consistency of that agreement with UNCLOS. Following on from this, Ireland asserted that the Tribunal was precluded from delivering an advisory opinion because of the open-ended and general nature of the questions submitted by the SRFC. Although Ireland did not participate in the oral hearings at the Tribunal in 2014, the case was the focus of considerable international attention with diverging views expressed by many States parties on the key issue including the issue of jurisdiction. Nonetheless, adopting a textualist or literal approach to UNCLOS, the Tribunal held unanimously that it is indeed vested with general advisory jurisdiction to provide guidance on ‘all applications’ and ‘all matters’ submitted to it under Article 21 of the ITLOS Statute.176 Ireland’s statement to the ITLOS was undoubtedly informed about concerns on the widening of the scope of ITLOS’s general advisory jurisdiction under UNCLOS and not in any way related specifically to fisheries. That said, apart from opening the door for ITLOS to provide advisory guidance of the application and interpretation of UNCLOS and related international agreements, the outcome of Case 21 is important for Ireland for a number of reasons. First, Irish fishing vessels operate on occasion in West Africa and the Tribunal’s analysis of responsibilities and liabilities in addressing IUU fishing must therefore be welcome as it clearly delineates the roles of the flag and coastal State, as well as international organisations, in ensuring sustainable fisheries practices. Second, the Tribunal’s opinion that the competent international organisation, qua the EU, can be held liable for any breach of obligations arising from a fisheries access agreement, has important legal implications given that the practical aspects of fishery law enforcement are undertaken by the Member States such as Ireland.177 This may in time open the door for the EU to take a more proactive role in monitoring compliance by Member Sate vessels with the terms and conditions of access agreements. Third, from a humanitarian perspective, it should also be noted that Ireland was the largest donor of assistance to Sierra Leone in 2012, a country where half the population are living in extreme poverty and under the scourge of an Ebola crises and which is entirely dependent on fisheries

174 

Argentina, Australia, China, Spain, Thailand, United Kingdom, and the United States. Art 191, UNCLOS. a discussion of the advisory opinion, see Tim Stephens, ‘ITLOS Advisory Opinion: Coastal and Flag State Duties to Ensure Sustainable Fisheries Management’, ASIL Insights (16 April 2015), www.asil.org/ insights/volume/19/issue/8/itlos-advisory-opinion-coastal-and-flag-state-duties-ensure. 177  ITLOS Case No 21 at 173. 175 

176  For

234  The Irish Yearbook of International Law 2014 resources as the primary source of protein produced indigenously.178 Finally, the case lead to an important judgment on 6 October 2015, when a Grand Chamber of the Court of Justice of the European Union (CJEU) rendered its judgment on the application made by the Council of the European Union (Council) seeking the annulment of the decision of the European Commission (Commission) to submit a written statement on behalf of the EU to ITLOS in Case No 21.179 The CJEU held that the Commission had acted within the limits of its powers and with due regard for the powers of the other institutions in preparing the EU statement in Case No 21, thus clarifying EU international prerogatives in international judicial proceedings.180 MARINE SCIENTIFIC RESEARCH

Foreign flagged research vessels have undertaken research activity in sea areas under Ireland’s sovereignty and jurisdiction since the 1970s.181 The number of foreign vessels availing of their rights under Part XIII of UNCLOS to undertake scientific research cruises has varied considerably in recent years but remained relatively high at 29 vessels in 2014. This figure was made-up of 14 cruises by vessels from the United Kingdom, two from the Netherlands and France, along with a single cruise by vessels from the United States, Spain, Lithuania, Russia and Norway.182 In several instances, a scientific observer from Ireland was embarked on the foreign research vessels under the Foreign Vessel Observer Scheme (FVOS). The latter scheme is administered by the Marine Institute and allows scientists from Ireland to be placed on-board foreign vessels for the duration of the survey.183 The range of research activities undertaken by foreign vessels included fisheries, climate change, ocean observation, along with applied biochemistry and geophysics studies. Little information is in the public domain about access by Ireland to the data and samples derived from the marine scientific research project or indeed how foreign vessels discharge their duty to provide information to the coastal State pursuant to Article 248 of UNCLOS. At a national level, the annual multi-disciplinary survey to monitor and assess the ocean climate of waters to the west and northwest of Ireland was undertaken by the RV Celtic Explorer. The data collection on this survey is designed to gather and establish baseline oceanic conditions that can be used to benchmark future changes to the marine environment in light of climate change. The implementation of the Galway Statement

178  A Neiland, S Cunningham, M Ardbuckle, A Baoi, T Bostock, D Coulibaly, N Gitonga, R Long, S Sei, ‘Assessing the Potential Contribution of Fisheries to Economic Development —The Case of Post-Ebola Sierra Leone’ (2016) 7 Natural Resources 356–376 Published Online June 2016 in SciRes. www.scirp.org/journal/nr http://dx.doi.org/10.4236/nr.2016.76031. 179  Case C-73/14, Council of the European Union v European Commission [2015] ECR (not yet reported). 180  Ibid at para 61 citing Case C-409/13, Council v Commission [2015] ECR (not yet reported) para 64. See R Long, ‘Court of Justice of the European Union Rules On EU Institutional Prerogatives in ITLOS Advisory Opinion’, Vol 2(2) ASIL Insights, 15 January 2016. 181  Long (n 134) 684–724. 182  Long (n 134) 684–724. 183  Long (n 134) 684–724.

Correspondent Reports—Long 235 on Atlantic Ocean Cooperation has been gaining pace throughout the report period, with meetings of the stakeholders group in Washington, Ottawa and Dublin.184 LAW OF THE SEA CAPACITY BUILDING

Academic institutions in Ireland continue to undertake many law of the sea capacity building initiatives with a view to fostering greater international understanding on the application of the rule of law to ocean affairs and to improve global implementation of UNCLOS and related agreements. During the report period, the National University of Ireland Galway co-sponsored an international conference in Bergen, Norway entitled, Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries, in conjunction with the University of Virginia Center Oceans Law and Policy, the Center for the Polar and Deep Ocean Development at Shanghai Jiao Tong University, the Centre for International Law at the National University of Singapore, the KG Jebsen Centre for the Law of the Sea at Tromsø, the Korea Maritime Institute and the Nordic Council of Ministers. Also in 2014, work commenced on the preparation of new Masters and PhD programmes in Maritime Law at the behest of lawyers in the Office of the Attorney General, the Naval Service, University College Cork and Cork Institute of Technology.185 At the United Nations, Ireland contributed to the voluntary trust fund for the purpose of defraying the cost of participation of the members of the Commission on the Limits of the Continental Shelf from developing States in the meetings of the Commission, as well as the trust fund for the regular process for global reporting and assessment of the state of the marine environment, including socioeconomic aspects.186

184  185  186 

‘Harnessing Our Ocean Wealth Review of Progress 2014’ (n 13). ‘Harnessing Our Ocean Wealth Review of Progress 2014’ (n 13) 66. Report of the Secretary-General (n 129), 44/44.

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Document 1 Universal Periodic Review Ireland National Interim Report March 2014 Introduction The promotion and protection of human rights is at the heart of Ireland’s domestic and foreign policies. The 1937 Constitution of Ireland, Bunreacht na hÉireann, places a strong emphasis on fundamental rights and predates both the Universal Declaration of Human Rights and the European Convention on Human Rights. Ireland viewed the interactive UPR dialogue in October 2011 as a useful tool to assist in and support the ongoing work in the field of equality and human rights and welcomes the role that the UPR has played in raising awareness of human rights both nationally and internationally. At this mid-point between Ireland’s 2011 interactive dialogue and our next review in January 2016, Ireland welcomes the opportunity to present this voluntary interim report to the Human Rights Council. As a State under review, Ireland received 127 recommendations, of which 108 were accepted or partially accepted. This report outlines the measures taken by Ireland to date to address the issues raised in the accepted and partially accepted recommendations. Further significant developments in areas that were not specifically addressed in any of the recommendations made are summarised below. Right to life, liberty and security of the person Abortion The Protection of Life During Pregnancy Act 2013 was signed into law by the President on 30 July 2013 and commenced on 1 January 2014. The Act provides legal clarity, by way of legislation and regulations, of the circumstances where a medical termination is permissible where there is real and substantial risk to the life—as opposed to the health—of a woman as a result of a pregnancy. This meets the requirements of the European Court of Human Rights Judgment in the ABC case and places a legal framework on an already existing provision set down by the 1992 Supreme Court Judgment in the X Case. Access to Justice The Programme for Government made commitments to bring about significant reform of the courts and legal services, and many reform measures have already been put in

240  The Irish Yearbook of International Law 2014 motion. A Referendum on establishing a Court of Appeal was passed by 65% of voters in ­October 2013 and the Constitution has been amended to allow for a new court between the High and Supreme Courts. It is intended that the Court of Appeal will be established for the start of the new law term in autumn 2014. Once established, it is expected that the Court of Appeal will clear a significant backlog in cases and enable the Supreme Court to deal with purely constitutional cases. In addition, the Government obtained approval for the appointment of an additional two judges to the Supreme Court to tackle lengthy waiting times, thus allowing for speedier access to justice. The Courts and Civil Law Act 2013 increases the financial jurisdictions of the Circuit and District Courts, and introduces important changes to the in-camera rule to provide transparency in family law and child protection procedures. (See below under Right to privacy, marriage and family life). Enactment of the Legal Services Regulation Bill 2011 is expected to take place in the first half of 2014. When enacted, the legislation will provide for independent oversight of legal practitioners by a new Legal Services Regulatory Authority; a new Office of the Legal Costs Adjudicator to ensure greater transparency and public awareness when it comes to legal costs; a new independent complaints structure to deal with complaints about professional misconduct, and new Alternative Business Structures, forms of which already exist in England, Wales, Australia, Germany, the Netherlands and Canada that enable greater business and employment opportunities and flexibility within the professions, and greater choice and competition for their clients. Magdalen Laundries The Inter-Departmental Committee to establish the facts of State involvement with the Magdalen Laundries, which was independently chaired by the then Senator Martin McAleese, presented its final report to Government in February, 2013. The Taoiseach issued an apology to all the former residents of these institutions. The Government appointed Mr Justice Quirke to establish an ex-gratia scheme for the benefit of those who were admitted to and worked in the Magdalen Laundries. The Government accepted the recommendations made in the Quirke Report, which was published in June 2013, and approved the immediate establishment of an ex-gratia compensation scheme. A special unit was established to process applications and to determine whether an applicant resided and worked in an institution covered by the scheme, the duration of their stay and the calculation of the capital sum due to be paid to them. Over 650 applications have been received and almost €5.6 m has been paid in lump sum payments to date. Right to privacy, marriage and family life Family law issues: In-camera rule The Courts and Civil Law Act 2013 introduced important changes to the in-camera rule to provide greater transparency and confidence in family law and child protection procedures. On 12 January 2014, the Minister for Justice, Equality and Defence, Alan Shatter TD, announced the immediate coming into operation for the start of the new legal term

2014 Documents 241 of reforms to the in-camera rule for family law and childcare proceedings. The changes that came into force allow the media to report on family law and childcare proceedings according to strict conditions. These reforms are designed to address the need for public access to important information on the operation of family and child care proceedings in the courts. The changes are part of the Government’s commitment in the Programme for Government to reform and modernise aspects of family law. Recognition of additional foreign registered relationships An Order made under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 by the Minister for Justice and Equality in December 2013 prescribes certain registered relationships entered into by same sex couples in other jurisdictions as entitled to be treated as equivalent to civil partnership under Irish law. The additional registered relationships now being afforded recognition are: marriages registered in Australian Capital Territory (Australia), Brazil, France, Quintana Roo (Mexico), New Zealand, Delaware (United States of America), Maine (United States of America), Maryland (United States of America), Minnesota (United States of America), New Jersey (United States of America), Rhode Island (United States of America) and Uruguay; civil partnerships registered in Jersey; and civil unions registered in Colorado (United States of America). The Order came into effect on 31 December 2013 and brings the number of categories of recognised registered relationships to 57, from 45 jurisdictions. Irish-based couples in any of these relationships are now subject to the same legal regime and the same rights and obligations as a couple who register a civil partnership in Ireland. This includes rights and obligations in relation to shared property, pensions, inheritance and on break-up of the relationship. Civil partners are also treated in the same way as spouses under the tax, social welfare and domestic violence codes. Transgender issues: The General Scheme of the Gender Recognition Bill was published in July 2013 and was brought forward by the Government in response to a ruling of the High Court that the State was in contravention of its obligations under the European Convention on Human Rights by not having a process to legally recognise the acquired gender of transgender persons. The commitment of the Government to address the issue is reflected in its inclusion in the Programme for Government 2011–2016.1 Once enacted, it will mean that a person over the age of 18 who transitions gender will have their acquired gender fully recognised by the State for all purposes, including the right to marry or enter a civil partnership in the acquired gender and the right to a new birth certificate. The early publishing of the General Scheme of the Bill followed consultation with stakeholders through all stages of the drafting process and this consultation is ongoing. The Bill was one of the first to undergo a new pre-legislative scrutiny procedure, whereby the General Scheme of the Bill was referred to the Joint Oireachtas Committee on Education and Social Protection. The Committee undertook a process of public consultation that generated submissions from 13 groups and individuals, and organised public hearings over two days in October 2013. The Committee’s Report on the General Scheme of the Gender Recognition Bill was published in January 2014.2 Following Government consideration of the Report, the General Scheme of the Bill, with any agreed revisions, will be referred

242  The Irish Yearbook of International Law 2014 to the Office of the Parliamentary Counsel for drafting, with a view to legislation being published later in 2014. Right to an adequate standard of living Personal insolvency Commencement of the Personal Insolvency Act 2012 completed substantial reform of personal insolvency and bankruptcy, allowing for the establishment of the Insolvency Service of Ireland,3 the introduction of three new modern and humane debt settlement arrangements,4 and the reduction in the discharge from bankruptcy to three years from twelve years. In addition to commencing this legislation in 2013, the required instruments and rules of court necessary to facilitate commencement of the legislation were put in place, the required insolvency specialist judges were appointed and the licensing of ­Personal Insolvency Practitioners was undertaken. Rights of the child Child protection The Child and Family Agency Act 2013 established the Child and Family Agency with effect from 1 January 2014. Child and family services will now be the sole focus of a single dedicated State agency, overseen by a single dedicated Government Department. This was a key commitment in the Programme for Government and represents an essential response to recent reports on child protection failings, including inconsistency and fragmentation in service provision. The Agency brings together key services relevant to children and families, including child protection and welfare services currently operated by the HSE, the Family Support Agency, the National Educational Welfare Board. The Government announced in December 2013 that the General Scheme of the Criminal Law (Sexual Offences) Bill would be published early in 2014. The purpose of the Bill is to improve the protection of children from sexual abuse and sexual exploitation by creating new offences and strengthening existing law against sexual abuse, defilement and the grooming of children for sexual exploitation over the internet. New provisions are also being introduced to make it easier for child victims of sexual offences to give evidence. The Scheme, which has over 70 sections, will give effect to: —— the Directive 2011/93/EU of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography —— the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention) —— the Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

2014 Documents 243 —— certain recommendations of the Joint Committee on Child Protection and the Joint Committee on the Constitutional Amendment on Children —— the review and public consultation on updating the law on the monitoring of sex offenders under the Sex Offenders Act 2001. Right to education New anti-bullying procedures for all primary and post-primary schools In September 2013, the Minister for Education and Skills published new anti-bullying procedures to be adopted and implemented by all 4,000 primary and post primary schools.5 The new procedures require that the prevention of bullying must be an integral part of a school’s anti-bullying policy and there is a strong focus on education and prevention strategies to deal with bullying behaviour including, in particular, cyber-bullying and identity-based bullying such as homophobic and transphobic bullying. All schools are required to immediately commence the necessary arrangements for developing and formally adopting an anti-bullying policy that fully complies with the requirements of the new procedures. This is expected to be completed by each school as early as possible in the 2013/14 school year but in any event by no later than the end of the second term of the 2013/14 school year. Rights of persons with disabilities Registration and inspection of residential services for people with disabilities A new scheme of registration and inspection of residential services for people with disabilities came into effect on 1 November 2013. The Scheme is delivered by the Health Information and Quality Authority (HIQA), which is now authorised to set and monitor standards for designated centres which include residential services provided to persons with disabilities. HIQA is also now empowered to undertake investigations as to the safety, quality and standards of these residential services.6 Governance Establishment of Charities Regulatory Authority The Minister for Justice and Equality has announced the establishment of a Charities Regulatory Authority by Easter 2014. An early priority for the new Authority will be the creation and publication of a statutory register of charities. All registered charities will be required to provide reports to the Authority each year on their activities and these reports will be made available to the public. This will provide a much needed increase in transparency and accountability in the charitable sector, and will support the good practice in charity governance and management that is critical to a vibrant charity sector that commands the trust and confidence of donors and beneficiaries alike.

244  The Irish Yearbook of International Law 2014 Recommendations and status of implementation 106.1—Complete the ratification process (Indonesia), consider the ratification (Chile, Ecuador) or the possibility of ratification (Argentina, Peru), ratify the Convention on the Rights of Persons with Disabilities (Austria, Canada, Greece, Iran, Iraq, Spain) already signed in 2007 (Algeria), at the earliest possible time/as soon as possible (France, Hungary); ACCEPTED Ongoing. The Government intends to proceed to ratification of the Convention as quickly as possible, taking into account the need to ensure that all necessary legislative and administrative requirements under the Convention are being met. Ireland does not become party to treaties until it is first in a position to comply with the obligations imposed by the treaty in question, including by amending domestic law as necessary. An Interdepartmental Committee on the Convention is monitoring the remaining legislative and administrative actions required to enable ratification. The Committee has identified as part of its work programme issues to be considered by various Government Departments. It is a matter for those Departments to determine whether any actions are required in relation to these issues in advance of ratification and report back to the Committee. This work is ongoing in all Departments. At the Committee’s request, the National Disability Authority,7 the lead statutory agency for the sector, is also assisting it to assess remaining requirements for ratification to ensure that all outstanding issues will be comprehensively addressed. 106.2—Become a party (Estonia), consider accession (Brazil), ratification (Chile), ratify the Optional Protocol to the Convention Against Torture (OP-CAT) (France, Greece, Slovenia, United Kingdom) and set up a national prevention mechanism that meets the criteria and guarantees under this instrument (Switzerland); ACCEPTED Work is progressing on the Draft General Scheme of the Inspection of Places of Detention Bill. Enactment of this Bill is a necessary prior step to ratification. 106.3—Continue the efforts for a speedy ratification of the Optional Protocol to the Convention against Torture (Peru); ACCEPTED See response to recommendation 106.2. 106.4—Pursue efforts to ratify (Iraq), complete the ratification process (Indonesia), consider the possibility of ratifying (Argentina, Ecuador), ratify the International Convention for the Protection of All Persons from Enforced Disappearance (CED) (Spain) as soon as possible (France);

2014 Documents 245 ACCEPTED Ongoing. It is likely that legislation will be required in advance of ratification. Legislative requirements are being examined. Any necessary legislation will be progressed as soon as possible, taking into account other priorities, including ratification of other international human rights conventions. 106.5—Continue the process of accession to or ratification of the pending main international human rights instruments, in particular CED and the Convention on the Rights of Persons with Disabilities (CRPD) (Costa Rica); ACCEPTED Ongoing. Please see response to recommendation 106.4 on CED. Please see response to recommendation 106.1 on UN CRPD. 106.6—Consider the ratification (Chile, Ecuador), ratify the Optional Protocol to the Convention on the Rights of Child on the sale of children, child prostitution and child pornography (OP-SCR) (Portugal, Slovenia, Turkey), as soon as possible (France); ACCEPTED The criminal law elements of the Optional Protocol have largely been implemented in our existing sexual offences and human trafficking legislation. The Department of Justice and Equality has been conducting a wide-ranging examination of the law on sexual offences. Arising from that review, the Minister expects to bring legislative proposals, including measures to implement outstanding criminal law requirements in the Protocol and other international instruments, to Government for approval shortly. 106.7—Reinforce the independence and the capacity of the Irish Human Rights ­Commission to fulfil its mandate effectively in accordance with the Paris Principles ­(Moldova), by endowing it with adequate and sufficient resources (Ghana); ACCEPTED Ongoing. The Irish Human Rights and Equality Commission Bill was published in March 2014. 14 members-designate of the new Commission were selected in April 2013 according to a process independent of Government and appointed initially to the Equality Authority and the Human Rights Commission so that the two organisations may begin to operate as a cohesive whole. The Government remains committed to doing everything possible to ensure that the Commission has the resources in place to carry out its mandate fully and in full compliance with the Paris Principles and, notwithstanding the current difficult economic climate, has made provision in 2014 for a 45% increase in State funding for the Commission, to €6.299m.

246  The Irish Yearbook of International Law 2014 106.8—Ensure and strengthen the independence of its national human rights infrastructure (Egypt); ACCEPTED Ongoing. Please see response to recommendation 106.7. 106.9—Implement its commitment to holding a constitutional referendum on children’s rights with a view to incorporating those rights into the Irish Constitution (Australia); ACCEPTED A referendum to amend the Constitution8 to acknowledge and affirm the rights of children was passed on 10 November 2012. A challenge to the Provisional Referendum Certificate was lodged in the High Court and was unsuccessful. However, this matter has been appealed to the Supreme Court which has indicated it will hear the appeal early in 2014. The matter of referring the Referendum Bill to the President for signing into law, and to give effect to the Constitutional changes concerned, must await determination by the Courts of the issues raised in the legal challenge made. 106.10—Ensure a comprehensive and effective incorporation of children’s rights into its legal framework in line with the Convention on the Rights of the Child (CRC), by incorporating children’s rights into the Constitution (Portugal); ACCEPTED A referendum to amend the Constitution to acknowledge and affirm the rights of children was passed on 10 November 2012. Please see information on the status of the referendum result in response to 106.9. 106.11—Give further effect to international human rights instruments in the domestic legislation, including from the provisions contained in the CRC (Indonesia); ACCEPTED Please see response to recommendation 106.9. The State submitted a combined 3rd and 4th Report to the UN Committee on the Rights of the Child9 in August 2013, which gives updates in relation to the Convention on the Rights of the Child. 106.12—Ensure that the current budget cuts do not result in stifling the activities of human rights bodies (Turkey); ACCEPTED Please see response to recommendation 106.7.

2014 Documents 247 106.13—Work with all sectors to ensure the Human Rights and Equality Commission is an effective agent for enhancing the country’s commitment to human rights (Australia); ACCEPTED Ongoing. Please see response to recommendation 106.7. 106.14—Continue to provide support for human rights education and training domestically in order to enhance awareness and respect for human rights (Moldova); ACCEPTED Ongoing. The Human Rights Commission in Ireland provides tailored training to the Civil and Public Service in the field of human rights. Training has been provided to members of the police force, prison service, local authority officials and civil servants. This training is ongoing. In December 2013 the Commission hosted a conference in Dublin to highlight best practice in human rights education and training for civil and public servants. The event was organised in cooperation with the Office of the UN High Commissioner for Human Rights. 106.15—Take measures to make access available to people with disabilities, on an equal footing, to education, employment, housing, transport and cultural life and facilitate their access to public places and services (Costa Rica); ACCEPTED Ongoing. Access to Public Places and Services The Disability Act 200510 is a positive action measure which provides a statutory basis for making public buildings and services accessible to people with disabilities. The Code of Practice on Accessibility of Public Services and Information Provided by Public Bodies11 was published by the Irish National Disability Authority in order to assist public bodies in meeting their obligations in this regard. Access to Cultural Life The Department of Arts, Heritage and the Gaeltacht is committed to improving access to cultural life for people with disabilities. For example, in the arts sector, the Arts Council is committed to the implementation of an Arts and Disability Policy and are working on a number of initiatives such as mainstreaming access to performances across the board, working with selected theatre companies and venues in marketing, preparation and delivery of assisted performances (captioned and audio described), improving access in existing arts venues and provision of the relevant staff training. Work is also ongoing in the Department to improve access to Ireland’s natural and built heritage sites. Access to Housing The Government’s National Housing Strategy for People with a Disability12, which was published in late 2011, sets out the broad framework for the delivery of housing for people with disabilities through mainstream housing policy. The Strategy forms part of a

248  The Irish Yearbook of International Law 2014 policy framework which will support people with disabilities in community based living with maximum independence and choice. Access to Employment People with disabilities have equal access to employment through the Department of Social Protection’s national network of Employment Services Offices and its newly launched INTREO service.13 The National Disability Strategy Implementation Plan, published in July 2013, has as one of its actions the publication of a comprehensive employment strategy for people with disabilities. A second action is to ensure a coordinated approach to support persons with disabilities to progress into employment through this comprehensive employment strategy. The aim of these actions is to ensure that more people with disabilities can access work and that services at local level are coordinated and there is joined up access across agency boundaries to deliver more seamless supports to people with disabilities. Access to Transport The latest edition of Transport Access for All,14 the Department of Transport Tourism and Sport’s Sectoral Plan under the Disability Act 2005, provides a roadmap for further advancements in public transport accessibilities improvements. It aims to build on the progress already achieved and was prepared following an extensive consultation process. This Plan was completed in 2012 and has since been approved by both Houses of the Oireachtas. Access to Education The preamble to the State’s Education Act 1998,15 makes specific reference to provision for the education of persons with disabilities or special educational needs. A stated objective of the Act is ‘to give practical effect to the constitutional rights of children, including children who have a disability or other special educational needs.’ The statutory framework for the education of children with special educational needs is contained in the Education for Persons with Special Educational Needs (EPSEN) Act 2004.16 The EPSEN Act promotes inclusive education for children with special educational needs; it outlines the duties and responsibilities of Boards of Management of schools and of principal teachers with regard to education provision for children with special educational needs; it deals with the development and implementation of education plans for children with assessed special educational needs; and it confers on parents a series of rights in relation to their child with special educational needs. The National Council for Special Education (NCSE)17, established under the EPSEN Act, is responsible for the provision of a range of educational services at local and national level for students with special educational needs. In particular, its network of Special Education Needs Organisers (SENOs) co-ordinates special needs education provision at local level and arranges for the delivery of agreed educational services. 106.16—Continue with the efforts related to the protection of the rights of people with disabilities (Ecuador);

2014 Documents 249 ACCEPTED The Irish Government launched the National Disability Strategy18 in September 2004 to underpin the participation of people with disabilities in Irish society. The strategy builds on existing policy and legislation, including the policy of mainstreaming public services for people with disabilities. The key elements of the strategy are: —— the Disability Act 2005; —— sectoral plans prepared by six Government Departments that set out how each department will deliver specific services for people with disabilities; —— the Citizens Information Act 200719; —— the Education for Persons with Special Educational Needs Act 2004; —— a multi-annual investment programme 2006–2009 targeted at high-priority d ­ isability support services. Implementation of the Strategy continues to be the focus of Government policy for the sector. However, a specific implementation plan for the strategy had not previously been developed. This Government is now addressing this. An Implementation Plan20 has been developed with the identification by Departments of actions, timelines and key performance indicators. Significant discussion was undertaken between the Disability Stakeholders Group and Government Departments to reach agreement on the suite of actions contained in the Plan, which was published in July 2013. The aim of the Implementation Plan is, through engaging with the disability sector and building on the traditional problem-solving and constructive approach of the community and voluntary sector, to make progress to achieve common interests. More targeted, innovative and flexible services, designed and delivered on the basis of the evidence drawn from systematic evaluation will help ensure that available resources are used to deliver services that meet the needs of the community as efficiently and effectively as possible. 106.17—Enact laws that protect adequately the rights and the well-being of separated and unaccompanied minors seeking asylum, in conformity with standards established under international laws (Uruguay); ACCEPTED The immediate and the ongoing needs of unaccompanied minor asylum seekers relating to accommodation, medical and social needs, as well as their application for refugee status, are the responsibility of the Health Service Executive in accordance with the Refugee Act 199621 (as amended) and the Child Care Act 199122(as amended). The Refugee Act 1996 (Asylum Procedures) Regulations 201123 further provides for the best interests of unaccompanied minors by setting out certain procedures which the Refugee Applications Commissioner24 must ensure are followed before, during and after the personal interview of a minor. These procedures specifically relate to the special needs of minors and the requirement that officers involved in the process possess the necessary knowledge relating to such special needs.

250  The Irish Yearbook of International Law 2014 106.18—Take the measures required to respect economic, social and cultural rights (Iraq); ACCEPTED Ireland is a party to the International Covenant on Economic, Social and Cultural Rights, having signed the Covenant in 1973 and ratified it in 1989. Following an announcement by the Minister for Foreign Affairs and Trade and the Minister for Justice, Equality and Defence, Ireland signed the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in March 2012. Detailed information on the legislative and policy measures in place to respect and protect economic, social and cultural rights is available in Ireland’s Third Periodic Report to the UN Committee on Economic, Social and Cultural Rights (E/C.12/IRL/3) on the website of the UN High Commissioner for Human Rights.25 106.19—Continue the efforts to ensure the exercise of human rights by the sections of society needing special attention from the authorities (Romania); ACCEPTED The Government is committed to protecting the rights of all members of society, particularly the most vulnerable. The human rights of all residents are comprehensively protected by Ireland’s Constitution and by equality legislation, which is continuously under review. Public bodies are under clear statutory and constitutional obligations in relation to the treatment of individuals from a human rights and equality perspective. The existing legislative framework includes the Equal Status Acts, the Employment Equality Acts,26 the Human Rights Commission Acts,27 the European Convention on Human Rights Act 200328 and the Irish Human Rights and Equality Commission Bill, which was published in March 2014. Insofar as proposals for significant legislation are put to Government, there is an obligation to conduct a Regulatory Impact Assessment with a specific requirement within that to address gender equality and poverty proofing issues, and the impact on the socially excluded and on vulnerable groups. The Government has committed in its Programme for Government to require all public bodies to take due note of equality and human rights in carrying out their functions, focusing on ensuring that these issues are centre stage in the public sector reform process underway. 106.20—Continue action including legislation to remove gender-based inequalities in the workplace, including wage disparities between men and women (Sri Lanka); ACCEPTED Ongoing. Ireland continues to implement the National Women’s Strategy 2007—201629 which contains a clear vision to: —— Equalise socioeconomic opportunity for women; —— Ensure their well-being; and —— Engage women as equal and active citizens,

2014 Documents 251 There has been a steady if small fall in the Irish gender pay gap in recent years. The latest available figures on the gender pay gap released by the European Commission to coincide with Equal Pay Day 2013, shows that the gap in Ireland stands at 13.9% (2010). This leaves Ireland ranked twelfth out of the 27 EU States and better than the EU average of 16.2 %. In response to the recognised gender pay gap that exists, the Irish Business & Employers’ Confederation (IBEC)30 with the support of the Equality Authority developed a gender pay audit template in 2011/2012 to assist business organisations to carryout an equal pay measurement. A working group chaired by Minister of State Kathleen Lynch T.D. has been specifically addressing the advancement of women in leadership roles, including in politics, management, on Boards, and in the diplomatic and judicial systems. Its report, along with recommendations for action, will be presented to Government shortly. The report’s recommendations, when implemented, are intended to better foster women’s engagement and advancement in the labour market. This will help to maximise the contribution of Ireland’s highly educated females both to the workforce and in decision-making and leadership roles and go towards achieving the Europe 2020 employment target. 106.21—Take additional measures to eliminate inequalities between women and men (Moldova); ACCEPTED As mentioned above in response to recommendation 106.20, the National Women’s Strategy 2007–2016, the implementation of which is monitored annually, addresses all the key elements to equalize socioeconomic opportunities for women, ensure their well-being and engage them as equal and active citizens. 106.22—Continue its efforts to ensure that migrants and women belonging to minorities continue to be the focus of government programmes specifically geared towards the protection of their rights (Argentina); ACCEPTED Ongoing. As stated in 106.19, the human rights of all residents are already comprehensively protected by Ireland’s Constitution, which in effect, constitutes a Bill of Rights for the State, and by a robust legislative framework that includes the Equal Status Acts, the Employment Equality Acts, the Human Rights Commission Acts, the European Convention on Human Rights Act and the Irish Human Rights and Equality Commission Bill, which was published in March 2014. 106.23—Take measures to tackle racial discrimination and to combat more resolutely all forms of racism, xenophobia and religious intolerance against foreigners and religious minorities, including Muslims (Iran); ACCEPTED As detailed in the Addendum to the Report of the Working Group,31 robust practical and legal measures against racial discrimination, racism and xenophobia are in place. Work in this area is ongoing.

252  The Irish Yearbook of International Law 2014 The Minister for Justice and Equality is continuing to prioritise the issue of anti racism and anti xenophobia in the context of responding to an increasingly multi-ethnic and multi-cultural population in Ireland. 106.24—Fight Islamophobia and support its Muslim citizens, by enabling them to practise their religion (Iran); ACCEPTED Article 44 of the Constitution specifically protects religious freedom. See comment under 106.23 in relation to tackling xenophobia and other forms of extreme intolerance. 106.25—Ensure that any person involved in xenophobic and Islamophobic acts is investigated and prosecuted (Iran); ACCEPTED The Prohibition of Incitement to Hatred Act 198932 makes it an offence to publish or distribute written materials or to use words, behave or display written material outside a private residence (or inside a private residence if such can be seen or heard by persons outside it) or to distribute, show or display a recording of visual images or sounds that are threatening, abusive, insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred. Under Section 6 of the Prohibition of Incitement to Hatred Act 1989, a person convicted of an offence may be liable to imprisonment for up to 2 years and/or a maximum fine of €25,000. The maximum fine has been almost doubled from €12,700 with effect from 4 January, 2011 following the commencement of the indexation provisions of the Fines Act 2010. The summary fine—previously a maximum fine of €1,270—is now a Class C fine, which is a maximum fine of €2,500. Information provided by the Office of the Director of Public Prosecutions33 in 2011 shows that the Prohibition of Incitement to Hatred Act is being used to secure convictions for racist and xenophobic offences and is being considered by the judiciary when passing down sentence. A breakdown of statistics on reported racially motivated crimes is available on the website of the Office for the Promotion of Migrant Information.34 It should also be noted that persons involved in incidents of a racist nature can be prosecuted under other enactments, e.g. the Non-Fatal Offences against the Person Act 199735 or the Criminal Damage Act 199136 and aggravating factors can be taken into account at sentencing. 106.26—Take more effective measures to combat racial discrimination and intolerance, including by promptly investigating and taking stern action against perpetrators of ­racism, xenophobic and discriminatory acts and by promoting intercultural

2014 Documents 253 ­ nderstanding and tolerance between the different ethnic and faith groups in the counu try (Malaysia); ACCEPTED See comments under recommendations 106.23 and 107.24. 106.27—Strengthen its efforts to protect the human rights of all Ireland’s citizens, including those from sub-Saharan Africa (Indonesia); ACCEPTED Ongoing. Please see response to recommendation 106.19. 106.28—Ensure that any persons involved in racial discrimination acts are investigated and prosecuted, and, if found guilty of such incidents, punished with appropriate penalties (Azerbaijan); ACCEPTED See comments in response to recommendations 106.23 and 106.25. 106.29—Maintain the strategies of holistic health and provisions of health care, with special emphasis on vulnerable groups, despite the budget cuts due to the economic crisis (Chile); ACCEPTED Due to the global financial crisis, Ireland, like other EU Member States, has had to significantly reduce public spending. The challenge is to reduce the cost of health services, not the quality. Ireland is in the midst of a major programme of reform to address that challenge. Ireland’s health reform programme is set out in the report Future Health—A Strategic Framework for Reform of the Health Service 2012—2016.37 The Programme is built on four independent pillars: (1) Health and Wellbeing; (2) Service Reform—to deliver a less hospital-focussed model of care; (3) Structural Reform—to implement the steps required to shift the model of public healthcare from a tax funded system to a combination of universal health Insurance and tax funding, and; (4) Financial Reform—to ensure the financing system is based on incentives that are aligned with fairness and efficiency, while reducing costs, improving control and delivering better quality. Healthy Ireland38 is the national framework for action to improve the health and wellbeing of our country over the coming generation. The vision embodied in Healthy Ireland—a framework for improved health and wellbeing is to create a healthy Ireland where everyone can enjoy physical and mental health wellbeing to their full potential, where wellbeing is valued and supported at every level of society and is everyone’s responsibility. Goal 2 of the framework deals with reducing health inequalities, with a broad focus on

254  The Irish Yearbook of International Law 2014 addressing the wider social determinants of health to create economic, social, cultural, and physical environments that foster healthy living, whilst also addressing interventions to target particular health risks. 106.30—Strengthen the measures to improve the representation, education and protection of Travellers (Chile); ACCEPTED Travellers in Ireland have the same civil and political rights as other citizens under the Constitution. The key anti-discrimination measures, the Prohibition of Incitement to Hatred Act, 1989, the Unfair Dismissals Act 1977,39 the Employment Equality Acts and the Equal Status Acts specifically identify Travellers by name as a group protected. The Equality Act 2004, which transposed the EU Racial Equality Directive, applied all the protections of that Directive across all of the nine grounds contained in the legislation, including the Traveller community ground. All the protections afforded to ethnic minorities in EU directives and international conventions apply to Travellers because the Irish legislation giving effect to those international instruments explicitly protects Travellers. 106.31—Continue its work for the full realization of human rights of the Traveller community in the country (Sweden); ACCEPTED Ongoing. See response to recommendation 106.30. 106.32—Continue pursuing appropriate policies designed to provide for equal opportunities to members of the Traveller community, with special focus on access to health care, education and housing, including ensuring Travellers’ participation in public life related decision-making process (Slovakia); ACCEPTED Ongoing. See response to recommendation 106.30. 106.33—Improve social and economic conditions of the members of the Traveller community (Pakistan); ACCEPTED Ongoing. See comment under 106.30. As Irish citizens, Travellers have the same rights and responsibilities of all other Irish citizens and are fully entitled to seek to avail of the various health, education, housing and employment services made available by the State. Specific dedicated strategies and special initiatives are being taken in each of the aforementioned areas to address the disadvantage which Travellers face. The High Level Group on Traveller Issues oversees the delivery and implementation of these measures by the relevant statutory agencies involved.

2014 Documents 255 106.34—Continue action to protect the conditions of migrant workers by improving existing legislation (Sri Lanka); ACCEPTED Enforcement of Employment Rights The employment rights conferred by Irish law apply to all workers legally employed in the State. These include the right to a minimum wage, regulated working hours, annual leave, public holidays, a right to notice before dismissal and protection against unfair dismissal. The State provides structures to both regulate the workplace and allow for the redress of complaints. The Irish labour inspectorate, the National Employment Rights Agency (NERA),40 carries out inspections of all workplaces in the State and addresses issues of non-compliance with employment law. It works closely with the Migrant Rights Centre of Ireland and other bodies on matters relating to the employment rights of migrant workers. NERA also provides employment rights information in 13 languages and where necessary has access to translation services to carry out its information and enforcement roles. Employment Permits Amendments to the Employment Permits legislation are being drafted to strengthen ­protection of migrant workers in an irregular situation. The Bill has been approved by Government for publication, subject to necessary technical changes being made. Reform of Employment Rights Bodies The Government is committed to reform of the State’s existing Workplace Relations ­Services. To this end, it is proposed to establish a two-tier Workplace Relations structure which will involve two statutorily independent bodies replacing the current five. There will be a new single body of first instance to be called the Workplace Relations Commission (WRC) and a separate appeals body. The Government is committed to the publication and enactment of the necessary legislation at an early stage with a view to having the proposed new Workplace Relations structures in place during 2014. 106.35—Ensure specifically that economic measures do not disproportionally impact upon the elderly (Netherlands); ACCEPTED Government policy is to support older people to live in dignity and independence in their own homes and communities for as long as possible and to support access to quality long term residential care where necessary. There is an extensive system of supports and services available to our older people.41 Residential Services The purpose of the Nursing Home Support Scheme42 is to provide financial support for people assessed as needing long-term nursing home care. Almost 23,000 people are in receipt of financial assistance under the Scheme, which will cost over €970m in 2013.

256  The Irish Yearbook of International Law 2014 Community/Home Support Services In 2013, 10.3 million hours of home help will be delivered to about 50,000 clients and an additional 10,870 people will receive Home Care Packages. A further approximately 21,500 day care places are available for our older people. Community services will cost in excess of €390m in 2013. National Positive Ageing Strategy Ireland’s National Positive Ageing Strategy,43 published in April 2013, seeks to ensure that older people are recognised, supported and enabled to lead full and independent lives. The Strategy is based round participation, health, security in the home, and policy supported by research. It is underpinned by the 2002 World Health Organisation Active Ageing Policy Framework and the UN Principles for Older Persons from 1991, which can be summarised as independence, participation, care, self-fulfilment and dignity. 106.36—Take effective measures to improve prison conditions (Algeria); ACCEPTED The Irish Prison Service Three Year Strategic Plan 2012–201544 includes a 40 month capital expenditure plan which contains a significant programme of works to improve prison conditions. Over the lifetime of the capital plan, the Irish Prison Service45 will provide in-cell sanitation in all remaining areas of the prison estate, providing a W/C and wash hand basin in every locked cell. This will be achieved inter alia, through the construction of a replacement prison in Cork, the complete refurbishment of Mountjoy prison and the replacement of two Victorian wings in Limerick Prison. 106.37—Give priority to bringing conditions and treatment of detainees in Irish prisons into line with international human rights standards, including through implementing outstanding recommendations from international human rights bodies (Norway); ACCEPTED The Irish Prison Service works closely with the Office of the Inspector of Prisons in bringing conditions and treatment of detainees in Irish prisons into line with international human rights standards. The Inspector of Prisons Office46 is a statutory, independent office established under the Prisons Act, 200747 whose main role is to carry out regular inspections of the 14 prisons and places of detention in the State and to present his report(s) on each institution visited as well as an Annual Report to the Minister for Justice and Equality. In addition one of the over arching high level objectives which underpins the Irish Prison Service Three Year Strategic Plan 2012–2015 is ensuring Ireland’s compliance with domestic and international human rights obligations and best practice. A number of strategic actions including a reduction in overcrowding and ending the detention of children are currently being implemented to ensure such compliance.

2014 Documents 257 106.38—Improve conditions for detainees in Irish prisons to bring them in line with international standards (Australia); ACCEPTED See responses to recommendations 106.36 and 106.37. 106.39—Continue its efforts to incorporate in-cell sanitation in all prison facilities (USA); ACCEPTED See responses to recommendations 106.36 and 106.37. 106.40—Further improve the conditions of detainees in line with international human rights standards (Hungary); ACCEPTED See responses to recommendations 106.36 and 106.37. 106.41—Take effective measures as soon as possible in order to avoid overcrowding in prisons and other detention facilities, in line with the Standard Minimum Rules for the Treatment of Prisoners (Austria); ACCEPTED The Irish Prison Service is committed to taking effective measures to reduce overcrowding in prisons and other detention facilities, in line with the UN Standard Minimum Rules for the Treatment of Prisoners. It is intended to align the capacity of our prisons in line with the guidelines laid down by the Inspector of Prisons by 2014 in so far as this is compatible with public safety and the integrity of the criminal justice system. Significant investment has taken place in our prison estate in recent years with in excess of 900 new prison spaces having been constructed and brought into use since 2007. Furthermore, the Irish Prison Service has commenced the roll out of the Community Return Scheme,48 an incentivised scheme for earned temporary release under which offenders who pose no threat to the community are offered early temporary release in return for supervised community service. 106.42—Give due attention to the results of the expert group examining the possibility of the construction of a new prison (Austria); ACCEPTED The Government Programme for National Recovery 2011–2016 (Programme for Government) committed the new Government “to review the proposal to build a new prison at Thornton Hall and to consider alternatives, if any, to avoid the costs yet to be incurred by the State in building such a new prison”. On 5th April 2011, on foot of that commitment, the Minister for Justice and Equality, Mr. Alan Shatter, T.D. set up a Review Group to review the need for the Thornton Hall Prison Project.

258  The Irish Yearbook of International Law 2014 The Minister published the Thornton Hall Review Group Report49 in July, 2011 and confirmed that the Government approved in principle the Report’s recommendations. The Report recommended that a new prison with 300 cells capable of accommodating 500 prisoners be developed at Thornton Hall, and that Cork Prison be closed at the earliest possible opportunity and a new prison developed at Kilworth, Co. Cork, with 200 cells capable of accommodating up to 350 prisoners. While financial constraints have not allowed the Prison Service to proceed with the construction of Thornton Hall or Kilworth prisons, a decision was taken to build a new prison in Cork to replace the substandard prison accommodation in the existing prison and provide a modern prison facility designed on the principle of rehabilitation and resettlement. The new prison, including cells with full in-cell sanitation and showering facilities, will end the practice of slopping out and also provide a vastly better infrastructure necessary for the education and rehabilitation of prisoners thus enhancing public safety. All cells in the new facility will have full in-cell sanitation. In addition, all wings in Mountjoy prison are being upgraded to provide in-cell sanitation. Once this work is completed, slopping out will have been eliminated in Mountjoy prison. 106.43—Increase the use and promotion of alternative, non-custodial measures (Austria); ACCEPTED Alternatives to custody are being pursued. The Oireachtas has already legislated to require judges to take a person’s financial circumstances into account when setting a fine. The Fines (Payment and Recovery) Bill was published on 19 July last and recently passed second stage in the Dáil. The Bill provides for the imposition of community service orders where a person fails to pay a fine and the court is of the view that it would not be appropriate to make either an attachment order or a recovery order. The Bill also provides for an enhanced instalment payment regime which will allow everyone on whom a fine is imposed to pay the fine by instalments over 12 months. In addition, the Criminal Justice (Community Service) (Amendment) Act, 201150 requires judges when considering imposing a sentence of imprisonment of 12 months or less to first consider the appropriateness of community service as an alternative to imprisonment. It is expected that these measures, taken together, will all but eliminate the need to commit persons to prison for non-payment of fines. Furthermore, the Probation Service continues to provide and promote maximum use of community sanctions in Ireland in Courts and after custody and also works with partner services to achieve rehabilitation of offenders and the reduction of offending. The innovative pilot Community Return Scheme, a joint Probation Service and Irish Prison Service initiative, provides a structured community alternative whereby suitably assessed prisoners, serving sentences of at least one year and who have completed half their sentences, are granted reviewable temporary release conditional on them performing unpaid supervised community work.

2014 Documents 259 The Community Return Scheme has been a very positive development, and as well as allowing prisoners to complete their sentence by way of performing a service to the community, has significantly helped these prisoners to successfully resettle in their communities. There were 396 participants in the Scheme in 2013. In September 2012, the Minister for Justice and Equality announced the establishment of a working group to conduct a strategic review of penal policy. The Review Group has been asked to carry out an all encompassing strategic review of penal policy incorporating an examination and analysis of all aspects of penal policy including prevention, sentencing policies, alternatives to custody, accommodation and regimes, support for reintegration and rehabilitation and any special issues relating to female offenders and prisoners. The Group has been asked to make recommendations as to how a principled and sustainable penal system might be further enhanced taking into account resource implications, constitutional imperatives and international obligations. The Review Group, under the Chairmanship of Mr. Michael Whelan, is nearing the completion of its discussions and it is expected that the Minister will receive the final report of the Group within the next few months. In February 2014, the Minister for Justice, Equality and Defence published the General Scheme of the Criminal Justice (Community Sanctions) Bill 2014. This new legislation will replace the Probation of Offenders Act 1907 with modern provisions dealing with community sanctions and the role of the Probation Service in the criminal justice system. It will facilitate the effective and efficient use of community sanctions by the courts and will ensure that the courts have a wide range of appropriate options for dealing with persons who have committed minor offences. This should help to reduce the numbers of people unnecessarily imprisoned for minor offences. The legislation will take full account of the interests of victims of crime by making it a statutory requirement for the courts to have regard to the interests of victims when making decisions about community sanctions. The legislation will also abolish the Court Poor Box, as recommended by the Law Reform Commission, and replace it with a fair, equitable and transparent system of reparation that will apply only to minor offences dealt with by the District Court. The new Reparation Fund will be used to provide additional funding for essential victim support services and to the state funded victim compensation scheme.51 106.44—Continue its effort to secure satisfactory sanitary facilities in Irish prisons, including in-cell sanitation, and to mitigate overcrowding (Denmark); ACCEPTED Please see responses to recommendations 106.36 and 106.37. 106.45—Urgently and comprehensively bring conditions for the prison population into line with international human rights standards (Sweden); ACCEPTED Please see responses to recommendations 106.36 and 106.37.

260  The Irish Yearbook of International Law 2014 106.46—Carry out all efforts to reduce overcrowding in prisons and to ensure that imprisonment is a measure of last resort (Spain); ACCEPTED Please see responses to recommendations 106.36, 106.37 and 106.43. 106.47—Continue with the implementation of measures to improve adverse conditions in prisons, in particular the renovations required to improve the health situation in prisons and effective programmes for education and rehabilitation of prison inmates (Peru); ACCEPTED The Irish Prison Service Three Year Strategic Plan 2012–2015 outlines a significant programme of capital works to improve prison conditions. The Irish Prison Service also provides a wide range of rehabilitative programmes that include education, vocational training, healthcare, psychiatric, psychological, counselling, welfare and spiritual ­services. Renovations are carried out where necessary. 106.48—Complete the review of prison conditions in order to increase the quality of the prison management system (Indonesia); ACCEPTED See responses to 106.36, 106.37, 106.41, 106.42 and 106.47. 106.49—Continue to strengthen its policies and laws against domestic violence (Algeria); ACCEPTED Work in this area is ongoing. A wide range of sanctions is available under Irish criminal law to deal with domestic violence-related offences. As well as homicide-related offences, the law on general interpersonal violence is mainly contained in the Non-Fatal Offences Against the Person Act, 1997. The Act makes no distinction between victims who do or do not have children or between those who are, or are not married to the offender. The civil law also provides a number of remedies in cases of domestic violence. A person may apply for a safety order or a barring order whether they are married to a civil partner of, or living with, a respondent. The legislation does not mandate different treatment on the basis of whether an applicant living with the respondent has a child or children with the respondent. In June 2007, Ireland established Cosc,52 the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, to raise awareness of the nature and extent of domestic, sexual and gender-based violence in Ireland and of services available to help those who experience these crimes. Cosc has responsibility for the funding of domestic violence perpetrator intervention programmes. These programmes aim to modify the behaviour of perpetrators of domestic violence and in doing so protect the victims of domestic violence.

2014 Documents 261 106.50—Strengthen its policies and laws against domestic violence towards women (Moldova); ACCEPTED Ongoing. See responses to 106.49, 107.36 and 107.38. 106.51—Continue efforts with the aim of establishing protection campaigns and programmes for women against domestic violence (Argentina); ACCEPTED Ongoing. See response to recommendation 106.49. Since its establishment, Cosc has invested significant funds to support groups at local, regional and national level to raise awareness of domestic violence and of services available for victims. Ireland has a National Strategy on Domestic Sexual and Gender-based Violence53 and our legislation on domestic violence has been strengthened in a number of areas in recent years, including the addition of provisions to protect those with children in common who are not cohabiting as well as all cohabiting couples regardless of gender. The Programme for Government also includes a specific commitment to reviewing domestic violence legislation. As well as the review of the domestic violence legislation being undertaken by the Law Reform Commission,54 a Parliamentary Committee is currently compiling a report on measures that might be put in place to reduce domestic and sexual violence. The Minister for Justice and Equality expects to examine a package of workable and effective proposals for the reform of the domestic violence legislation as soon as possible following receipt of these reports. Strategies for improved domestic and sexual violence data collection, collation and presentation are at an advanced stage of development. In September 2013, the Department of Justice and Equality published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013,55 the key innovation of which is the establishment of a DNA database to assist the Gardaí in tackling crime. This will be of particular benefit in the investigation of cases of rape and sexual assault. 106.52—Submit rapidly its national report to the Committee on the Elimination of Discrimination against Women (CEDAW) that was due in 2007 and include a section on violence against women as requested by the Committee (Switzerland); ACCEPTED Ongoing. Ireland’s sixth and seventh (combined) reports due under the CEDAW are in the course of preparation and will be submitted shortly.

262  The Irish Yearbook of International Law 2014 106.53—Fully implement the relevant laws, policies and programmes aimed at combating domestic violence in the country (Malaysia); ACCEPTED Ongoing. See responses to recommendations 106.49 and 106.51. 106.54—Pass legislation to combat trafficking in human beings in the form of sham ­marriages (Latvia); ACCEPTED The Department of Social Protection is developing proposals for legislation which will make sham marriages more difficult to broker in Ireland. It is hoped that legislation to amend the Civil Registration Act 200456 will be introduced early in 2014. In addition, the Department of Justice and Equality is currently re-examining the provisions in the Immigration Residence and Protection Bill 2010 and drafting amendments to deal with immigration related marriages of convenience and sham marriages. A similar approach is being taken in respect of the Free Movement Regulations that transposed the relevant EU Directive into Irish law. The issue of sham marriages is a complex one and there is no single, legislative or operational approach that will permanently eliminate the problem. The relevant authorities deploy a range of operational measures and cooperate closely in tackling this problem, in particular with a view to protecting the interests of vulnerable persons and combating abuse of the immigration system. 106.55—Support its Muslim citizens in enabling them to practise their religion (Turkey); ACCEPTED See comment under 106.23. Article 44 of the Constitution specifically protects religious freedom. 106.56—Make available adequate budgetary allocations, despite financial constraints, for the continued provision and improvement of education and health services which are essential to protect the rights of the poorest and the most vulnerable members of society (Sri Lanka); ACCEPTED A key focus of national education policy is to prioritise investment in favour of those most at risk and to optimise access, participation and outcomes at every level of the system for disadvantaged and marginalised groups. DEIS (Delivering Equality of Opportunity in Schools), the Action Plan for Educational Inclusion,57 is the policy instrument to address educational disadvantage and focuses on addressing and prioritising the educational needs of children and young people from disadvantaged communities, from pre-school

2014 Documents 263 through second-level education. DEIS resources continue to be protected, with no overall changes to DEIS-related staffing levels or DEIS funding despite financial constraints. 106.57—Ensure the principle of equality and non-discrimination while guaranteeing the enjoyment of the right to health (Brazil); ACCEPTED One of the main focuses of Irish health reform is to move away from the current hospital-centric model of care towards a new model of integrated care which treats patients at the lowest level of complexity that is safe, timely, efficient, and as close to home as possible. The Government is committed to the delivery of a single-tier health service, supported by universal health insurance (UHI), where access is based on need and not on ability to pay. Under UHI, everyone will be insured and will have equal access to a standard package of primary and acute hospital services, including acute mental health services. An Insurance Fund will subsidise or pay insurance premiums for those who qualify for a subsidy. 106.58—Ensure the national availability and accessibility to contraceptive services and methods, including through the dissemination of information and education to boys, girls and adolescents, taking into account prevention of discrimination based on ­geographic status, disability or migrant status (Mexico); ACCEPTED Contraceptive services and methods are available nationally, mainly through primary healthcare providers. The HSE Crisis Pregnancy Programme58 is a national programme tasked with developing and implementing a national strategy to address the issue of crisis pregnancy in Ireland. This task includes improving knowledge and awareness of sexual health and relationships through the delivery of targeted communications campaigns, customised information and educational programmes and other initiatives across a range of settings. The Programme runs and funds a range of sexual health information and education campaigns targeted to groups identified by research as having particular sexual health information needs, such as children and adolescents, 18–24 year olds, women aged 35-55 and parents, as well as early school leavers, young people who have experienced first sex before 17 years, and other minority groups. 106.59—Further measures to eliminate the underrepresentation of women in decisionmaking roles, particularly in the political arena and as members of corporate boards (Ghana); ACCEPTED Ongoing. An all-Party conference aimed at raising awareness on women and politics was hosted by the Minister of State in charge of Equality, Ms Kathleen Lynch T.D. on 30 January 2012. The event attracted over 300 participants and brought about a greater awareness of the

264  The Irish Yearbook of International Law 2014 issue and the challenges for political parties and the public. The Conference heard from the political and administrative leaders of all the main political Parties, including the Taoiseach (Prime Minister) and Tánaiste (Deputy Prime Minister) and representatives of the opposition. It also heard the experiences of a number of serving politicians and words of experience and guidance from a number of international experts. Part 6 of the Electoral (Amendment) (Political Funding) Act 201259 requires political parties in receipt of State funding to include a quota of 30 per cent of women candidates at the next general election, rising to 40 per cent at the following general election. Failure on the part of a political party to comply with this provision will lead to a cut in State funding to the party. As already mentioned in 106.2 above, a working group chaired by Minister of State ­Kathleen Lynch T.D. in the context of the National Women’s Strategy has been specifically addressing the advancement of women in leadership roles, including in politics, management, on Boards, in the diplomatic and judicial systems. Its report along with recommendations for action will be presented to Government shortly. A wide ranging positive action programme will start later this year on “women and leadership” which is being supported over a two year period by the European Social Fund PROGRESS initiative. The reiteration in the Programme for Government 2011–2016 is that all State boards have at least 40 per cent of each gender. This was backed up further in April 2011 when Government decided that future vacancies on State boards should be advertised on the website of the relevant Government Department. Departments are also required to report annually on the steps that they and their agencies are taking to achieve the 40% target which currently stands at around 34%. 106.60—Establish a consolidated framework relating to immigration and asylum issues, including an independent Appeals body (United Kingdom); ACCEPTED The Immigration Residence and Protection Bill will consolidate Ireland’s immigration and asylum laws, replacing several existing statutes and providing more detailed legislative measures in a number of areas and also putting in place a single procedure for protection cases. The establishment of an independent appeals system will be addressed as part of that Bill. It is anticipated that a revised Bill will be published during 2014. Policy guidelines are being developed on an ongoing basis in respect of key migration streams. A policy document on family reunification was published at the end of 2013. 106.61—Ensure that all asylum-seekers in Ireland can effectively accede to the process of determination of their refugee condition and that decisions on the necessity for international protection can be reviewed and are subject to independent judicial supervision (Mexico); ACCEPTED

2014 Documents 265 Comprehensive structures and procedures are in place in the Office of the Refugee Applications Commissioner (ORAC) for the processing of asylum applications in line with the Refugee Act 1996 (as amended). Free legal assistance (apart from a nominal registration fee, which is waived in certain circumstances) is available to all applicants. The applicant is notified regarding the availability of legal representation on the day they apply for asylum, and of the existence of the Refugee Legal Service. The Refugee Legal Service (RLS)60 is an office established by the Legal Aid Board to provide independent and confidential legal services to asylum-seekers and refugees. The RLS can provide assistance to applicants before submission of the questionnaire or prior to appearing at the interview, and can make written submissions to the ORAC in support of an application. The RLS can also provide legal representation before the RAT. The RLS staff comprises of legal counsel and caseworkers who have been trained in refugee status determination. Asylum-seekers are also free to arrange for legal advice at their own expense. The RLS also have an office in ORAC, adjacent to the area where asylum applications are made. 106.62—Continue to allocate financial assistance for developing countries in the framework of Official Development Assistance (ODA) and meet the commitment made in this regard at the international level (Algeria). ACCEPTED Ongoing. The Government remains committed to achieving the target of 0.7% of Gross National Income allocated to international development cooperation, as stated in the Programme for Government. Recognising the present economic difficulties, the Government will endeavour to maintain aid expenditure at current levels, while moving towards the 0.7% target when our economy improves. 107.1—Sign and ratify the Optional Protocol to the Convention on the Rights of People with Disabilities (CRPD) (Austria, Spain); PARTIALLY ACCEPTED Ongoing. Ireland has not yet ratified the UN Convention on the Rights of Persons with Disabilities; the decisions regarding its Optional Protocol will be addressed by the Government at the time of consideration of ratification of the Convention. 107.2—Continue the process of accession to or ratification of the pending main international human rights instruments in particular OP CRPD (Costa Rica); ACCEPTED Ongoing. See response to recommendation 107.1.

266  The Irish Yearbook of International Law 2014 107.3—Withdraw its reservations to the International Covenant on Civil and Political Rights (ICCPR) (Brazil); PARTIALLY ACCEPTED Ireland’s position is set out in the Addendum to the Report of the Working Group. 107.4—Consider incorporating the right to health and the right to housing (Portugal) and sign and ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) (Ecuador); PARTIALLY ACCEPTED Ireland’s signature of the Optional Protocol on 23 March 2012 reaffirmed Ireland’s commitment to the promotion and protection of economic, social and cultural rights. The question of ratification is currently being examined. Ireland has always been clear that treaty ratification is considered as something which should only be done after wide-ranging examination of all the issues and appropriate consultation with relevant Departments. As such, in order to lay out clearly the necessary steps to be taken to facilitate ratification, it is necessary to conduct a screening of obligations to be assumed under the Optional Protocol and to hold comprehensive and thorough consultations with all Government Departments. Ireland is also carefully considering the possibility of making a declaration upon ratification, recognising the competence of the UN Committee on Economic, Social and Cultural Rights to undertake inquiry and inter-state procedures. In relation to health matters, please see the response to recommendation 106.57. As stated in the Addendum to the Report of the Working Group, the overarching aim of the Government’s housing policy is to enable all households to access good quality housing appropriate to household circumstances and in their particular community of choice. 107.5—Withdraw its reservations to International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Convention on Economic, Social and Cultural Rights (ICESR) and International Covenant on Civil and Political Rights (ICCPR) (Iran); PARTIALLY ACCEPTED Ireland’s position is set out clearly in Addendum to the Report of the Working Group. 107.7—Adopt practical and legal measures to curb racial discrimination and discrimination against migrants and to look at the appeal by UNESCO (United Nations Educational, Scientific and Cultural Organization) to ratify the 1960 Convention to counter discrimination in the area of education (Uzbekistan); PARTIALLY ACCEPTED

2014 Documents 267 While there are no immediate plans for Ireland to ratify the Convention, Ireland is fully committed to the principles of equality of educational opportunity contained in the Convention. As detailed in the Addendum to the Report of the Working Group, robust practical and legal measures against racial discrimination, racism and xenophobia are in place. For information on ongoing work in this area, please see response to 106.23. 107.8—Continue the implementation of the recommendations made by CERD (Iraq); ACCEPTED The recommendations made by the Committee in its consideration of Ireland’s Joint 3rd and 4th State Report covered issues which crossed a number of areas of responsibility. Government Departments with responsibility for each area were made aware of the recommendations. The progress made on the issues identified by the Committee will be addressed in Ireland’s Joint 5th, 6th and 7th State report to UNCERD which is due in 2014. 107.9—Ensure the comprehensive and effective incorporation of children’s rights in ­Ireland’s legal framework in line with the UN Convention on the Rights of the Child by incorporating children’s rights into the Constitution (Cambodia); ACCEPTED A referendum to amend the Constitution to acknowledge and affirm the rights of children was passed on 10 November 2012. Please see the response to recommendation 106.9 for information on the status of the referendum result. 107.10—Urgently take measures necessary to ensure that the UN Convention on the Rights of the Child is fully implemented and incorporated into the legal and administrative system of Ireland (Sweden); ACCEPTED Ongoing. Please see response to recommendation 106.9. The State has submitted a combined 3rd and 4th Report to the UNCRC in August 2013 which gives updates in relation these matters. Paragraph 190 of this Report refers to the Status of the UNCRC in Irish law. 107.11—Consider alternative (legislative) measures that will enhance the position of children in the short term (i.e. extending the remit of the Ombudsman to children in prisons and asylum seeking children) (Netherlands);

268  The Irish Yearbook of International Law 2014 PARTIALLY ACCEPTED Ongoing. The Ombudsman for Children had been precluded from considering complaints by or on behalf of children detained in a prison by virtue of section 11(1)(e)(iii) of the Ombudsman for Children Act, 2002.61 The Minister for Children and Youth Affairs, having consulted with the Minister for Justice and Equality in this regard, made an Order under section 11(2) of the 2002 Act by Statutory Instrument No. 210 of 2012,62 with effect from 1st July 2012, which removed this exclusion. In October 2012, following the enactment of the Ombudsman (Amendment) Act 201263 the remit of both the Ombudsman and the Ombudsman for Children was significantly expanded and the bodies to come within the remit of each Ombudsman and the process for any future changes to their respective remits were aligned. 107.12—Strengthen the legal framework for the protection of the rights of children and the rights of other vulnerable groups such as women, the elderly, people with disabilities and the community of Travellers (Peru); ACCEPTED Please see response to recommendation 106.23. 107.13—Enhance legal action against all forms of discrimination on the basis of race, ethnic, language, religion or national origin, in particular comprehensive respect of human rights of foreigners regardless of their migratory status (Ecuador); ACCEPTED Please see response to recommendation 106.23. 107.14—Develop and adopt a gender parity law (France); ACCEPTED Please see response to recommendation 106.59 above, which outlines recent changes in electoral law. 107.15—Pursue efforts aimed at strengthening the protection of all people from racial discrimination and by improving the existing draft pieces of legislation and passing them into law (Ghana); ACCEPTED Please see response to recommendation 106.23.

2014 Documents 269 107.16—Adopt laws to deal with the situation of persons suffering from the highest level of physical and mental health with regards to the 2001 Act on Mental Health and bring its provisions in line with the CRPD (Spain); ACCEPTED The Assisted Decision-Making (Capacity) Bill 2013 was published on 17 July 2013 and provides a series of options to support people who have difficulties in terms of decisionmaking capacity to exercise autonomy in decision-making to the greatest extent possible, in line with the principles contained in UNCRPD. Consideration of the Bill by the Oireachtas (Houses of Parliament) began in December 2013. The Mental Health Act 2001 is currently being reviewed by an Expert Group which was set up by the Minister. The review will introduce a rights based approach to mental health legislation and will prioritise the needs of the person using our services in the first instance. The final report of the Expert Group carrying out the review is expected by the end of March, 2014. 107.17—Withdraw the provisions entered into force on 1 January 2010 making blasphemy punishable as they may constitute an excessive limitation to the freedom of expression (France); PARTIALLY ACCEPTED Ireland established a Constitutional Convention in 2012 to consider a number of matters, including the removal of the offence of blasphemy from the Constitution. The Convention considered this matter at its meeting in November 2013. A majority of members voted to recommend in its report that the reference to blasphemy in the Constitution be replaced with a more general provision regarding incitement to religious hatred. This recommendation will be considered by Government as soon as the Convention’s report is finalised and formally presented to the Oireachtas. 107.18—Take steps to ensure that the current economic crisis does not erode human rights, in particular by developing a National Action Plan on Human Rights as well as by providing the continued support and shared experience on human rights worldwide (Cambodia); PARTIALLY ACCEPTED See comment under recommendation 106.7. Ireland is very open to the idea of developing a National Action Plan on Human Rights and is pursuing this in the context of work at EU level to improve coherence between internal and external human rights policies and actions. 107.19—Develop provisions of a training programme to raise the awareness of the judiciary to the racial dimension of crime and to ensure that judges take into account racist motivation as an aggravating circumstance when they sentence in criminal cases (Uruguay);

270  The Irish Yearbook of International Law 2014 PARTIALLY ACCEPTED Ireland’s position with regard to the independence of the judiciary has been detailed in the Addendum to the Report of the Working Group. The Committee for Judicial Studies (formerly the Judicial Studies Institute) has confirmed that members of the judiciary attend training events in relation to racism on an ongoing basis. 107.21—Enact laws setting principles on law, rights and obligations that govern family reunification (Uruguay); ACCEPTED A new Policy Document on Non-EEA Family Reunification64 has been published on the Department of Justice and Equality website on 31 December 2013. The purpose of this document is to set out a comprehensive statement of Irish national immigration policy in the area of family reunification. The guidelines are intended to provide for greater transparency in the immigration decision making process and also to set out in detail the reasoning behind the policies. It is intended that these guidelines will provide greater transparency in the system for decision-makers, applicants and practitioners. Greater emphasis is also placed on the responsibilities of sponsors. In addition the policy document outlines a number of administrative measures to be implemented over time, including a new pre-clearance process for applicants. This issue will also be dealt with in the Immigration, Residence and Protection Bill due to be published later in 2014. 107.22—Draw up an integrated and comprehensive human rights plan of action (Indonesia); PARTIALLY ACCEPTED See responses to recommendations 106.7 and 107.18. 107.23—Ensure the full implementation and undertake an independent assessment of the National Women Strategy (Austria); PARTIALLY ACCEPTED A report on the progress of implementation of the National Women’s Strategy 2007– 201665 is prepared annually by the Department of Justice and Equality and submitted to Government. A mid-term review of the Strategy has also been completed and will be submitted to Government shortly. The review was referred for consideration and input to a monitoring committee, which includes members of civil society. 107.24—In line with the recommendations made by CERD, adopt and implement immediately legislation prohibiting any form of racial discrimination and ensure ­

2014 Documents 271 ­ umanitarian treatment to migrants and persons of non-Irish origin, including through h adequate training for the judicial and police personnel (Mexico); PARTIALLY ACCEPTED As mentioned in Ireland’s Addendum to the report of the Working Group, existing legislation already provides for prohibition of racial discrimination, and for humanitarian treatment of migrants and persons of non-Irish origin. With regard to police personnel, An Garda Síochána is committed to providing a professional, well-led and well-managed policing service which is grounded in human rights principles. An Garda Síochána has a comprehensive education, training and information system for the professional development of all members. See comment under recommendation 107.29 in relation to the Garda Síochána Racial, Intercultural and Diversity Office (GRIDO).66 See comment under recommendation 106.17 in relation to treatment of separated children/ unaccompanied minors. See comment under recommendation107.19 in relation to the independence of the judiciary. 107.25—Consider strengthening its National Action Plan against Racism (Brazil); ACCEPTED Ireland’s National Action Plan Against Racism was launched in 2005 and was designed as a four-year programme to run until the end of 2008. The Plan was very ambitious and wide-ranging in its scope. Since its instigation there has been a substantial penetration of anti–racist policies, programmes and activities and awareness-raising initiatives in many areas. The focus now lies on the continued implementation of the sectoral strategies which flowed from the Plan. See comment under recommendation 106.23 in relation to tackling racism, xenophobia and other forms of extreme intolerance. 107.26—Fully explore the possibility of putting in place a new National Plan of Action against Racism (Malaysia); ACCEPTED Please see response to recommendation 107.25. 107.27—Accelerate efforts in establishing national network of schools that guarantee equality of access to children irrespective of their religious, cultural or social background (Malaysia); ACCEPTED

272  The Irish Yearbook of International Law 2014 The process for establishment of a new school has been adapted in the last two years to involve consultation with parents with regard to their preferred choice of school. In making the decision on the type of school, a key criterion is to ensure the broadest choice possible for an area. In regard to existing schools, if enough parents in an area would prefer an alternative choice, the Department of Education and Skills has commenced a process within the last two years to make this happen. 107.28—Strengthen the protection of all people from racial discrimination by improving the existing draft pieces of legislation and passing them into law (Pakistan); ACCEPTED Ongoing. Please see responses to recommendations 106.23 and 107.7. 107.29—Establish appropriate mechanisms to encourage the reporting of racist incidents and crimes (Azerbaijan); ACCEPTED Ongoing. As stated in Ireland’s Addendum to the Report of the Working Group in March 2012, robust mechanisms are in place to record complaints about racist crime and racial discrimination and comprehensive anti-racism training is provided to members of An Garda Síochána. The Garda Síochána Racial, Intercultural and Diversity Office (GRIDO) places great emphasis on the reporting of any suspected racist crime. It works with a network of liaison officers at local level and gives advice on the services available to the victims of hate crime. The Office for the Promotion of Migrant Integration,67 an Office of the Department of Justice and Equality, also undertakes important work in both monitoring the prevalence of hate crime and in the provision of information to victims of hate crime. It also works to promote positive attitudes towards integration in Irish society. 107.30—Investigate the reports of “knife stabbings” against people mainly from ­Sub-Saharan Africa and ensure that the perpetrators are prosecuted and when convicted, punished with appropriate penalties (Azerbaijan); ACCEPTED Ongoing. As stated in the Addendum to the Report of the Working Group, Ireland is firmly committed to ensuring that all instances of crime are properly investigated, and that perpetrators are convicted and the appropriate sentence is handed down. However, there is

2014 Documents 273 no basis for the suggestion that there is a specific problem of stabbings involving people from Sub-Saharan Africa. 107.31—Introduce a complete integration policy to for this specific group (referring to Travellers who continue to suffer from discrimination) (Czech Republic); ACCEPTED Ongoing. The Department of Justice and Equality is currently considering the existing mechanisms for consultation, implementation, monitoring and review of the National Traveller/Roma Integration Strategy68 with a view to recommending any necessary changes. 107.32—Introduce measures to improve the conditions of Travellers in the society and introduce a comprehensive system for the monitoring of racist incidents (Turkey); ACCEPTED Ongoing. Co-operation between the Garda Racial, Intercultural and Diversity Office (GRIDO) and the Travelling Community since 2011 has been strengthened through constant and positive engagement. Initiatives developed have provided reassurance to Travellers to report acts of racism and discrimination. Anti-discrimination seminars have been provided to 322 Ethnic Liaison Officers (ELOs) nationwide. 107.34—Activate efforts to improve the living conditions of detainees pre-trial and after conviction and also to implement all the requirements of minimum standards of treatment of inmates (Uzbekistan); ACCEPTED See response to recommendation 106.47. The training of prison service staff in this State places a large emphasis on human rights and appropriate behaviour towards prisoners. In addition to the Prison Rules 200769 which of themselves reflect international best practice and the European and UN Prison Rules where the administration of prisons is concerned, all Recruit Prison Officers complete an accredited two year Higher Certificate in Custodial Care programme. Staff members are made fully aware that any form of ill-treatment of prisoners, including verbal abuse, is not tolerated. The Irish Prison Service will continue to deliver this message. All allegations of ill-treatment are thoroughly investigated and if warranted, disciplinary measures against staff follow. The Prison (Disciplinary Code for Officers) Rules, 199670 and the Prison Rules, 2007 address this issue. 107.35—Take the necessary measures to avoid detention of asylum seekers and to avoid situations which may equate the condition of immigrants to that of felons (Brazil); ACCEPTED

274  The Irish Yearbook of International Law 2014 There is no policy of systematic detention of adults or children seeking asylum in Ireland. The provisions relating to the treatment of asylum seekers while detained and where they may be detained are set out in the Refugee Act 1996 (Places and Conditions of Detention) Regulations 2000.71 These Regulations make extensive provision for information to be provided to third parties (e.g. the UNHCR, the applicant’s solicitor) regarding the detention of an individual. Provision is also made for visits and communications, treatment of the detained individual and prohibition on ill-treatment whilst in detention, the personal rights and dignities and the need to have regard for any special needs they may have. Detainees must also be allowed to have reasonable contact with members of their family group, whether other members of the family group are detained or not. The Regulations also provide that an individual shall not be detained for a continuous period longer than 48 hours in a Garda station, or for any more than two consecutive overnight stays. 107.36—Enhance its efforts at the local level to better carry out the campaign against domestic violence (Switzerland); ACCEPTED Please see responses to recommendations 106.49 and 106.51. 107.37—Sign the Council of Europe Convention on Violence against Women and Domestic Violence (Austria); ACCEPTED Ireland can accept in principle the terms of the Convention. The detailed provisions of the Convention and the administrative and legislative arrangements that would be necessary to allow signature of the Convention by Ireland are currently being examined. This is being done in conjunction with the government commitment to consolidate and reform domestic violence legislation to address all aspects of domestic violence, threatened violence and intimidation, in a way that provides protection to victims. 107.38—Strengthen its policies and laws against domestic violence and prepare ­adequate statistics, including sex, age and family relationship of victims and perpetrators (Pakistan); ACCEPTED Please see responses to recommendations 106.49 and 106.51. 107.39—Implement the UN rules for the Treatment of Women Prisoners and Non-­ Custodial Measures for Women Offenders, otherwise known as the Bangkok Rules (Thailand); PARTIALLY ACCEPTED

2014 Documents 275 The Prison Rules 2007 substantially comply with the Bangkok Rules. The ­Inspector of ­Prisons’ Standards for the Inspection of Prisons in Ireland—Women Prisoners’ ­Supplement72 published in February 2011 were also significantly informed by the ­Bangkok Rules and provide guidance to the Irish Prison Service on best practice in relation to the detention of women prisoners. In that context too, the Joint Irish Prison Service and Probation Service Strategic Plan 2013–201573 contains a commitment for the development of a specific strategy for women offenders which will be delivered during the lifetime of the Plan. The strategy includes: —— Identifying and diverting women at risk of a custodial sentence through greater availability and use of diversion, community sanctions and supports and interagency co-operation; —— Strengthening early intervention measures in the community through adopting a co-ordinated multi-agency approach; —— Improving outcomes for women currently in custody; and —— Exploring the potentials of women centric alternatives to custody. Furthermore, the Penal Policy Review Group74 was tasked by the Minister to carry out an all encompassing strategic review of penal policy. The group will examine the issue of women prisoners in the criminal justice system and consider alternatives to custody. It is expected that the group will report to the Minister in early 2014. 107.40—Institute a comprehensive statutory inquiry and compensation scheme in order to guarantee accountability and assist the (women and children) victims (of violence) (Thailand); ACCEPTED As indicated in Ireland’s National Report and Addendum to the Report of the Working Group, the Government apologised to those who had been victims of childhood abuse while in institutional care. A Commission to Inquire into Child Abuse was established to hear the accounts of those involved and to investigate the abuse of children in institutions. The Commission published its final report in 2009.75 The Residential Institutions Redress Board76 was established in 2002 to make financial awards to assist in the recovery of those involved. By end-October 2013, the Board had made 14,934 awards with an overall average award value of €62,584. €918 million has been paid in respect of such awards. The Board has some 700 applications to finalise. The Residential Institutions Statutory Fund to support the needs of survivors of residential institutional abuse was established by the Government in March 2013. The Fund will utilise contributions of up to € 110million pledged by religious congregations and will target support at survivor needs across a range of services, including mental health services, health and personal social services, housing services and education services. It is expected that the Fund will begin inviting applications in early 2014. Counselling services are also available through the National Counselling Service77 and a family tracing service is available to former residents wishing to trace family members with whom they have lost contact.

276  The Irish Yearbook of International Law 2014 107.41—Explicitly prohibit any form of corporal punishment in the family and continue developing awareness raising campaign and education for parents and for the public in general (Uruguay); PARTIALLY ACCEPTED Ongoing. This area is under continuous review, as stated in Addendum to the Report of the Working Group. 107.42—Promote forms of discrimination and non-violent discipline as an alternative to corporal punishment taking into consideration General Comment No. 8 of the Committee on the Right of the Child on the protection of children from corporal punishment and other cruel or degrading forms of punishment (Uruguay); PARTIALLY ACCEPTED See response to recommendation 107.41. 107.43—Amend the Civil Registration Act empowering the registrars and the Garda (police) to intervene against sham marriages and to amend Criminal law to criminalize the organizers and facilitators of sham marriages (Latvia); ACCEPTED Please see response to recommendation 106.54. 107.44—Deepen the reform of the law on same sex marriage and change the concept of traditional family as enshrined in the Constitution (Spain); ACCEPTED Ongoing. In April 2013, 79% of members of the Constitutional Convention, which was tasked to look at this issue, voted in favour of amending the Constitution to allow for same sex marriage. On foot of the recommendation by the Convention on the Constitution, the Government decided in November 2013 to authorise the necessary work to prepare for a constitutional referendum on equal marriage for same-sex couples. The referendum is intended to take place in the first half of 2015. The Convention also recommended a Constitutional amendment to change the clause on the role of women in the home. The Minister for Justice and Equality has established a task force to prepare options for an amendment to the Constitution in that regard.

2014 Documents 277 107.45—Amend Article 37 of the 1998 Employment Equality Act in order to prevent such discrimination against homosexual and unmarried parents (Switzerland); PARTIALLY ACCEPTED Acting on a request from the Minister for Justice and Equality to the members-designate of the Irish Human Rights and Equality Commission, the Commission is currently carrying out a public consultation on the potential impact of section 37 of the Employment Equality Act 1998 on lesbian, gay, bisexual and transgender persons and a formal assessment of the options for its amendment. 107.46—Enact legislation to make the right to collective bargaining through trade unions in the line with international commitments (Norway); PARTIALLY ACCEPTED The Programme for Government contains a commitment to reform the current law on employees’ right to engage in collective bargaining (the Industrial Relations (Amendment) Act 200178), in order to ensure compliance by the State with recent judgments of the European Court of Human Rights. With this in mind, in late 2012, the Minister for Jobs, Enterprise and Innovation wrote to relevant stakeholders inviting their observations on the matter. Submissions were subsequently received and a series of initial first step meetings took place between Departmental officials and stakeholders around mid-2013. Discussions with stakeholders are ongoing. The Minister hopes to be in a position to put proposals to Cabinet soon. In this context, he is certain that satisfactory arrangements can be put in place that will reconcile Ireland’s constitutional, social and economic traditions, and international obligations, whilst at the same time ensuring continued success in building Ireland’s domestic jobsbase and in attracting overseas investment into the economy. 107.47—Encourage diversity and tolerance of other faiths and beliefs in the education system by monitoring incidents of discrimination on the basis of belief (Turkey); ACCEPTED There is a school complaints procedure in place and the Department of Education and Skills provides guidance to this procedure on its website. It is unlawful to discriminate against a child on the basis of religious belief. Where a parent believes such discrimination has taken place, the school complaints procedure should be followed in the first instance. If the parents are not satisfied with the response, it is open to them to raise the matter with the Equality Authority. 107.49—Adopt necessary measures to legally recognize the human rights of all minorities and ethnic groups that are residing in the country (Ecuador); ACCEPTED

278  The Irish Yearbook of International Law 2014 Ongoing. As stated in the Addendum to the Report of the Working Group, the human rights of all residents are already comprehensively protected by Ireland’s Constitution, which in effect, constitutes a Bill of Rights for the State, and by legislation. 107.50—Continue public consultations with NGOs and civil society in the follow-up to the UPR (Austria). ACCEPTED Ongoing. The input from members of the public and civil society in the UPR process has been of immense value and we are keen to continue this worthwhile dialogue, both in the context of the UPR and in the broader domain of human rights policy development. REFERENCES 1 The Programme for Government 2011–2016 is available on the website of the Department of the Taoiseach at http://www.taoiseach.gov.ie/eng/Work_Of_The_Department/Programme_for_Government/Programme_for_ Government_2011-2016.pdf 2 The Report on the General Scheme of the Gender Recognition Bill is available on the website of the Houses of the Oireachtas at http://www.oireachtas.ie/parliament/media/committees/educationandsocialprotection/ Report-on-Gender-Recognition-Bill.pdf 3 http://www.isi.gov.ie/ 4 The new debt settlement arrangement options are as follows:

—— —— ——

 Debt Relief Notice (DRN) to allow for the write-off of debt (generally unsecured and in some A cases secured) up to €20,000, subject to a 3-year supervision period A Debt Settlement Arrangement (DSA) for the agreed settlement of unsecured debt, with no limit involved, normally over 5 years A Personal Insolvency Arrangement (PIA) for the agreed settlement of secured debt up to €3 million (though this cap can be increased) and unsecured debt, with no limit involved, normally over 6 years

 urther information is available on the website of the Insolvency Service of Ireland at http://www.isi.gov. F ie/en/ISI/Pages/Debt_solutions 5 The new anti-bullying procedures for primary and post-primary schools are available on the website of the Department of Education and Skills at http://www.education.ie/en/Publications/Policy-Reports/AntiBullying-Procedures-for-Primary-and-Post-Primary-Schools.pdf 6 Further information is available at http://www.hiqa.ie/standards/social-care 7 http://www.nda.ie/ 8 Further information on Bunreacht na hÉireann, Ireland’s Constitution, is available at http://www.­taoiseach. gov.ie/eng/Historical_Information/The_Constitution/ 9 Ireland’s Consolidated 3rd and 4th Report to UN CRC is available at http://www.dcya.gov.ie/viewdoc. asp?fn=/documents/publications/UNCRC_2013.pdf 10 The Disability Act 2005 is available at http://www.irishstatutebook.ie/2005/en/act/pub/0014/ 11 The document is available on the website of the National Disability Authority at http://www.nda.ie/­ website/nda/cntmgmtnew.nsf/0/3DB134DF72E1846A8025710F0040BF3D/$File/COPPLain.pdf 12 National Housing Strategy for People with a Disability is available on the website of the Department of the Environment, Community and Local Government at http://www.environ.ie/en/DevelopmentHousing/Housing/ PublicationsDocuments/FileDownLoad,28016,en.pdf 13 For more information on the INTREO service, please visit http://www.welfare.ie/en/Pages/Intreo_home. aspx. 14 Transport Access for All is available on website of the Department of Transport, Tourism and Sport at http://www.transport.ie/upload/general/11491-18.PDF 15 The Education Act 1998 is available at http://www.irishstatutebook.ie/1998/en/act/pub/0051/ 16 The Education for Persons with Special Educational Needs Act 2004 is available at http://www.­ irishstatutebook.ie/2004/en/act/pub/0030/ 17 http://www.ncse.ie/ 18 http://www.justice.ie/en/JELR/NDA%20-%20POLICY%20-%202.pdf/Files/NDA%20-%20POLICY%20%202.pdf

2014 Documents 279 19 The Citizens Information Act 2007 is available at http://www.irishstatutebook.ie/pdf/2007/en.act.2007.0002.

pdf

20 The National Disability Strategy Implementation Plan is available on the website of the Department of Justice and Equality at http://www.justice.ie/en/JELR/NDS_ImplementationPlan_FINAL.pdf/Files/NDS_ ImplementationPlan_FINAL.pdf 21 The Refugee Act 1996 is available at http://www.irishstatutebook.ie/1996/en/act/pub/0017/. The Immigration Act 1999 (which amends the Refugee Act 1996) is available at http://www.irishstatutebook.ie/1999/en/act/ pub/0022/index.html 22 The Childcare Act 1991 is available at http://www.irishstatutebook.ie/1991/en/act/pub/0017/. The Childcare (Amendment) Act 2011 is available at http://www.irishstatutebook.ie/2011/en/act/pub/0019/. 23 Statutory Instrument No. 52/2011, Refugee Act 1996 (Asylum Procedures) Regulations. 2011 is available at http://www.irishstatutebook.ie/2011/en/si/0052.html 24 http://www.orac.ie 25 Ireland’s Third Periodic Report to the UN Committee on Economic, Social and Cultural Rights (E/C.12/ IRL/3) is available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2 fC.12%2fIRL%2f3Lang=en 26 The Employment Equality Act 1998 (http://www.irishstatutebook.ie/1998/en/act/pub/0021/) came into force on the 18th October 1999, and was amended on the 25th October 2004 by the Equality Act 2004 (http:// www.irishstatutebook.ie/2004/en/act/pub/0024/). The Equal Status Act 2000 (http://www.irishstatutebook. ie/2000/en/act/pub/0008/index.html) came into force on the 25th October 2000 and was amended by the Equality Act 2004 on the 19th July 2004. 27 The Human Rights Commission Act 2000 is available at http://www.irishstatutebook.ie/2000/en/act/ pub/0009/index.html. The Human Rights Commission (Amendment) Act 2001 is available at http://www.irishstatutebook.ie/2001/en/act/pub/0035/index.html. 28 The European Convention on Human Rights Act 2003 is available at http://www.irishstatutebook.ie/2003/ en/act/pub/0020/ 29 National Women’s Strategy 2007–2016 is available on the website of the Department of Justice and Equality at http://www.justice.ie/en/JELR/National%20Womens%20Strategy%20PDF.pdf/Files/National%20 Womens%20Strategy%20PDF.pdf 30 http://www.ibec.ie 31 Ireland’s Addendum to the Report of the Working Group is available at http://www.upr.ie/website/upr/ uprweb.nsf/page/reports-en 32 The Prohibition to Incitement to Hatred Act 1989 is available at http://www.irishstatutebook.ie/1989/en/ act/pub/0019/ 33 http://www.dppireland.ie/ 34 A breakdown of statistics on reported racially motivated crimes is available on the website of the Office for the Promotion of Migrant Information at http://www.integration.ie/website/omi/omiwebv6.nsf/page/ statistics-RacistIncidentsstatisticscrime-en 35 The Non-Fatal Offences against the Person Act 1997 is available at http://www.irishstatutebook.ie/1997/ en/act/pub/0026/ 36 The Criminal Damage Act 1991 is available at http://www.irishstatutebook.ie/1991/en/act/pub/0031/ 37 Future Health—A Strategic Framework for Reform of the Health Service 2012–2015 is available on the website of the Department of Health at http://www.dohc.ie/publications/Future_Health.html 38 Further information is available at http://www.dohc.ie/issues/healthy_ireland/ 39 The Unfair Dismissals Act 1977 is available at http://www.irishstatutebook.ie/1977/en/act/pub/0010/ 40 For further information on the National Employment Rights Authority, please visit http://www.workplacerelations.ie/en/Workplace_Relations_Bodies/National_Employment_Rights_Authority/ 41 Further information on services for older people is available on the Department of Health website at http:// www.dohc.ie/about_us/divisions/services_older_people.html 42 Further information on the Nursing Home Support Scheme is available on the website of the Department of Health at http://www.dohc.ie/issues/fair_deal/ 43 National Positive Ageing Strategy is available at http://www.dohc.ie/publications/National_Positive_ Ageing_Strategy.html 44 The Irish Prison Service 3-Year Strategic Plan 2012–2015 is available on the website of the Irish Prison Service at http://www.irishprisons.ie/images/pdf/strategicplanfinal.pdf 45 http://www.irishprisons.ie 46 http://www.inspectorofprisons.gov.ie/ 47 The Prisons Act 2007 is available at http://www.irishstatutebook.ie/2007/en/act/pub/0010/index.html 48 Further information on the Community Return Scheme is available on the website of the Probation Service at http://www.probation.ie/pws/websitepublishingdec09.nsf/Content/Community+Return 49 The Thornton Hall Report is available on the Department of Justice and Equality website at http://www. justice.ie/en/JELR/Pages/ThorntonHallReviewRpt

280  The Irish Yearbook of International Law 2014 50 The Criminal Justice (Community Service) (Amendment) Act 2007 is available at http://www.irishstatutebook.ie/2011/en/act/pub/0024/index.html 51 The General Scheme of the Criminal Justice (Community Sanctions) Bill is available at http://www.justice. ie/en/JELR/Pages/PB14000031 52 www.cosc.ie 53 Ireland’s National Strategy on Domestic and Gender-Based Violence 2010–2014 is available at http://www. cosc.ie/en/COSC/Pages/WP08000096 54 http://www.lawreform.ie 55 The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013 is available at http://www. oireachtas.ie/documents/bills28/bills/2013/9313/b9313d.pdf 56 The Civil Registration Act 2004 is available at http://www.irishstatutebook.ie/2004/en/act/pub/0003/. 57 Further information on DEIS is available on the website of the Department of Education and Skills at http://www.education.ie/en/Schools-Colleges/Services/DEIS-Delivering-Equality-of-Opportunity-in-Schools-/ 58 www.crisispregnancy.ie 59 The Electoral (Political Funding) (Amendment) Act 2012 is available at http://www.irishstatutebook. ie/2012/en/act/pub/0036/index.html 60 http://www.legalaidboard.ie/lab/publishing.nsf/Content/Refugee_Legal_Service 61 The Ombudsman for Children Act 2002 is available at http://www.irishstatutebook.ie/2002/en/act/ pub/0022/index.html 62 Statutory Instrument No. 210 of 2012 is available at http://www.irishstatutebook.ie/2012/en/si/0210.html 63 The Ombudsman (Amendment) Act 2012 is available at http://www.irishstatutebook.ie/2012/en/act/ pub/0038/index.html 64 The policy document is available on the website of the Department of Justice and Equality at http://www. justice.ie/en/JELR/Pages/PB13000447 65 The National Women’s Strategy 2007–2016 is available on the website of the Department of Justice and Equality at http://www.justice.ie/en/JELR/Pages/PB07000395 66 Contact information for the GRIDO is available on the website of An Garda Síochána at http://www. garda.ie/Controller.aspx?Page=154 67 http://www.integration.ie 68 The National Traveller / Roma Integration Strategy is available on the website of the Department of Justice and Equality at http://www.justice.ie/ga/JELR/Ireland’s%20National%20Traveller%20Roma%20Integration%20Strategy%202011.pdf/Files/Ireland’s%20National%20Traveller%20Roma%20Integration%20 Strategy%202011.pdf 69 S.I. No. 252/2007—Prison Rules 2007 is available at http://www.irishstatutebook.ie/2007/en/si/0252.html 70 S.I. No. 289/1996—Prison (Disciplinary Code for Officers) Rules 1996 is available at http://www.­ irishstatutebook.ie/1996/en/si/0289.html. S.I. No. 438/2009—Prison (Disciplinary Code for Officers) (Amendment) Rules 2009 is available at http://www.irishstatutebook.ie/2009/en/si/0438.html 71 S.I. No. 344/2000—Refugee Act 1996 (Places and Conditions of Detention) Regulations, 2000 is available at http://www.irishstatutebook.ie/2000/en/si/0344.html 72 Standards for the Inspection of Prisons in Ireland—Women Prisoners’ Supplement is available on the website of the Inspector of Prisons at http://www.inspectorofprisons.gov.ie/en/IOP/Standards%20for%20the%20 Inspection%20of%20Prisons%20in%20Ireland-%20Women%20Prisoners%20Supplement.pdf/Files/Standards%20for%20the%20Inspection%20of%20Prisons%20in%20Ireland-%20Women%20Prisoners%20Supplement.pdf 73 The Joint Irish Prison Service and Probation Service Strategic Plan 2013–2015 is available on the website of the Department of Justice athttp://www.justice.ie/en/JELR/Joint%20Irish%20Prison%20ServiceProbation%20Service%20Strategic%20Plan%202013-2015.pdf/Files/Joint%20Irish%20Prison%20 ServiceProbation%20Service%20Strategic%20Plan%202013-2015.pdf 74 Information on the Penal Policy Review Group is available at http://www.justice.ie/en/JELR/Pages/ PR12000253 75 The Report is available for download at http://www.childabusecommission.ie 76 http://www.rirb.ie/ 77 http://www.hse-ncs.ie/en/ 78 The Industrial Relations (Amendment) Act 2001 is available at http://www.irishstatutebook.ie/2001/en/ act/pub/0011/.

Document 2 TREATY SERIES 2014 N° 1 Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland establishing a Single Maritime Boundary between the Exclusive Economic Zones of the two countries and parts of their Continental Shelves Done at Dublin on 28 March 2013 Notifications of Acceptance exchanged at London on 31 March 2014 Entered into force on 31 March 2014 Presented to Dáil Éireann by the Minister for Foreign Affairs & Trade AGREEMENT BETWEEN THE GOVERNMENT OF IRELAND AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ESTABLISHING A SINGLE MARITIME BOUNDARY BETWEEN THE EXCLUSIVE ECONOMIC ZONES OF THE TWO COUNTRIES AND PARTS OF THEIR CONTINENTAL SHELVES The Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, Having regard to the Agreement of 7 November 1988 concerning the delimitation of areas of the continental shelf between the two countries,* the Protocol supplementary thereto of 8 December 1992† and the Exchange of Notes dated 18 October 2001 and 31 October 2001 constituting an agreement on the provisional delimitation of an area of the continental shelf pursuant to Article 83, paragraph 3 of the United Nations Convention on the Law of the Sea 1982,‡ Wishing to establish a single maritime boundary between their exclusive economic zones and those parts of their continental shelves lying within 200 nautical miles of their respective baselines, HAVE AGREED as follows: * 

Irish Treaty Series N° 1 of 1990

†  Irish Treaty Series N° 2 of 1993 ‡  Irish Treaty Series N° 8 of 2002

282  The Irish Yearbook of International Law 2014 Article 1 Continental Shelf Boundary in the Irish Sea and the South West Area (1) Schedule A to the Agreement of 7 November 1988 is amended by substituting the following points on the WGS 84 Datum for the points set out at Positions 55 to 76 of the said Schedule: Position

Latitude

Longitude

55

50°00’.00000 N

8°32’.02264 W

56

49°50’.00000 N

8°32’.02264 W

57

49°50’.00000 N

8°36’.00000 W

58

49°40’.00000 N

8°36’.00000 W

59

49°40’.00000 N

8°45’.00000 W

60

49°30’.00000 N

8°45’.00000 W

61

49°30’.00000 N

9°03’.00000 W

62

49°20’.00000 N

9°03’.00000 W

63

49°20’.00000 N

9°12’.00000 W

64

49°10’.00000 N

9°12’.00000 W

65

49°10’.00000 N

9°17’.00000 W

66

49°00’.00000 N

9°17’.00000 W

67

49°00’.00000 N

9°24’.00000 W

68

48°50’.00000 N

9°24’.00000 W

69

48°50’.00000 N

9°24’.53688 W

70

48°30’.00000 N

9°24’.53688 W

71

48°30’.00000 N

9°48’.00000 W

72

48°20’.00000 N

9°48’.00000 W

73

48°20’.00000 N

9°55’.00241 W

74

48°10’.81127 N

9°55’.00241 W

75

48°10’.81127 N

10°48’.56229 W

76

48°00’.00000 N

10°37’.72709 W

(2) Notwithstanding the provisions of Article 2, paragraph 1 of the Agreement of 7 November 1988, the points at Positions 75 and 76 are joined by a line every point of which is 200 nautical miles from the nearest point on the baselines from which the breadth of the territorial sea of the United Kingdom of Great Britain and Northern Ireland is measured. (3) That part of the continental shelf boundary established by Article 1, paragraph 1 of the Protocol of 8 December 1992 is extended by a straight line connecting Point H referred to therein to a new Point I at the following location on the WGS 84 Datum: Point I

53° 52’.22106 N

5° 49’.53816 W

2014 Documents 283 (4) The agreement pursuant to Article 83, paragraph 3 of the United Nations Convention on the Law of the Sea 1982 on the provisional delimitation of an area of the continental shelf constituted by the Exchange of Notes dated 18 October 2001 and 31 October 2001 is hereby terminated. Article 2 Continental Shelf Boundary in the North West Area (1) Schedule B to the Agreement of 7 November 1988 is amended by substituting the following points on the WGS 84 Datum for the point set out at Position 121 of the said Schedule: Position

Latitude

Longitude

121a

56° 40’.00000 N

14° 00’.00000 W

121b

56° 40’.00000 N

14° 10’.00000 W

121c

56° 34’.63126 N

14° 10’.00000 W

121d

56° 34’.63126 N

14° 19’.86168 W

121e

56° 49’.00000 N

14° 30’.57261 W

(2) Notwithstanding the provisions of Article 2, paragraph 1 of the Agreement of 7 November 1988, points 121d and 121e referred to in paragraph 1 of this Article are joined by a line every point of which is 200 nautical miles from the nearest point on the baselines from which the breadth of the territorial sea of the United Kingdom of Great Britain and Northern Ireland is measured. (3) The boundary established by Schedule B to the Agreement of 7 November 1988 is extended by a straight line connecting the point at Position 95 to a new point at Position 95a at the following location on the WGS 84 Datum: Position 95a

55° 24’.89173 N

6° 44’.64809 W

Article 3 Exclusive Economic Zone Boundaries (1) The continental shelf boundary in the Irish Sea and the South West Area established by paragraph 3 of Article 1 of the present Agreement, Article 1 of the Protocol of 8 December 1992 and paragraph 1 of Article 1 of the Agreement of 7 November 1988 between Positions 1 and 75 set out in Schedule A to that Agreement, as amended by Article 1 of the present Agreement, shall also be the boundary between the Exclusive Economic Zones of the two countries in these areas. (2) The continental shelf boundary in the North West Area established by paragraph 3 of Article 2 of the present Agreement and paragraph 1 of Article 2 of the Agreement of 7 November 1988 between Positions 95 and 121d set out in Schedule B to that Agreement, as amended by Article 2 of the present Agreement, shall also be the boundary between the Exclusive Economic Zones of the two countries in this area.

284  The Irish Yearbook of International Law 2014 (3) The boundaries defined by paragraphs (1) and (2) above have been drawn by way of illustration on the map annexed to the present Agreement. Article 4 Entry into Force The present Agreement shall enter into force on the date on which the two Governments exchange notifications of their acceptance thereof. IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement. DONE in two originals at Dublin this 28th day of March, 2013

For the Government of Ireland:

Eamon Gilmore

For the Government of the United Kingdom of Great Britain and Northern Ireland:

Dominick Chilcott

14°W

14°W

12°W

12°W

10°W

10°W

8°W

8°W

6°W

0

100 Km

52°N

54°N

56°N

48°N

50°N

52°N

54°N

56°N

2014 Documents 285

50

50°N

6°W

48°N

286 

Document 3 Statement by H.E. Mr. David Donoghue Permanent Representative at the UN Security Council Open Debate: Women, Peace and Security—Sexual Violence in Conflict New York, 25 April 2014 Check against delivery Madame President, Ireland aligns itself with the statements made on behalf of the European Union and on behalf of the Human Security Network. Conflict-related sexual violence is a particularly heinous and barbaric crime. It is undoubtedly under-reported—yet even so, the recent report of the Secretary-General presents an extensive catalogue of crimes ongoing in 20 different country situations. In conflict and in post-conflict settings. With the victims—women and girls; men and boys—invariably from among the most vulnerable in their societies. Since last year’s annual open debate, we have seen further significant normative progress. Resolution 2106 last June addressed impunity and effective justice. Resolution 2122 of last October calls for more consistent implementation of the women, peace and security agenda, with special attention to enhancing women’s participation and leadership. 144 countries endorsed last September’s Declaration of Commitment to End Sexual Violence in Conflict; the UK will continue its leadership on this issue with a global summit which it is convening in June. Rightly, the Secretary-General concludes that, “at the global level, there is now unprecedented commitment and momentum” to address decisively the scourge of sexual violence in conflict. And yet the critical question remains: how can we translate this normative progress into more widespread change on the ground? Madame President, The primary route towards ending sexual violence in conflict is for governments to take national ownership of this issue, national responsibility and national action. The UN and the international community make an important contribution, but transformative change only happens when national political leaders adopt this agenda as their own.

288  The Irish Yearbook of International Law 2014 The Special Representative for Sexual Violence in Conflict, Zainab Hawa Bangura, understands this better than anyone, having added national ownership as a sixth priority of her mission when she assumed her post. The Office of the Special Representative engages in practical conversations with relevant parties, making clearer and more consistent requests of national authorities—and in return offering ready support and capacity building. We hope that through this dialogue the reported cases of modest gains can now be scaled up. The UN generally seeks to be as practical and operational as possible in its approach and we welcome this. For example, there is an increasing focus on training national security sector actors in confronting sexual violence in conflict. There is certainly room to improve the protection afforded women and girls from violence in humanitarian emergencies. Irish Aid, the Irish government’s development cooperation programme, seeks to ensure that the protection of women and girls in emergencies is one of the key criteria in its decisions on humanitarian funding. And over the coming three years we will progressively increase the funding we provide for protection in emergency and recovery contexts. Along with the international community, civil society actors in the countries concerned play a crucial role. The Secretary-General’s Special Envoy for the Great Lakes region, Mary Robinson, is reaching out to women’s groups and civil society in that region. She is building a sustainable constituency that will continue to seek change, that will insist on the importance of ensuring political participation by women and that will continue to hold governments accountable for the commitments they have made. Ireland was happy to be associated yesterday with an event on Burma/Myanmar, which was organised by the NGO Working Group on Women, Peace and Security and which looked at issues around sexual violence in conflict. The Special Representative and a representative of Burmese civil society, Ms Naw K’nyaw Paw participated in the event. A crucial part of Myanmar’s transition to democracy will be to address current and historical human rights abuses, which include crimes of sexual violence. The SecretaryGeneral’s recent report has called for a comprehensive protection and service response for survivors of sexual violence and we wholeheartedly support this. Madame President, We must all strive to be as innovative as we can in terms of incentivising national leaders to adopt the women, peace and security agenda as their own. We must be more ambitious in addressing the root causes of sexual violence in conflict—women’s second-class status and a culture of impunity. And we must seek to promote women’s political and economic empowerment as crucial to the long-term prevention of sexual violence. Only national political ownership in the countries concerned can lead to decisive action to end this scourge. We—the UN family, donors and member states, civil society—must do all that we can to encourage such ownership. Thank you.

Document 4 Guidelines Relating to the Employment of Private Domestic Employees by Accredited Members of the Mission 1

Eligible mission officials (diplomats and career consular officers) may employ a ­“private servant” as defined in Article 1(h) of the Vienna Convention on Diplomatic Relations, namely, “a person who is in the domestic service of a member of the mission and who is not an employee of the sending State”. (Domestic staff employed by the mission are “members of the service staff’ in accordance with Article 1(g) of the Convention). These guidelines also apply to the employment of “private staff’ as defined in Article 1(i) of the Vienna Convention on Consular Relations.

2

Irish nationals, nationals of other EEA countries and Switzerland or permanent residents of Ireland, i.e. persons who have been granted citizenship, long term residence or leave to remain without condition as to time, may be freely employed as private domestic employees, subject to compliance with relevant Irish employment law. Information on employment rights is available on the website of Workplace Relations (www.workplacerelations.ie) including a downloadable publication entitled “Guide to Employment Rights” which is available in 15 languages.

3

Private domestic employees recruited otherwise than in accordance with paragraph 2 are subject to the protections and conditions set down below:

4

Members of missions wishing to employ private domestic employees are expected to demonstrate respect for Irish laws and good employment practice. An agreed undertaking of the terms and conditions of employment, in line with Irish employment law, signed by both the employer and the employee is required prior to arrival in Ireland. Regarding the minimum requirements for such terms and conditions of employment, see the attached template (Annex 1) and visit the Workplace Relations website for up to date information on Irish employment regulations.

5

It is a requirement of Irish law that all employers keep detailed records of the ­starting and finishing times, hours worked each day and each week and leave granted to employees. These records, records of payments and the terms and conditions of employment (as provided for under the Terms of Employment (Information) Act 1994) or contract of employment should be available for review by Workplace ­Relations, at the request of the Department of Foreign Affairs and Trade. The employee must have a bank account in order that proof of payment may be produced if necessary (records should be held for three years). Employees are entitled to receive a pay slip with every payment of wages, which show gross wage (wage before deductions) and the nature and amount of each deduction.

290  The Irish Yearbook of International Law 2014 6

Employers are required to provide for comprehensive health and accident insurance in respect of their private domestic employee and to have such insurance in place for the duration of the employment.

7

Employers should ensure that appropriate social security provisions are made for their employee. In general, only private domestic employees who are EEA/Swiss nationals or Irish residents (as described at paragraph 2 above) are eligible to benefit from the Irish social protection system. All other private domestic employees should be covered by the social security provisions of the sending state or a third state, or in the alternative be covered at a minimum by private health and accident insurance. It is advised that PRSI should not be paid by or in respect of an employee not eligible to benefit from the Irish social protection system.

8

Prospective employees must be over 21 years of age and must not be related to the employer or his/her spouse. Family members will generally not have an entitlement to join the employee in Ireland under the Vienna Conventions, however they may, of course, visit the employee by satisfying the normal immigration requirements.

Application procedure: 9

In order to employ private domestic employees who are not either EEA/Swiss nationals or permanent residents of Ireland, prior authorisation is required. Initial communication in all cases should be to the Department of Foreign Affairs and Trade via the local Irish Embassy (or Honorary Consulate) in the country where the applicant is residing.

10 The application for a private domestic employee to come to Ireland should in all cases be made under cover of a Third Party Note (TPN) (a notification form under Article 10 of the Vienna Convention should only be provided once an application has been approved and the private domestic employee has arrived in Ireland). The TPN should contain the following information: (a) full details of the employee, including name, address and date of birth. (b) confirmation that health and accident insurance for the employee has been arranged; (c) confirmation that the employee’s passport and visa will be in the sole possession of the employee; (d) confirmation that the employer will be responsible for making provision for sufficient funds to enable the employee to return to their country of p ­ ermanent residence after completing their duties and/or after their employment has expired; (e) confirmation that the agreed undertaking has been made available to the employee in a language s/he understands. A signed copy of the agreed undertaking of terms and conditions of employment (see Annex 1) should be attached to the TPN as should a photocopy of the a­ pplicant’s passport information page and any other pages with stamps and/or visas.

2014 Documents 291 11 Once the application has been submitted, the applicant should present to the nearest Irish Embassy by appointment for a brief interview, at which they will be informed of their rights. If an application is deemed to be in order, a TPN confirming the approval of the application for the domestic employee to come to Ireland shall be issued by the relevant Irish Embassy. 12 Visa/entry requirements (a) Where the applicant is from a visa required country, an online visa application should be made as soon as confirmation of approval has been received from the relevant Irish Embassy, in accordance with paragraph 11, at www.inis.gov.visas. ie A successful applicant will be issued with the relevant visa. (b) Where the applicant is from a non visa required country, initial contact with Irish immigration will be on arrival at the airport/port of entry. The applicant will need to be in possession of a copy of the TPN and supporting documents referred to in paragraph 10, and the TPN confirming approval referred to in paragraph 11, to present to the Immigration Officer if requested. 13 Duration of stay and relevant immigration procedures (a) After the private domestic employee has arrived in Ireland, the relevant sending state Embassy must submit the standard notification pursuant to Article 10 of the Vienna Convention to the Department of Foreign Affairs and Trade. The employee must personally collect their ID card at the Department of Foreign Affairs and Trade, Protocol, by appointment. The employee should bring with them their passport, documentary evidence of health and accident insurance as well as proof that they have opened a personal bank account. (b) At the end of the first year, upon request for renewal of ID, the private domestic employee must again personally collect the ID, following contact with the Department of Foreign Affairs and Trade. At this appointment, the employee should bring with them their passport and documentary evidence of health and accident insurance. The employee may also be asked to provide bank statements and payslips as evidence of wages paid. (c) Private domestic employees are expected to leave Ireland on the termination of the posting of their principal. Employment for an incoming principal may only be considered with justifications and there is no guarantee of approval. A request for prior authorisation must be submitted through the Department of Foreign Affairs and Trade. It should be noted that a new Undertaking (see Annex 1) signed by both parties, as well as confirmation that all terms and conditions referred to at paragraph 10 will be complied with, will also be required where such a request is to be considered. (d) Time spent in Ireland as a private domestic employee of a mission official is not reckonable for citizenship/long term residence and is therefore not eligible for an application in that regard, nor does it accrue rights for any benefits or

292  The Irish Yearbook of International Law 2014 allowances on cessation of an assignment of however long the duration except as otherwise determined by relevant Government Departments/State Agencies. (e) A person who has already left Ireland and returned home at the end of their assignment as a private domestic employee may apply for any of the usual immigration permissions (employment permit, study, etc) through normal immigration channels. 14 While in Ireland, domestic employees are advised of the following numbers in case of questions on conditions of employment—Workplace Relations (www.workplacerelations.ie) Telephone (059) 917 8990 Lo-Call 1890 80 80 90. ENDS

Document 5 Statement by the Minister for Foreign Affairs and Trade of Ireland, Mr. Charlie Flanagan, T.D. to UNGA 69, New York, 29 September 2014 Introduction Mr. President, It is my great honour to represent Ireland today in this General Assembly. Regrettably, this gathering comes at a dangerous time in global history. Delegates here represent a world facing many challenges. But these are challenges that can be tackled with unity of purpose and surmounted through strong leadership, especially from this august body, the United Nations. Indeed, the United Nations must be at the vanguard of efforts…..to eradicate terrorism where it flourishes……to preserve the sovereignty of States where it is threatened……and to promote and protect peace and human rights where these ­ essential components of human dignity and human happiness are lacking. In my speech, I will focus on the conflicts that beset the Middle East and Eastern Europe— and I will do so in a way that reflects my country’s foreign policy ethos: —— Firstly, dialogue and compromise as the solution to intractable conflicts between peoples; —— Secondly, respect for the rule of law and solidarity within the international ­community when a democratic State is threatened; —— Thirdly, a strong commitment to peacekeeping while preserving Irish military neutrality; —— Fourthly, the critical importance of development; —— and last but not least, the promotion of human rights—particularly the rights of minorities and of women and girls in this troubled world. —— I will begin by outlining some thoughts on the importance of reform of the UN and its Security Council. Role of the UN; UN and Security Council Reform

294  The Irish Yearbook of International Law 2014 Mr. President, We see a world beset by warfare and terror on many fronts. Heart-rending reports of escalating casualty and refugee numbers, the slaughter of innocents, the suffering of ­children and vulnerable adults in Iraq, Syria, Gaza, Ukraine and many other conflicts dominate the news—on our airwaves, on television news and on the Internet. The people we in this hall represent rightly expect the United Nations to be a source of action. Regrettably, too often, they see an institution that seems hamstrung and stymied in situations where it needs to be decisive and strong. It is not that we lack the necessary instruments. The many achievements of this great organisation amply demonstrate its capacity to act decisively and effectively when the necessary political will is forthcoming. For the UN to meet the manifold, complex and grave challenges that are dominating this year’s General Assembly, the organisation must review its working methods and priorities. Resources must be directed to the areas of greatest need and used with the utmost efficiency. In particular, we must see new approaches to the work of the Security Council—something Ireland and its partners in the Accountability, Coherence and Transparency (ACT) group have been actively promoting. While ultimately, Ireland would like to see the Security Council’s veto power abolished, we strongly welcome the initiative of France, supported by Mexico, to better regulate the use of this power by Permanent Members of the Security Council. Moreover, Ireland supports an increase in the membership of the Security Council to more closely reflect regional balances as well as the current realities of population and economic weight in the world. Middle East Mr. President The challenge of achieving peace in the Middle East remains as great as ever. As Member States, we must do more to assist the United Nations in its vital life-­saving efforts in Syria and the many other humanitarian challenges confronting the wider region. I want to pay particular tribute here to the heroic role of UNRWA and its brave and dedicated staff in Gaza, 11 of whom tragically lost their lives during the recent horrific conflict. We are all indebted to Pierre Krähenbühl and his colleagues for providing an indispensable lifeline to the people of Gaza over many years. Our goal must be to ensure that there is no return to the recurrent cycles of violence which we have witnessed in Gaza and southern Israel on three occasions now, most devastatingly during July and August. Each cycle of violence appears to harden attitudes on both sides of the conflict and yet, ultimately, no one can want peace more than those most directly affected by its absence.

2014 Documents 295 It is widely acknowledged that the achievement of a lasting peace requires that the underlying issues which gave rise to the most recent bout of violence must be definitively addressed. The closures and restrictions which have applied to Gaza for seven long years now must be brought to an end. Equally, there must be assurances for all Israelis and Palestinians that they will not be subjected to indiscriminate violence—whether that violence comes in the form of rocket attacks targeting Israel or retaliatory strikes with devastating consequences for Gaza. It is also now long past time for the attainment of a comprehensive peace between the Israeli and Palestinian peoples. None of us are under any illusions about the difficult and painful compromises that will be involved. In essence, however, I believe that most Israelis and Palestinians recognise that the only true basis for peace and security between them lies in the realisation of a just, negotiated two-State solution. It remains vital that all actions or policies which impede that prospect must be avoided. While there is, at least, a clear vision of the difficult compromises necessary to achieve a lasting peace between the peoples of Israel and Palestine, the situation in neighbouring Syria appears, at this moment, to present an even greater challenge. Over the last three and a half years, nearly 200,000 people have lost their lives at the hands of the State and militant groups in this vicious conflict. Ultimately, the solution to Syria’s civil war is not a military one. I strenuously urge all in the international community to fully support Special Envoy di Mistura in his efforts to promote a political settlement based on the principles of the June 2012 Geneva communiqué. The flagrant violation of international law by all sides in the Syrian conflict must be confronted and referred to the International Criminal Court. All sides, particularly the Assad regime, must comply with their obligations under Security Council Resolutions 2165 and 2139, and end their obstruction of vital humanitarian efforts and such obscenities as besieging communities and attempting to starve them into submission. The growth of extremism which we are now witnessing across the region is a cause of significant concern and one which I know is shared by everyone in this room. The bloodlust and inhumanity which ISIS is displaying in Syria and Iraq has shocked and appalled all civilised people. The destruction and displacement of the ancient C ­ hristian communities of Northern Iraq has been harrowing to witness. The gratuitous and almost casual approach to that most gruesome form of murder—beheading;……the barbaric sexual violence perpetrated against women and girls;……the base corruption of placing military weapons into the hands of children;….the scapegoating of people based on their ethnicity or religion—whether Christian, Yazidi, Kurdish, Sunni, Shia or Jewish; …..all of this, taken together, harks back to a mentality and a culture that we thought had long been consigned to history. The rise of ISIS, the continued activities of Al Qaeda, the growing strength of Boko Haram…make clear that there is no room for complacency among the international community when it comes to the growth of extremism. We must unite and mobilise to confront this threat and we must do so with a real sense of urgency.

296  The Irish Yearbook of International Law 2014 Ukraine Mr. President, Ukraine is the most dangerous political crisis to occur in Europe for several decades. The situation there has profound implications for the viability and future of an international system that upholds the rule of law. The actions of the Russian Federation, first in Crimea, and then in Eastern Ukraine, clearly contravene a wide range of international agreements. We should remember first and foremost the deplorable violence that has been inflicted on innocent civilians in Ukraine over many months and the serious humanitarian crisis that has ensued. There can be no military solution to this crisis. We firmly support the path of d ­ iplomatic dialogue and welcome President Poroshenko’s peace plan. We were encouraged by the Minsk agreement earlier this month within the framework of the Contact Group. A ­sustainable political solution must be based on the principle of respect for Ukraine’s ­sovereignty and with clear guarantees on border security, disarmament of all illegal groups and the withdrawal of foreign forces. Peacekeeping and Peace Building Mr. President, Ireland has a proud tradition of involvement in UN peacekeeping missions all over the world, beginning in 1958. Our troops have made an important contribution to international peace and stability; 82 of them have made the ultimate sacrifice. I take this opportunity to recall and salute all those who have fallen in UN peacekeeping operations since this Assembly last met. Today, some 370 Irish men and women are serving on UN peacekeeping duties, the majority in the Middle East. The environment in which they serve has become increasingly complex and challenging. Like the Department for Peacekeeping Operations we attach a very high priority to the safety and security of our personnel. I warmly welcome the Secretary General’s announcement that there will be a review of UN peacekeeping. This should ensure that the UN retains the capacity to promote peace and stability internationally. Mr. President, please be assured that Irish men and women will continue to wear the blue beret with pride in service of the UN and in pursuit of a better world. Last week, at the UN Peacekeeping Summit hosted by Secretary General Ban and US Vice-President Joe Biden, I was pleased to announce an initiative by my Government to deliver a new programme to train African peace-keepers. The training will include a specific focus on areas including protection of civilians, gender sensitivity, human rights and leadership training and logistics.

2014 Documents 297 Full and equal participation by women is another essential component in building peaceful, stable societies. Women are key agents of change and must be full protagonists in our ongoing global story. Political will is a crucial element of driving women’s empowerment and gender equality forward. Security Council Resolution 1325 was a milestone in recognising this reality and the subsequent Resolutions, most recently Resolution 2122, demonstrate our resolve to pursue the goal of full and empowered participation by women in political processes. This UN agenda includes a welcome and necessary increase in focus on tackling the scourge of sexual violence in armed conflict. But we must translate our global commitments into concrete actions. Achieving real gender equality requires a commitment from all of us here—men and women. It is a commitment that Ireland is proud to have made and next January we will launch our second National Action Plan on Women, Peace and Security. This is just part of our ongoing commitment towards ensuring that women and girls can reach their full potential, live a life free from fear, and fully take their place at the decision-making table. Development and Post 2015 Mr. President, The global threat posed by the spread of Ebola in West Africa is a reminder that not all the challenges we face are manmade. Ireland is active in addressing this epidemic in Liberia and Sierra Leone. Resolution 2177, sponsored by 130 Member States indicates the seriousness with which the world regards this problem and the need for urgent action by the UN. 2015 will be a critical year in the fight to end extreme poverty and hunger. We have 15 months to maximise progress under the Millennium Development Goals and 12 months to negotiate a new framework for international development. This new framework must mark an important shift to sustainable development, with clear and ambitious targets which can end extreme poverty, hunger and malnutrition in a single generation. Ireland plays and will continue to play its part at the UN and with our partners on the ground. We have focused sharply on the continuing scandals of hunger, child stunting and maternal mortality in a world of plenty. I am pleased that last week, the Human Rights Council adopted a resolution led by Ireland on the Preventable Mortality and Morbidity of children under five. It is deplorable that some 6.6 million children under five die annually, mainly from preventable and treatable causes. Ireland is working with its partners in Africa on the devastating impact of climate change, especially on smallholder agriculture, and last week we joined the Alliance for Climate Smart Agriculture. On Thursday, I co-hosted a meeting here at the UN to support the Secretary General’s Zero Hunger Challenge. And days earlier, in Dublin, UNICEF ­Ireland brought to me the voices of Ireland’s young people calling on us to strengthen our efforts and reminding me, in their words, “It’s About Us”. Ireland’s commitment to a more equal, inclusive and sustainable future for the world’s children is demonstrated in practice through our development programme, and our work with our partners in subSaharan Africa. And, despite the extremely difficult economic circumstances of recent years, we are proud that we have stabilised funding for the aid programme. The fight to end poverty and hunger will remain a central tenet of our foreign policy.

298  The Irish Yearbook of International Law 2014 Human Rights Mr. President, Recent events worldwide have demonstrated that human rights and fundamental ­freedoms continue to be violated and threatened, particularly in times of conflict. In many parts of the world today, brave women and men seek to highlight and address abuses of human rights, and to stand up for those who are oppressed or are without voice; I salute the courage of these human rights defenders and pledge that Ireland will continue to work for decisive UN and EU action to support them. As a member of the Human Rights Council, Ireland has sought to highlight the important contribution of civil society to advancing human rights and building democratic societies. Last week, the Council adopted, by consensus, a significant resolution led by Ireland calling on States to create and maintain a safe and enabling environment in which civil society can operate. We strongly condemn all forms of persecution or discrimination based on religion or belief. The persecution of Christians and other minorities in the Middle East and the recent rise of anti-Semitic attacks, particularly in a number of European countries, are causes of grave concern for me. Too often throughout history, the world has looked the other way when vulnerable minorities were being targeted, often as a prelude to a more serious conflict. On a more positive note, as a former Minister for Children and Youth Affairs, I felt ­particularly honoured last week to ratify the 3rd Optional Protocol to the Convention on the Rights of the Child, reaffirming my Government’s commitment to the protection and promotion of the rights of children in Ireland. Conclusion Mr President, In conclusion, I believe that at its most effective this great organisation, the United Nations, is a force for good in the world and has much untapped potential. The undoubted achievements in areas such as peace-keeping, conflict resolution, development and humanitarian action, to which Ireland is proud to contribute, should renew our faith in our collective ability and inspire us to meet the challenges which confront us now and which lie ahead. Thank You.

Document 6 Statement by Mr. James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 69th Session Agenda Item 78: The Report of the International Law Commission on the Work of its 66th Session PART 2—Ch VI (Obligation to Extradite or Prosecute), Ch VII (Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties), Ch VIII (Protection of the Atmosphere) and Ch IX (Immunity of State Officials from Foreign Criminal Jurisdiction) New York, 31 October 2014 Check against delivery Mr Chair, Thank you for the opportunity to comment on the second cluster of issues contained in the ILC’s report. I will speak today on three topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties, immunity of state officials from foreign criminal jurisdiction and extradite or prosecute. A fuller version of my ­delegation’s views will be submitted in writing to the Secretariat. Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties 1.

Regarding the topic “Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties”, Ireland thanks the Special Rapporteur, Mr. Georg Nolte, for his comprehensive and detailed second report, which we found to be most informative, as well as for his six draft conclusions. We also thank the Drafting Committee for their careful and precise consideration of these draft conclusions. We very much welcome the five draft articles provisionally adopted by the Commission, and the commentaries thereto, and would like to offer the following observations.

300  The Irish Yearbook of International Law 2014 2.

My delegation supports the decision to distinguish between subsequent practice under Articles 31 and 32 of the Vienna Convention respectively, by including separate paragraphs within each of draft Conclusions 6, 7 and 8 dealing exclusively with subsequent practice under Article 32, while at the same time making clear in the commentary that this is not to be taken to call into question the unity of the process of interpretation.

3.

We note that, as explained in paragraph (19) of the commentary, the final sentence in paragraph (1) of draft Conclusion 6 is merely illustrative. We would suggest that this may be made clearer in the text of the draft article by including the words “for example” after the words “This is not normally the case”. Without an indication in the draft conclusion that the two instances referred to are illustrative and nonexhaustive, there may be a risk that this final sentence is read as a more definitive statement, and that an exaggerated importance may be conferred on these two examples.

4.

We would wish to consider further the statement in paragraph (3) of draft Conclusion 7 that “The possibility of amending or modifying a treaty by subsequent practice of the parties has not been generally recognised”, which the Chairman of the Drafting Committee has described as a descriptive rather than a normative proposition. The commentary to the paragraph makes clear this is a complex question, noting, for example, that the case law of the European Court of Human Rights suggests that a treaty may permit the subsequent practice of the parties to have a modifying effect, and suggesting that “ultimately, much depends on the treaty or the treaty provisions concerned”. We wonder whether the conclusion summarised in paragraph (35) of the commentary is fully reflected in paragraph (3) of draft Conclusion 7.

5.

My delegation supports the reformulation of draft Conclusion 8. In particular, we tend to agree with the view that the use of the formula, “common, concordant and consistent” posed a potential danger of being understood in an overly prescriptive manner. The commentary to this draft article highlights the various factors involved, and is particularly helpful in providing what the Chairman of the Drafting Committee describes as “practice pointers to assist the interpreter in his or her endeavours”.

6.

Regarding draft Conclusion 9, we wonder whether, through a slight drafting amendment, the meaning of the final sentence might be made clearer. The use of the word “though” at the beginning of the sentence might appear to suggest some conditionality or contingency. It would seem that the intent of the sentence, as described in paragraph (9) of the commentary, might be captured by stating, for example, that: “Such an agreement need not be legally binding in order for it to be taken into account”.

7.

Finally, regarding draft Conclusion 10, we would query the inclusion of the final sentence in paragraph (2). We find this sentence to be potentially confusing in this context and would suggest that it might better be addressed in the commentary. Similarly, while understanding the intention, we find the inclusion of the reference to

2014 Documents 301 “including by consensus” in paragraph (3) to be slightly unclear and would suggest that it might either be dealt with in the commentary alone, or clarified by way of a drafting amendment. Immunity of State Officials from Foreign Criminal Jurisdiction 8.

Turning the topic, “Immunity of State Officials from Foreign Criminal ­Jurisdiction”, my delegation commends the Special Rapporteur, Ms ConceptiÓn Escobar ­Hernández, on her excellent third report and welcomes the valuable work of the Drafting Committee in contributing to the production of the further two draft ­articles, namely draft Article 2(e), which defines the term “State official”, and draft Article 5, which sets out the subjective scope of immunity ratione materiae.

9.

It is noted at the outset that there are natural limits to what extent these new draft articles can be analysed at this juncture, due to the fact that both provisions will interrelate significantly with the provisions dealing with the material and temporal scope of immunity ratione materiae, which have yet to be developed. We would ask that our comments on these two draft articles be considered with this caveat in mind.

Mr Chair, 10. In Ireland’s statement to the Sixth Committee on this topic in 2012, we supported the inclusion of a definition of “State official” in the draft articles, and so we warmly welcome the new draft Article 2(e). 11. Ireland agrees with the use of the term “State official” in favour of the alternatives considered by the Special Rapporteur and the Drafting Committee, in particular “State organ”. Our own understanding of the term “State organ” would be that it is more naturally applicable to inanimate entities rather than human persons. We would acknowledge the Special Rapporteur’s reservations with the term “official” on the grounds that the term is predominantly associated with those who serve in administrative as opposed to political or other State roles. Nonetheless, it would appear to be the best of the generic terms available to us to identify the subjective scope of immunity ratione materiae. 12. We recognise that the definition of “State official” needs to be broad, in order to cover the wide range of individuals who may enjoy immunity. However, we would query whether the definition proposed in draft Article 2(e) may be overly broad. Any individual who “represents the State” or who exercises “state functions” is a State official according to the draft definition. These terms are themselves very broad and may themselves require to be further defined. 13. Turning to draft Article 5, Ireland is satisfied that this provision provides an accurate general statement on the subjective scope of immunity ratione materiae. 14. We look forward to further discussions on these issues we have raised and on other issues related to this important topic.

302  The Irish Yearbook of International Law 2014 The Obligation to Extradite or Prosecute 15. Finally, Mr. Chair, we note with appreciation the conclusion of the Commission’s work on the topic of “Extradite or Prosecute” and we thank it, and the Working Group under the chairmanship of Mr. Kriangsak Kittichaisaree in particular, for the very useful final report, which will undoubtedly serve as a valuable resource for any future consideration of this area by relevant national authorities and others. 16. On previous occasions, Ireland has suggested that the Sixth Committee’s ongoing consideration of the “Scope and Application of the Principle of Universal Jurisdiction” would benefit from the technical expertise of the Commission. In the debate on that item at this year’s Session, it was notable that many delegations drew a connection between universal jurisdiction and the obligation to extradite or prosecute. We would express the hope that the Commission’s conclusion of its work on the latter topic will not lessen the likelihood of it making a contribution to the consideration of Universal Jurisdiction. Thank you, Mr. Chair.

Document 7 Statement by H.E. Mr. David Donoghue Permanent Representative at the UN Security Council Open Debate on Women, Peace and Security New York, 28 October 2014 Check against delivery Madam President, Ireland commends you for organising today’s debate and its particular focus on refugee and displaced women and girls. Ireland aligns itself with the statement made on behalf of the European Union and that of Austria on behalf of the Human Security Network. We welcome today’s Presidential Statement which recognises the heightened risks faced by refugee and internally displaced women and girls. Madam President, This debate could not be more timely. Today, as a result of the proliferation of crises and protracted conflicts, we are confronted with the highest number of refugees, asylumseekers and internally displaced persons since the end of the Second World War with more than 51 million affected. If this number represented a country, Madam President, it would be greater than the population of Argentina and would be approaching that of the Republic of Korea. It is a simple fact that the majority of this vast wave of dislocated humanity comprises women and girls. It is also a fact that they face multiple forms of discrimination and violations. Madam President, In Syria we have witnessed the largest one year refugee exodus since the Rwandan ­genocide 20 years ago with almost a third of the country on the move involuntarily. In South Sudan, where more than 1 million displaced people are surviving in dire ­conditions, the SRSG on Sexual Violence in Conflict, Madam Bangura attested to the “unimaginable living conditions, acute day-to-day protection concerns and rampant sexual violence” in the country. One survivor told her that “It’s not just about rape—it is to break your dignity”.

304  The Irish Yearbook of International Law 2014 Madam President, We know that the numbers are increasing manifold and the specific threats of conflict on women and girls present themselves in some very old ways and also in new and disturbing ones. But it is to be welcomed that today’s debate takes full account of Resolution 2122 and moves away from a narrow view of women as victims of their circumstance, and looks to discuss ways that they are often leaders within their communities, who must be politically, socially and economically empowered. The emphasis in today’s Presidential Statement on the need to ensure the full and meaningful participation of women and girls throughout all stages of the displacement cycle is welcomed. But there is quite evidently a significant gap in implementation, as the most recent report of the Secretary-General outlines, and there is a need to link the WPS agenda to other policy frameworks. The yardstick for change lies at the level of implementation and the challenge before us is to translate political commitments into real, positive improvements in the lives of women and girls affected by armed conflict. Madam President, In addition to confronting sexual violence in conflict, there is also a need to improve the protection afforded to women and girls in humanitarian emergencies. The protection of women and girls is one of the key criteria in our decisions on humanitarian funding, including in programmes of support to displaced persons. Our National Action Plan on Resolution 1325, which is currently being updated, also prioritises empowerment and access to services of refugee and asylum-seeking women in Ireland. At the last open debate on WPS in April, Ireland supported a discussion with Madam Bangura and a representative of civil society and former refugee, Ms Naw K’nyaw Paw. Fleeing persecution Ms K’nyaw Paw’s family joined 110,000 Karen people now living in refugee camps that run the length of the Thai-Myanmar border. In line with Resolution 2122 we must step up efforts to support her leadership and that of thousands like her. We must listen to, invest in, and build the capacity of individual women and of women-led civil society organisations to ensure durable solutions. Madam President, Throughout the WPS agenda, the lack of a clear evidence base remains a challenge. Greater access to data is the only way by which we can truly assess progress and identify barriers to implementation. Ireland supports the increased use of sex and age-disaggregated data in the design and implementation of programmes. Evidence shows us that gender markers contribute to better planning and understanding of how the WPS agenda is funded. We know this from having participated in an assessment of the IASC Gender Marker. Ireland welcomes the Secretary General’s recent report which suggests this Council request data and analysis on the situation of women and girls on a more frequent basis. We also welcome the call by this Council in today’s Presidential Statement for more systematic collection, analysis and utilisation of sex and age-disaggregated data.

2014 Documents 305 Madam President, The Arms Trade Treaty is the first legally binding, international agreement adopted by the UN General Assembly to regulate international transfers of conventional weapons and ammunition. It has been ratified by 80% of the members of this Council and is also the first treaty to recognise the links between the international arms trade and genderbased violence. Both of these firsts signify meaningful advancement for international humanitarian law, human rights, and peace and security. As one of the Treaty’s strongest supporters we look forward to its coming into force within a number of weeks. However, we need to ensure gender criteria and related commitments are given full attention in its implementation. Madam President, As we look towards the High-Level Review of Resolution 1325 next year, we must fully grasp this opportunity to assess just how much we have achieved in the last 15 years; take stock of where we have been impactful; review trends; fill knowledge gaps; critically examine persistent and emerging challenges and capture lessons learned and good practices across all regions. Last month, Ireland was delighted to co-host the launch of the Global Study to review Resolution 1325 and we will continue to support the Study over the coming months. In conclusion, Madam President, we need to move beyond mere potential and opportunity and effect real change in the lives of women and girls. We need more consistent and systematic application of Resolution 1325 and its subsequent resolutions. We need to be ambitious in driving local ownership and in addressing the root causes of why women and girls are so disproportionately affected by conflict. And we need to ensure that women are fully and effectively empowered as key stakeholders in the prevention and resolution of conflict. Thank you.

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Document 8 Statement by Mr. Tim Mawe Deputy Permanent Representative at the UN Security Council Open Debate on Working Methods New York, 23 October 2014 Check against delivery Madame President, Ireland commends Argentina for organising today’s debate and for its effective chairing of the Informal Working Group on Documentation. The group has been particularly active this past year with the adoption of five Presidential Notes. Ireland aligns itself with the comprehensive statement delivered by Switzerland on behalf of the 23 members of the ACT group. Today, Ireland wishes to highlight three key aspects of working methods which we believe are of particular importance to the effectiveness of the Security Council: Sharpening the Council’s preventive role; the use of the veto, and strengthening engagement with troop and police contributing countries to peacekeeping operations. Madame President, For us, it is clear that the Council needs to enhance its preventive capacities and needs to be alerted as early as possible to potential crises, so that appropriate action can be taken. Current experience reveals a Council that frequently finds itself responding to crises in an incremental manner, escalating the tools at its disposal as situations deteriorate. Better outcomes can be achieved where the Council’s tools are utilized much earlier. There have been a number of practical initiatives aimed at strengthening the Council’s preventive role, including the establishment of the Ad Hoc Working Group on ­Conflict Prevention in Africa, the introduction of “horizon-scanning” briefings and, more recently, increased use of informal discussions with the Department of Political Affairs, as well as the use of “Any Other Business” to raise emerging issues of concern. Ireland welcomes these initiatives as well as the adoption of UN Security Council ­Resolution 2171 on 21 August which strengthens existing acquis on the Council’s ­preventive role. But more needs to be done to develop a genuine “culture of prevention”. Innovative ­formats such as Arria formula meetings can trigger fresh thinking on the dynamics to a

308  The Irish Yearbook of International Law 2014 conflict and inform the necessary response. We saw this recently in the case of the Central African Republic and we welcome the growing transparency and interactivity by the Council in holding these meetings. We also welcome the suggestion by former High Commissioner for Human Rights, Navi Pillay, at the August open debate on conflict prevention that her successor would regularly and routinely provide an informal briefing to Council members on situations of concern in order to strengthen early warning. Madame President, Ireland believes that the unfettered use of veto rights by Permanent Council members inhibits the effectiveness of the Council and needs to be reconsidered. The veto is not and cannot be viewed as a privilege but rather it brings particular duties and a special responsibility to resolve conflict. Ireland welcomes the initiative by France for a voluntary code of conduct on the use of the veto in mass atrocity situations. Ireland encourages Permanent Members to agree to a Statement of Principles on a voluntary code of conduct by the 70th anniversary of the UN next year. Finally, Madame President, as a significant peacekeeping troop contributor, we are strongly of the view that a dynamic, interactive and meaningful partnership between Council members, the Secretariat and TCCs / PCCs is of benefit to all. Presidential Note 630 adopted this time last year joined a substantial existing acquis on peacekeeping working methods which go a significant way to enhancing the quality of the interaction and consultation with troop and police contributors. The main challenge now is implementation and we commend efforts which seek to strengthen this triangular relationship. Madame President, All UN member states have a legitimate stake in how the Security Council is run; the Council was established, after all, “to ensure prompt and effective action” on behalf of the full membership. On conflict prevention, and across a broad range of topics, Ireland, together with the ACT group, will continue to work for constructive and cooperative engagement with Council members. We all have an interest in taking practical steps to improve the way in which the Council does its business and which enhances its effectiveness. Thank you.

Document 9 Statement by Mr. James Kingston Legal Adviser Department of Foreign Affairs and Trade at the Sixth Committee United Nations General Assembly 69th Session Agenda Item 78: The Report of the International Law Commission on the Work of its 66th Session PART 1—Chs I–III (Introduction, Summary of Work, Specific Issues), Ch IV (Expulsion of Aliens), Ch V (Protection of Persons in the Event of Disasters) and Ch XIV (Other Decisions) New York, 27 October 2014 Check against delivery Mr. Chair 1.

At the outset, the Irish delegation thanks the Commission for the report of its Sixty-sixth Session and commends the considerable progress made. I will first make a brief comment on the topic “Expulsion of Aliens” and my remarks will then focus on the topic of the “Protection of Persons in the Event of Disasters”. I will conclude with some observations on the Introductory and “Other Decisions” chapters, including addressing some of the specific questions posed by the Commission. Ireland aligns itself with the statement on behalf of the European Union made earlier in this debate.

Ch IV—Expulsion of Aliens Mr. Chair 2.

Turning to the topic of “Expulsion of Aliens”, Ireland expresses its gratitude to the Commission and, in particular, to Special Rapporteur Mr. Maurice Kamto, for its work on this topic ever since 2005. While the draft articles in many instances provide useful guidance to states, we do not favour using them as the basis from which to elaborate a convention on the topic.

310  The Irish Yearbook of International Law 2014 Chapter V—Protection of Persons in the Event of Disasters 3.

Turning first to the topic of “Protection of Persons in the Event of Disasters”, we congratulate the Commission and Special Rapporteur, Mr. Eduardo Valencia Ospina, on the adoption of a complete set of 21 draft articles, together with detailed commentaries thereto. We commend the carefully calibrated approach taken in the draft articles, both as regards balancing the sovereignty of the affected state with the need for international cooperation, as well as balancing a rights based and a needs based approach to the topic. We support the formulation that has been adopted, which emphasises the importance of a response which adequately and effectively meets the needs of the persons affected, in a manner which fully respects the rights of such persons.

4.

Ireland supports the clarification in paragraph (3) of the commentary to draft Article 1 that the scope ratione personae of the draft articles is limited to natural persons affected by disasters. We note that the commentary to draft Article 1 confirms that the draft articles are not limited ratione loci to activities in the arena of the disaster, but also cover those within assisting states and transit states. As previously expressed, my delegation would see merit in a provision within the draft articles dealing specifically with transit states. We continue to feel that the commentaries to draft Article 1 would benefit from a brief explanation of the term “society” as used in the qualifier, “serious disruption of the functioning of society”. Whilst appreciating that a degree of flexibility needs to be maintained, my delegation considers that without further explanation, possibly by way of an example, this aspect of the qualifier may be the cause of some uncertainty.

5.

My delegation welcomes the definitions provided in draft Article 4 and, in p ­ articular, welcomes the extension of the definition of “affected State” to include the State under whose jurisdiction or control persons, property or the environment are affected by a disaster. In this regard, we find the explanation in the commentary as to the relationship between this definition and paragraph (1) of draft Article 12 to be particularly useful.

6.

As previously stated, Ireland has no difficulty with the general reference in draft Article 8 to a duty to cooperate “as appropriate”, on the understanding that this is not intended to go beyond the concept as established in customary international law. This limitation could, we feel, be made more explicit in the draft commentary to the article, perhaps in paragraph (6) thereof. Given their central role, we welcome the reference to the International Federation of the Red Cross and Red Crescent Society and the International Committee of the Red Cross in draft Article 8.

7.

For the sake of completeness, we would suggest that paragraph (2) of draft Article 14 might also include a reference to withdrawal of consent, such that consent to external assistance shall not be withheld or withdrawn arbitrarily.

8.

My delegation very much welcomes the requirement in draft Article 15, that any conditions imposed on the provision of external assistance shall take into account the identified needs of the persons affected and the quality of the assistance. We are supportive of paragraph (8) of the commentary, which notes that whilst no

2014 Documents   311 set ­procedure is predetermined, there must be a process by which needs are made known, which can take the form of a needs assessment, preferably in consultation with assisting actors. Similarly, in relation to draft Article 19, we place importance on the statement in paragraph (5) of the commentary that decisions regarding the termination of assistance are to be made taking into consideration the needs of the persons affected, namely, whether and how far such needs have been met. 9.

Regarding draft Article 21, we maintain our preference for a “without prejudice” clause as regards the relationship to international humanitarian law. We support the decision to omit the proposed draft Article 19, on the relationship to the UN ­Charter, as we consider such a clause to be unnecessary.

Other Decisions and conclusions 10. Turning, finally, to other decisions of the Commission during its 66th Session, ­Ireland takes note of the fact that the topic “Crimes Against Humanity” has been added to the Commission’s programme of work and congratulates Mr. Sean ­Murphy on his appointment as Special Rapporteur. 11. Ireland shares the concern expressed by other delegations that there is a lacuna in the area of operational tools in relation to the prosecution of international atrocity crimes, and, for that reason, supports the international initiative towards the development of a Multilateral Treaty for Mutual Legal Assistance and Extradition in Domestic Prosecution of Atrocity Crimes. We view such an instrument as providing a necessary tool to facilitate the domestic prosecution of these crimes and would not wish to see the work of the Commission on the topic of Crimes Against Humanity detract from this initiative. 12. In response to the questions posed in chapter 2, in order to implement the Rome Statute, Ireland introduced the International Criminal Court Act 2006, which criminalises “crimes against humanity” as defined within the Statute. The Act ensures that Ireland may exercise jurisdiction in relation to crimes against humanity in the event that such crimes are committed in Ireland or, indeed, in the event that such crimes are committed by Irish nationals outside of Ireland. To date, there have been no cases before the Irish courts in relation to such crimes. 13. We look forward to the first report of the Special Rapporteur on this topic. Mr Chair, 14. My delegation welcomes the decision to include “Jus Cogens” in the Commission’s long-term programme of work, and thanks Mr. Dire Tladi for his proposal and for the detailed and illuminating syllabus to the topic, contained in the annex to this year’s report. We agree with the view that “questions relating to sources lie at the heart of international law”, and for the reasons explained in the syllabus, we agree that it is now timely for the Commission continue its strong tradition of engaging with, and promoting acceptance of jus cogens, by a comprehensive examination of the concept as a topic in and of itself. This work should usefully

312  The Irish Yearbook of International Law 2014 bring together different strands from the Commission’s earlier work, including the Vienna C ­ onvention on the Law of Treaties, the Articles on State Responsibility and the report of the Study Group on the Fragmentation of International Law. Ireland supports the list of legal issues which have been identified, which should provide an appropriate framework from which to proceed. The Commission’s work will help to elucidate what is—and equally importantly what is not—encompassed within the concept of jus cogens. In my delegation’s view, it would at this stage be premature to take a view on any future outcome of the Commission’s consideration of this topic. 15. As a final remark, we wish to commend the Working-Group on the Long-Term ­Programme of Work for its initiative in instigating a systematic review of the ­Commission’s work and a consideration of the 1996 illustrative scheme of topics. We very much look forward to receiving the Secretariat’s survey by the end of the present quinquennium. Thank you Mr Chair.