The Irish Yearbook of International Law Volume 4-5, 2009-10 9781472566034, 9781849464208

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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, Under-Secretary for Legal Affairs and UN Legal Counsel Editors-in-Chief Dr Fiona de Londras, University College Dublin Professor Siobhán Mullally, University College Cork Editorial Board Dr Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Professor Imelda Maher, University College Dublin Professor Michael O’Flaherty, University of Nottingham and Northern Irish Human Rights Commission Professor Gerard Quinn, National University of Ireland, Galway Professor William Schabas, National University of Ireland, Galway and Middlesex University Correspondents Dr Alan Brady: Irish Practice in International Law Dr Ronán Long: Irish Practice on the Law of the Sea Mr Stephen Coutts: Ireland and the European Union Dr Darren O’Donovan: Human Rights in Ireland Prof. Brice Dickson: Human Rights in Northern Ireland

Book Reviews Editor Dr Fiona de Londras, University College Dublin

EDITORIAL

EDITORIAL Irish Yearbook of International Law 2009 and 2010 Fiona de Londras and Siobhán Mullally The publication of this double issue of the Irish Yearbook of International Law once more provides a location for the publication of peer reviewed work on international law, whether public or private, together with documents and reports on Irish state practice in international law. Yearbooks of international law play an important role in analysing state practice and opinio juris and it is fitting that Ireland, having played an active role in the progressive development of international law and of international institutions, should have a dedicated Yearbook of its own. The years under consideration in this volume - 2009 and 2010 - were dominated in both domestic and international legal discourse by the financial crisis and the seismic shock that it delivered to international institutions, both formal (the IMF, European Union and so on) and informal (markets, ratings agencies). The correspondent report on Ireland and the European Union included in this volume outlines the agreement entered into between Ireland the ‘Troika’ of the European Union, European Central Bank and International Monetary Fund in 2010. The agreement itself is included in the Documents section of this volume, given its significant implications for the implementation of international norms in Ireland (either through legislation or through the cultivation of strong domestic institutions including human rights institutions), and for Ireland’s capacity to fulfil its international obligations. As noted in the correspondent report on Irish state practice in international law in this volume, the net amount of Ireland’s foreign aid budget was reduced in 2009 and 2010 due to budgetary shortfalls, although Irish Aid funding remained at 0.52% of GDP and was praised by the OECD. In addition, Ireland made numerous ad hoc contributions in situations of extreme humanitarian exigency. As outlined in the speech from the then Minister for State for Overseas Development, Peter Power, which is included in the Documents section of this issue, Ireland remains committed

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to the fulfilment of the Millennium Development Goals, despite the global financial crisis and the imposition of a series of austerity measures at domestic level. Ireland’s long-standing commitment to engaging in peace operations validated through the triple lock of Cabinet, Dáil and UN sanction, remained in evidence during 2009 and 2010. During this time, Irish forces served in a variety of peacekeeping and peace-making operations, particularly notable among which was the leading role played by Ireland in the peace operations in Chad, reviewed and analysed by Murphy in this volume. Irish involvement in Chad came to an end because of the lack of a renewed mandate from the United Nations, given rise to significant challenges both for the UN and for Irish involvement in the operation. During the period under review Irish troops also withdrew from Kosovo where Ireland had a long-standing presence under the NATO/Partnership for Peace KFOR mission. Withdrawal from Kosovo came about primarily as a result of economic and political considerations at both domestic and international levels, and reflects a significant transition in the governance of Kosovo and its international status. During 2009 and 2010, Ireland’s commitment to acting through multilateral decision-making and international institutions was reinforced through the state’s expression of support for the reform and consolidation of the United Nations, continuing support for responses to humanitarian crises through UN and EU involvement, and for the further progressive development of the Responsibility to Protect doctrine in international law. These core elements of contemporary Irish practice in international law were communicated by the then Minister for Foreign Affairs, Mr Micheál Martin T.D., in his address to the opening session of the 65th General Assembly of the United Nations. Ireland’s commitment to more discrete international institutions was also reinforced by the state’s involvement in major international conferences to strengthen and secure the future of the European Court of Human Rights (the Interlaken conference) and the International Criminal Court (the Kampala meeting). As in previous years, Ireland continued to play a prominent role in the practice and development of international law of the sea in 2009 and 2010. 2010 marked significant progress in the implementation of the Good Friday agreement and in post-conflict reconstruction in Northern Ireland. The process of devolution in Northern Ireland was essentially completed when responsibility for criminal justice and policing was devolved to Stormont. Although the formal process xiv

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of devolved government has now stabilised in Northern Ireland (particularly as the Northern Assembly went on to complete its first full term in 2011), the broader process of building peace continues. In Dickson’s correspondent report on Human Rights in Northern Ireland in this volume, the continuing high rate of criminal violence experienced in Northern Ireland, together with ongoing difficulties in securing the safety of journalists and effectively ‘Dealing with the Past’, are highlighted. Together with the Correspondents’ Reports and Documents sections, this volume of the Yearbook features article-length contributions that variously address specifically Irish questions relating to international law, broader theoretical and practical considerations in international law, and document important but underexplored elements of Ireland’s contribution to the development of international norms. Ireland has a long tradition of engagement with and leadership in international law. This tradition comprises not only state practice, but also the emergence from this island of important figures whose scholarship, activism and other work have made significant contributions to international development. Two such figures sadly passed away in the period under consideration in this issue: Dr. Patrick Rice and Prof. Kevin Boyle. Both made significant contributions to international human rights standard setting and practice, particularly in the areas of forced disappearances and religious freedom. Dr Rice’s activism and unstinting advocacy in the field of post-conflict justice continues to be recognised in the ongoing work relating to the implementation and development of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance, signed by Ireland on 29 March 2007, but not yet ratified. A fitting tribute to Dr Rice’s legacy would be the ratification and full implementation of the Convention by the Irish Government without further delay. Professor Kevin Boyle’s significant contribution to the field of human rights law included establishing the Irish Centre for Human Rights at NUI Galway and pioneering research, teaching and strategic litigation before the European Court of Human Rights, at the Human Rights Centre, University of Essex. Both have left a significant

legacy

for

Ireland’s

community

of

international

lawyers.

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POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD

Post-UN Withdrawal: An Assessment of Peacekeeping in Chad Ray Murphy*

[I]n Darfur, in north-south Sudan, in the Democratic Republic of the Congo and in Chad, scale and politics multiply the challenges and dilemmas that peacekeepers face. Across vast terrains and amidst ongoing conflict, the UN is called upon to protect civilians and provide stability, often without critical capabilities at hand. The political processes that these missions accompany are troubled, stalled or simply absent, and in some cases missions operate with limited consent from key parties on the ground.1

Recent international peacekeeping efforts in Chad and the Central African Republic (CAR) are a consequence of the long-term unstable situation in both countries and the region as a whole. The conflict in Darfur has been a destabilising factor and the combined effect of the overall insecurity has created a humanitarian crisis that exacerbated tensions among the region’s communities.2 The deployment of parallel UN and European Union peace operations to Chad and CAR’s borders with Sudan in 2008 was reported to have done little to improve the overall security and humanitarian situation in both countries.3 The security situation in the eastern part of Chad and parts of the CAR did not improve significantly during 2010. Despite this, the mission of the UN peacekeeping force, MINURCAT4, was revised in early 2010 as a prelude to withdrawal.5

* Prof. Ray Murphy, Irish Centre for Human Rights, School of Law, NUI Galway, Ireland. 1 UN, A New Partnership Agenda, Charting a New Horizon for UN Peacekeeping (New York, UN Department of Peacekeeping Operations and Department of Field Support, 2009) iii. 2 See: www.un.org/en/peacekeeping/missions/minurcat/background.shtml. See also L Ploch, Instability in Chad, CRS Report for Congress, Congressional Research Service 7-5700, 25 January 2010. 3 Center on International Cooperation, Annual Review of Global Peace Operations, 2009 (Boulder, Lynne Rienner, 2009), 32. See also UN Doc S/2010/409, Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, 30 July 2010. 4

The UN Mission in Central African Republic and Chad (MINURCAT), see www.un.org/en/peacekeeping/missions/minurcat/ 5 S/RES/1923, 25 May 2010.

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UN peacekeeping missions may be established in accordance with Chapter VI or VII of the UN Charter.6 The two most important characteristics that distinguish traditional peacekeeping under Chapter VI from the more robust peace enforcement operations under Chapter VII are the use of force and the issue of host state consent. The issues of host state consent to a UN military presence raises difficult questions in the context of internal conflicts or civil wars. There were reservations about UN involvement in the Congo, Somalia, Lebanon and Kosovo for these very reasons.7 Despite invoking Chapter VII of the UN Charter, the UN/African Union mission (UNAMID) to Darfur requires the consent and cooperation of the government of Sudan.8 The situation was similar in respect of MINURCAT. The past decade has witnessed the prioritizing of the protection of civilians in statements and resolutions emanating from the Security Council. The SecretaryGeneral has issued regular reports on the issue9 and the mandates of peacekeeping operations have included express provisions dealing with civilian protection. This is expressed usually as being mandated to ‘protect civilians under imminent threat of physical danger.’10 Any failure to fulfil this role undermines the purpose of the peace operation and the credibility of the UN as a whole.11 This article examines the challenges confronting peacekeeping in Chad, in particular with regard to the

6 See B Simma (ed), The Charter of the United Nations: A Commentary, 2nd edn (Oxford, Oxford University Press, 2002) 648-700; N White, Keeping the Peace, 2nd edn (Manchester, Manchester University Press, 1997) 207-284; United Nations, The Blue Helmets- A Review of United Nations Peacekeeping 3rd edn (New York, United Nations, 1996) 3-9. 7 See generally R Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Legal and Operational Issues in Practice (Cambridge, Cambridge University Press, 2007). 8 UNSC Res 1769 (31 July 2007) S/Res/1769 (2007), para 15. 9 UNSC resolutions on the protection of civilians include UNSC Res 1267 (15 October 1999) S/RES/1267, UNSC Res 1296 (19 April 2000) S/RES/1296, UNSC Res S/RES/1674 (28 April 2006), and UNSC Res 1738 (23 December 2006) S/RES/1738. The President of the Security Council has issued statements on the protection of civilians: UNSC Presidential Statement 6 (2000) UN Doc S/PRST/1999/6; UNSC Presidential Statement 6 (2002) UN Doc S/PRST/2002/6; UNSC Presidential Statement 41 (2002) UN Doc S/PRST/2002/41; UNSC Presidential Statement 27 (2003) UN Doc S/PRST/2003/27; UNSC Presidential Statement 46 (2004) UN Doc S/PRST/2004/46; UNSC Presidential Statement 25 (2005) UN Doc S/PRST/2005/25 and UNSC Presidential Statement 1 (2009) UN Doc S/PRST/2009/1. The Secretary-General has submitted periodic reports on the protection of civilians, on 8 September 1999 (S/1999/957); 31 March 2001 (S/2001/331); 26 November 2002 (S/2002/1300); 28 May 2004 (S/2004/431); 28 November 2005 (S/2005/740), 28 October 2007 (S/2007/643), 29 May 2009 (S/2009/277) and 28 September 2010, (S/2010/498, on women, peace and security). 10

UN missions where this terminology was adopted include UNAMSIL (where it was expressed for the first time); MONUC; UNMIL; ONUB; MINUSTAH; UNOCI; UNMIS; UNIFIL; UNAMID; and MINURCAT. The UN Security Council also used similar language when approving missions approved under lead nations. 11 According to the Brahimi Report, ‘[n]o failure did more to damage the standing and credibility of United Nations peacekeeping in the 1990s than its failure to distinguish between victim and aggressor.’ UNGA, ‘Report of the Panel on UN Peacekeeping Operations (Brahimi Report)’ (21 August 2000) UN, Doc A/55/305–S/2000/809, ix.

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POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD

protection of civilians, and the lessons to be learned from recent and past peace operations. It asks if the withdrawal of MINURCAT rendered refugees, internally displaced persons and humanitarian agencies on the ground more vulnerable. How will the UN ensure the security of these vulnerable groups in the aftermath of the withdrawal of its military component? In early 2010, the government of Chad informed the UN that they wanted the military component of MINURCAT reduced and that Chad was ready to assume responsibility for the protection of civilians pending a complete withdrawal of the peacekeeping mission by the end of 2010.12 However, according to the UN High Commissioner for Refugees, the humanitarian situation in Chad was expected to remain precarious.13 The security situation in eastern Chad continued to be ‘unpredictable’, while the situation in the MINURCAT area of operations in north eastern CAR were said to be ‘volatile.’14 The security and protection of the civilian population was a central element in this mission from the start. 15 In September 2007, UN Security Council Resolution 1778 approved the establishment of a multidimensional presence intended to create conditions that would facilitate a return of refugees and displaced persons.16 A European Union force (EUFOR) was authorized ‘to take all necessary measures, within its capabilities and its area of operations’ to contribute to protecting civilians in danger.17 The UN Security Council also reaffirmed the obligation of all parties to implement fully the rules and principles of international humanitarian law.18 Later, UN Security Council Resolution 1861 provided for the withdrawal of EUFOR and the creation of a military component of MINURCAT that would take over from EUFOR. It also provided for the security and protection of civilians, and decided that

12 Ibid, at 2 and UN News Centre, ‘Chad and UN officials agree on major downsizing in peacekeeping force,’ 23 April 2010 and ‘Security Council consults on cutting UN military force to Chad,’ 7 May 2010 13 See www.unhcr.org/cgi-bin/texis/vtx/page?page=49e45c226. There are an estimated quarter of a million refugees from Sudan, over 60,000 from the Central African Republic and a further 68,000 displaced Chadians living in eastern Chad, UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and in Chad (MINURCAT)’ (2010) UN Doc S/2010/217. 14 See also UN Doc S/2010/409, UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, paras 2 and 5. 15

On the question of protection of civilians and vulnerable groups generally, see V Holt, G Taylor and M Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations Successes, Setbacks and Remaining Challenges: Independent Study jointly Commissioned by the Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs (New York, United Nations, 2009). 16 UNSC Res 1778 ( 25 September 2007) S/RES/1778, para 1. 17 Ibid, para 6. 18 Ibid, para 17.

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MINURCAT should be authorized to take all necessary measures within its capabilities and area of operations to fulfil this role.19 In 2010, the government of Chad called for the withdrawal of MINURCAT. After negotiations, the UN Security Council adopted resolution 1923 extending the mandate until 31 December 2010 when the mission ended.20 In this way, the Chadian authorities assumed full responsibility for the security and protection of the civilian population in eastern Chad from May 2010. Amnesty International expressed concern about the uncertain security situation that the reduced strength of MINURCAT would create.21 It cited the heightened risks for organisations delivering humanitarian aid into some areas and increased the risk of children being abducted and recruited as child soldiers. It was also critical of the UN Security Council resolution which transferred responsibility for the protection of civilians in Eastern Chad to the Chadian authorities.22 The resolution outlined the phased withdrawal of MINURCAT from 15 July, with full withdrawal starting in mid-October and scheduled to be completed by the end of 2010. It was planned that MINURCAT would have the capacity to protect civilians until October, but only if they are under imminent threat of violence and this was happening in the immediate vicinity of MINURCAT's bases.23 Amnesty International was deeply concerned about the Security Council compromise that would see the force reduced to 1,900 troops and pass responsibility for protecting refugees to the Chadian Government despite the inability of the Chadians authorities to adequately protect the many thousands of vulnerable people in the region.24

19

UNSC Res 1861 (14 January 2009) S/RES/1861, paras 3 and 6. UNSC Res 1923 (25 May 2010) S/RES/1923, para 1. www.un.org/en/peacekeeping/missions/minurcat/ 21 ‘UN hands protection of civilians over to Chad’, Amnesty International Press Release, 31 May 2010 and ‘UN pullout puts achievement of Irish troops in Chad at risk’, Press Release, 10 May 2010. 22 Ibid and UNSC Res 1923 (25 May 2010) S/RES/1923, paras 10 and 11. 23 Ibid, at , para 10. 24 Ibid, see also, Amnesty International, No Place for Us Here – Violence Against Refugee Women in Eastern Chad (London, Amnesty International Publications, 2009) available at http://reliefweb.int/sites/reliefweb.int/files/resources/02EC0A96B39EF37B49257641000BC49D-Full_Report.pdf. See also Amnesty International, Chad: ‘We too deserve protection’ – Human Rights challenges as UN mission withdraws (London, Amnesty International, 2010) available at http://www.amnesty.org/en/library/asset/AFR20/009/2010/en/ec05e3c9-67f9-4a0e-8338e8d405b0e36e/afr200092010en.pdf. 20

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A. BACKGROUND AND KEY CHALLENGES A fundamental underlying problem was finding a comprehensive solution to the conflict in eastern Chad, which would allow a sustained return of internally displaced persons (IDPs) and refugees.25 Such a solution depends on the management of local conflicts between ethnic groups, improved relations between Sudan and Chad and improved security in Darfur. However, MINURCAT did not have a mandate to address the underlying political issues that precipitated the crisis. The absence of any comprehensive regional policy to deal with the inter-linked causes of instability in the Horn of Africa and surrounding region is the most significant impediment to achieving a sustainable solution to the situation in Chad. The violence in Chad has its origins in the misrule, corruption, ethnic divisions, culture of impunity and disparities in levels of development from one region to another. It is characterized by clashes between government forces and rebel groups, combined with shifting alliances.26 The conflict in eastern Chad has the capacity to destabilise the whole country and region.27 However, the biggest threat to the civilian population, including refugees and displaced persons, is the widespread banditry and general lack of law and order.28 In August 2006, the regional implications of the conflict in Chad were acknowledged when the UN Security Council recognized the need to create a ‘multidimensional presence consisting of political, humanitarian, military and civilian police liaison officers in key locations in eastern Chad, including in internally displaced persons and refugee camps.’29

25 See Internal Displacement Monitoring Centre, National Outrage – Violence against Internally Displaced Women and Girls in Eastern Chad (Geneva, Norwegian Refugee Council, 2010). 26

Annual Review of Global Peace Operations, 2010, above n 3, at) 35. Internal Displacement Monitoring Centre, Internally Displaced in Chad: Trapped Between Civil Conflict and Sudan’s Darfur Crisis (Geneva, 11 July 2007). See generally JD Fage, A History of Africa, 3 rd edn (London, Routledge, 1995); M Meredith, The State of Africa: A History of Fifty Years of Independence (London, Free Press, 2006); J Tubiana, The Chad–Sudan Proxy War and the ‘Darfurization’ of Chad: Myths and Reality (Geneva, Graduate Institute of International Studies, 2008). 27 International Crisis Group, Chad: Powder Keg in the East, African Report No 149 – 15 April 2009 (New York, 2009) and P Berg, The Dynamics of Conflict in the Tri-Border of Sudan, Chad and the Central African Republic (Berlin, Friedrich Ebert Foundation, 2008). 28 Interviews by author during May 2010 with Irish Defence Forces personnel returned from duty with MINURCAT. See also UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, paras 2-5. 29 UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706, para 9(d).

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It took a further year before the Security Council adopted Resolution 1778 authorizing the establishment of a multidimensional force to be deployed in eastern Chad and neighbouring CAR.30 The UN mission, MINURCAT, would operate for an initial period of twelve months alongside a European Union military force, EUFOR, which would protect civilians in danger, facilitate the delivery of humanitarian aid and protect UN agencies.31Even in the planning stages, it was evident that the EUFOR exit strategy was predicated on a handover to the UN after twelve months.32 Unfortunately, this did not seem to impact on those responsible for planning the UN military component. The UN wanted EUFOR to remain and tried to create the scenario where it might do so. It took the UN Security Council until January 2009 to adopt Resolution 186133 approving the deployment of a UN military component to follow up EUFOR. As this was a mere two months from the date for the transfer of authority, the time frame was too short for force generation and related issues. Following its initial deployment, MINURCAT’s military component struggled to achieve full operational capability.34 On 15 April 2010, the border between Chad and Sudan reopened after seven years. The two countries agreed on 5 February 2010 to deploy some 3,000 troops in a Joint Border Force along the frontier to end crossborder rebel attacks from both sides.35 France has close relations with the Chadian government of Idress Déby and it took the lead in the Security Council on Chad-related issues. Other members of the Council were cautious about any change in the mandate that might lead to deterioration in the overall security situation.36 The government of Chad indicated that it wanted an end to the military component of the mission.37 It argued that the force had served its

30

See http://www.un.org/en/peacekeeping/missions/minurcat/ UNSC Res 1778 (25 September 2007) S/RES/1778. 32 EUFOR, Operation EUFOR Tchad/RCA, Mid Mandate Review, Report of the Operation Commander, 7 July 2008. Reference #1028 EU – OHQ, 2007 and UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ , (2008) UN Doc S/2008/601). 33 UNSC Res 1861 (14 January 2009) S/RES/1861, para 4. 34 UN Security Council Report Chad/CAR, May 2010 accessed at www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5968921/k.8C00/May_2010brChadCAR.htm 35 Ibid. See also UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ UN Doc S/2010/409, para 23. 36 UN Security Council Report Chad/CAR, May 2010 accessed at www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5968921/k.8C00/May_2010brChadCAR.htm 37 UN News Centre, ‘Chad and UN officials agree on major downsizing in peacekeeping force,’ 23 April 2010 and ‘Security Council consults on cutting UN military force to Chad’, 7 May 2010. 31

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purpose and that it had been a failure.38 In addition, Chad concluded new agreements on border security with neighbouring Sudan and it claimed that MINURCAT did not possess sufficient strength to provide complete security in eastern Chad. In the changed circumstances, it was better for Chadian forces to take over and for the mission's mandate to be adjusted accordingly.39 This self-serving analysis by the Chadian government reflected a changed security environment. The question is whether the decision to ‘downsize’ the military component as a prelude to withdrawal was justified? Does the UN have any choice when a government withdraws its consent? An orderly handover and transition from MINURCAT to Chadian authorities was essential. What was the plan for the handover and did the Chadian government provide any plan for the security of displaced persons and refugees? A High Level Panel and Joint Technical Working Group of UN officials and Chadian security forces were established.40 If the Chadian security forces could be relied upon, it made sense to transfer responsibility for the security of vulnerable groups to them. However, it was by no means clear that Chad had the capacity or commitment for such a role. Even the veiled language of the Secretary-General’s report refers to the involvement of Chadian security forces and officials in criminal activities, including kidnapping and carjacking.41 In the circumstances it is reasonable to ask what hope there is that these forces will protect civilians. The Chad mission was regarded by many Irish personnel who served there as the most physically challenging mission Ireland has participated in to date. The security challenges were compounded by significant logistical issues. Getting enough water, food and fuel were major challenges to the day to day operations of the force. Could the UN have done more to sustain the military component, or was the time ripe for withdrawal? The UN and European Union peacekeeping efforts in Chad/CAR are not the first time a peacekeeping mission has been established there. Earlier efforts by the then Organisation for African Unity (OAU) were unsuccessful but the lessons of the past remain relevant today.

38 J Karlsrud and R Solhjell, An Honourable Exit for MINURCAT (Oslo, Norwegian Institute of International Affairs, 2010) 1. 39 Security Council Report, Chad/CAR, May 2010 available at . 40 UN Secretary General Report, above note 35, at paras 25-27. 41 Ibid, at para 28.

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B. EARLY OAU’S INTERVENTION AND DEPLOYMENT OF PEACEKEEPERS The security situation in Chad is characteristic of the overall level of political instability in that region of Africa. Although Chad became independent in 1960, the situation has remained volatile and unpredictable.42 Similar to conflict zones elsewhere on the continent of Africa, the roots of the conflict can be traced to its colonial past under French control.43 However, ethnic conflict predated colonialism and was exacerbated by socio-economic and political marginalisation of peripheral regions.44 Chad, like its neighbour Sudan, is divided between a deeply ‘African’ south and an Arab-influenced north. The underpinning of the conflict is similar to that of neighbouring Sudan and is evidence of their common historical context. In 1979 a peace accord led to the deployment of a Nigerian peacekeeping force. The challenges confronting the Nigerian military presence was a precursor to what the OAU’s subsequent peacekeeping force experienced. It seemed that none of the parties to the conflict, and the Nigerians themselves, understood fully the role of peacekeepers. In particular, the factions failed to appreciate the constraints of peacekeeping and the implications of adopting a neutral role. 45 This was exacerbated by ambiguity surrounding the mandate and the issue of consent to the presence of foreign forces in Chad. The issue of host state consent was always likely to prove problematic in a civil war situation. Unsurprisingly, the peacekeepers became embroiled in the conflict and came to be perceived as part of the problem.46 Over time

42 S Amoo, Frustrations of Regional Peacekeeping: The OAU in Chad 1977-82 (Atlanta, The Carter Center, 2004). 43

V Thompson and R Adloff, Conflict in Chad (Berkeley, University of California, 1981) 3-5, 11 and 21-22 and S Decalo, ‘Regionalism, Political Decay and Civil Strife in Chad’ (1980) 18 (1) The Journal of Modern African Studies 25. 44 B Neuberger, Involvement, Invasion and Withdrawal: Ghadafi's Libya and Chad 1969-1981: Occasional Paper No 83 (TelAviv: Shiloah Center for Middle Eastern and African Studies, 1982) 12. G Prunier, ‘Chad, the CAR and Darfur: Dynamics of Conflict.’ OpenDemocracy, 17 April 2007. Available at: www.opendemocracy.net/democracy-africa_democracy/chad_conflict_4538.jsp and ‘Chad’s tragedy’, OpenDemocracy, 7 September 2007; www.opendemocracy.net/article/democracy_power/africa/chad_tragedy 45 H Wiseman, ‘The OAU: Peacekeeping and Conflict Resolution’ in Y El-Ayouty and I William Zartman (eds), The OAU After Twenty Years (New York, Praeger Publishers, 1984) 131-32. On neutrality and impartial see D Donald, ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century’ (2002) 9 (4) International Peacekeeping 21. 46 According to Alex Rondo, Nigerian troops ‘had to be withdrawn when it became obvious that they would be at even greater physical risk than the belligerents,’ West Africa, 29 September 1980.

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POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD

relations between Nigeria and some of the factions deteriorated to the extent that the Nigerian contingent was viewed as an ‘occupation army’ and asked to withdraw.47 A further reconciliation conference provided for an OAU neutral force to supervise the ceasefire and oversee the peace process.48 In the event, only 500 Congolese troops arrived in January 1980 and these had to be withdrawn soon after when fighting escalated.49 The troops had little impact on the ground and fighting continued unabated. Finding a solution under the framework of the OAU was proving increasingly difficult. Part of the reason for this may be that Nigeria was setting the agenda and the Nigerian and OAU efforts in Chad became indistinguishable. During this period, Libya continued its involvement in Chad and in January 1981, both governments announced their decision to work towards achieving a merger of the two countries. This plan was greeted with hostility and Chad ultimately succumbed to pressure from other African leaders who made deployment of peacekeepers contingent on a Libyan withdrawal.50 A further summit in Nairobi during 1981 provided for the deployment of African peacekeepers.51 From the earliest days of deployment, however, the peacekeeping operation was beset with problems stemming from financial and logistical weaknesses that that had a serious detrimental effect on the operational capacity of the mission.52 Efforts to obtain UN funding were unrealistic and unsuccessful.53 In 1982, the OAU peacekeeping force withdrew.54 It had little option, apart from the inadequate logistical and financial support, the mandate was ambiguous and the parties to the conflict were unable or unwilling to reach any resolution. The earlier OAU mission to Chad proved too ambitious for the limited resources of the Organization. The already impoverished troop contributing countries were burdened with the financial costs of the operation. This undermined logistical support

47

Keesing's Contemporary Archives (London, Cartermill International, 1980) 30066. In August 1979, Nigeria hosted another reconciliation conference within the framework of the OAU, Keesing's, above n 47, at 30067. 49 Ibid. 48

50 51

UNGA ‘Report of the Secretary-General on Chad’ (1983) OAU Document AHG/109 (XIX) Part I, 2 and 3. Nairobi Summit Resolution AHG/Res 102(XVII), para 5.

52

Letter to the Security Council, 2 Dec 1981, circulated in Security Council Doc S/15011, 29 April 1982. The Security Council did adopt a consensus resolution calling on the UN Secretary-General to establish a voluntary fund to assist the mission, UNSC Res 504 (30 April 1982) UN Doc S/Res/504. 53

54

See UNGA ‘Report of the Secretary-General on Chad’ OAU Document AHG/109(XIX) Part I, 12-13; and OAU Document AHG/ST/CTTEE/CHAD/Res 1(III).

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and command and control mechanisms within the force. The net effect was to undermine the overall effectiveness of the force and its morale. Many of the weaknesses represented significant failures to adhere to best practice. These included too broad a mandate and loose terms of reference, lack of consent from the parties, and no real peace to keep compounded by a divided OAU.55 When this was combined with an ill-conceived negotiation process56 that did not take account of the reality on the ground and the root causes of grievance, the mission failed. This proved a significant blow to the prestige and authority of the OAU.57 The OAU's peacekeeping attempt failed to have any positive impact on the conflict in Chad. It also resulted in institutional frustration and regional disillusion with the initiative.58 The efforts at achieving a resolution were too piece meal. Chad would have benefited from a peace-building strategy and an integrated and multidimensional approach to the peace operation. The OAU missions in Chad demonstrated the failure of regional peacekeeping. Had the mission been led by the UN and supported by the OAU with troop contributions from African states, then a sustained operation within the framework of the UN might have been possible

C. EUFOR59 AND UN INTERVENTION IN CHAD IN 200860 A deteriorating security environment prompted the UN Secretary-General in December 2006 to propose the deployment of a peacekeeping operation to monitor movements along the border areas, protect civilians under imminent threat and improve security by facilitating political dialogue.61 This was rejected by Chadian president Déby, who feared the real focus was Darfur. He wanted a UN civilian police

55

Keesing's, above n 48, at 31159-31163.

56

See IW Zartman, The Negotiation Process (Beverly Hills, Sage Publications Inc, 1978) Chapter 4.

57

See A Sesay, ‘The Limits of Peacekeeping by a Regional Organization: The OAU Peace-Keeping Force in Chad’ (1991) Conflict Quarterly 21. 58 Amoo, above n 42, at 22. 59 European Union Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR TCHAD/RCA) approved under Joint Action 2007/677/CFSP, 15 October 2008 and UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778. The mandate authorised a mission for one year from date of reaching Initial Operating Capacity (March 2008). It reached full Operating Capability in September 2008. 60 B Charbonneau, ‘What Is So Special about the European Union? EU–UN Cooperation in Crisis Management in Africa’ (2009) 16 (4) International Peacekeeping 546. 61 Annual Review of Global Peace Operations 2009, above n 3, at 32. ‘Chad: Relying on Outsiders’, The Economist, 31 May 2008, 52.

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POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD

force but no UN military presence, however, after protracted negotiations it was agreed that an EU ‘bridging force’ of military personnel would deploy in eastern Chad and north-eastern Central African Republic. In essence, EUFOR was established to provide the military component of the UN mission (MINURCAT). The combined UN EU mandate was described as a ‘new beast’.62 The EUFOR and MINURCAT were two separate bodies, both mandated under the same UN Security Council resolution. This was the first occasion that EU/UN cooperation adopted the model whereby a European Union military force and a United Nations mission were combined under a single UN mandate. A major risk in the circumstances was the likelihood of confusion in the eyes of the local Chadian population. This was exacerbated by the fact that although French troops had been stationed in Chad for more than two decades and supported the regime of President Déby, France would provide the bulk of the troops for EUFOR.63

The deployment of EUFOR and

MINURCAT indicated a renewed interest in the region. Maintaining stability in Chad was an integral part of the strategy to protect Sudanese refugees located there and other displaced persons in the region, including CAR and Darfur. UN Security Council Resolution 1778 (2007), which was adopted under Chapter VII of the UN Charter, mandated EUFOR to contribute to the protection of civilians in danger, establish wider security to facilitate the delivery of humanitarian assistance, and contribute to the protection of UN and humanitarian personnel.64 Such a mandate was bound to bring EUFOR into conflict with both the Chadian authorities and rebel groups. It was not long before Déby accused it of cooperating with rebel forces that had seized towns in the east of the country.65 Irish forces were involved in confrontations with rebel forces. An incident in June 2008 led to criticism of the alleged failure of Irish troops to protect UNHCR staff and premises from rebel forces.66 Although later withdrawn, it is a good example of the uneasy relationship

62 Acting head of MINURCAT, Ousseni Compaoré, quoted by Integrated Regional Information Networks (IRIN), UN, 14 January 2008. 63 See comments by Lt Col J Vall, Deputy Chief of the Military Liaison Officers, MINURCAT, quoted by Integrated Regional Information Networks (IRIN), United Nations, 14 January 2008. 64 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778, para 6 and EUFOR Op EUFOR TCHAD/RCA – Concept of Operations and the Provisional Statement of Requirements, 7 Nov 2007, Reference #19749/07, 4. After a considerable delay EUFOR had deployed 3307 troops by October 2008. Annual Review of Global Peace Operations 2009, above n 3, at 34. 65 Aljazeera.net, Tuesday 17 June 2008 and Mary Fitzgerald, ‘Clashes in Chad under control, O’Dea told’, Irish Times, 17 June 2009, p 7. 66 C Lally, ‘Irish troops criticised for failing to protect staff’ The Irish Times, 18 June 2008.

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that sometimes exists between UN and other humanitarian workers and military personnel on the ground to protect them.67 Unfortunately, such incidents and accusations also make headline news, but the retraction or correction receives much less attention. D. FRANCE PLAYS LEAD ROLE IN EU FORCE The EU deployment of a rapid reaction force in Chad/CAR marked the evolution of EU policy in relation to sub-Saharan Africa.68 The appeal of the EU emanates from its political legitimacy, economic clout and perceived neutrality. It is also an established civil–military actor with a wide spectrum of its available means at its disposal giving it the potential to dominate integrated crisis management in the future.69 The EU is seen as a unique organization, something more than what was envisaged under Chapter VIII of the UN Charter.70 This uniqueness bestows on it an enhanced status and legitimacy. However, this can be overstated. The political interests of the EU will always be the driving force behind foreign policy decisions and a decision to deploy forces must be seen to serve the interests of the Union as a global actor.71 At the very least, ‘the EU’s conflict management policy towards Africa has first and foremost been motivated by European concerns, which consist of both common interests and French national interests in particular.’72 The French role is central to EU military operations on the African continent, both in terms of political leadership and the willingness to project military power. Nowhere was this more evident than in Chad, where France had to work hard to convince EU partners to support an initiative that all knew was in French interest.73 A French led operation was viewed with less

. The UNHCR subsequently apologised for the staff members remarks and ‘misinformation’ about the incident. See P Cullen, ‘Matter of UN Chad remarks “closed”’, The Irish Times, 21 June 2008 and C Lally, ‘O’Dea says troops in Chad face greater risk’ The Irish Times, 27 August 2008. 67 M Fitzgerald, ‘Aid agencies and EU Chad force learn trust in tense security zone’ The Irish Times, 26 November 2008. 68 G Lee, ‘The EU and Conflict Management in African Emergencies’ (2002) 9 (3) International Peacekeeping 87. 69 B Giegerich, European Military Crisis Management: Connecting Ambition and Reality (London, International Institute for Security Studies, 2008) 24. 70

K Graham and T Felìcio, ‘Regional Organisations and Collective Security: The Role

of the European Union’ in M Ortega (ed), The European Union and the United Nations:Partners in Effective Multilateralism (Paris, EU Institute for Security Studies, 2005) 92. 71 Lee, above n 68, at 87-102. 72 G Olsen, ‘The EU and Military Conflict Management in Africa: For the Good of Africa or Europe?’(2009) 16 (2) International Peacekeeping 257. 73

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Charbonneau, above n 60, at 556.

POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD

suspicion by the Déby regime. Rebel forces did not see EUFOR as an impartial mission.74 Having France play a lead role suited the Chadian leadership. EUFOR provided Déby with some respite by shouldering part of the security burden of the Chadian military and allowing them to concentrate their efforts in defeating rebel forces.

E. CHALLENGES FOR EUFOR The political expectations for EUFOR did not match the military capacity of the force and the range of obstacles that confronted it on the ground.75 Although it did have adequate military capability, this was intended for deterrence, not combat. Deterrence became a key concept in the underlying strategy of the operation. The overall objective was to create a safe and secure environment in the area of operations. This is an undefined concept that presupposes the existence of a functioning state. EUFOR was a bridging operation to facilitate the simultaneous deployment of a UN police mission and other elements under MINURCAT. The concept was developed from previous UN/EU cooperation in crisis management. The premise seemed to be based on the assumption that Chad was a functioning state. However, the rule of law and related issues of governance within Chad were dysfunctional.76 Unfortunately, MINURCAT was much slower becoming operational than originally envisioned. This was a significant impediment as EUFOR was configured for dealing with military threats while MINURCAT was intended to train police to deal with criminality and banditry. In the circumstances, it was hard for the refugees or internally displaced persons to see any tangible benefit from the presence of EUFOR. Apart from the delay in deployment, EUFOR was considered a success. 77 It would have been preferable had EUFOR not announced its date of deployment in advance, thereby undermining its impact and precipitating a rebel offensive. Although operational capability was declared somewhat prematurely in mid-March 2008, it was midSeptember when EUFOR was fully operational. Once on the ground, patrolling,

74

P Fletcher, ‘Chad rebel attack aimed to spoil EU mission’ Reuters, 4 February 2008. A Mattelaer, The Strategic Planning of EU Military Operations – The Case of EUFOR TCHAD/CAR, IES Working Paper 5/2008 (Brussels, Institute for European Studies, 2008) 6. 76 Personal interview, former senior EUFOR officer, Dublin 2010. 77 Oxfam Briefing Paper, Mission Incomplete: Why Civilians Remain at Risk in Eastern Chad (London, Oxfam International September 2008) 2 and 12-15. 75

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destroying unexploded ordnance and showing a military presence around sensitive areas contributed to the civilians feeling safer. Despite this, many NGO’s did not perceive EUFOR as adopting a high visibility role and a policing deficit, with a consequent culture of impunity, still reigned. The EUFOR operation built on the premise that the UN would assume its role within a relatively short time frame. The bridging operation concept has much to recommend it from an EU perspective. There are the obvious public relations benefits of intervention during a crisis, but avoiding the long-term danger of trying to formulate an exit strategy before the crisis has been resolved. The main danger is that spoilers, aware of the time frame, will just sit it out until the force withdraws. This presented the UN with the burden of ensuring the follow up operation has sufficient deterrent capability to assume responsibility for the security situation. The EUFOR operation highlighted shortcomings in EU common security and defence policy. The EU did not deploy an existing Battle Group. The Nordic Battle Group had become operational from 1 January 2008 and was well placed to fill the role of the EU expeditionary force. While a number of states expressed reservations, Sweden refused to participate.78 In Ireland, there was some opposition to the participation of defence force personnel in a ‘French dominated’ international force and there were calls to deploy with the AU/UN force in Darfur.79 Eventually a number of member states agreed to contribute troops to make up this force. Each contributing state assessed the training requirements for participation and then completed the training programme in their respective national territory. In this way, there did not appear to be a European Union assessment exercise or training programme for this operation. The planned strength of EUFOR had to be reduced from 4000 referred to in the crisis management concept to 3700 when no more troops were made available despite five force generation conferences.80 Furthermore, unlike pre-existing Battle Groups, the contingents involved did not complete training exercises beforehand and, in some cases, may not have worked together in an operational environment before deploying. In the case of the Chad mission, this does

78

Interview, EU military official, Brussels, June 2010. See E Horgan, ‘Army tied into questionable peace missions’ The Irish Times, 8 August 2008. In contrast see T Kinsella, ‘Chad Mission to EU military’s peaceful role’ The Irish Times, 9 March 2009. 80 HG Ehrhart, Assessing EUFOR Chad/CAR (Hamburg, Institute for Peace Research and Security Policy, 2008) 1 and A Mattelaer, above n 75, at 17. 79

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not appear to have caused any significant operational or other problems on the ground. However, it does mean that European Union integrated training for crisis management operations has a long way to go before it becomes a reality. Furthermore, it is not the optimum way to conduct an operation and makes an EU integrated training programme more virtual than real. An unfortunate consequence of any military intervention is that it can preserve the status quo and indirectly assist those with most power. This may be unavoidable, but awareness of the unforeseen and often unintended consequences should guide the tactics and strategy of any such operation. The EUFOR mission did help to create a secure environment in the east, but it did not create conditions sufficient to see internally displaced persons and refugees return home. Its presence, dominated by France, facilitated the Chadian military in dealing with rebels and compromised the impartiality of the force.81 The absence of government forces compounded EUFOR’s inability to deal with criminal gangs.82 Most of all, EUFOR was a vehicle for French policy that suited other states as it disguised the inadequacy of the international response to the regional issues at the heart of the conflict in Chad, CAR and Sudan.83

F. PLANNING DEFICIENCIES The planning process for the joint, multidimensional presence of EUFOR and MINURCAT was described as ‘instructive, as separate planning processes were said to have yielded different points of concern and challenges to creating shared objectives.’84 Owing to the simultaneous deployment of both EUFOR and UN in

81 See generally D Donald, ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning of the 21st Century’ (2002) 9 (4) International Peacekeeping 21. 82

Human Rights Watch, The Risk of Return: Repatriating the Displaced in the Context of Conflict in Eastern Chad (Human Rights Watch, 2009) and ‘Aid groups face dilemma over EU protection’, Integrated Regional Information Networks (IRIN), 16 May 2008. 83 H Van Dijk, ‘Briefing: Political Deadlock in Chad’ (2007) 106 African Affairs 697 at 699. S Massey and R May, ‘Commentary: The Crisis in Chad’ (2006) African Affairs 106, 420 and 443–9. An analysis of the French role in the Chad/Darfur crisis can be found in B Charbonneau, ‘France’ in D R Black and P D Williams (eds), The International Politics of Mass Atrocities: The Case of Darfur (London, Routledge, 2009).

84 Annual Review of Global Peace Operations, 2010, above n 3, at 19 citing Internal UN Document, After Action Review: UN-EU Planning for EUROR Chad/RCA, 29 April 2008. On the logistical challenges see B Seibert, African Adventure? Assessing the European Union’s Military Intervention in Chad and the Central African Republic: Working Paper (Cambridge, MIT Security Studies Program, 2007). On the EU’s military plan-

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Chad and the CAR, joint planning and close coordination was required between the two organisations.85 This proved more difficult than anticipated. First, the EU priority was internally displaced persons, while the UN focused on the security of refugees. This led to different priorities on the ground and differences in risk assessment. Second, differences in organisational structures and planning exacerbated contrasting expectations. Another lesson for EUFOR is that force generation and planning should be simultaneous and part of a single process. Concurrent activity is not enough if the processes are separate.86 EUFOR operational planning had set an end date from the outset.87 In contrast to that of EUFOR, planning, or the lack thereof, was seen as a major flaw in the UN operation. Nowhere was the lack of planning more apparent than in the logistical arrangements for the follow up UN military force.88 Given the remoteness of the location and the harsh climate and environmental conditions, this was a serious flaw. Threat assessment and obtaining accurate intelligence also proved problematic. Initially rebel groups and Janjaweed89 forces were deemed to pose the greatest threat, while on the ground banditry and criminality presented the greatest threat to security. Although well resourced and trained, the EUFOR mission did not have the mandate to deal with the day to day realities of criminality that were prevalent. The force was configured for a military role in the protection of vulnerable civilians and was not organised for internal security or policing operations.90 An assessment in 2008 indicated that the security situation required an international military presence with the capacity for rapid deployment and the ability to project itself quickly and effectively to deal with the continuing cross-border violence. The strategy involved deterrence, a long established principle of UN deployment. The harsh environment and size of the area of operations meant helicopter support and threat assessment or intelligence gathering capability was needed. Close coordination with NGO’s who

ning process, see Council of the European Union, EU Concept for Military Planning at the Political and Strategic Level, Doc 110687/08, 16 June 2008. 85 EUISS Report, Lessons from EUROR TChad/RCA, EUISS Seminar, 18 March 2010, IESUE/SEM(10)02 14 April 2010, 3. 86 Mattelaer, above n 75, at 32. 87 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778, paras 6 (a) and 6(b) indicated a one year duration. 88 Interview by author, senior Irish army officer who served in Chad at the time, 27 April 2010. 89 Ibid. 90 UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ UN Doc S/2008/601.

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have been on the ground for a prolonged period can help in this regard. Good civil military relations (CIMIC) can facilitate exchange of information and enhanced cooperation. The UN force was to comprise some 6000 personnel with reserve or ‘over the horizon’ forces for emergencies.91 The EU High Representative for Foreign and Security Policy, Javier Solana, claimed that the operation demonstrated how the EU has become a global provider of security and stability and how deployment was achieved ‘quickly and decisively.’92 The EU did prove a valuable partner to the UN in providing a bridge to facilitate the deployment of the follow-on UN peacekeeping force. It was another example of the EU’s ability to mount an autonomous military operation without United States support. The deployment also gave substance to the EU’s commitment in the joint EU-Africa Strategy.93 Although contributions from non-EU states were welcome, these are often agreed after protracted negotiations and delays. For this reason, reliance on EU contributions are preferable, at least in the short term until more structured arrangements are put in place for third state participation. The logistical achievement of building major camps and construction at airports to facilitate deployment was considerable. It can also be said to have been an efficient and cost effective operation. However, EUFOR was not a showcase for EU rapid deployment. Furthermore, when EUFOR withdrew, civilians in eastern Chad were still in need of the same protection as before.94

G. DEPLOYMENT OF MILITARY COMPONENT OF MINURCAT95 The prevailing security situation in Chad involved a complex mix of banditry and attacks by armed groups.96 In many cases it is difficult to identify those responsible; they may be armed opposition groups, soldiers, armed groups from Sudan, ordinary

91

UNSC Res 1861 (14 January 2009) UN Doc S/RES/1861. J Solana, ‘Chad mission shows EU is effective in giving stability’ Irish Times, 13 March 2009. 93 Ibid. 94 E Ford, Head of Oxfam, quoted in ‘EU mission in Chad ends amid tensions’ euobserver.com, 12 March 2009. 95 ‘Refugee Women Raped and Assaulted Despite UN Presence,’ Amnesty International Press Release, 2 October 2009 and ‘No Place for Us Here – Violence Against Refugee Women in Eastern Chad,’ Amnesty International September 2009, Index: AFR 20/008/2009. 92

96

The UN reported that there were at least 152 security incidents against humanitarian workers in eastern Chad in the first five months of 2009. UNGA ‘Report of the UN Secretary-General’ 14 July 2009, para 19.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

criminals or even members of the local police.97 Communal tensions can also spill over into violence. While the military are trained to deal with internal security and related issues, soldiers are generally not suited to tasks involving policing. With this in mind, the Security Council decided that there should be a significantly increased national and international police presence in eastern Chad.98 In his report to the UN Security Council in December 2008, the Secretary-General outlined the continuing precarious security situation and the previously reported trend in banditry, and crimes targeting humanitarian workers, refugees and Chadian citizens.99 Recognising this, the Security Council decided to transfer the military component of the mission from the EU to MINURCAT with effect from 15 March 2009.100

MINURCAT encountered other significant obstacles in becoming fully operational. From the outset, Chad sought to dictate the strength, force structure and composition of the force.101 Transfer of critical assets was delayed when the Chadian authorities prevented direct transfers from EUFOR to the UN and insisted on separate agreements with the government. The Force Commander and Deputy Force Commander were appointed late in the day and had no input into the formulation of the MINURCAT concept of operations (CONOPS).102 From an early stage there was evidence of a lack of commitment to the UN’s concept of operations and that it might

97

Personal interview, former humanitarian aid worker, Dublin, Ireland, June 2010.

98

UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778, para 5. The intended force was initially called the Chadian Police for Humanitarian Protection, Police tchadienne pour la protection humanitaire (PTPH) but was later officially named the Integrated Security Detachment, Détachement Intégré de Sécurité (DIS). 99 UNGA ‘Report of the Secretary-General into the United Nations Mission in Central African Republic and Chad’ (2008) UN Doc, S/2008/760, paras 11-15. 100 UNSC Res 1861 (14 January 2009) UN Doc S/RES/1861. Paragraph 7(a) provided, inter alia, that MINURCAT:

shall be authorised to take all necessary measures, within its capabilities and its area of operations in eastern Chad to fulfil …(i) to contribute to protecting civilians in danger, particularly refugees and internally displaced persons, (ii) to facilitate the delivery of humanitarian aid and the free movement of humanitarian personnel by helping to improve security in the area of operations, (iii) to protect UN personnel, facilities, installations and equipment and to ensure the freedom of movement of its staff and associated personnel. 101

UNSC ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ S/2008/760 (4 December 2008) para 42. 102

UN, Military Strategic Concept of Operations for the United Nations Mission in the Central African Republic and Chad (MINURCAT), Number 0269, 5 February 2009.

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prove problematic generating the necessary personnel.103 The UN seemed wholly unprepared for assuming responsibility and some members of the Core Planning Team were too inexperienced for the job.104 While the Office of Military Affairs at the Department of Peacekeeping Operations made a real effort, it was hampered by a lack of a common Operational Planning Design. Geographic diversity and varying standards of training are familiar challenges on such missions. The adoption of the EUFOR Guidelines to Operational Planning Module and NATO Combined Task Force (CJTF) procedures put non-European troop contributing countries at a disadvantage. Even the Rules of Engagement were copied from those of MONUC. These referred to the militias and other groups in the DRC and were not amended for Chad. This was inexcusable for something so fundamental to military operations. Similarly, the initial strategic military documents of MINURCAT Force were based on EUFOR precedents, with the necessary amendments. By June 2009, it had still not reached 50% of its authorised strength of 5,225 and member states were slow to make pledges of more troops.105 Where it is envisaged that the UN will take over the mission, provision for such an event should be included in the UN mandate. Troop contributing states can be identified at the outset and other key appointments made well in advance. Obtaining essential military equipment also proved problematic.106

Like EUFOR, MINURCAT also encountered problems deploying helicopter support. In mid-April 2009, the Secretary-General reported that the mission had only received ‘pledges’ for six of the 18 military helicopters deemed necessary.107 Helicopters are essential for tactical airlift and medical evacuation. They also provide visibility, mobility and flexibility to cover a large area of operations, and where

103 HG Ehrhart, Assessing EUFOR Chad/CAR (Hamburg, Institute for Peace Research and Security Policy, December 2008) 3. 104 The Core Planning Team is usually comprised of personnel from the major staff cells within a force headquarters, eg Personnel (J1), Intelligence/Information (J2), Operations including Air Operations (J3), Logistics (J4), and Plans (J5). Delays meant the Core Planning Team was also too late in forming up. 105

UNGA ‘Report of the UN Secretary-General into the United Nations Mission in Central African Republic and Chad’ (2009) UN Doc S/2009/359, para 22. UNSC Res 1861 (14 January 2009) UN Doc S/RES/1861, para. 4 provided that ‘MINURCAT shall include a maximum of 300 police officers,25 military liaison officers, 5,200 military personnel, and an appropriate number of civilian personnel.’ 106

UNSC ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’(2009) S/2009/359 (14 July 2009) para 71. In mid-April 2009, the Secretary-General reported that the mission had only received ‘pledges’ for six of the necessary 18 military helicopters. 107 UNGA, ‘Report of the Secretary-General into the United Nations Mission in Central African Republic and Chad’ (2009) UN Doc S/2009/199, para 30. The Force strength was 2079, 40% of its authorised strength of 5200.

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appropriate, fire support. MINURCAT lacked 14 of the required 18 military utility and reconnaissance helicopters called for in the concept of operation. Consequently, the Force lacked the ability to monitor incidents as they occurred and was unable to deploy a reserve force that possessed the necessary mobility to react swiftly to events on the ground.108 Helicopters also act as force multipliers, crucial when there are too few troops to cover a large area with a poor or non-existent infrastructure. UN air assets were also civilian led and constrained by regulations which significantly restricted operational capacity.109 A core activity of MINURCAT was the commitment to strengthening and training the Chadian police and reform of the justice sector, especially in the east.110 This reflected the threat assessment from criminality and banditry on the ground. However, the UN and EUFOR did not have the right to investigate crimes or arrest suspects. Resolution 1861 directed that MINURCAT ‘select, train, advise and facilitate support to elements of the Détachement Intégré de Sécurité (DIS).’111 The UN was to train 850 DIS police whose task was to provide security in refugee and displaced persons camps and key towns. 112 The UN had no authority or command over the police force and did not oversee recruitment.113 The DIS received mixed assessments. Some reports found that they had a positive impact on camp security, while others argued that a false picture of their training and expertise was presented in order to make the UN look good.114 In reality, many were not up to the task and contained criminal elements that were responsible for attacks on refugees and displaced persons.115 Furthermore, most people did not distinguish between the DIS and the UN, and

108

UN Security Council, 6121st meeting, 8 May 2009, Doc S/PV 6121. Capacity to fly at night was important and lacking. This also created deficiencies in medical evacuation capacity. The latter was resolved when an aero-medical team from Sri Lanka and a Bangladeshi aviation unit deployed into the mission area. UNGA, ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/217 29 April 2010. Interview by author with senior MINURCAT officer, Dublin May 2010. 110 UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, paras 29-56. MINURCAT mandate also provided for human rights, gender, child protection, civil affairs, HIV/AIDS and mine action. 111 UNSC Res 1861 (14 January 2009) UN Doc, S/RES/1861. 112 UNSC Res 1778 (25 September 2007) UN Doc S/RES/1778. 113 The DIS was under the command of the Coordination Nationale d’Appui à la Force Internationale à l’est du Tchad (CONAFIT) which was the responsibility of the Chadian Ministry of the Interior. 114 Personal interviews, military and NGO personnel who worked or were deployed in Chad during this period, Dublin, July 2010. 115 Interviews by author with Irish Defence Forces officers, Curragh Camp, 22 April 2010. For a contrary view see J Karlsrud and R Solhjell, An Honourable Exit for MINURCAT: Policy Brief (Oslo: Norwegian Institute of International Affairs, 2010) 2. 109

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consequently the UN was tarnished by the unprofessional conduct of the DIS. This ranged from extortion, abuse of power, and general lack of discipline. Rule of law and judicial reform remain major hurdles that compound the policing deficit. Security Sector Reform remains a serious challenge and a pre-requisite for the creation of a sustainable secure environment. The major funders, including the EU, are reluctant to finance such activities given the level of corruption in the country.116

CONCLUSION The early interventions in Chad provide some important lessons for contemporary operations. Peacekeeping efforts are more likely to achieve positive results in Africa if they are UN initiatives planned as integrated multilateral missions within the framework of the UN, with the African Union or other regional organizations playing a complementary but subordinate role. The earlier OAU's attempts at peacekeeping failed and resulted in regional disillusion with the initiative. Interventions by the UN, African Union or EU demonstrate that piece meal efforts will not resolve such intractable conflicts. Chad would have benefited from a UN peace-building strategy and an integrated multidimensional approach to the peace operation. Had the mission been led by the UN in the early stages and supported by the OAU with troop contributions from African states, then the outcome might well have been different. While the EU can claim qualified success, in reality it set itself limited goals and did not commit to the long term mission in Chad/CAR. Similar to Operation Artemis in the Democratic Republic of the Congo, EUFOR did succeed in improving the overall security situation in its area of operations pending relief by UN forces. The delays in deployment by both EUFOR and MINURCAT did undermine operational effectiveness. This in turn had an adverse impact on the work of humanitarian agencies who considered the force was there to serve their interests and ensure humanitarian assistance was delivered. 117 The EU needs to address the strategic mobility deficit apparent in the deployment of EUFOR. The operation did not have an

116

Karlsrud and Solhjell, An Honourable Exit for MINURCAT, above n 115, at 3. Interview, former UN Civil-Military Co-operation (CIMIC) officer with the Irish battalion during 2009 and 2010, Galway, December 2010. 117

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impact on the proxy war between Chad and Sudan, nor the border area between both countries as this was outside the EUFOR area of operations. The largest security gap remained inside the refugee camps, where the UN trained Chadian police were supposed to deploy. EU bridging was a good idea. However, it was premised on the subsequent deployment of a credible UN military force that could maintain a safe and secure environment. Even a relatively uninformed observer should have appreciated the political and military challenges that a follow up UN operation would confront. Nor can any intervention be truly impartial.118 Like the UN force that succeeded it, EUFOR did not improve the overall political and security situation in the region. The fact that this was not part of the mandate is irrelevant. The EU, its member states and others should have taken the opportunity to address the fundamental issues at the heart of the conflict. The lack of planning and mechanisms for a smooth transition from EUFOR to the UN proved a serious handicap. The experience demonstrated the need to implement the UN’s principles and guidelines for integrated planning outlined in the ‘Capstone’ and ‘New Horizon’ doctrines.119Logistics, administration and lack of coordination between the UN Department of Peacekeeping Operations and Department of Field Services proved especially problematic. Training and experience still count for a great deal among the military, and some UN staff failed to appreciate the concept of ‘force projection’ involving high visibility patrols and mobility required by the MINURCAT concept of operations.120 Déby’s unwillingness to co-operate with the UN in a meaningful way was a major obstacle.121 MINURCAT found its freedom of movement restricted as Chad began to withdraw cooperation. The UN sought to address the Chadian concerns and it sent a number of teams to examine options.122 UN officials are on record as opposing withdrawal. UN Head of Peacekeeping, Alain Le Roy, was reported to have said it was ‘very hard to imagine at that moment’ that Chadian forces could protect

118

R K Betts, ‘The Delusion of Impartial Intervention’ (1994) 73 (6) Foreign Affairs 20.

119

United Nations Peacekeeping Operations, Principles and Guidelines (New York, United Nations Department of Peacekeeping Operations, 2008) 53-57. UN, A New Partnership Agenda, above note 1, at 24-25. 120 Personal interview, Irish officer serving with MINURCAT, December 2010. 121 Note verbale from the Chadian government dated 15 January 2010 requested that the UN commence negotiations to determine the modalities for a withdrawal. Report of the Secretary-General on the United Nations Mission in the Central African Republic and in Chad (MINURCAT), UN Doc S/2010/217, 29 April 2010, para 12. 122 UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/217. Three missions to Chad were led by the former military adviser to the Secretary-General, Major General (retired) P Cammaert.

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civilians.123 The UN plan to train the Chadian police force does not appear to have worked. A more comprehensive institutional and security sector reform programme was required. An EU police mission and security sector reform mission in Chad could have complemented UN efforts. The EU has a particular responsibility to foster reform and support for civil society. It should also be at the forefront of UN efforts. France has a special relationship with the regime in Chad. As a member of the EU and the Security Council it had an onerous responsibility to use diplomatic leverage to secure concessions from Chad. The UN Secretary-General emphasised the mandate of EUFOR and MINURCAT dealt with the consequences but not the root causes of the conflict.124 What is most needed is a comprehensive plan to deal with Chad and the region as a whole. Such a regional strategy must engage national, regional and international actors. The International Crisis Group recommended revival of political dialogue to facilitate a national pact to deal with comprehensive reform of the whole body politic, including decentralisation and distribution of oil revenue.125 A precursor to any meaningful dialogue is a cease-fire agreement between government and armed opposition. The history of the region points to the UN being the only organization with the capacity to put in place the mechanics to make this successful.126 However, the UN is overstretched and it is likely that the debate will be dominated by financial and personnel issues while the primary causes of instability remain unaddressed. When a host state such as Chad calls for withdrawal, does the UN have many options? A narrow legal interpretation might well refer to the provisions of the UN Charter establishing and deploying the force. A resolution adopted under Chapter VII of the Charter may be sufficient justification for intervention in the internal affairs of a state. However, the political realities in the Security Council and the military reality on the ground required the adoption of a more consensual approach. This is essentially what happened in relation to UNAMID,

123

P Worsnip, ‘UN wants to keep Chad peacekeepers, gov’t says no’ Reuters, 17 February 2010.

124

UNSC ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2008) UN Doc, S/2008/444. 125 See International Crisis Group, Chad: A New Conflict Resolution Framework, Africa Report No 144, 24 September 2008. 126 These should include an international multi-dimensional peace operation to create a joint monitoring system, a process of disarmament, demobilisation, repatriation, reintegration and resettlement (DDRRR).

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where despite adopting a resolution under Chapter VII, the UN was reliant on the government of Sudan in order to be able to deploy the peacekeeping force. It is not at all evident that the UN Security Council took sufficient account of the needs of displaced persons and refugees. There has been much written in recent years about the responsibility to protect civilians at risk.127 The international response is in contrast to the responsibility to protect principle outlined, inter alia, in the Brahimi Report, the High Level Report on Threats, Challenges and Change128 and endorsed in less forthright terms at the World Summit in September 2005.129 Although the 2008 UN Capstone Doctrine on principles and guidelines adopts the protection of civilians as a ‘cross cutting’ issue, it offers no definition or insight to inform planning and preparation for specific missions.130 A further issue is how to secure the humanitarian workers on the ground and the delivery of humanitarian aid. Despite protestations to the contrary, the international community under the guise of the UN effectively abandoned vulnerable groups and humanitarian workers in Chad. In CAR, there was concern that the withdrawal would embolden armed groups and increase lawlessness and insecurity.131 MINURCAT had not lived up to expectation in CAR and was seen as risk averse.132 The situation presented a challenge for the Security Council and constituted something of a ‘Hobson’s choice.’ It had no option and needed to reach agreement on a revised resolution that accommodated the Chadian government's demands while also responding to the realities of the security situation. Linked to this was the question whether the Chadian government possessed the will or capacity to protect

127 See S Wills, Protecting Civilians – The Obligations of Peacekeepers (Oxford, Oxford University Press, 2009) and V Holt, G Taylor and M Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations Successes, Setbacks and Remaining Challenges: Independent Study Jointly Commissioned by the Department of Peacekeeping Operations and the Office for the Coordination of Humanitarian Affairs (New York, United Nations, 2009). UN, A New Partnership Agenda, above n 1. International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa, International Development Research Centre, 2001). W Zartman, Preventing Identity Conflicts Leading to Genocide and Mass Killings (New York, International Peace Institute, 2010); and JL Holzgrefe and R O Keohane (eds), Humanitarian Intervention (Cambridge, Cambridge University Press, 2003). 128

United Nations, Report of the Panel on UN Peacekeeping Operations (Brahimi Report), UN, A/55/305–S/2000/809 of 21 August 2000, and ‘A more secure world: our shared responsibility’, Report of the High-level Panel on Threats, Challenges and Change, UN Doc A/59/565, 2 December 2004. 129 A/RES/60/1, 24 October 2005, para 139. 130

United Nations Peacekeeping Operations, Principles and Guidelines (New York, United Nations, Department of Peacekeeping Operations, 2008) 16 and 24. 131 UN Doc S/2010/409, UNGA ‘Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad’ (2010) UN Doc S/2010/409, para 68. 132 Ibid, at para 70

26

POST-UN WITHDRAWAL – AN ASSESSMENT OF PEACEKEEPING IN CHAD

civilians given the security challenges in the east. National forces are more likely to concentrate on fighting rebels than on protecting civilians.133 Humanitarian actors providing assistance to displaced persons and refugees are also vulnerable and in need of protection. It is difficult to see the result as other than a failure. The UN was handicapped from the start and even before the mission was established the government of Chad set clear limitations on what could be undertaken and ultimately demanded its premature termination. Noble principles in UN reports and the provisions of the UN Charter itself took second place to ‘realpolitik.’ Overall, the UN mission was not characterised by good planning and this was reflected in the withdrawal and handover to Chadian forces. A joint senior level Working Group or so called ‘humanitarian dialogue forums’ was unlikely to address, let alone resolve, the inept and corrupt Chadian security apparatus to protect civilians. In the absence of an international military presence, who will provide security? It is difficult to obtain reliable information on the plight of the internally displaced and refugees. An independent international monitoring presence is needed. 134 The UN should continue to engage with the issue and provide support while the Security Council puts pressure on Chadian authorities to put in place a viable plan for civilian protection.

133

‘Developments in Chad have international analysts, aid groups and the UN on the edge’, Diplomacy and Power Politics, 6 February 2010. 134 Amnesty International, Open Letter to all members of the Security Council- Protection of Civilians in Eastern Chad: Security Council must remain ‘ actively seized of the matter’, AFR/20/005/2011, 20 April 2011. Human Rights Watch, World Report 2011- Chad (New York, Human Rights Watch, 2011).

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28

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

Tulips and Jute: Grotius, Smith and an Enlightenment Ethos in International Taxation Law

John Snape*

A.

INTRODUCTION

In this article, I want to show how the natural law theory of Hugo Grotius (15831645) might inform the analysis of what are often portrayed as distributional issues in the taxation of international business. In doing this, I would like to demonstrate, too, how the work of Adam Smith (1723-90) adds to the understanding of this ethical dimension to international tax law. The end I have in view is to suggest a philosophical framework within which national authorities might make prudential legal and policy decisions touching on the public international law of taxation. By ‘distributional issues’, I mean disparities in tax revenues caused by the crossborder operations of multinational corporate groups, sometimes through the use of secrecy jurisdictions, often through manipulating transfer prices. I shall expand on this explanation as I go along. Suffice it to say, for now, that there is increasing concern that national tax bases, especially of developing countries, are insufficiently proof against the tax planning activities of multinationals.1 Interventions, it is argued, are called for, in the name of global justice.2 But the questions are complex ones: what kinds of interventions would be appropriate? Who would be responsible for them? And what ethical stance might govern them? By ethics, I mean questions about

*

Associate Professor, School of Law, University of Warwick. I am grateful to participants in seminars and workshops at the universities of Aston, Leeds and Warwick and for the stimulating conversations that I have had with William Bain, Doug Bamford, Matthew Clayton, Dermot Fenlon, Christopher Finlay, Oliver Gerstenberg, Anna Gunn, Bill O’Brian, David Salter, Daniel Schwartz, Marc Stauch, Zofia Stemplowska, Michael Sutton, Andrew Walton and Uwe Wunderlich. I am particularly indebted to Dermot and to Michael, who each made detailed comments on an earlier draft and to the two anonymous reviewers whose comments on the version as submitted have proved extremely valuable. The inevitable errors and infelicities remain my responsibility. 1

eg, R O’Brien and M Williams, Global Political Economy: Evolution and Dynamics, 3rd edn (Basingstoke, Palgrave Macmillan, 2010) 212-215. 2

Eg, N Shaxson, Treasure Islands: Tax Havens and the Men Who Stole the World (London, Bodley Head, 2011) 281-282.

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how we should live: what is good, what is bad, rather than ‘moral presuppositions’, namely, what ‘in the practice of life’, govern, at a conscious or unconscious level, ‘what people do’.3 My argument is that European Enlightenment ideas, specifically those of Grotius and of Smith, can remind us of the ethic that should be at work here. But there is, too, a moral dimension to my discussion, since I am concerned with the extent to which governments’ ideas about ‘the right thing to do’ have historically been governed by Grotian and Smithian thought. To propose an ethic of this kind is thus to uncover some hidden intellectual roots and to suggest their renewed cultivation. My prompter is, in part, the need to counter an unrealistic turn in the policy discourse on international taxation. But it is also the fact that taxation has not until recently got a high billing in developed country scholarship on global economic justice and international economic law.4 Enlisting Adam Smith, the eighteenth-century Scottish moral philosopher, in my project seems appropriate enough. As the foundational international political economist, Adam Smith has things to say about taxation that continue to concern us. Most importantly, Smith envisages a world in which light taxation fosters the accumulation of capital through unrestricted trade, in a ‘natural system of perfect liberty and justice'. 5 Such a world is peopled by industrious human beings whose sympathetic attitudes towards their fellow men and women6 are not hampered by archaic social and religious attachments. Yet I contend that Hugo

3

AC Grayling, What is Good? The Search for the Best Way to Live (London, Phoenix, 2003) ix.

4

There is, eg, no detailed discussion of international taxation in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford University Press, 2010). But see, eg, D Salter, ‘Taxing Constraints on Developing Countries and the Global Economic Recession’ in J Faundez and C Tan (eds), International Economic Law, Globalization and Developing Countries (Cheltenham, Edward Elgar, 2010) 138-157. 5

A Smith, The Wealth of Nations Books IV-V [1776], AS Skinner (ed) (London, Penguin, 1999) 189 (see J Snape, ‘Montesquieu – “The Lively President” and the English Way of Taxation’ in J Tiley (ed), Studies in the History of Tax Law: Volume 5 (Oxford, Hart Publishing, 2011) 73-90, 82. 6

30

A Smith, The Theory of Moral Sentiments [1759/1790], RP Hanley (ed) (London, Penguin 2009) 13-18 (I.I.i).

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

Grotius, the seventeenth century Dutch natural lawyer, diplomat, theologian and moral philosopher, rivals Smith in importance. What Grotius provides is the philosophical context in which Smith’s thoughts are possible. Grotius’ natural law theory discerns in mankind a:

Desire of Society, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding; which Disposition the Stoicks termed Όικείωσιν. 7

For Grotius, such a disposition significantly involves a theory of the sacrosanct nature of contracts. International treaties no less than any other kind of contract,8 are conducive to a world society of states: pacta sunt servanda. 9 The two seminal thinkers of modernity are tangibly linked by Smith’s own study of, and engagement with, Grotius’ work.10 As Knud Haakonssen has demonstrated, both Smith and David Hume (1711-76), pre-eminent among the philosophers of the Scottish Enlightenment, took Grotius as an important starting-point for their own thought.11 Hume, with his focus on countering passion with passion,12 was however more sceptical of Grotius’

7

H Grotius, The Rights of War and Peace, 3 vols [1625], R Tuck and J Barbeyrac (eds) and J Morrice (trans) (Indianapolis, Liberty Fund, 2005) 81 (Preliminary Discourse. VI) (page numbers do not begin afresh in each of the three vols of this edn, so only page numbers are given in the footnotes below, with Grotius’ own book, chapter and section numbers). 8

For Grotius on contracts and treaties, ibid, 699-883 (II.11-16), esp 817-18 (II.15.II) (see PS Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press, Oxford, 1979) 140-141). 9

See, eg, E Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge, Cambridge University Press, 2002) 40-41. 10

Smith himself had a Latin 1735 Amsterdam edition of de Jure Belli ac Pacis, not Morrice’s English translation (H Mizuta (ed), Adam Smith’s Library: A Catalogue (Oxford, Clarendon Press, 2000) 109. 11

K Haakonssen, ‘Hugo Grotius and the History of Political Thought’ (1985) 13 Political Theory 239-265, 247, 251. 12

D Hume, The History of England from the Invasion of Julius Caesar to The Revolution in 1688 [1778], vol 5 (Indianapolis, Liberty Classics, 1985) 101, quoted in AO Hirschman, The Passions and the Interests: Political Arguments for Capitalism before its Triumph, 20th anniv edn (Princeton, Princeton University Press, 1997) 47.

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emphasis on mankind’s capacity for rational thought than was his younger contemporary. My conclusion is that Grotian ethics, as developed by Adam Smith, can help us to understand both the strengths and the weaknesses of current arguments about ‘global tax justice’.13 At the same time, their latent presence in international taxation law suggests that public international law of this kind is unlikely to achieve certain ends associated with issues of ‘tax justice’, so that other, less ambitious ones should be preferred. Note the hallmark of my argument, however. It is, first and foremost, a pragmatic contention about the importance of an identifiable tradition of thought to a particular policy area. It is closer to Amartya Sen’s argument for the incremental mitigation of injustice in global terms, than to a ‘Rawlsian’ argument about what a ‘transcendent’ theory of justice in international taxation might require. Nor is my argument about – say – how taxation might better promote human happiness. That is why, although I use the term ‘justice’, I tend to prefer the word ‘fairness’ throughout. It might, too, seem a deterministic argument. Some theories with Enlightenment standpoints are subject to this last objection, because of the qualities present in Enlightenment thought. But I am not saying that, because this area has Enlightenment origins, it is therefore constrained by them. I am simply arguing that those Enlightenment foundations are capable of yielding still further intellectual and practical possibilities. My purpose, to reiterate, is to offer a philosophical approach within which prudential decisions about international tax law might be made. With these caveats in mind, I work towards my conclusion about Grotius’ and Smith’s importance by examining four closely interrelated aspects of the topic. First, I argue that there are factors common to both our own times and their respective historical situations. This is an argument about the continuing relevance of their natural law tradition. Secondly, I maintain that the dominant conceptualisation of international tax law lacks a framework for addressing the global inequalities to which I have referred. This argument is both a protest at the hegemonic taxation scholarship and a claim that the discipline has lost a sense of its intellectual roots. Thirdly, I suggest that Grotian and Smithian thought has nonetheless been of

13

The key expression in the discourse surrounding, eg, The Tax Justice Network (see http://www.taxjustice.net/cms/front_content.php?idcatart=2&lang=1 (accessed 21 November 2011)).

32

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

considerable historical importance in the development of international taxation law. This is an argument about the nature and scope of the sovereign state’s capacity to tax, as understood in Grotian and Smithian terms. Finally, I propose that the historically sensitive cultivation of both Grotius and Smith, in a policy area largely lacking any explicit ethical framework, would help us to discern more clearly both the limitations on, and the potential for, a greater fairness. All of the issues that I seek to examine are born of the thought that some broadly internationalist approach to questions of international tax fairness is called for. My starting-point is thus a particular theory of international relations. Internationalism, the idea of a society of sovereign states, is the notion championed by the so-called ‘English school’ and associated with the passage from Grotius quoted above. Of Grotius’ thought, Hedley Bull, a major figure in that school of international relations, wrote:

‘The central Grotian assumption is that of the solidarity, or potential solidarity, of the states comprising international society, with respect to the enforcement of the law. This assumption is not explicitly adopted and defended by Grotius, but ... the rules which he propounds for international conduct are such as to presuppose that it is made.’14

So internationalism, or solidarism, emphasises at least some community of interest between states.15 A version of it has found expression in the ‘solidarity’ principle invoked by the architects of the Maastricht Treaty on European Union of 1993,16 as well as more recently by the General Assembly of the United Nations.17 Solidarism in international relations owes a great deal to the attempt by Sir Hersch Lauterpacht

14

H Bull, ‘The Grotian Conception of International Society’ in H Butterfield and M Wight (eds), Diplomatic Investigations: Essays in the Theory of International Politics (London, George Allen and Unwin, 1966) 51-73, 52. 15

Ibid, 57.

16

A von Bogdandy, ‘Constitutional Principles’ in A von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (Oxford, Hart Publishing, 2006) 3-52, 32. 17

K Wellens, ‘Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections’ in R Wolfrum and C Kojima (eds), Solidarity: A Structural Principle of International Law (Heidelberg, Springer, 2010) 3-54, 5.

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(1897-1960) in 1946 to make Grotian ethics the basis of a theory of international law.18 Internationalism therefore contrasts with the Hobbesian idea of states being:

‘because of their independency, ... in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms; and continual spies upon their neighbours; which is a posture of war’.19

The contrast is not a complete one because even Grotius recognises that states have particular, potentially conflictual, interests. What he denies is ‘that every Creature is led by Nature to seek its own private Advantage’.20 There is a complete contrast, however, between Grotius and ‘the Kantian or universalist tradition,’ which sees at work in international politics ‘a potential community of mankind’, or at least ‘an enduring and gradually expanding federation’.21 ‘Each nation, [writes Immanuel Kant] for the sake of its own security, can and ought to demand of the others that they should enter along with it into a constitution, similar to the civil one, within which the rights of each could be secured’.22 Although this universalist, Kantian, view is often referred to as a ‘cosmopolitan’ one, the cosmopolitanism in this article is not Kant’s, but Smith’s. To the extent that I draw on cosmopolitan ideas, I ground them in the

18

H Lauterpacht, ‘The Grotian Tradition in International Law’ in E Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht, vol 2 (Cambridge, Cambridge University Press, 1975) 307-365; H Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon Press, 1933) 422; M Koskenniemi, ‘Lauterpacht: the Victorian Tradition in International Law’ in The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge, Cambridge University Press, 2002) 353-412. 19

T Hobbes, Leviathan (M Oakeshott (ed)) [1651] (Oxford, Basil Blackwell, 1955) 83 (I.13).

20

Grotius, Rights of War and Peace (above n 7) 81 (Preliminary Discourse. VI). See R Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford, Oxford University Press, 1999) 135. 21

I Kant, ‘Perpetual Peace: A Philosophical Sketch’ [1795] in HS Reiss (ed) and HB Nisbet (trans), Kant: Political Writings, 2nd edn (Cambridge, Cambridge University Press, 1991) 93-130, 105; H Bull, The Anarchical Society: A Study of Order in World Politics, 3rd edn (New York, Columbia University Press, 2002) 23 and 310n. 22

34

Kant (above n 21) 102.

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

stoical idea of the philosopher as ‘Citizen of the World’,23 seeking to develop a broadly-based ethical framework, rooted in a particular view of human nature, and a realisation of the limited ends of human endeavour. This will involve invoking Fonna Forman-Barzilai’s idea of Smith’s thought as a ‘commercial cosmopolitanism’.24 The internationalist and cosmopolitan approach taken in this article therefore draws elements from both the Grotian tradition and the cosmopolitan thought of Smith. The main institution of internationalism is ‘public international law’,25 the latter two words of which were, according to Bull himself,26 first used by Jeremy Bentham (1748-1832) in 1789.27 Grotius’ expression for one part of what we think of as public international law is ‘the Law of Nations’ (ius gentium voluntarium), which as the term suggests is a creation of ‘the Will of all, or at least of many, Nations’.28 The Law of Nations is not therefore confined to relations between states, but ‘embraces all law ... which has been sanctioned by the practice of all nations or of many nations’.29 Smith meanwhile characterises ‘the Laws of Nations’ as ‘the claims which one nation may have upon another’,30 rather in the manner of Bentham. In Grotius (and perhaps also in Smith),31 public international law also comprises a non-volitional element: natural law, or ‘natural right’. Anathema to Bentham,32 natural law in the Grotian system is:

‘the ever-present source for supplementing the voluntary Law of Nations, for judging its adequacy in the light of ethics and reason, and for making the reader

23

F Forman-Barzilai, Adam Smith and the Circles of Sympathy: Cosmopolitanism and Moral Theory (Cambridge, Cambridge University Press, 2010) 196. 24

Ibid, ch 6.

25

Bull (above n 14) 52.

26

Bull (above n 21) 34.

27

Ibid.

28

Grotius, Rights of War and Peace (above n 7) 162-163 (I. 1. XIV).

29

Lauterpacht (above n 18) 330.

30

A Smith, Lectures on Jurisprudence [1762-63/1766], RL Meek, DD Raphael and PG Stein (eds) (Indianapolis, Liberty Fund, 1982) 544. 31

Smith, Theory of Moral Sentiments (above n 6) 179 (III, iii).

32

Bentham describes natural law as ‘an obscure phantom’: J Bentham, An Introduction to the Principles of Morals and Legislation [1789], JH Burns and HLA Hart (eds) (Clarendon Press, Oxford, 1996) 298.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

aware of the fact that the will of States cannot be the exclusive or even ... the decisive source of the Law of Nations’.33

What public international law does not however include is ‘Civil Right’, that ‘which results from the Civil Power’, the power ‘which governs the state’ itself.34 Such civil right, or ‘municipal law’,35 includes what Smith thinks of as ‘public law’.36 The expression is not used in contradistinction to criminal law, and not in an exclusive sense, but by way of contrast with international law and with natural law.37 Throughout the article, I view international tax law as standing in a particular relationship with cognate disciplines. As part of public international law, it supports the international order contended for by international relations theorists. To the extent that international taxation is part of international political economy, it also supports the ordering of global markets suggested by the contentious conception of international political economy as a branch of international relations.38 International economic law, in which international taxation us beginning to assert itself, is increasingly regarded as a major part of public international law.39 My article is therefore an analytical and interpretative discussion of the ethical framework of international taxation law. It is a study in the history of ideas, with some tentative suggestions for future debate, and it is to the contentious question of relevance that I turn next.

33

Lauterpacht (above n 18) 330.

34

Grotius, Rights of War and Peace (above n 7) 162 (I. 1. XIV).

35

Lauterpacht (above n 18) 329.

36

Smith, Lectures on Jurisprudence (above n 30) 433-37; Grotius, Rights of War and Peace (above n 7) 259 (I.3.VI). 37

M Koskenniemi, ‘The Advantage of Treaties: International Law in the Enlightenment’ (2009) 13 EdinLR 2767, 53. 38

But see M Watson, Foundations of International Political Economy (Basingstoke, Palgrave Macmillan, 2005) 14-19. 39

See J Faundez, ‘International Economic Law and Development: Before and After Neo-Liberalism’ in Faundez and Tan (eds) (above n 4) 10-33, 10.

36

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

B.

SHARED CONCERNS AND HISTORICAL SITUATIONS

Having indicated the purpose of the article, and briefly mapped out its parameters, I want now to confront the obvious, and difficult, question. We are concerned, to put it baldly, with the question of the ethics, and morals, of tax fairness. Why invoke Grotius and Smith, early modern thinkers as they are, to illuminate an emanation of a postmodern, post-colonial, era? Neither of these thinkers could possibly have envisaged, surely, that matters would have fallen out as they have. This is the tricky, pressing, question of relevance, and it weaves its way through each of the subsequent stages of my discussion. My answer is that, absent these thinkers, we have no historically grounded, and therefore plausible, response to what is essentially a question born, not of our time, but of theirs: ‘It is always good [as Karel Wellens writes] to articulate the often unconscious ethical underpinnings of one’s approach towards international law'.40 Moreover, the need for the integrity of national tax systems is something that both Grotius and Smith acknowledge, although for different reasons.41 Either side of this relevance question, to be developed further, are two other ones. What is it, we may ask, in the nature of the thought of Grotius, and of Smith, that makes them apposite subjects for consideration? This, if anything, is a subtly disguised formulation of the background issues of who each of these men were, and what they had to say about the disciplines of what we now think of as international political economy and international economic law. Secondly, and more broadly, we might ask, what is it in the historical situation of each of these figures that seems so relevant to us, placed as we are in this fractured, anxious, post-modernity? It is Quentin Skinner, discussing the interpretation of early modern philosophy, who strikes with elegance what might seem to be a fatal blow. There is, he writes, no point in asking ourselves what, say, Grotius, or Hobbes, or Kant, or Smith, would have made of the policy questions of today, since we cannot even approach their meaning without immersing ourselves in the particular controversies with which they were engaged Moreover, even having done so, the response that we are likely to get

40

Wellens (above n 17) 5.

41

Smith propounds certain maxims of effective taxation, equality, certainty, convenience and cost-effectiveness (see Smith (above n 5) 415-18, discussed in J Snape, The Political Economy of Corporation Tax: Theory, Values and Law Reform (Oxford, Hart Publishing, 2011) 2, 180-81); Grotius endorses Aristotle’s view that the capacity to impose taxes is central to the very idea of the state itself (see Grotius, Rights of War and Peace (above n 7) 257n).

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will be so bounded by the prejudices of the particular historical thinker, that we shall probably have to reject it out of a sense of conflict with our own values. 42 There is, of course, some wisdom in this. But there is even more, perhaps, in Martin Wight’s observations about a searingly predictive passage from the work of one of Grotius’ most distinguished disciples,43 Baron de Montesquieu (1689-1755) on the arms race:

‘[N]o sooner [writes Wight] is one in the posture of recognizing a perennial truth in Montesquieu’s words, than all one’s progressivist instincts revolt ... [O]ur protest is born of knowledge and experience and not, like his, of intuition alone; because our knowledge is greater our strength to break the circle is greater; and to accept Montesquieu’s words as a description of our own predicament would be treason to mankind, because it implies the fatalistic doctrine that what has been will be.’44

We flatter ourselves, in other words, to think we have broken the bonds of Enlightenment thought. Some might say that such issues as the proper ends of tax policy have remained stubbornly unaffected either by events or ideas. The question of fairness in taxation, what Smith himself called ‘equality of taxation’, is largely the same now as it was when he rationalised it sometime in the early 1760s. 45 Others would say, moreover, that the predicament is identical, since, not only does Smith advocate proportional taxation, he argues (albeit faintly) for taxes to be redistributive.46 But these are matters to which I shall return later. For the present, I would like to concentrate just on the simple assertion that questions of tax policy are even now formulated, to a very large extent, in precisely the terms that would have been familiar to an eighteenth century moral philosopher

42

Q Skinner, ‘Meaning and Understanding in the History of Ideas’ (1969) 8 History and Theory 3-53, 42-43; see, in the context of the relevance of Locke’s thought, P Kelly, Locke’s Second Treatise of Government (London and New York, Continuum, 2007) 16-18. 43

Snape (above n 5) 79-80.

44

M Wight, ‘Why is there no International Theory?’ in H Butterfield and Wight (eds) (above n 14) 17-34, 27.

45

See Smith, Lectures on Jurisprudence (above n 30) 530-535.

46

Smith, Wealth of Nations (above n 5) 434 (V.II.ii).

38

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

such as Adam Smith. An example of this, of course, would be the tendency of illconceived taxes to discourage investment in a particular jurisdiction.47 Wight suggests that the obstinacy of certain questions may be even more plausible in the international context than the domestic one. Observing that states are ‘moral’ rather than ‘physical’ essences, he quotes the saying of Smith’s contemporary, Edmund Burke (1729-97), that states’ internal affairs ‘are infinitely uncertain and much more obscure, and much more difficult to trace, than the foreign causes that tend to raise, to depress, and sometimes to overwhelm a community.’48 Note however, I am not saying that the answers to the questions we identify would have been recognisable to the Eighteenth Century in the same way. I am simply arguing for some communality between the questions. Such an argument as this is entirely supported by Skinner’s own approach to the history of ideas.49 Moreover, to the extent that a broken tax system undermines the very possibility of statehood, topical issues surrounding developing countries today would have been intelligible even to Grotius.50 In making these points, I am of course highlighting the fact that anxieties about taxation are questions of early modernity and of the European Enlightenment. Tax policy is pre-eminently about the prosperity of the ‘nation state’, which Grotius characterises as ‘a compleat Body of free Persons, associated together to enjoy peaceably their Rights, and for their common Benefit’.51 Grotius seeks to make sense of a world in which the fifteen hundred-year old unity of Church and Empire is being superseded by an assortment of independent states,52 whose tensions and rivalries stand in need of some ‘right ordering’.53 In this, he is able to rely on the work of Jean Bodin (1530-96),54 as a theorist of the absolutist French state, just as, much later, Smith is able to rely on Montesquieu as a theorist of the softening effects of

47

Smith, Lectures on Jurisprudence (above n 30), 326, 344.

48

E Burke, Letters on a Regicide Peace, quoted by Wight (above n 44) 26.

49

Skinner (above n 42); Lauterpacht (above n 18) 327.

50

Grotius, Rights of War and Peace (above n 7 and n 45).

51

Ibid, 162 (I. 1. XIV).

52

Lauterpacht (above n 18) 324-25.

53

M Loughlin, Foundations of Public Law (Oxford, Oxford University Press, 2010) 73-83.

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commerce.55 Whilst he did not live to see the Westphalian peace, in 1648, 56 Grotius’ consciousness had certainly been shaped by the savagery to which the Thirty Years’ War had given rise:

‘I observed throughout the Christian World a Licentiousness in regard to War, which even barbarous Nations ought to be ashamed of: a Running to Arms upon very frivolous or rather no Occasions; which being once taken up, there remained no longer any Reverence for Right, either Divine or Human, just as if from that Time Men were authorized and firmly resolved to commit all manner of Crimes without Restraint.’57

The period of a century or so after about 1550 had also seen the expansion of European horizons both eastwards and westwards. Grotius sought to supply a natural law political morality for each of these enterprises.58 In relation to the latter, he produced his early work, now known as the Free Sea (1609),59 intended to legitimate the activities of the Dutch East Indies Company with regard to the Spanish, in the newly-encountered lands across the Atlantic Ocean. In relation to the former, much later on, and having been a political prisoner, he produced The Rights of War and Peace (1625),60 still seen as one of the foundational texts of international law. A massive display of classical and Biblical erudition, the book, published originally in Latin in Paris, painstaking enumerates those rights, the infringement of which justifies war,61 and equally importantly those whose infringement does not.

54

J Bodin, On Sovereignty: Four chapters from The Six Books of the Commonwealth [1576], JH Franklin (ed and trans) [1576] (Cambridge, Cambridge University Press, 1992) 81. 55

Snape (above n 5) 77-78.

56

PH Wilson, Europe’s Tragedy: A History of the Thirty Years War (London, Allen Lane, 2009) 751.

57

Grotius, Rights of War and Peace (above n 7) 106 (Preliminary Discourse. XXIX); E Voegelin, History of Political Ideas Volume VII: The New Order and Last Orientation, J Gebhardt and TA Hollweck (eds) (Columbia and London, University of Missouri Press, 1999) 52-54. 58

Tuck (above n 20) ch 3.

59

H Grotius, The Free Sea [1609], D Armitage (ed) and R Hakluyt (trans) (Indianapolis, Liberty Fund, 2004).

60

Grotius (above n 7).

61

Grotius, Rights of War and Peace (above n 7) 393-394 (II.1.V): Lauterpacht (above n 18) 311.

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Grotius’ comments on taxing rights long predate the emergence of the discipline of political economy. They tend to occur in the context of the rights and duties of sovereigns.62 Nonetheless, his work does contain an articulation of certain rights, especially property rights, without which a science of political economy is not possible. Grotius provides a natural law framework for such an enterprise, which is similar to, yet subtly different from, the scholastic natural law of St Augustine or St Thomas Aquinas. It is this reconceived notion of ‘Natural right’, or natural law, founded upon reconciling a science of mankind with the purposes of God, which Smith subsequently develops as an important element in his theory of political economy,63 and in conjunction with which he builds his own theory of taxation. What Grotius discerns is an ordering of the world founded, not upon scholastic notions of the transcendent nature of human beings, but upon natural right conceived in terms of their true interest in behaving rationally.64. Reason, not the ‘Passions’, is the best guide to where this true interest lies.65 Grotius’ theory has affinities with Machiavelli,66 but it is more than simply a recommendation to advantageous conduct.67 States adhere to rule bound policies, especially though treaties, out of a sense that, if they do right, then others will do so too. This is emphatically not about short-term advantage, as in the Hobbesian tradition, but about measuring international relations by the standards of natural law. Man’s natural ‘Desire of Society’, Grotius says, means that ‘the Saying, that every Creature is led by Nature to seek its own private Advantage, expressed thus universally, must not be granted’.68 Indeed:

62

See, eg, Grotius, Rights of War and Peace (above n 7): 205-06 (I. 2. VII); 257-259 (I.3.VI); 300-01 (I.3.XVI); 444-45 (II.2.XIV); 550-52 (II.5.XXI-XXII); 576 (II.6.XII); 646-48 (II.8.X); 877-79 (II.16.XXVII); 892 (II.17.XVI); 1180-82 (II.26.V); 1243-1245 (III.2.VII); 1280 (III.4.VI); 1465 (III.12.IV). 63

Koskenniemi, ‘Advantage of Treaties’ (above n 37) 64.

64

J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press, 2011) 42-48.

65

Grotius, Rights of War and Peace (above n 7) 91 (Preliminary Discourse. XIII).

66

Whom Grotius does not actually mention in Rights of War and Peace (see Lauterpacht (above n 18) 340, who regards this fact as ‘startling’). 67

Lauterpacht (above n 18) 333.

68

Grotius, Rights of War and Peace (above n 7) 81 (Preliminary Discourse. VI). But see Tuck (above n 20).

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‘NATURAL RIGHT is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.’

This last sentence emphasises, as John Finnis writes, that Grotius’ work does not, contrary to Lauterpacht,69 mark a secularising of natural law. God’s decree as to what is right still enjoins that ‘the right be done (as a matter of obligation) and that the wrong be avoided (likewise)’.70 Such would be so, says Grotius in a rhetorical flourish, ‘though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs’.71 So conceived, natural law, or natural right, is a series of ‘norms’: what international law would require, were right reason properly deployed. If this is correct, Hume’s famous criticism of the fallacies of natural law72 loses much of its force. To reason in this way is to reason prudentially, ‘to discern things pleasant or hurtful’ and to understand what is ‘contrary to Natural Right, that is, the Laws of our Nature’.73 Grotius, obviously, has nothing directly to say about the kind of taxation policy with which we are concerned. He does, however, establish the framework of a discourse that seems to us now so obvious that it is deeply embodied in the assumptions of any discussion we may have on contemporary tax policy issues. That is why, although our own textbooks on international political economy often begin with Smith,74 Grotius is rarely - if ever - mentioned. Neither Smith, nor Grotius, quite thinks therefore in accordance with the scholastic tradition, and, to the extent that we, too, may struggle to apply that tradition directly to our public policy debates, neither do we. Such an assertion is enough to carry with

69

Lauterpacht (above n 18) 333.

70

Finnis (above n 64) 44.

71

Grotius, Rights of War and Peace (above n 7) 89 (Preliminary Discourse. XI).

72

D Hume, A Treatise of Human Nature [1740], LA Selby-Bigge and PH Nidditch (eds), 2nd edn, 469—470 (III.1.i). 73

Grotius, Rights of War and Peace (above n 7), 87 (Preliminary Discourse. IX).

74

Watson (n 38 above).

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it the idea that there may be something in our circumstances that unites the preoccupations of us, in our time, and the early moderns, in theirs. Before moving on, so as to locate legal scholarship on international taxation within this discussion, I would like briefly to elaborate on this point, since it provides a rich cultural context for the final part of the article. Hugo Grotius, as I have already suggested, was, first and foremost, a natural lawyer. The Free Sea was a response to a specific commercial commission, and The Rights of War and Peace was the fruit of a period of incarceration due to Grotius’ involvement with the deposed Grand Pensionary of Holland, Johan van Oldenbarnevelt, executed by the sword in 1619.75 Smith, too, though long thought of as an economist, has increasingly been conceived of as a moral, or even a political, philosopher initially through the historical work of Donald Winch,76 and latterly through that of Amartya Sen, who places Smith’s ‘theory of moral sentiments’ at the heart of his own political philosophy.77 The Wealth of Nations, of 1776,78 especially when read with the 1759 The Theory of Moral Sentiments,79 Smith’s much earlier work of moral philosophy, provides an understanding, not just of economic activity and of the personal morality that guides it, but of the basis of prosperous political societies. It does so on the basis of a very similar natural law view of ethics,80 wedded to what Smith believes is a ‘natural [human] inclination’ to ‘beneficence’.81 I shall return to these points of comparison between Grotius and Smith. For the present, though, I would simply like to highlight that each work is the product of a need to find a philosophy for commercial political societies. The impulse to trade, says Grotius, cannot and should not be restrained:

75

Tuck (above n 20) 94-95.

76

See, eg, D Winch, Riches and Poverty: An intellectual history of political economy in Britain, 1750-1834 (Cambridge, Cambridge University Press, 1996) esp ch 4. 77

A Sen, The Idea of Justice (London, Allen Lane, 2009).

78

Smith, Wealth of Nations (above n 5)

79

Smith, Theory of Moral Sentiments (above n 6).

80

G Myrdal, The Political Element in the Development of Economic Theory, P Streeten (trans) (London, Routledge and Kegan Paul, 1953) ch 7. 81

DD Raphael, The Impartial Spectator: Adam Smith’s Moral Philosophy (Oxford, Clarendon Press, 2007) 76, referring to Smith, Theory of Moral Sentiments (above n 6) 268-276 (VI.II.iii).

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‘[I]t is lawful [he says] for any nation to go to any other and to trade with it ... This right ... equally appertaineth to all nations, which the most famous lawyers enlarge so far that they deny any commonwealth or prince to be able wholly to forbid others to come unto their subjects and trade with them.’ 82

Smith, no less than Grotius, regards as axiomatic the idea of economic relations as the catalyst of international political order. He characterised The Wealth of Nations as an ‘... attack ... upon the whole [mercantilist] commercial system of Great Britain’.83 The Dutch republic of the seventeenth century was perhaps the first commercial society of modernity, the earliest in which we see the prototypes of commercial phenomena familiar to us today. There we find ‘the embarrassment of riches’ described so vividly by Simon Schama: a wealthy merchant class, with the ease and funds to commission, buy and enjoy the works of Rembrandt and, rather later, of Vermeer; vast inequalities between rich and poor (sometimes disconcertingly and ambiguously depicted in the same paintings);84 and the nascent idea of secondary commodities markets, such as the existence, so Anna Pavord tells us, of a market - in seventeenth century Amsterdam - in tulip futures.85 A visitor to present-day Amsterdam can still experience a city vibrant with this practical ethos of commerciality. As with Grotius, so too with Smith, who belonged to a generation of Scottish intellectuals anxious to map out a future for Scotland, not as the backward, violent, feudal, society immortalised subsequently in the novels of Sir Walter Scott, and which had received its terrible quietus at the Battle of Culloden in 1745, but as a commercial and polite society aligned with the commercial and industrialising England south of the border.86 The cultures that produced the political philosophies

82

Grotius, The Free Sea (above n 59) 10, 11; Grotius, Rights of War and Peace (above n 7) 444 (II.2.XIII).

83

Smith to Andreas Holt, Danish Trade Commissioner (October 26, 1780) in The Correspondence of Adam Smith, EC Mossner and IS Ross (eds), 2nd edn (Indianapolis, Liberty Fund, 1987) 251. 84

S Schama, The Embarrassment of Riches: An Interpretation of Dutch Culture in the Golden Age (London, William Collins, 1987) 573. 85 86

A Pavord, The Tulip (London, Bloomsbury Publishing, 1999) ch 4.

I Hont and M Ignatieff, ‘Needs and justice in the Wealth of Nations: an introductory essay’, in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, I Hont and M Ignatieff (eds) (Cambridge, Cambridge University Press, 1983) 1.

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TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

both of Grotius and of Smith had this in common: both were those of commercial and consumer societies, or at least of societies aspiring to be such. And the political morality which each of these thinkers enshrines is commensurately focussed therefore on the conditions necessary to promote such a society. Chief among these were, of course, ideas of economic efficiency, of the security of property rights and of the sanctity of contracts, but taxation, too, had its part to play. Martin Wolf points to the fundamental historical similarity between the political values of each of England and Holland.87 For a period, indeed, in the early eighteenth century, as Lisa Jardine has shown, England’s political and financial institutions, as well as its aesthetic tastes, were formed by the Dutch.88 Others have pointed out that, historically speaking, British taxes owe much to Dutch exemplars.89 What I hope to have achieved so far is a willingness of the reader to assent to the relevance of these two thinkers to current debates on fairness in international taxation. This is clear, not only from the nature of taxation debate, but also from the foundational status of Grotius and of Smith as theorists of modernity. The historical affinity of British and Dutch commercial circumstances is yet a further reason for placing the two thinkers in the context of contemporary debate.

C.

INTERNATIONAL TAX LAW AND ITS DOMINANT MODES

One undertow of the article has been that arguments on international tax law and policy embody something of a paradox. Whilst being of fundamental political, ethical and moral importance, they are, too, arguments of great technical difficulty. In this next stage of my discussion, I would like to unpack the constituent elements of the paradox. I seek to explain why the arguments are at the same time both compellingly important, yet hard to unravel. Before attempting this task, however, I want to indicate briefly what I take to be the strengths and weaknesses of contemporary international tax law scholarship, with regard both to illuminating the problems, and to shedding light on possible solutions. I then use my conclusions, as to both the

87

See, eg, M Wolf, ‘Britain’s historic general election’, Financial Times (30 April 2010) 13.

88

L Jardine, Going Dutch: How England Plundered Holland’s Glory (London, HarperCollins, 2008) ch 12.

89

eg, stamp duties (Smith, Wealth of Nations (above n 5) 454-56).

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nature of the paradox, and the limitations of the dominant scholarship, to introduce and commend one particular mode of international tax law analysis that seems to me to provide a particularly valuable vehicle for a Grotian, and Smithian, analysis of international tax law. Essentially, my contention about international tax law scholarship is that it is good at illuminating the nature of particular taxation problems, but not at pointing the way to ameliorating them. I can illustrate this by reference to the main taxation issue underpinning my introductory remarks, since I propose to elaborate on this when I come to a discussion of the potential for Grotius and Smith to illuminate current international tax law concerns. The issue in question is the phenomenon of ‘transfer pricing’, known more informatively perhaps as ‘profit shifting’.90 What each of these interchangeable terms refers to, is the manipulation of taxation law rules to locate the profits of multinationals in those jurisdictions of the world where tax rates are lowest.91 To show how this is achieved, and thus what is at stake for the rest of the article, I need briefly to explain what is happening. By definition, the structure of multinational groups is such that a parent company in one jurisdiction (eg Britain) could have subsidiaries in many other jurisdictions (various European states, eg various African states). Each of the subsidiaries, as well as the parent company, would be subject to corporate income tax in the jurisdiction where they were resident. Taxation policy is so fundamental to the sovereignty of individual states that those tax rates are likely differ considerably, not, perhaps, as much between developed economies as between developed and developing economies. In these circumstances, it is often possible to transfer resources between companies in the multinational group at such prices that profits arise in the lower tax jurisdictions. Most countries, on the basis of treaty provisions inspired by the model treaty promoted by the Paris-based Organisation for Economic Co-operation and Development (the OECD),92 have tax provisions enabling the upward or downward adjustment of prices. Note, however,

90

BJ Arnold and MJ McIntyre, International Tax Primer, 2nd edn (The Hague, Kluwer, 2002) ch 4; RS AviYonah, International Tax as International Law: An Analysis of the International Tax Regime (Cambridge, Cambridge University Press, 2007) ch 6; A Miller and L Oats, Principles of International Taxation, 2nd edn (Haywards Heath, Tottel Publishing, 2009) ch 14. 91

eg, Shaxson (above n 2) 11-12, 124-25.

92

OECD Model Tax Convention art 9; Miller and Oats (above n 90) 306.

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TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

that these are complex and difficult to operate, as I shall illustrate. Note, too, the premises on which the analysis relies: that the constituent elements of the corporation in question are separate taxable persons, and that their residence is determined individually, according to national tax law rules. What the dominant mode of international tax law scholarship can do well is to explain how this situation arises, and what technical steps governments might take, either unilaterally or in concert, to address it.93 What it cannot do well is to say convincingly why they should take that action, and what the constraints on it might be. I argue that this is a consequence both of the limitations of the ‘analytical jurisprudence’ that characterises much international tax law scholarship, and also of a ‘category mistake’ about the kind of fairness that measures taken against unacceptable transfer pricing might be seeking to achieve. Now, I recognise that the very fact of having just elaborated on the role of the multinational group in this discussion is enough to reawaken the reader’s initial worries about the relevance of Grotius and of Smith to so contemporary a concern. In the other two parts of this section, therefore, I seek to explain this relevance, both in the context of the paradox of international tax law debate, and in the potential for the further analysis of a particular approach to international tax law scholarship, that of Reuven Avi-Yonah.94 In relation to the former issue, namely, why it might be that this problem is both intractable and morally compelling, I would like to focus on two specific aspects of the topic of international taxation, each of which means that corporate tax occupies a special place in the ranks of international law concerns. First, there is with Grotius the idea of taxation as constituent both of the sovereign state,95 and of the international order of states. Secondly, taxation engenders the misleading expectation that it is necessarily an instrument, not of the commutative (that is, ‘corrective’, justitia expletrix) justice associated with Grotius and Smith, but of the distributive justice associated with Aristotle.

93

Avi-Yonah (above n 90) 111.

94

Ibid.

95

Grotius, Rights of War and Peace (above n 7) 259 (I.3.VI).

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Although it is commonplace to speak of ‘international taxation law’, this is a misleading shorthand, since the term refers to a combination of national tax law rules, as promulgated by individual governments, that touch on international matters and double taxation treaties. The former usually have the status of ‘international custom’96 or of the ‘general principles of law recognized by civilized nations’,97 while the latter are concluded bilaterally between national governments on an OECD or United Nations model,98 with or without ratification by national legislatures.99 In a Grotian prism, international tax law is thus part of ius gentium voluntarium and is subject as such, in his system, to evaluation by natural right. The recitation of these points immediately reveals the paradox that the shorthand of an international tax system conceals. Taxation is specifically a characteristic of the sovereign state, relying since the late seventeenth century on the institutions of representative government. Indeed, one of Grotius’ own annotations to The Rights of War and Peace describes the very idea of a state as a body:

‘which has its own Taxes, or Imposts; that is, pays Tribute to no foreign Power. And this is the Sense which the Greek Scholiast [i.e. Aristotle] gives that ambiguous Word.’100

However, domestic taxation law, part of the public law of particular states, is not ius gentium voluntarium, if: ‘it does not belong or contribute to the mutual Society of Nations amongst themselves; but rather regards the Peace and Tranquillity of each particular People;

96

Statute of the International Court of Justice, art 38(1)(b).

97

Ibid, art 38(1)(c); I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 16. 98

Miller and Oats (above n 90) 122-123.

99

AH Qureshi, The Public International Law of Taxation: Text, Cases and Materials (London, Graham and Trotman, 1994) 2. 100

48

Grotius, Rights of War and Peace (above n 7) 257n (I.3.VI).

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

and therefore might be altered by any one People, without consulting the others …’101 Among such latter rules, possibly, is for instance the ban on the sovereign’s alienation of tax proceeds.102 Grotius thus presents taxation, whether as part of the Law of Nations or as purely domestic law as having an essentially political quality, the logic of which is shaped, directly or indirectly, by the complimentary and interlocking interests of different states. Therefore, although questions surrounding the viability of tax systems, particularly of developing countries, may appear at one level to be matters of short-term Hobbesian advantage, they are coherent ethical issues, too. In part, this is because each state’s sympathetic engagement with the issue is, in an important Grotian sense, as much in its own interest as in that of the other(s). My second reason for suggesting that international taxation issues are both intractable and morally compelling, concerns the categorisation of the justice that neoliberal taxation policy embodies even now. ‘Justice is commonly conceived as the object of natural law’, writes Knud Haakonssen,103 and this in turn means that the particular conception of justice that Grotius and Smith espouse determines the kind of justice that their natural law can suggest in this context. The qualities of each of Grotius’ and Smith’s work, and the historical conjunctures which gave rise to it, are therefore such as to tend to exclude one such category of justice. I am, of course, speaking here of the broadly Aristotelian distinction between universal, or distributive, justice, the idea that justice requires differential levels of resource allocation as between individuals or states differently placed, and particular, or commutative, justice, the notion that certain principles should govern the manner and extent to which restitution for wrongs is imposed by one individual, or state, against another.104 As Haakonssen says, Grotius transposes the distinction into the language of natural right:

101

Ibid, 635 (II.8.I).

102

Ibid, 575-76 (II.6.XI).

103

Haakonssen (above n 11) 254; Finnis (above n 64) 164.

104

See Smith on Aristotle (refs below) and Aristotle, The Nicomachean Ethics, JAK Thomson, H Tredennick and J Barnes (eds) [350BC] (London, Penguin, 2004) 118-120; Aristotle, The Politics, S Everson (ed) [c335BC] (Cambridge, Cambridge University Press, 1988) 65-68; also the excellent MJ Sandel, Justice: What’s the Right Thing to Do? (London, Allen Lane, 2009) ch 8.

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‘There is another signification of the Word Right ... In which Sense Right is a moral Quality annexed to the Person, enabling him to have, or do, something justly. ... This moral Quality when perfect, is called by us a Faculty; when imperfect, an Aptitude: The former answers to the Act, and the latter to the Power, when we speak of natural Things ... Aristotle calls Aptitude or Capacity ... Worth, or Merit: And Michael of Ephesus terms that which is called Equal or Right, according to that Merit, ..., Fit and Decent. ‘Tis expletive Justice, Justice properly and strictly taken, which respects the Faculty, or perfect Right, and is called by Aristotle ... Justice of Contracts ... he also calls it more properly ..., corrective Justice. Attributive Justice, styled by Aristotle ... Distributive, respects Aptitude or imperfect Right, the attendant of those Virtues that are beneficial to others, as Liberality, Mercy, and prudent Administration of Government.’105

Smith later transfers this understanding of justice into his own theory. Both Grotius and Smith are therefore concerned almost exclusively with justice as commutative justice. As Smith says, commutative justice:

‘what Grotius calls the justitia expletrix, ... consists in abstaining from what is another’s, and in doing voluntarily whatever we can with propriety be forced to do [while] ... distributive justice, ... the justitia attributrix of Grotius ... consists in proper beneficence, in the becoming use of what is our own, and in the applying it to those purposes either of charity or generosity, to which it is most suitable, in our situation, that it should be applied.’ 106

It will be recalled from my discussion of the background to Grotius’ work that his primary aim is to ascertain, in a world of separate sovereign states, what the ethos may be that governs the relations between them. The suppression, by both Grotius and Smith, of distributive justice, and the elevation of commutative justice, becomes one

105 106

Haakonssen (above n 11) 254-55.

Grotius, Rights of War and Peace (above n 7) 141-147 (I.1.VII-VIII); Smith, The Theory of Moral Sentiments (above n 6) 321 (VII.II.i).

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TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

of the fundamental tenets of ‘classical’, as opposed to ‘egalitarian’ liberalism.107 Commutative justice, according to natural right (eg the infringement of such a Right as may occasion ‘the just war’),108 therefore figures prominently in the current neoliberal emphasis on ‘the rule of law’.109 But the imposition of taxes, no less than the declaration of war, is a state prerogative. So we find taxes dealt with by both Grotius and Smith in similar terms. Grotius thus formulates, and Smith adopts,110 a fairness – or equality - principle that emphasises placing ‘the burden of taxation as closely as possible on those benefited by the various services provided by the State’.111 This is the benefit principle of tax fairness, rather than that based on ability to pay.112 The benefit principle is the formulation specifically endorsed, among others, by Friedrich von Hayek, requiring ‘that taxpayers contribute in proportion to the benefit they derive from government’.113 Smith’s admittedly ambiguous formulation is well-known,114 but this is how Grotius puts it:

‘But if one is obliged to be at any Charge, either expressly, and merely for securing the Transportation of Goods, or amongst other Things for that Use: Then to recompense this, some Duty may be laid on those foreign Commodities; provided it be not higher than the Reason for exacting it requires; for on that depends the Justice of Customs and Taxes: Thus Solomon received Tolls for Horses and Linnen, that passed over the Syrian Isthmus. So Pliny says, that Frankincense

107

MB Steger and RK Roy, Neoliberalism: A Very Short Introduction (Oxford, Oxford University Press, 2010) 515. 108

Grotius, The Rights of War and Peace (above n 7) 1112 (II.22.XVI).

109

R Plant, The Neo-liberal State (Oxford, Oxford University Press, 2010) 29-39, 75.

110

Unlike Montesquieu: Snape (above n 5) 86-7.

111

Atiyah (above n 8) 344.

112

See JS Mill, Principles of Political Economy and Chapters on Socialism [1848/1873], J Riley (ed) (Oxford, Oxford University Press, 1994) 167. 113

L Murphy and T Nagel, The Myth of Ownership: Taxes and Justice (New York, Oxford University Press, 2002) 16; FA Hayek, The Constitution of Liberty (London, Routledge and Kegan Paul, 1963) 314-316. 114

Smith, Wealth of Nations (above n 5) 416.

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could be no otherwise transported than by the Gebanites, and therefore a Duty was paid to that King.’115

Thus, if another country is suffering damage to its tax base through the activities of corporations located in our jurisdiction, that country cannot necessarily compel us to intervene to correct those activities. No such infringement of a right is likely to have occurred as to justify war, and tax avoidance activities are not on this view an injustice. That said, there may be an obligation of what Grotius called attributive justice, and what Smith would call ‘beneficence’, so to intervene. Thus it is that, although fairness in international taxation may look like a question of distributive justice, it is, in Grotian and Smithian terms, something much more nebulous and pragmatic, an attributive or imperfect justice (Grotius) or beneficence (Smith). This makes their ethos entirely consistent with the values of neoliberal societies. That ethos, which is a natural law one, nonetheless seems similar to Sen’s argument for making the ‘advancement of justice (or ... [the] reduction of global injustice) ... a fruitful part of the subject matter of the deliberative framework of public reasoning’.116 It is an incremental process, not least because of the absence of a single Hobbesian global authority, or world state. As Sen also says:

‘The identification of the transcendental requirements of a fully just society, if it were possible to make such an identification, would of course have a great many other demands on how to idealize an actual society – whether or not such changes could actually be implemented. Justice-enhancing changes or reforms demand comparative assessments, not simply an immaculate identification of ‘the just society’ (or ‘the just institutions’).’117

Grotius, The Rights of War and Peace (above n 7) 445 (II.2. XIV) [Emphasis added.]; and see ERA Seligman, Progressive Taxation in Theory and Practice, 2nd edn (Princeton, American Economic Association, 1909) 159-60. 115

116

A Sen, ‘What do we want from a theory of justice?’ (2006) 103 (5) Journal of Philosophy 215-238, 228.

117

Sen, The Idea of Justice (above n 77) 401.

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The Grotian and Smithian nature of the argument set forth in this article is, moreover, a point of some significance when it is recalled that we are concerned exclusively here with the taxation of corporations. Corporations are, of course, legal not natural persons, yet capable of incurring obligations and exercising rights. For tax purposes, they are treated as separate taxable persons from the people who own them, their stakeholders. A multinational group typically consists of a holding company and many subsidiaries and branches, each located in different jurisdictions, each of which is liable to tax on its profits separately from each of the others. This being so, as Richard and Peggy Musgrave envisage,118 business operations, incorporation and corporate ownership may be split between separate jurisdictions. So the separate treatment of corporation and shareholder for taxation purposes gives rise to considerable difficulties of analysis in relation to distributional issues. In essence, this is because it can never be known precisely how much taxation the corporation, as distinct from its shareholders has finally borne, or how much has been passed on in costs to customers. Any conception of tax fairness in the international context needs to be able, not only to confront this difficulty, but also to address the fact that it would be impossible to quantify what some notional aggregate corporate income tax ‘take’ might be. Musgrave and Musgrave address this problem through the concept of ‘internation equity’,119 which in substance is an application of the benefit principle to the international context:

‘Inter-nation equity [says Kim Brooks, after an exhaustive analysis of the Musgraves’ theory] is concerned about the relationship between national gain or loss capture between two (or more nations), [sic] each of which has a connection to a particular gain. The national gain of the residence state increases because its residents have invested in another jurisdiction and earned a positive return. The question is whether the source state, the state where that return has been earned, has any justification for retaining some of that gain. There are a number of policy instruments that might be employed by the source state to enable it to retain some

118

RA Musgrave and PB Musgrave, ‘Inter-nation equity’ in RM Bird and JG Head (eds), Modern Fiscal Issues: Essays in Honor of Carl S. Shoup (Toronto, University of Toronto Press, 1972) 63. 119

Ibid.

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of the gain, but one widely recognized instrument is taxation. From a tax perspective, the questions are whether the source state has the right to tax the return earned within its borders; and if so, at what rate. The tax system adopted by the residence state is irrelevant to an evaluation of inter-nation equity.’120 [Emphasis added.]

The discussion in this article provides, in an important sense, a philosophical justification for this approach. Before discussing this justification, however, I need finally to introduce a mode of international tax law scholarship which might be complemented by a theoretical approach drawing on Grotius and on Smith. This is Avi-Yonah’s principles-based, Dworkinian, approach already mentioned. 121 The consequences of his theory, essentially one of analytical jurisprudence, are strikingly simple: insofar as we can speak of international tax law, that law seeks to achieve a situation where all corporate profits are taxed at least once. In other words, the principle is that the rules of domestic tax systems should not operate in such a way as to tax the same profits twice, nor should they allow profits to escape tax altogether.122 Moreover, in Avi-Yonah’s eyes, international tax law contains a crucial element of customary law, which he is willing to accept includes the ‘arms’ length method in transfer pricing.123 This refers to the method by which ‘transfer prices in transactions between related parties [are established by being] based on the prices charged (or sometimes the profits derived) in similar transactions between unrelated parties’.124 The reason why a Grotian and Smithian approach might complement that of AviYonah is that, although the latter is able to distil principles from a mass of rules, he does not deeply examine, beyond a feeling for a certain ‘rightness’, the historical reasons why the principles might operate in this way, nor what, beyond the logical

120

K Brooks, ‘Inter-nation Equity: The Development of an Important but Underappreciated International Tax Policy Objective’, in JG Head and R Krever (eds), Tax Reform in the 21st Century: A Volume in Memory of Richard Musgrave (Austin and elsewhere, Wolters Kluwer, 2009) 471-98, 492. 121

Avi-Yonah (above n 90) 111.

122

Ibid, 182.

123

Avi-Yonah (above n 90) 7.

124

54

Arnold and McIntyre (above n 90) 159.

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justifications that they themselves contain, might justify their further development. I would like to show in the next two sections of the article what the approach here being advocated could impart to Avi-Yonah’s analysis. To end this part of the discussion, therefore, I draw three conclusions, each reflecting the idea that our international tax law dilemmas are closer to our Enlightenment forebears than we might at first realise. First, the dominant style of international tax jurisprudence does not greatly concern itself with the fairness of the system, although it can explain its technicalities quite well. Secondly, Grotian and Smithian thinking can illuminate a philosophy of international tax fairness that might plausibly be put to work here (ie, justice as the Grotian benefit principle, overlaid with Smithian beneficence).. Thirdly, since it offers a systematised analysis of the international tax system, Avi-Yonah’s theory of international tax law might usefully be married to a Grotian and Smithian theoretical perspective on what fairness might require.

D.

GROTIUS AND SMITH IN INTERNATIONAL TAX LAW HISTORY

We live amid abundant evidence, not only of the ‘interconnectedness’ of global economic activity, but, equally, of the resilience of the idea of the sovereign state. The relations thereby engendered mean that, whatever the latent potential for conflict, states’ activities are closely bound into one another by the ties of the self-interest of mutual obligation. We only have to think of the reactions of the governments of EU member states to the crisis of the euro to realise the truth of this point. Reading Grotius and Smith together, we can detect something of the reasons for this tension between sovereign states and global markets, and begin to understand its implications for taxation. So I would like to spend a little more time here on the relationship between the two thinkers. I think I have demonstrated, not only the relevance of Grotian and Smithian ethics to the debate on global tax fairness, but also the potential for these ethics to enrich the jurisprudence of international taxation. I am thus tempted to move straight on to an assessment of these ethics at work among contemporary concerns. But my argument would clearly benefit at this stage from some further elaboration of three crucial themes. First, some further underlining of the relationship between the two thinkers

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under consideration: what Grotius imparted to Smith, and how Smith added to Grotius’ teaching. Secondly, a suggestion of how a deep awareness of the teachings of Grotius and of Smith might have helped to shape international tax law principles in the nineteenth and early twentieth centuries. In other words, I want to indicate that, far from being exogenous to tax law principles as they exist, the ideas of these two thinkers might actually be embedded in them. Thirdly, some elaboration of the nature of the cosmopolitanism that Adam Smith’s ethics embody. Foregrounding the natural law thinking implied by each system helps to shape expectations when it comes to exploring their possible application to current dilemmas. I am hoping that, in combination, these three aspects of the discussion will show that, far from being tendentious or superfluous, the invocation of Grotius and of Smith in the debate on international tax fairness is freighted with real analytical potential. When Smith was writing, Grotius was still an influential thinker. I have already drawn attention to Grotius’ importance for Montesquieu, a philosopher who greatly shaped Smith’s own thought. Hugo Grotius, so Smith affirmed, seemed:

‘ ... to have been the first who attempted to give the world any thing like a system of those principles which ought to run through, and be the foundation of the laws of all nations; and his treatise of the laws of war and peace, with all its imperfections, is perhaps at this day the most complete work that has yet been given upon this subject’.125

Within the Grotian scheme, states and individuals alike have rights under the Law of Nature, however imperfectly those rights may be expressed in the Law of Nations. Although the God of Grotius’ system was probably different from the God of Augustine and of Aquinas, it is ‘a mere misunderstanding’126 to read Grotius’ thought as though it does not presuppose a God. As Finnis has said, ‘the obligatoriness of the norm of right and wrong, depends fundamentally’127 with Grotius upon a Divine

125

Smith, Theory of Moral Sentiments (above n 6) 403 (VII.III.iii).

126

Finnis (above n 64) 43.

127

Ibid, 44.

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decree. Each of these insights indicates how nuanced, not only Grotian but also Smithian, scholarship has become: Knud Haakonssen and Richard Tuck,128 in different ways, have shown how Grotius’ thought was probably, in its time, less original, less benevolent, than lawyers have more recently been disposed to believe. Be that as it may, I want here, as regards the Dutch philosopher, to rely on Bull’s idea of Grotius as a key figure in the development of the concept of ‘international society ... marked by what we may call solidarism, by the stress it places upon the actual or potential solidarity of international society in defining and enforcing its own rules’.129 And if Grotius is the theorist of the international society of sovereign states, then Smith, I contend, is the foundational theorist of the economic and ‘affective’ relationship that should subsist between them. In Smith’s system, the divine decree, that Right should be done, becomes of course the ‘invisible hand’ that leads an individual ‘to promote an end which was no part of his intention’.130 I would like, in the context of Adam Smith, to rely on the refined idea of his ‘commercial cosmopolitanism’ that Forman-Barzilai has recently depicted,131 a depiction that makes explicit the relationship, not just between Grotius and Smith, but also, in a global context, between Smith’s international political economy and his ethics. By the late eighteenth century, ‘regard for’ Grotian natural law had in Smith’s estimation become ‘often very little more than mere pretence and profession’,132 and Forman-Barzilai argues that, while acknowledging the moral status of ‘the laws of nations’, Smith believed that he had found a way of giving it a greater ethical force, not only through the effects of economic ties between nations, but also through feelings of beneficence between them. This was, says Forman-Barzilai, ‘a moral philosopher’s reluctant concession to living in a world highly resistant to cosmopolitan aspirations’.133 I want to return to this point shortly, having first briefly

128

Tuck (above n 20) 102.

129

H Bull, ‘The Importance of Grotius in the Study of International Relations’ in H Bull, B Kingsbury and A Roberts (eds), Hugo Grotius and International Relations (Oxford, Clarendon Press, 1990) 87. 130

Smith, Wealth of Nations (above n 5) 32.

131

Forman-Barzilai (above n 23).

132

Smith, Theory of Moral Sentiments (above n 6) 270.

133

Forman-Barzilai (above n 23) 197.

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reflected on the nineteenth- and twentieth-century’s rather thin and economistic reading of Smith’s teaching. John Morley (1838-1923), Gladstone’s biographer, and a pre-eminent apologist for nineteenth century English liberalism, is reported to have described the Rights of War and Peace, together with the Wealth of Nations, as ‘one of the cardinal books of European history’.134 He was, no doubt, reflecting on how their ideas had been deeply ploughed into the soil of eighteenth- and nineteenth-century thought. Benedict Kingsbury and Adam Roberts, reflecting on the significance of ‘Grotian Thought in International Relations’, listed the extensive literature which, even 20 years ago, had been devoted to this topic.135 It is not therefore surprising that, if we look back at the early development of national tax law rules on the residence of corporations, as well as at the subsequent development of transfer pricing rules in the network of OECDinspired double taxation conventions, we find each operating according to a version of the logic of Grotian, and Smithian, jurisprudence. Sol Picciotto provides a striking example, drawing attention to the statement of Chief Baron Kelly,136 in the 1876 case of Calcutta Jute v Nicholson, which determined that companies were resident where their ‘central management and control’ was located, and where the judge asserted that, although the legislation required him to reach this conclusion, the case really involved the ‘international law of the world’.137 What particularly associates this assertion with the Grotian and Smithian tradition is the idea in The Theory of Moral Sentiments that positive laws are ‘a more or less imperfect attempt’ to imitate the rules of ‘natural jurisprudence’,138 and that the latter provides the yardstick for the former. Calcutta Jute, too, involved a rule of the Law of Nations,139 and what the

134

Quoted in Lauterpacht (above n 18) 327, and Bull (above n 129) 71 (see Viscount Morley, Notes on Politics & History: A University Address (London, Macmillan and Co, 1913) 86). 135

B Kingsbury and A Roberts, ‘Introduction: Grotian Thought in International Relations’ Bull, Kingsbury and Roberts (eds), (above n 129) 1-64, 51. 136

S Picciotto, International Business Taxation (London, Weidenfeld and Nicolson, 1992) 6.

137

(1876) 1 TC 83, 92. It has been pointed out that ‘[t]here is no equivalent of this passage in the 1 ExD 428 report [the one that Picciotto actually cites], which suggests that the Chief Baron may have had second thoughts about the influence of the decision on the international law of the world’ (see JF Avery Jones, ‘Jurisdiction to Tax Companies: the Influences of the Jurisdiction of the Courts and of European Thinking’ in J Tiley (ed), Studies in the History of Tax Law (Oxford, Hart Publishing, 2010) 163-212, 178n. 138 139

Smith, Theory of Moral Sentiments (above n 6) 401 (VII.III.iii). See also de Beers Consolidated Mines, Limited v Howe (Surveyor of Taxes) [1906] AC 455.

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Chief Baron might have had in mind was Grotius’ ius gentium voluntarium. A similar approach is evident from a judgment of Justice Gray, in Paquete Habana, which is quoted by Avi-Yonah:

‘[I]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.’140

The last words of this quotation, though not the context, echo Grotius’ words:

‘ ... and this last is the Law of Nations, if not all, yet of the most civilised.’141

We can see a Smithian logic at work, too, in the international law context of the terms of double taxation conventions. These have been designed primarily to avoid the double taxation of the same profits, where corporations operate across national borders, and, to the extent that they mitigate the disincentivising effect that taxation would thus present to cross-border operations, they are explicable in terms of the philosophy of the Wealth of Nations. That the idea may, however, have an ethical dimension closer to The Theory of Moral Sentiments, is reflected in the fact that, from an early stage, the so-called ‘model’ double taxation convention, as promoted by the OECD, provided for national tax authorities to be able to increase the prices charged on cross-border transfers of goods, a provision denounced in the British parliament in 1951 as ‘socialist’,142 but designed to try to ensure that each sovereign state could effectively claim an appropriate level of tax revenues from cross-border activities.

140 141 142

Quoted by Avi-Yonah (above n 90) 7-8. Grotius, Rights of War and Peace (above n 7) 1300. Picciotto (above n 136) 178n.

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More than this, the bilateral and reciprocal nature of double taxation conventions is thoroughly Grotian, as indeed is the OECD, as a treaty organisation.143 If Grotius can tell us about the nature of the relationship between states, Smith makes us wiser both about what cements that relationship and what makes each of them prosper. Without the latter, says Smith, the former is but an empty shell. It is this insight that gives Smith’s thought its ethical force in the context of international taxation. It is, too, what makes Smith’s commercial cosmopolitanism so eminently the fruit of modernity. And so, rather than relying here on one of the more recent forms of cosmopolitanism surveyed and developed in James Brassett’s finely-crafted book on cosmopolitanism and the broadly Kantian ethical movement behind the idea of the Tobin tax on financial transactions,144 I would like to consider commercial cosmopolitanism in the terms that Smith, in Grotian mode, devised it, as well as to attempt to ascertain what, if anything, we may glean from it now. I should stress that we are dealing here with taxation, which is the prerogative of the sovereign state. The absence of tax-raising international institutions thus points up the continuing significance of what Bull called Grotius’ ‘anarchical society’, a society of equals being subject to, in Smith’s words, ‘no common superior to decide their disputes’.145 When Grotius and Smith referred to the idea of justice, it will be recalled, they were generally referring to it as a ‘negative virtue’, as commutative (corrective), rather than distributive, justice. In their terms, the disparities between states that are wealthy, and therefore able to fund public goods, and those that are not, is not, therefore a matter of injustice as such:

‘In Adam Smith’s day [writes DD Raphael] the relief of need was assigned to charity or benevolence, not justice, though there is a whisper in Thomas Reid [one

143

See Grotius, Rights of War and Peace (above n 7) 817, 1126-27 (III.15; II.23.VIII); Lauterpacht, Function of Law (above n 18) 144

J Brassett, Cosmopolitanism and Global Financial Reform: A pragmatic approach to the Tobin tax (London, Routledge, 2010) 2-4. 145

60

Smith, Theory of Moral Sentiments (above n 6) 270 (VI.II.ii).

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

of Smith’s Scottish Enlightenment near-contemporaries] of a possible connection between need and justice.’ 146

There is a slight qualification to this in Grotius because he speaks of the possible modification of property rights in the case of dire necessity. Hidemi Suganami drew attention to this two decades ago,147 but it is difficult to relate it to international taxation except under the most extreme circumstances. Generally, Grotius’ approach to these matters is consistent with latter-day neoliberalism. This does not, however, detract from Grotius’ insistence on the ‘solidarism’ that Bull identified, nor on the fact that there is, in the Grotian world-view, an international community of states. In this sense, Smith’s ‘commercial cosmopolitanism’, as articulated by Forman-Barzilai, supplements and underpins the Grotian theory.148 Like Grotius, Smith conceives of justice negatively, as commutative justice. While justice is of all the virtues the most fundamental, the only one that we are naturally ‘in a peculiar manner tied, bound and obliged to’ observe’,149 says Smith, it is at the same time the least attractive of them. Infinitely more appealing, although something quite different, is beneficence, that is, the willingness to help and share with those who are, so to speak, ‘to hand’.150 It is an active virtue, though not one that can be made legally enforceable. For Smith, as Forman-Barzilai says, there is no injustice when a man ‘shuts his breast against compassion’, although there is a want of beneficence.151 This, indeed, is why Grotius talks about the right to attributive justice - distributional justice, in other words - as an ‘imperfect’ one. It is surprisingly close to what Thomas Pogge, a severe critic of the global neoliberal order, finds unacceptable about John Rawls’ comment ‘that our

146

Raphael (above n 81) 76.

147

Suganami, ‘Grotius and International Equality’ in Bull, Kingsbury and Roberts (eds) (above n 130) 238-239, referring to Grotius, Rights of War and Peace (above n 7) 434 (II.2.VI) (property rights modified in case of dire necessity). 148

Forman-Barzilai (above n 23) ch 6.

149

Smith, Theory of Moral Sentiments (above n 6) 95(II.I.i); Forman-Barzilai (above n 23) 231.

150

Forman-Barzilai (above n 23) 95.

151

Ibid, 223.

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moral responsibility with regard to severe poverty abroad can be fully described as a “duty of assistance”’.152 It is thus that we can reconnect with Smithian jurisprudence, to find it in not only the economistic logic, but an ethical logic, based on beneficence in economic matters. It is the great strength of Smith’s ‘commercial cosmopolitanism’, says FormanBarzilai, and something that marks it out as truly modern, that it grounds political morality in ‘a universal perspective’,

‘in a summum malum derived from an instinctive human revulsion broadly confirmed through human experience, rather than a casuistic summum bonum which is necessarily partial and contentious.’153

In reconnecting with Smith’s ‘commercial cosmopolitanism’, we commit no offence against history. Neoliberalism might indeed be one manifestation of an intellectual movement ultimately traceable to Grotius. Smith’s ethic, as Forman-Barzilai explains, is conceived in terms of distance and proximity. We feel greater sympathy for those who are close by than for those far away. We may not be physically close to those territories whose tax systems are damaged by the transfer pricing practices of multinationals, but their effects are brought home to us by means not possible in Smith’s time, such as by radio investigations, graphic media campaigns and 24-hour news coverage.

152

T Pogge, ‘The Role of International Law in Reproducing Massive Poverty’ in S Besson and J Tasioulas (eds) (above n 4) 417-35, 418, ref J Rawls, The Law of Peoples with The Idea of Public Reason Revisited (Cambridge, Mass, Harvard University Press, 1999) 37-8, 106-20. 153

62

Forman-Barzilai (above n 23) 253.

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E.

A COSMOPOLITAN ETHIC IN AN INTERNATIONALIST CONTEXT

The seeming paradox, three implications of which I presented earlier on, of a pressing ethical issue of widespread concern, yet one concealed by layers of technical complexity, has been vividly illustrated in some prominent interventions of the past several years. Each of these is symptomatic of mounting worries about the British government’s alleged failure to concern itself closely enough with the tax avoidance activities of multinationals. Arguments have focused, not chiefly on the possible impact of these activities on Britain’s exchequer, but, rather more intriguingly, on their impact on the treasuries of other sovereign states. It is this latter which I have already mentioned in another work.154 Its focus is a significant innovation and I next investigate it in some detail in the light of the Grotian and Smithian theory developed above. I would like finally to achieve three objectives. First, I want to make concrete, using some recent examples, my earlier rather abstract discussion of the transfer pricing phenomenon. This part of the argument should bring home my initial contention that Grotian, and Smithian, ethics are generally relevant to the particular issue of fairness in international business taxation. Secondly, in explaining the nature of the somewhat unrealistic solution to unfairness in the taxation of international business offered elsewhere, I would like to highlight the strength of the arguments against it. I seek to show why, in other words, the solution offered does have this improbable quality. Thirdly, I want to show how, what I earlier referred to as the sensitive cultivation of Grotian and of Smithian ethics, might nonetheless assist in framing more realistic arguments in favour of a greater fairness. In this, the culmination of the discussion, I seek only to demonstrate how the moderate nature of Smith’s commercial cosmopolitanism, in combination with Grotius’ internationalism, might inform public opinion in favour of significant practical inroads on the status quo. Besides informing the negotiation of bilateral tax treaties, it might also inform

154

Snape (above n 41) 20-21, 89.

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public law approaches to transfer pricing under both the OECD’s ‘mutual agreement procedure’155 and national procedures for advance pricing agreements.156 Writing in the fall of 2010, the distinguished tax policy correspondent of a leading British broadsheet newspaper drew attention to strident town centre, and postal, protests against the activities of a leading mobile phone provider.157 One aim of the protests, so she reported, was to highlight the human suffering caused in developing countries by states’ failure to provide public goods, such as adequate clean water and health services, something that the protest organisers, Christian Aid, attributed to the use by the particular mobile phone provider and other multinationals of lawful, though arguably unethical, tax avoidance techniques. Another aim of the protests was to get multinational groups to be much more transparent about the jurisdictions in which they operate. Evidently, what the newspaper correspondent was seeking to do, was to encourage discussion of the means to the successful corporate presentation of, so to speak, ‘completely legal’ activities that many regard as nevertheless unethical. Christian Aid had thus clearly landed two serious blows: first, by making vivid claims about the extent of the suffering caused by the failure; and, secondly, by comparing the unfavourable imbalance between the tax revenues lost by developing countries through tax avoidance with the amounts received by those countries in overseas aid. The ‘Occupy’ protests of 2011 draw in some of these issues, but the point about the earlier ones has been their specific reference to tax avoidance and global poverty. These were an important stage in making such issues very topical. February 2009 had seen the controversial publication, in another broadsheet paper, of details of tax avoidance activities of British multinationals allegedly impacting on the integrity of the British exchequer. More interestingly still, July 2007 had seen the airing on BBC Radio 4 of a special report designed to counter the claim, then being made by the British government, that developing countries should trade their way to a higher

155

OECD Model Tax Convention art 25; Miller and Oats (above n 90) 142-44, 303-04 (mutual agreement procedure) and 335-40 (advance pricing agreements); T Rixen, The Political Economy of International Tax Governance (Basingstoke, Palgrave Macmillan, 2008) ch 5, esp 107, 145. 156

I am most grateful to one of the anonymous reviewers for reminding me of these possible applications.

157

V Houlder, Financial Times (9 November 2010) 16: ‘Tax claims hit at reputation as well as the coffers’.

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standard of living for their citizens, so as to reduce their reliance on overseas aid.158 The BBC radio report argued that, such were the taxation activities of foreign multinationals, even a vibrant African economy, such as Kenya’s in 2007, could raise only relatively low tax receipts from business activities within its borders. The argument was illustrated with several examples from the tax position of Kenya’s tea exportation, and flower exportation, industries.159 The issue of the prices at which resources are transferred across borders, between companies in common ownership, was a factor common to all three of these interventions. Since, however, the BBC radio report made certain points that are especially relevant to a Grotian, and Smithian, approach to international tax law ethics, I would like here to concentrate on that particular example. First, the report highlighted how transfer pricing practices, including capitalising subsidiaries with inappropriately high levels of debt, produced unfairness, not only at an international level, but at a domestic one too. Interest on debt, it should be recalled, is generally deductible in calculating corporate taxable profits. But it was not simply that multinationals were reducing their Kenyan tax liabilities to nil either by interest payments on the debt or, in certain cases, by manipulating the transfer prices of goods. It was, too, that domestic Kenyan flower exporters were therefore paying more, proportionately, in corporate income tax, than the subsidiaries of overseas multinationals. This situation was in part the result of a political trade-off made by the Kenyan government, against fairness, and in favour of the encouragement of growth through tax incentives for inward investment. That, as a Kenyan government minister interviewed implied, was a legitimate, if highly contestable, political choice. Secondly, the report highlighted how both the British and Kenyan governments framed their responses to the issue in terms highly suitable for the Grotian, the Smithian, discourse that I have analysed above. The then acting British high commissioner in Kenya was keen to stress that transfer prices were a matter for Kenya alone; Kenyan ministers thought that Britain should take an interest. Thirdly, the report emphasised the realism of the Kenyan government’s responses, with its

158

F Abrams, BBC File on Four 2007. ‘Companies “looting” a continent’. Radio, BBC Radio 4. 29 July: http://news.bbc.co.uk/1/hi/programmes/file_on_4/6908997.stm (accessed 24 August 2010). 159

It remains a good illustration of the issues involved, although I am not suggesting that precisely these issues remain current, or that there has not been subsequent statutory or treaty intervention in this particular case.

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emphasis on multinationals paying their ‘legitimate tax’, rather than on the search for technical solutions. Finally, it was clear that there were issues relating to Kenya’s political culture, such as had been revealed by the ‘halting’ of a Kenyan government investigation into the transfer pricing practices of flower export companies. Having highlighted these aspects of the BBC radio report, I next need to reflect on what is generally conceded to be the solution, albeit an unrealistic one, to the problem of transfer price manipulation. This is the concept, advocated at various levels of sophistication, of the ‘formulary apportionment’ of corporate profits. This latter, indeed, is favoured by Musgrave and Musgrave.160 The basic idea, which is an old one, has considerable technical merit, but it presents serious political obstacles. Its technical merit is that, while it would require bilateral, or multilateral, implementation, it would eliminate the transfer pricing problem, since it would simply involve the proportionate allocation of profits to the various jurisdictions within which a multinational group operated. To this extent the fairness involved invokes a version of the benefit principle of Grotius and Smith. The difficult task would no doubt be facilitated by the greater availability of accounting information as to the amount of tax paid by multinational groups in different jurisdictions. An early success of Christian Aid’s tax campaign against multinationals has been to get the European Commission to begin a consultative process on the compulsory inclusion of details about the amounts of tax paid to different governments in the group accounts of multinationals.161 Whilst the technical simplicity of formulary apportionment is appealing, though, it is not itself beyond question. As the Commission itself found, in the context of proposals to introduce a version of formulary apportionment within the member states of the EU (the so-called ‘common consolidated corporate tax base’, or CCCTB),162 it would also require a common definition of taxable profits. Indeed, mention of the CCCTB highlights the major political problems to which that idea has

160

Brooks (above n 120) 493.

161

COM (2009) 201 final of April 28, 2009, available from http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0201:FIN:EN:PDF (accessed 4 December 2011). A Tax and Financial Transparency Bill with similar objectives has been promoted in the UK Parliament by Caroline Lucas, MP (see http://www.greenparty.org.uk/news/17-03-2011-tax-evasion-bill-parliament.html, accessed 4 December 2011). 162

Commission (EU), ‘Proposal for a Council Directive on a Common Consolidated Corporate Tax Base (CCCTB)’ COM (11) 121/4, 16 March 2011, available from http://ec.europa.eu/taxation_customs/taxation (accessed 23 March 2011).

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given rise, even in the context of the EU ‘domestic legal order’. Any type of formulary apportionment would give rise to anxieties about the loss of sovereignty of the various states involved; any system for greater transparency would, to some extent at least, compromise the traditional principle of confidentiality subsisting between the taxpayer and the state; and, in very general terms, it would represent an attempt to solve what is essentially a political problem with a solution that is essentially technical. Formulary apportionment, though it might seem to present a neat technical solution to the problem of transfer-prices, and would certainly satisfy Avi-Yonah’s criterion of all corporate profits being taxed at least once, could never realistically address the political issues. So I reach the final part of my argument. My contention, in a nutshell, is that ways through controversies about international tax fairness, though they must take account of political realities, can never be exhausted by them. While weighing positional factors, such arguments must offer ethical solutions that, in part at least, transcend those realities. I therefore argue that, by returning international taxation law to its Grotian and Smithian roots, such a neutral ethic can indeed be found, and I indicate, necessarily briefly, the shape that it might take. First, the Grotian idea of ‘solidarism’ would require governments and multinational groups to accept their mutual responsibilities in relation to taxation. There is much in the discourse of international business taxation to suggest that the foundations for such an acceptance have been laid. Textbook writers on international taxation talk about the need for co-operation ‘among responsible members of the international family of nations’,163 an obviously Grotian idea, and, indeed, one of the Kenyan government ministers interviewed by the BBC put the basis for co-operation in Grotian terms:

‘The new thinking with our partners has to be founded on that mutual respect, and we want our sisters to stop their corporate citizens who may not be paying their due taxes here that [sic] that’s one of the ways of enhancing our bilateral friendship.’164

163

BJ Arnold and MJ McIntyre, International Tax Primer, 2nd edn (The Hague, Kluwer, 2002) 6.

164

BBC Radio 4 (above n 158).

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The Financial Times correspondent, in the mobile phone example referred to above, was keen to point out that the multinational group in question had done ‘more than most’ to foster such a spirit of co-operation. Secondly, as Forman-Barzilai says, the Smithian ethic of beneficence means that wealthier states cannot sit ‘idle in the midst of suffering when ... [they have] resources and capacity to intervene’.165 The rootedness of the principles of international taxation in the Grotian and Smithian traditions is both precisely why the idea of beneficence seems to provide some scope for informing international taxation policy and why the reaction that a broken tax system is purely the domestic concern of the country concerned does not seem to convince. Especially allowing for technical assistance from multilateral bodies such as the OECD, the greater involvement of wealthier nations in supporting the improvement of the tax systems of developing countries seems entirely feasible.166 Thirdly, the Grotian, and Smithian ethic proposed here would still rely on trade (that, after all, on a global scale is the phenomenon with which both Grotius, and Smith, in different ways, are most closely associated) but it would reduce the need to rely on overseas aid budgets and development banking, and mitigate the hollowness of emphasising growth through trade alone. With Smithian ethics, even far distant nations are rendered close by, because of technology and the grounding of Smithian ethics in a sense of proximity:

‘The wealth of a neighbouring nation [as Smith says, in a passage from The Wealth of Nations, quoted by Forman-Barzilai] ... though dangerous in war and politicks, is certainly advantageous in trade. In a state of hostility it may enable our enemies to maintain fleets and armies superior to our own; but in a state of peace and commerce it must likewise enable them to exchange with us to a greater value, and to afford a better market.’167

165

Forman-Barzilai (above n 23) 227.

166

M Stewart, ‘Tax Policy Transfer to Developing Countries: Politics, Institutions and Experts’ in H Nehring and F Schui (eds), Global Debates about Taxation (Basingstoke, Palgrave Macmillan, 2007) 182-200. 167

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Smith, Wealth of Nations (above n 5) 73, quoted in Forman-Barzilai (above n 23) 212.

TULIPS AND JUTE: GROTIUS, SMITH AND AN ENLIGHTENMENT ETHOS

Fourthly, such a reorientation of international taxation policy to Smithian thought would require a renewed emphasis on that essential tenet of neoliberal thought, the rule of law. It is this that is associated in Smith with one aspect of commutative justice, the exact retribution for wrongs done. Kenya’s alleged failure duly to administer its transfer-pricing legislation would appear historically to have been a major factor in the powerlessness of its tax system to raise appropriate levels of corporate income tax. Not only that, but, as David Salter has explained, there is a range of wider issues in a developing economy that inhibit effective tax governance, not least the fact that ‘central government is usually weakened by being dependent on external sources and foreign investors’.168 Emphasising the idea of the rule of law is, of course, a truism of free market discourse, but it is required by the Smithian idea of justice, because of his idea of the desire for commutative justice as being a natural human appetite, planted in the human breast before any concept of morality or utility. Controversial though these ideas may be, they are consistent with the Smithian ‘commercial cosmopolitanism’, an idea given an even older ethical basis by Grotius’ idea of solidarism in international society.

CONCLUSIONS Relating the values of early modern, or Enlightenment, political philosophy to those of today might seem a foolhardy exercise. Yet this article has been premised on the idea that this undertaking can reveal certain crucial commonalities between the predicament of early modernity and that of our own. First, although an analytical jurisprudence of international tax can clearly explain the kinds of dilemmas to which international tax rules give rise, it cannot of itself point the way to their amelioration. Secondly, we can recognise what kind of fairness may need to be put to work here. The Smithian concept of beneficence, which Grotius refers to as attributive justice, could well provide a basis for an ethic for trying to ensure that the tax base of one country is not damaged through the activities of a

168

Salter (above n 4) 157.

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multinational based in another. Not only is such a conception of beneficence historically justified, it also neatly relates the issues to some version at least of the benefit principle. In the absence of aglobal authority, any other ethos seems unrealistic. Thirdly, it provides a theoretically and historically informed basis for, say, Avi-Yonah’s elegant system of international tax law principles, which, though internally coherent and illustrated with historical examples, does not disgorge the values that have shaped it. Two points merit further comment. First, the economic dimension to international economic law shares with international law in general a natural law foundation. In origin that natural law is Grotian, but the thinking that gives it its fullest expression is that of Adam Smith. Given the natural law premises of economic thought, and the affinities of the former with neoliberalism, a natural law conversation might perhaps be more productive in economic matters than in other contexts. Koskenniemi’s main objection to Lauterpacht’s invocation of Grotius was not that this produced a seemingly deterministic theory, but that it was symptomatic of Lauterpacht’s Victorian liberalism. But the relations of doux commerce, as the Enlightenment philosophers knew, are different from other relations in international law. In view of these points, the plausibility of the argument made in these pages is enhanced. Secondly, as Koskenniemi also explains, contemporary economic theory is itself the attenuated descendant of eighteenth century natural law.169

169

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Koskenniemi, ‘Advantage of Treaties’ (above n 37) 64-67.

THE NEW PARADIGM FOR INVOLUNTARY DETENTION

The New Paradigm for Involuntary Detention: Article 14 of the UN Convention on the Rights of Persons with Disabilities Suzanne Doyle* INTRODUCTION For centuries, the infringement or outright removal of the right to liberty of persons with psychosocial disabilities (this term does not include persons with intellectual disabilities) by way of civil commitment has been an accepted feature of most legal systems. From its modest beginnings at the end of the eighteenth century, specialised institutional provision for the ‘insane’ grew over the course of the nineteenth and twentieth centuries until the end of the Second World War. While in 1847 there were 21 county asylums in the United Kingdom, by 1914 this had grown to 97. By 1954 the total population of these institutions approached 150,000 people. The move towards institutionalisation should be viewed in the context of the broader social movement to categorise and classify objects and persons which has its origins in the Enlightenment period.1 The 1960s saw the beginning of a gradual decline in the total number of institutional confinements due to, among other factors, the rise of the deinstitutionalisation movement and the advent of new generation tranquillising drugs.2 A similar decline in the number of institutionalised persons in Ireland beginning around this time has been noted by Walsh and Daly.3 However, whether based on grounds of personal health or public protection, this policy of detention of persons with psychosocial disabilities for the purposes of either public protection or to ensure the treatment of the individual has become ingrained in the law and remained largely unchallenged, constructed as it is on a medical model of disability and illness which views ‘disability’ as abnormal and undesirable.

* LL.B. (Hons), LL.M. (Dub), B.L., PhD Candidate, University College Cork, Government of Ireland Postgraduate Scholar and Research Fellow, Centre for Disability Law and Policy, National University of Ireland Galway. I am very grateful to Dr. Mary Donnelly and Dr. Darius Whelan of the Law Faculty, University College Cork for their very helpful insights and suggestions in respect of the arguments made here, although all views expressed and any errors are, of course, my own. I am also very grateful to the Irish Research Council for the Humanities and Social Sciences for their funding of my doctoral research. 1 P Bartlett and R Sandland, Mental Health Law: Policy and Practice, 3rd edn (Oxford, Oxford University Press, 2007), 71. 2 For a more expansive examination of the reasons for the fall in civil commitment numbers in the United Kingdom during this period, see Bartlett & Sandland, above n.1, 79-81. 3 D Walsh and A Daly, Mental Illness in Ireland 1750-2002 (Dublin, Health Research Board, 2004), Ch 4.

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The adoption of the UN Convention on the Rights of Persons with Disabilities (hereinafter ‘the CRPD’) in 2006 and its subsequent ratification by 89 states parties4 represents a clear international challenge to both the theory and practice of this medical, institutional model of psychosocial disability. Based on principles of equality, dignity, autonomy, non-discrimination and inclusion5, the CRPD represents what has come to be known as a ‘paradigm shift’ in the law’s conception of the rights of persons with disabilities and the responsibility of society to protect and affirm those rights. Endorsing the ‘social model’ of disability6 which views the ‘disablement’ of individuals as being, at least substantially, the result of societal barriers and discrimination, the CRPD replaces the notion of persons with disabilities as victims with the clear understanding of their position as rights-holders. The social model theory challenges conventional thinking about disability because it refuses to represent people with disabilities as defective citizens and because its focus on the built environment presents a common cause around which they may organise politically. Further, the social model offers advantages for the political representation of persons with disabilities because it demonstrates the falseness of any claim for political identity based on a ‘natural’ kind. It reveals that gender, race, sex, nationality and ability are heterogeneous, indeterminate and artificial categories represented as stable or natural by people who want to preserve their own political and social advantages.7 In particular, Article 14 of the CRPD, which prohibits the deprivation of liberty based on the existence of a disability, has the potential to require states parties to undertake a fundamental re-examination of their mental health laws. Article 14(1) of the Convention states that: States Parties shall ensure that persons with disabilities, on an equal basis with others:

4

A list of states parties which have signed and ratified is available at www.un.org/disabilities/countries.asp?id=166 (Last accessed 1 August 2010). 5 Article 3 of the CRPD. 6 See, in particular, CRPD Preamble, paragraph (e) and Article 1. 7 T Siebers, Disability Theory (Michigan, University of Michigan Press, 2008), 73.

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a) Enjoy the right to liberty and security of person; b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. (emphasis added) Legislative provisions and governmental policies which justify the involuntary detention of persons with psychosocial disabilities must now be ‘reviewed’ through the lens of the disability-neutral requirement of Article 14(1)(b). Ireland signed the CRPD on the 30 March 2007 and has stated its commitment to ratify8 subsequent to what it believes is necessary legislative reform in the area of mental capacity.9 This paper will seek to ascertain the probable impact of Article 14 on involuntary detention by firstly summarising the right to liberty prior to the adoption of the CRPD. Secondly, an examination of the negotiation process which produced Article 14 will seek to establish the intention of the drafters. Thirdly, the views of international commentators regarding Article 14 will be included. Fourthly, an analysis of post-ratification United Kingdom’s approach to the question of liberty will be scrutinised in order to assess the likely interpretation which will be taken by Ireland’s closest common law neighbour. Fifthly, the viability of an international law solution to the implications of Article 14 (i.e. the lodging of a reservation) will be examined. Based on the findings made in these preceding sections, an assessment of the future of involuntary detention in Ireland and/or the necessity for legislative reform of global mental health laws generally will be made. Therefore, while the conclusions arrived at in respect of Article 14 will certainly raise issues of direct relevance to Ireland’s system of involuntary detention of persons with psychosocial

8

659 Dáil Debates, July 8, 2008, Written Answer 23518/08. The Mental Capacity and Guardianship Bill 2008 (No. 13 of 2008) was introduced in Seanad Éireann by way of a Private Member’s Bill on 19 February 2008 but has not progressed any further through the Houses of the Oireachtas. Further, the Department of Justice, Equality and Law Reform has published the Scheme of the Mental Capacity Bill 2008 on the 5 September 2008 (available at www.inis.gov.ie/en/JELR/Pages/Scheme_of_Mental_Capacity_Bill_2008 - last accessed 4 November 2010) but no Bill has yet been published. 9

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disabilities, the broader implications of the concept of liberty contained in Article 14 of the CRPD will have universal application to all states parties who have ratified or will ratify the CRPD.

A.

THE RIGHT TO LIBERTY

In order to accurately assess the likely interpretation which will be given to Article 14 both at a domestic level by states parties and also by the Committee on the Rights of Persons with Disabilities by way of either compulsory country reports which must be compiled by states parties every four years10 and/or individual complaints where a state party has ratified the Optional Protocol to the CRPD11, the previous regional and international interpretations of the right to liberty of persons with psychosocial disabilities must first be examined in order to establish the jurisprudential influences which the Committee may be influenced by in their interpretation of Article 14. 1.

Human Rights Instruments

International Covenant on Civil and Political Rights (ICCPR) Article 9(1) of the ICCPR provides that: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Article 9(1) does not therefore grant an individual complete freedom from arrest or detention, preventative or otherwise. It instead acts as a guarantee that any such arrest or detention will not be arbitrary or unlawful.12 Included in the Human Rights Committee’s (HRC) classification of ‘lawful’ detention is detention for the purposes of psychiatric treatment. The Committee addressed this issue directly in the case of A

10

Article 35(2). Article 1 of the Optional Protocol to the UN Convention on the Rights of Persons with Mental Disabilities. 12 For a substantive analysis of the Human Rights Committee’s interpretation of Article 9, see its General Comment No. 8 at www1.umn.edu/humanrts/gencomm/hrcom8.htm (last accessed 1 August 2010). 11

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v New Zealand13 where Committee Members Pocar and Scheinin stated in their joint opinion that: Treatment in a psychiatric institution against the will of the patient is a form of deprivation of liberty that falls under the terms of article 9 of the Covenant. In an individual case there might well be a legitimate ground for such detention, and domestic law should prescribe both the criteria and procedures for assigning a person to compulsory psychiatric treatment. As a consequence, such treatment can be seen as a legitimate deprivation of liberty under the terms of article 9, paragraph 1.14 Although the Committee in its communication went on to affirm that the ‘special nature of compulsory psychiatric treatment as a form of deprivation of liberty lies in the fact that the treatment is legitimate only as long as the medical criteria necessitating it exist’, the very fact that HRC has included the existence of a psychosocial disability in its lawful grounds justifying a deprivation of liberty places it in direct conflict with Article 14(1)(b) of the CRPD which states that the existence of a disability will in no case justify a deprivation of liberty. What guidance, therefore, can Article 9 of the ICCPR and the HRC’s interpretation of it provide in terms of the possible interpretation of Article 14 of the CRPD by the Committee on the Rights of Persons with Disabilities? The Human Rights Committee is certainly comparable to the Committee on the Rights of Persons with Disabilities in terms of its reporting requirements and the fact that it is an international committee of experts, as opposed to a court, which adjudicates on both the general interpretation of the Covenant and on individual petitions under that instrument. However, this would appear to be as far as any comparison can be taken. The interpretation of Article 9 of the ICCPR given by the HRC has been one which permits the infringement of the right to liberty of persons with psychosocial disabilities where such an infringement is for the purpose of securing the psychiatric

13

A v New Zealand Communication No. 754/97. Judgment issued on 15 July 1999. Available at daccess-ddsny.un.org/doc/UNDOC/DER/G99/436/19/PDF/G9943619.pdf?OpenElement (last accessed 2 August 2010). 14 Ibid, p12.

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treatment of that individual. Article 9 permits the infringement of the right to liberty based on the existence of a psychosocial disability and would therefore seem to be of limited interpretative assistance in terms of Article 14 of the CRPD which requires a disability-neutral basis for any infringement of the right to liberty of an individual. European Convention on Human Rights (ECHR) Similar to the Human Rights Committee’s decisions in this area, the lawfulness of the involuntary detention of persons with psychosocial disabilities has been relatively unproblematic for the European Court of Human Rights. Article 5(1) of the ECHR provides that: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...(emphasis added) While the European Court of Human Rights has laid down some safeguards, such as the requirement that the existence of a ‘mental disorder’ be established by objective medical evidence15, that reasons for the deprivation of liberty must be given to the individual16 and that an individual may challenge his/her detention before an independent court or tribunal which is empowered to enforce its judgments17, Article 5(1)(e) of the ECHR expressly recognises and endorses the concept of involuntary detention on the basis of the existence of a psychosocial disability18. This prospective difference in legal standards which is currently applied by the European Court of Human Rights to the involuntary detention of persons with

15

Rakevich v Russia, Application No. 58973/00, Judgment 28 October 2003, para 32. Van der Leer v The Netherlands, , (1990) 12 EHRR 567, para 27. 17 Kolanis v The United Kingdom, , (2006) 42 EHRR 12. 18 See, for example, Gulub Atanasov v Bulgaria Application No 73281/01, Judgment of 6 November 2008; Shtukaturov v Russia, Application No. 44009/05 Judgment of 27 March 2008; H.M. v Switzerland, Application No. 39187, ECHR 2002-II. 16

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disabilities under Article 5(1)(e) of the ECHR on the one hand and the likely interpretation which will made by Committee on the Rights of Persons with Disabilities in respect of Article 14 of the CRPD on the other presents a substantive issue for member states of the Council of Europe who have ratified or will ratify the CRPD. The European Court has not been slow to reference the CRPD in the context of disability. The decision of Glor v Switzerland19 saw the Court expressly endorse the CRPD concept of ‘reasonable accommodation’ and found that on the basis of the CRPD there was ‘a European and universal consensus on the necessity to protect persons suffering from a disability from discriminatory treatment’.20 Despite this laudable statement of uniformity between the two instruments, the European Court is faced with the reality that Article 5(1)(e) of the ECHR specifically provides for action by states parties and their agents which is contrary to Article 14 the CRPD. Article 14 of the CRPD would therefore seem to sit as uneasily alongside ECHR jurisprudence on the right to liberty of persons with psychosocial disabilities as it does next to the UN Human Rights Committee’s Communications on this issue. 2.

Non-Binding, Mental Disability-Specific Instruments

The Declaration on the Rights of Mentally Retarded Persons The first substantive instrument in this regard was General Assembly Resolution 2856 (XXVI) of 20 December 1971; The Declaration on the Rights of Mentally Retarded Persons. Stating that the General Assembly recognised ‘the necessity of assisting mentally retarded persons to develop their abilities in various fields of activities and of promoting their integration as far as possible in normal life’, the declaration provided for the right of the ‘mentally retarded person’ to proper health care and to ‘a qualified guardian when this is required to protect his personal well-being and interests’. This paternalistic focus continued in the Declaration’s provision in respect of legal capacity which provided:

19

Glor v Switzerland, Application No. 13444/04, Judgment of 30 April 2009 (Unapproved English translation available at www.mdac.info/en/node/187 - last accessed 2 March 2010). 20 Ibid, p 9.

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Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities. Yet despite its obvious deficiencies, Kämpf notes that the 1971 Declaration did encourage the integration of mentally ‘retarded’ persons into mainstream society and specifically addressed the issue of mental disability. It confirmed that such persons had the same fundamental human rights as other human beings and that any denial or restriction of those rights had to be justified by way of proper legal procedures and safeguards. It also emphasised that the inability of a person to fully exercise rights should not be used to justify the removal of legal capacity.21 The ‘MI Principles’ (Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care) The beginnings of a move away from the 1971 Declaration’s ‘protectionist’ approach to the rights of persons with mental disabilities (‘PWMD’) began with the adoption by the General Assembly in 1991 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care22. The primary purpose of these principles was to set down a code of best practice with respect to the treatment and care of people who are mentally ill. These principles provided that a person with a mental illness shall be treated with dignity and humanity23, be free from exploitation, abuse and degrading treatment24, be provided with information about and explanation of their rights25, have the right to privacy26 and be entitled to care and

21

A Kämpf, ‘The Disabilities Convention and its Consequences for Mental Health Laws in Australia’ in B McSherry (ed), International Trends in Mental Health Law (2008) 26(2) Law in Context 10, 16. 22 Adopted by United Nations General Assembly Resolution 46/119, 17 December 1991. 23 Ibid, Principle 1(2). 24 Ibid, Principle 1(3). 25 Ibid, Principle 12. 26 Ibid, Principle 13(1)(b).

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treatment at the same standard as other people who are ill.27 A notable step forward in terms of the rights of persons with mental illnesses was the requirement that care should, as far as possible, be in the community.28 Gostin notes that this communitybased care requirement is reinforced by the duty contained in Principle 9 to treat in the least restrictive environment and to preserve and enhance autonomy.29 Jones30 notes that there was opposition to the Principles even at the time they were proposed. Disabled Peoples International commented during their development: For us, this is not an area where something is better than nothing. The Principles should be by us and for us, and useful to us to defend our rights. If they are not, then we must do everything possible to prevent their adoption, or, failing that, ignore them in our domestic actions.31 Further, the World Network of Users and Survivors of Psychiatry have called for the repeal of the Principles, casting doubt on their credibility given the lack of involvement by ‘users and survivors of psychiatry’ during their development32 and strongly opposed any reference to them in the CRPD.33 The 1991 Principles are notable for the absence of any express definition of what constitutes a ‘mental illness’. Earlier drafts had contained an express definition of the term.34 Principle 4(1) merely states that ‘[a] determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards’.

27

Ibid, Principle 8(1). Ibid, Principles 3 and 7. 29 LO Gostin, ‘Human Rights of Persons With Mental Disabilities – The European Convention of Human Rights’ (2000) 23 International Journal of Law and Psychiatry 125, 132. 30 M Jones, ‘Can International Law Improve Mental Health?’ (2005) 28 International Journal of Law and Psychiatry 183, 202. 31 UN Doc E/CN.4/1989/NGO/75. 32 World Network of Users and Survivors of Psychiatry, Position Paper on Principles for the Protection of Persons with Mental Illness. Available at wnusp.rafus.dk/position-paper-on-principles-for-the-protection-ofpersons-with-mental-illness.html (last accessed 7 April 2010). 33 Jones, above n 30, 203. 34 S Zifcak, ‘The United Nations Principles for the Protection of People with Mental Illness: Applications and Limitations’ (1996) 3 Psychiatry, Psychology and Law 1, 2. 28

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While the MI Principles clearly represent the medical model theory of psychosocial disability which was still present within both the psychiatric and human rights community at the time in which they were drafted, they should not be dismissed out of hand. The focus on community-based care in particular was a major advancement in clinical and disability rights thinking which continues to be a core principle of mental disability services to this day. In contrast, however, the MI Principles’ position on involuntary detention is such as to vitiate almost entirely the right to liberty of persons with psychosocial disabilities. Despite the provisions contained in Principle 9(1) that ‘[e]very patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others’ and in Principle 15(1) that ‘[w]here a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission’, Principle 16(1) goes on to reduce much of the strength of that provision when it addresses the issue of ‘involuntary admission’ stating: A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines ... that that person has a mental illness and considers: (a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or (b) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative. The insertion of the requirement that there be ‘a serious likelihood of immediate or imminent harm to that person or to other persons’ was certainly a higher standard for 80

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lawful deprivation of liberty to occur than had previously been the case in the context of involuntary detention. Ultimately, however, the MI Principles construe the right to liberty as being secondary to the determinative criterion of the existence of a psychosocial disability. The question arises as to what interpretative impact the Principles will have on both state parties’ and the Committee on the Rights of Persons with Disabilities’ interpretation of the provisions of the CRPD, particularly as they apply to the involuntary detention and treatment of persons with psychosocial disabilities. UN General Assembly resolutions, unlike treaties and customary international law, are not directly binding on states, but they are ‘legally significant’.35 Indeed, the Committee on Economic, Social and Cultural Rights, in its General Comment 5, referred to the Principles as ‘guidance’ for the application of international law.36 Despite this, Jones believes that given the low level of protection offered by the Principles, there are only two uses to which they should now be put. First, it would be useful to pick through the MI Principles and take on board the range of ideas consistent with human rights. Alternatively, the Principles should be used as an historical document, offering evidence of how little the international community valued people with psychiatric disabilities in 1991, even though by that time other people with disabilities were beginning to be granted human rights.37 In fact, a persuasive argument can be made that the MI Principles have now been entirely superseded in terms being of any persuasive authority at an international level by the provisions of the CRPD. Such a conclusion is supported by the omission of any mention of the Principles in the Preamble to the CRPD; this despite the deliberate reference and endorsement of the World Programme of Action concerning Disabled Persons38 and the Standard Rules on the Equalisation of Opportunities for

35

E Rosenthal and LS Rubenstein, ‘International Human Rights Advocacy under the "Principles for the Protection of Persons with Mental Illness’(1993) 16 International Journal of Law and Psychiatry 257, 267. 36 Committee on Economic, Social and Cultural Rights, General Comment No 5, Persons with disabilities (Eleventh session, 1994), UN Doc E/1995/22. Available at www.unhchr.ch/tbs/doc.nsf/(Symbol)/4b0c449a9ab4ff72c12563ed0054f17d?Opendocument (Last accessed on 8 April 2010). 37 Jones, above n 30, 202. 38 Adopted by United Nations General Assembly, Resolution 37/52, 3 December 1982. 1.

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Persons with Disabilities39 - international ‘soft law’ instruments which have been broadly approved by civil society organisations and the disability community for their human rights based approach to the issue of mental disability. Indeed, subsequent anecdotal accounts of the CRPD negotiations make clear that the omission of the MI Principles was a key objective of non-state actors involved in the drafting of the Convention.40 Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) 41 The Standard Rules were also adopted at the end of the Decade of Disabled Persons. While not specifically addressing the right to liberty of persons with disabilities, the Rules did endorse the principle that ‘[s]tates are under an obligation to enable persons with disabilities to exercise their rights, including their human, civil and political rights, on an equal basis with other citizens.’42

B.

DRAFTING ARTICLE 14

A general account of the negotiation process which resulted in the CRPD, and in particular an analysis of the development of what was to become Article 14, provides insight into the environment in which this provision was drafted. Such an analysis also goes some way towards explaining why the CRPD negotiations differed so dramatically from previous UN human rights instrument negotiations and how this resulted in the final agreed version of Article 14 which now has such far-reaching implications for the future of involuntary detention of persons with psychosocial disabilities.

39

Adopted by United Nations General Assembly Resolution 48/96 -, - 20 December 1993. Statement made by Mr. Gábor Gombos, Member of the Committee on the Rights of Persons with Disabilities at lecture delivered at ‘Mental Disability Law in Practice’ Summer School, Central European University, Budapest, Hungary – July 2010. 41 Adopted by United Nations General Assembly, , Resolution 48/96, annex, 20 December 1993. 42 Ibid, Rule 15. 40

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1. The Initial Proposal for a Convention and the Formation of the Ad Hoc Committee General Assembly Resolution No. A/RES/56/168 was adopted by the UN General Assembly on the 19 December 2001. It established an Ad Hoc Committee to consider proposals for ‘a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities’. Resolution 56/168 also contained what was to become a central feature of the CRPD drafting process. Paragraph 3 of the Resolution stated that the General Assembly: Invites States, relevant bodies and organizations of the United Nations system, including relevant human rights treaty bodies, the regional commissions, the Special Rapporteur on disability of the Commission for Social Development, as well as intergovernmental and non-governmental organizations with an interest in the matter to make contributions to the work entrusted to the Ad Hoc Committee, based on the practice of the United Nations; (emphasis added)

The inclusion of NGO’s at this level of negotiations for an international convention was unprecedented and was, in part, a response to the repeated slogan of the disability movement – ‘Nothing about us without us’.43 The Commission on Human Rights in turn adopted Resolution 2002/61,44 which referred to the proposed Convention and stated that the Commission ‘encourages the Ad Hoc Committee to adopt working methods which allow for full participation by relevant non-governmental organizations in its deliberations’.45 Lord notes that prior to the adoption of Resolution No. A/RES/56/168, the major international disability NGOs had only lobbied informally within the UN

43

The negotiating slogan ‘Nothing about us without us’ was adopted by the International Disability Caucus, available at: http://www.un.org/esa/socdev/enable/documents/Stat_Conv/nzam.doc [last accessed 28 November 2011]. For more details see Kayess and French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities Human Rights Law Review (2008) 8 (1): 1-34, 4. 44

Commission on Human Rights resolution 2002/61 of 25 April (2002 E/2002/23 - E/CN.4/2002/200)

45

Ibid, para. 15

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system.46 Within the UN the International Disability Alliance (IDA) comprised the substantive disability NGO presence. The IDA comprised the following seven organisations - Disabled People’s International, Rehabilitation International, The World Network of Users and Survivors of Psychiatry, The World Blind Union, Inclusion International, The Deaf Blind Federation and World Federation of the Deaf. These groups had followed disability issues within the UN system, participated in the monitoring of the non-binding UN Standard Rules on the Equalisation of Opportunities for People with Disabilities and served as that instrument’s Panel of Experts (as appointed by the UN Special Rapporteur on Disability). Yet the IDA had not previously worked closely with mainstream human rights organisations.

47

There

was therefore a possibility that the two branches of the disability movement who would be involved in the negotiations would find it difficult to maintain a coherent message and consensus throughout the drafting process given their lack of experience working together within the UN system. Perhaps anticipating such a schism between the IDA and any international NGO which would participate in the negotiation of the CRPD, Resolution No. A/RES/56/510 was passed on the 23rd of July 2002 during the First Session of the Ad Hoc Committee. This resolution solidified the place of all NGOs at the drafting table by affirming that the General Assembly: 1. Decides that accreditation of non-governmental organizations to the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities shall be granted to all non-governmental organizations enjoying consultative status with the Economic and Social Council; 2. Also decides that other non-governmental organizations, not accredited previously to the Ad Hoc Committee, may apply to the Secretariat for such accreditation ...

46

JE Lord, ‘NGO Participation in Human Rights Law and Process: Latest Developments in the Effort to Develop an International Treaty on the Rights of People with Disabilities’ (2003-2004) 10 ILSA Journal of International and Comparative Law 311 at 313. 47 Ibid, 313

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The two groupings of NGOs were therefore, from the beginning of the negotiation and consultation process, viewed as having equal standing (a status which was to be expanded further in later Sessions) before the Committee. They came to be collectively known throughout the convention process as the ‘International Disability Caucus’ (IDC). The number of accredited organisations was increased at each Session of the Ad Hoc Committee. 2. The First Session of the Ad Hoc Committee (New York, 29 July - 14 August 2002) The First Session of the Ad Hoc Committee was held between the 29 July and the 14 August 2002 at the United Nations Headquarters in New York. Of particular significance within this First Session was the decision of the Ad Hoc Committee on the 1 August 2002 (reflected in the Committee’s Report to the General Assembly UN Doc. A/57/357) that: Representatives from non-governmental organizations accredited to the Ad Hoc Committee [1] may participate in the work of the Ad Hoc Committee by: 1. Attending any public meeting of the Ad Hoc Committee; 2. Making statements, given the availability of time, in accordance with current United Nations practice; 3. When time is limited, selecting from among themselves spokespersons, on a balanced and transparent basis, taking into account equitable geographical representation and the diversity of non-governmental organizations; 4. Receiving copies of the official documents, as well as making written or other presentations. Written presentations shall not be issued as official documents except in accordance with Economic and Social Council resolution 1996/31 of 25 July 1996. Furthermore, non-governmental

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organizations may make their material available to delegations in accessible areas designated by the Secretariat; ...48

The Committee also encouraged member states to ‘include persons with disabilities and/or other experts in the field in their delegations to the meetings of the Ad Hoc Committee’.49Specifically, and on a more practical level, in relation to NGOs the Committee urged that ‘efforts be made to ensure that accessibility, with reasonable accommodation insofar as facilities and documentation, is improved for all persons with disabilities’.50. The Committee also established ‘a voluntary fund to support the participation of non-governmental organizations and experts from developing countries, in particular from the least developed countries, and invites Governments, civil society and the private sector to contribute to the voluntary fund’.51 Melish notes that these decisions had a profound impact on the way the treaty was negotiated, both in terms of substance and process. For example, given the UN’s remarkable gaps in architectural and informational accessibility, the Ad Hoc Committee was forced to break with the standard drafting methodology of negotiating distinct articles or pieces of the treaty separately in small informal working groups of interested members. Instead, full article-by-article debate on the Convention had to take place in the plenary of the Ad Hoc Committee (in the UN building’s single wheel-chair accessible large conference room), with the full participation of all Member State delegations and hundreds of civil society representatives. This process required a level of transparency, cooperation, self-restraint, and consensus unmatched in human rights treaty drafting and allowed civil society to monitor, participate in and influence all decision-making discussions.52

48

First Session of the Ad Hoc Committee, 29 July to 9 August 2002. Report of the first session, UN Doc A/57/357. Available at www.un.org/esa/socdev/enable/rights/adhoca57357e.htm (last accessed- on 8 December 2008). 49 Ibid, Section 5, para 13. 50 Ibid, Section 5, para 10. 51 Ibid, Section 5, para 14. 52 TJ Melish, ‘The UN Disability Convention: Historic Process, Strong Prospects, and Why the U.S. Should Ratify’ (2007) 14 - Human Rights Brief 37 at 5-6- these page numbers are incorrect

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The First Session of the Ad Hoc Committee therefore represented, if not the beginning of the Convention, then certainly the foundations for an equitable, consensus-led drafting process. 3. The Substantive Negotiation of the Right to Liberty During the Fifth Session of the Ad Hoc Committee, which was almost exclusively based on a consideration of the domestic mental health procedures which were to operate in states parties, the participants turned their attention to the issue of the right to liberty as it was drafted Paragraph 1 of Draft Article 10. It read as follows: States Parties shall ensure that persons with disabilities: ... (b)

are not deprived of their liberty unlawfully or arbitrarily, and

that any deprivation of liberty shall be in conformity with the law, and in no case shall be based on disability. The issue which many states parties raised was whether a qualification should be added to this statement. The EU in particular suggested that Draft Article 10(1)(b) should be amended to state ‘...and in no case shall be exclusively/solely based on disability.’53 In a footnote to Draft Article 10, the Working Group highlighted the issue which was to dominate the discussions surrounding the right to liberty and which is of particular importance in terms of mental health legislation. It noted that the jurisprudence of the Human Rights Committee (for example, General Comment 8) notes that States interpret deprivation of liberty too narrowly, so that it applies only to the criminal justice system. The HRC has made clear, however, that ‘the right to liberty and security of persons applies to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness or intellectual disability...’. On a related point, the Working Group queried whether a prohibition on

53

Fifth Session of the Ad Hoc Committee, 26 January 2005. Summary of the session available at www.un.org/esa/socdev/enable/rights/ahc5sum26jan.htm (last accessed on 5 February 2009).

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detention based on disability automatically removed the legal basis for civil commitment and, if so, whether it should. By the Seventh Session this provision had become Article 14. The IDC made the most detailed submissions on this Article. Proposing stronger language than had been contained in the Working Text, the IDC proposed that Article 14(1)(b) should read as follows: States Parties shall ensure that persons with disabilities, on an equal basis with others: ... (b)

are not deprived of their liberty unlawfully or arbitrarily, and in no

case shall disability be a factor in a deprivation of liberty. It contended that the provision that ‘deprivation of liberty shall be in conformity with the law’ made the Convention a ‘least common denominator’ of domestic laws; if mental health laws gave power to the authorities to detain people with psychiatric diagnoses, then that part of the sentence would mean that such deprivation of liberty would be in compliance with the Convention. The same would be true for laws authorising custody of people deemed ‘insane’ or ‘of unsound mind’. The IDC further stated that the sentence ‘[i]n no case shall the existence of a disability justify a deprivation of liberty’ would not help to remedy the previous concern as if this phrase were to remain in the text the deprivation of liberty may not be justified by the existence of the disability, but would be justified by other factors that only apply to people with psychiatric diagnoses or suspected of them. It was on this basis that the IDC also rejected the aforementioned earlier proposal to add the words ‘exclusively’ or ‘solely’ on the basis of disability. It is therefore clear that, at least for the IDC and many other NGOs participating in the negotiation of the CRPD, the implications of the Article 14 requiring a disability-neutral basis upon which to justify any deprivation of liberty of persons with disabilities (i.e. the need for most states parties to review the legal grounds for civil commitment) were not only apparent but in fact consciously 88

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advocated for. This is of crucial significance given the subsequent approach taken to the issue of civil commitment by states parties which have ratified the CRPD to Article 14. Clearly, the intense involvement of NGOs and other civil society organisations during both the initial Convention negotiations and the substantive framing of Article 14 played a crucial role in the absolutist, social model formulation of Article 14 as it was ultimately adopted.

C.

INTERPRETATION OF ARTICLE 14 THUS FAR

The arguments that took place around what was to become Article 14(1)(b) during the Ad Hoc Committee Sessions, perhaps most out of all the discussions during the negotiation of the CRPD, represented the theoretical and legal difficulties which can arise when the social model54 (or a radical social construction) of disability, formulated in the context of physical disability, is uniformly applied to psychosocial disability. The result, at least as reflected in the CRPD drafting negotiations, is an argument between two groups with no solid basis for the establishment of a dialogue i.e. although apparently more open to the examination of physical disability in its sociological context, states parties still seem to approach the concept of mental disability from a medical viewpoint, while those who represent and advocate on behalf of persons with mental disabilities insist on the application of a social model. Bartlett, Lewis and Thorold posit that Article 14(1)(b) apparently prohibits civil detention of people based on mental disability.55 Further, the United Nations High Commissioner for Human Rights (UNHCHR) has interpreted Article 14(1)(b) as prohibiting the removal of a person’s liberty on the basis of the existence of a mental disability (i.e. including their involuntary detention under mental health legislation).

54

For more on the social model of disability see – T Shakespeare and N Watson, ‘The Social Model of Disability: An Outdated Ideology?’ (2002) 2 Research in Social Science and Disability, 9 at 13; and T Shakespeare, ‘The Social Model of Disability’ in LJ Davis (ed), The Disability Studies Reader, 2nd edn, (New York, Routledge/Taylor & Francis Group, 2006). 55 P Bartlett, O Lewis and O Thorold, Mental Disability and the European Convention on Human Rights (Leiden, Martinus Nijhoff Publishers, 2007), p 27.

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The UNHCHR notes that proposals made during the drafting of the CRPD to limit the prohibition of detention to cases ‘solely’ determined by disability were rejected. Therefore 'unlawful detention' under the CRPD even encompasses situations where the deprivation of liberty is grounded in the combination of factors such as a mental or intellectual disability and other elements such as dangerousness, or care and treatment. Since such measures are partly justified by the person’s disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability contained in Article 14.56 This interpretation of Article 14 of the CRPD has also been endorsed by the UN’s Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.57 The UNHCHR has clarified that Article 14 of the CRPD should not be interpreted to mean that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.58 An example of a ‘disability-neutral’ basis upon which the law might provide for deprivation of liberty might be a finding of ‘dangerousness to others’, although the definition and application of such a criterion has the obvious potential to be problematic when put into practice at a domestic level by states parties to the CRPD. This requirement that any legislation which seeks to restrict the liberty of an individual which is enacted by a state party to the CRPD be disability-neutral is supported by the aforementioned centrality which the CRPD places on the overarching concept that the rights to equality59, non-discrimination60 and autonomy 61 inhere in persons with disabilities as fully as they do in persons without disabilities. Of further support for the proposition that involuntary detention based on the

56

Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary General, Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities (A/HRC/10/48, 26 January 2009), para 48. 57 UN General Assembly, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, A/63/175, 28 July 2008, para 64. 58 Ibid, para 49. 59 Article 5 of the CRPD. 60 Article 3(b) of the CRPD. 61 Article 3(a) of the CRPD.

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existence of a psychosocial disability is contrary to the CRPD is Article 19 which states the right to live independently and to be included in the community and requires states parties to ‘take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community...’. Not only does this provision clearly place an obligation on states parties to take measures to ensure the vindication of persons with mental disabilities right to independence and a life in the community, it could arguably be said to require states parties to cease funding any public policy or project which would impede the achievement of full community living (e.g. the construction or renovation of psychiatric institutions). The Committee on the Rights of Persons with Disabilities conclusively resolved this issue in April 2011, when it made it adopted its first, and currently only, Concluding Observation62 – a response to the first Country Report that was submitted to them by Tunisia.63 It stated that: With reference to article 14 of the Convention, the Committee is concerned that having a disability, including an intellectual or psychosocial disability, can constitute a basis for the deprivation of liberty under current legislation.64 The Committee went on to recommend that Tunisia: …[R]epeal legislative provisions which allow for the deprivation of liberty on the basis of disability, including a psychosocial or intellectual disability. The Committee further recommends that until new legislation is in place, all cases of persons with disabilities who are deprived of their liberty in hospitals and

62

Consideration of reports submitted by states parties under article 35 of the Convention - Concluding observations of the Committee on the Rights of Persons with Disabilities – Tunisia. Adopted by the Committee on the Rights of Persons with Disabilities on 15 April 2011. Available at www2.ohchr.org//SPdocs/CRPD/5thsession/CRPD-C-TUN-CO-1_en.doc (last accessed 29 August 2011). 63 The attitude of the Committee towards Article 14(1)(b) was somewhat predictable given the initial List of Issues which it published on foot of Tunisia’s report at their Fourth Session which was held from the 4-8 October 2010. At paragraph 15 of this document they ask Tunisia to ‘indicate whether having disabilities, including intellectual, mental and psychosocial disabilities, constitute a basis for the deprivation of liberty under current legislation, either alone or in combination with other grounds. If so, please explain: whether steps are taken to repeal or amend this legislation...’ Both Tunisia’s Periodic Report and the Committee’s response by way of its List of Issues are available at www.ohchr.org/EN/HRBodies/CRPD/Pages/Session4.aspx (last accessed 29 August 2011). 64 Ibid, para 24.

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specialized institutions be reviewed, and that the review include the possibility of appeal.65 In light of this recent statement by the Committee, Sections D and E will seek to examine the options for states parties at both a domestic and international level respectively.

D.

A POST RATIFICATION COUNTRY ANALYSIS- THE UNITED KINGDOM AND THE RIGHT TO LIBERTY

The UK’s interpretation of what constitutes a ‘deprivation of liberty’ is of particular relevance given that it has ratified the CRPD but did not enter any reservation or interpretative declaration in respect of Article 14 at the time of this ratification.66 It is therefore fully bound to interpret its involuntary detention laws in a manner consistent with the right to liberty as it is constructed within the CRPD. However, it has also ratified and domestically incorporated the ECHR by way of the Human Rights Act, 1998 and is therefore also bound by the terms of Article 5(1)(e) of that regional human rights instrument which, as was noted above, specifically provides for the lawful detention of ‘persons of unsound mind’. The UK therefore provides the example of a Council of Europe state which has ratified the CRPD and is thus faced with two competing constructions of the right to liberty of persons with psychosocial disabilities. Two factors which have shaped much of the UK’s jurisprudence on the issue of the right to liberty in recent years - in particular, what constitutes a deprivation of liberty (i.e. a breach of that right) - are firstly, the recent reform of the UK’s two primary sources of mental health legislation by way of the Mental Capacity Act, 2005 and the Mental Health Act, 2007 (an amending act applicable to the Mental Health Act, 1983) and the relationship between these two acts and, secondly, the Prevention of Terrorism Act, 2005 – in particular the imposition of ‘control orders’.

65

Ibid, para 25. The UK ratified the CRPD on the 8 June 2009. It entered reservations in respect of Articles 12, 18, 24 and 27 and a declaration in respect of Article 24 (available at www.un.org/disabilities/default.asp?id=475 – last accessed 3 September 2010). 66

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Although addressing two very different public policy issues, a holistic analysis of the case law on the issue of deprivation of liberty which has emerged as a result of these legislative reforms provides the broad brushstrokes of the UK courts’ approach to determining whether a deprivation of liberty has occurred. These criteria will have obvious relevance for any future interpretation the courts will provide in respect of Article 14 of the CRPD and its requirement that any deprivation of liberty be justified on grounds which are disability-neutral given that, as mentioned above, the United Kingdom has, like Ireland67, incorporated the ECHR into its domestic legal framework and is therefore faced with two apparently opposing concepts of disability. In the context of deprivation of liberty for the purposes of Article 5 of the ECHR, the judgment of Munby J in JE v DE68 is instructive. . JE concerned an elderly man, DE, who had been left blind and with short-term memory loss following a major stroke in 2003. It was likely that he did not have the capacity to decide where he wished to live. In June 2005 he married a woman with whom he had been in a long-term relationship, JE. In September 2005, following an indication from JE that she could not cope, and after she had left DE out on the street, he was placed again at the X home by the local authority. He moved to the Y home in November 2005. He repeatedly indicated that he wished to return home to live with JE. In July 2006, proceedings were commenced to determine the lawfulness of DE's placement, whether he had capacity to decide where to live, and, if not, whether it was in his best interests to live with JE. Having made an interim declaration that JE lacked capacity to determine where he should live and that it was in his best interests to be placed at the Y home, a judge directed the trial of the preliminary issue of whether his placement amounted to a deprivation of his liberty within the meaning of Article 5(1) European Convention. The local authority submitted that the restrictions on DE did not amount to a deprivation of his liberty in light of his relative freedom within the home (including

67

By way of the European Convention on Human Rights Act, 2003. For an analysis of Ireland’s incorporation of the ECHR, see F de Londras and C Kelly The European Convention on Human Rights Act: Operation, Impact and Analysis (Dublin, Round Hall/Thomson Reuters, 2010). 68 JE v DE [2007] 1 MHLR 39.

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the lack of restraint or continuous observation, and freedom of choice within the constraints of his disabilities) and the lack of restrictions on his contact with the outside world (including being encouraged to go on trips outside the Y home, and having contact with JE). It suggested that the only significant restriction was that DE could not live with JE, as that would not be in his best interests, and submitted that all restrictions were based on his best interests in light of his vulnerability and lack of capacity. For DE and JE, it was submitted that he had been and was being deprived of his liberty because he had not been free to leave the X home and was not free to leave the Y home, even though it was his clear and consistent wish to do so to live with JE; this preferred option was specifically prohibited. Munby J held that DE was ‘deprived of his liberty’ at both the X and Y homes. Whilst he had a substantial degree of freedom within both homes and was not subject to any restraint there, and whilst he had a substantial degree of contact with the outside world, he was not at liberty to leave to live where and with whom he chose, namely JE; that question was determined by the local authority, whose action was based on their belief that they were able to use the common law doctrine of necessity to prevent him living with JE as that would be against his best interest. They repeatedly represented to DE and JE that he could not leave the home to live with her; even if those representations were without legal basis, they were effective to deprive DE of his liberty. There was no question of DE consenting to this situation, and since both the X and Y homes were controlled by the local authority, this was imputable to the State. Munby J laid out the following factors as being relevant to such a determination: There is, first, an objective element, namely confinement in a particular restricted space for a length of time which is not negligible. This involves assessing the facts, taking into account criteria such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of and a restriction upon liberty is merely one of degree or intensity and not one of nature or substance. In cases such as 94

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the present, the key factor is whether the person is or is not free to leave, which is tested by determining whether those treating and managing the person exercise complete and effective control over the person's care and movements. There can be deprivation of liberty even if there is no physical barrier or it is in a form such as a key-pad which a resident can operate: accordingly, whilst relevant, whether a person is in a ward which is “locked” or “lockable” is not determinative. Secondly, there is a subjective element, namely that the person has not validly consented to the confinement. Such consent requires capacity. In relation to those with capacity, consent cannot be inferred from the fact that a person has given himself up to be taken into detention (in light of the importance of the right to liberty), but can be inferred from the lack of objection; express refusal of consent by a person who has capacity will be determinative. The lack of objection from a person without capacity cannot lead to a conclusion as to consent. Thirdly, the deprivation of liberty must be imputable to the State. 69 (emphasis added) Accordingly, having applied these three criteria, Munby J found that at all relevant times DE had been ‘deprived of his liberty’ by the local authority and that there had therefore been a breach of DE’s rights under Article 5 of the ECHR.70 Yet despite this apparently clear statement by the High Court on what amounts to a deprivation of liberty under Article 5 of the ECHR in the specific context of an individual with a mental disability, Richardson notes that the law in general remains ‘obstinately uncertain’71 in relation to what does and does not amount to a deprivation of liberty, a fact exacerbated by the House of Lords’ decision in Austin v Metropolitan Police Commissioner,72 where the waters which Munby J sought to clear in JE were again muddied by the Law Lords inclusion of ‘motive’ as a relevant factor when

69

Ibid, p40. Ibid, pp 61-64. 71 G Richardson, ‘Mental Capacity at the Margin: The Interface Between the Two Acts’ (2010) 18 Medical Law Review 56, 75. 72 Austin v Metropolitan Police Commissioner [2009] 2 WLR 372. 70

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assessing whether a deprivation of liberty contrary to Article 5 of the ECHR had been made out. In this case the claimant was a demonstrator who was detained for many hours, having been refused permission to leave an area which had been cordoned off during a demonstration which contained some individuals who were violent and disorderly. She claimed a breach of her right to liberty contrary to Article 5 of the ECHR.

Lord Hope, in the leading decision, held that even in the case of a

fundamental right such as the right to liberty, a ‘pragmatic approach’ should be adopted by courts which took full account of the circumstances73. The learned judge went on to find that “ measures of crowd control will fall outside the area of its application, so long as they are not arbitrary. This means that they must be resorted to in good faith, that they must be proportionate and that they are enforced for no longer than is reasonably necessary.”74 In addition, one of the seminal decisions on the use of control orders under the 2005 Act is that of Secretary of State for the Home Department v JJ & Ors. 75In this case the Secretary of State had made non-derogable control orders under section 1(2)(a) of the 2005 Act in respect of six persons. The orders, inter alia, obliged each controlled person at all times to wear an electronic tagging device, to remain within his specified residence, a one-bedroom flat, except between 10 am and 4 pm, and to permit police searches of the premises at any time. Visitors to the premises were permitted only where prior Home Office permission had been given. During the six hours when the controlled persons were permitted to leave their residences they were confined to restricted urban areas, which deliberately did not extend, except in one case, to any area where they had previously lived. Each area contained a mosque, health care facilities, shops and entertainment and sporting facilities. Each controlled person was prohibited from meeting anyone by pre-arrangement without prior Home Office approval. On appeal from the Court of Appeal decision affirming the quashing of these orders by a lower court, the House of Lords (now the Supreme Court) affirmed the previous order. In doing so it referred to the European Court of Human Rights jurisprudence in this area, in particular the decisions of that court in Engel v

73

Ibid, para 34. Ibid, para 37. 75 Secretary of State for the Home Department v. JJ & Ors [2007] 3 WLR 642. 74

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The Netherlands (No.1)76, Guzzardi v Italy77, Ashingdane v. The United Kingdom 78 and HL v The United Kingdom79 where it had been repeatedly held that deprivation of liberty may take numerous forms other than classic detention in prison or strict arrest. Bingham LJ noted that ‘the variety of such forms is being increased by developments in legal standards and attitudes, ... What has to be considered is the concrete situation of the particular individual. ... Thus the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them.’80 Further, in the recent decision of Secretary of State for the Home Department 81

v.AP

the Supreme Court has applied its decision in JJ to find that in a situation

where due to the residential terms of the control order the individual’s family were unable to visit him, the applicant had been deprived of his liberty contrary to Article 5 of the ECHR. The court affirmed the position it had previously outlined in JJ that in order for a control order with a 16 hour home-confinement curfew or less to amount to a deprivation of liberty, ‘the other conditions imposed would have to be unusually destructive of the life the controlee might otherwise have been living’.82 It is therefore apparent that in the specific context of persons with mental disabilities and their right to liberty under Article 5 of the ECHR, the UK courts had, in the case of JE, taken what could arguably be viewed as a more holistic and expansive interpretation of what amounts to deprivation of liberty than even the European Court of Human Rights itself. They had at the very least gone beyond confining themselves to the procedural issues regarding civil commitment which have dominated most of the Strasbourg jurisprudence in this area. Yet, somewhat ironically, in their analysis of the right to liberty more generally, the UK courts have appeared to have been willing to ‘water down’ their hard-line approach to the right to liberty under the ECHR. The inclusion by the House

76

Engel v The Netherlands (No.1) (1976) 1 EHRR 647. Guzzardi v Italy (1980) 3 EHRR 333. 78 Ashingdane v The United Kingdom (1985) 7 EHRR 528. 79 HL v The United Kingdom (2004) 40 EHRR 761. 80 Above, n 75, para 15. 81 Secretary of State for the Home Department v AP [2010] 3 WLR 51. 82 Ibid, para 4. 77

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of Lords of factors such as the ‘motive’ of the detainer and the ‘impact’ of the detention on the detainee in the decisions of Austin and JJ is of particular concern in respect of Article 14. Such an approach would appear to provide ample justification for a finding of a deprivation of liberty being justified should the UK courts feel bound to apply a disability-neutral criterion for such a deprivation of liberty in accordance with Article 14. The question therefore arises, given these two distinct approaches by the UK courts to the question of what amounts to a deprivation of liberty, what interpretation will be given to Article 14 of the CRPD and will the UK’s incorporation of the ECHR and its ‘persons of unsound mind’ exemption mean that the disability-neutral requirement of Article 14 will only be enforced where it does not conflict with Article 5(1)(e) and/or will the UK courts seek to extend the criteria for deprivation of liberty which has emerged from the control order cases in a disability-neutral context which would seem to allow for a paternalistic approach to the question of whether a deprivation of liberty has occurred? In other words, given the UK’s domestic case law and incorporation of the ECHR, will Article 14 have any impact on the lawfulness of involuntary detention? This question is also of relevance in an Irish context given the applicability of the ECHR in domestic law under the European Convention on Human Rights Act, 2003. An answer to these questions would appear to be closer in light of the recent decision of the Court of Appeal in P (Otherwise known as MIG) and Q (Otherwise known as MEG) and Surrey County Council v CA and LA and Equality and Human Rights Commission83 (hereafter ‘Re MIG & MEG’). The decision in this case was on foot of an appeal from a decision of Parker J in the Court of Protection.84 The case concerned two sisters, MIG and MEG, aged 18 (MIG) and 17 (MEG) with middle to severe learning disorders who were found to have the cognitive ability of children aged two and a half years and four/five years respectively. MIG was living in a foster home and MEG in a residential home. They had contact with each other and other

83

P (Otherwise known as MIG) and Q (Otherwise known as MEG) and Surrey County Council v CA and LA and Equality and Human Rights Commission [2011] 120 BMLR 44. 84 Surrey County Council v CA and LA and MIG and MEG [2010] EWHC 785 (Fam).

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members of their family and attended an educational unit. The nature of their conditions and behaviours meant that both MIG and MEG required a high degree of care and support which included a degree of restraint (both physical and pharmaceutical). It was noted that neither MIG nor MEG had tried to leave their placement, although it was admitted that they would have been restrained if they had attempted to do so. Both MIG and MEG were found to lack capacity. In deciding in the Court of Protection whether the claimants were deprived of their liberty, Parker J referred to both the ECHR case law on deprivation as well as the decisions of the House of Lords in both Austin and JJ, and stated that: I accept that the question of intention in the sense of mental attitude is irrelevant to the question of whether a person is deprived of their liberty. A person’s belief that they are not depriving another of their liberty is likely to be irrelevant and may be inaccurate. … So I treat with extreme caution the suggestion that purpose is relevant in this type of case, save that it does seem to me to be realistic to put into the equation when trying to discern the factual matrix and whether these girls are objectively deprived of their liberty, that both girls were placed in their respective placements as children in need, because they need homes, rather than because they require restraint, or treatment. It is also relevant in my view to consider the reasons why they are under continuous supervision and control.85 While Parker J did acknowledge that the facts in Austin were very different to the present case, she stated: I agree that it is impermissible for me to consider whether, if either is objectively detained or confined, this is with good or benign intentions or in their best interests. But notwithstanding that, as was observed by Lord Walker in Austin, “purpose” does not figure in the list of factors to be evaluated in determining the concrete situation of the person concerned, I am of the view

85

Ibid, paras 64-65.

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that in this case it is permissible to look at the “reasons” why they are each living where they are. In the case of each there are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home. Within those homes, they are not objectively deprived of their liberty. In neither of those homes are they there principally for the purpose of being “treated and managed”. They are there to receive care.86 Citing Baroness Hale’s statement at paragraph 55 of the House of Lords decision in JJ that ‘[I]t also appears that restrictions designed for the benefit of the person concerned are less likely to be considered a deprivation of liberty than those designed for the benefit of society’, Parker J stated that the question of whether there was a deprivation of liberty was based on whether the restrictions on MIG and MEG were of such a degree and intensity that they were objectively deprived of their liberty.87 She ultimately held that no deprivation of liberty had occurred in either case.88 The decision of Parker J therefore represented a strong move towards an Austin-type evaluation of whether a deprivation of liberty had occurred, i.e. a consideration of the ‘reasons’ why a person was placed in a particular situation. The distinction which Parker J made between the ‘purpose’ of the placement (which she did not believed should be a consideration) and ‘reasons’ for the placement (which she thought could be a valid consideration) was less than convincing. It also marked a definite shift towards a more paternalistic evaluation of whether or not a deprivation of liberty had occurred in the case of a person with a mental disability in that it allowed their need for care (although not their need for treatment or management) to mitigate against what might otherwise be a finding of deprivation of liberty. This would not appear to be a construction of the right to liberty of persons with mental disabilities which is consistent with the disability-neutral requirements of Article 14 of the CRPD in that it implicitly justifies their deprivation of liberty on the basis of the existence of their disability.

86

Ibid, para 230. Ibid, para. 236 88 Ibid, para. 237 87

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The decision of Parker J was affirmed in the Court of Appeal by Wilson J who confirmed that no deprivation of liberty had occurred in either case. However, Wilson J did distinguish his decision from that of Parker J in the following manner: To the extent that … the judge [Parker J] was there attaching significance to the fact that the purpose of the arrangements for the girls was to further their best interests, I believe that she was wrong to do so. But, although therefore to a limited extent I dissociate myself from the terminology of that passage, the judge nevertheless was there alighting on a relevant feature. For, by her reference to the provision for the girls of care in a home, the judge was by implication stressing the relative normality of the living arrangements under scrutiny. If the person is living with her parents or other members of his natural family in their home, she is living—in that respect—the most normal life possible. Typically—but sadly not always—there will be no deprivation of liberty in such circumstances … . But, even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions …; and it is in my view necessary to place each case along it.89 Therefore, while the Court of Appeal did not fully accept Parker J’s proposition that the purpose of the living arrangements of MIG and MEG could be a relevant factor in determining whether a deprivation of liberty had occurred, it did accept the idea that the apparent ‘normality’ of MIG and MEG’s placements would reduce the possibility of a deprivation of liberty be found to exist. While perhaps not moving the parameters of the test to the same extent as Parker J in the lower court, the decision of the Court of Appeal is certainly weaker than that of Munby J in JE and still marks a reframing of the criteria for whether a deprivation of liberty has occurred towards a more conservative, Austin-type test. As noted above, in circumstances where the individual

89

[2011] 120 BMLR 44, paras 27-28.

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has a mental disability, tests which take into account factors such as ‘motive’ and ‘purpose’ may prove to be incompatible with the right to liberty of persons with mental disabilities as it is constructed in Article 14 of the CRPD. This is a question which will have to be resolved by the Committee on the Rights of Persons with Disabilities. E.

AN ALTERNATIVE TO LEGISLATIVE REFORM OF

INVOLUNTARY DETENTION?: DECLARATIONS AND RESERVATIONS As outlined above, a consistent reading of Article 14(1)(b) requires states parties to the CRPD to repeal any laws which provide for the deprivation of a persons liberty based, either solely or in combination with other factors, on the existence of a disability, including a psychosocial disability. But what of states parties who wish to ratify the CRPD but do not wish to be bound by the far-reaching implications of Article 14 on mental health laws? Is there an alternative available which would allow that State to ratify the CRPD and rely on international law to exempt itself from the need for legislative reform in the area of involuntary detention? Given the likelihood that many states parties will not be amenable to repealing or amending laws which provide for the involuntary detention of an individual based on the existence of a psychosocial disability, this is an issue which must be addressed. One option which might be proposed by some domestic governments is the mechanism employed by Australia when it ratified the CRPD90, namely the entering of an ‘interpretative declaration’ (i.e. a statement whereby a state purports to clarify the meaning and scope attributed to a treaty or certain of its provisions) when lodging its instrument of ratification. In Australia’s case this ‘declaration’ provided, inter alia: Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for

90

17 July 2008.

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the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards; Although this ‘declaration’ appears only to protect Australia's legal position in terms of Article 17 (right to physical and mental integrity), Australia did not expressly list the Articles of the CRPD which it intended this declaration to apply to. Therefore, at least in theory, Australia could seek to expand the applicability of this ‘declaration’ to issues concerning the right to liberty under Article 14, should that Article be given a broad interpretation by the Committee on the Right of Persons with Disabilities, thereby protecting its current legal position in relation to the involuntary detention and treatment of persons with mental disorders. However, Quinn notes that an alternative interpretation of the type of ‘broad’ ‘declaration’ entered by Australia could be that in failing to specifically cite the Articles to which it would apply, ‘their generality adds to the vagueness which, in itself, might be viewed by some as a separate ground for ‘incompatibility’.91 Further, although Australia has classified this proviso as an 'interpretative declaration', Article 2(1)(d) of the Vienna Convention on the Law of Treaties defines a reservation as: A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the State. (emphasis added) It is therefore open to the Committee on the Rights of Persons with Disabilities to treat Australia's statement as a reservation, despite the fact that it is phrased and categorised by the State itself as a ‘declaration’. If such a finding was made by the Committee, the validity of this declaration would need to be assessed by reference to Article 46(1) of the CRPD which states:

91

G Quinn, ‘Resisting the ‘Temptation of Elegance’: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?’ in OM Arnardottir and G Quinn, (eds), The UN Convention on the Rights of Persons with Disabilities – European and Scandinavian Perspectives (Leiden, Martinus Nijhoff Publishers, 2009), 235.

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Reservations incompatible with the object and purpose of the present Convention shall not be permitted.92 In assessing whether or not a reservation is compatible with the object and purpose of the CRPD, reference should be made to Article 1 of the Convention which states that the purpose of the Convention is: ... 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. Should the Committee take the view that an ‘interpretative declaration’ such as the one lodged by Australia is in fact a ‘disguised reservation’93, it seems probable that it would find this type of exemption incompatible with the equal and non-discriminatory protection and promotion of the rights to liberty required of states parties in relation to persons with mental disorders. Quinn notes94 that the decisions of the European Court of Human Rights in both Belilos v Switzerland95 and Loizidou v Turkey96 are instructive in this regard. In both of these cases, the Court found that the ‘interpretative declarations’ lodged by the respective member states amounted to reservations and were invalid due to their incompatibility with the object and purpose of the ECHR. However, the Court went on to hold that the offending reservation could be severed from the ratification of the Convention as a whole and that this finding of invalidity did not vitiate the ratification of the ECHR as a whole. Extending this principle to any interpretation the Committee on the Rights of Persons with Disabilities might give to Australian-type reservations to the rights of

92

This is in fact a repetition of Article 19(c) of the Vienna Convention on the Law of Treaties which allows for reservations to international treaties unless ‘the reservation is incompatible with the object and purpose of the treaty’. 93 Quinn, above n. 91, 234. 94 Ibid, 238-241. 95 Belilos v Switzerland (1988) 10 EHRR 466. 96 Loizidou v Turkey (1995) 20 EHRR 99.

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persons with mental disabilities, it would appear that the Committee would be justified in finding such ‘declarations’ to be incompatible with the CRPD and therefore invalid, while at the same time finding that a State was still a party to the CRPD (i.e. its ratification of the treaty was unaffected by such a finding of invalidity) and was therefore bound by its provisions in full. It would therefore seem that the lodging of an ‘interpretative declaration’ by a state party at the time of ratification would not provide a means by which to avoid the very stark reality which Article 14 presents, namely that a disability neutral legislative basis must be found by states parties in order to engage in a CRPD-compatible restriction of the right to liberty of any individual. However, it must be acknowledged that any finding of incompatibility by the Committee in respect of a reservation to Article 14 lodged by a state party to the CRPD would lack the accompanying international embarrassment or judicial weight which a comparable finding by the European Court of Human Rights would have in the context of the ECHR.97

F.

INVOLUNTARY DETENTION OF PERSONS WITH MENTAL DISABILITIES IN IRELAND

Given that Ireland has stated its intention to ratify the CRPD subject to the aforementioned reform of its mental capacity laws, what does this mean for involuntary detention in Ireland post-ratification? The involuntary detention of persons with psychosocial disabilities is governed by section 8(1) of the Mental Health Act, 200198 which authorises the making of an admission order where the individual the subject of that order is found to be suffering from a mental disorder.99 The 2001 Act therefore justifies the deprivation of liberty of persons with psychosocial disabilities based on the existence of that disability and would seem to

97

For an analysis of the utilisation of reservations based on cultural relativism in the context of CEDAW and its consequent diluting effect on that instrument, see S Doyle, ‘Ripples in a Whirlpool: Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women' (2004) 1(4) Independent Law Review 114. 98 For the authoritative analysis on involuntary admission in Ireland, see D Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin, Round Hall (Thomson Reuters), 2009), ch 4. 99 The term ‘mental disorder’ is defined in section 3 of the 2001 Act. It alternates between the classic ‘dangerousness’ and ‘treatability’ criterion which are frequently found in counterpart mental health legislation in other jurisdictions.

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be in direct conflict with Article 14 of the CRPD. This is hardly surprising given that the White Paper ‘A New Mental Health Act’100 which formed the basis of the legislation was published in 1995101, over a decade before the adoption of the CRPD by the UN General Assembly. On the basis of the generally paternalistic interpretation of the detention provisions contained in the 2001 Act by the Irish courts thus far102 and the recent ‘warning’ to applicants and their legal representatives by the Supreme Court as regards the challenging of the legality of detention in EH v Clinical Director of St. Vincent’s Hospital103 and that court’s conflation of legal rights and medical best interests in the same judgment, it seems unlikely that any progressive case law on the interpretation of section 8 of the 2001 Act will emerge from the judiciary postratification of the CRPD. From a legislative perspective, section 75 of the 2001 Act requires that a review of its operation be carried out within five years of its establishment. The government has confirmed that the review will commence this year and that the Steering Group put in place for that purpose shall report to the Minister of State with responsibility for Disability, Older People, Equality & Mental Health by June 2012 (with an interim report to be prepared by 31 December 2011) with recommendations, including recommendations for legislative amendments where appropriate.104 According to its Terms of Reference, the review group shall: In consultation with service users, carers and other stakeholders, … review the provisions of the Mental Health Act 2001 having regard to – …

100

White Paper: ‘A New Mental Health Act’ (Dublin, Government Publication, Stationery Office, 1995). Summary available at www.drugsandalcohol.ie/3977/(last accessed 4 November 2010). 101 For a detailed account of the legislative and policy process which led to the enactment of the 2001 Act, see M Keys, Mental Health Act, 2001 (Dublin, Round Hall Ltd., 2002). 102 See, for example, MR v Byrne & Flynn [2007] 3 IR 211. Note in particular that court’s interpretation of the ‘best interests’ requirement contained in section 4 of the 2001 Act. 103 EH v Clinical Director of St. Vincent’s Hospital [2009] 3 I.R. 774. 104 Dáil Deb 21 July 2011, vol 737, col 702.

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(c) the provisions of the UN Convention on the Rights of People with Disabilities,…105 In light of this forthcoming review, it is necessary to examine possible criteria for the deprivation of liberty which might satisfy the disability-neutral requirement of Article 14 of the CRPD. 1.

Treatability as a Legislative Justification for Deprivation of Liberty

The ability of medical professionals to treat and ameliorate an illness as a legal basis for involuntary detention and treatment has been a source of intense debate within both legal and medical circles, most notably in the United Kingdom. Previously, section 3(2)(b) of the UK’s Mental Health Act, 1983 had required that the treatment being proposed was ‘likely to alleviate or prevent a deterioration’ of the patient’s condition. This had led to a situation, specifically in the context of persons with personality disorders, where although a person may have been deemed to be a risk to themselves or others, the fact that his treating doctor was unable to certify that the medical treatment was likely to alleviate or prevent a deterioration in the patient's condition prevented him or her from being involuntarily detained under the Act. Section 1(a) of the Mental Health Act, 2007 removed this treatability requirement. The 2007 Act now requires only that ‘appropriate treatment’ is available. Treatment must have the purpose of alleviating or preventing ‘a worsening of the disorder or more of its symptoms or manifestations’ but it need not be likely to achieve that purpose.106 Yet arguments surrounding the level or appropriateness of treatment necessary to compel a person with a mental disability to receive treatment and be deprived of their liberty implicitly condone the fundamental discrimination which such a criterion makes between involuntary treatment of a mental illness as opposed to the involuntary treatment of a physical illness. The right of a person with capacity to selfdetermination in respect of the latter has been well established in the courts in this

105 106

Ibid. P Fennell, Mental Health – The New Law (Bristol, Jordan Publishing, 2007), 25.

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jurisdiction and the United Kingdom.107 This right to liberty in the context of physical illness is placed above medical paternalism and the possible benefit to the patient. Any distinction which is made between the persons with mental illnesses as opposed to physical illnesses would therefore appear, at the very least, to be incompatible with the non-discrimination clause contained in Article 5 of the CRPD.108 There therefore appears to be a clear prohibition on any legal provision which justifies the involuntary detention and treatment of a person with a mental disability based on the fact that their condition may be treatable. It is of crucial important to note that the CRPD does not distinguish between physical and mental disability in its provisions, a position in accord with the social model of disability upon which, as mentioned above, the Convention is based and which views disability of any type as the result of societal barriers and discrimination. Yet domestic legal systems invariably legislate for mental and physical illness separately. 2.

Capacity as a Legislative Justification for Deprivation of Liberty

On its face, the use of a capacity criterion could provide a Convention-compatible framework within which to justify the involuntary detention and treatment of persons with mental disabilities. It might therefore be possible to use such a method to involuntarily detain only those who lack capacity to make such a decision themselves and require such detention and treatment in their own best interests. Yet when viewed more critically in the context of broader CRPD obligations, capacity as a determining criterion poses a number of difficulties. Firstly, there are no apparent uniform criteria for the assessment of the legal capacity of an individual in this jurisdiction. Irish case law provides little instruction on the actual factors taken into account by the court in making a decision, for

107

See, for example, Re T (Adult: Refusal of Medical Treatment [1992] 3 WLR 782, Re C (Adult: Refusal of Medical Treatment)[1994] 1 WLR 290, Re B (Adult: Refusal of Medical Treatment)[2002] 2 All ER 449. 108 Note that the Richardson Committee in the United Kingdom could not come to a Judgment on this issue and only went so far as to state in its report that “[t]he overwhelming support achieved by the principle of patient autonomy indicates that the enforced treatment of the capable and objecting patient simply in the interest of his or her own health as by defined by professionals is no longer acceptable” (Expert Committee, 1999, para 2.8) in G Richardson, ‘Involuntary Treatment: Searching for Principles’ in K Diesfeld and I Freckelton, (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Aldershot, Hampshire, Ashgate, 2003), 64.

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example, in cases where an individual is found to be of ‘unsound mind’ under the Lunacy Regulation (Ireland) Act, 1871 and admitted into wardship. In general, however, the core requirement of most capacity assessments would seem to be the ability of the individual to understand and use information in order to make a decision. In the specific context of civil commitment, this would mean that a person could understand and evaluate the nature of the treatment which it is proposed they should undergo. In the context of the United Kingdom case law on this point, the case of Re C (Adult: Refusal of Medical Treatment)109 directly addresses the requirement that the information must be ‘appreciated’. This case concerned C, a patient who had been diagnosed as a chronic paranoid schizophrenic while serving a sentence of imprisonment and transferred to a secure hospital. In September 1993 he was found to be suffering from an ulcerated foot which had become gangrenous and transferred to a general hospital, where a surgeon advised treatment by amputation of the leg below the knee, failing which his chance of survival was small. The patient refused his consent to amputation but agreed to conservative treatment, as a result of which his condition improved. However, the hospital refused to give an undertaking that the leg would not be amputated at some time in the future. C applied for an injunction to prevent the amputation of his leg without his written consent. Thorpe J held that: I think that the question to be decided is whether it has been established that C's capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation.... I am completely satisfied that the presumption that C. has the right of selfdetermination has not been displaced. Although his general capacity is impaired by schizophrenia, it has not been established that he does not sufficiently understand the nature, purpose and effects of the treatment he refuses. Indeed, I am satisfied that he has understood and retained the relevant

109

Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819, [1994] 1 WLR 290 (HC).

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treatment information, that in his own way he believes it, and that in the same fashion he has arrived at a clear choice.110 Bartlett and Sandland111 summarise the arguments made in favour of the ‘ability to understand’ test as being based on the theory that this sort of assessment moves away from the judgment of an individual assessor as to the value of the decision in question. Yet they suggest that it is this very objectivity that amounts to the greatest difficulty in the application of this test. The difficulty, they contend, is that while such an assessment may measure cognitive function, it is at best difficult to see how the cognitive function correlates with capacity. Endorsing the view that capacity is determined with reference to specific decisions and that incapacity in one context does not necessarily imply incapacity in another (i.e. a functional approach) the authors ask: [I]s it really possible that the ability of an individual to make a will, or to consent to medical treatment, or both, is appropriately judged on the basis of their ability to count upwards by sevens, or to copy a design of intersecting pentagons? Such tests may be relevant to identify particular cognitive difficulties that may, in turn be relevant to some capacity determinations, but it is difficult to see that they can be central to the analysis.112 In addition, no case law or determining criteria exists specifically addressing the issue of capacity to consent to admission and treatment. In attempting to envisage what elements such a test might incorporate, Bartlett suggests that it would be necessary for the individual to understand that he or she has a mental disorder of the type that the doctor believed warranted admission and that the individual would have to understand that he or she would be residing in a facility, at least for a time. The person might also need to understand that some form of treatment or therapy would be available on admission, if that were the case. However, would they need to understand that, if competent, they could nonetheless refuse such treatment or therapy? Would they

110

Ibid, 295. P Bartlett and R Sandland, Mental Health Law: Policy and Practice, 3rd edn (Oxford, Oxford University Press, 2007). 112 Ibid, 514. 111

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cease to be competent for the purposes of admission if they refused admission because they did not want the treatment, and would it matter in that context if they were competent to make treatment decisions?113 The author also highlights the very real concern that given the empirically proven lack of consensus between medical professionals in assessments of an individual's capacity to consent to medical treatment (an area which has the advantage of a substantial amount of case law, at least in an English context), divergences in opinion would be even more pronounced in

the

previously

undistinguished

field

of

‘capacity

to

consent

to

114

institutionalisation’.

As mentioned above, both the present and previous governments have stated their belief that Ireland’s legal capacity laws, governed as they are by the out-dated Lunacy Regulation (Ireland) Act, 1871, are the major obstacle to ratification of the CRPD.115 The current government has made fresh commitments in this regard and has stated its expectation that a Mental Capacity Bill will be published in ‘late 2011’.116 Yet arguments surrounding the precise criteria appropriate for an assessment of an individual's capacity to consent to admission are, it is submitted, ignoring the fundamental incompatibility of capacity as a Convention-compatible means by which to justify the detention of persons with mental disabilities. Fundamentally, deprivation of liberty based on incapacity is, in effect, based on disability. It is ‘sophistry to separate incapacity from the disability which causes the incapacity’.117 It should be noted, however, that this is not a unanimous opinion. For example, Northern Ireland has taken the position that an act which addressed both mental health and mental capacity would be CRPD-compliant and has stated its

113

P Bartlett, ‘Capacity and Confinement: When is Detention not Detention?’ in K Diesfeld and I Freckelton (eds.), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Aldershot, Hampshire, Ashgate, 2003), 352. 114 Ibid. 115 The Scheme of the Mental Capacity Bill, 2008 was published by the Department of Justice in September 2008 but no Bill was published. See the Press Release of the Department of Justice, Equality and Law Reform, ‘Minister Ahern Announces Proposals for a Mental Capacity Bill’, (15 September 2008), available at www.justice.ie (last accessed 30 August 2011). 116 www.merrionstreet.ie/wp-content/uploads/2011/04/Summer2011.pdf (last accessed 30 August 2011). 117 P Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Future of Mental Health Law’ (2009) 8(11) Psychiatry 496, 498.

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intention to introduce such legislation to the Northern Ireland Assembly in 2011. 118 This is an approach which has been advocated by some legal commentators.119 It therefore seems likely that any attempt to base detention of persons with mental disabilities on the fact of that person’s incapacity to consent to that detention would be incompatible with the requirements of Article 14(1)(b) of the CRPD. This obviously poses clear problems for situations where, in the past, the courts and/or mental health tribunals would have been entitled to make an involuntary admission order based on the incapacity of an individual with a mental illness who requires treatment in order to either prevent a deterioration in their condition or to ensure an improvement in that condition.

3.

Dangerousness as a Legislative Justification for Deprivation of Liberty

It is submitted that given the above findings in relation to the compatibility of treatability and capacity as justificatory criteria for the detention of persons with mental disabilities with the non-discrimination and liberty requirements of the CRPD, the entire basis upon which Ireland (and indeed most other jurisdictions) distinguishes between persons with and persons without mental disabilities and involuntarily detains the former group, must be re-evaluated and reformed. It is further submitted that in engaging in such reform, the CRPD must be translated into a domestic legal instrument which embodies the principles of equality and non-discrimination which the Convention embodies through its social model approach to disability. Indeed, Campbell and Heginbotham identified this lack of equality within civil commitment laws in the early 1990s. They noted that civil commitment rules are, without good reason, applied to persons with mental illnesses when their acceptable

118

Press release of the Northern Ireland Department of Health, Social Services and Public Safety, ‘McGimpsey launches EQIA for new Mental Capacity Bill and Proposals following McDermott Case’, (30 July 2010) www.northernireland.gov.uk/index/media-centre/news-departments/news-dhssps/news-dhssps-july-2010/newsdhssps-30072010-mcgimpsey-launches-eqia.htm (last accessed 30 August 2011). 119 See, for example, G Richardson, ‘Mental Capacity at the Margin: The Interface Between Two Acts’ (2010) 18 Medical Law Review 56-77.

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rationales (e.g. lack of capacity, appropriateness of treatment, danger to self or others) suggest no good reason for limiting them to people with mental illnesses.120 It is suggested that a pathway by which to achieve such equality requires a fundamental shift in approach towards the rights of persons with mental disabilities and their place within the law. They go on to conclude that: Detention can, in principle, be appropriate for physical treatment, or for care and custody where there is a serious risk of harm and inability of individuals to protect and care for themselves, factors which operate irrespective of whether the difficulties and incapacities in question are intrinsically related to a recognised form of mental illness or disorder.121 (emphasis added) Campbell and Heginbotham suggest that interventions restricting liberty would require proof that the individual concerned is either: 1. Non competent, that is unable to make decisions on his own behalf due to general lack of understanding of the nature or significance of his actions or inactions in relation to his own wellbeing; and 2. Needs care or assistance of a type which normally requires the consent of the individual; and 3. Such care and attention is in his best interests. or 1. At substantial risk of serious physical harm, or enduring suffering; because 2. Either he is unable to appreciate the nature and degree of the harm or suffering in question, or holds a manifestly false belief or beliefs on account of which he is unwilling to adopt or accept measures which would avoid or alleviate them; and

120

T Campbell & C Heginbotham, Mental Illness: Prejudice, Discrimination and the Law (Hants, Dartmouth Publishing, 1991), p 111. 121 Ibid, p 123.

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3. He can be protected from such harm or suffering by the proposed intervention; and 4. The proposed intervention is not more intrusive that is necessary to protect him from the harm or suffering.122 The difficulties with a legal justification for deprivation of liberty based on the incapacity of an individual have already been discussed above. It is therefore the second ground upon which such an infringement of the right to liberty might be justified which will be focused on – namely a criterion of ‘dangerousness’ or ‘risk of harm’. A universally applicable form of ‘dangerousness’ legislation is perhaps the most authentic means of framing legal mechanisms which are grounded on the values upon which the CRPD is based (i.e. the principles of non-discrimination, equality, respect for inherent dignity and individual autonomy including the freedom to make one’s own choices). Indeed, the limitation on restriction of liberty except in cases of dangerousness is not a new concept. In the 19th century case of Nottidge v Ripley123 the Lord Chief Baron, Sir Frederick Pollock CB, directed the jury in his summing up of the evidence that they ought to ‘liberate every person who is not dangerous to himself or others...’. The Concept and Boundaries of Dangerousness Although the utilisation of a concept of dangerousness is not foreign to mental health law (being the first justificatory criteria contained in section 3(1) of the 2001 Act) the practical application of a disability-neutral model of dangerousness within the law which would apply to persons with and without mental disorders equally would represent a paradigm shift in domestic law and the vindication of the right to liberty. The clearest argument against the introduction of criteria for involuntary detention based solely on a dangerousness standard and applied both to persons with and without a psychosocial disability is that it is prospective and that the law should not intervene until the actual commission of an offence or violent act. Yet the basis

122

Ibid, p 124. Nottidge v Ripley, The Times (London), 25 June 1849, 7, col. 4, 26 June 1849, 7, col. 2 and 27 June 1849, 7, col. 4. 123

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for such an objection should not go unexamined. Bartlett posits that it is not clear what criminality of an action adds to the action itself. He provides the example of how no assault is committed unless someone feels threatened, a factor which may be effected by apparently arbitrary factors such as how fast the brandisher can run relative to passers-by, or whether a fence separates the brandisher from passers-by. He goes on to suggest (limiting himself to mental health law):

Unless we are to divorce the law of confinement from the condition of the potential patient entirely, it seems bizarre to decide confinement on such arbitrary bases. It makes more sense to consider the actions, rather than the legal question of criminality, and the likelihood that the action will occur.124 It is submitted that the logic of this argument extends to the application of disabilityneutral dangerousness criteria. How then might this provision be framed so as to apply equally both to persons with and without mental disabilities and so be compatible with Article 14 of the CRPD? Bartlett125 refers to Ontario’s Mental Health Act126, section 15(1) of which states: Where a physician examines a person and has reasonable cause to believe that the person, (a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself; (b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or (c) has shown or is showing a lack of competence to care for himself or herself,

124

P Bartlett, ‘The Test of Compulsion in Mental Health Law; Capacity, Therapeutic Benefit and Dangerousness as Possible Criteria’ (2003) 11 Medical Law Review 326, 347. 125 Ibid, 350. 126 Mental Health Act, RSO 1990, c. M-7.

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and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in, (d) serious bodily harm to the person; (e) serious bodily harm to another person; or (f) serious physical impairment of the person, the physician may make application in the prescribed form for a psychiatric assessment of the person. It is submitted that the following amendments to this provision may serve as a template for future disability-neutral legislation: Where a physician examines a person and Where a court/tribunal has reasonable cause to believe that the person: (a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself; (b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or (c) has shown or is showing a lack of competence to care for himself or herself, and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality the court/tribunal is, based on all evidence put before it, of the opinion that non-intervention in respect of that person will likely result in: (d) serious bodily harm to the person; (e) serious bodily harm to another person; or (f) serious physical impairment of the person, the physician may make application in the prescribed form for a psychiatric assessment of the person. The court/tribunal may make such order regarding the detention and/or future conduct of that person as it deems appropriate in all the circumstances. Key elements of any disability-neutral dangerousness legislation would need to include detailed specifics on the nature and degree of the potential injury and proof of 116

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precipitating events in order to justify this form of preventative detention.127 Further, the potential for abuse in the application of such ‘dangerousness’ legislation is obvious and may outweigh any possible benefit of its introduction. As noted above, the lodging of an interpretative declaration or reservation by Ireland in respect of Article 14 would seem to be unlikely to be upheld as valid under international law. Repeal of non-disability neutral legislation which provides for deprivation of liberty and legislative reform of its mental health legislation based on disability-neutral criteria therefore seems to be the only viable option open to Ireland post-ratification. However, as we have seen in the case of the United Kingdom, Council of Europe member states such as Ireland will also have to reconcile the CRPD with the apparently contradicting human rights norms imposed by the ECHR in relation to persons with psychosocial disabilities. It must therefore undertake legislative reform of its system of involuntary detention, the possible approaches for which are, as outlined above, both limited and susceptible to abuse by those charged with its administration. CONCLUSION Article 14 of the CRPD imposes a disability-neutral criterion on all states parties which would appear to abolish the use of the existence of a mental disability as a justifiable criterion for the deprivation by the State of an individual’s liberty and would therefore appear to sound the death knell for the practice of involuntary detention in CRPD countries. This represents a substantial challenge to most legal jurisdictions which have, until recently, had a centuries-long practice of detaining many such persons for the purposes of ensuring treatment. States parties which have ratified the CRPD now face the prospect of substantive legislative and policy reform in order to be seen to comply with Article 14. Yet no country which has ratified the CRPD has as yet (to this writer’s knowledge) either entered an interpretative declaration or reservation directly addressing the application of Article 14(1)(b) to persons with psychosocial disabilities

127

Above, n 124, 351.

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and/or begun a process of re-evaluation and reform of its mental health legislation in order to preclude deprivation of liberty based on the existence of a psychosocial disability. The conclusion previously drawn from this was that such reform would not take place until the Committee on the Rights of Persons with Disabilities made a Concluding Observation on the issue by way of response to a compulsory country report or, alternatively, handed down an Observation regarding an individual complaint made under the Optional Protocol where their government has ratified that instrument.128 It seems likely that many states parties were waiting for such a decision from the Committee before engaging in a process of reform. However, the interpretation which the Committee will give to Article 14(1)(b) seems to be in little doubt in light of its aforementioned recent adjudication on the subject. It therefore falls to states parties who have ratified the CRPD to act in accordance with its recommendations and repeal legislative provisions which allow for the deprivation of liberty on the basis of a psychosocial disability. Ireland will be amongst those countries once it ratifies the CRPD and must therefore take the implications of Article 14 seriously during its statutory review of the Mental Health Act, 2001.

128

The Committee began to sit in session in February 2009 and has received 15 country reports thus far (as of 29 July 2011) – see www2.ohchr.org/SPdocs/CRPD/6thsession/CRPD-C-6-1_en.doc (last accessed 29 August 2011).

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AN ENCHANTED TOOL?: HUMANITARIAN ASSISTANCE AND THE ILC DRAFT ARTICLES ON THE PROTECTION OF PERSONS IN THE EVENT OF DISASTERS

DUG CUBIE*

International humanitarians all too often come to think of their tools – multilateral declarations, documents, institutional networks – as having a kind of inherent humanitarian potency. And the commitment to more global governance fuels enthusiasm to develop and test drive new techniques. This tendency to enchant our tools should make us wary – it often comes at a cost to analysis of the substantive results of their use.1

David Kennedy, The Dark Sides of Virtue

A. INTRODUCTION

Speed of response is essential to protect lives and prevent unnecessary suffering following a natural or human-made disaster, and even developed countries may need the support of the international community to effectively respond to large-scale disasters. Despite being one of the richest countries in the world, Japan ultimately requested international assistance following the March 2011 earthquake and tsunami which not only destroyed towns and villages but also set off a chain reaction in the

* LL.B (Hons) Dundee, LL.M (International) Cantab. PhD candidate, University College Cork and IRCHSS Government of Ireland Scholar. Mr Cubie worked for over 10 years in refugee protection and humanitarian assistance for inter-governmental and non-governmental organisations, including the UN High Commissioner for Refugees, the International Organization for Migration and the Irish Red Cross. 1 D Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press: 2004), 119.

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Fukushima nuclear power plant. Offers of assistance came from over 100 countries, including a donation of US$1million from the Mongolian government and US$50,000 from the city of Kandahar in Afghanistan.2 Considerable effort has been made over the past 50 years in developing and refining international mechanisms for disaster prevention and response. Within the UN system, the first of many General Assembly Resolutions relating to universal responses to natural disasters was passed in 1965 and highlighted the need for greater international coordination of disaster relief.3 Nevertheless, while the international humanitarian law of armed conflict is based on a series of binding multilateral conventions, there is no comparable international legal framework for humanitarian responses in non-conflict disasters. However, large-scale disasters such as the 2004 Indian Ocean Tsunami and 2005 Pakistan earthquake have led to an increased awareness of the need for regulation of international responses to natural and human-made disasters. This is understandable considering the huge amounts of funding provided each year in response to disasters, as well as the urgent need to ensure the smooth and efficient delivery of humanitarian assistance to survivors in the immediate aftermath of a disaster. The international Red Cross Red Crescent Movement4 has been at the forefront of efforts to strengthen both domestic and international legal frameworks for disaster responses, with the International Federation of Red Cross and Red Crescent Societies (IFRC) promoting the concept of a distinct body of law entitled ‘International Disaster Response Laws, Rules and Regulations’ (IDRL).5 The need for regulation of international responses is also clear

2

‘Aid and rescue offers for Japan quake’, Reuters, 15 March 2011, available at: www.trust.org/alertnet/news/factbox-aid-and-rescue-offers-for-japan-quake. 3

Assistance in Cases of Natural Disaster, GA Res. 2034 (XX), 7 December 1965. For an overview of resolutions relating to humanitarian assistance since 1965, see: A Katoch, ‘International Natural Disaster Response and the United Nations’, in International Federation of Red Cross and Red Crescent Societies, International Disaster Response Laws, Principles and Practice: reflections, prospects and challenges (Geneva: 2003). 4 The international Red Cross Red Crescent Movement is comprised of the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (IFRC), and 186 national Red Cross and Red Crescent Societies globally. 5

See: IFRC, International Disaster Response Laws, Rules and Principles (IDRL) Programme Plan 2010-11, available at: www.ifrc.org/en/what-we-do/idrl/about-idrl.

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when one considers that the United Nations has recorded donations of nearly US$20billion for humanitarian assistance following natural disasters since 2000.6

Against this backdrop, the International Law Commission (ILC) included the protection of persons in the event of disasters on its programme of work in 2006, and has since adopted eleven draft articles on the topic. As it is easy to fall into the trap of enchanting international instruments with unwarranted power, or of treating structural outcomes as a guarantee or substitute for humanitarian results7, it is appropriate to examine some of the issues raised by the proposed form and function of the draft articles as they will have an important impact on how issues such as sovereignty, nonintervention, and individuals’ rights and needs are conceived in disaster settings. A fundamental question that has been raised through the work of the ILC is the balance to be struck between technical and logistical responses to disasters that focus on the practical and operational aspects of international humanitarian responses, with rightsbased approaches that focus on the entitlement of victims to a certain level of services in disaster settings and the enforceability of these rights and claims. The ultimate form that the ILC Draft Articles on the Protection of Persons in the Event of Disasters take will reflect decisions made by the ILC and states as to the respective weight ascribed to limitations on state sovereignty contrasted with individual and group rights.

The overall aim of this article is to provide an analysis of the potential forms of international regulation open to the ILC and states in the context of humanitarian responses to disasters. However to avoid enchanting the ILC draft articles with unwarranted power, any examination of form requires an understanding of the substantive subject matter of the planned international regulation. This article will therefore provide an overview of the international legal regulation of humanitarian

6

The UN Office for the Coordination of Humanitarian Affairs tracks donations to international disaster appeals through its Financial Tracking Service (FTS) which covers all reported international humanitarian aid (including NGOs, the Red Cross Red Crescent Movement, bilateral aid, in-kind aid and private donations). The UNOCHA FTS is available at: http://fts.unocha.org/pageloader.aspx?page=home. 7 Kennedy, Dark Sides of Virtue, 116.

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assistance following natural and human-made disasters, and the ILC’s work to date on the protection of persons in the event of disasters. It will then examine two key issues that remain to be addressed by the ILC and representatives of states in the UN General Assembly Sixth Committee as they debate the draft articles. Drawing on the UN Guiding Principles on Internal Displacement, the development and implications of binding and non-binding international texts will be examined, followed by an analysis of the suggested framework convention approach identified by the Special Rapporteur as a potential outcome of the ILC work.

B. INTERNATIONAL LEGAL REGULATION OF HUMANITARIAN ASSISTANCE

1. Defining ‘Humanitarian Assistance’ A wide range of divergent rules exist which attempt to regulate the organisation, planning and implementation of national and international responses to natural and human-made disasters. Minimum standards, model rules, guiding principles and technical requirements all have a direct impact on the delivery of humanitarian assistance.8 Yet there is an extremely limited body of international law which directly deals with natural or human-made disasters – there is no recognised lex specialis for disasters. As highlighted by the IFRC in 2000:

At the core [of humanitarian assistance] is a yawning gap. There is no definitive, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance. No systematic attempt has been made to pull together the disparate

8

See: D Cubie, ‘An Analysis of Soft Law Applicable to Humanitarian Assistance: Relative Normativity in Action?’, 2 Journal of International Humanitarian Legal Studies Vol. 2 – forthcoming.

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threads of existing law, to formalize customary law or to expand and develop the law in new ways.9

Indeed, there is no universally accepted legal definition of what constitutes ‘humanitarian assistance’, and the terms ‘assistance’, ‘relief’ and ‘aid’ are generally used interchangeably. While humanitarian assistance logically includes goods that are necessary to save and sustain life such as food and medical supplies, it can also include the broader conception of ‘humanitarian action’ which includes not just material assistance but all actions taken to ensure respect for people in disaster settings. Although the International Court of Justice examined the principles of humanitarian assistance in the context of sovereignty and non-intervention in the Nicaragua case, they did not examine the content of such assistance beyond noting the vague and circular definition provided in US legislation at the time, namely: ‘“humanitarian assistance” means the provision of food, clothing, medicine, and other humanitarian assistance, and it does not include the provision of weapons, weapons systems, ammunition, or other equipment, vehicles, or material which can be used to inflict serious bodily harm or death.’10

The two binding universal international legal texts of direct relevance to the provision of humanitarian assistance11, namely the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief

9

IFRC, World Disasters Report 2000, International Federation of Red Cross and Red Crescent Societies (Geneva: 2000), 145. 10 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, para 97. 11 Other multilateral conventions, such as the 1965 UN Convention on Facilitation of International Maritime Traffic, 591 UNTS 265 (entered into force 5 March 1967), include provisions of relevance to disaster responses but do not have the primary aim of regulating international humanitarian assistance. There are also multilateral conventions that regulate specific types of human-made disasters, such as the 1986 Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, 1457 UNTS 133 drawn up following the Chernobyl nuclear disaster. However, it was only during the 1990s that a broader conception of the legal framework for responses to natural and human-made disasters became apparent, to a large part through the work of the Red Cross Red Crescent Movement, academic institutes such as the International Institute of Humanitarian Law (IIHL), and articles such as R Hardcastle and A Chua, ‘Humanitarian assistance: towards a right of access to victims of natural disasters’, 325 International Review of the Red Cross, December 1998, 589, and P Walker, ‘Victims of natural disaster and the right to humanitarian assistance: a practitioner’s view’, 325 International Review of the Red Cross, December 1998, 611.

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Operations12 and the Framework Convention on Civil Defence Assistance13, similarly provide limited guidance in determining the limits of what constitutes humanitarian assistance. Reflecting the specific aims and objectives of civil defence organisations, Article 1(d) of the Framework Convention states:

‘Assistance’ means any action undertaken by the Civil Defence Service of a State for the benefit of another State, with the objective of preventing, or mitigating the consequences of disasters. This includes all duties assigned to the Civil Defence Service of the Parties and accepted by the Beneficiary Parties, potentially with the assistance of any other partner.

The Tampere Convention meanwhile does not provide a definition of ‘assistance’ but does clarify that ‘relief operations’ encompasses ‘those activities designed to reduce loss of life, human suffering and damage to property and/or the environment caused by a disaster’.14 Other international sources have been equally reluctant to provide a detailed definition of assistance, with GA Resolution 46/182 simply calling on States to facilitate the work of humanitarian agencies, in particular in the supply of food, medicines, shelter and health care.15 However, the non-binding Guiding Principles on a Right to Humanitarian Assistance developed in 1993 did identify specific actions:

Humanitarian assistance may consist of any material indispensable to the survival of victims, such as foodstuffs, water, medication, medical supplies and equipment, minimum shelter, clothing; of services, such as medical services,

12

Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (1998), 2296 UNTS 5 (entered into force 8 January 2005). 13

Framework Convention on Civil Defence Assistance, International Civil Defence Association, 2172 UNTS 213 (entered into force 23 September 2001). 14

Article 1(12).

15

Strengthening of the Coordination of Humanitarian Emergency Assistance of the United Nations, GA Res. 46/182, 19 December 1991, Annex, Principle 6.

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tracing services, religious and spiritual assistance, as well as civil defence, in conformity with the tasks defined in international humanitarian law.16

While such a definition attempts to give guidance on the types of material and services that should be considered as humanitarian, the expanding concept of humanitarian action and increased awareness of the interconnections between ‘humanitarian’ actions and long-term developmental needs of communities means that humanitarian agencies tend to stress a broad definition of humanitarian assistance that encompasses building resilience and preventative measures. 17 UNOCHA, as the global co-ordinating agency, defines ‘humanitarian assistance’ as: ‘Aid that seeks to save lives and alleviate suffering of a crisis-affected population … Assistance may be divided into three categories – direct assistance, indirect assistance and infrastructure support – which have diminishing degrees of contact with the affected population’.18 Meanwhile, rather than focusing on a definition of ‘relief’, Irish Aid’s Humanitarian Relief Policy19 provides guidance on ‘humanitarian needs’:

Humanitarian need arises when an individual or community (temporarily or otherwise) is no longer able to ensure its own security and survival … Humanitarian relief is the response to an identified and acute need and is intended to save and protect lives. It includes the protection of civilians and

16

Guiding Principles on the Right to Humanitarian Assistance, International Institute of Humanitarian Law (IIHL), April 1993, Principle 9. XVIIth Round Table on Current Problems of Humanitarian Law: ‘The Evolution of the Right to Assistance’, IIHL, San Remo, Italy, 2-4 September 1992. 17

As noted in the 2010 Humanitarian Accountability Partnership’s Standard in Accountability and Quality Management: ‘The work of many organisations is not limited to providing humanitarian relief, but includes all types of assistance to people affected by or prone to disasters, conflict, poverty or other crises. The dividing line between humanitarian and development assistance is fluid. For example, activities such as disaster risk reduction include both types of assistance and, over time, an organisation may provide both disaster relief and development aid to the same group of people’, 2. 18

UNOCHA, Glossary of Humanitarian Terms in relation to the Protection of Civilians in Armed Conflict, UN Office for the Coordination of Humanitarian Affairs, Policy Development and Studies Branch (New York, 2003), 13. It should be noted that the terms and definitions in the glossary were assembled based on their common usage and understanding within a humanitarian context particularly, but not exclusively, as relating to the protection of civilians in armed conflict. 19

Irish Aid, Humanitarian Relief Policy, May 2009, 7. Available at www.irishaid.gov.ie/article.asp?article=1465.

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those no longer taking part in hostilities, the provision of food, water, sanitation services, shelter, health, protection and other forms of life saving assistance.

Meeting humanitarian needs through a proactive approach to disaster risk reduction and prevention measures was highlighted in the Hyogo Framework for Action 2005-2015, which emphasised the need for international cooperation and the benefit of risk assessment and early warning systems as a more cost effective approach than the provision of assistance for post-disaster response and recovery.20 The Framework for Action recognised the importance of international law in this process: ‘In the coming years, consideration should be given to ensuring the implementation and strengthening of relevant international legal instruments related to disaster risk reduction’.21

From an operational perspective, humanitarian assistance can be understood as encompassing actions at all phases of a disaster: disaster prevention and preparedness, relief coordination, reconstruction, protection and support services in addition to the more traditional aspects of emergency food, medical care, shelter and other relief materials. Too strict a definition of ‘assistance’ may ignore the diversity of regional, cultural or religious contexts in which humanitarian operations are undertaken, and the varying needs that different disaster scenarios create. Yet the lack of a universal international legal definition also reflects the disparate and limited sources of legal authority for the provision of humanitarian assistance following natural and humanmade disasters. At a national level, this may mean that victims of a disaster have no

20

UNISDR, Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters, World Conference on Disaster Reduction 18-22 January 2005, Kobe, Hyogo, Japan, UN International Strategy for Disaster Reduction, Priorities for Action 2005-2015, III (b) and (i), at 4-5. As the Hyogo Framework for Action was developed through the UN International Strategy for Disaster Reduction, the UN Secretary-General reports biennially on the progress of the Framework for Action, and the UN General Assembly has produced a series of Resolutions entitled ‘International Cooperation on Humanitarian Assistance in the Field of Natural Disasters, from Relief to Development’. For example, GA Res. 63/141, 10 March 2009 welcomed the cooperation among States, humanitarian agencies, other relevant organisations and civil society in the coordination and delivery of emergency relief, and stressed the need to continue such cooperation and delivery throughout relief operations and medium- and long-term rehabilitation and reconstruction efforts, in a manner that reduced vulnerability to future natural hazards. 21

Hyogo Framework for Action, 13.

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domestic recourse to compel the authorities to provide adequate levels of pre- or postdisaster support.22 Alternatively, international assistance operations may be delayed or refused due to concerns (legitimate or otherwise) as to the types of actions that may be undertaken under the heading ‘humanitarian assistance’. Following Cyclone Nargis in 2008, the Myanmar government refused aid from countries it viewed as ‘hostile’ such as the US, UK and France, and also denied access for international experts including from UN agencies such as the World Food Programme.23 Meanwhile, despite the fact that the Haitian government invited US troops into the country to assist in the immediate aftermath of the devastating January 2010 earthquake, both Fidel Castro and Hugo Chávez accused the US of leading an imperialist occupation under the guise of a humanitarian operation.24 Nevertheless, international law is not entirely silent on the modalities or content of humanitarian assistance.

Previous attempts at codification of international responses to natural and human-made disasters have been made, most notably the adoption of the 1927 Convention establishing an International Relief Union25 under the League of Nations, the 1982 UNITAR Model Rules for Disaster Relief Operations26, and the 1984 draft UN Convention on Expediting the Delivery of Emergency Assistance27. Despite the failure of these initiatives to produce a universal international legal framework for disaster responses, international law does contain specific requirements and legal rules for the provision of humanitarian assistance, and useful analogies can be drawn

22

As noted by the IFRC, most countries do not have special laws in place for facilitating and regulating international relief. Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance, International Federation of Red Cross and Red Crescent Societies (Geneva: 2007), 4. Hereinafter ‘IDRL Guidelines’. 23 S Ford, ‘Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis’, 38 Denver Journal of International Law & Policy 2009-10, 227, 229-231. 24 US troops withdrawing from Haiti, R Carroll, The Guardian, 8 March 2010. 25 League of Nations, Treaty Series, vol.135, p247. For background to the IRU, see: P MacAlisterSmith, ‘The International Relief Union: Reflections on the Convention Establishing an International Relief Union of July 12, 1927‘, 54 Tijdschrift voor Rechtsgeschiedenis 1986, 363. 26

M el Baradei, Model Rules for Disaster Relief Operations, Policy and Efficacy Studies No. 8, UN Institute for Training and Research (UNITAR): 1982. 27

A/39/267/Add.2 – E/1984/96/Add.2, 18 June 1984.

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from other branches of international law.28 Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War29 and Additional Protocols I30 and II31 provide the only universal treaty provisions explicitly recognising a right to humanitarian assistance for civilians, albeit that the rights are limited in scope and only applicable in armed conflicts.32 As much of the academic and practitioner analysis of humanitarian assistance and humanitarian interventions have revolved around the provision of assistance in armed conflicts33, international humanitarian law and international human rights law currently provide a key source of legal provisions and practice regarding access to and delivery of humanitarian assistance. Relevant provisions can also be found in refugee and displaced persons law and in international criminal law, and there is increasing recognition of the interconnection and overlap, as well as gaps, between these various branches of international law.34

28

For a comparison between the legal provisions for humanitarian assistance in the international humanitarian law of armed conflict and the rules applicable in disaster settings, see: D Fisher, ‘Domestic regulation of international humanitarian relief in disasters and armed conflict: a comparative analysis’, International Review of the Red Cross, Vol. 89, No. 866, June 2007, 345-372. 29

Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War, 973 UNTS 286 (entered into force 21 October 1950). Hereinafter ‘GC IV’. 30 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 4 (entered into force 7 December 1978). 31

Protocol II Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 610 (entered into force 7 December 1978). 32

Within GC IV, Article 49 confers limited rights to accommodation, hygiene, health, safety and nutrition during transfers or evacuations of civilians by an Occupying Power; Article 50 covers the situation of children, in particular unidentified, orphaned or separated children; Article 55 confers rights to food and medical supplies for civilians under an Occupying Power; Article 56 covers medical services; Article 58 ensures access to ministers of religion and religious books and articles; while Articles 59-63 cover relief schemes, consignments and relief deliveries for civilian populations and access for humanitarian agencies. Additional Protocol I builds on the protections provided for civilians during international armed conflicts set out in in GV IV, while Additional Protocol II simply provides that relief societies, such as the Red Cross, may offer their services to the victims of an internal armed conflict. For analysis of legal provisions relating to relief for civilian populations in armed conflicts, see: K Mackintosh, The Principles of Humanitarian Action in International Humanitarian Law, Humanitarian Policy Group Report 5, Overseas Development Institute, March 2000 (Study 4 in The Politics of Principle: the principles of humanitarian action in practice). 33

For example: R Barber, ‘Facilitating humanitarian assistance in international humanitarian and human rights law’, International Review of the Red Cross, Vol. 91, No. 874, June 2009, 371; R Stoffels, ‘Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps’, International Review of the Red Cross, Vol. 86, No. 855, September 2004, 515-546; and A Hehir, ‘Guaranteeing the Security of the State and the Individual Through Codifying A Right of Humanitarian Intervention’, University of Limerick Papers in Politics and Public Administration No. 10, 2005. 34

See, for example: T Meron, ‘On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument’, American Journal of International Law Vol. 77, No. 3 (July 1983),

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There are, however, fundamental differences between the factual situation of natural or human-made disasters and armed conflict or refugee and internal displacement scenarios. In general, a natural or human-made disaster will consist of one key event or series of linked events (as in the March 2011 Japanese earthquake, where the earthquake and resultant tsunami led to a nuclear emergency due to damage caused to the Fukushima nuclear power plant). As such, there is generally an identifiable start point to the disaster and while the recovery and rehabilitation of the communities affected may take years, the emergency phase of the operation (and therefore the need for humanitarian assistance as opposed to long-term developmental assistance) will generally only span a period of weeks or months after the key event.35 However, in a situation of armed conflict the needs of the population for humanitarian assistance may continue for years, depending on the resolution or otherwise of the conflict. Similarly, while a displaced persons flow may have an identifiable start point, and a similar need for emergency assistance, the continuing need for the basic necessities for survival may continue for a long period. One only needs to think of the Bhutanese refugees who fled Bhutan for Nepal in the early 1990s. The initial phase of the operation required the establishment of mechanisms for emergency shelter, medical care and food. However, 20 years later nearly 60,000 refugees remain in seven camps in eastern Nepal receiving support and protection from the international community.36

589-606; R Brett and E Lester, ‘Refugee law and international humanitarian law: parallels, lessons and looking ahead’, International Review of the Red Cross, Vol. 83, No. 843, September 2001, 713-726; S Jaquemet, ‘The cross-fertilization of international humanitarian law and international refugee law’, International Review of the Red Cross, Vol. 83, No. 843, September 2001, 651-674. 35

Slow-onset disasters, such as famines, may have a less identifiable start point but national and international humanitarian responses to such disasters generally follow the same trajectory of emergency relief operations followed by longer-term recovery, rehabilitation and developmental actions. 36

See: Trapped by Inequality: Bhutanese Refugee Women in Nepal, Human Rights Watch (New York: September 2003); and information on the UNHCR country operations in Nepal at: www.unhcr.org/pages/49e487856.html.

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2. Limitations on State Sovereignty The lack of a unified body of binding law regulating humanitarian responses to natural and human-made disasters has meant that until recently any discussion around specific rights to humanitarian assistance was often subsumed within the contentious debate surrounding humanitarian interventions.37 The ending of the Cold War in the early 1990s coincided with a series of complex humanitarian emergencies that forced the international community to examine the rationale for and limitations on military interventions by the international community for humanitarian purposes. As noted by Forsyth in 1996: ‘Particularly large-scale relief requires the cooperation of those with the guns on the ground, whatever diplomats and lawyers might say about a right to humanitarian assistance. The only alternative to negotiated cooperation is to overwhelm with military force, which is not a viable option in most situations owing to lack of political will, as well as moral opposition, by important parts of the international community’.38 Yet the military interventions in Somalia, Liberia, Rwanda, Haiti, the former Yugoslavia and Timor Leste in the 1990s reflected postCold War aspirations that a new world order was possible whereby the international community could intervene to protect civilian populations from gross and systematic human rights abuses.39

These humanitarian crises and military interventions therefore refocused the international debate as to the limits of state sovereignty. The former UN SecretaryGeneral, Kofi Annan, took up the theme of redefining sovereignty through his vision of “two sovereignties” in 1999.40 Under this concept, state sovereignty co-exists with individual sovereignty drawn from fundamental freedoms enshrined in the UN

37

Indeed, in some cases the right to humanitarian assistance is conflated with the potential for forcible humanitarian interventions. See: L Fielding, ‘Taking the Next Step in the Development of New Human Rights: The Emerging Right to Humanitarian Assistance to Restore Democracy’, 5 Duke Journal of Comparative and International Law 329, 1994-1995. 38

D Forsyth, ‘International Humanitarian Assistance: The Role of the Red Cross’, 3 Buffalo Journal of International Law 235 1996-1997, at 239. 39

For a succinct analysis of humanitarian interventions in Iraq, Somalia, the former Yugoslavia and Liberia, see C Greenwood, ‘Is there a right of humanitarian intervention?’, The World Today, February 1993, 34. 40

K Annan, ‘Two Concepts of Sovereignty’, The Economist, 18 September 1999.

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Charter and human rights treaties. Kofi Annan stressed that the conflicts and genocide of the 1990s, and the political changes resulting from the end of the Cold War, obliged the international community to rethink how the UN responded to humanitarian crises; and why states acted in some areas of conflict, but not in others even if the level of death and suffering was equally severe.

The UN responded to this call from the Secretary-General, and Canada supported the establishment of an International Commission on Intervention and State Sovereignty (ICISS). Their final report in December 2001 set forth the concept of the “Responsibility to Protect” or R2P.41 Simply put, the Commission advanced the idea that ‘sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states’.42

While initially Governments were reluctant to accept this seemingly major interference in their national sovereignty, the Outcome Resolution of the Heads of State and Government at the 2005 World Summit included the Responsibility to Protect doctrine; thereby confirming that states have the primary responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In parallel, the international community must provide assistance to states in building capacity to protect their populations from such international crimes; as well as assisting states before crises and conflicts break out. The international community also has a responsibility to take timely and decisive action to prevent and halt such crimes when a state is manifestly failing to protect its population.43 While there have been subsequent calls to apply the R2P doctrine in a range of settings, from Darfur to the Democratic Republic of Congo to Libya, Governments and the UN have been slow to expressly invoke R2P, even in cases where international action ensues.

41

ICISS, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, December 2001. 42 ibid, at viii. 43 UN, Implementing the Responsibility to Protect: Report of the Secretary-General, Ban Ki-Moon, A/63/677, January 2009.

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In reality, there is limited international consensus on what R2P means in practice44, and there has been uneven support for the concept by the international community. So despite the introduction of the Responsibility to Protect doctrine, the question of intervention in sovereign states for humanitarian reasons remains highly contentious.45

The on-going debate around the legality and morality of humanitarian interventions is instructive for two key reasons. First of all, humanitarian intervention has traditionally been viewed from the perspective of intervention to stop a Government or other forces within a country from subjecting the population to largescale human rights abuses. This was predominantly understood to occur in times of armed conflict, either of an international or non-international nature.46 There was little, if any, discussion of forcible humanitarian interventions in the context of providing humanitarian assistance in non-conflict settings until 2008 and the perceived lack of response by the Myanmar Government to the needs of the victims of Cyclone Nargis.47 Furthermore, while there may be an understandable focus on military enforcement actions, interventions by one state into the affairs of another

44

See, for example: R Cohen, ‘The Burma Cyclone and the Responsibility to Protect’, Brookings Institute, paper presented at the Congressional Briefing on Security for a New Century, 21 July 2008. 45

For arguments supporting a broad application of humanitarian interventions, see: N Dorr, ‘Humanitarian Intervention – Challenges for the International Community on the Eve of a New Century’, 1999, Trócaire Development Review, 17-37. For counter arguments, see: F Weissman, ‘“Not In Our Name”: Why Médecins Sans Frontières Does Not Support the “Responsibility to Protect”’, Criminal Justice Ethics, Vol. 29, No. 2, August 2010, 194-207. 46 See for example: J Dungel, ‘A Right to Humanitarian Assistance in Internal Armed Conflicts Respecting Sovereignty, Neutrality and Legitimacy: Practice Proposals to Practical Problems’, Journal of Humanitarian Assistance, May 2004, available at: http://sites.tufts.edu/jha/archives/838; and Y Dinstein, ‘The Right to Humanitarian Assistance’, Naval War College Review, Autumn 2000, 77–92. 47

In May 2008 Cyclone Nargis killed at least 138,000 people and affected over 2.4 million in Myanmar. The ruling junta in Myanmar was extremely reluctant to allow Western aid agencies to access the victims of the cyclone, despite reports that the national response was simply unable to cope with the scale of the disaster. Arguing under the Responsibility to Protect doctrine, for the first time some donor Governments raised the prospect of military intervention to provide humanitarian assistance to the victims of a natural disaster. Ultimately, diplomatic and humanitarian pressure ensured that limited aid was provided to the victims without the need for military action, but this aid arrived weeks after the event and in much less quantities than could have been provided. See generally: Ford, Failure to Respond; J Wong, ‘Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism’, 84 Tulane Law Review 219 2009-2010; and TR Jackson, ‘Bullets for Beans: Humanitarian Intervention and the Responsibility to Protect in Natural Disasters’, 59 Naval Law Review 1 2010.

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state do not necessarily require the use of force.48 It is therefore important for any proposed regulation of international humanitarian responses to separate ‘humanitarian interventions’ from ‘humanitarian assistance’.

C. ILC DRAFT ARTICLES ON THE PROTECTION OF PERSONS IN THE EVENT OF DISASTERS

As the UN agency responsible for promoting the codification and progressive development of international law, and considering the contentious debates over the acceptable limitations of state sovereignty in the face of large-scale human suffering, it is perhaps surprising that the International Law Commission (ILC) had not examined the issue of state responses to disasters before 2006. However, the extent of devastation across 13 countries that resulted from the 2004 Indian Ocean Tsunami starkly highlighted both the strengths and shortcomings of international humanitarian responses to massive natural disasters. The unprecedented geographic reach of the Tsunami, as well as the level of destruction in regions such as Aceh Province in Indonesia and in eastern and southern Sri Lanka, stretched the emergency response capacities of both national and international humanitarian agencies.49 The subsequent conclusion of the Hyogo Framework for Action in 2005, and the work of the IFRC in promoting international disaster response laws, were instrumental to the inclusion of the protection of persons in the event of disasters on the ILC’s programme of work. Considering the limited specific provisions of international law for the ILC to draw upon, the topic has progressed with unusual rapidity. Eduardo Valencia-Ospina was appointed as Special Rapporteur in 2008, and has already introduced four reports.50

48

Cohen, The Burma Cyclone and the Responsibility to Protect.

49

For analysis of the Tsunami Evaluation Committee’s work in evaluating the international response to the Indian Ocean Tsunami, see: J Telford and J Cosgrave, ‘The international humanitarian system and the 2004 Indian Ocean earthquake and tsunamis’, Disasters, 2007, 31(1): 1-28. See also: D Fidler, ‘Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law?’, 6 Melbourne Journal of International Law 458 2005. 50

Preliminary Report, 8 May 2008, A/CN.4/598; Second Report, 7 May 2009, A/CN.4/615; Third Report, 31 March 2010, A/CN.4/629; and Fourth Report, 11 May 2011, A/CN.4/643. For analysis of

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Moreover, following the ILC meetings in 2011, eleven draft articles have now been provisionally adopted along with draft Commentaries on articles 1-5.51

The specificity of legal requirements in a disaster setting have been recognised by the ILC52, and as set out in draft article 2 the express purpose of the draft articles is to ‘facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with full respect for their rights’. As such, the ILC is proposing a balancing of needs-based and rights-based approaches to disaster responses and has noted that these two approaches are not mutually exclusive. However, the draft articles to date have not included a definition of what ‘humanitarian assistance’ is, with the Commentaries noting instead that the use of the phrase ‘essential needs’ in draft article 2 is intended to refer to those needs related to survival or similarly essential needs in the aftermath of a disaster.53 While such a formulation provides scope for an expansive view of the needs of survivors of a disaster, it could also be read in the more traditional sense of emergency food, shelter and medical care to the exclusion of broader rights such as the right of survivors and communities to actively participate in the delivery of support and services. Nevertheless, the Commentaries further note that the inclusion of the phrase ‘with full respect for their rights’ is intended to include the complete range of international human rights, such as the right to life, as well as rights acquired under the domestic legal system of the affected country.

To date, the ILC has been wary of enumerating the rights that may apply in the context of a disaster, with draft article 8 simply stating that: ‘Persons affected by

the ILC’s work, see: A Pronto, ‘Consideration of the Protection of Persons in the Event of Disasters by the International Law Commission’, 15 ILSA Journal of International & Comparative Law 2008-09, 449; and J Benton-Heath, ‘Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of the International Law Commission’, 43 New York University Journal of International Law & Policy 2010-11, 419. 51

The text of the Commentaries can be found at: Official Records of the General Assembly, Sixty-fifth Session, Supplement No 10 (A/65/10), Chapter VII, para 331. 52

Draft article 1 defines a ‘disaster’ as: ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’. 53

See: ILC, Commentaries, draft article 2.

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disasters are entitled to respect for their human rights’. The Chairperson of the Drafting Committee that examined draft article 8 has explained that the article is intended to reflect the broad spectrum of international and national human rights, including under customary international law, but also potential limitations of such rights, for example by means of derogations set out in international human rights law.54 However, draft article 8 is intended to complement the commitment provided in draft article 7 that: ‘States, competent inter-governmental organisations and relevant non-governmental organisations shall respect and protect the inherent dignity of the human person’. As explained by the Chairperson of the Drafting Committee, the phrase ‘inherent dignity of the human person’ is intended to reflect the wording of the International Covenant of Civil and Political Rights.55 The references to rights, human rights and human dignity should also be read in conjunction with the requirement set out in draft article 6 that: ‘Response to disasters shall take place in accordance with the principles of humanity, neutrality and impartiality, and on the basis of non-discrimination, while taking into account the needs of the particularly vulnerable’. Taken together, draft articles 6-8 potentially provide a strong basis for ensuring both the rights and needs of people affected by disasters are met, and reflect the recognition that the aim of the ILC work is the protection of persons in the event of disasters and so individuals must remain at the heart of the discussions.56

The manner in which emergency responses to disasters interact with those affected by disasters is further elaborated in draft article 9 through the duty of an affected state to ensure the protection of persons and provision of disaster relief and assistance on its territory, and the corresponding right of the affected state to assume the primary responsibility for the direction, control, coordination and supervision of humanitarian activities on its territory. Moreover, should the extent of a disaster exceed the capacities of the national authorities, the affected state has an obligation to seek international assistance and while the provision of external assistance requires

54

See: ILC, Statement of the Chairperson of the Drafting Committee, Protection of Persons in the Event of Disasters, 20 July 2010, 7-9. 55 Article 10(1) of which reads: ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. See: Statement of the Chairperson, 2010, 6. 56 See for example: Provisional Summary Record of the 3057th ILC Meeting, A/CN.4/SR3057, 4 June 2010, Ms Jacobsson.

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the consent of the affected state, such consent should not be withheld arbitrarily.57 The Special Rapporteur has additionally proposed a draft article that sets out the right of states, the UN, and other competent inter-governmental and non-governmental organisations to offer their assistance to an affected state, although the ILC did not have time to consider this draft article during their sessions in 2011.

Drawing on the UN Charter and reflecting the awareness that international responses to natural and human-made disasters are predicated on the responses of states (both states affected by disasters and states offering their support), the conceptual framework for the draft articles has been identified as the duty of international cooperation.58 Additionally, the relationship between the international humanitarian law of armed conflict and humanitarian assistance in disaster settings is addressed in draft article 4 which clearly states that the draft articles do not apply in situations where the rules of IHL apply. Nevertheless, while there has been general agreement on the broad content and structure of the draft articles, questions remain on sensitive issues including the likely impact on state sovereignty and the principle of non-intervention in the domestic affairs of states. Despite the ILC confirming that the Responsibility to Protect (R2P) doctrine would not play a role in their work on the topic59, Alain Pellet announced during the July 2011 sessions that he believed the Commission had not provided sufficient attention to the concept, and that R2P could or should be the entire thrust of the draft articles.60 Some States have expressed support for such a position and have maintained that R2P should not be excluded

57

Draft article 10 (Duty of the affected state to seek assistance) and draft article 11 (Consent of the affected state to external assistance). 58 For discussion by the Special Rapporteur of the international duty of cooperation, see: Provisional Summary Record of the 3015th ILC Meeting, A/CN.4/SR.3015, 14 July 2011, 14. See also draft article 5 (Duty to cooperate) and the Commentaries on draft article 5. 59

For a summary of debates on the applicability of R2P, see: Official Records of the General Assembly, Sixty-third Session, Supplement No 10 (A/63/10), Chapter IX, paras. 247-250. For confirmation on the non-applicability of R2P, see: Official Records of the General Assembly, Sixtyfourth Session, Supplement No 10 (A/64/10), Chapter VII, para 164. The Irish Government has explicitly supported the Special Rapporteur’s view that the concept of R2P does not apply in disaster response. See the statement by Ireland in the summary of the 22nd Meeting of the UNGA Sixth Committee of 2 November 2009 (A/C.6/64/SR.22), at para 14. 60

Provisional Summary Record of the 3102nd ILC Meeting, A/CN.4/SR.3102, 11 July 2011.

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from the Commission’s deliberations.61 In contrast, Stephen Vasciannie has argued that:

People might be dying at the hands of a recalcitrant or incompetent Government, and the need to respect the most basic human rights might plead urgently in favour of a relief effort. The answer to that dilemma [is] not to allow intervention, but to encourage diplomatic action through the United Nations and by other peaceful means. In the case of disaster relief, the virtuous end of saving lives [does] not justify means that involve[s] taking lives.62

Considering that the UN Secretary-General has already made clear that any expansion of the Responsibility to Protect doctrine beyond the four enumerated international crimes of genocide, war crimes, ethnic cleansing and crimes against humanity would require the Member States of the UN to expressly do so63, it is unlikely that the ILC will seriously consider progressively developing the international law on humanitarian interventions in disaster settings. Indeed, the extent of codification or progressive development that the draft articles should employ in general has also been debated but remains unanswered. As noted by the Special Rapporteur in his Preliminary Report in 2008: ‘given the amorphous state of the law relating to international disaster response, striking the appropriate balance between lex lata and lex ferenda poses a singular challenge’.64

D. FUNDAMENTAL QUESTIONS OF FORM AND FUNCTION

61

See: Poland (A/C.6/64/SR.21, para 76); Hungary (A/C.6/65/SR.21, para 33); and Finland (on behalf of the Nordic countries) (A/C.6/65/SR.22, para 31) requesting clarification on the scope and limits of an affected state’s exercise of its primary responsibility to protect persons affected by a disaster. 62

Provisional Summary Record of the 2980th ILC Meeting, A/CN.4/SR.2980, 17 July 2008, Mr Vasciannie. 63 See: Implementing the Responsibility to Protect: Report of the Secretary-General, Ban Ki-Moon, A/63/677, January 2009, 8. 64

Valencia-Ospina, Preliminary Report, para 59.

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1. Binding or Non-Binding? If one turns from the question of content to what ultimate form the draft articles should take, a comment that appears regularly during interventions made by states in the UN General Assembly Sixth Committee and by ILC members themselves is that the work should be ‘pragmatic’. The original suggestion from the Codification Division of the UN Office of Legal Affairs, which provides the ILC Secretariat, was for the elaboration of a set of provisions which would serve as a legal framework for the conduct of international disaster relief activities and clarify the core legal principles and concepts. The Secretariat proposal in 2006 identified a framework convention as a possible instrument for the finalised draft articles. The model suggested was the 1946 Convention on the Privileges and Immunities of the UN which, in regard to privileges and immunities, serves as a reference point and is routinely incorporated by reference into agreements between the UN, states and other entities. The Secretariat suggested that the ILC text could likewise serve as the basic reference framework for specific agreements between various actors in humanitarian response.65 No final decision has yet been made, either by the Special Rapporteur or the ILC, as to the preferred form that the draft articles will take; although several members have stressed the need to come to an early decision on this point.66 States meanwhile have been more reticent, with only Poland and Ghana explicitly supporting a binding convention format for the final draft articles. Most states, including Ireland, have reserved their positions on the final form of the draft articles, although certain states, in particular the UK, have expressed their preference for nonbinding guidelines or a set of principles.67

65

General Assembly Official Records, Sixty-first session, Supplement No 10 (A/61/10), Annex C, para 24. 66

See, in particular, the records of the 2979th to 2982th ILC meetings in July 2008 (A/CN.4/SR.2979, A/CN.4/SR.2980, A/CN.4/SR.2981, A/CN.4/SR.2982). 67

See, in particular, summary of the 22nd to 25th meetings of the UNGA Sixth Committee in 2008 (A/C.6/63/SR.22 – A/C.6/63/SR.25), and summary of the 20th to 22nd meetings of the UNGA Sixth Committee in 2009 (A/C.6/64/SR.20 – A/C.6/64/SR.22). The Irish Delegation has not made any references to the final form of the draft articles in their statements in the UNGA Sixth Committee in 2009 and 2010. See: Summary of the 22nd meeting of the UNGA Sixth Committee of 2 November 2009 (A/C.6/64/SR.22), and Summary of the 24th meeting of the UNGA Sixth Committee of 29 October 2010 (A/C.6/65/SR.24).

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An interesting analogy can be made with the UN Guiding Principles on Internal Displacement.68 During the 1980s and early 1990s, a wide range of humanitarian agencies, academics and states had called for the elaboration of international norms covering large-scale non-international population movements. So following a request from the UN Commission on Human Rights in 1993, a set of guiding principles were developed by a group of international legal experts, and subsequently presented by the Representative of the Secretary-General on Internally Displaced Persons to the Commission on Human Rights in 1998. The Guiding Principles have been widely endorsed by UN agencies, humanitarian organisations and states, and were subsequently revised in 2004. The Guiding Principles set out 30 principles covering the ‘life-cycle’ of displacement, namely: protection from displacement ab initio; protection of fundamental rights during displacement; the provision of humanitarian assistance; and durable solutions of return, resettlement or reintegration. The original request from the Commission on Human Rights was to develop ‘an appropriate framework … for the protection of internally displaced persons’. However, the request was careful to avoid the term ‘legal’ when referring to the development of this framework.69 The Guiding Principles are intended to provide protection to people forced to flee their homes as a result of, or in order to avoid, the effects of armed conflict, situations of generalised violence, violations of human rights, or natural and human-made disasters.70 As such, they avoid some of the definitional problems faced by UNHCR and national authorities in the refugee determination process, and are intended to provide protection to a broad range of people forced to move internally within a country. Moreover, by expressly including victims of natural and human-made disasters, the Guiding Principles provide a detailed framework for the provision of assistance to those internally displaced by disasters.

68

UN, Commission on Human Rights, The Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2 (1998). 69

W Kälin, ‘How Hard is Soft Law? The Guiding Principles on Internal Displacement and the Need for a Normative Framework’, presentation at Roundtable Meeting, Ralph Bunche Institute for International Studies, 19 December 2001; and R Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’, 10 Global Governance 2004, 459. 70

Introduction, para 2, Guiding Principles on Internal Displacement.

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Despite the normative format of the Guiding Principles, they are not an international treaty so do not carry the binding force of international law. In his Preface to the annotated version of the Guiding Principles in 2008, Walter Kälin, Representative of the UN Secretary-General on the Human Rights of IDPs states:

These Principles, although not a binding legal instrument, have … gained considerable authority. [T]he September 2005 World Summit unanimously recognized them as an “important international framework for the protection of internally displaced persons”, and the General Assembly has not only welcomed “the fact that an increasing number of States, United Nations agencies and regional and non-governmental organisations are applying them as a standard” but also encouraged “all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement”.71

It has been argued that this wide-spread acceptance by states stems from the fact that the Guiding Principles represent a restatement of existing international law, rather than creating new rights for IDPs.72 To date, at least 20 states have adopted national laws or policies based on the Guiding Principles, including states with large IDP populations such as Colombia, Sri Lanka and Uganda.73 Arguably, the process that led to the creation of the Guiding Principles, whereby a group of international legal experts were convened by a Representative of the Secretary-General rather than through the usual deliberative procedures of the General Assembly, ILC or Security

71

W Kälin, Guiding Principles on Internal Displacement: Annotations, ASIL & Brookings-Bern Project on Internal Displacement, Studies in Transnational Legal Policy, No 38 (2008), vii. (Footnotes omitted). 72

Cohen, Guiding Principles, 473-474. Cohen also argued another reason for the wide-spread support was the inclusive process by which they were developed. This meant that leading members of the InterAgency Standing Committee, which includes UN agencies, the Red Cross Red Crescent Movement and inter-governmental and non-governmental humanitarian agencies endorsed the Guiding Principles soon after their publication. See also: H Entwisle, ‘Tracing Cascades: The Normative Development of the UN Guiding Principles on Internal Displacement’, 19 Georgetown Immigration Law Journal 200405, 369, 384. 73

R Cohen, ‘Reconciling R2P with IDP Protection’, Brookings-LSE Project on Internal Displacement, March 2010, 8. Available at: www.brookings.edu/articles/2010/0325_internal_displacement_cohen.aspx.

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Council, allowed for a more inclusive and less state-centric approach.74 As Walter Kälin has observed: ‘where the Guiding Principles were met with resistance, it was not because of their content but because of a suspicion that they might be binding regardless of all assertions to the contrary’.75 The Guiding Principles have therefore provided a flexible approach, by establishing rights and responsibilities in regard to IDPs, while at the same time allowing states to incorporate them into their domestic laws in a manner that reflects their national context.76 It follows that there could be a correspondingly strong argument for the ILC draft articles on the protection of persons in the event of disasters to take a non-binding form, as a means of informing and guiding domestic and regional approaches without binding states to additional international obligations.

However, General Assembly Resolution 46/182 of 199177 has already set out non-binding ‘Guiding Principles’ for UN humanitarian responses, and the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief78 elaborates ten points of principle which non-governmental humanitarian organisations should voluntarily adhere to in their disaster response work. At the state level, in 2007 the IFRC introduced Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance79 which are aimed at local and national state authorities to promote the development of domestic legal preparedness for disasters. To complement the

74

In addition to the work undertaken by the independent legal experts, a series of meetings were organised with regional and international organisations, humanitarian and human rights NGOs, women’s and children’s advocacy groups, legal associations, and research institutions. The Guiding Principles were finalised at a conference of fifty international experts in Vienna in 1998, hosted by the government of Austria. For background see: www.idpguidingprinciples.org. 75

Kälin, Guiding Principles, 7.

76

See: Entwisle, Tracing Cascades; and AM Abebe, ‘Special Rapporteurs as Law-Makers: the developments and evolution of the normative framework for protecting and assisting internally displaced persons’, 15 International Journal of Human Rights 2, February 2011, 286. 77

Strengthening of the coordination of humanitarian emergency assistance of the United Nations, GA Res. 46/182 of 19 December 1991. 78

‘Resolutions of the 26th International Conference of the Red Cross and Red Crescent: Resolution 4’, International Review of Red Cross, No. 310, 1996. 79

IFRC, IDRL Guidelines.

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Guidelines, the IFRC is currently working on a draft national Model Act to further assist states to integrate the recommendations of the Guidelines into their national laws.80 Moreover, the Guiding Principles on Internal Displacement themselves specifically cover persons displaced internally as a result of natural disasters. The ILC is well aware of the need not to duplicate instruments that are already in existence.

Nevertheless, the ILC is also mindful of the potential importance of nonbinding texts. Robert Rosenstock, former Chairperson of the ILC, has stated that ‘codification of lex lata may be no less effective if contained in a paragraph of a report rather than in an article of a multilateral treaty’.81 In the context of the ILC draft articles on State Responsibility, James Crawford noted that although the eventual product of more than 40 years deliberations was likely to be a statement or text appended to a General Assembly resolution, he doubted whether this would affect the influence that the text would have, as the draft articles on state responsibility were being cited by courts and tribunals and influencing the development of international law even prior to their formal conclusion.82

Yet it can be argued that the topic of international disaster response law requires a more systematic approach to codification. While the Guiding Principles on Internal Displacement have proven to be an innovative and effective instrument83, the context of disaster response may require a different approach. There is already a plethora of non-binding resolutions, codes of conduct, and minimum standards

80

The IFRC is working in conjunction with the UN Office for the Coordination of Humanitarian Affairs (UNOCHA) and the Inter-Parliamentary Union to draft a Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance. A pilot version of the Model Act was presented to states and humanitarian agencies at the 31st International Conference of the Red Cross Red Crescent Movement in November 2011. A consultation draft of the Model Act is available at: www.ifrc.org/en/what-we-do/idrl/model-act-on-idrl. 81

R Rosenstock, ‘The ILC and State Responsibility’, 96 American Journal of International Law 2002, 792, 792. 82

J Crawford, ‘Responsibility to the International Community as a Whole’, 8 Indiana Journal of Global Legal Studies 2, Spring 2001, 303, 310-111. See also: D Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’, 96 American Journal of International Law 2002, 857. 83

Both Walter Kälin and Roberta Cohen have argued against the creation of a multilateral binding convention on IDPs. See: Kälin, How Hard is Soft Law, 2-5; and Cohen, Guiding Principles, 475-476.

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relating to humanitarian assistance, which cover both humanitarian principles and operational responses.84 There are also a wide range of bilateral, trilateral and regional instruments relating to disaster risk reduction, civil defence and mutual assistance that have a direct bearing on the topic.85 In light of this, the question that the ILC has not yet addressed is whether an additional non-binding, but potentially authoritative, instrument would ultimately improve outcomes for persons affected by natural and human-made disasters.86 Alternatively, would a binding multilateral treaty ensure a greater level of compliance by states, albeit to potentially less rigorous standards?

2. The Framework Convention Approach International disaster response laws are still evolving, and the Special Rapporteur noted in his Preliminary Report that ‘the special characteristics of such a novel undertaking might make it advisable to arrive at an early understanding of what the final form should be, especially if guidelines, rather than a convention, might make the final draft more acceptable to States’.87 The possible forms that international legal texts can take are multitudinous. In 2005, Dr Boško Jakovljević, who has acted as a legal advisor to the Red Cross Red Crescent Movement since the mid-1960s, identified the following forms of international instrument that could be relevant for international disaster response laws:

a declaration of basic or core principles; a declaration of operative principles and rules; model bilateral or regional agreement; a declaration by one of the UN bodies on the need for the consolidation of the rules called “IDRL”; guidelines

84

See: Cubie, An Analysis of Soft Law Applicable to Humanitarian Assistance.

85

See: Law and Legal Issues in International Disaster Response: A Desk Study, International Federation of Red Cross and Red Crescent Societies (Geneva: 2007); and Secretariat Memorandum on the Protection of Persons in the Event of Disasters, 60th Session of the ILC (11 December 2007, A/CN.4/590). 86

Arnold Pronto, Senior Legal Advisor to the Secretariat of the ILC, has highlighted that in any event it may not be correct to portray the status of a particular instrument as being ‘non-binding’ when some of its provisions may actually be binding at the international level, either by virtue of an existing treaty arrangement or customary rule, or binding internally within a state by virtue of its domestic law. See: Pronto, Consideration of the Protection of Persons, 455-57 for a discussion of whether the ILC draft articles should be binding or non-binding. 87

Valencia-Ospina, Preliminary Report, para 60.

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or a handbook for those engaged in these operations; set of recommendations by a high international body, such as the UN General Assembly or ECOSOC, or the International Red Cross and Red Crescent Conference; set of principles and rules on the powers and role of the international co-ordinator; regional and recommendable rules and good practices; amendments to the international conventions regulating specific aspects of relief operations.88

Considering such a wide range of potential texts, one may well ask: what is the most appropriate form for codification of international disaster response law, and will the choice of instrument potentially affect the outcomes for persons affected by disasters?

As highlighted during the ILC discussions in 2008, the ultimate form of the draft articles will be influenced by the balance between codification and progressive development of international law undertaken. Georg Nolte has argued that a binding convention would make sense only if those states that typically hesitated to allow a free flow of disaster relief would be likely to ratify it, and such states would ratify a convention only if it was a credible effort to codify existing law and ensure good practice. If, on the other hand, the emphasis was placed on progressive development, then guidelines would be more appropriate.89 Donald McRae, meanwhile, has argued that the pragmatic goal was to lay down a framework of rules, guidelines or mechanisms that would facilitate practical international cooperation in responding to a disaster, in order to make such responses more effective and thus provide protection to individuals who were entitled to it. Nevertheless, he observed that such principles or guidelines would involve placing obligations on states, international organisations

88

B Jakovljević, ‘Some Reflections on International Disaster Relief Law’, paper presented at International Institute of Humanitarian Law conference, in panel discussion on ‘The Protection of Human Beings in Disaster Situations – The Tsunami Tragedy – International Solidarity’, San Remo, Italy, 8-10 September 2005, 171. It should be noted that Dr Jakovljević cautioned that a universal international convention, or even a framework convention, which contained specific and concrete obligations should only be considered at a later date, when international disaster response laws have attained a certain degree of general recognition on the main principles and rules. One could argue that in the intervening years the involvement of the ILC in developing draft articles on the protection of persons in the event of disasters is helping to consolidate the main principles and rules. 89

Provisional Summary Record of the 2980th ILC Meeting, A/CN.4/SR.2980, 17 July 2008, Mr Nolte.

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and non-governmental organisations which might ultimately mean the conclusion of a draft convention.90

The arguments against proceeding to a diplomatic conference to produce a multilateral convention are well-known: the length of time it takes to develop international consensus, particularly in novel areas of the law; the risk that states will unpick or dilute carefully crafted compromises developed by the ILC in the course of their deliberations; the possibility that the topic will become politicised; if a text is finally agreed the lack of willingness by states to ratify treaties; and finally the effect that reservations made by states have on the normative content of treaties, particularly human rights treaties.91 With challenges like those, one would be forgiven for despairing for the future of any multilateral convention process. However, while noting that deferring a decision on form can focus delegates’ minds on the content of a text, James Crawford pointed out in his First Report as Special Rapporteur on State Responsibility that the law of treaties was initially thought not to be appropriate for codification or progressive development. It was even argued that presenting the topic in the form of a treaty itself was logically excluded. Yet the Vienna Convention on the Law of Treaties is recognised as having had a more lasting and beneficial effect as a binding multilateral convention than it would have had as a non-binding resolution or declaration.92 Meanwhile, during the debates on the ultimate form of the draft articles on state responsibility, it was argued that it would be unrealistic to expect the General Assembly to adopt the text as a declaration without first substantially amending the draft articles. Furthermore, there was no guarantee that states would not

90

Provisional Summary, 2980th Meeting, Mr McRae. D Bodansky and J Crook, ‘Symposium: The ILC’s State Responsibility Articles: Introduction and Overview’, 96 American Journal of International Law 2002, 773, 790-791. See also: Kälin, How Hard is Soft Law, 2-5; Cohen, Guiding Principles, 475-476; and Caron, Articles on State Responsibility, 863865. 91

92

J Crawford, First Report on State Responsibility, A/CN.4/490, 24 April 1998, para 41. Although, it should be noted that Crawford has also argued that ‘the Vienna Convention has hardly ever been applied, as a treaty, to other treaties … [Therefore] there has not yet been a case where it would clearly have made a difference to the result whether the Vienna Convention applied qua treaty, as distinct from qua authoritative statement of the customary international law of treaties’. See: Crawford, Responsibility to the International Community, 310.

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attach interpretative declarations to the instrument; therefore a General Assembly declaration entailed the same problems as a convention, but without the advantages.93

Indeed, writing in 1985 just after the publication of the unsuccessful draft Convention on Expediting the Delivery of Emergency Assistance, Peter MacAlisterSmith noted ‘an international declaration on humanitarian assistance ... should not be expected to contribute greatly to solving the problematic aspects of international relief action. Such a declaration is likely to be simply an expression of aspirations’.94 He continued: ‘It may be most productive in the long run to proceed cautiously with initial efforts to codify relief law. A set of technical rules of a relatively detailed and specialised nature which could be adopted and applied without deviating from currently accepted practices could prove to be a useful and realistic way of expediting international relief’.95 The Secretariat’s suggestion of a framework convention has received a certain level of support within the ILC, with Alain Pellet describing the approach as an appropriate compromise between a traditional treaty which is ‘hard’ in form and substance, and ‘soft’ instruments whose good intentions set alarm bells ringing in advance.96 Indeed, a binding framework convention may be the most appropriate form of instrument to improve humanitarian responses. States and humanitarian actors would be able to work together from an agreed understanding of the rights and responsibilities required in disaster settings, provided such a convention works in conjunction with other regional and international agreements on mutual assistance, civil defence and disaster management. In fact, as highlighted by Shinya Murase, a framework convention may actually facilitate such bilateral, trilateral or regional agreements.97 This approach would also recognise that international disaster response laws are still evolving and may require amendment and development in the coming

93

Official Records of the General Assembly, Fifty-third Session, Supplement No 10 (A/56/10), Chapter IV, para 65. 94

P MacAlister-Smith, International Humanitarian Assistance: Disaster Relief Actions in International Law and Organization, Martinus Nijhoff Publishers, 1985, 160. 95 ibid. 96 Provisional Summary Record of the 2981st ILC Meeting, A/CN.4/SR.2981, 18 July 2008, Mr Pellet. 97 Provisional Summary, 3102nd Meeting, Mr Murase.

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years. One can envisage an overarching framework convention which provides a solid base by ensuring agreed definitions and principles for humanitarian responses, both between parties to the convention and as an authoritative point of reference for the conclusion of bilateral, trilateral and regional agreements. Over time, this could then be followed by protocols or subsidiary agreements on technical or operational matters, similar to the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, the UNITAR Model Rules for Disaster Relief Operations, or the IFRC IDRL Guidelines and national Model Act.

Yet such a conclusion raises the question of what the normative content of such a framework convention should be. Is it intended as a convention that will facilitate the operational aspects of international humanitarian relief between states? If this is the case, then does the Framework Convention on Civil Defence Assistance provide the correct model? This Framework Convention has limited, but important, objectives: a) promoting co-operation between Civil Defence Services, particularly with regard to training of personnel and exchange of information and expertise; and b) reducing obstacles to assistance and particularly delays in intervention. Alternatively, does the Council of Europe Framework Convention on the Protection of National Minorities98 provide a more appropriate model? By detailing a range of rights and freedoms that states must respect in regard to individuals of national minorities, the convention provides a framework for the protection of persons, as well as the cooperation of states.99

For the context of disaster response, the approach to be taken is perhaps more a question of emphasis. For example, is the emphasis on improving the efficiency of inter-state relationships during a disaster, allowing for expedited delivery of relief goods and assistance, thereby ensuring that people affected by a disaster have access

98

Framework Convention on the Protection of National Minorities, Council of Europe (1995), UNTS, Vol 2151 No 37548, p243 (entered into force 1 February 1998). 99 The Framework Convention is not without its critics, see: G Alfredsson, ‘A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures’, 7 International Journal on Minority and Group Rights, 2000, 291.

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to sufficient and appropriate support? Or is the emphasis on the individual rights and concomitant state responsibilities that arise in regard to natural and human-made disasters? Focusing on the first may help reassure states that no radical incursions into state sovereignty or interference in their domestic affairs are envisaged. However, we must not forget that there are a minority of states that may be unwilling to provide the necessary and appropriate assistance to persons in their territory who require protection. The reluctance of the Myanmar Government to accept humanitarian assistance immediately following Cyclone Nargis in May 2008 is perhaps the best known example. Yet the limited national response to the severe cholera epidemic that hit Zimbabwe in 2008 also prompted calls for forcible humanitarian interventions.100 Ultimately, in both these cases it was diplomatic pressure from neighbouring states that had the greatest impact on allowing humanitarian access to the survivors, although it has been argued that the invocation of forcible intervention via the Responsibility to Protect doctrine by France following Cyclone Nargis assisted neighbouring states to access the survivors through diplomatic means.101 While hard cases may make bad law, in the most recent session of the ILC Ernest Petrič argued that it is precisely the purpose of the law to regulate irregular situations, such as when states refuse to provide assistance to persons in need on their territory. It followed, he maintained, that it was on this aspect of the topic that the Commission should concentrate more.102

It is notable that the original memorandum from the Secretariat in 2006 was entitled ‘International disaster relief law’, but that the Commission decided to change the title of the topic to ‘Protection of persons in the event of disasters’.103 It has been argued that this change in the title, and therefore in the emphasis of the topic, indicates a preference for concentrating on the protection of persons and specific

100

See, eg: S Davies, ‘Is There an International Duty to Protect Persons in the Event of an Epidemic?’, III Global Health Governance 2 (Spring 2010). 101

Cohen, The Burma Cyclone and the Responsibility to Protect.

102

Provisional Summary Record of the 3103rd ILC Meeting, A/CN.4/SR.3103, 12 July 2011, Mr Petrič. 103

Provisional Summary Record of the 2978th ILC Meeting, A/CN.4/SR.2978, 15 July 2008, Mr Valencia-Ospina (Special Rapporteur).

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standards of treatment to which individual victims of disaster are entitled, rather than on the operational aspects of relief.104 Yet the mere fact that the ILC is examining the protection of persons in the event of disasters risks raising expectations within the humanitarian community regarding the development of a new approach to individual rights in disaster settings. However perhaps, as advocated by Donald McRae, it is through facilitating the operational responses of states and international humanitarian actors that the ILC can ensure the greatest humanitarian results for individuals.

CONCLUSION

The international legal framework for humanitarian responses to disasters is still evolving, and like surgeons, different contexts require different instruments. So while the Guiding Principles on Internal Displacement succeeded as a non-binding document, the multitude of existing non-binding texts relevant to humanitarian responses need to be condensed and formalised. The ILC programme of work on the protection of persons in the event of disasters provides an opportunity for this to occur, and for the development of an international consensus on both the form and content of a binding text. Yet a new international law instrument will not act as a panacea for the millions of victims of natural and human-made disasters each year. More to the point, the evidence base for analysing whether or not a universal multilateral convention is the most effective means of promoting the protection of persons in the event of disasters is not available. Therefore, despite David Kennedy’s warnings, one must currently proceed on the assumption that facilitating states and humanitarian actors working together from an agreed understanding of the rights and responsibilities required in disaster settings will lead to improved humanitarian

104

Provisional Summary, 2978th Meeting. See also: Provisional Summary, 2980th Meeting, Mr Saboia.

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outcomes for the victims of a disaster.105 This implies an interconnection and synthesis of national, regional and international legal frameworks.

It follows that focusing on developing a binding international framework of agreed responsibilities for affected states, donor states and other humanitarian agencies at all stages of a disaster has the potential to improve disaster responses, and therefore the actual outcomes for individuals affected by disasters. This necessitates a broadly state-centric approach to the final text, as the authorities of an affected state will understandably want to ensure a certain level of control and coordination of relief activities taking place on their territory. Yet non-state humanitarian actors provide the majority of humanitarian assistance, either directly or through funding received from donor governments. It is therefore of crucial importance that the international framework

developed

provides

inter-governmental

and

non-governmental

humanitarian actors with legal certainty and standing commensurate to the role that they play in disaster response. Furthermore, if the aim of the instrument is to provide protection to persons, then the rights of individuals and groups affected by disasters must remain at the forefront of the debate.

The ILC is engaged in a delicate balancing act, trying to ensure that the rights and responsibilities of all actors in a disaster setting (states, humanitarian agencies, local communities and individuals) are respected. If too much emphasis is placed on the right of states to non-intervention in their domestic affairs, individuals may then suffer from a lack of assistance in a time of great need. Conversely, if it is felt that too much emphasis is placed on the rights of individuals within the ILC draft articles, then states may not move towards the conclusion of a binding international legal framework for the protection of persons in the event of disasters. In recognition of the potentially insurmountable difficulties in securing international agreement on a substantive convention, the format of a framework convention should be seriously considered as a means of providing an overarching umbrella for international

105

MacAlister-Smith argued in 1985 that: ‘Relief must above all be effective, and better implementation depends on better planning, law, and organization’. See: MacAlister-Smith, International Humanitarian Assistance, xii.

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agreement and cooperation in disaster response. However, rather than a purely technical approach as represented by the 1946 Convention on the Privileges and Immunities of the UN, the Framework Convention on Civil Defence Assistance and Council of Europe Framework Convention on the Protection of National Minorities might provide more appropriate models for consideration.

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152

IRELAND AND THE UN DECLARATION AGAINST TORTURE

Ireland and the United Nations Declaration Against Torture: Principles and Politics in Action

Michelle Farrell*

We must reverse the drift towards tolerance of this most evil weapon of public policy. It must be outlawed; no excuses must be made for it; and no excuses must be made for any state that indulges in it, whatever part of the world it may be in.1

On 9 December 1975, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was formally adopted by the United Nations General Assembly.2 The Declaration against Torture, whilst not legally binding, was, nevertheless, a crucial step towards a concrete commitment to the eradication of torture.3 As predicted by the Swedish delegate at the 30th Session of the United Nation General Assembly,4 it laid the groundwork for an international convention, the Convention against Torture

* EJ Phelan Fellow in International Law, National University of Ireland Galway (NUIG); BA (TCD), LLM (NUIG), PhD (NUIG). The author would like to thank Aisling O’ Sullivan for her useful comments and suggestions on this article. All errors are of course the author’s own. The author also wishes to acknowledge the financial support of the National University of Ireland and the anonymous reviewers for their comments. 1

National Archives of Ireland (NIA) DFA 2006/131/1427 ‘Speech at the United Nations General Assembly 29th Session by Garrett Fitzgerald, Minister for Foreign Affairs, 1974’ cited in ‘Statement made by Mrs. Carmel Heaney, Third Committee Agenda Item 74’ November 1975. 2

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UNGA Res 3452 (XXX) 9 December 1975. 3

M Lippman, ‘The Development and Drafting of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (1994) 17 Boston College International & Comparative Law Review 300. 4

UN GAOR, 30th Session, Third Committee, Summary Records, A/C.3/SR.2165, para. 53 quoted in N Rodley and M Pollard, The Treatment of Prisoners under International Law (3rd edn Oxford: Oxford University Press 2009) 36.

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and Other, Cruel, Inhuman and Degrading Treatment or Punishment, adopted by the United Nations General Assembly on 10 December 1984.5 This article will focus on Ireland’s contribution to this crucial period in the history of the prohibition of torture. In the early 1970s, Ireland was involved in the preparation and subsequent co-sponsorship of a number of anti-torture resolutions at the United Nations General Assembly, including the Resolution on the Declaration against Torture in December 1975. Whilst actively involved at the United Nations, Ireland was also having a more indirect impact on the development of the prohibition of torture in Europe. In 1971, the Irish Government decided to take an inter-state petition against the Government of the United Kingdom to the European Commission on Human Rights alleging breaches of the European Convention on Human Rights and Fundamental Freedoms.6 This culminated in the Ireland v UK judgment of the European Court of Human Rights,7 which remains authoritative on the interpretation of Article 3 of the European Convention.8

Thus, during the 1970s, the Irish

Government was actively involved at the international level, in a normative capacity, and at the regional level, in the judicial organs of the Council of Europe, in advocating the respect for, and the promotion of, the ban on torture. Whilst the primary aim of this article is to extrapolate Ireland’s policy on the torture prohibition at the United Nations, the aforementioned inter-state case will be referred to where relevant, given its direct bearing on Ireland’s policy choices and diplomatic engagement at the United Nations. Inter-departmental communication at the Department of Foreign Affairs in Dublin as well as communication between the Department of Foreign Affairs and the Irish Permanent Mission at the United Nations in New York indicate that the maintenance of a careful diplomatic balance between developments with the inter- state case at the European Commission in Strasbourg

5

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) G.A. Res. 39/46, 39 U.N. GAOR, Supp. (No. 51), U.N. Doc. A/39/51, at 197 (1984), reprinted in 23 ILM 1027 (1984), minor changer reprinted in 24 ILM 535 (1985), 5 HRLJ 350 (1984). 6

See generally: WA Schabas and A O’ Sullivan, ‘Politics and Poor Weather: How Ireland Sued the United Kingdom under the European Convention on Human Rights’ (2007) 2 Irish Yearbook of International Law 3. 7

Ireland v United Kingdom (App no 5310/71) ECHR 18 January 1978

8

W Schabas and A O’ Sullivan, ‘Politics and Poor Weather’ (n 6) 3.

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and events in New York was often the priority for the Irish Government. Therefore, from the perspective of Ireland’s human rights policy, this article provides an insight into how such policy can be both informed and constrained by political or diplomatic concerns.

A. The Prohibition of Torture under International Law With the establishment of the United Nations in 1945, the human rights movement began in earnest. 9 On 10 December 1948, the Universal Declaration of Human Rights was adopted containing the unequivocal clause in Article 5: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’10 This was to lay the foundation for all subsequent codification of the prohibition of torture. During the drafting of the Universal Declaration, there was little taboo as regards the inclusion of a torture prohibition clause. As Nigel Rodley and Matt Pollard remark, ‘the prohibition of torture appeared naturally and uncontroversially’.11 Subsequently, in 1950, the general human rights treaty of the Council of Europe, the European Convention on Human Rights and Fundamental Freedoms, was adopted by the founding member States.12 Inspired by the Universal Declaration,13

9

See generally: P Alston, The United Nations and Human Rights: A Critical Appraisal (Oxford: Oxford Clarendon Press, 1995); LP Gordon, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998); T Buergenthal ‘The Normative and Institutional Evolution of International Human Rights’ (1997) 19 Human Rights Quarterly 704. 10

Universal Declaration of Human Rights of Human Rights, adopted 10 Dec. 1948 G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948) Article 5. 11

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 18.

12

For the drafting history of the European Convention, see generally: Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights, Volume VII (Council of Europe: Martinus Nijhoff Publishers, 1985). For Ireland’s role in the drafting of the European Convention and, particularly, for the role of the former Minister for External Affairs, Seán McBride, see: WA Schabas, ‘Ireland, the European Convention on Human Rights, and the Personal Contribution of Seán McBride’ in J Morrisson, K McEvoy and G Anthony, Judges, Transition, and Human Rights (Oxford: Oxford University Press, 2007) 251-273. 13

On this aspect of the Convention’s drafting history, see: AWB Simpson, Human Rights and End of Empire: Britain and the Genesis of the European Convention on Human Rights (Oxford: Oxford University Press 2004) 649-659.

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Article 3 states: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’14 This was followed at the United Nations by the International Covenant on Civil and Political Rights which codified the first international, binding provision on the prohibition of torture in 1966. Article 7 proclaims: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’15 At the regional level, a provision prohibiting torture was also included in the 1969 American Convention on Human Rights which stated in Article 5(2): ‘No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.’16 The prohibition on torture is also included in the African and Arab League human rights treaties. The African Charter on Human and Peoples’ Rights, adopted in 1981, states in Article 5: ‘Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment or treatment shall be prohibited.’17 The Arab Charter on Human Rights, adopted in 2004, provides for the prohibition of torture under Article 8:

14

European Convention for the Protection of Human Rights and Fundamental Freedoms signed 4 Nov. 1950, entered into force 3 Sept. 1953, 213 UNTS 221, ETS 5, Article 3. 15

International Covenant on Civil and Political Rights, Article 7, adopted 16 Dec. 1966, entered into force 23 March 1976, G.A Res. 2200A (XXI), U.N. Doc. A/6136, 99 UNTS 171, (1996), reprinted in 6 ILM 368 (1967), Article 7. See generally: M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl: N P Engle, 2005). 16

American Convention on Human Rights (Pact of San José), signed 22 Nov. 1969, entered into force 18 July 1978, OASTS 36, O.A.S. Off. Rec. OEA/Ser.L/V/11.23, doc.21, rev.6 (1979), reprinted in 9 ILM 673 (1970), Article 5. In addition to the torture prohibition included in the general treaty, the Organization of American States also adopted, on 9 December 1985, a regional equivalent to the Convention against Torture, the Inter-American Convention to Prevent and Punish Torture. See: Inter-American Convention to Prevent and Punish Torture, adopted 9 December 1985, entered into force 28 February 1987, OASTS 67, O.A.S. Off. Rec. OAS/Ser.L/V/1.4 rev. 9 (2003). 17

African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 Oct. 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, reprinted in 21 ILM 58 (1982), 7 HRLJ 403 (1986), Article 5.

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1.

No one shall be subjected to physical or psychological torture

or to cruel, degrading, humiliating or inhuman treatment. 2.

Each State party shall protect every individual subject to its

jurisdiction from such practices and shall take effective measures to prevent them. The commission of, or participation in, such acts shall be regarded as crimes that are punishable by law and not subject to any statute of limitations. Each State party shall guarantee in its legal system redress for any victim of torture and the right to rehabilitation and compensation.18

The prohibition of torture, included in the international and regional human rights law treaties,19 reflects a growing international consensus towards an outright ban on the use of torture.

Thus, the torture provisions are framed absolutely,

prohibiting derogation even in times of war or public emergency threatening the life of the nation.20

B. Towards the Declaration against Torture: Amnesty International Campaigning and the Situation in Chile By the early 1970s, despite the codification of the torture prohibition in numerous international and regional treaties, the torture prohibition was, perhaps with

18

League of Arab States, Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int'l Hum. Rts. Rep. 893 (2005), entered into force March 15, 2008, Article 8. 19

It should also be noted that provisions containing the ban on torture were also included in the Four Geneva Conventions on Humanitarian Law of 1949. See, for example: Article 3 of Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted 12 Aug. 1949, entered into force 21 Oct. 1950, 75 UNTS 31, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted 12 Aug. 1949, entered into force 21 Oct. 1950, 75 UNTS 85, Geneva Convention Relative to the Treatment of Prisoners of War, adopted 12 Aug. 1949, entered into force 21Oct. 1950, 75 UNTS 135, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted 12 Aug. 1948, entered into force 21 Oct. 1950, 75 UNTS 287. 20

See: Article 15(2) of the European Convention on Human Rights (n 14); Article 4(2) of the International Covenant on Civil and Political Rights (n 15); Article 27(2) of the American Convention on Human Rights (n 16) and Article 4(2) of the Arab Charter on Human Rights (n 18). The African Charter does not contain a derogation provision.

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the exception of the European Convention,21 little more than a ‘paper proscription’.22 At that stage, as Ann Marie Clark observes, not only the prohibition of torture but ‘human rights concepts in general ... were rarely applied internationally’ to assess States’ behaviour.23 The Covenant on Civil and Political Rights had been adopted by the General Assembly but, without the requisite number of ratifications, it had not yet entered into force.24

This precluded the establishment of the Human Rights

Committee, its supervisory body which would be tasked with monitoring State party compliance.25 Equally, the Inter-American Commission on Human Rights had only begun to examine individual communications based on its extended, but limited, competence.26

It began to operate an individual petition system, similar to the

European Convention, under the American Convention on Human Rights,27 when the latter entered into force in 1978.28 Meanwhile and most importantly, the practice of torture had not disappeared. On the contrary, throughout the 1960s and 1970s, the systematic use of torture was well documented. Examples included the practices of the French in Algeria29 as well

21

The European Commission on Human Rights became active with respect to the prohibition of torture in 1969 with the Greek Case. This will be discussed in some detail below. 22

AM Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton: Princeton University Press, 2001) 38. 23

Ibid. See also: S Moyn, The Last Utopia: Human Rights in History (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2010) 120-175. Moyn argues that the human rights movement really began after 1968 when NGOs, social movements and people started to use human rights’ language and norms. 24

The International Covenant on Civil and Political Rights was opened for signature in 1966. Under Article 49(1), the Covenant required ratification or accession by 35 states before it would come into force. On 1 January 1973, 16 states had deposited instruments of ratification or accession with the Secretary General of the United Nations. The Covenant came into force on 23 March 1976. 25

International Covenant on Civil and Political Rights (n 15) Article 40. See generally: D McGoldrick, The Human Rights Committee: its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Oxford Clarendon Press, 1994). 26

Resolution XXII (1965) ‘Expanded Functions of the Inter-American Commission on Human Rights’, para. 4.

27

American Convention on Human Rights (n 16) Article 44.

28

With respect to the African regional system, the African Commission on Human Rights was established by the African Charter on Human Rights, under Article 30, with a mandate, inter alia, to consider State party reports and to receive communications. The African Charter entered into force on 21 October 1986. See: African Charter (n 17). The African Court on Human and Peoples’ Rights was established by the Protocol to the African Charter on Human and Peoples’ Rights which was adopted in 1988 and entered into force on 25 January 2004. See: Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III). 29

See generally, H Alleg (tr J Calder), The Question (London: John Calder Publishers, 1958); R Branche, ‘Torture of terrorists? Use of torture in a “war against terrorism”: justification, methods and effects: the case of France in

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as the military juntas in Greece30 and in Latin American States.31 The documentation of these well-known cases was largely due to the work of Amnesty International.32 As is well known, the original concern of Amnesty International had been the plight of prisoners of conscience.33

In the late 1960s, however, the organisation

incorporated the general issue of torture worldwide directly into its mandate, a progression, which at least in hindsight, was inherently logical.34 Following allegations of torture by the military junta under General Papadopoulos,35 Amnesty International sent the first of two missions in December 1967 to investigate and document these reports.36 Their findings were released on 27 January 1968.37 Significantly, the Amnesty report impacted on the development of proceedings before the European Commission.

Prior to the publication of the

Amnesty Report, Sweden, Norway, Denmark and the Netherlands had filed an application to the European Commission, charging that, through its imposition of a state of siege, Greece had failed to fulfil its duties under the European Convention on Human Rights.38 While the original application cited breaches of eight articles of the European Convention and two breaches of the first Protocol,39 it did not include

Algeria, 1954-1962’ (2007) 89 International Review of the Red Cross 543; A Horne, A Savage War of Peace: Algeria 1954-1962 204 (New York: New York Review of Books, 2006); Marnia Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press, 2008). 30

Amnesty International, ‘Situation in Greece’ 27 January 1968; Amnesty International, ‘Torture in Greece: The First Torturer’s Trial 1975’ (London: Amnesty International Publications, 1977). 31

Amnesty International, ‘Report on Allegations of Torture in Brazil’ (London: Amnesty International 1977; J Timerman, Prisoner without a Name, Cell without a Number (Madison: University of Wisconsin Press, 1981). 32

Amnesty International, Report on Torture (London: Duckworth, 1973).

33

Amnesty International, ‘1961 – 1976: A Chronology’ (London: Amnesty International Publications, 1976) 1-2.

34

Ibid.

35

M D Evans and R Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (Oxford: Oxford Clarendon Press, 1998) 80. A military coup in April 1967 brought General Papadopoulos and his military regime to power in Greece. The Military Junta held power until July 1974. 36

AM Clark, Diplomacy (n 22) 38.

37

Amnesty International, ‘Situation in Greece’ (n 30).

38

The Greek Case, (1969) 12 Yearbook of the European Convention on Human Rights. See also: M D Evans and R Morgan (n 35) 80. The original complaint centred around Greece’s failure to derogate from the European Convention on Human Rights as required by Article 15 of the Convention. 39

The Greek Case (n 38) 120.

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reference to Article 3 prohibiting torture. However, the publication of the Amnesty Report persuaded the applicant countries to add the allegations of violations of Article 3 to the list of charges.40 As a result, the European Commission of Human Rights sent its own investigation team to Greece: the first investigation of torture by a human rights treaty body worldwide. The European Commission found that there had been ‘a practice of torture and ill-treatment contrary to Article 3’ in a number of cases. 41 Rodley aptly summarises that ‘the Greek case affords the first and most extensively reasoned formal finding, by a body called upon to apply a human rights treaty, that torture has taken place’.42 Amnesty International attempted to have the Greek question moved onto the agenda at the United Nations.43 As Clark observes, however, ‘the UN was by no means poised to act on Greek human rights concerns in 1967’.44 In 1972, Amnesty International launched its worldwide campaign for the abolition of torture. The aims of the campaign were to raise public awareness about the existence of torture and to push for stronger international norms.45

Clark

describes the Campaign against Torture as having ‘charted a new course for Amnesty International and for the development of international human rights norms’.46 Amnesty’s campaign included the publication of a book-length study on the worldwide use of torture which was released on 3 December 1973.47 This study mapped, to the extent that research had been possible, the practice of torture globally.48 In all, over 60 countries were named in the report.49 The campaign also

40

M D Evans and R Morgan, Preventing Torture (n 35) 80.

41

The Greek Case (n 38) 501.

42

N Rodley, The Treatment of Prisoners under International Law (2nd edn Oxford: Oxford University Press, 1999) 77. 43

AM Clark, Diplomacy (n 22) 41.

44

Ibid.

45

Ibid 44.

46

Ibid.

47

Amnesty International, Report on Torture (n 32).

48

Ibid 114-239.

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convened an International Conference for the Abolition of Torture,50 which was held in Paris on 10-11 December 1973. Opening the conference, Amnesty International’s chairman, Seán McBride, informed the delegates that ‘particularly in the last five years, torture has begun to assume the proportions of a social cancer’.51 Among the conference recommendations was an implicit reference to the need for international agreements aimed at putting an end to the practice of torture.52 Peter Deeley, writing in the Observer, commented that it was the hope of the conference to reach an agreement on a draft United Nations resolution for a Convention on Torture and the Treatment of Prisoners.53 While the importance of the Amnesty International campaign should not be understated, it is unlikely that an NGO campaign alone would have succeeded in getting the subject of torture added to the United Nations General Assembly agenda, if the political will had not been generated.54

It was the overthrow of the

democratically elected government of Salvador Allende in Chile, on 11 September 1973, by the military junta, under General Augusto Pinochet,55 which captured the commitment required to advance the question of torture at the United Nations.56 The NGO community, with Amnesty International at the forefront,57 led the awarenessraising campaigns, conducted the fact-finding missions in Chile and lobbied the cause

49

Ibid.

50

H Danelius and H Burgers, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff Publishers 1988) 13; C Ingelse, The UN Committee against Torture: An Assessment (Kluver Law International, 2001) 67. 51

NAI DFA 2005/145/200 P Deeley, ‘‘Outlaw Torture’ Talks’, The Observer (9 December 1973).

52

Amnesty International, Conference for the Abolition of Torture, December 10-11, 1973, Report of Commission A. 53

P Deeley, ‘Outlaw Torture’ (n 51).

54

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 21.

55

See generally: M Ensalaco, Chile under Pinochet: Recovering the Truth (Philadephia, University of Pennsylvania Press, 1999). 56

H Danelius and H Burgers, The United Nations Convention against Torture (n 50) 14.

57

Amnesty International, ‘Report of Mission to Santiago, Chile’ (London, 1 April 1973) and Amnesty International, ‘Memorandum regarding recent allegations of violations of human rights in Chile with particular reference to torture and cruel, inhuman or degrading treatment or punishment’, (December 1974). See also, WP Nagan and L Atkins, ‘The International Law of Torture: From Universal Proscription to Effective Application and Enforcement’ (2001) 14 Harvard Human Rights Law Journal 87, 96.

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at the United Nations, particularly at the Commission on Human Rights.58 However, the novelty of the situation in Chile was the reaction by United Nations member States themselves. In the General Assembly, member States condemned Chile for committing ‘gross and massive human rights violations’,59 which included the widespread practice of torture as well as enforced disappearances.60 A number of delegations at the General Assembly made ‘reference to harrowing press reports of repression and brutality by the Chilean armed forces’.61 The significance of the situation in Chile cannot be overestimated. It resulted in human rights concerns penetrating Article 2(7) of the United Nations Charter62 and extending the competency of the United Nations beyond merely standard setting. Before the condemnation of Chile, United Nations member States had successfully invoked article 2(7) to preclude any proactive monitoring of human rights violations by the Economic and Social Council or its subsidiary bodies, particularly the United Nations Commission on Human Rights. Member States had traditionally argued that monitoring through fact-finding was undue interference in the domestic jurisdiction of a State.63 The conflation of the Amnesty International campaign against torture and the situation in Chile presented an obvious stimulus and opportunity to push the torture

58

See for example: Commission on Human Rights, ‘Study of reported violations of human rights in Chile, with particular reference to torture and other cruel, inhuman or degrading treatment or punishment’, E/CN.4/1116/Add. 5, 4 February 1975. The International Committee of the Red Cross and the International Commission of Jurists were also highly active. See, for example: Commission on Human Rights, ‘Study of reported violations of human rights in Chile, with particular reference to torture and other cruel, inhuman or degrading treatment or punishment’, E/CN.4/1166/Add.6, 10 February 1975. 59

See: GA Res 3219 (XXIX) Protection of Human Rights in Chile E/CN.4/1116.

60

Ibid.

61

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 21.

62

Article 2(7) states, as one the of the principles of the United Nations, that:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. On the United Nations Charter generally, see: B Simma (ed.) Charter of the United Nations: A Commentary (Oxford: Oxford University Press 1994). 63 Examples include the French invocation of Article 2(7) to avoid discussion of violations of human rights in Algeria in 1957 and the United Kingdom’s invocation of Article 2(7) to avoid discussion of the situation in Northern Ireland in 1969. On Algeria, see: UNGA Res 909 (X) (25 November 1955); UNGA Res 1012 (XI) 15 February 1957; UNGA Res 1184 (XII) 10 December 1957; Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (Oxford University Press, Oxford 1988) 66. On Northern Ireland, see: C Cremin, ‘Northern Ireland and the United Nations’, (1981) Irish Studies in International Affairs 67, 68-69, 73.

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issue more generally at the United Nations. As Rodley and Pollard write, ‘[t]his, then, was the context for discussion of torture in 1973: growing NGO action combined with the sharp focus provided by events in Chile’.64

C. At the United Nations: Ireland and Resolution 3059 The pioneer resolution with respect to the torture question at the United Nations was passed on the 25th anniversary of the Universal Declaration on Human Rights at the 28th session65 of the United Nations General Assembly, on 2 November 1973.66 Resolution 3059 was sponsored by Ireland, along with Austria, Costa Rica, The Netherlands, Sweden, Trinidad and Tobago, Lesotho and Nepal.67 According to the report of the Third Committee,68 Ireland’s co-sponsorship of Resolution 3059 had been encouraged at a Third Committee delegation meeting, ‘having regard to the Irish Government case against the U.K. which was pending before the European Commission on Human Rights. The Department on being consulted concurred’.69 The legal case in question was the inter-state case, where, in response to the introduction of internment and allegations of ill-treatment of detainees in Northern Ireland,70 the Irish Government lodged a complaint,71 on 16 December 1971, against

64

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 21.

65

The General Assembly meets in session annually.

66

UNGA Res. 3059 (XXVIII) Question of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment 28th Sess. 2 November 1973. 67

NAI DFA/18/108 ‘Third Committee Report A/9249, Observance of the Twenty-Fifth Anniversary of the Universal Declaration of Human Rights – Agenda Item 56’ dated 13 June 1974. 68

The Third Committee, often called the Social Committee, is a committee of the General Assembly tasked with preparatory work on humanitarian, social and cultural issues including human rights. Most of the preparatory work of the General Assembly is carried out in such committees. All member states are represented. 69

NAI DFA/18/108 ‘Third Committee Report A/9249’ (n 67).

70

Internment was introduced on 9 August 1971 leading to mass arrests (Operation Demetrius) and, thereafter, to allegations of ill-treatment being lodged against members of the security forces. See: LK Donohue, CounterTerrorist Law and Emergency Powers in the United Kingdom 1922-2000 (Dublin: Irish Academic Press, 2001) 118; M O’ Boyle, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v United Kingdom’ (1977) 71 American Journal of International Law 674, 674-680. 71

This complaint was lodged under the interstate mechanism provided for under Article 24 of the European Convention. Article 24 states: ‘Any High Contracting Party may refer to the Commission, through the SecretaryGeneral of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party’.

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the United Kingdom with the European Commission on Human Rights under the European Convention.72 On 1 October 1972, the European Commission declared the case admissible. Ireland alleged breaches of, among others,73 Article 3 of the Convention.74 These Article 3 allegations included evidence of the subjection of 12 individuals to ‘interrogation in depth’ over a period of a number of days in August and October 1971.75 During the ‘interrogation in depth’ of these 12 individuals, five ‘sensory deprivation’ or ‘disorientation’ techniques were applied, namely, wallstanding, hooding, subjection to noise, deprivation of sleep, and deprivation of food and water.76 Reports of the ill-treatment of internees were met with widespread condemnation and, consequently, the British Government commissioned the Compton Inquiry to investigate the allegations. The Compton Inquiry found, in short, that the interrogation procedures did not constitute brutality.77

Dissatisfaction with the

procedures and findings of the Compton Inquiry resulted in the establishment of a second committee tasked with examining whether the use of the interrogation techniques ought to be ended.78

This Committee, chaired by Lord Parker, was

divided in its findings, although, both the majority and minority agreed that the techniques had been used excessively.79 Crucially, the minority report, written by Lord Gardiner, found the techniques, among other things, to be incompatible with domestic law.80 The Parker Report, including the majority and minority submissions, was published on 2 March 1972 and, on the same day, the then Prime Minister,

72

NAI DFA 2006/131/1427 ‘The Strasbourg Case’, Department of Foreign Affairs, dated 30 September 1974. See generally: M O’ Boyle, ‘Torture and Emergency Powers’ (n 70). For an interesting account of why Ireland submitted the application, see also: W A. Schabas and A O’ Sullivan, ‘Politics and Poor Weather’ (n 6). 73

Other allegations declared admissible were under articles 1 (undertaking to secure the rights of the Convention), 5 (right to liberty and security of the person), 6 (right to fair hearing) and 14 (prohibition of discrimination) in the context of article 15 (capacity of States to derogate in times of war or emergency threatening the life of the nation). 74

Ireland v United Kingdom (App no 5310/71) (Report of the Commission, 25 January 1976).

75

Ibid para 96.

76

Ibid.

77

M O’ Boyle, ‘Torture and Emergency Powers’ (n 70) 676; LK Donohue, Counter-Terrorist Law (n 70) 119.

78

M O’ Boyle, ‘Torture and Emergency Powers’ (n 70) 676

79

LK Donohue, Counter-Terrorist Law (n 70) 119.

80

M O’ Boyle, ‘Torture and Emergency Powers’ (n 70) 678.

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Edward Heath, announced that the five techniques would no longer be used.81 The Irish Government, troubled by the findings of the Compton Committee and under domestic pressure to act, had, at any rate, already initiated proceedings at the European Commission.82 In light of Ireland’s involvement with the inter-state case, it comes as no surprise, then, that the Irish Mission to the United Nations advocated Irish sponsorship of Resolution 3059. The Resolution recalled Article 5 of the Universal Declaration and expressed its grave concern that torture continued to be practised in various parts of the world.83 The operative part of the Resolution was as follows:

1.

Rejects any form of torture and other cruel, inhuman or

degrading treatment or punishment; 2.

Urges all governments to become parties to existing

international instruments which contain provisions relating to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment; 3.

Requests the Secretary General to inform the General

Assembly, under the report of the Economic and Social Council, of the consideration which may have been given to this question by the SubCommission of Prevention of Discrimination and Protection of Minorities or by the Commission on Human Rights and other bodies concerned; 4.

Decides to examine the question of torture and other cruel,

inhuman or degrading treatment or punishment in relation to detention and imprisonment as an item at a future session of the General Assembly.84

81

Ibid.

82

See: W A. Schabas and A O’ Sullivan, ‘Politics and Poor Weather’ (n 6) 29-30; M O’ Boyle, ‘Torture and Emergency Powers’ (n 70) 679. 83

UNGA Res. 3059 (XXVIII) Question of Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment 28th Sess. 2 November 1973. 84

Ibid.

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The Irish delegation’s Third Committee report to the Department of Foreign Affairs confirms the significant involvement of Amnesty International in the preparation of the original draft resolution. According to the report ‘[i]n introducing the resolution the Swedish delegate quoted the former Irish Foreign Minister, Mr. Seán McBride, Chairman of Amnesty International. It was generally known that the resolution had in fact been inspired by Amnesty’.85 Notably, this resolution was passed less than two months after the military coup in Chile. Despite the favourable context created by Amnesty International campaigning and the situation in Chile, pressing the torture issue at the United Nations had not been straightforward. Whilst no delegation to the United Nations would defend torture publicly, no government would be eager for its practices of interrogation and detention to be scrutinised in a public forum. Therefore, the Resolution adopted by the General Assembly was considerably less precise than the draft Resolution, which had earlier been presented by Sweden to the Third Committee. As originally proposed, the Swedish draft Resolution had contained two operative paragraphs. Rather than making a vague reference to a future session, in which the question of torture would be examined (as provided for in resolution 3059), the draft Resolution had in mind a more exact time period; it declared: ‘decides to examine the question of torture as a separate item at the twenty-ninth Session of the GA’.86 The draft resolution also envisaged that the Secretary General would prepare a report on the question of torture to be presented at the 29th Session.87 The Third Committee found this operative paragraph problematic. It was deemed unclear how the Secretary General would obtain material for the report.88 Rodley and Pollard point out that, ‘[c]learly, Sweden’s consultations had revealed opposition to giving the Secretary General a fact-finding mandate to report in detail on the incidence of torture’.89 Thus, the role of the Secretary General was diluted to

85

NAI DFA/18/108 ‘Third Committee Report A/9249’ (n 67) See also: N Rodley and M Pollard, The Treatment of Prisoners (n 4) 21. 86

NAI DFA/18/108 ‘Third Committee Report A/9249’ (n 67)

87

Ibid.

88

Ibid.

89

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 22.

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merely informing the General Assembly ‘of the consideration which may have been given to this question by the Sub-Commission of Prevention of Discrimination and Protection of Minorities or by the Commission on Human Rights and other bodies concerned’.90 Notably, with respect to the substance of the Resolution, the question to be examined was extended in the adopted Resolution to torture and other cruel, inhuman or degrading treatment or punishment, 91 a considerable expansion of the scope of the question; although this did align with Article 7 of the Covenant on Civil and Political Rights. Overall, the draft Resolution was not widely supported in the Third Committee.

According to the Irish delegation’s Third Committee Report, the

Jamaican delegate argued that the Resolution was not a fitting way to celebrate the twenty-fifth anniversary of the Universal Declaration; certain other countries, ‘the Arabs among them’, did not support the resolution as they considered it to be ‘an oblique criticism of their penal systems’; and the ‘interference’ of Amnesty International was resented.92 Egypt proposed to delete the operative paragraphs of the Resolution. To a great extent, this Egyptian proposal was incorporated and, thus, the text was considerably watered down.93 In the debate over the draft Resolution, the Irish delegate ‘made a brief intervention … referring to the observance of the twenty-fifth anniversary in general’; ‘No substantive reference was made’ to the torture question.94 These, according to the Irish delegation’s Third Committee Report, were ‘the instructions of the Department (Anglo-Irish Section)’.95

Once more, the inter-state case before the

European Commission impacted on Irish policy in the United Nations and can explain this caution on the part of the Anglo-Irish Section. A letter from Seán Donlon, Assistant Secretary at the Department of Foreign Affairs, to Carmel Heaney, of the

90

UNGA Res. 3059 (n 66) para 3.

91

Ibid. See also: N Rodley and M Pollard, The Treatment of Prisoners (n 4) 22.

92

NAI DFA/18/108 ‘Third Committee Report A/9249, Observance of the Twenty-Fifth Anniversary of the Universal Declaration of Human Rights – Agenda Item 56 record’ dated 13 June 1974. 93

Ibid.

94

Ibid.

95

Ibid.

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Irish Permanent Mission to the United Nations, in September of the following year (1974) explains that Ireland needed to maintain a low profile in the run-up to the Sunningdale Conference,96 held in December 1973, and were ‘anxious to say or do nothing to upset the delicate balance of Anglo-Irish relations - to make no substantive reference in debate to the subject - of torture’.97 Despite co-sponsoring Resolution 3059, therefore, Ireland did not play an active role in the proceedings. On 5 December 1973, Martin Ennals, Secretary General of the International Executive, Amnesty International, sent a letter to the then Irish Permanent Representative to the United Nations, Cornelius (Con) Cremin, in which he expressed appreciation for ‘the crucial help’ provided by the Irish delegation’s sponsorship of Resolution 3059.

Ennals wrote:

‘We may, I think, take some considerable

satisfaction in knowing that, to mark the 25th Anniversary of the Universal Declaration of Human Rights, a concrete step has been taken towards the eventual eradication of an international social cancer’.98

1. Follow-Up to Resolution 3059 On 18 January 1974, Martin Ennals wrote to the then Taoiseach (Prime Minister), Mr Liam Cosgrave T.D., to express appreciation for Ireland’s involvement in the successful approval of Resolution 3059 at the General Assembly in November of the previous year. The letter informed the Taoiseach of Amnesty International’s continued lobbying for the implementation of Resolution 3059 at the United Nations Secretariat. Ennals was also writing to encourage the Taoiseach to maintain Irish commitment in the follow-up to the Resolution. Specifically, Ennals stated: ‘We would be most grateful to hear if your own Government is contemplating further action to follow up Resolution 3059, and whether you would be prepared to take

96

In December 1973, the British and Irish Governments, the Ulster Unionist Party and the SDLP held talks at the Sunningdale Civil Service College. The Sunningdale Agreement, signed on 9 December 1993, was an attempt to establish a power-sharing Executive for Northern Ireland and a ‘Council of Ireland’. The agreement collapsed in May 1974. See: LK Donohue, Counter-Terrorist Law (n 70) 156. 97

NAI DFA 2006/131/1427 ‘Letter from Seán Donlon, Assistant Secretary, to Carmel Heaney C/O Permanent Mission to the United Nations’ dated 30 September 1974. 98

NAI DFA 2005/145/200 ‘Letter from Martin Ennals, Secretary General, Amnesty International, to His Excellency, Mr. Cornelius C. Cremin, Ambassador Extraordinary and Plenipotentiary, Permanent Representative to the United Nations’, dated 5 December 1973.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

measures to ensure that torture is indeed placed on this year’s General Assembly Agenda’.99 An Taoiseach, Mr Liam Cosgrave, replied to Martin Ennals, on 17 April 1974, specifying the Government’s commitment to the prohibition of torture:

You will no doubt be aware of successive Irish Government’s attempts to secure universal abolition of torture through acceptance of international conventions on human rights. In this connection I should mention Ireland’s ratification of the European Convention on Human Rights and Fundamental Freedoms together with Protocols No. 1, 2, 3, 4 and 5 thereto… You will also recall that the Minister for Foreign Affairs signed in September 1973, as a prelude to ratification by Ireland, the International Covenant on Civil and Political Rights…100

He reacted to Ennals’ particular request vis-à-vis the follow-up to Resolution 3059 by stating that ‘this country would be willing to recommend and support the inscription of an appropriate item on torture on the Agenda of the twenty-ninth session of the U.N. General Assembly to be held later this year’.101 Ennals’ response was immediate. In a letter dated 24 April 1974, he replied to the Taoiseach, thanking the Irish Government for its commitment to securing the universal abolition of torture through its support of the Resolution and, in following-up Resolution 3059, Ennals remarked:

I understand from your letter that you will be willing to recommend and support inscription of an appropriate item on torture on the Agenda

99

NAI DFA 2005/18/108 ‘Letter from Martin Ennals, Secretary General, Amnesty International, to The Hon. Liam Cosgrave, Department of An Taoiseach’ dated 18 January 1974. A copy of this letter was also forwarded to Ambassador Cremin. 100

NAI DFA 2005/18/108 ‘Letter from Liam Cosgrave to Martin Ennals, Secretary General, Conference for the Abolition of Torture’ dated 17 April 1974. 101

Ibid.

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of the 29th Session of the United Nations General Assembly but that in so doing, you would prefer to be associated with another government which shares your interests and concern.102

Ennals’ interpretation of the Taosieach’s willingness to ‘recommend and support’ only was very acute. He was obviously quite sensitive to the political position of the Irish Government with respect to the ongoing inter-state case at the European Commission but was, nevertheless, keen to retain Irish support at the United Nations. Thus, Ennals wrote:

I am in contact with one or two Governments which have expressed an interest in taking a similar course of action and I will let you know as soon as possible whether any one of them is willing to take the positive position which you have expressed on behalf of the Irish Government.103

In addition, Ennals made clear that in approaching other governments with respect to the furtherance of the torture question at the United Nations, he would be quoting the Taoiseach’s letter of 17 April.104 On 17 May 1974, an urgent communication was sent from Seán Kennan, at the Department of Foreign Affairs, to the Irish Permanent Representative to the United Nations, at that time, Eamon Kennedy,105 informing Kennedy of the exchange between Taoiseach Liam Cosgrave and Martin Ennals and requesting Kennedy’s views on the ‘feasibility of inscription at 29th Session as well as the views of other

102

NAI DFA 2005/18/108 ‘Letter from Martin Ennals, Secretary General, Amnesty International, to The Hon. Mr. Liam Cosgrave, Roinn an Taoisigh’ dated 24 April 1974. 103

Ibid.

104

Ibid. Ennals sent copies of the letter to Garret Fitzgerald, Minister for Foreign Affairs, and Seán McBride, Chairman of the International Executive, Amnesty International. 105

Kennedy became Permanent Representative in April 1974.

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interested delegates’.106 Interestingly, the telex asserted: ‘Our opinion is that a solo attempt by us would be unwise and might also be misconstrued in light [of the] Strasbourg case’.107 This latter observation confirms Ennal’s inference from the Taoiseach’s letter of 17 April 1974 that Ireland would prefer not to antagonise the United Kingdom by championing the torture item at the 29th session on its own. Undoubtedly, all concerned were sensitive to the ongoing Strasbourg proceedings. In that regard, it is worth noting that hearings of British witnesses, to counter evidence already heard from the Irish side, were scheduled for May and June of that year.108 In this telex, the behind-the-scenes involvement of Seán McBride was also made explicit. Kennan remarks: ‘Understand Seán McBride is very interested in this item and intends to contact Swedes and Austrians’.109 Seán Kennan’s communication with Eamon Kennedy was, however, a little too late. On that same day, John F. Cogan, who was First Secretary at the Irish Permanent Mission to the United Nations, sent a memorandum to Kennedy to inform him that Cogan had attended a meeting the previous afternoon at the United Nations. This meeting had been convened by the Dutch representation at the United Nations to discuss the question of whether the members of the Western group should take an initiative on torture at the next session of the United Nations General Assembly. All of the nine were in attendance, except for the United Kingdom and Luxembourg. Australia, Austria, Norway and Sweden were also present. Cogan explained to Kennedy:

[T]he Netherlands delegate told me in advance of the meeting of the terms of the Taoiseach’s reply to Mr. Ennals of Amnesty. I was in the rather embarrassing position of being completely in the dark about the contents of the letter, to which Ennals had referred in correspondence

106

NAI DFA 2005/18/108 ‘Decode of Telex from Dept. 266 Urgent for Permanent Representative from Seán Kennan’ dated 17 May 1974. 107

Ibid.

108

NAI DFA 2006/131/1427 ‘The Strasbourg Case’, Department of Foreign Affairs, dated 30 September 1974.

109

NAI DFA 2005/18/108 ‘Decode of Telex from Dept. 266 Urgent for Permanent Representative from Seán Kennan’ dated 17 May 1974.

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with the Dutch Foreign Ministry. It appears to have been written several days ago.110

Clearly, Ennals had communicated the Taoiseach’s commitment to follow-up on Resolution 3059 to other governments, as he had said he would. Cogan further imparted that even though a number of those present at the meeting – Netherlands, Austria, Sweden, Denmark, and Italy – ‘were in favour of an initiative, all were aware of the difficulties involved in raising the item and having it brought through to a successful conclusion’.111 At the meeting, four points had been made concerning the engagement with the torture question at the 29th session. Firstly, it was observed that ‘[i]t would be very difficult, if not impossible, to have the question of torture as a new and separate agenda item’.112 Secondly, it was noted that a successful item would require the involvement of African and Asian co-sponsors. Thirdly, preparatory work would be required at the United Nations and at the preparatory meeting, to be held in Budapest from 29-31 May, of European representatives to the Fifth United Nations Congress113 on the Prevention of Crime and Treatment of Offenders. Lastly, research would need to be conducted on the positions taken by various Third World countries at the last session [28th session] of the General Assembly.114 In order to deal with these four points, it was suggested at the meeting that ‘a small working group of “interested parties” should meet to discuss tactics’.115 In this regard, Cogan writes: ‘Because of the fact that the Dutch, and the others present, were aware of our Taoiseach’s expression of support for an initiative, I

110

NAI DFA 2005/18/108 ‘Letter from J F Cogan to Ambassador Eamon Kennedy’ dated 17 May 1974.

111

Ibid.

112

Ibid.

113

United Nations Congresses on Crime Prevention and Criminal Justice are held every five years. The First United Nations Congress was held in Geneva in 1955. The origin of these Congresses dates back to 1872 when the International Prison Commission – later the International Penal and Penitentiary Commission (IPCC) – was created during an international conference to make recommendations for penal reform. The IPCC became affiliated with the League of Nations and began to hold conferences on crime control every five years. Following the dissolution of the IPCC, its functions were, in the aftermath of World War II, transferred to the United Nations. See generally: United Nations Office on Drugs and Crime, ‘United Nations Congresses on Crime Prevention and Criminal Justice 1955-2010: 55 Years of Achievement’ (Austria: United Nations Information Service, 2010). 114

NAI DFA 2005/18/108 ‘Letter from J F Cogan to Ambassador Eamon Kennedy’ dated 17 May 1974.

115

Ibid.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

found myself in the position of being unable to avoid taking part in this working group which consists of Netherlands, Sweden, Austria and ourselves’.116 Cogan asked Kennedy to make three points to the Department of Foreign Affairs’ as a response to Kennan’s telex. The points were as follows:

1. That consultations are proceeding here as to the possibilities of pursuing the torture item at UNGA 29, and that we are keeping in close touch with the other interested parties; 2. That the Taoiseach’s letter was known to other members of the Western Group, and that it put us in an embarrassing position of ignorance, and also seemed to present us with a fait accompli regarding the position we should take… 3. The relationship between this item, i.e. torture, and the Strasbourg cases, and also the fact that the UN Human Rights Commission has been dealing with an Amnesty submission on torture in Northern Ireland, should not be overlooked.117

Cogan was clearly uneasy with the tentative position in which he had found himself. On the same day, 17 May 1974, Eamon Kennedy forwarded Cogan’s Memorandum on the meeting to the Assistant Secretary, Seán

Kennan, at the

Department of Foreign Affairs. He reiterated Cogan’s frustration with the lack of consultation regarding the exchange between the Taoiseach and Martin Ennals:

I am sure…you will agree that it would have been desirable if we could have had a copy of the Taoiseach’s letter to Ennals (and perhaps even a background note on it from the Department) before Mr. Cogan attended the meeting. As you will note, the Netherlands delegate was aware of its contents and this put us at a disadvantage.118

116

Ibid.

117

Ibid.

118

NAI DFA 2005/145/200 ‘Letter from Eamonn Kennedy, Permanent Representative of Ireland to the United Nations, to Seán Kennedy Esq., Assistant Secretary, Department of Foreign Affairs, Ref C/19III’ dated 17 May 1974.

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In addition, Kennedy restated the point regarding the relationship between the torture item and the Strasbourg case, noting that this ‘I am sure, [will] be borne in mind’.119 On 21 May 1974, a briefing note was prepared by Seán Kennan, apparently for the Minister for Foreign Affairs, Dr Garret Fitzgerald.120 The note takes into account the communiqué from the Irish Permanent Mission to the United Nations, in other words Kennedy’s letter as well as Cogan’s memorandum.121 Aware that Ireland had become embroiled in the initiative to get torture on the agenda for the 29th Session through its involvement in the Working Group, Kennan warned that ‘Ennals may put it to the Minister that Ireland should assume the leading role in seeking to have the item included on the agenda and in piloting it through to a successful conclusion’.122 Kennan advised that ‘it would be unwise to give Mr. Ennals any commitment at this stage’.123 He relayed the recommendation made by Kennedy that the Minister should essentially appease Ennals by telling him that ‘we are awaiting the outcome of discussion already in progress in New York by interested delegations including ourselves’.124 Kennan’s advice was not without warrant as, indeed, during a meeting between Ennals and Garret Fitzgerald, held the same day, the follow-up to Resolution 3059 was, predictably, discussed. Unfortunately, the minutes of this meeting have not been located; however, one outcome from the meeting can be gleaned from the subsequent letter, which Ennals sent to Fitzgerald on 24 May 1974.125 Ennals wrote that he was encouraged by the Minister’s positive response to Amnesty’s request for an Irish Government initiative to ensure follow-up to resolution 3059 at the next session of the United Nations General Assembly.126 Clearly, however, Ennals did not expect Ireland to be

119

Ibid.

120

NAI DFA 2005/18/108 ‘Note: ‘Call on Minister by Mr. Ennals – Secretary General of the Conference for the Abolition of Torture’ by Seán Kennan’ dated 21 May 1974. 121

Ibid.

122

Ibid.

123

Ibid.

124

Ibid.

125

NAI DFA 2005/18/108 ‘Letter from Martin Ennals, Secretary-General, Amnesty International, to The Hon. Garret Fitzgerald, Minister for Foreign Affairs’ dated 24 May 1974. 126

Ibid.

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at forefront of this initiative; he subsequently wrote: ‘We hope…that in the interim period it will be practicable to reach agreement with the Dutch, Norwegian and other governments who are willing to put forward a resolution on the subject of torture’.127 It is evident that Dr. Fitzgerald had successfully steered Ennals away from the idea that Ireland would champion the initiative at the United Nations. It is also obvious from Ennal’s follow-up letter that the subject of Ireland’s reluctance to take the lead with the United Nations torture initiative, namely the ongoing proceedings against the United Kingdom, had been discussed.

Ennals

communicated that, since the meeting on 21 May, he had contacted his relative, David Ennals, in the British Foreign Office.128 The purpose of this communication was to convey the substance of the meeting with Fitzgerald, in particular those aspects which were of particular concern to the United Kingdom, regarding the Strasbourg proceedings as well as the Amnesty International submission before the United Nations Commission on Human Rights.

Essentially, Martin Ennals wanted to

assuage British fears that the Irish Government would bring the confidential proceedings already before the Commission on Human Rights to the United Nations more generally; by which, it would seem he meant the United Nations General Assembly. According to Ennals’ letter, the fact that the Irish Government had no intention of taking such a step ‘was well received by David Ennals’.129 Furthermore, and interestingly, Martin Ennals announced that David Ennals shared the Irish ‘intention that torture should be the subject of United Nations debate in the coming session’.130

D. 29th General Assembly Session: diplomacy at work Whilst Amnesty International continued to lobby the Irish Government regarding the initiative at the 29th Session, the Irish delegation had been active in the Working Group proceedings. On 7 June 1974, Cogan reported on a Working Group

127

Ibid.

128

Ibid.

129

Ibid.

130

Ibid.

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meeting held on 31 May.131 Present at the meeting were the representatives of the Netherlands (Mr. Speekenbink), Austria (Mr. Hamburger), Sweden (Mr Lind), and Cogan representing Ireland. According to his report, the Netherlands and Austria were under instruction to ‘actively pursue’ the question at the United Nations; Sweden, whilst obviously supportive, did not have any further instructions from its Government, and Ireland was also without further instruction, not to mention the fact that they had still not received the copy of the Taoiseach’s letter to Martin Ennals.132 At the meeting, the delegates worked on a strategy for gaining co-operative allies to support an item on torture at the 29th session of the General Assembly. The Swedish delegate had drawn up a list of potential co-sponsors, however, it was agreed that no further action should be taken in approaching these countries pending further communication with the Working Group’s own capitals.133

On this matter of

canvassing the General Assembly for support, Cogan agreed to ascertain the advice of Carmel Heaney who had been actively involved in the behind-the-scenes negotiations of resolution 3059 the previous year. At the end of his report, Cogan put some pressure on Dublin to deliver more clarity on the overall question:

It appears at this stage that Netherlands, Austria and, almost certainly, Sweden are fairly determined to pursue the matter of raising this item. As we are now involved in the consultations, which will, of course, come back to a bigger meeting of most of the Western Group, it would be very useful to have a clearer idea of our Government’s attitude.134

On 11 June 1974, Cogan’s report was forwarded to Dublin, along with a covering letter from Eamon Kennedy. Kennedy stated once more that the other members of the Working Group were ‘counting on our active support also, in the light

131

NAI DFA 2005/18/108 ‘Torture’, Report by JF Cogan, dated 7 June 1974.

132

Ibid.

133

Ibid.

134

Ibid.

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of the Taoiseach’s letter to the Secretary General of Amnesty’.135 Evidently eager to establish a clearer policy on the Irish position, Kennedy reaffirmed that ‘the relationship between this item and the Strasbourg cases should be borne in mind, and, for this reason, the views of the Anglo-Irish Political Section would be important’.136 On 14 June 1974, a meeting of the Nine was held to discuss items on the agenda of the Third Committee for the 29th Session of the United Nations General Assembly. The note prepared by Cogan on this meeting explains that, at the earlier United Nations Expert Group meeting, held in Bonn on 31 May, it had been confirmed that the torture item should be given particular importance and that the Western group should take the initiative. The support of ‘third world’ countries would also be needed, however.137 Significantly, at the Bonn meeting, it was also noted that ‘the possibility of framing other international instruments against torture should be borne in mind’.138 This note of 25 June also contains some valuable information on the progress of the discussion on the torture item. According to the note, the Netherlands delegate, A. H. Speekenbrink, related the findings of the Working Group (Netherlands, Austria, Sweden and Ireland). He stated that a separate item on torture would not be feasible at the 29th session but that it could be raised under another heading, such as the report of the Economic and Social Council. With regard to the possible substance of the resolution, he pointed to the Standard Minimum Rules for the Treatment of Prisoners139 as a possible ‘peg on which to hang a draft resolution’.140 In addition, the Netherlands’ representative pointed out that

135

NAI DFA 2005/18/108 ‘Letter from Eamonn Kennedy, Permanent Representative of Ireland to the United Nations, to The Secretary, Department of Foreign Affairs’ dated 11 June 1974. 136

Ibid.

137

NAI DFA/2005/18/108 ‘Items on Agenda of Third Committee at UNGA 29: Meeting of Nine – 14 June 1974’, signed John F. Cogan’ dated 25 June 1974, para 6. 138

Ibid.

139

The Standard Minimum Rules for the Treatment of Prisoners were adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 30 August 1955 and were approved by the Economic and Social Council on 31 July 1957. The rules contain directives relative to those under all forms of detention. Rule 31 states: ‘Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.’ See United Nations, Standard Minimum Rules for the Treatment of Prisoners, 30 August 1955. See also: H Danelius and H Burgers, The United Nations Convention against Torture (n 50) 12. 140

NAI DFA/2005/18/108 ‘Items on Agenda of Third Committee at UNGA 29: Meeting of Nine – 14 June 1974’, signed John F. Cogan’ dated 25 June 1974, para 6.

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Amnesty International had been ‘lobbying support at every level’ and that they had presented a draft resolution and memorandum to many governments.141 The Netherlands’ delegate felt, however, that these ‘were too far reaching’ and would encounter difficulty in the Third Committee.142 More than likely, the Netherlands’ delegate was recalling the problems which they had encountered the previous year with Resolution 3059 in the Third Committee. In that case, support for the draft Resolution had been minimal and the end result was a much-compromised version of the original draft. Cogan’s briefing note reveals that during this meeting of the Nine, the British delegate, Mr. D Broad, had communicated that the British Government would support a draft resolution on torture. The family relationship between Martin Ennals and David Ennals had been divulged as one reason for this support.143 Kennedy subsequently forwarded the Cogan report to the Department of Foreign Affairs in Dublin. In his attached letter, Kennedy remarked that ‘the positive attitude of the British delegate is interesting, and it bears out the remarks of Mr. Ennals in the letter addressed to our Minister on 24th May last’.144 The next meeting of the Working Group of four was held on 28 July 1974. Cogan’s report from this meeting is quite telling with respect to the depth of Ireland’s contribution at this stage. The Report conveys the impression that the Irish delegate, among the four, was least actively involved. Cogan recounted: ‘Netherlands, Austria, and Sweden all reported that their Governments were in favour of proceeding to working on a draft at this stage…I said that our attitude was favourable also, though I had no specific instructions’.145 All other members of the Working Group had produced draft texts for consideration. A fourth draft text was also provided. The British delegate, Broad, had given this text to the Dutch delegate, Speekenbrink. He

141

Ibid.

142

Ibid.

143

Ibid.

144

NAI DFA 2005/18/108 ‘Letter from Eamonn Kennedy, Permanent Representative of Ireland to the United Nations, to The Secretary, Department of Foreign Affairs’ dated 26 June 1974. 145

NAI DFA 2005/145/200 ‘Torture: Consultation on Action at UNGA XXX by John F Cogan’ dated 30 July 1974.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

had prepared the text himself and it had not been officially approved by the British Government.146

Broad’s initiative made clear, though, that his earlier declared

support for the draft resolution had been genuine. That Broad had also confided to Speekenbrink his willingness ‘to participate in the informal discussions’ was also made known at the meeting.147 Speekenbrink explained that Britain had not been asked to participate in Working Group activities up that point ‘partly “in deference to the position of our Irish colleague”’.148 When asked what Irish feelings on that matter were, Cogan responded that he was unaware of any expressed objection to British involvement in the preparatory work. He also said that ‘[a]s far as cosponsorship was concerned, I was sure that the British delegation would be sensitive to any difficulties this might raise for them’.149 At that meeting, the debate over the substance of the draft Resolution resulted in the Netherlands undertaking the task of producing a new draft taking into account the comments and suggestions made at the meeting. According to Cogan’s report, along with the representatives of the Netherlands and Sweden, he was in favour of ‘an emphasis on the further expansion of the scope and substance of the Standard Minimum Rules so as to cover torture of detainees’.150 The Standard Minimum Rules, according to Cogan, ‘are rather minimal, in that they deal more with the facilities of prisons and the rights and privileges of prisoners, than with their physical or mental treatment’.151 On 2 August, Cogan forwarded the unofficial draft texts of the Netherlands and of Sweden to the political division of the Department of Foreign Affairs requesting reaction ‘particularly on the Dutch text’ which he considered more likely

146

Ibid.

147

Ibid.

148

Ibid.

149

Ibid.

150

Ibid.

151

Ibid.

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to be the basic draft. Cogan described the Swedish draft as ‘wider in scope and…more action oriented (in a more radical way) than the Dutch’.152 Five days later, Cogan briefed his colleague, Florence O’ Riordan - who had, it would seem, taken over duties in the Working Group - to bring him up to speed on the conduct of the Working Group of four. Cogan explained that the Swedes were in favour of a stronger draft resolution and that they would like to influence some of the weaker elements of the Netherlands’ draft (which was more likely to succeed) with elements from their own draft. Having explained the mechanics at the drafting stage, Cogan relayed that ‘[t]he British are taking a keen interest, and seem to want to support a resolution (although the question of N.I. lies in the background)’.153 O’ Riordan contacted Dublin on 9 August. In a telex, he confirmed that Britain had subsequently become involved in the Working Group. A meeting had been held that day in which all five members of the Group (the Working Group of four as well as the United Kingdom) had agreed on the draft proposal which was to be referred to the complete Working Group the following Friday, 16 August for approval.154 In the telex, it was maintained that the draft would presumably be approved at that stage, perhaps with minor changes and that ‘[t]he idea will then be for the five country working group to canvass co-sponsorship support, which we would do by dividing likely countries among us’.155

Oddly, a letter from

Speekenbrink to the Permanent Mission on the same day makes no mention of the United Kingdom’s involvement. On the contrary, it states ‘I am happy to inform you that the informal working group of four has been able to arrive at agreement on the draft of a resolution which could be submitted during the next session of the General Assembly’.156

Perhaps this contradiction can best be explained by the relative

152

NAI DFA 2005/18/108 ‘Letter from John F. Cogan, First Secretary, for attn. of Mr. Whelan or Mr. McKernan, Political Section, Department of Foreign Affairs’ dated 2 August 1974. 153

NAI DFA 2005/18/108. Handwritten letter from John F. Cogan to Florence O’ Riordan, dated 7 August 1974.

154

NAI DFA 2005/18/108 ‘Telex 698 for MacKernan Ref. Previous Correspondence Re. Proposed Resolution on Torture’ dated 9 August 1974. 155

Ibid.

156

NAI DFA 2005/18/108 ‘Letter from A. H. Speekenbrink, First Secretary, Permanent Mission of the Kingdom of the Netherlands to the United Nations, to Mr. Florence O’ Riordan, Permanent Mission of Ireland to the United Nations’ dated 9 August 1974 (emphasis added).

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

informality of Broad’s involvement in the Group. This contention is made credible by the Irish delegation’s Third Committee Report of 12 September in which it is explained that, during the Committee’s session, the Dutch delegate had expressed that whilst the British delegate ‘had participated in the drafting consultations, it was understood that there was no official UK commitment’.157 O’ Riordan’s letter provides more detail on the substance of the meeting and also confirms United Kingdom participation in the meeting.

In that regard, O’

Riordan states that ‘[t]he UK had a rather odd suggestion on paragraph 5 which would, in effect, have restricted that paragraph to persons in mental hospitals. Austria demurred to making it too restrictive, as did everyone else, and UK agreed to the general formula (which of course covers detention for medical reasons)’.158 The Working Group’s 16 August meeting is not well documented within the Department’s papers.

However, two short telexes from E. B. Nason, of the

Permanent Mission to the United Nations, to MacKernan, Political Section, Department of Foreign Affairs, do give an impression of some of the issues discussed at the meeting. Telex 761 confirms that the text informally agreed upon at the meeting on 9 August was also approved at this meeting, albeit with some required grammatical changes.159 It was also decided that, in order to maximise chances of success, the torture item would not be introduced as a separate item on the agenda but rather added to an existing Economic and Social Council item, most likely to the Secretary-General’s report required under Resolution 3059.160 Operative paragraph 6 of the draft, which placed the torture item on the agenda for the 30th session of the General Assembly, was considered very important. Lastly, it was agreed that the Working Group of four would canvass for co-sponsors.161

157

NAI DFA 2005/145/200 ‘Report of the Third Committee UNGA XXIX, Meeting of the Nine, 12 September 1974 by John F. Cogan’ dated 16 September 1974. 158

NAI DFA 2005/145/200. Letter from Florence O’ Riordan, Permanent Mission of Ireland to the United Nations to Mr. McKernan, The Secretary, Department of Foreign Affairs, dated 9 August 1974. 159

NAI DFA 2006/131/1427 ‘Telex 761 for MacKernan from Nason Re. Meeting of 16/8/74 in New York on Torture’ dated 29 August 1974. 160

Ibid.

161

Ibid.

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Of particular interest at this meeting, however, was the United Kingdom’s input on the substance of the draft. The telex explains that the United Kingdom had ‘attempted to have Operative 1 (b) deleted on grounds that the articles referred to therein had not been given final consideration by the Commission on Human Rights and might, therefore, provoke procedural objections in the GA’.162 Operative paragraph 1 (b) requested that Member States furnish the Secretary-General with ‘their observations and comments on Articles 24, 25, 26 and 27 of the draft principles on freedom from arbitrary arrest and detention prepared for the Commission on Human Rights,’163 ‘in time for submission to the Fifth UN Congress on Prevention of Crime and the Treatment of Offenders and to the General Assembly at its 30th Session’.164 Articles 24-27 of the draft principles165 (which were forwarded by Cogan to the Department of Foreign Affairs on 17 September) were directly related to treatment in detention. Article 24(1) in particular provided:

No arrested or detained person shall be subjected to physical or mental compulsion, torture, violence, threats or inducements of any kind, deceit, trickery, misleading suggestions, protracted questioning, hypnosis, administration of drugs or any means which tend to impair or weaken his freedom of action or decision, his memory or his judgment.166

162

Ibid.

163

NAI DFA 2006/131/1427 ‘The General Assembly’ enclosed with ‘Letter from Florence O’ Riordan to Mr. McKernan, Department of Foreign Affairs’ dated 19 August 1974, Operative para 1(b). 164

Ibid Operative para 1.

165

At its 12th Session in 1956, the Commission on Human Rights had requested a study of the right of everyone to freedom from arbitrary arrest, detention and exile. The draft principles which followed were based on this earlier study. The subject remained on the agenda of the Commission on Human Rights for a number of years without much further action. The subject took on some urgency during the drafting of the Declaration against Torture with the recognition of the link between arbitrary arrest and detention and occurrences of torture. In 1976, the General Assembly requested the Commission on Human Rights to prepare a draft body of principles. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which resulted, were not adopted by the General Assembly until 9 December 1988. See: UN General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted 9 December 1988, A/RES/43/173; Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law (Antwerpen and Oxford: Intersentia, 2006) 95. 166

NAI DFA 2006/131/1427 ‘Draft Principles’ Article 24.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

A follow-up telex elaborates on the underlying reasons for the UK’s reluctance to accept that particular paragraph. According to the telex, ‘[o]n being probed by the Netherlands, it emerged that UK found many of the articles too strong and referred to “domestic” difficulties of her own…Netherlands in chair was firmly opposed to any change and UK did not press matter’.167 The United Kingdom, it could be argued, was eager to steer the focus away from any issue which touched too closely on the particulars of the Northern Ireland situation. This assertion is given some support in the draft report of a meeting of the European Political Cooperation UN Expert Group, held in Paris on 5 September. The torture item was discussed; the Irish delegation draft report records the United Kingdom’s recommendation that, in order to gain wide support for the resolution, it would be important not to be overly concerned with ‘matters of substance’.168 At this point, it was becoming clear that the matter of the torture item, overall, and Irish involvement, in particular, was a very sensitive one for the United Kingdom and, consequently, that Ireland would need to tread carefully. This is confirmed in a telex from Carmel Heaney, Consulate-General in Boston, to the Political Section of the Department of Foreign Affairs in which she advised that Ireland’s position at the 29th session of the General Assembly should be taken in light of ‘the Anglo Irish situation’.169 She also underlined the importance of having the strong support of the Anglo-Irish section in going-ahead with co-sponsorship of the resolution.170 On 4 September, Seán Donlon,171 wrote to Declan Quigley,172 Senior Legal Assistant at the Attorney-General’s Office, filling him in on the United Kingdom’s

167

NAI DFA 2006/131/1427 ‘Telex 762 for MacKernan from Nason Re. UK Objection to Operative One (b)’ dated 29 August 1974. 168

NAI DFA 2006/131/1427 ‘European Political Cooperation UN Expert Group Meeting, Paris, 5 September 1974, Draft Report’. 169

NAI DFA 2006/131/1427 ‘Telex for Political Section from Mrs Heaney’ dated 30 August 1974.

170

Ibid.

171

Former Head of the Anglo-Irish Section, Assistant Secretary and Irish Ambassador to the United States. Seán Donlon’s involvement with the inter-State application began with his appointment as the covert investigator for the Department of Foreign Affairs in August 1971, collecting the witness statements and other documentary evidence submitted with the application. He continued to be involved with the proceedings up until the Sunningdale Conference of December 1973. For an account of his involvement, see: Schabas and O’Sullivan, ‘Politics and Poor Weather’ (n 6)

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opposition to substantive aspects of the draft Resolution and to elicit his advice on how Ireland should handle the question at the General Assembly given the United Kingdom’s stated reservations.173

The response from Quigley was not located;

however, this communication is itself enough to demonstrate the diplomatic tangle in which the state had become wound up with respect to the torture item. On 11 September, Cogan reported to the Department of Foreign Affairs on further developments at the United Nations. Accompanying his letter was the most recent Netherlands’ draft text. This text, explained Cogan, took into account two recently adopted draft resolutions by the Sub-Commission on Minorities and the Prevention of Discrimination. The first of these resolutions referred in particular to the situation in Chile; the second was concerned more generally with the question of torture and cruel, inhuman or degrading treatment or punishment in detention. According to Cogan, the Netherlands delegate had been surprised by the ‘large volume of support for these two drafts, which, he felt were, quite “progressive” in their wording’.174 Cogan’s letter does not indicate whether or not this was viewed by the Working Group or at least by the Netherlands’ delegate as a hopeful sign with respect to the torture item at the 29th session of the General Assembly. The letter does, however, describe the general reaction from the African and Asian countries, as a result of the Working Group’s canvassing, to the proposed torture item. Cogan writes that the ‘[i]nitial reaction from most was reserved, although no-one expressed outright opposition, and the reaction of one Arab country approached [Egypt] was surprisingly positive, in view of the negative attitude shown by the Arabs last year’.175 Cogan’s own casual communication with an Indian colleague was demonstrative of the general political difficulties with the resolution. Cogan explains that ‘[t]hough personally

172

Declan Quigley was one of the key figures in the inter-State case, with whom Donlon had closely worked when amassing the evidence for the Irish Government’s application. See generally: Schabas and O’Sullivan, ‘Politics and Poor Weather’ (n 6). 173

NAI DFA 2006/131/1427 ‘Letter from Seán Donlon, Assistant Secretary, to Declan Quigley, Senior Legal Assistant, Attorney-General’s Office’ dated 4 September 1974. 174

NAI DFA 2005/145/200 ‘Letter from John F. Cogan, First Secretary, Permanent Mission of the Ireland to the United Nations, to Political Section, Department of Foreign Affairs’ dated 11 September 1974. 175

Ibid.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

well disposed, he [the Indian delegate] was dubious about the kind of support the initiative might get; he thought there might be opposition from the Arabs and other members of the developing group (unless we could tie in a reference to colonialism or apartheid)’.176 The Indian delegate himself expressed doubt that his country could cosponsor the resolution.177 With continued accelerating decolonisation and the events in Apartheid South Africa, the question of torture was not the priority concern of the developing world in the early 1970s. On the substance of the draft text, negotiations continued both in the working group and at the Third Committee. Ireland had approved the draft text, including the problematic operative paragraph 5 to which Sweden held reservations. 178 Operative paragraph 5 invited the World health Organisation and UNESCO to draft ‘an outline of principles of medical ethics for the treatment of persons subjected to any form of detention or imprisonment’ to be brought before the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders which was upcoming in 1975.179 At the end of September, Seán Donlon wrote to Carmel Heaney outlining, what he described as, ‘guidelines’ for the Irish position at the 29th session of the United Nations General Assembly.180 He also provided background material on the inter-State case.181

Donlon’s ‘guidelines’ had been discussed with the Political

Division of the Department of Foreign Affairs which shared his views. This letter is insightful insofar as, without proposing any new approach, he does explicate the overall position in which Ireland had found itself and from which it would need to advance. According to Donlon’s letter, co-sponsorship of the draft Resolution was

176

Ibid.

177

Ibid.

178

NAI DFA 2005/145/200 ‘Report of the Third Committee UNGA XXIX, Meeting of the Nine, 12 September 1974 by John F. Cogan’ dated 16 September 1974. 179

NAI DFA 2005/145/200 ‘Torture and other cruel, inhuman or degrading treatment or punishment’ (draft text) dated 10 September 1974. 180

NAI DFA 2006/131/1427 ‘Letter from Seán Donlon to Carmel Heaney, C/O Permanent Mission to the United Nations’ dated 30 September 1974. 181

NAI DFA 2006/131/1427 ‘The Strasbourg Case’, Department of Foreign Affairs, dated 30 September 1974.

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viewed as consistent with the inter-state case at the European Commission.182 However, Ireland’s involvement with the draft Resolution was to be, by no means, boundless. Donlon’s letter highlights two reasons for constraining Ireland’s involvement. Both of these reasons were connected to the Strasbourg case. The first advocated attentiveness towards the Strasbourg case generally insofar as the case was, at that point, sub judice and, moreover, being pursued under the European Convention, which in terms of the torture prohibition was ‘working reasonably well’.183 Thus, it seemed, Donlon was advocating an approach which demonstrated deference to the mechanisms of the Council of Europe. The second reason had a more direct impact on the relationship with the United Kingdom:

There is the fact that at any given time, we have, in the context of Anglo-Irish relations, to consider carefully what we say on torture since irrespective of what the actual position is, the British will inevitably see anything we say only in the limited context of the Strasbourg case.184

Donlon further stipulated that whilst the previous year the political situation had necessitated a very low profile with respect to Resolution 3059, there was less urgency for such a guarded policy in the existing political context.185 He pointed to Ireland’s participation in the Working Group as one reason why Ireland should ‘play a more prominent role’ at the 29th session and noted:

Indeed in view of British participation in the drafting of the resolution, the backing given by the other members of the Nine and the references

182

NAI DFA 2006/131/1427 ‘Letter from Seán Donlon to Carmel Heaney, C/O Permanent Mission to the United Nations’ dated 30 September 1974. 183

Ibid.

184

Ibid.

185

Ibid.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

made to the subject in the Minister’s general debate speech,186 it would perhaps invite attention if we were to take a low profile this year.187

Summarising his views, Donlon recommended that ‘an active interest e.g. by cosponsoring appropriate resolutions’ should be assumed but that a leading role should not be taken. He additionally cautioned against any references to torture in the Northern Ireland context.188 The intervention prepared by Carmel Heaney, for delivery at the Third Committee meeting where the fate of the draft Resolution would be decided, provides some insight into the principles underpinning the Irish support for the torture item. The proposed intervention was sent to the Department of Foreign Affairs on 9 October with a request for observations from the Political, Anglo-Irish and Legal Sections.189 Given the Department’s consciousness of British sensitivities, the language of the intervention would naturally require careful crafting. An updated draft was sent to Seán Donlon on 14 October, the day before it was to be delivered. This draft had undergone some changes in language and structure with some omissions, but nothing remarkable had been dropped from the original.190 Heaney’s intervention rested on the concept of the re-emergence of torture: ‘In spite of … solemn prohibitions in international instruments there is reliable evidence that the practice of torture is on the increase in some areas. This trend is all the more disturbing in as much, in certain areas, torture appeared to have become a thing of the past’; on the universality of torture: ‘It is to be found in all regions of the world and in all types of political systems, though not necessarily of course in all countries’; and on its modern form: ‘The third reason why we should be concerned about the subject is the development of techniques of torture pari passu with the

186

See n 1 above.

187

NAI DFA 2006/131/1427 ‘Letter from Seán Donlon to Carmel Heaney, C/O Permanent Mission to the United Nations’ dated 30 September 1974. 188

Ibid.

189

NAI DFA 2006/131/1427 ‘Ref: C/19, Letter Mr. D. O’ Donovan, Political Section, Department of Foreign Affairs from Third Committee Delegate’ dated 9 October 1974. 190

Ibid.

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development of modern technology’.191 In her closing lines, Heaney, using Franz Fanon’s words, described the tortured as the ‘Wretched of the Earth’.192 On 22 October 1974, the draft Resolution, introduced by the Netherlands, (resolution 2016) was voted on at the Third Committee and was approved by 111 votes to one against (Congo) with two abstentions (Togo, Gabon).193

Unlike

resolution 3059 of the previous year, this resolution eased its way through the Third Committee, as Seán Cronin remarked in the Irish Times, ‘virtually unopposed’.194 In a letter to the Department of Foreign Affairs, Heaney remarked that the draft Resolution’s acceptance by an overwhelming majority in the Third Committee had been facilitated by the concurrent tabling of a draft resolution on Chile.195 Resolution 3218 was adopted at the United Nations General Assembly on 6 November 1974.196 The Resolution contained six operative paragraphs within which it spoke both to the Fifth United Nations Congress on Prevention of Crime and the Treatment of Offenders and to the World Health Organisation requesting from the former the development of professional ethics for police and related law enforcement agencies,197 as well as an elaboration of the Minimum Standards to incorporate torture of detainees198 and inviting the latter to outline principles of medical ethics relevant to the question of torture.199 Member States were requested to provide information on national remedies and sanctions against torture and to comment on Articles 24-27 of

191

NAI DFA 2006/131/1427 ‘Telex 937 for Asst Secretary Donlon from Mrs. Heaney’ dated 14 October 1974.

192

Ibid. See also, F Fanon, The Wretched of the Earth (London: Macgibbon & Kee, 1965).

193

NAI DFA 2005/18/108 ‘Telex 985 for Political from PMUN: The Draft Resolution on Torture’ dated 22 October 1974. The draft resolution was co-sponsored by Australia, Austria, Bangladesh, Belgium, Columbia, Costa Rica, Ecuador, France, Germany (Federal Republic of), Ireland, Japan, Jordan, Netherlands, New Zealand, Philippines, Sweden, United States, Cyprus, Portugal. 194

NAI DFA 2005/131/1427 Sean Cronin, ‘General Assembly adopts Irish motion on Torture’, The Irish Times dated 9 December 1974. 195

NAI DFA 2005/145/200 ‘Letter from Carmel Heaney to Department of Foreign Affairs’ dated 24 October 1974. 196

UNGA Res. 3218 (XXIX), 6 November 1974.

197

UNGA Res. 3218 (XXIX) 6 November 1974 para 3.

198

Ibid para 4.

199

Ibid para 5.

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IRELAND AND THE UN DECLARATION AGAINST TORTURE

the draft principles on freedom from arbitrary arrest and detention.200 Crucially, operative paragraph 6 guaranteed that the question of torture would be considered at the 30th session in 1975.201

E. The Declaration against Torture With Resolution 3218, the torture question had been placed squarely on the United Nations General Assembly agenda. There was no question of squeezing a torture item into the 30th session, it was a fait accompli. The task, therefore, was to ensure the implementation of the Resolution and, in that regard, to oversee that the torture question was sufficiently dealt with at the Fifth United Nations Congress to be held in Geneva from 1-12 September 1975.202 The flurry of activity resulting from the adoption of Resolution 3218, particularly with regard to the upcoming Fifth United Nations Congress, had already roused debate within the Department of Foreign Affairs and within the AttorneyGeneral’s office. A series of handwritten letters convey the urgency with which the matter was treated. One letter specified that Ireland’s representation at the Congress would have to be ‘well versed in and take account of our position in the Strasbourg case’.203 To ensure this, members of the Strasbourg team would be included in the delegation.204

Declan Quigley was later confirmed as the Attorney-General

representative.205 At a meeting held on 4 June ‘the whole matter was discussed in light of the Strasbourg case’.206 Clearly, the Government was under some pressure to ensure complete coherence between Ireland’s policies at the Congress and the

200

Ibid para 1.

201

Ibid para 6.

202

The Congress was originally scheduled to take place in Toronto. At the last minute the location changed to Geneva. 203

NAI DFA 2006/131/1427 ‘Handwritten Letter’ dated 22 May 1975.

204

Ibid.

205

NAI DFA 2006/131/1427 ‘Handwritten Letter [addressed] to Mr. McColgan’ dated 25 August 1975.

206

NAI DFA 2006/131/1427 ‘Handwritten Letter’ dated 4 June 1975.

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relevant submissions made in the Strasbourg case and that this was due to fear of a counter-attack on Ireland’s position.207 The Netherlands and Sweden had assumed the leading role in preparation for the Fifth United Nations Congress. The Netherlands prepared a draft declaration on torture. Additions to the Standard Minimum Rules were also proposed.

A

handwritten letter was sent to inform the Anglo-Irish section that, at a meeting of the Nine, the Netherlands had requested a reaction from the competent Irish authorities including their views on possible co-sponsorship - in light of Ireland’s co-sponsorship of Resolution 3218.208

Mr. Burke, from the Anglo-Irish section, responded,

reiterating what had at this stage become standard operating policy concerning torture resolutions – whilst there were no reservations about Ireland’s active involvement, the leading role should not be seen to be taken, nor should any reference be made to torture in the Northern Ireland context.209 The Swedish/Dutch draft recommendation on torture, which was intended to be put forward for adoption at the 30th session of the General Assembly, was submitted on the first day of the Fifth United Nations Congress.210

This draft

recommendation detailed the text of a draft declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment. Rodley and Pollard recount that by the end of the Congress the draft text had been acclaimed as ‘the major achievement of the Congress’ and the draft declaration, he personifies as, having ‘left the Congress for the General Assembly with broad support’.211 An article in the Guardian on 20 September testified, albeit quite sceptically, to the success of the draft Declaration in Geneva.212 The article criticised the relative neglect of both the drafting of an international code of police ethics and the revision of the Standard Minimum Rules, as provided for

207

Ibid.

208

NAI DFA 2006/131/1427 ‘Handwritten Letter from O’ Ceallaigh to Burke’ dated 1 July 1975.

209

NAI DFA 2006/131/1427 ‘Handwritten Letter from Burke to O’ Ceallaigh’ dated 2 July 1975.

210

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 27.

211

Ibid 35.

212

NAI DFA 2005/145/200 Peter Deeley, ‘Brute Forces’ The Guardian (20 October 1975).

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under resolution 3218 and tabled to take place at the Congress.213 The article noted that ‘[b]oth would probably have had more real application than the torture declaration which, as many delegates pointed out, was impossible to enforce where a torturer was carrying out his duties with the connivance of the State’.214 Ireland’s own record of the Congress is sparse, however, Rodley does attest to Ireland’s positive contribution during the debate over Section V of the draft.215 In the congress report, it was suggested that the next step, should the declaration be adopted at the 30th session of the General Assembly, would be to move on to a convention.216 Ireland had at this stage agreed to co-sponsor the draft resolution at the 30th session. There remained some awkward issues to tie up, however. Earlier in the year, the United States had proposed a draft resolution to establish an expert group to study the nature and extent of torture.217 This was indeed an interesting proposal but one which was deemed overly ambitious. Sweden and the Netherlands cautioned against association with this proposal by any co-sponsors of the draft Declaration. They considered that it would provoke widespread opposition in the Third Committee, would have little chance of success and could jeopardise their own Resolution.218 The response to Heaney, who requested advice on the matter, illustrates a policy in a bit of a pickle. The Minister for Foreign Affairs, in his General Assembly speech, had already made reference to the United States’ proposal; in fact, warmly endorsing it.219 Thus, it seemed that disassociation, even if association meant cosponsorship, would be difficult even if the proposal was unlikely to gain support.220

213

Ibid.

214

Ibid.

215

N Rodley and M Pollard, The Treatment of Prisoners (n 4) 35. The text of the draft document can be found in DFA 2005/145/200. 216

NAI DFA 2006/131/1427 ‘Telex 847 for Dr O’ Dwyer from C Heaney’ dated 27 October 1975.

217

NAI DFA 2006/131/1427 ‘Letter from O’ Ceallaigh to Burke’ dated 13 April 1975.

218

NAI DFA 2006/131/1427 ‘Telex 763 for Dr. O’ Dwyer from Mrs. Heaney’ dated 15 October 1975.

219

NAI DFA 2006/131/1427 ‘Telex for Heaney from O’ Dwyer’ dated 24 October 1975.

220

Ibid.

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Heaney replied succinctly. She emphasised that Ireland had not been asked to co-sponsor and underscored the problems with the United States proposal.221 Her explanation made clear that whilst a normative development around the issue of torture was perhaps timely, an investigative element would not have been welcome. States were simply not willing to allow interference in their internal affairs nor were they open to accusation.222 Heaney was also quick to point out the dangers of the United States proposal. With the adoption of the Netherlands’ draft Declaration, the ‘next logical step’ would be a convention, as suggested by the Fifth United Nations Congress report, thus, she argued, ‘it could be that to divert the attention of UNGA from this primary objective would be playing into the hands of those prepared [to] resist any action on torture’.223 According to Heaney, the Swedish and Netherlands delegates were making efforts to dissuade the United States from going ahead with the proposal.224 A Department of Foreign Affairs brief on resolutions at the General Assembly, dated 7 November, discerned that, in the Irish Third Committee delegate reports, ‘the private view has been expressed that the US also has reasons of domestic politics for proceeding with their initiative’.225 It may be inferred from both Heaney’s telex and the 7 November brief that suspicion of the United States position centred around the possible conflict between the Commission on Human Rights investigative activities under Resolution 1235 and the United States proposal for an investigative expert group, with the latter potentially undermining the former. In the final paragraph, O’ Dwyer, from the Anglo-Irish Section, who appears to be the author of this brief, concludes that the Irish delegation should ‘try to dissuade the US from proceeding with their proposal, which seems certain of defeat’.226 A letter to O’ Dwyer on 13 November seems to have put the subject of co-

221

NAI DFA 2006/131/1427 ‘Telex 847 for Dr O’ Dwyer from C Heaney’ dated 27 October 1975.

222

Ibid.

223

Ibid.

224

Ibid.

225

NAI DFA 2006/131/1427 ‘Resolutions on Torture at UNGA XXX’ dated 7 November 1975.

226

Ibid.

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sponsorship of the United States proposal to rest.

This letter, whilst stating

acceptance of the proposal in practice, makes clear that co-sponsorship would not be supported if it was likely to impair the success of the Netherlands’ proposal.227 Unsurprisingly, a connection was also made with the Northern Ireland situation, the author stating that, in that regard, ‘there would be no practical value at this stage of such a study group’.228 The underlining of ‘at this stage’ indicates that there was no general opposition to such a ‘US approach’ to the Northern Ireland case. Preparations mounted for the crucial third committee meeting at which the fate of the Draft Declaration would be decided. On 18 November, Heaney sent her proposed Third Committee intervention to the Department of Foreign Affairs for scrutiny. This time, the Department had some changes to make. The problematic passage was the following: ‘From the examples of recent events in certain places we know how law enforcement or security personnel can be drawn inexorably into complicity if not active participation in torture’.229 Given the sensitivity towards the inter-State case and the Northern Ireland context more generally, it is quite clear why this section caused discomfort.

This discomfort was explicitly discussed in an

exchange between Anglo-Irish and the delegates in New York. O’ Dwyer updated Heaney late in October on the status of the inter-case at the European Commission, on the likelihood of a favourable judgment and on the attendant concerns of Anglo-Irish with respect to Ireland’s involvement at the United Nations. In addition, O’ Dwyer referred to the ongoing situation in Northern Ireland:

All evidence has now been heard and we are optimistic that a favourable judgment will result i.e. that the Commission will find that there have been serious violations of human rights in [Northern Ireland] ... Anglo-Irish are anxious that any public statement on the matter ... be cleared first with them to avoid prejudicing the Commission’s report against us. They are nevertheless happy [for] any

227

NAI DFA 2006/131/1427 ‘Letter to Dr. O’ Dwyer’ dated 13 November 1975.

228

Ibid.

229

NAI DFA 2006/131/1427 ‘Telex 1100 for O’Dwyer from C Heaney’ dated 18 November 1975.

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opportunity in private exchanges to explain that an enormous body of evidence against the British has been amassed, that human rights have been and continue to be violated and that pressure should be brought to bear on the British to stop these disgraceful practices.230

Regarding Heaney’s statement, it was the phrase, ‘in certain places’, which caused particular concern.231 The phrase was evidently regarded as too pointed. Noel Dorr, with approval from the Anglo-Irish section, suggested a replacement paragraph: ‘There are times unfortunately when law enforcement or security personnel in some countries have been drawn into complicity if not active participation in torture’.232 The updated text, whilst less direct, nevertheless, clearly intended to make its point. Heaney’s intervention was strongly supportive of the tabled resolution. The speech centred acutely on the need for continued United Nations attention to the problem of torture. Resolutions 3069 and 3218 only marked the beginning, as, said Heaney ‘[t]he incidence of torture has not declined since. On the contrary, we must sadly note from reports which have reached this very committee as well as reliably attested reports published elsewhere that fresh examples of torture in various parts of the world come to light with depressing frequency’.233 On 24 November, despite the furore over the United States proposal, the Third Committee adopted the draft Resolution without a vote.234 According to Heaney’s telex, oral amendments were proposed by Saudi Arabia, USSR and India prior to the vote. It is worthy of note that, during the debate, the Libyan Arab Republic made reference ‘to torture in the Occupied Territories of Northern Ireland’ but no other delegation responded.235 The Irish Independent, reporting on the success of the

230

NAI DFA 2005/145/200 ‘Telex C459 for Heaney from O’Dwyer’ dated 31 October 1975.

231

NAI DFA 2006/131/1427 ‘Telex 549 for Heaney from O’Dwyer’ dated 19 November 1975.

232

Ibid.

233

NAI DFA 2006/131/1427 ‘Statement by Mrs. Carmel Heaney, Third Committee Agenda Item 74’ November 1975. 234

NAI DFA 2006/131/1427 ‘Telex 1160 for Dr O’Dwyer from C Heaney’ dated 24 November 1975.

235

Ibid.

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Resolution in the Third Committee, commented that the Resolution had been adopted ‘by unanimous consent’ following ‘heated debate between the Soviet Union and Chile, which accused each other of torturing political prisoners’.236 The United States suspended its proposal at the committee;237 the United States delegate noted that they would be pursing the issue at a later date.238 The approved text was introduced by the Netherlands at the United Nations General Assembly. The Netherlands observed that the draft declaration was not a legally binding document but that it did impose ‘a moral obligation on States to ensure that their national legislation conformed to the standards laid down therein’.239 Sweden made reference to the declaration as the basis for an international convention, which it regarded as ‘necessary to envisage’.240 On 9 December 1975, the plenary adopted without a vote the Resolution and the Declaration.241

CONCLUSION The difficult Northern Ireland landscape in the early 1970s and the highly sensitive inter-state case in Strasbourg created both the context and the constraint for Ireland’s campaign against torture endeavours at the United Nations. From the initial co-sponsorship of Resolution 3059 precipitated by the inter-state case, to inadvertent participation in the Working Group, through to the co-sponsorship of the Declaration against Torture, Ireland, by means of its actors and actions, demonstrated its commitment to the campaign. Yet participation was necessarily always restrained. As a result, a principled outlook juxtaposed, at times awkwardly, with a political one. It could be said that Ireland’s involvement in the drafting history of the Declaration against Torture was founded in tactful diplomacy. Luckily, due both to the contextual

236

NAI DFA 2006/131/1427 ‘U.N. body bans torture’, The Irish Independent, dated 25 November 1975.

237

NAI DFA 2006/131/1427 ‘Telex 1219 for Dr O’Dwyer from C Heaney’ dated 1 December 1975.

238

NAI DFA 2006/131/1427 ‘Press Release USUN – 164 (75) Statement by Carmen Maymi, United States Representative in Committee III, on the draft resolution concerning torture’ dated 28 November 1975. 239

Quoted in N S Rodley (n 4) 36.

240

Ibid.

241

NAI DFA 2006/131/1427 ‘Telex 1333 for Dr O’Dwyer from C Heaney’ dated 10 December 1975.

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situation, created by Amnesty International’s campaigning and the tragic situation in Chile, and to the commitment of the Swedish and Dutch governments, in particular, the success of the campaign against Torture was not impaired by Ireland’s constricted policy. Nevertheless, Ireland’s strategizing provides a fascinating example of the complex relationship between human rights and diplomacy.

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LEGAL CHALLENGES FACING THE UNITED NATIONS - LEGAL COUNSEL’S PERSPECTIVE

Statement by Ms. Patricia O’ Brien Under-Secretary-General for Legal Affairs and United Nations Legal Counsel

Seán Lester Lecture of the Irish Society of International Law 11 March 2010

Legal Challenges Facing the United Nations: An Appraisal from the Legal Counsel’s Perspective

Introductory Remarks

Dear Colleagues and Friends, I am sincerely grateful for your interest and for your attention this evening. I see this not as a personal compliment but as an indication of your interest in the work of the UN and in international law.

Since its creation in 2002, the Irish Society of

International Law has not only made a remarkable contribution to promoting study and debate in our field within Ireland, but has also played a noticeable role in the worldwide discussion on the most complex international legal issues of our time, many of which are a major part of my daily work at the United Nations.

I am deeply honoured and humbled to have been invited to give a lecture carrying Seán Lester’s name. For any international civil servant, Seán Lester is a role model for his loyalty and devotion to the cause of a universal organization. His “internationalism” has often been saluted. It matured during his years in Dublin at the Department of External Affairs and found a powerful manifestation when he was appointed as the Free State’s Permanent Delegate accredited to the League of Nations. 201

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From Geneva, Lester advocated for Ireland’s increased involvement in international affairs. In a very short space of time, he became a highly respected government representative, through his proactive role in the Council of the League. His internationalism was severely tested when he was appointed the League’s High Commissioner to Danzig, in 1934: faced with the rise of Nazism and its defiance to the Constitution of the Free City and the League’s administration, Lester defended the rights of Danzigers at his own personal risk. His internationalism, however, faced its ultimate trial when he agreed to take the reins of the League during its darkest times, in 1940 and throughout World War II. As Carl Hambro observed, “what it cost Sean Lester to hold the fort in Geneva, in a world that was falling apart, cannot easily be measured today”.1 Throughout his professional life, Lester defended the ideal of the League and his speeches show his conviction that the principles upon which it was founded were perennial and that, if the League were to disappear, “something would have to take its place”.2

Sixty five years after its creation and 55 years after Ireland joined in 1955, that “something”, the United Nations Organization, faces challenges of its own. And I am focusing my talk this evening on some of those challenges and how international law may be instrumental in resolving them. Before addressing those issues in more detail, I would firstly like to give you a brief overview of my role and essential functions as the Legal Counsel of the United Nations.

1

C. Hambro, “Sean Lester – The Man Who Remained True to His Ideals”, Aftenposten (Norway), 25 July 1959, quoted in R. B. Fosdick, The League and the United Nations After Fifty Years. The Six Secretaries-General, 1972, at 71. 2

NA, D.F/A, 19/40, Geneva, 31 March 1933, quoted in M. Kennedy, Ireland and the League of Nations, 1919-1946. International Relations, Diplomacy and Politics, 1996, at 186.

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The Role of the Legal Counsel and the Functions of OLA It is now a year and a half since I joined the UN as Legal Counsel to head the UN Office of Legal Affairs. OLA, as it is known throughout the Secretariat, employs about 160 staff on a full time basis and effectively acts as in-house Counsel to the Secretary-General, the senior management and the wider UN system. Our overall objectives are varied and include: providing a unified central legal service for the Secretary-General, the Secretariat and the principal and other organs of the United Nations; contributing to the progressive development and codification of international law; promoting the strengthening and development as well as the effective implementation of the law of the seas and oceans; registering and publishing treaties; and performing the depositary functions which the Charter has entrusted with the Secretary-General.

Much of our work is, understandably, carried out quietly and behind the scenes. We cover a wide range of issues of public international law which many people would associate with the UN – for example, advice on the laws of war, on peace-keeping operations, international criminal justice, and substantive assistance in the negotiation of international legal texts. Of course, OLA also carries out vital work which, by its nature, does not ordinarily command the attention of Member States or the general public. In this regard, I think, for instance, of the work undertaken on procurement where the Organization’s interests must be protected. For instance, the largest unit in my Office – the General Legal Division – last year provided legal support and assistance for peacekeeping logistical contracts, with an aggregate value of some $4 billion.

OLA’s horizons, and the expectations of it from within the United Nations, run very wide. We, like any Department, are making a contribution – and are expected to make a contribution – to the management of the wider Organization. In my capacity as Legal Counsel, I participate, for example, in the Secretary-General’s Policy Committee which develops common UN policy approaches to major global issues. I am also a member of the Secretary-General’s Senior Management Group and I have also been appointed to various Management Boards, including the

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Management Performance Board which is responsible for overseeing the senior managers’ compact process.

The Centrality of International Law Before I took up the post of Under-Secretary-General for Legal Affairs, my main experience of the organization was as Legal Adviser to the Department of Foreign Affairs of Ireland. In many respects, I was an outsider – from a committed Member State - looking in on how this vast and complex body worked. Naturally, this only allowed for a fleeting glimpse at most of the issues, or, for a very concentrated focus on an issue of particular national importance. So, in my new role as the UN Legal Counsel, I was curious as to how centrally international law would feature among the priorities of the Organization.

It can safely be said that, since 1945, the Organization and its Members have constantly striven to give practical meaning to the Charter’s resolve to establish conditions under which justice and respect for international obligations can be maintained, and to develop legal bases for peaceful relations between States. However, we all know that, in any given situation or crucial political issue, the importance given to a genuine legal assessment may vary: The UN has thus seen periods of great advancement in international jurisprudence, just as there have been times when our function as guardian of the global legal architecture has seemed more peripheral. After these 20 months in office, I believe that we live in times where international law - and the role of the UN as its champion - is absolutely central to the Secretary-General and his team.

Almost daily, I have witnessed the global challenges with which the UN is asked to grapple: some are predictable and perennial; many are unforeseeable. My purpose today is to emphasize how a legal perspective has proven instrumental in facing some of these challenges. In doing so, I will first refer to those numerous instances where the Organization reaches out to the world and strives to uphold the law in a complex political environment. The Secretary-General's commitment to the

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strengthening of the rule of law, the pursuit of justice and the determination to end impunity for international crimes are obvious illustrations.

But I would also very much like to draw your attention to a less visible aspect of the centrality of law for the UN or, to be more specific, within the UN. In our Organization, acting in conformity with legal requirements is a constant and dynamic pattern which is present in all our activities. In other words, respect for the law helps us to perform better. As I will explain, the current administration has achieved significant progress to put into practice the will and objective of Secretary-General Ban Kim-moon that the United Nations be irreproachable.

1.

Upholding the Law in a Complete Political Environment

So, to my first point: how the UN upholds the law in a complex political environment. Under Article 1 of the Charter, the United Nations is expected to be “a centre for harmonizing the actions of nations” in the attainment of a number of common ends, which include the maintenance of international peace and security, the development of friendly relations among nations, and international co-operation on economic, social, cultural or humanitarian matters and the promotion of human rights and fundamental freedoms. It became quickly obvious, however, that the Organization was not to remain a passive spectator of the political environment which surrounded it, and that it was expected to take an active stance in the attainment of the purposes of the Charter. From a legal perspective, this has meant that the United Nations plays a key role in upholding the law in contemporary international relations.

It is almost a truism to observe that the realization of this objective cannot be confronted in the same manner in this early part of the twenty-first century, as it was originally foreseen in the immediate aftermath of World War II. The United Nations has shifted its attention to new, contemporary issues and has proposed innovative ways of addressing them. In legal terms, these include: the promotion of the rule of law at the international level; the management of post-conflict situations, reconciling peace and justice; and the exploration of new concepts, such as the “responsibility to protect”, which are aimed at ensuring greater respect for international law. I hope to 205

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show to you how the Organization has been able to propose novel legal ways of responding to the changing political environment particularly in the recent past, while maintaining a solid attachment to the principles and mechanisms provided for under the Charter.

A.

Promoting the Rule of Law at the international level

The concept of the “rule of law” is today at the centre of the United Nations’ concerns. Many offices within the system, including my own, are involved in the promotion of the rule of law. In view of the significance and diversity of the Organization’s involvement in this area, the Secretary-General proposed in 2006 to establish a Rule of Law Coordination and Resource Group, chaired by the Deputy Secretary-General and of which I am a member together with a few other senior UN officials, to ensure the overall coordination of the UN efforts. Furthermore, the issues relating to the rule of law are being discussed by Governments both in the Security Council and in the General Assembly, which has, since 2006, included on its agenda as an item “The rule of law at the national and international levels”.

These efforts are well-known within the system and focus much of the attention of my Office every day. What may, however, be less evident is that the “rule of law” is a theme that has always been present in the Organization.

I have already referred to the preamble of the Charter in which the Peoples of the United Nations express their determination “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. It is in this perspective that the purposes and principles proclaimed in the Charter are to be understood. Principles such as the sovereign equality of States, the fulfillment in good faith of international obligations, the peaceful settlement of disputes or the prohibition of the threat or use of force in international relations, all constitute the foundations of an international society based on the supremacy of the law, equality before the law, and accountability under the

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law. This idea was eloquently expressed by Secretary-General Hammarskjöld, when he declared that “the demand of the Charter for a rule of law … aims at the substitution of right for might and makes of the Organization the natural protector of rights which countries, without it, might find it more difficult to assert and to get respected”3. One may hear in this statement echoes of Seán Lester’s powerful case for Ireland’s involvement in the League of Nations, when he argued that, without the League, the small powers’ “rights and independence would be in very much greater danger than with the small and uncertain degree of protection they may count upon, through their shelter behind theoretical equality”4.

The concept of the “rule of law” is present today in most of the areas of action of the Organization, from the protection of human rights to the maintenance of peace and security, from the fight against poverty to the most sensitive political affairs.

The omnipresence of this concept, which is so familiar to us lawyers and has filled entire libraries on legal philosophy and political theory, has the effect of placing our field of expertise at the very heart of the Organization’s mission. This should not come as a surprise to us, but does raise an interesting question, namely: how does the UN conceive what some have called the “exceedingly elusive notion” of the rule of law?

In a 2004 report of the Secretary-General, the “rule of law” has been described as referring to: “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It

3

Introduction to the Annual Report of the Secretary-General on the Work of the Organization, 16 June 1960-15 June 1961, A/4800/Add.1, respectively at pp. 1 and 2. 4

NA, D.F/A, 19/40, Geneva, 31 March 1933, quoted in M. Kennedy, Ireland and the League of Nations, 1919-1946. International Relations, Diplomacy and Politics, 1996, at 186.

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requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”5

The Secretary-General insisted on the universality of the principles that had inspired the Organization’s action in this area, pointing out that its norms and standards had been “accommodated by the full range of legal systems of Member States, whether based in common law, civil law, Islamic law, or other legal traditions”6.

What is of particular interest is that the Organization recognizes the existence of two interdependent dimensions to the concept of the “rule of law”, one national and the other international. This interdependence is explicitly acknowledged, for instance, in the Millennium Declaration, whereby the Heads of State and Government of the United Nations affirmed their resolve to “strengthen respect for the rule of law in international as in national affairs”. Secretary-General Annan’s report “In larger freedom” expressed the belief that “every nation that proclaims the rule of law at home must respect it abroad and that every nation that insists on it abroad must enforce it at home”7.

The UN also upholds the existence of an intrinsic link between the rule of law and the principles and purposes of the Charter. This is apparent, for example, in the 2005 Outcome Document, which reaffirms the Member States’ “commitment to the

5

S/2004/616, para. 6.

6

S/2004/616, para. 10.

7

A/59/2005, para. 133

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purposes and principles of the Charter and international law and to an international order based on the rule of law and international law”8.

Finally, the “rule of law” appears as a vector for the engagement of the Organization in various areas of the international arena.

In the 2005 Outcome

Document, once again, Member States acknowledged that “good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger”9 and that human rights, the rule of law and democracy “are interlinked and mutually reinforcing”10. These general statements are accompanied by calls for action on more specific issues of concern, such as the adherence to international treaties, the enhanced role of International Court of Justice in the peaceful settlement of disputes, the protection of civilians or the eradication of policies and practices that discriminate against women. The Security Council, for its part, also expressed support to the peaceful settlement of international disputes and to rule of law activities in the peacebuilding strategies in post-conflict societies, and emphasized the importance it attaches to the responsibility of States to comply with their obligations to end impunity and to prosecute those responsible for the most serious international crimes, and its resolve to ensure that its sanctions be targeted and have clear objectives11.

In sum, the concept of the rule of law in the United Nations both embraces the most classical and fundamental principles of legal philosophy and the international legal order, and allows us to use these principles to face the most urgent and contemporary concerns of the international community. A good example of how this is achieved is certainly the Organization’s involvement in post-conflict situations by reconciling peace and justice. So, I now turn to this challenging topic.

8

A/60/1, para. 134, chapeau and lit. (a).

9

A/60/1, para. 11.

10

A/60/1, para. 119.

11

S/PRST/2006/28.

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B.

Managing the post-conflict situation by reconciling peace and justice

The relationship between peace and justice is, indeed, a delicate one. A central part of my task is to help the UN in its approach to these issues and to ensure the pursuit of justice and the ending of impunity. In doing so, I find myself at the core of the tension engendered by the need to uphold the law in a complex political environment. The tension to which I refer includes the need to bring about and sustain peace in postconflict environments and the concomitant need to pursue justice and to bring an end to impunity for grave violations of Human Rights, International Humanitarian Law and Refugee Law.

I propose to explore a bit further the contemporary tenets of the relationship between peace and justice. I will then briefly turn to the different “kinds” of justice available and the way they have been practically approached by the UN, before addressing the delicate issues of amnesty, all matters of significant practical importance for the Organization.

The relationship between peace and justice While many accept that there can be no sustainable peace without justice, it is nevertheless also clear that the relationship between peace and justice is complex and difficult. With the growing involvement of the UN in post-conflict societies, the Organization has frequently been called upon to express its position on this relationship. In the short term, it is easy to understand the temptation to forgo justice in an effort to end armed conflict. But any decision to ignore atrocities and to reinforce impunity may carry a high price. We cannot allow the impact of justice to be undervalued when weighing objectives in resolving a conflict.

In a recent statement - which I had the honour of delivering - the SecretaryGeneral has described this issue as follows: “As we fight against impunity and seek to strengthen accountability, the relationship between peace and justice has been a frequent point of 210

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contention. After a decade-long debate on how to “reconcile” peace and justice or how to “sequence” them, the debate is no longer between peace and justice but between peace and what kind of justice. Voices that denied the need for justice seem to have disappeared. There is now growing support for the idea that every comprehensive conflict settlement should include elements of justice.

However constructed, there seems to be a consensus that justice must be factored into post-conflict strategies in order for peace to be sustainable. This is a major achievement for international criminal justice.”

The growing consensus – that peace and justice go hand in hand and that elements of justice must be factored into every post-conflict strategy in order for peace to be sustainable – is a major breakthrough. It guides us in our fight against impunity, in particular on the way to upcoming landmark events such as the first review conference of the Rome Statute of the International Criminal Court in early June this year in Kampala.

While we will uphold those principles, the challenge is always to find the right balance in each specific instance. The problem is not one of choosing between peace and justice, but of the best way to interlink one with the other, in the light of specific circumstances, without ever sacrificing the one for the other. If we ignore the demand for justice simply in order to reach a peace agreement, the foundations of that agreement will be fragile and possibly unsustainable. But, we must acknowledge also that if we insist at all times on a relentless pursuit of justice, a delicate peace may not survive. At times, we may need to postpone the day when the guilty are brought to trial.

This pragmatic assessment should not, however, be misinterpreted. Freedom from fear is, first and foremost, what all people in conflict and post-conflict societies around the world long for. But they also want justice, and they deserve accountability.

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We know that accountability matters for peace. Therefore, it is our duty to fight impunity. For my part, this issue crosses my desk in a way or another on a daily basis.

The perpetrators of international crimes, of war crimes, crimes against humanity, and the crime of genocide and serious violations of IHL must be held accountable. The building of a culture of accountability is a challenge that SecretaryGeneral Ban has vigorously undertaken and I would suggest that under his leadership real progress is being made in this quest to end impunity. Everyday, I am trying to do my part to support these efforts.

Peace and “What kind of Justice” – International Criminal Justice Mechanisms In this respect I will refer to the various international justice mechanisms which we assist and support. We often hear that the robust pursuit of criminal justice at the international level is an erosion of sovereignty, or a new form of western colonialism. But we should recognize, I suggest, that international criminal accountability mechanisms have only been engaged where there is a real need to do so. In some cases, in Sierra Leone and the former Yugoslavia for instance, after a conflict, there is no proper national criminal justice infrastructure. In other cases, such as Rwanda after the genocide, the national judicial system was so overwhelmed that prosecutions were not feasible. In Cambodia, criminal justice was virtually unknown when the mechanism of the Extraordinary Chambers was put in place.

Let me emphasize some of the most noteworthy developments brought by these international justice mechanisms. The Special Court for Sierra Leone is, for instance, the first “mixed” or “hybrid” Tribunal established by Agreement between the UN and a Member State. Its judgment, in February 2008, in the so-called “RUF case” against three members of the Revolutionary United Front, is the first to convict individuals of forced marriage as a separate crime against humanity, and for attacks against peacekeepers as a specific war crime. The Court’s only remaining trial - the case against Liberian former President Charles Taylor - is taking place in the

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Netherlands.

So the Court is preparing to close its doors after a successful

undertaking.

As to the Extraordinary Chambers of the Courts of Cambodia, which has recently completed its first trial, I would simply emphasize that it is not just a mechanism for accountability, bringing justice to the victims of the Khmer Rouge regime. It is also a catalyst for national judicial reform and development. The same may be said of the Special Tribunal for Lebanon, launched by the Secretary-General in March 2009, which marks a decisive milestone for bringing those responsible to justice and hopefully, to continue to restore confidence and peace in this country.

We are now heading towards a critical phase for international criminal justice when the ad hoc tribunals, ICTY, ICTR and SCSL are completing their work. If we want to make a fair assessment of the work achieved by these Tribunals, we should certainly acknowledge the fact that an appetite to establish further ad hoc tribunals is not evident. There may be several reasons for this, including the financial costs, but it should not be taken as an indication that these institutions have “failed”: instead, their work has marked a very important point in the development of international criminal justice which few might have foreseen when they were established. The time is ripe to build on these early efforts so as to develop and maintain a culture of accountability.

With full respect for its independent character, the Secretary-General has and will continue to support and assist the International Criminal Court, the heart of this international system of criminal justice. As a permanent institution, the ICC has, we believe, the advantage of having a continuing deterrent effect on decision-makers at the highest level. Indeed, the Rome Statute is designed to reach those who bear the ultimate responsibility for actions of State organs. The ICC provides a permanent and standing complement to national criminal accountability mechanisms; and complementarity, as we all know, is a fundamental principle of the ICC regime. Ending impunity must rest upon these complementary efforts.

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The lawful contours of amnesty I firmly believe that peace and justice can and must be pursued in parallel. However, we cannot overlook the challenges entailed in resolving in practice the “peace and justice” dilemma. In places and situations where the United Nations has been engaged in facilitating a peace process, the dilemma is often how to end the fighting without foregoing the prosecution of those responsible for the crimes, whose condition for participation in the peace process is immunity from prosecution. In this connection, the lawfulness of amnesty for the core international crimes has proven to be a difficult but critical issue.

I would like to briefly explain how we have designed the lawful contours of amnesty, as a salient illustration of the way the UN strives to uphold the law in complex political environments. Voices are currently amplifying in support of the developing legal trend opposing amnesty for genocide, crimes against humanity, war crimes and other serious violations of IHL, in particular for those bearing the greatest responsibility. As exemplified by a recent lecture at the Institute of Advanced Legal Studies,12 the trend in international law is to question the validity of State amnesty provisions for the most serious crimes because such provisions are contrary to a growing expectation for States to eradicate impunity for serious violations.

The UN has repeatedly reflected this position against amnesties in respect of the most serious crimes. The question of the lawful contours of amnesty was for the first time raised in connection with the 2000 Lomé Peace Agreement between the Government of Sierra Leone and the RUF, which granted a sweeping amnesty to the RUF combatants of all levels and for all crimes committed throughout the conflict. When the UN Representative was asked to witness the Agreement, and was precluded at that point from proposing amendments to the amnesty clause, he appended to his signature a disclaimer to the effect that: “The United Nations does not recognize amnesty for genocide, crimes against humanity, war crimes and other serious

12

See “Can Genocide, Crimes Against Humanity and War Crimes be Pardoned or Amnestied?”, Amicus Curiae, Autumn 2009, p. 15.

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violations of international humanitarian law”. Since then, the UN position has been consistently upheld in Angola, Sudan, Uganda, Burundi and elsewhere. It is also formalized in the Secretary-General’s Guidelines for United Nations Representatives in Certain Aspects of Negotiations for Conflict Resolution.

C. Exploring new ways to ensure respect for the law

I have given just a few demonstrations of how the promotion of the rule of law is an integral part of the UN mandate and how peace cannot be conceived and sustained without justice. These are already daunting tasks, per se. However, my description of how upholding the law helps us in the fulfillment of our mandate would not be complete if I did not refer to our efforts to strengthen international law and compliance to it. To illustrate our current challenges in this area, I will focus on two examples: the strengthening of the rules relating to the protection of civilians in armed conflict and the notion of the “responsibility to protect”.

In the past few years, the UN has faced dramatic challenges in the field of the protection of civilians in armed conflict: humanitarian crises have wreaked local havoc and have challenged the international legal order. While the political and operational dimensions of these crises are quite obvious, one should not forget that they also call for an answer to a crucial legal question: should and, if so, how should international humanitarian law and human rights law be strengthened to secure the protection of civilians?

I should make clear at the outset that international law contains, of course, a well-established set of rules in this field, which are embodied in the major instruments of international humanitarian law, human rights law, international criminal law and refugee law. I am convinced that the first priority should always be to focus on the implementation and enforcement of the rules already in existence. Most of the efforts of the Organization go in this direction. 215

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Many of the relevant instruments in the field of the protection of civilians, however, have not yet obtained universal participation or their rules are still insufficiently known by those who are called to apply them. The UN therefore encourages states to ratify those instruments, to take steps for their implementation and to ensure their dissemination.

A further dimension to this problem relates to peacekeeping mandates. While protection activities have today become a common feature in the mandates of UN peacekeeping operations, much remains to be done to ensure targeted mandates and support from the Security Council, once a mission is established.

Last but not least, strengthening the law requires that we remain attentive to possible areas for development in existing rules to ensure that international law continues to respond adequately to the realities of the environment in which armed conflicts are occurring and indeed to the changing nature of war. I would like to mention, as an example, one issue of special interest to my office, namely that of the protection of UN facilities in times of armed conflict. We don’t have to look too far back to remember that civilians often seek to obtain shelter in UN premises when they face an imminent peril. This speaks highly of the trust that people place in the UN and the message of peace and security that it symbolizes. Sadly, however, this trust has sometimes been shattered by attacks to UN compounds. In January 2009, I proposed the idea to the Security Council of establishing a special “protected status” for UN premises and facilities, similar to that granted by international humanitarian law to archaeological, historic, artistic and religious sites. The adoption of clear rules recognizing such status could both contribute, I believe, to prevent attacks against UN premises and to ensure their effective protection in times of armed conflict.

Strong laws, however, are not enough. Care also needs to be taken to ensure compliance with the law. I have already described one of the international legal tools relevant in this context: the criminal accountability of those responsible for

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international crimes. Let me now highlight another important, and equally topical, aspect: the “responsibility to protect”.

All things considered, I think that the core idea that has inspired the UN action in the field of human rights and humanitarian law is that compliance with the relevant rules is a matter of concern to the international community as a whole. International law powerfully mirrors this idea, for instance in Common Article 1 of the 1949 Geneva Conventions, which provides that the Parties “undertake to respect and to ensure respect” for their provisions in all circumstances. In the interpretation given by the International Court of Justice, this article entails that “every State. . ., whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with”13. In other words, international law embodies the idea that, while the primary responsibility for complying with international humanitarian and human rights law falls upon the State directly involved, the international community also has a role to play to ensure respect for the law.

This is the same conviction that brought the 2005 World Summit, and subsequently the Security Council,14, to proclaim the concept of the “responsibility to protect”15, which implies both that “[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and that “[t]he international community, through the United Nations, also has the responsibility . . . to help to protect populations from” those crimes16.

This is a powerful notion that has attracted the attention both of Governments and the international legal community. Guidance however is needed as to how to

13

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199-200, para. 158. 14

Resolution 1674 (2006), operative paragraph 4.

15

General Assembly resolution 60/1, paras 138 and 139.

16

General Assembly resolution 60/1, paras 138 and 139.

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implement this idea. In a 2009 report, the Secretary-General provided a thoughtprovoking proposal on this matter. He underscored the need to develop a UN strategy to implement the responsibility to protect. He emphasized that the responsibility to protect does not provide any additional basis for the use of force under international law, rather it reinforces the prohibition of the use of force provided for under the Charter. Finally, the Report outlines three pillars for advancing the World Summit’s agenda in this area: Pillar One on the responsibility of States to protect their own population; Pillar Two on “International assistance and capacity-building” to assist States to protect their population; and Pillar Three on a “Timely and decisive response” where States are not able or willing to protect their population. The discussion on a strategy to implement the responsibility to protect is still ongoing, but the concept shows the potential benefits that a unified action in this field may bring to the international community as a whole.

2.

Enhancing the Legal Performance of the United Nations

Let me now turn to another part of my presentation, which – as I mentioned before – will be devoted to the role of the law as an instrument to enhance performance within the UN. Secretary-General Ban Ki-moon places a particular emphasis on the need to reform the UN administration and to manage the Organization’s resources as effectively as possible, to enable us to better meet the needs of the poor and the afflicted.

Although, strictly speaking, this is a matter which often exceeds the legal context, the Office of Legal Affairs and I are constantly called to give legal advice on these issues, which therefore also occupy a significant part of our time.

What’s

more, there is a strong legal dimension to the question of how the Organization should enhance its performance.

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As the Secretary-General has underlined, the UN, as an organization involved in setting norms and standards and advocating for the rule of law, must itself “practice what it preaches”. This implies that it should be legally accountable for its actions, and that mechanisms are to be put into place in order to ensure that the Organization acts according to the law. There are many dimensions to this issue, which have included in the past years, for instance, ongoing discussions in the Sixth Committee on the criminal accountability of UN officials and experts on mission. I would like to outline in more detail three areas in which significant progress has recently been made. These are: the internal system of administration of justice; the implementation of sanctions; and the responsibility of international organizations. What I believe is a common feature to these areas is that they reveal how the expansion of UN action, which has implied both a bigger administration and a material broadening of its fields of activity, has a legal impact which requires prompt action by the Organization itself.

A. Administering better Since its very first steps as an international administration, the United Nations was confronted with the necessity of establishing an internal mechanism of redress for its own staff members. As a result of the jurisdictional immunities enjoyed by the Organization, staff members have no external recourse to national judicial systems. It is therefore essential to have an internal justice system that both provides adequate safeguards and ensures accountability of staff members.

Originally, this problem was limited, given that the Organization’s secretariat was of a relatively small size. The system which was created therefore relied heavily on peer review boards, with a possibility of judicial redress before the United Nations Administrative Tribunal.

With the enlargement of the Organization (the UN staff today comprises around 60,000 people), the operation of this system started to face serious difficulties. In 2005, the General Assembly decided to call for an overall review of the system by an independent panel of experts. The reform of the United Nations internal system of administration of justice was achieved in a remarkably short period of time, 219

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demonstrating the capacity of Member States, management and staff to act swiftly and in a coordinated effort. By July last year, the new system had become operational.

The first element of this reform was the strengthening of the so-called “informal” system of administration of justice, around the figure of the United Nations Ombudsman. The integrated and decentralized Office of the Ombudsman for the United Nations Secretariat, Funds and Programmes, now counts with regional offices around the world, and comprises a Mediation Division, aimed at resolving, in an informal manner, possible disputes arising between staff and management. This feature reflects the idea that the best solution to administrative grievances is often prevention and amicable settlement of disputes.

The mechanism, however, is further reinforced by the establishment of a “formal” system of administration of justice, which comprises a first instance United Nations Dispute Tribunal (UNDT) and an appellate instance United Nations Appeals Tribunal (UNAT). The new system is different from the old one at least in three important regards: (1) first of all, it is now a two-tiered system, under which the staff member or management have a possibility to appeal; (2) secondly, it is entirely composed of professional judges with judicial experience in the field of administrative law; and (3) thirdly, both tribunals have the power to deliver binding judgments.

I believe that the impact of this radical reform has not yet been fully appreciated by the international legal community. I am convinced, nevertheless, that this major step should be of great interest for scholars, in that it echoes some of the most debated issues of international law.

In institutional terms, this reform has

created, for the first time ever in the history of all international organizations, a true judicial system for the settlement of internal disputes, which will certainly have the effect of promoting a systematic approach to international administrative issues and of strengthening the dialogue with other similar judicial instances in other international organizations (including comparable tribunals in regional organizations, such as the European Union). This is a matter that should be studied in the context of the 220

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ongoing debate about the perils of fragmentation of the law that some scholars have feared with the multiplication of international tribunals. Secondly, the statutes of these tribunals contain a fascinating blend of rules that are inspired from the very diverse experiences of administrative law in different legal systems.

It may be

expected that the application of these rules by judges with an established experience in national jurisdictions will give way to the consolidation of a truly “global administrative law”.

In other terms, this reform is not only indicative of the

commitment of the Organization to the rule of law, justice and accountability, but also of its possible impact on international law in general.

B. Adapting the regime of sanctions With the reform of its internal justice system, the Organization has very significantly improved its institutional accountability towards all the persons, agents and civil servants, who are engaged in and committed to its mission. But something also needs to be said as to the necessity for the UN to face the impact which its acts may have on actors outside the system, even — or, should I say — most importantly when these acts have negative consequences. The first such issue is that of the sanctions regime of the Security Council. I will then deal with the broader issue of responsibility of international organizations.

I will be very brief in addressing how the UN has adapted the regime of sanctions that the Security Council has been using, especially in the aftermath of the attacks of September 11th, 2001, as an important tool in the fight against terrorism. The issue has attracted numerous debates, both in international and regional forums and in legal literature; I would not like to oversimplify the matter. Allow me to just highlight significant recent developments which, in my view, illustrate how the UN constantly seeks to adapt its methods and processes. It may certainly be argued that, in the turmoil following September 11th, and faced with new kinds of imminent threats against peace and security, the UN may not have immediately paid sufficient attention to the necessary guarantees to be

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associated with the imposition of targeted sanctions. Much has been said about the external factors which are putting pressure on the Organization to address this issue.

One of the most frequently mentioned among these external factors is certainly the emerging jurisprudence of both regional and national courts. I refer, in particular, to decisions of the CFI and of the European Court of Justice in the joined cases of Kadi and Al Barakaat.17 As you may be aware, the Court annulled in this Judgment a regulation giving effect to Security Council resolutions and ordering the freezing of the funds and other economic resources of the persons and entities whose names appeared in the list drawn up by the UN Security Council Sanctions Committee. The Court did so in part because it concluded that the rights of the defence (in particular the right to be heard) and the right to effective judicial review of those rights were not respected in the circumstances of the case.

This Judgment has undoubtedly marked an important development in the consideration of the legal regime of sanctions. It would, however, be an unfair assessment to consider that adaptations of the sanctions regime developed by the Security Council have only been triggered by such external elements. Even before September 2008, the UN had taken significant steps to improve the fundamental guarantees to be attached to the imposition of sanctions without undermining their efficiency. By two resolutions adopted in December 2006, the Security Council had already considerably rationalized the submissions by Member States of names of individuals and entities to be placed in the sanctions Consolidated List and instituted a focal point to receive requests for “delisting”. In June 2008, the Security Council had substantially improved the system of notifications associated with listing procedures and directed a review of the Consolidated List. Most recently, these efforts have culminated with the adoption of Resolution 1904 (2009), by which the Security Council has decided that an Ombudsperson shall be appointed in order to assist the

17

Yassin Abdullah Kadi, Al Barakaat International Foundation v Council of the European Union, Commission of the European Communities , United Kingdom of Great Britain and Northern Ireland, Joined Cases C-402/05 P and C-415/05 P, Judgment of the Court of Justice of the European Communities (Grand Chamber) of 3 September 2008, OJ C 285/2, 8.11.2008.

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Sanctions Committee in the consideration of delisting requests. We are about to begin the process of selection of this Ombudsperson. The Security Council has itself described this latest step as a “paradigm shift in the sanctions regime”. The review of the regime of sanctions is, in other words, an ongoing effort undertaken by the Security Council, which indicates that the Organization is pro-actively ensuring its activities are conducted in conformity with the law.

C. Determining responsibilities My last topic is that of the international legal responsibility of the United Nations. In all fairness, this issue does not belong to the traditional culture of the UN. As an Organization striving for peace and justice, the UN has been more used to the position of a victim or injured party than to that of a wrongdoer. After all, it was after the murder of a UN agent, Count Bernadotte, which caused the International Court of Justice, in its famous advisory opinion on the Reparation for Injuries Suffered in the Service of the United Nations, to expressly assert the autonomous legal personality of the Organization.

However, with the multiplication and diversification of its

mandates and its increased involvement in the field, the question of the legal responsibility of the UN is arising more and more.

In addressing this issue, we have to strike the right balance between two imperatives. The first one is credibility: if the UN fails to assume its responsibility, if it gives the impression that it ignores the consequences of its acts, the confidence which the Organization inspires may end up seriously damaged. On the other hand, and this is the second imperative I was referring to, we need to protect the Organization against the detrimental effects of claims for actions in which the UN has had no actual control. If we do not collectively resist the temptation to shift to the UN more than its share of responsibility - that responsibility, which lies elsewhere - the efficiency of the Organization, its need to deliver which is so central to the work of the Secretary-General and its administration, will be seriously and durably hampered.

Allow me to illustrate the importance of this issue with a concrete example. As you probably know, on May 31st, 2007, the European Court of Human Rights 223

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adopted a decision on two cases, Behrami and Saramati, brought against France and Norway under the European Convention on Human Rights. I do not intend to discuss the merits of the cases under the special legal regime created by the Convention. In some respects however, this decision draws upon significant aspects of the activity of the United Nations.

The two cases concerned events which occurred in Kosovo. You will remember that, in resolution 1244 (1999), the Security Council authorized Member States and relevant international organizations to establish an international security presence in Kosovo – KFOR – as well as an international civil presence named UNMIK. In Behrami, the applicants complained of the killing and serious injury inflicted on two young brothers in a tragic accident caused by the detonation of a cluster bomb, arguing that French KFOR troops had failed to de-mine the site concerned. The Saramati case was based on complaints relating to the arrest of the applicant by UNMIK police and his extra-judicial detention by KFOR.

The decision is one of admissibility:

the European Court found that the

conduct of the United Nations falls beyond its jurisdiction ratione personae, as the Organization has a legal personality separate from that of its Member States and is not a party to the European Convention. The reasoning of the Court, however, raises concerns. The Court considered, in particular, that conduct of Member States carried out in the context of an operation under Chapter VII of the Charter was “in principle” attributable to the UN. The Court based its decision on its own evaluation of the “delegation” of Security Council powers, coupled with an approach of the criterion of “effective control” for attribution of conduct which has been recently criticized by the International Law Commission.

It is worth adding that the reasoning of the Court has since been reflected in a number of cases relating to very diverse types of involvement of the United Nations. For instance, the European Court considered that the conduct of the High

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Representative in Bosnia and Herzegovina was attributable to the UN18. The Behrami reasoning has also been extensively referred to, if not always adopted, by certain national courts. In the Al-Jedda case for example,19 the United Kingdom House of Lords was confronted with issues of detention in Iraq by British troops belonging to the “multinational force under unified command” authorized by Security Council resolution 1511(2003). The argument that the conduct was attributable to the UN was rejected by all Judges with the exception of one. Other Judges pointed to the fact that the force was not acting under UN auspices; in doing so, some relied, however, on Behrami’s criterion of “ultimate authority and control”, thus basing their assessment on the European Court’s line of reasoning. More recently, two civil cases20 brought before the District Court of The Hague raised the issue of the attribution of conduct carried out by the Dutch Battalion supporting UNPROFOR during the war in Bosnia and Herzegovina. The Dutch Court accepted the Netherlands’ argument that the impugned conduct was exclusively attributable to the UN, since the forces formed part of the UNPROFOR operation, which exercised operational command and control over them.

There thus seems to be a trend in the case-law for a wide conception of attribution of conduct to the UN. The Organization does not intend in any way to elude its responsibility, whenever this responsibility is actually entailed by conduct over which the Organization has effective control. But it seems fair to acknowledge that a broader conception of attribution will have significant implications on the formulation of mandates and on the effective fulfillment of UN’ functions. The Court’s reasoning could, for example, be used to confer upon the UN responsibility for conduct carried out in the context of peacekeeping operations authorized by the Organization and operated by a coalition of the willing on which the UN has no actual control. Any finding of this kind would have significant implications not only for the

18

Beric and others v. Germany, decision on admissibility, 16 October 2007.

19

House of Lords, Appellate Committee, Opinions of the Lords of Appeal for judgment in the cause R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent), 12 December 2007. 20

LJN: BF0181 and BF0182, Rechtbank’s-Gravenhage, 265615 / HA ZA 06-1671 and 265618 / HA ZA 06-1672 (English translation), 10 September 2008.

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Organization itself, but also for States as members of the Organization who are ultimately responsible for its financing. What is more, it could seriously hamper the capability of the Organization and the flexibility it requires to fulfill its key mission of maintaining international peace and security.

I have chosen this example in order to better illustrate how the Organization is constantly assessing its methods and procedures. Following the Behrami decision, I have actually engaged my Office in a thorough internal review of the past and current practice of the Organization regarding issues of international responsibility. In none of the instances I have just referred to has the UN been held accountable. We cannot, however, satisfy ourselves with such myopic reasoning. As I have striven to demonstrate today, the United Nations needs to lead by example.

Conclusion So, dear friends, I have come to the end of my admittedly lengthy but, I hope, somewhat interesting talk.

In reaching the conclusion, I am aware that I have imposed upon you a daunting journey through a wide number of very diverse legal issues: from the notion of the rule of law at the national and international levels to the delicate balance between peace and justice; from the strengthening of the rules of international human rights and humanitarian law to the topical concept of the responsibility to protect; from the intricacies of the United Nations internal system of administration of justice to the complex regime of the responsibility of international organizations… In a sense, by so doing, I may have given you a taste of what a day looks like at the UN Office of Legal Affairs. For these issues have one thing in common: they represent the legal challenges facing the UN in the twenty-first century. And as such, they are the challenges that the entire international legal community, including this learned Society, needs to face together in the years to come.

Thank you very muc 226

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IRELAND AND INTERNATIONAL LAW 2009 AND 2010

DR ALAN D.P. BRADY LAW LIBRARY, DUBLIN AND TRINITY COLLEGE DUBLIN

In 2009 and 2010, international law continued to play a role in Irish political and legal affairs. International agreements such as the on Protection of Children and Cooperation in Inter-country Adoption and the United Nations Convention against Transnational Organised Crime influenced significant legislative developments. Two high-profile kidnappings of Irish nationals abroad led to intense diplomatic efforts and a political assassination in the UAE was linked to the use of forged Irish passports. Ireland continued to reiterate its support for disarmament and nuclear nonproliferation and the Defence Forces engaged in a significant UN led mission to Chad. The Government organised a major international conference in Dublin in an effort to engage the diaspora in Ireland’s current economic difficulties.

International Agreements A number of significant international agreements were considered and/or ratified during 2009 and 2010. The Oireachtas passed the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. This legislation included provisions to give effect to certain provisions of the United Nations Convention against Transnational Organised Crime.1 That Convention was also given effect by Part 3 of the Criminal Justice (Amendment) Act 2009, which contained amendments to the Offences against the State Act 1939 and the Criminal Law Act 1997.2 The Minister for Justice also justified the introduction of the offence of directing a criminal gang (also in the Criminal Justice (Amendment) Act 2009) on the basis of this Convention, saying: ‘it is a requirement, under the United Nations Convention Against

1

Minister for Justice, Dáil Debates, 19 November 2009, Volume 695, Column 260.

2

Minister for Justice, Dáil Debates, 3 July 2009, Volume 686, Column 181.

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Transnational Organised Crime, to have in our legislative suite an offence against directing a criminal organisation’3 The Convention was then ratified by Ireland in 2010.4 The Prevention of Corruption (Amendment) Act 2010 was passed late in the year. The Minister for Justice described its principal purpose as being to ‘ensure compliance by Ireland with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions’.5 Prior to the passage of the Act, the Minister said that: As soon as the Prevention of Corruption (Amendment) Bill 2008, which is currently awaiting Committee Stage in the Dáil, has been enacted, it is intended that the appropriate arrangements will be made for ratification of the Convention.6 However, by the end of 2010 ratification had not yet taken place.7 During the time under consideration, the Government again reiterated its intention to ratify the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’) ‘as quickly as possible’.8 The matter was raised in the Dáil by Deputies Michael D. Higgins and David Staunton on a number of occasions. The InterDepartmental Committee on the UNCRPD monitors the remaining administrative and legislative requirements for the State to ratify the Convention. One of the key requirements identified is mental capacity legislation and this was given as the reason for the delay. It is of note that the same reason had been given in 2008.9

3

Minister for Justice, Dáil Debates, 7 July 2009, Volume 687, Column 371.

4

Dáil Debates, 17 June 2010, Volume 712, Columns 636-637

5

Dáil Debates, 16 November 2010, Volume 722, Column 59.

6

Dáil Debates, 30 March 2010, Volume 705, Column 886.

7

See United Nations Office on Drugs and Crime Website: www.unodc.org.

8

Minister of State at the Department of Community; Equality and Gaeltacht Affairs, Dáil Debates, 19 October 2010, Volume 719, Column 305. 9

See de Londras, F.., ‘International Law in Ireland’ (2008) 3 Irish Yearbook of International Law, p. 103.

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The Hague Convention on Protection of Children and Co-operation in Intercountry Adoption was ratified by Ireland in 2010. The Adoption Act 2010 gives the Hague Convention the force of law in the Irish State. The debates surrounding the ratification of the Hague Convention focused substantially on the difficulties that would be faced by Irish couples seeking to adopt children from countries such as Vietnam if the other countries did not also ratify the Convention. In April of 2009, the Minister for Justice addressed the steps being taken to arrange for ratification of the Council of Europe Convention on Action Against Trafficking in Human Beings. He said that: The enactment of the Criminal Law (Human Trafficking) Act 2008 which came into effect on 7 June 2008 brought Ireland into compliance with the criminal law/law enforcement elements of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. Other aspects of the Protocol are being dealt with administratively in the context of the National Action Plan to Prevent and Combat Trafficking of Human Beings in Ireland — which is at an advanced stage of preparation and will be published later this year — and through engagement with the Governmental and non-governmental organisations in this area. This Plan sets out structures which, when in place, will bring Ireland into line with its international obligations by providing the baseline structures for the ratification of the Council of Europe Convention on Action Against Trafficking in Human Beings and the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.10 The Council of Europe Convention on Action against Trafficking in Human Beings was approved by the Dáil in June 2010.11

10

Minister for Justice, Dáil Debates, 22 April 2009, Volume 680, Column 613.

11

Dáil Debates, 16 June 2010, Volume 712, Column 411.

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Foreign Conflicts The Irish Government expressed concerns regarding a number of foreign conflicts during 2009 and 2010, most notably the conflicts in Gaza and in Sri Lanka and the ongoing difficulties in Sudan. During the conflict in Gaza in January 2009, the Minister for Foreign affairs condemned the shelling of the United Nations Relief and Works Agency headquarters in Gaza City.12 He also welcomed the subsequent ceasefire in Gaza. In a statement, he said that: It is imperative that it is now maintained in full and that all necessary humanitarian assistance is urgently provided. In response, Hamas and other militant groups must completely cease the firing of rockets into southern Israel.13 Addressing the subject after the ceasefire, he said that the war was a ‘profound tragedy for the people of Gaza and for the region’14 and called for ‘the consolidation of the current fragile cessation into a durable truce through the full implementation of UN Security Council Resolution 1860.’15 He noted that the conflict involved ‘a number of appalling incidents and alleged violations of international humanitarian law by both parties’16 which needed to be investigated. On the issue of an investigation, he said: I believe that there is a case for an independent international investigation and I made clear my position to EU Foreign Ministers on Monday last. Among the incidents which require to be properly investigated are the shelling of UN schools and facilities, with attendant heavy civilian casualties, including children; attacks on humanitarian convoys and the deaths of humanitarian and medical personnel; reports of the parties using civilians as human shields; and the use of white phosphorous by the Israeli military. I note that the Israeli

12

‘Minister Martin Condemns Shelling of UNRWA HQ in Gaza’ Department of Foreign Affairs, Press Release, 15 January 2009. 13

‘Minister for Foreign Affairs Welcomes Israeli Ceasefire in Gaza’ Department of Foreign Affairs, Press Release, 17 January 2009. 14

Minister for Foreign Affairs, Dáil Debates, 27 January 2009, Volume 672, Column 92.

15

ibid.

16

ibid.

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Government is to set up an investigation into allegations against its defence forces. At a minimum such an investigation would require the involvement of independent international experts if it were to have any credibility. No investigation needs to be conducted to prove that Hamas, in its indiscriminate shelling of southern Israel, violated international law’17 The Minister also reiterated the Irish Government’s longstanding support for a twostate solution to the Israeli-Palestinian conflict: Following this crisis in Gaza, it is more critical than ever that the Palestinian and Israeli people can have faith in a revived and credible political process that is seen to be addressing the underlying causes of the conflict, ending the occupation and leading to a two-state solution. However, no comprehensive peace is possible without intra-Palestinian reconciliation and the political reunification of Gaza and the West Bank, and I support the efforts of Egypt and other regional actors to promote such reconciliation.18 The Taoiseach subsequently reiterated the Government’s condemnation of the violence, but rejected a suggestion by Deputy Caoimhghín Ó Caoláin that preferential EU trading links with Israel should be suspended. He said: We condemn all violence in the Middle East and we hold no brief for any infringement of human rights in respect of the conduct of military operations. What happened in Gaza was greatly regrettable; it was appalling. We have made our position very clear. It is also appalling that rockets were sent from within that area into Israel… The point the Deputy raised suggests that a better way to bring about that solution is that we suspend the Euro-Mediterranean Association Agreement with Israel. Based on what the Deputy said, I am not convinced that would be something which would bring about a resolution to the wider problem more quickly.19

17

ibid.

18

Minister for Foreign Affairs, Dáil Debates, 27 January 2009, Volume 672, Column 93.

19

Taoiseach, Dáil Debates, 25 March 2009, Volume 678, Column 665.

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With regard to the Sri Lanka conflict in early 2009, the Minister for Foreign affairs said that he was ‘deeply concerned by the escalation in fighting which has taken place in recent months in the northern part of Sri Lanka and by the terrible effects it is having on the local population.’20 The Minister welcomed the temporary ceasefire in April and, together with the other EU states, called for its extension.21 He praised the efforts of the UN system to redress the humanitarian situation.22 The Minister also said that the ‘Government have been strongly supportive of efforts by Mexico and others to have the humanitrian situation, and broader political context, raised at the UN Security Council.’23 He expressed concern that the Mexican efforts were proving unsuccessful, stating: I very much regret that not all Members of the Security Council believe that the situation in Sri Lanka should be discussed at the Council. Some members of the Council argue that the conflict in Sri Lanka does not represent a threat to international peace and security. The Council has therefore been unable to formally discuss the issue, much less take any mandatory action in this regard. 24

Subsequently, when the peace stabilised, the Minister said that an: [I]nclusive reconciliation and peace process must be initiated. It will be essential that arrangements and mechanisms are in place to ensure the representation of the Tamil population and facilitate dialogue, negotiation and reconciliation. … Key to a successful process and sustainable peace will be political dialogue based on the principles of parity of esteem, consent, equality and the rule of law. … It will be important that the international community is involved in the peace process. International experience, expertise and support will be invaluable in

20

Minister for Foreign Affairs, Dáil Debates, 3 February 2009, Volume 673, Column 344.

21

Minister for Foreign Affairs, Dáil Debates, 22 April 2009, Volume 680, Column 650.

22

Minister for Foreign Affairs, Dáil Debates, 22 April 2009, Volume 680, Column 651.

23

Minister for Foreign Affairs, Dáil Debates, 22 April 2009, Volume 680, Column 650.

24

Minister for Foreign Affairs, Dáil Debates, 22 April 2009, Volume 680, Column 651.

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CORRESPONDENT REPORTS

terms of guiding the process, keeping it on track and serving as an independent facilitator.25 With regard to Sudan, the Irish Government joined the EU in expressing support for the International Criminal Court’s issuing of an arrest warrant for President Omar AlBashir.26 In late 2010, during the build up to the Abyei self-determination referendum in Sudan, the Minister noted that the ‘north-south peace process in Sudan is at a critical juncture’27 and that that the referendum was envisaged by the Comprehensive Peace Agreement (CPA). He said that: Ireland and the EU believe that full implementation of the CPA is fundamental to securing peace and stability in Sudan as a whole and in the wider region. This is a position shared by a wide range of countries, including the United States and the member states of the African Union. With regard to the integrity of the electoral process for the referendum, the Minister said: The EU is concerned about ensuring the referenda go ahead peacefully and conflict is avoided. People are satisfied that this can happen but they are vigilant, given the history and potential for difficulties. The Union will appoint an election observation team and so on and, together with the UN, it will keep the security situation under constant review.28 Concern was also expressed on a number of occasions regarding the situation in Burma.29 With regard to the elections in November 2010, the Minister for Foreign Affairs said that the government was ‘clear in our opposition to the elections and also to the constitutional provisions that were designed by the military regime to maintain

25

Minister for Foreign Affairs, Dáil Debates, 28 May 2009, Volume 683, Column 976.

26

Minister for Foreign Affairs, Dáil Debates, 25 March 2009, Volume 678, Column 845.

27

Minister for Foreign Affairs, Dáil Debates, 18 November 2010, Volume 722, Column 547.

28

Minister for Foreign Affairs, Dáil Debates, 18 November 2010, Volume 722, Column 547.

29

Minister for Foreign Affairs, Dáil Debates, 29 September 2010, Volume 716, Column 675 and Minister for Foreign Affairs, Dáil Debates, 18 November 2009, Volume 695 Column 157. See also: ‘Minister for Foreign Affairs condemns the arrest of Daw Aung San Suu Kyi’ Press Release, Department of Foreign Affairs, 14 May 2009 and ‘Minister for Foreign Affairs condemns the conviction of Aung San Suu Kyi’ Press Release, Department of Foreign Affairs, 11 August 2009.

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its stranglehold on Burmese political life.’30 The government supported civil society programmes in Burma and the National Coalition Government of the Union of Burma, as well as having previously received refugees from the Burma-Thailand border. The Minister for Foreign Affairs said that the Government had ‘played a constructive and significant role in dealing with Burma, and we remain committed to this.’31

Diplomatic Matters In July 2009, Irish aid worker Sharon Commins and a Ugandan colleague were kidnapped in Sudan and held for over 100 days.32 The Minister for Foreign Affairs visited Sudan in September and raised the issue with the Sudanese government. Ms Commins and her colleague were finally released in October. In July 2009, two Irish nationals were detained in Israel awaiting deportation following the seizure on 30 June of a boat, The Spirit of Humanity, sailing with a consignment of humanitarian goods from Cyprus to Gaza. They were Nobel Peace Prize winner Mairead Maguire and Derek Graham. The Minister for Foreign Affairs called for their swift release;33 they were later deported back to Ireland. In October 2009, Irish priest Fr Michael Sinnott was kidnapped in the Philippines.34 He was subsequently released after what was described by the Minister for Foreign Affairs as a ‘major diplomatic effort’.35 The Minister also stressed that the Irish Government had not paid a ransom, stating that ‘[t]o do so would only have

30

Minister for Foreign Affairs, Dáil Debates, 18 November 2010 Volume 722, Column 559.

31

Minister for Foreign Affairs, Dáil Debates, 18 November 2010 Volume 722, Column 559.

32

Minister for Foreign Affairs, Dáil Debates, 13 October 2009, Volume 691, Column 676.

33

‘Minister for Foreign Affairs Appeals for Release of Two Irish “Gaza boat” Detainees’ Department of Foreign Affairs, Press Release, 2 July 2009. 34

‘Government will continue to work to secure the safe release of kidnapped priest, Fr Michael Sinnott’ Press Release, Department of Foreign Affairs, 31 October 2009. 35

‘Minister Micheál Martin expressed his delight at the safe release in the Philippines of Fr. Michael Sinnott’ Press Release, Department of Foreign Affairs, 11 November 2009.

236

CORRESPONDENT REPORTS

jeopardised the vital work of aid workers and missionaries around the world - it would also place other Irish citizens in danger.36 In May 2010, a substantial aid flotilla travelling to Gaza was intercepted by the Israeli Defence Forces. The flotilla included a number of Irish citizens and a vessel that had travelled from Ireland: the MV Rachel Corrie. The Minister for Foreign Affairs told the Dáil that he had: [C]onveyed our view to the Israeli ambassador that this incident was caused by the overriding issue of the illegal blockade on Gaza. We called for maximum restraint in respect of the MV Rachel Corrie, which is currently sailing towards Gaza. We asked the ambassador to request that, in light of what has happened, his Government should allow this vessel to sail unimpeded into Gaza.37 During 2009 the President of Ireland received credentials from ambassadors representing: Italy, the Republic of Serbia,38 Argentina, Phillipines, Malta,39 the United States of America,40 the Dominican Republic, Moldova, Georgia,41 the Kingdom of Saudi Arabia, the Republic of Lithuania, the Republic of Latvia, Finland, the Republic of Slovenia, the United Kingdom,42 Cuba, Macedonia,43 Greece, the People’s Republic of Bangladesh,44 Australia, the Gabonese Republic and Iceland.45 During 2010 the President of Ireland received credentials from ambassadors representing: the Republic of South Africa, the United Arab Emirates, the Oriental

36

‘Minister Micheál Martin expressed his delight at the safe release in the Philippines of Fr. Michael Sinnott’ Press Release, Department of Foreign Affairs, 11 November 2009. 37

Minister for Foreign Affairs, Dáil Debates, 1 June 2010, Volume 711, Column 58.

38

Department of Foreign Affairs, Press Release, 12 May 2009.

39

Department of Foreign Affairs, Press Release, 29 June 2009.

40

Department of Foreign Affairs, Press Release, 3 July 2009.

41

Department of Foreign Affairs, Press Release, 3 July 2009.

42

Department of Foreign Affairs, Press Release, 11 September 2009.

43

Department of Foreign Affairs, Press Release, 6 October 2009.

44

Department of Foreign Affairs, Press Release, 10 November 2009.

45

Department of Foreign Affairs, Press Release, 15 December 2009.

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Republic of Uruguay, Colombia,46 the Sultanate of Oman, the Republic of Zambia, the Republic of Sierra Leone, Nepal,47 Chile, France, Estonia, Israel,48 Ukraine, Sweden,49 the Islamic Republic of Iran, the Republic of Poland, the Republic of Rwanda the Republic of Ghana,50 Jamaica, the Republic of El Salvador51 In January 2010, Anastasia Crickley was elected to the United Nations Committee on the Elimination of Racial Discrimination (CERD) having been nominated for election by the Irish Government. CERD is an expert body which monitors the implementation of the United Nations Convention on the Elimination of All Forms of Racial Discrimination. Ms Crickley was the first Irish national to serve on CERD. She had previously been Chair of the European Union Fundamental Rights Agency and Chair of the EU Monitoring Centre on Racism and Xenophobia and is a member of the Council of State.52

Bilateral Relations, Consular Services and the Diaspora In early 2009, the Government entered into a bilateral agreement with Belarus to facilitate the travel of children affected by the Chernobyl disaster to Ireland for rest and recuperation.53 Ireland has been hosting these visits since the early 1990s and over 2,500 children travel to Ireland from Belarus each year. In October 2009, the Irish Government hosted a meeting of international leaders in business and other fields titled the Global Irish Economic Forum. Those invited to the Forum were drawn from the diaspora and from countries with significant links to Ireland. The Forum was structured around five main sessions,

46

Department of Foreign Affairs, Press Release, 17 February 2010.

47

Department of Foreign Affairs, Press Release, 25 June 2010.

48

Department of Foreign Affairs, Press Release, 14 September 2010.

49

Department of Foreign Affairs, Press Release, 28 September 2010.

50

Department of Foreign Affairs, Press Release, 20 October 2010.

51

Department of Foreign Affairs, Press Release, 17 November 2010.

52

‘Minister for Foreign Affairs welcomes election of Irishwoman to the United Nations Committee on the Elimination of Racial Discrimination’, Press Release, Department of Foreign Affairs, 19 November 2009. 53

‘Bilateral Agreement with Belarus on Chernobyl children signed in Minsk’ Press Release, Department of Foreign Affairs, 23 February 2009.

238

CORRESPONDENT REPORTS

entitled: ‘The global economy: positioning Ireland for the upturn’; ‘Ireland – the innovation island’; ‘Promoting brand Ireland through our global cultural profile’; ‘Ireland’s image abroad: what is it now; how can it be improved; and what role can new media play?’; and ‘Ireland and its Diaspora: harnessing a unique resource’. There were eleven small breakout working groups on the opening afternoon, considering a range of economic issues relevant to the development of the ‘Smart Economy’.54 Arising out of the Global Irish Economic Forum, the Minister for Foreign Affairs noted the importance of Irish culture for the country’s image abroad, especially in the United States of America. On foot of this, the Minister subsequently announced that €2.3 million would be provided immediately towards the construction of a state of the art Irish Arts Centre in Manhattan 55 The Global Economic Forum also highlighted the value of working holiday agreements as a part of Ireland’s public diplomacy. The Minister expressed continued support for these arrangements.56 A further development arising from the Global Economic Forum was the creation of a formalised network of international leaders with an Irish connection, titled ‘the Global Irish Network’. The Minister for Foreign Affairs said at the time of its launch that: The Global Irish Network brings together for the first time some 280 individuals from different regions and different sectors, who all share a strong connection to Ireland and have a record of high achievement in international business or have assisted in the promotion of Ireland abroad through their prominence in the cultural or sporting worlds.57 In January 2010, Hamas chief, Mahmoud al Mabhouh, was killed in the United Arab Emirates. It was subsequently confirmed that six of those responsible had entered Dubai on forged Irish Passports. Two additional false Irish passports were subsequently discovered by the police in Dubai as part of their investigations. The

54

‘Minister for Foreign Affairs Announces Details of the Global Irish Economic Forum to be held at Farmleigh in September’ Press Release, Department of Foreign Affairs, 1 September 2009. 55

‘Minister for Foreign Affairs, Mr Micheál Martin, T.D., announces €2.3million for construction of a new Irish Arts Centre in New York as a key outcome from the Global Irish Economic Forum’ Press Release, Department of Foreign Affairs, 7 December 2009. 56

‘Minister Martin hails the success of Working Holiday Agreements’, Press Release, Department of Foreign Affairs, 20 January 2010. 57

‘Minister Martin Launches the Global Irish Network’ Press Release, Department of Foreign Affairs, 20 January 2010.

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Minister for Foreign Affairs confirmed to the Dáil that these forgeries did not entail the stealing of the identities of the Irish citizens whose passport numbers were used on the forgeries. The Minister maintained contact with the Dubai authorities as part of the investigation and a report was prepared by the Irish passport service.58 Commenting on the issue in the Dáil, the Minister said: I emphasise once again the seriousness with which the Government regards any attempt to forge Irish passports, even more so to use such documents as cover for criminal activity. The Irish passport is widely regarded and respected throughout the world as being of the highest quality. Ireland has invested heavily in additional security features in order that its citizens can travel in safety. Actions which endanger Ireland’s well-earned reputation in this area have the potential to affect the security of all citizens travelling overseas. The Government is determined to maintain the good name of Irish passports.59

Overseas Development Aid The amount overseas development aid was cut repeatedly throughout 2009 and 2010 in absolute terms. In February 2009, the budget was cut from €891 million to €796 million. Defending this decision, Peter Power, the Minister of State at the Department of Foreign Affairs said that: Notwithstanding the decisions made yesterday, our best estimate is that our overseas development assistance expenditure next year will be in the order of 0.53% compared to 0.55% two years ago. We should not overlook that Ireland’s aid programme is at historically high levels in the international context and, notwithstanding the decision taken yesterday, we will remain the sixth most generous donor in per capita terms in the world.60

58

Minister for Foreign Affairs, Dáil Debates, 20 May 2010, Volume 709, Column 830.

59

Minister for Foreign Affairs, Dáil Debates, 20 May 2010, Volume 709, Column 830.

60

Minister of State at the Department of Foreign Affairs, Dáil Debates, 4 February 2009, Volume 673, Column 488.

240

CORRESPONDENT REPORTS

The supplementary budget in April 2009 reduced this number further to €696 million for 2009.61 This represents 0.48% of GNP.62 Notwithstanding the financial crisis, the Government reiterated its commitment, through the Millennium Development Goals (MDGs), to halving levels of poverty and hunger by 2015. 63 The Minister of State said that Ireland had set more ambitious targets than other countries for its development aid as expressed in terms of a proportion of GNP.64 However, the contracting economy meant that ‘[a]lthough percentages rise, aid volumes may well drop. This is a paradox which we must confront’.65 Addressing the issue of how the spending cuts were to be applied, the Minister of State said: We are refocusing and reprioritising the overseas aid and development assistance to the poorest of the poor and those who are in real need. That is why, unique among European countries, we have identified hunger as the key development issue, and that is where we are prioritising our resources.66 The Minister of State appointed Kevin Farrell as Special Envoy for Hunger with a view to Ireland taking a leadership role on the issue of hunger. The appointment was a response to the UN Hunger Task Force Report.67 The Special Envoy presented his report to the Government in November 2010.68 The report noted the strong hunger and nutrition focus of Ireland’s overseas programmes and praised the Irish

61

Minister of State at the Department of Foreign Affairs, Dáil Debates, 23 April 2009, Volume 680, Column 870.

62

Minister of State at the Department of Foreign Affairs, 16 June 2009, Select Committee on Foreign Affairs.

63

Minister of State at the Department of Foreign Affairs, Seanad Debates, 20 May 2009, Volume 195, Column 577. 64

Minister of State at the Department of Foreign Affairs, Seanad Debates, 20 May 2009, Volume 195, Column 577. 65

Minister of State at the Department of Foreign Affairs, Seanad Debates, 20 May 2009, Volume 195, Column 577. 66

Minister of State at the Department of Foreign Affairs, Dáil Debates, 12 February 2009, Volume 674, Column 704. 67

‘Minister of State Peter Power announces major new initiative on Hunger. Key decisions include appointment of Hunger Envoy’. Press Release, 21 January 2009. Available at www.dfa.ie. 68

‘Report of Ireland's Hunger Envoy presented to Government’ Department of Foreign Affairs, Press Release, 2 November 2010. Available at www.dfa.ie.

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Government’s commitment to commit 20% of overseas development aid to hunger by 2012 and suggested that this funding be ring-fenced.69 The worsening public finances put pressure on Irish Aid throughout 2009. The allocation in the 2010 Budget, announced at the end of 2009 was €671 million, which was a cut of over €100 million, but which represents 0.52% of Irish GDP.70 On 17 December 2009, the Minister of State addressed the effect of the 2009 cuts and the likely effect of the 2010 at the Joint Committee on Foreign Affairs, saying: I would be less than honest if I did not say that Irish Aid and its partners faced real challenges in making do with less funding than planned or anticipated. All concerned made real and sustained efforts to protect core activities and operations throughout the year. We succeeded in this regard. We have now stabilised a budget and can plan for 2010 with certainty. The vast majority of those directly involved in development assistance believe that the budget for 2010 is fair and reasonable given the crisis in which the country finds itself. At the end of 2010 the Minister for the Environment announced that the 0.52% figure was again maintained for 2011, with a commitment of €668.2 million.71 Notwithstanding these reductions in funding, Ireland’s overseas aid programme was ranked highly by the OECD in 200972 and by the Centre for Global Development in Washington DC in late 2010.73 The September 2006 White Paper on Irish Aid continued to guide the operation of the Irish Aid programme in 2009 and 2010. Ireland continues to prioritise Sub-Saharan Africa, with more than 80% of Irish Aid funding going to that region.74

69

Farrell, K. Hunger Envoy Report (Dublin, November 2010) available at www.irishaid.gov.ie.

70

‘Budget 2010: Ireland to maintain ODA at 0.52% of GNP in 2010’ Irish Aid Press Release, 9 December 2009.

71

Dáil Debates, 8 December 2010, Volume 724, Column 454.

72

‘Minister of State for Overseas Development Peter Power TD welcomes international endorsement of Government’s overseas aid programme’ Press Release, Department of Foreign Affairs, 7 May 2009. 73

‘Ireland’s International Aid Programme again Rated among the Best in the World’, Press Release, Irish Aid, 5 October 2010. 74

‘Minister of State for Overseas Development Peter Power TD welcomes international endorsement of Government’s overseas aid programme’ Press Release, Department of Foreign Affairs, 7 May 2009.

242

CORRESPONDENT REPORTS

The MDGs) were reviewed in September 2010 at a summit in New York. The summit was attended by the Minister for Foreign Affairs and the Minister for State at the Department of Foreign Affairs. The Minister emphasised Ireland’s commitment to the issue of hunger within the MDGs saying: One of the key principles informing our input to the summit was the need to achieve all of the millennium development goals universally in order to reduce global hunger and poverty. Ireland believes strongly that progress on any one goal will be sustainable only when supported by progress in others. In our preparations, therefore, Ireland placed a central emphasis on the global hunger crisis, which we believe is impeding progress across the full range of development goals.75 He also emphasised Ireland’s focus on the need to give priority to regions and groups that are making the least progress towards achievement of the MDGs, most notably Sub-Saharan Africa. The Minister expressed his view that Ireland succeeded in achieving a strong focus on these points at the summit.76 During 2009 and 2010, humanitarian aid was provided by Ireland to a number of countries facing emergency need including Ethiopia,77 Samoa, Tonga,78 Sri Lanka,79 Haiti,80 Pakistan81 and Gaza.82

75

Minister for Foreign Affairs, Joint Committee on Foreign Affairs, 30 September 2010.

76

Minister for Foreign Affairs, Joint Committee on Foreign Affairs, 30 September 2010.

77

‘Minister of State for Overseas Development, Peter Power, responds rapidly to Ethiopian food crisis with announcement of €1.35 million in emergency relief’ Press Release, Department of Foreign Affairs, 23 October 2009. 78

‘Minister of State for Overseas Development, Peter Power, pledges €500,000 to families affected by natural disasters in Southeast Asia and the Pacific’ Press Release, Department of Foreign Affairs, 1 October 2009. 79

Minister of State at the Department of Foreign Affairs, Dáil Debates, 9 June 2009, Volume 684, Column 204.

80

Minister of State at the Department of Foreign Affairs, Dáil Debates, 21 January 2010, Volume 699, Column 862. 81

Minister of State Peter Power announces emergency funding of almost €550,000 to support those recently displaced by conflict in Pakistan’ Press Release, Department of Foreign Affairs, 29 June 2009; and ‘Government announces further humanitarian aid for Pakistan’ Press Release, Irish Aid, 9 August 2010. 82

‘Minister for Foreign Affairs pledges €2.5 million for Gaza’ Press Release, Department of Foreign Affairs, 2 March 2009.

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International Terrorism The Joint Committee on Justice, Defence and Women’s Rights considered a motion on the EU US Agreement on a Terrorist Financing Tracking Programme, known as the SWIFT agreement. The agreement allows the US Treasury Department to have access to information concerning EU transactions held by SWIFT, the main company which facilities international inter-bank payment messaging. The agreement requires the request to be copied to Europol and requests can only be made for the purposes of the investigation, detection or prosecution of terrorism or terrorist financing. Addressing the Agreement, the Minister for Justice said: This measure is a targeted and proportionate tool in the overall international effort to counteract terrorism. The revised agreement that is in place contains appropriate data security and privacy safeguards and sets out a transparent and effective means of supporting the continued operation of an important tool to help combat terrorism. The fight against terrorism is a key ongoing priority for the EU and the international community. Ireland supports the many actions being taken in this regard. We simply cannot afford to be complacent in facing down the threat from those forces that wish to undermine democracy and the rule of law. Identifying the money trail can be an essential part of investigating and prosecuting terrorism. This has been highlighted by the recent discovery of bombs hidden on cargo planes destined for the US. It is essential to work at cutting off or restricting the supply of funds to terrorists such that the capacity to act can be weakened and, hopefully, eliminated. By opting for this agreement, Ireland along with its EU partners, will contribute to that goal.83 The motion approving of the Agreement was passed by the committee.

Disarmament The Government led international efforts to secure the Convention on Cluster Munitions during 2008, including hosting the conference which adopted the

83

Minister for Justice, Joint Committee on Justice, Defence and Women’s Rights, 23 November 2010.

244

CORRESPONDENT REPORTS

Convention in May 2008.84 The Minister for Foreign Affairs reiterated Ireland’s commitment to non-proliferation and disarmament in early 2009.85 On the first anniversary of the adoption of the Convention, the Minister for Foreign Affairs called for renewed efforts to bring the convention into force and to get individual countries to ban the weapons regulated thereunder.86 The Convention obtained its thirtieth signature in February 2010, 87 triggering its entry into force in August 2010.88 In September 2009 the Minister of State at the Department of Foreign Affairs addressed the Comprehensive Test Ban Treaty Article XIV Conference in New York. He expressed the view that the treaty was essential for the world to rid itself of nuclear weapons. He said that ‘[b]y aiming to hamper the development and qualitative improvement of nuclear weapons, the Comprehensive Test Ban Treaty is one of the essential pillars in the nuclear disarmament and non-proliferation framework.’89 He also commented that the entry into force of the Comprehensive Test Ban Treaty would strengthen the international security architecture which was built upon the Nuclear Non-Proliferation Treaty, which Ireland has always been a champion of.90 Commenting on the outcome of the Nuclear Non-Proliferation Treaty Review Conference in May 2010, the Minister for Foreign Affairs said: Nuclear disarmament has been a policy priority for successive Irish Governments of all political persuasions and, while the language adopted by the Conference on this pillar of the Treaty is less strong than Ireland and a

84

See de Londras, F.., ‘International Law in Ireland’ (2008) 3 Irish Yearbook of International Law, pp.97-99.

85

‘Minister for Foreign Affairs reaffirms Ireland’s commitment to disarmament and non-proliferation’ Department of Foreign Affairs, Press Release, 5 January 2009. 86

‘Minister marks first anniversary of Convention on Cluster Munitions’ Press Release, Department of Foreign Affairs, 29 May 2009. 87

‘Minister for Foreign Affairs, Mr Micheál Martin, T.D., welcomes significant progress towards implementation of the Convention on Cluster Munitions’ Press Release, Department of Foreign Affairs, 17 February 2010. 88

‘Minister for Foreign Affairs, Mr Micheál Martin, T.D., welcomes entry into force of the Convention on Cluster Munitions’ Press Release, Department of Foreign Affairs, 1 August 2010. 89

‘Minister of State Peter Power T.D. calls for a ban on nuclear testing’ Press Release, Department of Foreign Affairs, 25 September 2009. 90

‘Minister of State Peter Power T.D. calls for a ban on nuclear testing’ Press Release, Department of Foreign Affairs, 25 September 2009.

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majority at the conference would have liked, it nonetheless represents a significant step forward.91 In 2010, the Government introduced the Biological Weapons Bill 2010, the principal purpose of which was to make further provision in domestic law for the State’s obligations under the 1925 Geneva Protocol and the 1972 Biological and Toxin Weapons Convention, as well as relevant elements of United Nations Security Council Resolution 1540 of 2004.92 In introducing the Bill, the Minister of State at the Department of the Taoiseach, Deputy Dick Roche said: Ireland has been, for many years, a leading advocate for greater international co-operation in the fields of disarmament and arms control. In my view, there are more than sufficient ways of causing harm to a human being than people investing their time, energy and ingenuity in the development of newer, more deadly weaponry. Ireland has played a leading role in particular in efforts to promote nuclear disarmament and non-proliferation and, most recently, in efforts to prohibit cluster munitions. It is important, therefore, that where we develop international commitments in these areas we also ensure that proper provision is made for them, where necessary, in our own domestic law.93 The main provisions of the Bill create new offences relating to the development of Biological weapons, including microbial agents.

Peace Support Operations The Irish Defence Forces continued to make a contribution to Peace Support operations in 2009 and 2010. Addressing a conference on the subject, the Minister for Foreign Affairs said: We in Ireland have always had a deep commitment to international military peace operations. A number of factors have helped to shape this commitment,

91

‘Minister for Foreign Affairs welcomes outcome of nuclear weapons' conference’, Press Release, Department of Foreign Affairs, 28 May 2010. 92

Dáil Debates, 7 October 2010, Volume 717, Column 794.

93

Dáil Debates, 7 October 2010, Volume 717, Column 798.

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CORRESPONDENT REPORTS

including our traditional policy of military neutrality and the values this encompasses, along with the benefits flowing to us in many parts of the world from the fact that we were never a colonial power. With this background, we have been able to engage to great effect as peacekeepers and peace-builders, and to bring a unique perspective and vision to the promotion of peace and development through the United Nations, the European Union and bilaterally.94 The overall total commitment to Peace Support operations, by mission, during 2009 and 2010 is as follows:95 Mission

Commitment

UNTSO (Middle East)

12

MINURSO (Western Sahara)

3

MONUC (Democratic Rep Congo

3

UNOCI (Cote d’Ivoire)

2

UNMIK (Kosovo)

4

UNIFIL HQ(Lebanon)

9

MINURCAT Core Planning Team (New York)

1

MINURCAT HQ(Chad)

13

MINURCAT Bn(Chad)

406

EUFOR(Bosnia and Herzegovina)

44

Nordic Battlegroup HQ (Sweden)

13

EU Tchad/RCA FHQ (Chad)

23

EUFOR Tchad/RCA OHQ (Paris)

18

EUFOR Tchad/RCA Bn

384

EUTM Somalia

2

KFOR(Kosovo)

218

KFOR HQ

20

ISAF (Afghanistan)

7

94

‘Remarks by the Minister for Foreign Affairs at the Seminar on Modern Challenges in Peace Operations’ Press Release, Department of Foreign Affairs, 12 May 2010. 95

Source: Department of Defence Annual Reports, 2009 and 2010.

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During 2009, a total of 1,888 members of the Permanent Defence Force deployed to various missions including postings in the UN, EU, OSCE and PfP/NATO.96 During 2010 the total number was 1,156.97 The peacekeeping mission to Chad, which had previously been EU led (EUFOR Chad/CAR), transferred to United Nations command on 15 March 2009 (MINURCAT).98 At the time that the operation transferred to UN control, Pat Carey TD, Minister for State at the Department of the Taoiseach said: Ireland is the second largest contributor to the mission. The nature of the Irish battalion duties includes, inter alia, short and long-range patrolling, situational awareness and the provision of an overall security and deterrent presence within its area of operations. To date, the Defence Forces have made a key contribution to the EU’s largest multinational deployment under European security and defence policy. This was a major bridging operation and invaluable experience has been gained by the Defence Forces over the past 18 months from planning through execution to the imminent handover to the UN. Major logistical and operational challenges were met in deploying to, and operating in, the heart of Africa.99 In March 2010, the Irish contingent of the MINURCAT mission was withdrawn in circumstances where it was unclear whether the mandate, which was due to expire, would be renewed. The Minister for Defence stated that it was Ireland’s preference to remain in Chad, but that the uncertainty surrounding the renewal of the mandate meant that the State was forced to withdraw the troops. The Minister said that ‘under both national and international law, Ireland cannot remain in Chad without the cover of a substantive UN mandate’.100 The other major troop commitment during the period under review was in the NATO/Partnership for Peace KFOR mission to Kosovo. This was also downsized in

96

Department of Defence, Annual Report 2009,

97

Department of Defence, Annual Report 2009,

98

Department of Defence, Annual Report 2009,

99

Dáil Debates, 5 March 2009, Volume 676, Column 225.

100

Dáil Debates, 21 April 2010, Volume 707, Column 45.

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CORRESPONDENT REPORTS

2010 and the majority of Irish personnel were all withdrawn over the course of the year. The Minister for Defence told the Dáil that this scaling down was part of the Government’s cost-cutting plan.101

101

Dáil Debates, 20 January 2010, Volume 699, Column 627.

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250

CORRESPONDENT REPORTS

IRISH STATE PRACTICE ON THE LAW OF THE SEA: 2009- 2010

DR. RONÁN LONG, NATIONAL UNIVERSITY OF IRELAND GALWAY

Ireland has played a leading role in developing and setting international standards for regulatory action in the field of maritime affairs over the past six decades. As a result, Irish state practice and policy in relation to the Law of the Sea is followed with great interest by practitioners and international lawyers worldwide. Indeed, international interest in Irish state practice may be traced back to the 1950s when Ireland became one of the first coastal States to establish a system of straight baselines following on from the decision of the International Court of Justice in the Anglo-Norwegian Fisheries case and the subsequent codification of the applicable rules in the 1958 Convention on the Territorial Sea and Contiguous Zone.1 Similarly, the landmark and dramatic decision of the Irish High Court in ACT Shipping (Pte) Ltd v Minister for the Marine and Others is frequently cited in many jurisdictions as an important statement of the law concerning the entitlement of a vessel in distress to enter a port of refuge.2 As noted in one commentary, this case ‘’gives an almost

1

Fisheries (United Kingdom) v Norway [1951] ICJ Rep 116 (p.116, 128, 129, as corrected by Erratum of October 22, 1956). The Territorial Sea and Contiguous Zone , 516 UNTS 205. Ireland signed the 1958 Convention but did not subsequently ratify this treaty which entered into force for states parties on 10 September 1964. The relevant provisions on the baselines were subsequently in Part 11 of the 1982 United Nations Convention on the Law of the Sea. The principal instruments governing the baselines in Ireland today are the Sea-Fisheries and Maritime Jurisdiction Act 2006, the Maritime Jurisdiction Act (Charts) Order 1959, and the Maritime Jurisdiction Act 1959 (Straight Baseline) Order 1959 (into force, 1 January 1, 1960). For commentary on these instruments see, inter alia: R. Long, Marine Resource Law, (Dublin, Thomson Round Hall, 2007) pp. 121-130; United States Department of State (Bureau of Intelligence and Research) ‘Straight Baselines: Ireland’ Limits in the Seas, International Boundary Study, Series A, No.3 (The Geographer, Jan. 23rd, 1970); P. O’Higgins, ‘Note on the Maritime Jurisdiction Act 1959’ (1960) 9 ICLQ 325; C. Symmons, Ireland and the Law of the Sea (2nd ed., Round Hall Sweet & Maxwell, 2000), p.40; J. Edwards and M. Mellett, ‘Irelands Maritime Boundaries and the Prosecution of Offences Committed within the Territorial Seas of the State’ (1999) University of Limerick Law Review 91; C. Symmons, ‘The Background to the imposition of the straight baseline system around the Irish coast: An interesting episode in Anglo-Irish legal relations’ (1998) 13 International Journal of Marine and Coastal Law 47. 2

[1995] 3 IR 407.

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textbook-like account of how State practice may be established by a court of law as a basis for the definition of the relevant rule of international law’’. 3 As an island nation with vital maritime interests, there is little doubt but that Ireland has punched above its weight on the international stage over the past fifty years or so and as a consequence has made a significant contribution to the codification and progressive development of the Law of the Sea.4 In many ways, this work achieved its apogee under the direction of the late Ambassador Mahon Hayes at the Third United Nations Conference on the Law of the Sea which culminated in the adoption of the United Nations Convention on the Law of the Sea in 1982 (hereinafter the ‘‘1982 Law of the Sea Convention’’).5 Since then, Ireland has remained very much at the forefront of international legal developments and a quick trawl through the latest law reports of the Superior Courts, statements of the Minister of Foreign Affairs in both Houses of the Oireachtas (the Irish Parliament), recent legislation and newspaper reports, as well as the official publications of government departments and state agencies, reveals that state practice and the underlying policy on the Law of the Sea remains relatively dynamic in Ireland. This brief report presents a short overview of some highlights on state practice and in some instances ‘‘inaction’’ on key issues during the period 2009-2010. For reasons of space, however, only the briefest of summaries and very little scrutiny can be undertaken here.

Government Departments and State Agencies The overall organisation of the various government department and state agencies with responsibility for maritime affairs remains somewhat fractious since the divestment of the Department of the Marine of a number of key functions in 2007 on the basis of political expediency.6 Since then, it has become a relatively tough task to trace which public bodies are responsible for the various aspects of the maritime brief.

3

G. Biehler, International Law in Practice: An Irish Perspective (Dublin, Thomson Round Hall, 2005), p. 85.

4

See Address by the President of Ireland, Mary McAleese to the International Court of Justice, The Hague, 2 May 2011. 5

Irish Treaty Series No. 1 of 1996. Entered into force with respect to Ireland on 28 July 1996. On the contribution of the Irish Delegation to negotiations at the Third Conference, see, M. Hayes, The Law of the Sea: The Role of the Irish Delegation at the Third United Nations Conference, (Dublin, Royal Irish Academy, 2011). 6 See ‘Bringing national maritime policy back into line’, Irish Times, 20 December, 2007.

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CORRESPONDENT REPORTS

During the report period, for instance, it appears that there were over ten government departments and two dozen statutory bodies involved in implementing various aspects of Ireland’s Law of the Sea obligations under a broad range of international and regional agreements. As will be seen below, there also appears to be a general trend towards the establishment of coordination groups at an inter-departmental level to harmonise the approach of the various public bodies on issues of common concern. Perhaps it is best to start with one government department where there is a degree of stability regarding its statutory functions and that is with the Department of Foreign Affairs and Trade (DFAT), which remains the lead department with responsibility for the formulation and implementation of Ireland’s foreign policy in relation to the Law of the Sea generally, and for undertaking negotiations concerning the delimitation and delineation of the State's maritime boundaries in particular. In fulfilling their brief, members of the DFAT regularly participate in the work of several international and regional bodies. Thus, for example during the report period, the Legal Division represented Ireland at the twentieth meeting of States Parties to the 1982 United Nations Convention on the Law of the Sea in June 2010.7 Participation by other government departments in the work of international bodies varies considerably. This is evident if one looks at the Department of Agriculture, Fisheries and Food (DAFF), which is responsible for fisheries and seafood policy including representing Ireland in the various European Union (EU) technical groups that are working on the reform of the common fisheries policy. Representatives of DAFF also participated in the EU delegation at the annual meetings of a number of regional fisheries management organisations including the 29th Annual Meeting of the North East Atlantic Fisheries Commission. Perhaps a little surprisingly, Ireland is not listed as represented at the resumed Review Conference on the Straddling Fish Stocks Agreement, which was held at United Nations Headquarters in New York from 24 to 28 May 2010.8

That said, this

omission may be partly explained by the fact that fisheries management and

7

SPLOS/INF24, 1 July 2010.

8

See United Nations, A/CONF.210/2010/INF/2, 2 June 2010. The full title of this Agreement is the ‘Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’. Irish Treaty Series No.2 0f 2004. Entered into force with respect to Ireland on the 18 January 2004.

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conservation comes within the competence of the European Union under the common fisheries policy and the EU Delegation represented the interests of the Member States. Elsewhere in the public service, a number of key administrative functions in relation to the marine environment are now split between different government departments and state agencies. For instance, the Minister for Agriculture, Fisheries and Food is responsible for aquaculture and foreshore licensing in relation to seafisheries and aquaculture activities. This may be contrasted with role of the Minister for the Environment, Community and Local Government who is vested with responsibility for the administration of all other foreshore activities under the Foreshore Acts 1933-2011, such as foreshore consents for offshore wind farm development.9 Significantly, the statutory functions relating to dumping at sea, including those that arise under the 1972 London Dumping at Sea Convention and its 1996 Protocol,10 were transferred from the Minister for Agriculture, Fisheries and Food to the Environmental Protection Agency in 2009.11 How this arrangement is going to deliver a coherent approach to the difficult task of integrated decisionmaking and maritime spatial planning will only be revealed in the fullness of time. Further complexity to the maritime brief is added by the Department of Transport, which is home to the Maritime Safety Directorate and the Irish Coast Guard.

The former Directorate discharges important functions under many

international agreements concerning shipping, safety at sea, and vessel source pollution. Some of the achievements of the Coast Guard during the report period are considered below. Mention should also be made of the Naval Service which undertakes law enforcement at sea including fisheries protection duties and in a number of other areas as an aid to the civil power. In relation to the latter, they are supported periodically by the Customs Service and An Garda Síochaná (Ireland’s police force) who have important statutory powers in relation to certain offences committed at sea. Over the past decade, the three enforcement bodies have worked together under the chapeau of

9

Foreshore (Amendment) Act 2011.

10

Irish Treaty Series Nos. 114 and 115 of 2007. Entered into force with respect to Ireland on the 9 March 1982 and on the 24 March 2006 respectively. 11 Foreshore and Dumping at Sea (Amendment) Act 2009. No. 39 of 2009.

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CORRESPONDENT REPORTS

the National Inter-Agency Drugs Joint Task Force in combating drug trafficking at sea. In 2008, a conspicuous achievement of the Task Force was the detention of the yacht ‘Dances with Waves’ (an unregistered vessel) to the west of Ireland and the subsequent prosecution of the crew for a number of offences under the Misuse of Drugs Act 1977 and the Criminal Justice (Drug Trafficking) Act 1996.12 This combined operation had an important international dimension as it also entailed the Irish law enforcement bodies working with the Maritime Analysis and Operations Centre - Narcotics (MAOC-N), which is based in Lisbon and is a regional organisation that facilitates the exchange of information regarding drug shipments by sea. The participating states in MAOC-N are Portugal, Spain, United Kingdom, Ireland, France, the Netherlands and Italy. The Agreement establishing MAOC-N entered into force with respect to Ireland in 2010.13 The same year, MAOC-N was designated by Government Order as an organisation to which Part VIII of the Diplomatic Relations and Immunities Act 1967 applies, and this important regional organisation thus acquired legal personality in Ireland.14 Another important initiative which shows further integration of government bodies was the establishment of an Inter-Departmental Maritime Surveillance Coordination Group in 2009 with a view to enhancing safety and security within the Irish maritime domain.15 The Department of Defence and the Naval Service are represented in this forum and recent parliamentary reports indicate that the Group is tasked with developing the technical and data-sharing framework to improve maritime safety.16 Also in 2009, some progress was made towards the coordination of the work of the various public bodies involved in the administration of maritime matters with the establishment of an Inter-Departmental Marine Coordinating Group, which brings together the various government departments who have responsibility for various

12

See, The Times 8 November 2008; Irish Examiner, 11 November 2008.

13

Irish Treaty Series No. 9 of 2011.

14

S.I. No. 550/2010 — Maritime Analysis and Operations Centre - Narcotics (Designation) Order 2010.

15

Dáil Éireann Debate Vol. 725, No. 2, Col. 511, p.34.

16

ibid.

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aspects of the maritime portfolio. The remit of the Group extends to the promotion of employment in the maritime sector, the implementation of EU Directives pertaining to the marine, safety and surveillance, bringing forward draft-legislation on maritime issues, the protection of the marine environment, and the future development of offshore resources and harbours. Despite this progress, the division of responsibility for maritime matters between various public bodies remains diffuse in Ireland and at odds with developments in other EU Member States such as the United Kingdom, which has put the Marine Management Organisation on a statutory footing under the Marine and Coastal Access Act 2009.17 The latter organisation is vested with responsibility for matters such as marine planning, fisheries, protecting the environment and marine regulation and licensing.

Neither does it accord with the central thrust of the

European Integrated Maritime Policy, which places considerable emphasis on the establishment of a holistic governance framework and the adoption of appropriate tools for integrated policy-making with a view to achieving the “sustainable use of the oceans and seas, building a knowledge and innovation base for maritime policy, delivering the highest quality of life in coastal regions, promoting Europe's leadership in international maritime affairs, and raising the visibility of Maritime Europe’’.18 Somewhat disappointingly, the most recent reports from the European Commission on the EU’s Integrated Maritime Policy suggest that Ireland is behind other EU Member States such as France and the Netherlands in establishing appropriate administrative structures to undertake policy coordination of sea-related matters in conformity with the applicable European guidelines on this matter.19

17

Received the Royal Assent on 12 November 2009.

18

See European Commission, An Integrated Maritime Policy for the European Union, COM(2007) 575 final of 10.10.2007 and SEC(2007) 1278 of 10.10.2007: and Commission Staff Working Document, SEC(2007) 1278, Brussels, 10.10.2007. This followed the adoption of the Green Paper on a Future Maritime Policy for the European Union by the Commission, COM(2007) 574 final, 10.10.2007. 19

COM(2009)540 final of 15.10.2009 and COM(2008) 395 final of 26.06.2008.

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Mox Plant The dispute between Ireland and the United Kingdom over the commissioning and operation of the Mox Plant at Sellafield came to international attention close to ten years ago when the two countries had recourse to dispute settlement proceedings under the 1982 Law of the Sea Convention and pursuant to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (the ‘‘OSPAR Convention’’).20 As a conclusion to one set of proceedings, Ireland formally notified the Arbitral Tribunal established under Annex VII of the 1982 Law of the Sea Convention of the withdrawal of its claim against the United Kingdom on 15 February 2007. Subsequently, the Arbitral Tribunal issued an Order terminating the proceedings on 6 June 2008. 21 An interesting footnote to these proceedings is that the expenses of the Arbitral Tribunal were borne by both Parties in equal shares.22 The termination of the international arbitration proceedings was entirely foreseeable in view of the previous landmark decision by the European Court of Justice regarding the relationship of European law and public international law in general, where the Court censured Ireland for bringing proceedings under the dispute-settlement procedure laid down in the 1982 Law of the Sea Convention, without having first informed and consulted the competent EU institutions, and thus had failed to comply with its duty of cooperation under Articles 10 and 292 of the European Community Treaty and Article 192 and 193 of the Treaty establishing the European Atomic Energy Community.23 Importantly, the European Court of Justice held that the 1982 Law of the Sea Convention now forms an ‘‘integral part’’ of the European legal order and as a consequence the Court has exclusive jurisdiction to rule on disputes concerning the interpretation and application of the provisions of the Convention which form such a part.24 For EU Member States, this decision appears to firmly

20

See, inter alia: R Long, Marine Resource Law, (Thomson Round Hall, Dublin, 2007) at 640–642; N Lavranos, ‘The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?’, (2006) 19(1) Leiden Journal of International Law 223; R R Churchill and J Scott, ‘The Mox Plant Litigation: The First Half-Life’, (2004) 53(3) International and Comparative Law Quarterly 643. 21

The MOX Plant Case (Ireland v United Kingdom), Order No. 6 Terminating Proceedings, Permanent Court of Arbitration, 6 June 2008. 22

ibid.

23

Case C-459/03, Commission v Ireland (Mox Plant) [2006] ECR I-4635.

24

Para. 82 of Case C-459/03 citing para. 36 of Case C-344/04 IATA and ELFAA [2006] ECR I-403.

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close the door on future dispute settlement proceedings outside of the European legal order concerning matters under the 1982 Law of the Sea Convention where the EU exercises shared competence with the Member States. As an ironic postscript to the Mox Plant proceedings, it should also be mentioned that there were a number of press reports which revealed that the mixed-oxide fuel plant at Sellafield was shut down in rather dramatic fashion as a consequence of the Fukushima nuclear accident and the uncertainty that had arisen about the future of the nuclear industry in Japan.25

Agreements on Privileges and Immunities Ireland has ratified the Agreement on the Privileges and Immunities of the International Tribunal on the Law of the Sea bringing the total number of States Parties to that Agreement to 40.26 The privileges and immunities accorded by the Agreement to the ITLOS and persons connected therewith are comparable to those accorded to other international bodies established under the 1982 Law of the Sea Convention such as the International Seabed Authority, which is subject to a similar Agreement: the Privileges and Immunities of the International Seabed Authority. The latter was also ratified by Ireland in 2011.27

Vessel source pollution During the report period, Ireland deposited its instrument of formal accession with the Secretary-General of the International Maritime Organisation to two important multilateral treaties, namely the International Convention on Civil Liability for Bunker Oil Pollution Damage on 23 December 2008, which entered into force with

25

The Guardian, 3 August 2011.

26

S.I. No. 44/2011. International Tribunal for the Law of the Sea (Privileges and Immunities) Order 2011. There is an erratum in the Explanatory Memorandum attached to the Order which refers to the International Seabed Authority and this should read the International Tribunal for the Law of the Sea. 27

S.I. No. 44/2011.

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CORRESPONDENT REPORTS

respect to Ireland on 23 March 2009;28 and the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships 1973 as modified by the Protocol of 1978 Relating Thereto (commonly referred to as ‘MARPOL 73/78’) on 30 June 2009, which entered into force on 30 September 2009.29 The former treaty provides a framework for the adoption of uniform international rules and procedures for determining questions of liability and for adequate, prompt and effective compensation for damage caused by pollution resulting from discharge of bunker oil from ships. As such, it complements a number of other agreements on vessel source pollution that Ireland has ratified in recent years. These include inter alia the 1992 International Convention on Civil Liability for Oil Pollution Damage,30 the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, and its 1976 Protocol.31 The 1997 Protocol adds a new Annex VI to MARPOL 73/78 and provides regulations on the prevention of air pollution from ships. As an aside, it should be noted that this entails the application of the precautionary approach in line with Principle 15 of the Rio Declaration on Environment and Development. Undoubtedly, this is further evidence of the normative value of this concept in international law. Apart from the threat posed by vessel source pollution, there have been a number of other important developments in Irish law concerning the protection of the wider marine environment including Ireland’s ratification of the Bonn Agreement which are discussed further on below.

Safety of shipping Shipping makes a fundamental contribution to the economic well-being of Ireland and the Irish Maritime Development Office is tasked with making Ireland an international centre of excellence for shipping, shipping services, as well as for the training and education of seafarers. In this context, the enactment of the Merchant Shipping Act

28

Irish Treaty Series No. 6 of 2010.

29

Irish Treaty Series No. 16 of 2011.

30

Irish Treaty Series No. 3 of 1995.

31

Irish Treaty Series No. 1 and 2 of 1995.

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2010 brings about a long-overdue updating and consolidation of the law regarding the safety of cargo and passenger vessels.32 In particular, the 2010 Act updates the Merchant Shipping Acts 1894-2005 and provides for the further implementation by Ireland of the principal multilateral agreement on the subject, the International Convention for the Safety of Life at Sea (commonly referred to as the ‘‘SOLAS Convention’’).33 Again for reasons of space, only brief mention can be made here of some of the principal features of this important instrument which brings Irish law into line with international best practice on the safety of shipping. In general, the matters dealt with by the 2010 Act include a broad range of technical and practical matters regarding the construction rules for passenger vessels, cargo ship construction and survey rules, radio rules, navigation and tracking rules, cargo ship bulk carrier rules, fire protection rules, rules for life-saving appliances and arrangements and approval of service stations for inflatable life-saving appliances, rules governing access for persons with reduced mobility and disability on board vessels, as well as the enhancement of the powers of the Marine Casualty Investigations Board, and the overall strengthening of statutory provisions dealing with enforcement and compliance. There are a number of important definitions in the 2010 Act. A brief perusal of Part 2, for example, reveals that the amendment Act applies to ‘‘Irish ships’’ but this does not include ships of the Naval Service of the Defence Forces which are wholly manned by personnel of that Service. 34 The ratione materiae of the 2010 Act is very wide in so far as it applies to cargo, passenger, fishing vessels and leisure craft. Indeed, one particularly laudable feature of this weighty instrument is that it provides a legal basis for the Minister to make regulations for different classes of vessels such as the making of regulations for the safety of passenger boats, fishing

32

No14 of 2010.

33

Irish Treaty Series No. 3 of 1984. Entered into force with respect to Ireland on 29 February 1984. 34

s.2 of the Merchant Shipping Act 2010. Ships that are entitled to fly the national colours and assume national character in Ireland are defined under s.9 of the Mercantile Marine Act 1955 as (a) State-owned ships; (b) ships which are wholly owned by persons being citizens of Ireland (hereinafter referred to as Irish citizens) or Irish bodies corporate and are not registered under the law of another country; (c) other ships registered or deemed to be registered under this Act.

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vessels, and pleasure craft.35 This classification of vessels according to their use and area of operations clearly accords with international best practice and it may lessen the regulatory burden borne by the owners and operators of small fishing vessels and pleasure craft in the longer-term. The statute is well structured and Parts 2 and 3 are given over to updating the Merchant Shipping Acts 1894-2005 including the Merchant Shipping (Safety Convention) Act 1952 with a view to implementing various provisions of the SOLAS Convention In particular, these parts set down the rules that apply to the construction of passenger steamers (ships), navigation, tracking, bulk carriers, as well as rules for the categorisation of vessels under safety regulations. In line with recent changes in Irish law, Part 4 deals with access for persons with reduced mobility to passenger vessels and these provisions are fully in line with the principal aims of the Disability Act 2005.36 Core elements of the 2010 Act are the provisions that aim to enhance the powers of the Marine Casualty Investigations Board (the ‘‘Board’’).37 In order to understand the significance of these provisions it is relevant to recall that there have been a number of high profile incidents in recent years regarding the recovery of vessels from the seabed in order to facilitate investigations by the Board. In such instances, the investigations conducted by the Board do not ‘attribute blame or fault’ but are aimed at facilitating the making of recommendations to the Minister for Transport for the avoidance of similar casualties in the future. 38 In the relatively brief period of the time since its establishment, the Board has been busy and prior to the enactment of the 2010 Act there were several tragedies on the Irish coast. Most notably, two Irish registered fishing vessels, the Maggie B and the Pere Charles, were raised from the seabed of the territorial sea, approximately five miles south of Hook

35

S.15 of the Merchant Shipping Act 2010.

36

No. 14 of 2005.

37

The Marine Casualty Investigation Board (MCIB) was established on 5 June, 2002 under s.7(1) of the Merchant Shipping (Investigation of Marine Casualties) Act 2000. No.14 of 2000. 38

s.25(2) of the Merchant Shipping (Investigation of Marine Casualties) Act 2000.

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Head in County Waterford, in 2007.39 In light of these tragic events, one of the significant features of the 2010 Act is that it closes an obvious lacuna in Irish law by providing a solid legal plinth in Part 5 of the Act for the raising of a sunken vessel for the purpose of ‘examining it and the making of arrangements for its inspection, storage and, if necessary, disposal in due course.’40

From an international law

perspective, it is significant to note that there is an extremely expansive definition of a ‘vessel’ in this part in so far as it has the meaning assigned to it under the Merchant Shipping Act 2000 and in addition extends to all or any of the following: ‘(a) a vessel which is sunk, partially sunk, wrecked, grounded, stranded or abandoned, (b) any part of such a vessel, and (c) any article, thing or collection of things being or forming part of the tackle, equipment, cargo, stores, bunkers, oils or ballast of a wrecked vessel.’41 In addition, it is also worth noting that the new statutory provisions apply to the raising of foreign flagged vessels from the seabed. In such cases, the diplomatic agent or consular officer of the foreign State who is authorised by any treaty arrangement between Ireland and that State, in which (a) the vessel was registered when it sank, or (b) the owners of the vessel resided, shall, in the absence of the owners and of the master or other agent of the owners, be deemed to be the agent of the owners, as far as relates to the custody and disposal of the vessel.42

Search and Rescue The Irish Coast Guard is responsible for search and rescue functions and has a wide remit under several international agreements concerning the safety of life at sea. Suffice to note here that the 1982 Law of the Sea Convention requires that every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service.43 Similarly, States Parties to the

39

See Irish Times, 11 November 2007.

40

s.75 of the Merchant Shipping Act 2010.

41

S.74 of the Merchant Shipping Act 2010.

42

S.81 of the Merchant Shipping Act 2010.

43

Article 98(2) of the 1982 United Nations Convention on the Law of the Sea.

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1979 International Convention on Maritime Search and Rescue, such as Ireland, must ensure that assistance be provided to any person in distress at sea.44 In this context, they must ‘do so regardless of the nationality or status of such person or the circumstances in which that person is found’.45 A similar duty to save life arises under the 1989 International Convention on Salvage and under the Merchant Shipping (Salvage and Wreck) Act 1993.46 In 2010, the Department of Transport published the Irish National Maritime Search And Rescue (SAR) Framework which provides guidance on the organisation of the search and rescue services in Ireland. This framework applies to emergency events occurring within ‘the Irish Search and Rescue Region up to the high water mark, within ports as applicable and on the inland waterways as agreed with An Garda Síochána’.47 The on-going contribution of the Coast Guard to the safety of shipping and leisure craft on the Irish coast should not be underestimated and during 2010, they are reported as responding to 1,839 marine emergency incidents, a decrease of 54 from the number of incidents that were reported in 2009. 48

The total number of people

saved or assisted was 3,570, which is up 443 from the number reported in 2009.49 Many of these search and rescue operations related to foreign flagged vessels.

Safety of Navigation On the subject of maritime safety, statutory responsibility for the provision and maintenance of the various aids to navigation (lighthouses, buoys and beacons) around Ireland and the United Kingdom is vested in the three venerable General

44

Annex Chapter 2.1.10 of the International Convention on Maritime Search and Rescue. Irish Treaty Series No.2 of 1994. 45

ibid.

46

Article 10 of the 1989 International Convention on Salvage. Entered into force with respect to Ireland on 14 July 1996 Irish Treaty Series No.1 of 1999. s.7 of the Merchant Shipping (Salvage and Wreck) Act 1993, No.34 of 1993. 47 Para. 1.1.2 of the Irish National Maritime Search And Rescue (SAR) Framework. 48

See statements made by Minister for Transport, Tourism and Sport, Deputy Leo Varadkar, to the Select SubCommittee on Transport, Tourism and Sport Debate in the Dáil, 12 July 2011. 49

ibid.

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Lighthouse Authorities, namely: Trinity House, which was first established in 1514; the Commissioners of Northern Lighthouses; and the Commissioners of Irish Lights.50 The three Lighthouse Authorities have had an illustrious history and provide an invaluable service to all seafarers irrespective of nationality. One of the principal challenges for the Authorities is to secure adequate fiscal support to keep the system of navigation aids fully operational. Traditionally the Authorities were financed from a number of sources including the General Lighthouse Fund, which was first put on a statutory footing in 1898. The Fund depends mainly upon the collection of light dues charged on commercial shipping at ports in Ireland and the United Kingdom.51 Financial-aid from the general Lighthouse Fund is supplemented by a contribution from the Irish Exchequer towards the cost of providing services in Ireland. In 2011, it was reported in the Dáil that the Minister for Transport in Ireland and the Minister for Transport in the United Kingdom had concluded a bilateral agreement in 2010 under which Ireland had committed itself to a process aimed at facilitating the Commissioners of Irish Lights becoming self-financing for its activities in the State by 2016.52 To this end, the two Lighthouse Authorities were reported as considering proposals aimed at increasing Irish light dues income over future years.53

Seafarer’s rights and the 2006 Maritime Labour Convention Since time immemorial, a regrettable feature of the global shipping industry has been the frequent and unscrupulous maltreatment of seafarers by ship owners and ship operators. In recent years, there have been a number of press reports in Ireland that have raised public awareness of this issue. In this context it is important to recall that the 1982 Law of the Sea Convention sets down, amongst other matters, the obligations of a flag State with regard to labour conditions, crewing and social matters

50

s.195 of the Merchant Shipping Act 1995 in respect of the United Kingdom and s.634 of the Merchant Shipping Act 1894 in respect of Ireland. 51

See Report and Accounts on the General Lighthouse Fund for the year ended 31 March 2009 Presented to Parliament by the Secretary of State for Transport pursuant to s. 211(5) of the Merchant Shipping Act 1995. House of Commons 2010 52

See statements made by Minister for Transport, Tourism and Sport, Deputy Leo Varadkar, to the Select SubCommittee on Transport, Tourism and Sport Debate in the Dáil, 12 July 2011. 53

ibid.

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on ships that fly its flag.54

In light of this obligation, a particularly welcome

development in Irish law is the enactment of Part 6 of the Merchant Shipping Act 2010, which gives effect to the Maritime Labour Convention that was adopted by the International Labour Organisation in Geneva in 2006..55 Essentially, Part 6 of the Merchant Shipping Act 2010 aims to ensure that the employment and social rights of seafarers on ships that fly the Irish flag are fully implemented. Under the 2010 Act, authorised persons may inspect any ship for the purpose of seeing that it is properly certified and is compliant with the 2006 Convention. Moreover, the Act also requires that Maritime Labour certificates must be issued as a declaration of compliance. The penalty for non-compliance with regulations is a maximum fine of €5,000 on summary conviction, or to such lesser amount as specified in regulations in respect of the offence. The Minister of Transport is empowered to make an application to a court for an order seeking compliance with the regulations or the taking of corrective measures. Although the scheme of protection established pursuant to the 2010 Act only applies to Irish ships and seafarers sailing on those ships, these measures ought to improve the quality and attractiveness of the maritime labour environment for the shipping industry in Ireland and thereby sends out a strong message regarding the protection of seafarer’s rights at a global level.

Protection of the marine environment During the report period, there were a number of important publications on the status of the marine environment in sea areas adjacent to Ireland. Most notably, the Quality Status Report 2010, which was published by the OSPAR Commission, presents a comprehensive evaluation of quality and status of the marine environment in the North-East Atlantic.56

The overall assessment presented for Region III, which

stretches from the continental shelf to the west of Ireland to the semi-enclosed Irish Sea, is somewhat like the Curate’s egg, that is to say, good and bad in places. The

54

Article 94 of the 1982 Law of the Sea Convention

55

At the time of writing, Ireland has not yet ratified this Convention. In 2007, the EU invited Member States to ratify the Convention by the end of 2010. The provisions for bringing into force the Convention are complex and in 2011 there were only 16 ratifications. 56

OSPAR Commission, Quality Status Report 2010, Regional Summaries, pp.155-157.

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relevant sections in the report notes, for example, that many bays and estuaries are experiencing eutrophication from anthropogenic impacts from agricultural run-off.57 The levels of heavy metal concentrations in sediment, fish and shellfish are deemed by the report to be at ‘unacceptable levels’.58 In addition, the high levels of litter on Irish beaches, the unsustainability of fishing activity on certain fish stocks, as well as the effects of extensive coastal development and climate change, remain an ‘ongoing concern’.59 Overall, however, the report concluded that the quality status of Region III was ‘generally good’.60

The report calls for caution regarding the future

development of offshore wind farms as little is known about the long-term ecosystem effects of these types of developments.61 In the context of the Mox Plant proceedings discussed above, it is also significant that the report notes that the region has benefitted from a reduction in the discharge of radionuclides from the nuclear sector and from discharge of radioactive technetium from nuclear reprocessing activities at Sellafield in the United Kingdom is mentioned specifically.62 There have been some major developments within regional marine environmental law that are relevant to Ireland. These developments have increased significance in light of the difficulties encountered by the various United States federal agencies in dealing with the Deepwater Horizon oil spill in the Gulf of Mexico. Most notably, Ireland became a party to the Bonn Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances in January 2010.63 This regional treaty, which now has ten Contracting Parties, provides a framework for dealing with both accidental and illegal pollution from shipping, offshore oil and gas operations, as well as from other maritime activities.64

57

ibid.

58

ibid.

59

ibid.

60

ibid.

61

ibid.

62 63

The

ibid.at 156. The text of the Bonn Agreement has not yet been published in the Treaty Series.

64

Belgium, Denmark, France, Germany, Ireland, the Netherlands, Norway, Sweden, the United Kingdom, and the EU. Spain has observer status.

266

CORRESPONDENT REPORTS

treaty, which was originally concluded by States bordering the North Sea in response to the pollution caused to south coast of the United Kingdom from the loss of the Torrey Canyon in 1967, was substantially revised in 1983. In 2001, the text of the Bonn Agreement was amended again to facilitate the accession of Ireland.65 More specifically, the legal definition of the ‘North Sea’ was amended for the purposes of the Agreement to include, inter alia, ‘other waters, comprising the Irish Sea, the Celtic Sea, the Malin Sea, the Great Minch, the Little Minch, part of the Norwegian Sea, and parts of the North East Atlantic, bounded on the west and north by the line defined in Part II of the Annex to this Agreement’.66 This amendment nearly doubles the size of the maritime area that comes under the scope of the Agreement. Following-up on Ireland’s ratification, the Ministerial Meeting of the Bonn Agreement was held in Dublin Castle in November 2010 and this resulted in the adoption of the Bonn Agreement Action Plan and a ministerial statement referred to as the ‘Dublin Declaration’.67 In the words of the press statement issued by the Bonn Agreement Secretariat at the time of the Dublin meeting: ‘The Action Plan will now further strengthen regional cooperation on prevention, preparedness and response to marine pollution from shipping and other maritime activities, including concrete actions on aerial and satellite surveillance of maritime activities, capacities for pollution response, enforcement of environmental rules and standards, and programmes for research and development. The Action Plan also promotes a Bonn Agreement area-wide risk assessment that will take into account the environmental sensitivity of marine and coastal areas and adequate balances of resources for response work.’68

65

Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances, 1983, as amended by the Decision of 21 September 2001 by the Contracting Parties to enable the Accession of Ireland to the Agreement. 66

Article 2 of the Bonn Agreement.

67

See www.bonnagreement.org/eng/doc/MMC_invitation_enclosure.pdf. Press Statement, 24 November 2010. Available at: www.bonnagreement.org/eng/doc/PR_10_BONN_2010_final.pdf 68

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

The adoption of the Action Plan and the Dublin Declaration demonstrate a clear political commitment by the Contracting Parties to undertake appropriate pollution preparedness and response work at a regional level in north-west Europe. Apart from the ratification of the Bonn Agreement, Ireland has taken a number of important legislative initiatives to improve the quality of the marine environment. Much effort has been directed towards the implementation of a new generation of EU directives that put in place a science-driven iterative process for the management and regulation of the marine environment. In particular, the transposition into Irish law of the Marine Strategy Framework Directive is a critical step towards achieving good environmental status of marine waters by the year 2020.69 The national transposition measures, which should have been undertaken by 2010 but came into being the following year, apply to marine and coastal waters where the State exercises jurisdiction.

70

They also set down a requirement that account must be taken [by

Ireland] of the trans-boundary effects on the quality of the marine environment of third States in the same marine region.71 In line with the scheme of the Directive, the said regulations set out a schedule on how this is to be achieved as well as a number of milestones including: an initial assessment of the status of Ireland’s marine waters, a determination of good environmental status (what this means is spelt out in further detail in a European Commission Decision),72 and the establishment of a series of environmental targets and associated indicators by 2012;73 following on from this, the establishment and implementation of monitoring programmes for the ongoing assessment and regular updates of targets by 2014; and then the must difficult

69

European Communities (Marine Strategy Framework) Regulations 2011. S.I. No. 249 of 2011. 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) OJ L 164/19, 25 June 2008. For commentary on this Directive see R Long, ‘The EU Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services’, 29 (1) (2011) Journal of Energy and Natural Resources Law 1; A Trouwborst & H Harm, ‘Comparing European Instruments for Marine Nature Conservation: The OSPAR Convention, the Bern Convention, the Birds and Habitats Directives, and the Added Value of the Marine Strategy Framework Directive’ (2011) 20(4) European Energy and Environmental Law Review 129. 70

Regulation 3(1) of European Communities (Marine Strategy Framework) Regulations 2011.

71

ibid.

72

Commission Decision of 1 September 2010 on criteria and methodological standards on good environmental status of marine waters OJ L 232/14, 2.9.2010. 73 Regulation 5(3) of European Communities (Marine Strategy Framework) Regulations 2011.

268

CORRESPONDENT REPORTS

element, which is the design and implementation of a programme of management measures by 2016.74 Dumping at sea is well regulated at a regional and international level, and the principal threat to the marine environment now comes from the dumping of dredged material and from the residual threat posed by munitions dumped after the Second World War.

In this regard, the Quality Status Report 2010 points out that the

‘dumped munitions in the sea are a historical legacy representing a risk to fishermen, other coastal users and marine species.’75 As noted previously, the Environmental Protection Agency (EPA) is the statutory body in Ireland vested with the power to issue permits under the Dumping at Sea Acts 1996 to 2010. In line with the general thrust of the 1972 London Convention and 1996 Protocol, as well as the 1992 OSPAR Convention, these statutes prohibit the dumping at sea from vessels, aircraft, or offshore installation of a substance or material unless appropriately authorised by the EPA. In 2010, the EPA published a Guidance Note that offers useful background information on how the dumping at sea permit system operates in practice as a ‘quasijudicial process’ in Ireland.76 A brief perusal of the scheme set out in the Note reveals that the consent process is rigorous and appears to conform to international best practice. This assertion is also borne out if one examines the Registry of Dumping Permits maintained by the EPA in so far as it appears that only one permit was issued in 2010, and this related to the dumping of 36,000 tonnes of dredged material by the Department of Defence in a position 5.5 km offshore from Power Head, County Cork.77 This is a marked improvement from the position in the early 1990s when close to two dozen consents to dump at sea were issued annually in Ireland.78

74

ibid.

75

OSPAR Commission, OSPAR Quality Status Report 2010, pp.110-112.

76

EPA, Dumping at Sea Permit: Application Guidance Note. Available at: www.epa.ie/downloads/forms/lic/das/DaSGuidanceV1.pdf. 77

This Registry must be maintained pursuant to s.5(9)(a) of the Dumping at Sea Acts 1996 to 2010. For further information see: www.epa.ie/downloads/forms/lic/das/Dumping%20at%20Sea%20Register%20issued%202010.pdf 78

See R. Long, Marine Resource Law, (Dublin, Thomson Round Hall, 2007), pp. 604-612.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Whaling Irish law on whaling was influenced by the ratification by Ireland of a number of international agreements on the subject in the 1930s and 1940s.79 Today, the law on whaling is well settled in so far as commercial whaling was prohibited in Ireland as far back as 1937.80 More recently, Ireland ratified the 1946 International Convention for the Regulation of Whaling in 1985 and has since played an active part in the work of the International Whaling Commission (IWC).81 The latter organisation is vested with important functions concerning conservation and management of whale stocks at a global level. Since ratification of the 1946 Convention, Irish foreign policy on whaling has supported the IWC moratorium on commercial whaling. In particular, Ireland has consistently opposed Japan’s scientific whaling programme, both at meetings of the IWC and by the Minister of Foreign Affairs working through diplomatic channels.82 Thus, for example, Ireland was one of 40 countries that voted in favour and passed an IWC Resolution in 2007 calling on Japan, inter alia, to ‘suspend the lethal aspects of its scientific whaling programme indefinitely’ conducted within the Southern Ocean Whale Sanctuary.83 At the IWC, Ireland is clearly aligned with the anti-whaling states in the ongoing controversy surrounding scientific whaling. The current Commissioner from Ireland to the IWC, Mr. John Fitzgerald, attended the 61st and 62nd Annual Meeting of the IWC, which took place in Madeira and in Morocco in June 2009 and 2010 respectively.84 At the 61st Meeting, Ireland associated itself with the concerns voiced by New Zealand and others regarding Japan’s whaling under special permit and

79

International Convention for the Regulation of Whaling, Geneva, 24 September, 1931. Irish Treaty Series No 2 of 1938; International Agreement for the Regulation of Whaling (with Final Act of the Conference) London, 8 June, 1937, Irish Treaty Series No 3 of 1938; Protocol to the International Agreement of 8 June, 1937, for the Regulation of Whaling, London, 24 June, 1938. Irish Treaty Series No 3 of 1940. 80

Whale Fisheries Act 1937, No.4 of 1937.

81

Entered into force with respect to Ireland on 2 January 1985. Irish Treaty Series 2010 No.21.

82

See written Answer by the Minister for Foreign Affairs to question 31750/07 on Whale Conservation, 29 November 2007. Dáil Eireann Debates Vol. 642 No. 5. 83

Ibid. See Resolution 2007-1, 59th IWC Annual Meeting, Anchorage USA, 2007.

84

Annex A of the Chair’s Report of the 61st and 62nd Annual Meetings of the International Whaling Commission (IWC). Available at: http://iwcoffice.org/_documents/meetings/madeira/ChairsReport2009.pdf; and at http://iwcoffice.org/_documents/meetings/agadir/ChairsReportWeb.pdf.

270

CORRESPONDENT REPORTS

recorded their opposition to such programmes.85 During the course of deliberations on the work of the Scientific Committee on small cetaceans, Ireland expressed disquiet regarding the take by Japan of Dall’s porpoise, which is a species of small porpoise found in the North Pacific. Moreover, both Finland and Ireland requested information from Japan regarding the implementation of the new method of ‘potential biological removal’ for setting catch limits for such species.86 Ireland also sought clarification regarding the progress that had been made since the previous year with respect to reducing direct takes of the boto in Brazil, Colombia, Peru, and Venezuela. Boto is the Portuguese name given to a river dolphin found in the Amazon and in South America. Ireland’s policy on commercial whaling is further complicated by the evolving nature of EU’s policy on this matter. The EU has observer status at the IWC and is not party to the 1946 Convention. Conversely, twenty-three Member States are party to the 1946 Convention. At its March 2009 meeting, the EU Environment Council adopted a decision establishing the position to be adopted on behalf of the EU at three annual meetings of the IWC between 2009 and 2011.87

A brief glance at the

substance of this decision reveals that the EU supports the current moratorium on commercial whaling, but could support proposals for the management of aboriginal subsistence whaling, provided certain conditions were fulfilled. The overarching objective of EU in relation to the IWC is to ensure an effective international regulatory framework for the conservation and management of whales. Following on from this and during the course of the debate on the ‘Future of the IWC’ at the 62nd Annual Meeting, Ireland supported the EU position and emphasised the importance of the role of the organisation as the world’s foremost authority on the conservation and management of whales.88 Moreover, while

85

See Chair’s Report of the 61st Annual Meeting of the International Whaling Commission (IWC) available at: http://iwcoffice.org/_documents/meetings/madeira/ChairsReport2009.pdf. 86

ibid.

87

EU Council Decision 7146/09 of 3 March 2009 establishing the position to be adopted on behalf of the European Community at the next three annual meetings and the related inter-sessional meetings of the International Whaling Commission with regard to proposals for amendments to the International Convention on the Regulation of Whaling and its Schedule. 88

Chair’s Report of the 62nd Annual Meeting of the International Whaling Commission (IWC) available at: http://iwcoffice.org/_documents/meetings/agadir/ChairsReportWeb.pdf.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

acknowledging the divergent viewpoints of the Contracting Parties on some of the principal conservation issues, Ireland pointed out that there was a greatly increased level of international understanding on how to deal with current challenges faced by the IWC. The Chair’s Report on the 62nd Annual Meeting records that Ireland drew attention to a number of important matters facing the organisation including trade, catch limits, sanctuaries, conservation, as well as the emerging threats to cetaceans.89 Italy supported Ireland’s statement on the future of the IWC.90 On the issue of small cetaceans, Ireland supported the view expressed by Switzerland that all cetaceans come within the remit of the IWC, or in the words of the report on the session: ‘all cetaceans fall under the application of the IWC.’91

Offshore oil and gas A protracted dispute has persisted in Ireland over the development of the Corrib gas field on the north-west coast of Ireland. One of the issues that arose during the course of a number of technical studies on the Corrib field development was concerns regarding responsibility for the safety of offshore pipelines and for policing the conditions under which safety related consents are granted by licensing bodies. The Petroleum (Exploration and Extraction) Safety Act 2010 addresses these concerns in primary legislation and confers statutory responsibility for the safety of petroleum exploration and production on the Commission for Energy Regulation and thus brings about important changes of the law pertaining to exploration and exploitation of offshore hydrocarbons.

This in turn necessitated the amendment of a whole raft of

statutes that regulate offshore activities.92 Although the enactment of the Petroleum (Exploration and Extraction) Safety Act 2010 was principally driven by concerns regarding the safety measures that apply to downstream gas pipelines, this instrument

89

ibid.at p.9.

90

ibid.

91

ibid.p.27.

92

These include the Continental Shelf Act 1968 1968, (No. 14 of 1968); the Electricity Regulation Act 1999, (No. 23 of 1999); the Foreshore Act 1933 (No. 12 of 1933); the Gas Act 1976 (No. 30 of 1976); the Petroleum and Other Minerals Development Act 1960 (No. 7 of 1960); and Sea-Fisheries and Maritime Jurisdiction Act 2006 2006, (No. 8 of 2006).

272

CORRESPONDENT REPORTS

is nonetheless particularly timely in view of the difficulties previously mentioned surrounding the Deepwater Horizon incident in the Gulf of Mexico. New terms governing offshore hydrocarbon development were issued by the Irish government in 2007.93

The revised terms were informed by an expert report

published the same year and this brings about some major changes to the consents that apply to exploration and extraction activities.94 In a further significant move for offshore exploration, a frontier exploration licence was issued in the Rockall Licensing Round in 2009. Extended continental shelf claims As is well known, Ireland has an extensive continental shelf and has made a number of submissions to the United Commission on the Limits of the Continental Shelf. The latter is the international body mandated to consider the scientific and technical data submitted by coastal States and to make recommendations in accordance with Article 76 of the 1982 Law of the Sea Convention as to where those limits extend beyond 200 nautical miles measures from the baselines.

95

The Commission is made up of

scientific and technical experts in a number of fields including geology, geophysics, and hydrography. In 2007, Mr. Peter Croker, who works with the Petroleum Affairs Division at the Department of Communications, Energy and Natural Resources, was re-elected as a member of the Commission for a term of five years from 2007 to 2012. Ireland’s submissions to the Commission are followed closely by States Parties and indeed non-parties to the 1982 Law of the Sea Convention. Only a brief overview can be provided here. The first submission made by Ireland relates to a sector of the continental shelf that is to an area that is commonly known by its scientific name as the Porcupine Abyssal Plain. This sector (which is approximately half the size of the State’s land territory) is not disputed by any other country, and the Commission adopted and issued its recommendations concerning the limits of this

93

Licensing Terms For Offshore Oil And Gas Exploration, Development & Production 2007.

94

Report prepared for the Department of Communications, Marine and Natural Resources, Indecon International Economic Consultants in association with London Economics, Expert Advice on Review of Irish Petroleum E&P Licensing Terms (Indecon, 2007). 95

Article 3, Annex II, 1982 United Nations Convention on the Law of the Sea.

273

THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

area in 2007 by a vote of 14 votes to 2, with 2 abstentions.96 As pointed out subsequently by the Minister for Foreign Affairs in the Dáil, the Irish Government accepted these recommendations and work commenced to designate in domestic law the additional seabed enclosed by these limits as continental shelf belonging to the State.97 In 2009 the Government extended the State's continental shelf into the area abutting the Porcupine Abyssal Plain in accordance with the Commission’s recommendations in 2007. This is achieved by means of the Continental Shelf (Designated Areas) Order 2009, which provides that this is an area within which the rights of the State to explore and exploit the natural resources of the seabed and subsoil of the continental shelf may be exercised.98 The geographical coordinates of this area were deposited with the Secretary-General of the United Nations.99 At the time of writing, Ireland has yet to bring forward legislation, which will implement the requirements set down in the 1982 Law of the Sea Convention, concerning the payments and contributions with respect to the exploitation of the continental shelf beyond 200 miles.100 The second sector of Ireland’s continental shelf claim is more complex and relates to a large area in the Celtic Sea and the Bay of Biscay. In an innovative move, this area was the subject of a joint-submission made by Ireland, the UK, France, and Spain in May 2006. This was the first joint submission received by the Commission and established an important precedent that has been followed by several other states worldwide.101

Again the area covered by the joint-submission is extensive and

amounts to approximately 80,000 square kilometres, which equates to an area that is slightly larger than Ireland’s land territory. In March 2007, the Commission adopted a recommendation on this submission, which again was the first recommendation on a

96

CLCS 54, Nineteenth-session, New York, 5 March-13 April 2007.

97

Dáil Debates Vol. 649, 11 March 2008

98

S.I. No 163 of 2009.

99

Article 16 of the 1982 United Nations Convention on the Law of the Sea. For the exact coordinates, see: www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/irl_mnz73_2009.pdf 100

Article 82 of the 1982 United Nations Convention on the Law of the Sea.

101

See, for example joint submission by Mauritius and the Republic of Seychelles on the 1 December 2008 and the subsequent recommendation by the Commission on 30 March 2011.

274

CORRESPONDENT REPORTS

joint-submission made by States Parties to the 1982 Law of the Sea Convention.102 Negotiations on the division of this area between the four coastal States were scheduled to commence in 2010. In March 2009, Ireland made a submission to the Commission in relation to the Hatton-Rockall Area of the North-East Atlantic. This submission is far more controversial than the previous two as it relates to an area that is disputed by both Iceland and Denmark (on behalf of the Færoe Islands). Moreover, Ireland and the United Kingdom reached agreement on a bilateral delimitation of the continental shelf in 1998.103 This bilateral boundary agreement has not been accepted by Denmark (in relation the Faroes), or indeed Iceland. Over the past ten years or so, the four countries have tried to resolve their differences by means of negotiation but thus far have been unable to do so. Although the details of the submission had been communicated previously by Ireland to Denmark, Iceland, and the United Kingdom, the limits in the disputed area cannot be considered by the Commission without the consent of all the countries concerned. On the 27 May 2009, the Secretary-General of the United Nations had received note verbale from both Iceland and Denmark outlining their concerns and the Commission subsequently decided to defer further consideration of the submission in line with the applicable provisions of their rules of procedure and with a view to taking into consideration any further developments that might occur during the intervening period. Instructively, the Minister for Foreign Affairs expressed the view in the Dáil that Ireland’s submission at this particular time ‘stops the clock on the deadline and preserves Ireland’s legal position.’104 Moreover, he also expressed the view that the four states intended to keep the matter under regular review and would ‘continue to work for the creation of conditions that will permit consideration of the submission by the Commission as soon as possible.’105

102

CLCS/64 - Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Twenty-fourth session, 103

Irish Treaty Series No 1 of 1990. Entered into force in relation to Ireland on 11 January 1990.

104

Written Answer to Dáil Question 9997/10, 2 March 2010.

105

ibid.

275

THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Underwater cultural heritage With one of the richest stores of underwater cultural heritage in the world, the progressive development of international law on this subject is of undisputed importance for Ireland. At a domestic level, there have been a number of important decisions of the Superior Courts on offshore wreck. In 2007, the Supreme Court handed down its long awaited decision on the licenses sought by Mr. Bemis under the National Monuments Acts in relation to the Lusitania, which was torpedoed by a German submarine in 1915 and whose wreck remains on or in the seabed, several miles south of the Old Head of Kinsale in Co. Cork.106 This judgment appears to bring to a close a set of legal proceedings that deserve a book in their own right. As far back as 1996, the High Court had ruled that Mr. Bemis was ‘the sole and exclusive owner of all rights, title and interest in the R.M.S. ‘Lusitania,’ her hull, tackle, appurtenances, engines and apparel’ and that he was entitled to a declaration of title in those terms.107 This accorded with previous decisions of the United States Federal District Court for the Eastern District of Virginia and the Queens Bench Division (Admiralty) in England.108 Since the conclusion of the legal proceedings in the Irish courts, there have been several newspaper reports of the recovery of a number of artefacts from the wreck including part of the ship’s telegraphy.109 In light of the wealth of historical wreck and other material on the seabed, it is surprising to note that Ireland has not yet ratified the UNESCO Convention on the Protection of the Underwater Cultural Heritage, despite playing a significant role in its conclusion in 2001.110 Over the past decade, the 2001 Convention has been ratified by 40 countries including three EU Member States (Spain, Portugal, and Italy) and entered into force on 1 January 2009.111

This omission is all the more

106

Bemis v. Minister for Arts, Heritage, Gaeltacht and the Islands & anor [2007] IESC 10, [2007] 3 IR 255.

107

Bemis v. Owners of R.M.S. ‘Lusitania’ [1996] IEHC 2.

108

F. Gregg Bemis Junior v The R.M.S ‘Lusitania’ United States Federal District Court for the Eastern District of Virginia, Norfolk Division, judgment 18 April 1995; and Pierce and Another v. Bemis and Others, The Lusitania [1986] 1.A.E.R. 1011. 109

Irish Times, 23 August 2011.

110

See R. Long, Marine Resource Law, (Dublin, Thomson Round Hall, 2007), pp.534-541.

111

For the States that have ratified, see: http://portal.unesco.org/la/convention.asp?KO=13520&language=E&order=alpha#1

276

CORRESPONDENT REPORTS

remarkable in view of the fact that the Minister for Arts, Heritage and the Gaeltacht indicated in the Dáil that ratification of the UNESCO Convention was under consideration in 2002.112 At the time of writing, there appears to have been no move to make this a reality in the intervening years.

Driftnet fishing The global moratorium on large-scale pelagic driftnet fishing on the high seas has led to several United Nations General Assembly Resolutions on the subject and to extensive state practice to implement the ban worldwide.113 In parallel with these developments, driftnet fishing has been the subject of protracted litigation in the Irish Courts since a prohibition on the use of this type of gear for tuna fishing was first introduced on a regional basis by the European Community in 1998.114 In Browne v Ireland, the Supreme Court accepted that the relevant EU regulation which prohibited the use of driftnets by vessels of Member State within their exclusive fishing limits or on the high seas was directly applicable to the State to the same extent as if it were an Act of the Oireachtas (the Irish Parliament), and in the circumstances the Minister was empowered by s.3 of the European Communities Act of 1972 to make regulations for that purpose.115 More recently, an application on the part of the Attorney-General and several government departments to dismiss a claim for compensation by a group of fishermen who were owners or part-owners of fishing vessels involved in driftnet fishing for tuna prior to the prohibition on driftnets failed in the High Court.116 This claim had its origin in a compensation package which arose ‘on the margins’ of a European Council of Fisheries Ministers in 1998 as a means to alleviate the hardship that tuna fishermen would suffer as a consequence of the driftnet prohibition.

112

Replies to Dáil Questions Nos. 253 to 255, 7235/02, 27 February 2002.

113

UNGA Resolutions 44/225, 45/197 and 46/215.

114

Council Regulation (EC) No. 1239/98 of 8 June, 1998, OJ L 171/1, 17.6.1998.

115

[2003] 3 I.R. 205

116

Thomas Kennedy, Michael Murphy, Michael Hennessy, O'Mathuna (Baid) Teoranta, Vincent Browne, John O'Donnell, Paul Flannery, John Graham, Kieran O'Driscoll, Donal Healy, Neil Minihane, Gerard Minihane and Peter Carlton v The Minister for Agriculture, Fisheries and Food, the Minister for Finance, Ireland and the Attorney General, High Court Unreported, 15 April 2011.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

From a normative perspective, there is little doubt but that Irish state practice on the use of large-scale driftnets is fully consistent with developments in both EU and international law. As an aside it should also be mentioned that a number of scholars have suggested that the prohibition on this type of gear is now established as a binding rule of customary international in view of the widespread level compliance with the General Assembly resolutions on the subject.117 Irish state practice appears to support this view.

Fisheries enforcement Ireland has significant fishery resources in sea areas under national jurisdiction and sovereignty. Similar to sea-fisheries in other Member States, these resources come within the scope of the European common fisheries policy.118 Nevertheless, it should not be forgotten that the 1982 Law of the Sea Convention attributes significant powers to the coastal State in relation to the adoption of laws and regulations to ensure that nationals of other States comply with the conservation and management measures that apply to fisheries resources in sea areas under the sovereignty and jurisdiction of the coastal State.119 These prescriptive powers facilitate the boarding, inspection, arrest and the institution of judicial proceedings to ensure compliance with fisheries conservation and management measures.120 In Ireland, the fisheries enforcement task is undertaken by the Naval Service working in conjunction with the Sea Fisheries Protection Agency and An Garda Síochána (the Irish Police Force). More specifically, the Naval Service is empowered under the Sea-Fisheries and Maritime Jurisdiction Act 2006 to board and inspect vessels and, when necessary, to formally detain vessels and direct them to port.121-. In the vast majority of cases, fisheries offences committed in sea areas under Ireland’s

117

See, inter alia: D. Rothwell & T. Stephens The International Law of the Sea (Oxford and Portland, Hart Publishing, 2010), p.312. 118

Case 804/79 Commission v United Kingdom [1981] E.C.R. 1045.

119

Art 62 of the 1982 UNCLOS.

120

Art 72 of the 1982 UNCLOS.

121

No.8 of 2006.

278

CORRESPONDENT REPORTS

sovereignty and jurisdiction relate to non-compliance with the rules underpinning the common fisheries policy. The task of fisheries enforcement at sea is an onerous one and the record of achievement by the Irish enforcement authorities during the report period speaks for itself. In 2009, for example, the Naval Service carried out 1,841 inspections at sea of vessels of twelve nationalities (Ireland, Spain, the United Kingdom, France, Belgium, Germany, the Netherlands, Russia, Norway, Denmark, (Faroes), Portugal and Iceland.122 These boarding resulted in the detention of 15 fishing vessels (see Table 1 below). The following year, the Naval Service carried out 1,684 inspections at sea of vessels of the various nationalities that are shown in Table 1.123 These inspections resulted in the detention of eight fishing vessels flying the flags of Ireland, Spain, and the United Kingdom. Overall, it appears that the enforcement task is implemented in a relatively even-handed manner in so far as 826 vessels registered in Ireland were inspected in 2010 and this resulted in the detention of 3 vessels.

If the trends for the two

consecutive years of 2009 and 2010 are compared then there is slight drop in the number of vessels detained from 15 down to 8. Apart from Irish vessels, a considerable effort is undertaken to inspect the activities of vessels flying the flag of Spain with a total of 436 inspections recorded in 2010. This level of enforcement effort is a reflection of the large number of Spanish flagged that have access to Ireland EEZ under the common fisheries policy. The level of compliance in 2009 and 2010 by these vessels appears to be good with only one detention in 2009 followed by three detentions in 2010.

122

Dáil Éireann Debate Vol. 741 No. 1, Question 25204/11, 21 September 2011.

123

ibid.

279

THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Table 1: Nationality of fishing vessels boarded by the Naval Service in 2010.124

Nationality

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

2010 2010 2010 2010 2010 2010 2010 2010 2010 2010 2010 2010

Total

Irish

100

84

58

44

72

111

58

111

106

25

37

20

826

Spanish

12

22

20

58

28

20

16

95

70

59

8

31

439

UK

14

8

6

18

17

23

8

13

21

11

3

9

151

French

13

19

15

25

17

25

9

41

21

7

7

5

204

Belgian

1

3

0

4

1

2

2

0

0

1

0

3

17

German

2

0

0

0

1

0

0

0

1

0

0

2

6

Netherlands

3

2

0

7

2

0

0

0

0

0

1

3

18

Russian

0

0

5

0

0

0

0

0

0

0

0

0

5

Norwegian

0

1

0

0

0

0

0

0

1

0

0

0

2

Faroes

0

0

2

0

0

0

0

0

0

0

0

0

2

Portugal

0

1

0

0

1

0

1

1

0

0

0

0

4

Denmark

2

2

0

0

0

0

0

1

1

2

0

0

8

Iceland

0

0

1

0

0

0

0

0

1

0

0

0

2

Total

147

142

107

156

139

181

94

262

222

105

56

73

1,684

124

ibid.

280

CORRESPONDENT REPORTS

Table 2: Fishing Vessels Detained by the Naval Service in 2009 and 2010. 125 Nationality

2009

2010

Total

Irish

4

3

7

Spanish

1

3

4

UK

5

2

7

French

5

0

5

Total

15

8

23

Marine scientific research Ireland has made a major investment in marine scientific research infrastructure over the past two decades. In 2009, the Dáil Committee of Public Accounts was informed that the State had spent upwards of €31.5 million to build an offshore research vessel, the Celtic Explorer, and a further €40 million in building specialist research facilities for the Marine Institute at Oranmore, County Galway.126 The same report records that the Marine Institute employed 147 people and had an annual budget of €40 million in 2005.127 Among its diverse portfolio of scientific activities, the Marine Institute is implementing Sea Change: A Marine Knowledge, Research & Innovation Strategy for Ireland 2007-2013 which is aimed at fostering greater development of the maritime sector at national and regional levels. In 2010, the Celtic Explorer undertook a number of foreign research cruises to the North Sea, Eastern Canadian waters, as well as to the Atlantic Continental Margin to undertake a broad range of research activities including research on fisheries, vents

125

ibid.

126

Dáil Committee of Public Accounts reviewed Chapter 8 of the Marine Institute. Marine Institute Annual Report and Financial Statements 2006, 12 February 2009. 127

ibid.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

and reefs, climate change, oceanography, biogeochemistry, geophysics, geology, as well as a number of cruises which were focused on bio-discovery and deep-ocean ecosystems.128

The previous year, there were a number of noteworthy research

cruises including a multidisciplinary investigation of marine ecosystems in the Atlantic and the Bay of Biscay which was led by one of Ireland’s leading deep-water marine scientists, Dr. Anthony Grehan, from the National University of Ireland Galway. Much of the research activity in sea areas under Ireland’s sovereignty and jurisdiction is undertaken by foreign flagged research vessels and up to 50 of such vessels may undertake marine scientific research programmes in any year. That said, the number of visits of foreign research vessels has decreased steadily since the 1990s but remains relatively high at a comparative level is compared to visits elsewhere in Europe.129 Briefly stated, the scheme implemented by Ireland for administering the activities of foreign research vessels accords with both the letter and spirit of Part XIII of the 1982 Law of the Sea Convention.130 One noteworthy development in the law in Ireland is that there are special regulatory requirements and a code or practice governing research in a number of areas that have been designated for special protection under the Habitats Directive.131 As a general rule, foreign applicants must apply at least 6 months in advance of the proposed research activity in sea areas Ireland’s jurisdiction. The summary details published by the Marine Institute reveals that Ireland received in total 25 applications from foreign research vessels in 2010 relating to research cruises to be undertaken in 2011. 132 This figure is made-up of 14 applications from the United Kingdom, 1 from Russia, 2 from Norway, 5 from the Netherlands, 2 from France and 1 from Spain.133 In addition, it also appears from the information published by the Marine Institute that an Irish scientific observer was

128

www.marine.ie

129

R. Long, Marine Resource Law, (Dublin, Thomson Round Hall, 2007), pp.684-724.

130

ibid.

131

National Parks and Wildlife Service, Code of Practice for Marine Scientific Research at Irish Coral Reef Special Areas of Conservation. Available at: www.npws.ie/licences/educationandscience/marinescientificresearch/ 132

See: www.marine.ie/home/services/surveys/foreignvessels/home.htm

133

ibid.

282

CORRESPONDENT REPORTS

embarked on eleven of the foreign research vessels.134

The range of research

activities varied considerably included fisheries research, climate change research, as well as various benthic related studies.

Academic activities There were a number of academic activities relating to the Law of the Sea during the report period. More specifically, the Law School at Trinity College Dublin hosted a conference which focused on current and problematic Issues in the Law of the Sea in June 2010.135 The School of Law at the National University of Ireland hosted two research fellows from Mozambique and Sierra Leone under the United Nations Nippon Foundation Fellowship Programme in 2009 and 2010. They worked on legal aspects of integrated ocean management and on fisheries management pertaining to their home states respectively. The establishment by University College Cork, the Cork Institute of Technology, and the Irish Naval Service of a Maritime and Energy Research Campus and Commercial Cluster in Cork (referred to as ‘MERC3’) is one of the most significant developments in maritime research and education since the foundation of the State. This initiative bodes well for the future of inter-disciplinary research and maritime commercial development in Ireland.

European research projects There are several European research projects underway. Special mention needs to be made of the ‘ODEMM Project’ which is aimed at developing a set of ecosystem management options that will help deliver some of the objectives of the Marine Strategy Framework Directive, the Habitats Directive, the European Commission Blue Book and the Guidelines for the Integrated Approach to Maritime Policy. The project is coordinated by the University of Liverpool and brings together a high quality inter-disciplinary team of scientists, economists and lawyers. The current

134

ibid.

135

C. R. Symmons, Selected Contemporary Issues in the Law of the Sea (The Hague, Martinus Nijhoff Publishers 2011).

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

author is tasked with undertaking a comprehensive review of the law and policy constraints and various policy options for implementing the ecosystem-approach at the European regional seas levels.136

136

R. Long, ‘Legal Aspects of Ecosystem-based Marine Management in Europe’ in A. Chircop, M. L. McConnell, S. Coffen-Smout (ed.), OCEAN YEARBOOK Vol. 26, (Boston/Leiden, Brill Academic Publishers, c. April 2012) 59.

284

CORRESPONDENT REPORTS

IRELAND AND THE EUROPEAN UNION: 2009-2010

Stephen Coutts (European University Institute)

2009 and 2010 have been, by any standards, momentous years in the history of Irish relations with the European Union. Ireland was the location for an important episode in the saga of institutional reform that began with the Convention on the Future of Europe, continued with the ill-fated Treaty Establishing a Constitution for Europe and ended with the final entry into force of the Treaty of Lisbon. The Irish public initially rejected the Treaty. It was eventually passed following a re-run of the referendum (Lisbon II) on the Treaty in 2009, this time with a series of legal guarantees designed to address the perceived concerns of the Irish electorate. Of course one can never step into the same river twice and Lisbon II took place in dramatically altered political and, above all, economic conditions. As the worst financial crisis since the 1920s progressed, Ireland found itself particularly exposed. Ireland’s membership of the Eurozone has overshadowed almost every aspect of the State’s response to the economic crisis. The State’s response ultimately culminated in the seeking of financial assistance from the EU and IMF, earning Ireland the dubious distinction of being the second ‘program’ country after Greece and the first to fall within the specific EU aid package.

Aside from these historic events the importance of EU law in Ireland has continued to be demonstrated by regular appearances in infringement actions before the Court of Justice and in references from Irish courts. Newsworthy cases include those involving the longstanding differences between Ryanair and Aer Lingus and Ireland’s failure to comply with EU environmental law.1 Of particular note from a constitutional

1

‘McGrath: Septic tank charges would prompt 'civil unrest', Irish Examiner (Cork 1 December 2011)

available at www.irishexaminer.com/breakingnews/ireland/mcgrath-septic-tank-charges-wouldprompt-civil-unrest-530537.html.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

perspective is the interesting judgment of the Court of Justice in JMcB v L (discussed below) touching as it does on the sometimes thorny issue of Irish family law and fathers’ rights in particular.

Lisbon Treaty A referendum to adopt the Treaty of Lisbon was held on 12 June 2008 and was rejected by 53.4% of the votes cast.2 Following a number of ‘guarantees’ in various forms and of uncertain legal nature, the Treaty was again put before the Irish people on 2 October 2009. This time, the electorate voted in favour of ratification of the Treaty. A more vigorous campaign on behalf of the ‘Yes’ side, the disintegration of one of the main anti-Treaty organizations,3 changes in the broadcasting rules regarding referendum coverage4 and, above all, the sharp downturn in the Irish economy no doubt all contributed to this change in public opinion. The legal response to the referendum defeat consisted of a special package designed to address the perceived concerns of the Irish people.5 This arrangement consisted of four parts; a set of conclusions and three attached annexes.

The conclusions outlined the broad elements of the solution. In the event of the Treaty of Lisbon entering into force, a decision would be made to maintain the then composition of the European Commission at one Commissioner per Member state. Additional measures to address the concerns of the Irish people included the adoption of a ‘Decision’ clarifying the scope of the Treaty on the rights to life and education, taxation, and neutrality and defence policies (Annex 1); a solemn

2

An estimated 53.13% of the electorate voted in the referendum.

3

Libertas, set up specifically to campaign against ratification in the first referendum, contested the 2009 European Parliament elections. It failed to win a single seat in Ireland and subsequently disbanded. 4

Following guidelines issued in 2009, broadcasters were obliged to be fair, objective and impartial in their coverage of the referendum campaign but were not required to provide for an absolute equality of airtime to both sides: Broadcasting Commission of Ireland, Guidelines in respect of coverage of the referendum on the Treaty of Lisbon and related constitutional amendments (Dublin: 2009). 5 See the Conclusions of the European Council Meeting of June 2009, Brussels European Council Meeting 18/19 June 2009, Presidency Conclusions, doc. 11225/1/09 REV 1.

286

CORRESPONDENT REPORTS

declaration on workers’ rights and social policy (Annex 2); and a unilateral ‘National Declaration by the Irish government’ on issues of neutrality and defence to be attached to the instruments of ratification (Annex 3).

Legal Nature of the Guarantees The package agreed by the European Council consists of a number of different agreements and acts which vary in their nature and legal effect. Within the conclusions two undertakings can be identified, to adopt a decision to modify the composition of the Commission and to attach a protocol to a future accession Treaty. At the same time the annexes to the conclusion contain a self declared ‘legally binding decision’ and two declarations, one by the European Council and one a unilateral declaration by Ireland.

By virtue of their inherently political nature conclusions issued by the Council Presidency at the end of its meetings are generally not considered legally binding acts. However the undertaking contained in the Conclusions to take a decision to modify the composition of the Commission is a clear and precise commitment that instructs the European Council to exercise its discretion in a particular fashion. As such there is at least an arguable case that it would be a legally binding decision within the meaning of Article 267 TFEU, thereby imposing an obligation on the European Council to act within the meaning of Article 265 TFEU.

The undertaking to attach Annex 1 as a protocol to the next Accession treaty is of a different nature. Unlike the undertaking to modify the composition of the Commission, the undertaking in relation to the future protocol has not been made by European Council as such but rather by the heads of state or government acting within the framework of the European Council. The commitment is therefore best characterised as the Member States binding themselves as constituent powers of the European Union to modify the Treaties at the next opportunity. It is likely therefore to escape the jurisdiction of the Court of Justice and would fall to be considered under the general rules of international law.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Similarly, the decision contained in Annex 1 is not a decision of the European Council itself but rather the individual Heads of Governments or States acting collectively. As such it is an agreement between individual states and its precise legal nature falls to be considered under international law. However, whereas formally the act itself would not fall within the scope of the preliminary reference procedure, which is limited to the interpretation of the EU Treaties or secondary law, any interpretation of the EU Treaties or secondary law in light of the decision would fall within the scope of Article 267 TFEU thereby leading to an indirect jurisdiction on behalf of the Court of Justice.

In the likely event that the decision contained in Annex 1 is attached as a protocol it will have the same legal value as the Treaties themselves. However, given that protocols on specific positions of Member States are usually designed to provide derogations from current EU law (or its future development) and that the decision contained in Annex 1 explicitly provides that it is compatible with the main Treaty, thereby not providing any form of exemption or derogation, it is to some extent devoid of legal purpose.

Declarations are attached to international treaties to act as interpretive aids to the main treaties. However the declarations by both the European Council and Ireland merely confirm and recall—but don’t explain or clarify—provisions in the Treaties. If incompatible with the main treaty, declarations may, in exceptional circumstances, be considered reservations if permitted by the main Treaty itself. However it has been considered that, given the constitutional nature of the EU legal order, amending Treaties (such as the Treaty of Lisbon) are not susceptible to reservation via declarations.6 The use of protocols to manage derogations for individual Member States appears to confirm this point of view. In any case the value of the two

6

Ibid.

288

CORRESPONDENT REPORTS

declarations as reservations is somewhat diminished by their explicit claim of conformity with the Treaties themselves.7

The exact legal nature of the various acts contained in the package of guarantees designed to secure the passage of the Lisbon Treaty is open to interpretation, their legal effect doubtful and the ability to enforce them under either European or general international law uncertain. Aside from the question of the legal nature and enforceability of these measures, it is worth considering what the substance of these various instruments could add to European law and in particular to the relationship between Irish law and European law.

Substance of the Guarantees The European Council has agreed to issue a decision maintaining the current size of the Commission. 8 This decision will bring about a significant change in the intended composition of the Commission post-Lisbon and touches on issues going to the very nature of the Commission as an institution. As Commissioners do not exercise a representative function on behalf of their national governments per se it could be claimed that the ‘one member state – one commissioner formula’ was unnecessary. The Treaties of Nice and Lisbon therefore favoured a smaller and more efficient Commission.9 The decision to maintain the current composition of the Commission

7

Ibid.

8

Under the Treaty of Lisbon the number of Commissioners is to be reduced to a number corresponding to two thirds of the number of Member States. This arrangement can be altered by a unanimous decision of the European Council. See Article 17(5) TEU. 9

This is of course a simplistic analysis. The Commission has always been the ‘Community’ institution par excellence and there has never been any serious doubt about its role in pursuing the Community (now Union) interest. However, and compatible with this position, there are strong arguments in favour of having a Commissioner from each member state present in the college. It enables the Commission to have a more nuanced and informed perspective on the situations in different Member States and of how policies and regulations may affect particular Member States leading to a better overall policy. Additionally the presence of a Commissioner from every state and particularly smaller Member States could be said to affect the legitimacy of the Commission and make its actions more acceptable to various Member States. See J. Temple Lang and E. Gallagher, ‘The Commission, the "Community Method," and the Smaller Member States,’ (2005) 29 Fordham International Law Journal 1009.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

ensuring one Commissioner per member state will reverse this institutional choice and represents a significant concession obtained by Ireland.10

The other guarantees obtained by Ireland will have a less tangible legal impact. The ‘Decision of the Heads of State or Government of the 27 Member States of the EU’, attached to the Conclusions as Annex 1, contains the main body of guarantees. It is intended to provide assurances in relation to some of Ireland’s more sensitive constitutional values and policy choices. Section A provides that nothing in the Treaty of Lisbon would affect the provisions in the Irish constitution in relation to the right to life, education or the family. While the Charter does indeed include protection of the right to life, the exact stage of human development at which that right begins is not specified. More importantly the Charter explicitly states that it does not expand the competences of the EU and does not grant the EU a general fundamental rights competence.11 Furthermore in the substantial policy that would most obviously affect Ireland’s abortion regime—health—the EU merely exercises a coordinating function12 and is explicitly denied powers to harmonise national legislation.13 It is also worth noting that Section A is in addition to a specific guarantee in relation to Article 40.3.3 of the Irish constitution enshrined in a protocol attached to the Treaties since the Treaty of Amsterdam.14

Similarly, the EU’s competence to intervene in family law matters is restricted to matters with cross-border implications, presumably jurisdictional in nature rather than substantive.15 Furthermore, Ireland enjoys an opt-out in relation to all matters

10

It must be said however that many Member States were probably privately happy with the outcome, retaining as they do their own ability to nominate a Commissioner at all times, a fact that no doubt helped the Irish government in winning this ‘concession’. 11

See Article 51 Charter of Fundamental Rights

12

See Article 6 TFEU.

13

Article 168(5) TFEU.

14

Protocol (No 35) on Article 40.3.3 of the Constitution of Ireland.

15

Article 81(3) TFEU.

290

CORRESPONDENT REPORTS

contained in Title V of the Treaty of the Functioning of the European Union, including family law matters (TFEU).16 Even if Ireland renounces its opt-out,17 legislation adopted under Article 81(3) TFEU requires unanimity. It is therefore highly unlikely that Ireland would be legally obliged to adopt measures in the area of family law against the wishes of its government. Similarly, in the area of education the EU’s competence is limited to coordinating national policies.18

Changes introduced by the Treaty of Lisbon and the Charter of Fundamental Rights would therefore be very unlikely to impact on Irish law in these areas. In reality, any challenges to these areas of the Irish constitution are far more likely to arise from the operation of the internal market. The free movement of services has already been employed in litigation to call into question Irish law in relation to the provision of information on abortion clinics19 and it is not beyond the bounds of possibility that the position on same-sex marriage could be affected by provisions on the free movement of persons or European citizenship.20 Indeed it is paradoxical that guarantees aimed at protecting the Irish constitutional position in relation to the right to life, family and education do not address those very areas of EU law most likely to affect the constitutional provisions in question.21

The remainder of the ‘Decision’ sought to address concerns relating to certain Irish policy choices, in particular taxation and defence. However the Treaty of Lisbon made no changes in relation to the competences of the EU in taxation matters. Powers

16

Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice. 17

ibid, Article 8.

18

Furthermore Article 14 of the Charter of Fundamental Rights explicitly confirms the right of parents to educate their children in conformity with their beliefs in accordance with national law. 19

Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, Case C-159/90, [1991] E.C.R.4685 20

Or at least the recognition of same-sex marriages contracted in other Member States.

21

S Marciali, ‘L’entrée en vigeur du Traité de Lisbonne et les guaranties accordées à l’Irlande et à la République tchéque’ (2010) Revue Trimestrielle de Droit Européen 885.

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in relation to both indirect22 and direct23 taxation were unchanged and require unanimity in order to be exercised. Section C of the decision on defence and security matters simply reiterates Articles 41 and 42 TEU and states broadly that security and defence are matters for each Member state to determine and that individual Member state policies in these areas, including Ireland’s traditional neutrality, are unaffected.

The ‘Solemn Declaration on Workers’ Rights, Social Policy and other issues’ made by the European Council contains a list of vague commitments and policy statements on matters ranging from workers’ rights, social justice, education and health. It adds nothing of legal substance to EU law in these areas. The ‘National Declaration by Ireland’ simply reflects Section C of the decision on security and defence matters and outlines Ireland’s traditional stance of neutrality. 24

The package designed to address the concerns of the Irish public is of an uncertain legal nature. The substance of the package, beyond the agreement to modify the size of the Commission, contributes very little to EU law or to the relationship between Irish law and EU law. This is perhaps a natural consequence of the particular circumstances of the agreement. After a torturous ratification process, first as the illfated Constitutional Treaty and then as the Treaty of Lisbon, Member States were all facing a serious case of reform fatigue. In this context it is highly unlikely that anything requiring re-negotiation and ratification of the Treaty would be contemplated. Happily the perceived concerns of the Irish people could be construed as stemming from a lack of information and a misunderstanding of the Treaty rather than with the substance of the Treaty itself. It was therefore thought that clarification rather than modification would suffice. The Irish government was nonetheless anxious to obtain guarantees it could hold up as meaningful, not least in a legal sense.

22

Article 113 TFEU

23

Article 115 TFEU

24

For an exhaustive treatment of the issues addressed in this section see S. Marciali, ‘L’entrée en vigeur du Traité de Lisbonne et les guaranties accordées à l’Irlande et à la République tchéque’ (2010) Revue Trimestrielle de Droit Européen 885.

292

CORRESPONDENT REPORTS

The result was a curious concoction of undertakings, decisions and promises confirming and recalling provisions of the Treaty but not modifying it. The paradox was completed by the stated aim of the guarantees to be legally binding while at the same time not affecting the substance of the Treaties.

The second referendum was held on the 23 October 2009. Of a turnout of 59%, 67.13% voted in favour. President McAleese duly signed the Twenty-Eighth Amendment of the Irish Constitution (Treaty of Lisbon) Bill 2009, the instruments of ratification were deposited in Rome on 23 October 2009 and the Treaty entered into force on 1 January 2010.25

The Bailout 2010 saw perhaps the most significant single event in the thirty-year relationship between Ireland and the EU: the program of financial assistance provided by the IMF and various European institutions to the Irish state. After a dramatic weakening of the Irish economy in 2008 and the collapse of the US investment firm Lehman Brothers in September of that year, the subsequent shocks throughout the global financial system exposed the weakness of the Irish banking sector. In an effort to generate confidence in the Irish banks the Government introduced a blanket guarantee in September 2008 effectively making the Irish state liable for all deposits and debts held by the Irish banks. As their losses and fundamental insolvency became apparent, the government was forced to spend billions of Euro in a series of bank recapitalisation schemes, nationalising several institutions and becoming a major shareholder in others. Meanwhile as the economy entered into a recession and unemployment soared, a sharp drop in government revenue and a rise in expenditure lead to a dramatic increase in the budget deficit. By the end of 2010 financial markets were beginning to doubt the ability of the Irish state to fund its growing debts and the interest rate demanded on debt issued by the Irish government began to climb to an unsustainable level.

25

For an overview of the changes introduced by the Treaty of Lisbon see C. Donnelly, ‘Ireland and the EU – 2007’ Irish Yearbook of International Law 2007, 133.

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On 21 November 2010, after a number of weeks of speculation, the Minister for Finance, Brian Lenihan, announced that he would recommend that the Irish government formally request a bailout package from the IMF and EU. A memorandum of understanding containing the broad outline of the package was published on 1 December. The assistance was formally approved by a decision of the Council of Ministers on the 7th of December.26 The total package was worth €85 billion of which €45 billion was to be provided by the European Union, €22.5 billion by the IMF and €17.5 billion from Ireland’s own financial resources. The stated goal of the program was to restore growth and financial health to the Irish economy and consisted of four elements: the downsizing and reorganisation of the banking sector, an ambitious plan of fiscal consolidation, reforms designed to facilitate renewed growth, and the use of substantial external financial assistance to support these policy objectives.27

The EU element of the package of €45 billion consisted of funds drawn from the European Financial Stability Facility (‘EFSF’:, a special purpose vehicle funded by Eurozone Member States), the European Financial Stability Mechanism (‘EFSM’: a fund established under EU law), and a series of bilateral loans between the Irish state and the United Kingdom, Sweden and Denmark.28 The bailout was therefore a

26

Council Implementing Decision 2011/77 of 7 December 2010 on granting Union financial assistance to Ireland, [2011], OJ L 30/54. 27

C. MacMaolain, ‘Ramifications of the EU/IMF Loan to Ireland for the Financial Services Sector and for Irish Law and Society’ (2011) 17 European Public Law 387, at394 28

The EFSM and the EFSF were part of a wider package announced by the Council of Ministers in May 2010 as a response to market fears that the troubles affecting the Greek economy could spread to other weak Eurozone states. That package involved the creation of a fund of up to €750 billion to provide assistance to distressed Eurozone Member States. The €750 billion consisted of €250 billion provided by the International Monetary Fund, €440 billion provided by Eurozone Member States via the EFSF, and €60 billion provided by the Union itself via the EFSM. Ireland was the first state to avail of these facilities, since followed by Portugal in May of 2011. The original financial assistance provided to Greece in May 2010 consisted of a series of bilateral loans coordinated by the European Commission.

294

CORRESPONDENT REPORTS

curious mixture of tools drawn from public international law, EU law and private company law.

The European Financial Stability Mechanism was created by means of a Council Regulation in May 2010.29 The mechanism allows the European Union, via the European Commission, to make credit available to a Member state of the Eurozone that, due to circumstances beyond its control, is experiencing severe financial difficulties or faces the threat of such difficulties. Following a decision on behalf of the Council, the Commission is to be authorised to borrow money on the financial markets to be made available to the Member state in question. Such aid is to be provided in the context of a broader EU/IMF package and is to be subject to conditions and periodic review by the European Commission. The amount that can be raised by the Union under this mechanism is capped at €60 billion.

The second, and far more significant, element of the EU’s response to the sovereign debt crisis is the European Financial Stability Facility. The EFSF is a special purpose vehicle taking the form of a limited liability company established under Luxembourg law and having its registered office in Luxembourg. The shareholders consist of the Member States of the Eurozone. Upon a formal request the EFSF is empowered to make loans available to a member state of the Eurozone. The funds for these loans are to be raised on the financial markets by the issuance of bonds that are guaranteed by the governments of the Eurozone. The EFSF therefore acts much like a credit enhancement vehicle.30 It is due to expire in June 2013, or when its last obligation has been fully repaid, whichever is latest. The activities of the EFSF and its role in any bailout are governed by a framework agreement between the EFSF and the Member States of the Eurozone.31

29

See Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European financial stabilisation mechanism, Official Journal [2010] L 118/ 1 30

See further S. Seyad, ‘A Legal Analysis of the European Financial Stability Mechanism’ (2011) 26(9) Journal of International Banking Law and Regulation 421. 31

Framework Agreement between the EFSF and the members of the Eurozone of 7 June 2010.

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The establishment of the various mechanisms designed to provide financial assistance to a Eurozone member is not without its legal difficulties. Two Treaty articles in particular are at issue. Article 125 TFEU, the so-called ‘no bailout’ article, expressly excludes the possibility of the Union or individual Member States assuming the liabilities of other Member States. At the same time Article 122(2) TFEU provides that the Union may provide aid to a member state that is facing severe difficulties, or the threat of such difficulties, caused by natural disasters or other circumstances outside its control.32

Three concerns in particular arose regarding the legality of the bailout mechanisms.33 Firstly concerns were raised that the schemes might fall foul of the ‘no bailout’ provision in Article 125 TFEU. A second concern related to the fact that the circumstances that lead to the granting of aid might be perceived as not in fact being outside the control of the states in question, as was required under Article 122(2). Furthermore the aid to be provided under Article 122(2) was to be limited to ‘exceptional’, i.e. temporary circumstances and could only be directed to a particular member state rather than the stability of the currency area as a whole.

In order to address these difficulties in December 2010 the European Council announced its intention to amend the Treaty by modifying Article 136 TFEU.34 The amendment would add a third paragraph to Article 136 TFEU allowing the Eurozone Member States to establish a stability mechanism to be activated in order to safeguard the stability of the euro area as a whole.35 The new section of Article 136 TFEU would therefore act as a limited exception to Article 125 TFEU and would avoid the

32

Article 122(2) TFEU

33

JV Louis, ‘Guest Editorial: The No Bailout Clause and Rescue Packages’ (2010) 47(4) Common Market Law Review 971. 34

Germany in particular was anxious to amend the Treaty following a constitutional challenge before its constitutional court. The challenge was rejected on 7 September 2011. See Press Release 37/2011 of the Federal Constitutional Court. 35

Conclusions of the European Council, 16-17 December 2010, EUCO 30/1/10 REV 1, Annex 1.

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CORRESPONDENT REPORTS

need to rely on Article 122(2) for future financial assistance programs. On the same date the European Council initiated the simplified revision procedure under Article 48 (6) TEU. After consultation with the relevant parties the decision to amend Article 136 TFEU was adopted in March 2011.36 It will enter into force once the decision is approved by Member States in accordance with their constitutional procedures.37 The intention was that it would enter into force on 1 January 2013. In the meantime a European Stability Mechanism shall be established by a separate international treaty and will replace the EFSF and EFSM in 2013.38

Ireland before the Community Courts As well as engaging with the institutions of the European Union in the extraordinary circumstances of the bailout, Ireland of course continued to engage with the Union in the ordinary way, including appearing before the Community Courts particularly in relation to environmental law, taxation, competition law and fundamental rights.

36

See European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty

on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (OJ [2011] L91/1. 37

Given that the amendment does not alter ‘the essential scope or objectives’ of the Union it is unlikely

that the above amendment will entail a referendum in Ireland under the test outlined by the Irish Supreme Court in Crotty v. An Taoiseach [1987] IR 713. EMU has been a core objective of the EU since the Treaty of Maastrict. Furthermore the simplified revision procedure provided for in Article 46TEU may not be used to increase the competences of the Union. See G. Barrett, ‘The Treaty Amendment on the European Stability Mechanism: Does it Require a Referendum in Ireland?’ (2011) 29 Irish Law Times 152. 38

On the same date, the European Council announced its intention to create a permanent facility in the form of an international organisation established by a separate treaty under public international law, the European Stability Mechanism (‘ESM’). The Treaty establishing the ESM was signed on 11 July 2011. The Treaty is due to be ratified by Eurozone Member States by 31 December 2012. The ESM is due to take over from the EFSF on 13 July 2013.

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Septic Tanks (Case C-188/08)39 In October of 2009 Ireland was found to have breached its obligations under Directive 75/442/EC, requiring Member States to put in place measures to ensure that waste is collected and disposed properly.40 Case C-188/08 arose following a complaint in relation to odours from an urban wastewater treatment plant.41 While the Commission’s original complaint covered the disposal of domestic wastewater in both urban and rural settings, the Commission subsequently narrowed the scope of its action to domestic wastewaters from rural dwellings. Having passed a set of by-laws instituting a system of wastewater management including an inspection regime, County Cavan was excluded from the scope of the action.

Directive 75/442/EC operates as a residual provision and only applies to wastewaters that are not covered by more specific Community or national legislation. Ireland, in the absence of specific Community legislation transposing the Directive, submitted that Irish law as a whole ensured compliance with the Directive and cited four pieces of legislation in particular that ensured compliance with the objectives of the Directive: the Public Health (Ireland) Act 1878; the Local Government (Water Pollution) Acts 1977 and 1990; the Building Control Acts 1990-2007 and the Planning and Development Acts 2000-2006. The Water Services Act 2007, having only entered into force from the 1st of July 2009, did not cover the period of the action and could not be relied upon by Ireland.42

The Court considered whether the legislation cited by Ireland covered rural domestic waste water disposal systems. It found that septic tanks were not covered by

39 40

Case C-188/08, Commission v Ireland, [2009] ECR I-172. Council Directive 75/442/EEC of 15 July 1975 on waste [1975] OJ L 194/39, as amended by

Council Directive 91/156/EEC of 18 March 1991, [1991] OJ L 78/32, Articles 4 and 8. 41

Case C-188/08, Commission v Ireland, [2009] ECR I-172.

42

Ibid, para. 58

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the relevant provisions of the Public Health (Ireland) Act 1878.43 Meanwhile the Planning and Development Acts and the Building Control Acts only applied to septic tanks from the entry into force of those provisions.44 The Local Government (Water Pollution) Acts 1977 and 1990 in principle covered septic tanks, however most domestic septic tanks were likely to be exempted from the provisions of the Act.45

The Court also considered whether the national legislation met the standards of the Directive in relation to the protection of health and the environment. The Public Health (Ireland) Act 1878 was limited to protecting human health and was not aimed at the protection of the environment. The Local Government (Water Pollution) Acts 1977 and 1990, while targeting certain aspects of the protection of human health and the environment, were not broad enough in scope to meet the requirements of the Directive. The Building Control Acts 1990-2007 were limited to the protection of human health and water for consumption. It did not refer to the environment more broadly and the standard imposed by an associated statutory instrument was inadequate in light of the geological and soil characteristics of Ireland.46 Finally the Planning and Development Acts 2000-2006 and the associated instruments did not ensure a level of protection as high as that pursued by the Directive.

Additionally the Court accepted the Commission’s submission that in order to reach the standards of protection required by the Directive, the detailed legislation implementing the Directive required an adequate system of inspection. While the competent authorities’ powers under both the Local Government (Water Pollution) Acts 1977 and 1990 and the Planning and Development Acts 2000-2006 were

43

Ibid, para. 59.

44

2000 and 1992 respectively

45

The Act itself provided for exemptions to be made by regulation. The exemption in question applied to ‘domestic sewage not exceeding five cubic metres in any 24 hour period’ and was contained in following an exemption created in the First Schedule to the Local Government (Water Pollution) Regulations, 1978 Case C-188/08, Commission v Ireland, [2009] ECR I-172, para 10. 46

Ibid, para. 70.

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adequate, these powers were not exercised within a system ensuring regular checks and inspections.

Environmental Procedures [C-427/07]47 Case C-427/07 was the result of two separate complaints by the Commission on issues of procedures in the area of environmental law. The first complaint related to the failure by Ireland to subject private road construction projects to an Environmental Impact Assessment (‘EIA’). The second related to Ireland’s alleged failure to implement Directive 2003/35 implementing the Aarhus Convention.48

Directive 85/337 outlines the cases where a project is to be subject to an environmental impact assessment. Annex II to Directive 85/337/EC as amended includes the construction of roads amongst the projects to be covered by the Directive. Whereas Member States are permitted a degree of discretion in specifying which projects are subject to an assessment, that discretion is limited by the obligation to ensure that all projects that are likely to have significant effects on the environment are subject to an assessment. Furthermore, in exercising its discretion to establish criteria, a Member state is not permitted to effectively exclude an entire class of project from the requirements of the Directive.49

In implementing the Directive, Ireland had failed to include the construction of private roads as a category of projects subject to the Directive. Ireland claimed that private road construction invariably formed part of a wider project that would, in the event it impacted significantly on the environment, be subject to an assessment. However the Court held that the Irish legislation ‘meant that any private road

47

Case C-427/07, Commission v Ireland [2009] ECR I-6277.

48 Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, [2003] OJ L 156/17. 49 Case C-427/07, Commission v Ireland [2009] ECR I-6277, para. 42.

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construction development carried out in isolation could avoid an environmental impact assessment, even if the development was likely to have significant effects on the environment’50 leading the Court to uphold the Commission’s first complaint.

The Commission’s second complaint focused on the failure by Ireland to transpose Directive 2003/35/EC. More specifically, the Commission identified three legislative failures in relation to the Directive: the failure to include in its legislation the definition of ‘the public’ for the purposes of Article 3(1) of the Directive; the failure to transpose adequately provisions relating to the provision of information; and, finally, the failure to implement the provisions of the Directive associated with access to justice.

In relation to the first heading the Court found that in assessing a situation where new rights were granted to the public, the national legislation was to be assessed with regard to whether those members of the public envisaged by the Directive were in fact granted those rights.51 The mere failure to reproduce the definition of the public in national legislation did not, in itself, suffice to find an infringement. In the present case the Court refused to uphold the Commission’s complaint finding that it had not provided evidence to suggest that the public as defined did not enjoy rights granted by the Directive.52

Ireland did not contest the Commission’s claim that, at the time of the reasoned opinions, it had not fully transposed the provisions of Directive in relation to the provision of information to the public.53 The Court found Ireland in breach of the Directive on this point.54

50 Ibid, para. 44 51 Ibid para. 57. 52 Ibid para. 58. 53 Articles 6(2) to (6) of Directive 85/337 as amended by Article 3(4) of Directive 2003/35 54 Case C-427/07, Commission v Ireland [2009] ECR I-6277. para. 66

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In relation to the provisions of the Directive on access to justice the Court found that the Commission had failed to prove that Irish provisions in relation to the requirement for parties to have a ‘sufficient interest’ to commence proceedings, the adequacy of judicial review and the timeliness of the procedures had failed to transpose the Directive. Rather, the Commission’s arguments tended to focus on the inadequate nature of the transposition whereas its complaints, as confirmed in the hearing, were limited to the failure to transpose the Directive, a contradiction pointed out by the Advocate General in her opinion.55

On the question of the cost of access to justice the Court noted that the practice of the Irish courts of ordering costs incurred by the unsuccessful party to be borne by the other party was discretionary in nature and therefore could not be considered as valid transposition of the Directive.56

The Commission was also

successful in its final complaint relating to the provision of information in relation to access to justice. The mere publication of legislation or the making available of rules of procedure and court decisions could not be considered to be implementation of the Directive.57

Finally the Court found that Ireland had breached its duty to inform the Commission of the national implementing measures as laid out in Article 6 of the Directive. Such a breach of the duty to inform contained in a Directive can, in and of itself, amount to an infringement.58 If a member state is of the opinion that the Directive is implemented by existing legislation it retains the obligation to inform of any such existing legislation.59 This obligation to inform extends to relevant case law

55 Opinion of the Advocate General, Case C-427/07, Commission v Ireland, [2009] ECR I-6277, para. 2 56 Case C-427/07, Commission v Ireland [2009] ECR I-6277. 57 ibid paras. 97-98. 58 ibid para. 107. 59 ibid para. 104.

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that the member state relies upon in determining that the provisions have been properly transposed.60

Tobacco Pricing Policy [C-221/08]61 Ireland was one of a number of Member States brought before the Court of Justice by the Commission in relation to the imposition of minimum prices for tobacco products.62 In Case C-221/0863 the Court of Justice found that Ireland had breached Article 9(1) of Directive 95/59/EC.64 In particular the Directive provided that manufacturers or importers of tobacco products are to be free in the determination of the maximum retail price for their products. The Court found that the imposition of a minimum price in effect constrained the ability of manufacturers or importers to determine maximum prices as such maximum prices could not, in any event, be lower than the obligatory minimum price.65 The Irish scheme, established under the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act 1978 and related statutory instruments, fixed the minimum price of tobacco products at no less than 3% below the weighted average price on the market for each category of cigarettes, in effect causing prices to converge around the most expensive product and thereby breaching Article 9(1) of the Directive. Ireland could not rely on the public health exemption under Article 30 TEC. Such a derogation was available in relation to violations of Article 28 TEC. In the present case the Commission was not alleging a breach of Article 28 TEC but rather the Directive. Nor could Ireland rely

60 ibid para. 110. 61

Case C-221/08, Commission v Ireland [2010] ECR 2010 I-1669

62 The other Member States were France (Case C-197/08) and Austria (Case C-198/08). The three cases were the subject of a joint opinion by Advocate general Kokott, Opinion of the Advocate general in Case C-197/08, Commission v France [2010] ECR I-1599 63 Case C-221/08, Commission v Ireland [2010] ECR 2010 I-1669. 64 Directive 95/59/EC on taxes other than turnover taxes which affect the consumption of manufactured tobacco [1995] OJ L 291/40. 65 Case C-221/08, Commission v Ireland [2010] ECR 2010 I-1669

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on the WHO Framework Convention on tobacco control66 or a Council Recommendation on the prevention of smoking and on initiatives to improve tobacco control67, neither of which imposed an actual obligation on contracting parties or Member States to enact specific pricing policies in relation to tobacco.68 The claim of the Commission that the Irish provisions also fixed a maximum price on cigarettes, proved to be unfounded.69

Ireland was additionally held to have breached its obligations under Article 10 TEC (replaced by Article 4 (3) TEU). Article 10 TEC requires that Member States cooperate in good faith with the Commission in the context of Article 226 procedures. By failing to reply or to reply on time and in particular by failing to provide information on its relevant national legislation as requested by the Commission, Ireland had failed to cooperate in good faith with the Commission and was accordingly found to have infringed Article 10TEC.70

VAT exemption for Public Bodies [C-554/07]71 Following a complaint in relation to the provision of off-street parking facilities by local authorities the Commission launched an investigation into Ireland’s compliance with Directive 2006/112/EC72 on the common system of value added tax. The Commission’s complaint centered on the lack of a general provision in Irish law treating public authorities as taxable persons for the purposes of VAT. The Directive

66

Approved by the Community by Council Decision 2004/513/EC of 2 June 2004 concerning the conclusion of the WHO Framework Convention on Tobacco Control [2004] OJ L 213/8.

67

Recommendation 2003/54, [2003] OJ L 22/31.

68

ibid, para. 46

69

Case C-188/08, Commission v Ireland [2009] ECR I-172 para. 44.

70

ibid, paras. 60-62.

71

Case C-554/07, Commission v Ireland [2009] ECR I-00128.

72

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L-347/1.

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stipulated that all persons, including public authorities, carrying out an economic activity were to be treated as taxable persons for VAT purposes. State bodies were not to be considered as taxable persons in respect of activities engaged in as public authorities, save in situations whereby their non-treatment as taxable persons would lead to a significant distortion of competition, i.e. where private sector entities also engaged in the same activity. In any event state bodies were to be treated as taxable persons in respect of a list of activities contained Annex 1 to the Directive.73 Under Irish law public authorities were to be considered taxable persons for the purposes of VAT regulation only where provided for by order of the Minister for Finance.74

Ireland initially contested the admissibility of the case claiming that the Commission’s complaint had widened from the question of off-street parking facilities provided by local authorities to encompass the VAT status of all public authorities in the state and did not therefore reflect the original allegations contained in the letter of formal notice or the reasoned opinion. The Court dismissed Ireland’s claim of inadmissibility, noting that the Commission is entitled to adapt the complaints made provided that the subject matter of the proceedings is not altered. In the present case the Commission had made reference to all bodies governed by public law in its letter of formal notice and reasoned opinion whereas the provision of offstreet parking was merely mentioned as the origin of the complaint and as an example of a wider practice.75

The Commission’s three complaints focused on the lack of general provisions of law requiring public bodies to be treated as taxable persons when engaging in economic activities other than in their capacity as public authorities, to be treated as taxable persons when their treatment as non-taxable persons would give rise to significant distortions of competition and finally the lack of general provisions

73

Case C-554/07, Commission v Ireland [2009] ECR I-00128 paras. 2-5.

74

ibid paras 6-7.

75

ibid, paras 22-25

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requiring public bodies to be treated as taxable persons in respect of the activities listed in Annex 1 to the Directive.

Regarding the first complaint the Court held that according to Article 13 of the Directive any activity of an economic nature is to be taxable and that it was only by derogation from the general rule that certain economic activities performed by public bodies are not to be subjected to VAT.76 As there was no provision of Irish law requiring such bodies to be treated as taxable persons, the Directive had not been transposed in a sufficiently clear and precise manner.

In relation to the second complaint the Court did consider that the Irish practice of assigning to the Minister of Finance the responsibility of determining when the carrying out of economic activities by public bodies may be regarded as bringing about a significant distortion of competition was a legitimate means of implementing the Directive. However the lack of a general provision providing that when such a situation occurs the public body was to be treated as a taxable person and the lack of detailed criteria for when the Minister was to make such a determination meant that Irish legislation on the matter did not provide sufficient legal clarity for persons affected to be in a position to ascertain the full extent of their rights and rely on them before national courts. On the second complaint Ireland likewise had failed to adequately implement the Directive.77

Finally the Court also held that Irish law did not implement the Directive properly in relation to the activities contained in annex 1, dismissing the Irish government’s argument, that most of these activities could be exempted and so the lack of a general provision had negligible or no practical effects.78

76

ibid, paras 39-41.

77

Ibid, paras. 59-69.

78

Ibid, paras. 72-76.

306

CORRESPONDENT REPORTS

JMcB v LE [C-400/10]79 One of the most interesting judgments of 2010 in the area of the interaction of different legal regimes and fundamental rights protection in the EU originated from a preliminary reference from the Irish Supreme Court. J. McB. v L.E.80 concerned parental rights in a cross border custody dispute and may very well provide a precedent in the application of the Charter of Fundamental Rights by the Court of Justice to both Union and national law.81

J. McB and L.E. had had three children together in a long term, if sometimes difficult, relationship. They were not married. In July 2009 after a break down in relations between the parties the respondent left the family home and subsequently left Ireland to settle in the United Kingdom, taking the three children of the relationship with her. Between her leaving the family home and moving to the UK, J. McB made an application to be made guardian of the three children pursuant to section 6A of the Guardianship of Infants Act 1965. Proceedings were not however served on the respondent with the result that the jurisdiction of the District Court had not been invoked at the date of the removal of the children from Ireland.

J. McB then applied to the High Court of England and Wales to have the children returned to Ireland pursuant to legislation in the UK giving effect to the Hague Convention82 and to Regulation 2201/2003 (the ‘Regulation’).83 That Court, in

79

Case C-400/10 PPU, J. McB –v- L.E. of 5 October 2010, not yet reported.

80

[2010] IESC 48 (2010).

81

Indeed it has already been cited in a recent citizenship case dealing with family reunification rights, see Case C-256/11, Derrici v. Bundesministerium fur Inneres of 15 November 2011 (not yet reported), para. 70. 82

Hague Conference on Private International Law, Hague Convention on the Civil Aspects of

International Child Abduction, 25 October 1980, Hague XXVIII. 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 L-338/1

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accordance with the relevant instruments, requested that a decision be obtained from the Irish Courts stating that the removal of the children from Ireland had been in breach of the father’s rights of custody and therefore wrongful within the meaning of the Hague convention and the Regulation. As notice regarding J.McB’s application for guardianship had not been served on L.E. and the jurisdiction of the District Court in Ireland had not been asserted, the guardianship application procedure had not commenced and J.McB did not enjoy rights of guardianship or custody at the time of the removal of the children. The Irish High Court therefore refused to grant a decision declaring the removal wrongful.

J. Mc.B. appealed the decision to the Supreme Court of Ireland arguing that rights of custody within the meaning of the Hague Convention should include ‘incohate rights’ of a natural father who had not yet obtained Court recognition of his position. Furthermore it was claimed that the introduction of Regulation 2201/2003 substantially replaced the relevant provisions of the Hague convention and should be read in light of the Charter of Fundamental Rights (‘CFR’) and in particular it’s Article 7 protecting private and family life. The Supreme Court referred the matter to the Court of Justice.84 In its decision making the referral, the Supreme Court expressed the opinion that Irish law on the matter was fully compatible with the European Convention on Human Rights (‘ECHR’) and the CFR and that the decision of the Irish High Court refusing to declare the removal of the children wrongful was correct. Nonetheless it acknowledged that EU law now regulated the issue, in particular since the introduction of Regulation 2201/2003 and that Article 7 of the CFR was also applicable. It therefore decided to refer the matter to the Court of Justice.85

Given the young age of the children and the possible effect of the case on their relationship with their father, the Court of Justice acceded to a request from the

84

J. McB. -v- L.E. [2010] IESC 48.

85

Case C-400/10 PPU, J. McB –v- L.E. of 5 October 2010, not yet reported.

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Supreme Court and heard the case following an application of the urgent procedure provided for in Article 104b of the Court’s Rules of Procedure.

An initial question of admissibility was raised by the German government. In particular it argued that the question contained in the preliminary reference referred not to the interpretation of the Regulation but rather the Hague Convention, which, as an instrument of international law, fell outside the jurisdiction of the Court of Justice. The Court, after noting that it was for the national Court to determine the need for a preliminary ruling, ruled that in any case between Member States, the Regulation is to complement and take precedence over the Hague Convention and that, therefore, it was not obvious that the interpretation sought was of no relevance for the referring Court.86

In its substantive assessment the Court sought to unravel a complex arrangement of interlocking legal regimes, namely general international law in the form of the Hague Convention, European law in the form of the Regulation and the Charter of Fundamental Rights, and finally the European Convention on Human Rights that is referred to in Article 52(3) of the CFR.87 In particular it was seeking to ascertain whether the CFR, interpreted in light of the ECHR and applied in conjunction with the Regulation, precluded national law from providing that unmarried fathers needed to make a preliminary application to a Court in order to assert custody or guardianship rights.

The Court held that, within the meaning of the Regulation, ‘wrongful removal’ is removal in breach of rights of custody. The notion ‘rights of custody’ is defined by the Regulation and as such is an autonomous notion of EU law. However the bearer

86

ibid, para. 36.

87

Article 52(3) of the CFR holds that in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR their meaning and scope are to be the same as those laid down by the ECHR.

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of such rights is to be determined by national law, in this case Irish law.88 In considering the impact of the Charter the Court was mindful of the fact that it is only to be considered in interpreting Union law, i.e. the Regulation, and could not be applied to national law as such. However the Charter could preclude an interpretation of the Regulation if it led to a situation where rights protected under the Charter were breached. Such a situation could arise if the interpretation included a reference to national law that breached rights protected by the Charter. This logic led the Court to indirectly assess the compatibility of Irish law allocating rights of custody with the provisions of the Charter.

In making this assessment the Court was mindful of the jurisprudence of the European Court of Human Rights and in particular its Article 8 jurisprudence, and confirmed the opinion of the Irish Supreme Court that a situation whereby the unmarried father did not automatically enjoy rights of custody but rather could apply for such rights to be awarded did not breach the ECHR and correspondingly the Charter.89 Furthermore an assessment of the child’s best interest, as protected under Article 24 of the Charter, results from a factual assessment and that is adequately performed under the existing situation of Irish law taking into account as it does the variety of familial situations.90

T-342/07 Ryanair v Commission91 In June 2007 the Commission issued a decision prohibiting Ryanair’s proposed takeover of Aer Lingus. The Commission’s decision was based on the finding that the two companies were each other’s closest competitors and their merger would result in a significant lessening of competition on a number of routes. Of particular concern was the fact that the two airlines both operated ‘low to mid frills’ business models and

88

Case C-400/10 PPU, J. McB –v- L.E. of 5 October 2010, not yet reported paras. 43-44.

89

Ibid, paras. 53-59.

90

Ibid, paras. 60-63.

91

Case T-342/07, Ryanair v Commission, not yet reported.

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both operated out of bases in Dublin airport.92 Ryanair lodged an appeal against the Commission’s decision alleging errors in the economic and legal assessment and the failure of the Commission to adequately consider the efficiencies of the proposed merger and the commitments offered by Ryaniar.

In its first plea Ryanair claimed that the Commission gave undue weight to the combined market share of the two companies. In particular it argued that a high market share should not lead to an automatic assumption that the merger would result in a significant lessening of competition. While Ryanair agreed with the Commission that Ryanair and Aer Lingus were each other’s closest competitors it contested the automatic implication that this established they were close competitors. In particular in reaching its findings the Commission had failed to take account of the highly differentiated nature of the services offered by the two companies, had defined the market in an inaccurate fashion, had used non-technical evidence and weak scientific evidence in its evaluation, and had failed to take into account Ryanair’s own economic analysis. The Court upheld the Commission’s analysis, holding that it had accurately and properly presented and applied the relevant evidence and that in its decision the Commission had not merely applied automatic assessments.93

Ryanair also asserted that the Commission had erred in its analysis of the barriers to entry in the relevant markets. According to Ryanair the fact that other airlines would be unwilling to operate on the routes in question post-merger did not constitute high barriers to entry but merely demonstrated the presence of an efficient operator, namely Ryanair, on the routes.94 Nonetheless the General Court held that Ryanair’s claims were too general to contradict the Commission’s findings.95 In

92

Case COMP/M.4439 – Ryanair/Aer Lingus, as reported by C. Donnelly, ‘Ireland and the EU – 2007’, Irish Yearbook of International Law 2007, 133 93

Case T-342/07, Ryanair v Commission, not yet reported, para. 67.

94

Ibid,para. 233

95

Ibid para. 243.

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particular it agreed with the Commission that the lack of a base in Dublin would constitute a barrier of entry for any potential competitor.96

In Ryanair’s third plea it sought to call into question the definition by the Commission of the relevant markets as ‘point-to-point routes’ rather than ‘airport-toairport’ market.97 In a detailed analysis the Court assessed the Commission’s findings on all the individual routes indentified in the decision and upheld the validity of the Commission’s approach.98

Ryanair’s final two pleas related to the assessment by the Commission of Ryanair’s efficiency claims and of the various commitments offered by Ryanair throughout the procedure. The Court held that, in the absence of further information, the Commission was entitled to find that the efficiencies claimed by Ryanair were based on an unverifiable assumption that Ryanair could transfer its business model to Aer Lingus without a downgrading of service quality.99 Moreover in light of the savings made by Aer Lingus in the years preceding the Commission’s decision, the potential efficiencies claimed by Ryanair could not be considered specific to the merger.100

In the course of the application Ryanair had offered a number of commitments associated with behavioural remedies and slot-based (‘access’) remedies both before and after the deadline for offering such commitments had expired. The Court held that the Commission was entitled to conclude that the commitments offered were unclear and unsubstantiated and therefore suffered from formal deficiencies101 and that in any

96

Ibid paras. 267-272

97

Ibid para. 323

98

Ibid paras 329-385.

99

Ibid paras 413-414.

100

Ibid paras 427-420.

101

Ibid paras 496 and 505.

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event they did not clearly meet the concerns identified by the Commission.102 In particular, unlike previous airline mergers, the mere availability of slots could not ensure access to a route.103

Case T-411/07 - Aer Lingus v Commission104 On the same day and related to the same matter the General Court handed down a judgment where the same parties found themselves on opposite sides. In case T411/07 Aer Lingus v Commission, Aer Lingus appealed against a decision by the Commission in which it refused to oblige Ryanair to divest itself of its shareholding in Aer Lingus.

Following the notification of Ryanair’s bid, Aer Lingus entered into correspondence with the Commission requesting that it issue a decision forcing Ryanair to divest itself of its minority shareholding in Aer Lingus, a request that was formalised on the 17th of August 2007 following the publication of the decision prohibiting the proposed merger. The Commission refused the request of Aer Lingus, stating its view that, given Ryanair had not taken control of Aer Lingus within the meaning of the Merger regulation105, it did not have any power under Article 8 of that Regulation to order the divestiture of Ryanair’s holding in Aer Lingus. Aer Lingus sought the annulment of this decision before the General Court.

The Court found that the Commission’s powers under Article 8 were limited to situations where a concentration had already been implemented and where the defining feature of a concentration was the acquisition of control by one undertaking of another. Such a situation had not occurred in the present case. Ryanair’s minority

102

Ibid para 524.

103

Ibid para 522.

104

Case T-411/07, Aer Lingus v Commission, [2010], not yet reported

105

Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings [2004] OJ L 24/1.

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holding of 29.3% in Aer Lingus, while acquired as part of a ‘single concentration’ for the purposes of the Commission’s examination under the Merger Regulation, did not constitute a controlling stake in Aer Lingus. A concentration had therefore not been implemented for the purposes of Article 8 and the Commission did not enjoy powers to order the divestiture of Ryanair’s holding.106 The fact that Ryanair, as a minority shareholder, may have caused difficulties for the management of Aer Lingus did not affect this conclusion.107 Similarly the hypothetical harm to competition caused by the acquisition by one member of a duopoly of shares in the other member was disproved by the facts in the present case and moreover the existence of theoretical harm to competition could not justify an expansion of the Commission’s powers in this regard.108

Public Procurement Procedures [Case C-455/08]109 In case C-455/08 Ireland faced further difficulties regarding its procedures to award public contracts, specifically the possibilities for an adequate and effective review of the award decision.110 In Alcatel Austria111 and Commission v Austria112 the Court of Justice found that the Directives on public procurement procedure required an effective and rapid review and that the possibility to apply for the annulment of a concluded contract was not sufficient. The relevant legislation must provide the possibility of applying for interim measures. Following these judgments, the Commission contacted Member States requesting information on how these requirements were implemented in national law. Following contacts with the Irish

106

Case T-411/07, Aer Lingus v Commission, [2010], not yet reported paras 79-87.

107

Ibid, paras 67-73.

108

Ibid, para 74.

109

Case C-455/08, Commission v Ireland, [2009] ECR I-00225 (summary publication)

110

Ibid.

111

Case C-81/98 Alcatel Austria and Others [1999] ECR I-7671.

112

Case C-212/02 Commission v Austria of the 24 June 2006, not reported.

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government it was unsatisfied with the situation under Irish law and brought an action before the Court of Justice.

The Court found against Ireland. Statutory Instrument No. 329 of 2006 implementing Directive 89/665 on the procedures for the award of public contracts generally provided that unsuccessful tenderers were to be informed of the decision as soon as possible. Upon request, they were to be informed of the reasons for the decision no later than 15 days following the initial award decision. At the same time the conclusion of the contract was not to take place until at least 14 days after the award decision. The possibility therefore remained that an unsuccessful tenderer would not be adequately informed until after the standstill period had elapsed and the contract had been concluded, thereby removing the possibility to apply for interim measures. 113

Statutory Instrument No. 50 of 2007 implemented procedures relating to the award of public contracts in certain specific sectors into Irish law. It provided that unsuccessful applicants were to be informed at the time of the award of the ‘principal reason or reasons why [their] tender is not the selected tender’. However the discretion granted to the awarding authority left open the possibility that unsuccessful tenderers would receive incomplete information and would therefore be prevented from examining the validity of the award decision in sufficient time.114

Ireland argued that in its administrative practice it had complied with the requirements laid down by the Court in Alcatel Austria and that in any case the requirements were to be included in new regulations to implement the incoming Directive on public procurement procedures, but these arguments were rejected by the Court. The assessment of whether a member state had failed to fulfil its obligations under the Treaty is to be determined by reference to when the Commission issues its

113

Case C-455/08, Commission v Ireland, [2009] ECR I-00225 (summary publication) para. 31.

114

Ibid, para. 32.

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reasoned opinion. Finally, Directives were to be implemented with legally binding force with ‘the specificity, precision and clarity necessary to satisfy the requirements of legal certainty.’115

Road Construction Contracts [Case C - 456/08]116 Shortly after the judgement in Case C-455/08, Ireland found itself condemned once again by the Court of Justice for the inadequacies of its procedures for the awarding of public contracts. In a slightly unusual situation the Commission’s complaint focused on a specific judgment of the High Court and the interpretation given in that judgment to the limitation periods for review of the award of public contracts.117

After announcing an award for the construction of the Dundalk bypass the National Roads Authority (NRA) narrowed down the number of firms it was negotiating with to two: EuroLink and Celtic Roads Group (CRG). In October of 2003 Eurolink was informed that CRG was the preferred candidate. This decision did not amount to a rejection of EuroLink’s offer and the NRA reserved the right to reopen discussions if the negotiations with CRG failed. The NRA continued negotiations with CRG and concluded a contract in February 2004. The conclusion of the contract was announced on the website of the NRA and the Official Journal of the European Communities. SIAC, a member of the EuroLink consortium, contested the decision to award before the High Court. The High Court held that the 3 month period of limitations stipulated in the Rules of the Superior Courts for such actions had ran from when EuroLink was informed of the CRG’s preferred status, that is October 2003, and dismissed the action as inadmissible. SIAC submitted a complaint to the Commission who subsequently brought an infringement action against Ireland.118

115

Case C-455/08, Commission v Ireland, [2009] ECR I-00225 (summary publication) paras. 37-38.

116

Case C-456/08, Commission v Ireland, [2010] ECR I-00859.

117

SIAC Construction Limited v National Roads Authority [2004] IEHC 128.

118

Case C-456/08, Commission v Ireland, [2010] ECR I-00859, paras 8-18.

316

CORRESPONDENT REPORTS

The Commission’s first plea related to the failure to inform EuroLink of the award of the contract to CRG. Ireland accepted that EuroLink had not been informed of the decision but argued that the case represented a single instance and did not reflect the situation under Irish law. Furthermore, as EuroLink had been informed of the preferred status of CRG no injustice had actually occurred. The Court rejected both arguments. It recalled that the failure of a Member state to fulfil its obligations under the Treaty was to be assessed with respect to not only the general legal situation in the Member state but also to administrative practice in individual cases and that the finding of such a failure was not necessarily linked to any damage flowing from such a failure.119

The Commission’s second set of complaints related to the general legislative scheme and in particular the interpretation of the relevant periods of limitation contained in the Rules of the Superior Courts (RSC). The Court found that limitation periods were not in principle incompatible with Directive 89/665120, provided they did not render the exercise of rights flowing from Community law excessively difficult. Order 84A(4) of the RSC regulating challenges to decisions of public contracts referred to ‘decisions to award or the award of a public contract’. The interpretation of the High Court to include interim decisions such as that of the NRA of October 2003 within that provision created legal uncertainty.121 As a consequence it created the risk that, in the event a contract being awarded three months after an interim decision was made, an action contesting the award of a contract could be time barred.122

119

Ibid para. 41.

120

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations

and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L-395/33, as amended by Council Directive 92/50/EEC [1992] OJ L-209/1. 121

Ibid paras 51-54.

122

Ibid para. 55.

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The Commission also argued that Order 84A(4) RSC requiring actions to be brought ‘at the earliest opportunity and in any event within three months’ also created uncertainty and therefore hindered the exercise of rights of review granted under Community law.123 The Court upheld the Commission’s argument that the use of the term ‘at the earliest opportunity’ and the discretion of the national courts in its interpretation resulted in a situation where parties would be unable to predict the applicable limitation period in their particular case.124 Ireland’s argument that the interpretative practice of the national courts was to never reject a claim on the grounds and that, as a result, there was no incompatibility that it had not been brought within the ‘earliest opportunity’ was rejected. The inadequacy of the legislation transposing the Directive into national law was sufficient to find a failure of Ireland to fulfill its obligations without having to establish any actual effects.125

Public Procurement - Translation services [Case -226/09] 126 Ireland enjoyed mixed success in a case relating to procurement of translation services by the Department of Justice, Equality and Law Reform. Case C-226/09 arose from a tender for translation services to be used in asylum procedures issued by the Department of Justice, Equality and Law Reform in May 2006. The tender was announced in the Official Journal of the European Union along with the criteria for the evaluation. The weighting of the criteria was not included and in fact the notice indicated that they were not listed in descending order of importance. Thirteen companies replied to the tender, three of which were from outside Ireland. The closing date for the tender was 9 June 2006. On the same date the members of the evaluation committee were given an evaluation matrix including the criteria and the weightings to be applied in the assessment. This original matrix was used in the initial assessments made by individual committee members. On 22 June, at the first meeting of the committee it was decided to modify the weightings to be applied for the

123

Ibid paras. 68-69.

124

Ibid para. 75.

125

Ibid para. 77.

126

Case C-226/09 Commission v Ireland of 18 November 2010, not yet reported.

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assessments to be made collectively by the committee. The tenders were then evaluated by the committee and the contract awarded. After receiving a complaint, and having corresponded with Ireland, the Commission took the view that the award had been made in breach of the principles of equal treatment and transparency.127

The tender fell within a category of services for which public procurement procedures were subject to only minimal requirements of notice.128 Nonetheless, despite not being subjected to the specific provisions of the Directive, their award was subject to general requirements of transparency and equal treatment flowing from primary law, namely the provisions of the Treaty in relation to the freedom to provide services and of establishment.129 The Commission entered two pleas against Ireland, the first relating to a breach of the principle of transparency due to the failure of Ireland to include the weighting of the various criteria in the announcement, the second relating to the change to the weightings during the procedure.

The Court found in favour of Ireland in relation to the first plea. The publication of the tender in the Official Journal by Ireland did not imply that it would be subject to the full requirements of the Directive, in particular those relating to the publication of the weightings to be applied in an evaluation.130 The fact the requirement to state the weightings in Article 53(2) of the Directive was a reflection of general principles did not have the result of extending the obligation contained in Article 53(2) to contracts that were excluded from its scope.131

127 128

Ibid paras. 11-23. Namely those contracts contained in Annex II B to Directive 2004/18/EC of the European

Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L 134/114. Contracts that fell within Annex II B are only subject to the requirements of Articles 23 and 35(4) of the Directive. 129

Case C-226/09 Commission v Ireland of 18 November 2010, not yet reported, para. 29.

130

Ibid para. 40.

131

Ibid para. 43.

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Ireland fared less well in relation to the second plea of the Commission. Following from its previous jurisprudence the Court found that, in order to avoid a risk of unequal treatment, the same weighing must be applied throughout the evaluation of the offers.132 The initial individual assessment was an integral part of the evaluation process and the subsequent modification of the weighting was inconsistent with the principle of equal treatment.133 Finally the possibility of discrimination was sufficient to breach the principle without there being a need to prove a discriminatory effect.134

132

Ibid para. 59.

133

Ibid paras. 61-62.

134

Ibid para. 63.

320

CORRESPONDENT REPORTS

HUMAN RIGHTS LAW IN IRELAND—2009-10 DR. DARREN O’DONOVAN UNIVERSITY COLLEGE CORK

During 2009 and 2010 there was a number of high profile judgments against Ireland before the European Court on Human Rights in Strasbourg, as well as increasing reliance upon the European Convention on Human Rights before the domestic courts. The economic crisis and its related austerity measures continued to have consequences for human rights institutions and rights protection. A number of landmark reports into child sexual abuse in the Republic of Ireland triggered a period of reform and reflection in the area of children’s rights and protection.

Ireland before the European Court of Human Rights The most significant European Court of Human Rights judgment concerning Ireland in the period 2009-2010 was A,B and C v Ireland.1 This was decided by the Grand Chamber of the Court on 16 December 2010. It involved three Irish women who challenged Ireland’s existing abortion law and practice under Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private life.2 All three women had travelled to England for abortions, but only one, ‘C’, appeared to be eligible for an abortion under existing Irish law as her pregnancy posed a real and substantial risk to her life.3 She argued that while she may have had a legal claim to an abortion in Ireland, there was no legal framework within which her claim could be assessed, which lack of process constituted a violation of her Article 8

1

A, B, C v Ireland. [2010] ECHR 2032.

2

Article 8(1) provides ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ This is subject to Article 8(2): There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 3

Article 40.3.3 of the Irish Constitution provides: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ This amendment reflected the position taken by the Irish Supreme Court in the 1992 case of X v Attorney General [1992] 1 IR 1, which provided for a limited right to abortion where there is a ‘real and substantial risk to the life of the mother’.

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rights. ‘A’ and ‘B’ fell outside of the limited access to abortion that is permitted under Article 40.3.3 of the Constitution, and sought to argue that abortion should be permitted not just where the life of the mother is at stake, but also where her health and well-being are. The lack of availability of abortion in such circumstances was argued to be a violation of Article 8. In addressing the claims, the Grand Chamber found that Article 8 was engaged as the issues at Bar involved the applicants’ personal autonomy, with pregnancy being intimately connected to the private life of a woman. The Court stressed that, regardless of the situations in other European countries in the arena of abortion, the Irish State was to be accorded a wide ‘margin of appreciation’ due to the ‘profound moral values of the Irish people as to the nature of life and consequently as to the need to protect the life of the unborn’.4 This legitimate interest in upholding Irish moral values about abortion was to be balanced against the right to respect for the applicants’ private lives under Article 8. Taking this into account, the Court found that in the cases of ‘A’ and ‘B’, Irish law struck an appropriate balance between women’s rights and ‘the profound moral values of the Irish people’.5 The Court also rejected the arguments by counsel for ‘A’ and ‘B’ against the State’s reliance on the availability of abortion in England. It refused to accept that the experiences of travelling to England and the absence of proper medical treatment in Ireland fell within the scope of Article 3 of the ECHR, which prohibits inhuman and degrading treatment. The Court did, however, find that the State’s failure to legislate or otherwise regulate for constitutionally permitted abortions constituted a breach of C’s right to private life. Article 8 required the State to establish effective and accessible means for C to avail of her constitutional right to an abortion. The key finding of the Court was that where it chose to permit certain abortions, the Irish government must legislate for a regulatory regime ‘shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention.’6 The Court condemned the failure

4

A, B, C v Ireland. [2010] ECHR 2032, at para 222.

5

ibid at para 241.

6

ibid at para 249.

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to secure the practical implementation of the right to a lawful abortion in Ireland, ruling that the possibility of taking a complex constitutional action to secure an abortion did not represent an adequate protection in satisfaction of Article 8. The judgment resulted in widespread domestic debate, and Ireland’s route to complying with it remains under review. In finding a violation of Article 8 in this case, the Court placed Ireland under an obligation to take general measures to prevent new, similar violations. Although legislation could represent one method of satisfying this duty (by clarifying for doctors and medical bodies how a real and substantial risk to the life of the mother is to be determined in actual practice), the Court stressed that it was not its role to indicate ‘the most appropriate means for the State to comply with its positive obligations’. It would be open to Ireland to hold a fresh constitutional referendum to restrict or broaden abortion rights. The judgment does make clear that if the Irish constitutional regime remains the same, the prevailing uncertainty, with a lack of appropriate guidelines or formal right to appeal a doctor’s determination, represents a violation of Article 8. Supervision of Ireland’s implementation of the judgment will now be exercised by the Committee of Ministers of the Council of Europe. The Government’s Action Plan for Responding to the judgment committed it to establishing an expert group by November 2011. Drawing on the appropriate medical and legal expertise that is expected to be included within the group, it will issue recommendations to Government.7 In McFarlane v Ireland,8 the plaintiff won his case against the State for what he claimed was undue delay in the prosecution of criminal charges against him. McFarlane was accused of the kidnap of an individual in 1983. He had been arrested in 1998, with the case against him in the Special Criminal Court eventually collapsing due to lack of evidence in 2008. He complained under Article 6 ECHR, which protects the right to fair trial,9 and under Article 13 ECHR (right to an effective remedy) that he had no adequate compensatory remedy for the breach of his right to a

7

Department of Health, Irish Government Action Plan for Response to the Judgment in A, B, C versus Ireland. Information submitted on 16 June 2011. Available at: www.dohc.ie/press/releases/2011/20110616.html. 8

McFarlane v Ireland, [2010] ECHR 1272.

9

Article 6(1) provides: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

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trial within a reasonable period of time. 10 In its defence the Government argued that Mr McFarlane could have taken an action for damages for a breach of his constitutional rights.11 The majority of the Court12 found that this did not constitute an effective remedy based on recent jurisprudence underlining the uncertainty around whether or not such damages were available, and the fact that no accused had ever requested damages for a breach of the right.13 The Court accepted that within a common law system with a written Constitution space should be allowed for remedies to develop, but ultimately the scope and application of such a remedy must be clearly set out or confirmed by case law or practice. Furthermore, the action for damages would have had to have been taken to the High Court (with the possibility of appeal to the Supreme Court), a cumbersome process which could not have delivered a sufficiently swift remedy to satisfy the requirements of Article 13. The Court therefore found there had been a violation of Article 13 in conjunction with Article 6(1). Significantly, the Court also found a freestanding violation of Article 6(1) due to the fact that the proceedings had taken over 10 years and 6 months.14 The Court stressed that there was a particular obligation on the State to expedite criminal proceedings which began a significant period of time after the impugned events, and that the periods of delay in the case fell short of this duty. The broader underlying institutional difficulties involved in this case received some discussion in the Report

10

Article 13 provides: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ 11

They argued that there was an unenumerated right to reasonable expedition in criminal proceedings under Article 38.1 of the Irish Constitution. While no one had ever requested damages for a breach of a right to reasonable expedition, the Government submitted it was highly probable that an accused could sue successfully for damages for such a breach. The main authority cited for this was O’Donoghue v Legal Aid Board [2006] 4 I.R. 204 where a delay in granting a legal aid certificate for 25 months was found to amount to a breach of the plaintiff’s constitutional right of access to court and to fair procedures, for which she recovered damages. The Government conceded, however, that given the principle of judicial immunity it was ‘‘likely’’ that such proposed action in damages could not be invoked where the delay was caused by an individual judge failing to deliver judgment in a reasonable time. This was due to the High Court decision in Kemmy v Ireland [2009] IEHC 178 that the State could not be sued for errors which a judge may commit in the administration of justice. 12

Four judges dissenting.

13

See above n. 11.

14

While the Court acknowledged that the plaintiff had contributed to the delay, the overall length of the proceedings could not be explained by this. Delays were, in the main, attributable to the failure to fix hearing dates.

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CORRESPONDENT REPORTS

of the Working Group on a Court of Appeal 2009, which noted that while fresh appointments to High Court had relieved some pressure, the jurisdictional breadth of the Supreme Court may continue to cause backlogs.15

State Response to the Foy Case As described in the 2008 report, the High Court made the first declaration of incompatibility under s.5 of the ECHR Act 2003 in the landmark case of Foy v An tArd- Chláraitheoir & Others.16 This had concerned the failure to provide legal recognition for transgender people under Irish law. In 2010, the State withdrew the appeal it had lodged to the decision, thereby accepting the incompatibility of Irish law with the European Convention on Human Rights. As a result, for the first time since the creation of ECHR Act 2003, the Taoiseach laid the Order of the Court making the declaration before both Houses of the Oireachtas.17 No legislative change to the Civil Registration Act 2004 was enacted during the period under review.

Same-Sex Couples and Civil Partnership Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 On the 19 July 2010, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was signed into law. This provided for civil partnership for same sex couples from the Act’s commencement in 2011. The Bill extends benefits, which are broadly similar to those granted to married couples, in areas of property, social welfare, succession, maintenance, pensions and tax to gay and lesbian couples that enter into a civil partnership. The Act also introduces a range of lesser protections for ‘qualified cohabitants’ whether they be same-sex or opposite-sex couples but provided they are not married or civilly partnered to one another.

15

Report of the Working Group on a Court of Appeal, Courts Service, Dublin 2009. This was in part caused by the fact that the Supreme Court is obliged to deal with all Superior Court civil appeals, and the Report said that because of this there was a significant risk of delays of the sort impugned in the other ECHR cases occurring at appellate level. In light of this, the report recommended the establishment of a Civil Court of Appeal. 16

Liam Thornton, ‘Human Rights in the Republic of Ireland 2008’ Irish Yearbook of International Law 2008, p 159-181. 17

This is required by section 5(3) of the European Convention on Human Rights Act 2003.

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The passage of the Act was marked by strong political and legal debate concerning a number of omissions. The rights of children in relation to same sex civil partners lay unaddressed. As a result, the Act extended no legal recognition to a relationship between children and their non-biological second parent, and did not enable the joint adoption of children by same-sex couples.18 Furthermore, arguments continued to be forwarded for full marriage rights for same sex couples, an issue which, as discussed below, appeared within Irish Supreme Court and the European Court on Human Rights cases in 2010. A proposed amendment to include a conscience exemption clause which would have allowed for civil registrars to refuse, on religious grounds, to participate in a civil partnership registration was defeated.19 The Act also provided for a redress system for financially dependent cohabiting partners in both same sex and opposite-sex relationships who are not married or in a civil partnership. Cohabitation is defined as having lived together in an intimate relationship for five years, or two years where there is a child or children of the relationship.20 The Act provides an option for both parties of the relationship to opt out of the redress system provisions.21 In the absence of this, a financially dependent cohabitant may apply to court for a number of remedies such as maintenance or provision from estate of a deceased cohabitant. The Act also allows for legal recognition of cohabitant agreements regulating the shared financial affairs.22

18

Another significant omission was an obligation to consider children’s interests in the instance of the breakdown of a relationship. This contrasts with Britain; the Civil Partnership Act 2004 contains a number of provisions pertaining to children of same-sex couples. The 2004 Act also gives same-sex couples the ability to attain parental responsibility for the children of a partner, as well as responsibility for maintenance of a partner and the children of that partner. Under Section 72 of the Act, civil partners are also able to acquire parental responsibilities as a stepparent, and same-sex couples may apply for residence or contact orders. The right to apply for financial provision for children under schedule 1 of the Children Act 1989 was also extended to civil partners. Same-sex couples in England and Wales, whether or not they have entered into a ‘civil partnership’, can jointly adopt children, as can unmarried opposite-sex couples, under the Adoption and Children Act 2002. 19

This development is discussed extensively in S Mullally and D O'Donovan, 'Religion in Ireland’s Public Squares: Education and the Family'. [2011] PL 284. 20

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, s. 172.

21

The Act also provides for the recognition of cohabitant agreements which regulate the shared financial affairs of cohabiting couples: Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, s. 202. 22

ibid.

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Supreme Court Judgment in McD v L The status of a de facto unmarried couple under the Constitution was addressed by the judgment of the Supreme Court of the 10 December 2009 in McD v L & Anor.23 The appellant in the case had donated sperm to a lesbian couple and unsuccessfully sought High Court orders allowing him either access to the child or guardian status.24 The respondents were a lesbian couple, who were partners through an English civil union. They had created an agreement with McD to donate his sperm which sought to bestow upon them full care and custody of the child, with McD having the role of a ‘favourite uncle’. This agreement provided that he would not have any direct influence on the child’s upbringing without the couple’s consent. Despite these terms, upon the birth of the child, the appellant sought to assert his full rights as the father.

In its judgment, the Supreme Court noted that the area of assisted conception remained unlegislated for in Ireland. It supported the initial High Court finding that the terms of the agreement were unenforceable, and not analogous to an adoption agreement. The High Court judge, Hedigan J, had then proceeded to deny access to the donor on the basis that the hostility between the parties would result in access not being in the best interest of the child. In considering the case, Hedigan J. had also treated the couple and the child as a de facto family unit protected by Article 8 ECHR. At the time of his judgment, there was no existing jurisprudence from the Strasbourg court which accepted a gay couple within the scope of Article 8. Hedigan J had rather relied upon the inclusion of a female to male transsexual and his family in X, Y and Z v UK.25 The Supreme Court rejected Hedigan J’s expansive interpretation of Article 8, and regarded the move as inconsistent with the Constitution. Fennelly J, in particular, noted that the European Convention on Human Rights Act 2003, ‘does not provide an

23

McD v L and Anor[2009] IESC 81

24

McD v L and Anor [2010] IEHC 120

25

X, Y and Z v UK (1997) 24 EHRR 143. Hedigan J failed, however, to cite Mata Estebanez v Spain Application (no 56501/00) 2001, where the Court had found that a Spanish male gay couple did not fall within the ambit of Article 8.

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open-ended mechanism for our courts to outpace Strasbourg’.26 This principle appears to apply despite the fact that the Strasbourg court judgment’s themselves are structured by the doctrine of margin of appreciation, where the Strasbourg Court, as a supranational institution provides enhanced deference to the actions and laws of the national authorities. The margin of appreciation should not, logically, apply at domestic level, thereby underlining the fact that the Irish courts have a legitimate role in carving out their own approaches within their national fora. This element of the Supreme Court judgment was brought into sharp relief six months later by the Schalk and Kopf v Austria, where the Strasbourg court held that a gay couple did fall within the ambit of Article 8.27

The Court justified its approach by citing the ‘rapid

evolution of social attitudes towards same-sex couples’.28 It also, however, held that the right to marriage (under Article 12 ECHR)29 did not include an obligation to provide for marriage equality between same sex and different sex couples. The case then fell to be decided under the Irish law. The Court held that the concept of the de facto family did not exist under the Irish Constitution, and as a result that a ‘de facto family’ holds no formal legal rights. The question was to be determined by the ordinary statute law which lays down the guardianship and access rights of non-marital natural fathers. When addressing the question whether it was in the best interests of the child to allow the father access, the Court stressed the importance of the powerful paternal instincts of any natural father. Relevant psychiatric evidence was adduced supporting the argument that, absent strong justification otherwise, a child should have knowledge of both biological parents as part of the formation of his or her own. The Court therefore held that the right of knowledge and contact with both biological parents was paramount, and granted the father visitation rights.

26

McD v L and Anor[2009] IESC 81, at para 105.

27

Schalf and Kopf v Austria, Application no. 30141/04. Judgment of 24 June 2010.

28

ibid at para 93.

29

Article 12 of the ECHR provides: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

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Right to Legal Aid in Criminal Proceedings In 2009, the Supreme Court case of Carmody v Minister for Justice, Equality and Law Reform et al30 dealt with the restrictive nature of Ireland’s system of Criminal Legal Aid, while also raising issues regarding the practical value of the remedies created under the European Convention on Human Rights Act 2003. The plaintiff argued that the lack of a statutory or other right to free legal aid for representation by a barrister in the District Court was both unconstitutional and incompatible with the European Convention on Human Rights. In its judgment, the Supreme Court refused to strike down section 2(1) of the Criminal Justice (Legal Aid) Act 1962, which permitted representation in the District Court only where the charge was one of murder and the District Court thought it appropriate to appoint a barrister. It rather ruled that the defendant in criminal proceedings before the District Court has a right to apply for legal aid to include counsel. However, the denial of the right to apply for such legal aid resulted not from the 1962 Act but from the failure of the Oireachtas to confer on the District Court or any other body jurisdiction to consider an application for legal aid to include solicitor and counsel in exceptional circumstances. The Court granted a declaratory order prohibiting the appellant’s prosecution until he was afforded the opportunity to apply for legal aid to include solicitor and counsel. The judgment was also significant in its treatment of available remedies under the European Convention on Human Rights Act 2003, with the Supreme Court finding that a section 5 declaration of incompatibility did not represent a remedy which would resolve the issues between the parties. As a result consideration of the ECHR Act 2003 was subordinated to the examination of the constitutional issues.

Reports on Child Abuse On the 20 May 2009, the Report of the Commission to Inquire into Child Abuse (the so-called Ryan Report) was published.31 This addressed the sexual, physical and mental abuse of children within Irish institutions where they had been placed for their

30

Carmody v Minister for Justice, Equality and Law Reform et al 2009 IESC 71.

31

Report of the Commission to Inquire into Child Abuse, Dublin, Stationery Office, 2009. Available at: www.childabusecommission.com/rpt/pdfs/

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care, with the majority of the allegations relating to the system of industrial schools operated by Congregations and Orders within the Catholic Church, funded and formally supervised by the Irish Department of Education. The Commission was to make recommendations to alleviate or otherwise address the effects of the abuse on victims, as well as recommendations aimed at preventing or reducing the incidence of abuse of children in institutions and to protect children from such abuse’. It found that widespread physical and emotional abuse and neglect were features of the institutions.32 The system as a whole was incapable of meeting the developmental, emotional and educational needs of individual children, with the difficulties of large scale institutionalization exacerbated by the actions of the Congregations that owned and managed the school.33 The Report condemned the deferential and submissive attitude of the Department of Education towards the Congregations, which compromised its ability to carry out its statutory obligation of inspecting and monitoring the schools. Government facilitated the needs of the Congregations, rendering the inspections, which were not random or unannounced, fundamentally flawed.34 In relation to sexual abuse, the report found it had been endemic to boys’ institutions, with predatory sexual abuse also prevalent in girls’ institutions.35 Cases of abuse were handled with a view to minimizing the damage to the institution.36 The report found that Congregational authorities were aware of the prevalence of the problem and the recidivist nature of abusers did not listen to or believe those who complained that sexual abuse had occurred in the past.37 In relation to male religious Congregations in particular, it was found that congressional loyalty enjoyed priority over the protection of children.38 The recommendations of the Ryan Report on the reform Irish child protection law and practice are of great significance for future Government action in the area,

32

ibid, Executive Summary of the Report. Conclusion 1.

33

ibid, Executive Summary of the Report, Conclusion 2.

34

ibid, Executive Summary of the Report, Conclusions 4-6.

35

ibid, Executive Summary of the Report, Conclusion 18.

36

ibid, Executive Summary of the Report, Conclusion 20.

37

ibid. Executive Summary of the Report, Conclusions 21-23.

38

ibid. Executive Summary of the Report, Conclusion 26.

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and the monitoring of Ireland before international oversight bodies. The Report stressed that in all actions, the needs of the child should be paramount, with services tailored to their developmental, emotional and educational needs.39 National childcare policy should be clearly articulated and reviewed on a regular basis, with clear methods of evaluating the compliance of services with protection goals being devised.40 A culture of compliance was to be built up within the system, with independent, unannounced inspections being essential to this.41 Children in care were to feel sufficiently secure to be able to communicate to a consistent care protective figure, and the Department of Health and Children was to ‘examine international best practice to establish the most appropriate method’ of giving effect to these recommendations.42 November 2009 saw the publication of the Murphy Commission report into child sex abuse within the Dublin Archdiocese, which detailed the involvement in and concealment of, abuse by relevant church authorities.43 The Report found that until the mid 1990s, the Archdiocese had, in handling complaints, prioritised the preservation of secrecy, institutional reputation and Church finances over the welfare of children. Amongst the critical legal issues identified was the question of the failure of agencies and church authorities to share information. This led to the creation of legislation which allowed for the sharing of ‘soft information’ on potential child abusers between statutory and non-statutory bodies.44

39

ibid. Executive Summary of the Report, Recommendation 6. Those entrusted with the care of children must prioritise protection over personal, professional or institutional loyalty. 40

ibid. Executive Summary of the Report, Recommendations 7-8.

41

ibid. Executive Summary of the Report, Recommendations 10-11.

42

ibid. Executive Summary of the Report, Recommendation 16. The recently created National Guidelines for the Protection and Welfare of Children should be uniformly and consistently implemented throughout the State in dealing with allegations of abuse. Department Of Health, ‘Children First: The National Guidelines for the Protection and Welfare of Children’, Dublin: Stationery Office, 2009. 43

Report of the Commission of Investigation into the Dublin Archdiocese, Dublin. Available at: www.dacoi.ie/

44

October 2010 also saw the publication of the Report of the Inquiry Team on Roscommon Child Care Case, Department of Health, Dublin, Stationery Office, 2010. This detailed the failings of the Irish Health Services Executive in handling the case of parental abuse of six children in the period 1989-2004. It stressed the importance of state agencies recognizing situations where targeted social work approaches are ineffective, and where court intervention should be brought forward. The Report also condemned the failure to allow the children to participate in case meetings, and when the court proceedings eventually did take place.

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Proposed Children’s Rights Amendment In February 2010, the Oireachtas Committee on the Constitutional Amendment on Children released its final report after two years of consultations. The proposed wording in full provides:

‘Article 42 1. 1 The State shall cherish all the children of the State equally.

1.2 The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.

1.3 In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including: (i) the right of the child to such protection and care as is necessary for his or her safety and welfare; (ii) the right of the child to an education; (iii) the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

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4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status. 5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.’

The Committee proposed the deletion of Article 42 from the Constitution, with the exception of Sections 42.2 – 42.4 which were to be re-enacted in sections 7-8 of the proposed new Article 42.45 While the All Party Committee’s wording endeavoured to represent an all-party consensus on the issue, in October 2010, the Fianna Fail led government created an alternative referendum wording.46 Nevertheless, the current Government is committed to develop wording that reflects the all-party agreement.47

45

These provide:

42.7.1 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State. 7.2 The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social. 7.3 Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State. 8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation. 46

‘Attorney General Drafting New Text of Children’s Referendum’, Irish Examiner, 13 October 2010.

47

Minister for Children Frances Fitzgerald has stated ‘We will take the committee’s wording and examine what the concerns were about that, see if the current Attorney General shares the concerns of the previous attorney general’. Irish Times Minister for Children defends referendum delay, 21 June 2011.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Human Rights Institutions and Protection in the Economic Crisis The period under review was dominated by government austerity, and the creation of the funding agreement with the International Monetary Fund and the European Union. The measures taken had severe consequences for both human rights institutions and for protection on the ground. Budget 2010 contained more than €4 billion in public savings including the large scale winding down of community development projects, as well as over €760 million being cut from social welfare (representing an aggregate cut of 4.1% to all payments).48 The introduction of the Universal Social Charge and a €16 cut to child benefit have been highlighted as having a particular impact on vulnerable communities.49 In 2010, the Economic and Social Research Institute found that while there had been some decline in poverty rates, one sixth of families and one fifth of children were living in poverty in 2007, before the economic crisis hit.50 The Irish Human Rights Commission suffered a 37.5% reduction in funding in the period 2008-2010, from €2,342,000 in 2008 to €1,532,000 in 2010. Budget 2009 saw the reduction of the total budget of the Equality Authority, charged with overseeing the implementation of Ireland’s equality legislation, from €5.8 million to €3.3 million. The abolition of bodies such as the independent poverty oversight body Combat Poverty and the National Consultative Council on Racism and Interculturalism also went ahead. In 2010, the budget of the Law Reform Commission was cut by 31%, while the Legal Aid Board budget was reduced by 5%.51 A research report of Brian Harvey and Dr Kathleen Walsh, published under the auspices of the Equality and Rights Alliance, criticized heavily the impact of cutbacks on the operations of Irish Human Rights Commission and Equality Authority.52

48

Department of Finance, Budget 2010, 9 December 2009 Documents available at: http://budget.gov.ie/budgets/2010/2010.aspx 49

Irish Human Rights Commission, Report to UN Universal Periodic Review, March 2011 pp 15-16 provides a critical overview of these measures. Available at: www.ihrc.ie/download/pdf/ihrc_report_to_un_universal_periodic_review_march_2011.pdf 50

Economic and Social Research Institute, Monitoring Poverty Trends in Ireland 2004-2007: Key Issues for Children, People of Working Age and Older People, Dublin 2010. 51

All these measures are detailed in Irish Human Rights Commission, Report to UN Universal Periodic Review, March 2011. Available at: www.ihrc.ie/download/pdf/ihrc_report_to_un_universal_periodic_review_march_2011.pdf 52

B.Harvey & K. Walsh, Downgrading Equality and Human Rights, Equality and Rights Alliance Dublin, November 2009.

334

CORRESPONDENT REPORTS

One of the most prominent judgments produced against the background of the economic crisis, was the striking down of imprisonment for civil debt in the High Court case of McCann v the Judge of the Monaghan District Court and Others. 53 This case concerned a single parent with two children dependent on social welfare who faced imprisonment for inability to pay a contractual debt in circumstances where she was not present or represented when the District Court ordered her arrest and imprisonment. The plaintiff sought the striking down of six of the Enforcement of Court Orders Acts 1926 and 1940. In June 2009, Ms. Justice Laffoy delivered a judgment finding these provisions unconstitutional for their failure to secure fundamental constitutional rights to the fair administration of justice (Article 34); fair procedures (Article 40.1.3) and personal liberty (Article 40.4.1). Similar rights to those available to persons facing a criminal charge should apply to those facing proceedings relating to civil debts, namely legal representation, through legal aid if necessary, with a court only making an order for imprisonment where failure to pay was rooted in willful refusal or culpable neglect on the part of the debtor. The legislation was disproportionate in failing to impair the right to liberty as little as possible while being was largely futile in securing any remedy for a debtor.

The Criminal Justice (Amendment) Act 2009 The Criminal Justice Amendment Act 2009, passed in reaction to instances of gang activity in Limerick City, created a number of offences that may be tried in the nonjury Special Criminal Court. The Minister for Justice, Equality and Law Reform may schedule an offence where he feels the ordinary courts ‘are unable to secure the effective administration of justice’.54 The Act scheduled the offence of directing organised crime and participating in or contributing to activity which enhances the ability of a criminal organisation by facilitating its commission of a serious offence. Conviction for the latter offence is liable to a fifteen-year prison sentence. The scheduling of these offences was renewed for a further year in 2010. This provision was introduced notwithstanding the fact that under the International Covenant for

53

McCann v the Judge of the Monaghan District Court and Others [2009] IEHC 276.

54

Criminal Justice Amendment Act 2009, s 8.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Civil and Political Rights, the UN Human Rights Committee has consistently stressed to Ireland that any limitation to the right to trial by jury should take place in exceptional circumstances, where the Director of Public Prosecutions can establish on objective grounds that an effective trial cannot be provided by ordinary courts in the particular case.55

Prison Conditions The fifth country visit of the Council of Europe’s European Committee for the Prevention of Torture (CPT) took place between 25 January

and

5 February 2010. The

Committee reviewed the conditions of detention in prisons, safeguards in Garda stations, psychiatric institutions and accommodation for the intellectually disabled.56 Significantly, the Committee presented an interim report to the Minister for Justice, a step which is generally only taken where it has identified an urgent example of deficiencies in care. The issues identified for immediate response included the use of special observation cells, in particular the need to ensure that when used these are kept at an appropriate temperature and that appropriate steps are taken to ensure the prevention of self-injury.57 It also requested a full review of all prisoners at Cork, Midlands and Mountjoy Prisons receiving medication and to assess the health care needs of all other prisoners.58 The Committee’s final report was later published in February 2011.

55

Concluding Observations of the Human Rights Committee concerning Ireland’s Third Report under the International Covenant on Civil and Political Rights. CCPR/C/IRL/CO/3, issued the 30 July 2008, at para 20: ‘The Committee reiterates its concerns about the continuing operation of the Special Criminal Court and the establishment of additional special courts. The State party should carefully monitor, on an ongoing basis, whether the exigencies of the situation in Ireland continue to justify the continuation of a Special Criminal Court with a view to abolishing it. In particular, it should ensure that, for each case that is certified by the Director of Public Prosecutions for Ireland as requiring a nonjury trial, objective and reasonable grounds are provided and that there is a right to challenge these grounds.’ 56

The prisons visited by the CPT were Cork, Limerick (female), Midlands, Mountjoy, Portlaoise and St Patrick’s Institution. In addition, ‘targeted’ visits were paid to Cloverhill and Wheatfield to examine the care afforded to prisoners with a mental health disorder and a visit was also made to the Dóchas centre to interview a prisoner there. The visit is outlined fully in the Committee’s Report to the Government Ireland carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment. Council of Europe document, CPT/Inf (2011) 3, published 10 February 201 at pp 7-11. 57

ibid.

58

ibid.

336

CORRESPONDENT REPORTS

In October 2009 a number of landmark reports were published by the Office of the Inspectors of Prisons in Ireland.59 The Inspector found that no reasonable justification existed for the level of overcrowding in Mountjoy Prison. 60 He strongly condemned the practice of ‘slopping out’ particularly in Mountjoy prison stating that it ‘removes all vestiges of dignity from the prisoners and from the officers who have to oversee this procedure’.61 In creating recommendations on the use of ‘Special Cells’, the Inspector found a number of instances where these had been employed for general accommodation or management purposes rather than medical reasons.62 Despite the findings of the European Committee, a High Court challenge, Mulligan v Governor of Portlaoise Prison,63 failed to find that the practice of ‘slopping out’ constituted a breach of the fundamental rights of a former prisoner in Portlaoise. MacMenamin J ruled that, in the particular circumstances of the case, the practice did not amount to a breach of his rights under either the Constitution or under the European Convention on Human Rights.64

Immigration, Residence and Protection Bill 2010 On July 2 2010, the Minister for Justice published the Immigration, Residence and Protection Bill 2010, which incorporated amendments to the Immigration, Residence

59

Office of the Inspector of Prisons: The Prison Population – An Examination of Duties and Obligations owed to Prisoners, Report of an Investigation on the use of ‘Special Cells’ in Irish Prisons, Guidance on Best Practice relating to Prisoners’ Complaints and Prison Discipline, and Inspector of Prisons Annual Report (March 2009 – September 2010). 60

In July 2010, there 728 men imprisoned, with the Inspector having set the absolute maximum capacity at 540: ibid. 61

ibid at para 6.14.

62

He identified two types of ‘special cells’; safety observation cells and close supervision cells. Safety observation cells are designed to accommodate prisoners who require frequent observation for medical reasons or because they are a danger to themselves while close supervision cells are designed to accommodate prisoners who are a danger to others in the prison or who are disruptive and, in the opinion of management, need to be separated from other prisoners in order to maintain a safe and secure custodial environment. 63

Mulligan v Governor of Portlaoise Prison [2010] IEHC 269.

64

McMenamin J did however, stress that the decision cell ventilation was substandard and that while he was not declaring a breach of rights in this case this was not to be seen as a positive finding in terms of the standards of prison detention. He did cite the developing case law under the European Convention on Human Rights on the question of prison conditions. noting that the combination of slopping out with doubled up cells, prison overcrowding, and particular health vulnerabilities can lead to findings of violations. See, generally, Orchowski v Poland, Application No 17885/04 and Norbert Sikorski v Poland, Application No 17599/05. Cf later, contrary, decision of the High Court in Kinsella v Governor of Mountjoy Prison [2011] IEHC 235.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

and Protection Bill 2008. The proposed Bill represented the latest iteration of protracted political and legal debates around the creation of a consolidated, single procedure for asylum applications and for reforming Ireland’s immigration system. The 2010 Bill failed to provide any primary statutory rules to govern family reunification outside of one broad duty to facilitate the family reunification of refugees and other protection visa holders. 65 The Bill proposes the creation of the Protection Review Tribunal, which will hear appeals in relation to asylum and protection matters, and whose members shall be appointed by the Minister. In relation to the broader migration context, the Bill proposes the extension of full ministerial discretion over the charging of fees,66 and in attaching conditions to visas.67 It allows summary deportation of individuals by Gardaí, replacing the current fifteen day period for representations to be made to the Minister of Justice.68 It proposes that applications for judicial review of all actions taken under the legislation be 14 days. The Bill extended the forty five day period of reflection and recovery period for victims of trafficking to decide whether to co-operate with police investigations, proposed in the 2008 Bill, to sixty days.69 The Bill failed to pass before the change of government in 2010, but was placed on the Parliamentary Order Paper by the new Government, with its details currently being reviewed.70

Office of the Ombudsman for Children: Report on Separated Children In November 2009, the Office of the Children’s Ombudsman released a landmark

65

Immigration Residence and Protection Bill 2010, s 116.

66

Section 142(2) of the Bill permits the Minister to prescribe different fees by reference to factors or combination of factors as he or she considers appropriate, including: ‘whether in his or her opinion, and having regard to immigration policy, the entry into or presence in the State of persons of a particular class would be in the interest of the State’ and ‘the likely effect that a particular fee, if prescribed, would have on the demand for a visa or permission, or for a visa or permission of a particular category’. 67

Section 18 allows the Minister to impose additional conditions to foreign nationals granted visas ‘as the Minister considers appropriate’ and the Minister may ‘on his or her own initiative’ modify the conditions of a residence permission under the Immigration, Residence and Protection Bill 2010, s 41/ 68

Immigration, Residence and Protection Bill 2010, ss 59-60.

69

Immigration, Residence and Protection Bill 2010, s 139.

70

Minister for Justice, Alan Shatter, in response to Parliamentary Question, Dail Debates, Vol. 743 No. 1, 11 October 2011.

338

CORRESPONDENT REPORTS

report on Separated Children Living in Ireland.71 This found a failure to treat separated, non-national children equally to Irish children, detailing practices such as accommodating them in unregistered private hostels and denying those considered not to be ‘at risk or vulnerable’ access to a social worker. Furthermore, the report identified issues with age verification methods, and outlined children’s own understanding and experiences of the asylum system in Ireland.

International Human Rights Monitoring In 2009, Ireland’s engagement with United Nations Treaty Bodies consisted of the creation of its One Year Follow Up Report to the Human Rights Committee under the International Covenant on Civil and Political Rights.72 This provided information on the measures the State had taken to implement the Concluding Observations of the Human Rights Committee in 2008. 2010 saw the submission of Ireland’s Third and Fourth Reports under the Convention for the Elimination of All Forms of Racial Discrimination73 and its first under the Convention Against Torture74 which were to be examined in 2011. The Irish Human Rights Commission and civil society also began collaborations for Ireland’s first examination by the United Nations Human Rights Council under the Universal Periodic Review mechanism in 2011.

71

Office of the Children’s Ombudsman, Separated Children Living in Ireland, November 2009, Dublin: Stationery Office. 72

Government of Ireland, Follow Up Response by State Party to Concluding Observations of the Human Rights Committee, UN Doc. CCPR/C/IRL/CO/3/ADD.2. 73

Government of Ireland, Third and Fourth Reports under the Convention for the Elimination of All Forms of Racial Discrimination, UN Doc: CERD/C/IRL/3-4. 74

Government of Ireland, Initial State Report under the Convention Against Torture, UN Doc. CAT/C/IRL/1

339

THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

340

CORRESPONDENT REPORTS

HUMAN RIGHTS IN NORTHERN IRELAND: 2009- 2010

PROF. BRICE DICKSON

QUEEN’S UNIVERSITY BELFAST

Taken in the round, the human rights situation in Northern Ireland improved during 2009 and 2010, but there were still many instances where violations occurred. On the law-making front, several new pieces of legislation and judicial decisions enhanced the protection which should be afforded to people in Northern Ireland in the future, but in other respects the legislators and judges adopted what human rights activists would view as disappointing positions. As ever, more remains to be done to improve the human rights situation, although it would be difficult to argue that human rights are less well protected in Northern Ireland than in other parts of the United Kingdom or Ireland.

Violent crime The low point of the period was the murder by dissident republicans in March 2009 of two soldiers in Antrim and a police officer in Lurgan. These were the first killings of security force personnel by any paramilitary grouping since October 1998. Paradoxically, they did more to consolidate the peace process than any other event in the two years under review with politicians from across the sectarian divide presenting a more united front than ever before. In addition, four civilians were murdered by paramilitaries during the two years, bringing to 108 the total number of people killed in troubles-related incidents since the Belfast (Good Friday) Agreement in 1998. In 2009 there were 75 shooting incidents, 51 bombing incidents and 122 paramilitary ‘punishments’, all leading to 136 casualties; in 2010 the figures were 81 shooting incidents, 90 bombing incidents and 94 punishment attacks, resulting in 116 casualties.1 The independent reviewers of anti-terrorism legislation indicated that

1

Figures taken from the PSNI’s statistics, available at www.psni.police.uk.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

there were 22 ‘national security attacks’ in 20092 and 42 in 2010,3 and the level of terrorist threat remained ‘severe’ at the end of 2010.4 Fourteen terrorist organisations connected to Northern Ireland remained proscribed.5 In 2009, 163 people were arrested for terrorist-related incidents, with 40 being charged; in 2010, 205 were arrested and 48 charged.6 The conflict, clearly, has by no means terminated. The level of ‘ordinary’ violent crime remained much as it was during the previous six years, at about 30,000 victims per year. The violent crime rate is 17 per 1,000 people in the population, although almost one-half of these incidents do not in fact lead to injuries. The figures mean that Northern Ireland is one of the safest areas in the whole of Europe. However the number of recorded rapes was higher in 2010-11 than ever before (550, a rise of 89 over the 2009-10 figure). Conversely, the level of property crime (which includes burglary, theft, fraud and criminal damage) was lower in 2010-11 than in any year since 1998-99. The peace process in Northern Ireland has therefore not seen a rise in ordinary crime comparable to that which has occurred in some other societies emerging out of conflict, such as El Salvador and South Africa.

Terrorism Law The change of government in London in May 2010 (when a Conservative-Liberal Democrat coalition supplanted Labour) led to two fairly immediate changes to terrorism law throughout the UK. First, the power to extend the detention of terrorist suspects up to 28 days was dropped, leaving the maximum detention period at 14 days. Very few detentions had endured for anything like 28 days (and none in Northern Ireland), and their incompatibility with any part of the European Convention

2

See Robert Whalley’s Third Report on the Justice and security (NI) Act 2007, para 113: www.nio.gov.uk/independent_reviewers_third_report.pdf. 3

See David Anderson’s First Report on the Terrorism Act 2000, para 2.18: terrorismlegislationreviewer.independent.gov.uk/publications/Terrorism_Act_2000_and_2006annual_independent_review2010.pdf. 4

ibid, para 2.31. The Independent Monitoring Commission confirmed the seriousness of the ongoing paramilitary threat: see 23rd Report (May 2010) and 25th Report (November 2010). 5

David Anderson’s First Report on the Terrorism Act 2000, para 2.18: terrorismlegislationreviewer.independent.gov.uk/publications/Terrorism_Act_2000_and_2006annual_independent_review2010.pdf, para 4.19 6

www.psni.police.uk/persons_arrested_and_charged_cy.pdf.

342

CORRESPONDENT REPORTS

was never conclusively tested. A challenge did arise in the case of Colin Duffy, who was detained in connection with the murder of the two soldiers in Antrim in 2009, but it ultimately proved unsuccessful,7 as this author had suggested it might.8 The European Convention does not impose any time limits on pre-charge detention and the European Court has never stipulated any such limits; the four-day limit which derives from another Northern Ireland case, Brogan v UK,9 relates only to the maximum period that can elapse between the start of a person’s detention and his or her initial appearance before a judge. However, the Northern Ireland Human Rights Commission correctly pointed out that conditions in the custody suite at Antrim Police Station, where all terrorist suspects in Northern Ireland are questioned prior to being charged, are ‘completely inappropriate’ for long detentions.10 The second change made by the new government was to suspend the power to stop and search anyone even when there is no suspicion of his or her involvement in terrorism.11 The suspension followed a judgment of the European Court of Human Rights, in Gillan and Quinton v UK,12 where the judges unanimously disagreed with a ruling by the House of Lords. The Law Lords had seen no violation of Article 5 of the European Convention (the right to liberty) in the way the stop and search powers were being applied.13 The European Court found it unnecessary to decide that issue but held that it was clear that the powers did violate Article 8 (the right to a private life). This was because the measures taken were not ‘in accordance with the law’, as required by Article 8(2). Although Lord Bingham had identified 11 constraints on any abuse of the power, in the European Court’s eyes these constraints ‘have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so

7

Re Duffy’s Application (No 2) [2011] NIQB 16 (Div Ct).

8

B Dickson, ‘Article 5 of the ECHR and 28-day pre-charge detention of terrorist suspects’ (2009) 60 NILQ 231.

9

(1989) 11 EHRR 117.

10

news.bbc.co.uk/1/hi/northern_ireland/7961220.stm.

11

Terrorism Act 2000, s.44. For a useful examination of the use of this power see Without Suspicion: Stop and Search under the Terrorism Act 2000, Human Rights Watch (New York, USA; 2010). 12

(2010) 50 EHRR 45.

13

R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12, [2006] 2 AC 307.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

as to offer the individual adequate protection against arbitrary interference’.14 When suspending the use of the stop and search power in July 2010 the Home Secretary announced that she would set up a Review of Security and Counter-Terrorism Powers, to be carried out by a unit within the Home Office itself, but subject to the independent supervision of Lord Macdonald QC, a former Director of Public Prosecutions.15 The stop and search power had been used extensively in Northern Ireland. In 2008 it was used on 6,922 occasions, but in 2009 this figure rose by 354% to 24,519 and in 2010 it was 17,433 (even though it was suspended in July).16 The main targets were, of course, so-called dissident republicans, who still think that the use of violence is justified in the struggle for a united Ireland. Some commentators queried the need for such increased use of the power, likening it to the harassment which was allegedly suffered in pre-Good Friday Agreement days. The police also considerably stepped up their resort to two comparable powers conferred by the Justice and Security (NI) Act 2007: the power to stop and question under section 21 was used on just 101 occasions in 2008 but on 3,434 occasions in 2009 and 6,197 occasions in 2010, while the power to stop and search under section 24 and Schedule 3 (which is restricted to searches for munitions and wireless apparatus) was used on 437 occasions in 2008, 447 occasions in 2009 and a whopping 8,395 occasions in 2010.17 One should not forget the power under section 43 of the Terrorism Act 2000 to stop and search persons who are reasonably suspected of being a terrorist. This was used in Northern Ireland 47 times in 2008, 94 times in 2009 and 417 times in 2010. No statistics are published on how many of these various stops led to the discovery of valuable information, or to arrests, but the police would doubtless claim that in any event they had an essential, if unquantifiable, value in deterring the movements of terrorists.

14

ibid, para 79.

15

The Review was completed in January 2011.

16

PSNI Stop and Search Statistics: www.psni.police.uk/index/updates/updates_statistics/updates_stop_and_search_statistics.htm 17

ibid.

344

CORRESPONDENT REPORTS

Robert Whalley, the Independent Reviewer of the operation of the terrorism laws in the Justice and Security (NI) Act 2007, issued his second report in November 2009 and his third in November 2010. In both he concluded that the powers under review were definitely still needed in Northern Ireland.18 In his 2009 report he noted that no-one had raised with him any issues relating to disproportionate, unjustified, unreasonable, unnecessary or discriminatory use of the powers.19 He was also satisfied with the way the police had responded to the criticisms made in his 2008 report concerning uncertainty over which powers were being employed at any particular time.20 In his 2010 report Mr Whalley made minor recommendations as to how police practice in relation to the powers could be improved, and he admitted that ‘there is still some way to go in pursuit of best practice’, but he found that the increased use of the powers was necessary to fulfill the State’s obligation to protect the right to life under Article 2 of the European Convention.21 The UK’s reviewer of the Terrorism Act 2000, Lord Carlile of Berriew QC, had virtually nothing to say about Northern Ireland in his 2009 report, but his successor, David Anderson QC, said in 2010 that the low proportion of those arrested under section 41 of the Terrorism Act who were later charged with terrorism offences suggests the arrest power was being overused in Northern Ireland.22 He added that, despite the frequent use of the arrest power, lengthy periods of detention, as well as charges for terrorist offences, were relatively rare.23 This is ominously reminiscent of the way emergency powers were deployed in Northern Ireland prior to the Good Friday Agreement. The UK’s top court dealt with two cases concerning control orders issued under the Prevention of Terrorism Act 2005 during the time period under consideration here. In the first, AF,24 the House of Lords applied the recent decision

18

Paras 252 (2009 Report) and 299 (2010 Report).

19

Para 224.

20

Para 95.

21

Para 279.

22

At p 6; see too paras 7.32-7.35.

23

At para 7.33.

24

Secretary of State for the Home Department v AF [2009] UKHL 28, [2010] 2 AC 269.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

of the Grand Chamber of the European Court of Human Rights in A v UK25 and ruled that the procedure for imposing control orders on the three appellants did not comply with their right to a fair hearing under Article 6 of the European Convention because the judge in question had relied upon material received in a closed hearing where the nature of the information was not disclosed to the appellants. The Law Lords said that the relevant provisions of the 2005 Act should accordingly be ‘read down’, using section 3 of the Human Rights Act 1998, to make them compatible with Article 6. A controlee cannot be denied knowledge of the essence of the case being made against him or her. In the second case, AP,26 the UK Supreme Court ruled that conditions imposed upon a controlee which may be proportionate in relation to Article 8 of the Convention (the right to a private and family life) can nevertheless ‘tip the balance’ in relation to Article 5 (the right to liberty). To date, however, no control order has been issued relating to any person ordinarily resident in Northern Ireland. There were two new pieces of anti-terrorist legislation during this period. The first concerned asset-freezing. In Ahmed v HM Treasury the UK Supreme Court ruled that asset-freezing Orders which had been issued under the United Nations Act 1946 were ultra vires because they adversely affected the basic rights of individuals without the clear authority of Parliament.27 In an excellent illustration of the doctrine of Parliamentary sovereignty, Parliament then quickly passed the Terrorist AssetFreezing (Temporary Provisions) Act 2010, which affirmed the validity of the Orders already made, notwithstanding the Supreme Court’s decision. This gave Parliament further time to draft, consult on, and pass a further Act, the Terrorist Asset-Freezing Act 2010, which, through amendments made to the Counter-Terrorism Act 2008, gives power to the Treasury to impose financial restrictions on individuals in response to money-laundering, terrorist financing or the development of nuclear, radiological, biological or chemical weapons. While the legislation is primarily aimed at international terrorists, it could in theory be applied to individuals connected to terrorist financing in Northern Ireland. The second piece of legislation was the Crime and Security Act 2010, which allowed for the creation of a scheme to compensate

25

(2009) 49 EHRR 29.

26

Secretary of State for the Home Department v AP [2010] UKSC 24, [2011] 2 AC 1.

27

[2010] UKHL 2, [2010] 2 AC 534.

346

CORRESPONDENT REPORTS

victims of terrorism occurring overseas.28 This in effect extends the Criminal Injuries Compensation Schemes which are already applicable throughout the United Kingdom. Sticking with overseas terrorism, the Supreme Court issued an interesting judgment in R (JS) (Sri Lanka) v Secretary of State for the Home Department,29 where it held that the Tamil Tigers (the LTTE) could not be said to be ‘predominantly terrorist in character’ and that too narrow an interpretation should not be given to Article 1F(a) of the Convention on the Status of Refugees 1951, which allows courts to deny asylum to persons in respect of whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity. This is a very liberal judgment but was hardly remarked upon by the press. In 2009 the system whereby defendants accused of terrorism-related crimes can be tried without a jury in Northern Ireland (in what were formerly known as Diplock courts) was extended for a further two-year period.30 A challenge to the use of these juryless trials failed, the Divisional Court holding that the wording of the legislation was clear.31 A further challenge to a separate statutory provision allowing for non-jury trials in cases of suspected jury-tampering (which is applicable in England and Wales too) also failed;32 the judge in question carefully considered the views expressed by Lord Judge CJ in an English Court of Appeal case,33 but he was convinced that in the case before him there was no breach of human rights in proceeding with a trial without a jury.34

28

ss 47-54.

29

[2010] UKSC 15, [2011] 1 AC 284.

30

Justice and Security (NI) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009 (SI 2090).

31

Re Arthurs’ Application [2010] NIQB 75.

32

Re Clarke’s Application [2010] NICC 7.

33

R v T [2009] 3 All ER 1002.

34

See further on these cases, B Dickson and T McGleave, ‘Human rights in the courts of Northern Ireland 200910’ (2010) 61 NILQ 411, 418-420.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Dealing With the Past There are still a number of troubles-related killings in Northern Ireland in which inquests have not been completed. This is because a test case, concerning the killing by British soldiers of Martin McCaughey in 1990, has been winding its way through the courts. In 2007 the House of Lords held that the Court of Appeal of Northern Ireland had been wrong to deny the coroner access to documents held by the police.35 Even though the Human Rights Act 1998 did not govern the way in which an inquest into a death occurring before 2000 should be held, there was a continuing obligation on the police, imposed by section 8 of the Coroners Act (NI) 1959, to supply the coroner with such information as the police had obtained, at whatever time. In separate proceedings the Chief Constable of the PSNI tried to prevent the coroner from releasing to the families of nine men killed by the security forces extracts from the Stalker and Sampson reports into the alleged ‘shoot-to-kill’ policy of the army and police during the 1980s. The Chief Constable wanted the coroner to rule first on the relevance of the materials. But Gillen J rejected the Chief Constable’s application, saying that the concepts of fairness, proportionality and transparency inherent in the European Convention made it entirely rational and proportionate for the coroner to conclude that he must permit the families to see the entirety of the reports, redacted as necessary to protect sensitive material and the right to life of police officers.36 Also in the courts, a man of no previous criminal record, Christy Walsh, won his appeal against his 1991 conviction for possession of explosives.37 The case had been referred to the Court of Appeal of Northern Ireland by the Criminal Cases Review Commission and the judges found that the conviction was unsafe because evidence had emerged that a more likely person responsible for the explosives was a senior IRA man whose arrest on the same day had not been disclosed by the police to Walsh’s defence team. The forensic evidence was also discredited. Mr Walsh is now fighting the Department of Justice for compensation, given that he served a 14-year prison sentence for an offence of which he should never have been convicted. The

35

McCaughey v Chief Constable of the PSNI [2007] UKHL 14, [2007] 2 AC 226, reversing in part [2005] NICA 1, [2005] NI 344. 36

Re Chief Constable of the PSNI’s Application [2010] NIQB 66, at para 46.

37

[2010] NICA 7.

348

CORRESPONDENT REPORTS

long-standing claim for compensation by Colin Worton, who in the 1980s spent 30 months on remand in custody before being acquitted by a judge because his ‘confession’ was inadmissible, eventually ran into the sands when Treacy J ruled that there had been no serious default on the part of the police officers who took the confession.38 But later in 2010 the PSNI’s Historical Enquiries Team announced that it was reviewing the investigation into the murder of Adrian Carroll, in which Colin Worton was supposedly implicated. If this review vindicates Mr Worton he may still receive an ex gratia payment for the losses he suffered as a result of his experiences. Many other crimes from the past were also re-considered during this two-year period. The family of Nora McCabe, killed by a plastic bullet fired by an RUC officer in 1981, learned that there was no rioting going on at the time of her death and that the police were not under attack. The Divisional Court said that the DPP should have considered prosecuting police officers for perjury at the time but also accepted that to do so now, 30 years later, would be an abuse of process.39 The Bloody Sunday Inquiry Report was finally published in June 2010 and was accompanied by a statesmanlike apology from Prime Minister David Cameron for the 14 deaths caused by the British parachute regiment in 1972. Memorably, he said that the deaths were ‘unjustified and unjustifiable’.40 The initial Bloody Sunday Inquiry, conducted in haste by Lord Widgery in 1972, was completely discredited, and in Derry’s Guildhall Square a relative of one of the victims ceremoniously ripped that report in two. A few months later the Billy Wright Inquiry Report was also published: it found that there had been serious failings by the Northern Ireland Prison Service in allowing a lethal attack to take place inside a high security prison in 1997, but that there had been no collusion between prison officers and republican paramilitaries.41 The Inquiry adopted a narrower interpretation of the term ‘collusion’ than Judge Peter Cory had done in his preliminary reports into the Billy Wright and other killings in 2003. By the end of 2010, inquiry reports on the murders of Rosemary Nelson and Robert Hamill were

38

Re Worton’s Application [2010] NIQB 14.

39

In re McCabe’s Application [2010] NIQB 58 (Coghlin LJ).

40

HC Debs, 15 June 2010, col 739.

41

See www.billywrightinquiry.org.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

still pending, and there remained a stand-off over whether an inquiry should be established into the death of the solicitor Pat Finucane. In these economically straitened times, and because inquiries are not always certain to arrive at an agreed ‘truth’, it seems unlikely that there will be further inquiries on the scale of those that have already occurred. The PSNI’s Historical Enquiries Team continues to look into unsolved murders, but its work is proceeding very slowly and its funding is due to expire in 2013.42 The credibility of the Police Ombudsman’s work on historical inquiries took a severe hit in 2010 when its report into the 15 deaths caused by a bomb in Belfast’s McGurk’s Bar in 1971 had to be amended because of factual inaccuracies.43 The former Police Ombudsman, Baroness O’Loan, together with barrister Richard Harvey, were appointed as independent overseers of the PSNI’s investigation (known as Operation Stafford) into crimes committed by UVF informers whose activities had been ‘overlooked’ by the RUC at the time.44 The campaign to have an inquiry into the so-called Ballymurphy Massacre in 1972 was still being earnestly waged at the end of 2010. In July 2010 the Victims Commissioners produced a report advising the UK government on how to deal with the past in Northern Ireland,45 but the government has been slow to respond. The Secretary of State, Owen Paterson, has said that he is impressed by the Historical Memory Documentation Centre in Spain, which provides access to a large number of documents relating to the Spanish Civil War of 1936-39, and this may turn out to be the model which the government will try to emulate in Northern Ireland. At Westminster the Northern Ireland Affairs Committee agreed with Mr Paterson that ‘time is our friend in achieving the distance that will allow these wounds to heal’ and it suggested that the time was not yet right for the recommendations made by the Consultative Group on the Past in January 2009 (in the

42

In 2010 the HET issued a report into the shooting by the army of William McGreanery in 1971. It concluded that Mr McGreanery was an entirely innocent man. British Irish Rights Watch and the Pat Finucane Centre point out that the Attorney General’s refusal to charge the soldier concerned with any offence (despite the police’s recommendation to do so) helped to develop what became a culture of impunity in the army. The case also shows up how terribly inadequate were the army’s own investigations of such incidents by their Special Investigations Branch. 43

www.bbc.co.uk/news/10568882.

44

www.u.tv/news/Nuala-OLoan-to-oversee-UVF-probe/d89366cc-c184-4830-a298-40d0113af328.

45

Dealing with the Past: Advice to Government, available on www.cvsni.org.

350

CORRESPONDENT REPORTS

so-called Eames-Bradley Report46) to be implemented.47 The impact of that report was severely undermined by the huge amount of opposition that was vented to its recommendation that a payment of £12,000 should be made to the families of all people killed during the troubles, even to those who were committing gross acts of violence when they died. Another infamous murder, that of the journalist Martin O’Hagan in 2001, remained unsolved during the two year period. The charges against five men accused of the killing were dropped in July 2010.48 The only person to have been imprisoned in connection with the Omagh bomb in 1998, Colm Murphy, was acquitted in his retrial in Dublin in 2010 and this helped to prompt a further report by the Northern Ireland Affairs Committee. The main unanswered question, said the Committee, was what public interest justification there could be for withholding intelligence from the team of detectives who investigated the bombing.49 An inquiry conducted by Sir Peter Gibson, the Intelligence Services Commissioner, had not addressed that point.50 Just before the May 2010 general election, much to the Committee’s disgust, the Labour government responded to its report by refusing to reveal the full details Sir Peter’s inquiry.51 British Irish Rights Watch joined the call for an independent, cross-border inquiry into the Omagh bomb itself as well as the police investigation of the atrocity. In June 2009 Colm Murphy, along with three other men, was found liable in a civil action brought by relatives of people killed by the bomb, and the defendants were ordered to pay £1.6 million in damages. But an appeal was lodged.52

46

www.consultationonthepast.org.

47

2009-10, 2nd Report, HC 171, para 122.

48

Many threats have since been made against journalists working for the same newspaper. See www.guardian.co.uk/uk/2011/sep/25/martin-ohagan-killers-at-large. 49

2009-10, 4th Report, HC 374, para 48.

50

Review of intercepted intelligence in relation to the Omagh bombing of 15 August 1998, published 16 January 2009. This is only a summary of Sir Peter’s full report. 51

2009-10, 8th Report, HC 440.

52

In July 2011 the Court of Appeal dismissed the appeal by two of the defendants and allowed the appeal by the remaining two, one of whom was Mr Murphy. But the court ordered that the civil case against him should be retried.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Criminal Law In the field of criminal law the major development was the devolution of responsibility for criminal justice and policing to the devolved administration in Belfast. The path was first cleared by the Northern Ireland Act 2009, which authorized the creation of a new Department within the Northern Ireland Executive. A week after an inter-party agreement had been reached at Hillsborough Castle on 5 February 2010, the Northern Ireland Assembly passed the Department of Justice Act (NI) 2010, which provided for the establishment of a Department of Justice and the appointment of a Minister. The Department went live on 12 April 2010, when David Ford of the Alliance Party was elected to serve as the Minister by a cross-community vote in the Assembly. The precise details of which powers have been devolved to the Department are set out in the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010.53 Responsibility for terrorist law, and for the Northern Ireland Human Rights Commission, remains with the UK government, but almost everything else in the justice field has been transferred to Stormont. One of the last changes made to Northern Ireland’s criminal law before devolution occurred was the abolition of the common law defence of provocation to a charge of murder: it has been replaced by the defence of ‘loss of control’.54 While this could be portrayed as enhancing the right to life of those people who lose control when they are overcome by a sense of fear instilled by someone’s persistent violence, it could also be viewed as a diminution of the right to life of those whose killing is to some extent ‘excused’ by the new defence (which reduces the offence from murder to manslaughter). The Crime and Security Act 2010, meanwhile, changed the law in Northern Ireland concerning the police’s powers to take fingerprints and samples: they can now be taken from people who have been arrested but then released on bail. In the courts there were several interesting rulings on the protection of human rights within the criminal law. In 2009 the Court of Appeal rejected the challenge made by the Northern Ireland Commissioner for Children and Young People to the legality of article 2 of the Law Reform (Miscellaneous Provisions) (NI) Order 2006,

53

SI 976. See G Anthony, ‘The Devolution of Policing and Criminal Justice’ (2011) 17 European Public Law 197.

54

Coroners and Justice Act 2009, ss 54-56.

352

CORRESPONDENT REPORTS

which specified that the defence of reasonable punishment could not be used in situations where a person was charged with, or sued for, the assault of a child. What the article did not say was that the common law defence of reasonable parental punishment was being abolished and the Commissioner argued that it was therefore incompatible with Articles 3, 8 and 14 of the European Convention. But the Court of Appeal rejected this claim, first and foremost because the Commissioner was not a ‘victim’ under the Human Rights Act 1998, but also because eliminating the common law defence would create a crime (in breach of the Human Rights Act55 and also of Article 7 of the Convention56) and would violate the rule that a failure to introduce legislation cannot be a breach of rights. 57 In Northern Ireland the Human Rights Commission is the only body which has standing to take cases under the Human Rights Act even though it is not itself a victim,58 but it had not exercised this power by the end of 2010.59 The UK Supreme Court made a bold decision in R v Horncastle60 to the effect that the law on admitting hearsay evidence in criminal cases (which is the same in Northern Ireland as it is in England and Wales) is perfectly compatible with Article 6 of the European Convention, despite the ruling to the contrary by a Chamber of the European Court of Human Rights in Al-Khawaja and Tahery v UK.61 The matter is now being considered by the Grand Chamber of the European Court of Human Rights. The Human Rights and Equality Commissions in Northern Ireland jointly published a report on the phenomenon of human trafficking, calling for a more

55

s 7(8).

56

Which prohibits retrospective criminalisation of conduct (although this turned not to be an obstacle when the defence available to husbands accused of raping their wives was judicially removed: see R v R [1002] 1 AC 559 and CR v UK (1996) 21 EHRR 363). 57

Human Rights Act 1998, s 6(6).

58

Northern Ireland Act 1998, s 71(2B), inserted by Justice and Security (NI) Act 2007, s 14(2).

59

There were suggestions that the Commission might take judicial review proceedings concerning the Executive’s failure to amend the law on adoption to allow unmarried couples to jointly adopt a child. 60

[2009] UKSC 14, [2010] 2 AC 373. See Marny Requa ‘Absent witnesses and the UK Supreme Court: judicial deference as judicial dialogue?’ (2010) 14 International Journal of Evidence and Proof 208. 61

(2009) 49 EHRR 1.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

coordinated inter-agency response.62 A year later the PSNI rescued six alleged victims of trafficking and charged four people with trafficking offences as part of the UKwide Operation Apsis. It appears that many trafficking victims in Northern Ireland originate from Eastern Europe. In June 2009 there was a shocking outbreak of hostility towards Romanian Romas living in South Belfast, many of whom had to seek refuge in a church and a leisure centre before the Housing Executive was able to find them emergency accommodation. More than 100 Romas opted to be flown back to their home country rather face further racism locally. A separate Attorney General for Northern Ireland was appointed in the wake of the devolution of policing and justice in 2010. One of the statutory duties of that official is to issue guidance for criminal justice organizations on the exercise of their functions in a manner consistent with international human rights standards.63 Little progress had been made on the fulfillment of that duty by the end of the year.

Prisons The average daily prison population in Northern Ireland fell in 2009 by 2% to 1465,64 but in 2010-11 it rose to 1507.65 There continue to be serious human rights deficiencies in the way the prison system operates. One stark indicator of this is the number of suicides occurring within the prisons – at least six in 2009 and three in 2010. The thorough reports conducted into these deaths by the (still non-statutory) Prisoner Ombudsman tend to be rather critical of the Northern Ireland Prison Service. The Ombudsman’s website currently carries six such reports published in 2009 and eight in 2010.66 They highlight failures in the training of staff and flaws in the system for transmission of important health information. In some instances the appropriate policies and processes were in place but there was no evidence that adherence to them was being audited. A separate review of the events leading up to one of the deaths,

62

The Nature and Extent of Human Trafficking in Northern Ireland (2009).

63

Justice (NI) Act 2004, s 8.

64

Department of Justice, The Northern Ireland Prison Population in 2009, Research and Statistical Bulletin 2/2010. 65

Annual Report of the Northern Ireland Prison service 2010-11, p 97.

66

www.niprisonerombudsman.com/

354

CORRESPONDENT REPORTS

that of Colin Bell, led to a recommendation that no fewer than 10 prison officers be dismissed. One of the first steps taken by the new Minister of Justice in Northern Ireland in 2010 was to establish a Prison Review Team, led by the former Inspector of Prisons in England and Wales, Dame Anne Owers. By year’s end it was clear that the review was minded to recommend a radical overhaul of the Prison Service, and that the Minister of Justice was sympathetic to that direction of travel. Some nationalist politicians called for the Prison Service to be ‘Pattenised’, i.e. completely reformed in the way that occurred for the police following the Patten Commission Report in 2000. The Prison Service is replete with officers who have served many years on generous pay packages (because of the dangers traditionally associated with their job), and the influence of the Prison Officers’ Association is considered to be less than helpful as far as reform is concerned. In 2009 a joint report on Maghaberry Prison by HM Inspector of Prisons and the Criminal Justice Inspectorate of Northern Ireland (CJI) was unable to conclude that the prison was performing sufficiently well under any of the four headings examined: safety, respect, purposeful activity and resettlement. Indeed on safety and purposeful activity the prison was found to be performing poorly. The report repeated 76 recommendations that had been made in an earlier report but had not yet been implemented and added 124 new recommendations. It said that the focus of attention needed to be on reforming governance and accountability arrangements, improving the relationship between Prison Service headquarters and the prison, and changing ‘established working practices’. A CJI report into Magilligan Prison in 2010 noted some improvements to the physical aspects of the prison but found that industrial action by prison officers was adversely affecting the entire regime by, for example, seriously limiting the time prisoners could spend out of their cells and in purposeful activities.67 Trouble within Maghaberry Prison’s ‘separated’ wings for republican and loyalist prisoners simmered throughout the period. In 2010 the Prisoner Ombudsman reported on the regime and made 16 recommendations, including that there should be a review of the procedures for lockdowns and strip-searching.68 Judicial review

67

Page v.

68

Investigation into complaint MY00518/10 concerning Roe House in Maghaberry Prison (June 2010).

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

proceedings were brought in relation strip-searching, but these were eventually unsuccessful.69 It does seem extraordinary that paramilitary-affiliated prisoners still have to be housed apart from ‘ordinary’ prisoners, and then further segregated on the basis of community background, but the Prison Service may well be failing in its positive obligation to protect the right to life of prisoners if it did not retain such an approach. At the end of 2010 the situation remained potentially explosive, as a ‘dirty protest’ continued in the republican wing. Any prisoner wishing to complain about illtreatment in prison can now rely on the National Preventive Mechanism set up as a result of the UK’s ratification of the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The four bodies contributing to the NPM in Northern Ireland are the Policing Board’s Independent Custody Visiting Scheme, the Prison Service’s Independent Monitoring Boards, the Criminal Justice Inspectorate and the Regulation and Quality Improvement Authority (which examines detention in hospitals). In both years each of the IMBs reported in some detail on conditions in the prisons, highlighting issues such as the prevalence of drugs and the need for better mental health care. In 2009 the CJI reported reasonably favourably on detentions in police stations and on arrangements for assessing the risk presented by those serving life sentences,70 but it was less complimentary about the regime for handling vulnerable prisoners.71 The CJI published a broader report in 2010 into mental health throughout the criminal justice system in Northern Ireland.72 This pointed out that one in six of the individuals placed in custody has mental health issues and that 78% of male prisoners on remand and 50% of female prisoners have a personality disorder. The CJI recommended that more should be done to divert offenders away from custody, to improve the quality of care for those who are in custody, and to successfully re-integrate prisoners after they have been released. The key to all of this (apart from extra resources) is greater collaboration between the various agencies involved.

69

Re Conway’s Application [2010] NIQB 40 and [2010] NIQB 49 (Treacy J).

70

Police Custody (June 2009); Life Sentence Prisoners in Northern Ireland (April 2009).

71

‘The day-to-day regime for vulnerable prisoners [in Maghaberry Prison] is not adequate for their on-going care and improvement. Prisoners continue to spend too long in their cells, have inadequate multi-disciplinary care and limited access to out-of-cell activities. The assessment and monitoring of prisoners at risk is also inconsistent.’ Inspection report on Vulnerable Prisoners (December 2009), at 6. 72

Not a marginal issue: Mental health and the criminal justice system in Northern Ireland.

356

CORRESPONDENT REPORTS

Several decisions of the House of Lords and (after October 2009) the Supreme Court impacted on prisoners’ rights during this period. The covert surveillance of interviews between solicitors and their clients was deemed acceptable (under certain conditions) in the Northern Irish appeal of McE v Northern Ireland Prison Service, 73 and in RB (Algeria) v Secretary of State for the Home Department the House accepted that deportations could be made to countries such as Algeria and Jordan despite their very poor record on torture (assurances that no ill-treatment would take place were considered to be satisfactory).74 The use of indeterminate sentences for public protection (IPPs), which are available in Northern Ireland under the Criminal Justice (NI) Order 2008, was deemed not to violate Article 5 of the European Convention,75 and nor did the Secretary of State’s power to reject a recommendation by the Parole Board that a prisoner serving a determinate sentence of more than 15 years should be released.76 There was no resolution of the conflict arising out of the decision of the European Court of Human Rights in Hirst v UK (No 2),77 which held that the UK’s draconian ban on prisoners’ voting was a violation of Article 3 of Protocol 1 to the Convention. The 2010 general election went ahead under the old rules on voting rights, notwithstanding that Hirst was decided in 2005. This is likely to be an issue causing serious tensions within the new coalition government. In 2009 the Northern Ireland Human Rights Commission published a report on the extent to which human rights are protected when decisions are taken in Northern Ireland to detain individuals who are not nationals of the UK.78 The investigation raised serious concerns about the way in which immigration officers engage with nonnationals; it revealed that some detainees are not informed of their right to access legal advice and that resource considerations can determine whether they have access to an interpreter.

73

[2009] UKHL 15, [2009] 1 AC 908. See too re Maguire’s Application [2010] NIQB 18, where Treacy J confirmed that the High Court, rather than the Investigatory Powers Tribunal, had jurisdiction in such cases. 74

[2009] UKHL 10, [2009] 2 AC 110.

75

R (Walker) v Secretary of State for Justice [2010] UKHL 22, [2010] 1 AC 553.

76

R (Black) v Secretary of State for Justice [2010] UKHL 1, [2010] 1 AC 949.

77

(2006) 42 EHRR 41.

78

N. Latif & A. Martynowicz, Our Hidden Borders: The UK Border Agency’s Powers of Detention.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Policing Positive discrimination in favour of the recruitment of Catholic officers to the Police Service of Northern Ireland continued throughout the period but, after 10 years,79 it was due to be brought to an end in March 2011 when the proportion of Catholic officers was projected to be about 29%. In 2009-10 the number of complaints made to the Police Ombudsman about the behaviour of police officers rose to 3,542 and remained at 3,313 in 2010-11. In three of the previous six years the annual total had been less than 3,000. The vast majority of these complaints related to minor issues (such as incivility), which could not be classified as violations of human rights, but in the last two years there was a combined total of 3,779 allegations of ‘oppressive behaviour’ (29% of all allegations), a worrying sign. The decision of the House of Lords upholding the police tactic of ‘kettling’ protestors applies in Northern Ireland as in other parts of the UK,80 but it is being challenged in Strasbourg as a violation of Articles 5 and 8 of the European Convention. However the European Court summarily dismissed as ‘manifestly illfounded’ a claim lodged by the mother of a young girl who was affected by the socalled ‘protest’ on the route to her primary school in North Belfast in 2001 (the Holy Cross dispute). The Court held that the applicants had not demonstrated that the authorities, including the police, had failed to do all that could reasonably be expected of them to protect the applicants from ill-treatment, and that ‘the operational decisions complained of fell within the ambit of legitimate police discretion and fully complied with the State’s positive obligations’.81 This put an end to the long-running litigation on this matter, which was unsuccessful at every level of the UK court system as well as at Strasbourg.82

79

It was first authorised by the Police (NI) Act 2000, s 46.

80

Austin v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 1 AC 564.

81

PF and EF v UK App No 28326/09, decision of 23 November 2010, paras 46 and 52.

82

See, e.g., E v Chief Constable of the RUC [2008] UKHL 66, [2009] 1 AC 536.

358

CORRESPONDENT REPORTS

The UK Supreme Court, in one of its first decisions,83 ruled that the police can disclose on a person’s enhanced criminal record certificate the fact that his or her child was placed on the child protection register because of parental neglect. In the case in question the mother involved, who was a midday assistant at a secondary school, lost her job as a result of the disclosure. In Belfast a High Court judge ruled that a trainee solicitor is entitled to attend police interviews with suspects in police stations,84 even though the wording of the legislation seems to suggest that only fully qualified solicitors have this right.85 The PSNI are increasingly involved in MultiAgency Risk Assessment Conferences, which are meetings where information is shared between different public agencies about people who are at high risk of domestic abuse. While the work of such groups is extremely important, so too are the privacy rights of individuals. In 2009 the Privacy Advisory Committee of the Department of Health, Social Services and Public Safety issued a Code of Practice on Confidentiality to try to ensure that good practice is adhered to in this context by all staff working in Northern Ireland’s integrated health and social care sector.86

Equality Sad to report, during the two years in question Northern Ireland began to lag behind the rest of the United Kingdom in the degree to which it protects people against inequality. This is primarily because the Equality Act 2010 applies only to England, Wales and Scotland. The commitment made by the Northern Ireland Executive in 2001 to bring forward a Single Equality Bill has still not been met. The 2010 Act makes it unlawful to disadvantage someone because of their association with another person who is disabled,87 thereby greatly enhancing the position of carers.88 It also

83

R (L) v Commissioner of Met Police [2009] UKSC 3, [2010] 1 AC 410.

84

Re Campbell’s Application [2010] NIQB 40.

85

Police and Criminal Evidence (NI) Order 1989, art 59.

86

www.dhsspsni.gov.uk/confidentiality-code-of-practice0109.pdf.

87

This is a consequence of the way in which s 13(1) and (3) define ‘direct discrimination’.

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makes more explicit the various equality duties resting on public bodies.89 Furthermore, the English courts remain more willing than the Northern Irish courts to allow judicial reviews of a public body’s failure to meet those duties.90 By the end of 2010 it looked as if the Northern Ireland Assembly would approve the creation of a statutory Commissioner for Older People, an office which exists in Wales but not in England, Scotland or Ireland.91 The Northern Ireland Human Rights Commission was also undertaking an investigation into the treatment of older persons in nursing homes. Following the example of England and Wales,92 the Assembly was considering measures to help people with autism: as 2011 dawned, a draft Bill was awaiting approval which would oblige the Department of Health to produce an autism strategy and all other departments to co-operate in its implementation. The Bill would also amend the Disability Discrimination Act 1995 to make it clear that not being able to take part in normal social interaction or to form social relationships can be considered as an inability to carry out normal day-to-day activities, and hence as an ‘impairment’ for the purposes of disability legislation. This would bring within the protection of the 1995 Act numerous people whose autism displays itself in a less than obvious manner. On the other hand, in a Supreme Court case decided in 2010, the National Autistic Society, as an intervening party, failed to persuade a majority of the Justices that a local education authority has a minimum legal obligation to provide all children with an effective education, taking account of their special needs and regardless of the demand on resources; hence there was no violation of Article 2 of Protocol 1 to the European Convention.93

88

The legislation confirms the decision of the European Court of Justice in Coleman v Attridge Law C-303/06, [2008] IRLR 722, which could still be relied upon by carers in Northern Ireland who wish to complain about discrimination. 89

Equality Act 2010, ss 149-159.

90

Contrast R (C, A Minor) v Secretary of State for Justice [2008] EWHC 171 Admin with Re Neill’s Application [2005] NICA 5. 91

The Commissioner for Older People Act (NI) 2011 eventually received Royal Assent on 25 January 2011 and the first Commissioner, Ms Claire Keating, was appointed in October 2011. She has more powers than her Welsh counterpart, who was appointed under the Commissioner for Older People (Wales) Act 2006. 92

Through the Autism Act 2009.

93

A v Essex County Council [2010] UKSC 33, [2011] 1 AC 280. Lady Hale and Lord Kerr dissented.

360

CORRESPONDENT REPORTS

The whole of the UK benefited from the fact that the government ratified the UN Convention on the Rights of Persons with Disabilities on 8 June 2009, and the Optional Protocol (which confers a right of individual and group complaint) on 7 August 2009. In Northern Ireland, the Office of the First Minister and deputy First Minister took receipt of a report of the Promoting Social Inclusion Disability Working Group in December 2009. This identifies the main barriers to participation experienced by people with disabilities in Northern Ireland and recommends how these could be removed. It was produced after an extensive survey of people with an activity-limiting disability and is constructed around the principles of the UN Convention, which aims above all to promote dignity, independence and access. In an appeal from Northern Ireland to the House of Lords, SCA Packaging Ltd v Boyle,94 their Lordships upheld the Court of Appeal in ruling that a woman, whose propensity to develop nodules on her vocal chords was controlled by a strict management regime based on not raising her voice, was indeed disabled: the Disability Discrimination Act 1995 says that an impairment which is ‘likely’ to have a substantial adverse effect unless it is treated is to be regarded as having that effect.95 The Law Lords had to consider another appeal from Northern Ireland on an equality matter. In McConkey v The Simon Community96 they ruled that it is lawful to dismiss an employee on account of his former approval of the use of violence for political ends connected with the affairs of Northern Ireland. The Supreme Court later held in HJ (Iran) v Secretary of State for the Home Department that it would be wrong to say that homosexuals did not fear persecution so long as they hid their sexuality: such a ‘reasonable tolerability’ test would be incompatible with the Convention on the Status of Refugees 1951.97 In R (E) v Governing Body of JFS98 the Jewish Free School was found to have directly and indirectly discriminated against a boy on racial grounds by refusing him admission to the school merely because his

94

[2009] UKHL 37.

95

Sch 1, para 6(1).

96

[2009] UKHL 24.

97

[2010] UKSC 31, [2010] 3 WLR 386.

98

[2009] UKSC 15, [2010] 2 AC 728.

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mother was not an Orthodox Jew. At the European level, in O’Donoghue v UK,99 where the applicants lived in Derry, the Court of Human Rights held that the UK had violated the non-discrimination provision in the European Convention (Article 14), when taken in conjunction with Article 9 (the right to freedom of belief) and Article 12 (the right to marry), because UK law required persons who were subject to immigration control to satisfy certain conditions, including the payment of a fee, before being entitled to marry – unless they wanted to marry in the Church of England. The Court held that the conditions in question impaired the essence of the right to marry and discriminated against non-Anglicans (the applicants were Catholics). One of the interveners in this case was the Immigrant Council of Ireland. In Re Morrison’s Application

100

Treacy J ruled that regulations which denied injury

benefit to the unmarried partner of a police officer who died in a road traffic accident while in the execution of his duty were in breach of the partner’s right not to be discriminated against in the enjoyment of her ‘possessions’, under Article 14 of the European Convention taken in conjunction with Article 1 of Protocol 1. The Minister of Justice announced that he would not be appealing the decision and that the regulations in question would be altered for the future.101 A research report on the promotion of equality in the criminal justice field was published by the Criminal Justice Inspectorate in 2009.102 It found that, while there was some data on equality in relation to employment practices, there was very little equality data showing how the criminal justice system treats defendants, victims, prisoners and witnesses. It recommended that the Probation Board for Northern Ireland and the Youth Justice Agency should put in place better monitoring arrangements. The Prison Service, too, needed to publish more data. Such as was available (for a 22-month period in 2006-07) showed that in each month the percentage of Catholic prisoners was higher than the estimated share of the Catholic population in Northern Ireland, which is 45% Of the

99

(2011) 53 EHRR 1.

100

[2010] NIQB 51.

101

Northern Ireland Prison Service press release, 30 June 2010.

102

The Impact of Section 75 of the Northern Ireland Act 1998 on the Criminal Justice System in Northern Ireland.

362

CORRESPONDENT REPORTS

prisoners who were on remand, the percentage who were Catholic varied from 51% to 58%.103 Discrimination on linguistic grounds was the issue in Re Mac Giolla Cathain’s Application, where a musician had been refused permission to apply to the courts in Irish for an entertainment licence.104 The Administration of Justice (Language) (Ireland) Act 1737 prohibits the use of any language other than English in Northern Ireland’s courts. The applicant argued that the ban was in breach of Article 7(2) of the European Charter for Regional or Minority Languages, and also of Article 14 of the European Convention taken in conjunction with Article 6 (the right to a fair trial). Treacy J, whose decision was confirmed by the Court of Appeal, held that the Charter for Languages is not justiciable in domestic law and that, since the applicant was fully conversant with English, there was no risk of unfairness if the court proceedings were conducted in that language. In Girvan LJ’s view, the 1737 Act had been passed, following similar reforms in England, not in order to discriminate against those who spoke only Irish, but to prevent all people from being misled by documents in Latin, French or other foreign languages.105 On socio-economic inequality, the Child Poverty Act 2010, which applies throughout the UK, requires the government to set targets for the reduction of child poverty. The target for 2010-11 is that fewer than 1.7 million children will live in qualifying households falling within the ‘relative low income’ group, defined as households where the net income is less than 60% of the median net household income. The target for 2019-20 is that less than 5% of children will by then be living in poverty. The UK government must report annually on the progress being made to reach these targets, and must explain why there has been a failure to meet them. But there is no other sanction available in case of failure. The courts cannot, it seems, be involved in the policing of the Act. In 2010 the Supreme Court also reduced the role of courts in relation to the allocation of social housing. In Ali v Birmingham City Council106 it held that, when local housing authorities are fulfilling their duty under

103

Ibid, para 2.34.

104

[2009] NIQB 66; [2010] NICA 24.

105

[2010] NICA 24, para 9.

106

[2010] UKSC 8, [2010] 2 AC 39.

363

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the Housing Act 1996 to ensure that suitable accommodation is available for homeless people, they are not determining a ‘civil right’ for the purposes of Article 6(1) of the European Convention; hence the fair hearing guarantees which that article confers do not apply.

Private and Family Life One of the first things the new UK government did in 2010 was to drop the plan to issue identity cards to every person on the National Identity Register. This was achieved by the Identity Documents Act 2010, which repealed the Identity Cards Act 2006. The National Identity Register was also abolished, thereby wasting all the money spent on it so far but saving the huge amount still to be spent. At the end of 2007 the government had estimated that it would cost £5.6 billion to run the identity card scheme over the next 10 years. However, under other legislation,107 foreigners living in the UK from outside the EU are still required to have an identity card which serves as a biometric permit indicating their entitlement to reside in the UK. Quite a stir was caused when the Supreme Court ruled108 that it was a violation of Article 8 of the European Convention to subject all individuals who have been sentenced to at least 30 months’ imprisonment for a sexual offence to a lifelong duty to keep the police informed of where they are living and when and where they are travelling abroad.109 The Court said that individuals had a right to have the necessity for such notification requirements reviewed, and it therefore declared the legislation to be incompatible with the Convention. In the House of Commons, Prime Minister David Cameron called the decision ‘offensive’ and said that it ‘flies in the face of common sense’. Home Secretary Theresa May said the government was

107

UK Borders Act 2007, s 5(1); Immigration (Biometric Registration) Regs 2008 (as amended).

108

In R (F (A Child)) v Secretary of State for Justice [2010] UKSC 17, [2011] 1 AC 331.

109

Sexual Offences Act 2003, s 82.

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CORRESPONDENT REPORTS

‘appalled’ by it.110 By way of response, there is likely to be a remedial order issued under the Human Rights Act 1998.111 Following the ruling by the European Court of Human Rights in Pretty v UK 112

that a person’s right to end their own life was an aspect of their right to a private

life, protected by Article 8(1) of the European Convention, the House of Lords decided in R (Purdy) v DPP that the Director of Public Prosecutions should issue guidance on what facts and circumstances he would take into account when deciding whether to exercise his statutory discretion to prosecute someone for assisting a suicide.113 Draft guidance was issued for consultation in 2009 and finalized in 2010. Northern Ireland’s courts have also followed their English counterparts in accepting that the right to a family life under Article 8(1) needs to be taken into account when deciding whether someone’s deportation would unduly interfere with their personal relationships. In Re Alexander Success’s Application Weatherup J remitted a case to an immigration appeal tribunal on the basis that the relevance of the deportee’s ongoing relationship with his partner had not been given due consideration.114 The right to a private life sometimes has to take a back seat when confronted by other rights and interests which are deemed by the law to be more important. Hence, in Kennedy v UK115 the European Court rejected an ex-prisoner’s complaint that he could not discover whether his mail, telephone and email communications were being intercepted by the security forces: the Court said that the statutory provisions in force for the UK provided adequate remedies in such cases. Inevitably there are some details about covert surveillance which cannot be disclosed for fear of revealing crucial techniques and suspicions. The Court contrasted the case with Liberty v UK,116 where it found a violation of Article 8 because the interceptions

110

HC Debs, 16 February 2011., cols 955 and 959. They were speaking 10 months after the Court’s decision.

111

s 10; see now the Sexual Offences Act (Remedial) Order 2011.

112

(2002) 35 EHHR 1.

113

Under the Suicide Act 1961, s 2(4) in England and Wales, and the Criminal Justice Act (NI) 1966, s 13(5) in Northern Ireland. 114

[2010] NIQB 35.

115

App No 26839/05, judgment of 18 May 2010.

116

(2009) 48 EHRR 1.

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related to messages passing between two countries (the UK and Ireland) and amounted to the ‘indiscriminate capturing of vast amounts of communications’.117 The right to freedom of expression prevailed over the right to a private life in In re Guardian News and Media Ltd, where the Guardian was permitted to identify five individuals against whose assets the Treasury and Bank of England had made directions under UN anti-terrorism measures.118 In a case decided in Belfast, a prominent journalist successfully resisted pressure from the police to disclose all material, including mobile phones, computers and notes, relating to claims made by a paramilitary organisation concerning the murders of two British soldiers in 2009.119 The court was persuaded that the risk to the journalist’s life from dissident republicans was real enough to prevent the compulsory disclosure. Similarly, in King v Sunday Newspapers Ltd,120 Weatherup J issued injunctions against a newspaper restraining publication of the claimant’s present and future addresses, details of his partner’s workplace, family members and religion and information about his child. The claimant had been accused of murdering one of the newspaper’s journalists, Martin O’Hagan. In a further case, Ian Paisley Jr refused to reveal the identity of a prison officer who had leaked details about the alleged destruction of files after the murder of a prisoner, Billy Wright, which at the time was the subject of a public inquiry. Gillen J fined Mr Paisley £5,000 for contempt of court and said that it would be a ‘recipe for legal anarchy’ if individuals could pick and choose with impunity what laws they obeyed.121

Comments by Treaty-Monitoring Bodies The UK is, of course, obliged to subject itself to the UN Human Rights Council’s Universal Periodic Review. This first occurred in 2008 and is to be repeated in 2012.

117

[2010] NIQB 35, para 160.

118

[2010] UKSC 1, [2010] 2 WLR 325.

119

Re Inspector Galloway’s Application [2009] NICty 4 (Judge Burgess). The journalist in question, Suzanne Breen, who was then northern editor of the Sunday Tribune, a paper which has since gone out of business, later recovered 75% of her costs from the PSNI: [2009] NICty 8. 120

[2010] NIQB 107.

121

Re an Application under section 36 of the Inquiries Act 2005 [2010] NIQB 40. See too news.bbc.co.uk/1/hi/northern_ireland/8126898.stm.

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CORRESPONDENT REPORTS

The UK government must also submit periodic reports to seven of the UN’s human rights treaty-monitoring bodies,122 as well as to three Council of Europe committees.123 A UN Working Group on the issue of mercenaries and the UN Special Rapporteur on the human rights of migrants reported in 2009 and 2010 respectively on visits to the UK. The former made no specific reference to Northern Ireland but the latter praised the Northern Ireland Human Rights Commission for its activities relating to migrant rights.124 In these years the only UN treaty-monitoring body to issue its Concluding Observations on the UK was the Committee on Economic, Social and Cultural Rights.125 As regards Northern Ireland, the Committee welcomed the establishment of the Northern Ireland Human Rights Commission (which had been in existence since 1999) and noted ‘the draft Bill of Rights for Northern Ireland’, by which it presumably meant the advice tendered by the Human Rights Commission to the UK government at the end of 2008 on what might be contained in a Bill of Rights. The Committee mentioned that ‘the draft Bill’ includes justiciable economic, social and cultural rights and it called for its enactment ‘without delay’.126 This ringing endorsement of the local Commission’s advice is certainly flattering for that organization, but it ignores the deep political divisions in Northern Ireland over the need for any Bill of Rights at all, let alone for such a wide-ranging Bill as proposed by the Commission. Moreover, if the UN Committee thought the Commission’s proposals were so good, why did they not recommend their adoption for other parts of the UK too? As it is, in 2009 the UK government roundly rejected the Human Rights Commission’s advice and since 2010 the new government has been just as unwilling to endorse it. A Commission on a Bill of Rights has now been established to examine

122

The Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of Discrimination against Women; the Committee against Torture; the Committee on the Rights of the Child; and the Committee on the Rights of Persons with Disabilities. 123

The European Committee on Social Rights, the Advisory Committee on the European Framework Convention for the Protection on National Minorities, and the Committee of Experts on the European Charter for Regional or Minority Languages.. 124

A/HRC/14/30/Add.3, para 42.

125

E/C.12/GBR/CO/5, 12 June 2009.

126

ibid, para 10.

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whether a Bill of Rights for the whole of the UK should be devised. Any such Bill might well include specific provisions for Northern Ireland, but they will certainly be very limited compared with the proposals of the Human Rights Commission. The UN Committee on Economic, Social and Cultural Rights also expressed concern that the proposed Equality Bill for Great Britain (which became the Equality Act 2010) did not apply to Northern Ireland. It recommended that the Bill be enhanced by guaranteeing protection against discrimination in the enjoyment of economic, social and cultural rights and that such comprehensive anti-discrimination legislation be made applicable to Northern Ireland.127 The Committee went on to recommend that the Abortion Act 1967 should be extended to Northern Ireland, ‘with a view to preventing clandestine and unsafe abortions in cases of rape, incest or foetal abnormality’.128 As regards the rights of gypsies and Travellers, the Committee encouraged the UK government to review the Unauthorised Encampments (NI) Order 2005. More generally, it was concerned about ‘the persistent levels of deprivation and inequality throughout Northern Ireland’ and recommended that the ‘Equality Impact Assessment’, by which it presumably meant the equality duties imposed on all public authorities by section 75 of the Northern Ireland Act 1998, should be effectively implemented, especially ‘in the context of urban regeneration programmes by ensuring the participation of the affected population and the development of adequate policies and targeted measures to promote substantive equality, provide for improved mental health care, as well as an increase in skills training and employment opportunities for young people and adequate housing programmes for the poor and, in particular, Catholic families’.129 Finally, the Committee was concerned about the increasing suicide rate in Northern Ireland and at the lack of protection in respect of the Irish language.130 It recommended that the UK government, or the Northern Ireland Executive, should adopt an Irish Language Act, ‘with a view to preserving and promoting minority languages and cultural heritage’.

127

ibid, para 16.

128

ibid, para 25.

129

ibid, para 31.

130

ibid, para 35 and 37.

368

CORRESPONDENT REPORTS

At the Council of Europe, the Committee of Social Rights issues Conclusions on state parties to the European Social Charter (or to its Revised version) practically every year, focusing each time on different articles in the Charter. In 2009 the Committee’s report examined the UK’s compliance with Articles 3 and 11-14, which refer to rights to safe working conditions, health, social security and welfare services; in 2010 its report covered Articles 2 and 4-6, which refer to just working conditions, fair remuneration and collective bargaining. But the periods reviewed were, respectively, 2003-07 and 2005-08, so the conclusions published were hardly timely. The first of the two sets of Conclusions commented on the ‘positive record’ of the authorities in Northern Ireland in preventing fatal accidents at work and noted the long-term efforts that will be needed to implement the recommendations of the Bamford Review of Mental Health and Learning Disability. It looked forward to further measures being taken to improve access to health care for disadvantaged groups such as Travellers, the elderly, looked-after children and pregnant women. The second set of Conclusions, however, did not single out Northern Ireland for any separate mention at all. The Advisory Committee on the European Framework Convention the Protection of National Minorities received the UK’s third periodic report in March 2010 but at the time of writing (October 2011) its Opinion on the report had still not been published. Speedier work was done by the Committee of Experts on the European Charter for Regional or Minority Languages, which adopted its Opinion on the UK’s third periodic report just six months after its submission in May 2009. The Opinion devotes some 12 pages to an evaluation of the way in which the Irish language was protected in Northern Ireland in the period 2005-09, even though, astonishingly, the UK’s report had not contained any information on devolved matters in Northern Ireland relevant to Irish (or Ulster Scots). The Committee was encouraged by the positive approach of the Department of Education in Northern Ireland to the recommendations made by a review of Irish-medium education, so much so that the Committee revised its previous conclusions and found that in this area the UK was fulfilling its international obligations. While some progress was made in relation to obligations concerning the use of Irish within public authorities, the Committee concluded that they were still only partly fulfilled. It noted ‘with alarm’ a unionist proposal that the use of Irish should be prohibited in debates in the Northern Ireland

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Assembly and, by way of contrast, it encouraged the authorities to provide facilities for simultaneous interpretation in that forum.131 In April 2010 the Council of Europe’s Committee of Ministers passed a resolution recommending that the UK government ‘adopt and implement a comprehensive Irish language policy, preferably through the adoption of legislation’.

131

ECRML (2010) 4, para 371.

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Genocide in International Law: The Crime of Crimes by William A. Schabas, Cambridge, Cambridge University Press 2009, 2nd edition, xviii + 741 pp, Pbk stg£62. ISBN 978-0-521-71900-1

Of all the crimes within the jurisdiction of the international criminal tribunals, genocide has the strangest history. It is rare that the very name of a crime can be traced back to the efforts of one person, yet the coining of the word ‘genocide’ was a one-man-effort, undertaken by the Polish lawyer Raphael Lemkin in 1943. The concept was significantly influenced by the crimes in occupied Europe, and yet ‘genocide’ was not recognised as a crime sui generis at the Nuremberg and Tokyo tribunals. It is a legal concept, but social and political scientists and historians have been just as active in shaping its parameters, so that at least two concepts have emerged today: that which the Genocide Convention envisaged in 1948, and that which, for want of a better word, may be termed the ‘social concept’ of genocide. A crime as multifaceted as this fully deserves extensive analysis and consideration not just as an aspect of substantive criminal law, but as a phenomenon in its own right. William Schabas' book Genocide in International Law: The Crime of Crimes was first published in 2000 and the case law which it incorporated reflected the period of about one year after the Akayesu judgment: the first genocide judgment of the International Criminal Tribunal for Rwanda (ICTR).1 It happens not too often that the first edition of a textbook becomes an immediate classic, but this was the fate of Genocide in International Law, which was soon quoted by the international criminal tribunals and became a seminal text for academic debate in legal and social sciences on the topic. Schabas was the right person to undertake the task of writing the first leading text on the law of genocide: at that time, he was Professor of Human Rights and Criminal Law at the University of Québec at Montréal and had been a delegate of the International Centre for Criminal Law Reform and Criminal Justice Policy to the

1

Prosecutor v Akayesu, Judgment, ICTR, No. ICTR-96-4-T (1998)

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Conference of Plenipotentiaries on the Establishment of the International Criminal Court (ICC) in 1998. Schabas is now Professor of International Law at Middlesex University, London and counts among the foremost experts on international criminal law today. Since the first edition, the law in the field of genocide has developed rapidly. Apart from judgments by the international criminal tribunals, recent history has seen the controversial findings of the International Commission of Inquiry on Darfur, but also the increasing consideration of genocide in contexts which are not primarily concerned with individual criminal liability, such as the landmark judgments of the International Court of Justice in Bosnia and Herzegovina v Serbia and Montenegro2 and the European Court of Human Rights in Jorgic v Germany3 (both in 2007). There was therefore good reason to undertake the publication of a second edition, which was completed in 2009 (with a cut-off date of 31 December 2007). Already, the book is set to share the fate of its predecessor: Pre-Trial Chamber I of the ICC referred to it in its decision on an arrest warrant against the Sudanese President Omar Al Bashir in March 2009. As in the previous edition, Schabas begins the material part of his book with two chapters offering an historical overview of the crime and the drafting history. The five chapters following this can be said to constitute the principal part of the book – an extensive consideration of the elements through an examination of protected groups, actus reus, mens rea, ‘other acts’ of genocide, and defences. Of these, the ‘group element’ and specific intent as part of genocidal mens rea are without doubt the most contentious issues that have arisen in the current debate. ‘Groups’ because of the very restrictive field of protection which the Genocide Convention and the subsequent instruments provide: only members of national, racial, ethnical and religious groups can be victims of the crime. The intent element, because it introduces a threshold for the commission of genocide that is sometimes difficult to establish; even massacres of horrible dimensions will not qualify as genocide, if the perpetrator has not demonstrated the intent to destroy one of the protected groups as such.

2

[2007] I.C.J. Rep. 91.

3

App. No. 74613/01, ECtHR (12 July 2007).

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Schabas deals with all the elements of the crime in a clear and insightful way and provides a very accessible overview of the various aspects which determine the judicial and academic debate on these matters. Some elements of genocide emerge in somewhat eccentric places. For example, one of the most important problems of the mens rea of genocide (the question whether the intent of the ethnic cleanser qualifies as genocidal intent) is discussed in the chapter on the actus reus. Consequently, readers hunting for one of Schabas’ most famous statements on this matter4 have to look for it there. But then, ethnic cleansing plays a role on the objective side of the crime too, precisely because it is not expressly mentioned among the “underlying crimes” which compose the actus reus of the crime. With regard to the group element, Schabas provides a helpful discussion of aspects which, in spite of their obvious importance, feature surprisingly rarely in academic debate. That includes a consideration of the concept of “groups” itself, but also a brief reference to the difficult moral questions which the determination of a “racial” group encompasses. In Schabas words, “efforts to define these so-called races have in themselves a racist connotation” (p. 142). That is true and applies in similar measure to the determination of ethnicity. It is somewhat unsettling to read a Trial Chamber’s explicit analysis of the parentage of a victim, including the fact that he had been referred to as “half-caste”, in order to find out whether he qualified as an object of genocide, for example.5 On the matter of mens rea, Schabas offers a very precise discussion of the various thresholds that have been suggested for the assessment of specific intent and provides one of the clearest analyses in contemporary literature of the intent to destroy ‘in whole or in part’, by examining the various approaches that have been employed in the past to evaluate the ‘partial targeting’ of the group. A particularly fascinating part of this chapter deals with motives for genocide, an issue which is all too often dismissed by Trial Chambers with the unsatisfactory observation that

4

“One [crime] is intended to displace a population, the other to destroy it. The issue is one of intent and it is logically inconceivable that the two agendas coexist”, p. 234. The ICTY Trial Chamber made reference to this statement in Prosecutor v Radoslav Brdjanin, Case No. IT-99-36-T (Trial Chamber), Judgment of 1 September 2004, fn. 2456. 5

Prosecutor v Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, (Trial Chamber), Judgment of 15 July 2004, para 469, and see earlier P. Kim, ‘The Law of Genocide in the Jurisprudence of ICTY and ICTR in 2004’, (2005) 5(3) International Criminal Law Review 440.

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‘motives don’t matter’. Schabas, thankfully, goes deeper. He traces the issue of motives to their consideration in the drafting process, and explores their subsequent treatment in academic literature and case law. The chapter following this consideration of the elements of the crime deals with the prosecution of genocide. This includes not only an insightful discussion of instances in which individual States attempted to deal with the phenomenon (from trials in Poland in 1946 to the adoption of the Organic Law in Rwanda in 1996) but also a reflection of the various concepts of genocide that have been employed by national jurisdictions (most significantly in Cambodia). Conduct and duties of States are at the centre of the subsequent two chapters, which deal with State responsibility and the prevention of genocide respectively. The treatment of responsibility is impressive. Schabas includes a consideration of each and every State application under Article IX of the Genocide Convention to the International Court of Justice, including those that ultimately were withdrawn. Particular weight is of course accorded to the leading case in the field: the 2007 case of Bosnia and Herzegovina v Serbia and Montenegro.6 Generous space is given to an illustration of the procedural background of these cases, but also to the difficult question whether criminal responsibility of States is possible in the first place. Schabas’ consideration of the prevention of genocide tackles the increasingly important issue of the so-called ‘responsibility to protect’ and the debate on the possibility of military intervention in situations which are marked by a danger that genocide may be committed. But it is his profound analysis of the ways in which various bodies of the United Nations have dealt with the phenomenon of genocide that gives this chapter its particular significance. This includes a review of the position of the General Assembly (including its controversial resolution 37 / 123 [1982] on Sabra and Shatila), but also an insightful account of the background to the Security Council’s reluctance to take decisive action while the massacres in Rwanda were ongoing. Of particular importance for contemporary debate is the section dealing with the office of the UN Special Adviser on the Prevention of Genocide. Schabas’ examination of ways to prevent genocide includes an interesting account of

6

[2007] I.C.J. Rep. 91.

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legislative methods to combat the crime (such as the banning of certain organisations, and the criminalisation of hate speech and certain ‘preparatory acts’ to genocide). The last substantive chapter of Genocide in International Law addresses aspects of treaty law in relation to genocide. This includes questions of accession to the Convention and the possibility of a revision of the existing law, but also the important aspects of reservations and interpretation. On the issue of interpretation, Schabas takes a clear position: he advocates an interpretation of the relevant norms based on the methods enshrined in the Vienna Convention on the Law of Treaties and suggests this approach even for the interpretation of the provisions contained in the Statutes of the ICTR and the International Criminal Tribunal for the Former Yugoslavia (ICTY), while noting that they are not treaties "in the strict sense". In his conclusion, Schabas suggests the establishment of a report system. Taking his cue from the mechanisms that exist in major human rights treaties, he proposes that member States of the Convention should submit periodic reports on their compliance with their obligations under it. Schabas also refers briefly to the idea of a Committee on the Prevention of Genocide – without however declaring his position on this particular idea. Genocide in International Law concludes with three helpful annexes, which contain the text of the Convention, the Ad Hoc Committee Draft and the draft of the Secretariat, respectively. It is not difficult to understand the extreme popularity which Schabas' work has always enjoyed, and readers of the first edition will not be disappointed by its successor. Schabas’ magnum opus once again impresses by the sheer breadth of its coverage and the great detail of its examination. It is rare enough to find a treatment of genocide which includes a section on potential defences to the crime, let alone a standalone chapter with a precise analysis of the various grounds for excluding criminal responsibility, including self-defence and intoxication. The wealth of case law – both international and domestic – is staggering, and both individual liability and State responsibility are investigated in considerable depth. At the same time, Genocide in International Law remains a work which excels through its very accessibility. In this regard, Schabas manages the squaring of the circle: it is a work which deals with considerable insight with the rather complex theoretical debates which certain aspects of the crime engender, but even the most difficult constellations are presented in an understandable and readable manner. His work therefore appeals 377

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not only to the international criminal lawyer, but to social and political scientists and to anybody who has to deal with the phenomenon of genocide from the viewpoint of governmental or non-governmental organisations. The particular strength of Genocide in International Law is without doubt its comprehensive treatment of the codificiation history which underlies the legal understanding of genocide today. This aspect should not be underestimated. For one, it attests to meticulous research into a matter which is not always easy to grasp. The path from Lemkin’s first use of the term to the conclusion of the Genocide Convention in 1948 saw a significant number of UN bodies and State delegations consider the proposals and even their own application of the term was sometimes inconsistent. Conclusions on the codification history not only assist in the modern understanding of genocide and the uneven aspects (the ‘blind spots’) of the Convention, but also provide useful guidance for the future. Several features of the current academic debate on genocide (such as the mandatory or optional referral of a genocidal situation to the Security Council) were consciously considered even at the drafting stage and may therefore prove useful in any revision of the Convention. In his initial remarks, Schabas states that ‘this study is principally concerned with genocide as a legal norm’ (p 17); and it has indeed become necessary to add a disclaimer of this kind in works dealing with the phenomenon of genocide. As mentioned above, the legal perspective is not the only possibly approach to genocide, and it differs in some significant regards from the social concept of the crime. The latter, while not abandoning the need for genocidal intent, also accords importance to the great number of victims, and the need for a State or organisational policy behind the crime. The Genocide Convention is silent on these points. In these aspects, Schabas appears to side with the social sciences. It is clear that the scale of the atrocities matters for Schabas’ definition of the crime. His consideration of the mens rea of genocide provides an exemplary statement in this regard: ‘Even without the terms ‘with intent’’, says Schabas, ‘it is inconceivable that an infraction of such magnitude could be committed unintentionally’.7 Schabas is even clearer on the

7

p 256. And cf p. 246: ‘Because of the scope of genocide it seems implausible that it can be committed by an individual, acting alone’. This is however somewhat at odds with his later assertion that ‘Even a small number of actual victims is enough to establish the material element’ (p. 276)

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question of a policy behind the crime: genocide ‘presents itself as the archetypical crime of State, requiring organization and planning’;8 it is an ‘organized and not a spontaneous crime’ (p. 246). The concept of a lone génocidaire appears to Schabas ‘hardly worthy of much attention from international criminal justice’ (in an earlier work, he referred to it as the ‘Lee Harvey Oswald theory of genocide’).9 This view has its merits. Most of all, it helps to focus the crime, and it narrows the existing gulf between the (traditional) legal meaning of the term and the way in which ‘genocide’ is widely understood by non-legal audiences. The international criminal tribunals have not been welcoming to this approach, although they tend to accept the existence of a policy or plan as evidence for genocidal intent.10 But there is good reason to reconsider Schabas’ perspective as a stimulus for a future redrafting of genocide law; an initiative which, in this regard, not even the Elements of Crime have been able to undertake. However, as far as that, as far as redrafting of the material elements of genocide is concerned, Schabas displays a certain reluctance. This is nowhere as clear as where the Convention’s narrow understanding of the ‘group’ element—the eternal burden on the conscience of genocide lawyers—is concerned. It is strange that the Convention, which was so strongly influenced by the crimes of the National Socialist regime, would leave out some of its most significant victim groups such as homosexuals, the political opposition, mentally handicapped people. Supporters of the status quo argue that the Convention intends to protect only ‘stable groups’. This line of reasoning displays certain weaknesses: religious groups, for instance, are encompassed by the current definition, political groups are not, and atheists are condemned to an undecided no-man's-land between the two. Each of these three groups is to a degree based on personal conscience, and their members can decide to

8

p. 244.

9

W. Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia’(2001-2002) 25 Fordham International Law Journal 31. 10

See eg Georges Anderson Nderubumwe Rutaganda v The Prosecutor, Case No. ICTR-96-3-A (Appeals Chamber), Judgment of 26 May 2003, para. 525; Laurent Semanza v The Prosecutor, Case No. ICTR-97-20-A (Appeals Chamber), Judgment of 20 May 2005, para 260; Aloys Simba v The Prosecutor, Case No. ICTR-01-76-A (Appeals Chamber), Judgment of 27 November 2007, para 260.

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opt out of them. It would therefore be justifiable to accord the same legal treatment to all three. In this debate, Schabas’ work attests to a certain conservatism. As far as the lex lata is concerned, a narrow understanding of the law can hardly be faulted. In fact, the most cherished rights of the defendant in a criminal trial positively demand an interpretation lege stricta; expanding the charges to crimes which do not at least have some basis in the wording of the crime would strike at the very foundations of criminal justice. But the same consideration does not hold true when it comes to considering the future of the Convention. Legal scholars are free to suggest changes they deem appropriate; and if the weaknesses of a legal instrument are as obvious as here, it is their positive duty to do so. Schabas considers ‘the definition as it stands […] adequate and appropriate’ (p 15). When called upon to discuss the groups which the Convention protects, he states that there is ‘good reason’ why attacks on (only) the four protected groups are elevated ‘to the apex of human rights atrocities’ (p. 133) and warns that ‘[d]iluting the definition, either by formal amendment of its terms or by extravagant interpretation of the existing text, risks trivializing the horror of the real crime when it is committed’.11 This position is to be understood in the context of Schabas' view that genocide indeed constitutes the ‘crime of crimes’ (see p. 654). But this opinion invites at least two additional considerations. For one, the perception of a hierarchy of international crimes is, as Schabas concedes, no longer uncontested. The snappy phrase of the ‘crime of crimes’ was employed by the Kambanda Trial Chamber in 1998, but qualified by the Appeals Chamber, which emphasised that there was ‘no hierarchy of crimes under the Statute’.12 Even if such a hierarchy existed and genocide had to be elevated to its apex, there is no reason why this needed to be done at the expense of the weakest members of society. It is difficult enough to explain to the mother of a mentally disabled child who was killed because the perpetrator hates the disabled, that this crime is not currently deemed to be genocide, because the law is so and so. But to

11

p. 133.

12

The Prosecutor v Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A (Appeals Chamber), Judgment of 1 June 2001, para 367, with reference to Article 1 of the ICTR Statute. But see later Eliézer Niyitegeka v The Prosecutor, Case No. ICTR-96-14-A (Appeals Chamber), Judgment of 9 July 2004, para 53.

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say to her that we must never create a law that calls her child’s death ‘genocide’, because that would trivialise the crime, seems quite indefensible. In this regard, the current Convention is woefully inadequate, and an overhaul is long overdue. Genocide in International Law is, without doubt, one of the leading works on this complex phenomenon of international law. It is a seminal text, which has to be the basis of the discussion of genocide in legal courses dealing with this matter and one of the influential factors in the debate on international criminal law. Beyond this, its insightful and extremely well presented findings will be of interest to anybody who pursues a serious academic interest in the topic. In its second edition, Schabas’ monumental work retains its place as one of the classical works on the law of genocide today.

Paul Behrens Lecturer in Law, University of Leicester

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Environmental Protection of International Watercourses under International Law by Owen McIntyre. Aldershot, Ashgate, 2007, 446 pp, hbk stg£65. ISBN: 978-0-75467055-1.

Throughout the world there are 263 international river basins shared by 145 countries, and representing 45.3 percent of the Earth’s land surface (excluding Antarctica).1 Of the 145 countries listed above, 39 countries have more than 90 percent of their territory within international river basins.2 Despite a generally recognised need to strengthen governance arrangements related to international watercourses,3 a recent UNEP Global International Water Assessment study observed that, ‘[a]lthough there have been positive developments in recent decades, only one third of the world’s transboundary basins have established treaties, basin commissions or other forms of cooperative management frameworks. Even where intergovernmental agreements exist, they seldom address today’s challenges to water management.’4 Similarly, a Declaration of African Ministers noted that, ‘[m]ost international [African] basins are without any agreements on equitable use or environmental protection. Few have effective institutional arrangements for consultation or cooperation. Procedures for avoiding all resolving international disputes over water are largely lacking.’5 The above statements should be considered alongside recent research which maintains that the presence or absence of laws and institutions is one of the most important factors in influencing relations between States sharing transboundary waters, exceeding more traditionally cited factors such as climate, water availability, population density,

1

A.T. Wolf et al, ‘International River Basins of the World’ (1999) 15(4) International Journal of Water Resources Development 387. 2

ibid.

3

See for example, World Water Assessment Programme, Water: A Shared Responsibility - The United Nations World Water Development Report 2, www.unesco.org/water/wwap; Ministerial Declaration of the Hague on Water Security in the 21st Century, 22 March 2000, www.waternunc.com/gb/secwwf12.htm; Water – Key to Sustainable Development: Bonn Keys, 4 December 2001, www.water-2001.de/outcome; Plan of Implementation of the World Summit on Sustainable Development, Report of World Summit on Sustainable Development, U.N. Doc. A/Conf.199/20 (2002); Ministerial Declaration of the 3rd World Water Forum, 23 March 2003, www.world.waterforum3.com. 4

Global International Water Assessment , Challenges to International Waters – Regional Assessments in a Global Perspective (UNEP 2006), at 12

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political orientation, and levels of economic development.6 In addition, disputes over international watercourses are also common place.

For example, in 1997 the

International Court of Justice (ICJ) decided a dispute between Hungary and the Slovak Republic relating to the building of the Gabcikovo-Nagymaros Dam system on the Danube River.7

Similarly, a dispute between Argentina and Uruguay

concerning the downstream impacts of Pulp Mills on the River Uruguay is currently before the ICJ.8 While the above facts may be sobering, some comfort can be gained from recent international efforts to ensure entry into force of the Convention on the Law of the Non-Navigational Uses of International Watercourses (1997 Watercourses Convention), which was adopted on 21 May, 1997.9

In March 2006, the UN

Secretary-General Advisory Board on Water and Sanitation launched the Hashimoto Compendium of Actions, which inter alia, called upon states to accede to the Convention. World Wildlife Fund also conducts a major initiative seeking to promote the ratification of the Convention amongst states.10 Such global efforts to champion the Convention appear to be having some impact. Just recently, Uzbekistan became a contracting state, and it is likely that others will follow.11 Given the above facts and initiatives, the publication of Owen McIntyre’s, Environmental Protection of International Watercourses under International Law is both timely and significant in its contribution. From the outset the author accepts that the principle of ‘equitable utilization’ has ‘become the pre-eminent rule relating to the utilisation of international watercourses.’ The relationship between the principle of

5

Declaration of African Ministers responsible for Water Resources at the International Conference on Freshwater in Bonn, Germany, 3 to 7 December, 2001, www.thewaterpage.com/Documents/bonn_africa.doc. 6 MA Giordano & AT Wolf, ‘Sharing Waters: Post-Rio International Water Management’ (2003) 27 Natural Resources Forum 163. 7

Case Concerning the Gabčíkovo-Nagymaros Project (Hung. V. Slovak.), Sep. 25, 1997, 37 I.L.M. 162 (1998).

8

See Pulp Mills on the River Uruguay (Argentina v. Uruguay), http://www.icjcij.org/docket/index.php?p1=3&p2=3&code=au&case=135&k=88. 9

Convention on the Law of Non-Navigational Uses of International Watercourses, May 21, 1997 (not yet in force), reprinted in 36 I.L.M. 700 (1997). See PK Wouters, ‘The Legal Response to International Water Conflicts: The UN Watercourses Convention and Beyond’ (1999) 42 German Yearbook of International Law 293. 10

www.panda.org/about_wwf/what_we_do/freshwater/our_solutions/policy_practice/conventions/index.cfm

11

See A. Rieu-Clarke, ‘Entry into force of the 1997 UN Watercourses Convention: barriers, benefits and prospects’ (2007) 21 Water 12.

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equitable utilisation and the protection of the environment is then a central theme throughout the book’s nine chapters. Following the introduction, Chapter 2 tackles the range of issues related to international law and international watercourses, as well as considering the principles upon which the law is founded, and the key terminology applied within the text. Chapter 3 then goes on to assess the central principle of equitable utilisation. In so doing, the chapter traces the evolution of the principle and its support within the sources of international law.

Potentially at variance to the principle of equitable

utilisation, is the principle of no significant harm. Chapter 4 is therefore dedicated to the latter principle, wherein it is stated that, ‘[t]he existence of such an obligation in general international law is supported by a wealth of authority in State practice’ (p. 87). The author traces the origins of the no significant harm principle, its support in state practice and its precise normative content. Crucially, an examination of the relationship between no significant harm and equitable utilisation is offered, which concludes that, while the former principle ‘enjoys a privileged position within the corpus of rules of international law relation to non-navigational uses of international watercourse’, ‘it is equally clear that the principle of equitable utilisation…remains the prevailing rule’ (p. 119). A further analysis of equitable utilisation is offered in chapter 5, which focuses on how the notion of equity has been applied within international law in general, and in relation to the utilisation of shared natural resources - most particularly in relation to marine resource. The author maintains that recourse to maritime delimitation decisions of the ICJ and arbitral tribunals relating to equitable principles provides useful insights to guide the application of equitable utilisation and environment protection within the context of international watercourses. Article 6 of the 1997 UN Watercourses Convention provides that, ‘[u]tilisation of an international watercourse in an equitable and reasonable manner… requires taking into account all relevant factors and circumstances’.12 The aim of chapter 6 is therefore to examine

12

Article 6 provides a non-exhaustive list of factors and circumstances, including, (a) (b) (c) (d) (e)

384

Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; The social and economic needs of the watercourse States concerned; The population dependent on the watercourse in each watercourse State; The effects of the use or uses of the watercourse in one watercourse State on other watercourse States; Existing and potential uses of the watercourse;

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the relevant factors contained in Article 6, although the author concludes that, ‘it is impossible to speculate on the relative significance of environmental and conservation factors in determining equitable use’, noting first that there is a need to account for ‘the recent emergence of normative rules and principles of international environmental law’, which is the object of chapter 7 (p. 189). The author examines a myriad of proposed norms relating to the protection of the environment in chapter 7, including the obligation to prevent transboundary pollution, the obligation to cooperate, transboundary environmental impact assessment, sustainable development, intergenerational equity, common but differentiated responsibility, precautionary principle, polluter pays principle and the ecosystem approach. In conclusion to the chapter, the author maintains that, ‘the extensive elaboration and detailed articulation of environmental rules and principles in recent years, both of substantive elements such as the due diligence standards required and of procedural obligations such as the duty to notify, significantly enhances the weight to be accorded to environmental considerations in the balancing of factors involved in the termination of an equitable regime for the utilisation of an international watercourse’ (p. 315).13 No analysis of the substantive norms of the law of international watercourses would be complete without reference to the procedural rules that are responsible for their implementation. The focus of chapter 8 is therefore on an analysis of procedural rules such as the duty to notify of planned measures, exchange of information, good faith consultation and negotiation, and dispute settlement mechanisms.

In

conclusion, chapter 9 returns to the underlying theme of the work, that is, whether environmental protection is a factor in determining the equitable utilisation of international watercourses, and if so, what weight should be afforded to it. In the context of international watercourses, there has long been tension between the need to reconcile the interests of the environment, and the use of international watercourses for social and economic gain. Such tension has been mirrored in the evolution of international law. Owen McIntyre’s book offers a

(f)

Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect; (g) The availability of alternatives, of comparable value, to a particular planned or existing use. 13 At 315.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

detailed account of how the law has come to grips with this tension. Most notably the book provides a highly insightful and comprehensive analysis of the complex evolution and status of international legal norms, both lex lata and lex ferenda, related to international environmental law and their influence on the law relating to the nonnavigational uses of international watercourses. While the author concludes that determining the normative status and substantive content of rules and principles of international environmental law is far from simple, clearly the quality of the research and analysis contained within the book sheds some light on this complex issue. In the last ten years we have seen the conclusion of numerous international agreements related to international watercourses, such as the 1998 Convention on the Cooperation for the Protection and Sustainable Use of the Waters of the Luso-Spanish River Basins, the 2000 European Water Framework Directive, 2001 Agreement between Kazakhstan and China on Cooperation in the Use and Protection of Transboundary Rivers, the 2002 Framework Agreement on the Sava River Basin, the 2002 Tripartite Interim Agreement between Mozambique, South Africa and Swaziland for the Incomati and Maputo Watercourses, the 2003 Convention on the Sustainable Development of Lake Tanganyika, the 2003 Protocol for the Sustainable Development of Lake Victoria, the 2004 Agreement on the Establishment of the Zambezi Watercourse Commission.14 Many of these agreements are particularly interesting for the emphasis they place on the protection of the environment (or ecosystem) and for their use of terms such as ‘sustainable development’, ‘sustainable utilisation’, ‘sustainable water management’, ‘good ecological status’, ‘flow regimes’, and so forth. It could therefore be maintained that the abovementioned agreements have registered a discernable shift towards prioritising the environment, amongst the uses of international watercourses. While Owen McIntyre’s work might therefore have benefited from greater reference to the abovementioned agreements, there is no doubt that the book provides clear insights and a useful source of reference for those working and researching in the field of international watercourses. Alistair S Rieu-Clarke UNESCO Centre for Water Law, Policy and Science, University of Dundee

14

For a collection of the most recent treaties relating to international watercourses, see http://faolex.fao.org/faolex/index.htm.

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The Emerging Practice of the International Criminal Court edited by Carsten Stahn and Göran Sluiter, Leiden & Boston, Martinus Nijhoff Publishers, 2009, pp. xviii + 772, Hbk €207. ISBN: 0924-4883.

This book originated in a conference on the International Criminal Court held in the Netherlands in October 2007. Some of its thirty-seven chapters still read like conference papers but most have been given the form of academic articles. The editors’ hands-off approach to editing most likely accounts for this, and many other, irregularities. One of the unacknowledged victims in international criminal law is the English language. Its casual abuse at the tribunals has reduced it to a medium for the expression of thought in every which way. Maybe it is the price a universal language has to pay, although it seems to me that the cost of a copy-editor is a bargain by comparison. And it keeps your reader focused on substance. Having benefitted from no copy-editing whatsoever, many of the thirty-seven essays make for a choppy ride. Notably, the title of one chapter starts with the words ‘The Trial Chamber’s Discretionary Power to Devise the Proceedings...’—and the continuation just makes matters worse. If galley proofs were sent to the authors, Otto Triffterer did not notice that he is billed as a professor of ‘Australian’ law. (If only.) More difficult to understand is the lack of selectivity. Several chapters should never have made the cut. I suspect, though, that no cut was made and that every conference presenter claimed a slot in the book. Multiply lack of copy-editing by all-inclusiveness and you get a certain result. The editors have separated the chapters into six groups (with, for example, the ‘Procedural Law’ part further broken down into Pretrial, Trial, and Appeal, as well as something called ‘Specific Topics’) to suggest a systematic coverage of the ‘emerging practice’ of the court. Achieving an impression of distributional evenness is difficult even when contributions are commissioned off a plan (which does not seem to have been the case here). So it is no real criticism to say that the categorisation feels forced or that overlaps are evident within and between the parts. The concern, rather, is with the almost complete lack of cross-referencing among the chapters. While the book’s title promises a view of ‘the practice’, which to me hints at a holistic view, the reader gets thirty-seven view fragments overlapping in ways that are not acknowledged. The 387

THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

brief introduction to the collection does not mull over the meaning of it all. But I have probably said enough, now, about the consequences of hands-off editing. One essay in the book stands head and shoulders above the rest. Jens Ohlin has it modestly entitled ‘Peace, Security, and Prosecutorial Discretion’, but it is about much more than that; like much of Ohlin’s work it is about everything that other writing in international criminal law isn’t. In June 2005, the ICC Prosecutor wrote a short letter affirming that there was ‘a reasonable basis’ to initiate an investigation in Darfur, a situation that had been referred to the court by the Security Council. To most of us, perhaps, this is a forgettable item, but Ohlin smells a rat. He brings us eventually to see in the letter a deluded conception of the court’s nature as it lives in the mind of the Prosecutor and perhaps the judges. The court’s true nature, Ohlin explains, is very different, for it has not one nature but two. It is the regular criminal court that, if you believe the standard rhetoric, is all it is; and it is ‘a security court redressing the balance of power between warring ethnic and national groups’ (p. 189). It might not seem much to say that when the Security Council refers a case to the ICC it constricts the Prosecutor’s discretion to decide whether there is a reasonable basis for an investigation. But gradually the invisible becomes visible and by the time Ohlin’s argument reaches its destination our idea about what the ICC is, or is about, has probably changed drastically. The paper ought to be read widely, so I will not say much more about it here. Ohlin links the incompatible natures of the ICC to jurisprudential ancestries—consequentialism and retributivism—which we have always known do not mix but have always found useful as paradigms. At the ICC, it turns out, they subsist side by side. The Prosecutor, being by nature a retributivist, sought by his June 2005 letter to paper over the court’s dual nature and its instrumentalization under the Security Council’s consequentialism. Yet: ‘One can exaggerate the degree to which the court is truly independent, untethered from both the Security Council and the larger system of international law that gave birth to it’ (p. 206). Two other essays are worth individual mention. William Burke-White and Scott Kaplan (‘Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation’) have produced a thoughtful and well-written piece on the ICC’s dilemma, both theoretical and real (and in both events political), about whether to press ahead with prosecution in cases 388

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where domestic peace agreements have belatedly emerged conditioned upon the absolution of individuals who in the meantime have become ICC targets. The other noteworthy contribution to the collection is by William Schabas (‘Prosecutorial Discretion and Gravity’). What Ohlin does for ‘discretion’, Schabas does for ‘gravity’; he notices a small kink in the ICC’s structure and latches onto it, producing an astute reflection on the character of the institution. There is no philosophy of law supplying the bass notes in Schabas’s case, but his demolition job on the ICC’s decision-making on gravity as a criterion for ranking prosecutability is methodical and unforgiving and laced with just the right amount of irony to delight the reader. Several of the other pieces masquerade as academic commentary but amount to bland, descriptive, and non-transformative treatment of narrow questions. The stocktaking exercise was held a bit too early for some of the articles, which in the absence of relevant or sufficient ‘practice’ tackle hypothetical issues that feel idly speculative. Authors denied practice entirely are left to brood over the ICC’s statute and rules of procedure, reading too much into them, extracting too much out of them, and generally reaching premature conclusions. There are exceptions, but analysis of black-letter law not tied down to practice or theory has no deeper value or meaning. It is surprising, lastly, to find in a book at this level, and after fifteen years of hybridity and acculturation at the ad hoc tribunals, that old prejudices emerge against the adversarial system. One author in the collection informs us that the fundamental difference between the civil- and common-law systems is their ‘epistemological starting point’ (p. 416),1 and that while the former is premised on ‘objective truth’, truth in the latter is placed in the hands of the parties where it becomes ‘relative’. Philosophically this is nonsensical, but it seems that not everyone is able to suppress nationalistic sentiment when writing about the ICC. The point reoccurs (p. 610) in the context of another caricature of the common-law tradition.2 This seems to suggest that the culture wars that started at the ICTY are destined to drag on in the emerging practice of the ICC. Alexander Zahar, Griffith Law School, Australia

1

S. De Smet, ‘A Structural Analysis of the Role of the Pre-Trial Chamber in the Fact-Finding Process of the ICC’.

2

M. E. Kurth, ‘Anonymous Witnesses Before the International Criminal Court: Due Process in Dire Straits’.

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THE IRISH YEARBOOK OF INTERNATIONAL LAW 2009-10

Timor-Leste: Challenges for Justice and Human Rights in the Shadow of the Past edited by William Binchy, Dublin, Clarus Press, 2009, Hbk €99. ISBN: 978-1905536-21-4

Timor-Leste: Challenges for Justice and Human Rights in the Shadow of the Past is a strong volume that compiles noteworthy contributions from a range of international authors, many of whom have had long-standing political, practice and research based involvement in the Timor-Leste context before and during its transition to full independence. Published in 2009 with the support of the Irish Government, it is the first in a Trinity College Dublin Series on Asian Law and Human Rights. As the sole subject of this book, the newly independent Timor-Leste presents a unique context for examination of this theme. The amalgamation of Asian and animist customs with international law and rights norms is a particularly interesting, challenging and contemporary lens through which to explore the additional facet of the role of law in addressing transition from armed conflict and its aftermath. It is a timely piece given that Timor-Leste has recently celebrated ten years since the popular consultation that secured its independence and the book addresses some of the key challenges, issues and questions in this ongoing period of transition. The book is organised around five sections: Justice Systems in Historical and Cultural Perspective; The Indonesian Occupation and Aftermath; International Law and Human Rights; Gender and Impunity; and Truth and Reconciliation. Thus, it can be read in a linear way or dipped in and out of according to a reader’s area of interest. The book would benefit from a clear ‘introductory section’ however that would map out its key themes. This would also help to orient the reader and offer an overview and background to Timor-Leste, underlining the rationale for the book and the contents of its eighteen chapters.

This review

highlights several of the underlying themes that are explored across the five sections of the book including: the conceptualisation of the ‘past’, the relevance of customary law, the application of transitional justice mechanisms, the role of the international

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community, the establishment of the rule of law, the importance of gender issues and the tension between securing accountability and serving political concerns. Additionally the specific themes of demographics and language are noted. If anything has disproportionately characterised or over-shadowed the first decade of Timor-Leste’s self-governance and independence it is the intricacies of its still influential past – and this book correctly positions its analysis of the Timor-Leste situation within this purview. The majority of the contributions are concerned with the era immediately prior to the restoration of Timor-Leste’s independence in 2002, i.e. the Indonesian occupation of the half-island from 1975 to 1999. However, while the Indonesian occupation is possibly the most significant in terms of the impact of the violence and brutality on the population, and the most pertinent in the memory and consciousness of its youthful population, the ‘shadow of the past’ in the TimorLeste instance is about more than just this period of time and extends to before 1975. The narrow narrative of the ‘past’ that has emerged from what many authors in this publication feel are flawed transitional justice processes often ignores the relevance of earlier time periods and of customary law practices. This book makes some reference to earlier cycles of political colonisation, conflict, violence and occupation and the historic systems of ‘adat’3 and customary law that remain relevant to the current struggle to define and institute self-governance, rule of law, transition and transitional justice as covered in this publication. In the first chapter, Rod Nixon ensures that the book address a wider ‘past’ and presents a deeper sociological and anthropological analysis that ‘sets the scene’, as such, for an exploration of the Timor-Leste context. Nixon contributes a rare commentary on the characteristics of the Portuguese colonial era in Timor-Leste from the 16th century through to the present era where he posits that these systems have “maintained their currency”.4 The impact that the Portuguese administration and its colonialist policy has had on customary law systems, relations between kingdoms and political administration of the hinterland is brought to the fore through his analysis,

3

‘Adat’ is an Indonesian word used to refer to the sacred laws or belief systems on which local justice in TimorLeste is based. It is a word commonly used by Timorese to capture the complex systems that make-up customary law processes at local levels. 4

R Nixon, ‘Non-State Actors as Agents of Order: Suco Justice and Dispute Resolution Systems in East Timor’, 1.

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establishing a wider ‘past’ through which to appropriately view the modern TimorLeste. The main reference in this book to an important period in Timor-Leste’s past the occupation of the island of Timor during WWII by the Japanese - is again offered by Nixon (and to a lesser degree by Sarah Stavateig5 and Jackson Nyamuya Maogoto6). While Nixon’s commentary on this is brief, it is a period that remains significant in currency and memory for some Timorese, not least those disproportionately affected by the Japanese presence including women who were systematically sexually abused by occupying soldiers and have not yet secured accountability for these abuses in spite of their brave attempts to do so. Their stories and this particular period unfortunately do not form part of the official and political narrative that has defined the ‘past’ of the ‘post-conflict’ Timor-Leste and are also excluded to some degree from this publication. The significant place which ‘adat’ or customary law belief systems occupy in Timor-Leste societies is afforded appropriate attention in this volume. The ritual, customary norms and local justice practices of Timor-Leste societies have perhaps been subject to more scrutiny, assessment and external influence in the last ten years than in the previous fifty. As Nixon states, the majority of Timorese have “lived in a universe governed by the expectations and traditions of their ancestors, at least so far as these were interpreted by successive generations of traditional leaders”.7 As Laura Grenfell notes in her contribution,8 the relevance of local justice and local ways of resolving conflict, promoting reconciliation and healing shame or wounds brought about through social discord questions the international blue-print approach to ‘fixing’ states emerging from considerable periods of political conflict, insecurity or instability. The challenges associated with introducing and operating a formal legal system based on international law, ideas and constructs, on top of or alongside the inherent, ingrained and ‘normal’ local customary law practices has perhaps been one of the biggest conundrums facing the transition phase in Timor-Leste. The process of

5

‘How Many Persons in East Timor went ‘Missing’ During the Indonesian Occupation?: Results from Indirect Estimates’. 6

‘East Timor’s Tortured March to Statehood: The Triangle of Self-Determination, International Norms and Realpolitik’. 7

R Nixon, ‘Non-State Actors as Agents of Order: Suco Justice and Dispute Resolution Systems in East Timor’, 20.

8

L. Grenfell, ‘Harnessing Local Law in the Post-Conflict State: The Case of Timor-Leste’.

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adapting human rights standards to local contexts is explored well throughout the volume, with Laura Grenfell, Rod Nixon and Spencer Zifcak9 making the case for the use of local systems and the role of ‘non-state actors’ in a situation where a formal justice system has struggled to function. Grenfell and Nixon rightly highlight the need to engage with these systems in a way that negates their potential to undermine human rights standards or to challenge local power systems – particularly as they emphasise that in the case of issues such as the rights of women these systems must be transformed as otherwise women will continue to be oppressed under local justice norms. The most problematic of the claims associated with and attributed to the mechanisms available under the transitional justice ‘tool box’ relates to its effectiveness as a conduit in facilitating a society, in all its parts, to move from a place of contestation, violence and disorder to a place or position of ‘peace’. These high expectations are explored through several chapters that present the ‘challenges for justice’ characteristic to the Timor-Leste post-conflict period. It is worth noting that although they are delivered from the vantage point of different inter-disciplinary perspectives and a focus on different aspects of transitional justice, there is some repetition across chapters offering similar contextual information and commentary on the transitional justice mechanisms used to date in Timor-Leste (i.e. the International Human Rights Court established in Indonesia, the Commission for Reception Truth and Reconciliation (CAVR) across Timor-Leste, the Serious Crimes Unit and Special Panels established in Dili and the Truth and Friendship Commission, a more recent joint venture between the Timor-Leste and Indonesian governments).

The book

clearly addresses many of the problems and flaws with these systems and it is thereby a very helpful contribution in compiling a picture of what justice for crimes of the past has looked like in Timor-Leste, albeit mainly written by non-Timorese commentators. With the abuse and violations experienced by Timorese to the fore, the concepts of ‘impunity’ ‘truth’ ‘reconciliation’ ‘justice’ ‘accountability’ and ‘healing are explored in chapters by Simon Philpott,10 Susan Harris Rimmer,11 Guy

9

‘Combining Community Reconciliation and Local Justice: A Modest Proposal for Reform’.

10

‘Postcolonial Troubles: The Politics of Transitional Justice in Timor-Leste’.

11

‘Beloved Madam: The Indonesian ad hoc Human Rights Court’.

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Cumes,12 Joseph Nevins13 and Jeff Kingston.14 Chapters by Clinton Fernandes,15 Clive Symmons16 and Joseph Nevins17 uniquely draw the culpability of the US, UK and Australia in facilitating these abuses into the conversation.

Their chapters

advance thinking and consideration of how these international players could be brought to account through the mechanisms of justice and reparation offered during transition. Links are also made by several authors, including Grenfell and Philpott, between the culture of impunity, lack of justice and due process and the security crisis that occurred in Timor-Leste in 2006, underlining the importance of accountability for future stability. A critique of the ‘international community’ in failing to support the fledgling nation to undertake strong mechanisms of transitional justice or to adopt an adequate and functioning rule of law is a referred to in several chapters, including Laura Grenfell, Dominik Zaum,18 Simon Philpott and Guy Cumes. There is a consensus among many of the chapters that the UN administration’s departure was premature and that the international community unrealistically expected a nation to be created and become fully functioning within two years. However, the chapters do not appear to sufficiently address the huge progress that was made by the Timorese who fought long and hard not only for independence but for a say in how their country was being run during this time. Gernot Biehler uniquely questions the possibility of TimorLeste being included within the new discourse on the ‘failed state’, a very relevant question considering the nature of the aforementioned 2006 crisis and the ongoing problems affecting the functioning domestic justice and policing system.19

12

‘Impunity, Truth and the Rule of Law: The Political Compromise of Accountability and Justice for Human Rights Atrocities in East Timor’. 13

‘Truth, Justice and Reconciliation for East Timor in a World of Lions and Mice’.

14

‘Human Rights, Justice and Reconciliation in Timor-Leste’.

15

‘The Continuity of Australian Foreign Policy towards East Timor’.

16

‘Denial of Self-Determination and Utilisation of Natural Resources by an Illegal Occupier of Territory: the Role of Non-Recognition in such Instances in the Light of the East Timor Case and the Situation in Western Sahara’. 17

‘Truth, Justice and Reconciliation for East Timor in a World of Lions and Mice’.

18

‘Building the Rule of Law after Conflict: UNTAET and Judicial Institution Building in East Timor’.

19

‘Current International Law Influences in the Government of Timor-Leste’.

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The book reserves a specific section of two chapters for ‘gender’ - ‘Beloved Madam: The Indonesian ad hoc Human Rights Court’ by Susan Harris Rimmer and ‘Time to get Serious about Women’s rights in Timor-Leste: Wrestling change from the Grassroots Up’ by Carolyn Graydon - both of which are notable for their compelling contribution to expanding our understanding of women’s specific experiences in the period in question. However, it may have also been appropriate for other chapters to have considered gender in the context of their discussions (with the exception of contributions such as those by Rod Nixon and Laura Grenfell which do refer to these issues). It is important that issues of ‘gender’ are positioned strongly within this book given the primacy of ‘gender’ in influencing and determining the social order in which abuses occur and in which society responds. As with every society, Timor-Leste has its own set of gendered social norms and while these may have become more fluid in the transition era they provide a relevant lens through which to frame the key concerns of this book - ‘past’, ‘justice’ and ‘human rights’. In her contribution, Susan Harris Rimmer presents the case for examining a wider paradigm of gender and transitional justice, not simply the gendered and discriminate categorisation of crimes within the transitional justice discourse. Harris Rimmer presents women’s concerns in the International Human Rights Court in Indonesia, highlighting the gendered and harmful experience of the court for women and the lack of prosecution for sexual violence crimes. Harris Rimmer highlights women’s ongoing experiences of violence in Timor-Leste and the connection between this and the lack of prosecutions, questioning just ‘who’ justice is for. Carolyn Graydon’s chapter is a hugely important contribution to this volume and grounds the book in the reality of Timorese daily life, norms and customs upon which notions of human rights and justice are being applied. An antidote to the aforementioned blue-print approaches and ‘quick-fix’ solutions imposed by international bodies such as the UN, the chapter underlines the importance of longerterm social change and transformation that is required for notions such as the ‘rule of law’ to truly take hold. The ‘custodians of culture’ at grass roots levels are nominated as key actors in these processes, particularly if we are to prevent any of the gains in terms of the recognition of women’s rights and equalities achieved during the Indonesian occupation from regressing during the transition period. Graydon

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highlights that top-down approaches need to be counteracted by the promotion of human rights packaged in the familiar. Two interesting chapters offer some depth to the conversation outside of the specific framework of assessing the justice and law systems being established in Timor-Leste.

Sarah Staveteig’s chapter provides a statistical perspective on the

violence and killing that took place during the Indonesian occupation. A quantitative demographic investigation provides a picture of what these numbers look like and proposes that ‘mortality figures are an important way to summarise the experiences of a population, particularly when so many victims and their stories will forever remain unknown’.20 It does to some degree present a picture of the extent of the brutality of the Indonesian occupation, although it is given more depth by being read in conjunction with the other chapters in this book. It is important to note that the author indicates that the 2004 census was unavailable at the time of research – dating this piece somewhat particularly given that a new census is currently being planned in Timor-Leste. Fernand de Varennes’ chapter also explains a key issue related to the wider conversation of the book – that of ‘language’ and the politics and dilemma facing Timor-Leste in determining official language in the face of the intersection between ‘past’ and ‘practicality’.21 The chapter offers a wonderful explanation of the ‘layers’ to Timor-Leste’s linguistic landscape and the complicated “tapestry” that constitutes its linguistic options. The tensions between ‘realpolitik’ and the ideals of domestic and transitional justice priorities are particularly well captured throughout the book. Comments in this respect are particularly relevant to an analysis of today’s Timor-Leste. The political relationship with Indonesia is a priority for the Timorese government, and there is a risk that this may over-ride the express wishes of a population still yearning for accountability and justice.

This book offers a very useful overall context and

reflection on this tension. For example, Joseph Nevins highlights that upon release in

20

S. Staveteig, ‘How Many Persons in East Timor Went ‘Missing’ During the Indonesian Occupation?: Results

from Indirect Estimates’, 144. 21

‘Timor-Leste’s Language Policy: Does It Breach International Law?’.

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2006, the report of the CAVR Truth and Reconciliation Commission was largely ignored by Timor-Leste’s then president (Xanana Gusmão) and then foreign Minister (José Ramos Horta). International leaders followed suit (although the report has recently been discussed by the Timorese parliament following strong lobbying by civil society). Nevins posits that Timorese leaders ‘desire an international tribunal and reparations, but they fear the consequences of demanding them, given the political and economic vulnerability of their country’.22 A recent spat between Ramos Horta and Amnesty International via press releases demonstrates how far the Timorese leader will go in talking down, even denying the desire among the Timorese population for adequate mechanisms of accountability to be established, such as through an international tribunal. The current narrative and vernacular employed by the Timorese president in international arenas in denying a desire on the part of the Timorese for the establishment of further mechanisms of accountability should be noted in this respect. There is a risk that an official discourse depicting a ‘politically correct’ version of Timorese attitudes and desires related to transitional justice becomes the accepted norm in the international arena and within political communications between Timor-Leste and the rest of the world. The voices and claims of the ordinary Timorese thus become silenced. Simon Philpott states that “the failure of the international political will on the question of war crimes and crimes against humanity will also have direct consequences with respect to official and collective, popular memory of the Indonesian occupation. Arguably, it is in this respect that the Timorese have been most comprehensively let down by the international community.”23 However, as Philpott again argues, the Timorese leaders are in an unenviable position given the absence of international interest, political will or financial commitments to actively investigating or prosecuting those responsible for the atrocities in Timor-Leste. The conversation in this book highlights the lack of formal recognition of the wide range of abuses experienced by the Timorese under the Indonesian occupation. It appears also that by Timorese leaders clouding the issue, there is a danger that the Timorese will perceive a further lack of recognition of their experiences by the

22

J. Nevins, ‘Truth, Justice and Reconciliation for East Timor in a world of Lions and Mice’, 523.

23

S. Philpott, ‘Postcolonial troubles: The Politics of Transitional Justice in Timor-Leste’, 260.

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country’s own leaders. There is thus much disillusionment among victims who, as Philpott states ‘will long live with the consequences’24 despite the realities of ‘realpolitik’. While an analysis of the Timor-Leste situation from the justice lens is relevant, the reality is that the majority of Timorese live in abject poverty, and whether classified as a ‘failed state’, or running with or without a functioning legal system, most Timorese focus on daily survival.

It is true that the search for

accountability for past crimes remains a key issue for activists and ordinary Timorese, however even with repeated calls for the establishment of an international tribunal, it is doubtful that their impoverished lives will radically change in the length of time it would take for such a process to run its course. It is doubtful also that adequate reparations would be administered to alleviate the burden the Indonesian occupation itself and the tacit support to it by the UK, US and Australians has had on ordinary Timorese lives. Guy Cumes briefly highlights that ongoing problems of poverty and deprivation cannot be addressed through a criminal justice model alone. The book however misses a unique opportunity to extend the conversation on accountability for past abuses to the ongoing experience of the absence of social and economic rights for the majority of Timorese, which would be more closely aligned with the reality of their daily lives and in line with what they may imagine accountability and expected reparations may mean. The chapters in this collection largely focus on the concept of ‘transition’ from conflict and the notion of the ‘rule of law’ and ‘transitional justice’ as tools in a process which would recognise this ‘past’. As a collection, it adequately captures and presents a picture of what the international discourse on transitional justice looks like when applied to the complex, unique and diverse socio-cultural systems and sociopolitical landscape that is today’s Timor-Leste. It sets out the implications of the Indonesian period to the current post-Independence era and weaves together a picture of Timor-Leste through a justice lens and will be of use to any scholar, researcher or practitioner engaging on related issues or indeed with a specific interest in TimorLeste. It presents both the limits and opportunities of the human rights system, the

24

ibid, 260.

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role of the international community and the congruence of these with past, present and future. The combination of inter-disciplinary analysis from anthropological, linguistic, sociological, demographic and legal fields brings together a rounded view covering a wide range of key legal, socio-cultural, justice and accountability issues currently facing Timor-Leste.

Aisling Swaine Transitional Justice Institute, University of Ulster

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IRELAND

Statement by

Mr. Peter Power T.D. Minister of State for Overseas Development

At the United Nations Conference on the World Financial and Economic Crisis and its Impact on Development

New York, 24-26 June 2009

PERMANENT MISSION OF IRELAND TO THE UNITED NAIONS

885 SECOND AVENUE, NEW YORK, NY 10017 TELEPHONE 212 421-6934 Fax 212 752-4726 [email protected]

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IRISH YEARBOOK OF INTERNATIONAL LAW 2009-2010

Mr. President, distinguished delegates,

When we gathered in Doha seven months ago to reaffirm our commitment to global development, we knew that the world faced a financial and economic crisis. Today it is clear that the crisis is more far-reaching and more unpredictable than many had feared. Its impact is being felt in different countries and communities in different ways. It is seriously undermining progress on the Millennium Development Goals. At this Assembly last September, I participated in the launch of the Report of the Irish Government's Hunger Task Force. Our objective then, as it is now, was to highlight the central importance of global hunger and food security, the most basic of the MDGs.

We are very conscious of the severe consequences of the crisis for those in a seriously weaker position than ourselves. For the poorest people on the planet- not least the one billion people who do not have enough food to eat –the financial and economic crisis is becoming a human calamity. Macroeconomic statistics cannot demonstrate the true extent of a crisis still unfolding across the developing world. Growth projections for sub-Saharan Africa are constantly being adjusted downwards. Crucially, private capital flows, which played a key role in the economic growth of recent years in Africa, are drying up.

Whole communities are feeling the decline in workers' remittances. Commodity exporters are seeing a sharp drop in revenues, and tourism and other revenues are also declining. Households across the developing world are facing stark choices. Poor families will have to ask whether they have the resources to meet basic consumption needs and the costs of keeping children in school. Several hundred thousand infants will die this year, many because of malnutrition, as a direct consequence of the economic crisis. That simple, unacceptable reality demands a more urgent concerted and effective response by the international community - not alone to work for the restoration of economic growth, but to ensure that the poorest and most vulnerable are protected through this economic storm.

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Ireland and our EU partners support targeted, counter-cyclical measures aimed at protecting the most vulnerable and sustaining economic activity and employment. We also need to improve the effectiveness of our aid7 based on the principles outlined in the Accra Agenda for Action. By the same token, it is important to focus more clearly on key priorities - in the case of Ireland's aid programme, on the global hunger crisis.

In recent months, there has been important positive action by the G20 and by the World Bank - IMF Development Committee. The crisis has reaffirmed the indispensable role of the international financial institutions. It has also confirmed the urgent need to reform them, and to strengthen their legitimacy as development actors by giving greater voice and representation to emerging and developing economies, including the least developed.

The United Nations has a key role to play in the efforts to help developing countries tackle the full range of social, economic, financial and environmental challenges they face. In line with the consensus reached here in the General Assembly by all Member States last September, the UN's capacity to 'Deliver as One' must be strengthened. Real progress has been made on system-wide coherence, but more needs to be done to ensure that the UN, across all its agencies, delivers as one for the poorest people of the world. In building on the successes to date of the One UN Pilots at country level, it is now essential to foster stronger coherence between the UN and other development actors, including the international financial institutions. Coherence and coordination of policies and actions between the UN, the international financial institutions and the relevant regional organisations needs to be strengthened. The UN, working with the other relevant institutions, should be given the resources to monitor the impact of the crisis on the poorest and most vulnerable.

The UN has already reported that the volume of global trade is expected to fall by l l per cent this year - the largest annual decline since the Great Depression. This underlines the need for an ambitious, balanced and comprehensive agreement in the WTO Doha Development Round, which addresses the real concerns of developing countries, particularly the poorest.

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Mr President, In agreeing initiatives to respond to the crisis, we must recognise clearly the need to deliver life-saving results in the immediate term for the most vulnerable people in the least developed countries. The cruel fact is that we need to do so in a situation where budgets for overseas assistance are under serious pressure everywhere. In Ireland, we have had to take the very difficult decision to adjust our budget for ODA in 2009, with the sole objective of providing the macroeconomic foundation and conditions to enable our economy to return quickly to sustainable growth. This is crucial to enable us to resume expansion of our aid programme. In this context, we are maintaining our commitments on ODA targets. We are also maintaining our sharp focus on poverty and hunger in sub-Saharan Africa. And we are ensuring that the fight against the global hunger crisis - accentuated by the economic crisis is a cornerstone of our aid programme.

This seriously difficult environment challenges us all to recommit to global deveIopment, and to ensure that our financial contributions - our ODA – are delivered more effectively and sustainably, with tangible results. The Agenda on aid effectiveness adopted in Accra last September will save lives if it is implemented.

It requires all Governments and all non-governmental development organisations to examine and often overcome old habits. If we want to ensure that sustainable international development is an achievable goal, we need as development partners to account more clearly and effectively to each other, and to our citizens.

In conclusion, Mr. President, allow me to congratulate the facilitators for their work in achieving broad consensus on the draft outcome document from this Conference. The message we send from New York this week must be that we are ready to put words into action, to act more effectively despite the constraints of limited resources, and to save lives which will otherwise be destroyed by the economic crisis. Thank you

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STATEMENT BY

H.E. Mr. John Paul Kavanagh

Ambassador Permanent Representative to the United Nations

AT THE UNITED NATIONS GENERAL ASSEMBLY DEBATE ON THE RESPONSIBILITY TO PROTECT

New York, 24 JULY 2009

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Mr. President, My delegation fully aligns itself with the statement made by the Permanent Representative of Sweden on behalf of the European Union.

The Responsibility to Protect our populations from the four crimes of genocide, war crimes, crimes against humanity and ethnic cleansing is clearly and tragically demonstrated by past horrors. Cambodia, Rwanda, Srebrenica, Darfur – these represent some of the more recent grotesque failures to live up to this responsibility, and of them we are, all of us, rightly ashamed.

But condemning past failures is no solution to today’s problems. And nor is a mere declaration that we will never allow these mass atrocities to occur again.

This most universal assembly of States must never tolerate a situation where the peoples of the world are not protected from the prospect and actuality of these four crimes. This failure to protect would, sooner or later, undermine confidence in the value of the UN Charter and indeed the United Nations itself.

The unanimous adoption of the Responsibility to Protect in the World Summit Outcome Document in 2005 represented a major step in accepting our collective responsibility to prevent and halt these mass atrocities.

We now move into the next and critical phase, of agreeing how we should honour this responsibility. The Secretary General’s Report on Operationalising the Responsibility to Protect provides important guidance on how we might achieve this. Ireland warmly welcomes the Secretary-General's well judged and balanced Report and this debate. We particularly welcome the reiteration of the principle of responsible sovereignty, and the move away from the false dichotomies sometimes posed between the interests of the State and its populations, between the interests of the State and those of the international community.

We strongly agree that the primary responsibility for protection of persons from these four crimes rests with the State itself, and that the international community has a

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responsibility to assist States in building or supporting this capacity where this is needed.

This approach rebuts any notion that R2P as a concept can be reduced to a myopic argument over military intervention versus inaction and indifference.

Rather, the twin pillars of State responsibility and capacity building draw attention to the myriad options we have to prevent and respond to these atrocities. These include measures such as developing specific early-warning mechanisms; training key national actors on their responsibilities under international humanitarian law; incorporating relevant international treaties into national legislation; and building local mediation and conflict resolution capacity.

In practice, the development and enhancement of these measures can most appropriately be supported through development assistance programmes and building the capacity of regional organisations. Indeed, ensuring development programmes are adequately informed by R2P may be the most effective way to operationalise our collective responsibility.

Nevertheless, we must be careful not to confuse the development agenda with the need to prevent and respond to these four crimes. Firstly, the commission of these crimes is not limited to developing countries. Secondly, the aims of development assistance are far broader than preventing these four crimes. Thirdly, we cannot honour our Responsibility to Protect by relying solely on current development assistance programmes. Instead, specific and targeted measures, such as those I have outlined earlier, must be devised, incorporated and implemented into our current programmes.

These are critical activities, which, if given adequate support and attention, would go a long way to preventing these crimes. And prevention is manifestly the optimal outcome.

Mr. President, We should approach the third pillar – our collective responsibility to respond when States themselves are manifestly failing - with similar imagination and openness.

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IRISH INTERNATIONAL LAW YEARBOOK 2009-10

In particular, we should resist attempts to equate the third pillar with military intervention, when in fact it encompasses a broad range of measures, from mediation to enhancing international justice mechanisms, from financial and travel sanctions to restricting the flow of arms into such countries, to peace enforcement missions under Chapter VII of the UN Charter.

And of course any such measures could only be approved through the established decision making processes of the United Nations and in conformity with our Charter.

By focusing on only one of these measures – peace enforcement missions - we would be severely limiting our capacity to respond, and neglecting our duty to develop the other mechanisms. Indeed, these other mechanisms are often more appropriate and effective if adequately supported.

Ireland is determined to continue its efforts in these areas, through our development programme, our commitment to international humanitarian and human rights law, our conflict prevention strategies and our peacekeeping tradition.

We understand that some States are cautious in moving forward. And we do not wish to ignore the very real fears that R2P could be misused for ulterior motives. The incorrect application of this responsibility – through either a broadening of its scope, its selective application, or its malicious misapplication for a State’s own strategic interests – must be guarded against and resisted.

And we believe the best way to do this is debate these challenges openly and forthrightly. So let us consider each of them.

First, broadening the scope of the Responsibility to Protect. This can be very tempting, especially when confronted with the horrendous suffering following natural disasters, HIV/AIDS epidemics and even conflict situations where gross human rights violations exist. Ireland believes that the international community can and should respond to these through development assistance programmes, human rights monitoring bodies and conflict prevention strategies. 410

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However, and while it would be wrong to deny the interconnectedness of these elements, we believe the Responsibility to Protect needs to remain focused exclusively on the four crimes already specified consensually by the 2005 World Summit, namely genocide, war crimes, crimes against humanity, and ethnic cleansing. As the Secretary General’s report makes clear, R2P does not apply to other situations. To attempt to broaden it further would likely impair its operational utility and could unrealistically present it as a cure to all ills.

Second, the selective application of the Responsibility to Protect or its misuse to further a State’s own strategic interests. This is another issue on which we must stand firm. It should be stated clearly and unambiguously, as it is in the Secretary General’s report, that the Responsibility to Protect does not lower the threshold for legitimate use of force. Military intervention which is not in line with the UN Charter and which does not have prior Security Council approval when this is required is not in line with, nor can it be regarded as having been authorised by, the Responsibility to Protect.

While understanding the caution of some States, Ireland strongly believes that reaching a consensus on the operationalisation of R2P is the best way to protect against any possible selective application or misuse. Quite contrary to claims that R2P will increase arbitrary military interventions, we believe that it is the ambiguity and lack of consensus around the issue of intervention that may encourage some States to ‘go it alone.’

It is far easier to seek politically to justify unauthorised intervention to halt mass atrocities when one can point to disarray and inaction in the United Nations. Moreover, an agreed framework which rightly places intervention in its proper context would be much less susceptible to misinterpretation or misapplication.

The path to that agreed framework is unlikely to be short or easy. But if we truly wish to consign genocide, crimes against humanity, war crimes and ethnic cleansing to the history books, it is a path we must take. And we must take it together.

Mr. President, It would be easy in this room, sheltered as we are from the harsh realities of war, to ignore the pressing need to reach a consensus on this issue. 411

IRISH INTERNATIONAL LAW YEARBOOK 2009-10

But we must not.

We must instead be moved by a collective desire to address the real and devastating threats which face too many populations across the entire world. This is not the place, nor is it the time, to rehash old debates or hark back to bygone eras. It is also not the time to confuse this issue with other reforms that may be necessary within the United Nations. This debate is about agreeing on specific methods to prevent and respond to four specific crimes. The Secretary General’s report does not go beyond this, and nor should we.

If we allow ourselves to become mired in our differences on other issues, or allow R2P to be misrepresented and linked tendentiously with these other issues, we may well be dooming future generations to repeat the mistakes of our past.

Mr. President, Today, we have been given the opportunity to address our past failings and to honour the victims of the past by ensuring we do more and we do better in the future. Many opportunities have been missed thus far. Let this not be another one.

Thank you, Mr. President.

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Statement by

Mr Dick Roche, Minister for European Affairs

High level Conference on the Future of the European Court of Human Rights

18-19 February 2010

Interlaken, Switzerland

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I wish to pay tribute to the Swiss authorities for their leadership in taking the initiative to organise this Conference. Looking around the room today the high esteem in which the European Court of Human Rights is held by Ministers from around Europe is very evident. Our presence here is a strong political signal of recognition of the fundamental position the Court occupies in the European legal sphere and of the need to ensure it flourishes in the future.

I would also like to take this opportunity to welcome the entry into force of Protocol 14 in June this year which has been made possible by the ratification of this instrument by the Russian Federation. This will enable the implementation of a number of much needed reforms for the Court.

We endorse the Declaration and Action Plan which will be adopted today. While this Conference should provide a strong impetus to reform of the entire Convention system it is not, of course, an end in itself. Much meaningful work will be required in the coming months and years to guarantee the continued viability of the Court.

We are all beneficiaries of the human rights culture nurtured by the Convention and the Court. As such we have a responsibility to ensure that there is no further deterioration in the current crisis faced by the Court with its overwhelming backlog. Today should mark the beginning of a commitment, anchored in national administrations, to support and strengthen the full implementation of the Convention system at every level.

The system of human rights protection created by the Convention resembles an arc, running from implementation at national level, to effective working of the Court, through to prompt and effective execution of judgments and consequent national measures.

Every element needs to operate effectively. Solutions to the Court’s

problems must be multi-faceted and engage every stage of the system.

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Pre-eminent must be the principle of subsidiarity, and better implementation of the Convention at the national level. The huge number of applications to the Court arise in very large part from the weakness of domestic protection systems. The single most meaningful achievement would be to ensure that appropriate legal structures for the protection of human rights exist and operate effectively in every member state. When that comes about it is inevitable that applications to Strasbourg will decrease.

Recognition of the crucial role of national implementation is nothing new. The Declaration of the European Ministerial Conference on Human Rights in Rome in 2000 recalled that, in the first place, it is for Member States to ensure that human rights are respected, in full implementation of international commitments. The sad reality is that the call for better national performance is as necessary today as it was almost ten years ago.

It is simple, the Court and the Convention system cannot survive on good intentions and good will. Where a clear and persistent systemic problem has been identified by the Court at national level, member states must ensure that appropriate measures are taken to remedy the situation. We Ministers must collectively ensure that that the message of the need for better implementation is heard and applied across each of our member states.

The Court too has an important role to play. We commend it for its work so far in seeking to adapt as best it can to the situation it faces. But the growing deluge of applications means that fundamental changes have to be considered seriously. Our Declaration today points to rigorous and uniform application of admissibility criteria and to possible filtering mechanisms among practical ways forward.

We consider that the Court should preserve and enhance its role as the important creator and arbiter of European human rights jurisprudence. To maintain that preeminence, it is clear that a method must be found which allows for due time and 415

IRISH INTERNATIONAL LAW YEARBOOK 2009-10

attention to important and fundamental cases, while continuing to allow for the right of individual petition.

The obligation on states to fully execute the judgment of the Court can be seen as complementary to better implementation of the Convention at the national level. Effective and prompt execution of a judgment provides an opportunity for a High Contracting Party to take action to prevent future violations and to avoid repetitive cases.

We are pleased to note, and support, the emphasis in the Action Plan on the urgent need for the Committee of Ministers to develop and strengthen its role and to review its working methods. It is essential and appropriate to carefully evaluate the current process and to ensure that the best possible system is in place. The Committee of Ministers should seek to ensure that this important work is given the necessary level of priority and that the peer-review nature of the execution process is protected.

We are pleased that there will be a timetable for future work. I hope that this will not only be respected but accelerated.

Much reflection by distinguished

personalities and groups has already been devoted to the better operation of the Court. We must now build on that work and make positive action our keyword.

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General Debate Review Conference of the Rome Statute of the International Criminal Court (Kampala, 31 May-11 June 2010)

Statement on behalf of IRELAND Mr James Kingston Legal Adviser, Department of Foreign Affairs Head of Delegation Kampala, 1 June 2010

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IRISH INTERNATIONAL LAW YEARBOOK 2009-10

Mr President I have the honour to address you on behalf of the Government of Ireland on the occasion of the Kampala Review Conference of the Rome Statute of the International Criminal Court. As a Member State of the European Union, Ireland aligns itself with the statement of Spain delivered on behalf of the Union.

I would first like to express my delegation's thanks to the Government of Uganda for hosting the Conference at this impressive venue and for the warm welcome afforded to us.

I would also like to thank the President of the Assembly of States Parties, the Bureau, the Secretariat and all those involved in preparations for the Review Conference.

Mr President This Review Conference provides us with an historic opportunity to reflect on developments since the Rome Conference and to plot the Court's future course. We will do this through taking stock of international justice and through considering proposed amendments of the Statute.

Insofar as stock-taking is concerned, it is important that we acknowledge and celebrate our achievements, as well as identifying improvements required and the means to secure them.

We should recognise the milestone embodied by the Court as the first permanent international judicial body charged with dealing with the most serious crimes of concern to the international community. At the same time, the Statute reiterates that the primary duty of combating impunity is placed on states. The Statute provides for due process rights for accused persons and recognises in innovative ways

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the crucial role of victims. The reality of gender-based violence as a feature of conflict is reflected by specific provisions on sexual offences.

It is also important to recall that since it was opened for signature on 17 July 1998, the Rome Statute has been ratified by 111 States from all regions of the world, with the largest group - 30 - coming from Africa. The Statute has also been signed by an additional 37 states. This is an impressive record, although we must continue to strive towards the goal of universality.

Mr President Progress towards universality must also be matched by implementation of the Statute by States Parties. In Ireland, the International Criminal Court Act 2006 implemented all aspects of the Statute and the Agreement on Privileges and Imrnunities into domestic law.

Ensuring complementarity is a key part of all our efforts. In this regard, we should acknowledge the positive and landmark steps that African countries, such as our host Uganda, are making in establishing and strengthening national justice institutions.

Ireland

is

committed

to

partnerships

supporting

post-conflict

reconstruction and reconciliation in a number of countries, including here in Uganda.

Mr President The four items for discussion as part of the stock-taking exercise are all equally important, but I would like to take the opportunity to mention just one of them - Cooperation – for which Ireland has the honour to act as focal point, together with Costa Rica.

As we are all aware, the Court cannot act alone and requires cooperation from States Parties to fulfil its mandate. Assistance from other states, international organisations and civil society is also vital. Stocktaking of cooperation should provide

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for a comprehensive overview of the challenges and achievements with regard to the implementation of Parts 9 and 10 of the Rome Statute. Our discussion should seek to explore best practices based on our experience of the Court to date and also the invaluable lessons to be learnt from other international courts and tribunals. The discussion should foster a common understanding of further steps needed to improve cooperation in all its aspects.

The focal points have obtained the services of a very distinguished moderator, as well as highly qualified keynote speakers, who will address the Conference on different aspects of cooperation with a view to sparking a lively and interactive discussion.

Mr President As well as stock-taking, the Review Conference will consider proposed amendments of the Rome Statute. The Conference will spend considerable time in its consideration of the Crime of Aggression, as mandated at Rome. The proposals before us reflect many years of hard work and discussion and deal with complex legal issues. We encourage all States to approach our discussions with the aim of reaching consensus.

The Conference will also discuss a proposed amendment of Article 8 of the Statute, sponsored by Belgium and CO-sponsoredb y 18 other States Parties, including Ireland, from all regions of the world.

Mr President In my delegation's view, the overall purpose of this Review Conference is to reaffirm our continuing commitment to the goals expressed so eloquently in the Rome Statute, to recognise our achievements and to identify ways of strengthening the Court for the future.

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To borrow from the Irish poet and Nobel Laureate, Seamus Heaney, we are all dual citizens of the Republic of Conscience, charged to act as its ambassadors, and if we fulfil that mandate we will surely achieve our purpose here in Kampala.

Thank you Mr President.

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65th Session of the United Nations General Assembly

Address by

Mr. Micheál Martin, T.D.

Minister for Foreign Affairs

New York, 27 September 2010

PERMANENT MISSION OF IRELAND TO THE UNITED NATIONS 885 SECOND AVENUE, NEW YORK. NY 10017 TELEPHONE 212 421-6934 FAX 212 752-4726 [email protected]

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Mr. President Let me begin by warmly congratulating you on your election and extending the best wishes of the Irish Government for a successful term in office.

Mr. President We gather this year against the backdrop of grave challenges which confront the global community.

Foremost among these is the continuing crisis of global hunger and poverty. We recognise the obligation upon us to fulfil the commitments made to the world's most vulnerable people when this Assembly adopted the Millennium Development Goals in 2000. Our Governments have to contend with the most severe global recession in many decades but we must limit the impact of the crisis on those in greatest need. And we must maintain our commitment to halve the proportion of people living in extreme poverty and hunger by 2015.

Firmer action is also called for in responding to the threat posed by climate change. If the global community fails to act now on climate change, we will face a steadily escalating threat to our planet and to human survival. In recent months, we have also seen the devastating consequences which natural catastrophes such as those which have afflicted Pakistan and Haiti can unleash on vulnerable populations.

As with so many of the challenges and threats to our common security, it is to this great Organisation, the United Nations, that we instinctively turn in searching for effective collective responses. The universality of its membership gives the United Nations a unique legitimacy and authority. It brings the nations of the world together under a common roof. It provides an invaluable framework for common reflection and decision-making. With the necessary political will, the Member States can use the authority and reach of the UN to fashion a more peaceful, a more equitable and a more secure world.

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UN Reform One area requiring our close attention is reform of the United Nations itself. To improve the effectiveness of this Organization, we need to ensure that its structures are fit for purpose and adjusted to twenty-first century realities. Ireland has actively championed the reform agenda at the UN in recent years and we will continue to do so.

In that regard, I warmly welcome the establishment of UN Women. Ireland is committed to supporting this important new body within the UN system, as it promotes greater gender equality and works to enhance the rights and well-being of women worldwide. The benefits to be had from the "Delivering as One" programme greater coherence in UN development activities and improved delivery of services at the country level - are clear and tangible. The valuable work done in these areas shows that reform E be achieved when it is clearly shown to be in our collective interest.

We need to do more. however. There is a pressing need for a UN Security Council which is more properly reflective of twenty-first century realities and which can function better and with increased transparency. The constructive deliberations within the informal Plenary of the General Assembly considering this issue should be intensified, with a view to identifying whether there is a model for reform which can command broad consensus.

The system for apportioning the expenses of the Organisation should reflect better the principle of capacity to pay. This is an issue which Ireland and its EU partners have highlighted in recent years and which we will continue to follow closely. I look forward to positive results emerging from the review of the existing Scale methodology which the General Assembly has been mandated to carry out.

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Poverty and Hunger Mr. President Perhaps the greatest challenge which we face as a global community is to take effective action to eliminate poverty and hunger. We set ourselves clear targets in adopting the Millennium Development Goals (MDGs) ten years ago. We have reviewed progress here in New York over the past week. We welcomed the remarkable progress which has been generated through our collective action in areas such as education, child health and the treatment of HIV and AIDS. But the reality remains that the actual numbers of people living in poverty and hunger in our world continue to increase.

In recent times, economic crisis and uncertainty have devastated the lives of communities already facing extreme poverty - at the same time as imposing pressure on development budgets worldwide. It is therefore imperative that developed and developing countries, in partnership, now examine rigorously what actions have worked in the fight to end poverty and what actions can be pursued more effectively. We also need to focus more clearly on key sectors.

Since the publication of our Hunger Task Force report two years ago, Ireland has been arguing that a more concerted, comprehensive approach is required to end the continuing crisis of world hunger. The number of chronically hungry people has risen to almost one billion. One in four children in the developing world is undernourished. Failure to address this crisis is undermining progress across the full range of development goals. And yet the means are available, at an affordable cost, to end this scandal. We need to mobilise the political will to do so.

Last week, with the US Secretary of State, I hosted a meeting of international leaders to build a partnership focusing on nutrition in the first 1,000 days of life, from pregnancy to two years. We recognised and will give our full support to the Scaling Up Nutrition Initiative of the UN Secretary General. Our determination to maintain international attention on this issue is driven by the conviction that it is possible in the

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five years remaining to deliver measurable progress on our commitment to halve the proportion of people suffering from extreme poverty and hunger by 2015.

Peace and Security Mr President One of the core tasks of this Organization is to contribute to the maintenance of international peace and security. War and conflict are not merely profoundly destabilising for the regions in which they occur but also threaten the collective security of mankind. Mobilising effective international responses to armed conflict, as and when this occurs, and providing peacekeeping and peacebuilding support in this context are high on the UN's agenda. In this vitally important area, the UN's record of accomplishment speaks for itself, as explicitly acknowledged through the awarding of the Nobel Peace Prize in 2001.

Middle East Peace Process There is one conflict which, more than most, requires the sustained engagement of the international community at the present time. The direct talks underway between Israeli and Palestinian leaders present a historic opportunity to make progress towards a just and lasting peace in the Middle East. I am in no doubt that progress towards a comprehensive settlement based on the two-State solution would contribute more to improving global security than any other single peace-building effort.

I want to salute the leadership and commitment demonstrated by President Obama, Secretary of State Clinton and Special Envoy Mitchell in persuading Israel and the Palestinian Authority to resume direct negotiations. While there have been many critical junctures in the Middle East peace process in the past, there can be no doubting the significance of the initiative which is underway at present. It represents possibly the final opportunity to achieve a just settlement based on two states living side by side in peace and security.

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President Abbas and Prime Minister Netanyahu are also to be commended for their personal commitment to this process. I encourage both sides to stay the course and not to be deterred by those who seek to derail the process. In particular, I urge all parties to refrain from any actions which could endanger the negotiation process. It is vital that every effort is made to keep the process intact. Our own experience in the Northern Ireland peace process has shown that political progress can only be achieved through dialogue. Maximum restraint for the duration of these talks. which are intended to be -- and should be -- completed within twelve months, would be a small price for lasting peace. In this regard, I echo the statement made earlier today by the EU High Representative, Catherine Ashton, regretting the Israeli decision not to extend the moratorium on settlements. There could be no greater single confidence building measure and practical demonstration of commitment to peace than a decision to desist from all settlement construction in the West Bank and East Jerusalem.

Gaza Mr. President We must not forget Gaza at this critical time. 1 witnessed for myself the appalling humanitarian plight of the people of Gaza when I visited the region last February. Eighty percent of them live below the poverty line. The deprivations and hardship which they are suffering because of the blockade are painfully obvious. Yet the

people of Gaza show a remarkable dignity and resilience in the face of living conditions which are quite simply unacceptable.

I welcome the steps taken so far to improve the delivery of humanitarian and consumer goods to Gaza. However, the reality remains that much more needs to be done in terms of rebuilding Gaza and allowing normal commercial activity to resume. In particular, exports must be allowed to resume from Gaza; the vital work of recovery and reconstruction, which has effectively been on hold for almost two years, must be facilitated; and key infrastructural projects identified by the UN must be allowed to proceed. 428

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1 would also urge greater support for the invaluable work performed by UNRWA, and its brave and dedicated staff. on behalf of the Palestinian people. I and others who have visited Gaza in recent months, such as Secretary-General Ban and EU High Representative Ashton, can testify to the importance of what UNRWA is doing to support the welfare of Gaza's inhabitants and to provide them with some basis for confidence in a better future.

Iran The lack of progress in resolving the differences between the international community and Iran over that country's nuclear programme is a source of great concern. I urge the Iranian authorities to engage constructively on this issue and to comply with the clear requirements set out in numerous Security Council and IAEA Resolutions, most recently in Resolution 1929. There is a sincere wish on the part of all of us to negotiate seriously and constructively with Iran on these and other important international issues. I look forward to such a dialogue resuming in the near future.

Any discussion with Iran would also need to encompass the human rights situation there. About which there continue to be the gravest concerns. Iran must do considerably more than it has done up to now to respect and fulfil the international obligations it has undertaken in the field of human rights. Recent cases of human rights abuses are profoundly disturbing and Iran must be held fully accountable for these.

Disarmament/Non- Proliferation Mr. President The global security which we all wish to achieve depends crucially on the eradication of the means of conflict. Efforts to achieve nuclear disarmament and to prevent the further proliferation of nuclear weapons have been key objectives for the United Nations since its inception.

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They have also been a major foreign policy priority for successive Irish Governments. Ireland was the first country to sign and ratify the Nuclear NonProliferation Treaty. The successful outcome to last May's NPT Review Conference has reinvigorated the Treaty and is an important milestone on the road towards the eventual elimination of all nuclear weapons. A key priority for Ireland is implementation of the action plan on nuclear disarmament agreed there. I am pleased that Ireland made an important contribution at the Review Conference. In particular, we were able to facilitate progress in relation to implementation of the 1995 resolution on a zone free of weapons of mass destruction in the Middle East. I hope that the strong spirit of compromise evident at the Review Conference will be maintained and built upon in the preparations for the 2012 conference on the Middle East resolution.

Ireland is equally satisfied with the progress made over the past couple of years on the issue of cluster munitions. The Convention on Cluster Munitions, which was negotiated in Dublin in May 2008, has entered into force as of 1 August this year. This landmark development brings closer the prospect of the elimination of all cluster munitions and the unacceptable harm to civilians which they cause. We must now move ahead with implementation of the Convention and promotion of the widest possible adherence to its provisions. Ireland is actively supporting preparations for the first meeting of States Parties of the Convention in Vientiane in November. We will continue to show leadership on this issue and to do all we can to ensure the worldwide elimination of these atrocious weapons.

Peacekeeping and Peacebuilding Mr. President This year marks the fiftieth anniversary of the first deployment of Irish troops under the UN flag. In 1960, just five years after we joined this Organization, Ireland decided to participate in a peacekeeping mission to what was then the newly independent Congo. This began a long and distinguished tradition of service in UN peacekeeping operations in a wide variety of conflict situations around the globe. We will continue to contribute personnel to these missions and to play our part, accordingly, in the 430

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maintenance of international peace and security. I welcome the constructive discussions which have taken place within the Committee of 34 on ways of improving the future conduct and management of UN peacekeeping missions, following on from Secretary General Ban's recent "New Horizon" paper.

This year, Ireland was honoured when our Permanent Representative took on the role of co-facilitator, along with South Africa and Mexico, of a major review of the UN's peacebuilding architecture. We were very pleased to be able to make our contribution to this important and wide-ranging reflection on the work of the Peacebuilding Commission, five years after its establishment. The three Cofacilitators have submitted a report which aims to revitalise the Commission and to give it renewed focus and impact. I look forward to positive consideration by Member States of this report and the recommendations it makes.

Ireland has also been active in relation to another set of issues which have a significant bearing on conflict resolution and peacebuilding. This year marks the tenth anniversary of the adoption of UN Security Council Resolution 1325 which, for the first time, explicitly acknowledged the key role of women in conflict resolution and peacebuilding. We have been working hard to raise international awareness of this Resolution and to encourage greater implementation of its provisions by UN Member States. As part of our focus on Resolution 1325, we have been pleased to work with Liberia and Timor Leste in conducting important "lessons learned" exercises. A report will be presented to the Secretary General shortly on the key findings made in this process. We are also working to finalise our national action plan on women, peace and security in the very near future.

Human Rights International Justice Ireland strongly supports the vital role played by the UN in upholding and defending human rights around the world. Next year's review of the Human Rights Council provides an opportunity to assess the Council's performance to date and to consider

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how it might he improved and strengthened. As a candidate for election in 2012, we look forward to making our own contribution to the work of enhancing the Council's performance.

Ireland is also deeplv supportive of the work of the International Criminal Court and of the International Tribunals in promoting justice and combating impunity. I welcome the successful outcome to the recent Kampala Conference of 1CC States Parties, including in relation to defining the crime of aggression, and I urge the fullest cooperation on the part of all Member States with both the ICC and the International Tribunals.

Sudan/Darfur Mr President The appalling human tragedy of Darfur continues to challenge the international community. 1 applaud the courageous efforts of the UN personnel and all others on the ground in Darfur who are working to provide vital humanitarian services.

We hope that all sides in Sudan will continue to engage in the fullest cooperation in support of the UN African Union mediation efforts in Darfur and also in the preparations for the historic referendum in southern Sudan early next year. Full implementation of the 2005 Comprehensive Peace Agreement still remains fundamental to securing peace and stability in Sudan as a whole and in the region.

Burma/Myanmar The continuing unjust detention of Aung San Suu Kyi in Burma epitomises the fate of prisoners of conscience everywhere who seek to uphold the values of democracy and free speech. I call for her immediate and unconditional release. I also call for the release of all other political prisoners in Burma and for the launching of a genuine,

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inclusive national dialogue. And I very much endorse Secretary General Ban's call on Burma's leaders to create the conditions in which free and fair elections can take place.

Northern Ireland In a world where we continue to face enormous peacebuilding challenges, the Northern Ireland peace process is an example of what can be achieved with patience, imagination and strong international support.

This year saw a hugely significant step forward in Northern Ireland with the devolution of policing and justice powers to a locally elected Minister accountable to the Assembly. This is a major step towards fulfilling the vision of the Good Friday Agreement which was signed 12 years ago.

That Agreement provides a genuine possibility for political inclusion for all who reject violence. It is the framework within which the Irish Government, working in partnership and full cooperation with the British Government and the Northern Ireland Executive, is helping to build economic prosperity, to assist communities to move beyond conflict and to sow the seeds for a shared future for all.

Conclusion Mr. President, The EU and its twenty-seven member States are firmly committed to effective multilateralism with a strong UN at its core. We look forward to further consultations with the member States of this Organization on proposed changes to the status of the EU in the General Assembly. These modest adjustments will help the Union to make a more effective contribution to the work of the Assembly and of the UN. A European Union speaking with a clear and coherent voice on the great global challenges which

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this Organization must address will, I believe, strengthen the impact and effectiveness of the UN as a whole. This is something to which Ireland and its EU partners attach the utmost importance.

Mr President, We live in times of profound and unsettling change and of daunting global challenges. As we struggle to deal with these challenges, and to chart ways forward in an insecure world, the United Nations is an increasingly valuable resource. It remains the international organization with the greatest potential for international consensusbuilding and for the framing of collective strategies and solutions. At its heart are the fundamental principles embodied in the UN Charter, principles which have underpinned the conduct of international relations over the past sixty-five years and whose strength and validity is more apparent today than ever before.

Ireland is steadfastly committed to this Organization and the principles and values on which it rests. I very much welcome, Mr President, your emphasis on the need for a strong, inclusive and open UN and we look forward to taking part in the consultations which you will be convening. We look to the United Nations as the indispensable forum for developing effective multilateralism and for leading international endeavours towards the creation of a more peaceful, prosperous and secure world.

Thank you.

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Ireland

Statement by James Kingston

Legal Adviser

Department of Foreign Affairs

Sixth Committee United Nations General Assembly 65th Session

28 October 2010

Agenda item 79 Report of the International Law Commission on the work of its 62nd session

Chapter VII: Protection of persons in the event of disaster

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Madam Chair, 1. As this is the first time for me to take the floor, allow me to congratulate you and the other members of the Bureau on your election. I can assure you of the full cooperation of my Delegation.

2. Ireland welcomes the opportunity to comment on the Report of the International Law Commission on the work of its 62nd session. I would like to focus on Chapter VII, the Protection of Persons in the Event of Disaster, in particular detail. However I first wish to make some more general remarks concerning the Commission's Report and work.

3. Before I do, I would like to express my Delegation's sincere sorrow on the death of Professor Paula Escarameia. Her untimely passing deprives the Commission and all of us in the international law community of a valued colleague and friend.

General remarks regarding the Commission's Report 4. Ireland places great value on the work of the Commission. We are therefore concerned to ensure that the conditions exist for a high-quality engagement between States and the Commission, including through the annual debates on this item at the 6th Committee.

5. Availability of the annual Report of the Commission only a short time before the opening of the UNGA session can create difficulties in this regard. We are therefore somewhat concerned to note that, as set out at paragraph 405 of the Commission's Report, the Commission has decided that its upcoming 63rd Session would be held from 26 April to 3 June and from 4 July to 12 August 201 1. Ireland wishes to point out that, subject to the availability of appropriate meeting space, earlier time-slots for future sessions of the Commission would be preferable in order to facilitate earlier production of the Commission's Report, This would contribute to a fuller and more indepth engagement with States at the 6th Committee.

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Other topics before the Commission - Immunity of State officials and the obligation to extradite or prosecute 6. Moving on to substantive topics on the agenda of the Commission, Ireland was disappointed that the Commission was not in a position to consider the topic of Immunity of State Officials at its last session. In our view, this topic is of great importance both on its own merits and also having regard to its links to a number of other issues currently on the agenda at 6Ih Committee and indeed the Commission itself. We hope that the Commission will be in a position to consider this important matter at its 63rd session.

7. Regarding the obligation to extradite or prosecute, we note with interest the survey of relevant multilateral Conventions prepared by the Secretariat and the related discussion of the Working Group on the framework for consideration of the item. The elements identified in that framework - namely the legal basis, scope and content of the obligation as well as the conditions to trigger the application of the obligation provide a useful map of the possible future work of the Commission on this issue. We hope the Commission has the opportunity to advance its consideration of this topic, as a priority, at its next session.

- Settlement of disputes 8. Ireland notes with interest the short discussion held by the Commission on Settlement of Dispute Clauses under the agenda item on Other Matters. We would be interested to hear the outcome of the Commission's deliberations, in due course. In our view, illustrative model clauses for acceptance of the jurisdiction of the International Court of Justice under article 36 of its Statute may be useful, on the understanding that States are free to reflect their particular concerns and needs in formulating the terms of their acceptance of compulsory jurisdiction. We are pleased that the Commission will continue discussion of this issue at its next session under the same agenda item and we look forward to the forthcoming working paper on the topic.

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Madam Chair, Protection of Persons in the Event of Disaster 9. I turn now to Chapter V11 of the Commission's Report, on the Protection of Persons in the Event of Disaster. Let me first thank Special Rapporteur ValenciaOspina for his work to date on this important topic, including in particular his Third Report which was before the Commission at its last session. We will comment on both the draft commentaries provisionally adopted by the Commission on draft articles 1 to 5; and the four additional draft articles provisionally adopted by the Drafting Committee (draft arts 6-9).

Commentaries on draft articles 1-5: 10. The commentary on draft article 1 (paragraph 33 1 of the Commission's Report) refers at point 3 to the possibility of including legal persons within the scope ratione personae of the draft articles in future. However, the framework - including the commentary on draft article 1 - is qualified in a number of respects by issues which cannot be applied to legal persons, such as a requirement to judge essential needs against "survival" and human need. In all the circumstances, Ireland has a preference for the draft articles to remain focused only on natural persons affected by disaster.

11. We note that the Commentary on draft article 1 clarifies that the draft articles are not tailored to any specific disaster type or situation in mind, but are intended to be applied flexibly to meet needs arising from all disasters, regardless of their transboundary effect. The commentaries also confirm that, although primarily focused on the post-disaster phase, the draft articles could also where appropriate cover the pre-disaster phase including disaster risk reduction and prevention. The Commentary on draft article 3 also recognises that the applicability of the draft articles is not limited by the cause of the disaster, whether it be natural, man-made or a complex emergency, Ireland welcomes all the above confirmations, with which we fully agree.

12. We note the Commission's confirmation that the draft articles are not limited ratione loci to activities in the arena of the disaster, but also cover those within 438

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assisting States and transit States. We agree with this position in principle, but consider that it would be preferable to explicitly include, at a later stage in the process, draft articles identifying and providing for the varying issues and responsibilities which may arise for assisting and transit States. Concrete issues such as access and transmit through non-affected States or territories for persons or supplies could usefully be provided for in these articles.

13. We note and welcome the Commission's Commentary on draft article 2 concerning the purpose of the draft articles. However we suggest that the commentary on this draft article could usefully be expanded to state clearly the Commission's existing view (with which we agree) that the draft articles do not relate to the principle of Responsibility to Protect.

14. The content of the Commentary on draft article 3 (definition of disaster) is of course particularly important. One of the key causation requirements - which the Commission acknowledges as setting a high threshold - is the test of "seriously disrupting the functioning of society". The Commentaries suggest that the Commission refrain from providing further descriptive or qualifying elements, so as to leave some discretion in practice. However as pointed out by Ireland at the 64th session of the General Assembly - there may be unintended consequences to using the effects of a disaster on "society" as the key test for applicability of the framework, without further elaboration. It is unclear whether the term applies to a State or whether a region within a State would suffice. It is further unclear what the relevant society and/or test is in the context of cross-border emergencies. This will also have implications for the applicability of later draft articles to the affected state. Although we in general agree on need to preserve flexibility in the draft articles, if this issue is not considered more fully, the applicability of the framework may be called into question at the very times when speedy responses are necessary. We would welcome further clarity on this point, either through a revised Commentary or in later draft articles.

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15. We welcome the clarifications provided in the Commentary on draft article 4, but note our continued preference for a "without prejudice" clause in the final text.

16. We appreciate that the commentaries on draft article 5 refer to cooperation not only among States but also with international and non-governmental organisations; and welcome the fact that the particular issues arising in respect of cooperation with such organisations will be dealt with in future provisions.

Draft articles provisionally adopted by the Drafting Committee at ILC62: 17. 1 turn now to the four draft articles provisionally adopted by the Drafting Committee at the Commission's last session, three of which relate to broad principles underpinning the general approach to disaster response.

18. First and in general, we think it would be a worthwhile exercise for the Commission to identify the existing legal bases for the principles invoked, to permit us to more readily distinguish between issues on which the Commission is engaged in codification and those on which it is seeking to progressively develop international law.

19. Further, we consider that a distinction might usefully be made between draft articles 6 (humanitarian principles) and draft articles 7 and 8 (human dignity and human rights, respectively).

20. We take the view that draft article 6, being context-specific, could usefully be included in the draft articles. However it would be important to seek to identify to what extent the principles reflect existing international law. We agree that there is value in including the standard of non-discrimination in delivery of relief in the draft articles. This would also match well with the concrete issues which we hope the draft articles will address, such as requests and consent to assistance; access; identification

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and immunities of relief personnel; activities in relation to preparedness for imminent disaster, risk-mitigation and so on.

21. Ireland wonders whether the principle of neutrality, more familiar to us from the context of IHL, might cause confusion and unnecessary complications. In the context of disaster relief, an obligation of non-discrimination should be sufficient to capture the imperative that disaster relief should not be delivered or withheld from persons or groups on any basis other than needs-assessment. We would also doubt the utility of including a reference to proportionality.

22. Concerning draft articles 7 and 8, we have no difficulty recognising that the principle of human dignity and the human rights which flow from that principle should be the basis on which our responses to disasters are grounded. However, we are of the view that these issues would more appropriately be addressed in a preambular section to the draft articles.

Madam Chair, Responsibility / Consent 23. The final key issue addressed in the Third Report of the Special Rapporteur and associated Commission debate are the linked questions of the primary responsibility of the affected State and of consent.

24. We note that the Special Rapporteur during Commission debates confirmed his intention to clarify the scope and limitations of the exercise by the affected State of its primary responsibility in his next Report. We welcome and look forward to this input. In our view, it is crucial that this element of the draft is robust; and we consider this is an area in which the draft articles should seek to codify rather than develop international law. The differing views of the members of the Commission on responsibility are noted with interest in this regard. Given these differences of view as well as the central importance of the issue - we consider that further discussion on this question within the Commission would be of great value. 441

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25. Ireland is also of the view that the Commission might usefully consider the legal rules applicable where a State lacks either the capacity or the will to exercise its responsibility.

26. We were interested also in the short reference contained in the Commission's Report at paragraph 324 on the question of whether the requirement of consent applies only to assisting States or also to NGOs and other bodies. As an initial view, we lean towards the view that assisting States require consent, whereas NGOs and other bodies must simply comply with the internal laws of the affected State.

27. Ireland notes the Special Rapporteur's view of consent as applying throughout the period of relief activities by external actors, without further elaboration. If the overriding intention of the framework is to focus on the needs of persons affected by disaster, consideration of whether current international law prevents unreasonable or unfounded withdrawal of consent, to the detriment of the affected persons, would be of value. Examination of this matter would of course relate closely to consideration by the Special Rapporteur in his next Report of the scope of the primary responsibility of the affected State.

Madam Chair, 28. Ireland looks forward to further engaging with the Commission, as its work on this important topic progresses.

Thank you.

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International Monetary Fund

Ireland and the IMF

Ireland: Letter of Intent, Memorandum of Economic and Financial Policies, and Technical Memorandum of Understanding

December 3, 2010

The following item is a Letter of Intent of the government of Ireland, which describes the policies that Ireland intends to implement in the context of its request for financial support from the IMF. The document, which is the property of Ireland, is being made available on the IMF website by agreement with the member as a service to users of the IMF website.

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Dublin, December 3, 2010

Mr. Dominique Strauss-Kahn Managing Director International Monetary Fund Washington, DC 20431

Dear Mr. Strauss-Kahn: 1.

Ireland faces an economic crisis without parallel in its recent history. The

problems of low growth, doubts about fiscal sustainability, and a fragile banking sector are now feeding on each other, undermining confidence. To break this vicious circle, we are proposing a strong, wide-ranging, reform programme, backed by a substantial international financing package, to restore confidence and return the economy to a path of sustained growth and job creation.

2.

At the root of the problem is a domestic banking system, which at its peak was

five times the size of the economy, and now is under severe pressure. The Irish owned banks were much larger than the size of the economy. The fragility of the banking sector is undermining Ireland’s hard-earned economic credibility and adding a severe burden to acute public finance challenges. Decisive actions to restore the strength of the financial sector and re-establish fiscal credibility are needed now.

3.

The Irish authorities have already undertaken major steps to address these

challenges. For the financial sector, these include measures to facilitate funding of banks, separate good assets from bad, asset disposals, and bank recapitalisation. On the fiscal side, we have pursued a large consolidation programme since 2008 and have announced a National Recovery Plan that accelerates the process of putting public finances on a sound footing.

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4.

But we recognise that more needs to be done. A fundamental downsizing and

reorganisation of our banking system is essential. We are immediately undertaking several bold measures to achieve a robust, smaller, and better capitalised banking system that will effectively serve the needs of the economy. Restoring the banks to viability will also help insulate public finances from further pressures. We are mindful that the transition to a healthy banking sector will need to be actively managed to avoid fire sales of assets and reduce market uncertainty. We are, therefore, expeditiously raising capital standards, stepping up efforts that will ensure that banks losses are promptly recognised, and creating a mechanism to inject needed capital into the banks. We are also strengthening the banking resolution framework to promote financial stability.

5.

In addition, we are also pressing ahead with our commitment to achieving a

sustainable budget position. The National Recovery Plan lays out our strategy for staying the course of needed reform in a way that is socially fair and protects the most vulnerable. Recognising that Ireland already has put in place a business-friendly environment, our Plan also lays out a range of structural reforms that will be implemented to underpin economic stability, and enhance growth and job creation.

6.

We are turning to our international partners for support as we implement these

far-reaching objectives. Our estimate is that the financing need would be up to €85 billion until the end of 2013. We therefore request that the Fund support our policy programme through an arrangement under the Extended Fund Facility which can be drawn over a period of 36 months in the amount of SDR 19.4658 billion (€22.5 billion). This arrangement, along with support of €45 billion from the European Financial Stability Mechanism/European Financial Stability Facility including bilateral loans from the United Kingdom, Sweden and Denmark, and the judicious use of our own resources (€17.5 billion), will help ensure financial stability as we restore market confidence and return to durable growth.

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7.

The attached Memorandum of Economic and Financial Policies outlines the

economic and financial policies that the Irish authorities will implement during the remainder of 2010 and the period 2011–13. We are confident that the policies set forth in this memorandum are adequate to achieve the objectives under the programme. We stand ready to take any corrective actions that may become appropriate for this purpose as circumstances change. As is standard under Fundsupported programmes, we will consult with the Fund on the adoption of such actions in advance of necessary revision of policies contained in this letter.

8.

This letter is being copied to Messrs. Juncker, Reynders, Rehn, and Trichet.

Sincerely, /s/

/s/

_________________

_________________

Brian Lenihan

Patrick Honohan

Minister for Finance

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ATTACHMENT I. MEMORANDUM OF ECONOMIC AND FINANCIAL POLICIES

1.

We have concluded that Ireland expeditiously requires a strong programme to

restore domestic and external confidence and, thus, snap the pernicious feedback loops between the growth, fiscal, and financial crises.

2.

We propose that such a programme comprise of four key elements:  A fundamental downsizing and reorganisation of the banking sector— complemented by the availability of capital to underpin solvency—is required to restore confidence. Addressing market perceptions of weak bank capitalisation, overhauling the banks’ funding structure, and immediately beginning a process of downsizing the banking system will be required.  An ambitious fiscal consolidation building, on the progress already made.  Renewing growth through a multi-pronged effort.  A substantial external financial assistance will support the achievement of our policy objectives.

Recent Economic Developments and Outlook 3.

After two years of sharp declines in output, the Irish economy is expected to

broadly stabilise this year before expanding during 2011–14. As domestic imbalances from the boom years are being repaired, the recovery will, at least initially, be primarily export-driven. We project that GDP growth will increase over time as export performance filters through to investment and consumption, consumer confidence returns, and labour market conditions improve. We recognise that the risks in the short term are tilted to the downside, and, in particular, the headwinds from fiscal consolidation on domestic demand could be larger than anticipated. Over the longer haul also, continued private and public sector balance sheet adjustments, coupled with a weak banking sector, could delay the recovery.

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4.

Inflation is expected to remain low, reflecting the large output gap and modest

external price pressures. Although the inflation rate will likely increase over time, it is expected to remain lower than in trading partner countries. This will have the benefit of improving competitiveness but the low rates of inflation would unavoidably keep real debt burdens high and dampen domestic demand.

5.

The current account balance is projected to continue to improve gradually over

the medium term, reflecting export expansion and the contraction in domestic demand. However, profit repatriation from multinationals and large interest payments to foreign holders of Irish debt are expected to limit the improvement over the programme period.

Restoring Financial Sector Viability 6.

With its large size relative to the economy, its heavy reliance on wholesale

funding, and its large exposures to the real estate sector, much of the domestic Irish banking system is in a stressed state. The Government has intervened heavily to safeguard financial stability. In late 2009, we established the National Asset Management Agency (NAMA) to take over certain vulnerable commercial and property development assets of banks. In addition, major efforts have been made to boost banks’ capital.

7.

Although the Government has made strong efforts to contain the fallout from the

sector’s vulnerabilities, a continued lack of market access and the loss of deposits have created significant funding pressures, alleviated largely by an increase in recourse to Eurosystem financing facilities and Emergency Liquidity Assistance by the Central Bank. Moreover, capital injections in the banks have placed a heavy burden on public finances.

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8.

Our proposed programme will take decisive steps to ensure the viability and

health of the financial system. We intend to lay the foundations of this process very quickly, if we are to reassure the markets that banks will return to viability and will have the ability to operate without further state support in a reasonable period of time.

9.

The key component of our efforts is an overhaul of the financial sector with the

objective of substantial downsizing, isolating the non-viable parts of the system and returning the sector to healthy functionality. It will be important to support this process through capital injections into viable financial institutions. In addition, structural measures—a special resolution scheme for deposit-taking institutions and a further strengthening of the supervisory system—will impart greater stability to the system. It is our goal that the leaner and more robust system that emerges from these efforts will not be dependent on state support, will have a more stable funding base, and will provide the credit required to foster growth.

10.

The plan to overhaul the banking system has several elements. First, banks will

be required to run down non-core assets. Second, land and development property loans that have not yet been transferred to NAMA will also be transferred. Third, banks will be required to promptly and fully provide for all non-performing assets as needed. Fourth, the banks will be required to securitise and/or sell asset portfolios or divisions with credit enhancement if needed, once the market normalises. And finally, swift and decisive action will be taken to resolve the position of Anglo Irish Bank (Anglo) and Irish Nationwide Building Society (INBS) in a way that protects depositors and strengthens the banking system. To this end, by end-January 2011, we will submit to the European Commission a revised proposal developed in collaboration with IMF to resolve Anglo and INBS. Each of these initiatives will require technical or legislative measures, most of which we believe can be expeditiously instituted.

11.

To achieve the above goals, banks will be required to submit deleveraging

plans to the national authorities by end-February 2011. The plans will be prepared on the basis of clear periodic targets defined by the Central Bank, taking into 449

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consideration the Prudential Liquidity Assessment Review (PLAR) to be conducted in consultation with the EC, ECB and IMF. By end-March 2011, the Central Bank with assistance from an internationally recognised consulting firm, will complete the assessment of the banks’ restructuring plans (structural benchmark). The deleveraging plans will be a component of the restructuring plans to be submitted to the European Commission for approval under EU competition rules.

12.

This reorganisation and downsizing of the banks will be bolstered by raising

capital standards. While we expect that, in a restructured system, banks will be able to raise capital in the market, we recognise that the higher standards may imply that, in the short run, public provision of capital will be needed for banks that are deemed to be viable. To support this process—and to render it credible—we will undertake a review of the capital needs of banks on the basis of a diagnostic of current asset valuations and stringent stress tests (PCAR 2011).



As an immediate step, to enhance confidence in the solvency of the banking system, the Central Bank will direct Allied Irish Bank (AIB), Bank of Ireland (BoI), and EBS to achieve a capital ratio of 12 percent core tier 1 by endFebruary 2011 (structural benchmark) and Irish Life & Permanent by end-May 2011 (structural benchmark). This would imply an injection of fresh equity capital of €7bn into these four banks and provide an additional buffer for a potential increase in expected losses. This action, along with early measures to support deleveraging and taking account of haircuts on the additional loans to be transferred to NAMA(see ¶10) would result in an injection of €10bn of fresh capital into the banking system, above and beyond the already committed capital injection of €6.6bn for AIB previously announced by the Irish authorities.



By end-December 2010, in consultation with EC, ECB, and IMF staff, we will define the criteria to run stringent stress test scenarios (structural benchmark). We will also agree with EC, ECB, and IMF staff, by end-December 2010, on draft terms of reference for the due diligence of bank assets by internationally recognised consulting firms (structural benchmark). We intend to complete the diagnostic evaluation of banks’ assets by end-March 2011 and the stress tests

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(PCAR 2011) by end-March 2011 (both structural benchmarks), and transparently communicate our findings. 

Based on these assessments, starting end-April 2011, banks will be required to maintain a core tier 1 capital ratio of 10.5 percent. Banks will report their capital adequacy ratios to the Central Bank on a quarterly basis. The Central Bank’s assessment of banks’ capital adequacy ratio will be made public at least semiannually.

13.

The question of whether burden should be imposed on bank sub debt is

influenced by two factors: the quantum of capital the State has committed to support the institution and the perceived viability of the bank in the absence of receiving such capital. Forced burden sharing through legislation is possible and legislation is currently being prepared in this regard. Alternatively, in certain cases, a very deeply discounted liquidity management exercise might also be an appropriate option.

14.

In addition, we will finalise proposals to strengthen the legal framework for

dealing with distressed deposit-taking institutions in line with recent EU developments (including EU competition rules) and international sound practices. Such a special resolution regime will broaden the available resolution tools with the aim of promoting financial stability and protecting depositors. In particular, the draft legislation will (i) provide for the appointment of a special manager where, in the opinion of the Central Bank, an institution's financial condition has severely deteriorated; (ii) grant powers to the Central Bank for the transfer of assets and liabilities to other institutions; and (iii) create a framework for the establishment of bridge banks. We seek to submit draft legislation including the above mentioned elements to Dáil Éireann by end-February 2011 (structural benchmark).

15.

Moreover, we will continue the efforts to strengthen banking supervision by

ensuring higher staffing levels and budget allocations in line with OECD best practices. We will enhance the risk assessment framework and raise the corporate

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IRISH INTERNATIONAL LAW YEARBOOK 2009-10

governance standards. By end-September 2011, a report by an independent assessor on our compliance with Basel core principles for effective banking supervision will be made public.

16.

We will also reform the personal insolvency regime for financially responsible

individuals (including sole traders), which will balance the interests of both creditors and debtors. The objectives will be to lower the cost and increase the speed and efficiency of proceedings, while at the same time mitigating moral hazard and maintaining credit discipline. The new legal framework will include a non-judicial debt settlement and enforcement mechanism as an alternative to court-supervised proceedings.

17.

We will continue to provide means-tested financial assistance to limit the

economic and social fallout of the crisis. The existing mortgage interest supplement scheme is crucial for providing temporary assistance to distressed mortgage holders. The scheme’s administration will be centralised to ensure a more consistent application focusing on households that are most in need, and further modification will be introduced in the 2011 Social Welfare Act.

18.

Our strategy for the credit union sector is based on three components. First, we

will complete a full assessment of their loan portfolios by end-April 2011 (structural benchmark). Second, by end-April 2011, we will have ready a comprehensive strategy to enhance the viability of the sector. And third, by end-December 2011 we will submit legislation to Dáil Éireann to assist the credit unions with a strengthened regulatory framework including effective governance and stabilisation requirements.

19.

We will continue efforts to ensure the flow of credit to viable businesses,

building on actions already taken under previous recapitalisations and NAMA legislation. Allied Irish Banks and Bank of Ireland have agreed, in connection with recapitalisation last March, to make available not less than €3 billion each for targeted lending for new or increased credit facilities to small and medium-sized enterprises in

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both 2010 and 2011 as well as funds for seed and venture capital and for Environmental lending. The lending policies and decisions of both banks are subject to review by the Credit Review Office, which enables businesses who have had credit refused or withdrawn, to apply for an independent review of the bank’s decision.

20.

NAMA is subject to an extensive range of statutory Governance and

Accountability arrangements and these will be fully adhered to. Members of the NAMA Board must have relevant experience and expertise, and the work of the Board is supported by audit and other sub-committees. NAMA operations are also subject to statutory codes of practice. NAMA is required to prepare various reports, including quarterly reports of its activities, and these are subject to scrutiny by Oireachtas committees. The Comptroller and Auditor General audit the annual accounts and prepare reports on NAMA for review by the Public Accounts committee.

Safeguarding Public Finances 21.

To continue with the programme of fiscal consolidation, a comprehensive

National Recovery Plan 2011–14 was approved by the Government and published on 24 November 2010. This Plan forms the basis for the 2011 budget consistent with fiscal consolidation measures amounting to €15 billion, a 9 percent of GDP budgetary correction over the period 2011–14. Having stabilised the deficit, albeit at a high level, the steps announced in the Plan will place the budget deficit-to-GDP ratio on a firm downward path. While the debt-to-GDP ratio will remain at high levels for the next few years, it is projected to decline thereafter, underpinning debt sustainability. We also propose to keep under review progress towards meeting the Stability and Growth Pact targets.

22.

Budget 2011 which will include adjustment measures of €6 billion, will be

submitted to the Dáil Éireann for passage on 7 December (prior action). As set out in the National Recovery Plan, most of this adjustment will come from the expenditure side. The capital budget will be reduced, partly through greater value for money in our infrastructure procurements. On current expenditures, we are pursuing public 453

IRISH INTERNATIONAL LAW YEARBOOK 2009-10

service numbers reductions through natural attrition and voluntary schemes, adjustments in public service pensions, and further savings on social transfers (from reductions in working age payments, reductions in universal child benefit payments and other reforms). Protecting the socially vulnerable at a time of difficult economic adjustment remains a central policy goal. Current savings will also be realised from streamlining government programmes and through administrative efficiencies. Should these savings or the expected numbers reductions not materialise, we reserve the option to take further measures.

23.

An income tax-led revenue package—sized at over €2 billion in a full year—

will supplement the above expenditure measures in 2011. Over the past decade, the proportion of citizens exempt from income tax has risen to 45 percent and tax credits have doubled, resulting in a comparatively low burden of tax on ordinary incomes. This is no longer sustainable. Accordingly, we are widening the tax base, by lowering income tax bands and credits by 10 percent, and by reducing various pension-related tax reliefs. We are also taking action on other tax expenditures, and distortions arising from the existence of multiple levies.

24.

To secure our fiscal targets, a number of fiscal measures have been identified

for 2012–14. We will continue to rely on expenditure savings (€6.1 billion), led by current spending (€4.9 billion), as outlined in the National Recovery Plan. We are targeting further reductions in public sector numbers, social benefits and programme spending, and have anchored the prospective savings by publishing multi-year expenditure ceilings by Vote Group through 2014. We are also planning to move towards full cost-recovery in the provision of water services and ensuring a greater student contribution towards tertiary education, while ensuring that lower-income groups remain supported. In addition, we will accelerate the process of placing the pension systems on a path consistent with long-term sustainability of public finances. On the tax side, we will build on the base-broadening measures outlined above and establish a sound basis for sub-national finances through a new residential-property based site value tax. The Finance Bill 2012 will contain necessary provisions to bring into effect the already signalled VAT increases in 2013 and 2014.

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25.

We are preparing institutional reform of the budget system taking into account

anticipated reforms of economic governance at the EU level. A reformed Budget Formation Process will be put in place. Furthermore, we will introduce a Fiscal Responsibility Law which will include provision for a medium-term expenditure framework with binding multi-annual ceilings on expenditure in each area by endJuly 2011 (structural benchmark). A Budget Advisory Council, to provide an independent assessment of the Government’s budgetary position and forecasts will also be introduced by end-June 2011 (structural benchmark). These important reforms will enhance fiscal credibility and anchor long-term debt sustainability.

Raising the Growth Potential 26.

We recognise the need to restore strong sustainable growth. The structural

changes to the financial and fiscal sectors, described above, are critical for improving the prospects of economic recovery and raise the medium-term growth potential. Although, as is widely recognised, Ireland is a global leader in providing a businessfriendly environment, the National Recovery Plan includes a strategy to remove remaining structural impediments to competitiveness and employment creation. It also details appropriate sectoral policies to encourage exports and a recovery of domestic demand, which will also support growth and promote jobs.

27.

Specifically, we will continue to press ahead with other structural reform as set

out in the Memorandum of Understanding on specific economic policy conditionality: 

We will promote service sector growth through vigorous action to remove remaining restrictions on trade and competition, and will propose amendments to legislation to enable the imposition of financial and other sanctions in civil law cases relating to competition.



Building on the forthcoming report of the Review Group on State Assets & Liabilities the government will undertake an independent assessment of the electricity and gas sectors with a view to enhancing their efficiency. State authorities will consult with the Commission Services on the results of this assessment with a view to setting appropriate targets for the possible privatisation of state-owned assets. 455

IRISH INTERNATIONAL LAW YEARBOOK 2009-10



To reduce long-term unemployment and to facilitate re-adjustment in the labour market, we will reform the benefits system and legislate to reform the national minimum wage. Specifically, changes will be introduced to create greater incentives to take up employment.

Programme Financing 28.

Ireland is facing large and medium-term balance of payments needs that arise

from (i) substantial pressures on the capital account that need to be relieved, and (ii) the need to build-up reserves to improve banks’ ability to meet their large external debt rollover needs. The programme’s success is dependent on substantive external financial assistance. This external financing will serve as a bridge during the implementation of the critical reforms to fundamentally restructure the banking system and restore fiscal sustainability. It is our view that, given Ireland’s mediumterm structural adjustment needs, an arrangement under the Extended Fund Facility (EFF) would be appropriate. Such an arrangement would also have the added benefit of a more realistic repayment schedule for Ireland.

29.

Notwithstanding the large fiscal adjustment, we estimate the financing need to

be up to €85 billion until the end of 2013. This includes a contingency element for bank recapitalisation. An amount of €17.5 billion will be covered by an Irish contribution through the Treasury cash buffer and investments of the National Pension Reserve Fund. We expect commitments from the IMF under the Extended Arrangement to amount to €22.5 billion and EU financial support from the European Financial Stability Mechanism/European Financial Stability Facility and bilateral arrangements to amount to €45 billion. Ireland will draw on these resources in parallel throughout the programme period. While the envelope of resources to be provided to Ireland is a source of reassurance to the authorities and to financial markets, we plan to draw pari passu on IMF and EU financial support on an as needed basis. Moreover, if market access is restored on a sustainable basis, we would anticipate paying down the drawings made on an advanced schedule.

30. 456

We are confident that the implementation of the fiscal and banking sector

DOCUMENTS

reforms will help the economy recover.

Programme Monitoring 31.

Progress in the implementation of the policies under the programme will be

monitored through quarterly and continuous performance criteria, indicative targets, structural benchmarks, and quarterly programme reviews and compliance with requirements under the Excessive Deficit Procedure (EDP). The attached Technical Memorandum of Understanding (TMU) defines the quantitative performance criteria and indicative targets under the programme. The Government’s targets for the exchequer balance (central government cash balance) excluding interest payments will be monitored through quarterly performance criteria and net central government debt will be an indicative target (Table 1). As is standard in IMF arrangements, there will be a continuous performance criterion on the non-accumulation of external payment arrears. Progress on implementing structural reforms will be monitored through structural benchmarks (Table 2). A joint EC-ECB Memorandum of Understanding specifies, notably, the structural policies recommended in the MEFP, and sets a precise time frame for their implementation.

32.

As is standard in all Fund arrangements, a safeguards assessment of the Central

Bank of Ireland will be completed by the first review of the arrangement. In this regard, the Central Bank will receive a safeguards mission from the Fund and provide the information required to complete the assessment by the first review. As a related matter, and given that financing from the IMF will be used to provide direct budget support, a framework agreement will be established between the government and the Central Bank of Ireland on their respective responsibilities for servicing financial obligations to the IMF. As part of these arrangements, Fund disbursements will be deposited into the government’s account at the Central Bank.

33.

We authorise the IMF and the European Commission to publish the Letter of

Intent and its attachments, and the related staff report.

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Table 1. Ireland: Quantitative Performance Criteria and Indicative Targets under the Economic Programme for 2010–11 December 31, 2010

March 31, 2011

June 30, 2011

September 30, 2011

December 31, 2011

Indicative Target

Indicative Target

(In billions of Euros) Performance Criterion 1. Cumulative exchequer primary balance

Performance Criterion

Indicative Target I

-15.3

-7.8

-11

-14.3

-14.6

0

0

0

0

0

1

2. Ceiling on the accumulation of new external payments arrears on external debt contracted or guaranteed by the central government2

3. Ceiling on the stock

Indicative Target

Indicative Target

83.1

91.6

Indicative Target

Indicative Target

96.5

of central government net de

1

2

Measured by the exchequer balance excluding interest payments. Cumulative from the start of the relevant calendar year. Applies on a continuous basis.

100

Indicative Target 102.2

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Table 2. Prior Action and Structural Benchmarks Under the Economic Programme for 2010–11 Measure Submit the 2011 Budget to Dáil Éireann (MEFP, ¶22).

7 December 2011

Prior Action

Define the criteria to run stringent stress tests scenarios (MEFP ¶12).

End-December 2011

Structural Benchmark

Agree on terms of reference for the due diligence of bank assets by internationally recognised consulting firms (MEFP, ¶12).

End-December 2011

Structural Benchmark

The Central Bank will direct the recapitalisation of the principal banks (AIB, BoI and EBS) to achieve a capital ratio of 12 percent core tier 1 (MEFP, ¶12)

End-February 2011

Structural Benchmark

Submit to Dáil Éireann the draft legislation on a special resolution regime (MEFP, ¶14).

End-February 2011

Structural Benchmark

The Central Bank to complete the assessment of the banks’ restructuring plans (MEFP, ¶11).

End-March 2011

Structural Benchmark

Complete the diagnostic evaluation of banks’ assets (MEFP, ¶12).

End-March 2011

Structural Benchmark

Complete stress tests (PCAR 2011)

End-March 2011

Structural Benchmark

Complete a full assessment of credit unions’ loan portfolios (MEFP, ¶18).

End-April 2011

Structural Benchmark

The Central Bank will direct the recapitalization of ILP to ratio of 12 percent core tier 1 (MEFP, ¶12)

End-May 2011

Structural Benchmark

Establish a Budget Advisory Council.

End-June 2011

Structural Benchmark

End-July 2011

Structural Benchmark

(MEFP, ¶12).

(MEFP, ¶25). Introduce a medium-term expenditure framework with binding multi-annual ceilings on expenditure in each area (MEFP, ¶25).

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ATTACHMENT II. TECHNICAL MEMORANDUM OF UNDERSTANDING (TMU)

December 1, 2010 1.

This Technical Memorandum of Understanding (TMU) sets out the

understandings regarding the definitions of the indicators subject to performance criteria and indicative targets under the arrangement supported by the Extended Fund Facility (EFF). These performance criteria and indicative targets are reported in Table 1 attached to the Memorandum of Economic and Financial Policies (MEFP). This TMU also describes the methods to be used in assessing the programme performance and the information requirements to ensure adequate monitoring of the targets.

2.

For programme purposes, all foreign currency-related assets, liabilities, and

flows will be evaluated at “programme exchange rates”, with the exception of the items affecting the government fiscal balances, which will be measured at current exchange rates. The programme exchange rates are those that prevailed on November 24, as shown on the European Central bank webpage, in particular, €1 = 1.3339 U.S. dollar and €1 = 0.86547 SDR.

I. QUANTITATIVE PERFORMANCE CRITERIA AND INDICATIVE TARGETS A. Floor on the Exchequer Primary Balance 3.

The exchequer balance is the traditional domestic budgetary aggregate which

measures the net surplus or net deficit position of the Exchequer Account. The Exchequer Account is the single bank account of the Central Fund and is held at the Central Bank of Ireland. The annual audited accounts of the Exchequer Account produced by the Department of Finance are known as the Finance Accounts. An unaudited summary known as the Exchequer Statement is produced at the end of each month. Under the Irish Constitution, all Government receipts are paid in to the Central

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Fund and all Government expenditure is funded from it, unless provided otherwise by law.1 The Exchequer balance is the difference between total receipts into, and total expenditure out of, the Exchequer Account. It measures the sum of the current and capital balances. The current balance is defined as current receipts (tax and non-tax revenue) minus current expenditure (voted expenditure and non-vote expenditure charged directly on the Central Fund, including the Sinking Fund). The capital balance is defined as capital receipts (Sinking Fund and other capital receipts) minus capital expenditure (voted and non-voted expenditure). The Sinking Fund provision is a transfer from the current account to the capital account to reduce national debt and has no effect on the overall exchequer balance.

4.

The performance criteria are set on the exchequer primary balance (the

exchequer balance excluding net debt interest payments in the service of the National Debt).2

5.

For the purposes of the programme, the floor on the exchequer primary balance

(quantitative performance criterion) will be adjusted downward by payments for bank restructuring carried out under the programme’s banking sector support and restructuring strategy. Such payments may include, inter alia, loans to banks, investments in their equity (requited recapitalisation), unrequited recapitalisation, and purchases of troubled assets, which are carried out in line with programme objectives. Any other financial operation by Government to support banks, including the issuance of guarantees or provision of liquidity, will be reported to IMF staff.

1

Receipts of the Central Fund comprise Exchequer tax revenues, non-tax revenues,receipts from the European Union and other capital receipts. Charges on the Central Fund include the expenditure of Government departments and offices, payments related to the servicing of the national debt, payments to the European Union Budget, the salaries, pensions and allowances of the President, judiciary, and Comptroller & Auditor General and the running costs of the Houses of the Oireachtas (Parliament). Extra-budgetary funds (including the National Pensions Reserve Fund), the Social Insurance Fund, semi-state bodies and local governments are not part of the Exchequer system. 2

Net debt interest payments are as per the end-month Exchequer Statements.

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IRISH YEARBOOK OF INTERNATIONAL LAW 2009-2010

6.

The floor on the exchequer primary balance (quantitative performance criterion)

in each year will be measured cumulatively from the start of that calendar year. Cumulative Exchequer primary balance (in billions of Euros) From January 1, 2010: End-December 2010 (performance criterion)

-15.3

From January 1, 2011: End-March 2011 (performance criterion)

-7.8

End-June 2011 (indicative target)

-11.0

End-September 2011 (indicative target)

-14.3

End-December 2011 (indicative target)

-14.6

7.

The performance criterion on the exchequer primary balance (floor) for end-

March 2011 and thereafter, will be adjusted upward (downward) for the full amount of any over-performance (under-performance) in Exchequer tax revenues, pay-related social insurance contributions (PRSI), health levy and national training fund contributions against the current projection which is listed below:3

Cumulative Exchequer tax revenue & other receipts (as outlined in 7. above) (in billions of Euros) End-March 2011 (projection)

9.7

End-June 2011 (projection)

19.4

End-September 2011 (projection)

29.7

End-December 2011 (projection)

41.9

3

Exchequer tax receipts are comprised of income tax, value added tax (VAT), corporation tax, excise duties,

stamp duties, capital gains tax, capital acquisitions tax and customs duties.

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8.

Any policy changes, including in tax administration and enforcement, which

impact the above revenue projection will lead to a reassessment of the adjustor in the context of program reviews.

B. Ceiling on the Stock of Central Government Net Debt 9.

The stock of central government net debt, for the purposes of the programme, is

defined as the National Debt, less liquid assets of the National Pensions Reserve Fund (NPRF). The National Debt is defined as the total outstanding amount of principal borrowed by central government and not repaid to date, less liquid assets available for redemption of those liabilities at the same date. These liquid assets comprise the Exchequer cash balances (including cash in the Capital Services Redemption Account), Exchequer deposits with commercial banks and other institutions, investments in investment grade sovereign bills. For the purposes of the programme, NPRF liquid assets include the asset classes listed above, and also all marketable securities such as equities, government bonds and other listed investments. NPRF shares in domestic Irish banks are excluded from the definition of liquid assets.

10.

For the purposes of the programme, the ceiling on the central government net

debt (indicative target) will be adjusted upward by debt arising from payments for bank restructuring carried out under the programme’s banking sector support and restructuring strategy. These payments may include, inter alia, loans to banks, investments in their equity (requited recapitalisation); unrequited recapitalisation; and purchases of troubled assets, which are carried out in line with programme objectives. The programme exchange rates will apply to all non-euro denominated debt.

11.

The ceiling on the outstanding stock of central government net debt will be

adjusted upward (downward) by the amount of any final upward (downward) revision to the stock of end-October 2010 central government net debt.

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IRISH YEARBOOK OF INTERNATIONAL LAW 2009-2010

Central government net debt (in billions of Euros)

Outstanding stock: End-October 2010 (provisional)

78.6

End-December 2010 (indicative target)

83.1

End-March 2011 (indicative target)

91.6

End-June 2011 (indicative target)

96.5

End-September 2011 (indicative target)

100.0

End-December 2011 (indicative target)

102.2

C. Non-accumulation of External Payments Arrears by Central Government 12.

The central government will accumulate no external payments arrears during

the programme period. For the purposes of this performance criterion, an external payment arrear will be defined as a payment by the central government on its contracted or guaranteed external debt that has not been made within five business days after falling due. The performance criterion will apply on a continuous basis.

13.

The stock of external payments arrears of the central government will be

calculated based on the schedule of external payments obligations reported by the National Treasury Management Agency. This performance criterion does not cover arrears with regard to trade credits.

II. REPORTING REQUIREMENTS 14.

Performance criteria under the programme will be monitored using data

supplied to the IMF. The Irish authorities will transmit promptly any data revisions in a timely manner.

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

The Department of Finance will report the Exchequer balance to the IMF staff, with a lag of no more than seven days after the test date.



The National Treasury Management Agency will provide provisional figures on the outstanding stock of net government debt with a lag of no more than seven days after the test date. The revised figures will be provided within three months of the test date.



The National Treasury Management Agency will provide the final stock of the central government system external payments arrears to the IMF staff, with a lag of not more than seven days after the arrears arise in accordance with the definition of external payments arrears as set forth in paragraph 12 of this memorandum.

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IRISH YEARBOOK OF INTERNATIONAL LAW 2009-2010

Dublin, 3 December, 2010 Mr Jean-Claude Juncker President Eurogroup

Mr Didier Reynders European Union Presidency

Mr Olli Rehn Commissioner European Commission

Mr Jean-Claude Trichet President European Central Bank

Dear Messrs. Juncker, Reynders, Rehn and Trichet, 1.

Ireland faces an economic crisis without parallel in its recent history. The

problems of low growth, doubts about fiscal sustainability, and a fragile banking sector are now feeding on each other, undermining confidence. To break this vicious circle, we are proposing a strong, wide-ranging, reform programme, backed by a substantial international financing package, to restore confidence and return the economy to a path of sustained growth and job creation.

2.

At the root of the problem is a domestic banking system, which at its peak was

five times the size of the economy, and now is under severe pressure. The Irish owned

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banks were much larger than the size of the economy. The fragility of the banking sector is undermining Ireland’s hard-earned economic credibility and adding a severe burden to acute public finance challenges. Decisive actions to restore the strength of the financial sector and re-establish fiscal credibility are needed now.

3.

The Irish authorities have already undertaken major steps to address these

challenges. For the financial sector, these include measures to facilitate funding of banks, separate good assets from bad, asset disposals, and bank recapitalisation. On the fiscal side, we have pursued a large consolidation programme since 2008 and have announced a National Recovery Plan that accelerates the process of putting public finances on a sound footing.

4.

But we recognize that more needs to be done. A fundamental downsizing and

reorganisation of our banking system is essential. We are immediately undertaking several bold measures to achieve a robust, smaller, and better capitalised banking system that will effectively serve the needs of the economy. Restoring the banks to viability will also help insulate public finances from further pressures. We are mindful that the transition to a healthy banking sector will need to be actively managed to avoid fire sales of assets and reduce market uncertainty. We are, therefore, expeditiously raising capital standards, stepping up efforts that will ensure that banks losses are promptly recognised, and creating a mechanism to inject needed capital into the banks.

5.

In addition, we are also pressing ahead with our commitment to achieving a

sustainable budget position. The National Recovery Plan lays out our strategy for staying the course of needed reform in a way that is socially fair and protects the most vulnerable. Recognising that Ireland already has put in place a business-friendly environment, our Plan also lays out a range of structural reforms that will be implemented to underpin economic stability, and enhance growth and job creation.

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IRISH YEARBOOK OF INTERNATIONAL LAW 2009-2010

6.

We turn to our European and international partners for support as we implement

these far-reaching objectives. We therefore request support from the European Financial Stability Mechanism/European Financial Stability Facility which can be drawn down over a period of 36 months as well as bilateral loans from the United Kingdom, Sweden and Denmark; the overall total of this support will be €45 billion. We also send a parallel request for financial assistance to the IMF for a total amount of €22.5 billion. The judicious use of our own existing financial resources (€17.5 billion) will also help ensure financial stability as we restore market confidence and return to durable growth.

7.

The attached Memorandum of Economic and Financial Policies outlines the

economic and financial policies that the Irish Government and the Central Bank will implement during the remainder of 2010 and the period 2011–13 to strengthen Ireland’s banking sector and fiscal position. An annexed Memorandum of Understanding (MoU) specifies detailed economic policy measures that will serve as benchmarks for assessing policy performance in the context of the quarterly reviews under the financial assistance programmme. We are confident that the policies set forth in these memoranda are adequate to achieve the objectives under the programme. We stand ready to take any corrective actions that may become appropriate for this purpose as circumstances change.

8.

The implementation of our programme will be monitored through quantitative

performance criteria and structural benchmarks as described in the attached MEFP, and through the detailed and specific economic policy criteria in the MoU. There will be quarterly reviews of the arrangement, in coordination with the IMF. The reviews will assess progress in implementing the programme and reach understandings on any additional measures that may be needed to achieve its objectives.

9.

The programme is designed such that it best reflects the interest of Ireland and

the international community. We have explored options for the provision of collateral for support under the EFSF and found legal and economic constraints that would risk

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undermining the goals of the programme. The conditionality under the programme provides substantial comfort that the programme will be delivered and that the support will be repaid. We will ensure that the financial assistance in the context of the EFSM and EFSF and bilateral lenders to be provided to Ireland will be subject to the loan terms and conditions that will protect the EU's and the euro-area and EU Member States' financial and legal interests in a non discriminatory way as compared to the assistance provided by the EU to other Member States under its Balance of Payments facility and for the EFSF adapted to take into account its structure and credit enhancement mechanism.

10.

The Irish authorities believe that the policies set forth in the attached

memorandum are adequate to achieve the objectives of our economic programme, but stand ready to take any further measures that may become necessary for this purpose. The authorities will stay in close contact and consult with the European Commission, the ECB and the IMF on the adoption of these measures and in advance of revisions to the policies contained in the MEFP and the MoU. All available information requested by the European Commission, the ECB and the IMF to assess implementation of the programme will be provided.

We are copying this letter to Mr. Strauss-Kahn, Managing Director of the IMF.

Sincerely,

/s/

/s/

_________________ Brian Lenihan Minister for Finance

_________________ Patrick Honohan Governor of the Central Bank of Ireland

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ATTACHMENT II Ireland Memorandum of Understanding on

SPECIFIC ECONOMIC POLICY CONDITIONALITY November 28, 2010

The quarterly disbursement of financial assistance from the European Financial Stabilisation Mechanism (EFSM), the European Financial Stability Facility (EFSF) and bilateral loans by UK, Sweden and Denmark will be subject to quarterly reviews of conditionality for the duration of the programme. Release of the instalments will be based on observance of quantitative performance criteria, respect for EU Council Decisions and Recommendations in the context of the excessive deficit procedure, and a positive evaluation of progress made with respect to policy criteria in the Memorandum of Economic and Financial Policies (MEFP) and in this Memorandum of Understanding on specific economic policy conditionality (MoU), which specifies the detailed criteria that will be assessed for the successive reviews up to the end of 2013. If targets are (expected to be) missed, additional action will be taken.

The authorities commit to consult with the European Commission, the ECB and the IMF on the adoption of policies that are not consistent with this Memorandum. They will also provide the European Commission, the ECB and the IMF with all information requested that is available to monitor progress during programme implementation and to track the economic and financial situation. Prior to the release of the instalments, the authorities shall provide a compliance report on the fulfilment of the conditionality.

The release of the first instalments will be conditional on the successful adoption of Budget 2011 as described in the MEFP and this MoU. 470

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1. Actions for the first review (actions to be completed by end Q1-2011) i. Fiscal consolidation Government submits the draft budget for 2011 for Dáil approval. The budget provides information and prudent projections on the entire general government sector and targets a further reduction of the general government deficit in line with the MEFP. It includes a detailed presentation of fiscal consolidation adjustments for 2011 of €6 billion.

The budget includes the following measures (in exceptional circumstances, measures yielding comparable savings could be considered in close consultation with European Commission, IMF and ECB staffs); - Revenue measures to raise at least €1,400m in 2011 and an extra €620m in a full year will be introduced to the Houses of the Oireachtas, including: 

A lowering of personal income tax bands and credits or equivalent measures to yield €945m in 2011 and an extra €300m in a full year.



A reduction in pension tax relief and pension related deductions to yield €155m in 2011, and an extra €105m in a full year.



A reduction in general tax expenditures to yield €220m in 2011, and an extra €185m in a full year.



Excise and miscellaneous tax measures to raise €80m in 2011 and a further €30m in a full year will be introduced.



The government will outline methods to raise at least €700m in one-off and other measures in 2011.

- A reduction of current expenditure in 2011 of at least €2,090m will be implemented including; 

Social Protection expenditure reductions.



Reduction of public service employment numbers in 2011.



A reduction of existing public service pensions on a progressive basis averaging over 4% will be introduced.



Other expenditure savings of €1,030m including savings on goods and services. 471

IRISH YEARBOOK OF INTERNATIONAL LAW 2009-2010

- A reduction of at least €1,800m in public capital expenditure against existing plans for 2011 will be introduced.

Government will rigorously implement the budget for 2011 and the fiscal consolidation measures announced afterwards, consistent with the requirements of the excessive deficit procedure. Progress is assessed against the (cumulative) quarterly primary deficit ceilings in the Memorandum of Economic and Financial Polices (MEFP) including the Technical Memorandum of Understanding (TMU).

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms Recapitalisation measures - The measures proposed for the recapitalisation of Irish banks in the government statement of 30 September 2010 will be implemented, taking into account any changes in strategy for the future of the banking sector agreed under the programme. - Further deleveraging of the banks will be achieved by the extension of the NAMA programme to include approximately €16bn of land and development loans in AIB and Bank of Ireland, which had previously been excluded as they were below a value threshold of €20m. NAMA will categorise sub-€20m AIB and BOI land and development and associated loans (roughly estimated to number 10,000) by reference to asset type and region. NAMA will then apply different discounts to each category based on NAMA’s loan valuation experience up to the point of valuation. On this basis it is expected that all loans will be transferred by end-March 2011. NAMA will issue bonds in return for the assets transferred. NAMA will build on the existing outsourcing arrangements with the banks for the management of these smaller loans

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and performance will be incentivised as appropriate. The NAMA legislation will be amended to underpin the valuation and acquisition of these assets on a portfolio basis. The additional capital requirement will be met by the programme and is included in the figure below. These measures will be notified to the European Commission in accordance with EU competition rules. - Prudential Capital Assessment Review (PCAR) minimum capital requirement for the Irish banks (AIB, BOI, EBS and ILP) will be set at 10.5% core tier 1; - In addition the Irish authorities will ensure that AIB, BOI and EBS are initially recapitalised to a level of 12% core tier 1 capital, which will take account of haircuts on the additional loans to be transferred to NAMA and will fund early deleveraging by making available EUR 10 billion in the system; the recapitalisation will take the form of equity shares (or equivalent instruments for EBS); - The PCAR exercise will be enhanced to provide a comprehensive evaluation of the underlying assets of the banks, taking into account future expected losses. - The PCAR for 2011 will be completed based on comprehensive Terms of Reference for its design and implementation, which will have been previously agreed between the Central Bank, the European Commission, IMF and ECB staff. The methodology used will be published in detail. The Commission, IMF and ECB shall be involved in the validation of the PCAR process. In particular, key data and information that relates to the PCAR exercise will be available to the Commission, IMF and ECB upon request.

Deleveraging measures - The Central Bank will complete a Prudential Liquidity Assessment Plan (PLAR) for 2011, outlining measures to be implemented with a view to steadily deleveraging the banking system and reducing the banks' reliance on short term funding by the end of the programme period. Ambitious target loan to deposit ratios, to be achieved by end 2013, will be established for each bank by the Irish authorities in consultation with the ECB, EC and the IMF by end Dec 2010. These targets will be designed to ensure that convergence to Basel III standards can be readily met by the relevant dates. To this end, the PLAR will establish target funding ratios for 2013 for each of the banks, identify non core assets and set an adjustment path to these targets based on specified 473

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non public annual benchmarks. Banks will be informed of necessary actions to be taken so as to comply with the respective funding targets and adjustment paths. The design and implementation of the PLAR will be agreed with the European Commission, the ECB and the IMF. Compliance with the PLAR benchmarks will be monitored and enforced by the Central Bank taking account of prevailing market conditions. The PLAR will be updated on an annual basis.

Reorganisation of banking sector - The strategy for the future structure, functioning and viability of Irish credit institutions will be developed in detail and agreed with the European Commission, the ECB and the IMF. Within the context of a comprehensive reorganisation and downsizing of the banking sector the strategy will identify the appropriate path to ensure that the banking system will operate without the need of further State support. The Irish authorities are committed to divest the participations in the banks acquired during the crisis within the shortest timeframe possible which is compatible with financial stability and public finance considerations. Building on restructuring undertaken to date, further restructuring and viability plans for the institutions concerned will be submitted in accordance with EU competition rules; these plans will also be made available to the IMF and ECB. Commitments undertaken by the Irish authorities in the context of EU competition decisions will be maintained. - In the context of the above strategy, a specific plan for the resolution of Anglo Irish Bank and Irish Nationwide Building Society will be established and submitted to the European Commission in accordance with EU competition rules. Any related legal procedures will be set in motion under a precise timetable. This plan will seek to minimise capital losses arising from the working out of these non-viable credit institutions. The Government will ensure that these credit institutions adhere to the requisite capital ratios. - Legislation on improved procedures for early intervention in distressed banks and special bank resolution regime (SRR) will be introduced. The SRR should include a robust set of powers and tools to ensure the competent authorities can promptly and effectively resolve distressed banks e.g. when they pose a risk to financial stability.

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The legislation will be consistent with the EU Treaty rules and will be consistent with similar initiatives ongoing at EU level. - Central Bank staffing in relation to the PCAR and PLAR exercises will be reviewed and augmented as necessary to guarantee that both exercises can be conducted on a timely and efficient basis.

Burden sharing by holders of subordinated debt - Consistent with EU State aid rules, burden sharing will be achieved with holders of subordinated debt in relevant credit institutions over the period of the programme. This will be based on the quantum of capital and other financial assistance the State commits to support specific credit institutions and the financial viability of those institutions in the absence of such support. Resolution and restructuring legislation which will address the issue of burden sharing by subordinated bondholders will be submitted to the Oireachtas by end-2010. Where it is appropriate in line with the above criteria, the process of implementing liability management exercises similar to that which is currently being undertaken in relation to holders of subordinated debt in Anglo Irish Bank will be commenced by end-Q1 2011.

iii. Structural reforms To facilitate adjustment in the labour market The government will introduce legislation to reform the minimum wage in such a way as to foster job creation notably for categories at higher risk of unemployment and prevent distortions of wage conditions across sectors associated with the presence of sectoral minimum wages in addition to the national minimum wage. Measures will be as follows: - Reduce by €1.00 per hour the nominal level of the current national minimum wage. - Enlarge the scope of the "inability to pay clause" permitting firms to invoke this clause more than once; These measures should come into effect by May 2011.

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An independent review of the Framework REA and ERO arrangements will be initiated by the end of Q1 2011. Terms of Reference and follow up actions will be agreed with European Commission Services.

To reduce the risk of long-term unemployment The government will reform the unemployment benefit system in such a way as to provide incentives for an early exit from unemployment. This reform of unemployment and social assistance benefits will be part of overall reforms in the welfare system designed to reach budgetary savings of €750m in 2011.

Legislative measures will be enacted with a view to: Taking steps to tackle unemployment and poverty traps including through reducing replacement rates for individuals receiving more than one type of benefit (including housing allowance).

The government reforming the system of activation policies in such a way as to adapt it to the reform in benefits and make it more effective. Legislative and other measures will be introduced with a view to: - improving the efficiency of the administration of unemployment benefits, social assistance and active labour market policies, by exploiting synergies and reducing the overlapping of competencies across different departments; - enhancing conditionality on work and training availability; - strengthening activation measures via: i.

the introduction of instruments to better identify of job seekers' needs

("profiling") and increased engagement; ii.

a more effective

monitoring of jobseekers' activities with regular

evidence-based reports; iii.

the application of sanction mechanisms for beneficiaries not complying

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with job- search conditionality and recommendations for participation in labour market programmes set in such a way as to imply an effective loss of income without being perceived as excessively penalising so that it could credibly be used whenever lack of compliance is ascertained.

At each subsequent review of the programme, the government will submit reports containing an assessment (including by means of quantitative indicators) of the management of activation policies and on the outcome of job seekers' search activities and participation in labour market programmes. Legislative measures should come into effect by May 2011.

An in-depth review of the personal debt regime will be published shortly. Work will commence on reform of legislation which will balance the interests of both creditors and debtors.

2. Actions for the second review (actions to be completed by end Q2-2011)

i. Fiscal consolidation Government will rigorously implement the budget for 2011 and the fiscal consolidation measures announced afterwards, consistent with the requirements of the excessive deficit procedure. Progress will be assessed against the (cumulative) quarterly primary deficit ceilings in the Memorandum of Economic and Financial Polices (MEFP) including the Technical Memorandum of Understanding (TMU).

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

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The government will submit a timetable for implementing the recommendations of the Memorandum. Upon consideration by the European Commission, IMF and ECB staffs the measures in this timetable shall become the performance benchmarks for future reviews.

ii. Financial sector reforms - The results of the PCAR for 2011 will be assessed by the authorities, together with the European Commission, the ECB and the IMF. The results will be published in detail and on a bank-by-bank basis. - Depending on the results of the PCAR 2011, the Government will ensure that the banks are recapitalised in the form of equity, if needed, so as to ensure that the minimum capital requirement of 10.5% will be maintained. - Introduce legislation for the enhancement of financial regulation, expanding the supervisory and enforcement powers of the Central Bank. - The Irish authorities will ensure that ILP is recapitalised to a level of 12% core tier 1 capital. - Progress in implementation of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF.

iii. Structural reforms To enhance long-term fiscal sustainability - The Authorities undertake to introduce legislation to increase the state pension age. Under the Government’s National Pension Framework the age at which people will qualify for the State Pension will be increased to 66 years in 2014, 67 in 2021 and 68 in 2028.

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iv. Structural fiscal reforms To reinforce a credible budgetary strategy - The government will continue to ensure the reliability and the regular availability of budgetary data for both the whole of the general government sector and its breakdown into government layers. Specifically, reporting will comply with the provisions included in annex 1 of the MoU. - Under the period of this financial assistance programme, any additional unplanned revenues must be allocated to debt reduction. - In accordance with the proposal set out in the National Recovery Plan 2011-2014, the government will establish a budgetary advisory council to provide an independent assessment of the Government’s budgetary position and forecasts. - Government extends the voluntary 15 day rule relating to prompt payments to the health service executive, local authorities and state agencies.

3. Actions for the third review (actions to be completed by end Q3-2011)

i. Fiscal consolidation Government will rigorously implement the budget for 2011 and the fiscal consolidation measures announced afterwards, consistent with the requirements of the excessive deficit procedure. Progress is assessed against the (cumulative) quarterly primary deficit ceilings in the Memorandum of Economic and Financial Polices (MEFP) including the Technical Memorandum of Understanding (TMU).

Government will consider an appropriate adjustment, including to the overall public service wage bill, to compensate for potential shortfalls in the projected savings arising from administrative efficiencies and public service numbers reductions.

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain

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that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - Interim review of progress under PLAR 2011 and any related actions will be assessed, together with the European Commission, the ECB and the IMF. - Progress in implementing the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF. - Review progress against PCAR requirements.

iii. Structural reforms To increase growth in the domestic services sector Government will introduce legislative changes to remove restrictions to trade and competition in sheltered sectors including: - the legal profession, establishing an independent regulator for the profession and implementing the recommendations of the Legal Costs Working Group and outstanding Competition Authority recommendations to reduce legal costs. - medical services, eliminating restrictions on the number of GPs qualifying and removing restrictions on GPs wishing to treat public patients as well as restrictions on advertising. - the pharmacy profession, ensuring that the recent elimination of the 50% mark-up paid for medicines under the State's Drugs Payments Scheme is enforced.

To enhance competition in open markets - Government should introduce reforms to legislation to (1) empower judges to impose fines and other sanctions in competition cases in order to generate more credible deterrence and (2) require the competition authorities to list restrictions in 480

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competition law which exclude certain sectors from its scope and to identify processes to address those exclusions.

To encourage growth in the retail sector - The government will conduct a study on the economic impact of eliminating the cap on the size of retail premises with a view to enhancing competition and lowering prices for consumers and discuss implementation of its policy implications with the Commission services.

v. Structural fiscal reforms To put the public service pension system on a more sustainable basis - Pension entitlements for new entrants to the public service will be reformed with effect from 2011. This will include a review of accelerated retirement for certain categories of public servants and an indexation of pensions to consumer prices. Pensions will be based on career average earnings. New public service entrants will also see a 10% pay reduction. New entrants' retirement age will also be linked to the state pension retirement age.

To ensure a more credible fiscal framework - Assessment of work in progress related to the fiscal governance requirements considered in the previous quarters.

To facilitate better government at a local level - Government will ensure that effective measures are in place to cap the contribution of the local government sector to general government borrowing at an acceptable level. The mechanisms in place to underpin this position will be kept under close review, in consultation with the Commission services. The review will also consider how to provide data on the financial position including assets and liabilities of the sector on a timelier basis.

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4. Actions for the fourth review (actions to be completed by end Q4-2011)

i. Fiscal consolidation Government will rigorously implement the budget for 2011 and the fiscal consolidation measures announced afterwards, consistent with the requirements of the excessive deficit procedure. Progress is assessed against the (cumulative) quarterly primary deficit ceilings in the Memorandum of Economic and Financial Polices (MEFP) including the Technical Memorandum of Understanding (TMU).

The government will provide a draft budget for 2012 aiming to further reduce the general government deficit in line with the National Recovery Plan and the programme and including the detailed presentation of consolidation measures amounting to at least €3.6bn.

- Revenue measures to yield €1,500m1 in a full year will be adopted, including: - A lowering of personal income tax bands and credits. - A reduction in private pension tax reliefs. - A reduction in general tax expenditures. - A property tax. - A reform of capital gains tax and acquisitions tax. - An increase in the carbon tax. - The budget will provide for a reduction of expenditure in 2012 of €2,100m including: - Social expenditure reductions. - Reduction of public service numbers and public service pension adjustments.

1

Inclusive of 2011 carryover

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- Other programme expenditure, and reductions in capital expenditure. The Authorities will adopt measures to ensure that the deficit reduction targets as set out in the National Recovery Plan are achieved.

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - Progress in implementing of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF.

iii. Structural reforms To assist in financing need and to increase competition - Building on the forthcoming report of the Review Group on State Assets & Liabilities the government will undertake an independent assessment of the electricity and gas sectors. State authorities will consult with the Commission Services on the results of this assessment with a view to setting appropriate targets.

In advance of the introduction of water charges - The government will have undertaken an independent assessment of transfer of responsibility for water services provision from local authorities to a water utility, and prepare proposals for implementation, as appropriate with a view to start charging in 2012/2013.

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iv. Structural fiscal reforms To reinforce the credibility of the budgetary process - Assessment of work in progress related to the fiscal governance requirements considered in the previous quarters. - The Government will introduce a Fiscal Responsibility Law which will include provision for a medium-term expenditure framework with binding multi-annual ceilings on expenditure in each area by Q4 2011. This will take into account any revised economic governance reforms at EU level and will build on reforms already in place.

5. Actions for the fifth review (actions to be completed by end Q1-2012) i. Fiscal consolidation Government will rigorously implement the budget for 2012 and the fiscal consolidation measures announced afterwards, consistent with the requirements of the excessive deficit procedure. Progress is assessed against the (cumulative) quarterly primary deficit ceilings in the Memorandum of Economic and Financial Polices (MEFP) including the Technical Memorandum of Understanding (TMU). Finance Bill 2012 will contain necessary provisions to bring into effect the already signalled VAT increases in 2013 and 2014.

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - PCAR for 2012 will be completed. The methodology used will be published in detail.

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The Government will ensure that the banks adhere to the requisite capital ratios. - PLAR 2012 will be completed and any related actions will be assessed, together with the European Commission, the ECB and the IMF. - Progress in implementing of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF. - Legislation to reform the bankruptcy regime to be presented to the Houses of the Oireachtas.

iii. Structural reforms To boost the integrity of the fiscal framework - Assessment of work in progress related to the fiscal governance requirements considered in the previous quarters. - Legislation to reform personal debt regime submitted to the Houses of the Oireachtas.

6. Actions for the sixth review (actions to be completed by end Q2-2012)

i. Fiscal Consolidation The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - The results of the PCAR for 2012 will be assessed, together with European Commission, the ECB and the IMF. The results will then be published in detail and on a bank-by-bank basis. 485

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- Depending on the results of the PCAR 2012, the Government will ensure that the minimum capital requirement of 10.5% will be maintained. - Progress in implementation of the strategy for the restructuring of the Irish credit institutions banking system will be assessed by the authorities, together with the European Commission, the ECB and the IMF.

iii. Structural fiscal reforms To further enhance the credibility of the fiscal framework - Assessment of work in progress related to the fiscal governance requirements considered in the previous quarters.

7. Actions for the seventh review (actions to be completed by end Q3- 2012)

i. Fiscal Consolidation The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - Interim review of progress under PLAR 2011 and any related actions will be assessed, together with the European Commission, the ECB and the IMF. - Progress in implementing of the strategy for restructuring of the Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF. - Review progress against PCAR requirements.

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8. Actions for the eighth review (actions to be completed by end Q4-2012)

i. Fiscal Consolidation The government will provide a draft budget for 2013 aiming at a further reduction of the general government deficit in line with the 4-year plan and the programme and including the detailed presentation of consolidation measures amounting to at least €3,100m. - Revenue measures to raise at least €1,100m2 in the full year will be introduced, including: - A lowering of personal income tax bands and credits. - A reduction in private pension tax relief. - A reduction in general tax expenditures. - An increase in property tax. - The budget will provide for a reduction in expenditure in 2013 of no less than €2,000m, including: - Social expenditure reductions. - Reduction of public service numbers and public service pension adjustments. - Other programme expenditure, and reductions in capital expenditure.

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

2

Inclusive of carryover from 2012

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ii. Financial sector reforms - Progress in implementation of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF. - Implementing of the plan for restructuring and strengthening the balance sheets of the credit union sector will be completed. - Legislation to reform the bankruptcy regime to be presented to the Houses of the Oireachtas.

9. Actions for the ninth review (actions to be completed by end Q1-2013)

i. Fiscal Consolidation Government will rigorously implement the budget for 2013 and the fiscal consolidation measures announced afterwards, consistent with the requirements of the excessive deficit procedure. Progress is assessed against the (cumulative) quarterly primary deficit ceilings in the Memorandum of Economic and Financial Polices (MEFP) including the Technical Memorandum of Understanding (TMU).

The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - PCAR for 2013 will be completed. The methodology used will be published in detail. - PLAR 2012 will be completed and any related actions will be assessed, together with the European Commission, the ECB and the IMF. 488

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- Progress in implementing of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF.

iii. Structural fiscal reforms - Assessment of work in progress related to the fiscal reforms considered in the previous quarters. - The nominal value of the State pension should not rise over the period of the programme.

10. Actions for the tenth review (actions to be completed by end Q2-2013)

i. Fiscal Consolidation The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - The results of the PCAR for 2013 will be assessed, together the European Commission, the ECB and the IMF. The results will then be published in detail and on a bank-by-bank basis. - Depending on the results of the PCAR 2013, the Government will ensure that the minimum capital requirement of 10.5% will be maintained. - The PLAR for 2013 will be completed. - Progress in implementation of the strategy for the restructuring the banking system will be assessed by the authorities, together with the European Commission, the ECB and the IMF.

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11. Actions for the eleventh review (actions to be completed by end Q3-2013)

i. Fiscal Consolidation The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved.

ii. Financial sector reforms - Interim review of progress under PLAR 2011 and any related actions will be assessed, together with the European Commission, the ECB and the IMF. - Progress in implementing of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF. - Review progress against PCAR requirements

12. Actions for the twelfth review (actions to be completed by end Q4-2013)

i. Fiscal Consolidation The Department of Finance will continue to ensure tight supervision of expenditure commitments by the line departments, and effective tax collection, to make certain that the primary deficit target in cash (see Table 1 of MEFP) and the general government nominal budget deficit on ESA95 basis as set out in the EU Council Recommendation on excessive deficit procedures are achieved. ii. Financial sector reforms - Progress in implementing of the strategy for the reorganisation of Irish credit institutions will be assessed by the authorities, together with the European Commission, the ECB and the IMF. 490

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Annex 1. Provision of data During the programme, the following indicators and reports shall be made available to the European Commission, the ECB and the IMF staffs by the authorities on a regular basis. To be provided by the Department of Finance

Monthly data on adherence to budget targets (Exchequer statement,

Monthly, 10 days after the

details on Exchequer revenues and expenditure with information on

end of each month

Social Insurance Fund to follow as soon as practicable).

Updated monthly report on the central government's budget

Monthly, 30 days after the

execution and prospects for the remainder of the year.

end of each month

Quarterly data on main revenue and expenditure items of local

Quarterly, 90 days after the

government.

end of each quarter

Updated annual plans for the general government balance showing

Monthly, 30 days after the

transition from the Exchequer balance to the general government

end of each month

balance (using presentation in Table 1 and Table 2A of the EDP notification).

Quarterly data on the public service wage bill, number of employees

Quarterly, 30 days after the

and average wage (using the presentation of the Pay and Pension Bill

end of each quarter

with further details on pay and pension costs of local authorities).

Information on the main Government spending and receipt items

Weekly on Friday, reporting on the previous Thursday

Quarterly data on general government accounts, and general

Quarterly accrual data, 90

government debt as per the relevant EU regulations on statistics.

days after the end of each quarter

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Updated annual plans of the general government balance and its

Together with EDP

breakdown into revenue and expenditure components for the current

notification

year and the following four years, using presentation in the stability programme's standard table on general government budgetary prospects.

To be provided by the NTMA Weekly information on the Government's cash position with

Weekly on Friday, reporting

indication of sources as well of number of days covered

on the previous Thursday

Data on below-the-line financing for the general government.

Monthly, no later than 15 days after the end of each month

Data on public debt, new guarantees and other instruments issued by

Monthly, 30 days after the

the general government to public enterprises, banks and the private

end of each month

sector.

Data on short-, medium- and long-term debt falling due (all

Monthly, 30 days after the

instruments) over the next 36 months for the general government

end of each month

(interest and amortisation) and for central government and local authorities

Data on short-, medium- and long-term debt falling due (all

Quarterly, 30 days after the

instruments) over the next 36 months for State-guaranteed

end of each quarter

enterprises (interest and amortisation) (or Dept of Finance)

Updated estimates of financial sources (bonds issuance, other

Monthly, 30 days after the

financing sources) for the banking and government sectors in the

end of each month

next 12 months

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To be provided by the Central Bank

Assets and liabilities of the Central Bank

Weekly, next working day

Assets and liabilities of the Irish banking system - aggregate

Monthly, 30 days after the

monetary balance sheet of credit institutions

end of each month

Short-, medium- and long-term debt falling due (by type of

Monthly, 30 days after the

instrument) over the next 36 months for domestic banks of systemic

end of each month

importance (interest and amortisation).

Weekly individual operational balance sheets of commercial banks

Weekly, next working day

(of systemic importance), including detailed information on deposits (by maturity and type of depositor) and loans provided to the public and the private sector (households and corporates)

Public debt and new guarantees issued by the general government to

Monthly, 30 days after the

banks.

end of each month

Financial stability indicators (IMF core set: deposits, non-performing

Monthly, 30 days after the

loans, capital adequacy ratios)) for systemic domestic banks

end of each month

Estimates of domestic banks' capital needs in the next 12 months

Monthly, 30 days after the end of each month

Estimates of funding sources for the banking sector for the next 12

Monthly, 30 days after the

months

end of each month

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496